Chapter 1. In General.

Transition Provisions.

Construction and Definitions.

Classification of Criminal Offenses and Punishment Therefor.

Article 1. Transition Provisions.

§ 18.2-1. Repealing clause.

All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.

(1975, cc. 14, 15.)

Editor's note. - At its special session of 1971 the General Assembly directed the Code Commission to make a thorough study of the criminal laws of the State and make recommendations for the review and recodification of all statutes of the State relating to crime and criminal procedure. In November of 1973 the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 18.1, which was published as House Document 10 of the 1974 Session. This report contains revisor's notes and other explanatory matter, which, while valuable, are too lengthy for inclusion here. The proposed revision of Title 18.1 was not adopted by the 1974 General Assembly, but was carried over to the 1975 Session, when it was adopted, with modifications, as Chapters 14 and 15 of the Acts of 1975, the two acts being substantially identical. Effective Oct. 1, 1975, the 1975 acts repeal Title 18.1 of the Code and enact in lieu thereof a new Title 18.2. In addition to its revision by Chapters 14 and 15, former Title 18.1 was also amended by certain other acts passed at the 1975 Session. As required by § 30-152, the Code Commission has incorporated the majority of these amendments into new Title 18.2.

Many of the cases cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 18.1 or prior law.

Law review. - For survey of the Virginia criminal law for the year 1961-1962, see 48 Va. L. Rev. 1342 (1962). For case note on the burden of proof as to perpetrators of crimes, see 19 Wash. & Lee L. Rev. 262 (1962). For survey of Virginia criminal law for the year 1963-1964, see 50 Va. L. Rev. 1287 (1964); for the year 1964-1965, see 51 Va. L. Rev. 1409 (1965); for survey of Virginia criminal law and procedure for the year 1967-1968, see 54 Va. L. Rev. 1579 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1581 (1969). For survey of Virginia law on evidence for the year 1967-1968, see 54 Va. L. Rev. 1611 (1968).

Research References. - Stanley S. Arkin, Business Crime: Criminal Liability of the Business Community (Matthew Bender).

§ 18.2-2. Effect of repeal of Title 18.1 and enactment of this title.

The repeal of Title 18.1, effective as of October 1, 1975, shall not affect any act or offense done or committed, or any penalty or forfeiture incurred, or any right established, accrued or accruing on or before such date, or any prosecution, suit or action pending on that day. Except as herein otherwise provided, neither the repeal of Title 18.1 nor the enactment of this title shall apply to offenses committed prior to October 1, 1975, and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to October 1, 1975, if any of the essential elements of the offense occurred prior thereto.

(1975, cc. 14, 15.)

§ 18.2-3. Certain notices, recognizances and processes validated.

Any notice given, recognizance taken, or process or writ issued before October 1, 1975, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.

(1975, cc. 14, 15.)

§ 18.2-4. References to former sections, articles and chapters of Title 18.1 and others.

Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 18.1 or any other title of this Code as such titles existed prior to October 1, 1975, are transferred in the same or in modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 18.1 or such other title appearing elsewhere in this Code than in this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(1975, cc. 14, 15.)

Article 2. Construction and Definitions.

§ 18.2-5.

Repealed by Acts 2005, c. 839, cl. 10, effective October 1, 2005.

Editor's note. - Former § 18.2-5 , pertaining to rules of construction, derived from Code 1950, § 18.1-5; 1960, c. 358; 1975, cc. 14, 15.

§ 18.2-6. Meaning of certain terms.

As used in this title:

The word "court," unless otherwise clearly indicated by the context in which it appears, shall mean and include any court vested with appropriate jurisdiction under the Constitution and laws of the Commonwealth.

The words "driver's license" and "license to operate a motor vehicle" shall mean any document issued under Chapter 3 (§ 46.2-300 et seq.) of Title 46.2, or the comparable law of another jurisdiction, authorizing the operation of a motor vehicle upon the highways.

The word "judge," unless otherwise clearly indicated by the context in which it appears, shall mean and include any judge, associate judge or substitute judge, or police justice, of any court.

The words "motor vehicle," "semitrailer," "trailer" and "vehicle" shall have the respective meanings assigned to them by § 46.2-100 .

(Code 1950, § 18.1-5; 1960, c. 358; 1975, cc. 14, 15; 2020, cc. 1227, 1246.)

Editor's note. - Acts 2020, cc. 1227 and 1246, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2020, cc. 1227 and 1246, cl. 4 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2020 amendments. - The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and inserted the paragraph defining "driver's license" and "license to operate a motor vehicle"; and made a stylistic change.

§ 18.2-7. Criminal act not to merge civil remedy.

The commission of a crime shall not stay or merge any civil remedy.

(Code 1950, § 18.1-7; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 11.

Article 3. Classification of Criminal Offenses and Punishment Therefor.

§ 18.2-8. Felonies, misdemeanors and traffic infractions defined.

Offenses are either felonies or misdemeanors. Such offenses as are punishable with confinement in a state correctional facility are felonies; all other offenses are misdemeanors. Traffic infractions are violations of public order as defined in § 46.2-100 and not deemed to be criminal in nature.

(Code 1950, § 18.1-6; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 585; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "confinement" in the first sentence.

Law review. - For comment, "Right to Court-Appointed Counsel for Misdemeanants in Virginia," see 4 U. Rich. L. Rev. 306 (1970). For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971). For comment on rights of the convicted felon on parole, see 13 U. Rich. L. Rev. 367 (1979). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

Research References. - Cipes, Bernstein, and Hall. Criminal Defense Techniques (Matthew Bender).

Kadish, Brofman. Criminal Law Advocacy (Matthew Bender).

McCloskey and Schoenberg. Criminal Law Deskbook (Matthew Bender).

Rudstein, Erlinder, and Thomas. Criminal Constitutional Law (Matthew Bender).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, § 10; 5B M.J. Criminal Procedure, § 3.

CASE NOTES

The same act cannot at the same time constitute a felony and a misdemeanor. They cannot coexist as the result of one and the same transaction. The crime must be one or the other, not both, or either. Benton v. Commonwealth, 89 Va. 570 , 16 S.E. 725 (1893).

And the grade of the offense is fixed by the punishment provided by statute. Bell v. Commonwealth, 167 Va. 526 , 189 S.E. 441 (1937).

For the legislature never intended to leave the grade of any offense to the discretion of a jury. Benton v. Commonwealth, 89 Va. 570 , 16 S.E. 725 (1893).

A felony is such an offense as may be (not must be) punished by death or confinement in the penitentiary (now state correctional facility). Canada v. Commonwealth, 63 Va. (22 Gratt.) 899 (1872); Benton v. Commonwealth, 89 Va. 570 , 16 S.E. 725 (1893); Forbes v. Commonwealth, 90 Va. 550 , 19 S.E. 164 (1894); Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895); Fletcher v. Commonwealth, 163 Va. 1007 , 175 S.E. 895 (1934).

Notwithstanding lesser jury verdict. - Where the punishment prescribed may be death or confinement in the penitentiary (now state correctional facility), it is a felony notwithstanding that the jury actually imposes a less penalty, by virtue of a discretion allowed them. Quillin v. Commonwealth, 105 Va. 874 , 54 S.E. 333 (1906). See Fletcher v. Commonwealth, 163 Va. 1007 , 175 S.E. 895 (1934).

Whatever is not a felony is a misdemeanor. Commonwealth v. Callaghan, 4 Va. (2 Va. Cas.) 460 (1825).

All offenses which cannot be punished with death or confinement in the penitentiary (now state correctional facility) are misdemeanors. Trimble v. Commonwealth, 4 Va. (2 Va. Cas.) 143 (1818); Benton v. Commonwealth, 89 Va. 570 , 16 S.E. 725 (1893); Forbes v. Commonwealth, 90 Va. 550 , 19 S.E. 164 (1894); Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

There is no distinction between "capital cases" and "felonies" as exists in some other jurisdictions or as existed at common law. This section classifies offenses as either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary (now state correctional facility) are felonies; all other offenses are misdemeanors. Roach v. Commonwealth, 157 Va. 954 , 162 S.E. 50 (1932).

The committing magistrate does not by his warrant fix the grade of the offense for which the accused is tried. Hawley v. Commonwealth, 75 Va. 847 (1880).

In case of doubt, court will construe crime as misdemeanor. - This section defines felonies to be "such offenses as are punishable with death or confinement in the penitentiary (now state correctional facility), all other offenses are misdemeanors." There is nothing in the statute which prohibits imprisonment in jail for a longer period than one year. Where a crime may be construed either a misdemeanor or a felony, the court will construe it a misdemeanor, thus applying the well-recognized principle that a penal statute must be construed strictly in favor of the accused. Young v. Commonwealth, 155 Va. 1152 , 156 S.E. 565 (1931).

Forgery. - This section makes clear that whether forgery is a felony or is a misdemeanor is determined by the sentence lawfully possible under former § 18.1-96 (now § 18.2-172 ) and does not depend upon the sentence actually imposed or the nature of the offense. United States v. Johnson, 497 F.2d 548 (4th Cir. 1974).

Applied in Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002).

CIRCUIT COURT OPINIONS

Discretion of Commonwealth's Attorney. - Because the Commonwealth's Attorney, who had the discretion to prosecute misdemeanors, stated that he would not prosecute any presentment that could be returned for traffic infractions involving placing locks on a bridge, the circuit court would not interfere with that discretion. In re Public Nuisance Complaint of Gregory, 98 Va. Cir. 104, 2018 Va. Cir. LEXIS 9 (Norfolk Jan. 30, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Trial court may not order a person convicted of felony to serve any confinement in jail on weekends or nonconsecutive days. - The plain language of § 53.1-131.1 , limits the court's authority to convictions for misdemeanors, traffic offenses and violations of Chapter 5 ( § 20-61 et seq.) Title 20. See opinion of Attorney General to The Honorable Harvey L. Bryant, Commonwealth's Attorney, City of Virginia Beach, 12-062, 2012 Va. AG LEXIS 30 (7/20/2012).

§ 18.2-9. Classification of criminal offenses.

  1. Felonies are classified, for the purposes of punishment and sentencing, into six classes:
    1. Class 1 felony
    2. Class 2 felony
    3. Class 3 felony
    4. Class 4 felony
    5. Class 5 felony
    6. Class 6 felony.
  2. Misdemeanors are classified, for the purposes of punishment and sentencing, into four classes:
    1. Class 1 misdemeanor
    2. Class 2 misdemeanor
    3. Class 3 misdemeanor
    4. Class 4 misdemeanor.

      (1975, cc. 14, 15.)

Law review. - For survey of Virginia law on criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For comment on sentencing in criminal cases, see 13 U. Rich. L. Rev. 899 (1979).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 3.

Applied in Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002).

§ 18.2-10. Punishment for conviction of felony; penalty.

The authorized punishments for conviction of a felony are:

  1. For Class 1 felonies, imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. Any person who was 18 years of age or older at the time of the offense and who is sentenced to imprisonment for life upon conviction of a Class 1 felony shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 (§ 53.1-186 et seq.) of Title 53.1, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 .
  2. For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
  3. For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.
  4. For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.
  5. For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
  6. For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.
  7. Except as specifically authorized in subdivision (e) or (f), the court shall impose either a sentence of imprisonment together with a fine, or imprisonment only. However, if the defendant is not a natural person, the court shall impose only a fine. For any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, shall, except in cases in which the court orders a suspended term of confinement of at least six months, impose an additional term of incarceration of not less than six months nor more than three years, which shall be suspended conditioned upon successful completion of a period of post-release supervision pursuant to § 19.2-295.2 and compliance with such other terms as the sentencing court may require. However, such additional term may only be imposed when the sentence includes an active term of incarceration in a correctional facility. For a felony offense prohibiting proximity to children as described in subsection A of § 18.2-370.2 , the sentencing court is authorized to impose the punishment set forth in that section in addition to any other penalty provided by law. (1975, cc. 14, 15; 1977, c. 492; 1990, c. 788; 1991, c. 7; 1994, 2nd Sp. Sess., cc. 1, 2; 1995, c. 427; 2000, cc. 361, 767, 770; 2003, cc. 1031, 1040; 2006, cc. 36, 733; 2008, c. 579; 2017, cc. 86, 212; 2020, cc. 1115, 1116; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to the trial of capital cases, see § 19.2-264.2 et seq.

Editor's note. - Acts 1975, cc. 14 and 15, cl. 4 provides: "All acts of the General Assembly of Virginia in its Session of nineteen hundred seventy-five, which provide for punishment by class instead of a specific penalty shall be deemed to be incorporated by reference to §§ 18.2-10 and 18.2-11 of this act, which will become effective Oct. one, nineteen hundred seventy-five."

Acts 2000, cc. 361, 767, and 770, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

Acts 2003, cc. 1031 and 1040, cl. 3, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2017, cc. 86 and 212, cl. 2 provides: "That it is the expressed intent of the General Assembly that the provisions of this act serve only to reflect a change in terminology approved and used by experts in the field to describe the identical phenomenon, as stated by the U.S. Supreme Court in Hall v. Florida, 134 S. Ct. 1986 (2014), and do not affect the meaning or applicability of the existing definition or case law utilizing the existing definition."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1995 amendment added the second sentence in subdivision (g).

The 2000 amendments. - The 2000 amendment by c. 361, in subdivision (a), inserted "if the person so convicted was sixteen years of age or older at the time of the offense" in the first sentence and added the second sentence.

The 2000 amendment by c. 767, in the next to last paragraph, inserted "(i)" and the language beginning "and (ii) on or" and ending "least six months" in the first sentence.

The 2000 amendment by c. 770 added the final paragraph.

The 2003 amendments. - The 2003 amendments by c. 1031, effective April 29, 2003, and c. 1042, effective May 1, 2003, are identical, and substituted "10" for "ten," "12" for "twelve," "16" for "sixteen," and "20" for "twenty"; and in subdivision (a), inserted "and is not determined to be mentally retarded pursuant to § 19.2-264.3:1.1" in the first sentence, and inserted "or is determined to be mentally retarded pursuant to § 19.2-264.3:1.1" in the second sentence.

The 2006 amendments. - The 2006 amendments by cc. 36 and 733 are identical, and in subdivision (a), substituted "18" for "16" preceding "years of age" in the first and last sentences.

The 2008 amendments. - The 2008 amendment by c. 579 deleted "subsection B of" preceding "that section in" near the middle of the last paragraph.

The 2017 amendments. - The 2017 amendments by cc. 86 and 212 are identical, and substituted "a person with intellectual disability" for "mentally retarded" twice in subdivision (a).

The 2020 amendments. - The 2020 amendments by cc. 1115 and 1116 are identical, and in the next to last paragraph of the section, inserted "of incarceration" in the first sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and rewrote subdivision (a), which formerly read: "For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be a person with intellectual disability pursuant to § 19.2-264.3:1.1, or imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. If the person was under 18 years of age at the time of the offense or is determined to be a person with intellectual disability pursuant to § 19.2-264.3:1.1, the punishment shall be imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000"; deleted "or in Class 1 felonies for which a sentence of death is imposed" preceding "(e) or (f)" in the first sentence of subsection (g).

Law review. - For comment on the constitutional parameters for capital punishment, see 11 U. Rich. L. Rev. 101 (1976). For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For survey of Virginia criminal procedure for the year 1976-1977, see 63 Va. L. Rev. 1408 (1977). For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980). For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For article, "Sentencing Juvenile Homicide Offenders: A 50-State Survey," see 5 Va. J. Crim. L. 130 (2017).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, § 21; 4A M.J. Conspiracy, § 4.1; 5B M.J. Criminal Procedure, §§ 3, 30, 70, 80; 8B M.J. Forgery, § 25; 9B M.J. Homicide, §§ 37, 133, 135, 136; 12A M.J. Lotteries, § 4; 12B M.J. Mayhem, §§ 2, 11; 15 M.J. Rape and Other Statutory Offenses, §§ 3, 27; 20 M.J. Weapons, § 4.1.

CASE NOTES

Constitutionality of death penalty statutes. - The death penalty statute, set out in Article 4.1 of Chapter 15 of Title 19.2, is not facially unconstitutional under the Eighth and Fourteenth Amendments. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Construction. - Fine provisions of subsection C of § 18.2-270 and subdivision (f) of § 18.2-10 directly conflict with each other. Because the provisions cannot be harmonized, the more specific statute, subsection C of § 18.2-270 , prevails. Neria v. Commonwealth, No. 3088-07-4,, 2009 Va. App. LEXIS 136 (Ct. of Appeals Mar. 24, 2009).

The effect of a commutation was to substitute a sentence of life imprisonment for the death penalty, a substitution the Governor was empowered to make without the defendant's consent. Lewis v. Commonwealth, 218 Va. 31 , 235 S.E.2d 320 (1977).

And substituted penalty is only sentence considered on appeal. - After commutation of a sentence of death, the penalty substituted therefor is the only sentence to be considered on appeal. In such circumstances, the defendant's status is to be viewed as though the substituted sentence, and not the allegedly invalid death penalty, had been imposed originally. Lewis v. Commonwealth, 218 Va. 31 , 235 S.E.2d 320 (1977).

Thus, constitutionality of death penalty is rendered moot. - Where a life term is substituted validly by commutation for a viable sentence of death, the conclusion is inescapable that the question of the constitutionality of the death penalty has been rendered moot. Lewis v. Commonwealth, 218 Va. 31 , 235 S.E.2d 320 (1977).

Death penalty availability. - State supreme court granted the petition for writ of mandamus filed by the Commonwealth Attorney, as the trial court did not have the discretion to prohibit the Commonwealth Attorney from seeking the death penalty; the Commonwealth Attorney was entitled to seek that penalty pursuant to statutory law and the trial court erred by exercising an executive function in determining that the Commonwealth Attorney was prohibited from seeking it in defendant's case where defendant was charged with capital murder pursuant to § 18.2-31 . In re Horan, 271 Va. 258 , 634 S.E.2d 675, 2006 Va. LEXIS 23 (2006).

Capital murder verdict form must allow for life sentence and fine. - Subsection (g) and § 19.2-264.4 are in conflict; this section, the statute that prescribes the punishment for capital murder, is the more specific of the two and, accordingly, it must prevail; thus, at a minimum, a jury must receive a verdict form that, in addition to addressing the imposition of a sentence of death and the imposition of a sentence of life imprisonment, also allows the jury to impose a sentence of life imprisonment and a fine of up to $ 100,000. Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001).

Imposition of post-release terms of suspended incarceration and supervision. - The imposition of post-release terms of suspended incarceration and supervision under this section and § 19.2-295.2 does not violate a due process right of a defendant to be sentenced by a jury. Boyd v. Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).

Purpose of the enactment of § 18.2-10 was to provide the authority, following the abolition of parole in Virginia, to allow for a period of at least six months' supervision, and thus, the trial court erred in imposing an additional term of post-release supervision on defendant after defendant's probation was revoked since statutory authority existed at time of sentencing to impose post-release supervision. Lamb v. Commonwealth, 40 Va. App. 52, 577 S.E.2d 530, 2003 Va. App. LEXIS 120 (2003).

Trial court did not err in imposing an additional sentence of three years supervision on to defendant's life sentence after defendant pled guilty to first-degree murder in exchange for the life sentence; although the plea agreement was a contract, contract law included the law in force on the date the contract was formed, which included the suspended sentence and post-release supervision provisions of subdivision (g) of § 18.2-10 and § 19.2-295.2 . Wright v. Commonwealth, 49 Va. App. 58, 636 S.E.2d 489, 2006 Va. App. LEXIS 503 (2006).

Defendant entered into a plea agreement with the Commonwealth pursuant to Va. Sup. Ct. R. 3A:8(c)(1)(C); as contract principles applied to plea agreements, and the law in effect when the contract was made became part of the contract, the trial court, after accepting the plea agreement, properly imposed terms of suspended incarceration and post-release supervision under § 18.2-10(g) and subsection A of § 19.2-295.2 , even though such terms were not mentioned in the plea agreement. Wright v. Commonwealth, 275 Va. 77 , 655 S.E.2d 7, 2008 Va. LEXIS 12 (2008).

Imposition of term of post-release supervision. - As defendant's sentence, which included three years of imprisonment fixed by the jury and a three-year term of post-release supervision imposed by the trial court under § 19.2-295.2 , was within the 10-year range set by the legislature for voluntary manslaughter, it was not illegal. Alston v. Commonwealth, 49 Va. App. 115, 637 S.E.2d 344, 2006 Va. App. LEXIS 544 (2006).

Imposition of post-release supervision, but no post-release term of suspended incarceration. - Circuit court, in sentencing defendant, ordered only a term of post-release supervision, not one of post-release incarceration; thus, no suspended term of confinement was available for imposition, and the circuit court's order imposing post-release incarceration was vacated without reaching defendant's claim on appeal. To the extent that the court interpreted the sentencing order to contain a period of suspended post-release confinement implicitly or by operation of law, that interpretation was erroneous. Eggleston v. Commonwealth, No. 1347-16-2, 2017 Va. App. LEXIS 235 (Sept. 12, 2017).

No error in denying concurrent sentence. - Given that the record on appeal adequately demonstrated that the sentencing judge correctly understood his discretion and sentenced defendant within the lawful scope of that discretion, the Court of Appeals of Virginia declined to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18. As a result, no error resulted in the denial of defendant's request for a concurrent sentence. Scalf v. Commonwealth, No. 0007-07-3,, 2008 Va. App. LEXIS 230 (Ct. of Appeals May 13, 2008).

Former provisions of § 53-291 not automatically invalidated. - The former provisions of § 53-291, including a mandatory death penalty provision subsequently incorporated into this section, were not automatically invalidated and the defendant's death sentence for the killing of a prison guard was not immediately voided, by the decisions in Woodson v. North Carolina , 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), and Roberts v. Louisiana , 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), which invalidated mandatory death penalty statutes in North Carolina and Louisiana. Lewis v. Commonwealth, 218 Va. 31 , 235 S.E.2d 320 (1977).

The former provisions of § 53-291, including a mandatory death penalty provision subsequently incorporated into this section, and any sentence imposed thereunder stand, at least presumptively, valid and enforceable despite the similarity between the provision and the mandatory death penalty statutes struck down in Woodson v. North Carolina , 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), and Roberts v. Louisiana , 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), unless and until directly struck down in light of these opinions by the Virginia Supreme Court in an appropriate future case. Lewis v. Commonwealth, 218 Va. 31 , 235 S.E.2d 320 (1977).

Convicted felon must take affirmative action to restore rights. - A convicted felon in Virginia retains the civil disabilities resulting from his conviction until he himself takes affirmative action to have his civil rights restored. Almond v. United States, 854 F. Supp. 439 (W.D. Va. 1994).

Excessive sentence. - Where defendant's abduction sentence exceeded the maximum, it had to be reduced. Barron v. Commonwealth, No. 1798-02-3, 2003 Va. App. LEXIS 358 (Ct. of Appeals June 24, 2003).

Defendant's sentence on his conviction for possession of marijuana with intent to distribute was excessive and, thus, the sentence for that offense had to be corrected on remand of defendant's case to the trial court; a 15-year sentence was imposed for that offense, but since it was a Class 5 felony, the maximum punishment that could be imposed was 10 years. Lathram v. Commonwealth, No. 0155-05-4,, 2006 Va. App. LEXIS 168 (Ct. of Appeals May 2, 2006).

Defendant's sentence to twenty years in prison, with fifteen years suspended, for unlawful wounding was excessive because the crime was a class 6 felony for which the maximum sentence was five years in prison under § 18.2-10 . Ferguson v. Commonwealth, 51 Va. App. 427, 658 S.E.2d 692, 2008 Va. App. LEXIS 367 (2008).

Trial court erred by sentencing defendant to ten years' incarceration for each of defendant's two convictions of unlawful wounding, in violation of § 18.2-51 , because § 18.2-10(f) authorized the imposition of a maximum five years' incarceration for unlawful wounding, a Class 6 felony. Furthermore, because the appellate court could only speculate as to the sentence which the trial court might have imposed on remand for each conviction of unlawful wounding, using the correct statutory sentencing range, each case had to be remanded to the trial court for resentencing. Gordon v. Commonwealth, 61 Va. App. 682, 739 S.E.2d 276, 2013 Va. App. LEXIS 102 (2013).

Defendant's 20-year sentence for abduction surpassed the mandatory statutory maximum of 10 years, and therefore it was void ab initio. Fletcher v. Commonwealth, 72 Va. App. 493, 849 S.E.2d 594, 2020 Va. App. LEXIS 275 (2020).

Sentence within range set by legislature. - Trial court did not abuse its discretion in imposing a 43-year sentence against defendant, as said sentence was within the ranges set by the legislature and well below the total statutory maximum for the various felony offenses for which he was convicted. Clark v. Commonwealth, No. 1727-07-3,, 2008 Va. App. LEXIS 234 (Ct. of Appeals May 13, 2008).

Defendant's involuntary manslaughter sentence was appropriate because it was a Class 5 felony under § 18.2-36 , punishable by imprisonment for 1 to 10 years under subsection (e) of § 18.2-10 , and defendant was sentenced to 10 years imprisonment, which fell within the statutory range set by the legislature. Thus, no abuse of discretion occurred with regard to his sentence. Scott v. Commonwealth, 58 Va. App. 35, 707 S.E.2d 17, 2011 Va. App. LEXIS 104 (2011).

Defendant's sentence to life in prison for first-degree murder was not an abuse of discretion because the sentence was within the statutory range in §§ 18.2-32 and 18.2-10 . Johnson v. Commonwealth, 63 Va. App. 175, 755 S.E.2d 468, 2014 Va. App. LEXIS 106 (2014), aff'd, 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016).

Defendant's sentence of death was neither excessive nor disproportionate. Defendant's sentence of death for capital murder for hire was neither excessive nor disproportionate when compared to sentences generally imposed by sentencing bodies in this jurisdiction for crimes of a similar nature. Murphy v. Commonwealth, 246 Va. 136 , 431 S.E.2d 48, cert. denied, 510 U.S. 928, 114 S. Ct. 336, 126 L. Ed. 2d 281 (1993).

Juvenile offender. - Defendant, who was sentenced under Virginia law to life in prison without parole for capital crimes committed while a juvenile, was entitled to habeas relief because the sentence violated defendant's constitutional right to a proportional sentence in that the trial court did not determine at a hearing whether the circumstances surrounding defendant's actions reflected irreparable corruption on the one hand, or the transient immaturity of youth on the other hand. Malvo v. Mathena, 254 F. Supp. 3d 820, 2017 U.S. Dist. LEXIS 87914 (E.D. Va. 2017), aff'd, 893 F.3d 265 (4th Cir. 2018).

Revocation of suspended sentence. - There was a miscarriage of justice for Va. Sup. Ct. R. 5A:18 purposes in the revocation of defendant's 1999 sentences as the maximum sentence for the 1999 convictions was five years and 30 days under §§ 18.2-308.2 , 18.2-10 , and 18.2-250.1 , and the revocation of defendant's 1999 suspended sentences occurred two years after the maximum period for which defendant might originally have been sentenced to imprisonment under subsection A of § 19.2-306 . Keen v. Commonwealth, No. 1787-09-3,, 2010 Va. App. LEXIS 268 (Ct. of Appeals July 6, 2010).

Order revoking defendant's suspended sentences for three distributing marijuana convictions was proper as defendant failed to object and did not show a miscarriage of justice under Va. Sup. Ct. R. 5A:18 since the trial court had jurisdiction to revoke defendant's suspended sentences under subsection A of § 19.2-306 since such revocation was allowed during the maximum period for which defendant might originally have been sentenced to imprisonment, or 30 years, under § 18.2-10 . Keen v. Commonwealth, No. 1787-09-3,, 2010 Va. App. LEXIS 268 (Ct. of Appeals July 6, 2010).

Trial court did not err in revoking defendant's suspended sentence and re-suspending the suspended sentence for possession of cocaine because by committing new crimes, defendant violated the long established implicit condition of good behavior; committing new felonies qualified as "good cause" by any measure, and the trial court possessed the authority to revoke his previously suspended sentence for crimes committed during the period of suspension. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Revocation of probation. - Where defendant had been indicted for felony child abuse, entered a guilty plea, and was placed on supervised probation, she violated the good behavior conditions of her supervised probation by providing false information on a firearm purchase form indicating that she was not under indictment. Therefore, the trial court did not err in revoking her active supervised probation and finding her guilty of felony child abuse and neglect. Maldonado-Mejia v. Commonwealth, 287 Va. 49 , 752 S.E.2d 833, 2014 Va. LEXIS 6 (2014).

Mental retardation. - Punishment is death for Class 1 felonies, if the person convicted was 16 [now 18] years of age or older at the time of the offense and is not determined to be mentally retarded, but the finding of mental retardation does not increase the penalty for the crime beyond the statutory maximum - death, rather, a defendant facing the death penalty may avoid that penalty if defendant successfully raises and proves by a preponderance of the evidence that defendant is mentally retarded ( § 19.2-264.3:1.2 E and § 19.2-264.3:1.1 C); the state does not have a corollary duty to prove that a defendant is not retarded in order to be entitled to the death penalty, and accordingly, an increase in a defendant's sentence is not predicated on the outcome of the mental retardation determination, only a decrease. Walker v. True, 399 F.3d 315, 2005 U.S. App. LEXIS 2775 (4th Cir. 2005).

Verdict form must include option of life imprisonment and fine. - In 1991, the General Assembly amended this section to include the additional option of imposing a fine of not more than $ 100,000 in addition to a sentence of life imprisonment in a capital case but failed to amend § 19.2-264.4 D to reflect this change in the range of sentences available for capital murder, and the two statutes have since remained in conflict; since this section is more specific than § 19.2-264.4 D, which sets forth the terms of the verdict forms that are to be provided to the jury, it must prevail, and thus, at a minimum, a jury in a capital case must receive a verdict form that, in addition to addressing the imposition of a sentence of death and the imposition of a sentence of life imprisonment, also allows the jury to impose a sentence of life imprisonment and a fine of up to $100,000. Accordingly, in a capital murder trial, the trial court must give the jury verdict forms providing expressly for the imposition of a sentence of imprisonment for life and a fine of not more than $100,000 when the jury finds that one or both of the aggravating factors have been proven beyond a reasonable doubt. Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001).

Sentence which the trial court imposed on defendant who was convicted of statutory rape was within the range prescribed by §§ 18.2-10 and 18.2-63 , and the trial court did not abuse its discretion by considering defendant's risk factors and imposing an active sentence that exceeded the length of the active sentence recommended by the sentencing guidelines. Brooks v. Commonwealth, No. 2540-02-3, 2004 Va. App. LEXIS 29 (Ct. of Appeals Jan. 28, 2004).

Sentence was proper. - Sentence for taking indecent liberties with a minor was affirmed where, before passing sentence, the trial court emphasized the seriousness of the offense committed, addressed two of the arguments made by the defense in mitigation of the offense, explained that it did not feel either of those claims undermined the seriousness of the criminal acts committed against the victim, and gave reasons for exceeding the sentencing guidelines: "gravity of the offense" and "failure to truly accept responsibility"; contrary to defendant's contention, the record did not reflect that the trial court refused to consider any of the mitigating facts or circumstances presented on his behalf. The sentence imposed by the trial court was within the range set by the legislature. Harmon v. Commonwealth, No. 0694-11-4,, 2012 Va. App. LEXIS 107 (Ct. of Appeals Apr. 10, 2012).

Defendant's sentence to life in prison for first-degree murder was appropriate because the trial court found defendant's prior record and the brutality of the offense made defendant a danger to himself and others should defendant be returned to society. Johnson v. Commonwealth, 63 Va. App. 175, 755 S.E.2d 468, 2014 Va. App. LEXIS 106 (2014), aff'd, 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016).

Defendant's sentence to life in prison for first-degree murder was not contrary to the decision of the U.S. Supreme Court in Miller v. Alabama because (1) that decision concerned the constitutionality of statutes mandating life in prison without the possibility of parole for juvenile offenders, and (2) the trial court had the discretion to sentence defendant to a term ranging from 20 years to life. Johnson v. Commonwealth, 63 Va. App. 175, 755 S.E.2d 468, 2014 Va. App. LEXIS 106 (2014), aff'd, 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016).

Although the November 6, 2015, order referred to an excessive sentence of 20 years for defendant's attempted murder conviction, that reference was a clerical error because, at the hearing preceding that order, the circuit court explained that it had misspoken at defendant's original sentencing hearing and inadvertently interchanged the sentences for defendant's malicious wounding and attempted murder convictions; and the circuit court then explained that it intended to impose the sentences of 20 years of incarceration with 10 years suspended for the malicious wounding conviction and 10 years of incarceration with five years suspended for the attempted murder conviction; the case was remanded to correct the clerical errors in that order. Boykins v. Commonwealth, No. 1487-16-1, 2017 Va. App. LEXIS 143 (June 6, 2017).

Sentence was improper. - Trial court's sentencing order, as drafted, did not comply with Virginia law, where the order did not specify that the additional time was imposed pursuant to §§ 18.2-10 and 19.2-295.2 . Furthermore, the period of post-release supervision imposed by the trial court was not under the supervision and review of the Virginia Parole Board. Thomas v. Commonwealth, 296 Va. 301 , 819 S.E.2d 437, 2018 Va. LEXIS 139 (2018).

Attempted malicious wounding is class 3 felony. - Facts showed that (1) defendant drove his truck down a 100-foot driveway at a high rate of speed; (2) the victim testified he believed that defendant was going to hit him, and he had to jump between two parked cars to escape being struck; (3) defendant admitted threatening the victim, drinking alcohol before the incident, and confirmed that he and the victim had prior confrontations; (4) the victim's father also heard defendant's threats and saw skid marks in the gravel driveway; (5) a police officer investigating the incident also observed fresh skid marks and testified defendant appeared to have been drinking; and (6) a motor vehicle, wrongfully used, could be a weapon as deadly as a gun or a knife. Thus, the trial court's determination that defendant attempted to run over the victim and cause him serious bodily injury was not plainly wrong or without evidence to support it; therefore, the evidence was sufficient to convict defendant of attempted malicious wounding. Sprouse v. Commonwealth, No. 3010-04-2,, 2006 Va. App. LEXIS 45 (Ct. of Appeals Feb. 7, 2006).

Applied in Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981); Smith v. Commonwealth, 222 Va. 700 , 284 S.E.2d 590 (1981); Brown v. Commonwealth, 226 Va. 56 , 307 S.E.2d 239 (1983); Evans v. Commonwealth, 228 Va. 468 , 323 S.E.2d 114 (1984); Dargan v. Commonwealth, 27 Va. App. 495, 500 S.E.2d 228 (1998); Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002); McBride v. Commonwealth, 44 Va. App. 526, 605 S.E.2d 773, 2004 Va. App. LEXIS 597 (2004); Conkling v. Commonwealth, 45 Va. App. 518, 612 S.E.2d 235 (2005); Vasquez v. Commonwealth, 291 Va. 232 , 781 S.E.2d 920, 2016 Va. LEXIS 13 (2016); Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

CIRCUIT COURT OPINIONS

Trial court has broad discretion. - In non-jury trials, a presiding judge has broad discretion in sentencing and, as long as the sentence does not exceed the statutory authority, he may impose whatever sentence he deems appropriate. Commonwealth v. Boone, 73 Va. Cir. 277, 2007 Va. Cir. LEXIS 232 (Portsmouth Apr. 26, 2007).

§ 18.2-11. Punishment for conviction of misdemeanor.

The authorized punishments for conviction of a misdemeanor are:

  1. For Class 1 misdemeanors, confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.
  2. For Class 2 misdemeanors, confinement in jail for not more than six months and a fine of not more than $1,000, either or both.
  3. For Class 3 misdemeanors, a fine of not more than $500.
  4. For Class 4 misdemeanors, a fine of not more than $250. For a misdemeanor offense prohibiting proximity to children as described in subsection A of § 18.2-370.2 , the sentencing court is authorized to impose the punishment set forth in subsection B of that section in addition to any other penalty provided by law. (1975, cc. 14, 15; 1990, c. 788; 2000, c. 770.)

Cross references. - As to mandatory purchases from the Department for the Blind and Vision Impaired, see § 2.2-1117 .

Editor's note. - Acts 1975, cc. 14 and 15, cl. 4 provides: "All acts of the General Assembly of Virginia in its Session of nineteen hundred seventy-five, which provide for punishment by class instead of a specific penalty shall be deemed to be incorporated by reference to §§ 18.2-10 and 18.2-11 of this act, which will become effective Oct. one, nineteen hundred seventy-five."

Acts 2000, c. 770, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 2000 amendments. - The 2000 amendment by c. 770 added the last paragraph.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975); for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980). For article on injuries to business under the Virginia Conspiracy Act, see 38 Wash. & Lee L. Rev. 377 (1981). For article on the Virginia Conspiracy Statute, see 38 Wash. & Lee L. Rev. 1147 (1981). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981). For article, "Appeal De Novo in Virginia: An Examination of Its Present Utility," see 42 Wash. & Lee L. Rev. 1149 (1985).

For article, "What's Current in Asbestos Regulations," see 23 U. Rich. L. Rev. 375 (1989).

For survey on environmental law in Virginia for 1989, see 23 U. Rich. L. Rev. 625 (1989).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For note, "Is Powell Still Valid? The Supreme Court's Changing Stance on Cruel and Unusual Punishment," see 104 Va. L. Rev. 547 (2018).

For essay, "The Downfall of 'Incumbent Protection': Case Study and Implications," see 54 U. Rich. L. Rev. 243 (2019).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 8; 5B M.J. Criminal Procedure, §§ 79, 91; 9A M.J. Gaming and Gaming Contracts, § 4; 12A M.J. Lotteries, § 4; 15 M.J. Rape and Other Sexual Offenses, § 3.

CASE NOTES

Punishment for violation of an ordinance may not exceed penalties prescribed by general law for like offenses. - Virginia Beach ordinance, which punished destruction of property by fine of up to $2,500 and up to 12 months in jail, manifested a conflict with state law because the penalty that attached exceeded the penalty under the state code destruction of property statute, § 18.2-137 , a violation of which was punishable only by a fine not exceeding $500. Strout v. City of Va. Beach, 43 Va. App. 99, 596 S.E.2d 529, 2004 Va. App. LEXIS 240 (2004).

Excessive sentence for Class 2 misdemeanor. - A trial court's sentence of a term of incarceration of 12 months, suspended upon certain terms and conditions, for a Class 2 misdemeanor clearly exceeded the time limitation set forth in subdivision (b). Olgers v. Commonwealth, No. 0856-99-2, 2000 Va. App. LEXIS 342 (Ct. of Appeals May 9, 2000).

Trial court erred in imposing sentence of 30 days in jail, where appellant was convicted for obstruction of justice in violation of § 18.2-460 A, a Class 4 misdemeanor. The punishment for a Class 4 misdemeanor is a fine of not more than $250. Nesbit v. Commonwealth, 15 Va. App. 391, 424 S.E.2d 239 (1992).

Revocation of suspended sentence. - Trial court erred in revoking and re-suspending the portion of defendant's sentence for his misdemeanor conviction for driving on a revoked license because the one-year period of suspension had long ended; therefore, defendant could not have the misdemeanor portion of his suspended sentence revoked following an order to show cause. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Applied in Freedlander v. Edens Broadcasting, Inc., 734 F. Supp. 221 (E.D. Va. 1990); United States v. Montigue, 357 F. Supp. 2d 939, 2005 U.S. Dist. LEXIS 2450 (E.D. Va. 2005); Smith v. Commonwealth, 59 Va. App. 710, 722 S.E.2d 310, 2012 Va. App. LEXIS 56 (2012).

§ 18.2-12. Same; where no punishment or maximum punishment prescribed.

A misdemeanor for which no punishment or no maximum punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor.

(Code 1950, § 18.1-9; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For discussion of jury sentencing, see 53 Va. L. Rev. 968 (1967). For comment, "Right to Court-Appointed Counsel for Misdemeanants in Virginia," see 4 U. Rich. L. Rev. 306 (1970). For article, "Trial by Jury and Speedy Justice," see 28 Wash. & Lee L. Rev. 309 (1971). For article discussing the requirement of counsel in misdemeanor cases and its implementation in Virginia, see 30 Wash. & Lee L. Rev. 431 (1973). For survey of Virginia criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, §§ 8, 15; 2A M.J. Assault and Battery, § 17; 5B M.J. Criminal Procedure, §§ 4, 79.

CASE NOTES

This section should be construed strictly. Waller v. Commonwealth, 192 Va. 83 , 63 S.E.2d 713 (1951).

It cannot be extended by implication or construction so as to impose a jail sentence for conviction of simple adultery. Waller v. Commonwealth, 192 Va. 83 , 63 S.E.2d 713 (1951).

Power to impose sentences in all misdemeanor and felony cases resides in the jury. Witcher v. Peyton, 382 F.2d 707 (4th Cir. 1967).

§ 18.2-12.1. Mandatory minimum punishment; definition.

"Mandatory minimum" wherever it appears in this Code means, for purposes of imposing punishment upon a person convicted of a crime, that the court shall impose the entire term of confinement, the full amount of the fine and the complete requirement of community service prescribed by law. The court shall not suspend in full or in part any punishment described as mandatory minimum punishment.

(2004, c. 461.)

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

CASE NOTES

Use of weapon in commission of crime. - Read in conjunction with this section, § 18.2-53.1 expressly requires the court to impose the entire term of confinement and provides that the court shall not suspend the sentence in full or in part. Thus, a trial court may not set the mandatory minimum sentences imposed for multiple convictions under § 18.2-53.1 to run concurrently with each other. Bullock v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334, 2006 Va. App. LEXIS 296 (2006), overruled in part by Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (Va. 2012).

Neither § 18.2-12.1 nor § 18.2-53.1 , the use or display of a firearm while commiting a felony, prohibit a trial court from running multiple sentences imposed for convictions of § 18.2-53.1 concurrently with each other. To the extent that the holding in Bullock v. Commonwealth, 631 S.E.2d 334 (2006), is inconsistent, it is overruled. Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (2012).

Concurrent sentences proper. - Subdivision C1 of § 18.2-374.1 does not prohibit mandatory minimum sentences imposed under that section from running concurrently as: (1) § 18.2-12.1 , defining mandatory minimum, does not require that mandatory minimum sentences run consecutively; (2) § 19.2-308 provides that when any person is convicted of two or more offenses, and sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by the court; and (3) if subdivision C1 of § 18.2-374.1 were interpreted to require the mandatory minimum sentences to run consecutively, it would render superfluous the words the Virginia general assembly used in at least 11 other criminal statutes explicitly requiring that mandatory minimum sentences run consecutively. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012).

Trial court did not abuse its discretion in ordering defendant's six § 18.2-374.1 sentences to run concurrently with each other as: (1) § 18.2-12.1 , defining mandatory minimum, did not require that mandatory minimum sentences run consecutively; (2) § 19.2-308 provided that when any person was convicted of two or more offenses, and sentenced to confinement, such sentences were not to run concurrently, unless expressly ordered by the court; and (3) if subdivision C1 of § 18.2-374.1 were interpreted to require the mandatory minimum sentences to run consecutively, it would render superfluous the words the Virginia general assembly used in at least 11 other criminal statutes explicitly requiring that mandatory minimum sentences run consecutively. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012).

Applied in Brown v. Commonwealth, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

§ 18.2-13. Same; by reference.

Where a statute in this Code prescribes punishment by stating that the offense is a misdemeanor, or that it is punishable as provided for in § 18.2-12 , the offense shall be deemed to be a Class 1 misdemeanor.

(1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 3, 91.

§ 18.2-14. How unclassified offenses punished.

Offenses defined in Title 18.2 and in other titles in the Code, for which punishment is prescribed without specification as to the class of the offense, shall be punished according to the punishment prescribed in the section or sections thus defining the offense.

(1975, cc. 14, 15.)

Law review. - For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

Applied in Hines v. Commonwealth, 59 Va. App. 567, 721 S.E.2d 792, 2012 Va. App. LEXIS 45 (2012).

§ 18.2-15. Place of punishment.

Imprisonment for conviction of a felony shall be by confinement in a state correctional facility, unless in Class 5 and Class 6 felonies the jury or court trying the case without a jury fixes the punishment at confinement in jail. Imprisonment for conviction of a misdemeanor shall be by confinement in jail.

(1975, cc. 14, 15.)

§ 18.2-16. How common-law offenses punished.

A common-law offense, for which punishment is prescribed by statute, shall be punished only in the mode so prescribed.

(Code 1950, § 18.1-8; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article, "The Myth of Common Law Crimes," see 105 Va. L. Rev. 965 (2019).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Common Law, § 2; 5B M.J. Criminal Procedure, § 79.

§ 18.2-17.

Repealed by Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 2, effective July 1, 2021.

Editor's note. - Former § 18.2-17 , which limited when capital punishment could be inflicted, derived from Code 1950, § 18.1-10; 1960, c. 358; 1975, cc. 14, 15.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Chapter 2. Principals and Accessories.

Sec.

§ 18.2-18. How principals in second degree and accessories before the fact punished.

In the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree; provided, however, that except in the case of a killing for hire under the provisions of subdivision A 2 of § 18.2-31 or a killing pursuant to the direction or order of one who is engaged in a continuing criminal enterprise under the provisions of subdivision A 10 of § 18.2-31 or a killing pursuant to the direction or order of one who is engaged in the commission of or attempted commission of an act of terrorism under the provisions of subdivision A 13 of § 18.2-31, an accessory before the fact or principal in the second degree to an aggravated murder shall be indicted, tried, convicted and punished as though the offense were murder in the first degree.

(Code 1950, § 18.1-11; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 478; 1997, c. 313; 2002, cc. 588, 623; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to the Attorney General's limited authority to institute and conduct criminal prosecutions in the circuit courts of the Commonwealth, see § 2.2-511 .

Editor's note. - At the direction of the Virginia Code Commission, substituted "subdivision A 2 of § 18.2-31 " for "subdivision 2 of § 18.2-31 "; "subdivision A 10 of § 18.2-31" for "subdivision 10 of § 18.2-31"; and "subdivision A 13 of § 18.2-31" for "subdivision 13 of § 18.2-31" to conform to changes by Acts 2019, cc. 717 and 835.

Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1997 amendment inserted "or a killing pursuant to the direction or order of one who is engaged in a continuing criminal enterprise under the provisions of subdivision 10 of § 18.2-31 " preceding "an accessory before the fact or principal."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted "or a killing pursuant to the direction or order of one who is engaged in the commission of or attempted commission of an act of terrorism under the provisions of subdivision 13 of § 18.2-31 ."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "an aggravated" for "a capital" near the end of the section.

Law review. - For survey of Virginia criminal law for the year 1975-1976 see 62 Va. L. Rev. 1400 (1976).

For note, "Toward a Level Playing Field: Challenges to Accomplice Testimony in the Wake of United States v. Singleton," see 57 Wash. & Lee L. Rev. 515 (2000).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, §§ 2, 5, 8, 9, 12; 2C M.J. Autrefois, Acquit and Convict, § 3; 5A M.J. Counterfeiting, § 8; 5B M.J. Criminal Procedure, § 11; 9B M.J. Homicide, § 26; 9B M.J. Indictments, Informations and Presentments, § 20.

CASE NOTES

I. GENERAL CONSIDERATION.

Criminal responsibility. - Unless it is otherwise stated, if a statute makes an act criminal, it imposes on all persons who are present purposely giving aid and comfort to the actual wrongdoer criminal responsibility equal to that of the wrongdoer. Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime. The question of whether the offense is the natural and probable result of the intended wrongful act is usually for the jury. Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

A principal in the second degree is liable for the same punishment as the person who commits the crime. Blankenship v. Commonwealth, No. 1112-99-3, 2000 Va. App. LEXIS 293 (Ct. of Appeals Apr. 25, 2000).

This section makes no exception for those who plan a crime, do not involve themselves with the details of its execution, and are not present for its consummation; this section and the cases direct that an accessory before the fact is accountable in all respects as the principal who carries out the intended crime, as well as any of its natural, probable, and incidental crimes. Charlton v. Commonwealth, 32 Va. App. 47, 526 S.E.2d 289 (2000).

The court treats concert of action as a species of accomplice liability, carrying with it the principle that the punishment imposed on each accomplice may be the same. Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime. Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

Concert of action instruction required. - In a second degree murder prosecution, the trial court was required to give a concert of action instruction where co-defendants were part of a group of people who kicked and stomped the victim while he was on the ground. Davis v. Commonwealth, 36 Va. App. 291, 549 S.E.2d 631, 2001 Va. App. LEXIS 445 (2001).

Accomplice may be punished despite silence of statute creating an offense. - Where the statute creating an offense fails to provide for the guilt of an accomplice, the omission is not generally considered to indicate an intent to exclude such parties from criminal responsibility. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

Lack of intent no defense. - Each co-actor is responsible for the acts of the others and may not interpose his personal lack of intent as a defense. Charlton v. Commonwealth, 32 Va. App. 47, 526 S.E.2d 289 (2000).

Commonwealth not required to elect between theories. - Because an accessory before the fact and a principal in the second degree may be tried in all respects as a principal in the first degree, the Commonwealth is not required to elect between those two theories, and depending on the evidence, a defendant can be convicted under either theory. Buchanan v. Commonwealth, No. 0960-88-3 (Ct. of Appeals May 8, 1990).

Applied in Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980); Riddick v. Commonwealth, 226 Va. 244 , 308 S.E.2d 117 (1983); Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985); Pancoast v. Commonwealth, 2 Va. App. 28, 340 S.E.2d 833 (1986); Rogers v. Commonwealth, 242 Va. 307 , 410 S.E.2d 621 (1991); Jones v. Commonwealth, 15 Va. App. 384, 424 S.E.2d 563 (1992); Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901 (1998); Hansford v. Angelone, 244 F. Supp. 2d 606, 2002 U.S. Dist. LEXIS 26217 (E.D. Va. 2002); Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541, 2009 Va. App. LEXIS 157 (2009).

II. WHO ARE PRINCIPALS AND ACCESSORIES.
A. PRINCIPAL IN FIRST DEGREE.

Principals in the first degree are those who are actors, actual perpetrators of the crime; those who are the immediate perpetrators of the act. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

A principal in the first degree is the actual perpetrator of the crime. Jones v. Commonwealth, 208 Va. 370 , 157 S.E.2d 907 (1967).

One who effects a criminal act through an innocent or unwitting agent is a principal in the first degree, even if the person accused was not present at the time and place of the offense. Bailey v. Commonwealth, 229 Va. 258 , 329 S.E.2d 37 (1985).

Defendant held principal in first degree despite absence of proof defendant was actual perpetrator. - Evidence was held sufficient to prove defendant, on trial for charges of attempted capital murder by arson, was a principal in the first degree, despite absence of proof that defendant was the perpetrator who lit the fire, rather than his accomplice. Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301 (1991).

Instigation of larceny. - Where accused was the instigator and moving spirit in bringing about the larceny, procured his associates to commit the crime, and with intent to steal the property, before the event instigated and directed the acts done by his associates in the commission of the crime, and also assisted them in taking and carrying away the goods, he is guilty of actual larceny and subject to punishment as a principal in the first degree. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

Driving the getaway car in destruction of property/mailbox case. - Defendant was properly convicted of misdemeanor destruction of property, under § 18.2-137 , as a principal in the first degree, for driving a getaway car in which those who actually damaged a victim's mailbox tried to escape, because: (1) § 18.2-18 , concerning felony principals and accessories before the fact, did not abrogate the common-law rule that, in misdemeanors, all participants were principals; and (2) defendant admitted participating in this criminal episode. Wade v. Commonwealth, 56 Va. App. 689, 696 S.E.2d 258, 2010 Va. App. LEXIS 321 (2010).

B. PRINCIPAL IN SECOND DEGREE.

To prove that one is a principal in the second degree, the Commonwealth must prove: (1) the accused's presence at the crime's commission; and (2) committing an overt act such as inciting, encouraging, advising, or assisting in the commission of the crime; or (3) sharing in the perpetrator's criminal intent. Buchanan v. Commonwealth, No. 0960-88-3 (Ct. of Appeals May 8, 1990).

To convict a principal in the second degree as one in the first degree, the Commonwealth must prove the defendant was present at the scene and shared the criminal intent of the parties who actually committed the crime or was guilty of some act in furtherance thereof. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

To show an accused guilty of a crime as a principal in the second degree, the Commonwealth must show that the accused was present, aiding and abetting, and intended his or her words, gestures, signals, or actions to in some way encourage, advise, urge or in some way help the person committing the crime to commit it. Porter v. Commonwealth, No. 0637-00-1, 2001 Va. App. LEXIS 176 (Ct. of Appeals Apr. 3, 2001); Painter v. Commonwealth, No. 1953-00-2, 2001 Va. App. LEXIS 190 (Ct. of Appeals Apr. 10, 2001).

Commonwealth did not need to prove that defendant actually committed the burglary and grand larceny with which he was charged as, pursuant to § 18.2-18 , a principal in the second degree was equally guilty as a principal in the first degree. The Commonwealth was only required to prove that defendant was present and that he, in some way, procured, encouraged, countenanced, or approved commission of the crime. Wilkins v. Commonwealth, No. 1297-07-1,, 2008 Va. App. LEXIS 483 (Ct. of Appeals Oct. 28, 2008).

A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance. Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954); Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964). See Grant v. Commonwealth, 216 Va. 166 , 217 S.E.2d 806 (1975); Powell v. Commonwealth, No. 0549-89-2 (Ct. of Appeals Aug. 28, 1990).

A principal in the second degree, or an aider or abettor as he is sometimes termed, is one who is present, actually or constructively, assisting the perpetrator in the commission of the crime. In order to make a person a principal in the second degree actual participation in the commission of the crime is not necessary. The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenance, or otherwise aiding while another did the act, he is an aider and abettor or principal in the second degree. Jones v. Commonwealth, 208 Va. 370 , 157 S.E.2d 907 (1967).

Principals in the second degree are those who did not with their own hands commit the act, but were present, aiding and abetting it. It is not necessary in order to make a person principal in the second degree that he be actually present when the crime was committed, or that he should have actually participated in the commission of the crime. The test as to whether or not he is a principal in the second degree is, was he encouraging, inciting, or in some manner offering aid or consent to the crime. All persons present lending countenance or otherwise aiding, while another does the act, are principals in the second degree. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

A principal in the second degree is one who is not only present at a crime's commission, but one who also commits some overt act, such as inciting, encouraging, advising, or assisting in the commission of the crime or shares the perpetrator's criminal intent. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

A principal in the second degree is a person who is present, aiding and abetting, by helping some way in the commission of the crime. Presence or consent alone is not sufficient to constitute aiding and abetting. It must be shown that the defendant intended his words, gestures, signals or actions to in some way encourage, advise, or urge, or in some way help the person committing the crime to commit it. A principal in the second degree is equally accountable and is subject to the same punishment as the actual perpetrator. Ramsey v. Commonwealth, 2 Va. App. 265, 343 S.E.2d 465 (1986).

A person who is present at the commission of a crime, inciting, encouraging, advising or assisting in the act done, is deemed to be an aider and abettor, and is liable as principal. Taylor v. Commonwealth, 260 Va. 683 , 537 S.E.2d 592, 2000 Va. LEXIS 126 (2000).

Or if not present, within easy call. - If P. and L., at the house of the accused, by the use of false pretenses, obtained from F. the sum of $570, the accused is not guilty of the offense, unless he was present, aiding and abetting therein, or suffered or permitted the said P. and L. to use said house, with knowledge that they intended to use the same for the employing of such pretenses. But if the accused was within easy call with intent to aid or assist them in their purpose, or in escaping, or in getting rid of or misleading the person from whom such money was obtained, that is a presence, aiding and abetting, and the accused is as guilty as if he were personally present. Dull v. Commonwealth, 66 Va. (25 Gratt.) 965 (1875).

But mere presence is insufficient. - It is well settled law that mere presence is not sufficient to render one guilty of aiding and abetting the commission of crime. There must be something done or said by him showing his consent to the felonious purpose and contributing to its execution. Reynolds v. Commonwealth, 74 Va. (33 Gratt.) 834 (1880); Kemp v. Commonwealth, 80 Va. 443 (1885). See Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875); Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901); Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

Mere presence of a party when a crime is committed is not sufficient to constitute one an aider and abettor in the commission of a crime. Jones v. Commonwealth, 208 Va. 370 , 157 S.E.2d 907 (1967).

Mere presence is not sufficient to establish that one is a principal in the second degree, an aider and abettor to the commission of a crime. The prosecution must prove that the accused did or said something showing his consent to the felonious purpose and his contribution to its execution. Hall v. Commonwealth, 225 Va. 533 , 303 S.E.2d 903 (1983); Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983).

Unless assembled to commit a wrongful act. - All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable, in the nature of things, a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921).

Mere presence during the commission of a crime and subsequent flight do not constitute sufficient evidence to convict a person as a principal in the second degree. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

Criminal intent must be present. - To constitute an aider or abettor it is essential that the aider and abettor share the criminal intent of the principal, and if a reasonable doubt exists as to the intention of a party, in interfering in a fight between two other persons, he cannot be found guilty as an aider and abettor. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

To prove defendant was an aider and abettor, the evidence must show that the defendant was not only present but that the defendant procured, encouraged, countenanced, or approved commission of the crime. In other words, defendant must share the criminal intent of the party who actually committed the crime or be guilty of some overt act in furtherance thereof. Hall v. Commonwealth, 225 Va. 533 , 303 S.E.2d 903 (1983); Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983).

Aiders or abettors must either share the perpetrator's criminal intent or commit an overt act in furtherance of the crime, thereby making the offense "more likely" to occur. Whether an accused aided and abetted in the commission of an offense is a question of fact to be determined from the circumstances of each case. Lyne v. Commonwealth, No. 2428-94-2 (Ct. of Appeals Mar. 26, 1996).

Section 18.2-18 cannot be interpreted to mean that any overt act that is advantageous to the principal's criminal plan is sufficient; to be guilty as a principal in the second degree the defendant must also share in the principal's criminal intent. McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 2008 Va. LEXIS 91 (2008).

And presence, plus encouragement, will suffice. - An aider and abettor is one who is present, actually or constructively, and participates in the crime of the principal; but any encouragement or act of assistance is a participation in the crime. Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

If a person is present at the commission of a crime inciting, encouraging, advising or assisting in the act done, he is deemed to be an aider and abettor, and is liable as principal. Snyder v. Commonwealth, 202 Va. 1009 , 121 S.E.2d 452 (1961); Tasker v. Commonwealth, 202 Va. 1019 , 121 S.E.2d 459 (1961).

Whether a person does in fact aid or abet another in the commission of a crime is a question that may be determined by circumstances as well as by direct evidence. - See Tuck v. Commonwealth, No. 3376-02-3, 2003 Va. App. LEXIS 623 (Ct. of Appeals Dec. 9, 2003).

Incapacity to commit the offense is no defense. - The mere fact of incapacity to commit an offense as a principal in the first degree does not prevent one who aids and abets the principal offender from being held criminally liable as a principal in the second degree. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

A principal in the second degree is held as culpable as one in the first degree. Briley v. Commonwealth, 221 Va. 563 , 273 S.E.2d 57 (1980).

It is well established that a "principal in the first degree is the actual perpetrator of the crime." A principal in the second degree is a person present at the scene of the offense, either actively or constructively, aiding or abetting its commission through "words, gestures, signals or actions to in some way encourage advise, . . . urge, or . . . help" the primary actor. A principal in the second degree "may be indicted, tried, convicted and punished in all respects as if a principal in the first degree." Lyne v. Commonwealth, No. 2428-94-2 (Ct. of Appeals Mar. 26, 1996).

In the case of a felony, every principal in the second degree may be indicted, tried, convicted, and punished as if a principal in the first degree. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

Evidence was sufficient to establish that defendant was principal in the second degree to malicious wounding where the defendant and others acted in concert in attacking the victim and one of the defendant's coperpetrators struck the victim in the head with a glass bottle, knocking him unconscious. Simmons v. Commonwealth, No. 1624-97-3 (Ct. of Appeals July 14, 1998).

Evidence was sufficient to establish that defendant was principal in the second degree in both the manufacture and distribution of cocaine where: (1) the defendant accompanied her coperpetrator on trips to purchase cocaine; (2) she provided him with the use of her apartment to cook cocaine, was present when he cooked powder cocaine into crack cocaine, and directly assisted him with cooking the cocaine; (3) she knowingly allowed him to use her apartment as a distribution center for cocaine; (4) she was present in her apartment when he transferred cocaine to others to pass along to customers and was also present when he sold cocaine directly to customers in her apartment; and (5) she was unemployed, and he paid the rent and damages fees for her apartment. Timbers v. Commonwealth, No. 2249-97-2 (Ct. of Appeals August 18, 1998).

Evidence was sufficient to establish that defendant was principal in the second degree where defendant admitted knowing the plan to steal items from victim's home, he was present and watched while the others took the items, thereby approving of the principals' actions and sharing in their criminal intent, and he was aware of the location of some of the stolen items after the theft. Cooke v. Commonwealth, No. 1603-99-1, 2000 Va. App. LEXIS 410 (Ct. of Appeals May 30, 2000).

Appellate court affirmed defendant's conviction for robbery as a principal in the second degree because the evidence was sufficient to prove defendant aided and abetted in the commission of a robbery, as defendant knew the perpetrators were going to commit a robbery, he waited for them in the get-away vehicle to facilitate their escape, during the escape he tried to hide the clothing they wore during the robbery by placing it in the glove compartment or at his feet, and a reasonable person could conclude that defendant shared the intent to commit a robbery. Bradner v. Commonwealth, No. 2640-00-3, 2001 Va. App. LEXIS 572 (Ct. of Appeals Oct. 23, 2001).

Defendant's presence at the scene, coupled with the fact that he remained at the scene, fled with the actual perpetrators and shared in the fruits of the crime, was sufficient to prove his guilt of the charged offenses as a principal in the second degree. Toney v. Commonwealth, No. 1024-01-2, 2002 Va. App. LEXIS 254 (Ct. of Appeals Apr. 30, 2002).

Actual presence at the scene of the commission of a crime was not required to convict an accused as a principal in the second degree, and defendant, in the instant case, was constructively present at the crime's commission and was aiding and abetting by helping in the commission of the crime, under § 18.2-18 . Paige v. Commonwealth, No. 1444-02-4, 2003 Va. App. LEXIS 492 (Ct. of Appeals Sept. 30, 2003).

There was ample evidence from which a jury could have reasonably found that defendant was a principal in the second degree in violation of § 18.2-35 because by the defendant's words, gestures, and actions, viewed in the light most favorable to the Commonwealth, defendant explicitly demonstrated that the defendant shared a friend's criminal intent to kill the victim; immediately prior to the killing, defendant specifically commanded the friend to shoot the victim and did nothing to dissuade the friend. McKinney v. Commonwealth, No. 1202-07-3,, 2008 Va. App. LEXIS 344 (Ct. of Appeals July 8, 2008).

There was sufficient evidence to support defendant's conviction as a principal in the second degree of abduction and felony murder, in violation of §§ 18.2-48 and 18.2-32 , where he and others lured the victim to a co-defendant's home with the purpose of robbing the victim of drugs and money, they restrained the victim while attempting to determine the whereabouts of the drugs, walked him out to the trunk of his car, drove him away, and fatally shot him; although there was blood in the house, the fact that the victim was "walked" outside to his car and that he "squirmed like a worm" when he was shot supported the finding that he was not killed in the house and accordingly, that defendant participated in abducting defendant while he was still alive. Brooks v. Commonwealth, No. 1629-03-2, 2004 Va. App. LEXIS 284 (Ct. of Appeals June 15, 2004).

Trial court did not err in finding that the evidence proved beyond a reasonable doubt that defendant acted as a principal in the second degree to use of a firearm in the commission of a robbery as the evidence showed that defendant aided in the commission of and shared the main actor's intent to rob a clothing retail store during normal business hours, where he was likely to encounter both store employees and customers. The evidence showed that defendant transported the main actor to and from the immediate area where he committed the robbery and abduction; that defendant remained in her SUV at a nearby apartment complex, where neither she nor the main actor lived, when the main actor departed the vehicle to commit the robbery; that she tried to assist him in eluding police, and that she tried to provide him with an alibi when questioned about the offenses, and that she gave false and contradictory statements to officers when questioned about her part in the robbery. Wade v. Commonwealth, No. 2115-11-2,, 2012 Va. App. LEXIS 161 (Ct. of Appeals May 15, 2012).

Sufficient evidence supported defendant's § 18.2-53.1 conviction as the victim observed that the accomplice had a semi-automatic gun, felt the cold, hard barrel of the gun that defendant placed against his neck, and saw the tip of that gun; further, defendant was guilty as a principal in the second degree of possessing the firearm used by his accomplice. Gibbs v. Commonwealth, No. 1726-11-1, 2012 Va. App. LEXIS 324 (Ct. of Appeals Oct. 16, 2012).

Defendant was properly convicted of carjacking as a principal in the second degree because the evidence was sufficient to allow a reasonable fact finder to conclude that defendant countenanced, approved, and assisted in the accomplice's actions and thereby aided and abetted the accomplice in the carjacking; the facts supported the reasonable conclusion that defendant was more than merely present, and the evidence showed that he knew of the accomplice's intent to conduct a drug deal and willingly accompanied him. Johnson v. Commonwealth, No. 1894-16-2, 2017 Va. App. LEXIS 287 (Nov. 14, 2017).

Evidence was insufficient. - Assuming the driver of the truck in which defendant had been riding stole a handgun, since there was neither proof that defendant failed to oppose the theft, nor proof of other circumstances upon which to find he acted as a principal in the second degree, his conviction of grand larceny on an aiding and abetting theory was not supported by sufficient evidence. Myers v. Commonwealth, 43 Va. App. 113, 596 S.E.2d 536, 2004 Va. App. LEXIS 238 (2004).

Defendant was not a principal in the second degree pursuant to § 18.2-18 because the defendant could not have procured, encouraged, countenanced, approved or knowingly committed an overt act in furtherance of a robbery without the knowledge that the crime was occurring. McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 2008 Va. LEXIS 91 (2008).

Invited error. - Trial court did not err in finding defendant guilty of petit larceny, a misdemeanor under § 18.2-96 , when she was indicted as a principal in the second degree to third offense petit larceny, a felony under §§ 18.2-104 and 18.2-18 , where defendant requested the trial court to treat her actions as misdemeanor petit larceny, and she was subject to the misdemeanor finding that her counsel requested, as she was precluded from raising the same on appeal under the invited error doctrine; additionally, misdemeanor petit larceny was a lesser-included offense of a violation of § 18.2-104 . Brumfield v. Commonwealth, No. 0794-04-3, 2004 Va. App. LEXIS 625 (Ct. of Appeals Dec. 21, 2004).

Evidence sufficient to support conviction. - Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were appropriate because the jury was entitled to disbelieve defendant's assertion that she did not know that her boyfriend had a weapon when they entered the victim's home. Further, there was sufficient evidence of concert of action because defendant and her boyfriend arrived at the home of defendant's father knowing that they were forbidden to be there; they gained entrance through the back door; they were intent upon forcing her father to surrender the welfare checks; and when defendant's father refused, they pursued him up the stairs where he was shot and brutally beaten. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

Defendant was properly convicted of robbery and use of a firearm in the commission of a felony because defendant acted, at the very least, as a principal in the second degree. When a police officer responded to a call of an armed robbery with one man wearing a ski mask, the officer saw four individuals who ran from the officer and were found hiding in a culvert, the victim's stolen cell phone was found in the immediate vicinity, defendant lied about not knowing the other individuals, and a mask was found in defendant's pocket. Jackson v. Commonwealth, No. 1457-16-2, 2017 Va. App. LEXIS 203 (Aug. 8, 2017).

C. ACCESSORY BEFORE THE FACT.

Elements of crime. - In order for a person to be an accessory before the fact, the Commonwealth is required to prove: (1) commission of the crime by the principal, and (2) prior to the crime's commission, the accessory was in someway concerned as a contriver, instigator or advisor. Buchanan v. Commonwealth, No. 0960-88-3 (Ct. of Appeals May 8, 1990).

An accessory before the fact is one who, being absent at the time the crime is committed, procures, counsels, or commands another to commit a crime. Absence is necessary to make one an accessory. See Rasnick v. Commonwealth, 4 Va. (2 Va. Cas.) 356 (1823).

To be guilty of accessory before the fact, the accused must either know or have reason to know of the principal's criminal intention and must intend to encourage, incite or aid the principal's commission of the crime. Charlton v. Commonwealth, 32 Va. App. 47, 526 S.E.2d 289 (2000).

In the trial of an accessory before the fact the Commonwealth must establish the following elements beyond a reasonable doubt: the commission of the crime by the principal, the accessory's absence at the commission of the offense and that before the commission of the crime, the accessory was in some way concerned therein as a contriver, instigator or advisor. McGhee v. Commonwealth, 221 Va. 422 , 270 S.E.2d 729 (1980).

Although conviction of a principal in the first degree is not a condition precedent to conviction of an accessory, before the accessory to a crime can be convicted as such, it must be shown that the crime has been committed by the principal. Dusenbery v. Commonwealth, 220 Va. 770 , 263 S.E.2d 392 (1980).

Procedure. - Trial court did not err in submitting a murder charge to the jury based on the theory that defendant was "an accessory before the fact or co-conspirator" in the commission of the charged murder; the Commonwealth is entitled to an accessory-before-the-fact instruction on a felony indictment even when the defendant is not charged in the indictment with being an accessory before the fact to the felony. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

D. CAPITAL MURDER.

Only immediate perpetrator may be convicted of capital murder. - Except in the case of murder for hire, only the immediate perpetrator of a homicide, the one who fired the fatal shot, and not an accessory before the fact or a principal in the second degree, may be convicted of capital murder under the provisions of § 18.2-31 , as qualified by this section. Coppola v. Commonwealth, 220 Va. 243 , 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1069, 62 L. Ed. 2d 788 (1980).

It is essential in a prosecution for capital murder, except in the case of murder for hire, that the heretofore unnecessary distinction be drawn between principals in the first and second degree, assuring that only the person who is the immediate perpetrator may be a principal in the first degree and thus liable to conviction for capital murder. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

When the offense constituting the charge of capital murder is the willful, deliberate and premeditated killing of a person in the commission of robbery while armed with a deadly weapon, only the actual perpetrator of the crime may be convicted of capital murder. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

This section does not permit a principal in the second degree to be convicted of capital murder. Cortner v. Commonwealth, 222 Va. 557 , 281 S.E.2d 908 (1981).

Except in the case of murder for hire, "only the actual perpetrator of the crime may be convicted of capital murder." Thus, neither an accessory before the fact nor a principal in the second degree may be so convicted. Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990).

And instruction to contrary is reversible error. - Harmful, reversible error occurred in a capital murder prosecution when the trial court instructed the jury in such a manner that the jury could have believed that it could convict the defendant of capital murder though it was unable to determine who fired the fatal shots, or if it determined that the defendant's brother fired the fatal shots; the error was compounded when the Commonwealth was permitted to argue to the jury that it could convict the defendant regardless of who pulled the trigger. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Construction with § 18.2-31 . - Defendant gave a direction or order sufficient to satisfy the requirements of § 18.2-18 such that even if he were a criminal actor ordinarily demonstrating culpability as a principal in the second degree, he was nonetheless guilty of capital murder under subdivision 13 of § 18.2-31 and § 18.2-18 ; the record showed defendant directed and ordered his companion in the entire criminal enterprise, defendant had the military background in shooting and snipering skills, and it was defendant who provided the weapons. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Failure to establish presence of another perpetrator. - In a capital case, defendant unsuccessfully argued that the evidence was insufficient to convict him as an immediate perpetrator or triggerman, which was required under § 18.2-18 for his conviction as a principal in the first degree, making him eligible for the death penalty. There was no conclusive evidence of the presence of another perpetrator, and the evidence was overwhelming that defendant was the sole perpetrator of the murders. Prieto v. Commonwealth, 278 Va. 366 , 682 S.E.2d 910, 2009 Va. LEXIS 94 (2009), cert. denied, 177 L. Ed. 2d 332, 2010 U.S. LEXIS 4926 (U.S. 2010); appeal after remand, decision reached on appeal by, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012).

III. PROSECUTION.
A. INDICTMENT.

Indictment against accessory need not aver conviction of principal. - It is not necessary that the indictment against the accessory should aver the conviction of the principal, for they may be jointly indicted. Commonwealth v. Williamson, 4 Va. (2 Va. Cas.) 211 (1820).

Refusal to furnish bill of particulars. - The defendant was deprived of no substantial right by the trial court's refusal to require the Commonwealth to furnish a bill of particulars stating whether defendant was being tried as a principal in the first degree or second degree, particularly where the motion for bill of particulars was not made until the time of trial. Tasker v. Commonwealth, 202 Va. 1019 , 121 S.E.2d 459 (1961).

Amendment to indictment by adding "or an accessory before the fact." - Where the indictment returned by the grand jury charged that appellant did, as a principal in the second degree, deliberately, and with premeditation kill victim during a killing for hire, in violation of this section and § 18.2-31 and where prior to the trial, the Commonwealth requested and received the trial court's permission to amend the indictment by adding the words "or an accessory before the fact" between "second degree," and "unlawfully," trial court did not err in failing to grant defendant's motion for a bill of particulars, and by permitting the Commonwealth to amend the indictment over his objection; the indictment sufficiently informed defendant of the charge upon which he was to be tried and moreover, under the indictment he could be convicted either as a principal in the first or second degree or as an accessory before the fact. Harris v. Commonwealth, 8 Va. App. 424, 382 S.E.2d 292 (1989).

The Commonwealth was not required to elect whether it would prosecute the defendant on a charge of aiding and abetting or being a principal in the first degree since the indictment contained but one single count and charged only one homicide. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964).

B. EVIDENCE.

Aiding and abetting may be shown by circumstantial evidence. - Whether a person does in fact aid or abet another in the commission of a crime is a question which may be determined by circumstances as well as by direct evidence. Brown v. Commonwealth, 130 Va. 733 , 107 S.E. 809 (1921); Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954).

Circumstantial evidence was sufficient to support conclusion that defendant was an aider and abetter in a purse snatching and was the driver of the "getaway" car. Powell v. Commonwealth, No. 0549-89-2 (Ct. of Appeals Aug. 28, 1990).

Where defendant robbed the victim after the victim was distracted by another person with a gun, the evidence was sufficient to prove that defendant acted in concert with the other person in using a firearm to commit a felony. Nelson v. Commonwealth, No. 1868-02-2, 2003 Va. App. LEXIS 363 (Ct. of Appeals June 24, 2003).

Evidence was sufficient to support defendant's conviction for attempting to obtain money by false pretenses and uttering a forged check drawn on the account of her employer in violation of §§ 18.2-178 and 18.2-172 because the only reasonable hypothesis flowing from the direct and circumstantial evidence was that defendant shared in an accomplice's intent to utter a forged check and to attempt to obtain money by false pretenses; defendant, who worked across the hall from the victim and had access to her office, admitted to the victim that she had possessed the check at issue, defendant accompanied the accomplice to a check cashing business and admitted knowing that the accomplice was there to cash a check, and defendant, the only one of the three people at the business that day who had a direct tie to the employer, remained in the car during the transaction, fabricated a reason to enter the business after police arrived and entered, and attempted to flee the scene alone after learning that the accomplice had been handcuffed. Bell v. Commonwealth, No. 0482-10-1,, 2010 Va. App. LEXIS 461 (Ct. of Appeals Nov. 30, 2010).

Conviction as accessory before the fact by totality of evidence. - While no single piece of evidence, standing alone, tied the defendant directly to the killing, the totality of the evidence supported the jury's finding that the defendant was an accessory before the fact of first degree murder. Cirios v. Commonwealth, 7 Va. App. 292, 373 S.E.2d 164 (1988).

Jury does not have to accept defendant's testimony. - Although defendant's testimony could have absolved himself of any complicity in the robbery/murder, circumstances leading up to and after the crimes were such that the jury could reasonably have concluded that defendant participated in the robbery and aided and abetted in the murder; jury did not have to accept defendant's statement. Pugliese v. Commonwealth, 16 Va. App. 82, 428 S.E.2d 16 (1993).

Abduction by prisoners. - Evidence was sufficient to establish that the defendant was a principal in the second degree to abduction by prisoners where, inter alia, he came twice to a breezeway with other inmates more directly involved in the incident, remained present while the inmates subdued two correctional officers, stood within three feet of one officer as he lay restrained on the ground, and assisted in dealing with another officer. Wicker v. Commonwealth, No. 2607-97-2 (Ct. of Appeals Dec. 22, 1998).

Driving the getaway car. - Evidence was sufficient to sustain a burglary conviction where defendant drove the other participants to the crime scene, waited for their return from a safe distance across the street in the dark, and then provided the transportation for their flight from the scene of the crime by driving the getaway car. Defendant admitted on cross-examination to knowing before the burglary that "something bad was going to happen at the burglary scene." Thomas v. Commonwealth, No. 2765-04-2,, 2006 Va. App. LEXIS 73 (Ct. of Appeals Feb. 28, 2006).

Videotape properly admitted. - For a case upholding admission of partially unintelligible videotape of drug transaction in conviction of defendant as principal in second degree, see Brooks v. Commonwealth, 15 Va. App. 407, 424 S.E.2d 566 (1992).

Evidence held sufficient. - In a prosecution for malicious wounding, the evidence was sufficient to show that defendant's actions caused the victim's wounds as the evidence showed that defendant, at a minimum, acted as a principal, within the meaning of § 18.2-18 , in the malicious wounding of the victim, in that the evidence showed that defendant was present during the malicious wounding of the victim and performed an overt act of assistance by striking the initial blow against the victim. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Evidence proving that defendant, acting with the requisite intent, encouraged and incited his girlfriend to commit the murder, helped her plan it, and thereby induced her to act was sufficient to support the jury's verdict that defendant was an accessory before the fact to the murder and firearm offenses. Chewning v. Commonwealth, No. 2204-12-4, 2014 Va. App. LEXIS 82 (Mar. 11, 2014).

There was sufficient evidence to support the jury's finding that defendant encouraged and assisted the principal in the commission of the crime of larceny and was, therefore, guilty as a principal. Defendant and the principal together entered a grocery store, selected some deli sandwiches and beer, and together walked out of the store without paying for them. Wright v. Commonwealth,, 2014 Va. App. LEXIS 376 (Nov. 18, 2014), aff'd in part and rev'd in part, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016).

Trial court did not err in denying defendant's motion to strike evidence of manufacturing methamphetamine on the ground of insufficient evidence she was responsible for the manufacture as an accessory before the fact because having found she lied about her knowledge of the "one-pot" reaction vessel for manufacturing methamphetamine, it could infer her involvement; a rational trier of fact could have found defendant aided and abetted an accomplice's manufacture by buying him pseudoephedrine. Denson v. Commonwealth, No. 1971-16-3, 2018 Va. App. LEXIS 80 (Mar. 27, 2018).

Evidence was sufficient for a rational fact finder to conclude that defendant acted as a principal in the second degree with regard to attempted robbery, malicious wounding, and use of a firearm in the commission of a felony, as it showed that he was present during the commission of the crimes, shared an accomplice's criminal intent, fled from the scene to his home, where police found clothing matching that of the suspects, a gun used in the shooting, and defendants DNA on the gun. Humphrey v. Commonwealth, No. 1678-19-1, 2020 Va. App. LEXIS 258 (Oct. 27, 2020).

C. OTHER MATTERS.

Verdict should determine degree of accessory. - A verdict which finds a person indicted as being an accessory to a murder guilty thereof, but does not determine whether he is guilty as accessory to the murder in the first or second degree, is erroneous, and ought to be set aside, and a venire facias de novo awarded. Commonwealth v. Williamson, 4 Va. (2 Va. Cas.) 211 (1820).

To convict accessory, commission of offense by principal must be shown. - In order to convict an accessory, although it is not necessary now to show that the principal felon has been convicted, it is necessary to show that the substantive offense, to which he is charged as having been accessory, has been committed by the principal felon. Hatchett v. Commonwealth, 75 Va. 925 (1882); Snyder v. Commonwealth, 202 Va. 1009 , 121 S.E.2d 452 (1961).

Before an accessory to a crime can be convicted as such, it must be shown that the crime has been committed by the principal, but it is not necessary that the principal should be convicted of the basic offense. Taylor v. Commonwealth, 260 Va. 683 , 537 S.E.2d 592, 2000 Va. LEXIS 126 (2000).

Although the commonwealth must prove a principal in the first degree committed the underlying offense, conviction of the principal in the first degree is not a condition precedent to convicting the accessory. Blankenship v. Commonwealth, No. 1112-99-3, 2000 Va. App. LEXIS 293 (Ct. of Appeals Apr. 25, 2000).

New trial required for accessory where principal acquitted. - M. is prosecuted for subornation of perjury, found guilty, and judgment rendered against him. At the same term of the court, but after the conviction of M., G. is tried for the perjury, and is acquitted. M. then moves the court for a new trial. G. having been acquitted of the perjury, M. should have a new trial, for if G. was not guilty of the perjury, M. could not be guilty of subornation. Maybush v. Commonwealth, 70 Va. (29 Gratt.) 857 (1878).

New trial for accessory not required where principal acquitted. - Where the evidence was sufficient to support a finding that the defendant's brother committed the charged offenses as a principal in the first degree and that the defendant actively aided and abetted his brother's commission of the offenses, the fact that the jury acquitted the defendant's brother did not render the defendant's conviction improper. Blankenship v. Commonwealth, No. 1112-99-3, 2000 Va. App. LEXIS 293 (Ct. of Appeals Apr. 25, 2000).

Aiding and abetting robbery incurs same punishment as being actual robber. - Upon a plea of guilty to aiding and abetting in the robbery, the court is authorized to impose the same punishment upon the defendant as if he were the actual robber. Hern v. Cox, 212 Va. 644 , 186 S.E.2d 85 (1972).

CIRCUIT COURT OPINIONS

Lookout during petit larceny guilty of petit larceny. - Defendant, who served as a lookout while another person broke into cars and stole electronic components, was guilty of petit larceny. Commonwealth v. Howlett, 61 Va. Cir. 509, 2003 Va. Cir. LEXIS 136 (Norfolk 2003).

§ 18.2-19. How accessories after the fact punished; certain exceptions.

Every accessory after the fact is guilty of (i) a Class 6 felony in the case of a homicide offense that is punishable as a Class 1 or Class 2 felony or (ii) a Class 1 misdemeanor in the case of any other felony. However, no person in the relation of spouse, parent or grandparent, child or grandchild, or sibling, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, aids or assists a principal felon or accessory before the fact to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact.

(Code 1950, §§ 18.1-11, 18.1-12; 1960, c. 358; 1975, cc. 14, 15; 2014, c. 668; 2020, c. 900; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2020, c. 900, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2014 amendments. - The 2014 amendment by c. 668 deleted "In the case of every felony," and substituted "is guilty" for "shall be guilty," "in the case of another felony. However" for "provided, however," and inserted "(i) a Class 6 felony in the case of a homicide offense that is punishable by death or as a Class 2 felony or (ii)."

The 2020 amendments. - The 2020 amendment by c. 900, in the second sentence, substituted "spouse" for "husband or wife," "or sibling" for "brother or sister" and "aids or assists" for "shall aid or assist."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "as a Class 1 or Class 2" for "by death or as a Class 2" in clause (i).

Law review. - For note, "The Attorney-Client Privilege," see 19 U. Rich. L. Rev. 559 (1985).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, § 2; 9B M.J. Husband and Wife, § 87.

CASE NOTES

Common-law definition. - This charge constitutes what the law denominates an accessory after the fact. The common law definitely and distinctly defines who is such an offender. He is a person who, knowing a felony to have been committed by another, receives, relieves, comforts or assists the felon. Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875).

To constitute one an accessory after the fact, three things are requisite: (1) the felony must be completed; (2) he must know that the felon is guilty; and (3) he must receive, relieve, comfort or assist him. It is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he has committed a felony. Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875).

Accused not accessory after the fact to murder before victim's death. - Accused cannot, as a matter of law, be convicted as an accessory after the fact to a murder because of aid given after the murderer's acts but before the victim's death; however, under such circumstances, the accused may be found to be an accessory after the fact to malicious wounding which, in the Commonwealth, statutorily carries a lesser penalty. Suter v. Commonwealth, 67 Va. App. 311, 796 S.E.2d 416, 2017 Va. App. LEXIS 42 (2017).

Kind of help unimportant. - The true test whether one is accessory after the fact, is to consider whether what he did was done by way of personal help to his principal, with the view of enabling his principal to elude punishment, the kind of help rendered appearing to be unimportant. Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875). See Buck v. Commonwealth, 116 Va. 1031 , 83 S.E. 390 (1914).

Detective who allows prisoner to escape not an accessory. - A detective who allows a prisoner to go away without being arrested, and who knows that such criminal has committed a felony, is not an accessory after the fact. Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875).

Whether accessory after the fact had knowledge of commission of felony is a jury question. Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875).

Particular evidence necessary to show notice of felony to accessory. - And although it seemed at one time to be doubted whether an implied notice of the felony would not in some cases suffice, as where a man received a felon in the same county in which he has been attainted, which was supposed to have been a matter of notoriety, it seems to be the better opinion that some more particular evidence is requisite to raise the presumption of knowledge. Wren v. Commonwealth, 67 Va. (26 Gratt.) 952 (1875).

Evidence sufficient. - Evidence, including 911 tape recording giving a narrative report of a larceny in progress, and that defendant was seen with another individual pushing a large bin containing stole machinery to sell at for scrap, was sufficient to convict defendant of grand larceny in violation of § 18.2-19 . However, conviction was reversed because 911 recording was improperly admitted. Wilder v. Commonwealth, 55 Va. App. 579, 687 S.E.2d 542, 2010 Va. App. LEXIS 24 (2010).

Evidence insufficient. - Trial court erred in holding that the evidence was sufficient to find defendant guilty of accessory after the fact to a homicide as defendant was not aware that the shooter had committed a homicide offense that was punishable by death or a Class 2 felony because, although defendant observed the altercation between the shooter and the victim, saw the shooter produce the gun, saw the shooter fire the gun at the victim, immediately thereafter drove the shooter away from the scene, and knew that the shooter had committed a crime at the time she provided assistance to him by driving him away from the scene, a homicide had not yet occurred as the victim did not die until two days later. Suter v. Commonwealth, 67 Va. App. 311, 796 S.E.2d 416, 2017 Va. App. LEXIS 42 (2017).

§ 18.2-20.

Reserved.

§ 18.2-21. When and where accessories tried; how indicted.

An accessory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to justice or not, be indicted, tried, convicted and punished in the county or corporation in which he became accessory, or in which the principal felon might be indicted. Any such accessory before the fact may be indicted either with such principal or separately.

(Code 1950, § 18.1-13; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, §§ 2, 8, 9, 10.

CASE NOTES

It must be shown that a crime has been committed by the principal before the accessory to the crime can be convicted as such. However, it is not necessary that the principal should be convicted of the basic offense. Snyder v. Commonwealth, 202 Va. 1009 , 121 S.E.2d 452 (1961); Sult v. Commonwealth, 221 Va. 915 , 275 S.E.2d 608 (1981).

Although conviction of a principal in the first degree is not a condition precedent to conviction of an accessory, before the accessory to a crime can be convicted as such, it must be shown that the crime has been committed by the principal. Dusenbery v. Commonwealth, 220 Va. 770 , 263 S.E.2d 392 (1980).

Chapter 3. Inchoate Offenses.

Conspiracies.

Attempts.

Article 1. Conspiracies.

§ 18.2-22. Conspiracy to commit felony.

  1. If any person shall conspire, confederate or combine with another, either within or outside the Commonwealth, to commit a felony within the Commonwealth, or if he shall so conspire, confederate or combine with another within the Commonwealth to commit a felony either within or outside the Commonwealth, he shall be guilty of a felony that shall be punishable as follows:
    1. Every person who so conspires to commit an offense that is punishable as a Class 1 felony is guilty of a Class 3 felony;
    2. Every person who so conspires to commit an offense that is any other felony is guilty of a Class 5 felony; and
    3. Every person who so conspires to commit an offense the maximum punishment for which is confinement in a state correctional facility for a period of less than five years shall be confined in a state correctional facility for a period of one year, or, in the discretion of the jury or the court trying the case without a jury, may be confined in jail not exceeding 12 months and fined not exceeding $500, either or both.
  2. However, in no event shall the punishment for a conspiracy to commit an offense exceed the maximum punishment for the commission of the offense itself.
  3. Jurisdiction for the trial of any person accused of a conspiracy under this section shall be in the county or city wherein any part of such conspiracy is planned or in the county or city wherein any act is done toward the consummation of such plan or conspiracy.
  4. The penalty provisions of this section shall not apply to any person who conspires to commit any offense defined in the Drug Control Act (§ 54.1-3400 et seq.) or of Article 1 (§ 18.2-247 et seq.) of Chapter 7. The penalty for any such violation shall be as provided in § 18.2-256 . (Code 1950, § 18.1-15.3; 1972, c. 484; 1973, c. 399; 1975, cc. 14, 15; 1983, c. 19; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to the Attorney General's limited authority to institute or conduct criminal prosecutions for violations of this chapter, see § 2.2-511 .

Editor's note. - At the direction of the Virginia Code Commission, substituted "the Drug Control Act ( § 54.1-3400 et seq.) or of Article 1 ( § 18.2-247 et seq.) of Chapter 7" for "Chapter 34 of Title 54.1 or of Article 1 ( § 18.2-247 et seq.), Chapter 7 of this title" in subsection (d).

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and in the introductory language of subsection (a), substituted "outside the Commonwealth" for "without this Commonwealth" twice, and "the Commonwealth" for "this Commonwealth" twice, substituted "as a Class 1 felony is" for "by death shall be" in subdivision (a)(1), substituted "any other felony is" for "a noncapital felony shall be" in subdivision (a)(2); and made stylistic changes.

Law review. - For article on the law of inchoate crimes, see 59 Va. L. Rev. 1235 (1973).

Research References. - Paul Marcus. Prosecution and Defense of Criminal Conspiracy Cases (Matthew Bender).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, §§ 2-4, 7-10; 7B M.J. Evidence, § 284.

CASE NOTES

This section must be strictly construed against the Commonwealth. Cartwright v. Commonwealth, 223 Va. 368 , 288 S.E.2d 491 (1982).

Definition. - Conspiracy is an agreement between two or more persons by some concerted action to commit an offense. Falden v. Commonwealth, 167 Va. 542 , 189 S.E. 326 (1937); Cartwright v. Commonwealth, 223 Va. 368 , 288 S.E.2d 491 (1982).

In Virginia, the crime of conspiracy is complete when the parties agree to commit an offense. Gray v. Commonwealth, 260 Va. 675 , 537 S.E.2d 862, 2000 Va. LEXIS 141 (2000).

A conspiracy is committed when the agreement to commit the offense is complete and no overt act in furtherance of the underlying crime is necessary. Stevens v. Commonwealth, 14 Va. App. 238, 415 S.E.2d 881 (1992).

Commonwealth must prove an agreement was made. - In order to prove a conspiracy to distribute heroin, the Commonwealth is required to prove an agreement between defendant and another person to do so; if the Commonwealth fails to produce such evidence, defendant's false testimony alone cannot support his conviction. Cosby v. Commonwealth, No. 3132-03-2,, 2005 Va. App. LEXIS 161 (Ct. of Appeals Apr. 26, 2005).

Shared intent may not be inferred from mere proximity. - In a prosecution for conspiracy to distribute heroin, the fact finder may not infer the shared intent necessary to an agreement from mere proximity and eyeshot. Cosby v. Commonwealth, No. 3132-03-2,, 2005 Va. App. LEXIS 161 (Ct. of Appeals Apr. 26, 2005).

Intent to cooperate in a joint venture. - In a prosecution for conspiracy to distribute heroin, the fact finder may not infer an intent to cooperate in a joint venture from the mere possession of partial proceeds from a sale. Cosby v. Commonwealth, No. 3132-03-2,, 2005 Va. App. LEXIS 161 (Ct. of Appeals Apr. 26, 2005).

Two reasons have been given for making conspiracy illegal: one is to punish the special dangers inherent in group criminal activity, and the second is to permit preventive steps against those who show a disposition to commit crime. Cartwright v. Commonwealth, 223 Va. 368 , 288 S.E.2d 491 (1982).

A single agreement can form the basis for multiple violations of this section. Cartwright v. Commonwealth, 223 Va. 368 , 288 S.E.2d 491 (1982).

Single agreement encompassing multiple crimes. - When a single agreement encompasses multiple crimes that are different and have different punishments, a single agreement can be punished as multiple conspiracies, one for each offense contemplated. Smallwood v. Commonwealth, 72 Va. App. 119, 841 S.E.2d 881, 2020 Va. App. LEXIS 144 (2020).

Single, continuous conspiracy. - Sufficient evidence proved that defendant's actions in Spotsylvania and Caroline Counties were acts in furtherance of a single, continuous conspiracy and that venue was proper in Caroline County since: (1) the entire agreement between codefendant and defendant lasted only a short period; (2) codefendant and defendant committed acts in furtherance of the conspiracy in Caroline County by continuing to evade the police in Caroline County; and (3) the escape and chase occurred in a limited area, overlapping two contiguous counties, set on foot by a single impulse and operated by an unintermittent force through several jurisdictions. Chambliss v. Commonwealth, 62 Va. App. 459, 749 S.E.2d 212, 2013 Va. App. LEXIS 293 (Oct. 22, 2013).

Single plan. - Defendant and his co-conspirator targeted many people and the fact that the plan required multiple victims to work also suggested a single plan; as the circuit court found that there was only a single agreement, it should have only convicted defendant of one count of conspiracy to obtain money by false pretenses and sentenced him accordingly. Smallwood v. Commonwealth, 72 Va. App. 119, 841 S.E.2d 881, 2020 Va. App. LEXIS 144 (2020).

Prosecution for conspiracy to commit robbery barred where previous acquittal of underlying robbery. - Defendant's prosecution for conspiracy to commit robbery was barred under principles of double jeopardy where defendant had previously been acquitted of the underlying robbery. Ginanni v. Commonwealth, 13 Va. App. 1, 408 S.E.2d 767 (1991).

Conspiring with police officer and officer's informant. - An accused may not be convicted under this section for conspiring to distribute cocaine with a police officer and the officer's confidential informant. Fortune v. Commonwealth, 12 Va. App. 643, 406 S.E.2d 47 (1991).

Case fell within "third party" exception to Wharton's Rule. - Case involving prosecution for conspiracy to distribute heroin fell within the recognized "third party" exception to Wharton's Rule, where the number of conspirators exceeded the essential participants in the contemplated crime. Brown v. Commonwealth, 10 Va. App. 73, 390 S.E.2d 386 (1990).

For case discussing the application of "Wharton's Rule" in forgery and conspiracy to commit a felony case, see Ramsey v. Commonwealth, 2 Va. App. 265, 343 S.E.2d 465 (1986).

Applicability of Wharton's Rule. - Wharton's Rule did not operate to bar defendant's conviction and punishment under § 18.2-22 for conspiracy to commit murder; defendant's reliance on the fact that she was convicted of murder under a theory of accomplice liability was misplaced, as the focus was on the underlying criminal act of the particular substantive offense rather than on the accomplice aspect of the offense, and application of Wharton's Rule would be in direct contravention of legislative intent to the contrary. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

Indictment sufficient even though it did not identify the object felony as murder. - Because count two of her indictment fully informed defendant that she was charged with conspiring to commit a felony and because conspiracy to commit a felony was the only crime set forth in § 18.2-22 , count two was sufficient to advise defendant of the cause and nature of the accusation lodged against her, as required by the United States and Virginia Constitutions, even though it did not identify the object felony as murder. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

Plea agreement. - Although defendant was originally indicted for robbery in violation of § 18.2-58 , and defendant pled guilty to an amended indictment for conspiracy to commit robbery, § 18.2-22 , the Commonwealth was free to seek a new indictment for robbery when defendant failed to comply with a condition of the plea agreement that defendant would cooperate fully in the prosecution of a codefendant. Williams v. Commonwealth, No. 3096-08-1,, 2010 Va. App. LEXIS 382 (Ct. of Appeals Sept. 28, 2010).

Conspiracy alone and not murder itself enough to establish jurisdiction in Virginia. - Even if the defendant could not have been charged by Virginia with a murder that took place in the Philippines, both the defendant and his assassin, because they conspired to kill the intended victim in Virginia, would have committed the Virginia crime of conspiracy to commit capital murder. United States v. Morin, 80 F.3d 124 (4th Cir. 1996).

Venue may be proper in more than one place. - Because conspiracy is a continuing offense, venue may be proper in more than one place. Brown v. Commonwealth, 10 Va. App. 73, 390 S.E.2d 386 (1990).

Where "strong presumption," venue proper for conspiracy. - Where the evidence was sufficient to give rise to a "strong presumption" that the robbery and abduction were committed in Arlington County, it followed, therefore, that, pursuant to this section, Arlington County was a proper venue for the trial of the conspiracy indictment. Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990).

Venue held proper in county where marijuana stored for defendant. - Defendant's directing of alleged co-conspirator to retrieve the marijuana at another alleged co-conspirator's house in Henrico County, which was then stored with the other marijuana held for defendant, was an act in furtherance of the conspiracy, and, accordingly, venue was proper in the Circuit Court for Henrico County. Barber v. Commonwealth, 5 Va. App. 172, 360 S.E.2d 888 (1987).

Evidentiary factors. - Proof of an explicit agreement is not required and oftentimes the prosecution must rely only on circumstantial evidence to establish the conspiracy. Stevens v. Commonwealth, 14 Va. App. 238, 415 S.E.2d 881 (1992).

Circumstantial proof. - The crime of conspiracy may be proved by circumstantial evidence; indeed, because of the very nature of the offense, it often may be established only by indirect and circumstantial evidence. Gray v. Commonwealth, 260 Va. 675 , 537 S.E.2d 862, 2000 Va. LEXIS 141 (2000).

Declaration of co-conspirator admissible. - When the evidence establishes a prima facie case of conspiracy, that is, that two or more persons have entered into an agreement to commit a crime, any declaration of a conspirator during such conspiracy, and in furtherance thereof, is admissible, in a prosecution for the target crime, as substantive evidence against any co-conspirator on trial. Such evidence is admitted on the theory that the declarant is the agent of the other conspirator. Berger v. Commonwealth, 217 Va. 332 , 228 S.E.2d 559 (1976).

But not certain declarations after end of conspiracy. - Incriminating, inculpatory, extrajudicial declarations of a co-conspirator made in the absence of or without the knowledge of the accused, after the conspiracy has come to an end through withdrawal or arrest of the participants, or termination of the plan in success or failure, are inadmissible in evidence in a criminal trial to prove the guilt of one other than the declarant. Berger v. Commonwealth, 217 Va. 332 , 228 S.E.2d 559 (1976).

Identification evidence. - Evidence was sufficient to establish defendant's criminal agency because the victim positively recognized defendant as the second robber in a photo on the day of the incident; the victim had a good opportunity to view the second robber at the time of the incident because after the men had taken all of his belongings, he came "chest to chest" with the man, and from that close proximity, the victim was looking at him in his face, and corroborating evidence supported the identification. Jones v. Commonwealth, No. 0426-19-1, 2020 Va. App. LEXIS 96 (Apr. 7, 2020).

Evidence held sufficient. - Evidence of conspiracy to commit murder held sufficient where the defendant agreed with estranged wife of the intended victim to have her husband killed so that she could receive a financial windfall and, as part of the agreement, the defendant made a firearm silencer that he contemplated the wife would use to accomplish the homicide. Gray v. Commonwealth, 260 Va. 675 , 537 S.E.2d 862, 2000 Va. LEXIS 141 (2000).

Evidence was sufficient to sustain defendant's conspiracy conviction where the evidence proved that defendant and a co-conspirator acted in tandem to distribute drugs; each played a role in the distribution process - defendant received the money and the co-conspirator retrieved the drugs from the area near the tree. After the transactions, the two remained together near a parked vehicle. Banks v. Commonwealth, No. 0960-05-1,, 2006 Va. App. LEXIS 60 (Ct. of Appeals Feb. 14, 2006).

Defendant's use of the victim's cell phone shortly after it was stolen and the undisputed DNA evidence establishing that DNA recovered from the victim matched defendant's DNA profile provided sufficient evidence to prove that defendant was the criminal agent who committed the crimes of forcible sodomy, abduction, robbery, and conspiracy to commit robbery. Hayden v. Commonwealth, No. 1042-05-2,, 2006 Va. App. LEXIS 275 (Ct. of Appeals June 27, 2006).

Defendant's conviction of conspiracy to commit a felony was affirmed; defendant's brandishing of a weapon only moments after a statement by defendant's brother ("We're going to shoot their ass") would allow a rational fact finder to reasonably conclude that defendant agreed with the statement, planned to shoot the victim, but at the last minute changed defendant's mind. Berry v. Commonwealth, No. 2908-05-2,, 2007 Va. App. LEXIS 77 (Ct. of Appeals Mar. 6, 2007).

Homeowner's presence in the residence, thereby disrupting defendant's plan to commit burglary and grand larceny, did not relieve defendant of criminal liability for conspiracy to commit burglary and grand larceny there, as the conspiracy was complete when defendant formed the agreement with a companion to unlawfully enter and take property from the targeted residences. Seis v. Commonwealth, No. 1619-06-3,, 2007 Va. App. LEXIS 432 (Ct. of Appeals Nov. 27, 2007).

There was ample support in the record for the trial court's determination that defendant conspired to rob the sporting goods store, notwithstanding defendant's failure to carry out a robbery. Defendant and the co-conspirator agreed to rob the store and had discussed how to accomplish the robbery on several occasions; the co-conspirator's testimony was sufficient proof of an explicit agreement to carry out a taking of the store's property. Anderson v. Commonwealth, 52 Va. App. 501, 664 S.E.2d 514, 2008 Va. App. LEXIS 377 (2008), aff'd, 278 Va. 419 , 683 S.E.2d 536, 2009 Va. LEXIS 86 (Va. 2009).

Sufficient evidence supported defendant's conspiracy conviction under § 18.2-22 as defendant conspired with two accomplices to commit a felony as they discussed an affront by a victim the day of a burglary, defendant told an officer that defendant went to the apartment at an accomplice's direction, and their actions were indicative of a pre-designed plan as an accomplice told one of the victim's roommates that if anything happened, it had nothing to do with the roommate. Jones v. Commonwealth, No. 1201-08-1,, 2009 Va. App. LEXIS 44 (Ct. of Appeals Feb. 3, 2009), aff'd, 279 Va. 295 , 687 S.E.2d 738 (2010).

Evidence, including that there was an agreement to go to the victim's apartment for purposes stemming from an argument with the victim, was sufficient to establish a conspiracy under § 18.2-22 . Jones v. Commonwealth, 279 Va. 295 , 687 S.E.2d 738, 2010 Va. LEXIS 4 (2010).

Conviction for conspiracy to maim by mob was supported by a finding that a reasonable fact finder could have inferred from the circumstances and overt actions of the parties that the mob did not form spontaneously, but was the result of a collective, agreed upon effort to punish anyone involved in the earlier flight inside the club. Johnson v. Commonwealth, 58 Va. App. 625, 712 S.E.2d 751, 2011 Va. App. LEXIS 259 (2011).

There was sufficient evidence supporting a conviction for conspiracy to commit robbery. After the victim opened his wallet, defendant and the others surrounded him, announced their intention to rob him, then without speaking to each other took coordinated positions around him to prevent his escape; and defendant's acting as if he had a weapon contributed to the robbery. Lewis v. Commonwealth, No. 1532-11-1,, 2012 Va. App. LEXIS 381 (Ct. of Appeals Nov. 27, 2012).

Evidence was sufficient to support defendant's conviction for conspiracy to commit robbery, as defendant was present and hung around the rea and shared the proceeds of the robbery. Defendant knew his role was to wait with the getaway driver in the vehicle to pick up the principals, and he played that role. Whitley v. Commonwealth, No. 0839-12-1,, 2013 Va. App. LEXIS 63 (Ct. of Appeals Feb. 26, 2013).

Evidence was sufficient to convict defendant of attempted carjacking and conspiracy to commit carjacking because the victim testified that three men approached his car just before the attempted carjacking; one individual entered the victim's car, and a second individual tried to remove the victim's keys and pull him out of his car; the victim was then struck in the face; shortly thereafter, and only about a mile from the hotel, an officer saw three juvenile males walking together who matched the description he received of the carjacking suspects; one of the males was in possession of the victim's cell phone; and a rational fact finder could have found that defendant agreed with the other two males to carjack the victim. Heard v. Commonwealth, No. 1576-16-1, 2018 Va. App. LEXIS 14 (2018).

Sufficient evidence supported defendant's conviction for conspiracy to commit sex trafficking because the evidence showed defendant agreed with others to encourage a victim to commit prostitution, from which defendant benefitted monetarily. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Sufficient evidence supported defendant's conviction for conspiracy to commit abduction because the evidence showed defendant agreed with others to force a victim to return to a hotel to resume committing prostitution. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Evidence was sufficient to prove that defendant entered into a conspiracy to burglarize the victims' home. The trial court was not plainly wrong in finding that the acts of defendant and his companions in breaking and entering and stealing from the victims' residence were not completely spontaneous without a sufficient prior agreement to go in and take these things. Taybron v. Commonwealth, No. 0623-18-1, 2019 Va. App. LEXIS 99 (Apr. 23, 2019).

Evidence supported the trial court's finding of the collocation of circumstances necessary to establish a conspiracy to break and enter with the intent to commit larceny because four men were traveling together in a car and arrived at the victims' residence together at a time when no one was home; the evidence supported a finding that the men worked together to remove numerous items from the residence, and the men left the scene together, were together when pulled over by the police, and fled. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Evidence sufficient to support conviction for conspiracy to commit robbery. - Where the evidence showed that defendant said that defendant planned to rob the victim and put defendant's plan into action with an intent to rob the victim, and that, from that starting premise, a co-conspirator agreed to participate in defendant's plan, defendant's conviction for conspiracy to commit robbery in violation of §§ 18.2-58 and 18.2-22 was supported by sufficient evidence. James v. Commonwealth, 53 Va. App. 671, 674 S.E.2d 571, 2009 Va. App. LEXIS 155 (2009).

Evidence was sufficient to support defendant's conviction for conspiracy to commit robbery, as there was sufficient proof of an agreement to commit robbery between defendant and a woman; there was a reasonable inference that defendant and the woman had a prearranged plan to take the television from the victim. Searcy v. Commonwealth, No. 1937-11-1,, 2012 Va. App. LEXIS 383 (Ct. of Appeals Nov. 27, 2012).

Defendant's convictions for robbery and conspiracy to commit robbery was supported by evidence that defendant saw the victim with over $5,000, defendant was holding a gun and following the victim, the victim was struck by co-defendant's fist and then by something that was not a fist, the victim lost consciousness and upon regaining consciousness discovered the money missing. Perkins v. Commonwealth, No. 1040-15-1, 2017 Va. App. LEXIS 10 (Ct. of Appeals Jan. 17, 2017).

Evidence insufficient. - Because the Commonwealth conceded that the evidence of an intent to defraud was insufficient to sustain defendant's conviction of obtaining goods by false pretenses in violation of § 43-13 , there had to be a concession that the evidence was insufficient to prove the conviction of conspiracy to commit a felony in violation of § 18.2-22 ; both required the intent to defraud, and the conspiracy alleged and tried was a conspiracy to violate § 18.2-178 , and not a conspiracy to violate § 43-13 . Hinote v. Commonwealth, No. 2570-10-2, 2011 Va. App. LEXIS 362 (Ct. of Appeals Nov. 22, 2011).

Evidence did not exclude the reasonable hypothesis of innocence that defendant was merely aiding and abetting the commission of the murder of the victim as the trial court expressly found that no agreement existed prior to when defendant, the other individual, and a third person arrived at the apartment complex where the victim was socializing, thereby negating any inference that defendant and the other individual entered into a conspiracy to kill the victim. Because the evidence did not establish beyond a reasonable doubt that defendant and the other individual entered into an agreement to kill the victim, the evidence was insufficient as a matter of law to support his conviction for conspiracy to commit murder. Nichols v. Commonwealth, No. 0499-12-1,, 2012 Va. App. LEXIS 416 (Ct. of Appeals Dec. 18, 2012).

Although the evidence supported a finding that the parties agreed to entered the subject house in order to commit a larceny, the conspiracy conviction could not be upheld, because the evidence did not establish that they agreed to enter the house at night. Derrick v. Commonwealth, No. 0240-12-2,, 2013 Va. App. LEXIS 101 (Ct. of Appeals Apr. 2, 2013).

Evidence was insufficient to support defendant's conviction of conspiracy to commit murder; although defendant sought another person's assistance in murdering two witnesses, there was no evidence that the person agreed to help defendant, and in fact the person gave defendant's note to the authorities and stated that although he knew of people who could have helped defendant, the person did not intend to ask them. Edwards v. Commonwealth, No. 0939-16-3, 2017 Va. App. LEXIS 102 (Apr. 11, 2017).

Withdrawal from conspiracy not a defense. - In Virginia, unlike some other jurisdictions, withdrawal is not a defense to conspiracy; the crime of conspiracy is complete when the parties agree to commit an offense and no action subsequent to the formation of the agreement can exonerate the conspirator of that crime. Gray v. Commonwealth, 260 Va. 675 , 537 S.E.2d 862, 2000 Va. LEXIS 141 (2000).

Common-law rule for number of convictions. - Because this case involved a single plan to commit multiple underlying instances of a single, non-capital crime, obtaining money by false pretenses, the common-law rule that the number of convictions depended upon the number of conspiratorial agreements applied. Smallwood v. Commonwealth, 72 Va. App. 119, 841 S.E.2d 881, 2020 Va. App. LEXIS 144 (2020).

Conviction for both statutory burglary and conspiracy. - One who has been convicted of statutory burglary may be convicted of conspiracy to commit statutory burglary and grand larceny. The conspiracy is not merged into the consummated statutory burglary. Bell v. Commonwealth, 220 Va. 87 , 255 S.E.2d 498 (1979).

Applied in Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983); Henry v. Commonwealth, 2 Va. App. 194, 342 S.E.2d 655 (1986); Graves v. Commonwealth, 234 Va. 578 , 363 S.E.2d 705 (1988); Johnson v. Commonwealth, 8 Va. App. 34, 377 S.E.2d 636 (1989); Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

§ 18.2-23. Conspiring to trespass or commit larceny.

  1. If any person shall conspire, confederate or combine with another or others in the Commonwealth to go upon or remain upon the lands, buildings or premises of another, or any part, portion or area thereof, having knowledge that any of them have been forbidden, either orally or in writing, to do so by the owner, lessee, custodian or other person lawfully in charge thereof, or having knowledge that any of them have been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion or area thereof at a place or places where it or they may reasonably be seen, he shall be deemed guilty of a Class 3 misdemeanor.
  2. If any person shall conspire, confederate or combine with another or others in the Commonwealth to commit larceny or counsel, assist, aid or abet another in the performance of a larceny, where the aggregate value of the goods or merchandise involved is $1,000 or more, he is guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than 20 years. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise. A violation of this subsection constitutes a separate and distinct felony.
  3. Jurisdiction for the trial of any person charged under this section shall be in the county or city wherein any part of such conspiracy is planned, or in the county or city wherein any act is done toward the consummation of such plan or conspiracy.

    (Code 1950, § 18.1-15.1; 1960, cc. 99, 358; 1975, cc. 14, 15; 2003, c. 831; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2003 amendments. - The 2003 amendment by c. 831 designated the existing provisions of the section as subsections A and C and inserted subsection B; and in present subsection C, substituted "any person charged under this section shall" for "any such person shall."

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500 or more" for "more than $200" in subsection B.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more" in subsection B.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, §§ 2, 8.

CASE NOTES

Evidence sufficient to support conviction. - Evidence supported a finding that defendant and two accomplices had agreed to commit grand larceny in violation of subsection B of § 18.2-23 and § 18.2-95 because testimony revealed that they were in a store, together, for one-and-a-half hours, taking merchandise and thereafter concealing the merchandise, and the trial court could properly infer that defendant and the accomplices, prior to entering the store, agreed upon a course of action that would provide the means to conceal the merchandise to be stolen from the store; because the evidence proved conspiracy, and the aggregate value of the merchandise concealed by defendant and the accomplices exceeded $200, the trial court did not err in convicting defendant of grand larceny. Brown v. Commonwealth, No. 1984-09-1,, 2010 Va. App. LEXIS 299 (Ct. of Appeals July 27, 2010).

Evidence that defendant and a companion went to the mall together, walked through the mall with shopping bags from stores outside the mall and entered the department store, picked up items and carried them into the fitting room, and exited the store with unpaid for items, and that security sensors were found in the companion's fitting room was sufficient to support defendant's conviction for conspiracy to commit grand larceny. Velez-Suarez v. Commonwealth, 64 Va. App. 269, 767 S.E.2d 715, 2015 Va. App. LEXIS 27 (2015).

Value of stolen goods not shown. - Commonwealth failed to establish the value, either market value or current value, of the stolen copper pipes, a necessary element of grand larceny, conspiracy to commit grand larceny, larceny of property belonging to another with a value of $200 or more with the intent to sell or distribute such property, and conspiracy to commit larceny with the intent to sell or distribute. Grimes v. Commonwealth, 62 Va. App. 470, 749 S.E.2d 218, 2013 Va. App. LEXIS 302 (2013).

Applied in Swisher v. Commonwealth, 256 Va. 471 , 506 S.E.2d 763 (1998).

§ 18.2-23.1. Completed substantive offense bars conviction for conspiracy.

Notwithstanding any other provision of this article or of § 18.2-256 , in any case where a defendant has been tried and convicted of an act he has also conspired to commit, such defendant shall be subject to conviction only for the completed substantive offense and not thereafter be convicted for the underlying conspiracy.

(1985, c. 376.)

Law review. - For 1991 survey on criminal law and procedure, see 25 U. Rich. L. Rev. 731 (1991).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, § 4; 6B M.J. Drugs and Druggists, § 5.

CASE NOTES

Presumption of prospective application. - There are no words in this section which can be construed as legislative intent to override the presumption that new laws are to be prospective in their operation. Shilling v. Commonwealth, 4 Va. App. 500, 359 S.E.2d 311 (1987).

Even if this section applied retroactively, there was sufficient evidence to convict the defendant of distribution and conspiracy to distribute a controlled substance, where the indictments were tried simultaneously and the evidence concerning all three indictments was heard by the jury at the same time, no objection was raised that the trial court failed to instruct the jury that evidence relating to the distribution charges should not have been considered in arriving at its verdict on the conspiracy charge, and if the defendant had made that request of the trial judge and it was granted, the conspiracy conviction could have been supported by the evidence of the defendant's actions for which no substantive offense charges were brought. Shilling v. Commonwealth, 4 Va. App. 500, 359 S.E.2d 311 (1987).

Application of section to offenses prior to effective date. - Since the effect of this section is to mitigate punishment by barring conviction for the underlying conspiracy if a defendant has been convicted of the completed substantive offense, the Commonwealth's consent was necessary for application of this section to a defendant's trial on offenses that occurred prior to the effective date of this section. Naito v. Commonwealth, No. 1421-86-4 (Ct. of Appeals Nov. 22, 1988).

This section is a substantive penal provision which must be further construed with § 1-16. Naito v. Commonwealth, No. 1421-86-4 (Ct. of Appeals Nov. 22, 1988).

This section does not prescribe a mode of trial conduct, and the fact that it may be asserted in the course of trial proceedings does not make it a procedural provision. Naito v. Commonwealth, No. 1421-86-4 (Ct. of Appeals Nov. 22, 1988).

The word "thereafter," as used in this section, means "at a subsequent trial," and does not mean just any moment of time subsequent to conviction of the substantive offense. Boyd v. Commonwealth, 236 Va. 346 , 374 S.E.2d 301 (1988).

Conspiracy convictions not barred where based on separate acts from substantive conviction. - A conviction for distribution of narcotics did not bar a subsequent prosecution of the same defendant for conspiracies to distribute narcotics on dates different from that of the distribution conviction; the distribution conviction was not a bar to the conspiracy convictions, as the conspiracy convictions did not involve the particular acts upon which the substantive conviction was based. However, as there was one overall, ongoing conspiracy encompassing various transactions, the second conspiracy prosecution was barred under principles of double jeopardy. Bowman v. Commonwealth, 11 Va. App. 259, 397 S.E.2d 886 (1990).

Conviction of substantive offense and conspiracy in same trial not prohibited. - This section bars conviction for conspiracy in a subsequent trial after an earlier conviction for the substantive offense; this section does not prohibit, however, conviction of both the completed substantive offense and the underlying conspiracy, provided the convictions occur in a single trial, regardless of the order in which the trial court announced the convictions. Boyd v. Commonwealth, 236 Va. 346 , 374 S.E.2d 301 (1988).

Applied in Stevens v. Commonwealth, 14 Va. App. 238, 415 S.E.2d 881 (1992).

§ 18.2-24.

Reserved.

Article 2. Attempts.

§ 18.2-25. Attempts to commit Class 1 felony offenses; how punished.

If any person attempts to commit an offense that is punishable as a Class 1 felony, he is guilty of a Class 2 felony.

(Code 1950, § 18.1-16; 1960, c. 358; 1975, cc. 14, 15; 1985, c. 280; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to shooting in attempt to commit a felony, see § 18.2-53 .

As to attempt to commit rape, see note to § 18.2-61 .

As to indictment for felony and conviction of attempt, see § 19.2-286 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "that is punishable as a Class 1 felony, he is" for "which is punishable with death, he shall be."

Law review. - For note, "Capital Punishment in Virginia," see 58 Va. L. Rev. 97 (1972). For article on the law of inchoate crimes, see 59 Va. L. Rev. 1235 (1973). For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arson, § 5; 2A M.J. Attempts and Solicitations, §§ 3, 6; 4C M.J. Constitutional Law, § 94; 5B M.J. Criminal Procedure, §§ 11, 79; 9B M.J. Homicide, § 37; 15 M.J. Rape and Other Sexual Offenses, § 10.

CASE NOTES

I. GENERAL CONSIDERATION.

Legislative intent as to phrase "an offense which is punishable with death." - The General Assembly intended the phrase "an offense which is punishable with death" to incorporate by reference the substantive offenses to which the highest penalty for attempt would attach. Evans v. Commonwealth, 214 Va. 694 , 204 S.E.2d 413 (1974).

Attempt penalty not dependent on existence of death penalty. - There was no legislative intent to make the attempt penalty dependent upon the existence or nonexistence of the death penalty attached to the substantive offenses incorporated by reference. Evans v. Commonwealth, 214 Va. 694 , 204 S.E.2d 413 (1974).

An attempt is an offense of a lower grade than the consummated felony. - The intention to commit a felony, and the doing of some act towards its commission without actually committing it, is an attempt and is, from its very nature, an offense of a lower grade than the consummated felony. Cates v. Commonwealth, 111 Va. 837 , 69 S.E. 520 (1910).

This article supersedes the common law. - This article, providing for punishment for attempts to commit crime, supersedes the common law. But it does not change the common law as to the grade of the offense, so far as murder is concerned, except as to murder in the first degree. Lee v. Commonwealth, 144 Va. 594 , 131 S.E. 212 (1926).

But does not change the common-law definition of attempt. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

For this article does not undertake to state what shall constitute an attempt to commit a crime. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

Double jeopardy considerations. - Section 19.2-294 is not a bar to prosecution for attempted murder after a conviction of obstructing justice; while obstructing justice may be a statutory offense, attempted murder is a common-law offense. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

Where defendant was first convicted of, inter alia, obstruction of justice by threats or force (a misdemeanor) and later convicted of attempted murder (a felony), the "same conduct" rule enunciated in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), did not apply to bar prosecution of the charge of attempted murder on principles of double jeopardy. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

Multiple punishments for the crimes of attempted murder and malicious wounding do not violate the double jeopardy clause when the convictions are obtained in a single trial. Creamer v. Commonwealth, No. 1298-91-3 (Ct. of Appeals Dec. 15, 1992).

Defendant's conviction in city for the rape that occurred there did not bar proof of that rape as a predicate offense in his prosecution in neighboring county for attempted capital murder. Curtis v. Commonwealth, 13 Va. App. 622, 414 S.E.2d 421 (1992).

Double jeopardy not a bar. - Defendant's double jeopardy rights were not violated in a case where defendant pled guilty to solicitation to commit murder in violation of § 18.2-29 and a jury then convicted defendant in a trial of attempted capital murder for hire in violation of subdivision 2 of § 18.2-31 and § 18.2-25 . Double jeopardy did not apply because: (1) defendant's offenses were considered in a single proceeding and, thus, there were not successive prosecutions for the same offense; and (2) solicitation to commit murder and attempted capital murder for hire were not the same offenses and, thus, defendant could be convicted and punished for both offenses since solicitation for murder required that a defendant solicit another person whereas attempted capital murder for hire did not require such proof. Ostrander v. Commonwealth, 51 Va. App. 386, 658 S.E.2d 346, 2008 Va. App. LEXIS 126 (2008).

II. ELEMENTS OF ATTEMPT.

Common law. - While the punishments for attempts to commit felonies are fixed by statute, what constitutes an attempt must be ascertained from the common law. Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

An attempt consists of intent plus a direct act. - An attempt to commit a crime consists of: (1) the intent; (2) a direct, ineffectual act towards its commission; and that act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Hicks v. Commonwealth, 86 Va. 223 , 9 S.E. 1024 (1889); Barrett v. Commonwealth, 210 Va. 153 , 169 S.E.2d 449 (1969); Sizemore v. Commonwealth, 218 Va. 980 , 243 S.E.2d 212 (1978).

An attempt in criminal law is an unfinished crime and is composed of two elements, the intent to commit the crime and the doing of some direct act toward its consummation, but falling short of the accomplishment of the ultimate design. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954); Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Intent necessary. - A person cannot be guilty of an attempt to commit murder unless he has a specific intent to kill. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

The necessary intent is the intent in fact, as distinguished from an intent in law. Epps v. Commonwealth, 216 Va. 150 , 216 S.E.2d 64 (1975); Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Under this article "attempt" embraces the full meaning of "intent," and may be, and frequently is, shown by circumstances. It is a state of mind which may be proved by a person's conduct or by his statements. Barrett v. Commonwealth, 210 Va. 153 , 169 S.E.2d 449 (1969); Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Intent in fact is the purpose formed in a person's mind which may be shown by his conduct. Epps v. Commonwealth, 216 Va. 150 , 216 S.E.2d 64 (1975).

State of mind is the subject of any inquiry concerning whether an intent to kill exists in an attempted murder case. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Presumption of intention. - A person is presumed to intend the immediate, direct, and necessary consequences of his voluntary act. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Whether the required intent exists is generally a question for the trier of fact. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977).

Preparation and attempt distinguished. - Preparation consists in devising or arranging the means or measures necessary for the commission of the offense and the attempt is a direct movement towards the commission after the preparations are made. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

The act must amount to the commencement of the consummation. - The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Thacker v. Commonwealth, 134 Va. 767 , 114 S.E. 504 (1922). See Dixon v. Commonwealth, 162 Va. 798 , 173 S.E. 521 (1934). See also Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935), holding that where the intent appears as a part of the act alleged it need not be expressly stated.

But need not be last proximate act prior to the consummation. - The overt act, composing one of the two essential elements of an attempt, need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated. Uhl v. Commonwealth, 47 Va. (6 Gratt.) 706 (1849); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889).

An attempt need not be the last proximate act towards the consummation of the crime in contemplation, but is sufficient if it be an act apparently adopted to produce the result intended; mere preparation is not sufficient. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

Sufficient evidence to show attempted capital murder for hire. - Defendant asked two people to kill his wife, formulated diagrams of his wife's house, explained when she would be at home, and paid two thousand dollars to the hit man. The evidence was sufficient to convict defendant of attempted capital murder for hire, in violation of §§ 18.2-25 and 18.2-31 , and solicitation of capital murder for hire in violation of §§ 18.2-29 and 18.2-31 ; the Commonwealth did not err by failing to elect between the charges, because the solicitation and attempt were both parts of a common scheme or plan. Ashford v. Commonwealth, 47 Va. App. 676, 626 S.E.2d 464, 2006 Va. App. LEXIS 70 (2006).

III. PROSECUTION.
A. INDICTMENT.

The Supreme Court has been liberal in sustaining indictments charging an attempt to commit a crime under this section. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

The allegations of an indictment must be read as a whole. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Indictments must allege act that constitutes an attempt. - It is an elementary rule of criminal pleading that an indictment for an attempt to commit an offense must allege some act done by the defendant of such a nature as to constitute an attempt, in a legal sense, to commit the contemplated offense, otherwise the indictment will not be sufficient. Commonwealth v. Clark, 47 Va. (6 Gratt.) 675 (1849). See Hicks v. Commonwealth, 86 Va. 223 , 9 S.E. 1024 (1889); Cunningham v. Commonwealth, 88 Va. 37 , 13 S.E. 309 (1891).

But need not allege intent. - Where the statute under which the indictment is found expressly makes the "intent" descriptive of the offense, the prevailing rule is that the indictment must expressly allege the "intent," but this is not true of this section on attempts to commit crime. Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

If it is an attempt to do an act in its nature evil. - An indictment under this section charged that accused made an assault upon a woman and he feloniously did attempt to ravish and carnally know, against her will and by force. The indictment thus followed the statute in the use of the word "attempt," without further expansion. It charged, however, an assault, and that the "attempt" was "to ravish and carnally know" the prosecutrix "against her will and by force." This was an act in its nature evil, and an act, therefore, "prima facie evil also in intent; so this intent need not be alleged," since the statute under which the indictment was found has not made the intent "affirmatively or descriptively an element of the offense." Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

But intent must be alleged if it would not be inferred. - The indictment should charge the intent as well as the overt act unless the specific intent to commit the crime charged might be inferred, either from the nature of the act alleged or from the use of the word "attempt" in the indictment, as "attempt" embraces the full meaning of "intent"; the only distinction between an "intent" and an "attempt" is that the former implies purpose only, while the latter implies both purpose and the effort to carry that purpose into effect. Merritt v. Commonwealth, 164 Va. 653 , 180 S.E. 395 (1935).

An indictment charging an attempt to commit a crime should charge both the intent and the overt act; but it has been held that where the intent appeared as a part of the act alleged, it need not be expressly stated. Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Indictment need not specify degree of attempted murder. - The indictment is not invalid because it failed to specify that the murder alleged to have been attempted was murder in the first degree. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Indictment held good. - An indictment under this section alleged that accused "did feloniously attempt to commit the crime of murder by then and there" with a loaded pistol, which pistol accused feloniously, willfully, and of malice aforethought did discharge and shoot off at and towards one David Tabb, the accused being close enough to said Tabb to be within carrying distance of the pistol. It was held that the indictment sufficiently charged the overt acts done towards the commission of the offense. The indictment followed the statute in its use of the word "attempt," and both charged the assault and descended into the particulars of that charge. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

B. EVIDENCE.

To sustain a conviction of attempted murder, the evidence must establish both a specific intent to kill the victim and an overt but ineffectual act committed in furtherance of this criminal purpose. Nobles v. Commonwealth, 218 Va. 548 , 238 S.E.2d 808 (1977); Howard v. Commonwealth, 221 Va. 904 , 275 S.E.2d 602 (1981).

Evidence showing preparation only. - The evidence in this case shows only a procurement of the poison and an ineffectual solicitation of a third party to put it in the drink of the intended victim, which acts constitute not an attempt, but only a preparation. Goin v. Absher, 189 Va. 372 , 53 S.E.2d 50 (1949).

Evidence not brought before Supreme Court. - Where accused was convicted of an attempt to commit murder in the first degree and the evidence introduced at the trial was not brought before the Supreme Court, that court must presume that it was sufficient to establish that the attempted murder was murder in the first degree. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Sufficient evidence of knowledge of presence of contraband. - Evidence was sufficient to convict defendant of possession of a controlled substance because a police officer smelled marijuana coming from a vehicle that had been stopped for a traffic violation, defendant, a passenger in the vehicle, appeared extremely nervous, a cigarette pack with a "blunt" was found in defendant's pocket, and eight baggies of a white, flaky, powdery substance were found in the pack. Waller v. Commonwealth, No. 0070-14-2, 2015 Va. App. LEXIS 73 (Mar. 10, 2015).

Sufficient evidence. - Where the defendant pointed a loaded rifle at a state trooper and threatened to kill him, the evidence was sufficient to support a conviction for attempted murder, even though the defendant did not pull or attempt to pull the trigger. Sizemore v. Commonwealth, 218 Va. 980 , 243 S.E.2d 212 (1978).

Evidence was sufficient to support defendant's attempted robbery conviction, in violation of §§ 18.2-58 and 18.2-25 , when the victims testified that defendant said he would "take your stuff, " did not appear to be joking, and, when they ran from him, lifted his shirt and displayed a firearm, as this showed defendant intended to take, with intent to steal, the personal property of another, from his person or in his presence, against his will, by violence or intimidation, and engaged in a direct, ineffectual, act towards its commission. Jones v. Commonwealth, No. 1730-03-1, 2004 Va. App. LEXIS 300 (Ct. of Appeals June 29, 2004).

Court did not make an error of law in ruling that the evidence had been sufficient to support a habeas petitioner's conviction for attempted murder; the inmate's driving a truck, armed with a deadly weapon, from Florida to within one-half mile of the intended victim's workplace in Virginia was the overt act that supported his conviction. Littlefield v. Hinkle,, 2005 U.S. Dist. LEXIS 31344 (W.D. Va. Nov. 22, 2005).

Because defendant swerved a car toward a police officer rather than driving straight ahead to escape, the evidence was sufficient to prove premeditation and the specific intent to kill; consequently, defendant was properly convicted of violating § 18.2-25 . Coles v. Commonwealth, 270 Va. 585 , 621 S.E.2d 109, 2005 Va. LEXIS 88 (2005).

Sufficient evidence supported defendant's conviction under § 18.2-25 and subdivision 6 of § 18.2-31 of attempted capital murder of a police officer because the specific intent required for the crime could be inferred by defendant veering the defendant's automobile from the defendant's path of travel directly towards a second police officer, resulting in defendant striking the second officer at about 40 to 50 mph, knocking the second officer to the ground, and running over the officer's foot. Piggott v. Commonwealth, No. 1797-07-1,, 2008 Va. App. LEXIS 432 (Ct. of Appeals Sept. 23, 2008).

Evidence that defendant did not brake or attempt to avoid the collision and collided head-on with the officer while still accelerating, supported the finding that defendant had the specific intent to kill the officer and thus, was sufficient to convict defendant of attempted capital murder. McMillan v. Commonwealth, No. 2074-07-2,, 2009 Va. App. LEXIS 118 (Ct. of Appeals Mar. 17, 2009).

Evidence was sufficient to convict defendant of attempted capital murder of a law-enforcement officer because, while no witness actually saw defendant shoot the gun at the deputy, a rational fact finder could find from the evidence presented that defendant was the shooter as the evidence showed defendant was in the area, he possessed a gun, and he had the opportunity to commit the offenses; no evidence suggested that any person other than defendant was in the area at the time of the shooting; the evidence showed that defendant shot the gun at the deputy with the intent to kill him as a natural consequence of shooting a gun numerous times in the direction of someone was that person's death; and a ricochet hit the deputy in the leg. Williams v. Commonwealth, No. 1700-14-3, 2015 Va. App. LEXIS 321 (Nov. 10, 2015).

C. VERDICT.

Need not show degree of murder attempted. - In a prosecution for an attempt to commit murder, the jury found the accused guilty as charged in the indictment and fixed her punishment at two years confinement in the penitentiary (now state correctional facility). It was held that the verdict was not invalid because it did not expressly appear therefrom that the jury found the accused guilty of the attempt to commit murder in the first degree. Fields v. Commonwealth, 129 Va. 774 , 106 S.E. 333 (1921).

Improper conviction where offense not lesser included one. - Defendant was improperly convicted of assault on a law-enforcement officer where that crime was not a lesser-included offense of attempted capital murder of an officer. Edwards v. Commonwealth, 40 Va. App. 529, 580 S.E.2d 450, 2003 Va. App. LEXIS 298 (2003).

§ 18.2-26. Attempts to commit felonies other than Class 1 felony offenses; how punished.

Except as provided in § 18.2-25 , every person who attempts to commit an offense that is a felony shall be punished as follows:

  1. If the felony attempted is punishable by a maximum punishment of life imprisonment or a term of years in excess of twenty years, an attempt thereat shall be punishable as a Class 4 felony.
  2. If the felony attempted is punishable by a maximum punishment of twenty years' imprisonment, an attempt thereat shall be punishable as a Class 5 felony.
  3. If the felony attempted is punishable by a maximum punishment of less than twenty years' imprisonment, an attempt thereat shall be punishable as a Class 6 felony.

    (Code 1950, §§ 18.1-17, 18.1-18; 1960, c. 358; 1975, cc. 14, 15; 1994, c. 639; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and added "Except as provided in § 18.2-25 " at the beginning of the introductory paragraph, and made a stylistic change.

Law review. - For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982).

For article, "Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs," see 45 U. Rich. L. Rev. 647 (2011).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attempts and Solicitations, § 6; 4A M.J. Conspiracy, § 4.1; 9B M.J. Homicide, § 37; 15 M.J. Rape and Other Sexual Offenses, § 27.

CASE NOTES

Double jeopardy considerations. - Multiple punishments for the crimes of attempted murder and malicious wounding do not violate the double jeopardy clause when the convictions are obtained in a single trial. Creamer v. Commonwealth, No. 1298-91-3 (Ct. of Appeals Dec. 15, 1992).

Proof of attempted murder does not require proof of an actual injury, and therefore aggravated malicious wounding and attempted murder each contain an element not contained by the other, and neither crime is a lesser-included offense of the other for double jeopardy purposes. Dennis v. Commonwealth, No. 1285-98-1, 1999 Va. App. LEXIS 583 (Ct. of Appeals Oct. 19, 1999).

Defendant's double jeopardy rights were not violated by convicting him of two counts of attempted murder as each of defendant's attacks on the victim could stand on its own as a separate, complete attempt to murder her because, during the first attack, defendant accelerated his car and aimed the vehicle directly at the victim, and his acceleration of his car toward the victim was a direct, unequivocal act toward the commission of murder; and defendant's second attack on the victim with a hammer was a separate attempt to murder her as the hammer attack did not involve a continuation of the motion involved in trying to run over the victim with a vehicle; instead, the hammer attack involved a new formation and execution of purpose. Jin v. Commonwealth, 67 Va. App. 294, 795 S.E.2d 918, 2017 Va. App. LEXIS 34 (2017).

The word "punishable," as here used, means the maximum punishment which may be imposed. Slusher v. Commonwealth, 196 Va. 440 , 83 S.E.2d 719 (1954).

No retroactive assignment of punishment. - Although the amendments to this section subsequent to defendant's misconduct included attempts at § 18.2-32 offenses, the revised statute may not retroactively assign punishment to prior acts. Cook v. Commonwealth, 20 Va. App. 510, 458 S.E.2d 317 (1995).

No error in indictment amendment which substituted § 18.2-257 for this section. - Where prior to trial, the trial court granted the Commonwealth's motion to amend the second count of indictment, thereby changing the attempt statute on which the Commonwealth was relying from this section, the general attempt statute, to § 18.2-257 , which covers attempts to violate the Drug Control Act, the trial court did not err in granting the Commonwealth's motion to amend the indictment against defendant. The amendment did not change the nature or character of the offense charged; it merely substituted reference to § 18.2-257, the specific provision covering attempts to commit drug offenses, for this section, the general provision covering attempts to commit general, non-capital felonies. Robinson v. Commonwealth, No. 1840-90-1 (Ct. of Appeals July 21, 1992).

Conviction for conduct not constituting crime. - This section, at the time of defendant's offense, did not provide a punishment for an attempted felony which was punishable by confinement for a maximum of 40 years. Thus, although defendant's conduct may have been proscribed by § 18.2-32 , it was an offense without a penalty. Therefore, defendant was convicted for conduct which constituted no crime at the time of the offense. Accordingly, the judgment of the trial court was reversed. Cook v. Commonwealth, 20 Va. App. 510, 458 S.E.2d 317 (1995).

Instructions which permitted the jury to find defendant guilty of attempted murder in either first or second degree, and set forth the punishment for either offense, were not confusing and prejudicial on the ground that in Virginia there are no "specific offenses for varying degrees of attempted murder." Even though there are no specific statutory provisions which establish the degrees of attempted murder, the statutes set forth the punishment for attempts to commit noncapital offenses. Martin v. Commonwealth, 217 Va. 847 , 234 S.E.2d 62 (1977).

Jury instructions. - Trial court did not err in refusing to give a jury instruction on assault during defendant's trial for attempted robbery because assault was not a lesser-included offense of robbery or attempted robbery; because assault contains an element that robbery does not, to wit, words alone cannot constitute assault, yet words alone can create sufficient intimidation to constitute robbery, assault cannot be a lesser-included offense of robbery. Adeniran v. Commonwealth, 63 Va. App. 617, 761 S.E.2d 782, 2014 Va. App. LEXIS 281 (2014).

The defendant's statement that he was going to shoot the victim and take his money was sufficient to prove beyond a reasonable doubt that he intended to rob the victim. Furthermore, the defendant committed numerous overt acts in furtherance of the robbery by placing his hand in his pocket in a manner that caused the victim to believe that he had a gun, following the victim into the store and stating that he did not "want anybody to get hurt," and attempting to enter the taxi after leaving the store. Accordingly, the evidence was sufficient to sustain the defendant's conviction for attempted robbery. Chrisman v. Commonwealth, No. 1724-95-3 (Ct. of Appeals April 30, 1996).

Attempted robbery. - Evidence was sufficient to show that defendant committed an overt act for purposes of attempted robbery under §§ 18.2-26 and 18.2-58 where: (1) defendant and his co-defendant talked about robbing a bank the day before; (2) defendant drove to a remote location in town; (3) the two pulled bandanas over their faces outside the bank; (4) defendant carried a knapsack with his hand inside, and the two men walked toward the entrance to the bank; and (5) when they made eye contact with the witness, they pulled down the masks, but continued walking toward the entrance to the bank, where they paused at the entrance, but at the last minute, aborted their plan and walked away. Williams v. Commonwealth, No. 0641-03-1, 2004 Va. App. LEXIS 154 (Ct. of Appeals Apr. 6, 2004).

In an attempted robbery prosecution, where defendant and his companions intended to rob "some people" in a house, demanded money from the persons they found in the house, and shot and killed a man who later entered, the evidence had been insufficient to convict defendant of attempting to rob this man, as the evidence showed he never formed an intent to rob him, and that he and companions took no action toward realizing the ultimate purpose of robbing him. Lewis v. Commonwealth, 43 Va. App. 126, 596 S.E.2d 542, 2004 Va. App. LEXIS 252 (2004).

Evidence was sufficient to support defendant's conviction for attempted robbery where an accomplice testified that the accomplice approached the passenger side of a vehicle to buy drugs, defendant pulled out a gun by the driver's side of the vehicle, the accomplice ran, but heard the sound of gunshots, and the accomplice's testimony was corroborated by the presence of the accomplice's fingerprints on the passenger side of the vehicle. Moreover, after the shooting defendant hid out at a friend's house and then fled the state, the gun was found in the friend's backyard, and other crimes evidence tended to prove that defendant stole the gun in another robbery. Rayford v. Commonwealth, No. 0328-07-1, 2007 Va. App. LEXIS 506 (Ct. of Appeals Aug. 9, 2007).

Evidence defendant admitted that, the day after defendant and another planned the attack on the victim, the two of them met in the evening at a gas station near the scene of the attack, pursuant to their plan, and then proceeded to their hiding place behind the bushes next to the government building, where they waited for 30 minutes for the victim to appear, was sufficient to support defendant's attempted robbery and aggravated malicious wounding convictions. Goode v. Commonwealth, 52 Va. App. 380, 663 S.E.2d 532, 2008 Va. App. LEXIS 331 (2008).

Evidence was insufficient to convict defendant of attempted robbery of a particular person in violation of § 18.2-26 because defendant placed a gun to the victim's neck and told the victim to keep ringing the bell for entry to his place of employment, which showed an intent to gain access to the building, but it did not show an intent to deprive the victim of his property. DeSilva v. Commonwealth, No. 2796-08-2, 2009 Va. App. LEXIS 482 (Ct. of Appeals Oct. 27, 2009).

Evidence was sufficient to convict defendant of attempted robbery, because the trial court, as fact finder, could reasonably have concluded that defendant's and his accomplices' act of placing their hands in the victim's pockets after brutally beating him was not simply "an incidental, probable consequence" of the attack. Smith v. Commonwealth, No. 1266-12-1, 2013 Va. App. LEXIS 383 (Dec. 17, 2013).

Evidence was sufficient to prove defendant was an accomplice or principal in the second degree of malicious wounding and attempted robbery, as the victim testified that defendant and two other men all attacked him and searched his pockets. Smith v. Commonwealth, No. 1266-12-1, 2013 Va. App. LEXIS 383 (Dec. 17, 2013).

Evidence was sufficient to support the trial court's conclusion that defendant committed a direct act calculated to accomplish the robbery, and therefore his conviction for attempted robbery was affirmed, where defendant expressly informed the victim of his intention to rob the store, he entered the store twice, and the police arrived as he was leaning behind the ice machine where his machete was hidden. Reaux-King v. Commonwealth, No. 0734-14-2, 2015 Va. App. LEXIS 142 (Apr. 28, 2015).

Evidence was sufficient to support defendant's convictions for attempted robbery, use of a firearm in the commission of an attempted robbery, and possession of a firearm by a violent convicted felon, as it showed that defendant pointed a gun at the victim and chased the victim in an attempt to get the victim to go back to his house so defendant could rob him. Howard v. Commonwealth, No. 1621-14-2, 2015 Va. App. LEXIS 220 (July 21, 2015).

Defendant's conviction for robbery was reversed because defendant was convicted of a crime not charged in the indictment; defendant was indicted and arraigned for attempted robbery, but the completed offense of robbery was not charged in the indictment. Bass v. Commonwealth,, 2015 Va. App. LEXIS 209 (July 7, 2015), rev'd, 292 Va. 19 , 786 S.E.2d 165, 2016 Va. LEXIS 71 (2016).

Evidence was sufficient to find that defendant was involved in a home invasion, which led to convictions for armed burglary, attempted robbery, and wearing a mask in public because, about 40 minutes after the victim fired two shots at intruders, defendant and codefendant arrived with gunshot wounds at a hospital located about 40 minutes' away; both men claimed that they were together at a house party when they were shot, but they could not provide details to police to confirm their story; cell phone records suggested that both men were near the victims' residence when the home invasion occurred; and codefendant was shot with the same kind of unusual ammunition that the victim used during the home invasion. Chantz v. Commonwealth, No. 0113-16-3, 2017 Va. App. LEXIS 44 (Ct. of Appeals Feb. 21, 2017).

Attempted grand larceny. - In a case in which defendant appealed his convictions for uttering a forged check in violation of § 18.2-172 and attempted grand larceny in violation of §§ 18.2-95 and 18.2-26 , he argued unsuccessfully that the evidence was insufficient to support his convictions. Because he possessed the forged check, the circumstantial evidence allowed for the inference that defendant had the requisite intent to fraudulently induce the bank to give him the money and not return it, and his possession of the forged check, in conjunction with the other circumstantial evidence, allowed the inference that defendant knew the check was forged; therefore, the evidence was sufficient to support his convictions for uttering and attempted grand larceny. Coles v. Commonwealth, No. 0624-08-2, 2009 Va. App. LEXIS 484 (Ct. of Appeals Oct. 27, 2009).

Evidence showed that defendant aided and abetted in attempted grand larceny because, while the perpetrator attempted to gain entry into the victim's apartment, defendant waited a short distance away, entered the apartment when summoned by the perpetrator, exited the apartment when the police arrived, and knocked on the door of another apartment. Defendant's knowledge of the perpetrator's criminal intent, failure to discourage completion of the crime, and subsequent attempt to conceal defendant's involvement in the crime was thus shown. Kersey v. Commonwealth,, 2015 Va. App. LEXIS 349 (Nov. 24, 2015).

Attempted larceny by false pretenses. - Defendant's impossibility defense to attempted larceny by false pretenses failed because the ineptness of defendant's plan to have funds from a victim's bank account credited to defendant's overdue utility bill, while making the plan factually improbable, did not make the plan legally impossible. Abbitt v. Commonwealth,, 2014 Va. App. LEXIS 135 (Apr. 8, 2014).

Attempted extortion. - Defendant, a real estate subdivision developer, was entitled to strike an attempted extortion indictment because defendant's written notice to a property owner of intent to file a lien was made in the context of a judicial proceeding. The relevant and material statements in the notice were thereby covered by absolute privilege and were not a wrongful threat in the context of an extortion charge. Ware v. Commonwealth, No. 1458-18-2, 2019 Va. App. LEXIS 212 (Oct. 1, 2019).

Attempted carjacking. - Evidence was sufficient to convict defendant of attempted carjacking and conspiracy to commit carjacking because the victim testified that three men approached his car just before the attempted carjacking; one individual entered the victim's car, and a second individual tried to remove the victim's keys and pull him out of his car; the victim was then struck in the face; shortly thereafter, and only about a mile from the hotel, an officer saw three juvenile males walking together who matched the description he received of the carjacking suspects; one of the males was in possession of the victim's cell phone; and a rational fact finder could have found that defendant agreed with the other two males to carjack the victim. Heard v. Commonwealth, No. 1576-16-1, 2018 Va. App. LEXIS 14 (2018).

Attempted murder. - Evidence was insufficient to prove that defendant acted with specific intent to kill bank employee when he drove his vehicle through bank's automatic teller machine lane. Willson v. Commonwealth, No. 2004-98-2 (Ct. of Appeals Sept. 21, 1999).

Evidence was sufficient to support defendant's attempted murder conviction, as it showed that defendant entered the victim's house armed with a knife, that defendant threatened to kill her, and that defendant tried unsuccessfully to kill her. Singleton v. Commonwealth, No. 1432-02-1, 2003 Va. App. LEXIS 185 (Ct. of Appeals Apr. 1, 2003).

Evidence that defendant turned the car into traffic in order to flee while the officer was standing toward the rear of the vehicle and slightly behind the driver's side door was insufficient to show that defendant possessed the requisite specific intent to kill the officer; there was no evidence that defendant aimed the vehicle directly at the officer or otherwise had any intent to inflict bodily harm on the officer, much less that defendant had formed the intent to murder the officer. The facts better supported the conclusion that defendant was attempting to escape. Baldwin v. Commonwealth, 274 Va. 276 , 645 S.E.2d 433, 2007 Va. LEXIS 76 (2007).

Evidence was sufficient to prove attempted murder and use of a firearm while attempting to commit murder, violations of §§ 18.2-26 , 18.2-32 , and 18.2-154 , where defendant pointed a gun at the victim's car, firing four or five times. Thus, defendant must have intended the immediate, direct, and necessary consequences of his voluntary act. Stullenberg v. Commonwealth, No. 0223-09-3, 2010 Va. App. LEXIS 179 (Ct. of Appeals May 4, 2010).

Trial court's finding that defendant was guilty of the attempted murder of his wife in violation of §§ 18.2-32 and 18.2-26 and use of a firearm in the commission of that offense was not plainly wrong or without evidence to support it because defendant shoved, punched, and choked his wife in the presence of their three minor children and his father and obtained a shotgun and went to the front door of the house looking for his wife; the trial court found that the evidence proved that defendant was aiming the shotgun generally around with his finger on the trigger. Herring v. Commonwealth, No. 1430-12-3, 2013 Va. App. LEXIS 123 (Ct. of Appeals Apr. 16, 2013).

Evidence was sufficient to support defendant's conviction of attempted murder because it showed that defendant poured fuel around a building in the early morning hours when people inside were sleeping, he wanted to eliminate the people he knew were in the building at the time he started the fire, he purposefully poured gas outside of bedrooms, offices, and the main living area throughout the first floor, which made evacuation difficult. Secret v. Commonwealth, No. 0853-15-2, 2017 Va. App. LEXIS 38 (Ct. of Appeals Feb. 14, 2017), aff'd, 296 Va. 204 , 819 S.E.2d 234, 2018 Va. LEXIS 136 (2018).

Circuit court properly convicted defendant of attempted murder, shooting at an occupied vehicle, and use of a firearm in the commission of a felony because defendant was the only individual seen handling a firearm, threatened the victim, pointed his gun at the victim, and, after becoming momentarily distracted, fired it at the victim, and hit his truck, and a rational factfinder could find that defendant shot at the victim with malice. Logan v. Commonwealth, 67 Va. App. 747, 800 S.E.2d 202 (2017).

Although the November 6, 2015, order referred to an excessive sentence of 20 years for defendant's attempted murder conviction, that reference was a clerical error because, at the hearing preceding that order, the circuit court explained that it had misspoken at defendant's original sentencing hearing and inadvertently interchanged the sentences for defendant's malicious wounding and attempted murder convictions; and the circuit court then explained that it intended to impose the sentences of 20 years of incarceration with 10 years suspended for the malicious wounding conviction and 10 years of incarceration with five years suspended for the attempted murder conviction; the case was remanded to correct the clerical errors in that order. Boykins v. Commonwealth, No. 1487-16-1, 2017 Va. App. LEXIS 143 (June 6, 2017).

Attempted malicious wounding. - Sufficient evidence supported defendant's convictions for attempted malicious wounding in violation of §§ 18.2-26 and 18.2-51 and felony hit-and-run, in violation of § 46.2-894 , where the evidence presented at trial showed that, while trying to help her sister escape from a store where the sister had been stopped for shoplifting, defendant hit two store employees with her car, dragging one of them for several feet, and then fled the scene of the accident without stopping and giving the information required by § 46.2-894 . Brooks v. Commonwealth, No. 0898-01-2, 2002 Va. App. LEXIS 311 (Ct. of Appeals May 14, 2002).

Facts showed that: (1) defendant drove his truck down a 100-foot driveway at a high rate of speed; (2) the victim testified he believed that defendant was going to hit him, and he had to jump between two parked cars to escape being struck; (3) defendant admitted threatening the victim, drinking alcohol before the incident, and confirmed that he and the victim had prior confrontations; (4) the victim's father also heard defendant's threats and saw skid marks in the gravel driveway; (5) a police officer investigating the incident also observed fresh skid marks and testified defendant appeared to have been drinking; and (6) a motor vehicle, wrongfully used, could be a weapon as deadly as a gun or a knife. Thus, the trial court's determination that defendant attempted to run over the victim and cause him serious bodily injury was not plainly wrong or without evidence to support it; therefore, the evidence was sufficient to convict defendant of attempted malicious wounding. Sprouse v. Commonwealth, No. 3010-04-2,, 2006 Va. App. LEXIS 45 (Ct. of Appeals Feb. 7, 2006).

Evidence was insufficient to support a conviction for attempted malicious wounding, although the circumstances were suspicious, because the evidence failed to establish an overt act necessary to prove an attempted malicious wounding where the scenario was interrupted when the victim made contact with defendant, and the evidence also failed to exclude the reasonable hypotheses that defendant acted with the intent to do no more than scare the victim. Small v. Commonwealth, No. 1511-08-3, 2009 Va. App. LEXIS 556 (Ct. of Appeals Dec. 15, 2009).

Conviction for attempted malicious wounding under §§ 18.2-26 and 18.2-51 , was supported by evidence that defendant entered the victim's apartment and attempted to take money from the victim by intimidating him at gunpoint, and defendant and the victim struggled; defendant's exclusive possession of defendant's gun during the entire time the incident was occurring supported a finding that the gunshot was deliberate, not accidental, and the trial court was entitled to infer that defendant intended the natural and probable consequences of pointing a gun at someone during a robbery, that the circumstances might result in the gun firing. Reid v. Commonwealth, No. 2020-09-1, 2010 Va. App. LEXIS 334 (Ct. of Appeals Aug. 17, 2010).

Evidence was sufficient to support defendant's conviction of attempted malicious wounding because it showed that he blocked her car, aggressively yelled at her to get out, and repeatedly struck her window with a tire iron, damaging the window. Fletcher v. Commonwealth, 72 Va. App. 493, 849 S.E.2d 594, 2020 Va. App. LEXIS 275 (2020).

Attempted malicious wounding of police officer. - Commonwealth sufficiently proved that defendant acted with the intent to maim, disfigure, disable or kill, as required by § 18.2-51.1 , through his actions of attempting to elude a police officer and accelerating his van into the direct path of the police officer without making an effort to veer or avoid hitting said officer; moreover, the evidence raised the sole inference that defendant intended to escape even if in so doing he had to drive his accelerating vehicle into the officer who stood before him. Holley v. Commonwealth, 44 Va. App. 228, 604 S.E.2d 127, 2004 Va. App. LEXIS 515 (2004).

Use of a firearm in commission of a felony. - Commonwealth presented sufficient evidence to sustain two convictions of using a firearm in commission of both a charge of attempted murder and a charge of malicious wounding, based on the victim's testimony, and the inferences drawn therefrom, in which the jury could reasonably conclude that: (1) defendant had a firearm in her possession when she hit the victim with the hammer; (2) when defendant shot the victim, and before she hit the victim with a hammer, nothing in the record indicated that she put the gun down before she hit him with the hammer; and, (3) by having the firearm in her possession, defendant displayed the firearm in a threatening manner during the hammer attack; furthermore, although the record did not indicate that defendant presented the pistol in a threatening manner, the jury could properly conclude that her mere possession of the pistol during the hammer attack, coupled with the fact she had already used the pistol, could create a legitimate fear of further use and constituted display of a firearm in a threatening manner. Coleman v. Commonwealth, No. 1488-04-2, 2005 Va. App. LEXIS 379 (Ct. of Appeals Oct. 4, 2005).

Upon defendant's sufficiency challenge, because the Commonwealth had the burden to prove beyond a reasonable doubt that defendant committed the crime of attempted robbery and it failed to do so, as one would have to resort to speculation and conjecture in order to find that he was attempting to rob as opposed to attempting to obtain money by false pretenses, an attempted robbery conviction could not stand; moreover, given reversal of the attempted robbery conviction, defendant's conviction for attempted use of a firearm during the commission of attempted robbery also had to be reversed. Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Attempted abduction. - Because defendant, a North Carolina bail bondsman, did not have authority pursuant to §§ 9.1-185.18 and 9.1-186.13 , to seize a fugitive or the victim, and the Commonwealth showed that defendant intended to abduct the fugitive, there was no legal justification for his actions and defendant's convictions for attempted abduction, a violation of §§ 18.2-26 and 18.2-47 , and use of a firearm in the commission of an attempted abduction, a violation of § 18.2-53.1 , were proper. Collins v. Commonwealth, 57 Va. App. 355, 702 S.E.2d 267, 2010 Va. App. LEXIS 480 (2010), aff'd, 283 Va. 263 , 720 S.E.2d 530, 2012 Va. LEXIS 17 (2012).

Sufficient evidence supported defendant's conviction for attempted abduction because his use of foul language, his pointing of a deadly weapon at the deputy chief of police, his allowance of an employee to confront the deputy chief with mace and a handgun, and his use of physical force in pulling the deputy chief toward the truck all proved beyond a reasonable doubt that, without legal justification or excuse, defendant seized another person with the intent to deprive such other person of his personal liberty. As a bail bondsman licensed in another state, he was not justified in apprehending a fugitive bailee and his abandonment (when he realized he had the wrong person) came after the attempt was complete. Collins v. Commonwealth, 283 Va. 263 , 720 S.E.2d 530 (2012), cert. denied, 132 S. Ct. 2694, 183 L. Ed. 2d 46, 2012 U.S. LEXIS 4044 (2012).

Defendant was properly convicted of attempted abduction because the trial court could reasonably infer that his actions were inconsistent with an intent to create a romantic relationship with the victim, and were consistent with attempting to abduct her with the purpose of withholding her personal liberty where defendant initially stood in front of the victim blocking her path, grabbed her jacket, and subsequently positioned his truck so that she could not walk around it. Gray v. Commonwealth,, 2014 Va. App. LEXIS 83 (Mar. 11, 2014).

Although defendant contended that any attempted abduction or detention of the victim was not a separate offense, as it was incidental to defendant's commission of a separate assault and battery offense toward the victim, defendant was convicted of an attempt crime, because defendant's efforts to abduct the victim remained incomplete. Accordingly, defendant was properly convicted of attempted abduction because the incidental detention doctrine did not control. Whiting v. Commonwealth, No. 1449-15-1, 2016 Va. App. LEXIS 292 (Ct. of Appeals Nov. 1, 2016).

Attempt to distribute marijuana. - Where evidence showed: (1) discussions were held on three separate occasions between defendant/seller and juvenile/purchaser regarding when and how much marijuana could be obtained; (2) parties met at a prearranged location for transfer of marijuana; (3) defendant/seller had some marijuana on hand; (4) but a misunderstanding regarding the amount of drugs to be sold prevented consummation of the sale, evidence was sufficient to prove that defendant intended and attempted to distribute marijuana to juvenile for further distribution. Wescoat v. Commonwealth, No. 1256-98-2 (Ct. of Appeals Feb. 15, 2000).

Attempted statutory burglary. - Evidence was sufficient to convict defendant of attempted statutory burglary because the evidence was sufficient to prove that defendant attempted to break into his sister's house with the intent to steal money or items from her house at a time when he needed "a fix" for his drug addiction because: (1) defendant knew his sister was not at home because no one responded to his "banging" on the door; (2) defendant pulled off the screens on some windows, but was unable to open the windows; (3) defendant then beat on the lock on the back door with a shovel; (4) a neighbor informed defendant that his sister was not at home and defendant walked to the front of the house where the neighbor heard more loud noise but did not investigate further; and (5) defendant's sister testified that she had not given defendant permission to enter her house and that he later told her that he did try and break into her house. Perkins v. Commonwealth, No. 1025-03-1, 2004 Va. App. LEXIS 419 (Ct. of Appeals Sept. 7, 2004).

In a prosecution for attempted burglary with the intent to commit larceny, assault and battery, or a felony other than rape, robbery or arson in violation of §§ 18.2-91 and 18.2-26 , there was sufficient evidence that defendant had the specific intent to commit larceny when he broke a window in an attempt to enter a garage. His codefendant's knowledge that the victim stored property there was imputed to defendant. Bourne v. Commonwealth, No. 1017-11-2, 2012 Va. App. LEXIS 171 (Ct. of Appeals May 22, 2012).

In a prosecution for attempted burglary with the intent to commit larceny, assault and battery, or a felony other than rape, robbery or arson in violation of §§ 18.2-91 and 18.2-26 , the evidence was sufficient to support the theory that defendant broke the victim's window in an attempt to enter his garage. The fact finder could conclude that the victim heard the noise of a breaking glass and metallic window frame, which had been intact earlier, and that the fleeing defendant and codefendant had broken the window and frame in an attempt to gain entry to the garage. Bourne v. Commonwealth, No. 1017-11-2, 2012 Va. App. LEXIS 171 (Ct. of Appeals May 22, 2012).

Defendant was properly convicted of attempted statutory burglary with intent to commit assault and battery because, while defendant claimed that he intended to lure the victim outside to fight, his statements and actions supported a finding of an intent to enter the victim's apartment to commit assault and battery inside where he banged on the victim's door over an extended period of time, broke windows, and abruptly left when a police officer approached. Henderson v. Commonwealth,, 2015 Va. App. LEXIS 381 (Dec. 15, 2015).

Attempted escape from a correctional facility. - Defendant's attempted escape from a correctional facility conviction was upheld, as his combined acts of leaving his assigned residential unit and culminating in climbing one of the last three remaining fences within a correctional facility's secured perimeter, amounted to more than mere preparation and were performed in furtherance of the exclusive purpose of escaping the facility, supporting an attempted escape charge; moreover, defendant's statement, when confronted by an official that he was going to see his daughter, showed his specific intent to escape the facility and that he had committed said series of acts aimed at the consummation of that escape. Harvey v. Commonwealth, No. 0712-05-2, 2006 Va. App. LEXIS 256 (Ct of Appeals June 6, 2006).

Because defendant and another inmate specifically focused their combined efforts on reaching and attempting to drive away in a truck, which was crucial to the success of their attempted escape, the evidence was sufficient to find that there was an agreement between them to attempt an escape, in violation of § 53.1-203 ; the fact that there was no evidence of an actual conversation between defendant and the other inmate was not dispositive. Charity v. Commonwealth, 49 Va. App. 581, 643 S.E.2d 503, 2007 Va. App. LEXIS 173 (2007).

Section inapplicable to attempt to commit act of sodomy for money. - The General Assembly, by its amendment of § 18.2-346 to include within its proscription an act of sodomy for money, precluded prosecution of an attempt to commit such act under the general statutory scheme under which attempts to commit felonies are prosecuted. McFadden v. Commonwealth, 3 Va. App. 226, 348 S.E.2d 847 (1986).

Validity of indictment for attempted sodomy. - Where defendant was convicted of taking indecent liberties with a child, an indictment charging defendant with attempted sodomy was not invalid for failure to allege an overt, ineffectual act to commit sodomy since the present statutes contain no language which provides specified punishment for a person "who attempts to commit an offense, and in such attempt does any act toward its commission," as was provided in Section 3888 of the 1887 Code. Howard v. Commonwealth, 221 Va. 904 , 275 S.E.2d 602 (1981).

Attempt to take indecent liberties with child. - Where evidence showed that defendant knew that he was chatting with a 13-year-old girl, who was actually a detective, in an internet chat room, based on the so-called victim's statement telling him her age and that she was in the seventh grade, lived at home, and had little, if any, sexual experience, and that defendant turned on his webcam and exposed himself to the victim, such was sufficient to support his convictions of attempting to take indecent liberties with a child under the age of 14, in violation of §§ 18.2-370 and 18.2-26 . Deecheandia v. Commonwealth, No. 1885-03-2, 2004 Va. App. LEXIS 266 (Ct. of Appeals June 8, 2004).

Attempted rape. - Evidence was sufficient to support a conviction of attempted rape, § 18.2-61 , because a reasonable fact finder could have found that by asking the victim for "a favor," forcing her to the ground from behind, and attempting to remove her pants, defendant was preparing to have nonconsensual sexual intercourse with the victim; because the Commonwealth proved that defendant had the requisite intent, only a slight act in furtherance of the crime was required. Moreover, because, after the victim threw money behind her head, defendant did not get off of her, but instead he remained on top of her, and continued to force her to the ground, a reasonable fact finder could have found these actions to have been overt acts in furtherance of the commission of a rape. Futrell v. Commonwealth, No. 0207-06-1, 2007 Va. App. LEXIS 83 (Ct. of Appeals Mar. 13, 2007).

Defendant's convictions for abduction with intent to defile, in violation of § 18.2-48 , and attempted rape, in violation of §§ 18.2-26 and 18.2-61 were proper because the trial court did not err in finding the facts sufficient to show the abduction or detention was separate and apart from, rather than incidental to, the attempted rape. The evidence showed the detention by deception posed an additional danger to the victim, was accomplished before the attempted rape, and was not intrinsic to or inherent in the separate offense. Smith v. Commonwealth, 56 Va. App. 711, 697 S.E.2d 14, 2010 Va. App. LEXIS 336 (2010).

Defendant's convictions for abduction with intent to defile, in violation of § 18.2-48 , and attempted rape, in violation of §§ 18.2-26 and 18.2-61 , were proper because the jury heard the victim's conflicting accounts and in its role as factfinder, it alone was entitled to judge credibility given the discrepancy and assign her testimony what weight it deemed appropriate. Moreover, the officer's testimony and the victim's own actions corroborated the remainder of the victim's account of the incident; the victim immediately notified her mother and a friend about the incident. Smith v. Commonwealth, 56 Va. App. 711, 697 S.E.2d 14, 2010 Va. App. LEXIS 336 (2010).

Attempted forcible sodomy. - Evidence was sufficient to prove that defendant both intended to penetrate the victim anally with his penis and committed an overt act directed toward the consummation of the crime of forcible anal intercourse and thus, the evidence was sufficient to support defendant's conviction for attempted forcible anal sodomy. Valentin v. Commonwealth,, 2015 Va. App. LEXIS 34 (Feb. 3, 2015).

Attempted possession of a firearm. - Conviction for attempting to knowingly and intentionally possess or transport a firearm after having been convicted of a felony was supported by sufficient evidence where appellant picked out a gun, filled out the paperwork for a background check, and paid for the gun. Appellant's actions went beyond mere preparation and constituted a direct act towards the commission of the crime, and cancellation of the purchase did not negate appellant's criminal culpability. Watkins v. Commonwealth, 62 Va. App. 263, 746 S.E.2d 77, 2013 Va. App. LEXIS 224 (2013).

Attempted arson. - Evidence was sufficient to support defendant's conviction for attempted arson because a rational trier of fact could have found that he committed a direct but ineffectual act in furtherance of setting the victim's house on fire; the facts indicated that defendant deliberately acted in order to create an explosion and start a fire. Davis v. Commonwealth, 65 Va. App. 485, 778 S.E.2d 557, 2015 Va. App. LEXIS 341 (2015).

In breach of contract case in which an insurer moved for summary judgment, evidence was admissible of the insured's criminal conviction for attempting to obtain money under false pretense, in violation of §§ 18.2-26 and 18.2-178 , for filing a fraudulent insurance claim regarding the losses he sustained after his business caught fire; the element of fraudulent intent was necessarily proven by his criminal conviction for fraud. Miller v. Great Am. Ins. Co., 59 F. Supp. 3d 749 (E.D. Va. 2014).

Attempted arson fell within the proscribed offenses in the felony obstruction statute because the language of the obstruction statute, when considered in conjunction with the language of the statute that it incorporated by reference, subsection C of § 17.1-805 , reflected an intention by the legislature to proscribe attempt crimes. Tanner v. Commonwealth, 72 Va. App. 86, 841 S.E.2d 377, 2020 Va. App. LEXIS 131 (2020).

Overt act established. - Appellant's confession and a police officer's testimony supported a conclusion that appellant intentionally grabbed the officer's firearm in an attempt to disarm her; therefore, the trial court was not plainly wrong in rejecting appellant's hypothesis of innocence. Salley v. Commonwealth, No. 1339-18-1, 2019 Va. App. LEXIS 268 (Ct. of Appeals Nov. 19, 2019).

Applied in United States v. Teplin, 775 F.2d 1261 (4th Cir. 1985); Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27, 2004 Va. App. LEXIS 168 (2004); Vasquez v. Commonwealth, 291 Va. 232 , 781 S.E.2d 920, 2016 Va. LEXIS 13 (2016).

CIRCUIT COURT OPINIONS

Attempt to possess cocaine. - Because the question of whether or not defendant attempted to possess cocaine could only be determined from all of the evidence presented at a trial, defendant's pretrial motion to dismiss was denied. Commonwealth v. Sheely, 68 Va. Cir. 245, 2005 Va. Cir. LEXIS 252 (Salem July 8, 2005).

Probable cause. - Circuit court found that the directors of a non-stock corporation attempted to sell memberships on the corporation's board and the corporation itself when there was no evidence that either director possessed even implicit authorization to sell any membership to the corporation. Thus, the court found that there was cause to believe that the directors inferentially possessed an intent to defraud and probable cause to believe that the directors violated several Virginia penal statutes. Dogwood Valley Citizen's Ass'n v. Miller,, 2021 Va. Cir. LEXIS 95 (Greene County Apr. 23, 2021).

§ 18.2-27. Attempts to commit misdemeanors; how punished.

Every person who attempts to commit an offense which is a misdemeanor shall be punishable by the same punishment prescribed for the offense the commission of which was the object of the attempt.

(Code 1950, § 18.1-19; 1960, c. 358; 1972, c. 52; 1975, cc. 14, 15.)

CASE NOTES

Evidence sufficient. - Evidence was sufficient for the trial court to rationally find defendant guilty of attempting to photograph a victim in violation of § 18.2-386.1 because defendant was charged with and convicted of attempting to photograph the victim in violation of §§ 18.2-27 and 18.2-386.1 , not the completed crime; therefore, it was not necessary for the Commonwealth to prove that defendant, in fact, accomplished "directly" photographing the victim in the proscribed manner under the statute or that defendant actually photographed anything. Wilson v. Commonwealth, 53 Va. App. 599, 673 S.E.2d 923, 2009 Va. App. LEXIS 137 (2009).

Attempted petit larceny qualifies as third offense. - Attempted petit larceny conviction qualifies as a felony recidivist third or subsequent offense under § 18.2-104 where the phrase "punished as larceny" flows from the language of § 18.2-27 imposing the same punishment for attempted and completed petit larceny, and there is no material difference between the phrase "punished as larceny" and "punishable as larceny." Coleman v. Commonwealth, No. 0650-17-1, 2018 Va. App. LEXIS 214 (Aug. 7, 2018).

§ 18.2-28. Maximum punishment for attempts.

Any provision in this article notwithstanding, in no event shall the punishment for an attempt to commit an offense exceed the maximum punishment had the offense been committed.

(Code 1950, § 18.1-20; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article on the law of inchoate crimes, see 59 Va. L. Rev. 1235 (1973).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attempts and Solicitations, § 6; 4C M.J. Constitutional Law, § 94; 5B M.J. Criminal Procedure, §§ 11, 79.

§ 18.2-29. Criminal solicitation; penalty.

Any person who commands, entreats, or otherwise attempts to persuade another person to commit a felony other than murder, shall be guilty of a Class 6 felony. Any person age eighteen or older who commands, entreats, or otherwise attempts to persuade another person under age eighteen to commit a felony other than murder, shall be guilty of a Class 5 felony. Any person who commands, entreats, or otherwise attempts to persuade another person to commit a murder is guilty of a felony punishable by confinement in a state correctional facility for a term not less than five years or more than forty years.

(1975, cc. 14, 15; 1994, cc. 364, 440; 2002, cc. 615, 635.)

Editor's note. - Acts 2002, cc. 615 and 635, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 615 and 635 are identical, and inserted "other than murder" following "felony" in the first and second sentences, and added the last sentence.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arson, § 5; 2A M.J. Attempts and Solicitations, §§ 3, 6, 7, 9; 4C M.J. Constitutional Law, § 78; 15 M.J. Rape and Other Sexual Offenses, § 10.

CASE NOTES

This section is designed as a deterrent to a person who, by any means, attempts to persuade another to commit a felony. Huffman v. Commonwealth, 222 Va. 823 , 284 S.E.2d 837 (1981).

Section is not unconstitutionally vague. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Section gives notice that solicitation is felony. - A person of ordinary intelligence is given notice by this section that solicitation to commit any felony is a crime. Persons of ordinary intelligence need not speculate or guess as to the nature of the conduct proscribed by this section. They are properly notified that soliciting another to commit a felony is a crime accorded a specific punishment and encompasses the solicitation of all acts which are defined as felonies. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Section does not unconstitutionally abridge First Amendment right of free speech. The constitutionally guaranteed right of free speech does not extend to statements constituting solicitation to commit a felony in violation of this section. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Defendant's argument that § 18.2-29 , along with § 18.2-361 , is unconstitutional because it deters constitutionally protected conduct, in defendant's case, requesting an act of oral sodomy from an undercover police officer in a public place, had to be rejected, as such speech did not request a legal act, but instead requested an illegal act. Singson v. Commonwealth, 46 Va. App. 724, 621 S.E.2d 682, 2005 Va. App. LEXIS 452 (2005).

Prosecution under statute with more severe penalty held not denial of equal protection. - Defendant's right of equal protection under the Fourteenth Amendment was not denied by being prosecuted under the state statute, on grounds that the penalty for the state crime of solicitation to commit a felony is greater than the federal penalty applicable to the National Park Service nuisance regulation, where he made no assertion or showing that he was invidiously singled out for prosecution under the state solicitation statute. The fact that a federal statute exists, proscribing the same conduct but providing a lesser penalty range than a state statute, does not create an equal protection deprivation where one is prosecuted under the statute allowing a greater penalty. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Prosecution under this section and § 18.2-361 for a crime committed on federal land does not violate the Fourteenth Amendment right of equal protection even though similar conduct is proscribed by federal law and is punishable by lesser penalties. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Statutory scheme did not violate Equal Protection Clause. - The fact that solicitation to commit prostitution, § 18.2-346 , is a misdemeanor and is, therefore, considered a less serious crime than solicitation to commit a felony, which includes solicitation to commit sodomy, does not create an impermissible classification between groups of people similarly situated. Therefore, the court rejected the defendant's claim that the statutory scheme violated the Equal Protection Clause. Branche v. Commonwealth, 25 Va. App. 480, 489 S.E.2d 692 (1997).

No discrimination of one gender where absence of attempts to apprehend other gender. - The police do not intentionally discriminate against one gender by the absence of attempts to detect and apprehend offenders of the other gender, when no evidence is presented that offenders of the other gender are engaged in similar criminal behavior; the defendant offered no evidence that similarly situated females could have been prosecuted but were not. Branche v. Commonwealth, 25 Va. App. 480, 489 S.E.2d 692 (1997).

Double jeopardy not a bar. - Defendant's double jeopardy rights were not violated in a case where defendant pled guilty to solicitation to commit murder in violation of § 18.2-29 and a jury then convicted defendant in a trial of attempted capital murder for hire in violation of subdivision 2 of § 18.2-31 and § 18.2-25 . Double jeopardy did not apply because: (1) defendant's offenses were considered in a single proceeding and, thus, there were not successive prosecutions for the same offense; and (2) solicitation to commit murder and attempted capital murder for hire were not the same offenses and, thus, defendant could be convicted and punished for both offenses since solicitation for murder required that a defendant solicit another person whereas attempted capital murder for hire did not require such proof. Ostrander v. Commonwealth, 51 Va. App. 386, 658 S.E.2d 346, 2008 Va. App. LEXIS 126 (2008).

Section does not conflict with federal regulation. - The regulatory provision of this section and former 36 C.F.R. § 50.26(d), pertaining to nuisances and solicitation for immoral purposes on areas under the jurisdiction of the National Park Service, are not in actual conflict, even though they contain disparate penalty provisions. In fact, such differing penalty provisions exist routinely, and their coexistence has withstood constitutional scrutiny. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Gist of offense is incitement. - It is immaterial whether the solicitation is of any effect and whether the crime solicited is in fact committed; the gist of the offense is incitement. Branche v. Commonwealth, 25 Va. App. 480, 489 S.E.2d 692 (1997).

Criminal solicitation involves the attempt of the accused to incite another to commit a criminal offense; it is immaterial whether the solicitation has any effect and whether the crime solicited is in fact committed. Scott v. Commonwealth, No. 2132-00-1, 2001 Va. App. LEXIS 173 (Ct. of Appeals Apr. 3, 2001).

Criminal solicitation involves the attempt of the accused to incite another to commit a criminal offense; it is immaterial whether the solicitation is of any effect and whether the crime solicited is in fact committed as the gist of the offense is incitement. Jeffers v. Commonwealth, No. 1350-00-1, 2001 Va. App. LEXIS 111 (Ct. of Appeals Mar. 6, 2001).

For crime of solicitation to be completed, it is not necessary that the intended conduct approach the moment of an attempt. Therefore, the offense of solicitation was completed once defendant attempted to persuade the plainclothes investigator to commit oral sodomy. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Entreaty to perform criminal act exceeded mere statement of desire. - A defendant's words and actions were more than an expression of his desire for oral sex and the trial court could have properly concluded that the defendant expressed both a desire and entreaty to induce the victim to allow him to sodomize her where, after his initial suggestion had been rebuffed, he asked, "Are you sure?" and then, in a demanding tone of voice, ordered her to get in his car; the defendant's entire course of conduct underscored his desire for the victim to act upon his entreaty. Jeffers v. Commonwealth, No. 1350-00-1, 2001 Va. App. LEXIS 111 (Ct. of Appeals Mar. 6, 2001).

Solicitation may comprise a course of conduct, intended to induce another to act, that continues over an extended period. Jeffers v. Commonwealth, No. 1350-00-1, 2001 Va. App. LEXIS 111 (Ct. of Appeals Mar. 6, 2001).

Entrapment was no defense in a prosecution for solicitation to commit murder where the intended crime originated in the evil mind of the defendant and police were brought in merely as a means of permitting the original defendant an opportunity to carry out her criminal plan. Huffman v. Commonwealth, 222 Va. 823 , 284 S.E.2d 837 (1981).

Failure to prove defendant spoke with intent to induce act. - Where defendant's statements were no more than the expression of his own desire and did not constitute a command, entreaty or attempt to persuade either student to engage in oral sodomy, and where several minutes after first encounter defendant stated "I'll get you, I'll find you," the trial court was plainly wrong in concluding that the Commonwealth had sustained its burden of proving that defendant spoke to either student with the intent "to induce" either of them to act. Ford v. Commonwealth, 10 Va. App. 224, 391 S.E.2d 603 (1990).

Failure to name victim. - The fact that the defendant did not name or specify the identity of her intended victim when she solicited another to commit murder was no defense in a prosecution under this section. Huffman v. Commonwealth, 222 Va. 823 , 284 S.E.2d 837 (1981).

Solicitation of capital murder for hire. - Defendant asked two people to kill his wife, formulated diagrams of his wife's house, explained when she would be at home, and paid two thousand dollars to the hit man. The evidence was sufficient to convict defendant of attempted capital murder for hire, in violation of §§ 18.2-25 and 18.2-31 , and solicitation of capital murder for hire, in violation of §§ 18.2-29 and 18.2-31 ; the Commonwealth did not err by failing to elect between the charges, because the solicitation and attempt were both parts of a common scheme or plan. Ashford v. Commonwealth, 47 Va. App. 676, 626 S.E.2d 464, 2006 Va. App. LEXIS 70 (2006).

Solicitation to become an accessory before the fact to murder. - Evidence proved that defendant entreated his friend to procure an untraceable gun to be used to kill his ex-wife, and therefore Commonwealth properly characterized wrongful act that defendant solicited as being an accessory before the fact to murder. Santora v. Commonwealth, No. 2962-98-4 (Ct. of Appeals Feb. 22, 2000).

Evidence of telephone calls from person soliciting murder held admissible. - The trial court's decision to admit evidence of telephone calls from a person soliciting the murder of another solely upon the Commonwealth's assurance that it would provide sufficient evidence to create a jury issue as to the identity of the caller was not an abuse of discretion, in view of the long-standing rule in Virginia that the order of proof is within the sound discretion of the trial court, and where there was sufficient circumstantial evidence to create a jury issue. Armes v. Commonwealth, 3 Va. App. 189, 349 S.E.2d 150 (1986).

There is no crime in Virginia of entreat to commit fornication. The word "entreat" is found in this section - Criminal Solicitation. A key element of solicitation is that the substantive crime solicited be a felony; fornication is a misdemeanor. Weatherford v. Commonwealth, No. 1489-90-1 (Ct. of Appeals, March 3, 1992).

Evidence sufficient to convict. - Although defendant's conviction of solicitation to commit a felony was reversed because improper impeachment evidence was admitted, the evidence that she asked another person to commit an arson against a dwelling house was sufficient to support her conviction, and thus the Commonwealth could retry her if it was so inclined. Goodson v. Commonwealth,, 2006 Va. App. LEXIS 515 (Nov. 14, 2006).

Defendant's conviction for solicitation to commit a felony was proper; based on the content of a letter, the trial court could have concluded beyond a reasonable doubt that defendant, a convicted murderer, planned to ask defendant's accomplices to kill the witnesses against defendant. Rodriguez v. Commonwealth,, 2012 Va. App. LEXIS 229 (July 10, 2012).

Evidence was sufficient to support convictions for malicious use of a noxious gas to cause bodily injury and criminal solicitation of another to maliciously use a noxious gas to cause bodily injury where defendant sprayed a security officer in the face and encouraged her companion to do the same; testimony concerning the physical composition of pepper spray did not establish that the substance at issue was a liquid, rather than a gas. While the substance might have technically consisted of liquid particles, they were combined with other molecules and released from a canister in a gaseous state through an aerosol spray. Somerville v. Commonwealth, No. 0543-14-2, 2015 Va. App. LEXIS 45 (Feb. 10, 2015).

Writ of actual innocence denied. - Defendant in a petition for a writ of actual innocence pursuant to §§ 19.2-327.10 and 19.2-327.11 did not ask the appellate court to consider any newly discovered evidence that was not available at the time of defendant's trial, but only advanced an argument that the legal holdings of Lawrence and Toghill should be applied to the facts of his case; accordingly, summary dismissal of defendant's petition was appropriate because review was allowed solely on previously unknown or unavailable non-biological evidence. Waller v. Commonwealth, 70 Va. App. 772, 833 S.E.2d 484, 2019 Va. App. LEXIS 230 (2019).

CIRCUIT COURT OPINIONS

Probable cause. - Circuit court found that the directors of a non-stock corporation attempted to sell memberships on the corporation's board and the corporation itself when there was no evidence that either director possessed even implicit authorization to sell any membership to the corporation. Thus, the court found that there was cause to believe that the directors inferentially possessed an intent to defraud and probable cause to believe that the directors violated several Virginia penal statutes. Dogwood Valley Citizen's Ass'n v. Miller,, 2021 Va. Cir. LEXIS 95 (Greene County Apr. 23, 2021).

Chapter 4. Crimes Against the Person.

Homicide.

Crimes by Mobs.

Crimes by Gangs.

Terrorism Offenses.

Kidnapping and Related Offenses.

Assaults and Bodily Woundings.

Robbery.

Extortion and Other Threats.

Criminal Sexual Assault.

Seduction.

Abortion.

Article 1. Homicide.

§ 18.2-30. Murder and manslaughter declared felonies.

Any person who commits aggravated murder, murder of the first degree, murder of the second degree, voluntary manslaughter, or involuntary manslaughter, is guilty of a felony.

(1975, cc. 14, 15; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - For definition of "barrier crime" as including a conviction of murder or manslaughter as set out in § 18.2-30 et seq., or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including murder or manslaughter as set out in § 18.2-30 et seq., or an equivalent offense in another state, see § 63.2-1726 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "aggravated murder" for "capital murder" and "is guilty" for "shall be guilty."

CASE NOTES

Evidence of telephone calls from person soliciting murder held admissible. - The trial court's decision to admit evidence of telephone calls from a person soliciting the murder of another solely upon the Commonwealth's assurance that it would provide sufficient evidence to create a jury issue as to the identity of the caller was not an abuse of discretion, in view of the long-standing rule in Virginia that the order of proof is within the sound discretion of the trial court, and where there was sufficient circumstantial evidence to create a jury issue. Armes v. Commonwealth, 3 Va. App. 189, 349 S.E.2d 150 (1986).

Jury instruction on justifiable homicide refused. - Defendant, convicted of multiple charges that included a conviction as a principal in the first degree for second-degree murder, in violation of §§ 18.2-30 and 18.2-32 , was not entitled to an instruction on theory of justifiable homicide, as defendant was not totally free from fault, where defendant admitted that approaching defendant's adversary and threatening him; in addition, defendant was not entitled to a voluntary manslaughter instruction, as the evidence did not support defendant's argument that defendant shot in the heat of passion and without reflection, where defendant's statement to the police reflected deliberation and intent, rather than the heat of passion, and there was a reasonable opportunity to cool. Martin v. Commonwealth, No. 0470-02-1, 2003 Va. App. LEXIS 205 (Ct. of Appeals Apr. 8, 2003).

Applied in Jenkins v. Commonwealth, 220 Va. 104 , 255 S.E.2d 504 (1979).

§ 18.2-31. Aggravated murder defined; punishment.

  1. The following offenses shall constitute aggravated murder, punishable as a Class 1 felony:
    1. The willful, deliberate, and premeditated killing of any person in the commission of abduction, as defined in § 18.2-48 , when such abduction was committed with the intent to extort money or a pecuniary benefit or with the intent to defile the victim of such abduction;
    2. The willful, deliberate, and premeditated killing of any person by another for hire;
    3. The willful, deliberate, and premeditated killing of any person by a prisoner confined in a state or local correctional facility as defined in § 53.1-1 , or while in the custody of an employee thereof;
    4. The willful, deliberate, and premeditated killing of any person in the commission of robbery or attempted robbery;
    5. The willful, deliberate, and premeditated killing of any person in the commission of, or subsequent to, rape or attempted rape, forcible sodomy, or attempted forcible sodomy or object sexual penetration;
    6. The willful, deliberate, and premeditated killing of a law-enforcement officer as defined in § 9.1-101 , a fire marshal appointed pursuant to § 27-30 or a deputy or an assistant fire marshal appointed pursuant to § 27-36 , when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§ 27-34.2 and 27-34.2:1 , an auxiliary police officer appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 , an auxiliary deputy sheriff appointed pursuant to § 15.2-1603 , or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States, when such killing is for the purpose of interfering with the performance of his official duties;
    7. The willful, deliberate, and premeditated killing of more than one person as a part of the same act or transaction;
    8. The willful, deliberate, and premeditated killing of more than one person within a three-year period;
    9. The willful, deliberate, and premeditated killing of any person in the commission of or attempted commission of a violation of § 18.2-248 , involving a Schedule I or II controlled substance, when such killing is for the purpose of furthering the commission or attempted commission of such violation;
    10. The willful, deliberate, and premeditated killing of any person by another pursuant to the direction or order of one who is engaged in a continuing criminal enterprise as defined in subsection I of § 18.2-248 ;
    11. The willful, deliberate, and premeditated killing of a pregnant woman by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman's pregnancy without a live birth;
    12. The willful, deliberate, and premeditated killing of a person under the age of 14 by a person age 21 or older;
    13. The willful, deliberate, and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in § 18.2-46.4 ;
    14. The willful, deliberate, and premeditated killing of a justice of the Supreme Court, a judge of the Court of Appeals, a judge of a circuit court or district court, a retired judge sitting by designation or under temporary recall, or a substitute judge appointed under § 16.1-69.9:1 when the killing is for the purpose of interfering with his official duties as a judge; and
    15. The willful, deliberate, and premeditated killing of any witness in a criminal case after a subpoena has been issued for such witness by the court, the clerk, or an attorney, when the killing is for the purpose of interfering with the person's duties in such case.
  2. For a violation of subdivision A 6 where the offender was 18 years of age or older at the time of the offense, the punishment shall be no less than a mandatory minimum term of confinement for life.
  3. If any one or more subsections, sentences, or parts of this section shall be judged unconstitutional or invalid, such adjudication shall not affect, impair, or invalidate the remaining provisions thereof but shall be confined in its operation to the specific provisions so held unconstitutional or invalid.

    (Code 1950, §§ 18.1-21, 53-291; 1960, c. 358; 1962, c. 42; 1966, c. 300; 1970, c. 648; 1973, c. 403; 1975, cc. 14, 15; 1976, c. 503; 1977, c. 478; 1979, c. 582; 1980, c. 221; 1981, c. 607; 1982, c. 636; 1983, c. 175; 1985, c. 428; 1988, c. 550; 1989, c. 527; 1990, c. 746; 1991, c. 232; 1995, c. 340; 1996, cc. 876, 959; 1997, cc. 235, 313, 514, 709; 1998, c. 887; 2002, cc. 588, 623; 2007, cc. 844, 845, 846; 2010, cc. 399, 428, 475; 2019, cc. 717, 835; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1995 amendment, in subdivision 5, deleted "or" following "attempted rape" and added "or object sexual penetration."

The 1996 amendments. - The 1996 amendment by c. 876 inserted "or with the intent to defile the victim of such abduction" following "or a pecuniary benefit" in subdivision 1, inserted "and" at the end of subdivision 7, redesignated former subdivision 9 as present subdivision 8 and deleted former subdivision 8, which read: "The willful, deliberate, and premeditated killing of a child under the age of twelve years in the commission of abduction as defined in § 18.2-48 when such abduction was committed with the intent to extort money or a pecuniary benefit, or with the intent to defile the victim of such abduction; and."

The 1996 amendment by c. 959 inserted "or with the intent to defile the victim of such abduction" following "or a pecuniary benefit" in subdivision 1, deleted "while armed with a deadly weapon" following "in the commission of robbery or attempted robbery" in subdivision 4 and rewrote subdivision 8 which formerly read: "The willful, deliberate, and premeditated killing of a child under the age of twelve years in the commission of abduction as defined in § 18.2-48 when such abduction was committed with the intent to extort money or a pecuniary benefit, or with the intent to defile the victim of such abduction; and."

The 1997 amendments. - The 1997 amendments by cc. 235 and 514 are identical, and inserted "or any law-enforcement officer of another state or the United States having the power to arrest for a felony under the laws of such state or the United States" in subdivision 6.

The 1997 amendment by c. 313 deleted "and" following "within a three-year period" in subdivision 8, inserted "and" following "attempted commission of such violation" in subdivision 9, and added subdivision 10.

The 1997 amendment by c. 709 added subdivision 11.

The 1998 amendment, in subdivision 10, deleted "and" from the end of the subdivision; in subdivision 11, added "and" to the end of the subdivision and added subdivision 12.

The 2002 amendments. - The 2002 amendment by cc. 588 and 623 are identical, and deleted "and" from the end of subdivision 11; at the end of subdivision 12, substituted a semicolon for a period and added "and"; and added subdivision 13.

The 2007 amendments. - The 2007 amendment by c. 844 added subdivision 14 [now subdivision 15], and made related changes.

The 2007 amendment by c. 845 added subdivision 14.

The 2007 amendment by c. 846 added subdivisions 14 and 15, which were nearly identical to the subdivisions added by cc. 844 and 845. Subdivision 15 has been set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 399 inserted "a fire marshal appointed pursuant to § 27-30 or a deputy or an assistant fire marshal appointed pursuant to § 27-36 , when such fire marshal or deputy or assistant fire marshal has police powers as set forth in §§ 27-34.2 and 27-34.2:1 " in subdivision 6.

The 2010 amendments by cc. 428 and 475 are identical, and inserted "an auxiliary police officer appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 , an auxiliary deputy sheriff appointed pursuant to § 15.2-1603 " in subdivision 6.

The 2019 amendments. - The 2019 amendments by cc. 717 and 835 are identical, and added the designation for subsection A; added subsection B; added the designation for subsection C; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "aggravated murder" for "capital murder" in the introductory language of subsection A.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For comment on the constitutional parameters for capital punishment, see 11 U. Rich. L. Rev. 101 (1976). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For survey of Virginia criminal law for the year 1976-1977, see 63 Va. L. Rev. 1396 (1977). For article, "Psychiatry and the Death Penalty: Emerging Problems in Virginia," see 66 Va. L. Rev. 167 (1980). For comment discussing possible effects on Virginia's death penalty of recent United States Supreme Court decisions, see 15 U. Rich. L. Rev. 951 (1981). For note on premeditation, see 40 Wash. & Lee L. Rev. 341 (1983). For comment on Virginia's death penalty, see 17 U. Rich. L. Rev. 603 (1983). For article, "Virginia's Capital Murder Sentencing Proceeding: A Defense Perspective," see 18 U. Rich. L. Rev. 341 (1984). For comment on multiple murder, multiple punishment and double jeopardy in Virginia, see 9 G.M.U. L. Rev. 107 (1986).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For note, "Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application," see 41 Wm. & Mary L. Rev. 1845 (2000).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For article, "Virginia's Capital Jurors," 44 Wm. & Mary L. Rev. 2063 (2003).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For article, "The Death Penalty as Incapacitation," see 104 Va. L. Rev. 1124 (2018).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, §§ 5, 11; 2B M.J. Automobiles, § 122; 2C M.J. Autrefois, Acquit and Convict, §§ 2, 18, 21; 4C M.J. Constitutional Law, §§ 128, 141; 5B M.J. Criminal Procedure, §§ 26, 70, 80, 87; 9B M.J. Homicide, §§ 10, 17, 20, 26, 54, 63, 101, 132.1.

CASE NOTES

I. IN GENERAL.

Constitutionality. - Virginia's capital murder statutes are not unconstitutional. Clark v. Commonwealth, 220 Va. 201 , 257 S.E.2d 784 (1979), cert. denied, 444 U.S. 1049, 100 S. Ct. 741, 62 L. Ed. 2d 736 (1980); Pope v. Commonwealth, 234 Va. 114 , 360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 716 (1988).

Section is constitutional under U.S. Const., Amends. V and XIV, and Va. Const., Art. I, § 2. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

The capital murder statutes are not unconstitutional. Edmonds v. Commonwealth, 229 Va. 303 , 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S. Ct. 339, 88 L. Ed. 2d 324 (1985).

The Virginia Capital Murder Statute is constitutional. Poyner v. Commonwealth, 229 Va. 401 , 329 S.E.2d 815, cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 158 (1985), , 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 178 (1985), 506 U.S. 958, 113 S. Ct. 419, 121 L. Ed. 2d 342 (1992).

The death sentence is not unconstitutional on grounds that it is cruel and unusual. Beaver v. Commonwealth, 232 Va. 521 , 352 S.E.2d 342, cert. denied, 483 U.S. 1033, 107 S. Ct. 3277, 97 L. Ed. 2d 781 (1987).

Where the evidence showed that two murders were committed at the same location, about the same time, and under the same circumstances, defendant, given his conduct, reasonably should have been on notice that this section applied to his actions when it defined capital murder as killing "more than one person as a part of the same act or transaction." Thus, this section satisfied the constitutional requirement of definiteness and complied with the standard forbidding arbitrary and erratic law enforcement. Woodfin v. Commonwealth, 236 Va. 89 , 372 S.E.2d 377 (1988), cert. denied, 490 U.S. 1009, 109 S. Ct. 1649, 104 L. Ed. 2d 163 (1989).

Virginia terrorism statutes, subdivision 13 of § 18.2-31 and § 18.2-46.4 were not unconstitutionally overbroad and vague, as claimed by defendant; nothing in the words of the statutes evinced an intent to limit their application to criminal actors with political motives, and the statutes provided notice sufficient for ordinary people to understand what conduct they prohibited, and did not authorize and/or encourage arbitrary and discriminatory enforcement. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Terrorism statutes, subdivision 13 of § 18.2-31 and § 18.2-46.4 , were not unconstitutionally overbroad and vague; by referencing established criminal offenses as acts of violence subject to the statutory scheme, the legislature included offenses with previously defined elements and mens rea requirements. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Subdivision 12 of § 18.2-31 was not unconstitutional because it exposed some murders to the death penalty because there was a rational basis for imposition of the death penalty on persons over the age of 21 who murdered a child, that such persons should have sufficient maturity and judgment to be held responsible for conduct that might be excusable in a younger person; rational basis, not strict scrutiny, was proper standard of review for such a claim. Gray v. Commonwealth, 274 Va. 290 , 645 S.E.2d 448, 2007 Va. LEXIS 94 (2007), cert. denied, 128 S. Ct. 1111, 2008 U.S. LEXIS 1072, 169 L. Ed. 2d 826 (U.S. 2008).

Defendant, who was sentenced under Virginia law to life in prison without parole for capital crimes committed while a juvenile, was entitled to habeas relief because the sentence violated defendant's constitutional right to a proportional sentence in that the trial court did not determine at a hearing whether the circumstances surrounding defendant's actions reflected irreparable corruption on the one hand, or the transient immaturity of youth on the other hand. Malvo v. Mathena, 254 F. Supp. 3d 820, 2017 U.S. Dist. LEXIS 87914 (E.D. Va. 2017), aff'd, 893 F.3d 265 (4th Cir. 2018).

Joinder of capital murder with predicate murder. - In adopting subdivision 8 of § 18.2-31 , making the murder of more than one person within three years a capital offense, the Virginia General Assembly implicitly modified Va. Sup. Ct. Rule 3A:6(b), concerning the joinder of offenses for trial, to the extent that the meaning of the words "connected crimes," i.e. "so intimately connected and blended with the main facts adduced in evidence, that they cannot be departed from with propriety," no longer applied, since, to establish the required connection for a joint trial of offenses under the statute, it is only necessary to show that the capital murder and the predicate murder(s) occurred within three years. Commonwealth v. Smith, 263 Va. 13 , 557 S.E.2d 223, 2002 Va. LEXIS 8 (2002).

A prisoner is not entitled to use habeas corpus to circumvent the trial and appellate processes for an inquiry into an alleged non-jurisdictional defect of a judgment of conviction. Strickler v. Murray, 249 Va. 120 , 452 S.E.2d 648, cert. denied, 516 U.S. 850, 116 S. Ct. 146, 133 L. Ed. 2d 92 (1995).

For case adhering to prior rulings upholding constitutionality of this section, classifying capital offenses, and of §§ 19.2-264.2 to 19.2-264.4, outlining sentencing procedures in capital cases, see Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

Section enacted to conform to decision in Furman v. Georgia. - This section, defining capital murder, was first enacted by the General Assembly in 1975 as part of a statutory scheme enacted to eliminate the unbridled choice between the death penalty and a lesser sentence prohibited by Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, reh'g denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

For brief history of first-degree murder statutes and death sanction, see Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Purpose of murder statutes is gradation. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

General Assembly grades murder in order to assign punishment consistent with prevailing societal and legal views of what is appropriate and procedurally fair. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Capital murder statute is not overbroad in failing to distinguish capital from felony murder. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

No intent to eliminate punishment for other offenses included in murder statutes. - The overriding purpose of the murder statutes being gradation, there was no legislative intent to eliminate punishment for other offenses which were included in the murder statutes solely for the purpose of categorizing the murder. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

The legislature did not intend any elimination of underlying sentencing authority for rape and robbery when it modified the murder statutes in 1975, or on any prior occasion. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Commonwealth Attorney may seek death penalty. - State Supreme Court granted the petition for writ of mandamus filed by the Commonwealth Attorney, as the trial court did not have the discretion to prohibit the Commonwealth Attorney from seeking the death penalty; the Commonwealth Attorney was entitled to seek that penalty pursuant to statutory law and the trial court erred by exercising an executive function in determining that the Commonwealth Attorney was prohibited from seeking it in defendant's case where defendant was charged with capital murder pursuant to § 18.2-31 . In re Horan, 271 Va. 258 , 634 S.E.2d 675, 2006 Va. LEXIS 23 (2006).

Bill of particulars not required. - In a capital murder case, defendant failed to establish that the trial court erred by denying his request for a bill of particulars and by convicting him of capital murder based upon the theory that he drowned or suffocated the child victim because the record showed that defendant had notice of the existence of an alternate theory of the case that the victim died from suffocation rather than drowning in time to satisfy any due process right to notice of the precise manner in which he was alleged to have caused the victim's death; and he established no constitutional entitlement to notice of the precise manner in which the Commonwealth alleged that he caused the victim's death. Rams v. Commonwealth, 70 Va. App. 12, 823 S.E.2d 510, 2019 Va. App. LEXIS 45 (2019).

Applied in Briley v. Commonwealth, 221 Va. 532 , 273 S.E.2d 48 (1980); Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981); Whitley v. Commonwealth, 223 Va. 66 , 286 S.E.2d 162 (1982); Coleman v. Commonwealth, 226 Va. 31 , 307 S.E.2d 864 (1983); Wall Distribs., Inc. v. City of Newport News, 228 Va. 358 , 323 S.E.2d 75 (1984); Evans v. Commonwealth, 228 Va. 468 , 323 S.E.2d 114 (1984); Jones v. Commonwealth, 228 Va. 427 , 323 S.E.2d 554 (1984); Bradshaw v. Commonwealth, 228 Va. 484 , 323 S.E.2d 567 (1984); Washington v. Commonwealth, 228 Va. 535 , 323 S.E.2d 577 (1984); Briley v. Bass, 750 F.2d 1238 (4th Cir. 1984); Clanton v. Blair, 619 F. Supp. 1491 (E.D. Va. 1985); Gray v. Commonwealth, 233 Va. 313 , 356 S.E.2d 157 (1987); Harris v. Commonwealth, 8 Va. App. 424, 382 S.E.2d 292 (1989); Mu'Min v. Commonwealth, 239 Va. 433 , 389 S.E.2d 886 (1990); Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990); George v. Commonwealth, 242 Va. 264 , 411 S.E.2d 12 (1991); Stamper v. Muncie, 944 F.2d 170 (4th Cir. 1991); George v. Angelone, 901 F. Supp. 1070 (E.D. Va. 1995); Roach v. Angelone, 176 F.3d 210 (4th Cir. 1999); Williams v. Commonwealth, 30 Va. App. 378, 517 S.E.2d 246 (1999); Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000); Barnabei v. Angelone, 214 F.3d 463, 2000 U.S. App. LEXIS 12183 (4th Cir.); Powell v. Commonwealth, 261 Va. 512 , 552 S.E.2d 344, 2001 Va. LEXIS 86 (2001); Edwards v. Commonwealth, 41 Va. App. 752, 589 S.E.2d 444, 2003 Va. App. LEXIS 637 (2003); Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

II. ELEMENTS.

Generally, only immediate perpetrator may be convicted. - Except in the case of murder for hire, only the immediate perpetrator of a homicide, the one who fired the fatal shot, and not an accessory before the fact or a principal in the second degree, may be convicted of capital murder under the provisions of this section, as qualified by § 18.2-18 . Coppola v. Commonwealth, 220 Va. 243 , 257 S.E.2d 797 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1069, 62 L. Ed. 2d 788 (1980).

In a prosecution for willful, deliberate and premeditated killing of any person in the commission of robbery while armed with a deadly weapon, only the triggerman can be a principal in the first degree to capital murder. Harrison v. Commonwealth, 220 Va. 188 , 257 S.E.2d 777 (1979).

When the offense constituting the charge of capital murder is the willful, deliberate and premeditated killing of a person in the commission of robbery while armed with a deadly weapon, only the actual perpetrator of the crime may be convicted of capital murder. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

A defendant who was found not to be the "triggerman" in the willful, deliberate and premeditated killing of a person in the commission of robbery while armed with a deadly weapon, could not be convicted of capital murder under this section, but could be convicted of first-degree murder punishable as a Class 2 felony. Harrison v. Commonwealth, 220 Va. 188 , 257 S.E.2d 777 (1979).

Under the "triggerman" rule, only the actual perpetrator of a crime delineated in this section may be convicted of capital murder and subjected to the penalty of execution, except in the case of murder for hire. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

And instruction to contrary is reversible error. - Harmful, reversible error occurred in a capital murder prosecution when the trial court instructed the jury in such a manner that the jury could have believed that it could convict the defendant of capital murder though it was unable to determine who fired the fatal shots or if it determined that the defendant's brother fired the fatal shots; the error was compounded when the Commonwealth was permitted to argue to the jury that it could convict the defendant regardless of who pulled the trigger. Johnson v. Commonwealth, 220 Va. 146 , 255 S.E.2d 525 (1979), cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Triggerman instruction not required. - The trial court was not required to instruct the jury on the Commonwealth's burden to prove beyond a reasonable doubt that defendant was the triggerman or principal in the first degree, where defendant's defense was that he was not at the scene of the murder, while the Commonwealth's evidence was that defendant and co-defendant acted jointly to murder the victim. Hash v. Commonwealth, No. 1290-01-4, 2002 Va. App. LEXIS 541 (Ct. of Appeals Sept. 3, 2002).

Defendant need not be triggerman in both murders under subdivision 8. - Subdivision 8 requires proof only that the defendant was the triggerman in the principal murder charged and that he was at least an accomplice in the murder of an additional person or persons within a three-year period; the Commonwealth is not required to prove that the defendant was the triggerman in both murders. Burlile v. Commonwealth, 32 Va. App. 796, 531 S.E.2d 26, 2000 Va. App. LEXIS 532 (2000), aff'd, 261 Va. 501 , 544 S.E.2d 360 (2001).

One who is present, aiding and abetting actual murder, but who does not actually fire fatal shot, is a principal in the second degree and may be convicted of no greater offense than first-degree murder. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

When joint participant is "immediate perpetrator." - Where two or more persons take a direct part in inflicting fatal injuries, each joint participant is an "immediate perpetrator" for the purposes of the capital murder statutes. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337 (1991).

Defendant, a prison inmate, was properly convicted of capital murder for participating in the fatal stabbing of another prison inmate; the evidence established that defendant jointly participated in the stabbing and that all the victim's stab wounds contributed to the victim's death. Remington v. Commonwealth, 262 Va. 333 , 551 S.E.2d 620, 2001 Va. LEXIS 107 (2001), cert. denied, 535 U.S. 1062, 122 S. Ct. 1928, 152 L. Ed. 2d 834 (2002).

Proof was sufficient to establish beyond a reasonable doubt that defendant acted as a principal in the first degree, as an immediate perpetrator, in the death of a victim in a shooting; the "sniper theory" advanced by the Commonwealth was supported through expert testimony, the ample evidence of such a methodology, and prior decisions. As an immediate perpetrator of the death of the victim in a murder that qualified as an act of violence under § 19.2-297.1 , defendant was a principal in the first degree in the willful, deliberate, and premeditated killing of a person in the commission of an act of terrorism. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Evidence was sufficient to convict defendant of capital murder for the willful, deliberate, and premeditated killing of the victim in the commission of an act of terrorism as defined in § 18.2-46.4 . Defendant was a principal in the first degree and was a criminal actor in the second degree who gave an order or direction to the shooter, who was firing from inside the trunk of the car defendant was driving, to kill the victim. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Jury instructions given by the trial court accurately conveyed the applicable law, without confusion to the jury, by requiring that defendant be a principal in the first degree for the jury to convict for capital murder. The evidence supported the Commonwealth's theory of a shooter and a spotter and the direction by the spotter to shoot at the opportune time. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Instructions, premised on theory that killing was accomplished by sole perpetrator, correctly refused. - Where the weight and dimensions of the 69-pound bloodstained rock, which was introduced in evidence as an exhibit, made it apparent that a single person could not have lifted it and dropped or thrown it while simultaneously holding victim down, and where the bloodstains on coperpetrator's jacket as well as on defendant's clothing further tended to corroborate the Commonwealth's theory that two men had been in the immediate presence of the victim's body when the fatal blows were struck and, hence, had jointly participated in the killing, trial court correctly refused defendant's tendered instructions which were premised upon the theory that the killing was accomplished by a sole perpetrator. Strickler v. Commonwealth, 241 Va. 482 , 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S. Ct. 386, 116 L. Ed. 2d 337 (1991).

Defendant held principal in first degree despite absence of proof defendant was perpetrator. - Evidence was held sufficient to prove defendant, on trial for charges of attempted capital murder by arson, was a principal in the first degree, despite absence of proof that defendant was the perpetrator who lit the fire, rather than his accomplice. Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301 (1991).

Sufficient evidence to convict defendant of attempted capital murder for hire. - Defendant asked two people to kill his wife, formulated diagrams of his wife's house, explained when she would be at home, and paid two thousand dollars to the hit man. The evidence was sufficient to convict defendant of attempted capital murder for hire, in violation of §§ 18.2-25 and 18.2-31 , and solicitation of capital murder for hire, in violation of §§ 18.2-29 and 18.2-31 ; the Commonwealth did not err by failing to elect between the charges, because the solicitation and attempt were both parts of a common scheme or plan. Ashford v. Commonwealth, 47 Va. App. 676, 626 S.E.2d 464, 2006 Va. App. LEXIS 70 (2006).

Sufficient evidence of attempted capital murder of officer. - Sufficient evidence supported defendant's conviction under §§ 18.2-25 and 18.2-31(6) of attempted capital murder of a police officer because the specific intent required for the crime could be inferred by defendant veering the defendant's automobile from the defendant's path of travel directly toward a second police officer, resulting in defendant striking the second officer at about 40 to 50 mph, knocking the second officer to the ground, and running over the officer's foot. Piggott v. Commonwealth, No. 1797-07-1,, 2008 Va. App. LEXIS 432 (Ct. of Appeals Sept. 23, 2008).

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Neither premeditation nor an intent to kill is an element of felony murder; only malice is required. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

Willfulness, deliberation, and premeditation are jury questions. - The question whether a defendant is guilty of a willful, deliberate, and premeditated killing of the victim is usually a question for the jury to determine from all the facts and circumstances. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

Factors considered as to willfulness, deliberation, and premeditation. - In deciding the question of whether the killing was willful, deliberate, and premeditated, the jury properly may consider the brutality of the attack, whether more than one blow was struck, the disparity in size and strength between the accused and the victim, the concealment of the victim's body, and the defendant's efforts to avoid detection. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

Where witness testified that defendant in a robbery-murder prosecution had had problems with the victim before and that defendant had a motive to kill the victim, witness's testimony was crucial in the Commonwealth's proof that the killing was "willful, deliberate, and premeditated." Ortega v. Commonwealth, No. 0713-94-2 (Ct. of Appeals Jan. 30, 1996).

A capital murder instruction that did not refer to specific intent and required proof only that the attempted killing was "willful, deliberate and premeditated" was insufficient; the inclusion of language in a later instruction defining "willful, deliberate and premeditated" as "a specific intent to kill" was likewise insufficient to compensate for the absence of intent language from the earlier instruction. Herbert v. Commonwealth, No. 0888-00-4, 2001 Va. App. LEXIS 184 (Ct. of Appeals Apr. 10, 2001).

Intention to kill need not exist for any specified length of time prior to the actual killing. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985).

Evidence showed that defendant committed the underlying offense of robbery while armed with a deadly weapon where, although when the robbery began defendant was unarmed, he rendered victim helpless by physical force, then took from his person what items of value could be found, and subsequently, after the beating and stabbing of the victim with knife removed from his car, defendant and his accomplices fled the scene in the car they had earlier commandeered, as only at this point was the taking of the car consummated and the robbery completed, so that defendant was clearly armed with the knife during the commission of a portion of the robbery. Correll v. Commonwealth, 232 Va. 454 , 352 S.E.2d 352, cert. denied, 482 U.S. 931, 107 S. Ct. 3219, 96 L. Ed. 2d 705 (1987).

Whether killing was accidental or intentional and premeditated is a question of fact and, absent eyewitness testimony or a voluntary confession, that question necessarily turns upon the import of circumstantial evidence. Edmonds v. Commonwealth, 229 Va. 303 , 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S. Ct. 339, 88 L. Ed. 2d 324 (1985).

To establish premeditation, the intention to kill need only exist for a moment. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

A design to kill may be formed only a moment before the fatal act is committed, provided the accused had time to think and did intend to kill. Clozza v. Commonwealth, 228 Va. 124 , 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1233, 84 L. Ed. 2d 370 (1985); Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988), cert. denied, 499 U.S. 913, 111 S. Ct. 1123, 113 L. Ed. 2d 231 (1991).

The question of premeditation is usually one for determination by the trier of fact from all the facts and circumstances of the case. Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988).

Intent to interfere with officer's performance of duties. - Sufficient evidence showed defendant's intent to interfere with a victim's performance of official duties because (1) the uniformed victim was in a marked cruiser with emergency lights activated, and (2) the only reasonable explanation for the victim pulling over was to assist defendant on the roadside, an act within the victim's official duties. Brown v. Commonwealth, 68 Va. App. 746, 813 S.E.2d 557, 2018 Va. App. LEXIS 140 (2018).

Double jeopardy not a bar. - Defendant's double jeopardy rights were not violated in a case where defendant pled guilty to solicitation to commit murder in violation of § 18.2-29 and a jury then convicted defendant in a trial of attempted capital murder for hire in violation of subdivision 2 of § 18.2-31 and § 18.2-25 . Double jeopardy did not apply because: (1) defendant's offenses were considered in a single proceeding and, thus, there were not successive prosecutions for the same offense; and (2) solicitation to commit murder and attempted capital murder for hire were not the same offenses and, thus, defendant could be convicted and punished for both offenses since solicitation for murder required that a defendant solicit another person whereas attempted capital murder for hire did not require such proof. Ostrander v. Commonwealth, 51 Va. App. 386, 658 S.E.2d 346, 2008 Va. App. LEXIS 126 (2008).

Court of Appeals properly found that two of defendant's three separate punishments for murder did not violate the Double Jeopardy Clause of the Fifth Amendment because defendant was not put in jeopardy "twice" for the "same offence" where he killed two victims at two different times in two different places, which constituted two different criminal acts, there was no temporal restriction mandating that the first of the two murders was a predicate murder and only the second was a capital murder, defendant conceded that the Commonwealth could charge separate murders separately, and it necessarily followed that each charge could result in a separate conviction under the statute at issue. Severance v. Commonwealth, 295 Va. 564 , 816 S.E.2d 277, 2018 Va. LEXIS 94 (2018).

III. UNDERLYING FELONY.
A. ROBBERY.

This section does not require proof that a defendant charged with murder during the commission of a robbery or a rape was a principal in the first degree to the crimes of robbery or rape. It is only necessary that the Commonwealth prove that the defendant was the triggerman in the murder and an accomplice in the robbery or rape to convict him of capital murder. Briley v. Commonwealth, 221 Va. 563 , 273 S.E.2d 57 (1980).

When robbery involved, all elements to convict of first-degree murder must be established. - To convict of capital murder under subsection (d) (now subdivision 4) of this section, the Commonwealth must establish all the elements necessary to convict of first-degree murder, i.e., that the killing was willful, deliberate and premeditated and, in addition, all the elements necessary to convict of an armed robbery. Johnson v. Commonwealth, 221 Va. 736 , 273 S.E.2d 784, cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Murder in an attempted robbery violates § 18.2-32 , but not this section, the capital-murder statute. Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981).

Murder in the commission of a robbery is a killing which takes place before, during, or after the robbery and is so closely related thereto in time, place, and causal connection as to make the killing part of the same criminal enterprise as the robbery; under Virginia law, the robbery must have been one of the motivating factors for the killing. George v. Angelone, 100 F.3d 353 (4th Cir. 1996), cert. denied, 519 U.S. 1103, 117 S. Ct. 854, 136 L. Ed. 2d 829 (1997).

To support a capital murder conviction under subdivision 4, the Commonwealth is not required to prove the robbery was a motivating factor for the homicide that was committed; rather, it is sufficient if the killing and robbery were interdependent objects of a common criminal design. Winckler v. Commonwealth, 32 Va. App. 836, 531 S.E.2d 45, 2000 Va. App. LEXIS 526 (2000).

Subsections (d) and (e) (now subdivisions 4 and 5) expand the definition of capital murder to include the "willful, deliberate and premeditated killing" of any person "in the commission of, or subsequent to, rape," and "in the commission of robbery while armed with a deadly weapon." Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Evidence showed that defendant committed the underlying offense of robbery while armed with a deadly weapon where, although when the robbery began defendant was unarmed, he rendered victim helpless by physical force, then took from his person what items of value could be found, and subsequently, after the beating and stabbing of the victim with knife removed from his car, defendant and his accomplices fled the scene in the car they had earlier commandeered, as only at this point was the taking of the car consummated and the robbery completed, so that defendant was clearly armed with the knife during the commission of a portion of the robbery. Correll v. Commonwealth, 232 Va. 454 , 352 S.E.2d 352, cert. denied, 482 U.S. 931, 107 S. Ct. 3219, 96 L. Ed. 2d 705 (1987).

"During the commission of." - For case where evidence was held sufficient to establish a murder during the commission of a robbery, see Bunch v. Thompson, 949 F.2d 1354 (4th Cir. 1991), cert. denied, 505 U.S. 1230, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992).

In Virginia, conviction of capital murder during the commission of a robbery was sufficient by itself to support defendant's death sentence, pursuant to § 18.2-31(4). Hedrick v. True,, 2004 U.S. Dist. LEXIS 4600 (W.D. Va. Mar. 23, 2004), aff'd, 443 F.3d 342 (4th Cir. 2006).

Sufficient nexus between predicate offenses and murders. - A sufficient nexus was present between the defendant's murder of three victims and the related offenses of robbery and rape where, although the defendant may not have entered the house where the crimes occurred with the specific intent to kill all three victims and to rob all three and rape one of them, and while the victims perhaps may not have technically died simultaneously with the commission of a robbery or rape, they were in fact raped and robbed as part of the same criminal enterprise which surrounded the murders. Beck v. Angelone, 113 F. Supp. 2d 941, 2000 U.S. Dist. LEXIS 14194 (E.D. Va. 2000).

Both robbery and deliberate, premeditated killing required under subsection (d) (now subdivision 4). - Subsection (d) (now subdivision 4) of this section limits capital murder; murder committed in the course of a robbery, standing alone, is not capital murder; nor is murder committed with deliberation and premeditation standing alone capital murder. Rather, capital murder is an appropriate finding only while both an ongoing robbery with a deadly weapon and a premeditated murder are present simultaneously, only where the defendant while engaged in the robbery with the use of a deadly weapon has killed willfully, with premeditation, and with deliberation. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

Robbery need not be the sole motive to sustain a charge of capital murder during the commission of a robbery. To prove a defendant guilty, the prosecution must show that the murder and the robbery were interdependent objects of a common criminal design. Savino v. Murray, 82 F.3d 593 (4th Cir.), cert. denied, 518 U.S. 1036, 117 S. Ct. 1, 135 L. Ed. 2d 1098 (1996); Winckler v. Commonwealth, 32 Va. App. 836, 531 S.E.2d 45, 2000 Va. App. LEXIS 526 (2000).

Where killing and taking of property are so closely related in time, place, and causal connection as to make them parts of the same criminal enterprise, the predicates for capital murder under subsection (d) (now subdivision 4) are established. Further, these relationships need not necessarily be jury questions. They may, in a proper case, be determined as a matter of law. Pope v. Commonwealth, 234 Va. 114 , 360 S.E.2d 352 (1987).

The fact that stealing occurs after a killing does not prove that the decision to steal was an afterthought and that the two crimes were unrelated so as to preclude a conviction for capital murder. Beck v. Angelone, 113 F. Supp. 2d 941, 2000 U.S. Dist. LEXIS 14194 (E.D. Va. 2000).

Possession of property as proof of single criminal enterprise. - The defendant's possession of some fruit of the robbery may show conclusively that the violence against the victim and the trespass to his property were so closely related in time, place and causal connection as to make the killing, as a matter of law, a part of the same criminal enterprise as the robbery. Winckler v. Commonwealth, 32 Va. App. 836, 531 S.E.2d 45, 2000 Va. App. LEXIS 526 (2000).

Distinction between crimes in subsection (d) (now subdivision 4) of this section and § 18.2-32 is plain: To be found guilty of capital murder, a defendant must be proved, beyond a reasonable doubt, not only to have killed during the commission of a robbery, but to have killed willfully, deliberately, and with premeditation and while armed with a deadly weapon. The defendant found guilty of first degree murder is the defendant who killed during the course of a robbery, but did not kill with willfulness, deliberation, and premeditation. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

Capital murder in commission of robbery without being principal in first degree. - Under this section, a defendant may be convicted of capital murder in the commission of a robbery without being a principal in the first degree to the crime of robbery. The Commonwealth need only prove that the defendant actually committed the murder and was an accomplice in the robbery. Watkins v. Commonwealth, 229 Va. 469 , 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S. Ct. 1503, 89 L. Ed. 2d 903 (1986).

Corpus delicti held adequately established both as to robbery and cause of death. - Williams v. Commonwealth, 234 Va. 168 , 360 S.E.2d 361 (1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988).

For case dealing with the mandatory death penalty for the killing by an inmate of an employee or other person in a penal institution under a provision contained in provisions of former § 53-291 and subsequently incorporated into § 18.2-10 , see notes under § 18.2-10 .

B. RAPE.

Sequence of rape and murder not dispositive. - A defendant was properly convicted of capital murder under subdivision 5 where the sequence of events were sufficient to establish that the rape of the victim and the murder of the victim were interconnected as part of the same criminal enterprise; it was not necessary for the Commonwealth to show that the rape occurred before the murder. Beck v. Angelone, 113 F. Supp. 2d 941, 2000 U.S. Dist. LEXIS 14194 (E.D. Va. 2000).

Defense of consent not advanced by not guilty plea. - In a prosecution for capital murder following rape, the defense of consent is not advanced solely by a plea of not guilty. That plea could be grounded upon the defendant's belief that the Commonwealth is unable to prove identification, opportunity, or the physical elements of carnal knowledge. The defense of consent can be "advanced" only by evidence adduced by one of the parties. Whether the evidence is sufficient for that purpose necessarily is a question of law. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Proof of unchaste character of victim in murder following rape case. - Rape is an essential element of the crime of capital murder charged under this section. Thus, where consent is advanced as a defense, the previous unchaste character of the victim may be shown by proof of general reputation. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Testimony of victim's daughter. - In a prosecution for capital murder following rape, the admission of testimony of the victim's daughter which supplemented a testimonial narrative of the sequence of events preceding and following the commission of the crime was not improper. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Evidence sufficient for finding murder following rape. - See Keil v. Commonwealth, 222 Va. 99 , 278 S.E.2d 826 (1981).

Introduction of evidence of three other similar crimes upheld. - In trial in which defendant was convicted of capital murder and rape, introduction of evidence of three other similar crimes would be upheld in view of the similarities between the offenses, particularly the indications of a common modus operandi and the scientific evidence that the defendant was the common criminal agent. Spencer v. Commonwealth, 240 Va. 78 , 393 S.E.2d 609, cert. denied, 498 U.S. 908, 111 S. Ct. 281, 112 L. Ed. 2d 235 (1990).

Double Jeopardy Clause did not bar second trial. - After petitioner's conviction for the capital murder of a murder victim during or subsequent to the rape of the murder victim's sister was reversed, a state court did not unreasonably apply federal law in concluding that the Double Jeopardy Clause of the Fifth Amendment did not bar petitioner's second trial for capital murder during the commission of rape or attempted rape of the murder victim because under Virginia law, a defendant could be prosecuted for multiple violations of § 18.2-31 where there was a single murder victim but different gradation crime victims. Powell v. Kelly, 562 F.3d 656, 2009 U.S. App. LEXIS 7867 (4th Cir. 2009), cert. denied, 2010 U.S. LEXIS 1011 (U.S. 2010).

C. OTHERS.

General Assembly's classification of murder for hire as a capital offense does not deny the accused either due process or equal protection of the law. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Section 18.2-33 and its companion, § 18.2-32 , codify the common-law doctrine of felony-murder, a doctrine developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

The word "purpose" in subsection (f) (now subdivision 6) of this section equates with intent, rather than motive. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

By its clear terms, this section makes purpose a key factor in any prosecution thereunder; the death penalty may be imposed only where the Commonwealth proves beyond a reasonable doubt that the killing of a law-enforcement officer is accompanied by the purpose of interfering with the performance of his official duties and is not unconstitutionally vague. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

The "purpose of interfering" language of subsection (f) (now subdivision 6) of this section does not change the established rule of law that motive is not an essential element of murder, although proof of motive may tend to establish intent in cases of circumstantial evidence. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

A person of ordinary intelligence would also conclude that the term "to defile" is interchangeable with the phrase intent to "sexually molest." Swisher v. Commonwealth, 256 Va. 471 , 506 S.E.2d 763 (1998), cert. denied, 528 U.S. 812, 120 S. Ct. 46, 145 L. Ed. 2d 41 (1999).

The Commonwealth must prove that the accused was a convict at the time of the homicide in order to convict him of the murder of a guard under this section. Brown v. Commonwealth, 132 Va. 606 , 111 S.E. 112 (1922).

Although victim killed elsewhere, hiring of killer in Virginia sufficient. - It was without consequence that the defendant intended for the killing to take place in the Philippines, because the hiring of the killer took place in Virginia and that was sufficient to violate this section. United States v. Morin, 80 F.3d 124 (4th Cir. 1996).

Defendant need not be principal in first degree in each murder. - Subdivision 8 of this section does not require proof that a defendant charged with capital murder in the premeditated killing of more than one person within a three-year period was a principal in the first degree in each murder referenced in the indictment; the jury need be instructed only that they must find the defendant was a principal in the first degree, or triggerman, in the principal murder charged, and that he was at least an accomplice in the murder of one or more persons other than the victim within a three-year period. Burlile v. Commonwealth, 261 Va. 501 , 544 S.E.2d 360, 2001 Va. LEXIS 56 (2001).

What constitutes "armed with a deadly weapon." - A person is criminally armed with a deadly weapon from the moment he seizes a weapon with intent to use it for a criminal purpose. Quintana v. Commonwealth, 224 Va. 127 , 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L. Ed. 2d 501, rehearing denied, 461 U.S. 940, 103 S. Ct. 2113, 77 L. Ed. 2d 316 (1983).

Evidence insufficient that defendant intended to murder officers. - Where from the Commonwealth's evidence, it was just as likely, if not more likely, that defendant attempted to avoid police apprehension by driving toward their cars, indifferent to the consequences in risking a collision, because he believed that he could crash through any vehicle in his way or that the police would move out of his way, which they did, because the Commonwealth presented no direct evidence that defendant in running the road blocks intended to murder the police officers and because its circumstantial evidence did not exclude a reasonable hypothesis of innocence, defendant's convictions for attempted murder under this section were reversed. Haywood v. Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995).

Sufficient evidence of attempt to kill officer. - Evidence of intent to kill a police officer in violation of subdivision 6 held sufficient where the officer testified that after the defendant's companion, who was being pursued by the officer, entered the vehicle that was waiting for him in the back of the alley, the defendant revved the engine and drove toward toward the officer and the officer saw the tires of the vehicle turn completely in his direction and away from the alley exit; and where the defendant's assertion that he only struck the officer with his vehicle while attempting to escape was belied by the evidence that the defendant could have driven from the scene without steering toward the officer or without hitting the retaining wall. Salaam v. Commonwealth, No. 1694-99-2, 2000 Va. App. LEXIS 609 (Ct. of Appeals Aug. 22, 2000).

Because defendant swerved a car toward a police officer rather than driving straight ahead to escape, the evidence was sufficient to prove premeditation and the specific intent to kill; consequently, defendant was properly convicted of violating subdivision 6 of § 18.2-31 and § 18.2-25 . Coles v. Commonwealth, 270 Va. 585 , 621 S.E.2d 109, 2005 Va. LEXIS 88 (2005).

Evidence that defendant operated vehicle that tried to run down police officer. - Although the incident occurred very quickly while the vehicle sped past the officer, brushing up against his leg, and while the officer was firing three rounds into the vehicle, the officer's identification of the defendant was not inherently incredible; the officer had an unobstructed view of the defendant as he drove past him in the vehicle, the officer positively identified the defendant as the driver and testified that only two people were in the vehicle, neither that officer nor another officer saw a third person occupying the vehicle or flee from the vehicle after it crashed, as the defendant claimed, and the defendant was irrefutably an occupant of the vehicle. Salaam v. Commonwealth, No. 1694-99-2, 2000 Va. App. LEXIS 609 (Ct. of Appeals Aug. 22, 2000).

Sufficient evidence of abduction for pecuniary benefit. - Where transporting of murder victim from robbery scene was a detention separate and apart from, and not merely incidental to, the robbery, and was greater than the restraint intrinsic in a robbery, and further, the evidence clearly supported a finding that the abduction was committed to protect the fruits of the robbery and to escape an arrest, the evidence supported the charge of an abduction with the intent to extort a pecuniary benefit. Cardwell v. Commonwealth, 248 Va. 501 , 450 S.E.2d 146 (1994), cert. denied, 514 U.S. 1097, 115 S. Ct. 1826, 131 L. Ed. 2d 747 (1995).

Single indictment under subsection (g) (now subdivision 7) will support only one conviction and sentence. - When a defendant is charged under only one indictment for capital murder in violation of subsection (g) (now subdivision 7), he cannot be sentenced to two life sentences on that one indictment. Whether the indictment charges one offense or two, the result is the same. If only one offense is charged, the indictment can support only one conviction and sentence; but even if two offenses are charged, because they are contained in a single count, only one conviction and one sentence are permissible. Morris v. Commonwealth, 228 Va. 206 , 321 S.E.2d 633 (1984).

Single trial for two murders if committed within three years not contradicted by federal law. - Certificate of appealability was granted under 28 U.S.C.S. § 2253 on the habeas petitioner's claim that the Sixth Amendment right to effective assistance of counsel was violated when counsel did not challenge a single trial for two murders under subdivision 8 of § 18.2-31 , but on the merits the district court's dismissal of that claim was affirmed because the Supreme Court of Virginia had held that two murder counts could be joined under subdivision 8 of § 18.2-31 despite any prejudice if the murders occurred within three years and the United States Supreme Court had never addressed the issue; thus, there was no clearly established federal law for the state court to contradict. Walker v. True,, 2003 U.S. App. LEXIS 8557 (4th Cir. May 6, 2003).

Where four people were killed, it was theoretically possible that the defendant could have been convicted of two capital murders since it takes the killing of at least two people as part of the same act or transaction to constitute one capital murder under this section. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

The theoretical limitation on the number of possible capital murder convictions that can be supported by four murders does not control the way in which the Commonwealth can frame indictments, since the Commonwealth is free to indict an individual for as many separate crimes as the Commonwealth, in good faith, thinks it can prove and the Commonwealth is free to charge the commission of a single offense in several different ways in order to meet the contingencies of proof. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

If all four individuals were killed in one act or transaction, defendant could only be convicted of one capital murder but if two individuals were killed as part of one act or transaction and the two others were killed as part of a second, different act or transaction, then defendant could be convicted of two capital murders. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

Burden of proof as to killing of law-enforcement officer. - The burden the statute imposes upon the Commonwealth is the burden of proving that the killing of a law-enforcement officer is accompanied by the purpose of interfering with the performance of his official duties. The crucial inquiry contemplated by the statute is not whether the officer was in fact engaged at the time he was killed in performing a law-enforcement duty but, rather, whether the killer acted with the purpose of interfering with what he perceived to be an officer's performance of a law-enforcement duty. DeLong v. Commonwealth, 234 Va. 357 , 362 S.E.2d 669 (1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1100, 99 L. Ed. 2d 263 (1988).

In a habeas corpus proceeding, evidence was sufficient to establish beyond a reasonable doubt that petitioner killed a police officer for the purpose of interfering with the performance of his official duties, an essential element of capital murder. DeLong v. Thompson, 790 F. Supp. 594 (E.D. Va. 1991), aff'd, 985 F.2d 553 (4th Cir. 1993).

Killing and theft held objects of common criminal design. - Where the jury properly could have found that the theft occurred during or sometime after the first shot was fired but before the victim was submerged in the water where he drowned, and, even if the wallet was taken from the truck after the victim expired, the homicide was a capital offense because the evidence supported the conclusion that the killing and the theft were interdependent objects of a common criminal design. Wise v. Commonwealth, 230 Va. 322 , 337 S.E.2d 715 (1985), cert. denied, 475 U.S. 1112, 106 S. Ct. 1524, 89 L. Ed. 2d 921 (1986), cert. denied, 508 U.S. 964, 113 S. Ct. 2940, 124 L. Ed. 2d 689 (1993).

IV. TRIAL.
A. IN GENERAL.

Defendant implicitly acknowledged fair notice that indictment charged him with capital murder at the pretrial hearings when he moved to quash the indictment, assigning only challenges to the facial constitutionality of the capital statutes. Boggs v. Commonwealth, 229 Va. 501 , 331 S.E.2d 407 (1985), cert. denied, 475 U.S. 1031, 106 S. Ct. 1240, 89 L. Ed. 2d 347 (1986).

Indictment for capital murder following arrest and hearing for noncapital murder. - Where the defendant was originally detained on a noncapital charge of first-degree murder, was granted a preliminary hearing on that charge, and was certified to the grand jury, and where the Commonwealth's attorney then obtained indictments for both capital murder and first-degree murder and proceeded to trial on the capital but not the noncapital offense, the procedure employed in obtaining the indictment was not manipulative, and it did not work a denial of any statutory right to which the defendant was entitled, since the defendant was not arrested on the charge of capital murder, but was indicted on that charge directly by the grand jury. Waye v. Commonwealth, 219 Va. 683 , 251 S.E.2d 202, cert. denied, 442 U.S. 924, 99 S. Ct. 2850, 61 L. Ed. 2d 292 (1979).

No additional peremptory strikes. - There is no basis in Virginia law for additional peremptory strikes in a capital murder trial. Buchanan v. Commonwealth, 238 Va. 389 , 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990).

Instruction on "force and violence" in murder following rape case. - In a prosecution for capital murder following rape, an instruction to the jury that the Commonwealth was required to prove that the act of intercourse was accomplished "by force and violence" was not improper. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

Defendant held not entitled to first-degree murder instruction. - Where the sole issue presented by the evidence was whether it was defendant or his codefendant who killed state trooper, and defendant was either guilty or innocent of the capital offense, he was not entitled to an instruction on first-degree murder. Frye v. Commonwealth, 231 Va. 370 , 345 S.E.2d 267 (1986).

Instructions on intent proper. - As the jury was instructed that defendant's act had to have been "willful, deliberate, and premeditated," that willful, deliberate and premeditated meant a specific intent to kill, and that an attempted crime required a specific intent to commit the completed crime, the trial court instructed the jury exactly as subdivision 6 of § 18.2-31 directed. Jordan v. Commonwealth, 50 Va. App. 322, 649 S.E.2d 709, 2007 Va. App. LEXIS 327 (2007).

Accused is not entitled to instructions on lesser included offenses solely because the case is one of murder. A second-degree murder instruction is appropriate only where there is evidence to support it. Bunch v. Commonwealth, 225 Va. 423 , 304 S.E.2d 271, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983), , 505 U.S. 1230, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992).

It is well established that a defendant accused of capital or first degree murder is not entitled to an instruction on second degree murder based on the legal presumption that all homicides are second degree murder. Williams v. Commonwealth, No. 2584-96-1 (Ct. of Appeals Feb. 10, 1998).

Entitlement to lesser included offense instructions. - To be entitled to a lesser included offense instruction of first degree murder, petitioner, convicted of capital murder, had to provide some evidence that the killing was not done with willfulness, deliberation, and premeditation. Given the absence of any evidence to support petitioner's accidental shooting theory, petitioner could not show entitlement to an instruction on that theory. Orbe v. True, 233 F. Supp. 2d 749, 2002 U.S. Dist. LEXIS 22958 (E.D. Va. 2002).

Conviction under this section and § 18.2-53.1 not double jeopardy. - Conviction for the use of a firearm in the commission of a felony, § 18.2-53.1 , as well as murder in the commission of a robbery while armed with a deadly weapon, does not violate the double jeopardy clause of the United States Constitution. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863 (1981).

Defendant's sentence of death was neither excessive nor disproportionate. - Defendant's sentence of death for capital murder for hire was neither excessive nor disproportionate when compared to sentences generally imposed by sentencing bodies in this jurisdiction for crimes of a similar nature. Murphy v. Commonwealth, 246 Va. 136 , 431 S.E.2d 48, cert. denied, 510 U.S. 928, 114 S. Ct. 336, 126 L. Ed. 2d 281 (1993).

Defendant's punishment of death for capital murder based on a finding of vileness was not disproportionate to similar offenses. Yarbrough v. Commonwealth, 262 Va. 388 , 551 S.E.2d 306, 2001 Va. LEXIS 112 (2001), cert. denied, 535 U.S. 1060, 122 S. Ct. 1925, 152 L. Ed. 2d 832 (2002).

Multiple punishments not double jeopardy. - The convictions and imposition of multiple punishments for capital murder, robbery and use of a firearm in the commission of a felony did not violate appellant's rights under the double jeopardy clause of the Fifth Amendment. Since those convictions and punishments did not violate the double jeopardy clause, his counsel was not ineffective for failing to raise the issue. Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475 (1986).

Defendant's guilty plea to first-degree murder with regard to death of one victim did not bar, on double jeopardy grounds, capital murder prosecution with regard to death of second victim. Same conduct is used to support more than one conviction in a single proceeding. Defendant can be prosecuted in single proceeding for both murder charges involving victims. Thomas v. Commonwealth, 244 Va. 1 , 419 S.E.2d 606, cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 343 (1992).

Where the killing of one victim constituted two capital offenses, the imposition of multiple death sentences did not violate the constitutional guarantee of protection against multiple punishments for the same offense. Payne v. Commonwealth, 257 Va. 216 , 509 S.E.2d 293 (1999).

Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; there was no double jeopardy violation because the elements of capital murder while in custody, subdivision 3 of § 18.2-31 , capital murder of a law-enforcement officer, subdivision 6 of § 18.2-31 , and capital murder of more than one person within a three-year period, subdivision 8 of § 18.2-31 were different and each carried its own separate penalty. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

In a case in which defendant was convicted and sentenced for two criminal acts for murdering the first victim within three years of murdering the second victim and murdering the second victim within three years of murdering the first victim, pursuant to the Double Jeopardy Clause, the trial court did not err in imposing two life sentences for defendant's two capital murder convictions because he was not punished twice for one criminal act as killing two victims at two different times in two different places constituted two different criminal acts; and defendant committed distinct and separate acts that were neither identical nor lesser-included criminal offenses. Severance v. Commonwealth, 295 Va. 564 , 816 S.E.2d 277, 2018 Va. LEXIS 94 (2018).

Defendant placed in double jeopardy. - Since the defendant had previously been tried for a rape in Richmond, the use of that rape as an element in an attempted capital murder charge in Chesterfield county violated the defendant's right against double jeopardy. Curtis v. Commonwealth, 12 Va. App. 527, 405 S.E.2d 230 (1991).

Commonwealth is free to indict a defendant under subdivision 8 of § 18.2-31 for the murder of more than one person within a three-year period when each of the constituent murders occurred as part of the same act or transaction, and also indict the defendant for capital murder under subdivision 7 of § 18.2-31 for the same murders; however, if the Commonwealth obtains convictions on both indictments it may not seek to have separate punishments imposed for each offense, but rather it must elect which indictment it will proceed upon in the penalty-determination phase of the trial. Andrews v. Commonwealth, 280 Va. 231 , 699 S.E.2d 237, 2010 Va. LEXIS 239 (2010), cert. denied, 131 S. Ct. 2999, 2011 U.S. LEXIS 4469, 180 L. Ed. 2d 827 (U.S. 2011).

Imposition of two death sentences upon defendant for convictions under subdivisions 7 and 8 of § 18.2-31 violated the double jeopardy prohibition against multiple punishments for the same offense, as the Commonwealth was free to indict a defendant under subdivisions 7 and 8 for the same murders, when each of the constituent murders occurred as part of the same act or transaction, but if the Commonwealth obtained convictions on both indictments it could not seek to have separate punishments imposed for each offense, but rather it had to elect which indictment it would proceed upon in the penalty-determination phase. Andrews v. Commonwealth, 280 Va. 231 , 699 S.E.2d 237, 2010 Va. LEXIS 239 (2010), cert. denied, 131 S. Ct. 2999, 2011 U.S. LEXIS 4469, 180 L. Ed. 2d 827 (U.S. 2011).

Habeas petitioner was granted a writ as to sentences imposed under subdivisions 7 and 8 of § 18.2-31 because the petitioner satisfied the performance and prejudice prongs of the Strickland test by showing ineffective assistance of counsel because counsel failed to protect petitioner's rights to be free from double jeopardy where petitioner was tried and punished for separate counts of capital murder of more than one person as part of the same transaction under subdivision 7 and capital murder of more than one person within a three-year period under subdivision 8, even though the crimes arose from the same criminal act and one punishment was for a crime that was a lesser included offense of the other. There was a reasonable probability that, but for counsel's failure to raise this issue at trial, the Commonwealth would have been permitted to proceed to sentencing on only one of the two indictments. Gray v. Warden of the Sussex I State Prison, 281 Va. 303 , 707 S.E.2d 275, 2011 Va. LEXIS 62 (2011), cert. denied, 2011 U.S. LEXIS 7334, 132 S. Ct. 403, 181 L. Ed. 2d 263 (U.S. 2011).

A remark made by the prosecutor during argument in the penalty phase that "if he is not a candidate for being a possible threat in the future, I don't know what would be" was not an improper expression of personal opinion by counsel, but rather was a statement, based on the evidence, that the defendant would constitute a future danger to society in view of his prior history. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Where the trial court sustained defendant's objection to the prosecutor's use of the words, "I believe," and, upon defendant's motion for a mistrial, instructed the jury that "I believe" has no place in the attorney's argument, this prompt action by the court cured any possible error that may have occurred. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

B. EVIDENTIARY MATTERS.

Expert opinion as to effect of drugs or alcohol. - In capital murder case, the jury was entitled to have the benefit of expert opinion as to the cumulative effect of LSD, tranxene, and alcohol, in answer to a hypothetical question based upon evidence in the record. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Conflicting DNA test results involving defendant only indicated a disagreement among scientific experts and were not sufficient to establish a miscarriage of justice to allow for federal habeas corpus review of defendant's procedurally defaulted federal constitutional claims in absence of showing of cause and prejudice for default, where defendant was convicted in state court of various crimes, including capital murder, and sentenced to death. Satcher v. Netherland, 944 F. Supp. 1222 (E.D. Va. 1996), aff'd in part and rev'd in part on other grounds sub nom. Satcher v. Pruett, 126 F.3d 561 (4th Cir.), cert. denied, 522 U.S. 1010, 118 S. Ct. 595, 139 L. Ed. 2d 431 (1997).

Mere intoxication from drugs or alcohol is not sufficient to negate premeditation. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

But one so greatly intoxicated as to be unable to deliberate and premeditate cannot be convicted of a class of murder that requires proof of a willful, deliberate, and premeditated killing. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469, rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

The defendant may negate the specific intent requisite for capital or first-degree murder by showing that he was so greatly intoxicated as to be incapable of deliberation or premeditation, but voluntary intoxication is no defense to the lesser degrees of homicide, or to any other crime. Particularly, his state of intoxication, however great, will not repel an inference of malice, implied by the circumstances surrounding his conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Stipulation. - Even if counsel's stipulation - that the petitioner was a prisoner in a state or local correctional facility at the time of the charged crime - which mirrored the elements of the prisoner escape offense, conceded an element of the capital-murder charge under this section, it did not constitute ineffective assistance. It is not objectively unreasonable for counsel to stipulate to a fact that the government can prove. Morva v. Zook, 821 F.3d 517 (4th Cir. 2016), cert. denied, 137 S. Ct. 1068, 2017 U.S. LEXIS 1095, 197 L. Ed. 2d 177 (U.S. 2017).

Evidence of premeditation held sufficient. - First degree murder conviction was affirmed as the evidence was sufficient to prove defendant's attack on his six-week-old baby was premeditated, based on the Epperly factors: (1) the brutality of the attack, (2) the disparity in size between defendant and the victim, (3) his efforts to conceal his guilt, (4) his lack of remorse, and (5) the period of time between the two blows he struck. Knight v. Commonwealth, 41 Va. App. 617, 587 S.E.2d 736, 2003 Va. App. LEXIS 550 (2003).

Evidence held sufficient to support judge's finding that killing was willful, deliberate, and premeditated. - Evidence held to support the conclusion that killing and theft were interdependent objects of a common criminal design, and conviction of capital murder in the commission of robbery would be affirmed. Edmonds v. Commonwealth, 229 Va. 303 , 329 S.E.2d 807, cert. denied, 474 U.S. 975, 106 S. Ct. 339, 88 L. Ed. 2d 324 (1985).

The fact that defendant had money in hand before he shot victim did not mean that he could escape a charge and conviction of capital murder; robbery is a continuing offense. Poyner v. Commonwealth, 229 Va. 401 , 329 S.E.2d 815, cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 158 (1985), , 474 U.S. 888, 106 S. Ct. 208, 88 L. Ed. 2d 178 (1985), 506 U.S. 958, 113 S. Ct. 419, 121 L. Ed. 2d 342 (1992).

Evidence of the brutality of the attack, including the number and nature of the knife wounds inflicted, was sufficient to support the jury's finding that killing was willful, deliberate and premeditated. Boyce v. Commonwealth, No. 1820-91-1 (Ct. of Appeals Feb. 2, 1993).

Jury was entitled to ignore the self-serving statement made by defendant to a defense witness, after the fact, that the person hired to rob the victim had messed things up and killed the victim instead; therefore, defendant was properly convicted of capital murder instead of felony murder. Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32, cert. denied, 540 U.S. 1019, 124 S. Ct. 566, 157 L. Ed. 2d 434 (2003).

Evidence that defendant shot a store owner without warning and, after his accomplice exited the store with stolen cash, fired two more shots at the victim and did not leave the store until his gun was empty clearly established premeditation; thus, the circuit court did not err in refusing to strike the Commonwealth's evidence regarding capital murder. Green v. Commonwealth, 266 Va. 81 , 580 S.E.2d 834, 2003 Va. LEXIS 55 (2003), cert. denied, 540 U.S. 1194, 124 S. Ct. 1448, 158 L. Ed. 2d 107 (2004).

When proof of premeditation is the subject of a sufficiency challenge, evidence showing that the premeditation was only slight or momentary is sufficient to sustain the conviction because premeditation is an intent to kill that needs to exist only for a moment, and the question of premeditation is generally a factual issue; thus, the court declined to reverse a jury's finding of premeditation where, despite defendant's self-serving testimony that he did not smother the victim with a pillow and told another to stop doing so, the jury could have concluded, based on defendant's confession, that he placed a pillow over the victim's face and held it there for four to six minutes even though she would have become unconscious within 15 to 30 seconds because that evidence was sufficient to show that defendant had a willful, premeditated, and deliberate intent to kill the victim. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

Admissibility of photographs. - In prosecution for capital murder following rape, photographs depicting contusions about the victim's neck, abrasions on her back, and multiple stab wounds in her body were relevant and material and were no more inflammatory than the medical testimony detailing the results of the autopsy. Such photographs would be properly admitted. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979), aff'd, 477 U.S. 527, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986).

The admission in evidence of photographs of a murder victim's body is within the discretion of the trial court. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

It is not an abuse of discretion for the court to admit a photograph showing the location of the entry wound, since this might tend to support an inference that the killer did not shoot wildly in panic but drew his weapon and took aim before firing. Peterson v. Commonwealth, 225 Va. 289 , 302 S.E.2d 520, cert. denied, 464 U.S. 865, 104 S. Ct. 202, 78 L. Ed. 2d 176 (1983).

If photographs are relevant and material to establish premeditation and malice and to show the degree of atrociousness of the crime, their admission does not constitute an abuse of discretion. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

In prosecution for capital murder of a fellow inmate, the trial court did not err by the admitting of three color photographs of the victim taken after death showing front and rear views of the victim's unclothed body and depicting the severe burns he received, where the photos tended to show motive, intent, method, premeditation, malice, and the degree of atrociousness of the crime. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Evidence of homosexual defilement. - Introduction during the guilt phase of evidence regarding the homosexual defilement of the victim did not create an impermissible risk that defendant's conviction and sentence were the product of passion, prejudice, and arbitrary factors. George v. Angelone, 100 F.3d 353 (4th Cir. 1996), cert. denied, 519 U.S. 1103, 117 S. Ct. 854, 136 L. Ed. 2d 829 (1997).

Where no insanity defense is interposed, the defendant's mental condition is only relevant insofar as it might be probative of a fact in issue; i.e., premeditation at the time of the killing. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

Resistance of victims not a defense. - As a matter of law, one who, armed with a deadly weapon, approaches others intending to rob them will not be heard to assert that he was provoked by the resistance of his victims to his criminal enterprise. Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988).

Testimony by expert witness about pain suffered by victim. - The severity of the burning which caused the death of the victim was relevant to the questions of malice and premeditation, and testimony by the medical examiner about pain suffered by the victim as the result of the burns was properly admitted. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Testimony of fellow inmate. - In prosecution for capital murder by a fellow inmate, the trial court did not err by admitting testimony from a fellow inmate that the defendant wished to be a member of a motorcycle group, which apparently had an active local chapter within the correctional facility, where one motive for the murder was the defendant's desire to be feared as a killer in order to join the local chapter of the group. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Murder victim's affidavit not admissible. - Admission at trial of a murder victim's affidavit in support of her request for a protective order against defendant, her husband, violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, and the error was not harmless because in it she swore he had threatened and raped her; therefore, his convictions for rape under § 18.2-61 , abduction with the intent to defile under § 18.2-48 , use of a firearm during the commission of an abduction, and capital murder, which was predicated on the former three offenses, were unconstitutional as well as based on insufficient evidence. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

In a capital murder case, the trial court's admission of the victim's affidavit, which had been attached to her request for a protective order and stated that defendant, her husband, had previously threatened and raped her, in order to prove that defendant later raped and murdered his estranged wife, violated the Confrontation Clause; however, the affidavit's admission was harmless as to defendant's conviction for grand larceny because it did not affect the jury's determination of guilt as to defendant's theft of the victim's car. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Evidence of second murder held admissible to show effort to conceal first murder. - As a general rule, evidence that the accused committed other crimes similar to the offense charged is inadmissible to prove the particular crime charged. But where the only reasonable inference which can be drawn from the testimony was that the victim of a second murder knew the defendant killed the victim of the first murder, and the defendant, believing the victim of a second murder was telling others about the murder, killed him to silence him. Clearly, the two offenses were interrelated, and the testimony showed both the defendant's guilty knowledge of the first murder and his desire to conceal his guilt. The conduct of an accused following the crime is often relevant, particularly when its purpose is to conceal his guilt. The testimony was so relevant and probative to the truth-finding process that its probative value greatly outweighed any prejudicial effect. Stockton v. Commonwealth, 227 Va. 124 , 314 S.E.2d 371, cert. denied, 469 U.S. 873, 105 S. Ct. 229, 83 L. Ed. 2d 158 (1984).

Commonwealth did not have the burden of excluding the hypothesis that defendant might have given the gun to the other man, who then shot the victims. Nothing in the evidence suggested that defendant may have given the gun to the other man in the interval between the time one victim closed his eyes and he and the other victim were shot. Instead, defendant's ownership of the gun, his retention of the gun even when sleeping, victim's testimony, and defendant's direction to friend to "get rid of the bag" containing the gun, taken together, amply justified the conclusion that defendant was the person who shot the victims. Graham v. Commonwealth, 250 Va. 79 , 459 S.E.2d 97, cert. denied, 516 U.S. 997, 116 S. Ct. 535, 133 L. Ed. 2d 440 (1995).

Robbery predicate for capital murder was established. - Where defendant and cohort were in the process of stealing money when they were interrupted by victim, where defendant left the room where he had found the money, chased victim, shot him, returned to the room, and retrieved the money, and where defendant and cohort then left the premises, the robbery and killing of the victim were interdependent objects of a common criminal design, and therefore, the robbery predicate for capital murder was established. Quesinberry v. Commonwealth, 241 Va. 364 , 402 S.E.2d 218, cert. denied, 502 U.S. 834, 112 S. Ct. 113, 116 L. Ed. 2d 82 (1991), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

This section does not require proof that a defendant charged with capital murder during the commission of a robbery or a rape was a principal in the first degree to the crimes of robbery or rape; it is only necessary that the Commonwealth prove that the defendant was the triggerman in the murder and an accomplice in the robbery or rape to convict him of capital murder. Graham v. Commonwealth, 250 Va. 487 , 464 S.E.2d 128 (1995).

Where defendant took victim's motorcycle and helmet, hid them apart from his body, and marked their location on a map, the evidence was sufficient to permit a reasonable trier of fact to conclude beyond a reasonable doubt that defendant robbed victim of his motorcycle and helmet or that the robbery was a motivating factor for the murder. George v. Angelone, 100 F.3d 353 (4th Cir. 1996), cert. denied, 519 U.S. 1103, 117 S. Ct. 854, 136 L. Ed. 2d 829 (1997).

The evidence was sufficient to establish that the killing of the victim immediately after she was robbed was so closely related in time, place and causal connection as to the make the killing, as a matter of law, a part of the same criminal enterprise where the defendant, acting in concert with others, beat the victim in one location and then transported her in the trunk of a car to another location where they robbed her and, immediately thereafter, further beat and cut her, inflicting fatal injuries. Tibbs v. Commonwealth, 31 Va. App. 687, 525 S.E.2d 579 (2000).

Evidence of intent sufficient. - Where the evidence was undisputed that the defendant deliberately shot the victim twice in the chest with a high-powered assault rifle and the defendant stated in his confession that he planned and carried out the attack with premeditation and without provocation and that he deliberately aimed his weapon at the victim's chest, it was established as a matter of law that the murder was intentional. Kasi v. Commonwealth, 256 Va. 407 , 508 S.E.2d 57 (1998), cert. denied, 527 U.S. 1038, 119 S. Ct. 2399, 144 L. Ed. 2d 798 (1999) overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Sufficient evidence showed defendant's specific intent to kill a victim because, after physically assaulting the victim, defendant armed himself with a shotgun and threatened to kill the victim. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Evidence held sufficient for conviction. - Where the main witness for the prosecution explained the details of the plan, in which he participated, to kill the victim, he related the specifics of the defendant's motive for the murder, he was an eyewitness to the defendant's acts of throwing the liquid into the victim's cell and igniting the fluid with matches, prison employees corroborated the witness' account of the incident, and the jurors were instructed fully on the manner in which they were to judge the testimony and credibility of convicted felons, there was no inherently incredible testimony by the Commonwealth's witnesses, and there was abundant evidence to support the conviction. Payne v. Commonwealth, 233 Va. 460 , 357 S.E.2d 500, cert. denied, 484 U.S. 933, 108 S. Ct. 308, 98 L. Ed. 2d 267 (1987).

Defendant's sentence to death for having committed several crimes, including the murder of two people, one of which was a willful, deliberate, and premeditated killing of more than one person as part of the same act in violation of subdivision 7 of § 18.2-31 , was not found to have been imposed under the influence of passion, prejudice, or any other arbitrary factor pursuant to subdivision C 1 of § 17.1-313 , nor was it excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, pursuant to subdivision C 2 of § 17.1-313 ; although defendant had a long career as a soldier and a non-commissioned officer in the U.S. Army, there was also evidence that he had an illicit relationship although he was married for 23 years, that he squandered hundreds of thousands of dollars on the relationship, which was with a prostitute, and that he brutally murdered two innocent people with no remorse. Elliott v. Commonwealth, 267 Va. 396 , 593 S.E.2d 270, 2004 Va. LEXIS 44 (2004), cert. denied, 543 U.S. 1081, 125 S. Ct. 875, 160 L. Ed. 2d 825 (2005) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Testimony that defendant was involved in a stormy relationship with one of the four victims, one witness gave defendant a ride to the victim's apartment, defendant began arguing with the victim and remained behind when the witness left, defendant called a friend from the victim's apartment and told him that he had killed them, a neighbor went to the victim's apartment and saw defendant was in the apartment with a gun and the bodies of the victim, the victim's two children, and the victim's brother were in the apartment, and an inmate testified that defendant had confessed to him during defendant's detention that he had killed the victims; evidence that the victim was both stabbed and shot, and that defendant's DNA and fingerprint matched that found on a knife in the victim's apartment was sufficient to support defendant's conviction for capital murder. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29 (2006), habeas corpus proceeding, 2010 Va. Cir. LEXIS 201 (2010); habeas corpus dismissed, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61 (2011).

Trial court did not err in denying defendant's motion to strike evidence on the count for capital murder in the commission of abduction with the intent to defile, as the beating the victim 47 times with a blunt object was not a manner of effectuating a capital murder in the commission of a rape or attempted rape and thus, the evidence was sufficient to establish capital murder in the commission of abduction with the intent to defile separately and apart from, and not merely incidental to, capital murder in the commission of a rape or attempted rape. Lawlor v. Commonwealth, 285 Va. 187 , 738 S.E.2d 847, 2013 Va. LEXIS 13 (2013), cert. denied, 134 S. Ct. 427, 2013 U.S. LEXIS 7435, 187 L. Ed. 2d 282 (U.S. 2013).

Evidence was sufficient to convict defendant of attempted capital murder of a law-enforcement officer because, while no witness actually saw defendant shoot the gun at the deputy, a rational fact finder could find from the evidence presented that defendant was the shooter as the evidence showed defendant was in the area, he possessed a gun, and he had the opportunity to commit the offenses; no evidence suggested that any person other than defendant was in the area at the time of the shooting; the evidence showed that defendant shot the gun at the deputy with the intent to kill him as a natural consequence of shooting a gun numerous times in the direction of someone was that person's death; and a ricochet hit the deputy in the leg. Williams v. Commonwealth, No. 1700-14-3, 2015 Va. App. LEXIS 321 (Nov. 10, 2015).

Evidence was sufficient to convict defendant of capital murder as the child victim's death was criminal and did not result from natural, noncriminal causes, and defendant had the time and opportunity to commit the crime and was the criminal agent in the murder because the evidence included defendant's false claims that he discovered the victim seizing and very hot to the touch as he stated that the victim was really hot at 2:21 p.m., but only 23 minutes later his temperature was hypothermic; and defendant had a motive as his financial condition was dire, but, between September and November 2011, he bought more than $500,000 of insurance policies on the victim's life, he never missed a premium payment, and the victim died about a year later. Rams v. Commonwealth, 70 Va. App. 12, 823 S.E.2d 510, 2019 Va. App. LEXIS 45 (2019).

No reversal where record failed to show actual prejudice. - Defendant's four capital murder convictions, and conviction for use of a firearm in the commission of murder, were not reversed, despite his contention that he was deprived of a fair trial when the trial court allowed spectators in the courtroom to wear badges displaying photographs of the victims, where the court took active steps to ensure that the jurors were not negatively influenced by the spectators, including segregating the jurors from persons in the hallways and elevators, and by excluding the victim's family members, many of whom were wearing the badges, from the front row of the gallery, and there were always some people seated in the front row between the spectators wearing the badges and the jury. Cooper v. Commonwealth, No. 0819-03-4, 2004 Va. App. LEXIS 403 (Ct. of Appeals Aug. 24, 2004).

Retrial. - After defendant's capital murder conviction was reversed because an appellate court found insufficient evidence to support his convictions for the predicate offenses of rape, abduction with intent to defile, and use of a firearm in the commission of abduction, double jeopardy principles required the court to remand for retrial on a lesser-included offense of no greater than first-degree murder. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Ineffective assistance of counsel not shown. - State Supreme Court dismissed the petition for writ of habeas corpus that petitioner filed as to petitioner's claim in petitioner's capital murder case that the indictments, jury instructions, and verdict forms were inadequate because they did not specify which other person petitioner had killed during a three-year period or which act of terrorism petitioner had committed; petitioner's claim in that regard did not satisfy either the performance or prejudice prong of the two-part Strickland test since under subdivision 8 of § 18.2-31 , there was no requirement that the relevant documents specify which other killing was being included within the three-year period and the indictment, under § 18.2-46.4 , did not have to specify the petitioner's intent under that statute's two subsections. Muhammad v. Warden of the Sussex I State Prison, 274 Va. 3 , 646 S.E.2d 182, 2007 Va. LEXIS 97 (2007), cert. denied, 128 S. Ct. 1889, 2008 U.S. LEXIS 3275 (U.S. 2008).

Admissibility of other crimes evidence. - Circuit court did not abuse its discretion by admitting evidence of defendant's prior felony conviction during the Commonwealth's case-in-chief for the limited purpose of proving defendant's motivation for shooting a police officer and to prove an essential element of the offense charged under subdivision 6 of § 18.2-31 ; i.e., the murder was to interfere with the performance of the police officer's duties. Porter v. Commonwealth, 276 Va. 203 , 661 S.E.2d 415, 2008 Va. LEXIS 78 (2008), cert. denied, 129 S. Ct. 1999, 173 L. Ed. 2d 1097, 2009 U.S. LEXIS 3047 (U.S. 2009).

CIRCUIT COURT OPINIONS

Exemption from death penalty. - Defendant proved by a preponderance of the evidence that he was exempted from the death penalty because he had sub-average intellectual functioning as confirmed by standardized testing and significant adaptive functioning deficits measured by a nationally accepted standardized assessment test corroborated by his academic records and family history; he was sentenced to the maximum punishment because his murder of and sexual assault of an elderly widow was inhuman, senseless, and depraved. Commonwealth v. Terry,, 2016 Va. Cir. LEXIS 218 (Halifax County Oct. 31, 2016).

§ 18.2-32. First and second degree murder defined; punishment.

Murder, other than aggravated murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31 , is murder of the first degree, punishable as a Class 2 felony.

All murder other than aggravated murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years.

(Code 1950, § 18.1-21; 1960, c. 358; 1962, c. 42; 1975, cc. 14, 15; 1976, c. 503; 1977, cc. 478, 492; 1981, c. 397; 1993, cc. 463, 490; 1998, c. 281; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to death caused by injury, etc., to railroad equipment, see § 18.2-155 .

As to the trial of capital cases, see § 19.2-264.2 et seq.

As to fixing degree of murder in verdict, see § 19.2-288 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendment in the first paragraph, inserted "or animate."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "aggravated murder" for "capital murder" twice.

Law review. - For article on the corpus delicti of murder, see 48 Va. L. Rev. 173 (1962). For discussion of proof of malice under this section, see 7 Wm. & Mary L. Rev. 399 (1966). For note, "Capital Punishment in Virginia," see 58 Va. L. Rev. 97 (1972). For article on the law of homicide, see 59 Va. L. Rev. 1270 (1973). For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974); for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For comments, "Has the Burger Court Dealt a Death Blow to the Presumption of Malice in Virginia?" see 10 U. Rich. L. Rev. 687 (1976). For survey of Virginia law on evidence for the year 1975-1976, see 62 Va. L. Rev. 1442 (1976). For survey of Virginia criminal law for the year 1976-1977, see 63 Va. L. Rev. 1396 (1977). For survey of Virginia criminal procedure for the year 1976-1977, see 63 Va. L. Rev. 1408 (1977). For the year 1977-1978, see 64 Va. L. Rev. 1407 (1978). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981). For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982). For note on premeditation, see 40 Wash. & Lee L. Rev. 341 (1983). For note comparing states' recognition of reduced degrees of felony murder, see 40 Wash. & Lee L. Rev. 1601 (1983).

For comment on admissibility of expert testimony on the battered woman syndrome in Virginia, see 10 G.M.U. L. Rev. 171 (1988).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For article, "Interrogation Stories," see 95 Va. L. Rev. 1599 (2009).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

For article, "Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs," see 45 U. Rich. L. Rev. 647 (2011).

For article, "Sentencing Juvenile Homicide Offenders: A 50-State Survey," see 5 Va. J. Crim. L. 130 (2017).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 21; 5B M.J. Criminal Procedure, § 70; 9B M.J. Homicide, §§ 10, 17, 20, 133, 134; 13A M.J. Mobs, Riots and Lynchings, § 4; 14B M.J. Poisons and Poisoning, § 1.

CASE NOTES

I. WHAT CONSTITUTES MURDER.
A. DEFINITIONS AND ILLUSTRATIONS.

This section distinguishes the degrees of murder, but it does not define murder itself. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

Distinction between crimes in § 18.2-31(d) (now § 18.2-31 4) and this section is plain: To be found guilty of capital murder, a defendant must be proved, beyond a reasonable doubt, not only to have killed during the commission of a robbery, but to have killed willfully, deliberately, and with premeditation and while armed with a deadly weapon. The defendant found guilty of first degree murder is the defendant who killed during the course of a robbery, but did not kill with willfulness, deliberation, and premeditation. Briley v. Bass, 584 F. Supp. 807 (E.D. Va.), aff'd, 742 F.2d 155 (4th Cir.), cert. denied, 469 U.S. 893, 105 S. Ct. 270, 83 L. Ed. 2d 206 (1984).

Murder is the unlawful killing of another with malice. Robertson v. Commonwealth, 1 Va. Dec. 851, 20 S.E. 362 (1894).

Whoever kills a human being with malice aforethought is guilty of murder. Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

Murder is where a man of sound sense unlawfully kills another with malice aforethought, either express or implied. Harrison v. Commonwealth, 79 Va. 374 (1884).

Murder is defined as the unlawful killing of another with malice aforethought. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

And it is murder even though deceased might have recovered but for improper treatment. - If the prisoner willfully inflicted upon the deceased a dangerous wound, one that was calculated to endanger and destroy life, and death ensued therefrom within a year and a day, the prisoner is nonetheless responsible for the result although it may appear that the deceased might have recovered but for the aggravation of the wound by unskillful or improper treatment. Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 441 (1893).

But it is not murder when wound quickens progress of fatal disease. - Where in a cause of homicide it appeared that a wound or beating was inflicted on the deceased which was not mortal and the deceased, while laboring under the effect of the violence, became sick of a disease not caused by such violence, from which disease death ensued within a year and a day, the party charged with the homicide was not criminally responsible for the death, although it also appeared that the symptoms of the disease were aggravated, and the fatal progress quickened, by the enfeebled or irritated condition of the deceased, caused by the violence. Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592 (1857).

Doctrine of transferred intent. - Under the doctrine of transferred intent, if an accused shoots at another intending to kill him, and a third person is killed because of the act, that same intent follows the bullet and is transferred to the killing of the third person, even if such death was accidental or unintentional. Riddick v. Commonwealth, 226 Va. 244 , 308 S.E.2d 117 (1983).

When "intent" required. - To commit murder one need not intend to take a life; but to be guilty of an attempt to murder he must so intend. It is not sufficient that his act, had it been fatal, would have been murder. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

To sustain a conviction for attempted murder, the evidence must establish a specific intent to kill the victim, as well as an overt but ineffectual act committed in furtherance of this criminal purpose. Parrott v. Commonwealth, No. 1014-99-2, 2001 Va. App. LEXIS 253 (Ct. of Appeals May 15, 2001).

Felony-murder defined. - Murder, for purposes of felony-murder under this section, is common-law murder coupled with the contemporaneous commission or attempted commission of one of the listed felonies. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Although felony-murder is a statutory offense, it includes the elements of common-law murder. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Purpose of felony-murder doctrine of this section was to deter inherently dangerous felonies by holding the felons responsible for the consequences of the felony, whether intended or not. While the range of felonies which may be a predicate for the felony-murder conviction has changed, the function of the doctrine is still to elevate to murder a homicide resulting from a felony by imputing malice. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Section 18.2-33 and its companion, this section, codify common-law doctrine of felony-murder, a doctrine developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Defendant is responsible even if victim killed by one acting in concert with him. - If defendant was the slayer, his intent to kill the intended victim was transferred to the slaying of the actual victim and his conviction is valid. If, however, the one acting in concert with defendant fired the fatal shot, defendant's conviction is still valid, as the two were acting in concert. The one acting in concert with defendant intended to kill the intended victim, and that intent was transferred to the slaying of the actual victim. Due to concert of action, defendant is deemed to have shared his intent. Thus, even if the one acting in concert with defendant killed the victim, defendant was responsible for his acts as a principal in the second degree. Riddick v. Commonwealth, 226 Va. 244 , 308 S.E.2d 117 (1983).

Ample evidence existed from which the jury reasonably could have concluded that defendant, at a minimum, was guilty of murder as a principal in the second degree because although the evidence did not show with certainty which of the gunmen fired the fatal bullet, the evidence showed that several persons, including defendant, fired guns toward a crowd of people; because the victim died as a result of the gunfire, defendant aided and abetted the other shooters by joining in the gunfire, and, by so doing, acted at least as a principal in the second degree to the murder of the victim. Cooper v. Commonwealth,, 2010 Va. App. LEXIS 403 (Oct. 19, 2010).

Exposure or neglect of infant resulting in death. - If the exposure or neglect of an infant or other dependent person, resulting in death, is an act of mere carelessness wherein the danger to life does not clearly appear, the homicide is only manslaughter; whereas if the exposure or neglect is of a dangerous kind, it is murder. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

If from an infant of tender years the person under obligation to provide for it willfully withholds needful food or any other needful thing, though not with intent to kill, and by reason thereof the child dies, he commits murder. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

If death is the direct consequence of the malicious omission of the performance of a duty, such as of a mother to feed her child, this is a case of murder; but if the omission is not willful, and arose out of neglect only, it is manslaughter. Biddle v. Commonwealth, 206 Va. 14 , 141 S.E.2d 710 (1965).

Involuntary manslaughter is felony assault under § 16.1-283. - Clause (iii) of subsection E of § 16.1-283 subsumes into subsection E of § 16.1-283 all the crimes that fit the definition of a felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault that are not already listed in clause (ii) of subsection E of § 16.1-283; involuntary manslaughter is a felony assault for purposes of clause (ii) of subsection E. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Father claimed his parental rights should not be terminated based on his conviction for involuntary manslaughter because the conviction was six years prior to the removal of the children; however, subsection E of § 16.1-283 does not impose any time restraints as to when the convictions had to occur in connection with the removal of the children. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Mens rea same for involuntary manslaughter and child abuse and neglect. - Not only can commission of either involuntary manslaughter or child abuse and neglect result in serious bodily injury to the child victim, but also the requisite mens rea is the same for both crimes; to the extent that the child abuse statute requires a showing of willfulness, that requirement incorporates willful negligence. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Convictions for murder and lynching by mob upheld. - Defendant was not entitled to reversal of convictions for both felony murder and lynching by mob, because both the felony murder statute, § 18.2-32 , and the lynching-by-mob statute, § 18.2-40 , included at least one element the other did not, and the appellate court presumed that the General Assembly did not intend either statute to displace the other. Gaddie v. Commonwealth,, 2010 Va. App. LEXIS 247 (June 22, 2010).

Former § 19.1-249 (now § 19.2-285 ) and this section are in pari materia and should be read together. Puckett v. Commonwealth, 182 Va. 237 , 28 S.E.2d 619 (1944).

Involuntary manslaughter served as basis for termination of parental rights. - Circuit court did not err in terminating the father's parental rights as a result of his conviction for involuntary manslaughter; because the father's conviction for involuntary manslaughter was a conviction for a felonious crime that results in serious bodily injury to a child, the conviction constituted a felony assault resulting in serious bodily injury. King v. King George Dep't of Soc. Servs., 69 Va. App. 206, 817 S.E.2d 658, 2018 Va. App. LEXIS 226 (2018).

Crime of violence under federal law. - Defendant's convictions for violent crimes in aid of racketeering activity by committing first-degree murder under Virginia law and federal witness tampering by means of murder under federal law constituted crimes of violence under 18 U.S.C.S. § 924(c) force clause because conviction for first-degree murder under Virginia law required willful, deliberate, and premeditated killing of another, and federal witness tampering by murder also required unlawful killing of another, which might be accomplished by force exerted either directly or indirectly. United States v. Mathis, 932 F.3d 242, 2019 U.S. App. LEXIS 22742 (4th Cir. 2019).

Applied in Pender v. Angelone, 257 Va. 501 , 514 S.E.2d 756 (1999); Orndorff v. Commonwealth, 271 Va. 486 , 628 S.E.2d 344, 2006 Va. LEXIS 43 (2006); Osman v. Osman, 285 Va. 384 , 737 S.E.2d 876, 2013 Va. LEXIS 26 (2013); Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

B. ELEMENTS.
1. MALICE.

The test of murder is malice. Every malicious killing is murder either in the first or second degree - the former if deliberate and premeditated, and the latter if not. Furthermore, there is a prima facie presumption of malice arising from the mere fact of a homicide, but there is no presumption therefrom of deliberation and premeditation. That is merely another way of stating the familiar rule of law that every homicide is prima facie murder in the second degree, and that the burden is on the accused to reduce, and on the Commonwealth to elevate, the grade of the offense. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969); Perkins v. Commonwealth, 215 Va. 69 , 205 S.E.2d 385 (1974); Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Malice aforethought is the grand criterion which distinguishes murder from other killings. M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Every unlawful homicide must be either murder or manslaughter, and whether it be the one or the other depends alone upon whether the party who perpetrated the act did it with malice or not - malice either expressed or implied. Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872); Moxley v. Commonwealth, 195 Va. 151 , 77 S.E.2d 389 (1953).

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Malice, an essential element of all grades of murder, distinguishes murder from manslaughter. Parrott v. Commonwealth, No. 1014-99-2, 2001 Va. App. LEXIS 253 (Ct. of Appeals May 15, 2001).

Without malice there cannot be murder. Coleman v. Commonwealth, 184 Va. 197 , 35 S.E.2d 96 (1945).

Malice, express or implied, is an essential element in murder of either the first or second degree. Richardson v. Commonwealth, 128 Va. 691 , 104 S.E. 788 (1920); Mercer v. Commonwealth, 150 Va. 588 , 142 S.E. 369 (1928).

Malicious intent is an element of both first-degree murder and second-degree murder. What elevates the lesser crime to the greater grade and invokes the heavier penalty is the element of premeditation. Baker v. Commonwealth, 218 Va. 193 , 237 S.E.2d 88 (1977).

Malice is an element of felony-murder. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Malice inheres in the doing of a wrongful act intentionally or without just cause or excuse, or as a result of ill will. Thus, where a person maliciously engages in criminal activity, such as robbery, and homicide of the victim results, the malice inherent in the robbery provides the malice prerequisite to a finding that the homicide was murder. All of the criminal participants in the initial felony may be found guilty of the felony-murder of the victim so long as the homicide was within the res gestae of the initial felony. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Malice, in a legal sense, means any wrongful act done willfully or purposely. Sun Life Assurance Co. v. Bailey, 101 Va. 443 , 44 S.E. 692 (1903).

Malice is a subjective condition of mind, discoverable only by words and conduct, and the significance of the words and conduct of an accused person, wherever there can be doubt about such significance, addresses itself peculiarly to the consideration of the jury. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969); Perkins v. Commonwealth, 215 Va. 69 , 205 S.E.2d 385 (1974).

And is presumed from the act of killing. - Malice is presumed from the act of killing, unaccompanied with circumstances of extenuation, and the burden of disproving the malice is thrown upon the accused. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Johnston's Case, 46 Va. (5 Gratt.) 660 (1848); Dejarnette v. Commonwealth, 75 Va. 867 (1881); Lewis v. Commonwealth, 78 Va. 732 (1884); Honesty v. Commonwealth, 81 Va. 283 (1886); Coleman v. Commonwealth, 184 Va. 197 , 35 S.E.2d 96 (1945); Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

On a charge of murder, malice is presumed from the fact of killing, and when the Commonwealth has proven the commission of a homicide and has pointed out the accused as the criminal agent, then it may rest its case, and, unless the accused shows circumstances of justification, excuse, or palliation, a verdict of murder in the second degree will be warranted. Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935).

Or from the deliberate use of a deadly weapon. Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Johnston's Case, 46 Va. (5 Gratt.) 660 (1848); Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873); Wright v. Commonwealth, 74 Va. (33 Gratt.) 880 (1880); Wright v. Commonwealth, 75 Va. 914 (1882); Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

The use of a deadly weapon, standing alone, is not sufficient to prove the specific intent required to establish attempted murder. Goodson v. Commonwealth, 22 Va. App. 61, 467 S.E.2d 848 (1996).

Malice may be evident in post-shooting conduct. - The finder of fact may consider the defendant's conduct and words at the time of the shooting and thereafter, including evidence of flight, to determine whether the shooting was accompanied by malice. Betancourt v. Commonwealth, No. 0142-93-2, 1994 Va. App. LEXIS 582 (Ct. of Appeals Sept. 13, 1994).

Malice may be either express or implied by conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Express malice is evidenced when one person kills another with a sedate, deliberate mind and formed design. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Implied malice exists when any purposeful, cruel act is committed by one individual against another without any, or without great provocation. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Malice cannot be implied from negligent killing. - If a killing results from negligence, however gross or culpable, and the killing is contrary to the defendant's intention, malice cannot be implied. In order to elevate the crime to second-degree murder, the defendant must be shown to have willfully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Generally, implied malice is equivalent to "constructive malice"; that is, malice as such does not exist but the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339 (1982).

Defendant's conduct rather than degree of intoxication is relied upon to establish malice. - The defendant's degree of intoxication, however great, neither enhances nor impairs the set of facts relied upon to establish implied malice. In making the determination whether malice exists, the fact finder must be guided by the quality of the defendant's conduct, its likelihood of causing death or great bodily harm, and whether it was volitional or inadvertent; not by the defendant's blood-alcohol level. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Malicious purpose to do deceased a serious personal injury is sufficient. - If the prisoner, in the execution of a malicious purpose to do the deceased a serious personal injury or hurt by wounding and beating him, killed him, the offense is murder. Dock v. Commonwealth, 62 Va. (21 Gratt.) 909 (1872). See Honesty v. Commonwealth, 81 Va. 283 (1886); M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Johnston's Case, 46 Va. (5 Gratt.) 660 (1848).

Malice and passion distinguished. - "Malice aforethought" implies a mind under the sway of reason, whereas "passion," while it does not imply a dethronement of reason, yet is the furor brevis which renders a man deaf to the voice of reason so that, although the act done was intentional of death, it was not the result of malignity of heart, but imputable to human infirmity. Passion and malice are, therefore, inconsistent motive powers and, hence, an act which proceeds from the one cannot also proceed from the other. Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890).

Malice and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the absence of malice. In other words, malice and passion cannot coexist. Jenkins v. Commonwealth, 244 Va. 445 , 423 S.E.2d 360 (1992), cert. denied, 507 U.S. 1036, 113 S. Ct. 1862, 123 L. Ed. 2d 483 (1993), overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Whether a defendant acted with malice is generally a question to be decided by the trier of fact. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339 (1982); Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Implied malice in death of three year old. - Implied malice was shown beyond a reasonable doubt and was fairly deducible where victim, a three year old child, had been forcefully fed a stomach full of pepper, was starving and had been beaten; this was sufficient evidence to find the mother-defendant guilty of murder in the second degree. Pugh v. Commonwealth, 223 Va. 663 , 292 S.E.2d 339 (1982).

Malice intrinsic in commission of predicate felony provides element needed to find murder. - While this section contemplates a killing with malice, the malice intrinsic in the commission of one of the predicate felonies provides the malice prerequisite to a finding that the homicide was murder. The same imputation of malice is implicit in § 18.2-33 which contemplates an accidental killing; the commission of any felonious act during the prosecution of which a death occurs supplies the malice which raises the incidental homicide to the level of second-degree murder. Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

Participant not guilty of felony-murder of co-felon killed by victim. - Under this section, a criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony as this would require the elimination of proof of malice as a prerequisite to conviction under this section. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

Sufficient evidence of malice. - The evidence was sufficient to support a finding of malice where appellant's wife died as a result of a gunshot wound to the chest inflicted at close range; appellant admitted that the gun went off in his hands; a neighbor testified that she heard a gunshot and then heard a woman moan and say, "I can't believe you did that to me"; and appellant then immediately fled the scene without administering aid, disposed of the weapon, and failed to report the incident when stopped by the police a short time later. Betancourt v. Commonwealth, No. 0142-93-2, 1994 Va. App. LEXIS 582 (Ct. of Appeals Sept. 13, 1994).

Proof of malice was established by testimony that defendant and victim had argued, that defendant had angrily refused to allow victim to leave, and that victim suffered two deep stab wounds. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

There were no mitigating circumstances that would have stripped defendant's conduct in submerging her newborn baby in the bathtub of its inherent malice, as it was not a provoked killing, nor was defendant acting in self-defense, but rather admitted that she knew her actions could result in the death of her baby, but deliberately engaged in those actions because she was worried that people would be ashamed of her. Aldridge v. Commonwealth, 44 Va. App. 618, 606 S.E.2d 539, 2004 Va. App. LEXIS 631 (2004).

Evidence was sufficient to support defendant's convictions of second degree murder and the use of a firearm in the commission of that murder where, based on defendant's animosity towards the victim, evidenced by numerous statements in which he expressed a desire to shoot and kill him, the jury could have inferred that defendant killed the victim with malice. Buchanan v. Commonwealth,, 2015 Va. App. LEXIS 153 (May 5, 2015).

Commonwealth sufficiently showed defendant's malice aforethought because the Commonwealth showed defendant shot the victim two or three times after disarming the victim and then walked 20 to 30 feet away and shot the victim four or five more times at close range, allowing a reasonable juror to conclude defendant's conduct was that of a sedate, deliberate mind or at least a purposeful, cruel act committed without great provocation, and that defendant's self-serving account was designed to hide defendant's guilt. Washington v. Commonwealth, No. 2023-15-2, 2017 Va. App. LEXIS 140 (May 30, 2017).

2. OTHER ELEMENTS.

Proof of corpus delicti. - In homicide cases, the corpus delicti must consist of proof (1) of the victim's death, and (2) that it resulted from the criminal act or agency of another. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

The corpus delicti may be proven by circumstantial evidence. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Premeditated murder, one of the forms of first degree murder defined by statute, contemplates: (1) a killing; (2) a reasoning process antecedent to the act of killing, resulting in the formation of a specific intent to kill; and (3) the performance of that act with malicious intent. Rhodes v. Commonwealth, 238 Va. 480 , 384 S.E.2d 95 (1989).

Deliberation and premeditation. - While the absence of self defense is not an element of murder, deliberation and premeditation undoubtedly are elements of first-degree murder which the state must prove beyond a reasonable doubt. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Premeditation and deliberation, which the Commonwealth must prove beyond a reasonable doubt to obtain a first-degree murder conviction, require the adoption of a specific intent to kill, which is something more than malice. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Premeditation and deliberation are jury questions. - The question whether premeditation and deliberation exist, so as to elevate a homicide to first-degree murder, is in the province of the jury. In deciding it, the jury may properly consider the brutality of the attack, and whether more than one blow was struck, the disparity in size and strength between the defendant and the victim, the concealment of the victim's body, and the defendant's lack of remorse and efforts to avoid detection. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Premeditation shown by circumstantial evidence. - Supreme Court will affirm a conviction of premeditated murder, even though based upon wholly circumstantial evidence, whenever the reasonable import of such evidence, considered as a whole, is sufficient to show beyond a reasonable doubt that the accused was the criminal agent and that he acted with a premeditated intent to kill. Rhodes v. Commonwealth, 238 Va. 480 , 384 S.E.2d 95 (1989).

Defendant's actions following her baby's death provided ample circumstantial evidence of her specific intent to kill; specifically, defendant concealed the infant's body so effectively that it was not discovered until almost three months had elapsed, in her effort to avoid detection she cleaned the hotel bathroom and disposed of soiled towels and bathmats in an outside dumpster, and she informed nurses at a hospital that she had given her child up for adoption rather than telling them that she had given birth to a stillborn baby. Aldridge v. Commonwealth, 44 Va. App. 618, 606 S.E.2d 539, 2004 Va. App. LEXIS 631 (2004).

Premeditation inferred from wound. - Evidence of a mortal wound inflicted by a deadly weapon with little or no provocation creates an inference from which the trier of fact may conclude that the killer acted with premeditation. McNair v. Commonwealth, No. 0062-00-1, 2000 Va. App. LEXIS 784 (Ct. of Appeals Dec. 5, 2000).

Analysis of intent. - The intention to kill need not exist for any specified length of time prior to the actual killing; the design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill. In deciding the question, the jury may consider, among other things, the brutality of the attack and whether more than one shot was fired. Weeks v. Commonwealth, 248 Va. 460 , 450 S.E.2d 379 (1994), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 55 (1995).

To constitute murder, the killing must be predetermined, yet the design to kill need not have existed for any particular length of time and may be formed at the moment of committing the act. Commonwealth v. Brown, 90 Va. 671 , 19 S.E. 447 (1894).

Unless committed by specific means enumerated in this section. - Murder committed by any of the specific means enumerated in the statute is murder in the first degree, whether there was any actual intent to kill or not. Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875). See Burgess v. Commonwealth, 4 Va. (2 Va. Cas.) 483 (1826); Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828); Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829).

Killing must be done on purpose and not by accident or without design. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Defendant's state of mind determines intent. - The exact state of the defendant's mind at the time of the killing is the crucial factor in determining intent. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

The test of the criminal intent in the use of a deadly weapon is to be found, not in the manner in which or the purpose for which the previous possession of the weapon was acquired, but in its deliberate use for a deadly purpose. Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935).

Motive is not an essential element of the crime of murder. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964).

Motive has never been a requisite element of the crime of murder in Virginia. Cantrell v. Commonwealth, 229 Va. 387 , 329 S.E.2d 22 (1985).

Motive relevant to intent. - While motive is not an essential element of the crime of murder, motive is usually an element relevant to establish intent when a conviction is based primarily on circumstantial evidence. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

Defendant's admission that a motive existed was a circumstance which the jury had a right to consider in determining if the murder of which he was accused was a willful, deliberate and premeditated act, one prompted by a cause or reason or by an inducement which moved the will and induced the action by the defendant. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

While motive is not an essential element of the crime, it is relevant and often most persuasive upon the question of the actor's intent. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Striking with a walking stick held not to warrant presumption of intent to kill. McDaniel v. Commonwealth, 77 Va. 281 (1883).

Premeditation was not shown. - Where accused was an adult and the victim an infant, and the deceased suffered grievous injuries caused by a number of blows struck on several occasions, evidence was insufficient to show defendant acted with premeditated intent to kill since defendant did not conceal evidence or avoid the risk of detection and blame, but to the contrary, she initiated a call for medical help for a child who had suffered respiratory problems from birth. Rhodes v. Commonwealth, 238 Va. 480 , 384 S.E.2d 95 (1989).

Premeditation amply proved. - On probation, riding in a stolen vehicle, and possessing a weapon that the evidence showed had been used in a previous North Carolina murder, defendant shot the state trooper at virtually point blank range at least six times to avoid arrest. Several of the bullet wounds, according to the evidence, probably were the result of ricochet, indicating that the trooper may have been fired upon while lying on the pavement. These and other factors surrounding the killing amply proved premeditation. Weeks v. Commonwealth, 248 Va. 460 , 450 S.E.2d 379 (1994), cert. denied, 516 U.S. 829, 116 S. Ct. 100, 133 L. Ed. 2d 55 (1995).

Circuit court did not err in denying defendant's motion to strike a first-degree murder charge because a reasonable jury could have found that defendant underwent the necessary premeditation to commit first-degree murder; the attack was quite brutal, defendant attacked a pregnant woman, and he failed to demonstrate remorse. Riddick v. Commonwealth, No. 1102-07-1, 2008 Va. App. LEXIS 237 (May 13, 2008).

Neither premeditation nor an intent to kill is an element of felony-murder under this section. Wooden v. Commonwealth, 222 Va. 758 , 284 S.E.2d 811 (1981).

For a murder conviction, it is not necessary that the wounds, injuries or trauma be the direct cause of death. - It is sufficient if the initial wound, injury or trauma causes death indirectly through a chain of natural causes such as a defendant's beating death of a fellow inmate, which caused the fellow inmate to have a heart attack as well as suffer a brain injury from striking his head on the steel frame of a bunk bed. Wyche v. Commonwealth, No. 3113-02-1, 2004 Va. App. LEXIS 163 (Ct. of Appeals Apr. 6, 2004).

Felony-murder. - Defendant's conviction on a felony-murder theory was affirmed where the record established all the requisite elements that he confessed to a burglary as a principal in the first degree and the victim was murdered during commission of the offense, even though a codefendant's conviction had been reversed based on improperly admitted evidence. Smith v. Commonwealth, No. 2752-00-1, 2002 Va. App. LEXIS 124 (Ct. of Appeals Feb. 26, 2002).

Insufficient evidence of causation. - Evidence was insufficient as a matter of law to convict defendant under this section where the victim died of a cocaine overdose; taken in the light most favorable to the Commonwealth, the evidence did not exclude the hypothesis that the victim died as a result of an accidental or deliberate self-inflicted overdose. Betancourt v. Commonwealth, 26 Va. App. 363, 494 S.E.2d 873 (1998).

II. DEGREE OF MURDER.
A. FIRST AND SECOND DEGREE DISTINGUISHED.

Degree depends upon the intent. - Whether a homicide is murder in the first or second degree depends upon the intent of the prisoner at the time of the killing. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

And whether the killing was willful, deliberate and premeditated. - The difference between murder in the first and murder in the second degree turns upon whether the homicide was wilful, deliberate and premeditated or not. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

Every malicious homicide is murder. If in addition, the killing be wilful, deliberate and premeditated it is murder in the first degree. Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922).

Premeditation, or specific intent to kill, distinguishes murder in the first from murder in the second degree. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.

To premeditate means to adopt a specific intent to kill, and that is what distinguishes first and second-degree murder. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

Will and purpose to kill determines grade of offense. - It is the will and purpose to kill, not necessarily the interval of time, which determines the grade of the offense. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

In Virginia, every homicide is presumed to be second degree murder. To elevate murder to first degree the Commonwealth must prove additional aggravating factors. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Question for jury. - The question of whether a particular homicide is murder in the first or second degree is one of fact for the jury. Williamson v. Commonwealth, 180 Va. 277 , 23 S.E.2d 240 (1942); Plymale v. Commonwealth, 195 Va. 582 , 79 S.E.2d 610 (1954); Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

The determination of the grade or degree of homicide is a question for the jury. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969); Perkins v. Commonwealth, 215 Va. 69 , 205 S.E.2d 385 (1974).

Determination of the degree is ordinarily a question for the jury. Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972).

B. MURDER IN THE FIRST DEGREE.

There must be a premeditated design to kill. - As to willful, deliberate and premeditated killings, other than those enumerated in the statute, proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the attempt sought. King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817); Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828); Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); McDaniel v. Commonwealth, 77 Va. 281 (1883); Wells v. Commonwealth, 190 Va. 619 , 57 S.E.2d 898 (1950).

A willful, deliberate and premeditated killing is murder in the first degree. It must be a predetermined killing upon consideration, and not a sudden killing done in the momentary excitement and impulse of a passion which was engendered by adequate provocation. Bailey v. Commonwealth, 191 Va. 510 , 62 S.E.2d 28 (1950).

Only a homicide proved to be committed willfully, deliberately, and with premeditation constitutes first-degree murder. Cooper v. Mitchell, 647 F.2d 437 (4th Cir.), cert. denied, 454 U.S. 849, 102 S. Ct. 171, 70 L. Ed. 2d 139 (1981).

Without provocation recently received. - The premeditated design to kill need not have existed any particular length of time, but if the design at the time of killing was then formed, and the killing was done without provocation then or recently received, it is murder in the first degree. Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721 (1828). See Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875); Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 872 (1880). See also Wright v. Commonwealth, 75 Va. 914 (1882); McDaniel v. Commonwealth, 77 Va. 281 (1883); Price v. Commonwealth, 77 Va. 393 (1883); Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920); Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921); Bailey v. Commonwealth, 191 Va. 510 , 62 S.E.2d 28 (1950).

Intent to kill must come into existence at some time before killing; it need not exist for any particular length of time. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980); Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

A measurable period of time for pondering need not have elapsed in order for a killing to be rendered first-degree murder. The intention to kill may have come into being only at the time of the killing and the act still be first-degree murder. It is the will and purpose to kill and not the interval of time which fixes the grade of the offense. Bailey v. Commonwealth, 191 Va. 510 , 62 S.E.2d 28 (1950); Hairston v. Commonwealth, 217 Va. 429 , 230 S.E.2d 626 (1976).

It is not the interval of time, but the will and purpose to kill which fixes the grade of the offense. Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960); Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975).

To constitute willful, deliberate and premeditated murder, it is not necessary that the intent to kill exist for any particular length of time prior to the killing. The intent to kill may spring into existence for the first time at the time of the killing or at any time previously. Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975); Hairston v. Commonwealth, 217 Va. 429 , 230 S.E.2d 626 (1976); Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642 (1986).

In first-degree murder, the intent to kill must come into existence at some time before the killing; it need not exist for any particular length of time. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

Premeditation need not exist for any particular length of time; an intent to kill may be formed at the moment of the commission of the unlawful act. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

It is the will and purpose to kill, not necessarily the interval of time, which determine the grade of homicide. Smith v. Commonwealth, 220 Va. 696 , 261 S.E.2d 550 (1980).

To constitute a willful, deliberate and premeditated homicide, the intention to kill need not exist for any specified length of time prior to the actual killing. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980).

A design to kill may be formed only a moment before the fatal act is committed provided the accused had time to think and did intend to kill. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980); Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

In finding first-degree murder, the fact finder need not have found that defendant harbored the intent to kill for any particular time prior to its enactment. The intent to kill may arise prior to or at the time of the murder. Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642 (1986).

To establish premeditation, the intent to kill need only exist for a moment. McNair v. Commonwealth, No. 0062-00-1, 2000 Va. App. LEXIS 784 (Ct. of Appeals Dec. 5, 2000).

Anger does not necessarily preclude premeditation. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368 (1952).

A killing in anger without provocation or upon very slight provocation may still be murder in the first degree. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368 (1952).

The intent to kill need not be directed against any specific person. - If it be an intent to kill any person who may attempt a certain thing, and one is killed because he attempted that thing, the intent is the same as if it were directed against that specific person. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

Murder by enumerated means is murder in first degree. - Murder by poison, lying in wait, imprisonment, starving or any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit arson, rape, robbery, or burglary, is murder in the first degree. Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Harrison v. Commonwealth, 79 Va. 374 (1884); Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

Murder by enumerated means. - As to murder by poison, see Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Hatchett v. Commonwealth, 76 Va. 1026 (1882); Hicks v. Commonwealth, 86 Va. 223 , 3 S.E. 1024 (1889). As to murder by lying in wait, see Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829). As to murder by imprisonment, confinement or starvation, see Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829).

In a case in which defendant had been convicted of first-degree murder and the Commonwealth moved for a rehearing, asking that the court reconsider its holding that the evidence did not prove premeditation, the Commonwealth was correct that § 18.2-32 did not require proof of premeditation for first-degree murder by starvation. Murder by starvation was one of the enumerated crimes. Welch v. Commonwealth,, 2005 Va. App. LEXIS 540 (Oct. 18, 2005).

Whether there was intent to kill or not. - Murder committed by any of the specific means enumerated in the statute is murder in the first degree, whether there was any actual intent to kill or not. Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875).

Imprisonment may be with a view to reducing the victim to the necessity of yielding to some proposed conditions, as well as a punishment for the failure of prompt obedience, without any certain and final determination to destroy life. Gilreath v. Robinson, 544 F. Supp. 569 (E.D. Va. 1982), aff'd, 705 F.2d 109 (4th Cir. 1983), decided under former § 18.1-21.

In cases of imprisonment, as with poisoning and the other enumerated actions, the underlying legislative intent was to hold the perpetrator guilty of first-degree murder without further proof that the death was the ultimate result, which the will, deliberation, and premeditation of the party accused sought. Gilreath v. Robinson, 544 F. Supp. 569 (E.D. Va. 1982), aff'd, 705 F.2d 109 (4th Cir. 1983), decided under former § 18.1-21.

Homicide committed in course of robbery. - Where the intention of the defendants changed from the commission of larceny to robbery to accomplish their original purpose by overcoming a property owner's interference with the taking, and homicide was committed in the course thereof, then the homicide may be first-degree murder. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

Murder in an attempted robbery violates this section, but not § 18.2-31 , the capital-murder statute. Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981).

Even if unintentional. - Even an unintentional killing during a robbery or an attempted robbery violates this section and is punishable as murder of the first degree. Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981).

Conviction of both murder and robbery. - The clear conclusion of the trial court, sitting without a jury, that defendant was a principal in the second degree to a willful, deliberate and premeditated killing provided an independent statutory basis for his first-degree murder conviction, apart from any association with or relation to the crime of robbery out of which course of action the killing arose, and defendant could be convicted of both murder and robbery. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

When felony-murder statute applies. - The felony-murder statute applies where the killing is so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise. Haskell v. Commonwealth, 218 Va. 1033 , 243 S.E.2d 477 (1978).

Question of fact. - Whether a homicide committed during escape from a felony comes within the felony-murder statute usually will present an issue of fact to be determined from the evidence. Haskell v. Commonwealth, 218 Va. 1033 , 243 S.E.2d 477 (1978).

Defendant's activities prior to breaking and entering and subsequent thereto provided sufficient evidence of his intent to kill at the time of entry, where he had threatened to kill the victim the previous week, in a statement given to the police he stated: "I remember taking the glass out to get in because I wanted to see my kids for the last time," he took with him to the victim's apartment a screwdriver and a carpenter's knife, upon entry, he obtained a larger knife from the kitchen, he confessed to the killing, physical evidence demonstrated 18 knife wounds, including seven fatal wounds inflicted both in the chest and back, blood was splattered over the entire apartment, upstairs and down, the upstairs phone was unplugged and blood stained, and blood was splattered in the area of the phone downstairs. Patterson v. Commonwealth, No. 0819-85 (Ct. of Appeals July 30, 1986).

The trial court properly considered, as evidence of premeditation, the manner of death as well as the circumstances surrounding the death. The fact that the decedent died from manual strangulation and suffocation, which in themselves required some prolonged physical effort by appellant, coupled with the same facts which identified defendant as the criminal agent, were relevant to the determination whether defendant acted willfully, deliberately and with premeditation. Beck v. Commonwealth, 2 Va. App. 170, 342 S.E.2d 642 (1986).

Evidence supported first degree murder instruction. - Where trial judge give instructions on first and second degree murder, there was evidence to support a first degree murder instruction; the jury could have found that the shots were fired by appellant in a fearful response to the victim reaching under the counter; from this, the jury could have found that the killing was not willful, deliberate and premeditated; under these circumstances, the court properly instructed the jury as to the crime of felony murder, and felony murder under these circumstances is murder in the first degree. Moats v. Commonwealth, 12 Va. App. 349, 404 S.E.2d 244 (1991).

Sentence upheld. - Defendant's sentence to life in prison for first-degree murder was not an abuse of discretion because the sentence was within the statutory range in §§ 18.2-32 and 18.2-10 . Johnson v. Commonwealth, 63 Va. App. 175, 755 S.E.2d 468, 2014 Va. App. LEXIS 106 (2014), aff'd, 793 S.E.2d 326, 2016 Va. LEXIS 186 (2016).

C. MURDER IN THE SECOND DEGREE.

Homicide is presumed to be murder in second degree. McDaniel v. Commonwealth, 77 Va. 281 (1883); Bradshaw v. Commonwealth, 174 Va. 391 , 4 S.E.2d 752 (1939); Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Every homicide is prima facie a case of murder in the second degree. And it is incumbent upon the Commonwealth where the offense was not committed by any of the specific means enumerated in the statute in order to elevate it to murder in the first degree, to prove by evidence, either direct or circumstantial, beyond rational doubt, that the killing was "willful, deliberate and premeditated." And on the other hand, the burden is upon the accused, if he would reduce the offense below murder in the second degree, to show the absence of malice and the other mitigating circumstances necessary for that purpose. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969).

Every unlawful homicide is presumed to be murder in the second degree, and an instruction to that effect is usually necessary in a homicide case. But it is not always necessary. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969).

Every homicide is presumed to be murder in the second degree, the burden resting on the accused to reduce it and on the Commonwealth to elevate it to murder in the first degree. Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972); Evans v. Commonwealth, 215 Va. 609 , 212 S.E.2d 268 (1975).

In Virginia, every unlawful homicide is "presumed" to be murder in the second degree. The so-called "presumption," however, amounts to no more than an "inference" which the trier of fact is permitted, but is not required, to draw from proven facts. The constitutional guarantee of due process is protected if the evidence necessary to invoke the presumption or inference is sufficient for a rational juror to find the presumed or inferred fact beyond a reasonable doubt. Bell v. Commonwealth, 2 Va. App. 48, 341 S.E.2d 654 (1986).

The intention to kill is not essential. - In all cases of slight and insufficient provocation, if it may be reasonably inferred from the weapon made use of, or the manner of using it, or from any other circumstance that the party intended merely to do some great bodily harm, such homicide will be murder in the second degree in like manner as if no provocation had been given, but not a case of murder in the first degree. McDaniel v. Commonwealth, 77 Va. 281 (1883).

Second degree murder does not require a willful, deliberate and premeditated act; it is defined simply as a malicious killing. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Conviction of second-degree murder for beating death of child. - See Evans v. Commonwealth, 215 Va. 609 , 212 S.E.2d 268 (1975).

Principles governing second-degree murder conviction based upon use of an automobile are the same as those which apply to any other kind of second-degree murder: The victim must be shown to have died as a result of the defendant's conduct, and the defendant's conduct must be shown to be malicious. In the absence of express malice, this element may only be implied from conduct likely to cause death or great bodily harm, willfully or purposefully undertaken. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Evidence supported second degree murder. - Viewed in the light most favorable to the Commonwealth, where the evidence proved the defendant struck the back of the victim's head five times with an object, causing impressed skull fractures, the brutal and vicious nature of the killing was evidence from which the trial judge could infer malice; the evidence supported second-degree murder. Tratzinski v. Commonwealth, No. 0419-02-2, 2003 Va. App. LEXIS 158 (Ct. of Appeals Mar. 25, 2003).

Evidence was sufficient to support defendant's conviction for second-degree murder, despite her claim that she could not be found guilty of any crime greater than voluntary manslaughter, as it showed that she was an active and joint participant in the beating death of the victim; indeed, the evidence showed that she struck defendant on the back of the head with a metal folding chair before he was beaten to death, that she told an inquiring neighbor that what was going on was none of his business, that she cleaned blood off of her two "co-actors" after the beating, and that she lied to police when they investigated the death. Whitehead v. Commonwealth,, 2006 Va. App. LEXIS 89 (Mar. 14, 2006).

Direct eyewitness testimony of two witnesses identifying defendant as the gunman was not inherently incredible as a matter of law and was, thus, sufficient to support defendant's convictions for second-degree murder, in violation of § 18.2-32 , and use of a firearm in the commission of murder, in violation of § 18.2-53.1 . The witnesses' testimony was corroborated by other testimony and the physical evidence, including shell casings recovered from the scene of the murder. Jones v. Commonwealth,, 2007 Va. App. LEXIS 265 (July 17, 2007).

Evidence, while primarily circumstantial, supported the fact finder's determination that defendant was a principal in the second degree to the crimes of murder, malicious wounding, and use of a firearm during the commission of a felony because the fact finder could conclude that after having left a convenience store and returning to his father's car, defendant followed the victims back into the store and confronted one of them with the accusation that he touched or hit the father's car, and defendant's repeated questioning and interaction drew the victims towards the car, exposing them to the father's gunfire; the evidence further supported the jury's finding that defendant's conduct was knowingly in furtherance of the commission of the father's crime because rather than expressing surprise, fleeing, or intervening when the shots were fired, defendant stood by observing his father shoot the victims. Stagg v. Commonwealth,, 2010 Va. App. LEXIS 416 (Oct. 26, 2010).

Evidence supported attempted second degree murder. - Evidence was sufficient to support defendant's conviction for the attempted second-degree murder of a victim, and under the doctrine of transferred intent, this same evidence supported defendant's conviction for the attempted second-degree murder of a witness's daughter. The testimony of the witness, coupled with tire marks left in the grass by defendant's vehicle, supported a finding that defendant struck the victim and the witness's daughter when they were at a location in the grass more than six feet from the edge of a roadway. Patrick v. Commonwealth,, 2008 Va. App. LEXIS 231 (May 13, 2008).

III. TRIAL.
A. INDICTMENT.

An indictment in the common-law form for murder is good and will support a conviction for murder in the first or second degree, or manslaughter. Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592 (1857); cited in Bull v. Commonwealth, 55 Va. (14 Gratt.) 613 (1857); Cluverius v. Commonwealth, 81 Va. 787 (1886); Kibler v. Commonwealth, 94 Va. 804 , 26 S.E. 858 (1897). See, in accord, Commonwealth v. Miller, 3 Va. (1 Va. Cas.) 310 (1812); Wicks v. Commonwealth, 4 Va. (2 Va. Cas.) 387 (1824); Thompson v. Commonwealth, 61 Va. (20 Gratt.) 724 (1870). See also Thurman v. Commonwealth, 107 Va. 912 , 60 S.E. 99 (1908).

Where the indictment was sufficient to convict on first as well as second-degree murder, the petitioner's plea of guilty was a plea of guilty to first-degree murder. Davis v. Slayton, 353 F. Supp. 571 (W.D. Va. 1973).

Manner of killing. - Under an indictment for murder in the form prescribed by § 19.2-221 or Rule 3A:7, Form 5, the Commonwealth may prove a killing in any manner or in different manners. Thus, the Commonwealth was not required to elect whether it was proceeding against the defendant on the theory that the killing was willful, deliberate and premeditated or under the felony-murder doctrine that the killing occurred in the commission of an abduction. Akers v. Commonwealth, 216 Va. 40 , 216 S.E.2d 28 (1975).

Must charge that killing was done with "malice aforethought." - In an indictment for murder, it is indispensable that the killing and murder should be charged to be done with "malice aforethought." And if the assault and stabbing be charged to have been done with "malice aforethought" and the conclusion substitutes for those words the word "maliciously," the indictment is not sufficient. Commonwealth v. Gibson, 4 Va. (2 Va. Cas.) 70 (1817).

But it may omit words "deliberately" and "premeditate." - In an indictment for murder, the omission of the word "deliberately," will not be fatal on general demurrer. Bull v. Commonwealth, 55 Va. (14 Gratt.) 613 (1857). Nor omission of the word "premeditate." Weatherman v. Commonwealth, 1 Va. Dec. 819, 19 S.E. 778 (1894). See Livingston v. Commonwealth, 55 Va. (14 Gratt.) 592 (1857).

The deletion from an indictment of the words "willfully, deliberately and premeditatedly," and the inclusion of the phrase "during the commission of robbery while armed with a deadly weapon" did not constitute a binding prosecutorial commitment to prove first-degree murder under this section solely through the mechanism of proving a robbery. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

Defects as to time are not fatal. - The decisions holding that the defect in the indictment as to the elements of time is fatal were prior to § 19.2-231 as it now reads. Prior to this time there could be no amendment after the indictment was returned by the grand jury. Section 19.2-231 changed this rule. Woods v. Commonwealth, 140 Va. 491 , 124 S.E. 468 (1924).

And it is not error to set out dates in figures. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853).

Or to designate the name of murdered person by initials. - An indictment concluding "against the peace and dignity of the Commonwealth of Virginia," and designating the murdered person by the initials of his name, though not signed by the Commonwealth's attorney is sufficient. Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890).

It is not necessary to set out the length, breadth or depth of the wound. Lazier v. Commonwealth, 51 Va. (10 Gratt.) 708 (1853).

Nor is it necessary to specify the kind of missile used. - An averment that the killing was done with a loaded shotgun would have been sufficient without specifying the kind of missiles employed. Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 (1918).

Or that accused knew the killing substance was a deadly poison. - In an indictment for murder by poison, it is not necessary to charge that the accused knew the substance alleged to have been used in producing death was a deadly poison. Thornton v. Commonwealth, 65 Va. (24 Gratt.) 657 (1874).

Amendment properly denied. - In prosecution for first-degree murder it was held proper under the evidence for the court to deny motion to amend indictment to charge only manslaughter. Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368 (1952).

Prosecution's switch of theories on retrial does not violate due process. - The prosecution's switch on retrial of petitioner for murder from a theory of premeditated murder in petitioner's original trial to a theory of felony murder in petitioner's retrial did not violate petitioner's due process rights, as petitioner's indictment gave him adequate notice that he might be tried for felony murder, and the evidence at petitioner's first trial was substantially the same as that at his retrial. Moore v. Garraghty, 739 F. Supp. 285 (E.D. Va. 1990), aff'd, 932 F.2d 963 (4th Cir. 1991).

B. DEFENSES.
1. SELF-DEFENSE.

Self-defense is an affirmative defense and the state may cast upon the accused the burden of proving self-defense. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Defense must be necessary to protect against grievous bodily harm. - To make out a case of self-defense in a case of homicide, the accused must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1893). See Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890).

And the necessity must not arise out of accused's misconduct. - With regard to the necessity that will justify the slaying of another in self-defense, the accused must not have wrongfully occasioned the necessity, for a man shall not in any case justify the killing of another by a pretense of necessity, unless he were without fault in bringing that necessity upon himself. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855); Bristow v. Commonwealth, 56 Va. (15 Gratt.) 634 (1859); Lewis v. Commonwealth, 78 Va. 732 (1884); Honesty v. Commonwealth, 81 Va. 283 (1886); Gaines v. Commonwealth, 88 Va. 682 , 14 S.E. 375 (1892); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1893); Gray v. Commonwealth, 92 Va. 772 , 22 S.E. 858 (1895); Jackson v. Commonwealth, 98 Va. 845 , 36 S.E. 487 (1900); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919); Bausell v. Commonwealth, 165 Va. 669 , 181 S.E. 453 (1935). See Looney v. Commonwealth, 115 Va. 921 , 78 S.E. 625 (1913).

Homicide in self-defense may be either justifiable or excusable. If it is either, it entitles the prisoner to an acquittal. But if the difficulty is brought about by the accused and he finds that it is necessary to kill his assailant in order to save his own life, such killing is not in the eye of the law excusable. Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922).

Accused must retreat as far as he safely can before killing. - When a man is assaulted in the course of a sudden brawl or quarrel, he may in some cases protect himself by slaying the person who assaults him, and excuse himself on the ground of self-defense. Before a party thus assaulted, however, can kill his adversary, he must have retreated as far as he safely could to avoid the assault, until his further going back was prevented by some impediment, or as far as the fierceness of the assault permitted. He must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855).

Justified self-defense applies if the defendant was without fault in bringing on the altercation. Epps v. Commonwealth, No. 2921-02-3, 2003 Va. App. LEXIS 641 (Ct. of Appeals Dec. 16, 2003).

Failure to retreat. - Defendant's conviction for first-degree murder was proper because defendant's own testimony revealed that he did not retreat as far as possible; additionally, when the victim, without a weapon and wounded by a shotgun, was on the ground after a blow from defendant, defendant was not acting out of a reasonably apparent necessity to preserve his own life. Accordingly, the trial court did not err when it denied defendant's motion to strike on the basis of excusable homicide in self-defense. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

To reduce the offense to killing in self-defense the accused must prove two things, to wit: (1) that before the mortal blow was given he declined further combat, and retreated as far as he could with safety; and (2) that he killed the deceased through the necessity of preserving his life or to save himself from great bodily harm. Vaiden v. Commonwealth, 53 Va. (12 Gratt.) 717 (1855); Dock v. Commonwealth, 62 Va. (21 Gratt.) 909 (1872); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1894).

Distinction between accident and self-defense. - The defense that a killing was accidental presents a different issue from a claim that a killing was done in self-defense; in making a claim of self-defense a defendant implicitly admits the killing was intentional and assumes the burden of introducing evidence of justification or excuse that raises a reasonable doubt in the minds of jurors. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

Death may result accidentally from action taken in self-defense and, under such circumstances, defenses of accident and self-defense are not mutually exclusive and instructions on both defenses should be given upon request. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

Unless assaulted while in the discharge of a lawful act. - A person assaulted while in discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all force he deems necessary and is not compelled to retreat from his assailant, but may in turn become the assailant, inflicting bodily wounds until his person is out of danger. Jackson v. Commonwealth, 96 Va. 107 , 30 S.E. 452 (1898); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919).

There must be an overt act by deceased to warrant a killing. - There must be some act by the deceased meaning present peril, or something in the attending circumstances indicative of a present purpose to make the apprehended attack. The act so done, or circumstances thus existing, must be of such a character as to afford a reasonable ground for believing there is a design to commit a felony, or to do some serious bodily harm, and imminent danger of carrying such design into immediate execution. Then the killing will be justifiable, though there was in fact no such design by the deceased. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874).

For fear alone that a man intends to commit murder will not suffice. - The bare fear that a man intends to commit murder or other atrocious felony, however well grounded, unaccompanied by any overt act indicative of any such intention will not warrant killing the party by way of prevention. There must be some overt act indicative of imminent danger at the time. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874).

Whether the defendant shot in self-defense depends on whether he reasonably believed that it was necessary to shoot as he did in order to save his own life or avoid serious bodily harm. Fear alone would not excuse the killing. There must have been some overt act by the deceased indicative of imminent danger at the time. Boone v. Commonwealth, 195 Va. 708 , 80 S.E.2d 412 (1954).

An overt act of sufficient imminence. - In a first degree murder prosecution, where the victim had a history of assaulting defendant, and had allegedly assaulted her and refused to leave her residence, his allegedly advancing towards her after threatening her was an overt act of sufficient imminence on his part that would warrant her to use deadly force in self-defense. Thus, the trial court erred in denying her proffered self-defense instruction. Commonwealth v. Cary, 271 Va. 87 , 623 S.E.2d 906, 2006 Va. LEXIS 22 (2006).

A person reasonably apprehending attack has a right to arm himself for his necessary self-defense. Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

As to distinction between killing in self-defense proper and accidental or unintentional killing while in the exercise of self-defense, see Braxton v. Commonwealth, 195 Va. 275 , 77 S.E.2d 840 (1953).

As to admissibility of evidence of decedent's prior character, see notes under analysis line III, C, 2.

As to issue of remoteness of evidence showing decedent's prior character, see note under analysis line III, C, 3.

The trier of fact determines the weight of evidence in support of a claim of self-defense. Gardner v. Commonwealth, 3 Va. App. 418, 350 S.E.2d 229 (1986).

2. DRUNKENNESS AND INSANITY.

Effect of intoxication on ability to commit first degree murder. - When a man has become so greatly intoxicated as not to be able to deliberate and premeditate, he cannot commit murder of the first degree, or that class of murder under the statute denominated a willful, deliberate and premeditated killing. But so long as he retains the faculty of willing, deliberating and premeditating, though drunk, he is capable of committing murder in the first degree; and if a drunk man is guilty of a willful, deliberate and premeditated killing, he is guilty of murder in the first degree. Hatcher v. Commonwealth, 218 Va. 811 , 241 S.E.2d 756 (1978).

A person who voluntarily has become so intoxicated as to be unable to deliberate and premeditate cannot commit any class of murder that is defined as a willful, deliberate and premeditated killing. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980).

Mere intoxication from drugs or alcohol will not suffice to negate premeditation. Giarratano v. Commonwealth, 220 Va. 1064 , 266 S.E.2d 94 (1980).

Voluntary drunkenness will not reduce offense to manslaughter. - "Voluntary immediate drunkenness is not admissible to disprove malice, or to reduce the offense to manslaughter. But where, by reason of it, there is wanting that deliberation and premeditation which are necessary to elevate the offense to murder in the first degree, it is properly ranked as murder in the second degree, as the courts have repeatedly decided." Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879). See also Honesty v. Commonwealth, 81 Va. 283 (1886).

Mere intoxication will not negate premeditation. However, when a person voluntarily becomes so intoxicated that he is incapable of deliberation or premeditation, he cannot commit a class of murder that requires proof of a deliberate and premeditated killing. Wright v. Commonwealth, 234 Va. 627 , 363 S.E.2d 711 (1988).

While a person who has become so intoxicated as to be unable to deliberate and premeditate cannot commit any class of murder that is defined as a willful, deliberate, and premeditated killing, mere intoxication from drugs or alcohol will not suffice to negate premeditation. Jenkins v. Commonwealth, 244 Va. 445 , 423 S.E.2d 360 (1992), cert. denied, 507 U.S. 1036, 113 S. Ct. 1862, 123 L. Ed. 2d 483 (1993), overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Where defendant was charged with first-degree murder by lying in wait, the trial court did not abuse its discretion in granting the Commonwealth's motion to exclude any evidence of his alleged intoxication at the time of the offense; because premeditation was not an element of first-degree murder by lying in wait, any evidence of voluntary intoxication offered to negate premeditation would be irrelevant. Tisdale v. Commonwealth, 65 Va. App. 478, 778 S.E.2d 554, 2015 Va. App. LEXIS 329 (2015).

But is admissible to show the murder was not premeditated. - "Drunkenness is only entitled to weight when and so far as it tends to show that the offender did not act in a frame of mind to act with that determination and premeditation which is necessary to constitute murder in the first degree. Great caution is required in applying this doctrine because there are few cases of premeditated violent homicide in which the defendant does not nerve himself to the encounter by liquor." Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879). See Baccigalupo v. Commonwealth, 74 Va. (33 Gratt.) 807 (1880); Honesty v. Commonwealth, 81 Va. 283 (1886).

Voluntary drunkenness (as distinguished from permanent insanity produced by drink) affords no excuse for crime, save only that where premeditation is a material question the intoxication of the accused may be considered by the jury. As between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry; but, as between murder in the second degree and manslaughter, it is never material and cannot be considered. Gills v. Commonwealth, 141 Va. 445 , 126 S.E. 51 (1925).

Voluntary intoxication is material to the element of premeditation and may be found to have negated it. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

The defendant may negate the specific intent requisite for capital or first-degree murder by showing that he was so greatly intoxicated as to be incapable of deliberation or premeditation, but voluntary intoxication is no defense to the lesser degrees of homicide, or to any other crime. Particularly, his state of intoxication, however great, will not repel an inference of malice, implied by the circumstances surrounding his conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

When partial insanity is no defense. - In every case, although the accused may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences, and has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, and possesses withal a will sufficient to restrain the impulse that may arise from a diseased mind, such partial insanity is not sufficient to exempt him from responsibility to the law for his crime. Dejarnette v. Commonwealth, 75 Va. 867 (1881).

The doctrine of irresistible impulse is applicable only where the defendant knows that the act is wrong but is driven by an irresistible impulse to commit it. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

The irresistible impulse doctrine is applicable only to that class of cases where the accused is able to understand the nature and consequences of his act and knows it is wrong, but his mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952); McLane v. Commonwealth, 202 Va. 197 , 116 S.E.2d 274 (1960); Christian v. Commonwealth, 202 Va. 311 , 117 S.E.2d 72 (1960).

In prosecution for homicide although instruction to the effect that the only degree of insanity the law recognizes as an excuse for a crime is that determined by the "right and wrong test" was inaccurate, the failure to include in such instruction the doctrine of irresistible impulse did not constitute reversible error as applied to the evidence in the case. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

The defense of irresistible impulse is applicable only where the accused's mind has become so impaired by disease that he is totally deprived of the mental power to control or restrain his act. Godley v. Commonwealth, 2 Va. App. 249, 343 S.E.2d 368 (1986).

How sanity to be determined. - Defendant in murder prosecution was, under the evidence, entitled to have the question of his sanity determined by a fair and impartial jury, uninfluenced or affected by any testimony except that produced in open court. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

Burden on accused to show he was rendered incapable of doing premeditated act by drunkenness. - The onus rests on accused to prove, if he relies on intoxication as a defense, that when he committed the offense his condition, from intoxication was such as to render him incapable of doing a willful, deliberate and premeditated act. And so of insanity. Both must be proved as independent facts. Honesty v. Commonwealth, 81 Va. 283 (1886).

Burden on accused to show insanity. - If the accused relies on the defense of insanity, the burden is on him to prove to the satisfaction of the jury that he was insane at the time. Reasonable doubt as to his insanity is not enough to excuse him. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

The accused has the burden of proving that he was insane when the offense was committed. Bloodgood v. Commonwealth, 212 Va. 253 , 183 S.E.2d 737 (1971).

When the corpus delicti has been established and proof adduced that the accused committed the act it is not sufficient for the accused to raise a reasonable doubt as to his sanity; he must go one step further and prove to the satisfaction of the jury that he was insane at the time of the commission of the act. Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960); Christian v. Commonwealth, 202 Va. 311 , 117 S.E.2d 72 (1960).

The Commonwealth having established the corpus delicti and that the act was committed by the defendant, had made out its case, and the burden rested upon the accused to prove to the satisfaction of the jury that at the time of the commission of the act he was insane. This burden rests upon the accused by reason of the presumption of law that every person of the age of discretion is of sound mind. Lucas v. Commonwealth, 201 Va. 599 , 112 S.E.2d 915 (1960).

Effect of expert testimony. - Although the Commonwealth produced no expert testimony, the jurors were not bound to accept the testimony of defendant's expert to the effect that defendant committed the crime under an "irresistible impulse." The evidence of an expert witness should be given the same consideration as is given that of any other witness, considering his opportunity for knowledge of the subject, his appearance, conduct, and demeanor on the stand. McLane v. Commonwealth, 202 Va. 197 , 116 S.E.2d 274 (1960).

Opinion of lay witness. - It was improper, though not reversible error, to admit the opinion of a lay witness as to whether defendant acted "like he was out of his mind." Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960).

Issue of sanity held for the jury even though medical witnesses were unable to state an opinion as to whether or not defendant was insane at the time of the crime. Lucas v. Commonwealth, 201 Va. 599 , 112 S.E.2d 915 (1960).

Instruction on partial insanity upheld. - An instruction is not misleading or confusing which plainly tells the jury that although the defendant may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences, and has knowledge that it is wrong and criminal and has mental power sufficient to apply that knowledge to his own case, and has knowledge sufficient to know that if he does the act he will do wrong and receive punishment, and possesses a will sufficient to restrain the impulse that may arise from a diseased mind, that such partial insanity is not sufficient to exempt him from responsibility to the law for his crime. Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960).

Intoxication held not so great to render defendant incapable of premeditated murder. - Where defendant was at his mother's home before the murder and had the ability to talk with her and determine that he wanted to visit his children, who were living with the victim, although at an inappropriate hour; he had the mental capacity to determine that he would need a screwdriver and a carpenter's knife to get into the victim's apartment; he was able to walk to her residence four or five blocks away and then use the tools he brought with him to break and enter the door; he decided that he might need a butcher knife and found his way to the kitchen to obtain it; he went to the victim's bedroom and discussed with her the visitation of the children; and after the killing he was able to go to the telephone, dial the police, and report that he had killed the victim, the defendant's level of intoxication from alcohol and drug use was not so great as to render him incapable of committing a deliberate and premeditated murder. Patterson v. Commonwealth, No. 0819-85 (Ct. of Appeals July 30, 1986).

Voluntary intoxication defense rejected. - Defendant's conviction for first-degree murder was proper because, by his own testimony, it was clear that on the day in question he comprehended what was occurring; he recalled the chain of events and he articulated reasons for his reaction to the developing situation in a way that supported a finding that he was capable of deliberation despite his consumption of intoxicants. Accordingly, the trial court did not err when it denied defendant's motion to strike the charge of first-degree murder on the grounds that he was voluntarily intoxicated. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

3. OTHER DEFENSES.

A homicide committed to prevent a felony is justifiable. Cooke v. Commonwealth, 114 Va. 882 , 77 S.E. 608 (1913).

Duress. - A person subject to duress may justifiably violate the literal language of the criminal law in order to avoid a harm of greater magnitude. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

To support a defense of duress, a defendant must demonstrate that his criminal conduct was the product of an unlawful threat that caused him reasonably to believe that performing the criminal conduct was his only reasonable opportunity to avoid imminent death or serious bodily harm, either to himself or to another. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

A defendant may not rely on the defense of duress if he has a reasonable opportunity both to refuse to do the criminal act and also to avoid the threatened harm. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

Defense of duress requires showing of imminent harm. - The more appropriate approach to the defense of duress is to require a showing of "imminent" harm rather than the stricter and more limiting "immediate" harm. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

"Threats of future harm" denotes threats of harm that might occur at some uncertain time that is distant and separate from the period of duress or coercion; therefore, the temporal proximity of the threat and the threatened harm is the true issue, and the proper distinction between imminent and immediate harm is how far in the future is the harm to occur from the time the threat is made. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

Vague threats of future harm, however alarming, will not suffice to excuse criminal conduct. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

Duress is available in cases involving threats against family members. - The defense of duress is applicable to cases involving threats of harm against a defendant's family members. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

The defense of duress may be available to a defendant who has committed a criminal act because of threats made against members of the defendant's family. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

When balanced against a lesser evil, a greater evil, whether committed against the defendant or a member of the defendant's family, is still less desirable for reasons of social policy. Sam v. Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991).

One may kill to protect his family. - On the trial of S. for the murder of E., if S. shot E. under a reasonable apprehension that his own life or that of some member of his family was in imminent danger, or under a reasonable apprehension that the deceased intended to burn the dwelling house of his mother, or commit some other known felony, and that there was imminent danger of such design being carried into execution, he is justified in so doing, though such danger was unreal. Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874). See Green v. Commonwealth, 122 Va. 862 , 94 S.E. 940 (1918).

Killing to resist entry of dwelling. - The owner may resist the entry of his dwelling but he has no right to kill, unless it be rendered necessary to prevent loss of life or great bodily harm. If he kills where there is not a reasonable ground of apprehension of imminent danger to his person or property, it is manslaughter, and if done with malice, express or implied, it is then murder. Bausell v. Commonwealth, 165 Va. 669 , 181 S.E. 453 (1935). But see Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874); Parrish v. Commonwealth, 81 Va. 1 (1884).

A mere trespass upon land is insufficient provocation. - For a mere trespass upon land, the owner has no right to assault the trespasser with a deadly weapon, the result of which may be to kill him or do him great bodily harm. Montgomery v. Commonwealth, 98 Va. 840 , 36 S.E. 371 (1900).

Provocation not proved. - Defendant's conviction for first-degree murder was proper because the victim's alleged statements regarding his disapproval of African Americans was so removed in time that it was irrelevant to the issue of reasonable provocation. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

And words, however grievous, will not justify an assault. McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919). See Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922).

In a prosecution for homicide, where the deceased, who was intoxicated, applied a vile epithet to the accused and others to which the accused took exception and invited the deceased outside to fight, and in the fight the accused stabbed the deceased eight times and killed him, the deceased not being armed, it was held that vile as the epithet was that deceased employed, it afforded no legal excuse to the accused to assault him and was not in law such a provocation as justified the killing. Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935).

Self-induced unconsciousness goes only to the grade of the offense and not to the existence of a complete defense. Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974).

Where not self-induced, unconsciousness is a complete defense to a criminal homicide. Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974).

Evidence contradicting assertion of accident. - The jury was presented with evidence contradicting defendant's assertion that his gun discharged accidentally as he was raising the weapon from his leg holster, where the autopsy report showed that the bullet traveled at a slightly downward angle through the victim's chest. From this fact, the jury was entitled to infer that defendant was not truthful about the manner in which the shooting occurred. Gardner v. Commonwealth, 3 Va. App. 418, 350 S.E.2d 229 (1986).

Conviction for conduct not constituting crime. - Section 18.2-26 , at the time of defendant's offense, did not provide a punishment for an attempted felony which was punishable by confinement for a maximum of 40 years. Thus, although defendant's conduct may have been proscribed by this section, it was an offense without a penalty. Therefore, defendant was convicted for conduct which constituted no crime at the time of the offense. Accordingly, the judgment of the trial court was reversed. Cook v. Commonwealth, 20 Va. App. 510, 458 S.E.2d 317 (1995).

No retroactive assignment of punishment. - Although the amendments to § 18.2-26 subsequent to defendant's misconduct included attempts at offenses under this section, the revised statute may not retroactively assign punishment to prior acts. Cook v. Commonwealth, 20 Va. App. 510, 458 S.E.2d 317 (1995).

No due process violation. - Defendant did not allege that the exclusion of evidence violated his rights under the Bill of Rights, and nothing in the record showed that he was denied a fundamental right, and there was no due process violation on the part of the circuit court. Jones v. Commonwealth, 71 Va. App. 70, 833 S.E.2d 918, 2019 Va. App. LEXIS 244 (2019).

C. EVIDENCE.
1. PRESUMPTIONS AND BURDEN OF PROOF.
a. DEGREE OF OFFENSE.

Nothing in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) casts any shadow upon the constitutionality of this section. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

This section does not mention, much less establish, any presumptions or burdens. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

Ultimate burden of proof on prosecution. - Neither the due process clause nor Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) prohibits the use of presumptions or inferences as procedural devices to shift to the accused the burden of producing some evidence contesting the otherwise presumed or inferred fact. These devices, however, must satisfy certain due process requirements, and the ultimate burden of proof beyond a reasonable doubt must remain upon the prosecution. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The presumption of innocence to which an accused is entitled follows him throughout the trial. This presumption is sufficient to require his acquittal on the charge brought against him unless the Commonwealth proves beyond a reasonable doubt every material element of that charge. The burden of proof is always upon the Commonwealth, and this burden never shifts. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The presumption is that every killing is murder in the second degree. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Watson v. Commonwealth, 85 Va. 867 , 9 S.E. 418 (1889); Vance v. Commonwealth, 1 Va. Dec. 830, 19 S.E. 785 (1894); Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

And burden is on state to raise offense to murder in the first degree. - The presumption arising from the homicide being that the killing is murder in the second degree, if the state would make it murder in the first degree, the burden is upon the state to establish the elements of the crime. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879); McDaniel v. Commonwealth, 77 Va. 281 (1883); Watson v. Commonwealth, 85 Va. 867 , 9 S.E. 418 (1889); Smith v. Commonwealth, 192 Va. 186 , 64 S.E.2d 761 (1951); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

In establishing first-degree murder the Commonwealth has the burden of showing both premeditation and malice. Brown v. Commonwealth, 212 Va. 515 , 184 S.E.2d 786 (1971).

By showing malice aforethought and intent to kill. - Under this section, in order to elevate the crime of murder to murder in the first degree, the burden is upon the Commonwealth to show not only that the killing was done with malice aforethought, but also that the homicide was committed with the intent to kill, not merely to do great bodily harm. Williams v. Commonwealth, 128 Va. 698 , 104 S.E. 853 (1920).

Second-degree murder presumption is no more than inference. - The Virginia presumption of second-degree murder arising from the commission of an unlawful homicide amounts, in practical effect, to no more than an inference which the trier of fact is permitted, but is not required, to draw from proven facts. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

The presumption of second-degree murder employed in Virginia is the type of procedural, evidentiary device permitted by Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Neither the presumption nor the resulting burden imposed upon the accused has the effect of shifting from the prosecution the ultimate burden of persuasion upon the critical issue of malice or its corollary, the absence of heat of passion. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The Virginia presumption that an unlawful homicide is murder of the second degree differs substantially, both in nature and effect, from the Maine presumption struck down in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). Unlike the Maine presumption, the Virginia presumption is not conclusive. Unlike the Maine presumption, the Virginia presumption does not cast upon the accused the burden of proving by a fair preponderance of the evidence that he acted in the heat of passion in order to put that critical fact in issue and to require the Commonwealth to negate passion beyond a reasonable doubt. The Virginia burden is satisfied when the accused produces some credible evidence that he acted in the heat of passion. But even if he produces no evidence, he may rely upon the Commonwealth's evidence to secure a manslaughter instruction and an acquittal on the charge of murder, if that evidence indicates he acted in the heat of passion. In practical effect, therefore, the Virginia presumption amounts to no more than an inference which the trier of fact is permitted, but is not required, to draw from proven facts. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

This section merely prescribes what shall constitute murder of the first degree and then declares that all other murders shall be of the second degree. Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

When the Commonwealth makes a prima facie showing that malice exists, it thereby establishes prima facie that heat of passion is absent. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The Virginia presumption or inference of malice arising from the commission of an unlawful homicide is clothed with due process safeguards. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Evidence must prove inference beyond reasonable doubt. - Virginia law comports with the rule that the evidence necessary to invoke the presumption or inference must be sufficient for a rational juror to find the presumed or inferred fact beyond a reasonable doubt. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The burden of going forward with the evidence may, from time to time during the course of trial, shift from one side to the other as the exigencies of the situation may require. For example, the burden of production may first shift to the accused to neutralize, by evidence raising a reasonable doubt, a prima facie showing by the Commonwealth of guilt and then to the Commonwealth to overcome the showing made by the accused. But the ultimate burden of persuasion remains upon the Commonwealth, and if, upon the evidence as a whole, both for the Commonwealth and the accused, there remains a reasonable doubt of the guilt of the accused, he must be acquitted or convicted only of a lesser included charge established by the evidence. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Burden of persuasion as to malice cannot be shifted to accused. - There is no violation of the rule of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) that the burden of persuasion may not be shifted to the accused upon the critical issue of malice. Virginia has long recognized that malice and heat of passion cannot coexist. Proof of malice excludes the presence of passion, and proof of passion presupposes the absence of malice. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

The Commonwealth is not entitled to the presumption of malice in the absence of evidence showing that defendant's use of the pistol was deliberate, that is, not accidental. Lawhorne v. Commonwealth, 213 Va. 608 , 194 S.E.2d 747 (1973).

Similarly, burden is on accused to reduce offense to manslaughter. - And if the accused would reduce the crime to manslaughter, the burden of proof is on him to overcome the presumption of murder arising from the killing. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Willis v. Commonwealth, 73 Va. (32 Gratt.) 929 (1879); Watson v. Commonwealth, 85 Va. 867 , 9 S.E. 418 (1889); Vance v. Commonwealth, 1 Va. Dec. 830, 19 S.E. 785 (1894); Smith v. Commonwealth, 192 Va. 186 , 64 S.E.2d 761 (1951); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

By showing justification or excuse. - Every homicide is prima facie murder in the second degree, and the burden is upon the defendant to establish to the satisfaction of the jury any justification or excuse relied upon by him. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921); Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

When the Commonwealth has proved the commission of a homicide, and has pointed out the accused as a criminal agent, then it may rest its case, and unless the accused shows circumstances of justification, alleviation or excuse, a verdict of murder in the second degree will be warranted. Braxton v. Commonwealth, 195 Va. 275 , 77 S.E.2d 840 (1953); Boone v. Commonwealth, 195 Va. 708 , 80 S.E.2d 412 (1954).

All homicide is, in presumption of law, malicious, and of course amounts to murder, unless justified, excused or alleviated. It is incumbent upon the prisoner to make out to the satisfaction of the court and jury the circumstances of justification, excuse and alleviation. M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846).

Once the Commonwealth proves an unlawful homicide and establishes the accused as the criminal agent, the presumption of second-degree murder arises and he has the burden of showing circumstances of justification, excuse or alleviation. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Which raises a reasonable doubt that offense was murder. - In order to reduce a homicide from murder in the second degree to manslaughter or excusable homicide, the burden is upon the accused to introduce evidence sufficient to raise a reasonable doubt in the minds of the jury as to whether the offense is murder in the second degree. Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 328 (1922).

In a given situation, the accused, without producing evidence, may be entitled to an instruction on manslaughter, or even to a verdict on that lesser charge, if it can reasonably be inferred from the Commonwealth's evidence that he acted in the heat of passion. Where the Commonwealth's evidence does not permit such an inference, however, the burden of production shifts to the accused. But when he produces some credible evidence that he acted in the heat of passion, he is entitled to an instruction on manslaughter and also, if the evidence as a whole raises a reasonable doubt that he acted maliciously, to a verdict on the lesser charge of homicide. Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976).

Guilty plea held involuntary. - Where the defendant's guilty plea to a short form indictment of murder was based upon the advice of counsel who mistakenly understood that the Commonwealth would have the burden of raising the degree of the offense to first-degree murder through a showing of evidence of premeditation, when in fact the Virginia Supreme Court has determined that a guilty plea is always to the highest degree of the offense charged in the indictment and that the statutory short form of indictment for murder includes murder in the first degree, the plea could not be viewed as voluntary, intelligent or made with an awareness of the likely consequences. Harlow v. Murray, 443 F. Supp. 1327 (W.D. Va.), aff'd, 588 F.2d 1348 (4th Cir. 1978).

b. OTHER MATTERS.

Fact of death must be shown by direct proof or strongest presumptive evidence. - The corpus delicti consists of two fundamental facts: first, the death, and second, the existence of the criminal agency as the cause thereof. The former must be shown either by direct proof, or by presumptive evidence of the strongest kind, which is clearly satisfactory to the jury, and convinces them beyond a reasonable doubt. Smith v. Commonwealth, 62 Va. (21 Gratt.) 809 (1871); Dean v. Commonwealth, 73 Va. (32 Gratt.) 912 (1879); Hatchett v. Commonwealth, 76 Va. 1026 (1882); Russell v. Commonwealth, 78 Va. 400 (1884); Sutton v. Commonwealth, 85 Va. 128 , 7 S.E. 323 (1888).

A man must be taken to intend that which he does, or which is the natural and necessary consequence of his act. Hill v. Commonwealth, 43 Va. (2 Gratt.) 594 (1845); Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873); McDaniel v. Commonwealth, 77 Va. 281 (1883); Price v. Commonwealth, 77 Va. 393 (1883). See Lewis v. Commonwealth, 78 Va. 732 (1884).

The burden of showing that a killing is accidental is upon the accused. Lawhorne v. Commonwealth, 213 Va. 608 , 194 S.E.2d 747 (1973).

Restrictions on cross-examination. - Second-degree murder conviction would be reversed, and case would be remanded for new trial, where trial judge erred in limiting counsel's cross-examination of adverse witnesses about pending charges and their dispositions for purposes of showing bias and motive to testify, where from proffered evidence the jury could have inferred that both had agreements for leniency with the State. Fogg v. Commonwealth, No. 3062-00-2, 2002 Va. App. LEXIS 323 (Ct. of Appeals May 28, 2002).

Appellate review standard. - Defendant's convictions for second-degree murder of defendant's wife and for the use of a firearm in the commission of the murder were reinstated, after having been reversed on initial appeal, by the lower appellate court, which found that there was evidence to support defendant's hypothesis of innocence, and that there was some evidence that defendant's wife may have fatally fired the gun; the issue upon appellate review was not whether there was some evidence to support defendant's hypotheses, the issue was whether a reasonable jury, upon consideration of all the evidence, could have rejected defendant's theories in defendant's defense and found defendant guilty of murder beyond a reasonable doubt, which the jury could have done in the instant case. Commonwealth v. Hudson, 265 Va. 505 , 578 S.E.2d 781, 2003 Va. LEXIS 49 (2003), cert. denied, 540 U.S. 972, 124 S. Ct. 444, 157 L. Ed. 2d 322 (2003).

2. ADMISSIBILITY.

Proof violating defendant's right against self-incrimination. - Proof in a murder trial of the defendant's identity primarily through the testimony of a state-employed psychiatrist hired to determine competency to stand trial that the defendant had admitted the crime, was in violation of the defendant's constitutional right against self-incrimination. Gibson v. Zahradnick, 581 F.2d 75 (4th Cir.), cert. denied, 439 U.S. 996, 99 S. Ct. 597, 58 L. Ed. 2d 669 (1978).

False information leading to confession not error to admit. - Trial court did not err in denying motion to suppress defendant's confession where he gave an inculpatory statement only after police created and showed him falsified fingerprint and DNA reports implicating him in the crime. Arthur v. Commonwealth, 24 Va. App. 102, 480 S.E.2d 749 (1997).

Previous quarrels and ill feelings between accused and deceased are admissible. Poindexter v. Commonwealth, 74 Va. (33 Gratt.) 766 (1880); Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910).

Also, threats by deceased communicated to accused. - Threats by deceased communicated to the prisoner, directly or indirectly, or through others are admissible to show the motive of the killing. Lewis v. Commonwealth, 78 Va. 732 (1884). See Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910); Stapleton v. Commonwealth, 123 Va. 825 , 96 S.E. 801 (1918).

Antecedent threats of accused. - On a trial for homicide, antecedent threats are competent evidence both on a question of deliberation and premeditation. Lewis v. Commonwealth, 78 Va. 732 (1884); Honesty v. Commonwealth, 81 Va. 283 (1886); Snodgrass v. Commonwealth, 89 Va. 679 , 17 S.E. 238 (1893); Nicholas v. Commonwealth, 91 Va. 741 , 21 S.E. 364 (1895). See Muscoe v. Commonwealth, 87 Va. 460 , 12 S.E. 790 (1891); Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910).

Including impersonal threats. - See Snodgrass v. Commonwealth, 89 Va. 679 , 17 S.E. 238 (1893); Hardy v. Commonwealth, 110 Va. 910 , 67 S.E. 522 (1910).

Evidence of discussion of murder and how to get away with it. - Trial court did not err in allowing prosecution to present evidence that several months prior to the killing, defendant had engaged in a discussion with two classmates centered on how to murder someone and get away with it. Because the circumstances of the shooting generally conformed to the suggestions that arose from the conversation, and because evidence of the discussion went to establish premeditation, the trial court did not abuse its discretion in admitting evidence of that discussion, despite its potential for prejudicial impact. Miller v. Commonwealth, 15 Va. App. 301, 422 S.E.2d 795 (1992), aff'd, 246 Va. 336 , 437 S.E.2d 411 (1993).

Evidence of use of stolen weapon. - Trial court did not err in admitting evidence that, eight to nine months prior to the offense, defendant committed an uncharged theft of the weapon used to shoot victim. At issue was whether defendant planned the killing. Use of a stolen weapon in the commission of a killing could make the tracing of the bullets to the perpetrator more difficult. The fact that defendant used a stolen weapon, not whether he stole it, was relevant at trial to the critical question of premeditation. Miller v. Commonwealth, 15 Va. App. 301, 422 S.E.2d 795 (1992), aff'd, 246 Va. 336 , 437 S.E.2d 411 (1993).

And the subsequent possession by accused of shells fitting gun used. Litton v. Commonwealth, 101 Va. 833 , 44 S.E. 923 (1903).

Attempt to purchase untraceable weapon. - The fact that defendant sought to obtain a deadly weapon that could not be traced to her was relevant to prove that she attempted to obtain the means to inflict death or serious bodily harm to another at a time when she had a reason or motive for wanting to do so. The fact that she was present at the time of victim's death and had given false and conflicting accounts of what occurred tended to enhance the relevance of the evidence. Therefore, trial court did not abuse its discretion by admitting testimony that defendant attempted to purchase an untraceable, concealable handgun within 10 months of victim's murder. Monroe v. Commonwealth, No. 2604-92-2 (Ct. of Appeals May 2, 1995).

Evidence of assault on other members of family. - Where defendant went to deceased's home, talked with deceased at front door, shot and killed him, it was not error to admit evidence that defendant then went into the home and assaulted other members of the family. The actions were continuous and interwoven and necessary to show jury the circumstances surrounding the killing, and tended to show motive and that the killing was willful and deliberate. Williams v. Commonwealth, 208 Va. 724 , 160 S.E.2d 781 (1968).

Evidence that defendant killed other members of same family. - In a prosecution for murder of one member of a family, evidence that defendant killed other members of the same family was properly admitted to show motive. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Evidence of good character and peaceable nature of deceased. - It is true that the Commonwealth may not ordinarily, in its case-in-chief, offer evidence of the good character and peaceable nature of the deceased. However, where the Commonwealth has the burden of proving by circumstantial evidence that the victim was dead as a result of the criminal act of another, the evidence must be such as to foreclose every reasonable hypothesis of innocence, including suicide, natural death, accidental death, justifiable or excusable homicide, or continuing life in absentia. Epperly v. Commonwealth, 224 Va. 214 , 294 S.E.2d 882 (1982).

Evidence of infidelity or disharmony in prosecution for murder of spouse. - In a prosecution for the murder of one's spouse the Commonwealth generally may introduce evidence of marital infidelity and may offer relevant evidence to show marital disharmony or to rebut evidence of marital bliss. Brown v. Commonwealth, 3 Va. App. 182, 348 S.E.2d 849 (1986).

Evidence of fight between husband and wife 18 months prior to her murder was properly admitted for the purpose of showing the relations between the parties, their state of feeling and course of conduct towards each other, and as reflecting light upon the motive and intent with which the act was done. Cox v. Commonwealth, No. 2177-93-2 (Ct. of Appeals May 9, 1995).

Evidence of previous unchaste character of accused's wife. - Evidence of the previous unchaste character of the wife, and that accused had knowledge of this reputation, is admissible when accused claimed to have acted in hot blood after a confession of his wife of her illicit relations with deceased. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921).

Proof of truth of confession of unchastity by accused's wife inadmissible. - The trial court did not err in refusing to permit accused to introduce proof of the truth of his wife's confession. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921).

Testimony that victim suffered from battered child syndrome admissible. - Where doctor was qualified as an expert based on both his professional training and professional experiences with physically abused children, the trial court did not abuse its discretion in admitting his testimony as to whether the deceased infant had suffered from a pattern of intentional physical abuse referred to as battered child syndrome. Price v. Commonwealth, 18 Va. App. 760, 446 S.E.2d 642 (1994).

Evidence of defendant's prior attacks on the victim improperly admitted. - In a case where deliberation and premeditation were the only issues, it was reversible error to permit the prosecutor on cross-examination of defendant to question him as to a prior beating and to elicit the information that defendant had been convicted of a felony. This evidence served only to prejudice the accused in the minds of the jury. Williams v. Commonwealth, 203 Va. 837 , 127 S.E.2d 423 (1962).

Photographic evidence. - In defendant's trial for first-degree murder, a violation of § 18.2-32 , and use of a firearm in the commission of murder, a violation of § 18.2-53.1 , the trial court did not abuse its discretion when it admitted into evidence six photographs of defendant's bedroom, which served as an independent silent witness corroborating a witness's testimony that defendant handled a firearm. Although the photographs supported the prosecution's case, the photographs also supported defendant's testimony regarding intoxication. Therefore, the photographs were relevant evidence and were not prejudicial. Szenasy v. Commonwealth,, 2010 Va. App. LEXIS 412 (Oct. 26, 2010).

Photographs of the victim were relevant and admissible to show the degree of atrociousness of the crime, or the malice with which it was committed, even though the defense was based only on insanity and did not question that defendant committed the act. Timmons v. Commonwealth, 204 Va. 205 , 129 S.E.2d 697 (1963).

Admission of photographs of the victim's body, which accurately represent the true condition of the victim and the handiwork of the killer, and are relevant and material to establish premeditation and malice and to show the degree of atrociousness of the crime, does not constitute an abuse of discretion by the trial court. Brown v. Commonwealth, 212 Va. 515 , 184 S.E.2d 786 (1971).

Evidence of decedent's prior character is admissible on self-defense issue. - Where an accused adduces evidence that he acted in self-defense, evidence of specific acts is admissible to show the character of the decedent for turbulence and violence, even if the accused is unaware of such character. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

Where there is evidence that the victim was intoxicated at the time of the shooting, evidence of his character or reputation for turbulence when in such condition is admissible on the issue of self-defense. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

The test of admissibility on self-defense is whether the evidence of prior character is so distant in time as to be void of real probative value in showing present character. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

Incriminating statement that defendant was at scene of crime. - Appellate court's reversal of the trial court's denial of defendant's motion to suppress an incriminating statement made during police questioning was upheld on appeal, because defendant's third reference to an attorney during the police questioning was an unequivocal request for the presence of counsel and police questioning should have ceased, therefore, the trial court erred by refusing to grant defendant's motion to suppress the statement. Commonwealth v. Hilliard, 270 Va. 42 , 613 S.E.2d 579, 2005 Va. LEXIS 64 (2005).

Interrogation conducted appropriately. - Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the record in the case, which included defendant's own testimony, indicated that his will was not overborne during questioning and that his capacity for self-determination was not impaired. Defendant was apprised of his Miranda rights by the interrogating officer; he was given food and an opportunity to sleep; and he described himself as calm and comfortable throughout the questioning. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Hypnotic evidence, whether in the form of the murder defendant testifying in court under hypnosis or through another's revelation of what the murder defendant said while under a hypnotic trance, is not admissible. Greenfield v. Commonwealth, 214 Va. 710 , 204 S.E.2d 414 (1974).

Expert testimony. - Trial court did not abuse its discretion in allowing the Commonwealth's forensic expert to opine that the physical facts were inconsistent with defendant's differing versions of how his wife's fatal injury occurred, as these evidentiary facts were useful to the jury in deciding whether the death was accidental, self-inflicted, or a homicide, and whether any of the versions defendant gave to the police were credible; moreover, not only was it important for the Commonwealth's expert witnesses to explain the impact of the physical and forensic evidence to the jury to aid it in evaluating defendant's differing versions to the police of how his wife died, the significance of these evidentiary factors was beyond the scope of knowledge of the average juror. Smallwood v. Commonwealth,, 2005 Va. App. LEXIS 196 (May 17, 2005).

In a prosecution for second-degree murder under § 18.2-32 , the trial court did not err in allowing medical examiner's opinion testimony as to cause of victim's death as record showed that her opinions were supported by her own observations and examinations of victim's body. Observations obtained during autopsy overcame any suggestion that examiner relied in part on hospital records not admitted into evidence. Jones v. Commonwealth, 54 Va. App. 219, 677 S.E.2d 61, 2009 Va. App. LEXIS 238 (2009).

Second expert's testimony properly excluded. - In a prosecution for first-degree murder, because the trial court specifically found that defendant's personality could be understood by men of ordinary intelligence, and testimony from defendant's first expert on this issue sufficiently placed that issue before the jury, it properly excluded testimony from defendant's second expert on the same. Moreover, given defendant's limited proffer, and the second expert's admitted lack of specialized expertise in the area the first expert testified about, no error resulted. Downs v. Commonwealth,, 2008 Va. App. LEXIS 222 (May 6, 2008).

Admission of evidence held not a federal question. - The admission of evidence to show robbery when the accused is indicted for murder in the common form, and thus raising the offense to murder in the first degree, under this section, is not a federal question. In re Robertson, 156 U.S. 183, 15 S. Ct. 324, 39 L. Ed. 389 (1895).

Evidence properly admitted. - It was not an abuse of discretion to allow the jury to consider the evidence of defendant's attempted escape as evidence of his consciousness of guilt as to the attempted murder charge; defendant clearly was aware, at the time, that the police had information connecting him to that crime and that he would likely be prosecuted for it, although he was not yet charged with that offense when he attempted to escape from jail. Leonard v. Commonwealth, 39 Va. App. 134, 571 S.E.2d 306, 2002 Va. App. LEXIS 657 (2002), cert. denied, 540 U.S. 989, 124 S. Ct. 479, 157 L. Ed. 2d 384 (2003).

During defendant's trial on charges of murder and using a firearm in the commission of a murder, the trial court properly admitted an affidavit defendant's ex-wife submitted when she sought a restraining order and allowed the prosecutor to use that affidavit in an attempt to impeach defendant's expert after the expert testified that defendant suffered from a major depressive disorder and post-traumatic stress disorder, that these disorders were present when defendant shot his ex-wife. Araya v. Commonwealth, No. 0044-02-4, 2002 Va. App. LEXIS 754 (Ct. of Appeals Dec. 17, 2002).

Trial court did not err in allowing defendant's former girlfriend to read portions of her affidavit to the jury on the basis of the past recollection recorded hearsay exception as there was no abuse of discretion in the trial court's determination that the vouching foundation requirement to the present recollection recorded doctrine was met. Further, defendant's Sixth Amendment right to confront witnesses was met because defendant had an opportunity to confront the witness and test the recollection of the witness. Abney v. Commonwealth, 51 Va. App. 337, 657 S.E.2d 796, 2008 Va. App. LEXIS 103 (2008).

Where defendant was convicted of second-degree murder, items seized at defendant's residence pursuant to a search warrant were properly admitted because: (1) the totality of the circumstances could be considered when deciding the question of good faith; and (2) the Leon good-faith exception to the exclusionary rule applied since the warrant stated that the residence was located on the same street as the shooting and the criminal complaint listed defendant's address, which was the same address as the residence. Adams v. Commonwealth, 275 Va. 260 , 657 S.E.2d 87, 2008 Va. LEXIS 40 (2008).

In a murder prosecution, because defendant did not possess the firearm that police later recovered near the area where he was seized, nor was he seen discarding it, the trial court did not err in denying his motion to suppress the firearm. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Defendant's convictions for murder in violation of § 18.2-32 , use of a firearm in the commission of a felony in violation of § 18.2-53.1 , and grand larceny in violation of § 18.2-95 were appropriate because the trial court did not err in admitting evidence of prior crimes to establish defendant's identity since he disputed his identity as the perpetrator of the instant offenses. Additionally, given the substantial evidence of prior bad acts, evidence of a damaged fence did not substantially influence the jury; its admission was therefore harmless. McMillian v. Commonwealth,, 2011 Va. App. LEXIS 74 (Mar. 1, 2011).

Trial court did not err in holding that text messages were not hearsay because they were not offered for the truth of the matter asserted; the text messages tended to prove that defendant was involved with the homicide because they were offered to demonstrate what an unknown declarant did in response to defendant's message to ride past the crime scene and to show that he reported back with details about the scene and the victim's subsequent death. Wood v. Commonwealth, No. 0937-17-1, 2018 Va. App. LEXIS 255 (Oct. 2, 2018).

Evidence inadmissible. - In a murder prosecution in which defendant claimed self-defense, evidence that the victim was seen panhandling was properly excluded because panhandling was not an act of violence. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Harmless error in admission of evidence. - Any error in the admission at trial of an autopsy report prepared by a then deceased medical examiner and a medical examiner's testimony based on the report was harmless beyond a reasonable doubt because any error did not affect the verdict. Similarly, any error in admitting DNA evidence was harmless beyond a reasonable doubt as it did not affect the verdict. Abney v. Commonwealth, 51 Va. App. 337, 657 S.E.2d 796, 2008 Va. App. LEXIS 103 (2008).

In a first-degree murder case, the admission of testimony from a detective concerning motorcycle clubs and their culture constituted harmless error. In light of the cumulative nature of the testimony, the circumstances limiting its prejudicial effect, and the strength of the Commonwealth's evidence, its admission did not affect the jury's verdict. Hughes v. Commonwealth, No. 1983-14-4, 2016 Va. App. LEXIS 149 (Ct. of Appeals May 3, 2016).

Admission of hearsay held harmless. - Based on the overwhelming evidence of defendant's guilt, including testimony from an expert, a police detective, and defendant himself, the latter of which demonstrated a motive and intent to kill, the trial court's admission of alleged hearsay testimony under the "state of mind" exception to the hearsay rule was harmless error. West v. Commonwealth,, 2008 Va. App. LEXIS 193 (Apr. 22, 2008).

Alleged error harmless given proof of specific intent to kill. - When defendant claimed that he was guilty only of second-degree murder, not first-degree murder, any violation of § 8.01-381 by not allowing the jury to replay defendant's videotaped confession while deliberating was harmless error under § 8.01-678 . The facts that defendant entered his wife's room and retrieved a loaded gun from a closet, fired twice at her at point-blank range, buried her in a makeshift grave, lied about her whereabouts, and admitted that he killed her because he did not want to take any more verbal harassment from her were irrefutable proof of his specific intent to kill; replaying the videotape would have added little to the deliberative process, given the Commonwealth's stipulation of its narrative content, the jury's previous viewing of it, the jury's in-court review of an agreed transcript, and the nearly identical evidence presented from an investigator. Kirby v. Commonwealth, 50 Va. App. 691, 653 S.E.2d 600, 2007 Va. App. LEXIS 442 (2007).

3. WEIGHT AND SUFFICIENCY.

The corpus delicti may be established by circumstantial as well as direct evidence, and it takes only slight evidence to establish the corpus delicti where the commission of the crime has been fully confessed by the accused. Lucas v. Commonwealth, 201 Va. 599 , 112 S.E.2d 915 (1960).

Circumstantial evidence standard. - The malicious infliction of injury can be shown through circumstantial evidence, but the Commonwealth is required to exclude hypotheses of innocence that flow from the evidence. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Evidence sufficient to prove cause of death. - Where medical testimony was to the effect that the victim died one month after being shot by defendant as a result of peritonitis caused by the bullet wounds, such testimony was sufficient to carry the question of causation to the jury. Jones v. Commonwealth, 202 Va. 236 , 117 S.E.2d 67 (1960).

Consideration of sufficiency confined to evidence bearing upon the sole defense. - Where the plea of self-defense was the sole defense relied on by the accused to justify the shooting on the trial of a prosecution for homicide, a consideration of the sufficiency of the evidence to support the verdict and judgment must be confined to a consideration of the evidence as bearing upon that defense. Pendleton v. Commonwealth, 131 Va. 676 , 109 S.E. 201 (1921).

Evidence sufficient to warrant jury finding deceased shot while fleeing. - See Pendleton v. Commonwealth, 131 Va. 676 , 109 S.E. 201 (1921).

Criminal agency of defendant sufficiently proved. - Where evidence showed that during the course of an altercation defendant struck deceased on the head with a deadly weapon (a pair of wire cutters) and that the sole cause of death was a brain hemorrhage resulting from a fracture of the skull, these facts sufficiently proved the criminal agency of defendant. Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

Evidence sufficient to prove malice. - In the instant case, accused, upon the confession of his wife of illicit relations with deceased, immediately got his pistol, walked to deceased's office about one hundred and twenty-five yards, stopping at a drug store for an instant to inquire about deceased, and at once opened fire upon deceased. It was held that even if the evidence had disclosed no circumstance to discredit accused's claim that he acted solely under the propulsion of hot blood and frenzy, engendered by his wife's confession, it is not at all certain that the trial court would not have improperly invaded the province of the jury if it had set aside the verdict of guilty of murder in the second degree on the ground that the evidence was insufficient to show that the killing was malicious. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921); Burgess v. Commonwealth, 4 Va. (2 Va. Cas.) 483 (1825). See Bristow v. Commonwealth, 65 Va. (15 Gratt.) 634 (1859).

Evidence sufficiently showed malice aforethought to support defendant's second-degree murder conviction where: (1) defendant, who had given birth in her bedroom and wished to keep her pregnancy a secret from her mother, left her newborn infant son outside near some trash cans wrapped in some sweat pants before going herself to the hospital; and (2) the medical evidence showed that the infant's later death despite medical attention was the result of blunt force head injuries and abandonment. Smith v. Commonwealth, No. 2284-01-1, 2002 Va. App. LEXIS 668 (Ct. of Appeals Nov. 5, 2002).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because he admitted to purposefully using a sawed-off shotgun both to shoot and bludgeon the victim; therefore, there was sufficient evidence from which the jury could have inferred malice, and the charges of first- and second-degree murder were properly before the jury. Accordingly, the trial court did not err when it denied defendant's motion to strike those charges; for the same reasons, the trial court did not err when it failed to strike the charge of use of a firearm in the commission of a felony. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Sufficient evidence supported a finding that defendant acted with malice for purposes of § 18.2-32 where, based on the testimony of an eyewitness, a rational trier of fact could have found that when defendant fired a deadly weapon multiple times up a street he was attempting to shoot the man with a bike who had been walking and talking with him just a minute before. Watson-Scott v. Commonwealth, No. 1538-17-2, 2018 Va. App. LEXIS 335 (Dec. 4, 2018).

Evidence insufficient to prove malice. - The evidence was insufficient, as a matter of law, to support a finding that the defendant killed the victim maliciously where, although the defendant admitted striking the victim in the face after their truck became stuck in a flood and began to fill with water, the blow itself did not cause the death of the victim and there was no evidence that it caused her to drown. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Evidence sufficient to show intent. - Evidence that defendant intended to kill the victim held sufficient where the defendant, who was a stranger to the victim, shouted a racial epithet at the victim, got out of the car with a loaded gun and chased the victim, made no demand of the victim to turn over personal property nor call for him to halt, and where the defendant fired from twenty-five feet behind the victim, who was about to enter the safety of his apartment building. King v. Commonwealth, No. 2834-98-2, 2000 Va. App. LEXIS 555 (Ct. of Appeals July 25, 2000).

Evidence was sufficient to support defendant's attempted murder and use of a firearm in the commission of attempted murder charges where defendant's intent to kill the victim was shown by defendant's actions in climbing on the top of the victim's truck, and repeatedly firing his weapon toward the victim, who was on the ground trying to shield himself with the truck. Cook v. Commonwealth, No. 1968-02-2, 2003 Va. App. LEXIS 375 (Ct. of Appeals July 1, 2003), aff'd, 268 Va. 111 , 597 S.E.2d 84 (2004).

Evidence was sufficient to prove attempted murder and use of a firearm while attempting to commit murder, violations of §§ 18.2-26 , 18.2-32 , and 18.2-154 , where defendant pointed a gun at the victim's car, firing four or five times. Thus, defendant must have intended the immediate, direct, and necessary consequences of his voluntary act. Stullenberg v. Commonwealth, No. 0223-09-3, 2010 Va. App. LEXIS 179 (Ct. of Appeals May 4, 2010).

Sufficient evidence showed defendant's specific intent to kill a victim because, after physically assaulting the victim, defendant armed himself with a shotgun and threatened to kill the victim. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Evidence was sufficient to support defendant's conviction of attempted murder because it showed that defendant poured fuel around a building in the early morning hours when people inside were sleeping, he wanted to eliminate the people he knew were in the building at the time he started the fire, he purposefully poured gas outside of bedrooms, offices, and the main living area throughout the first floor, which made evacuation difficult. Secret v. Commonwealth, No. 0853-15-2, 2017 Va. App. LEXIS 38 (Ct. of Appeals Feb. 14, 2017), aff'd, 296 Va. 204 , 819 S.E.2d 234, 2018 Va. LEXIS 136 (2018).

Trial court did not err in applying transferred intent to convict defendant of second-degree murder where the evidence supported a finding that he acted with malice toward a specific individual, and the victim was a bystander who suffered direct and immediate harm that was within the scope of defendant's effort to shoot the man he had been with. Watson-Scott v. Commonwealth, No. 1538-17-2, 2018 Va. App. LEXIS 335 (Dec. 4, 2018).

Evidence insufficient to show intent required for attempted murder. - Evidence that defendant turned the car into traffic in order to flee while the officer was standing toward the rear of the vehicle and slightly behind the driver's side door was insufficient to show that defendant possessed the requisite specific intent to kill the officer; there was no evidence that defendant aimed the vehicle directly at the officer or otherwise had any intent to inflict bodily harm on the officer, much less that defendant had formed the intent to murder the officer. The facts better supported the conclusion that defendant was attempting to escape. Baldwin v. Commonwealth, 274 Va. 276 , 645 S.E.2d 433, 2007 Va. LEXIS 76 (2007).

Evidence that defendant poured gasoline and diesel fuel around the dwelling before setting it on fire, knowing people were inside, sufficiently supported the first-degree attempted murder convictions. Secret v. Commonwealth, 296 Va. 204 , 819 S.E.2d 234, 2018 Va. LEXIS 136 (2018).

Evidence sufficient to prove attempted murder. - Trial court's finding that defendant was guilty of the attempted murder of his wife in violation of §§ 18.2-32 and 18.2-26 and use of a firearm in the commission of that offense was not plainly wrong or without evidence to support it because defendant shoved, punched, and choked his wife in the presence of their three minor children and his father and obtained a shotgun and went to the front door of the house looking for his wife; the trial court found that the evidence proved that defendant was aiming the shotgun generally around with his finger on the trigger. Herring v. Commonwealth, No. 1430-12-3, 2013 Va. App. LEXIS 123 (Ct. of Appeals Apr. 16, 2013).

Circuit court properly convicted defendant of attempted murder, shooting at an occupied vehicle, and use of a firearm in the commission of a felony because defendant was the only individual seen handling a firearm, threatened the victim, pointed his gun at the victim, and, after becoming momentarily distracted, fired it at the victim, and hit his truck, and a rational factfinder could find that defendant shot at the victim with malice. Logan v. Commonwealth, 67 Va. App. 747, 800 S.E.2d 202 (2017).

Evidence was sufficient to convict defendant of, inter alia, attempted murder based on a gunfight at a shopping center as defendant attacked the victim at the shopping center and initiated the gunfight that occurred there; and defendant was linked to the shooting by the initial identification of the victim, a distinctive shirt similar to the one worn by the shooter in the video recording that was found at the home of defendant's stepmother, his wounds for which he sought treatment at a nearby hospital, the presence of primer residue on his hands, and his own statements to the police. Boykins v. Commonwealth, No. 1487-16-1, 2017 Va. App. LEXIS 143 (June 6, 2017).

Evidence warranted a verdict of murder in the first degree. See Bennett v. Commonwealth, 35 Va. (8 Leigh) 745 (1837); Howell v. Commonwealth, 67 Va. (26 Gratt.) 995 (1875); Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 845 (1880); Wright v. Commonwealth, 74 Va. (33 Gratt.) 880 (1880); Wright v. Commonwealth, 75 Va. 914 (1882); Harrison v. Commonwealth, 79 Va. 374 (1884); Barbour v. Commonwealth, 80 Va. 287 (1885); Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952); Bailey v. Commonwealth, 193 Va. 814 , 71 S.E.2d 368, cert. denied, 344 U.S. 886, 73 S. Ct. 186, 97 L. Ed. 686 (1952); Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960); Williams v. Commonwealth, 214 Va. 338 , 200 S.E.2d 579 (1973); Hairston v. Commonwealth, 217 Va. 429 , 230 S.E.2d 626 (1976); O'Brien v. Commonwealth, 4 Va. App. 261, 356 S.E.2d 449 (1987); Cantrell v. Commonwealth, 7 Va. App. 269, 373 S.E.2d 328 (1988); Etheridge v. Commonwealth, No. 1487-97-1 (Ct. of Appeals June 9, 1998); Dickens v. Radford-Willis S. Ry., 121 Va. 353 , 93 S.E. 625 (1917); Simon v. Commonwealth, No. 0294-03-3, 2003 Va. App. LEXIS 689 (Ct. of Appeals Dec. 23, 2003).

Defendant's conviction of first-degree murder in violation of § 18.2-32 was affirmed, because the trial court did not allow the Commonwealth to impeach its own witness as prohibited by § 8.01-403 , but rather properly allowed the Commonwealth to refresh the memory of the witness after the witness stated that she was unable to recall certain statements she had made to police investigators, and defendant failed to include either the tape played to refresh the witness's memory or the contents of the tape in the record on appeal as required by Va. Sup. Ct. R. 5A:25, so the appellate court had no basis for determining whether the trial court committed error in permitting the tape to be played in the presence of the jury. Brockenbrough v. Commonwealth, No. 3023-01-2, 2003 Va. App. LEXIS 243 (Ct. of Appeals Apr. 22, 2003).

The evidence is sufficient to support the conviction for first-degree murder. The jury reasonably could have inferred, from the unbroken chain of necessary circumstances, established to its satisfaction, that defendant had a motive to kill the victim; that he was placed within several hundred yards of the victim shortly before and shortly after the time of the crime; that he had the means to commit the crime, in that he owned a camper and had access to a shotgun; that his conduct before and after the crime was consistent with guilt and inconsistent with innocence; and that all of these factors concur in pointing him out as the perpetrator of the crime. Inge v. Commonwealth, 217 Va. 360 , 228 S.E.2d 563 (1976), cert. denied, 474 U.S. 833, 106 S. Ct. 104, 88 L. Ed. 2d 85 (1985).

Any error in admitting defendant's confession was harmless beyond a reasonable doubt, where Commonwealth's other evidence overwhelmingly proved that he committed a willful, deliberate and premeditated act, and his wife's fresh defensive injuries belied his theory that her death was an accident. Xayapheth v. Commonwealth, No. 0524-99-3 (Ct. of Appeals Mar. 14, 2000).

Court confirmed convictions for first-degree murder and use of a firearm in the commission of the murder where blood spatter analysis was proper expert testimony for which a sufficient evidentiary foundation was established. Smith v. Commonwealth, 265 Va. 250 , 576 S.E.2d 465, 2003 Va. LEXIS 36 (2003).

Evidence was sufficient to support defendant's conviction of first-degree murder as a principal in the second degree where: (1) defendant was a lookout for his accomplice, assisted in the abduction, and countenanced the murder as a retaliation against a drug dealer, erroneously believed to be related to the victim, (2) he drove his accomplice and the victim to a secluded area and allowed his accomplice to exit the vehicle with the victim, (3) he provided the murder weapon, and (4) he drove the accomplice home from the spot where the victim was later found dead. Hood v. Commonwealth, No. 2469-02-2, 2004 Va. App. LEXIS 82 (Ct. of Appeals Feb. 17, 2004), aff'd, 269 Va. 176 , 608 S.E.2d 913 (2005).

Evidence was sufficient to support defendant's convictions on three counts of first-degree murder where defendant hid out at a friend's house and then fled the state, the murder weapon was found in the friend's backyard, other crimes evidence tended to prove that defendant stole the murder weapon in a robbery, and an accomplice's testimony identifying defendant as the shooter was corroborated by fingerprint evidence. Rayford v. Commonwealth, No. 0328-07-1, 2007 Va. App. LEXIS 506 (Ct. of Appeals Aug. 9, 2007).

Evidence was sufficient to conclude that defendant willfully, deliberately, and with premeditation, killed the victim, who came to collect a drug debt, where defendant brutally beat the victim with a metal pipe, sealed a plastic bag over his head, wrapped him in a carpet, and concealed him in a bedroom, and then admitted to the murder to several witnesses. Hurt v. Commonwealth,, 2008 Va. App. LEXIS 127 (Mar. 18, 2008).

Because a letter found in defendant's jail cell was properly admitted as relevant to whether he was faking symptoms of insanity, and any error in excluding defendant's statement or in granting the jury instruction was harmless, his first-degree murder conviction, in violation of § 18.2-32 was upheld on appeal. Pahno v. Commonwealth,, 2008 Va. App. LEXIS 199 (Apr. 22, 2008).

Fact that defendant apparently found and loaded a pistol, defendant fired all five rounds and still continued pulling the trigger, and defendant initially packed a bag for flight were circumstances that the jury properly considered in concluding that defendant acted with malice and supported defendant's convictions for first-degree murder and the use of a firearm in committing the murder. Cayton v. Commonwealth,, 2008 Va. App. LEXIS 393 (Aug. 12, 2008).

Defendant's conviction for first-degree murder, in violation of § 18.2-32 , was sufficiently supported by evidence showing that the victim rejected defendant's request to have sex, that defendant convinced the victim, who was described as a little bit slow mentally, to let him walk her to her sister's home, that the victim never arrived at her intended destination, that defendant pretended to be a deaf juvenile and used false names in order to gain transportation out of Virginia, that the victim's body was found in a wooded area, and that the victim's clothes contained semen from defendant. Jordan v. Commonwealth, No. 1026-07-3, 2008 Va. App. LEXIS 417 (Ct. of Appeals Sept. 9, 2008).

Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony in violation of §§ 18.2-32 and 18.2-53.1 were appropriate because the jury was entitled to disbelieve defendant's assertion that she did not know that her boyfriend had a weapon when they entered the victim's home. Further, there was sufficient evidence of concert of action because defendant and her boyfriend arrived at the home of defendant's father knowing that they were forbidden to be there; they gained entrance through the back door; they were intent upon forcing her father to surrender the welfare checks; and when defendant's father refused, they pursued him up the stairs where he was shot and brutally beaten. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

Evidence was sufficient to support defendant's conviction for first-degree murder because the jury could have concluded that defendant acted as a principal in the first degree and that he was the person whose shot struck and killed the victim; the victim was killed by a medium caliber bullet, several witnesses testified that defendant was firing a pistol and firing it in the victim's direction, and defendant admitted that he had access to a 9 mm gun on the night of the shooting. Cooper v. Commonwealth,, 2010 Va. App. LEXIS 403 (Oct. 19, 2010).

Evidence was sufficient beyond a reasonable doubt to support defendant's convictions for first-degree murder, a violation of § 18.2-32 , and use of a firearm in the commission of murder, a violation of § 18.2-53.1 , where the trial court's rejection of defendant's heat of passion argument was not plainly wrong or without evidentiary support because the victim's words alone, no matter how insulting, were not sufficient to constitute heat of passion and defendant's mere intoxication did not suffice to negate premeditation. Szenasy v. Commonwealth,, 2010 Va. App. LEXIS 412 (Oct. 26, 2010).

Defendant was properly convicted of first-degree murder, as evidence that he deliberately shot and killed an unarmed man at close range, immediately left the scene, tried to avoid questioning by police, and initially admitted that the victim was unarmed, was sufficient to establish that he acted with premediation and malice. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Evidence was sufficient to support defendant's convictions where, taken in the light most favorable to the Commonwealth, it established that defendant shot and killed the victim; the jury was free to disbelieve defendant's testimony that defendant was not at scene when the victim was shot and to believe the testimony of other witnesses that defendant was there and shot and killed the victim. Mayfield v. Commonwealth, 59 Va. App. 839, 722 S.E.2d 689, 2012 Va. App. LEXIS 88 (2012).

Ample evidence supported a finding that defendant committed the offenses of first-degree murder and use of a firearm in the commission of a felony as the testimony of an eyewitness, who was at the scene at the time of the offenses, proved that defendant shot and killed two unarmed men without provocation, in that the eyewitness testified that defendant obtained a rifle, that he had a brief verbal exchange with the first victim before he shot the first victim twice, that defendant then turned the gun toward the second victim and shot him twice in the back, that the eyewitness did not have a gun, and that the eyewitness did not see any weapons in the possession of the two victims. Additionally, the evidence showed that defendant moved the two bodies to a location behind his garage and fled from police. Daugherty v. Commonwealth,, 2012 Va. App. LEXIS 136 (May 1, 2012).

Conviction for first-degree murder, based on robbery as the underlying felony, was supported by sufficient evidence, where the record contained ample evidence demonstrating that defendant took marijuana from a victim's car on the day of the shooting, including testimony that the victim weighed out one ounce of marijuana in the car but police recovered less than two-tenths of an ounce and defendant admitted he took a pill bottle containing marijuana. Person v. Commonwealth,, 2012 Va. App. LEXIS 187 (June 5, 2012).

Evidence demonstrating that defendant inflicted brutal injuries in his 16-month-old daughter, failed to seek help for her after causing those injuries, and seemed to lack remorse was sufficient for the trier of fact to convict defendant of first-degree murder and felony child abuse. Logan v. Commonwealth, No. 0867-15-1, 2016 Va. App. LEXIS 290 (Ct. of Appeals Nov. 1, 2016).

Evidence insufficient to prove first-degree murder. - See Wells v. Commonwealth, 190 Va. 619 , 57 S.E.2d 898 (1950).

Defendant's conviction for first-degree murder was reversed because, at its best, the inculpatory evidence showed only that defendant knew that the triggerman killed the victim and that, two months after the killing, defendant and another decided to "roll up" or leave the area. No reasonable interpretation of defendant's statement that defendant knew the triggerman implied that defendant, even if present at the scene of the murder, aided and abetted the triggerman in committing the murder. Jones v. Virginia,, 2007 Va. App. LEXIS 430 (Nov. 27, 2007).

Evidence warranted a verdict of murder in the second degree. - See Slaughter v. Commonwealth, 38 Va. (11 Leigh) 681 (1841); M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Lewis v. Commonwealth, 81 Va. 416 (1886); Boone v. Commonwealth, 195 Va. 708 , 80 S.E.2d 412 (1954).

Evidence was sufficient to sustain defendant's conviction for murdering her newborn baby where: (1) the baby's lungs were filled with air indicating that the baby had been alive; (2) the jury could infer that defendant caused the death, as she denied giving birth, and was the only one who knew that the baby was in her closet; and (3) malice could be inferred from defendant's denial of the birth, testimony of a friend that defendant told her that she wanted to cremate the body, and testimony that defendant faced eviction for having another baby. Corrales v. Commonwealth, No. 2797-01-2, 2002 Va. App. LEXIS 687 (Ct. of Appeals Nov. 19, 2002).

Evidence was sufficient to support defendant's second-degree murder conviction where: (1) the position of the victim's body was inconsistent with defendant's explanation that she had committed suicide; (2) defendant gave inconsistent factual accounts to the EMTs, law-enforcement officers, friends, and the jury; (3) despite defendant's claims that his relationship with the victim had no problems or difficulties, the victim moved out four months earlier, bought a new home, removed defendant as beneficiary on her life insurance policy, and started dating other men; (4) the victim's friends described her as happy and upbeat following her separation from defendant; and (5) defendant testified that immediately prior to the victim's death, he and the victim engaged in an emotional discussion over the victim's admitted relationships with other men that hurt defendant's feelings and emotionally upset him. Sluder v. Commonwealth, No. 2531-02-3, 2003 Va. App. LEXIS 605 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to support defendant's conviction for murder, as it showed that the three-year-old boy who died after being placed in defendant's care was healthy when he was initially placed in defendant's care, that he had severe and extensive injuries when he was taken to a hospital after being in defendant's care, that defendant did not have a plausible explanation for how the boy sustained the injuries, and that the boy's medical care providers opined that the injuries had been caused by blunt force trauma caused by an external force. Covington v. Coleman, No. 2450-02-2, 2003 Va. App. LEXIS 606 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to support defendant's conviction for second-degree murder as a fellow inmate's testimony that defendant had confessed to him was not inherently incredible and was corroborated by other evidence where: (1) the inmate was not directed to extract defendant's confession, and had nothing to gain by fabricating the confession; (2) defendant's stepson observed a clean ashtray, which fit with the inmate's testimony that the weapon was an ashtray and that defendant wiped it clean; (3) defendant was wearing different clothing the next day, which fit with the inmate's testimony that he returned to the house later to clean up; (4) defendant asked the arresting officer whether he was only being arrested for being drunk in public, which implied that he thought that the police might have cause to arrest him for something else; and (5) the victim's autopsy and a bloodstain pattern expert supported a conclusion that the victim died from a blow to the head. Lester v. Commonwealth, No. 1719-03-3, 2004 Va. App. LEXIS 198 (Ct. of Appeals Apr. 27, 2004).

Evidence supported defendant's conviction for second-degree murder as: (1) defendant arrived at a witness's home with blood on her T-shirt and arm; (2) defendant's statement to the witness that the police were looking for her, that she had cut her boyfriend because he called her a bitch, and that she had left him on the floor, bleeding, was not speculative; (3) defendant wielded a deadly weapon to kill the victim and malice could be inferred from the deliberate use of a deadly weapon; and (4) defendant's hypothesis that the victim stabbed himself was properly rejected as the medical examiner had never seen such a self-inflicted wound. Oliver v. Commonwealth,, 2006 Va. App. LEXIS 297 (July 5, 2006).

Because defendant admitted to being at the victim's residence, because glitter similar to that worn by defendant was found on the victim, because defendant's driver testified that defendant was taken to the victim's residence and left an hour later with the victim's property, and because the victim's property was later discovered in defendant's home and purse, defendant was properly found to have assisted her husband in the victim's death and shared the requisite criminal intent; accordingly, the evidence was sufficient to convict defendant of second-degree murder and robbery under §§ 18.2-32 and 18.2-58 . McLean v. Commonwealth,, 2008 Va. App. LEXIS 449 (Oct. 7, 2008).

Defendant's challenge to the sufficiency of the evidence to support convictions for second-degree murder, use of a firearm in the commission of murder, malicious wounding, and use of a firearm in the commission of malicious wounding lacked merit, because the testimony of defendant's grandfather, identifying defendant as the person who shot the pistol that wounded the grandfather and killed another victim, was not inherently incredible as a matter of law; any challenge based on the grandfather's admission that the grandfather had been drinking and doing drugs before the shooting did not render the testimony inherently incredible. Carrington v. Commonwealth,, 2009 Va. App. LEXIS 152 (Mar. 31, 2009).

Trial court did not err in denying defendant's motion to strike the charge of murder to voluntary manslaughter because the evidence supported a rational trier of fact's conclusion that defendant committed second-degree murder by maliciously suffocating the victim, who died as a result of the suffocation; defendant's conduct showed that she willfully undertook an act that would likely cause death or great bodily harm without reasonable provocation. Durand v. Commonwealth,, 2009 Va. App. LEXIS 419 (Sept. 22, 2009).

Evidence that defendant purchased a handgun five weeks before using it to kill the victim, defendant fired twice at point blank range hitting the victim in the side and the back, and the handgun had to be manually squeezed was sufficient to support defendant's conviction for second-degree murder. Tizon v. Commonwealth, 60 Va. App. 1, 723 S.E.2d 260, 2012 Va. App. LEXIS 105 (2012).

Stress-induced heart attack. - Evidence that 86-year-old victim who was beaten and robbed had a preexisting heart disease which contributed to her death, but that she died of a stress-induced heart attack, and that the robbery of a woman in her condition was sufficient stress to trigger such a heart attack, was more than sufficient to support a finding that the trauma of the robbery caused her death and to support a verdict of felony murder. Spain v. Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988).

Evidence sufficient to find defendant present at scene of crimes. - Defendant's fingerprint, impressed in blood on a moveable object (a flashlight), found at the scene of the crimes was sufficient in light of attendant circumstances to find that the defendant was at the scene at the time the crimes were committed in a prosecution for murder and breaking and entering with intent to commit murder. Turner v. Commonwealth, 218 Va. 141 , 235 S.E.2d 357 (1977).

Evidence sufficient to prove identity. - Evidence was sufficient to find defendants were two of the perpetrators of the offenses because the surveillance footage showed four males traveling together on the day of the beating and homicide; it showed two men wearing clothing consistent with defendants chasing after the second victim with their arms outstretched and a puff of smoke that looked as if a gun was fired; and the jury was entitled to rely on the witnesses' identifications of defendants and the videos. Benniefield v. Commonwealth, No. 0001-20-2, 2020 Va. App. LEXIS 231 (Sept. 29, 2020).

Evidence sufficient to prove victim was alive during abduction. - There was sufficient evidence to support defendant's conviction as a principal in the second degree, § 18.2-18 , of abduction and felony murder, in violation of §§ 18.2-48 and 18.2-32 , where he and others lured the victim to a co-defendant's home with the purpose of robbing the victim of drugs and money, they restrained the victim while attempting to determine the whereabouts of the drugs, walked him out to the trunk of his car, drove him away, and fatally shot him; although there was blood in the house, the fact that the victim was "walked" outside to his car and that he "squirmed like a worm" when he was shot supported the finding that he was not killed in the house and accordingly, that defendant participated in abducting defendant while he was still alive. Brooks v. Commonwealth, No. 1629-03-2, 2004 Va. App. LEXIS 284 (Ct. of Appeals June 15, 2004).

Sufficiency of provocation is question of fact. - Whether provocation, shown by credible evidence, is sufficient to engender the furor brevis necessary to rebut the presumption of malice arising from a homicide is a question of fact. McClung v. Commonwealth, 215 Va. 654 , 212 S.E.2d 290 (1975).

Sufficiency of evidence showing premeditation is a jury question. - The law presumes malice from the fact of the killing, but it does not presume that the act was willful, deliberate, and premeditated. The sufficiency of the evidence on the one hand to establish the willful, deliberate and premeditated character of the act, or, on the other, to rebut the presumption of malice, is generally a question which lies peculiarly within the province of the jury. Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921).

The sufficiency of the evidence on one hand to establish the willful, deliberate and premeditated character of the act, or, on the other, to rebut the presumption of malice, is generally a question which lies peculiarly within the province of the jury. Painter v. Commonwealth, 210 Va. 360 , 171 S.E.2d 166 (1969).

Evidence sufficient to support finding of premeditation. - See Martinez v. Commonwealth, 42 Va. App. 9, 590 S.E.2d 57, 2003 Va. App. LEXIS 678 (2003).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the record revealed a brutal attack where, after the victim was shot, more than one blow was struck, and defendant attempted to conceal the crime and avoid detection; defendant expressed no remorse for the killing. Accordingly, there was ample evidence to support the jury's finding of premeditated killing in the first degree and the trial court did not err when it denied defendant's motion to set aside the verdict on the grounds that there was insufficient evidence to support a finding of premeditation. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Evidence was sufficient to find that defendant acted with premeditation when he killed the victim despite his claim that he thought the victim was reaching for a gun because defendant armed himself with a loaded gun while carrying out his planned criminal activity and then drew, aimed, and fired his gun at the witness, who witnessed his crime. Saunders v. Commonwealth, No. 1183-12-3, 2013 Va. App. LEXIS 274 (Ct. of Appeals Oct. 8, 2013).

Jury decides if killing induced by previous grudge or immediate provocation. - Where there has been a previous grudge and also an immediate provocation, it is for the jury to determine whether the shooting was induced by the previous grudge or the immediate provocation, and it is not for an appellate court to reverse their judgment, when the judge who tried the case declines to set aside. Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872).

Trial court's determination of issue as a matter of law held proper. - Where defendant was on trial for murder of police officer during an attempted arrest, the evidence justified the trial court in determining as a matter of law that the attempted arrest was legal, although without a warrant. Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960).

Circumstantial evidence justifying verdict. - The evidence, which is circumstantial only, justifies the verdict of murder in the first degree. Russell v. Commonwealth, 78 Va. 400 (1884). As to sufficiency of circumstantial evidence, see also Dean v. Commonwealth, 73 Va. (32 Gratt.) 912 (1879); Holmes v. Cooper, 872 F. Supp. 298 (W.D. Va. 1995); Bullion v. Gadaleto, 872 F. Supp. 303 (W.D. Va. 1995); Vannoy v. Cooper, 872 F. Supp. 1485 (E.D. Va. 1995).

Circumstantial evidence held sufficient to uphold verdict of first-degree murder. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Circumstantial evidence was sufficient to prove that the defendant was the person who committed the murder at issue where: (1) the victim's companion identified the defendant as the person she saw approach their car on three occasions attempting to sell cocaine to the victim; (2) in close proximity to her, the defendant and the victim discussed the quantity of cocaine the victim was trying to buy; (3) the defendant had the victim exit the car and led him to an apartment breezeway; (4) within seconds, the companion heard a gunshot and saw the victim run toward the car holding his chest; and (5) when he arrived at the car, he stated that he "shot me." Fentress v. Commonwealth, No. 2056-97-2 (Ct. of Appeals Sept. 15, 1998).

Whether evidence of decedent's prior character is remote concerns weight, etc. - Once a nexus for relevancy of prior conduct or character of decedent has been established in a defendant's self-defense contentions, the issue of remoteness concerns the weight of the evidence and the credibility of the witnesses, both of which are within the province of the jury. Barnes v. Commonwealth, 214 Va. 24 , 197 S.E.2d 189 (1973).

D. INSTRUCTIONS.

The jury should be instructed as to the degrees of homicide and the punishment therefor provided by statute. Bradshaw v. Commonwealth, 174 Va. 391 , 4 S.E.2d 752 (1939); Henry v. Commonwealth, 195 Va. 281 , 77 S.E.2d 863 (1953).

Instruction on second-degree murder not given unless warranted by evidence. - An instruction on murder in the second degree should not be given unless it was warranted by the evidence before the jury. Wright v. Commonwealth, 213 Va. 352 , 192 S.E.2d 748 (1972).

The trial court did not err in refusing the instruction on murder in the second degree where the jury could have properly returned only one of two verdicts: guilty of murder in the first degree, or not guilty. Wright v. Commonwealth, 213 Va. 352 , 192 S.E.2d 748 (1972).

The presumption of second-degree murder yields to facts. No instruction should be given unless it is supported by evidence, and such evidence must be more than a scintilla. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

The trial court properly refuses an instruction on second-degree murder where the evidence would support only findings of first-degree murder or not guilty. This is so notwithstanding the presumption that every homicide is second-degree murder. LeVasseur v. Commonwealth, 225 Va. 564 , 304 S.E.2d 644 (1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 744, 79 L. Ed. 2d 202 (1984).

The fact that a killer and his victim argue prior to the murder does not, of itself, mandate that a second degree murder instruction be given. Casey v. Commonwealth, No. 1326-94-3 (Ct. of Appeals July 25, 1995).

It is well established that a defendant accused of capital or first degree murder is not entitled to an instruction on second degree murder based on the legal presumption that all homicides are second degree murder. Williams v. Commonwealth, No. 2584-96-1 (Ct. of Appeals Feb. 10, 1998).

Instructions as to malice, deliberation, and premeditation held valid. - See Honesty v. Commonwealth, 81 Va. 283 (1886); Bryan v. Commonwealth, 131 Va. 709 , 109 S.E. 477 (1921); Thompson v. Commonwealth, 131 Va. 847 , 109 S.E. 447 (1921); Sims v. Commonwealth, 134 Va. 736 , 115 S.E. 382 (1922); Adams v. Commonwealth, 163 Va. 1053 , 178 S.E. 29 (1935); Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972).

Instruction in a prosecution for first-degree murder that "to constitute a willful, deliberate and premeditated killing" it is only necessary that the intention to kill come into existence at the time of the killing is not error when thrust of instructions is to define time frame of malicious intent to kill and additional instruction clearly differentiates between malicious intent and premeditation. The preferable practice, however, is to omit the words "and premeditated." Baker v. Commonwealth, 218 Va. 193 , 237 S.E.2d 88 (1977).

An instruction to the effect that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing or at any time previously, although misleading, was not so erroneous as to require habeas corpus relief, though the words "and premeditation" should be omitted in the future. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Instruction as to concert of action. - Because the jury instructions on concert of action fully and fairly covered the principle of law, and because defendant acted with an accomplice pursuant to a scheme that involved robbing the victim with a gun, defendant was accountable for the victim's death; consequently, defendant was properly convicted of first-degree murder and use of a firearm during the commission of a felony. Baker v. Commonwealth,, 2010 Va. App. LEXIS 507 (Mar. 31, 2010).

Instructions properly refused. - See Dejarnette v. Commonwealth, 75 Va. 867 (1881); Smith v. Commonwealth, 192 Va. 186 , 64 S.E.2d 761 (1951).

In a prosecution of accused, as a principal in the second degree, for murder in the commission of a robbery, the trial judge committed no error in refusing to grant an instruction that would have told the jury that every unlawful homicide is presumed to be murder in the second degree and that, in order to elevate an unlawful homicide to murder in the first degree, the Commonwealth has the burden of proving the elements of first-degree murder, or in refusing instructions that defined and set forth the permissible punishment for murder in the second degree, since, under the evidence, the jury could have properly returned only one of two verdicts, guilty of first-degree murder or not guilty. Wooden v. Commonwealth, 208 Va. 629 , 159 S.E.2d 623 (1968).

Where defendant's only defense at trial was that he was not the killer, defendant was not entitled to an instruction on first degree murder or on the grade of the offense of homicide. Bennett v. Commonwealth, 236 Va. 448 , 374 S.E.2d 303 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1765, 104 L. Ed. 2d 200 (1989).

Where evidence fell short of establishing provocation, anger, passion, or any other fact that might serve to convince a jury that defendant acted without premeditation, the trial court did not err in refusing to instruct the jury on second degree murder. Casey v. Commonwealth, No. 1326-94-3 (Ct. of Appeals July 25, 1995).

The trial court did not err in refusing to instruct the jury on self-defense where the defendant asserted that, after he and the victim had begun to argue, she attacked him with a knife, they fought over the knife and, in the struggle, they fell down the stairs and the victim was fatally wounded when she fell on the knife; the defendant never claimed that he had stabbed the victim in self-defense and the only instruction warranted by his account was for an accidental death, which instruction was given by the court. Bowler v. Commonwealth, No. 0404-99-4, 2000 Va. App. LEXIS 207 (Ct. of Appeals Mar. 21, 2000).

Request for a jury instruction on self-defense in defendant's trial for murder, under § 18.2-32 , was properly refused where defendant was not engaged in a lawful activity when he shot the gun, killing the victim; defendant had instigated two separate confrontations at the time of the killing. Coleman v. Commonwealth, No. 1654-01-2, 2002 Va. App. LEXIS 734 (Ct. of Appeals Dec. 10, 2002).

Defendant, convicted of multiple charges that included a conviction as a principal in the first degree for second-degree murder, in violation of §§ 18.2-30 and 18.2-32 , was not entitled to an instruction on theory of justifiable homicide, as defendant was not totally free from fault, as defendant admitted that approaching defendant's adversary and threatening him; in addition, defendant was not entitled to a voluntary manslaughter instruction, as the evidence did not support defendant's argument that defendant shot in the heat of passion and without reflection, where defendant's statement to the police reflected deliberation and intent, rather than the heat of passion, and there was a reasonable opportunity to cool. Martin v. Commonwealth, No. 0470-02-1, 2003 Va. App. LEXIS 205 (Ct. of Appeals Apr. 8, 2003).

Trial court's denial of defendant's requested jury instruction to support his defense of heat of passion and absence of malice was proper where he was convicted of being a principal to a murder due to his friend having shot at a carload of individuals that defendant and his friend were engaged in a dispute with, which caused the death of an innocent passerby when the bullet went astray; the court indicated that defendant's intent was irrelevant because he did not have the gun, and his friend's actions clearly evidenced no indication of provocation that would have justified giving the instruction. Williams v. Commonwealth, No. 0552-02-1, 2003 Va. App. LEXIS 206 (Ct. of Appeals Apr. 8, 2003).

Where defendant preserved the argument for a voluntary manslaughter instruction and the Commonwealth did not argue at trial that the evidence did not support the instruction, the trial court erred in excluding the instruction; therefore, defendant's conviction for second-degree murder and use of a firearm during the commission of a felony, violations of §§ 18.2-32 and 18.2-53.1 , had to be reversed. Fox v. Commonwealth, No. 1717-02-1, 2003 Va. App. LEXIS 362 (Ct. of Appeals June 24, 2003).

Defendant's request for a jury instruction on justifiable self-defense was properly denied as both defendant and the victim were responsible for the altercation that resulted in the shooting. Epps v. Commonwealth, No. 2921-02-3, 2003 Va. App. LEXIS 641 (Ct. of Appeals Dec. 16, 2003).

In trial for second-degree murder, the trial court did not err in refusing to instruct on voluntary manslaughter, because defendant presented no evidence that defendant acted in the heat of passion; no evidence suggested that the victim provoked defendant or that defendant acted in rage or fear, and even if defendant did act in rage or fear initially, the time necessary to get gun and return was sufficient for defendant's passion to cool. Monroe v. Commonwealth,, 2009 Va. App. LEXIS 111 (Mar. 17, 2009).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because, under either account of the events given by defendant, either his trial testimony or his statements made to investigators, he forfeited his right to a self-defense jury instruction because he was not without fault in bringing on the difficulty that resulted in the victim's death, and he was not in reasonable fear of death or great bodily harm when he killed the victim. Accordingly, the trial court did not err when it refused defendant's proffered jury instruction on justifiable homicide. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Trial court did not abuse its discretion by refusing to give defendant's proposed jury instruction defining concert of action because defendant did not meet his burden of showing that the proposed language was a correct statement of the law, applicable to the facts of the case on trial, and expressed in appropriate language; the trial court gave an instruction on concert of action that adequately stated the law and addressed the issues raised in the case related to that legal principle. Cooper v. Commonwealth,, 2010 Va. App. LEXIS 403 (Oct. 19, 2010).

In a murder prosecution in which defendant claimed self-defense, as the evidence showed that he did not arm himself after being threatened or assaulted, but shot the victim during their only confrontation, he was not entitled to a "right to arm" instruction. Osorio v. Commonwealth,, 2010 Va. App. LEXIS 508 (Oct. 28, 2010).

Defendant's conviction for first-degree murder was appropriate because any error in refusing to give his requested justifiable self-defense jury instruction was harmless since the trial court instructed the jury on the elements of first-degree murder, second-degree murder, and voluntary manslaughter, as well as excusable self-defense. By convicting defendant of first-degree murder, the jury found that defendant acted with premeditation, and willfully, maliciously, and deliberately killed his father. Lancaster v. Commonwealth,, 2011 Va. App. LEXIS 29 (Feb. 1, 2011).

Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were proper because the jury did not err in refusing to award an instruction on voluntary manslaughter. The jury rejected the instruction on second-degree murder and convicted defendant of first-degree murder; it followed that the jury would never have reached a voluntary manslaughter verdict. Cortez-Hernandez v. Commonwealth, 58 Va. App. 66, 706 S.E.2d 893, 2011 Va. App. LEXIS 114 (2011).

Because the jury, in its verdict of first-degree murder, rejected the factual basis upon which it could have rendered a verdict on the lesser-included offense of involuntary manslaughter, any error in failing to instruct on involuntary manslaughter was harmless; the jury rejected the lesser-included offense of second-degree murder, and in doing so must have found beyond a reasonable doubt that defendant acted not only maliciously but also willfully, deliberately, and premeditatedly. Dosky v. Commonwealth, No. 1771-17-4, 2019 Va. App. LEXIS 188 (Aug. 13, 2019).

The trial court did not err in failing to instruct the jury as to self-defense since nothing in the video or statements even minimally established the overt act requirement sufficient to justify a self-defense claim; nor was there even a scintilla of evidence of heat of passion or reasonable provocation warranting a manslaughter instruction. Jones v. Commonwealth, 71 Va. App. 70, 833 S.E.2d 918, 2019 Va. App. LEXIS 244 (2019).

Instruction on unsupported hypothesis properly refused. - It is proper for the trial court to refuse defendant's request to instruct the jury on a hypothesis of the case which finds no support in the evidence. Fuller v. Commonwealth, 201 Va. 724 , 113 S.E.2d 667 (1960).

Variance not created by instruction. - Jury instruction on transferred intent did not create a fatal variance between the indictment of first-degree murder and the evidence, where the instruction accurately reflected the evidence adduced at trial, that defendant intended to shoot a person other than the victim, and did not broaden the charge defendant faced. Coleman v. Commonwealth, No. 1654-01-2, 2002 Va. App. LEXIS 734 (Ct. of Appeals Dec. 10, 2002).

Failure to give elements of robbery in felony murder instruction. - While failure of court on trial for felony murder to instruct the jury as to the elements of robbery or attempted robbery in giving felony murder instruction was error, it was not so prejudicial as to warrant federal habeas relief. Moore v. Garraghty, 739 F. Supp. 285 (E.D. Va. 1990), aff'd, 932 F.2d 963 (4th Cir. 1991).

Improper felony murder instruction. - Although a felony homicide instruction under § 18.2-33 incorrectly included the offense of attempted robbery, which was an enumerated offense for first-degree felony murder under § 18.2-32 , defendant could not show that a miscarriage of justice had occurred in order to invoke the ends of justice exception to Va. Sup. Ct. R. 5A:18 as defendant benefitted from the error in the jury instruction. Chalk v. Commonwealth,, 2009 Va. App. LEXIS 36 (Feb. 3, 2009).

Instruction as to lapse of cooling time after provocation. - An instruction to the effect that if accused, in heat of passion caused by insult to his wife, and before lapse of time enough for his passion to cool, killed deceased, it was murder in the second degree, but that it was murder in the first degree if such time had elapsed, and then he went with deadly weapon to kill, and did kill him with malice aforethought, was proper. Watson v. Commonwealth, 87 Va. 608 , 13 S.E. 22 (1891). See M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846).

Instruction presenting defendant's theory of accidental killing as defense. - Where the evidence warrants, an accused is entitled to an instruction presenting his theory of accidental killing as a defense. Martin v. Commonwealth, 218 Va. 4 , 235 S.E.2d 304 (1977).

Where the undisputed physical evidence renders an accident impossible, the trial court does not err in refusing to instruct on accidental shooting. Epps v. Commonwealth, No. 2921-02-3, 2003 Va. App. LEXIS 641 (Ct. of Appeals Dec. 16, 2003).

Accidental killing instruction denied. - In trial for second-degree murder, the trial court did not err in refusing to instruct on accidental killing, because the evidence did not support defendant's claim that a ricochet bullet hit the victim accidentally and the instructions given fully denied the elements of murder and the meaning of the terms. Monroe v. Commonwealth,, 2009 Va. App. LEXIS 111 (Mar. 17, 2009).

To justify an instruction on voluntary drunkenness, the evidence must show more than the mere drinking of alcohol. Hatcher v. Commonwealth, 218 Va. 811 , 241 S.E.2d 756 (1978).

Instruction which read: "Voluntary intoxication is a defense to first degree murder. If you find that the defendant was so greatly intoxicated by the voluntary use of alcohol that he was incapable of forming the specific intent necessary to deliberate and premeditate, which are elements of the crime of first degree murder, you may not find him guilty of any offense greater than second degree murder," read as a whole, contained a clear, accurate statement of the law, although deletion of the first sentence of the instruction perhaps would have been an improvement. Wright v. Commonwealth, 234 Va. 627 , 363 S.E.2d 711 (1988).

Instruction as to burden of proof. - It was error for the trial court to refuse an instruction to the jury that the burden was on the Commonwealth to prove a killing was not accidental and that the jury should acquit the defendant if it entertained a reasonable doubt whether the death was accidental or intentional where the evidence warranted such an instruction. Martin v. Commonwealth, 218 Va. 4 , 235 S.E.2d 304 (1977).

The instruction "The Court instructs the jury that every person is presumed to have intended the natural and probable consequences of his voluntary acts" is error, since a reasonable jury could view the presumption either as conclusive or as shifting the burden of persuasion to the defendant. Stokes v. Warden, Powhatan Correctional Center, 226 Va. 111 , 306 S.E.2d 882 (1983).

For case involving an analysis of specific jury instructions vis-a-vis the due process standards of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), see Hodge v. Commonwealth, 217 Va. 338 , 228 S.E.2d 692 (1976); Warlitner v. Commonwealth, 217 Va. 348 , 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957, 97 S. Ct. 1604, 51 L. Ed. 2d 807 (1977).

Requiring defendant to show extenuating circumstances unconstitutional. - An instruction which tells the jury that the delivery of a mortal wound with a deadly weapon and without sufficient provocation throws upon the slayer the necessity of showing extenuating circumstances to overcome the presumption of willful, deliberate and premeditated killing and which directs that the presumption may be overcome by proof of extenuating circumstances sufficient to create a reasonable doubt, is an unconstitutional shifting to the defendant of the burden of persuasion as to an essential element of the crime. Baker v. Muncy, 619 F.2d 327 (4th Cir. 1980).

Proper instruction on self-defense. - An instruction that the law of self-defense is the law of necessity, and necessity relied on to justify the killing must not arise out of the prisoner's own conduct, and that if the prisoner assaulted the deceased, and thereby brought about the necessity of killing him, then the prisoner could not justify the killing by a plead of necessity unless he were without fault in bringing that necessity on himself, was proper. Jackson v. Commonwealth, 98 Va. 845 , 36 S.E. 487 (1900).

Instruction on self-defense properly refused when no evidence to support it. - In a trial for homicide it is not error to refuse an instruction on self-defense, where there is no evidence to support it, it not appearing that accused was threatened with any danger. Jones v. Commonwealth, 135 Va. 545 , 115 S.E. 572 (1923).

Failure to instruct on self-defense, right to arm, voluntary manslaughter, and heat of passion, constituted reversible error, where the court's exclusion of the victim's prior threats and violence toward defendant, evidence which rebutted the Commonwealth's anticipated argument as to premeditation, and evidence which would have created a jury issue on whether a significant cooling off period was presented, failed to allow the fact finder to conclude that the murder was anything but premeditated. Cary v. Commonwealth, No. 2031-03-1, 2004 Va. App. LEXIS 623 (Ct. of Appeals Dec. 21, 2004), aff'd, 271 Va. 87 , 623 S.E.2d 906 (2006).

Instruction on apprehension of danger. - See Byrd v. Commonwealth, 89 Va. 536 , 16 S.E. 727 (1893); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919).

Instructions on duty to retreat. - See Stoneham v. Commonwealth, 86 Va. 523 , 10 S.E. 238 (1889); McCoy v. Commonwealth, 125 Va. 771 , 99 S.E. 644 (1919).

Instruction that lack of motive affords presumption of innocence held valid. - Where there is no evidence of motive, it is prejudicial error to refuse to instruct the jury "that the absence of all evidence of an inducing cause or motive to commit the crime, when the fact is in reasonable doubt as to who committed it, affords a strong presumption of innocence." Vaughan v. Commonwealth, 85 Va. 671 , 8 S.E. 584 (1889). See also Sutton v. Commonwealth, 85 Va. 128 , 7 S.E. 323 (1888).

Instructions as to reasonable doubt. - See Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

Instructions on unique method of committing crime. - Trial judge erred by referring in jury instructions to the "unique nature of the method of committing the crime," where no evidence of modus operandi was profferred at trial. Fogg v. Commonwealth, No. 3062-00-2, 2002 Va. App. LEXIS 323 (Ct. of Appeals May 28, 2002).

Instructions as to res gestae. - It was proper to instruct the jury that a killing could take place before, during, or after the arson if the killing was so closely related to the arson in time, place, and causal connection as to make it a part of the same criminal enterprise. It was unnecessary to give a more elaborate restatement with regard to res gestae; there was nothing in the brevity or clarity of the instruction to suggest that the jury could find defendant guilty without any showing of causal connection between the killing and the arson or attempted arson. Kennemore v. Commonwealth, 50 Va. App. 703, 653 S.E.2d 606, 2007 Va. App. LEXIS 439 (2007).

Instructions as to lesser offenses. - In murder prosecution where facts were sufficient to establish the killing of the deceased by the defendant and defendant was convicted of involuntary manslaughter the court did not err in instructing the jury as to voluntary manslaughter, involuntary manslaughter, or assault and battery, because there was no evidence which tended to prove the commission of any of these lesser offenses. Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

Denial of defendant's request for a voluntary manslaughter instruction was proper, because the overwhelming evidence demonstrated that defendant committed a malicious killing; with a sedate, deliberate mind, and formed design, he placed a barbell on his daughter's neck and suffocated her and then took a larger barbell and pummeled his wife's head with it and used it to suffocate her. Kenston v. Commonwealth, No. 2487-11-4, 2013 Va. App. LEXIS 35 (Jan. 29, 2013).

Curative instructions. - In a first degree murder case, the prosecutor's comment, in rebuttal to defense counsel's closing argument, that defendant did not obtain the house or any money after her husband's murder because she was in jail 10 days after his death, was not so prejudicial as to require a mistrial, especially in light of the trial court's cautionary instruction and the prosecutor's corrective statement. Blanton v. Commonwealth, 280 Va. 447 , 699 S.E.2d 279, 2010 Va. LEXIS 237 (2010).

Preservation for review. - Where defendant did not preserve for appeal the issues regarding admission and exclusion of testimony and did not show "good cause" or that review was necessary to attain the "ends of justice," the issues could not be raised on direct appeal of defendant's conviction for first-degree murder and for use of a firearm in the commission of the murder. Nguyen v. Commonwealth, No. 0432-02-4, 2003 Va. App. LEXIS 155 (Ct. of Appeals March 25, 2003).

In a first-degree murder prosecution, defendant's proffer of a correct instruction on self-defense was sufficient to preserve for appeal the question of whether the trial court erred in refusing that instruction. It was not necessary for her to expressly articulate each element necessary to her defense, because the trial court heard the evidence and could evaluate its application to the proffered instruction. Commonwealth v. Cary, 271 Va. 87 , 623 S.E.2d 906, 2006 Va. LEXIS 22 (2006).

Defendant did not preserve for review the claim that the trial court's response to the jury's question caused the jury instruction to incorrectly state the law because defendant did not make a contemporaneous objection at the time the trial court informed defendant how the trial court would respond to the question. However, in defendant's murder case, the jury instruction did correctly state the law because defendant could be found not guilty of murder under § 18.2-32 yet be convicted of use of a firearm in attempting to commit murder under § 18.2-53.1 . Ludwig v. Commonwealth, 52 Va. App. 1, 660 S.E.2d 679, 2008 Va. App. LEXIS 227 (2008).

Batson motion correctly denied. - Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the trial court was not clearly erroneous in denying defendant's Batson motion. The Commonwealth offered facially valid race-neutral reasons for the exercise of its strikes and defendant failed to offer any evidence or argument that the proffered rationale behind the strikes challenged were pretextual. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

E. VERDICT.

A jury's determination of guilt and punishment in a single trial does not impair the right of an accused to an impartial jury in contravention of the Sixth Amendment to the Constitution of the United States. Bloodgood v. Commonwealth, 212 Va. 253 , 183 S.E.2d 737 (1971).

A unitary trial at which the jury determines guilt and punishment in a single trial does not impair the right of the accused to an impartial trial in contravention of the Sixth Amendment to the Constitution of the United States. Brown v. Commonwealth, 212 Va. 515 , 184 S.E.2d 786 (1971).

From a constitutional standpoint, it is not impermissible for a state to consider that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment determined in a single trial than by focusing the jury's attention solely on punishment after the issue of guilt has been determined. Bloodgood v. Commonwealth, 212 Va. 253 , 183 S.E.2d 737 (1971).

Defendant entitled to new sentencing hearing. - Circuit court erred by reducing defendant's second degree murder conviction to a sentence of twenty years imprisonment because defendant was entitled to a new sentencing hearing when his original twenty-five year sentence exceeded the maximum range of punishment set forth in § 18.2-32 ; a sentence imposed in violation of a prescribed statutory range of punishment is void ab initio because the character of the judgment was not such as the circuit court had the power to render, and, thus, a criminal defendant in that situation is entitled to a new sentencing hearing. Rawls v. Commonwealth, 278 Va. 213 , 683 S.E.2d 544, 2009 Va. LEXIS 82 (2009).

Double jeopardy was not violated when defendant was convicted of both felony murder and the underlying felony in a single trial, since the purpose of the reference to felonies in the murder statutes is gradation and not prohibition of punishment for the underlying felonies. Spain v. Commonwealth, 7 Va. App. 385, 373 S.E.2d 728 (1988).

Double jeopardy not violated by convictions for aggravated malicious wounding and attempted murder. - Proof of attempted murder does not require proof of an actual injury, and therefore aggravated malicious wounding and attempted murder each contain an element not contained by the other, and neither crime is a lesser-included offense of the other for double jeopardy purposes. Dennis v. Commonwealth, No. 1285-98-1, 1999 Va. App. LEXIS 583 (Ct. of Appeals Oct. 19, 1999).

Double jeopardy not violated by convictions for aggravated malicious wounding and second-degree murder. - Two offenses required elements of proof that the other did not since the aggravated malicious wounding statute, § 18.2-51.2 , prohibited certain methods of violence resulting in severe and permanent injury, and the murder statute, § 18.2-32 , punished the taking of life without regard to the method. Aggravated malicious wounding required proof of a specific intent, whereas second-degree murder required no specific intent, and with different elements of proof, aggravated malicious wounding was not a lesser-included offense of second-degree murder, malicious wounding was not a lesser-included offense of attempted murder and the legislature intended multiple punishments; therefore, the offenses, having separate and distinct elements, allowed for prosecution under both statutes, the legislature authorized separate punishments for those acts, and the defendant's convictions for both aggravated malicious wounding and second-degree murder did not violate the Fifth Amendment prohibition against double jeopardy. Bomber v. Commonwealth,, 2013 Va. App. LEXIS 75 (Mar. 5, 2013).

Double jeopardy not violated by two convictions for attempted murder. - Defendant's double jeopardy rights were not violated by convicting him of two counts of attempted murder as each of defendant's attacks on the victim could stand on its own as a separate, complete attempt to murder her because, during the first attack, defendant accelerated his car and aimed the vehicle directly at the victim, and his acceleration of his car toward the victim was a direct, unequivocal act toward the commission of murder; and defendant's second attack on the victim with a hammer was a separate attempt to murder her as the hammer attack did not involve a continuation of the motion involved in trying to run over the victim with a vehicle; instead, the hammer attack involved a new formation and execution of purpose. Jin v. Commonwealth, 67 Va. App. 294, 795 S.E.2d 918, 2017 Va. App. LEXIS 34 (2017).

Jury verdict finding accused guilty of a lesser degree of homicide will not be disturbed even though the evidence adduced tends to prove murder in the first degree and none other. Blankenship v. Commonwealth, 193 Va. 587 , 70 S.E.2d 335 (1952).

On an indictment for murder, a verdict of manslaughter will not be set aside at the instance of the accused because the evidence shows "murder by lying in wait" which the statute declares to be murder of first degree. The statutes of this state allow juries a certain degree of latitude and discretion in applying the law to the facts, and in fixing the degree of guilt of one convicted of crime. Burton v. Commonwealth, 108 Va. 892 , 62 S.E. 376 (1908).

Verdict set aside where jury examined photographs not admitted. - The trial court erred in refusing to sustain defendant's motion to set aside the verdicts of guilty of first-degree murder and use of a firearm in the commission of murder made upon the ground that numerous photographs of the crime scene, not admitted in evidence, were examined and considered by the jurors during deliberations, since the information supplied by some of the photographs tended to incriminate the accused and affected the grade of the offense. Brittle v. Commonwealth, 222 Va. 518 , 281 S.E.2d 889 (1981).

Verdict supported by evidence. - Trial court did not err in refusing to set aside the jury's verdict because it was supported by one witness's testimony, which was not contradicted by the testimony of two other witnesses; the first witness unequivocally testified she saw defendant shoot the victim, and the testimony of the other witnesses, viewed in light of their particular vantage points, did not directly contradicted her identification of defendant. Wood v. Commonwealth, No. 0937-17-1, 2018 Va. App. LEXIS 255 (Oct. 2, 2018).

CIRCUIT COURT OPINIONS

Admissibility of evidence. - Trial court denied defendant's motion in limine to exclude evidence that defendant had an altercation with another person whiled defendant was incarcerated for premeditated murder and use of a firearm while committing a murder, and that altercation led to a charge and conviction for assault and battery; that evidence, plus evidence that defendant made incriminating statements regarding his crimes were relevant and probative, and were not unduly prejudicial. Commonwealth v. Wallace, 70 Va. Cir. 341, 2006 Va. Cir. LEXIS 32 (Portsmouth 2006).

§ 18.2-32.1. Murder of a pregnant woman; penalty.

The willful and deliberate killing of a pregnant woman without premeditation by one who knows that the woman is pregnant and has the intent to cause the involuntary termination of the woman's pregnancy without a live birth shall be punished by a term of imprisonment of not less than ten years nor more than forty years.

(1997, c. 709.)

Law review. - For note, "Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application," see 41 Wm. & Mary L. Rev. 1845 (2000).

§ 18.2-32.2. Killing a fetus; penalty.

  1. Any person who unlawfully, willfully, deliberately, maliciously and with premeditation kills the fetus of another is guilty of a Class 2 felony.
  2. Any person who unlawfully, willfully, deliberately and maliciously kills the fetus of another is guilty of a felony punishable by confinement in a state correctional facility for not less than five nor more than 40 years.

    (2004, cc. 1023, 1026.)

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

§ 18.2-32.3. Human infant; independent and separate existence.

For the purposes of this article, the fact that the umbilical cord has not been cut or that the placenta remains attached shall not be considered in determining whether a human infant has achieved an independent and separate existence.

(2010, cc. 810, 851.)

Editor's note. - Acts 2010, cc. 810 and 851, cl. 3 provides: "That an emergency exists and this act is in force from its passage [April 21, 2010]."

§ 18.2-33. Felony homicide defined; punishment.

The killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act other than those specified in §§ 18.2-31 and 18.2-32 , is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five years nor more than forty years.

(1975, cc. 14, 15; 1999, c. 282.)

The 1999 amendment substituted "by confinement in a state correctional facility for not less than five years nor more than forty years" for "as a Class 3 felony."

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975); for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978). For note comparing states' recognition of reduced degrees of felony murder, see 40 Wash. & Lee L. Rev. 1601 (1983).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 122; 2C M.J. Autrefois, Acquit and Convict, § 18; 9B M.J. Homicide, § 22.

CASE NOTES

Applicability. - This section applies where the initial felony and the accidental killing are parts of one continuous transaction and are closely related in point of time, place and causal connection. Griffin v. Commonwealth, 33 Va. App. 413, 533 S.E.2d 653, 2000 Va. App. LEXIS 649 (2000).

Under the res gestae rule, which has been adopted in Virginia and represents the prevailing view among other jurisdictions, the felony-murder statute applies where the killing is so closely related to the felony in time, place and causal connection as to make it a part of the same criminal enterprise. Commonwealth v. Montague, 260 Va. 697 , 536 S.E.2d 910, 2000 Va. LEXIS 139 (2000).

Purpose. - The purpose of the doctrine of this section was to deter inherently dangerous felonies by holding the felons responsible for the consequences of the felony, whether intended or not. While the range of felonies which may be a predicate for the felony-murder conviction has changed, the function of the doctrine is still to elevate to murder a homicide resulting from a felony by imputing malice. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

In the prosecution of some felonious act. - The phrase "in the prosecution" requires proof that the killing resulted from an act which was an integral part of the felony or an act in direct furtherance of or necessitated by the felony; where the evidence fails to support a finding that the killing occurred "in the prosecution of" or "in the furtherance of" the underlying felony, there is no basis to find that the accidental death was part or a result of the criminal enterprise. Griffin v. Commonwealth, 33 Va. App. 413, 533 S.E.2d 653, 2000 Va. App. LEXIS 649 (2000).

Elements of offense. - The required elements of the res gestae rule, i.e., time, place, and causal connection, are stated in the conjunctive and, therefore, all three elements must be established for the felony-murder statute to apply. Commonwealth v. Montague, 260 Va. 697 , 536 S.E.2d 910, 2000 Va. LEXIS 139 (2000).

The conduct proscribed by this statute involves the substantial risk to human life common to all other forms of malicious homicide: intent to kill, intent to inflict grievous bodily harm, or extreme recklessness demonstrating total indifference to human life. Cotton v. Commonwealth, 35 Va. App. 511, 546 S.E.2d 241, 2001 Va. App. LEXIS 277 (2001).

Causation. - One of the most significant factors in defining the scope of the felony-murder involves the causation required between the felony and the death. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Causal connection is not the criterion by which culpability for felony murder is determined; for felony murder to exist, the killer must act with malice, which is imputed to him by his commission of the underlying felony. Barrett v. Commonwealth, 32 Va. App. 693, 530 S.E.2d 437, 2000 Va. App. LEXIS 480 (2000).

Existence of causal connection determines whether felony murder committed. - In determining whether a felony murder has been committed, the critical factor is the existence of a causal connection between the felony and the accidental killing. Davis v. Commonwealth, 12 Va. App. 408, 404 S.E.2d 377 (1991).

This section and § 18.2-32 codify common-law doctrine of felony-murder. The doctrine was developed to elevate to murder a homicide committed during the course of a felony by imputing malice to the killing. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Imputation of malice. - While § 18.2-32 contemplates a killing with malice, the malice intrinsic in the commission of one of the predicate felonies provides the malice prerequisite to a finding that the homicide was murder. The same imputation of malice is implicit in this section which contemplates an accidental killing; the commission of any felonious act during the prosecution of which a death occurs supplies the malice which raises the incidental homicide to the level of second-degree murder. Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

The court adopted the Pennsylvania Supreme Court's analysis in Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958) that the felony-murder rule provides for imputing malice to an accidental killing; it does not impute the act of killing. Therefore, if the accidental death, in the absence of imputed malice, would not have been a criminal homicide, then the statute does not elevate it to second-degree murder and impute culpability for the death to a co-felon. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

The second degree felony-murder statute in Virginia contemplates a killing with malice. The commission of any felonious act supplies the malice which raises the incidental homicide to the level of second-degree murder. It does not follow, however, that any death of any person which occurs during the period in which a felony is being committed will subject the felon to criminal liability under the felony-murder rule. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Where a person engages in felonious activity and homicide results, the malice inherent in the original felony provides the malice necessary to a finding that the homicide was murder. Hickman v. Commonwealth, 11 Va. App. 369, 398 S.E.2d 698 (1990), aff'd, 242 Va. 263 , 410 S.E.2d 88 (1991).

This section provides that an accidental killing accompanied by some felonious act, other than those specified in §§ 18.2-31 and 18.2-32 , will support a second degree murder conviction; in such case, malice is imputed and raises an accidental homicide to the level of second degree murder. Pavlick v. Commonwealth, 25 Va. App. 538, 489 S.E.2d 720 (1997).

Trial court did not err by imputing malice to defendant's drunk driving since: (1) § 18.2-33 encompassed all felonious acts not expressly excluded and included defendant's felonious driving while intoxicated; (2) driving while intoxicated or recklessly was a felony considered to be inherently dangerous and by implication presented a substantial risk to life; and (3) the increased risk of death or serious harm occasioned by the commission of defendant's felony DWI demonstrated his lack of concern for human life and justified imputing malice. Montano v. Commonwealth, 61 Va. App. 610, 739 S.E.2d 241, 2013 Va. App. LEXIS 91 (2013).

This section does not create a presumption that shifts the burden of proof to the defendant; the Commonwealth must prove beyond a reasonable doubt a felony that involved substantial risk to life. Cotton v. Commonwealth, 35 Va. App. 511, 546 S.E.2d 241, 2001 Va. App. LEXIS 277 (2001).

Homicide within res gestae of initial felony. - It is clear when the homicide is within the res gestae of the initial felony and emanates therefrom, it is committed in the perpetration of that felony. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

All criminal participants in the initial felony may be found guilty of the felony-murder so long as the homicide was within the res gestae of the initial felony. Hickman v. Commonwealth, 11 Va. App. 369, 398 S.E.2d 698 (1990), aff'd, 242 Va. 263 , 410 S.E.2d 88 (1991).

To convict a defendant of felony homicide, there must be a connection between the felony and the death, and the connection must be found within the res gestae doctrine: the death must be related by time, place and causal connection to the commission of the felony. Cotton v. Commonwealth, 35 Va. App. 511, 546 S.E.2d 241, 2001 Va. App. LEXIS 277 (2001).

Felony child abuse as predicate offense. - Felony child abuse requires proof that the assailant is a person responsible for the care of a child, and since that requirement of a special relationship is not an element of murder, felony child abuse is not a lesser-included offense of murder; hence, the doctrine of merger does not preclude use of felony child abuse as the predicate offense required to establish felony homicide. Cotton v. Commonwealth, 35 Va. App. 511, 546 S.E.2d 241, 2001 Va. App. LEXIS 277 (2001).

Felons not absolutely liable for accidental death of another during commission of felony. - To misconstrue the statute to encompass every accidental death occurring during the commission of a felony, regardless of whether it causally relates to or results from the commission of the felony, is to make felons absolutely liable for the accidental death of another even though such death is fortuitous and the product of causes wholly unrelated to the commission of the felony. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Requirement of section not satisfied by extending common-law fiction of larceny. - The requirement of this section that the accidental killing occur while the defendant is in the prosecution of a felonious act is not satisfied by extending the common-law fiction of larceny as a continuing offense. Doane v. Commonwealth, 218 Va. 500 , 237 S.E.2d 797 (1977).

There was neither a showing of causal relationship nor a showing of nexus between a larceny which was complete with the defendant's asportation of a car in Richmond, and the accidental killing of a person in a collision the following day. Doane v. Commonwealth, 218 Va. 500 , 237 S.E.2d 797 (1977).

The accidental death of child riding his bicycle who was hit when car driven by defendant jumped a curb while defendant was fleeing from a police traffic checkpoint was not related in time to defendant's larceny of the car approximately 12 hours earlier and defendant was not prosecuting the felonious act of larceny at the time of the accident. Hence, the evidence was insufficient to support defendant's conviction for felony murder. Montague v. Commonwealth, 31 Va. App. 187, 522 S.E.2d 379 (1999), aff'd, 260 Va. 697 , 536 S.E.2d 910 (2000).

Where death results from ingestion of a controlled substance. - classified in law as dangerous to human life, the homicide constitutes murder of the second degree within the intendment of this section if that substance had been distributed to the decedent in violation of the felony statutes of the Commonwealth. Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

One who assists another in the illegal possession and consumption of a lethal dose of a controlled substance may be convicted of murder under the felony-murder doctrine. Hickman v. Commonwealth, 11 Va. App. 369, 398 S.E.2d 698 (1990), aff'd, 242 Va. 263 , 410 S.E.2d 88 (1991).

Evidence was insufficient to sustain defendant's felony-murder conviction under § 18.2-33 where: (1) the underlying offense was the sale of ecstasy in violation of § 18.2-248 ; (2) the place element for felony-murder was missing because defendant sold the ecstasy to the victim in a store parking lot, and the drug transaction was completed; (3) the victim ingested the ecstasy over two hours after the drug buy, after she went to dinner, stopped at a gas station for cigarettes, and went to a friend's apartment; and (4) the place element for felony-murder was missing because the underlying felony took place in the store parking lot, and the victim did not ingest the ecstasy until she was at the apartment. Woodard v. Commonwealth, 61 Va. App. 567, 739 S.E.2d 220, 2013 Va. App. LEXIS 96 (2013), aff'd, 287 Va. 276 , 754 S.E.2d 309, 2014 Va. LEXIS 32 (Va. 2014).

Killing during police chase held not felony-murder. - A grand larceny and a homicide were not parts of the same criminal enterprise where the theft of a motor vehicle occurred at least 11 hours before the defendant struck and killed the victim with the vehicle while attempting to evade the police; the accidental killing of the victim was not related in time to the larceny and the larceny and the homicide transpired in different parts of the city. Commonwealth v. Montague, 260 Va. 697 , 536 S.E.2d 910, 2000 Va. LEXIS 139 (2000).

Death from felony hit and run. - Trial court did not err in convicting defendant of and sentencing defendant for both felony murder and felony hit and run, as felony murder required death while felony hit and run required proof that defendant was the driver of the vehicle and knew or should have known someone was injured but failed to stop and report the accident to police, and thus, each offense contained an element the other did not. Flanders v. Commonwealth, No. 0486-17-1, 2018 Va. App. LEXIS 184 (July 10, 2018), aff'd, 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

Felony hit and run as predicate offense. - Because it was possible for felony hit and run to have been committed with malice and for the resulting death to fall within the res gestae of that offense, felony hit and run could serve as a predicate offense for felony homicide upon such facts. Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

Instructions when death occurs while defendant is allegedly attempting to elude police. - Trial court erred by instructing the jury that it could find defendant guilty of violating § 46.2-817 B if it found that defendant "willfully or wantonly" disregarded a police officer's signal to stop, instead of instructing the jury that it had to find defendant "willfully and wantonly" disregarded the signal, and although defendant did not object to the trial court's instruction, the error was not harmless, and it affected defendant's convictions for eluding police and second degree murder. Bazemore v. Commonwealth, No. 0103-02-1, 2003 Va. App. LEXIS 291 (Ct. of Appeals May 13, 2003).

Held not felony-murder. - A death which results not from actions of the felons nor from acts directly calculated to further the felony or necessitated by the felony, but from circumstances coincident to the felony, is not a death for which a felony-murder conviction will obtain. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

Where defendant and co-felon were in the airplane to further the felony of possession of marijuana with the intent to distribute and were flying over the mountains while committing the felony, the time and the place of the death were closely connected with the felony. However, no causal connection existed between the felony of drug distribution and the killing by a plane crash. Thus, no basis existed to find that the accidental death was part or a result of the criminal enterprise. Had the plane been flying low or recklessly to avoid detection, for example, the crash would have been a consequence or action which was directly intended to further the felony and a different result might have been obtained. King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (1988).

The evidence was insufficient to support a conviction of a mother under this section where the mother's daughter had drowned her infant brother after the mother had fallen asleep, leaving the children unattended; the daughter was not involved in the underlying felony of the mother's child abuse or neglect, her conduct involved no effort on her part to further that felony, she acted independently and her conduct could not be attributed to the mother. Although the mother's commission of the underlying felony would impute malice to her in the commission of any act in furtherance of that felony, the daughter's conduct did not constitute a killing attributable to the mother, which, clothed with the imputation of malice, constituted felony murder. Barrett v. Commonwealth, 32 Va. App. 693, 530 S.E.2d 437, 2000 Va. App. LEXIS 480 (2000).

Where defendant returned to his apartment after work, saw a gun which he and victim/friend had previously purchased lying on victim's bed, picked up the gun and began dancing to music, and the gun discharged and a bullet hit victim in the chest from a distance of three feet or less, the evidence was insufficient to establish that the accidental killing of victim occurred in furtherance of the charge of possession of a firearm by a convicted felon, and the killing could not be considered within the res gestae of the underlying felony. Griffin v. Commonwealth, 33 Va. App. 413, 533 S.E.2d 653, 2000 Va. App. LEXIS 649 (2000).

Sufficient evidence of causation. - Commonwealth proved an unbroken chain of events leading from appellant's sale of the heroin to victim's death where evidence established that: (1) Appellant sold the heroin to buyer at 9:00 p.m.; (2) Appellant knew buyer was going to resell the heroin to victim and warned her of the strength of the drugs; (3) 30 to 45 minutes later, buyer sold the heroin to victim; (4) Victim remained in her kitchen with the bag of heroin and cotton, which is used for injecting heroin; and (5) Victim fell asleep on her sofa and died. Hillman v. Commonwealth, No. 2194-93-4 (Ct. of Appeals May 16, 1995).

Evidence was sufficient to convict defendant of second-degree felony murder based on the victim's death after consuming methadone purchased from defendant because the causal connection between the victim's ingestion of methadone and his death was not broken by the victim's ingestion of a prescription drug. Carrowiano v. Commonwealth,, 2009 Va. App. LEXIS 548 (Dec. 8, 2009).

Double jeopardy. - Because a jury determined that defendant engaged in a felony hit-and-run when she fatally struck the pedestrian and that she was driving while intoxicated and in a manner so gross, wanton, and culpable as to show a reckless disregard for human life in violation of subsection B of § 18.2-36.1 when she struck and killed the pedestrian, while the separate criminal offenses each resulted in the death of a single victim, the convictions and punishments imposed did not violate the constitutional prohibition against double jeopardy. Payne v. Commonwealth, 52 Va. App. 120, 661 S.E.2d 513, 2008 Va. App. LEXIS 265 (2008).

Conviction for both felony murder and aggravated involuntary manslaughter was proper, because subsection C of § 18.2-36.1 supported and proved that the legislature intended multiple punishments and the two convictions required proof of different elements and thus, did not violate the prohibition against double jeopardy. To convict defendant under the felony homicide statute, the Commonwealth had to prove that defendant committed the killing in the commission of a felonious act; however, the Commonwealth was not required to prove any level of intoxication or recklessness, as it was under aggravated involuntary manslaughter statute. Payne v. Commonwealth of Virginia, 277 Va. 531 , 674 S.E.2d 835, 2009 Va. LEXIS 49 (2009).

It is clear from the language of the felony child abuse statute and the felony murder statute that they apply to distinct forms of actions. Felony child abuse criminalizes certain specific conduct by individuals who are responsible for minors; in contrast, the General Assembly intended for the felony murder statute to apply in a wide variety of situations, and prosecutors have implemented it accordingly. Schmidt v. Commonwealth, No. 1104-16-4, 2018 Va. App. LEXIS 12 (Jan. 23, 2018).

Defendant's convictions for felony child abuse and felony murder did not violate the Double Jeopardy Clause because committing a felonious act was not an element within the offense of felony child abuse; to obtain a conviction under the felony murder statute, the Commonwealth must prove that the defendant committed some felonious act as an independent element, and to convict under the felony child abuse statute, it must prove the defendant was in a special relationship with the victim. Schmidt v. Commonwealth, No. 1104-16-4, 2018 Va. App. LEXIS 12 (Jan. 23, 2018).

Homicide was felony murder within purview of section. - Where case involved an habitual offender who accidentally killed a person while driving in a reckless manner in order to avoid being caught committing his felonious act of driving after being declared an habitual offender, the act of driving recklessly was directly calculated to further the felonious act of driving after having been declared an habitual offender, and therefore, the homicide caused by defendant's reckless driving was within the res gestae of his felony and emanated from it; the homicide was committed in the perpetration of defendant's felony and was subject to the felony-murder doctrine. Davis v. Commonwealth, 12 Va. App. 408, 404 S.E.2d 377 (1991).

Improper instruction. - Instruction in dispute did not properly admonish the jury that second degree felony-murder must be a part of the res gestae of the predicate felony. Instead, it required only that the Commonwealth prove that defendant "had committed" the underlying felony, distribution of cocaine, at some previous time, perhaps transactionally distinct from the death, and, therefore, erroneously stated the law. Accordingly, the judgment of the trial court was reversed with respect to the murder conviction. Talbert v. Commonwealth, 17 Va. App. 239, 436 S.E.2d 286 (1993).

Jury instruction properly stated that for a firearm conviction, the jury had to find the defendant committed murder and his profferred instruction did not permit inconsistent verdicts; the court did not err refusing the defendant's instruction or motion to set aside. Gaines v. Commonwealth, 39 Va. App. 562, 574 S.E.2d 775, 2003 Va. App. LEXIS 75 (2003).

Although a felony homicide instruction under § 18.2-33 incorrectly included the offense of attempted robbery, which was an enumerated offense for first-degree felony murder under § 18.2-32 , defendant could not show that a miscarriage of justice had occurred in order to invoke the ends of justice exception to Va. Sup. Ct. R. 5A:18 as defendant benefitted from the error in the jury instruction. Chalk v. Commonwealth,, 2009 Va. App. LEXIS 36 (Feb. 3, 2009).

Evidence sufficient. - Evidence that defendant poured the methadone into a cup that the child used to take medicine to test the accuracy of her purchase and left the cup on the counter while she went to discuss it with someone else, giving the victim access to the methadone and an incentive to drink it was sufficient to support defendant's conviction for second-degree felony murder under § 18.2-33 . Hylton v. Commonwealth, 60 Va. App. 50, 723 S.E.2d 628, 2012 Va. App. LEXIS 111 (2012).

Elements of res gestae were proved and supported the application of the felony-murder rule under § 18.2-33 to a victim's death after a drunk driving car accident where: (1) the expert testimony made clear that the car accident occurred because defendant was highly intoxicated while he was driving; (2) defendant's vision, motor skills, and reaction time were all adversely affected by his intoxication; (3) the underlying felony driving while intoxicated caused the collision and resulted in an accidental death; and (4) defendant's intoxicated operation of his vehicle was inextricably linked and integral to the victim's death. Montano v. Commonwealth, 61 Va. App. 610, 739 S.E.2d 241, 2013 Va. App. LEXIS 91 (2013).

Evidence was sufficient to sustain defendant's conviction for felony homicide because defendant intentionally acted in a manner endangering the victim such that malice could have been implied from defendant's conduct in striking the victim with a vehicle, recognizing that the victim's injuries were severe enough to endanger the victim's life, and fleeing the scene. The victim's death hours later was sufficiently related to the hit and run in time, place, and causal connection such that it was within the res gestae of the felony hit and run. Flanders v. Commonwealth, 298 Va. 345 , 838 S.E.2d 51, 2020 Va. LEXIS 8 (2020).

Applied in Ball v. Commonwealth, 221 Va. 754 , 273 S.E.2d 790 (1981); Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984); Hickman v. Commonwealth, 242 Va. 263 , 410 S.E.2d 88 (1991).

CIRCUIT COURT OPINIONS

Not felony murder. - Felony homicide resulting from felony child neglect indictment under § 18.2-33 was dismissed as the victim died from Sudden Infant Death Syndrome (SIDS), and under § 32.1-285.1 , a death caused by SIDS resulted from an unexplained cause; the Commonwealth could not prove that defendant's or her employees' acts or omissions caused the victim's death, even if defendant's or her employees' acts or omissions exposed the victim to SIDS risk factors. Commonwealth v. Futrell, 83 Va. Cir. 389, 2012 Va. Cir. LEXIS 48 (Norfolk Jan. 3, 2012).

§ 18.2-34.

Reserved.

§ 18.2-35. How voluntary manslaughter punished.

Voluntary manslaughter is punishable as a Class 5 felony.

(Code 1950, § 18.1-24; 1960, c. 358; 1972, cc. 14, 15.)

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For comments, "Has the Burger Court Dealt a Death Blow to the Presumption of Malice in Virginia?" see 10 U. Rich. L. Rev. 687 (1976).

For comment on admissibility of expert testimony on the battered woman syndrome in Virginia, see 10 G.M.U. L. Rev. 171 (1988).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Homicide, § 135.

CASE NOTES

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Manslaughter is the unlawful killing of another, without malice, either express or implied. Commonwealth v. Mitchell, 3 Va. (1 Va. Cas.) 116 (1796); King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817); M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Byrd v. Commonwealth, 89 Va. 536 , 16 S.E. 727 (1893); Clark v. Commonwealth, 90 Va. 360 , 18 S.E. 440 (1893).

And is distinguished from murder by the absence of malice, either express or implied, which is the essence of murder. Commonwealth v. Mitchell, 3 Va. (1 Va. Cas.) 116 (1796); King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817); M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Briggs v. Commonwealth, 82 Va. 554 (1886). See Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872); Moxley v. Commonwealth, 195 Va. 151 , 77 S.E.2d 389 (1953).

Such as when death blow struck in heat of combat. - Where defendant and deceased were actually engaged in combat, during the heat of which defendant dealt the blow which caused the death of deceased, such killing is manslaughter only. King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817). See Watson v. Commonwealth, 87 Va. 608 , 13 S.E. 22 (1891); Horton v. Commonwealth, 99 Va. 848 , 38 S.E. 184 (1901).

There can be a principal in the second degree to the offense of manslaughter. Campbell v. Commonwealth, 130 Va. 741 , 107 S.E. 812 (1921)See § 18.2-18 .

There was ample evidence from which a jury could have reasonably found that defendant was a principal in the second degree in violation of § 18.2-35 because by the defendant's words, gestures, and actions, viewed in the light most favorable to the Commonwealth, defendant explicitly demonstrated that the defendant shared a friend's criminal intent to kill the victim; immediately prior to the killing, defendant specifically commanded the friend to shoot the victim and did nothing to dissuade the friend. McKinney v. Commonwealth, No. 1202-07-3,, 2008 Va. App. LEXIS 344 (Ct. of Appeals July 8, 2008).

Voluntary manslaughter defined. - Voluntary manslaughter is the unlawful killing of another without malice actual or implied, upon a sudden heat, on reasonable provocation, or in mutual combat. King v. Commonwealth, 4 Va. (2 Va. Cas.) 78 (1817).

Mutual combat supporting voluntary manslaughter conviction absent where although defendant arguably brought about the difficulty that eventually led to the shootout by taking the victims' cocaine, he attempted several times to prevent the violence that ultimately ensued. The mutual voluntariness necessary for such combat was not present. Smith v. Commonwealth, 17 Va. App. 68, 435 S.E.2d 414 (1993).

Provocation and passion must concur. Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872).

And continue till instant of mortal stroke. - The suspension of reason arising from sudden passion must continue from the time provocation is received to the very instant of the mortal stroke given, for if from any circumstances whatever it appears that the party reflected, deliberated, or cooled any time before the fatal stroke was given, or if in legal presumption there was time or opportunity for cooling, the killing will amount to murder. M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846). See Dock v. Commonwealth, 62 Va. (21 Gratt.) 909 (1872); Byrd v. Commonwealth, 89 Va. 536 , 16 S.E. 727 (1893); Campbell v. Commonwealth, 130 Va. 741 , 107 S.E. 812 (1921).

Nature of provocation determines if killing is from sudden heat of passion. - The test of whether killing is from the sudden heat of passion is found in the nature and degree of the provocation and the manner in which it is resented. Richardson v. Commonwealth, 128 Va. 691 , 104 S.E. 788 (1920). See Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872).

And words alone are not sufficient. - Words alone, however insulting or contemptuous, are never a sufficient provocation to have the effect of reducing a homicide to manslaughter, at least where a deadly weapon is used, so tender is the law of human life and so much opposed is it to the use of such a weapon. Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872).

Successful assertion of self-defense. - Although defendant may have provoked the initial confrontation with the two victims by taking their cocaine, he attempted to withdraw from the conflict several times, and he shot them only when it became necessary to do so in order to save his life or prevent serious bodily injury to him. The danger was real and immediate, and he had no other course available to him. He literally was looking down the barrel of a loaded gun with another assailant standing nearby armed with a cocked pistol. Therefore, defendant was entitled to an acquittal, as a matter of law, on a finding of excusable homicide in self-defense. Smith v. Commonwealth, 17 Va. App. 68, 435 S.E.2d 414 (1993).

It is no defense that defendant did not intend to kill. - While neither of defendants in a prosecution for murder may have premeditated the death of deceased, yet where they went with a joint unlawful purpose of attacking deceased, and deceased was killed in a pistol duel developing out of such attack, the death of deceased was not an improbable consequence of the fight which defendants clearly contemplated, and which the jury, upon ample testimony, evidently believed they precipitated. This being true, it matters not that neither of the defendants intended to kill deceased, and a verdict of voluntary manslaughter is warranted. Campbell v. Commonwealth, 130 Va. 741 , 107 S.E. 812 (1921).

Evidence sufficient for voluntary manslaughter. - Since the jury could have concluded that the defendant lied during the defendant's testimony when the defendant stated that the victim initially attacked the defendant with the knife that the defendant used to stab the victim, and the victim, who either never had a knife, or had lost the knife, was stabbed four times, the evidence was sufficient to convict the defendant of voluntary manslaughter under § 18.2-35 . Caison v. Commonwealth, 52 Va. App. 423, 663 S.E.2d 553, 2008 Va. App. LEXIS 361 (2008).

Conviction upheld. - Appellate court could not conclude that no rational factfinder could have found defendant guilty of second-degree murder, and defendant was not prejudiced by the jury's reluctance to convict her of murder. Therefore, defendant was not entitled to a reversal of her voluntary manslaughter conviction or a new trial. Smith v. Commonwealth, 68 Va. App. 399, 808 S.E.2d 848, 2018 Va. App. LEXIS 8 (2018), aff'd, 296 Va. 450 , 821 S.E.2d 543, 2018 Va. LEXIS 183 (2018).

Jury instruction to the effect that the accused had the burden of proving self-defense to the extent of raising in the minds of the jury a reasonable doubt as to whether or not he acted in the lawful exercise of such right was constitutional. Frazier v. Weatherholtz, 572 F.2d 994 (4th Cir.), cert. denied, 439 U.S. 876, 99 S. Ct. 215, 58 L. Ed. 2d 191 (1978).

Trial court properly refused to instruct the jury on justified self-defense and defense of others, because there was no evidence to support such instructions; although defendant and his wife testified that the victim was yelling and screaming cruel obscenities in the face of defendant's wife, such behavior did not constitute an overt act indicative of imminent danger entitling defendant to the proffered defense theories. Garrard v. Commonwealth,, 2010 Va. App. LEXIS 376 (Sept. 21, 2010).

Sentence upheld. - Trial court did not abuse its discretion following defendant's guilty pleas to voluntary manslaughter, shooting in the commission of a felony, and two counts of unlawfully discharging a firearm in an occupied building in imposing a fifteen-year sentence with five years suspended, which did not exceed the statutory maximum, because the proffer contained facts from which the court could have found that defendant exhibited both premeditation and malice in getting a gun and returning to twice shoot defendant's spouse during a dispute in their home. Spradling v. Commonwealth, No. 2082-15-4, 2016 Va. App. LEXIS 313 (Ct. of Appeals Nov. 15, 2016).

Applied in Blythe v. Commonwealth, 222 Va. 722 , 284 S.E.2d 796 (1981).

§ 18.2-36. How involuntary manslaughter punished.

Involuntary manslaughter is punishable as a Class 5 felony.

(Code 1950, § 18.1-25; 1960, c. 358; 1975, cc. 14, 15; 1982, c. 301.)

Law review. - For comment on 1982 amendments to Virginia's driving while intoxicated laws, see 17 U. Rich. L. Rev. 189 (1982).

For comment on admissibility of expert testimony on the battered woman syndrome in Virginia, see 10 G.M.U. L. Rev. 171 (1988).

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

Research References. - Campbell, Fisher, and Mansfield. Defense of Speeding, Reckless Driving & Vehicular Homicide (Matthew Bender).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 18; 9B M.J. Homicide, §§ 33, 136.

CASE NOTES

I. IN GENERAL.

Involuntary manslaughter is the killing of one accidentally contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious act; or in the improper performance of a lawful act. Commonwealth v. Jones, 28 Va. (1 Leigh) 598 (1829); Souther v. Commonwealth, 48 Va. (7 Gratt.) 673 (1851). See also M'Whirt's Case, 44 Va. (3 Gratt.) 594 (1846); Byrd v. Commonwealth, 89 Va. 536 , 16 S.E. 727 (1893); Fadely v. Commonwealth, 208 Va. 198 , 156 S.E.2d 773 (1967); Lewis v. Commonwealth, 211 Va. 684 , 179 S.E.2d 506 (1971); Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

Criminal negligence is element of offense. - Criminal negligence is the basis for involuntary manslaughter and has been defined as acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Gray v. Commonwealth, No. 2017-99-3, 2000 Va. App. LEXIS 548 (Ct. of Appeals July 25, 2000).

Criminal negligence is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

Knowledge is element of offense. - To be guilty of involuntary manslaughter, a defendant must have had prior knowledge of specific conditions that would likely cause injury to others. Gray v. Commonwealth, No. 2017-99-3, 2000 Va. App. LEXIS 548 (Ct. of Appeals July 25, 2000).

Intentional, willful and wanton violation of safety statutes, resulting in death, will justify conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

To convict defendant of involuntary manslaughter the Commonwealth was required to prove that defendant committed acts of commission or omission of a wanton or wilful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts. Gallimore v. Commonwealth, 246 Va. 441 , 436 S.E.2d 421 (1993).

To support an involuntary manslaughter conviction, the Commonwealth must prove a homicide was not improbable under all of the facts existing at the time and that the knowledge of such facts should have had an influence on the conduct of the offender. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

Evidence that defendant left the child in the van and casually instructed other children to get all the children out of the van and into the house without ensuring that his instructions were obeyed, and that, over a period of more than seven hours, defendant assumed but never ascertained that the child was asleep in the house was sufficient to show defendant's total and utter disregard for her well-being, safety, and life and thus, to support convictions for involuntary manslaughter and felony child neglect. Kelly v. Commonwealth, 42 Va. App. 347, 592 S.E.2d 353, 2004 Va. App. LEXIS 47 (2004).

"Objective awareness" test. - Whether a defendant knows of the dangerous risk she or he causes is measured by an "objective awareness" test - whether the defendant knew or should have known of the risk her or his conduct created. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

Criminal negligence, as the basis for involuntary manslaughter, is judged under an objective standard and, therefore, may be found to exist where the offender either knew or should have known the probable results of his acts. Craig v. Commonwealth, 34 Va. App. 155, 538 S.E.2d 355, 2000 Va. App. LEXIS 837 (2000).

Construction with other law. - While the statutory requirements of former § 18.2-268 [now see § 18.2-268.1 et seq.] are to be strictly applied, they apply only to DUI prosecutions under § 18.2-266 , and not to an involuntary manslaughter prosecution under this section. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

The "improper" performance of a lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

The accidental killing must be the proximate result of a lawful act performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life. Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

The improper performance of a lawful act proximately causing an accidental killing is insufficient to support a conviction for involuntary manslaughter unless that improper performance constitutes criminal negligence. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

Showing necessary where charge predicated on improper performance of lawful act. - When the Commonwealth predicates the charge upon an improper performance of a lawful act, it must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. But the negligence need not be so gross as to raise the presumption of malice. Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975).

Where intentional violation of statute involves inherently dangerous act which is the proximate cause of the resulting homicide, the killing is involuntary manslaughter. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Malice is element of murder but not manslaughter. - Malice, a requisite element for murder of any kind, is unnecessary in manslaughter cases and is the touchstone by which murder and manslaughter cases are distinguished. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Reckless conduct must amount to unlawful conduct in order to sustain a charge of involuntary manslaughter; it is immaterial whether the unlawful act was unlawful in its inception - that is, an inherently unlawful act, such as discharging a deadly weapon into a crowded street - or became unlawful after it was begun, such as lawfully operating a vehicle in a public street but so accelerating its speed that it may cause death or serious bodily harm to persons in that street. Gooden v. Commonwealth, 226 Va. 565 , 311 S.E.2d 780 (1984).

Ordinary negligence is insufficient to convict of involuntary manslaughter. - The degree of negligence must be more than ordinary negligence in order for negligent violation of a safety statute to justify conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

In the operation of motor vehicles violation of a safety statute amounting to mere negligence proximately causing an accidental death is not sufficient to support a conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

Where evidence in a criminal prosecution showed at most only an inadvertent failure by the defendant to turn on her white headlights rather than her amber running or parking lights, this act of omission was no more than ordinary negligence, an insufficient predicate for a conviction of involuntary manslaughter. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

When the proximate cause of a death is simply ordinary negligence, i.e., the failure to exercise reasonable care, the negligent party cannot be convicted of involuntary manslaughter. To constitute criminal negligence essential to a conviction of involuntary manslaughter, an accused's conduct must be of such reckless, wanton or flagrant nature as to indicate a callous disregard for human life and of the probable consequences of the act. Davis v. Commonwealth, 230 Va. 201 , 335 S.E.2d 375 (1985).

A higher degree of negligence in the operation of a motor vehicle is required to establish criminal liability for involuntary manslaughter than to establish liability in a civil action for ordinary or even gross negligence. This higher degree of negligence has come to be known as "criminal negligence." Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).

In determining the degree of negligence sufficient to support a conviction of vehicular involuntary manslaughter, the accused's conscious awareness of the risk of injury created by his conduct is necessarily a significant factor. Obviously, when the driver proceeds in the face of a known risk, the degree of the negligence is increased, and may turn that which would have been ordinary negligence into gross, willful or wanton negligence. Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).

Effect of contributory negligence of victim. - Contributory negligence has no place in a case of involuntary manslaughter. If the criminal negligence of the accused is found to be the cause of the death, he is criminally responsible, whether the decedent's failure to use due care contributed to the injury or not. Only if the conduct of the deceased amounts to an independent, intervening act alone causing the fatal injury can the accused be exonerated from liability for his or her criminal negligence. In such case, the conduct of the accused becomes a remote cause. Hubbard v. Commonwealth, 243 Va. 1 , 413 S.E.2d 875 (1992).

Reasonably foreseeable intervening acts do not break the chain of causal connection between the original act of negligence and subsequent injury. For defendant's negligence to have been a remote cause of victim's death, action of person who shot victim must have been an independent, intervening act alone causing the death. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

It was not necessary that defendant foresaw the specific manner in which injury and death occurred. It was sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

Accidental killing of person at whom loaded gun was pointed. - Where defendant intentionally pointed a loaded gun at the victim who was no more than five to ten feet away and the killing, while accidental, was a foreseeable result of defendant's conduct, his conduct was so gross, wanton and culpable as to show a reckless disregard for human life constituting involuntary manslaughter. Alternatively, his conduct was an unlawful act committed with criminal negligence constituting involuntary manslaughter. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Violation not a crime of violence under 18 U.S.C.S. § 16(b). - Violation of § 18.2-36 is not a crime of violence under 18 U.S.C.S. § 16(b); although the crime of violating § 18.2-36 intrinsically involves a substantial risk that the defendant's actions will cause physical harm, it does not intrinsically involve a substantial risk that force will be applied "as a means to an end." Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 2005 U.S. App. LEXIS 13318 (4th Cir. 2005).

Removability of alien. - Where the court found that involuntary manslaughter was not a crime of violence, the immigrant's finding of removability under 8 U.S.C.S. § 1227 was erroneous because the immigrant had not been convicted of an aggravated felony. Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 2005 U.S. App. LEXIS 13318 (4th Cir. 2005).

Duty to avoid danger by revealing truth. - Where defendant knew that a dangerous condition had been created by her deceit, and knew or should have known that the situation she created had escalated and was fraught with imminent danger that someone might be killed or seriously injured, yet she took no steps to defuse the danger that she knowingly and purposefully set in motion, and where she knew or should have known that she could avoid the danger by revealing the truth, she had a duty to act to avoid the danger. Gallimore v. Commonwealth, 15 Va. App. 288, 422 S.E.2d 613 (1992), aff'd, 246 Va. 441 , 436 S.E.2d 421 (1993).

For case upholding conviction of daughter for involuntary manslaughter of mother by starvation and freezing, see Davis v. Commonwealth, 230 Va. 201 , 335 S.E.2d 375 (1985).

Hunting accident. - Fact that defendant, alerted by a noise which he supposed to be a squirrel jumping from a tree but which could well have been something else, fired at an unidentified target which he perceived only to be "a flash of movement," supported a finding that he fired blindly and wildly and in utter disregard of the safety of others, and was sufficient to support defendant's conviction of involuntary manslaughter. Cable v. Commonwealth, 12 Va. App. 565, 405 S.E.2d 444 (1991), aff'd. 243 Va. 236 , 415 S.E.2d 218 (1992).

Admissibility of perception expert testimony in hunting shooting. - Testimony by sensation and perception expert would have explained to the jury how the camouflage contributed to the possibility of misperception. Some jurors might not appreciate how the victim, being camouflaged and using a turkey call, and defendant, expecting a turkey, could combine to cause defendant reasonably to believe he saw a turkey. The jury might have wondered how defendant could have made such a mistake unless he was grossly, wantonly, and wilfully negligent. The expert testimony could have provided the jury with an explanation that the jury could have found to be a reasonable hypothesis of innocence. Therefore, the testimony would have assisted the jury in resolving an essential issue and should not have been rejected on the grounds that it would not assist the jury or was a matter of common knowledge. Farley v. Commonwealth, 20 Va. App. 495, 458 S.E.2d 310 (1995).

Criminal negligence in training and supervision of dogs. - Evidence supported defendant's involuntary manslaughter conviction under § 18.2-36 as the jury could find that the cumulative effect of defendant's acts, including lack of adequate training and supervision of defendant's dogs culminating in their repeated history of actual harm and threatening behavior to animals and humans, followed by defendant's indifferent attitude to their actions caused a victim's death, and constituted criminal negligence. Large v. Commonwealth,, 2007 Va. App. LEXIS 399 (Oct. 30, 2007).

Supplying legal substance in lethal doses constituted involuntary manslaughter. - Evidence that defendant provided a lawful drug to a victim that he packaged in quantities that he knew were potentially lethal, knowing that the victim intended to ingest them in order to "trip," was sufficient evidence of defendant's criminal negligence to support his conviction of involuntary manslaughter. Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

Defendant was charged with involuntary manslaughter for supplying a legal, but dangerous, drug to a person who died from an overdose. Although the victim's voluntary act of ingesting the drug was a contributing cause of his death, his voluntary act did not interrupt the natural and probable consequence of defendant's criminally negligent act of purposefully distributing the drug for ingestion in large dosages to the victim so that he could experience a "trip." Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

Evidence sufficient to convict. - Where defendant, knowing that victim was intoxicated, nearly blind, and in an agitated state of mind, orchestrated a scenario whose finale was bound to include harmful consequences to victim, either in the form of his arrest or his injury or death, having aroused victim's wrath and led him to expect a violent confrontation, and then made two anonymous telephone calls to the police in which he falsely reported that victim had threatened to "shoot up" the neighborhood and to shoot anything that moved, defendant could properly be convicted of involuntary manslaughter for victim's death, which occurred when victim opened fire upon the police and the officers returned fire. Bailey v. Commonwealth, 229 Va. 258 , 329 S.E.2d 37 (1985).

Evidence that defendant assaulted the victim and left him lying injured on unlit exit ramp and that it was the assault that left the victim lying in the road to be subsequently hit by an oncoming car was sufficient to sustain his conviction for involuntary manslaughter. Banks v. Commonwealth, 41 Va. App. 539, 586 S.E.2d 876, 2003 Va. App. LEXIS 495 (2003).

In a prosecution for involuntary manslaughter, where experts testified that the victim had elevated levels of a drug in his bodily fluids and tissues, and that he died from the toxicity of that drug, which defendant had supplied him, the jury's finding that the victim died from an overdose of the drug was not plainly wrong or without evidence to support it. Coyle v. Commonwealth, 50 Va. App. 656, 653 S.E.2d 291, 2007 Va. App. LEXIS 422 (2007).

Evidence supported defendant's involuntary manslaughter conviction under § 18.2-36 as: (1) a victim's daughter identified dogs one and two as two of dogs involved in the fatal attack on the victim; (2) defendant admitted that defendant owned dog one; and (3) five witnesses identified dog two as belonging to defendant. Large v. Commonwealth,, 2007 Va. App. LEXIS 399 (Oct. 30, 2007).

Defendant's conduct in placing cardboard and a thirty-three and one-quarter pound, collapsed dog crate atop a toddler's crib to prevent the toddler from standing up in the crib and failing to visually check on the toddler for about three hours was wanton and willful, supporting defendant's conviction for involuntary manslaughter. Noakes v. Commonwealth, 280 Va. 338 , 699 S.E.2d 284, 2010 Va. LEXIS 240 (2010).

Convictions of involuntary manslaughter, § 18.2-36 , and felony child neglect, § 18.2-371.1 B were supported by sufficient evidence under circumstances in which defendant, a daycare van driver, left a child in the van for a full day, and the child died of heat exposure; defendant failed to look for the child after unloading the other children from the van, despite having personally strapped the child into his car seat, did not use the van logbook designed to prevent this kind of tragedy, took the child's diaper bag inside the daycare without confirming that the child was also safely inside, failed to use the logbook inside the daycare, and then drove home, completely oblivious to the child sitting behind him. After returning home, defendant did not check to make sure the van was empty, silenced his phone, making it impossible for anyone to reach him when questions later arose concerning the child's delivery, and then slept all day leading to the reasonable inference that lack of sleep compromised his alertness that morning. Whitfield v. Commonwealth, 57 Va. App. 396, 702 S.E.2d 590, 2010 Va. App. LEXIS 502 (2010).

Evidence insufficient to convict. - Evidence did not support defendant's conviction for involuntary manslaughter because defendant's decision not to take defendant's daughter back to the hospital during the few hours that elapsed during the night after the hospital released defendant's daughter did not amount to criminal negligence as both the treating physician and the generic discharge instructions led defendant to believe that defendants' daughter was "okay" when defendant left the hospital with defendant's daughter. Artis v. Commonwealth,, 2015 Va. App. LEXIS 183 (June 2, 2015).

Sentence appropriate within statutory range. - Defendant's involuntary manslaughter sentence was appropriate because it was a Class 5 felony under § 18.2-36 , punishable by imprisonment for 1 to 10 years under subdivision (e) of § 18.2-10 , and defendant was sentenced to 10 years imprisonment, which fell within the statutory range set by the legislature. Thus, no abuse of discretion occurred with regard to his sentence. Scott v. Commonwealth, 58 Va. App. 35, 707 S.E.2d 17, 2011 Va. App. LEXIS 104 (2011).

II. INVOLUNTARY MANSLAUGHTER IN OPERATION OF A MOTOR VEHICLE.

Involuntary manslaughter in operation of motor vehicle defined. - Involuntary manslaughter arising from the operation of a motor vehicle should be predicated solely upon criminal negligence proximately causing death. Accordingly, involuntary manslaughter in the operation of a motor vehicle is defined as the accidental killing which, although unintended, is the proximate result of negligence so gross, wanton and culpable as to show a reckless disregard of human life. King v. Commonwealth, 217 Va. 601 , 231 S.E.2d 312 (1977).

In order for driving an automobile at an excessive speed to constitute the basis for a manslaughter conviction the act must be so flagrant, culpable, and wanton as to show utter disregard of the safety of others under circumstances likely to cause injury. Shrader v. Commonwealth, 2 Va. App. 287, 343 S.E.2d 375 (1986).

In a prosecution for involuntary manslaughter, the manner of operation and speed of the appellant's automobile was material to the issue of whether his conduct was willful or wanton or showed a total disregard of the safety and well-being of others. Shrader v. Commonwealth, 2 Va. App. 287, 343 S.E.2d 375 (1986).

In a prosecution for involuntary manslaughter, evidence which tends to prove the rate of speed at which the automobile was driven, if competent, is relevant. Shrader v. Commonwealth, 2 Va. App. 287, 343 S.E.2d 375 (1986).

Degree of intoxication is a circumstance relevant to a determination of the question whether, in light of all other circumstances, the act of driving an automobile was such an improper performance of a lawful act as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975).

Defendant's negligence not remote cause of double homicide where evidence established beyond reasonable doubt that the defendant's vehicle was proceeding at an exorbitant rate of speed, running out of control, and swerving from one lane to the other up to the very point in time and place that the fatal collision occurred. At best, failure of driver of victims' car to steer to the right would have been only a contributing cause of the collision, not rising to the level of an independent, intervening act which could be classified as alone causing the fatal injuries and thus exonerating the defendant. Hubbard v. Commonwealth, 243 Va. 1 , 413 S.E.2d 875 (1992).

Concurring causes of death. - Where, in a prosecution under this section, the negligence of the defendant and another person, in operating their vehicles around a curve at speeds of 80 to 100 miles per hour, occurred contemporaneously and continued in operation up to the very point in time and place that the defendant's vehicle went out of control and resulted in death of a pedestrian, the negligence of the other person was not an intervening but a concurring cause. Delawder v. Commonwealth, 214 Va. 55 , 196 S.E.2d 913 (1973).

Reckless driving and involuntary manslaughter are two separate and distinct offenses, although arising out of the same occurrence. The lesser offense is not included within the other. Delawder v. Commonwealth, 214 Va. 55 , 196 S.E.2d 913 (1973).

Distinction between reckless driving and involuntary manslaughter. - What distinguishes a speeding violation from the misdemeanor of reckless driving, and the misdemeanor from the felony of involuntary manslaughter, is the likelihood of injury to other users of the highways. And the degree of the hazard posed by a speeding automobile depends upon the circumstances in each case. Mayo v. Commonwealth, 218 Va. 644 , 238 S.E.2d 831 (1977).

Evidence that defendant, after drinking enough beer to affect his behavior, knowingly drove an overcrowded, defective vehicle and attempted to negotiate a curve at a speed in excess of the posted speed limit during unfavorable weather conditions was a sufficient basis for the jury to conclude that defendant's negligence was so gross, wanton, and culpable as to show a reckless disregard of human life. Jetton v. Commonwealth, 2 Va. App. 557, 347 S.E.2d 141 (1986).

Prosecution not barred by prior acquittal of driving under influence. - The doctrine of collateral estoppel may not bar the prosecution for involuntary manslaughter of a person previously acquitted of driving under the influence of intoxicants, since the issue of intoxication is not necessarily dispositive of the crime of involuntary manslaughter. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

But evidence of intoxication barred under collateral estoppel. - Although the defendant could be tried for involuntary manslaughter, even though he previously had been acquitted of driving under the influence of intoxicants, based upon failure of the Commonwealth to prove legal intoxication, the Commonwealth should have been barred, under the doctrine of collateral estoppel, from introducing in the manslaughter trial evidence to show that the defendant was intoxicated while operating the motor vehicle. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

Though consumption of alcohol could be shown. - If the Commonwealth elected to try a defendant previously acquitted of driving under the influence for involuntary manslaughter, the Commonwealth would not be estopped from introducing evidence to show that the defendant consumed alcohol shortly before the accident in question, since the quantity of alcohol consumed by an automobile driver, even though not enough to cause legal intoxication, may be sufficient to impair his capacity to perceive the dangers with the clarity, make decisions with the prudence, and operate the vehicle with the skill and caution required by law. If such evidence is introduced in a subsequent trial, the jury should be instructed that such conduct is a circumstance to be considered in considering whether the defendant was guilty of negligence so gross, wanton and culpable as to show a reckless disregard of human life; and in addition, that the defendant was not legally intoxicated within the definition contained in former § 4-2 [now § 4.1-100 ]. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

But blood tests not admissible to prove consumption of alcohol. - Where the prosecution would be estopped from introducing evidence of intoxication in a prosecution for involuntary manslaughter following acquittal of the defendant in a prosecution for driving under the influence of intoxicants on the basis of the failure of the Commonwealth to prove legal intoxication, the Commonwealth could not introduce into evidence the results of defendant's blood test, to prove that the defendant had been drinking before the accident in question, even though not estopped from proving that fact, since the prejudicial effect of the evidence would outweigh its probative value. If, however, the defendant presented evidence that he was not drinking before the accident, evidence of the test results would be competent on rebuttal, because its probative value would then outweigh its prejudicial effect. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

Admissibility of blood test. - In an involuntary manslaughter prosecution, the degree of the driver's intoxication or impairment from alcohol ingestion is relevant to a determination of the driver's negligence, whether ordinary, gross, or wanton so as to demonstrate a reckless disregard of human life. For blood test results to be admissible to prove the degree of impairment or intoxication, the evidence must prove the reliability of the procedures used, that is, that the procedures utilized are likely to produce a reliable result. The burden is on the Commonwealth, as the proponent of the evidence, to prove that the procedures used yielded a reliable result. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Where nurse testified that, except when drawing blood for DUI prosecutions, the traditional and customary procedure for cleansing and sterilizing the puncture area was with an isopropyl alcohol solution and that before drawing the blood, she dried the area with a sterile gauze pad; while no direct evidence was offered that the procedure could not affect the test results, from nurse's testimony, the fact finder could infer that because the area was dry, no isopropyl alcohol remained to contaminate the area or the blood sample and, therefore, that the test results were accurate and reliable. Accordingly, the Commonwealth met its burden of proving the reliability of the testing procedure. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Conviction for involuntary manslaughter in the operation of a motor vehicle upheld. - An involuntary manslaughter conviction was upheld where a pedestrian on a bridge, who could be clearly seen for 400 feet, was killed by a drinking driver operating a car with defective brakes. Lewis v. Commonwealth, 211 Va. 684 , 179 S.E.2d 506 (1971).

Evidence that the driver, with an unobstructed view for 1,000 feet, "zigzagged" across the road and collided with another vehicle on the wrong side of the highway was held sufficient to convict him of involuntary manslaughter. Lewis v. Commonwealth, 211 Va. 684 , 179 S.E.2d 506 (1971).

Where defendant was travelling at a high rate of speed while following a vehicle so closely that he was unable to stop when the other driver hit his brakes, while his intellectual and motor functions were substantially impaired by alcohol, the record clearly supported his conviction under this section for involuntary manslaughter. Stover v. Commonwealth, 31 Va. App. 225, 522 S.E.2d 397 (1999).

Evidence of defendant's reckless and violent driving, directed toward known location of a pedestrian, supported trial court's finding that defendant's conduct constituted negligence so gross, wanton and culpable as to show a reckless disregard of human life. Hancock v. Commonwealth, No. 0182-99-1 (Ct. of Appeals Jan. 27, 2000).

The evidence was sufficient to support defendant's conviction where the defendant crashed into the rear end of a vehicle that was stopped behind a school bus that was unloading children and the evidence established that the defendant, who was driving a large wrecker truck, had been driving erratically for a number of miles prior to the accident, that the defendant was distracted by repeatedly checking his clipboard while he was driving, that the defendant failed to observe the signs warning of a school bus stop ahead, that the defendant failed to observe the school bus from a reasonable distance and that, when he finally did see the bus, he maintained a 55 mile per hour speed until slamming on the brakes just prior to the collision. Gray v. Commonwealth, No. 2017-99-3, 2000 Va. App. LEXIS 548 (Ct. of Appeals July 25, 2000).

Sufficient evidence supported defendant's convictions of involuntary manslaughter stemming from a drag race where the other driver ran into a tree, killing him and his passenger. Defendant's conduct of racing at speeds over 100 miles per hour during rush hour on a busy road near a residential area after he had been drinking was criminal negligence, and as defendant set the course of events in motion and did nothing to prevent the risk, the other driver's negligence was not an intervening act that alone caused the accident. O'Connell v. Commonwealth, 48 Va. App. 719, 634 S.E.2d 379, 2006 Va. App. LEXIS 415 (2006).

Evidence supported defendant's conviction for involuntary manslaughter in the operation of a motor vehicle as: (1) defendant was on notice that the road conditions ahead required a modification of his speed, but he continued to travel at 75 to 80 miles per hour both before and after he crested a hill, and he failed to slow as he approached the merging traffic that was traveling at 5 to 7 miles per hour; (2) defendant was in a fully-loaded tractor-trailer; (3) his failure to heed the warning signs and to slow down and drive at a safe speed and his unusual maneuver in merging caused him to crush the victim's vehicle; and (4) he showed a disregard for others and a reckless indifference to the consequences, which he knew or should have known would cause injury to another. Kreider v. Commonwealth,, 2006 Va. App. LEXIS 486 (Oct. 31, 2006).

Where defendant made a wrong turn onto the highway, and traveled the next seven or eight miles, with westbound traffic visible to him at various points, with other motorists traveling both east and west warning him by blowing horns and flashing lights, with reversed traffic signs and several wrong way and one way signs visible to him, prior to hitting an oncoming automobile killing three people, he should have known that he was traveling in the wrong lane, and therefore, should have known of the risk his conduct created; his conduct of continuing to drive against oncoming traffic once armed with this knowledge, which was chargeable to him, was a callous act of indifference to the safety of others and constituted conduct so gross, wanton and culpable as to show a reckless disregard of human life. The degree of his negligence, as determined by the great risk of injury together with the knowledge he had or should have had of that risk, was sufficient to support the convictions of involuntary manslaughter. Keech v. Commonwealth, 9 Va. App. 272, 386 S.E.2d 813 (1989).

Evidence sufficient to convict. - Defendant's conviction of involuntary manslaughter was proper. The trial court did not err in its finding that defendant acted in a criminally negligent manner, with a wanton and culpable disregard of human life, when defendant fired at a target defendant did not fully identify and thought incorrectly to be a turkey. Vance v. Commonwealth,, 2008 Va. App. LEXIS 508 (Nov. 18, 2008).

Evidence was sufficient to convict defendant of involuntary manslaughter, felonious child abuse or neglect involving the reckless endangerment of a child, and felonious child abuse involving serious injury to a child as the evidence proved that defendant was criminally negligent because he drove recklessly after recently ingesting marijuana with the knowledge that his minor passengers were not properly restrained by seat belts or appropriate devices; and he possessed the knowledge and consciousness of risk that could establish reckless disregard as he wore his own seat belt. Turner v. Commonwealth, No. 0067-16-1, 2017 Va. App. LEXIS 4 (Ct. of Appeals Jan. 10, 2017).

Evidence was sufficient to convict defendant of involuntary manslaughter as he acted with criminal negligence when he struck and killed the victim with his vehicle while she was riding her bicycle on the side of the road because defendant saw the victim approximately 400-500 feet before the accident; he was able to make a complete stop of his vehicle in 408.9 feet, and could have avoided hitting the victim; he took no action to avoid the victim as he did not slow down, attempt to move to the adjacent lane, or sound his horn to warn the victim; and defendant knew or should have known that his actions created a probability of serious injury and he acted with reckless or indifferent disregard to the rights of the victim. Hardin v. Commonwealth,, 2017 Va. App. LEXIS 229 (Sept. 5, 2017).

Evidence that defendant knew he was driving while impaired by a prescription drug, the side effects of which included drowsiness and delayed reaction times, and eyewitness testimony that defendant's vehicle suddenly crossed the double solid line and traveled into the lane of incoming traffic was sufficient to support defendant's conviction for involuntary manslaughter. Novotny v. Commonwealth,, 2017 Va. App. LEXIS 255 (Oct. 10, 2017).

Evidence insufficient to convict. - In a prosecution for involuntary manslaughter, where the evidence showed that the defendant drove down the center of a narrow, unlighted, unmarked, rural, secondary road in the early morning hours at a time when he was unlikely to encounter other traffic or pedestrians, and that he was driving at a speed well within the posted speed limit, and there was no evidence of drinking or of recklessness in the operation of his truck, the evidence, at most, showed ordinary negligence and not such gross, wanton, and culpable negligence as to show a reckless disregard of human life necessary to sustain a conviction of involuntary manslaughter. Jenkins v. Commonwealth, 220 Va. 104 , 255 S.E.2d 504 (1979).

The defendant's conduct did not rise to the level of willful or wanton negligence, evidencing a reckless disregard for human life, and, therefore, did not support a conviction for involuntary manslaughter where the most that could be said against him was that he failed to maintain a proper lookout. Sullivan, Jr. v. Commonwealth, No. 1038-98-3 (Ct. of Appeals Apr. 6, 1999).

§ 18.2-36.1. Certain conduct punishable as involuntary manslaughter.

  1. Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local ordinance substantially similar thereto unintentionally causes the death of another person, shall be guilty of involuntary manslaughter.
  2. If, in addition, the conduct of the defendant was so gross, wanton and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.
  3. The provisions of this section shall not preclude prosecution under any other homicide statute. This section shall not preclude any other revocation or suspension required by law. The driver's license of any person convicted under this section shall be revoked pursuant to subsection B of § 46.2-391 . (1989, cc. 554, 574; 1992, c. 862; 1994, cc. 635, 682; 1999, cc. 945, 987; 2000, cc. 956, 982; 2004, c. 461.)

Cross references. - As to admissibility of written results of blood alcohol tests conducted in the regular course of providing emergency medical treatment, see § 19.2-187.02 .

As to sealing criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction by petition, see § 19.2-392.12 .

Editor's note. - Acts 2000, cc. 956 and 982, cl. 2 provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of necessary appropriation is $0 in FY 2010."

The 1999 amendments. - The 1999 amendments by cc. 945 and 987, are identical, and deleted the former second sentence of subsection C which read: "The driver's license of any person convicted under this section may be suspended for a period of up to five years," and added subsections D through G.

The 2000 amendments. - The 2000 amendments by cc. 956 and 982 are virtually identical, and inserted "or any local ordinance substantially similar thereto" in subsection A, added the last sentence of subsection C, and deleted former subsections D through G.

In addition, the 2000 amendment by c. 956 substituted "clause" for "subdivision" in subsection A.

The 2004 amendments. - The 2004 amendment by c. 461 substituted "mandatory minimum" for "mandatory, minimum" in subsection B and made a minor stylistic change.

Law review. - For note, "Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application," see 41 Wm. & Mary L. Rev. 1845 (2000).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 2C M.J. Autrefois, Acquit and Convict, § 18.

Research References. - Campbell, Fisher, and Mansfield. Defense of Speeding, Reckless Driving & Vehicular Homicide (Matthew Bender).

CASE NOTES

Elements of offense under this action. - A conviction under this section requires proof both that the accused violated § 18.2-266 (ii), (iii), or (iv) and that such misconduct caused the death of another, elements not necessary to common-law involuntary manslaughter. Subsection C of this section expressly provides that the provisions of the section shall not preclude prosecution under any other homicide statute.upholding defendant's conviction under this section for voluntary manslaughter. Stover v. Commonwealth, 31 Va. App. 225, 522 S.E.2d 397 (1999).

Under § 18.2-36.1 , the Commonwealth cannot rely on the presumption in § 18.2-266 (i) that a defendant with a .08 blood alcohol concentration is driving under the influence to convict that defendant, but instead must prove that he was under the influence as proscribed in § 18.2-266 (ii), (iii), or (iv). Dalo v. Commonwealth, 37 Va. App. 156, 554 S.E.2d 705, 2001 Va. App. LEXIS 637 (2001), aff'd, 264 Va. 431 , 570 S.E.2d 840 (2002).

Necessity for causal connection. - The phrase "as a result of driving under the influence . . . causes the death" requires proof of a causal connection between the driver's intoxication and the death of another person. Pollard v. Commonwealth, 20 Va. App. 94, 455 S.E.2d 283 (1995).

Because there was evidence from which jury might have found that defendant turned on a green arrow, issue of causal connection between defendant's intoxication and accident was a significant issue that jury had to resolve, and thus trial court erred in refusing to give jury instruction which fully explained requirements of causal connection. Hall v. Commonwealth, No. 1280-98-4, 1999 Va. App. LEXIS 543 (Ct. of Appeals Sept. 28, 1999).

Intervening causation not shown. - In an aggravated involuntary manslaughter conviction, where the first vehicle struck a backhoe in a construction zone, and where defendant's vehicle, which was closely following the first vehicle, struck the first vehicle, and where the combined force of the two impacts caused the backhoe to strike and kill a worker, who was aiding the backhoe operator, the first driver's negligence and any acts of the backhoe operator and other construction site workers were not independent intervening acts, excusing defendant's negligence. Dupree v. Commonwealth,, 2010 Va. App. LEXIS 170 (May 4, 2010).

Sufficient evidence of causation. - In an aggravated involuntary manslaughter conviction, the evidence was sufficient to establish a causal connection between defendant's intoxication and the victim's death because defendant's failure to keep a proper lookout was exacerbated by the extent of her intoxication since an unimpaired driver would have seen the backhoe in the lane of traffic and braked or swerved to avoid it. Nininger v. Commonwealth,, 2010 Va. App. LEXIS 174 (May 4, 2010).

Evidence was sufficient to support defendant's conviction of vehicular involuntary manslaughter where a rational factfinder could have concluded that defendant's failure to keep a proper lookout, maintain control of her vehicle, and respond promptly resulted from her intoxication and therefore her intoxication caused the victim's death. Auman v. Commonwealth,, 2014 Va. App. LEXIS 347 (Oct. 21, 2014).

Circuit court properly denied defendant's motion to strike the aggravated involuntary manslaughter charge because defendant was criminally responsible for a passenger's death inasmuch as medical treatment was a reasonably foreseeable consequence of a car crash that was put into operation by defendant's criminal conduct - driving at a high rate of speed through a construction zone while intoxicated - and the fact that the passenger consented to the treatment recommended to him by the team of trauma doctors did not relieve defendant of liability. Levenson v. Commonwealth, 68 Va. App. 255, 808 S.E.2d 196, 2017 Va. App. LEXIS 309 (2017).

Multiple convictions for same act upheld. - The Virginia legislature intended to permit the imposition of multiple punishments for involuntary manslaughter while driving under the influence, under this section, and driving under the influence, under § 18.2-266 (ii), (iii) or (iv) upon convictions obtained in a single trial. Goodman v. Commonwealth, 37 Va. App. 374, 558 S.E.2d 555, 2002 Va. App. LEXIS 45 (2002).

Section 19.2-294 does not bar multiple convictions arising out of the same act if they are prosecuted simultaneously. Thus, where warrants for involuntary manslaughter and driving while under the influence of alcohol were issued at the same time, although the charges were heard at different times in different courts, because the charges were initiated simultaneously, the proceedings were concurrent, not successive, and thus, both convictions were permitted under § 19.2-294 . Doss v. Commonwealth, No. 2003-93-3, 1995 Va. App. LEXIS 425 (May 9, 1995).

Defendant, who was convicted of driving under the influence under § 18.2-266 (ii), (iii), or (iv), could also be convicted of involuntary manslaughter under § 18.2-36.1 , providing that one who caused a death while driving under the influence was guilty of involuntary manslaughter, without violating double jeopardy. Dalo v. Commonwealth, 37 Va. App. 156, 554 S.E.2d 705, 2001 Va. App. LEXIS 637 (2001), aff'd, 264 Va. 431 , 570 S.E.2d 840 (2002).

Conviction for both felony murder and aggravated involuntary manslaughter was proper, because subsection C of § 18.2-36.1 supported and proved that the legislature intended multiple punishments and the two convictions required proof of different elements and thus, did not violate the prohibition against double jeopardy. To convict defendant under the felony homicide statute, the Commonwealth had to prove that defendant committed the killing in the commission of a felonious act; however, the Commonwealth was not required to prove any level of intoxication or recklessness, as it was under aggravated involuntary manslaughter statute. Payne v. Commonwealth of Virginia, 277 Va. 531 , 674 S.E.2d 835, 2009 Va. LEXIS 49 (2009).

Double jeopardy. - Because a jury determined that defendant engaged in a felony hit-and-run when she fatally struck the pedestrian and that she was driving while intoxicated and in a manner so gross, wanton, and culpable as to show a reckless disregard for human life in violation of subsection B of § 18.2-36.1 when she struck and killed the pedestrian, while the separate criminal offenses each resulted in the death of a single victim, the convictions and punishments imposed did not violate the constitutional prohibition against double jeopardy. Payne v. Commonwealth, 52 Va. App. 120, 661 S.E.2d 513, 2008 Va. App. LEXIS 265 (2008).

Convictions for aggravated involuntary manslaughter and common-law involuntary manslaughter. - Defendant was entitled to habeas corpus relief for defendant's conviction for common-law involuntary manslaughter as defense counsel provided ineffective assistance of counsel by failing to raise a double jeopardy challenge to defendant's conviction of both common-law involuntary manslaughter and aggravated involuntary manslaughter under § 18.2-36.1 as common-law involuntary manslaughter did not require proof of a fact different from those required for a conviction of aggravated involuntary manslaughter, and defendant received multiple punishments for the same offense; defendant was prejudiced as the additional manslaughter conviction resulted in defendant being convicted of two felonies with two distinct punishments imposed, instead of one felony conviction with one punishment, even though the sentences were imposed concurrently. West v. Dir. of the Dep't of Corr., 273 Va. 56 , 639 S.E.2d 190, 2007 Va. LEXIS 17 (2007).

Contributory negligence irrelevant. - The fact that the decedent had a blood alcohol concentration of .13 did not exonerate the defendant from liability, as contributory negligence has no place in a case of involuntary manslaughter; only if the conduct of the decedent amounted to an independent, intervening act alone causing the fatal injury could the accused be exonerated from liability for his criminal negligence. Hall v. Commonwealth, 32 Va. App. 616, 529 S.E.2d 829, 2000 Va. App. LEXIS 466 (2000).

Proof of aggravated involuntary manslaughter. - Such acts of egregious misconduct as driving on the wrong side of the road and driving without headlights after dark combined with prolonged and excessive consumption of alcohol clearly aggregate to gross, wanton, and culpable behavior reflecting a reckless disregard for human life. Cottee v. Commonwealth, 31 Va. App. 398, 524 S.E.2d 132 (2000).

Results of preliminary breath test inadmissible. - By express wording of statute, a prosecution for violation of this section was necessarily a "prosecution under § 18.2-266 ," and thus subsection E of § 18.2-267 applied to bar results of preliminary breath test in prosecution under this section. Hall v. Commonwealth, No. 1280-98-4, 1999 Va. App. LEXIS 543 (Ct. of Appeals Sept. 28, 1999).

Proof required in alcohol related vehicular homicide. - In a prosecution for involuntary manslaughter, the Commonwealth must prove an "accidental killing which, although unintended, is the proximate result of negligence so gross wanton, and culpable as to show a reckless disregard for human life." However, in a prosecution under this section as in this case, the Commonwealth is obligated to prove the accused drove "under the influence in violation of subdivision (ii), (iii), or (iv) of § 18.2-266 ," thus, reversal was required. Castillo v. Commonwealth, 21 Va. App. 482, 465 S.E.2d 146 (1995).

Blood alcohol tests properly admitted. - In a prosecution for aggravated involuntary manslaughter, the trial court did not commit reversible error in allowing into evidence the results of a blood alcohol content test performed on a blood sample taken from a defendant in violation of his Fourth, Fifth, and Fourteenth Amendment rights, as: (1) a test conducted by hospital personnel had been independently performed and the written report thereof was admissible under subsection A of § 19.2-187.02 ; (2) defendant consented to a second blood test administered by a deputy sheriff under the implied consent law; (3) evidence of defendant's intoxication was overwhelming despite testing over three times the legal limit; and (4) it was unreasonable to believe that the jury would have rejected the hospital-administered test and accepted, instead, the implied consent law test. Stevens v. Commonwealth, 272 Va. 481 , 634 S.E.2d 305, 2006 Va. LEXIS 87 (2006), cert. denied, 549 U.S. 1350, 127 S. Ct. 2053, 167 L. Ed. 2d 784, 2007 U.S. LEXIS 4119 (U.S. 2007).

Trial court did not err in denying defendant's motion to exclude from evidence a blood alcohol content certificate showing his state of intoxication because defendant introduced substantially similar evidence during his case in chief, thereby waiving his objection and rendering harmless any alleged error; defendant's evidence, a 0.14 percent blood alcohol content certificate of analysis, dealt with the same subject as, and was sufficiently similar to, the Commonwealth's 0.16 percent blood alcohol content certificate, and both established blood alcohol content levels in excess of 0.08 percent, thereby triggering the inference of § 18.2-269 that defendant was under the influence of alcohol intoxicants at the time of the alleged offense. Isaac v. Commonwealth, 58 Va. App. 255, 708 S.E.2d 435, 2011 Va. App. LEXIS 164 (2011).

Expert testimony. - Trial court did not err in allowing blood alcohol test results into evidence, where exigent circumstances justified warrantless arrest and search of defendant, and Commonwealth relied on expert opinion to explain significance of defendant's blood alcohol level and did not rely on statutory presumption contained in § 18.2-269 . Felts v. Commonwealth, No. 1997-98-3 (Ct. of Appeals Oct. 5, 1999).

Prosecution for aggravated involuntary manslaughter was not foreclosed. - Despite defendant's contention that the Commonwealth failed to comply with the procedural requirements of a DUI charge, where given defendant's admission to being intoxicated and his statements asking what he had hit, even without a blood test, the jury properly convicted defendant on all other evidence showing he was intoxicated. Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

Defendant's aggravated involuntary manslaughter conviction was upheld on appeal, as the trial court did not err by: (1) failing to foreclose prosecution of the aggravated involuntary manslaughter charge on the ground that the Commonwealth did not comply with the procedural requirements of a driving under the influence charge; (2) failing to exclude a hospital toxicology report based on insufficient proof of reliability; (3) failing to instruct the jury on criminal negligence; and (4) finding the evidence sufficient to prove he was guilty of aggravated involuntary manslaughter, as (a) evidence of defendant's intoxication was overwhelming without the need for blood test results, given defendant's admissions and eyewitness testimony about strong odor of alcohol on his person; (b) the State's failure to substantially comply with the procedural requirements for testing blood and breath samples under the implied consent law did not apply to a prosecution under § 18.2-36.1 or 18.2-266 ; (c) trial court did not abuse its discretion in refusing to admit one instruction on grounds that it might have confused the jury, and two other instructions, as redundant; and (d) along with defendant's intoxication, the combination of defendant's act of ignoring traffic signals and running a red light and the lack of skid marks showing no evidence of him braking or attempting to slow down, provided sufficient evidence to establish his gross, wanton, and culpable conduct. Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

Even if the State's failure to comply with the implied consent law procedural requirements did not forbid a prosecution for aggravated manslaughter, blood test results were not required for a conviction under either § 18.2-266 or 18.2-36.1 . Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

Evidence was sufficient to support defendant's involuntary manslaughter conviction by unintentionally causing death as the result of driving an automobile while under the influence of alcohol where the defendant sped down a curvy, mountain road at night, that he proceeded into a right-hand curve in his lane of travel, then swerved right onto the shoulder of his lane and left across the median and struck the victim's car, and although he claimed that he saw headlights in his lane, other eyewitnesses refuted his testimony and expert testimony showed that he was under the influence of alcohol. Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1 (1994).

Evidence was sufficient to show that the death of the defendant's passenger in a single car accident was caused by the defendant's extreme intoxication, notwithstanding his assertion that he drove off the road because a "big black truck" drove toward him from the opposite direction and forced him off the road, where: (1) the defendant admitted that he drove off the road, causing the accident; (2) tire marks at the scene were inconsistent with his claim that he swerved to avoid a truck; and (3) the defendant was in a dangerously intoxicated state. Faltz v. Commonwealth, No. 0650-97-1 (Ct. of Appeals 1998).

Evidence, viewed in the light most favorable to the Commonwealth, was sufficient to show that defendant was under the influence of alcohol at the time he crashed his vehicle into the back end of a pickup truck and caused the death of its driver; the trial court had several certificates of analysis indicating defendant was driving with a blood-alcohol level of over .08 grams, which permitted the trial court to presume that defendant was under the influence of alcohol intoxicants at the time of the alleged offense, and other evidence in the form of eyewitness testimony also supported that conviction. West v. Commonwealth, 43 Va. App. 327, 597 S.E.2d 274, 2004 Va. App. LEXIS 276 (2004).

Defendant's gross, wanton, and culpable conduct in killing the victim while driving well beyond the legal limit, running a red light, and failing to apply his brakes before the collision amply supported his aggravated voluntary manslaughter conviction. Stevens v. Commonwealth, 272 Va. 481 , 634 S.E.2d 305, 2006 Va. LEXIS 87 (2006), cert. denied, 549 U.S. 1350, 127 S. Ct. 2053, 167 L. Ed. 2d 784, 2007 U.S. LEXIS 4119 (U.S. 2007).

Evidence that defendant disregarded warning signs and speed limits, causing defendant to loose control of defendant's vehicle supported the conclusion that defendant showed a reckless disregard for human life constituting criminal negligence sufficient to support defendant's conviction for involuntary manslaughter. Gochez v. Commonwealth,, 2008 Va. App. LEXIS 450 (Oct. 7, 2008).

Defendant's conviction for involuntary manslaughter in violation of subsection A of § 18.2-36.1 after the victim was thrown off defendant's motorcycle was proper. The trial court could conclude that defendant's intoxication caused the accident and the victim's subsequent death; it was reasonable to infer defendant's reaction time was impaired. Rodriguez v. Commonwealth,, 2009 Va. App. LEXIS 43 (Feb. 3, 2009).

Evidence that at the time of the collision defendant had a blood alcohol content of more than twice the legal limit and testimony regarding the affect that would have on a person's ability to operate a vehicle, was sufficient for the court to infer that because of his intoxication defendant caused the collision and thus, was guilty of involuntary manslaughter. Chavis v. Commonwealth, No. 1029-16-2, 2017 Va. App. LEXIS 175 (July 18, 2017).

Sufficient evidence that defendant under the influence. - Evidence was sufficient to show that defendant was under the influence of alcohol where she had five or six alcohol beverages about five hours before the accident, a witness saw defendant's vehicle swerve just before she hit the victim, the officers smelled alcohol on defendant after the accident, she failed two field sobriety tests, and an expert testified that her BAC at the time of the accident was between 0.10 and 0.13. Auman v. Commonwealth,, 2014 Va. App. LEXIS 347 (Oct. 21, 2014).

Aggravated involuntary manslaughter shown. - The evidence was sufficient to establish the defendant's gross, wanton and culpable driving behavior where the defendant's blood alcohol level was .22 and where witnesses testified that the defendant was "cutting the corner" while attempting to make a left turn across oncoming traffic, which had a green light, at the time the decedent struck the side of the defendant's vehicle. Hall v. Commonwealth, 32 Va. App. 616, 529 S.E.2d 829, 2000 Va. App. LEXIS 466 (2000).

Evidence that defendant drank almost 22 ounces of beer before he got into his vehicle and that he was driving at least 25 miles per hour over the posted speed limit on the highway before his vehicle slammed into a pick-up truck and caused the death of the driver inside was sufficient to show that his conduct was so gross, wanton, and culpable as to show defendant's reckless disregard for human life, and supported his conviction for aggravated involuntary manslaughter. West v. Commonwealth, 43 Va. App. 327, 597 S.E.2d 274, 2004 Va. App. LEXIS 276 (2004).

Knowing that he: (a) was beneath the legal drinking age, (b) had consumed six or seven alcoholic beverages in under three hours, and (c) was buzzed, defendant's act of choosing to get behind the wheel of his automobile and drive home after dark on a clear, dry night on a straight, well-paved and clearly marked two-lane road, was sufficient to show his reckless disregard for human life; further, the evidence sufficiently showed that defendant failed to maintain proper control of his vehicle, drove so that it was entirely in the lane of oncoming traffic, and hence, failed to see a car approaching from the opposite direction until it was too late to avoid impact, so as to support a finding of criminal negligence. Wyatt v. Commonwealth, 47 Va. App. 411, 624 S.E.2d 118, 2006 Va. App. LEXIS 5 (2006).

Evidence that defendant, who had been drinking alcohol at a birthday party, was driving under the influence and sending text messages on a dark, rainy night, and failed to take evasive action to avoid the victim was sufficient to support a conviction for vehicular aggravated involuntary manslaughter. Davis v. Commonwealth, 57 Va. App. 446, 703 S.E.2d 259, 2011 Va. App. LEXIS 3 (2011).

Evidence supported defendant's conviction for aggravated involuntary manslaughter because the evidence was sufficient to find that defendant self-administered the drugs found in defendant's blood as required to prove a violation of driving while intoxicated, regardless of the procedure used by defendant to ingest the methadone at a treatment clinic, and because defendant operated defendant's vehicle under the influence of the drugs which could have impaired defendant's ability to drive. Lambert v. Commonwealth, 70 Va. App. 54, 824 S.E.2d 18, 2019 Va. App. LEXIS 55 (2019), aff'd, 840 S.E.2d 326, 2020 Va. LEXIS 37 (2020).

Evidence supported defendant's aggravated involuntary manslaughter conviction because the evidence was sufficient that defendant had, prior to an auto accident, self-administered drugs that impaired defendant's ability to drive safely as defendant admitted to a state trooper at the accident scene that defendant had just come back from a local methadone treatment center where defendant received a treatment of methadone and a blood analysis confirmed the presence of methadone and drugs commonly known as Valium and Xanax in defendant's blood. Lambert v. Commonwealth, 298 Va. 510 , 840 S.E.2d 326, 2020 Va. LEXIS 37 (2020).

Reckless disregard for human life shown. - Evidence was sufficient to show that defendant acted with a reckless disregard for human life under subsection B of § 18.2-36.1 because defendant was highly intoxicated at the time of the vehicular collision, which led to the victim's death; he was following another vehicle, which was driven by a drinking companion, too closely; and defendant was talking on his cellular telephone at the time of the collision. Dupree v. Commonwealth,, 2010 Va. App. LEXIS 170 (May 4, 2010).

Sufficient evidence of reckless disregard for human life. - In an aggravated involuntary manslaughter conviction, the evidence was sufficient to establish that defendant acted with a reckless disregard for human life under subsection B of § 18.2-36.1 because she failed to keep a proper lookout and was so intoxicated that she did not see the backhoe in her lane of traffic and thus, did not attempt to stop or swerve to avoid it; in addition, defendant was so intoxicated that she did not realize the seriousness of the accident and expressed concern for damages to her car, rather than for the injured victim. Nininger v. Commonwealth,, 2010 Va. App. LEXIS 174 (May 4, 2010).

Proximate cause jury instruction improper. - A trial court properly rejected an instruction regarding proximate cause which stated that the causal connection required was a cause "which in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred," in that such instruction was based on the civil instruction for proximate cause and the injection of inapplicable principles of civil negligence into a criminal trial would have created confusion and would have been misleading. Hall v. Commonwealth, 32 Va. App. 616, 529 S.E.2d 829, 2000 Va. App. LEXIS 466 (2000).

§ 18.2-36.2. Involuntary manslaughter; operating a watercraft while under the influence; penalties.

  1. Any person who, as a result of operating a watercraft or motorboat in violation of clause (ii), (iii), or (iv) of subsection B of § 29.1-738 or a similar local ordinance, unintentionally causes the death of another person, is guilty of involuntary manslaughter.
  2. If, in addition, the conduct of the defendant was so gross, wanton, and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter, a felony punishable by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.
  3. The provisions of this section shall not preclude prosecution under any other homicide statute. The court shall order any person convicted under this section not to operate a watercraft or motorboat that is underway upon the waters of the Commonwealth. After five years have passed from the date of the conviction, the convicted person may petition the court that entered the conviction for the right to operate a watercraft or motorboat upon the waters of the Commonwealth. Upon consideration of such petition, the court may restore the right to operate a watercraft or motorboat subject to such terms and conditions as the court deems appropriate, including the successful completion of a water safety alcohol rehabilitation program described in § 29.1-738.5 . (2005, c. 376.)

Cross references. - As to sealing criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction by petition, see § 19.2-392.12 .

§ 18.2-37. How and where homicide prosecuted and punished if death occur without the Commonwealth.

If any person be stricken or poisoned in this Commonwealth, and die by reason thereof out of this Commonwealth, the offender shall be as guilty, and shall be prosecuted and punished, as if the death had occurred in the county or corporation in which the stroke or poison was given or administered.

(Code 1950, § 18.1-26; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Homicide, § 50; 14B M.J. Poisons and Poisoning, § 1; 19 M.J. Venue, § 14.

CASE NOTES

Effect of section. - The effect of this section and § 19.2-246 is merely to give the courts of the counties or corporations in which the accused and the deceased may have been, respectively, at the time of the commission of the offense, concurrent jurisdiction, so that the offender may be prosecuted and punished in either county where the offense is not wholly committed within one county. Covington v. Commonwealth, 136 Va. 665 , 116 S.E. 462 (1923).

Section changed former rule. - This section changed the rule established by Commonwealth v. Linton, 4 Va. (2 Va. Cas.) 205 (1820), in which it was held that if one be stricken within the state, but die of the wound in another state, the offender may be indicted and tried within the state for wounding with intent to maim, disable, etc., but not for murder, and constituted the act of giving a mortal wound in this state which results in death out of the state a statutory offense of murder punishable in this state. By necessary implication from its terms, the statute provided that the venue of such offense should be in the county or corporation in which the stroke was given. Covington v. Commonwealth, 136 Va. 665 , 116 S.E. 462 (1923).

§ 18.2-37.1. Certain matters not to constitute defenses.

  1. Another person's actual or perceived sex, gender, gender identity, or sexual orientation is not in and of itself, or together with an oral solicitation, a defense to any charge of capital murder, murder in the first degree, murder in the second degree, or voluntary manslaughter and is not in and of itself, or together with an oral solicitation, provocation negating or excluding malice as an element of murder.
  2. Nothing in this section shall be construed to prevent a defendant from exercising his constitutionally protected rights, including his right to call for evidence in his favor that is relevant and otherwise admissible in a criminal prosecution.

    (2021, Sp. Sess. I, c. 460.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 460, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Effective date. - This section is effective July 1, 2021.

Article 2. Crimes by Mobs.

§ 18.2-38. "Mob" defined.

Any collection of people, assembled for the purpose and with the intention of committing an assault or a battery upon any person or an act of violence as defined in § 19.2-297.1 , without authority of law, shall be deemed a "mob."

(Code 1950, § 18.1-27; 1960, c. 358; 1975, cc. 14, 15; 1999, c. 623.)

The 1999 amendment substituted "or an act of violence as defined in § 19.2-297.1 " for "and."

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 13A M.J. Mobs, Riots and Lynchings, §§ 1, 4.

CASE NOTES

Meaning of "assemble." - For a group of persons lawfully gathered for whatever purpose to "assemble" as a mob within the intendment of this section, they need only to collectively band together with the common purpose and intention of committing an assault and battery upon a person. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Assembled as a mob. - The evidence which proves that a group assembled as a mob may consist solely of proof that characterizes the purpose, circumstances or the setting of the group's initial assemblage. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Proof of what transpired after the original assemblage, when considered in relation to the purpose for which the persons were present, may establish that persons gathered for a lawful purpose "assembled" as a mob. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Trial court erred in admitting the grand jury testimony of two codefendants to show that defendant assembled as part of a mob in order to show that he was guilty of lynching, but the error was harmless beyond a reasonable doubt in light of considerable other evidence showing that defendant was part of the mob that attacked a rival gang at a hotel and was responsible for stabbing to death anther person during the attack. Corado v. Commonwealth, 47 Va. App. 315, 623 S.E.2d 452, 2005 Va. App. LEXIS 528 (2005).

A mob need not have a common motivation or underlying reason for the assault, they need only to collectively band together with the common purpose and intention of committing an assault and battery upon a person. Jones v. Commonwealth, No. 2922-99-1, 2000 Va. App. LEXIS 844 (Ct. of Appeals Dec. 28, 2000).

But specific intent must be shown. - Statutory definition of a mob requires that the act of assembling be done for a specific purpose and with a specific intent - to commit an assault or a battery without lawful authority. Hughes v. Commonwealth, 43 Va. App. 391, 598 S.E.2d 743, 2004 Va. App. LEXIS 308 (2004).

What transforms group into mob. - Whether a group of individuals lawfully assembled has been transformed into a "mob" depends upon the circumstances; no particular words or express agreements are required to effect a change in a group's purpose or intentions. Events or emotionally charged circumstances suddenly may focus individuals toward a common goal or purpose without an express or stated call to join forces. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

It is possible that individuals who are lawfully assembled may become members of a "mob" without great deliberation and for them to become part of a group that is moved or controlled by those impulsive and irrational forces that perpetuate mob violence. Hughes v. Commonwealth, 43 Va. App. 391, 598 S.E.2d 743, 2004 Va. App. LEXIS 308 (2004).

Purpose of assembling. - The definition of a mob in this section requires that the act of assembling be done for a specific purpose and with a specific intent - to commit an assault or a battery without lawful authority. Sheikh v. Commonwealth, 32 Va. App. 9, 526 S.E.2d 271 (2000).

Every person in mob criminally culpable. - Once a group assembled comprises a mob, if the assault or battery which is committed is a simple assault or battery, then under § 18.2-57 , every person composing the mob becomes criminally culpable even though the member may not have actively encouraged, aided, or countenanced the act. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

If a defendant was part of a mob which attacked a victim, then the defendant is criminally culpable for all the acts of the mob even though he may not have actively encouraged, aided or countenanced the act; criminal accountability flows from being a member of the mob, regardless of whether the member aids and abets in the assault and battery. Jones v. Commonwealth, No. 2922-99-1, 2000 Va. App. LEXIS 844 (Ct. of Appeals Dec. 28, 2000).

Indictment using word "mob" without elaboration is sufficient. - Defendant was charged with being one of a "mob" and in that capacity with feloniously assaulting another. The "lynch law" (this section) defines a mob. Therefore, an elaboration in the indictment of these statutory provisions defining a mob is not necessary, as they are too plain for argument and could not possibly have been misunderstood. Hagood v. Commonwealth, 157 Va. 918 , 162 S.E. 10 (1932).

Statement of member of mob at time of assault admissible. - Objection was made to the admissibility in evidence of statements made by a member of the mob at the time of the assault to the effect that the person assaulted had run his wife away from home and put her in an institution. It was held that all that was then done and said was part of the res gestae and competent. Hagood v. Commonwealth, 157 Va. 918 , 162 S.E. 10 (1932).

Evidence sufficient. - Evidence was sufficient to support defendant's conviction for maiming by mob as it showed that the group of men emerged from the McDonald's en masse, followed the victim and his friend, surrounding them, and then beat the victim and struck and chased his friend. The evidence also suggested that the group acted in concert to attack the victim following one of the group member's stated intent to hit the victim or his friend. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Evidence insufficient. - The evidence was insufficient to sustain a conviction under § 18.2-41 because the Commonwealth failed to prove that when the defendant committed the battery, he was a member of a mob assembled with a purpose and intention of committing an assault and battery under this section where the uncontradicted evidence established that the group assembled to attend a neighborhood party, after which many congregated in a boisterous gathering in the street nearby, lingering there for over two hours after the party ended and before the confrontation with the victim. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

The circumstantial evidence necessary to prove that a group assembled with a common purpose and intent to commit an assault and battery does not have to be completely independent of proving the original purpose for which the group assembled and how they behaved thereafter. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Although a brawl ensued after the patrons of the bowling alley watched appellant argue with man and another person punched man, no evidence proved that appellant joined in any mob that could have formed. Although the evidence would have been sufficient to prove individual assaultive conduct, it was insufficient to prove beyond a reasonable doubt that appellant acted as part of a mob. Iverson v. Commonwealth, No. 1825-93-1 (Ct. of Appeals June 20, 1995).

Although a brawl ensued after the patrons of the bowling alley watched appellant's friend argue with man and appellant punched man, no evidence proved that appellant joined in any mob that could have formed. At best, the Commonwealth proved that appellant hit man and threw more than one chair. Although the evidence would have been sufficient to prove individual assaultive conduct, it was insufficient to prove beyond a reasonable doubt that appellant acted as part of a mob. Simmons v. Commonwealth, No. 1805-93-1 (Ct. of Appeals June 20, 1995).

Where testimony proved that appellant was seen moving to the area where fight was, and although appellant admitted that he threw a chair, the evidence proved that after the fight began many people threw chairs, including people who the Commonwealth conceded were not part of the mob, thus, the fact that appellant threw chairs did not prove beyond a reasonable doubt that he was acting as part of a mob. Wynn v. Commonwealth, No. 1804-93-1 (Ct. of Appeals June 20, 1995).

Evidence failed to prove that group of which defendant was alleged to be a member assembled for specific purpose of maliciously wounding and assaulting victims named in indictment. Forrester v. Commonwealth, No. 0701-98-2 (Ct. of Appeals June 22, 1999).

Applied in Hamilton v. Commonwealth, 279 Va. 94 , 688 S.E.2d 168, 2010 Va. LEXIS 6 (2010).

CIRCUIT COURT OPINIONS

What transforms group into mob. - Even if defendant were originally at an apartment complex to fight a shooting culprit one-on-one, evidence that, once everyone arrived at the apartment, they agreed to move across the street to "handle it" indicated that the group, at that time, fell within the definition of a mob as contemplated by § 18.2-38 as the group had transformed into a collection of people who had the intention of committing an assault or battery upon any person or an act of violence. Moreover, the evidence showed that, during the altercation, the victim and the shooting culprit became focused on the common goal of fighting defendant; thus, defendant's motion to strike under Va. Sup. Ct. R. 3A:15 was denied. Commonwealth v. Puryear,, 2009 Va. Cir. LEXIS 18 (Fairfax County Feb. 3, 2009).

§ 18.2-39. "Lynching" defined.

Any act of violence by a mob upon the body of any person, which shall result in the death of such person, shall constitute a "lynching."

(Code 1950, § 18.1-28; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

CASE NOTES

Attack on "any" person. - Trial court did not err in the jury instructions it gave in regard to the lynching charge against defendant; the victim of the attack did not have to be the initial, specific target of the mob and since the jury instructions correctly stated the law in that regard, the jury was not improperly instructed. Corado v. Commonwealth, 47 Va. App. 315, 623 S.E.2d 452, 2005 Va. App. LEXIS 528 (2005).

§ 18.2-40. Lynching deemed murder.

Every lynching shall be deemed murder. Any and every person composing a mob and any and every accessory thereto, by which any person is lynched, shall be guilty of murder, and upon conviction, shall be punished as provided in Article 1 (§ 18.2-30 et seq.) of this chapter.

(Code 1950, § 18.1-29; 1960, c. 358; 1975, cc. 14, 15.)

CASE NOTES

Convictions for felony murder and lynching by mob upheld. - Defendant was not entitled to reversal of convictions for both felony murder and lynching by mob, because both the felony murder statute, § 18.2-32 , and the lynching-by-mob statute, § 18.2-40 , included at least one element the other did not, and the appellate court presumed that the General Assembly did not intend either statute to displace the other. Gaddie v. Commonwealth,, 2010 Va. App. LEXIS 247 (June 22, 2010).

§ 18.2-41. Shooting, stabbing, etc., with intent to maim, kill, etc., by mob.

Any and every person composing a mob which shall maliciously or unlawfully shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disable, disfigure or kill him, shall be guilty of a Class 3 felony.

(Code 1950, § 18.1-30; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - For definition of "barrier crime" as including a conviction of malicious wounding by mob as set out in § 18.2-41 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 10A M.J. Instructions, § 20; 12B M.J. Mayhem, § 2; 13A M.J. Mobs, Riots and Lynchings, § 4; 20 M.J. Weapons, § 9.

CASE NOTES

Meaning of "assemble." - For a group of persons lawfully gathered for whatever purpose to "assemble" as a mob within the intendment of § 18.2-38 , they need only to collectively band together with the common purpose and intention of committing an assault and battery upon a person. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Assembled as a mob. - The evidence which proves that a group assembled as a mob may consist solely of proof that characterizes the purpose, circumstances or the setting of the group's initial assemblage. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Proof of what transpired after the original assemblage, when considered in relation to the purpose for which the persons were present, may establish that persons gathered for a lawful purpose "assembled" as a mob. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

What transforms group into mob. - Whether a group of individuals lawfully assembled has been transformed into a "mob" depends upon the circumstances; no particular words or express agreements are required to effect a change in a group's purpose or intentions. Events or emotionally charged circumstances suddenly may focus individuals toward a common goal or purpose without an express or stated call to join forces. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Every person in mob criminally culpable. - Once a group assembled comprises a mob, if the assault or battery which is committed is a simple assault or battery, then under § 18.2-57 , every person composing the mob becomes criminally culpable even though the member may not have actively encouraged, aided, or countenanced the act. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Double jeopardy. - Defendant's convictions for malicious wounding and maiming by mob did not violate principles of double jeopardy as malicious wounding contained an additional element not found in maiming by mob, namely that the defendant acted with malice. Thus, it followed that one who was guilty of maiming by mob was not necessarily guilty of malicious wounding. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Lesser-included offense. - Assault and battery by a mob, in violation of § 18.2-42 , is a lesser-included offense of malicious wounding by a mob, because the only difference between the two offenses is the requisite intent, and one cannot have the malicious intent required for the latter offense without also having an intent to do bodily harm, required for the former offense, making the former crime a lesser-included offense of the latter. Leal v. Commonwealth, 37 Va. App. 525, 559 S.E.2d 874, 2002 Va. App. LEXIS 108 (2002) (rev'd on grounds that the jury instruction was not supported by "more than a scintilla of evidence," 265 Va. 142 , 574 S.Ed.2d 285 (2003)).

Evidence insufficient. - The evidence was insufficient to sustain a conviction under this section because the Commonwealth failed to prove that when the defendant committed the battery, he was a member of a mob assembled with a purpose and intention of committing an assault and battery under § 18.2-38 where the uncontradicted evidence established that the group assembled to attend a neighborhood party, after which many congregated in a boisterous gathering in the street nearby, lingering there for over two hours after the party ended and before the confrontation with the victim. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

The circumstantial evidence necessary to prove that a group assembled with a common purpose and intent to commit an assault and battery does not have to be completely independent of proving the original purpose for which the group assembled and how they behaved thereafter. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Although a brawl ensued after the patrons of the bowling alley watched appellant argue with man and another person punched man, no evidence proved that appellant joined in any mob that could have formed. Although the evidence would have been sufficient to prove individual assaultive conduct, it was insufficient to prove beyond a reasonable doubt that appellant acted as part of a mob. Iverson v. Commonwealth, No. 1825-93-1 (Ct. of Appeals June 20, 1995).

Although a brawl ensued after the patrons of the bowling alley watched appellant's friend argue with man and appellant punched man, no evidence proved that appellant joined in any mob that could have formed. At best, the Commonwealth proved that appellant hit man and threw more than one chair. Although the evidence would have been sufficient to prove individual assaultive conduct, it was insufficient to prove beyond a reasonable doubt that appellant acted as part of a mob. Simmons v. Commonwealth, No. 1805-93-1 (Ct. of Appeals June 20, 1995).

Where testimony proved that appellant was seen moving to the area where fight was, and although appellant admitted that he threw a chair, the evidence proved that after the fight began many people threw chairs, including people who the Commonwealth conceded were not part of the mob, thus, the fact that appellant threw chairs did not prove beyond a reasonable doubt that he was acting as part of a mob. Wynn v. Commonwealth, No. 1804-93-1 (Ct. of Appeals June 20, 1995).

Evidence sufficient. - The evidence was sufficient to establish beyond a reasonable doubt that a defendant was a member of a mob for purposes of this section where the defendant met with a group of fellow gang members in order to assault another individual, the defendant admitted that they made a plan to seek out the intended victim and to physically assault him and the defendant knew that one of the members of the gang had a rifle and had made repeated statements regarding his intent to kill the person they were seeking. Sheikh v. Commonwealth, 32 Va. App. 9, 526 S.E.2d 271 (2000).

Defendant's convictions for malicious wounding while part of a mob under § 18.2-41 , and aggravated malicious wounding under § 18.2-51.2 were appropriate because defendant was not permitted to complain on appeal of the trial court's refusal to suppress the very evidence that he elicited on his own behalf. Defendant himself elicited the testimony about his statements to the Security Threat Unit that he was a gang member. Boone v. Commonwealth,, 2010 Va. App. LEXIS 37 (Feb. 2, 2010).

Evidence was sufficient to support defendant's conviction for maiming by mob as it showed that the group of men emerged from the McDonald's en masse, followed the victim and his friend, surrounding them, and then beat the victim and struck and chased his friend. The evidence also suggested that the group acted in concert to attack the victim following one of the group member's stated intent to hit the victim or his friend. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Conviction for maiming by mob under § 18.2-41 , was supported by evidence that a mob formed at a club with the specific intent of committing violence and beat the victim for five minutes, leaving the victim with two fractured vertebrae; the duration of the beating and the gravity of the victim's injuries showed that the mob, which included defendant, intended to seriously injure and maim the victim. Johnson v. Commonwealth, 58 Va. App. 625, 712 S.E.2d 751, 2011 Va. App. LEXIS 259 (2011).

Evidence was sufficient to support defendant's conviction of wounding by mob because it showed that he and his cousins assembled in the restaurant parking lot to fight the victim, they engaged in a physical altercation with the victim, after the victim shot appellant and his cousin, those two men, rather than leaving the area, remained in the parking lot until the victim returned, and they shot the victim. Barnett v. Commonwealth, 73 Va. App. 111, 855 S.E.2d 874, 2021 Va. App. LEXIS 52 (2021).

Jury instructions. - In a prosecution for maiming by mob and causing bodily injury in violation of § 18.2-41 , the trial court properly refused a jury instruction requested by defendant which would have permitted the jury to find defendant guilty of assault or battery by mob, under § 18.2-42 ; the evidence warranted a conviction of the crime charged, and there was not more than a scintilla of independent evidence to show that defendant was entitled to an instruction on the lesser offense. Commonwealth v. Leal, 265 Va. 142 , 574 S.E.2d 285, 2003 Va. LEXIS 8 (2003).

§ 18.2-42. Assault or battery by mob.

Any and every person composing a mob which shall commit a simple assault or battery shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-31; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 10A M.J. Instructions, § 20; 12B M.J. Mayhem, § 2; 13A M.J. Mobs, Riots and Lynchings, §§ 1, 4.

CASE NOTES

Lesser-included offense. - Assault and battery by a mob is a lesser-included offense of malicious wounding by a mob, in violation of § 18.2-41 , because the only difference between the two offenses is the requisite intent, and one cannot have the malicious intent required for the latter offense without also having an intent to do bodily harm, required for the former offense, making the former crime a lesser-included offense of the latter. Leal v. Commonwealth, 37 Va. App. 525, 559 S.E.2d 874, 2002 Va. App. LEXIS 108 (2002) (rev'd on grounds that the jury instruction was not supported by "more than a scintilla of evidence," 265 Va. 142 , 574 S.Ed.2d 285 (2003)).

In a prosecution for maiming by mob and causing bodily injury in violation of § 18.2-41 , the trial court properly refused a jury instruction requested by defendant which would have permitted the jury to find defendant guilty of assault or battery by mob, under § 18.2-42 ; the evidence warranted a conviction of the crime charged, and there was not more than a scintilla of independent evidence to show that defendant was entitled to an instruction on the lesser offense. Commonwealth v. Leal, 265 Va. 142 , 574 S.E.2d 285, 2003 Va. LEXIS 8 (2003).

Evidence properly admitted as hearsay exception. - Where a witness testified that a third party relayed defendant's license plate number to the witness, the evidence of the license plate number was properly admitted as a present sense impression; as a result, defendant's conviction of misdemeanor assault by mob was proper. Brooke v. Commonwealth, No. 0006-03-4, 2004 Va. App. LEXIS 104 (Ct. of Appeals Mar. 9, 2004).

Evidence sufficient. - There was sufficient evidence supporting the jury's decision that defendant participated in the assault and battery of three victims in violation of § 18.2-42 , as a witness who knew defendant saw defendant "doing something" to one victim's back while the victim was on the ground unconscious, and according to the witness, defendant was not trying to help the victim. While the victim was unconscious, the victim's back was twice burned with a cigarette. Hamilton v. Commonwealth,, 2008 Va. App. LEXIS 487 (Nov. 4, 2008), aff'd, 279 Va. 94 , 688 S.E.2d 168 (2010).

Evidence was sufficient to support defendant's conviction for misdemeanor assault while part of a mob, where the victim testified that defendant was one of the men who surrounded the victim, who converged on the victim, and who prevented the victim from escaping. Abdullah v. Commonwealth, 53 Va. App. 750, 675 S.E.2d 215, 2009 Va. App. LEXIS 169 (2009).

Sufficient evidence supported convictions for participating in a criminal street gang and three counts of assault and battery by a mob, where defendant was dressed in red, the gang color, he was seen with gang members at the scene, and the gang used hand-signs and a war cry before the attacks Hamilton v. Commonwealth, 279 Va. 94 , 688 S.E.2d 168, 2010 Va. LEXIS 6 (2010).

Evidence insufficient. - Although a brawl ensued after the patrons of the bowling alley watched appellant's friend argue with man and appellant punched man, no evidence proved that appellant joined in any mob that could have formed. At best, the Commonwealth proved that appellant hit man and threw more than one chair. Although the evidence would have been sufficient to prove individual assaultive conduct, it was insufficient to prove beyond a reasonable doubt that appellant acted as part of a mob. Simmons v. Commonwealth, No. 1805-93-1 (Ct. of Appeals June 20, 1995).

Where testimony proved that appellant was seen moving to the area where fight was, and although appellant admitted that he threw a chair, the evidence proved that after the fight began many people threw chairs, including people who the Commonwealth conceded were not part of the mob, thus, the fact that appellant threw chairs did not prove beyond a reasonable doubt that he was acting as part of a mob. Wynn v. Commonwealth, No. 1804-93-1 (Ct. of Appeals June 20, 1995).

§ 18.2-42.1. Acts of violence by mob.

Any and every person composing a mob which commits an act of violence as defined in § 19.2-297.1 shall be guilty of that act of violence and, upon conviction, shall be punished as provided in the section of this title which makes that act of violence unlawful.

(1999, c. 623.)

Michie's Jurisprudence. - For related discussion, see 13A M.J. Mobs, Riots and Lynchings, § 4.

CASE NOTES

Liability of members. - Defendant's convictions under § 18.2-53.1 were reversed and dismissed because even though defendant was a member of a mob, § 18.2-42.1 did not render him criminally responsible for using a firearm in the commission of lynching and using a firearm in the commission of malicious wounding by mob simply by being a member of such mob. Paiz v. Commonwealth, 54 Va. App. 688, 682 S.E.2d 71, 2009 Va. App. LEXIS 380 (2009).

§ 18.2-43. Apprehension and prosecution of participants in lynching.

The attorney for the Commonwealth of any county or city in which a lynching may occur shall promptly and diligently endeavor to ascertain the identity of the persons who in any way participated therein, or who composed the mob which perpetrated the same, and have them apprehended, and shall promptly proceed with the prosecution of any and all persons so found; and to the end that such offenders may not escape proper punishment, such attorney for the Commonwealth may be assisted in all such endeavors and prosecutions by the Attorney General, or other prosecutors designated by the Governor for the purpose; and the Governor may have full authority to spend such sums as he may deem necessary for the purpose of seeking out the identity, and apprehending the members of such mob.

(Code 1950, § 18.1-32; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-44. Civil liability for lynching.

No provisions of this article shall be construed to relieve any member of a mob from civil liability to the personal representative of the victim of a lynching.

(Code 1950, § 18.1-33; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-45. Persons suffering death from mob attempting to lynch another person.

Every person suffering death from a mob attempting to lynch another person shall come within the provisions of this article, and his personal representative shall be entitled to relief in the same manner and to the same extent as if he were the originally intended victim of such mob.

(Code 1950, § 18.1-34; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-46. Venue.

Venue for all actions and prosecutions under any of the provisions of this article shall be in the county or city wherein a lynching or other violation of any of the provisions of this article may have occurred, or of the county or city from which the person lynched or assaulted may have been taken as aforesaid.

(Code 1950, § 18.1-35; 1960, c. 358; 1975, cc. 14, 15; 2004, c. 144.)

The 2004 amendments. - The 2004 amendment by c. 144 substituted "Venue for" for "Jurisdiction of" at the beginning and deleted "circuit court of the" before "county or city."

Article 2.1. Crimes by Gangs.

§ 18.2-46.1. Definitions.

As used in this article unless the context requires otherwise or it is otherwise provided:

"Act of violence" means those felony offenses described in subsection A of § 19.2-297.1 .

"Criminal street gang" means any ongoing organization, association, or group of three or more persons, whether formal or informal, (i) which has as one of its primary objectives or activities the commission of one or more criminal activities; (ii) which has an identifiable name or identifying sign or symbol; and (iii) whose members individually or collectively have engaged in the commission of, attempt to commit, conspiracy to commit, or solicitation of two or more predicate criminal acts, at least one of which is an act of violence, provided such acts were not part of a common act or transaction.

"Predicate criminal act" means (i) an act of violence; (ii) any violation of § 18.2-31 , 18.2-42 , 18.2-46.3 , 18.2-51 , 18.2-51 .1, 18.2-51.2 , 18.2-51.3 , 18.2-51.6 , 18.2-52 , 18.2-52 .1, 18.2-53 , 18.2-53.1 , 18.2-55 , 18.2-56.1 , 18.2-57 , 18.2-57 .2, 18.2-59 , 18.2-83 , 18.2-89 , 18.2-90 , 18.2-95 , 18.2-108.1 , 18.2-121 , 18.2-127 , 18.2-128 , 18.2-137 , 18.2-138 , 18.2-146 , 18.2-147 , 18.2-248.01 , 18.2-248.03 , 18.2-255 , 18.2-255 .2, 18.2-279 , 18.2-282.1 , 18.2-286.1 , 18.2-287.4 , 18.2-289 , 18.2-300 , 18.2-308.1 , 18.2-308.2 , 18.2-308.2 :01, 18.2-308.4 , 18.2-355 , 18.2-356 , 18.2-357 , or 18.2-357.1 ; (iii) a felony violation of § 18.2-60.3 , 18.2-346.01 , 18.2-348 , or 18.2-349 ; (iv) a felony violation of § 4.1-1101 , 18.2-248 , or 18.2-248 .1 or a conspiracy to commit a felony violation of § 4.1-1101 , 18.2-248, or 18.2-248.1 ; (v) any violation of a local ordinance adopted pursuant to § 15.2-1812.2 ; or (vi) any substantially similar offense under the laws of another state or territory of the United States, the District of Columbia, or the United States.

(2000, c. 332; 2004, cc. 396, 435, 462, 867; 2005, cc. 764, 813; 2006, cc. 262, 319, 844, 895; 2007, c. 499; 2012, c. 364; 2013, cc. 573, 645; 2014, cc. 674, 719; 2015, cc. 690, 691; 2019, c. 617; 2021 Sp. Sess. I, cc. 188, 550, 551.)

Editor's note. - Acts 2013, cc. 573 and 645, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, cc. 573 and 645, cl. 4 provides: "That the General Assembly determines that the requirements of the third enactment of this act have been met."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7 provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8 provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2004 amendments. - The 2004 amendments by cc. 396 and 435 are identical, and in the paragraph defining "Criminal street gang," substituted "criminal activities" for "predicate criminal acts" in clause (i) and in clause (iii), deleted "engage in or" preceding "have engaged" and substituted "the commission of . . . common act or transaction" for "pattern of criminal gang activity"; deleted the paragraph defining "Pattern of criminal gang activity"; and inserted the clause (i) through (iii) designations in the paragraph defining "Predicate criminal act."

The 2004 amendment by c. 462 substituted "15.2-1812.2" for "18.2-138.1" in the definition of "Predicate criminal act."

The 2004 amendment by c. 867 rewrote the definition of "Predicate criminal act."

The 2005 amendments. - The 2005 amendments by cc. 764 and 813 are identical, and added clause (v) to the paragraph defining "Predicate criminal act" and made minor stylistic changes.

The 2006 amendments. - The 2006 amendments by cc. 262 and 319 are identical, and in clause (ii) in the definition of "Predicate criminal act," inserted "18.2-83," and "18.2-356" at the end, and made related changes.

The 2006 amendments by cc. 844 and 895 are identical, and inserted "18.2-282.1" in numerical sequence in clause (ii) of the definition for "Predicate criminal act."

The 2007 amendments. - The 2007 amendment by c. 499 inserted "18.2-53.1" in the definition of "Predicate criminal act."

The 2012 amendments. - The 2012 amendment by c. 364 substituted "18.2-308.1, 18.2-355 , 18.2-356 , or 18.2-357 ;" for "18.2-308.1, or 18.2-356 ;" in the paragraph defining "Predicate criminal act."

The 2013 amendments. - The 2013 amendments by cc. 573 and 645 are identical, and rewrote the paragraph defining "Predicate criminal act."

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or 18.2-248.1:1 " following " § 18.2-60.3 " in the definition of "Predicate criminal act."

The 2015 amendments. - The 2015 amendments by cc. 690 and 691 are identical, and inserted "or 18.2-357.1 " in the fourth paragraph, and made minor stylistic changes.

The 2019 amendments. - The 2019 amendment by c. 617, in the definition for "Predicate criminal act," inserted "18.2-346, 18.2-348 , or 18.2-349 " and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted "18.2-346.01" for "18.2-346" in clause (iii) in the definition for "Predicate criminal act."

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in the definition of "Predicate criminal act," twice inserted "4.1-1101" in clause (iv) and made related changes.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

CASE NOTES

"Criminal street gang." - Because defendant prison officials had established a zero tolerance policy for inappropriate or criminal behavior committed by groups of inmates meeting § 18.2-46.1 's definition of a criminal street gang, and plaintiff inmate did not challenge such a designation as to his "religious" materials as Security Threat Group materials, and he retained other avenues of religious exercise, and the ban of the materials promoted the goal of a zero tolerance of gang affiliation to reduce dangers to other inmates and staff, the ban withstood First Amendment and Religious Land Use and Institutionalized Persons Act, 42 U.S.C.S. §§ 2000cc to 2000cc-5, challenges. Holley v. Johnson,, 2010 U.S. Dist. LEXIS 65356 (W.D. Va. June 30, 2010).

Because the two people whose convictions the Commonwealth relied on as predicate criminal acts to establish the existence of a criminal street gang were not members of defendant's subset gang, the crimes committed by those two people did not qualify as predicate criminal acts under clause (iii) of the definition of "criminal street gang." Taybron v. Commonwealth, 57 Va. App. 470, 703 S.E.2d 270, 2011 Va. App. LEXIS 1 (2011).

Evidence was insufficient to convict defendant of participation in a criminal street gang because the Commonwealth proved only one predicate crime committed by a gang member and thus failed to prove that the gang was a "criminal street gang" under § 18.2-46.1 , an essential element of the offense. Rushing v. Commonwealth, 284 Va. 270 , 726 S.E.2d 333, 2012 Va. LEXIS 133 (2012).

"Criminal gang activity." - Trial court did not err in admitting evidence of the prior convictions of two codefendants; based on defendant's involvement in an attack at a hotel on a rival gang, he was charged with "criminal street gang participation" and to prove the requisite street gang activity, the Commonwealth had to prove predicate criminal acts by "two or more persons" who were members of the same gang, thus allowing for admission of the prior conviction evidence. Corado v. Commonwealth, 47 Va. App. 315, 623 S.E.2d 452, 2005 Va. App. LEXIS 528 (2005).

Where there was ample evidence of criminal activities, including at least one violent act, from which a trial court could have inferred that the requisite predicate acts to establish a criminal street gang occurred prior to defendant recruiting a juvenile to join a gang, the evidence proved that a criminal street gang existed prior to and independent of defendant's recruitment of the juvenile and was sufficient to support defendant's conviction for recruitment of a juvenile for membership in a criminal street gang, in violation of § 18.2-46.3 . Phillips v. Commonwealth, 56 Va. App. 526, 694 S.E.2d 805, 2010 Va. App. LEXIS 271 (2010).

Joinder of predicate offenses for gang participation offense. - Trial court did not abuse its discretion by allowing the offenses in two shooting incidents to be tried together against defendant because the offenses were predicate crimes for a gang participation offense against defendant. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434, 2015 Va. App. LEXIS 245 (2015).

Expert testimony on gang culture. - In a case in which defendant appealed his conviction for violating §§ 18.2-51 , 18.2-53.1 , and 18.2-286.1 , he unsuccessfully argued that the trial court erred in permitting an expert witness to testify about gang practices and terminology, including his involvement with a gang. The trial court reasonably concluded that the probative value of the expert's testimony outweighed any prejudicial effect; the evidence was relevant to prove the identity of the shooter, and the testimony about his gang affiliation was probative as to defendant's identity. Wyche v. Commonwealth,, 2012 Va. App. LEXIS 227 (July 10, 2012).

Evidence of criminal street gang. - Expert testimony indicating that the Latin Kings gang members engaged in criminal enterprises, have adopted black and gold as their identifying colors, wore the symbols of the "sacred crown" and colored beads as part of their clothing attire, and used identifiable hand signals to identify themselves was sufficient to prove that the Latin Kings were a criminal street gang as defined in § 18.2-46.1 . Salcedo v. Commonwealth, 58 Va. App. 525, 712 S.E.2d 8, 2011 Va. App. LEXIS 239 (2011).

Evidence, in the form of testimony by a police detective, a stipulation of facts, and a sentencing order, of prior criminal acts committed by two purported gang members was admissible because the evidence was relevant and was admitted to prove the existence of a criminal street gang, pursuant to § 18.2-46.1 . Newton v. Commonwealth,, 2011 Va. App. LEXIS 212 (June 28, 2011).

Officer's expert opinion that a convicted felon was a gang member because he was seen at an unspecified time wearing beads the officer considered to be gang insignia had an insufficient factual basis, because 1) wearing gang insignia did not logically entail gang membership; and 2) the officer's observation of the beads was not related in time to the purported member's commission of the crime for which he was convicted. Rushing v. Commonwealth, 284 Va. 270 , 726 S.E.2d 333, 2012 Va. LEXIS 133 (2012).

Statute did not require that one witness had been personally involved in another gang member's prosecution; the witness's familiarity with gang members in the Richmond area and knowledge of the member's conviction satisfied the statute, and his testimony and the federal conviction orders sufficiently established that both gang members committed the requisite criminal acts, such that the trial court did not abuse its discretion in admitting the evidence to prove the existence of a criminal street gang. Argueta-Diaz v. Commonwealth, No. 1141-18-2, 2019 Va. App. LEXIS 248 (Ct. of Appeals Nov. 5, 2019).

Applied in Hamilton v. Commonwealth, 279 Va. 94 , 688 S.E.2d 168, 2010 Va. LEXIS 6 (2010).

§ 18.2-46.2. Prohibited criminal street gang participation; penalty.

  1. Any person who actively participates in or is a member of a criminal street gang and who knowingly and willfully participates in any predicate criminal act committed for the benefit of, at the direction of, or in association with any criminal street gang shall be guilty of a Class 5 felony. However, if such participant in or member of a criminal street gang is age eighteen years or older and knows or has reason to know that such criminal street gang also includes a juvenile member or participant, he shall be guilty of a Class 4 felony.
  2. Violation of this section shall constitute a separate and distinct offense. If the acts or activities violating this section also violate another provision of law, a prosecution under this section shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby.

    (2000, c. 332.)

Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

CASE NOTES

Joinder of predicate offenses for gang participation offense. - Trial court did not abuse its discretion by allowing the offenses in two shooting incidents to be tried together against defendant because the offenses were predicate crimes for a gang participation offense against defendant. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434, 2015 Va. App. LEXIS 245 (2015).

Predicate act need not be gang related. - This section does not require that the predicate criminal act be gang related. Johnson v. Commonwealth, 58 Va. App. 625, 712 S.E.2d 751, 2011 Va. App. LEXIS 259 (2011).

Evidence that robbery committed in association with gang. - Evidence that defendant, a high-ranking gang member told another to commit the robbery, and that defendant was seen wearing the gangs trademark colors and beads, while the robbery was committed by an individual wearing gang colors, supporting an inference that the robbery was committed for the benefit of or in association with the gang. Salcedo v. Commonwealth, 58 Va. App. 525, 712 S.E.2d 8, 2011 Va. App. LEXIS 239 (2011).

Evidence sufficient. - There was sufficient evidence supporting the jury's decision that defendant participated in a criminal street gang in violation of § 18.2-46.2 . During cross-examination defendant reluctantly admitted defendant might have been wearing a baseball hat, and an expert in gang activity testified that such a hat was frequently worn by members of a gang. Hamilton v. Commonwealth,, 2008 Va. App. LEXIS 487 (Nov. 4, 2008), aff'd, 279 Va. 94 , 688 S.E.2d 168 (2010).

Sufficient evidence supported convictions for participating in a criminal street gang and three counts of assault and battery by a mob, where defendant was dressed in red, the gang color, he was seen with gang members at the scene, and the gang used hand-signs and a war cry before the attacks Hamilton v. Commonwealth, 279 Va. 94 , 688 S.E.2d 168, 2010 Va. LEXIS 6 (2010).

Evidence defendant was present when a high-ranking gang member told the person who robbed to store to do so, and defendant was seen wearing gang colors and beads associated with the gang, both of which were shown when the gang members wanted other to know they were part of the gang and supported an inference the robbery was committed for the benefit of the gang, was sufficient to support a conviction for participating in a criminal act for the benefit of a prohibited street gang. Lebron v. Commonwealth, 58 Va. App. 540, 712 S.E.2d 15, 2011 Va. App. LEXIS 238 (2011).

Defendant's conviction for criminal street gang participation under § 18.2-46.2 was appropriate because he associated himself with gang members in order to attack innocent individuals; he was present at a party where gang members discussed going on gang missions; and defendant then participated in those attacks. Morris v. Commonwealth, 58 Va. App. 744, 716 S.E.2d 139, 2011 Va. App. LEXIS 316 (2011).

Evidence was sufficient to convict defendant of violating the statutes; the trial judge expressly found as fact that defendant was a member of a gang and he admitted that he wanted to fight another person because he had something to do with the gang. Argueta-Diaz v. Commonwealth, No. 1141-18-2, 2019 Va. App. LEXIS 248 (Ct. of Appeals Nov. 5, 2019).

Evidence insufficient. - Evidence was insufficient to support defendant's conviction for felony participation in criminal activity for the benefit of a criminal street gang that includes a juvenile, pursuant to § 18.2-46.2 , because the conclusion that the juvenile was a member of the gang during the recruitment process was not supported by the evidence where the testimony indicated that the juvenile was not a member of the gang until after he participated in a "beating in." Logically, the recruitment activity performed by defendant ceased at the time the juvenile became an actual member of the gang. Phillips v. Commonwealth, 56 Va. App. 526, 694 S.E.2d 805, 2010 Va. App. LEXIS 271 (2010).

Evidence was not sufficient to sustain defendant's conviction for willfully participating in a criminal act for the benefit of criminal street gang of which he was a member, in violation of § 18.2-46.2 , because the two people whose convictions the Commonwealth relied on as predicate criminal acts to establish existence of a criminal street gang were not members of defendant's subset gang. Taybron v. Commonwealth, 57 Va. App. 470, 703 S.E.2d 270, 2011 Va. App. LEXIS 1 (2011).

Evidence was insufficient to convict defendant of participation in a criminal street gang, because the Commonwealth proved only one predicate crime committed by a gang member and thus failed to prove that the gang was a "criminal street gang" under § 18.2-46.1 , an essential element of the offense. Rushing v. Commonwealth, 284 Va. 270 , 726 S.E.2d 333, 2012 Va. LEXIS 133 (2012).

Court of appeals applied the ends of justice exception to defendant's conviction for participating in a criminal street gang predicate act of violence because defendant was convicted of a non-offense; because defendant was not convicted of a crime that was a predicate criminal act, he was convicted of a crime that did not exist. Smith v. Virginia, No. 0099-18-1, 2019 Va. App. LEXIS 119 (May 14, 2019).

Sentence within the range set by legislature is proper. - Trial court did not abuse its discretion in imposing a 43-year sentence against defendant, as said sentence was within the ranges set by the legislature and well below the total statutory maximum for the various felony offenses for which he was convicted. Clark v. Commonwealth, No. 1727-07-3,, 2008 Va. App. LEXIS 234 (Ct. of Appeals May 13, 2008).

Applied in Saunders v. Commonwealth, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011).

CIRCUIT COURT OPINIONS

Severance of charges. - Where the charges of assault and battery and assault and battery by mob were inextricably entwined with a felony gang charge, defendant's motion to sever had to be denied. Commonwealth v. Mendez, 60 Va. Cir. 242, 2002 Va. Cir. LEXIS 303 (Alexandria 2002).

§ 18.2-46.3. Recruitment of persons for criminal street gang; penalty.

  1. Any person who solicits, invites, recruits, encourages or otherwise causes or attempts to cause another to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 1 misdemeanor. Any person age 18 years or older who solicits, invites, recruits, encourages or otherwise causes or attempts to cause a juvenile to actively participate in or become a member of what he knows to be a criminal street gang is guilty of a Class 6 felony.
  2. Any person who, in order to encourage an individual (a) to join a criminal street gang, (b) to remain as a participant in or a member of a criminal street gang, or (c) to submit to a demand made by a criminal street gang to commit a felony violation of this title, (i) uses force against the individual or a member of his family or household or (ii) threatens force against the individual or a member of his family or household, which threat would place any person in reasonable apprehension of death or bodily injury, is guilty of a Class 6 felony. The definition of "family or household member" set forth in § 16.1-228 applies to this section.

    (2000, c. 332; 2004, cc. 396, 435.)

The 2004 amendments. - The 2004 amendments by cc. 396 and 435 are nearly identical, and in subsection A, deleted "age eighteen years or older" following "Any person," substituted "cause another" for "cause a juvenile," "is" for "shall be," and "Class 1 misdemeanor" for "Class 6 felony," added the last sentence, and added subsection B. Additionally, c. 396 substituted "persons" for "juveniles" in the section heading.

The section is set out in the form above at the direction of the Virginia Code Commission.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

CASE NOTES

Evidence sufficient. - Where there was ample evidence of criminal activities, including at least one violent act, from which a trial court could have inferred that the requisite predicate acts to establish a criminal street gang occurred prior to defendant recruiting a juvenile to join a gang, the evidence proved that a criminal street gang existed prior to and independent of defendant's recruitment of the juvenile and was sufficient to support defendant's conviction for recruitment of a juvenile for membership in a criminal street gang. Phillips v. Commonwealth, 56 Va. App. 526, 694 S.E.2d 805, 2010 Va. App. LEXIS 271 (2010).

§ 18.2-46.3:1. Third or subsequent conviction of criminal street gang crimes.

Upon a felony conviction of § 18.2-46.2 or § 18.2-46.3 , where it is alleged in the warrant, information or indictment on which a person is convicted that (i) such person has been previously convicted twice under any combination of § 18.2-46.2 or § 18.2-46.3 , within 10 years of the third or subsequent offense, and (ii) each such offense occurred on different dates, such person is guilty of a Class 3 felony.

(2004, cc. 396, 435, 847.)

§ 18.2-46.3:2. Forfeiture.

All property, both personal and real, of any kind or character used in substantial connection with, intended for use in the course of, derived from, traceable to, or realized through, including any profit or interest derived from, any conduct in violation of any provision of this article is subject to civil forfeiture to the Commonwealth. Further, all property, both personal and real, of any kind or character used or intended to be used in substantial connection with, during the course of, derived from, traceable to, or realized through, including any profit or interest derived from, criminal street gang member recruitment as prohibited under § 18.2-46.3 is subject to civil forfeiture to the Commonwealth. The forfeiture proceeding shall utilize the provisions of Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2 and the procedures specified therein shall apply, mutatis mutandis, to all forfeitures under this article. The application of one civil remedy under the article does not preclude the application of any other remedy, civil or criminal, under this article or any other provision of the Code.

(2004, cc. 396, 435.)

§ 18.2-46.3:3. Enhanced punishment for gang activity taking place in a gang-free zone; penalties.

Any person who violates § 18.2-46.2 (i) upon the property, including buildings and grounds, of any public or private elementary, secondary, or postsecondary school or institution of higher education; (ii) upon public property or any property open to public use within 1,000 feet of such school property; (iii) on any school bus as defined in § 46.2-100 ; or (iv) upon the property, including buildings and grounds, of any publicly owned or operated community center or any publicly owned or operated recreation center is guilty of a felony punishable as specified in § 18.2-46.2 , and shall be sentenced to a mandatory minimum term of imprisonment of two years to be served consecutively with any other sentence. A person who violates subsection A of § 18.2-46.3 upon any property listed in this section is guilty of a Class 6 felony, except that any person 18 years of age or older who violates subsection A of § 18.2-46.3 upon any property listed in this section, when such offense is committed against a juvenile, is guilty of a Class 5 felony. Any person who violates subsection B of § 18.2-46.3 upon any property listed in this section is guilty of a Class 5 felony. It is a violation of this section if the person violated § 18.2-46.2 or 18.2-46.3 on the property described in clauses (i) through (iii) regardless of where the person intended to commit such violation.

(2005, cc. 764, 813; 2010, c. 364; 2013, cc. 761, 774.)

Editor's note. - At the direction of the Virginia Code Commission, "or institution of higher education" was substituted for "or any public or private two-year or four-year institution of higher education" in clause (i) to conform to Acts 2016, c. 588.

The 2010 amendments. - The 2010 amendment by c. 364 inserted "or (iv) upon the property, including buildings and grounds, of any publicly owned or operated community center or any publicly owned or operated recreation center" and made a related change.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added "to be served consecutively with any other sentence" at the end of the first sentence.

CASE NOTES

Evidence sufficient. - Evidence was sufficient to convict defendant of violating the statutes; the trial judge expressly found as fact that defendant was a member of a gang and he admitted that he wanted to fight another person because he had something to do with the gang. Argueta-Diaz v. Commonwealth, No. 1141-18-2, 2019 Va. App. LEXIS 248 (Ct. of Appeals Nov. 5, 2019).

Article 2.2. Terrorism Offenses.

§ 18.2-46.4. Definitions.

As used in this article, unless the context requires otherwise or it is otherwise provided:

"Act of terrorism" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 or an act that would be an act of violence if committed within the Commonwealth committed within or outside the Commonwealth with the intent to (i) intimidate a civilian population at large or (ii) influence the conduct or activities of a government, including the government of the United States, a state, or a locality, through intimidation.

"Base offense" means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent required to commit an act of terrorism.

"Weapon of terrorism" means any device or material that is designed, intended or used to cause death, bodily injury or serious bodily harm, through the release, dissemination, or impact of (i) poisonous chemicals; (ii) an infectious biological substance; or (iii) release of radiation or radioactivity.

(2002, cc. 588, 623; 2017, cc. 624, 668.)

Cross references. - As to inclusion of killing in the commission or attempted commission of an act of terrorism in the definition of capital murder, see § 18.2-31 .

The 2017 amendments. - The 2017 amendments by cc. 624 and 668 are nearly identical, and in the definition of "Act of terrorism," inserted "or an act that would be an act of violence if committed within the Commonwealth," "within or outside the Commonwealth" and "including the government"; and made stylistic changes. The section is set out in the form above at the direction of the Virginia Code Comission.

Law review. - For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

CASE NOTES

Constitutionality. - Terrorism statutes, subdivision 13 of § 18.2-31 and § 18.2-46.4 , were not unconstitutionally overbroad and vague; by referencing established criminal offenses as acts of violence subject to the statutory scheme, the legislature included offenses with previously defined elements and mens rea requirements. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Not limited to actors with political motives. - Virginia terrorism statutes, subdivision 13 of § 18.2-31 and § 18.2-46.4 were not unconstitutionally overbroad and vague, as claimed by defendant; nothing in the words of the statutes evinced an intent to limit their application to criminal actors with political motives, and the statutes provided notice sufficient for ordinary people to understand what conduct they prohibited, and did not authorize and/or encourage arbitrary and discriminatory enforcement. Muhammad v. Commonwealth, 269 Va. 451 , 611 S.E.2d 537, 2005 Va. LEXIS 39 (2005), cert. denied, 547 U.S. 1136, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006), and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Evidence sufficient in sniper case. - Evidence was sufficient to convict defendant of capital murder pursuant to subdivision 13 of § 18.2-31 for the willful, deliberate, and premeditated killing of the victim in the commission of an act of terrorism. Defendant was a principal in the first degree and was a criminal actor in the second degree who gave an order or direction to the shooter, who was firing from inside the trunk of the car defendant was driving, to kill the victim. Muhammad v. Commonwealth, 269 Va. 451 , 619 S.E.2d 16 (2005), cert. denied, 126 S. Ct. 2035, 164 L. Ed. 2d 794 (2006) and overruled in part on other grounds by Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Ineffective assistance of counsel not shown. - State supreme court dismissed the petition for writ of habeas corpus that petitioner filed as to petitioner's claim in petitioner's capital murder case that the indictments, jury instructions, and verdict forms were inadequate because they did not specify which other person petitioner had killed during a three-year period or which act of terrorism petitioner had committed; petitioner's claim in that regard did not satisfy either the performance or prejudice prong of the two-part Strickland test since under subdivision 8 of § 18.2-31 , there was no requirement that the relevant documents specify which other killing was being included within the three-year period and the indictment, under § 18.2-46.4 , did not have to specify the petitioner's intent under that statute's two subsections. Muhammad v. Warden of the Sussex I State Prison, 274 Va. 3 , 646 S.E.2d 182, 2007 Va. LEXIS 97 (2007), cert. denied, 128 S. Ct. 1889, 2008 U.S. LEXIS 3275 (U.S. 2008).

§ 18.2-46.5. Committing, conspiring and aiding and abetting acts of terrorism prohibited; penalty.

  1. Any person who commits or conspires to commit, or aids and abets the commission of an act of terrorism, as defined in § 18.2-46.4 , is guilty of a Class 2 felony if the base offense of such act of terrorism may be punished by life imprisonment, or a term of imprisonment of not less than twenty years.
  2. Any person who commits, conspires to commit, or aids and abets the commission of an act of terrorism, as defined in § 18.2-46.4 , is guilty of a Class 3 felony if the maximum penalty for the base offense of such act of terrorism is a term of imprisonment or incarceration in jail of less than twenty years.
  3. Any person who solicits, invites, recruits, encourages, or otherwise causes or attempts to cause another to participate in an act or acts of terrorism, as defined in § 18.2-46.4 , is guilty of a Class 4 felony.
  4. Any person who knowingly provides any material support (i) to an individual or organization whose primary objective is to commit an act of terrorism and (ii) does so with the intent to further such individual's or organization's objective is guilty of a Class 3 felony. If the death of any person results from providing any material support, then the person who provided such material support is guilty of a Class 2 felony.

    (2002, cc. 588, 623; 2007, c. 409; 2017, cc. 624, 668.)

The 2007 amendments. - The 2007 amendment by c. 409 added subsection C.

The 2017 amendments. - The 2017 amendments by cc. 624 and 668 are nearly identical, and added subsection D. The section is set out in the form above at the direction of the Virginia Code Comission.

§ 18.2-46.6. Possession, manufacture, distribution, etc. of weapon of terrorism or hoax device prohibited; penalty.

  1. Any person who, with the intent to commit an act of terrorism, possesses, uses, sells, gives, distributes or manufactures (i) a weapon of terrorism or (ii) a "fire bomb," "explosive material," or "device," as those terms are defined in § 18.2-85 , is guilty of a Class 2 felony.
  2. Any person who, with the intent to commit an act of terrorism, possesses, uses, sells, gives, distributes or manufactures any device or material that by its design, construction, content or characteristics appears to be or appears to contain a (i) weapon of terrorism or (ii) a "fire bomb," "explosive material," or "device," as those terms are defined in § 18.2-85 , but that is an imitation of any such weapon of terrorism, "fire bomb," "explosive material," or "device" is guilty of a Class 3 felony.
  3. Any person who, with the intent to (i) intimidate the civilian population, (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation, (iii) compel the emergency evacuation of any place of assembly, building or other structure or any means of mass transportation, or (iv) place any person in reasonable apprehension of bodily harm, uses, sells, gives, distributes or manufactures any device or material that by its design, construction, content or characteristics appears to be or appears to contain a weapon of terrorism, but that is an imitation of any such weapon of terrorism is guilty of a Class 6 felony.

    (2002, cc. 588, 623.)

Cross references. - As to civil action and reimbursement of expenses incurred in responding to terrorism hoax incident, see § 15.2-1716.1 .

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

§ 18.2-46.7. Act of bioterrorism against agricultural crops or animals; penalty.

Any person who maliciously destroys or devastates agricultural crops or agricultural animals having a value of $2,500 or more through the use of an infectious biological substance with the intent to (i) intimidate the civilian population or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation, is guilty of a Class 3 felony.

For the purposes of this section "agricultural animal" means all livestock and poultry as defined in § 3.2-5900 and "agricultural crop" means cultivated plants or produce, including grain, silage, forages, oilseeds, vegetables, fruits, nursery stock or turf grass.

(2002, cc. 588, 623.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860.

Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

§ 18.2-46.8. Venue.

Venue for any violation of this article may be had in the county or city where such crime is alleged to have occurred or where any act in furtherance of an act prohibited by this article was committed.

(2002, cc. 588, 623.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Law review. - For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

§ 18.2-46.9.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions concerning seizure of property used in connection with or derived from terrorism, see § 19.2-386.15 .

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Former § 18.2-46.9 , pertaining to seizure of property used in connection with or derived from terrorism, derived from 2002, cc. 588, 623.

§ 18.2-46.10. Violation of sections within article separate and distinct offenses.

A violation of any section in this article shall constitute a separate and distinct offense. If the acts or activities violating any section within this article also violate another provision of law, a prosecution under any section in this article shall not prohibit or bar any prosecution or proceeding under such other provision or the imposition of any penalties provided for thereby.

(2002, cc. 588, 623.)

Cross references. - As to seizure of property used in connection with or derived from terrorism, see §§ 19.2-386.15 , 57-59 .

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Article 3. Kidnapping and Related Offenses.

§ 18.2-47. Abduction and kidnapping defined; punishment.

  1. Any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge, shall be deemed guilty of "abduction."
  2. Any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to subject him to forced labor or services shall be deemed guilty of "abduction." For purposes of this subsection, the term "intimidation" shall include destroying, concealing, confiscating, withholding, or threatening to withhold a passport, immigration document, or other governmental identification or threatening to report another as being illegally present in the United States.
  3. The provisions of this section shall not apply to any law-enforcement officer in the performance of his duty. The terms "abduction" and "kidnapping" shall be synonymous in this Code. Abduction for which no punishment is otherwise prescribed shall be punished as a Class 5 felony.
  4. If an offense under subsection A is committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending, the offense shall be a Class 1 misdemeanor in addition to being punishable as contempt of court. However, such offense, if committed by the parent of the person abducted and punishable as contempt of court in any proceeding then pending and the person abducted is removed from the Commonwealth by the abducting parent, shall be a Class 6 felony in addition to being punishable as contempt of court.

    (Code 1950, §§ 18.1-36, 18.1-37; 1960, c. 358; 1975, cc. 14, 15; 1979, c. 663; 1980, c. 506; 1997, c. 747; 2009, c. 662.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to seizure of property used in connection with certain offenses, see § 19.2-386.35 .

For definition of "barrier crime" as including a conviction of abduction as set out in subsection A of § 18.2-47 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

The 1997 amendment added the A and B designations at the beginning of each paragraph, deleted "provided, however, that such offense, if" following "a Class 5 felony" at the end of the third sentence of subsection A, and inserted "If such offense is" preceding "committed by the parent" in subsection B.

The 2009 amendments. - The 2009 amendment by c. 662 inserted subsection designations; in subsection A, substituted "secretes another person" for "secretes the person of another" and transferred the end of the subsection to new subsection C; added subsection B; and in subsection D, substituted "an offense under subsection A" for "such offense."

Law review. - For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970). For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abduction and Kidnapping, §§ 1, 3; 14A M.J. Parent and Child, § 4.

CASE NOTES

This section supersedes the common law. Scott v. Commonwealth, 228 Va. 519 , 323 S.E.2d 572 (1984).

This section is not unconstitutionally vague because it does not inform an individual whether they can be held in contempt in a court of the Commonwealth or that of a sister state. Bennett v. Commonwealth, 8 Va. App. 228, 380 S.E.2d 17 (1989).

Each prohibited act independently sufficient to support conviction. - Because this section casts its several prohibited acts in the disjunctive, each is independently sufficient to support a conviction. Accordingly, the physical detention of a person, with the intent to deprive him of his personal liberty, by force, intimidation or deception, without any asportation of the victim from one place to another, is sufficient. Scott v. Commonwealth, 228 Va. 519 , 323 S.E.2d 572 (1984).

The abduction statute casts its several prohibited acts in the disjunctive, [and therefore,] each is independently sufficient to support a conviction. Cheng v. Commonwealth, 240 Va. 26 , 393 S.E.2d 599 (1990).

Robbery, burglary, grand larceny and abduction, are each treated separately and are governed by a separate statutory provision. Austin v. Peyton, 279 F. Supp. 227 (W.D. Va. 1968).

Included in offense defined in § 18.2-48 . - The offense defined in this section is an offense lesser-included in the offense defined in § 18.2-48 . Hawks v. Commonwealth, 228 Va. 244 , 321 S.E.2d 650 (1984).

Detention of trespasser not legally justified. - The defendant did not have legal justification to confront and detain victims who trespassed onto his property, since the common law has long recognized the right of a landowner to order a trespasser to leave his property, and, should the trespasser refuse, to employ proper force to expel him, but does not allow the landowner to seize or detain a trespasser; thus, the evidence was sufficient to prove that the defendant abducted the victims and used a firearm in the commission of the abductions where the defendant and his brother jumped out of the woods, brandished rifles at the victims, and commanded that they "freeze," and then coerced them into going to the defendant's house by falsely telling them that the police had been called. Hitchcock v. Commonwealth, No. 1387-97-4 (Ct. of Appeals April 21, 1998).

Specific intent. - The distinguishing feature between the offenses of abduction "with the intent to deprive such other person of his personal liberty" and abduction "with intent to defile" is the specific intent entertained by the accused. McKinley v. Commonwealth, 217 Va. 1 , 225 S.E.2d 352 (1976)(decided under former §§ 18.1-36 and 18.1-38).

Defendant was properly convicted of attempted abduction because the trial court could reasonably infer that his actions were inconsistent with an intent to create a romantic relationship with the victim, and were consistent with attempting to abduct her with the purpose of withholding her personal liberty where defendant initially stood in front of the victim blocking her path, grabbed her jacket, and subsequently positioned his truck so that she could not walk around it. Gray v. Commonwealth,, 2014 Va. App. LEXIS 83 (Mar. 11, 2014).

Sufficient evidence showed defendant's specific intent to deprive victims of the victims' personal liberty because the evidence showed defendant, with the use of a firearm, intimidated the victims to remain where the victims were and, independently, showed defendant intended to deprive the victims of the victims' personal liberty. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Defendant preserved the issue of the sufficiency of the evidence as to defendant's intent to commit abduction because defendant contested the sufficiency of the evidence "according to the statute," which raised such sufficiency as to all statutory elements. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Where the defendant, who was appealing the revocation of his probation, argued that the testimony was insufficient to establish the elements of the Virginia offense of abduction, his repeated attempts to slow the car and his demands that the victims get out did not preclude a finding that he intended to deprive the victims of their personal liberty. United States v. Sadeghi, 616 Fed. Appx. 607, 2015 U.S. App. LEXIS 11559 (4th Cir. 2015).

Physical detention of a person, with intent to deprive him of his personal liberty, by force, intimidation, or deception, without any asportation of the victim from one place to another, is sufficient to support a conviction of abduction. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

Momentary deprivation of liberty furthering sexual advances. - Where defendant put his arms around prosecutrix and held her tightly this was done in furtherance of his sexual advances and not with the intent to deprive her of her personal liberty, although such a deprivation did occur momentarily; thus, the evidence was not sufficient to sustain his conviction of abduction. Johnson v. Commonwealth, 221 Va. 872 , 275 S.E.2d 592 (1981).

When defendant grabbed the victim around the waist and thrust his pelvic area into her buttocks for about five seconds, the requisite specific intent to deprive the victim of her personal liberty, sufficient to sustain a charge of abduction under this section, was not present. Hartnett v. Commonwealth, No. 1507-00-2, 2001 Va. App. LEXIS 346 (Ct. of Appeals June 19, 2001).

Because the evidence was insufficient to prove that defendant intended to deprive a victim of the victim's personal liberty, defendant's conviction for abduction, in violation of subsection A of § 18.2-47 , was improper; defendant's intent was to deceive the victim into positioning herself in such a way that defendant could gain sexual gratification, and although the victim was briefly detained by defendant's ruse, defendant's actions were made in pursuit of sexual gratification and not with the intent to deprive the victim of personal liberty. Burton v. Commonwealth, 281 Va. 622 , 708 S.E.2d 892, 2011 Va. LEXIS 97 (2011).

For detention falling under the definition of abduction as set out in this section, see Joyce v. Commonwealth, 210 Va. 272 , 170 S.E.2d 9 (1969).

The type of detention set forth in the abduction statute is defined as detention separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime. Coram v. Commonwealth, 3 Va. App. 623, 352 S.E.2d 532 (1987).

Claim of right to property no defense. - There is no authority in Virginia for a defense of bona fide claim of right that would allow the abduction of an individual in order to recover property. Jackson v. Commonwealth, No. 2994-99-2, 2001 Va. App. LEXIS 249 (Ct. of Appeals May 8, 2001).

The defense of legal excuse is personal to the parent and is not available to an accomplice of the parent. Taylor v. Commonwealth, 31 Va. App. 54, 521 S.E.2d 293 (1999), aff'd, 260 Va. 683 , 537 S.E.2d 592 (2000).

Abduction of biological child from mother's custody. - Where the father of an illegitimate child had only a biological relationship, and none other, with his child, the father had no legal justification for taking the child from the mother's custody by intimidation and deception, and proof that he had done so was sufficient to establish that the father had committed the crime of abduction; his fiance, who was present at the commission of the crime and incited, encouraged and assisted the father in committing the crime, was liable as an accomplice. Taylor v. Commonwealth, 260 Va. 683 , 537 S.E.2d 592, 2000 Va. LEXIS 126 (2000).

A custodial parent may be prosecuted for the felony murder of his or her child, using abduction as the underlying felony as set forth in this section. Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989).

Parent could be charged with felony instead of misdemeanor. - Where custodial parent was convicted of abduction of his child, parent could be convicted of a felony instead of a misdemeanor; the misdemeanor provision was inapplicable since there was no "proceeding then pending" at the time of the offense. Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989).

Photograph of victim was relevant. - Where a primary defense at trial was that the parents were merely disciplining a child for his misconduct, there was no abuse of discretion in admitting photograph of victim's buttocks disclosing extent of injury inflicted on him; the picture was relevant to the issue of whether the punishment inflicted exceeded the bounds of moderation so as to subject defendant to criminal liability. Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989).

One accused of abduction by detention and another crime involving restraint of victim, both growing out of a continuing course of conduct, is subject upon conviction to separate penalties for separate offenses only when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime. Brown v. Commonwealth, 230 Va. 310 , 337 S.E.2d 711 (1985).

A defendant may be convicted and receive separate punishments for abduction and another crime involving restraint, both growing out of a continuing course of conduct, when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime. Redmond v. Commonwealth, No. 1726-00-1, 2001 Va. App. LEXIS 308 (Ct. of Appeals June 5, 2001).

Trial court did not err in convicting defendant of both assault and battery, § 18.2-57 , and abduction, § 18.2-47 A, where the crimes, although temporally connected, did not occur simultaneously, and the victim's testimony established that detention occurred in a different room of the house and was separate and apart from the assault and battery. Epps v. Commonwealth, 66 Va. App. 393, 785 S.E.2d 792 (2016), aff'd, 293 Va. 403 , 799 S.E.2d 516, 2017 Va. LEXIS 77 (2017).

Restraint was not brief prelude to victim's murder. - Defendant's restraint of a victim was not simply a brief prelude to her murder that could not be separately criminalized as an abduction, because it occurred before defendant sealed off the victim's airways with a plastic bag where he physically held the victim down while his wife obtained the tape he requested and he then taped the victim so she could not escape while he went to retrieve the plastic bag. Pryor v. Commonwealth, 48 Va. App. 1, 628 S.E.2d 47, 2006 Va. App. LEXIS 131 (2006).

Abduction preceding a murder may lead to separate convictions for each. Pryor v. Commonwealth, 48 Va. App. 1, 628 S.E.2d 47, 2006 Va. App. LEXIS 131 (2006).

Restraint intrinsic in rape, robbery, etc., not separate offense. - Detention is a discrete species of abduction. However, in the enactment of the abduction statute the General Assembly did not intend to make the kind of restraint which is an intrinsic element of crimes such as rape, robbery, and assault a criminal act, punishable as a separate offense. Brown v. Commonwealth, 230 Va. 310 , 337 S.E.2d 711 (1985).

A defendant may be convicted of abduction in addition to robbery if the victim's detention is separate and apart from, and not merely incidental to, the restraint employed in the commission of robbery. To constitute an abduction, separate and apart from a robbery, the victim's detention must be greater than the restraint that is intrinsic in a robbery. Herbin v. Commonwealth, No. 0223-00-3, 2001 Va. App. LEXIS 40 (Ct. of Appeals Jan. 30, 2001).

A defendant was improperly convicted of abduction under this section where the evidence failed to prove that the acts which gave rise to the attempted robbery were separate and apart from the attempted abduction charged in the indictment. The attack and struggles were continuous and not shown to be motivated by an intent to deprive the victim of his personal liberty except as an incident of the attempt to rob him. Burgess v. Commonwealth, No. 0275-00-1, 2000 Va. App. LEXIS 828 (Ct. of Appeals Dec. 19, 2000).

For case holding that abduction and rape were different offenses and that the several penalties imposed did not offend the double jeopardy guarantee against multiple punishments, see Brown v. Commonwealth, 230 Va. 310 , 337 S.E.2d 711 (1985).

Abduction and attempted rape as separate crimes. - It could not be said as a matter of law that the evidence was insufficient to support a conviction for abduction with intent to defile, where when defendant grabbed the victim, he transported her from a location that was lighted and visible to one out of sight of potential passersby or others, as defendant's asportation of the victim substantially increased the risk of harm to the victim by decreasing the possibility of detecting his criminal activity, and as, moreover, asportation to decrease the possibility of detection is not an act inherent in or necessary to the restraint required in the commission of attempted rape. Thus, the jury could reasonably infer that the abduction was separate and apart from, and not merely incidental to, the crime of attempted rape. Accordingly, multiple punishments for defendant's abduction and attempted rape of victim did not offend the double jeopardy guarantee. Coram v. Commonwealth, 3 Va. App. 623, 352 S.E.2d 532 (1987).

Attempted abduction and assault and battery as separate offenses. - Although defendant contended that any attempted abduction or detention of the victim was not a separate offense, as it was incidental to defendant's commission of a separate assault and battery offense toward the victim, defendant was convicted of an attempt crime, because defendant's efforts to abduct the victim remained incomplete. Accordingly, defendant was properly convicted of attempted abduction because the incidental detention doctrine did not control. Whiting v. Commonwealth, No. 1449-15-1, 2016 Va. App. LEXIS 292 (Ct. of Appeals Nov. 1, 2016).

Abduction not incidental to sexual assault. - Trial court properly denied defendant's motion to strike the abduction charge, because defendant's detention of the victim was not incidental to the sexual assault; defendant's act of covering the victim's mouth did nothing to further the sexual assault itself, but made it more difficult for the victim to call for help and, consequently, more difficult for the public to detect the crime. Mitchell v. Commonwealth,, 2010 Va. App. LEXIS 342 (Aug. 17, 2010).

Evidence supported defendant's conviction for abduction with the intent to defile, in violation of §§ 18.2-47 , 18.2-48 , and 18.2-67.5:3 , because defendant lured the victim to a house and proceeded to force himself onto the victim once the victim manifested the victim's discomfort with defendant's advances and attempted to leave. Defendant's conduct and statements to the victim supported the conclusion that the abduction that preceded the rape was effected with the intent to defile. Shepperson v. Commonwealth,, 2012 Va. App. LEXIS 329 (Oct. 16, 2012).

Evidence of rape admissible to show intent to deprive of personal liberty. - Although intent to defile was not charged, evidence of rape was not irrelevant to the charge that the defendant intended to deprive his victim of personal liberty, since restraint imposed upon a rape victim was a deprivation of personal liberty. Such evidence was relevant to show that the abduction was committed with intent to deprive his victim of personal liberty. Hawks v. Commonwealth, 228 Va. 244 , 321 S.E.2d 650 (1984).

Where trial court allowed charges of attempted rape and abduction to go to the jury, defendant was not placed in double jeopardy. Johnson v. Commonwealth, 221 Va. 872 , 275 S.E.2d 592 (1981).

Defendant's conviction for assault did not bar, under double jeopardy, his subsequent conviction for abduction since the offense of assault and that of abduction each required proof of a fact that the other did not. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

The fact that the same evidence, in whole or in part, was used in both trials does not give rise to a double jeopardy objection. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

The conduct used to support the second prosecution was not the same conduct as that used to support the first conviction; evidence of separate, discrete conduct by the defendant supported each offense. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

The assault required proof of an attempt or offer to do bodily harm through an unlawful show of force and violence; the abduction required proof of an asportation or detention by force, intimidation or deception. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

Assault, therefore, required proof of force while abduction, although it may have been accomplished by force, did not require proof of force because it may also have been accomplished through intimidation or deception; abduction, on the other hand, required proof of asportation or detention while assault did not. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

A defendant's prosecution for abduction was not barred by his previous prosecution for assault, because the abduction prosecution was based on different conduct; the trial court, as the trier of fact, could have reasonably concluded from the evidence that the defendant abducted, as well as assaulted, the victim, that the commission of the abduction was complete when the defendant shut the door to the victim's office and put his foot against it to keep the victim from leaving the room, and that this initial act of detention was not inherent in the later acts of assault in that, only after that initial, separate act of detention did the defendant's actions, including his hitting the victim's hand off the doorknob and wrapping his arms around the victim, constitute acts of assault involving incidental acts of restraint. Jackson v. Commonwealth, No. 2994-99-2, 2001 Va. App. LEXIS 249 (Ct. of Appeals May 8, 2001).

Abduction was incidental to robbery. - Because: (1) the duration of the detention and the distance of asportation were slight; (2) the detention and asportation of the first robbery victim occurred during the commission of the separate offense of robbery, but, they were not acts separate and apart from the robbery itself; (3) the detention and asportation of that same victim was inherent in the robbery; (4) the detention and asportation did not pose a danger to that victim independent of and significantly greater than that posed by the robbery itself; and (5) the evidence did not support an inference that defendant detained and moved the victim in order to avoid the detection of the robbery. Hoyt v. Commonwealth, 44 Va. App. 489, 605 S.E.2d 755, 2004 Va. App. LEXIS 599 (2004).

Attempted abduction by out-of-state bail bondsman. - Sufficient evidence supported defendant's conviction for attempted abduction because his use of foul language, his pointing of a deadly weapon at the deputy chief of police, his allowance of an employee to confront the deputy chief with mace and a handgun, and his use of physical force in pulling the deputy chief toward the truck all proved beyond a reasonable doubt that, without legal justification or excuse, defendant seized another person with the intent to deprive such other person of his personal liberty. As a bail bondsman licensed in another state, he was not justified in apprehending a fugitive bailee and his abandonment (when he realized he had the wrong person) came after the attempt was complete. Collins v. Commonwealth, 283 Va. 263 , 720 S.E.2d 530 (2012), cert. denied, 132 S. Ct. 2694, 183 L. Ed. 2d 46, 2012 U.S. LEXIS 4044 (2012).

Former state prisoner was not entitled to habeas relief based on a claim that his counsel was ineffective for failing to argue that the prisoner, an out-of-state bail bondsman, lacked the intent required to commit an abduction, as his mistaken belief that the person he was attempting to abduct was his bailee did not establish a lack of intent. Collins v. Clarke, 642 Fed. Appx. 212, 2016 U.S. App. LEXIS 5245 (4th Cir. 2016).

Motion to withdraw guilty plea. - In a case in which defendant pled guilty to violating §§ 18.2-90 , 18.2-47 , 18.2-67.1 and 18.2-53.1 , he argued unsuccessfully that the circuit court abused its discretion in denying his motion to withdraw his guilty pleas prior to sentencing; defendant failed to show a good faith basis for seeking to withdraw his guilty pleas. He was clearly aware of the potential range of punishments available to the court at the time he pled guilty; as such, the fact that the sentencing guidelines recommended a higher sentence than he had hoped did not constitute a good faith basis for rescinding his pleas. Mack v. Commonwealth,, 2009 Va. App. LEXIS 417 (Sept. 22, 2009).

Defendant's conviction for assault. - Detaining the boyfriend and later ordering the victim back to her room were separate and apart from the attempted robbery as they were not inherent in or necessary to complete the attempted robbery; the evidence showed the defendant committed two acts of abduction under § 18.2-47 . Bell v. Commonwealth, No. 0318-02-1, 2003 Va. App. LEXIS 373 (Ct. of Appeals July 1, 2003).

Defendant may not be convicted of both abduction and attempted robbery unless the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the attempted robbery. Bell v. Commonwealth, No. 0318-02-1, 2003 Va. App. LEXIS 373 (Ct. of Appeals July 1, 2003).

Abduction conviction required reversal under the incidental detention doctrine, because the entire encounter lasted no more than three minutes; the assault and the detention were simultaneous, there was no difference in the time or place of the assault and the time or place of the resulting restraint on the victim's personal liberty; everything defendant did that contributed to the deprivation of the victim's liberty, pointing the gun at the victim as he walked toward him, perfectly fit a definition of common-law assault; and there was no evidence that the restraint of the victim's liberty inherent in the assault posed any physical danger to the victim apart from the danger created by the assault itself. Seddiq v. Commonwealth,, 2010 Va. App. LEXIS 238 (June 15, 2010).

Conviction as accessory or principal in second degree to abduction. - The evidence was sufficient to prove that the defendant was either an accessory before the fact or a principal in the second degree to the victim's abduction where the Commonwealth proved that, after the victim accused the defendant of stealing cocaine, the defendant hit the victim and knocked him to the ground, and the defendant then instructed four men to beat the victim, tie him up, "get rid of him." Smith v. Commonwealth, 33 Va. App. 65, 531 S.E.2d 608, 2000 Va. App. LEXIS 577 (2000).

Sufficient evidence showed defendant committed abduction because defendant was guilty as a principal in the second degree when defendant and others forced the victim to return to a hotel to resume prostitution. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Indictment sufficient. - The indictment which, although not drawn in the precise language of the statute, did charge the defendant with having feloniously seized and abducted his victim by force and intimidation and without legal justification or excuse in violation of former § 18.1-36 was sufficient to sustain a conviction of abduction "with the intent to deprive such other person of his personal liberty." McKinley v. Commonwealth, 217 Va. 1 , 225 S.E.2d 352 (1976) (decided under former § 18.1-36).

The Commonwealth by specifying in the indictment that the abduction was accomplished "by threat, force or intimidation" sufficiently notified the defendant of the nature of the charge against him and to require it to further describe the nature of the force used would have required disclosure of the evidence upon which it planned to rely to prove this element. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

Expert testimony. - Defendant's convictions for multiple counts of abduction and use of a firearm in the commission of a felony were appropriate because, even assuming that the side-switching doctrine applied, defendant failed to prove that he disclosed confidential or privileged information to the doctor. Thus, the trial court did not err by allowing the doctor to testify as an expert for the Commonwealth. Chappelle v. Commonwealth, 62 Va. App. 339, 746 S.E.2d 530, 2013 Va. App. LEXIS 235 (2013).

Evidence sufficient to show victim did not voluntarily accompany defendant. - In trial for simple abduction in connection with murder, where victim lived in apartments within sight of another apartment complex where defendant talked about abducting and killing a college girl the previous year, and victim was last seen at the hotel lounge where she and several friends had gone for an after-dinner drink and victim did not have a car and was depending on her friends to drive her back to her apartment, some two miles from hotel, victim disappeared less than eight hours before she was scheduled to leave for trip, she had arranged her affairs in order and reconfirmed her plans for the trip shortly before her disappearance, and when she telephoned friend who was to accompany her on trip only a few hours before her disappearance, she stressed her desire to get an early start on the following morning, evidence was sufficient to justify jury's conclusion that the victim would not voluntarily have travelled to county where her body was found or otherwise accompanied defendant willingly. Lafon v. Commonwealth, 17 Va. App. 411, 438 S.E.2d 279 (1993).

Use of force or intimidation. - The only reasonable hypothesis flowing from the evidence was that the victims entered the bathroom and remained there for over two hours based on the defendant's intimidation and threat to use force if they did not cooperate where, immediately upon entering the victims' apartment, the defendant locked the door's deadbolt, then, a few minutes later, ripped the telephone out of the wall to prevent one of the victims from calling for help, pulled out a gun while standing only three or four feet away from the victims and, while displaying the weapon, said he "didn't want to hurt [them]," "made [them] go in the bathroom," and told them to stay there without making any noise until he said they could come out. Griffin v. Commonwealth, No. 0949-99-2, 2000 Va. App. LEXIS 264 (Ct. of Appeals Apr. 11, 2000).

Because kidnapping under Virginia law could be committed by deception, offense was not categorically crime of violence under 18 U.S.C.S. § 924(c) force clause, and thus, capital defendants' § 924(c) convictions stemming from commission of violent crimes in aid of racketeering activity based on kidnapping under Virginia law had to be vacated. United States v. Mathis, 932 F.3d 242, 2019 U.S. App. LEXIS 22742 (4th Cir. 2019).

Evidence held sufficient. - Evidence was sufficient to sustain the abduction and felony murder charges where defendant shackled an unclothed child to the floor of a bus for several weeks, where during that time the child was required to drink his own urine, eat his own feces and where child was subjected to body and head blows which caused his death. Diehl v. Commonwealth, 9 Va. App. 191, 385 S.E.2d 228 (1989).

Because mother was not entitled to custody of the children, and the father could and did entrust the care of the children to their grandparents, and mother broke into grandparents' home and took the children, the evidence was sufficient to sustain the jury's finding that the children were taken from one "lawfully entitled to their charge." Bennett v. Commonwealth, 8 Va. App. 228, 380 S.E.2d 17 (1989).

Where transporting of murder victim from robbery scene was a detention separate and apart from, and not merely incidental to, the robbery and was greater than the restraint intrinsic in a robbery, and further, the evidence clearly supported a finding that the abduction was committed to protect the fruits of the robbery and to escape an arrest, the evidence supported the charge of an abduction with the intent to extort a pecuniary benefit. Cardwell v. Commonwealth, 248 Va. 501 , 450 S.E.2d 146 (1994), cert. denied, 514 U.S. 1097, 115 S. Ct. 1826, 131 L. Ed. 2d 747 (1995).

Defendant's initial act of forcing the victims upstairs at knifepoint satisfies the elements of this crime. Wilson v. Commonwealth, 249 Va. 95 , 452 S.E.2d 669, cert. denied, 516 U.S. 841, 116 S. Ct. 127, 133 L. Ed. 2d 76 (1995).

Making victims get out of their car and onto ground during robbery and attempted robbery constituted the separate crime of abduction. Taylor v. Commonwealth, No. 0995-94-1 (Ct. of Appeals May 23, 1995).

The detention of the victim in this case was separate and apart from the robbery charge, and was sufficient to support a charge and conviction for abduction. Coward v. Commonwealth, No. 2631-94-2 (Ct. of Appeals April 2, 1996).

The evidence was sufficient for the trial judge to find beyond a reasonable doubt both that the defendant detained a boy and that he did so with the intent to deprive the boy of his personal liberty while the defendant's son, at the defendant's direction, assaulted the boy where several witnesses testified that the defendant restrained the boy on the ground while his son kicked the boy and one of the witnesses heard the defendant tell his son to kick the boy and testified that the defendant's son kicked the boy's head for approximately a minute while the defendant held the boy. Barfield v. Commonwealth, No. 1050-00-1, 2001 Va. App. LEXIS 75 (Ct. of Appeals Feb. 20, 2001).

Where defendant grabbed a 10-year-old girl by her wrists, victim told defendant to let her go, and defendant did not let go of her until she kicked him, abduction was upheld under this section. Moreno v. Commonwealth, No. 2237-98-4, 2000 Va. App. LEXIS 396 (Ct. of Appeals May 23, 2000).

When, in the course of a robbery of a restaurant cash register, defendant ordered a victim to move approximately 15 feet to lie down next to another victim, defendant was properly convicted of abduction because the victim's movement was not necessary to accomplish the robbery, and the victim's asportation and detention were not merely incidental to the restraint employed in the commission of the robbery. Ortega v. Commonwealth, No. 3394-01-1, 2003 Va. App. LEXIS 132 (Ct. of Appeals Mar. 11, 2003).

Because the evidence was sufficient to convict petitioner of abduction (the first abduction was accomplished through asportation by deception, and the second abduction occurred when the victim's body was carried out of the house, through the backyard to the fence, and dumped over the fence; in both acts of abduction petitioner acted, as a minimum, as a principal in the second degree), there was not a reasonable probability, under the Strickland prejudice prong, that there would have been a different outcome if petitioner's trial counsel had moved, at the close of evidence, to strike the evidence on the abduction charge. Jerman v. Dir., Dep't of Corr., 267 Va. 432 , 593 S.E.2d 255, 2004 Va. LEXIS 43 (2004).

Evidence that, after blocking the victim's path of escape, defendant personally detained the victim at gunpoint and forcibly moved him from the back of the tow truck into the truck cab by picking him up by his belt showed that defendant physically detained the victim, with the intent to deprive him of his personal liberty, using force and intimidation, thereby supporting a conviction for abduction. Walker v. Commonwealth, 47 Va. App. 114, 622 S.E.2d 282, 2005 Va. App. LEXIS 482 (2005).

Trial court's denial of defendant's motion to strike a jury instruction on abduction was proper where the evidence was sufficient to support a finding that he committed that crime by gaining control of the victim's vehicle, even if only for a short time, and driving in a direction other than where the victim wanted to go, and by his intent to deprive her of her personal liberty; defendant had flagged down a local mail carrier, gotten a ride to his allegedly dead car, and then he pulled a knife on the carrier, jumped into her vehicle, and engaged in a struggle with her while stabbing her. Ford v. Commonwealth,, 2006 Va. App. LEXIS 100 (Mar. 21, 2006).

Defendant's use of the victim's cell phone shortly after it was stolen and the undisputed DNA evidence establishing that DNA recovered from the victim matched defendant's DNA profile provided sufficient evidence to prove that defendant was the criminal agent who committed the crimes of forcible sodomy, abduction, robbery, and conspiracy to commit robbery. Hayden v. Commonwealth, No. 1042-05-2,, 2006 Va. App. LEXIS 275 (Ct. of Appeals June 27, 2006).

Evidence that defendant, armed with a handgun that he pointed against the victim's chest, lifted the victim in the air, moved the victim seven or eight feet, and "stuffed" the victim into the tow truck the victim was using to repossess defendant's vehicle, as the victim screamed and begged defendant to cease was sufficient to show that defendant deprived the victim of his liberty by using the handgun to prevent the victim from leaving during the detention and support defendant's conviction for abduction. Walker v. Commonwealth, 272 Va. 511 , 636 S.E.2d 476, 2006 Va. LEXIS 96 (2006).

Evidence that the victim reported the incident to the victim's husband as soon as the victim returned to their hotel room, reported it to the police after the victim discovered evidence identifying the assailant, and located several landmarks the victim had seen while defendant held the victim captive was sufficient to support convictions for carjacking, abduction, and robbery; based on defendant's display of a gun and defendant's bizarre behavior, the victim reasonably feared defendant would kill the victim, explaining the victim's failure to make a more determined attempt to escape. Corbin v. Commonwealth,, 2007 Va. App. LEXIS 359 (Oct. 2, 2007).

Conviction for abduction under § 18.2-47 , was supported by evidence that the infant was taken from the infant's father in order to facilitate the attempted robbery of the father; § 18.2-47 did not require that the force, intimidation, or deceit be directed at the infant or that the infant be aware of such conduct and resist it. Clanton v. Commonwealth, 53 Va. App. 561, 673 S.E.2d 904, 2009 Va. App. LEXIS 202 (2009).

Because defendant, a North Carolina bail bondsman, did not have authority pursuant to §§ 9.1-185.18 and 9.1-186.13 , to seize a fugitive or the victim, and the Commonwealth showed that defendant intended to abduct the fugitive, there was no legal justification for his actions and defendant's convictions for attempted abduction, a violation of §§ 18.2-26 and 18.2-47 , and use of a firearm in the commission of an attempted abduction, a violation of § 18.2-53.1 , were proper. Collins v. Commonwealth, 57 Va. App. 355, 702 S.E.2d 267, 2010 Va. App. LEXIS 480 (2010), aff'd, 283 Va. 263 , 720 S.E.2d 530, 2012 Va. LEXIS 17 (2012).

Defendant's convictions for robbery, abduction, and malicious wounding, were proper because the fact that he was not wearing a white coat did not negate a detective's reasonable suspicion that defendant was somehow involved in criminal activity. The trial court accepted the explanation that defendant had abandoned his coat as he fled. Diaz v. Commonwealth,, 2010 Va. App. LEXIS 417 (Oct. 26, 2010).

Evidence was sufficient to prove beyond a reasonable doubt that defendant was guilty of abduction because defendant both detained and asported the victim, defendant's wife, using force and without legal excuse. As the victim tried to leave the bedroom, defendant grabbed the victim and threw her on the bed. Defendant restrained the victim on the bed for several minutes despite the victim's repeated entreaties that defendant release the victim. Bradbury v. Commonwealth,, 2010 Va. App. LEXIS 421 (Nov. 2, 2010).

Defendant's convictions for robbery, abduction, and malicious wounding, were proper because the fact that he was not wearing a white coat did not negate a detective's reasonable suspicion that defendant was somehow involved in criminal activity. The trial court accepted the explanation that defendant had abandoned his coat as he fled. Diaz v. Commonwealth,, 2010 Va. App. LEXIS 417 (Oct. 26, 2010).

Evidence was sufficient to support the trial court's finding that defendant abducted a victim, as defendant's attempt to remove the victim from a register kiosk in the front of a convenience store was legally sufficient to constitute a detention, and thus an abduction. Ellis v. Commonwealth,, 2012 Va. App. LEXIS 92 (Mar. 27, 2012).

Trial court did not err in finding that the evidence proved beyond a reasonable doubt that defendant acted as a principal in the second degree to use of a firearm in the commission of a robbery and abduction as the evidence showed that defendant aided in the commission of and shared the main actor's intent to rob a clothing retail store during normal business hours, where he was likely to encounter both store employees and customers. The evidence showed that defendant transported the main actor to and from the immediate area where he committed the robbery and abduction; that defendant remained in her SUV at a nearby apartment complex, where neither she nor the main actor lived, when the main actor departed the vehicle to commit the robbery; that she tried to assist him in eluding police, and that she tried to provide him with an alibi when questioned about the offenses, and that she gave false and contradictory statements to officers when questioned about her part in the robbery. Wade v. Commonwealth, No. 2115-11-2,, 2012 Va. App. LEXIS 161 (Ct. of Appeals May 15, 2012).

Although no witness was able to identify defendant by facial recognition, as the robber was wearing a mask during the robbery, there was sufficient evidence to convict defendant of abduction during a robbery where the surveillance camera photographs showed the robber wearing a dark, hooded jacket or sweatshirt of some type, with a tag or label on the lower left front side, as well as distinctively marked gloves, the store owner testified that defendant's height was about the same as the height of the robber and the robber was African-American, as was defendant, a police officer later encountered defendant wearing a dark jacket, zipped up, with a knit cap on his head and the hood of his jacket pulled over his head, with a tag or label on the lower left front side, and the officer discovered a pair of gloves and a handgun lying on the ground in a haphazard fashion, as if someone had quickly or carelessly tossed them there, defendant's DNA profile was consistent with that found on the gloves, and the gloves had the same color and distinctive markings as the gloves worn by the robber. Spence v. Commonwealth, 60 Va. App. 355, 727 S.E.2d 786, 2012 Va. App. LEXIS 221 (2012).

Conviction for abduction under § 18.2-47 was supported by the fact that nearly all of the elements of abduction occurred entirely before the assault and battery began and that defendant could have committed assault and battery without first detaining the victim in the bathroom but instead, defendant blocked only exit while he questioned the victim. Breland v. Commonwealth,, 2012 Va. App. LEXIS 307 (Oct. 2, 2012).

Sufficient evidence supported defendant's conviction for abduction under subsection A of § 18.2-47 where: (1) the victim testified that she was scared because she did not know what was going to happen and did not know when defendant's rage was going to return; (2) it could be inferred that defendant, by force or intimidation, intended to and did prevent the victim from leaving the home against her will when he took off her clothes, refused to seek help after rendering her helpless, insisted on holding her, and disabled or hid the telephones; and (3) the abduction conduct occurred after the malicious wounding, was separate from the malicious wounding and was not merely incidental to it. Chatman v. Commonwealth, 61 Va. App. 618, 739 S.E.2d 245, 2013 Va. App. LEXIS 98 (2013).

Evidence was sufficient to support defendant's conviction for abduction because the evidence was sufficient for a rational fact finder to conclude that defendant demonstrated the necessary intent to restrict the victim's personal liberty when defendant lunged at and grabbed the victim, pushed the victim back into the backseat of the victim's parked car, and struggled with the victim until defendant desisted and fled on foot when the victim's sibling arrived in response to the victim's screaming. Lozano-Bolanos v. Commonwealth,, 2014 Va. App. LEXIS 120 (Apr. 1, 2014).

Trial court did not err by finding that defendant committed the underlying offense of abduction of the child victim because the evidence was sufficient to prove that defendant, who was noticeably intoxicated, grabbed the wrist of the victim, whom defendant did not know, pulled the victim toward defendant's bicycle, told the victim they were going to take a ride, and informed the victim that defendant was not coming back, before the victim was pulled from defendant. Manning v. Commonwealth,, 2014 Va. App. LEXIS 136 (Apr. 8, 2014).

Defendant abducted the victim, with whom defendant was living in a townhouse, in that defendant, during a domestic disturbance, would not allow the responding police officers to enter the townhouse and prevented the victim, who could not walk because the victim had broken her ankle in a car wreck and wore a non-weight bearing boot, from leaving the townhouse. Keyes v. Commonwealth,, 2014 Va. App. LEXIS 256 (July 8, 2014).

Evidence was sufficient to convict defendant of abduction because defendant's violent entry into the house and the bedroom by kicking in the doors, the time he gained entry at 4:00 am, his intimidating pose of standing over top of the victim while she was sitting on the floor, and his guiding the victim out of the house by placing his hand on her head all combined to frighten the victim into leaving her house against her will in defendant's company, thus depriving her of her personal liberty. Norman v. Commonwealth, No. 1058-14-1, 2015 Va. App. LEXIS 131 (Apr. 14, 2015).

Where the defendant, who was appealing the revocation of his probation, argued that the testimony was insufficient to establish the elements of the Virginia offense of abduction, in light of his failure to fully stop the car, testimony regarding one victim's frantic demeanor, and the victims' inability to leave the vehicle safely, defendant's conduct constituted a use of force or intimidation adequate to support a charge of abduction. United States v. Sadeghi, 616 Fed. Appx. 607, 2015 U.S. App. LEXIS 11559 (4th Cir. 2015).

Sufficient evidence supported defendant's conviction for conspiracy to commit abduction because the evidence showed defendant agreed with others to force a victim to return to a hotel to resume committing prostitution. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Evidence held insufficient. - Evidence failed to establish that defendant detained his children and his father with the intent to deprive each of his or her personal liberty in violation of subsection A of § 18.2-47 because the children and father were able to move around the house and were able to leave the house with little interference from the defendant. Herring v. Commonwealth, No. 1430-12-3, 2013 Va. App. LEXIS 123 (Ct. of Appeals Apr. 16, 2013).

Evidence was insufficient to support defendant's conviction for abduction, because defendant's ex-girlfriend expressly testified that she was not scared of defendant during their argument and she chose to stay in the vehicle to try to keep the fight from being a big ordeal or a big scene, which did not amount to a fear of bodily harm that was induced by defendant's domination that overbore her will. Lunceford v. Commonwealth, No. 1234-15-1, 2016 Va. App. LEXIS 281 (Oct. 25, 2016).

Failure to preserve legal justification argument for appeal. - Defendant failed to preserve for appeal his argument that his alleged abduction of a victim in violation of § 18.2-47 was legally justified since he was acting in self-defense because he did not make that argument to the trial court, but instead, his counsel argued just the opposite to the trial court in summation, that defendant used no force against the victim; the court of appeals would not consider defendant's justification/self-defense argument under the ends of justice exception to Rule 5A:18 because defendant failed to establish any grave injustice or denial of essential rights implicated by his convictions. Stone v. Commonwealth,, 2010 Va. App. LEXIS 414 (Oct. 26, 2010).

Double jeopardy. - Because the two statutes require proof of additional facts, and they therefore constitute two distinct offenses, the double jeopardy clause was not offended by defendant's convictions under this section and § 40.1-103 . Long v. Commonwealth, No. 0399-95-1, 1995 Va. App. LEXIS 874 (Ct. of Appeals Dec. 5, 1995).

Where the acts constituting abduction and carjacking were separate and distinct, double jeopardy did not attach; however, where defendant's abduction sentence exceeded the maximum, it had to be reduced. Barron v. Commonwealth, No. 1798-02-3, 2003 Va. App. LEXIS 358 (Ct. of Appeals June 24, 2003).

Jury instructions. - Under the instruction given in petitioner's case, the evidence proved abduction by deception before the assault and abduction by force after the assault. Neither involved the restraint or force inherent in the act of murdering the victim, and that restraint was the subject of the instruction proposed by petitioner. Jerman v. Dir., Dep't of Corr., 267 Va. 432 , 593 S.E.2d 255, 2004 Va. LEXIS 43 (2004).

Defendant's request that the trial court instruct the jury that if the detention of the victim was incidental to an assault, defendant could not be guilty of abduction, was properly denied as defendant followed the victim after she fled from the car and grabbed her, which was not incidental to the malicious wounding charge based on the restraint defendant used at the time he bit off the victim's finger, before she fled. Lewis v. Commonwealth, No. 1770-03-2, 2004 Va. App. LEXIS 296 (Ct. of Appeals June 29, 2004).

Where a defendant is charged with both abduction and another crime, such as rape or assault, arising out of the same criminal episode, as the requirement that the restraint involved in the abduction be separate and apart from the restraint involved in the other offense is not an element of the crime of abduction, the jury does not have to be instructed on this matter. Anderson v. Commonwealth,, 2006 Va. App. LEXIS 555 (Dec. 12, 2006).

As a trial court found as matter of law that the evidence was sufficient for the jury to consider both the crime of abduction and of assault and battery, it was not obliged to instruct the jury about the test for determining whether the abduction was merely incidental to the assault and battery. Anderson v. Commonwealth,, 2006 Va. App. LEXIS 555 (Dec. 12, 2006).

Since Blakely applies to increases of the penalty for a crime beyond the prescribed maximum, not the penalty for a course of conduct, a trial judge's refusal to instruct the jury on the possible merger of charges of abduction and assault and battery did not violate defendant's Sixth Amendment right to a jury trial. Anderson v. Commonwealth,, 2006 Va. App. LEXIS 555 (Dec. 12, 2006).

Trial court properly refused to give defendant's requested instructions on the merger of charges of abduction and assault and battery, as the question whether the abduction was incidental to the assault and battery was a question of law, and the trial court determined that the evidence was sufficient to go to the jury on both charges. Mawyer v. Commonwealth,, 2006 Va. App. LEXIS 554 (Dec. 12, 2006).

Sentencing. - Defendant's 20-year sentence for abduction surpassed the mandatory statutory maximum of 10 years, and therefore it was void ab initio. Fletcher v. Commonwealth, 72 Va. App. 493, 849 S.E.2d 594, 2020 Va. App. LEXIS 275 (2020).

Relationship with federal sentencing. - Fact that defendant was ultimately convicted of only misdemeanors had no bearing on the district court's finding of a Grade A violation; defendant was charged under Virginia law with abduction and malicious wounding, both felonies punishable by a year or more in prison. These crimes met the requirements of U.S. Sentencing Guidelines Manual § 7B1.1(a)(1)(A), Pol'y Statement, in that they were state crimes of violence punishable by more than one year's imprisonment; thus, they constituted Grade A violations. United States v. Washington, 336 Fed. Appx. 343, 2009 U.S. App. LEXIS 14801 (4th Cir. 2009).

District court properly denied defendant relief on his ineffective assistance of counsel claim because relevant precedent at time of defendant's 2013 sentencing did not strongly suggest that Virginia abduction conviction was not predicate crime of violence for purposes of career offender United States Sentencing Guideline, so counsel's failure to raise that argument did not constitute deficient performance under Strickland. United States v. Morris, 917 F.3d 818, 2019 U.S. App. LEXIS 6986 (4th Cir. 2019).

Applied in Pearson v. Commonwealth, 221 Va. 936 , 275 S.E.2d 893 (1981); Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011); Alston v. Commonwealth,, 2015 Va. App. LEXIS 207 (June 30, 2015).

CIRCUIT COURT OPINIONS

Biological mother's abduction of child who had been adopted. - Defendant, the biological mother of the victim, who had been adopted, abducted the victim when she contacted the victim's school purporting to be the victim's adoptive grandmother and indicated that the victim was sick and could not attend school, and the victim could not consent because it was the determination of his adoptive parents that he attend school. Commonwealth v. Woyciechowski, 104 Va. Cir. 98, 2020 Va. Cir. LEXIS 1 (Madison County Jan. 4, 2020).

Evidence held insufficient. - Evidence that defendant stood in front of a door and temporarily prevented a woman from leaving her house by using that door did not prove that defendant seized, took, transported, detained, or secreted the woman by force, threat, intimidation, or deception, and was not sufficient to prove abduction, in violation of § 18.2-47 . Commonwealth v. Harrington,, 2002 Va. Cir. LEXIS 268 (Newport News June 11, 2002).

§ 18.2-48. Abduction with intent to extort money or for immoral purpose.

Abduction (i) of any person with the intent to extort money or pecuniary benefit, (ii) of any person with intent to defile such person, (iii) of any child under sixteen years of age for the purpose of concubinage or prostitution, (iv) of any person for the purpose of prostitution, or (v) of any minor for the purpose of manufacturing child pornography shall be punishable as a Class 2 felony. If the sentence imposed for a violation of (ii), (iii), (iv), or (v) includes a term of confinement less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant's life subject to revocation by the court.

(Code 1950, § 18.1-38; 1960, c. 358; 1966, c. 214; 1975, cc. 14, 15; 1993, c. 317; 1997, c. 747; 2006, cc. 853, 914; 2011, c. 785.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

For definition of "barrier crime" as including a conviction of abduction for immoral purposes as set out in § 18.2-48 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including abduction for immoral purposes as set out in § 18.2-48 , or an equivalent offense in another state, see § 63.2-1726 .

The 1997 amendment added the (i), (ii), and (iii) designations to the section, deleted "abduction" following "pecuniary benefit" in clause (i), and deleted "and abduction" following "defile such person" in clause (ii).

The 2006 amendments. - The 2006 amendments by cc. 853 and 914 are identical, and added the last two sentences.

The 2011 amendments. - The 2011 amendment by c. 785, in the first sentence, added "of any person" in (i), added (iv) and (v) and inserted "punishable as" near the end; and in the second sentence, substituted "(ii), (iii), (iv), or (v)" for "(ii) or (iii)."

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abduction and Kidnapping, §§ 1, 3; 5B M.J. Criminal Procedure, § 80; 9B M.J. Homicide, § 17; 15 M.J. Rape and Other Sexual Offenses, § 27.

CASE NOTES

Legislative intent. - Legislative intent of § 18.2-126 is to protect the sanctity of both a burial place and a dead body, wherever situated, and that is not the same intent encompassed in § 18.2-48 ; the meaning of defile in subsection B of § 18.2-126 is not limited to the meaning of defile in § 18.2-48 . Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

The clear purpose of this section is to punish more severely those who abduct with the intent to effectuate the taking of money or its equivalent. Newson v. Commonwealth, No. 1498-90-1 (Ct. of Appeals July 30, 1991).

Offense under § 18.2-47 included in offense under this section. - The offense defined in § 18.2-47 is an offense lesser-included in the offense defined in this section. Hawks v. Commonwealth, 228 Va. 244 , 321 S.E.2d 650 (1984).

Specific intent. - The distinguishing feature between the offenses of abduction "with the intent to deprive such other person of his personal liberty" and abduction "with intent to defile" is the specific intent entertained by the accused. McKinley v. Commonwealth, 217 Va. 1 , 225 S.E.2d 352 (1976)(decided under former §§ 18.1-36 and 18.1-38).

Pecuniary benefit. - The term "pecuniary benefit" means not only money, but everything that can be valued in money. Griffin v. Commonwealth, No. 0949-99-2, 2000 Va. App. LEXIS 264 (Ct. of Appeals Apr. 11, 2000).

Although the evidence supported multiple hypotheses regarding the defendant's intent at the time of the abduction, all involved the intent to obtain a pecuniary benefit - by intending to steal something the defendant found while looking through closets and cabinets in the victims' apartment, by taking the car operated by a key he duplicated or by duplicating a key to the bank where one of the victims worked in order to rob or facilitate a subsequent bank robbery; in light of this evidence and the absence of any evidence of a prior relationship between the defendant and the victims or any other motive for their abduction, the trier of fact was entitled to conclude that the defendant did not act merely to deprive the victims of their personal liberty. Griffin v. Commonwealth, No. 0949-99-2, 2000 Va. App. LEXIS 264 (Ct. of Appeals Apr. 11, 2000).

The statutory element is the intent to extort money or obtain a pecuniary benefit; it is not necessary that the criminal actually succeed in realizing his or her desired gain. Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988).

Physical detention of a person, with intent to deprive him of his personal liberty, by force, intimidation, or deception, without any asportation of the victim from one place to another, is sufficient to support a conviction of abduction. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

Either one of two intents is criminal; the "intent to extort money, or pecuniary benefit." There may be an intent to extort money, or the offender may otherwise intend to benefit himself pecuniarily; either is sufficient. Krummert v. Commonwealth, 186 Va. 581 , 43 S.E.2d 831 (1947).

Use of hostage to escape robbery scene. - Where defendants, by using a hostage as a shield and by threatening to "blow him away," safely left the scene of a robbery with stolen money and drugs, they acted with intent to extort or acquire pecuniary benefit for themselves. Cortner v. Commonwealth, 222 Va. 557 , 281 S.E.2d 908 (1981).

Abduction as means of committing robbery. - Abducting a person as a means of gaining access to the scene or otherwise facilitating the commission of an intended robbery violates the statute. Barnes v. Commonwealth, 234 Va. 130 , 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S. Ct. 763, 98 L. Ed. 2d 779 (1988).

In a case involving defendant's conviction for abduction with the intent to extort money and using a firearm in the commission of a felony, because the victims' detention was no greater than that necessary to carry out two armed robberies of restaurants, the detentions were incidental to, rather than separate and apart from, the underlying robberies. Neither of the victims was forced to move a significant distance, walking instead from one area of the restaurant to another, and neither of the victims was detained for a significant length of time. Wiggins v. Commonwealth, 47 Va. App. 173, 622 S.E.2d 774, 2005 Va. App. LEXIS 507 (2005).

Defendant was properly convicted, as a principal in the second degree, of two counts of abduction, three counts of robbery, and five counts of use of firearm in commission of a felony because, while defendant remained in the "get away" vehicle, a cook and a waitress were grabbed and forced into an office and three employees, two assistant managers and a waitress were each subjected to violence and intimidation to accomplish the goal of obtaining the money from a safe. Harper v. Commonwealth, No. 0319-16-1, 2016 Va. App. LEXIS 328 (Ct. of Appeals Dec. 6, 2016).

Trial court properly denied defendant's motion to strike an abduction charge as incidental to a robbery charge because defendant did not need to move the victim underneath a stairwell to a darkened alcove to take his possessions and doing so exceeded the minimum restraint necessary to complete the robbery. Conyers v. Commonwealth, No. 1635-15-2, 2016 Va. App. LEXIS 362 (Ct. of Appeals Dec. 20, 2016).

A conviction for abduction in connection with a robbery requires proof of a detention greater than the restraint that is intrinsic in a robbery. Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000).

Abduction not incidental to other crimes. - Defendant's conviction for abduction was not incidental to animate object sexual penetration, § 18.2-67.2 , and taking indecent liberties with a minor, § 18.2-370 , and was a separate offense, as the victim testified that he grabbed her as she tried to leave the room and tricked her into leaving the bathroom and into entering his bedroom; neither of these acts was inherent in the commission of object sexual penetration or taking indecent liberties with a minor. Dade v. Commonwealth, No. 2042-02-1, 2003 Va. App. LEXIS 368 (Ct. of Appeals June 24, 2003).

Defendant's claim that he did not abduct a victim because the detention was incidental to the restraint employed in a rape was not preserved for appeal; the victim testified that defendant grabbed her wrists and pulled her to a bedroom, and those actions were not inherent to the commission of rape or forcible sodomy, defendant failed to establish than an element of the offense did not occur. Payne v. Commonwealth, No. 0678-03-1, 2004 Va. App. LEXIS 135 (Ct. of Appeals Mar. 30, 2004).

In a case involving defendant's conviction for abduction with the intent to extort money and using a firearm in the commission of a felony, the degree of restraint used in an abduction during a robbery of a restaurant was greater than, rather than incidental to, the restraint inherent in the underlying robbery. During this incident the victim was forced to walk a total of thirty-one feet, and by giving additional directions defendant exercised a great degree of control over the victim and her exact movements. Wiggins v. Commonwealth, 47 Va. App. 173, 622 S.E.2d 774, 2005 Va. App. LEXIS 507 (2005).

Defendant, who abducted two victims when he entered their offices and ordered them at gunpoint to follow him to the reception area, did not demand money from them during the detention. The detention was not inherent in defendant's attempted robbery of the victims. Freeman v. Commonwealth,, 2014 Va. App. LEXIS 157 (Apr. 29, 2014).

Facts were sufficient to show that abduction or detention was separate from the sexual offenses, as a child abuse pediatrician described the victim's bruises as blunt force trauma caused by adult fingers pressing down on the victim with sufficient force to break the blood vessels under the skin, the pediatrician opined that such bruising was typically seen in children when an adult forcefully grabbed or held down a child, and the bruising sustained by victim was unnecessary to perform a sex act. Maurice v. Commonwealth, No. 0644-15-1, 2016 Va. App. LEXIS 270 (Ct. of Appeals Oct. 18, 2016).

Trial court did not err in denying defendant's motion to strike, as evidence that defendant forced the victim into a bathroom against her will through the use of physical force, if believed by the jury, was sufficient to support a separate conviction for abduction with intent to defile, as such movement was not necessary to accomplish the rape and sodomy. Vay v. Commonwealth, 67 Va. App. 236, 795 S.E.2d 495 (2017).

Trial court correctly concluded that the evidence presented by the Commonwealth, if believed by the jury, was sufficient to support separate convictions for abduction with the intent to defile and the aggravated sexual battery offenses. The trial court correctly held that the abduction was not inherent in the other crimes and it could proceed to the jury as a separately charged offense. Lydon v. Commonwealth, No. 1436-18-4, 2020 Va. App. LEXIS 212 (July 21, 2020).

Multiple victims. - Trial court did not err in denying defendant's motions to strike the charge of abduction for pecuniary benefit of one victim, under § 18.2-48 , because the abduction was not merely incidental to the robbery, under § 18.2-58 , as the victim of the abduction and the victim of the robbery were two separate persons. El-Shabazz v. Commonwealth,, 2012 Va. App. LEXIS 99 (Apr. 3, 2012).

Terms "sexually molest" and "defile" are interchangeable within the meaning of this section. Fitzgerald v. Commonwealth, 223 Va. 615 , 292 S.E.2d 798 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 469 (1983), rehearing denied, 460 U.S. 1105, 103 S. Ct. 1809, 76 L. Ed. 2d 371 (1983).

Attempted rape and abduction with intent to defile compared. - Attempted rape includes the intent to engage in sexual intercourse with a female victim, whereas abduction with intent to defile requires an intent to sexually molest a victim of any sex. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

The elements of the offense of abduction with intent to defile are separate and distinct from the elements of attempted rape. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

Abduction and attempted rape as separate crimes. - It could not be said as a matter of law that the evidence was insufficient to support a conviction for abduction with intent to defile, where when defendant grabbed the victim, he transported her from a location that was lighted and visible to one out of sight of potential passersby or others, as defendant's asportation of the victim substantially increased the risk of harm to the victim by decreasing the possibility of detecting his criminal activity, and as, moreover, asportation to decrease the possibility of detection is not an act inherent in or necessary to the restraint required in the commission of attempted rape. Thus, the jury could reasonably infer that the abduction was separate and apart from, and not merely incidental to the crime of attempted rape. Accordingly, multiple punishments for defendant's abduction and attempted rape of victim did not offend the double jeopardy guarantee. Coram v. Commonwealth, 3 Va. App. 623, 352 S.E.2d 532 (1987).

Evidence sufficient to prove abduction was separate and distinct from restraint inherent in rape. - Evidence was sufficient to prove as a matter of law that defendant's abduction, detention of the victim was separate and distinct from the restraint inherent in the commission of the crimes of rape and forcible sodomy; accordingly, defendant's conviction for abduction with intent to defile was affirmed. Defendant clearly restricted the victim's liberty, with the intent to defile the victim, by the use of force far in excess of that inherent in the commission of rape and sodomy where defendant twice choked the victim to the point of unconsciousness; those acts substantially increased the risk of harm to the victim. Fields v. Commonwealth, 48 Va. App. 393, 632 S.E.2d 8, 2006 Va. App. LEXIS 312 (2006).

Conviction for abduction with the intent to defile was supported by sufficient evidence to prove defendant's asportation and detention of the victim within her home. The abduction-detention and abduction-asportation of the victim were factually distinct from the restraint inherent in the perpetration of the rape as defendant forced the victim to walk with him through her house twice, he threw her on the bed and slice her arm and finger with a knife, and then he sexually assaulted her. Morales v. Commonwealth,, 2010 Va. App. LEXIS 452 (Nov. 16, 2010).

Trial court record showed defendant was arraigned. - Court affirmed defendant's conviction for abduction because, in spite of defendant's argument to the contrary, the trial court's jury trial order clearly stated that defendant was arraigned and entered a plea of not guilty on the abduction charge and defendant failed to rebut the presumptive verity of the jury trial order. Lewis v. Commonwealth,, 2006 Va. App. LEXIS 485 (Oct. 31, 2006).

No error in denying motion to withdraw guilty plea. - Trial court did not err in refusing defendant's motion to withdraw his guilty plea to abduction with intent to defile because defendant failed to establish a good faith basis for seeking to withdraw his plea and to proffer evidence of a reasonable basis for contesting guilt, and defendant knew, prior to entering his plea, exactly what his sentence was going to be and that it would run concurrent to his sentence in an earlier case; the defense proffer failed to mention anything about defendant touching the victim's clothing over her vagina, an act which defendant admitted to during police questioning. Williams v. Commonwealth, 59 Va. App. 238, 717 S.E.2d 837, 2011 Va. App. LEXIS 392 (2011).

Evidence admitted in violation of Confrontation Clause. - Admission at trial of a murder victim's affidavit in support of her request for a protective order against defendant, her husband, violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, and the error was not harmless because in it she swore he had threatened and raped her; therefore, his convictions for rape under § 18.2-61 , abduction with the intent to defile under § 18.2-48 , use of a firearm during the commission of an abduction, and capital murder, which was predicated on the former three offenses, were unconstitutional as well as based on insufficient evidence. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Admission of an abuse affidavit into evidence, although violative of defendant's U.S. Const., Amend. VI right to confrontation, was harmless beyond a reasonable doubt for convictions for capital murder, abduction with intent to defile, rape, grand larceny, and two counts of use of a firearm, where the evidence was sufficient to support the convictions absent the affidavit. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Testimony from caller ID device not inadmissible hearsay. - In trial of simple abduction, testimony regarding what was displayed on caller ID device did not constitute inadmissible hearsay because the caller ID display was based on computer generated information and not simply the repetition of prior recorded human input or observation. Tatum v. Commonwealth, 17 Va. App. 585, 440 S.E.2d 133 (1994).

Evidence sufficient to sustain conviction. - The evidence showed that the accused took deceased with him under such circumstances as amounted to fraud and coercion on his part, and for the purpose of pecuniary benefit, and the same was, therefore, sufficient to sustain a conviction under the statute. Kent v. Commonwealth, 165 Va. 840 , 183 S.E. 177 (1936).

Trial court reasonably concluded from the evidence that defendant's beating of the victim, his demand for more money, the victim's fear of another beating, and defendant's taking the victim to his residence to obtain more money proved beyond a reasonable doubt that defendant abducted the victim with the intent to extort pecuniary benefit. Robinson v. Commonwealth, No. 1169-03-1, 2004 Va. App. LEXIS 317 (Ct. of Appeals July 6, 2004).

Because defendant and two others moved the victims' children to another room after spraying all the victims with pepper spray, the evidence was sufficient to find that the children were abducted in violation of subdivision 1 of § 18.2-48 to facilitate a robbery or to minimize their interference with the robbery and the getaway. Gonzalez-Tenas v. Commonwealth,, 2005 Va. App. LEXIS 430 (Nov. 1, 2005).

Evidence, when viewed in the light most favorable to the Commonwealth, supported the jury's verdicts that defendant was guilty of abduction to extort money for pecuniary benefit in violation of § 18.2-48 and use of a firearm during the commission of a felony in violation of § 18.2-53.1 because the jury, as it was entitled to do, ostensibly disregarded some of the testimony from the Commonwealth's witnesses; defendant pointed a handgun at the victim and demanded money, the victim's boyfriend gave defendant money after an initial attempt to obtain money from the victim's brother failed, over the course of the next two hours, defendant accompanied the victim to numerous locations in an attempt to obtain more money, and numerous witnesses testified on behalf of the Commonwealth confirming the victim's allegations. Brown v. Commonwealth,, 2009 Va. App. LEXIS 575 (Dec. 22, 2009).

Defendant's convictions for abduction with intent to defile, in violation of § 18.2-48 , and attempted rape, in violation of §§ 18.2-26 and 18.2-61 , were proper because the trial court did not err in finding the facts sufficient to show the abduction or detention was separate and apart from, rather than incidental to, the attempted rape. The evidence showed the detention by deception posed an additional danger to the victim, was accomplished before the attempted rape, and was not intrinsic to or inherent in the separate offense. Smith v. Commonwealth, 56 Va. App. 711, 697 S.E.2d 14, 2010 Va. App. LEXIS 336 (2010).

Defendant's convictions for abduction with intent to defile, in violation of § 18.2-48 , and attempted rape, were proper because the jury heard the victim's conflicting accounts and in its role as factfinder, it alone was entitled to judge credibility given the discrepancy and assign her testimony what weight it deemed appropriate. Moreover, the officer's testimony and the victim's own actions corroborated the remainder of the victim's account of the incident; the victim immediately notified her mother and a friend about the incident. Smith v. Commonwealth, 56 Va. App. 711, 697 S.E.2d 14, 2010 Va. App. LEXIS 336 (2010).

Evidence was sufficient to sustain defendant's conviction for abduction with intent to defile, in violation of § 18.2-48 , where the victim, defendant's wife, had previously obtained a protective order, the victim failed to report to work despite telling a supervisor what time she would report, the victim had plans for a hair appointment and a date with another man on the day that she disappeared, the driver's side window of the victim's car was broken, and the victim was found dead in a motel room, her body positioned in a particularly gruesome and suggestive manner. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Commonwealth's evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt attempted rape and abduction with intent to defile, because jury believed the victim's version of what happened and the Commonwealth's evidence and rejected defendant's version of those events, and the jury was permitted to consider defendant's prior felony convictions in assessing his credibility; the victim testified that defendant held her down, partially removed her pants, exposed his penis, pulled out a knife, and repeatedly threatened to kill the victim. Gay v. Commonwealth,, 2011 Va. App. LEXIS 134 (Apr. 19, 2011).

Evidence was sufficient to support defendant's conviction for abduction with intent to defile as defendant physically detained the victim by force when he handcuffed her, and his subsequent actions and his statements were sufficient to show his intent to sexually molest the victim. Dillingham v. Commonwealth,, 2011 Va. App. LEXIS 184 (2011).

Evidence was sufficient to support the trial court's finding that defendant abducted a victim within the meaning of § 18.2-48 , as defendant's attempt to remove the victim from a register kiosk in the front of a convenience store was legally sufficient to constitute a detention, and thus an abduction. Ellis v. Commonwealth,, 2012 Va. App. LEXIS 92 (Mar. 27, 2012).

Sufficient evidence supported defendant's conviction of abduction with intent to defile, as he used force to prevent the victim from continuing her run and wrapped his arms around her, such that she could not move, which showed that defendant intended to deprive the victim of her personal liberty; furthermore, defendant intended to sexually molest the victim because he intentionally put his hand on her breast and left it there, and defendant's use of force and restraint of the victim was separate, yet interrelated, to the sexual assault. Billow v. Commonwealth,, 2017 Va. App. LEXIS 214 (Aug. 22, 2017).

Evidence was sufficient to convict defendant of abduction with intent to defile and aggravated sexual battery, as the inconsistencies and contradictions in the victim's testimony did not render that testimony inherently incredible. Salmeron v. Commonwealth,, 2017 Va. App. LEXIS 213 (Aug. 22, 2017).

Evidence that defendant and a co-conspirator drove to the victim's house and confronted the victim about an outstanding drug debt, defendant threatened to "smoke" the victim, the co-conspirator made a threat and displayed a handgun, and taking the victim away from the house was sufficient to support defendant's conviction for abduction for pecuniary gain. Livingston v. Commonwealth, No. 0888-17-1, 2018 Va. App. LEXIS 154 (June 5, 2018).

Evidence sufficient to support conviction as principal in the second degree. - There was sufficient evidence to support defendant's conviction as a principal in the second degree, pursuant to § 18.2-18 , of abduction and felony murder, in violation of §§ 18.2-48 and 18.2-32 , where he and others lured the victim to a co-defendant's home with the purpose of robbing the victim of drugs and money, they restrained the victim while attempting to determine the whereabouts of the drugs, walked him out to the trunk of his car, drove him away, and fatally shot him; although there was blood in the house, the fact that the victim was "walked" outside to his car and that he "squirmed like a worm" when he was shot supported the finding that he was not killed in the house and accordingly, that defendant participated in abducting defendant while he was still alive. Brooks v. Commonwealth, No. 1629-03-2, 2004 Va. App. LEXIS 284 (Ct. of Appeals June 15, 2004).

Sufficient evidence of sexual motive. - Evidence in the instant case proved that appellant had a sexual motive the evening of the child's disappearance as opposed to any other motive. He spent much of his time at the Christmas party standing alone staring at women, including the child's mother. When he talked to male at the party, he talked about sexual infidelity and pointed out women who sexually attracted him and he also asked two women to leave the party with him. From all of this, the jury could believe that appellant was sexually focused up until he abducted the child. Hughes v. Commonwealth, 18 Va. App. 510, 446 S.E.2d 451 (1994).

Evidence sufficient to show intent to defile. - The fact that appellant abducted a five-year-old female child who was a stranger to him and who has never been heard from since, when no other purpose reasonably flows from the evidence, supports the inference that his abduction was with the intent to defile the child. When the circumstances surrounding the abduction are considered, appellant's inexplicable guilt-implying behavior and comments to the police, and his general attitude after the abduction, the jury's finding that he abducted the child with the intent to defile her is amply supported by credible evidence. Hughes v. Commonwealth, 18 Va. App. 510, 446 S.E.2d 451 (1994).

A defendant's intent to abduct and defile a 14-year-old girl could fairly be inferred from the evidence that he had just abducted, raped, and sodomized that girl's companion at the time he told the companion to call the other girl to the door of his house and, when the other girl approached the door, the defendant attempted to seize the other girl by the strap of her bib shorts and pull her inside; such circumstantial evidence sufficed to show intent and the defendant's act of grabbing the girl's shoulder strap also constituted a direct, ineffectual act toward the completion of the crime of abduction, an act that failed only because the strap broke and the girl was able to flee. Brown v. Commonwealth, 33 Va. App. 296, 533 S.E.2d 4, 2000 Va. App. LEXIS 626 (2000).

Circumstantial evidence was sufficient to show defendant abducted a victim with the intent to defile the victim, as surveillance footage plainly demonstrated defendant's active attempt to remove the victim from a convenience store register kiosk, and given defendant's prior statement that defendant wanted to "mess around" with the victim in the back room, the reasonable inference from defendant's acts was that defendant was attempting to take the victim to a more secluded area of the convenience store so that defendant might carry out defendant's lascivious desire by force. Ellis v. Commonwealth,, 2012 Va. App. LEXIS 92 (Mar. 27, 2012).

Evidence supported defendant's conviction for abduction with the intent to defile, in violation of §§ 18.2-47 , 18.2-48 , and 18.2-67.5:3 , because defendant lured the victim to a house and proceeded to force himself onto the victim once the victim manifested the victim's discomfort with defendant's advances and attempted to leave. Defendant's conduct and statements to the victim supported the conclusion that the abduction that preceded the rape was effected with the intent to defile. Shepperson v. Commonwealth,, 2012 Va. App. LEXIS 329 (Oct. 16, 2012).

Trial court erred by convicting defendant of abduction with intent to defile because, while there was evidence that defendant committed the underlying offense of abduction of the child victim, as defendant grabbed the wrist of the victim, pulled the victim toward defendant's bicycle, and said they were going for a ride, before the victim was pulled from defendant, there was no evidence establishing that defendant intended to engage in sexual acts with the victim. Manning v. Commonwealth,, 2014 Va. App. LEXIS 136 (Apr. 8, 2014).

Evidence of attempted escape. - It was not an abuse of discretion to permit the admission of evidence of defendant's attempted escape to show consciousness of guilt as to the rape and abduction with intent to defile charges, even though he was also incarcerated at the time of the attempted escape on two other charges. Leonard v. Commonwealth, 39 Va. App. 134, 571 S.E.2d 306, 2002 Va. App. LEXIS 657 (2002), cert. denied, 540 U.S. 989, 124 S. Ct. 479, 157 L. Ed. 2d 384 (2003).

Instruction as to attempted rape. - Even if the proof adduced at defendant's trial for abduction with intent to defile was sufficient to show that a rape was attempted, defendant was not entitled to an instruction on the offense of attempted rape, with which he was not specifically charged, as it was not a necessarily included lesser offense of the crime with which he was charged. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

Sentence appropriate. - Defendant's sentences after he pled guilty to rape, in violation of § 18.2-61 , and two counts of abduction with intent to defile, in violation of § 18.2-48 , were appropriate because the circuit court did not base his three life sentences on a prior molestation investigation, but on his history as a "career criminal" and on defendant's lack of remorse. Therefore, even if the testimony regarding a prior molestation investigation was inadmissible, such error was harmless. Pagan v. Commonwealth,, 2011 Va. App. LEXIS 7 (Jan. 11, 2011).

On petition for writ of actual innocence. - Defendant's petition for a writ of actual innocence based on newly-discovered, non-biological evidence was denied, although the codefendant's confession that he acted alone in killing the victim was credible, because the recantation did not provide the court with clear and convincing evidence that no rational fact finder could have found that defendant used deception to abduct the victim with the intent to have sexual intercourse with her against her will. Turner v. Commonwealth, 56 Va. App. 391, 694 S.E.2d 251, 2010 Va. App. LEXIS 263 (2010).

Applied in Johnson v. Commonwealth, 221 Va. 872 , 275 S.E.2d 592 (1981); Jennings v. Commonwealth, 20 Va. App. 9, 454 S.E.2d 752 (1995).

§ 18.2-48.1. Abduction by prisoners or committed persons; penalty.

Any person confined in a state, local, or community correctional facility or committed to the Department of Juvenile Justice in any juvenile correctional center, or in the custody of an employee thereof, or who has escaped from any such facility or from any person in charge of such prisoner or committed person, who abducts or takes any person hostage is guilty of a Class 3 felony.

(1985, c. 526; 1986, c. 414; 2013, cc. 707, 782.)

The 2013 amendments. - The 2013 amendments by cc. 707 and 782 are identical, and rewrote the section.

CASE NOTES

Evidence was sufficient to establish that the defendant was a principal in the second degree to abduction by prisoners where, inter alia, he came twice to a breezeway with other inmates more directly involved in the incident, remained present while the inmates subdued two correctional officers, stood within three feet of one officer as he lay restrained on the ground, and assisted in dealing with another officer. Wicker v. Commonwealth, No. 2607-97-2 (Ct. of Appeals Dec. 22, 1998).

Evidence was sufficient to establish that two nurses were abducted where they were forced to lie on the floor in a hallway, taken to a classroom, and ordered to remain in the room under the watch of several inmates for the duration of the night. Wicker v. Commonwealth, No. 2607-97-2 (Ct. of Appeals Dec. 22, 1998).

Jury instructions. - As a trial court found as matter of law that the evidence was sufficient for the jury to consider both the crime of abduction by a prisoner and the crime of assault and battery, it was not obliged to instruct the jury about the test for determining whether the abduction was merely incidental to the assault and battery. Anderson v. Commonwealth,, 2006 Va. App. LEXIS 555 (Dec. 12, 2006).

Where a defendant is charged with both abduction and another crime, such as rape or assault, arising out of the same criminal episode, as the requirement that the restraint involved in the abduction be separate and apart from the restraint involved in the other offense is not an element of the crime of abduction, the jury does not have to be instructed on this matter. Anderson v. Commonwealth,, 2006 Va. App. LEXIS 555 (Dec. 12, 2006).

Since Blakely applies to increases of the penalty for a crime beyond the prescribed maximum, not the penalty for a course of conduct, a trial judge's refusal to instruct the jury on the possible merger of charges of abduction and assault and battery did not violate defendant's Sixth Amendment right to a jury trial. Anderson v. Commonwealth,, 2006 Va. App. LEXIS 555 (Dec. 12, 2006).

§ 18.2-49. Threatening, attempting, or assisting in such abduction; penalty.

Any person who (1) threatens, or attempts, to abduct any other person with intent to extort money, or pecuniary benefit; (2) assists or aids in the abduction of, or threatens to abduct, any person with the intent to defile such person; or (3) assists or aids in the abduction of, or threatens to abduct, any child under 16 years of age for the purpose of concubinage or prostitution is guilty of a Class 5 felony.

(Code 1950, § 18.1-39; 1960, c. 358; 1966, c. 214; 1975, cc. 14, 15; 2020, c. 900.)

The 2020 amendments. - The 2020 amendment by c. 900 substituted "child" for "female" in clause (iii); and made stylistic changes.

§ 18.2-49.1. Violation of court order regarding custody and visitation; penalty.

  1. Any person who knowingly, wrongfully and intentionally withholds a child from either of a child's parents or other legal guardian in a clear and significant violation of a court order respecting the custody or visitation of such child, provided such child is withheld outside of the Commonwealth, is guilty of a Class 6 felony.
  2. Any person who knowingly, wrongfully and intentionally engages in conduct that constitutes a clear and significant violation of a court order respecting the custody or visitation of a child is guilty of a Class 3 misdemeanor upon conviction of a first offense. Any person who commits a second violation of this section within 12 months of a first conviction is guilty of a Class 2 misdemeanor, and any person who commits a third violation occurring within 24 months of the first conviction is guilty of a Class 1 misdemeanor.

    (1987, c. 704; 1989, c. 486; 1994, c. 575; 2002, cc. 576, 596; 2003, c. 261.)

The 2002 amendments. - The 2002 amendments by cc. 576 and 596 are identical, and substituted "is guilty" for "shall be guilty" near the end of subsection A; and in subsection B, in the first sentence, substituted "that" for "which," substituted "is guilty of a Class 3" for "shall be guilty of a Class 4," and substituted "3" for "4," and in the last sentence, substituted "Any person who commits a second" for "A second conviction for a," substituted "is guilty of a Class 2" for "shall be a Class 3," substituted "any person who commits a third violation" for "a third conviction," and substituted "is guilty of a Class 1" for "shall be a Class 2."

The 2003 amendments. - The 2003 amendment by c. 261 substituted "either of a child's parents or other legal guardian" for "the child's custodial parent" in subsection A; and in subsection B, substituted "12" for "twelve," and "24" for "twenty-four."

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 1994 survey of Virginia domestic relations law, see 28 U. Rich. L. Rev. 981 (1994).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

CASE NOTES

The act that elevates this offense from a misdemeanor to a felony occurs only when the child is "withheld" from a custodial parent outside of the Commonwealth. Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996).

Proper venue found. - Where the evidence established that the father was a resident of Fairfax County at the time of the abduction by out-of-state mother and that the child was to be returned to Fairfax County pursuant to a valid and enforceable custody order, the harm contemplated by this section was clearly established as occurring in this locus for venue purposes. Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996).

Defendant's failure to relinquish custody of her minor child to the father in Virginia Beach constituted an offense committed within that circuit under § 19.2-244 . Accordingly, venue was proper in that jurisdiction as that was the jurisdiction to which the defendant was ordered to relinquish temporary custody and from which the defendant withheld custody. Dunn v. Commonwealth, No. 1689-02-1, 2003 Va. App. LEXIS 219 (Ct. of Appeals Apr. 15, 2003).

Mother was the custodial parent only for the time of her visitation. - Despite the fact that the defendant was the custodial parent at the time the defendant left the Commonwealth with her minor child, the defendant was the custodial parent or rightful custodian only for that period of visitation until the defendant was to return the child to the father. Accordingly, the defendant was properly charged and convicted of custodial interference under § 18.2-49.1 A. Dunn v. Commonwealth, No. 1689-02-1, 2003 Va. App. LEXIS 219 (Ct. of Appeals Apr. 15, 2003).

Sufficiency of evidence. - Trial court properly convicted defendant of felony parental abduction after a bench trial because, despite defendant's attempt to justify his actions, the evidence was sufficient to prove that defendant wrongfully withheld his 15-year-old son from the mother's lawful custody in violation of a court order, he unilaterally chose to take the child out of state for 15 days, did not contact the mother, the school, department of social services, or the police officer investigating the missing person report of his plan to take the child to Pennsylvania, and did not return the child until the mother obtained a court order mandating him to return the child. Boyd v. Commonwealth, 72 Va. App. 274, 844 S.E.2d 425, 2020 Va. App. LEXIS 195 (2020).

CIRCUIT COURT OPINIONS

Constitutionality. - Subsection A of § 18.2-49.1 , criminalizing parental abduction, is unconstitutionally vague, as "clear and significant" terminology is not defined with sufficient particularity, and individuals are left to speculate as to the meaning of the statute; in addition, the statute fails to establish minimal guidelines for law enforcement. Commonwealth v. Dumont, 58 Va. Cir. 475, 2002 Va. Cir. LEXIS 164 (Chesterfield County 2002).

§ 18.2-50. Disclosure of information and assistance to law-enforcement officers required.

Whenever it is brought to the attention of the members of the immediate family of any person that such person has been abducted, or that threats or attempts have been made to abduct any such person, such members shall make immediate report thereof to the police or other law-enforcement officers of the county, city or town where such person resides, and shall render all such possible assistance to such officers in the capture and conviction of the person or persons guilty of the alleged offense. Any person violating any of the provisions of this section shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 18.1-40; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-50.1.

Repealed by Acts 1992, c. 479.

Cross references. - For present provisions as to emergency control of telephone service in hostage or barricaded person situation, see § 18.2-50.2 .

§ 18.2-50.2. Emergency control of telephone service in hostage or barricaded person situation.

  1. The Superintendent of the State Police or the chief law-enforcement officer or sheriff of any county, city or town may designate one or more law-enforcement officers with appropriate technical training or expertise as a hostage and barricade communications specialist.
  2. Each telephone company providing service to Virginia residents shall designate a department or one or more individuals to provide liaison with law-enforcement agencies for the purposes of this section and shall designate telephone numbers, not exceeding two, at which such law-enforcement liaison department or individual can be contacted.
  3. The supervising law-enforcement officer, who has jurisdiction in any situation in which there is probable cause to believe that the criminal enterprise of hostage holding is occurring or that a person has barricaded himself within a structure and poses an immediate threat to the life, safety or property of himself or others, may order a telephone company, or a hostage and barricade communications specialist to interrupt, reroute, divert, or otherwise control any telephone communications service involved in the hostage or barricade situation for the purpose of preventing telephone communication by a hostage holder or barricaded person with any person other than a law-enforcement officer or a person authorized by the officer.
  4. A hostage and barricade communication specialist shall be ordered to act under subsection C only if the telephone company providing service in the area has been contacted and requested to act under subsection C or an attempt to contact has been made, using the telephone company's designated liaison telephone numbers and:
    1. The officer's attempt to contact after ten rings for each call is unsuccessful;
    2. The telephone company declines to respond to the officer's request because of a threat of personal injury to its employees; or
    3. The telephone company indicates when contacted that it will be unable to respond appropriately to the officer's request within a reasonable time from the receipt of the request.
  5. The supervising law-enforcement officer may give an order under subsection C only after that supervising law-enforcement officer has given or attempted to give written notification or oral notification of the hostage or barricade situation to the telephone company providing service to the area in which it is occurring.  If an order is given on the basis of an oral notice, the oral notice shall be followed by a written confirmation of that notice within forty-eight hours of the order.
  6. Good faith reliance on an order by a supervising law-enforcement officer who has the real or apparent authority to issue an order under this section shall constitute a complete defense to any action against a telephone company or a telephone company employee that rises out of attempts by the telephone company or the employees of the telephone company to comply with such an order.

    (1992, c. 479.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abduction and Kidnapping, § 1; 18 M.J. Telegraph and Telephone Companies, § 2.

§ 18.2-50.3. Enticing, etc., another into a dwelling house with intent to commit certain felonies; penalty.

Any person who commits a violation of § 18.2-31 , 18.2-32 , 18.2-32 .1, 18.2-48 , 18.2-51.2 , 18.2-58 , 18.2-61 , 18.2-67.1 , or 18.2-67.2 within a dwelling house and who, with the intent to commit a felony listed in this section, enticed, solicited, requested, or otherwise caused the victim to enter such dwelling house is guilty of a Class 6 felony. A violation of this section is a separate and distinct felony.

(2015, c. 392.)

Article 4. Assaults and Bodily Woundings.

§ 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-65; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to certain employees of the Departments of Corrections and Juvenile Justice and the grievance resolution steps, see § 2.2-3007 .

For definition of "barrier crime" as including a conviction of assault and bodily woundings as set out in § 18.2-51 et seq., or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including assault and bodily woundings as set out in § 18.2-51 et seq., or an equivalent offense in another state, see § 63.2-1726 .

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For comment on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983).

For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 95; 9B M.J. Husband and Wife, § 87; 12B M.J. Mayhem, §§ 2-5, 8, 10, 11; 13A M.J. Mobs, Riots and Lynchings, § 4.

Research References. - Virginia Forms (Matthew Bender). No. 9-508 Indictment - Malicious Wounding.

CASE NOTES

I. GENERAL CONSIDERATION.

This section is commonly referred to as the maiming statute. Fletcher v. Commonwealth, 209 Va. 636 , 166 S.E.2d 269 (1969).

Purpose of act. - The true purpose and meaning of the maiming act was doubtless conceived to be to define and punish as felonies those acts which had theretofore been considered misdemeanors only in those cases where it also appeared that there was the felonious intent to maim, disfigure, disable, or kill. Harris v. Commonwealth, 150 Va. 580 , 142 S.E. 354 (1928); Bryant v. Commonwealth, 189 Va. 310 , 53 S.E.2d 54 (1949).

An assault is not punishable under this section. Jones v. Commonwealth, 184 Va. 679 , 36 S.E.2d 571 (1946).

"Unlawful maiming," "unlawful wounding," "unlawful shooting" and "unlawful stabbing" standing alone are not crimes embraced under this section. Banner v. Commonwealth, 204 Va. 640 , 133 S.E.2d 305 (1964).

"Bodily injury." - Concluding that the term "bodily injury" has one meaning in the context of § 18.2-51 , but has another meaning within the context of § 18.2-51 .6, when the two statutes are part of the same legislative scheme and the relevant language of the two statutes is identical, would be illogical. Accordingly, reading these statutes in pari materia, it is clear that the legislature intended the term "bodily injury" to hold its everyday, ordinary meaning throughout the entire statutory scheme. Moore v. Commonwealth,, 2014 Va. App. LEXIS 162 (May 6, 2014).

Aggravated malicious wounding distinguished. - Unlike the crime of aggravated malicious wounding under § 18.2-51 .2, which requires proof that the victim suffered a permanent and significant physical impairment as a result of the wound inflicted by the defendant, the crime of malicious wounding under § 18.2-51 , does not require that the wound inflicted by the defendant be permanent or significant; the crime of malicious wounding lacks the severity and permanence elements required for the offense of aggravated malicious wounding, and merely requires that the defendant intended to inflict a permanent wound. An Trong Tran v. Commonwealth, No. 2565-02-4, 2004 Va. App. LEXIS 195 (Ct. of Appeals Apr. 27, 2004).

Compared to assault with a dangerous weapon under federal law. - Defendants sought dismissal of counts under 18 U.S.C.S. §§ 1959 and 924(c), of the indictment on the ground that the elements of Virginia's malicious or unlawful wounding statute, § 18.2-51 , and brandishing statute, § 18.2-282 , the state laws that the charged assaults allegedly violated, did not match - element-by-element - with the elements of assault with a dangerous weapon under federal law, but, the elements of malicious or unlawful wounding under Virginia law were adequately similar to those of assault with a dangerous weapon and aggravated assault as generically defined, the indictment charging assault with a dangerous weapon was sufficient, and the motion to dismiss was denied. United States v. Cuong Gia Le, 316 F. Supp. 2d 355, 2004 U.S. Dist. LEXIS 7786 (E.D. Va. 2004).

Double jeopardy considerations. - Multiple punishments for the crimes of attempted murder and malicious wounding do not violate the double jeopardy clause when the convictions are obtained in a single trial. Creamer v. Commonwealth, No. 1298-91-3 (Ct. of Appeals Dec. 15, 1992).

Crimes of attempted murder and malicious wounding had different elements, and therefore defendant's convictions of both did not violate double jeopardy. Coleman v. Commonwealth, No. 2871-97-2, 1999 Va. App. LEXIS 445 (July 20, 1999).

Defendant's convictions for malicious wounding and maiming by mob did not violate principles of double jeopardy as malicious wounding contained an additional element not found in maiming by mob, namely that the defendant acted with malice. Thus, it followed that one who was guilty of maiming by mob was not necessarily guilty of malicious wounding. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

There were two distinct victims of the crimes of which defendant was convicted: the victim of the improper driving traffic offense was the Commonwealth, and the victim of the unlawful wounding was defendant's ex-boyfriend. Accordingly, the trial court did not err in denying defendant's motion to dismiss the unlawful wounding charge. Moore v. Commonwealth, No. 0662-17-1, 2018 Va. App. LEXIS 122 (May 1, 2018).

Lesser included offense. - The shooting of another unlawfully but without malicious intent to maim, disfigure, disable, or kill, is a lesser included offense of malicious shooting and is also a felony. Jones v. Blankenship, 458 F. Supp. 521 (W.D. Va. 1978), rev'd on other grounds, 602 F.2d 650 (4th Cir. 1979).

Assault and battery and unlawful wounding are lesser included offenses of malicious wounding. Brown v. Commonwealth, 222 Va. 111 , 279 S.E.2d 142 (1981).

Unlawful wounding is a lesser included offense of malicious wounding; the element of malice constitutes the distinction between malicious and unlawful wounding. Miller v. Commonwealth, 5 Va. App. 22, 359 S.E.2d 841 (1987).

Malicious wounding is not a lesser included offense of robbery. Walker v. Commonwealth, 14 Va. App. 203, 415 S.E.2d 446 (1992).

Assault and battery is a lesser-included offense of malicious wounding. Vaughn v. Commonwealth, 34 Va. App. 263, 540 S.E.2d 516, 2001 Va. App. LEXIS 48 (2001), rev'd on other grounds, 263 Va. 31 , 557 S.E.2d 220 (2002).

The intent to maim, disfigure, disable or kill is not necessarily included in the definition of murder or manslaughter and, therefore, malicious wounding is not a lesser-included offense embraced within the crime of murder or manslaughter. Hampton v. Commonwealth, 34 Va. App. 412, 542 S.E.2d 41, 2001 Va. App. LEXIS 86 (2001).

Preservation for review. - Defendant argued specifically and extensively in his motion to strike that he had no intent to maim, disfigure, disable, or kill, and this was sufficient to preserve the error that there was insufficient evidence as a matter of law to convict him of unlawful wounding. Jones v. Commonwealth,, 2015 Va. App. LEXIS 101 (Mar. 31, 2015).

Venue. - Although appellant moved to change venue because it was impossible to have a fair trial by an impartial jury, he did not timely obtain a ruling on the motion. Ramos v. Commonwealth, 71 Va. App. 150, 834 S.E.2d 499, 2019 Va. App. LEXIS 255 (2019).

Applied in Barrett v. Commonwealth, 231 Va. 102 , 341 S.E.2d 190 (1986); Akers v. Commonwealth, 31 Va. App. 521, 525 S.E.2d 13 (2000); Cottee v. Commonwealth, 31 Va. App. 546, 525 S.E.2d 25 (2000); Jaccard v. Commonwealth, 268 Va. 56 , 597 S.E.2d 30, 2004 Va. LEXIS 87 (2004); Dawson v. Commonwealth, 63 Va. App. 429, 758 S.E.2d 94, 2014 Va. App. LEXIS 199 (2014); Ricks v. Commonwealth, 290 Va. 470 , 778 S.E.2d 332, 2015 Va. LEXIS 166 (2015).

II. NATURE AND ELEMENTS OF OFFENSES.
A. IN GENERAL.

Attempted malicious wounding. - An attempt to commit the crime of malicious wounding consists of: (1) the specific intent to maim, disfigure, disable or kill and (2) an ineffectual act done towards the crime's completion. Moody v. Commonwealth, 28 Va. App. 702, 508 S.E.2d 354 (1998).

In order to convict an accused of attempted malicious wounding, the Commonwealth must prove that the accused: (1) intended to maliciously shoot, stab, cut or wound any person or by any means cause bodily injury with the intent to maim, disfigure, disable or kill; and (2) committed a direct but ineffectual act toward this purpose. Smith v. Commonwealth, No. 3001-99-1, 2001 Va. App. LEXIS 120 (Ct. of Appeals Mar. 13, 2001); Knox v. Commonwealth, No. 0533-00-1, 2001 Va. App. LEXIS 226 (Ct. of Appeals May 1, 2001).

Evidence was insufficient to support a conviction for attempted malicious wounding, although the circumstances were suspicious, because the evidence failed to establish an overt act necessary to prove an attempted malicious wounding where the scenario was interrupted when the victim made contact with defendant, and the evidence also failed to exclude the reasonable hypotheses that defendant acted with the intent to do no more than scare the victim. Small v. Commonwealth, No. 1511-08-3, 2009 Va. App. LEXIS 556 (Ct. of Appeals Dec. 15, 2009).

Malice inheres in the intentional doing of a wrongful act without legal justification or excuse, or as the result of ill will. Fletcher v. Commonwealth, 209 Va. 636 , 166 S.E.2d 269 (1969).

Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Malice is evidenced either when the accused acted with a sedate, deliberate mind and formed design or committed a purposeful and cruel act without any or without great provocation. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Malice may be directly evidenced by words or inferred form the acts and conduct which necessarily result in injury. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

The words "shoot," "stab," "cut" or "wound" are analogous for the purpose employed in this section. Lane v. Commonwealth, 190 Va. 58 , 55 S.E.2d 450 (1949).

Causing bodily injury is a distinct offense. - To "shoot, stab, cut or wound," under this section comprise distinct offenses, and to cause bodily injury is likewise a distinct offense. Johnson v. Commonwealth, 184 Va. 409 , 35 S.E.2d 594 (1945).

And the fist and knee of defendant are "means" within the language of the statute, viz., "by any means." Dawkins v. Commonwealth, 186 Va. 55 , 41 S.E.2d 500 (1947).

"Bodily injury" is caused where one is struck on the face and head and kicked so that as a result of the beating blood ran from his ears, nose and mouth and he suffered a small cut inside of his mouth. Bryant v. Commonwealth, 189 Va. 310 , 53 S.E.2d 54 (1949).

Under this section a "wound" is a breach of the skin, or of the skin and flesh, produced by external violence. Without such parting of the skin there can be no wounding. Johnson v. Commonwealth, 184 Va. 409 , 35 S.E.2d 594 (1945).

Under the maiming act it is necessary, in order to constitute a wounding and support a conviction for such wounding, that the skin be broken or cut. Harris v. Commonwealth, 150 Va. 580 , 142 S.E. 354 (1928).

"Physical force." - Statute was a crime of violence since it had as an element the use of "physical force" and was therefore an aggravated felony under the INA; the alien was ineligible for asylum because of his conviction for unlawful wounding under the statute. Moreno-Osorio v. Garland,, 2021 U.S. App. LEXIS 18734 (4th Cir. June 23, 2021).

Thus, two broken ribs do not constitute a wounding as contemplated by this section. Johnson v. Commonwealth, 184 Va. 409 , 35 S.E.2d 594 (1945).

Test to determine if guilty of malicious shooting. - Whether a prisoner on trial is guilty of malicious shooting with intent to kill, depends upon the question, whether if he had killed the person at whom he shot, instead of only wounding him with intent to kill him, the offense would have been murder. Commonwealth v. Chapple, 3 Va. (1 Va. Cas.) 184 (1811); Read v. Commonwealth, 63 Va. (22 Gratt.) 924 (1872); Price v. Commonwealth, 77 Va. 393 (1883); Harris v. Commonwealth, 134 Va. 688 , 114 S.E. 597 (1922); Gills v. Commonwealth, 141 Va. 445 , 126 S.E. 51 (1925).

Malice and heat of passion mutually exclusive. - Malice and heat of passion are mutually exclusive; malice excludes passion and passion presupposes the absence of malice. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Malicious wounding in intent to maim, disfigure, disable, or kill by shaking baby. - Defendant was properly convicted of malicious wounding for shaking his six-week-old baby to the point of causing the baby severe and permanent brain damage because, in part, evidence of defendant's mental retardation was irrelevant absent an insanity defense and further, the evidence permitted a finding beyond a reasonable doubt that defendant intended to maim, disfigure, disable, or kill the baby given the baby's permanent brain damage suffered under the sole care of defendant, who initially blamed the injury on a toy, but later admitted shaking the baby. Funk v. Commonwealth, No. 1821-02-4, 2003 Va. App. LEXIS 383 (Ct. of Appeals July 8, 2003).

Use of a pit bull terrier. - Because this section specifies "any means," the Commonwealth was not constrained to prove that the method defendant used to cause bodily harm was inherently dangerous, and the defendant's use of a pit bull terrier to inflict the injury by releasing the dog to "sic him, kill" met the requirements of this section since, by its explicit terms, this section does not contain a limitation upon the means employed. Long v. Commonwealth, 8 Va. App. 194, 379 S.E.2d 473 (1989).

Evidence held sufficient. - Evidence was sufficient to support defendant's malicious wounding conviction under § 18.2-51 where: (1) defendant struck the victim with a shiny object, causing a wound that required stitches; (2) the statute proscribed the infliction of bodily injury by any means, and the nature of the intent with which the result was accomplished, not the nature of the means, determined whether the act was malicious; (3) defendant's argument that he inflicted the blows on the victim as a response to being pushed by the victim was rejected, as the victim, a landowner, lawfully attempted to escort defendant, a trespasser, from the victim's property after asking defendant to leave; and (4) the victim's lawful act did not justify defendant's violent response. Carnes v. Commonwealth, No. 2016-02-1, 2003 Va. App. LEXIS 371 (Ct. of Appeals July 1, 2003).

B. INTENT.

Intent is a necessary element in the crime of shooting and wounding; intent must be proved either directly, or from facts from which an intentional shooting could be inferred. Where the evidence fails to show such intent a conviction is not warranted. Hay v. Commonwealth, 139 Va. 578 , 123 S.E. 333 (1924).

In accordance with the use of the disjunctive "or" in the portion of this section requiring that a defendant act with the intent to maim, disfigure, disable or kill, a malicious wounding charge does not require proof of the specific intent to kill. Coleman v. Commonwealth, 261 Va. 196 , 539 S.E.2d 732, 2001 Va. LEXIS 12 (2001).

Intent in fact. - The necessary intent constituting one element in an attempt to commit murder is the intent in fact, as distinguished from an intent in law. Hargrave v. Commonwealth, 214 Va. 436 , 201 S.E.2d 597 (1974).

Intent may be inferred. - The fact finder may infer that a person intends the immediate, direct and necessary consequences of his voluntary act. Moody v. Commonwealth, 28 Va. App. 702, 508 S.E.2d 354 (1998).

Trial court's judgment following a bench trial that found defendant guilty of eight counts of attempted malicious wounding and eight counts of felonious use of a firearm was not plainly wrong or without evidence to support it and, thus, was affirmed; an inference that defendant tried to maim eight police officers providing security at a nightclub could be drawn by defendant's conduct in firing a fusillade of gunfire in their direction. Coleman v. Commonwealth,, 2006 Va. App. LEXIS 502 (Nov. 7, 2006).

Intent not derived from means of injury and may be shown by circumstances. Hargrave v. Commonwealth, 214 Va. 436 , 201 S.E.2d 597 (1974).

Intent in fact is a state of mind which may be shown by a person's conduct or by his statements. Hargrave v. Commonwealth, 214 Va. 436 , 201 S.E.2d 597 (1974).

Intent is the purpose formed in a person's mind. It may be shown by the circumstances surrounding the offense, including the person's conduct and his statements. Lindsey v. Commonwealth, No. 0137-89-2 (Ct. of Appeals Oct. 9, 1990).

Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case, and the state of mind of an alleged offender may be shown by his acts and conduct. Waller v. Commonwealth, No. 1696-89-3 (Ct. of Appeals Nov. 20, 1990).

Under the maiming statute proof of specific intent to maim, disfigure, disable or kill is necessary. - Such intent may be proved by circumstantial evidence, but cannot be presumed from an act which does not naturally indicate it. Banovitch v. Commonwealth, 196 Va. 210 , 83 S.E.2d 369 (1954).

The defendant can be convicted of unlawful wounding with the intent to maim, disfigure, disable or kill when there is no direct evidence of a subjective intent to inflict bodily harm to the injured person. Such intent may be inferred when the defendant intentionally commits an act from which he or she reasonably could have anticipated that the injury would result. Waller v. Commonwealth, No. 1696-89-3 (Ct. of Appeals Nov. 20, 1990).

The requisite state of mind for malicious wounding derives not from the means employed to inflict the bodily injury, but from the intent with which the injury is inflicted. Fleshman v. Commonwealth, No. 1495-96-3 (Ct. of Appeals May 13, 1997).

Defendant's prior Virginia conviction for unlawful wounding was a crime of violence under U.S. Sentencing Guideline § 4B1.2, triggering sentencing enhancement under USSG § 2K2.1(a)(3), because it required not only causation of bodily injury but also the specific intent to maim, disfigure, disable, or kill, and so involved use or threatened use of violent force. United States v. James, 718 Fed. Appx. 201, 2018 U.S. App. LEXIS 5979 (4th Cir. 2018).

The presumption is that the natural and necessary consequences of the act were intended. Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873); Price v. Commonwealth, 77 Va. 393 (1883).

And wounding with a deadly weapon imputes malicious intent. - Where one wounds another with a deadly weapon, the law, in the absence of evidence to the contrary, imputes the malicious intent. Gills v. Commonwealth, 141 Va. 445 , 126 S.E. 51 (1925).

In a prosecution for malicious shooting, where it was shown that the shooting was unlawful and without reasonable provocation, and the evidence failed to disclose any circumstances of palliation, the jury were compelled to find, as a matter of fact, that the shooting was done with malice. Harris v. Commonwealth, 134 Va. 688 , 114 S.E. 597 (1922).

But intent to disfigure cannot be presumed from a blow with the fist. - Men are presumed to intend the natural and probable consequences of their acts, and a permanent disfigurement would be the natural and probable consequences of a violent blow in the face with sharp instrument like a knife or steel knuckles. But it cannot be presumed from a blow with the fist that the striker intended to permanently disfigure his adversary. Lee v. Commonwealth, 135 Va. 572 , 115 S.E. 671 (1923). But see Dawkins v. Commonwealth, 186 Va. 55 , 41 S.E.2d 500 (1947).

Nor may an intent to maim be presumed from a blow with a bare fist under ordinary circumstances. Fletcher v. Commonwealth, 209 Va. 636 , 166 S.E.2d 269 (1969).

Intent to kill may be presumed. - But an assault with a bare fist may be attended with such circumstances of violence and brutality that an intent to kill may be presumed. Fletcher v. Commonwealth, 209 Va. 636 , 166 S.E.2d 269 (1969).

Intent may be inferred from assault with bare fists. - The intent to maim, disfigure, disable or kill a person may be inferred from an assault with bare fists if it is attended with circumstances of such violence and brutality that the fact finder can reasonably conclude that the assailant intended one of those results. Bland v. Commonwealth, No. 1733-91-4 (Ct. of Appeals March 16, 1993).

Although blows inflicted with bare fists do not ordinarily imply intent to kill, disable, disfigure or maim, such blows, if applied with sufficient violence or brutality, may allow trier of fact to infer that defendant possessed the requisite intent. Coleman v. Commonwealth, No. 2008-98-2 (Ct. of Appeals Dec. 14, 1999).

Though defendant struck the victim only once with his bare fist, the evidence was sufficient to convict him of malicious wounding, as he struck the victim with such force as to seriously injure him, and defendant's threats and boasts about his strength indicated his awareness of the harm he could inflict, which demonstrated his intent to permanently harm the victim. Burkeen v. Commonwealth,, 2012 Va. App. LEXIS 384 (Nov. 27, 2012).

Intent inferred from repeated blows applied to vital parts. - The intent to maim, disfigure, disable, or kill a person can be inferred from repeated blows applied to vital and delicate parts of the body of a defenseless, unresisting person on the ground. Bland v. Commonwealth, No. 1733-91-4 (Ct. of Appeals March 16, 1993).

Doctrine of transferred intent had no application to attempted malicious wounding. - The Commonwealth conceded that the doctrine of transferred intent had no application to the charge of attempted malicious wounding, the crime at issue in this appeal. N. was not injured when appellant shot A. Because in this case appellant did not escape criminal liability, neither the express terms of the doctrine nor its underlying policy dictated that it apply. Thus, the Commonwealth was required to prove that the appellant specifically intended to wound N. Crawley v. Commonwealth, 25 Va. App. 768, 492 S.E.2d 503 (1997).

Doctrine of transferred intent applicable. - Doctrine of transferred intent was properly applied in finding defendant guilty of the malicious wounding of defendant's daughter because the daughter's injury was reasonably related to the criminal act defendant directed at the wife and defendant had the requisite intent to maim the wife when defendant cut the daughter. Blow v. Commonwealth, 52 Va. App. 533, 665 S.E.2d 254, 2008 Va. App. LEXIS 400 (2008).

"Disfigure" in this section means a permanent and not merely a temporary and inconsequential disfigurement. Lee v. Commonwealth, 135 Va. 572 , 115 S.E. 671 (1923).

When comparative weakness of victim and strength of aggressor considered. - In determining the probable consequences of an aggressor's actions and his or her intent to achieve those consequences, the comparative weakness of the victim and the strength of the aggressor may be considered. Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991).

Facts sufficient to show intent. - One may be convicted of unlawful wounding with intent to maim, disfigure, disable or kill another, when there is no direct evidence of a subjective intent to inflict bodily harm to the injured person, where, while only two feet from the victim, he fires a bullet onto the cement drive where it reasonably could be anticipated that the bullet would be deflected, and in fact it deflected into the victim's foot causing serious injury. David v. Commonwealth, 2 Va. App. 1, 340 S.E.2d 576 (1986).

Evidence showed beyond a reasonable doubt that defendant acted with malice and intended to maim or disable victim, an 81 year old man, where the defendant intentionally grabbed and threw to the ground the victim during the course of a robbery, and given the victim's age and the nature of the attack upon him, a disability such as a broken ankle was a natural and probable consequence of the defendant's act. Davis v. Commonwealth, No. 0302-92-1 (Ct. of Appeals Sept. 7, 1993).

Evidence that the defendant threw a brick at the victim as he attempted to close garage door, breaking a toe, lacerating his shin to the bone, and causing a large welt, supported a finding that he maliciously intended to maim, disfigure, or disable the victim. Williams v. Commonwealth, No. 0540-94-1 (Ct. of Appeals March 21, 1995).

Trial court was not plainly wrong in finding defendant acted with the requisite intent to maim or kill his wife when he pinned her to the wall and choked her into unconsciousness. The trial court is entitled to infer defendant's intent from the facts and circumstances, and it appropriately concluded beyond a reasonable doubt that these were acts from which appellant reasonably should have anticipated that disabling injury or death might result to his wife. Graber v. Commonwealth, No. 0688-94-2 (Ct. of Appeals Oct. 3, 1995).

Where without provocation, assailant grabbed pizza delivery woman in a choke hold; forcing her into submission, he repeatedly punched her in the neck, exhibiting a callous and violent disregard for a vulnerable part of her body; in responding to her pleas for mercy, he spoke coarsely and without concern; this attendant brutality continued even after the robbery was accomplished; and as a result, she suffered permanent disability, these facts and circumstances support the fact finder's inference that he intended the natural and probable consequences of the beating he administered to the delivery woman. Fleshman v. Commonwealth, No. 1495-96-3 (Ct. of Appeals May 13, 1997).

The Commonwealth presented sufficient evidence of intent to sustain the defendant's conviction for attempted malicious wounding where the defendant, while attempting to leave a parking lot in a stolen vehicle, saw a pedestrian blocking his only avenue of escape and deliberately chose to accelerate the car toward the pedestrian, never decelerating, braking or swerving to avoid him, even when the pedestrian was only five to ten feet away from being struck. Moody v. Commonwealth, 28 Va. App. 702, 508 S.E.2d 354 (1998).

Where defendant's blow to the victim's head was sufficient to break the cup, inflict a cut to the head, and require stitches to close, then the finder of fact could reasonably infer that the defendant employed the plastic cup to enhance the blow he intended to strike and that he intended the cup to break and become a cutting weapon; thus, the evidence was sufficient to support the finding that the defendant maliciously struck the victim with the intent to maim, disfigure, disable, or kill him under this section. Summers v. Commonwealth, No. 1797-99-3, 2000 Va. App. LEXIS 451 (Ct. of Appeals June 20, 2000).

The evidence was sufficient for the fact finder to conclude that the defendant acted with the malicious intent to maim, disfigure or disable the victim in light of the defendant's threatening words, his invitation for the victim "to go outside," his return to join a fight between a third party and the victim, the force of the defendant's initial blow and the severity of the resulting injury and the fact that the defendant continued to beat the victim when he was on the floor and had to be pulled away. Clark v. Commonwealth, No. 2226-99-2, 2000 Va. App. LEXIS 728 (Ct. of Appeals Nov. 14, 2000).

The fact finder could reasonably have found that, in striking the victim in the face with a bottle, the defendant acted with malice where the evidence showed that the defendant unlawfully entered the victim's residence and proceeded to the victim's bedroom where he assaulted another person, accused the victim of infidelity and, while standing a short distance in front of the victim, threw a bottle towards her head. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Severity and number of blows demonstrated defendant's intent to maim, disfigure, disable or kill his victim. Roebuck v. Commonwealth, No. 1060-99-1 (Ct. of Appeals Jan. 27, 2000).

Facts sufficient to show intent to maim, disfigure, disable, or kill. Jenkins v. Commonwealth, No. 0967-01-4, 2002 Va. App. LEXIS 660 (Ct. of Appeals Nov. 5, 2002).

Where the Commonwealth proceeded against defendant as a principal in the second degree, and each participant became accountable for the incidental crimes committed by the other participants, the trial court properly imputed malice to the defendant, due to a co-defendant's actions in throwing an elderly lady against a wall, as the use of such force could have foreseen an injury, and the evidence of the nature of the attack permitted said finding. Ward v. Commonwealth, No. 0306-02-1, 2003 Va. App. LEXIS 226 (Ct. of Appeals Apr. 15, 2003).

Defendant's use of a shiny object, whether his ring or another object, supported an inference of intent for purposes of malicious wounding, in violation of § 18.2-51 , as disfigurement would be the natural and probable consequence of a violent blow in the face with the weapon. Carnes v. Commonwealth, No. 2016-02-1, 2003 Va. App. LEXIS 371 (Ct. of Appeals July 1, 2003).

Where defendant lunged toward a co-employee while swinging a dry wall knife near his throat area, the evidence was sufficient to establish a basis from which the trial court could infer defendant's conduct demonstrated his intent to wound the co-employee and that his conduct went beyond mere preparation to carry out his intention; the mere fact that defendant stopped short of cutting the other employee did not negate the significance of the evidence of his intent, nor his conduct in furtherance of the crime. Peck v. Commonwealth, No. 1972-02-1, 2003 Va. App. LEXIS 581 (Ct. of Appeals Nov. 12, 2003).

Trial court erred in failing to instruct the jury that in order to convict defendant of malicious wounding, he had to have intended to permanently maim, disfigure, disable, or kill the victim; however, the error was harmless based on defendant's use of a metal knife and fork to stab the victim in the face very close to the eye, with sufficient force to cut and pierce the victim's skin and cause the wound to bleed, causing three holes and one cut on the right side of the victim's face, as the jury could only have inferred that a permanent disfigurement was the natural and probable consequence of defendant's actions. An Trong Tran v. Commonwealth, No. 2565-02-4, 2004 Va. App. LEXIS 195 (Ct. of Appeals Apr. 27, 2004).

In a case involving first degree murder and aggravated malicious wounding, the Commonwealth showed that defendant acted with premeditation or the intent to maim, wound, or kill because he shot two men at close range without provocation, and nothing suggested that defendant felt threatened by the victims. Defendant's actions, including fleeing the scene after the shooting, supported the conclusion that he acted maliciously, with premeditation, and with the requisite intent. Griffin v. Commonwealth,, 2009 Va. App. LEXIS 604 (Dec. 15, 2009).

Evidence was sufficient to prove that defendant acted with malice when defendant, who suspected that defendant's paramour was seeing the victim, entered the victim's trailer home in the middle of the night, physically assaulted the victim while the victim was sleeping in bed with defendant's paramour, and injured the victim. Furthermore, defendant's own testimony, that defendant realized that defendant did not have to be there, undermined defendant's claim that heat of passion motivated the final blow, when defendant left the victim's home and then reentered the home, which knocked the victim to the floor of the trailer. King v. Commonwealth,, 2011 Va. App. LEXIS 349 (Nov. 15, 2011).

Trial court did not err in finding the evidence sufficient to support defendant's conviction for attempted malicious shooting of a victim and use of a firearm in the commission of the attempted shooting, as circumstantial evidence regarding defendant's state of mind at the time of the shooting did not indicate that another victim was defendant's only intended target, as claimed by defendant. Cuffee v. Commonwealth, 61 Va. App. 353, 735 S.E.2d 693, 2013 Va. App. LEXIS 7 (2013).

Sufficient evidence of an intent to maim supported defendant's malicious wounding conviction, even though the victim was struck only once with a bare fist, where: (1) the victim did not provoke the attack and was hit while he was not expecting such a blow; (2) the blow resulted in serious and disfiguring injury; (3) defendant was poised to attack the victim further until a bystander intervened, at which time the bystander was attacked; and (4) defendant only discontinued his attack when he heard that the police had been called. Burkeen v. Commonwealth, 286 Va. 255 , 749 S.E.2d 172, 2013 Va. LEXIS 136 (Oct. 31, 2013).

Defendant's conviction of unlawful wounding was affirmed, as a rational trier of fact could have found that defendant acted with the necessary intent to maim, disfigure, disable, or kill the victim; defendant repeatedly punched the victim while he was either defenseless from the suffocating headlock or helpless as he drifted in and out of consciousness during an attack that lasted between five and ten minutes and continued until defendant slammed the victim face-first into the porch, and defendant did much more than eject the victim from his property and fight him in the process of doing so. Ashworth v. Commonwealth, No. 1993-15-2, 2016 Va. App. LEXIS 295 (Ct. of Appeals Nov. 8, 2016).

Facts insufficient to show intent to disfigure. - See Banovitch v. Commonwealth, 196 Va. 210 , 83 S.E.2d 369 (1954).

Defendant's conviction for malicious wounding in violation of § 18.2-51 was reversed because it was unsupported by the evidence. Although the trial court found that defendant's striking the victim, causing him to lose an eye, was malicious, it also found that defendant did not have the intent to maim or disfigure the victim. Williams v. Commonwealth,, 2011 Va. App. LEXIS 151 (May 3, 2011).

Facts insufficient to show malicious intent. - Court reasonably disbelieved the defendant's claim he used a hip-toss, body slamming the victim, to calm victims and found the defendant guilty of unlawful wounding but the court noted that the final sentencing order entered by the trial court erroneously reflected that the defendant was found guilty of malicious wounding and this required remand. Townes v. Commonwealth, No. 0577-02-2, 2003 Va. App. LEXIS 184 (Ct. of Appeals Apr. 1, 2003).

Evidence was insufficient to support defendant's conviction for unlawful wounding under § 18.2-51 as there was no showing that defendant had intent to maim, disable, or kill the victim when he delivered a single punch to the victim's face, in that, although the evidence supported a finding that the attack was unprovoked by the victim, there was no evidence of any significant injury caused by defendant's single blow to the victim, there was no evidence showing that defendant repeatedly bragged about it or vowed to do the same thing again, and there was no evidence linking any particular injury to defendant's initial blow. Without any special evidence of the nature, force, and results of the single blow delivered by defendant, the court could not say that the isolated punch rose above the level of a blow that would be delivered in a typical fistfight. Worrell v. Commonwealth,, 2010 Va. App. LEXIS 497 (Dec. 21, 2010).

No estoppel as to proof of intent. - A verdict in a prior trial which found defendant guilty of involuntary manslaughter did not necessarily mean that defendant's wounding of another victim in the same shooting for which he was prosecuted in a subsequent trial was without malicious intent so as to preclude conviction under this section on grounds of collateral estoppel embodied in the Fifth Amendment. Jones v. Commonwealth, 217 Va. 231 , 228 S.E.2d 127 (1976); Jones v. Blankenship, 602 F.2d 650 (4th Cir. 1979).

III. PROSECUTION.
A. INDICTMENT.

Indictments for statutory offenses should be couched in the language of the statute. It is not requisite to charge in an indictment for a violation of this section any more than is necessary to accurately and adequately charge the felony. Dean v. Commonwealth, 189 Va. 426 , 53 S.E.2d 141 (1949).

And should charge intents conjunctively. - Although the statute against unlawful shooting, etc., affixes a penalty when the act is done with intent to maim, disfigure, disable or kill, in the disjunctive, yet the indictment should charge the intents conjunctively. Angel v. Commonwealth, 4 Va. (2 Va. Cas.) 231 (1820).

Failure to allege malice. - Where the indictment charged that the defendant "did unlawfully and feloniously stab, cut, or cause bodily injury to [the victim] with the intent to maim, disfigure, disable or kill" and contained no allegation that the act was committed maliciously, the indictment charged the defendant with unlawful wounding, rather than malicious wounding, and the defendant could not be convicted of or sentenced for malicious wounding. Terrell v. Commonwealth, No. 1669-99-2, 2000 Va. App. LEXIS 266 (Ct. of Appeals Apr. 11, 2000).

Failure to allege specific intent fatal. - An indictment failing to allege the specific intent to wound, disfigure, disable and kill, as required by this section, is insufficient. Williamson v. Commonwealth, 165 Va. 750 , 181 S.E. 351 (1935); Tompkins v. Commonwealth, 177 Va. 858 , 13 S.E.2d 409 (1941).

And is not cured by statute of jeofails. - An indictment not in compliance with this section in that it failed to charge that the cutting was done with the intent to maim, disable or kill is not cured by § 19.2-227 . Tompkins v. Commonwealth, 177 Va. 858 , 13 S.E.2d 409 (1941).

Where an indictment charged that one feloniously did strike, cut, and stab another, with intent to kill, etc., although the words strike and cut were not in the statute, the indictment was not quashed. Derieux v. Commonwealth, 4 Va. (2 Va. Cas.) 379 (1823).

Unnecessary to state weapon used. - In an indictment for malicious assault with intent to kill it is unnecessary to state the weapon with which the assault was made. Jackson v. Commonwealth, 96 Va. 107 , 30 S.E. 452 (1898).

Indictment for malicious shooting ought to charge that it was done feloniously. Trimble v. Commonwealth, 4 Va. (2 Va. Cas.) 143 (1818).

Section 19.2-294 does not prohibit prosecution in a single trial for violation of this section and § 18.2-51.2 . Powell v. Commonwealth, No. 0554-89-1 (Ct. of Appeals Oct. 6, 1992).

Variance between record of examining court and indictment. - The record of the examining court showed that the prisoner was charged with a felonious stabbing with intent to kill. The indictment contained four counts, of which the first charged a malicious stabbing, with intent to kill; the second, a malicious stabbing, with intent to maim, disfigure, and disable; the third and fourth, an unlawful stabbing, with the same intents, respectively. It was held that this variance between the record of the examining court, and the indictment is no ground for quashing the latter. Derieux v. Commonwealth, 4 Va. (2 Va. Cas.) 379 (1823).

Indictment; prosecutorial vindictiveness not found. - Defendant failed to offer objective evidence that his indictment for malicious wounding under § 18.2-51 was obtained as a result of prosecutorial vindictiveness, even though it was obtained after defendant received a continuance of his trial for robbery; the Commonwealth stated that the malicious wounding indictment was not originally sought due to an oversight, and the indictment was sought from the next available grand jury. Muhammad v. Commonwealth, No. 1300-01-2, 2002 Va. App. LEXIS 731 (Ct. of Appeals Dec. 10, 2002).

Indictments held sufficient. - An indictment charging that prisoner, "at the county and within the jurisdiction of the court, feloniously and maliciously did stab one P.T. with intention to maim, etc., and kill him," will not be quashed, upon objection that it does not allege any assault, striking or wounding, nor that P.T. was within the county or jurisdiction, nor that the intent was felonious or malicious. Commonwealth v. Woodson, 36 Va. (9 Leigh) 669 (1839).

Indictment charging that accused made an assault with a stone, and did feloniously, maliciously and unlawfully beat, wound, ill-treat and cause bodily injury, etc., sufficiently conforms to this section. Jones v. Commonwealth, 87 Va. 63 , 12 S.E. 226 (1890).

B. DEFENSES.

Self-defense. - A person assaulted while in the discharge of a lawful act, and reasonably apprehending that his assailant will do him bodily harm, has the right to repel the assault by all the force he deems necessary, and is not compelled to retreat from his assailant, but may, in turn, become the assailant, inflicting bodily wounds until his person is out of danger. Jackson v. Commonwealth, 96 Va. 107 , 30 S.E. 452 (1898). See Stoneman v. Commonwealth, 66 Va. (25 Gratt.) 887 (1874); Brown v. Commonwealth, 86 Va. 466 , 10 S.E. 745 (1890); Montgomery v. Commonwealth, 99 Va. 833 , 37 S.E. 841 (1901).

An instruction which failed to point out that self-defense is not available to the aggressor was properly refused. Banner v. Commonwealth, 204 Va. 640 , 133 S.E.2d 305 (1963).

Where an accused responds to a threat of harm from another and the amount of force the accused uses is reasonable in relation to the harm threatened, the accused may be acquitted based on self-defense. Thornton v. Commonwealth, No. 2579-99-1, 2000 Va. App. LEXIS 794 (Ct. of Appeals Dec. 5, 2000).

If a wounding remains unlawful but results from the heat of passion, such as rage or fear, rather than malice, it constitutes unlawful wounding rather than malicious wounding. Thornton v. Commonwealth, No. 2579-99-1, 2000 Va. App. LEXIS 794 (Ct. of Appeals Dec. 5, 2000).

Because defendant's daughter testified that defendant neither initiated nor provoked a fight with the victim, the trial court erred in denying defendant's proffered instruction on self-defense without fault; consequently, defendant was entitled to a new trial for malicious wounding. Sanders v. Commonwealth,, 2005 Va. App. LEXIS 386 (Oct. 4, 2005).

Assuming that the trial court erred by excluding evidence regarding the victim's specific incidents of prior violent conduct to establish his character for turbulence and violence and to corroborate defendant's evidence that he acted in self-defense, any error was harmless because the Commonwealth presented overwhelming evidence that defendant did not act in self-defense; none of the victim's actions justified defendant crossing the street and physically attacking him in his driveway. Arehart v. Commonwealth,, 2014 Va. App. LEXIS 190 (May 20, 2014).

Circuit court properly convicted defendant of unlawful wounding because defendant was not acting in self-defense inasmuch as he was at least partially at fault in creating the incident, his actions in repeatedly kicking the victim were not a reasonably apparent necessity to save defendant from great bodily harm, and defendant did not prove that he retreated as far as possible or announced his desire for peace. Murphy v. Commonwealth,, 2017 Va. App. LEXIS 195 (Aug. 8, 2017).

Trial court reasonably determined that defendant was the initial aggressor in the fight, having threatened to kill everyone in the home prior to the commencement of the altercation, plus he wielded a knife throughout the altercation, which resulted in significant injuries suffered by both of his younger brothers. It was not plainly wrong for the trial court to find that defendant did not act in self-defense. Gram v. Commonwealth, No. 0728-19-4, 2020 Va. App. LEXIS 55 (Mar. 3, 2020).

Defense of others. - In order to justifiably defend another, the defendant must reasonably believe that the person being defended was free from fault; whether the defended person was, in fact, free from fault is legally irrelevant to the defense. Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198 (1991).

The law pertaining to defense of others is that one may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray. Foster v. Commonwealth, 13 Va. App. 380, 412 S.E.2d 198 (1991).

No duty to retreat. - If a defendant is completely without fault in precipitating a violent confrontation, he is under no duty to retreat but, rather, is free to stand his ground and repel the attack by force. Swain v. Commonwealth, No. 2430-99-1, 2000 Va. App. LEXIS 701 (Ct. of Appeals Oct. 31, 2000).

An illegal arrest of itself does not give the person being arrested the right to shoot or take the officer's life. Banner v. Commonwealth, 204 Va. 640 , 133 S.E.2d 305 (1963).

Protection of property. - A man may rightfully use as much force as is necessary for the protection of his person or property, provided he does not endanger human life or do great bodily harm. But for a mere trespass upon land the owner has no right to assault the trespasser with a deadly weapon, the result of which may be to kill or do him great bodily harm. Montgomery v. Commonwealth, 98 Va. 840 , 36 S.E. 371 (1900); Montgomery v. Commonwealth, 99 Va. 833 , 37 S.E. 841 (1901).

Insanity. - Trial court did not abuse its discretion by precluding defendant from presenting evidence to the jury in support of a settled insanity defense because defendant conceded his insanity was not permanent. Morgan v. Commonwealth, 50 Va. App. 120, 646 S.E.2d 899, 2007 Va. App. LEXIS 251 (2007).

Acquittal of shooting one no defense to charge of shooting another. - If a person be indicted for shooting S.W. and acquitted thereof, and then indicted for shooting J.W. her plea of autrefois acquit will not be supported, although the same act of shooting is charged in each indictment; for, the jury who tried the first indictment might have acquitted the prisoner on several grounds, which would not affect the second trial, as that the shot did not strike and wound S.W. or that she did not shoot S.W. with intent to maim, disfigure, disable or kill the said S.W. Vaughan v. Commonwealth, 4 Va. (2 Va. Cas.) 273 (1821).

Conviction is acquittal of lesser offenses. - Where, in a prosecution for unlawfully, maliciously, and feloniously wounding one with intent to maim, disfigure, disable and kill him, accused was convicted of the highest offense charged, this conviction was equivalent to an acquittal of all lesser ones necessarily included therein, the latter being merged in the former. Lee v. Commonwealth, 135 Va. 572 , 115 S.E. 671 (1923).

C. EVIDENCE.

Commonwealth's burden to prove malice and intent. - To support a conviction for malicious wounding under this section, the Commonwealth must prove that the defendant inflicted the victim's injuries maliciously and with the intent to maim, disfigure, disable or kill. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Opportunity insufficient to prove criminal agency. - In a prosecution for causing bodily injury to a child, while the defendant's opportunity to injure her daughter and certain other circumstances in the case raised inferences which created a suspicion of guilt or even a probability of guilt, the evidence was insufficient to exclude a reasonable hypothesis that someone other than the defendant was the criminal agent; thus circumstantial evidence alone was not sufficient enough to prove criminal agency. Christian v. Commonwealth, 221 Va. 1078 , 277 S.E.2d 205 (1981).

To prove the crime of attempted murder two essential elements must be established. The specific intent to kill the victim must be shown and this must be coupled with evidence of some overt but ineffectual act in furtherance of this purpose. Hargrave v. Commonwealth, 214 Va. 436 , 201 S.E.2d 597 (1974).

Conviction can rest upon the uncorroborated testimony of the prosecuting witness. Robinson v. Commonwealth, 186 Va. 992 , 45 S.E.2d 162 (1947).

Weight of evidence is question for jury. - In the instant case accused was convicted of malicious cutting with intent to kill. The evidence for the Commonwealth was sufficient to sustain the conviction, and while several witnesses for the defense contradicted some of the testimony for the Commonwealth, and testified that accused bore a good reputation, the credibility of the witnesses and the weight of the evidence were questions for the jury, and the Supreme Court could not say that the judgment was plainly wrong or without evidence to support it. Jones v. Commonwealth, 135 Va. 545 , 115 S.E. 572 (1923).

Proof establishing wounding and bodily injury. - Proof established both a wounding within the purview of the ancient definition and a bodily injury, within the broadened meaning of this section. Shackelford v. Commonwealth, 183 Va. 423 , 32 S.E.2d 682 (1945).

Evidence that the defendant, acting in concert with two accomplices, stomped repeatedly on the victim's arm was sufficient to show he caused bodily injury to the victim. Hall v. Commonwealth, No. 1375-99-3, 2000 Va. App. LEXIS 703 (Ct. of Appeals Oct. 31, 2000).

And specific intent. - Evidence of express malice, plus the unprovoked and brutal attack by the accused, a strong man, upon a defenseless woman in her own home in the early hours of the morning, is clearly sufficient to establish the specific intent defined in this section. Shackelford v. Commonwealth, 183 Va. 423 , 32 S.E.2d 682 (1945).

Malice and the specific intent to maim, etc., may be evidenced by words or inferred from acts and conduct under the rule that a person is presumed to have intended the natural and probable consequences of his voluntary act. Fletcher v. Commonwealth, 209 Va. 636 , 166 S.E.2d 269 (1969).

Lack of direct evidence of subjective intent does not preclude conviction. - One may be convicted of unlawful wounding with intent to maim, disfigure, disable or kill another when there is no direct evidence of a subjective intent to inflict bodily harm to the injured person. David v. Commonwealth, 2 Va. App. 1, 340 S.E.2d 576 (1986).

The use of a deadly weapon, standing alone, is not sufficient to prove the specific intent required to establish attempted murder. Hargrave v. Commonwealth, 214 Va. 436 , 201 S.E.2d 597 (1974).

A verdict of unlawful wounding is sustained by evidence that the accused struck the prosecuting witness on his face and head and kicked him so that blood ran from his ears, nose and mouth and he suffered a small cut inside the mouth. Bryant v. Commonwealth, 189 Va. 310 , 53 S.E.2d 54 (1949).

Confidential communication need not be disclosed. Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873).

Expert testimony on gang culture. - Trial court did not abuse its discretion in admitting expert testimony on gang culture in defendant's criminal trial for malicious wounding and use of a firearm during the commission of a felony; the Commonwealth provided a sufficient foundation for the admission of the testimony, the testimony was relevant in that it established a motive for the shooting, and the evidence was not outweighed by prejudice. Hubbard v. Commonwealth,, 2006 Va. App. LEXIS 72 (Feb. 28, 2006).

In a case in which defendant appealed his conviction for violating §§ 18.2-51 , 18.2-53.1 , and 18.2-286.1 , he unsuccessfully argued that the trial court erred in permitting an expert witness to testify about gang practices and terminology, including his involvement with a gang. The trial court reasonably concluded that the probative value of the expert's testimony outweighed any prejudicial effect; the evidence was relevant to prove the identity of the shooter, and the testimony about his gang affiliation was probative as to defendant's identity. Wyche v. Commonwealth,, 2012 Va. App. LEXIS 227 (July 10, 2012).

Evidence held irrelevant. - See Jackson v. Commonwealth, 96 Va. 107 , 30 S.E. 452 (1898).

Introduction of prior convictions during guilt phase improper. - Trial judge erred in admitting defendant's two prior robbery convictions during the guilt phase of the trial because the felony convictions, which had to be proved to invoke § 19.2-297.1 , were not elements of the malicious wounding offense; § 19.2-297.1 unambiguously related to the punishment to be imposed upon conviction. Washington v. Commonwealth, 44 Va. App. 157, 604 S.E.2d 92, 2004 Va. App. LEXIS 503 (2004).

Where evidence shows beyond reasonable doubt that two defendants participated in the commission of an assault, it is immaterial whether they actually inflicted the specific injuries received by the victims. Allison v. Commonwealth, No. 0295-85 (Ct. of Appeals Mar. 19, 1986).

There was evidence to support the defendant's theory of unlawful wounding, where the evidence indicated that the fight was provoked by the victim and the shooting occurred several minutes thereafter, there was evidence that prior to the shooting the defendant was upset and was shouting for someone to give him a gun, after he obtained the gun several people tried unsuccessfully to restrain him, and the defendant fired two shots, one of which missed the victim; a jury could find from the evidence that the defendant did not act maliciously, but acted upon a reasonable provocation, in the heat of passion. Miller v. Commonwealth, 5 Va. App. 22, 359 S.E.2d 841 (1987).

Evidence that parent or stepparent has caused his or her child bodily injury, has done so maliciously, and with an intent to cause permanent injury, even if he fails in this intention, is sufficient to support a conviction of malicious wounding. Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 (1991).

Evidence of malice sufficient. - The evidence was sufficient to prove that the defendant acted with malice and not in the heat of passion where the evidence showed that the defendant entered the victim's residence in the early morning hours after he was informed that he was not welcome, that the entry was both unlawful and planned and that, after entering, the defendant attacked a third person and the victim and accused the victim of infidelity. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Given that the Commonwealth presented sufficient evidence that defendant burglarized an apartment with the requisite specific intent and malice to disfigure, maim, disable, or kill at least three of the victims, without provocation, his convictions based upon said actions were upheld on appeal. Slayton v. Commonwealth, No. 0441-06-2, 2007 Va. App. LEXIS 180 (May 1, 2007).

Where defendant drove his girlfriend's car at speeds of 77 to 107 miles per hour, 42 to 72 miles per hour over the posted speed limit of 35 miles per hour while driving in a populated area, and he moved out of the through lane of traffic and into the left turn lane, and drove his car into another vehicle causing the two vehicles to hit a third vehicle, there was sufficient evidence to convict him of malicious wounding in violation of § 18.2-51 as there was sufficient evidence from which a rational fact finder could infer that defendant's actions constituted implied malice. Knight v. Commonwealth, 61 Va. App. 148, 733 S.E.2d 701, 2012 Va. App. LEXIS 363 (2012).

Evidence was sufficient to convict defendant of malicious wounding because the victim stated that, at one point during a tussle, another individual ducked and defendant hit her in the face with a liquor bottle, which he held with a closed fist; the blow was with such extreme force that the victim fell to the ground only to realize that several of her teeth had been badly broken and cracked, and blood was gushing from her mouth; and the evidence proved that defendant intentionally hit the victim, either directly or accidentally under a theory of transferred intent, and the blows were delivered with such force or violence that the evidence established that defendant acted with the requisite specific intent or malice. Sledge v. Commonwealth, No. 1338-16-1, 2017 Va. App. LEXIS 161 (July 5, 2017).

Sufficient evidence supported defendant's conviction of malicious wounding, given that defendant punched the victim only after the victim had already been kicked multiple times and beaten, and it was apparent from the video of the altercation that defendant utilized a large wind-up to deliver a significant blow, such that the finding that he acted with malice was supported. Ramos v. Commonwealth, 71 Va. App. 150, 834 S.E.2d 499, 2019 Va. App. LEXIS 255 (2019).

Evidence held sufficient. - Evidence was sufficient to support conviction for malicious wounding with intent to maim, disfigure, disable, or kill of defendant where without provocation, defendant repeatedly struck victim on the side of his head, opening a wound that required several stitches to close, and after administering several of these blows, the defendant attempted to reach into one of the victim's pockets as if to take his wallet, and when the defendant was unsuccessful in his attempt to procure whatever he was seeking, he again struck the victim "real hard in the head two or three or four more times," stopping only upon the appearance of a security guard. Williams v. Commonwealth, No. 0844-92-1 (Ct. of Appeals Aug. 17, 1993).

Evidence was sufficient to show intent, notwithstanding the defendant's assertion that he acted in self-defense, where the victim testified that the defendant stabbed her after he wrestled a knife from her, the defendant stabbed the victim seven times, including twice in the back, and one wound was inflicted with sufficient force that it punctured the victim's lung. Murray v. Commonwealth, No. 1995-97-2 (Ct. of Appeals July 14, 1998).

Evidence held sufficient to sustain verdict. Pyliaris v. Commonwealth, No. 2193-97-2 (Ct. of Appeals Sept. 15, 1998); Jenkins v. Commonwealth, No. 0967-01-4, 2002 Va. App. LEXIS 660 (Ct. of Appeals Nov. 5, 2002); Muhammad v. Commonwealth, No. 1300-01-2, 2002 Va. App. LEXIS 731 (Ct. of Appeals Dec. 10, 2002).

The Commonwealth presented sufficient evidence of intent to sustain the defendant's conviction for attempted malicious wounding where the defendant, while attempting to leave a parking lot in a stolen vehicle, saw a pedestrian blocking his only avenue of escape and deliberately chose to accelerate the car toward the pedestrian, never decelerating, braking or swerving to avoid him, even when the pedestrian was only five to ten feet away from being struck. Moody v. Commonwealth, 28 Va. App. 702, 508 S.E.2d 354 (1998).

Evidence was sufficient to support a conviction where testimony of an uninterested witness established: (1) that a violent argument erupted between the defendant and the victim; (2) that the defendant armed herself with a knife; and (3) that the defendant stabbed the victim. Hall v. Commonwealth, No. 0642-98-4 (Ct. of Appeals Apr. 13, 1999).

Sufficient evidence supported defendant's convictions for attempted malicious wounding in violation of §§ 18.2-26 and 18.2-51 , and felony hit-and-run, in violation of § 46.2-894 , where the evidence presented at trial showed that, while trying to help her sister escape from a store where the sister had been stopped for shoplifting, defendant hit two store employees with her car, dragging one of them for several feet, and then fled the scene of the accident without stopping and giving the information required by § 46.2-894 . Brooks v. Commonwealth, No. 0898-01-2, 2002 Va. App. LEXIS 311 (Ct. of Appeals May 14, 2002).

Sufficient evidence supported defendant's conviction for unlawful wounding; the contextual circumstances coupled with defendant's notable age, size, and weight advantages over his victim supported the trial court's judgment. Parrish v. Commonwealth, No. 1688-02-3, 2003 Va. App. LEXIS 505 (Ct. of Appeals Oct. 7, 2003).

Commonwealth's evidence regarding a fight in a nightclub parking lot, although circumstantial, was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt that the defendant was guilty of maiming the person with whom she was fighting. Harris v. Commonwealth, No. 2083-02-1, 2003 Va. App. LEXIS 631 (Ct. of Appeals Dec. 9, 2003).

Sufficient evidence was presented to prove malicious wounding where defendant: (1) maliciously and intentionally struck the victim in the face without provocation with the intent to inflict serious injury; (2) prepared for the assault by wrapping a belt around his hand and knuckles, converting his bare fist into a more effective weapon; (3) ensured that the buckle would strike his victim and inflict serious injury; and (4) caused a four to five inch cut which, although healed, left a visible scar; moreover, because the court could find that defendant lied when he testified that the victim was the aggressor, it could infer that he was lying to conceal his guilt and the true nature of the intention with which he struck her. Branch v. Commonwealth, No. 1283-03-1, 2004 Va. App. LEXIS 153 (Ct. of Appeals Apr. 6, 2004).

Evidence supported defendant's conviction for malicious wounding where: (1) the victim testified that while he was incarcerated, he was assaulted by a group of inmates, including defendant; (2) another inmate overheard the group talking about the planned assault and then heard an attack; (3) photographs showed the victim's injuries; and (4) the medical testimony confirmed that the victim suffered hearing and vision injuries from the beating. Stump v. Commonwealth, No. 1112-03-3, 2004 Va. App. LEXIS 471 (Ct. of Appeals Oct. 5, 2004).

Defendant's unlawful wounding conviction was upheld, as the trial court properly disallowed evidence of prior specific acts of violence allegedly committed by the victim and sustained an objection to evidence of the victim's long-term alcohol use, given defendant's failure to: (1) proffer any evidence which would have supported his self-defense defense; (2) lay a proper foundation to support said defense; and (3) preserve for appeal the trial court's failure to rule on whether any expert testimony was necessary on the issue of the victim's long-term alcohol abuse, and whether there was a nexus between the same and her violent behavior, especially where the trial court specifically ruled that the long-term pattern of alcohol use was irrelevant. Witterman v. Commonwealth,, 2005 Va. App. LEXIS 281 (July 19, 2005).

Commonwealth presented sufficient evidence to sustain two convictions of using a firearm in commission of both a charge of attempted murder and a charge of malicious wounding, based on the victim's testimony, and the inferences drawn therefrom, in which the jury could reasonably conclude that: (1) defendant had a firearm in her possession when she hit the victim with the hammer; (2) when defendant shot the victim, and before she hit the victim with a hammer, nothing in the record indicated that she put the gun down before she hit him with the hammer; and (3) by having the firearm in her possession, defendant displayed the firearm in a threatening manner during the hammer attack; furthermore, although the record did not indicate that defendant presented the pistol in a threatening manner, the jury could properly conclude that her mere possession of the pistol during the hammer attack, coupled with the fact she had already used the pistol, could create a legitimate fear of further use and constituted display of a firearm in a threatening manner. Coleman v. Commonwealth, No. 1488-04-2, 2005 Va. App. LEXIS 379 (Ct. of Appeals Oct. 4, 2005).

Facts showed that: (1) defendant drove his truck down a 100-foot driveway at a high rate of speed; (2) the victim testified he believed that defendant was going to hit him, and he had to jump between two parked cars to escape being struck; (3) defendant admitted threatening the victim, drinking alcohol before the incident, and confirmed that he and the victim had prior confrontations; (4) the victim's father also heard defendant's threats and saw skid marks in the gravel driveway; (5) a police officer investigating the incident also observed fresh skid marks and testified defendant appeared to have been drinking; and (6) a motor vehicle, wrongfully used, could be a weapon as deadly as a gun or a knife. Thus, the trial court's determination that defendant attempted to run over the victim and cause him serious bodily injury was not plainly wrong or without evidence to support it; therefore, the evidence was sufficient to convict defendant of attempted malicious wounding. Sprouse v. Commonwealth, No. 3010-04-2,, 2006 Va. App. LEXIS 45 (Ct. of Appeals Feb. 7, 2006).

Evidence was sufficient to prove that defendant had the intent to maim, disfigure, disable, or kill his wife in a case where he was charged with unlawful wounding following an altercation with her in which he punched her in the nose so hard that he broke her nose in two places; the evidence showed that defendant was a much bigger person than his wife and that she needed surgery to correct the damage. Thornburgh v. Commonwealth,, 2006 Va. App. LEXIS 90 (Mar. 14, 2006).

Commonwealth's evidence was sufficient to convict defendant of malicious wounding, where the evidence showed that defendant pushed the victim onto the floor, hit the victim's head facedown on the floor, and continued to push the victim's face into the floor for several minutes. Paris Antwan Barnes v. Commonwealth,, 2006 Va. App. LEXIS 525 (Nov. 21, 2006).

Defendant's malicious wounding, aggravated malicious wounding, and use of a firearm in the commission of a felony convictions were upheld on appeal, as sufficient evidence linked him to a shooting while driving a jeep loaned to him and his cohorts in exchange for drugs, and based on the same, the trial judge could reject defendant's hypothesis that another group of men gained possession of the jeep and committed the crimes alleged. Powell v. Commonwealth, No. 1942-05-2, 2006 Va. App. LEXIS 537 (Ct. of Appeals Nov. 28, 2006).

Evidence that defendant beat the oldest child with defendant's hand, kicked the oldest child with defendant's feet, and struck the oldest child repeatedly with a cable cord using sufficient force to inflict welts, bruising, and scabs was sufficient to support a conviction for malicious wounding. Ferguson v. Commonwealth, 50 Va. App. 351, 649 S.E.2d 724, 2007 Va. App. LEXIS 338 (2007).

Evidence was sufficient to support defendant's conviction for the malicious wounding of a victim and a witness's daughter. The testimony of the witness, coupled with tire marks left in the grass by defendant's vehicle, supported a finding that defndant struck the victim and the witness's daughter when they were at a location in the grass more than six feet from the edge of a roadway. Patrick v. Commonwealth,, 2008 Va. App. LEXIS 231 (May 13, 2008).

Defendant's challenge to the sufficiency of the evidence to support convictions for second-degree murder, use of a firearm in the commission of murder, malicious wounding, and use of a firearm in the commission of malicious wounding lacked merit, because the testimony of defendant's grandfather, identifying defendant as the person who shot the pistol that wounded the grandfather and killed another victim, was not inherently incredible as a matter of law; any challenge based on the grandfather's admission that the grandfather had been drinking and doing drugs before the shooting did not render the testimony inherently incredible. Carrington v. Commonwealth,, 2009 Va. App. LEXIS 152 (Mar. 31, 2009).

Evidence that the victim suffered multiple stab wounds to the abdomen, lower back, and fingers, that the victim said defendant stabbed the victim, and that the knives used to stab the victim were found where victim said defendant put them was sufficient to support defendant's conviction for malicious wounding. Salahmand v. Commonwealth,, 2009 Va. App. LEXIS 324 (July 21, 2009).

Evidence was sufficient to support defendant's convictions for robbery, shooting within an occupied dwelling, using a firearm in the commission of a felony, armed burglary, and malicious wounding, because ample evidence supported a finding that defendant was a perpetrator in a home invasion: three of the victims identified defendant at trial, and a co-defendant testified that defendant said he intended to rob the home, that he entered the home wearing a bullet-proof vest and armed with a handgun, and that he later told the co-defendant that he had struck one of the victim's in the head. Trial court did not abuse discretion in ruling on misidentification of accomplices by witnesses. Streater v. Commonwealth,, 2009 Va. App. LEXIS 504 (Nov. 10, 2009).

Evidence was sufficient to convict defendant of unlawful wounding because the natural and probable consequence of defendant's high speed chase and bumping of another vehicle was causing an accident, which resulted in injury to the occupants of the other vehicle. Kelley v. Commonwealth,, 2010 Va. App. LEXIS 11 (Jan. 12, 2010).

Conviction for attempted malicious wounding under §§ 18.2-26 and 18.2-51 , was supported by evidence that defendant entered the victim's apartment and attempted to take money from the victim by intimidating him at gunpoint, and defendant and the victim struggled; defendant's exclusive possession of defendant's gun during the entire time the incident was occurring supported a finding that the gunshot was deliberate, not accidental, and the trial court was entitled to infer that defendant intended the natural and probable consequences of pointing a gun at someone during a robbery, that the circumstances might result in the gun firing. Reid v. Commonwealth, No. 2020-09-1, 2010 Va. App. LEXIS 334 (Ct. of Appeals Aug. 17, 2010).

Defendant's convictions for robbery, abduction, and malicious wounding, were proper because the fact that he was not wearing a white coat did not negate a detective's reasonable suspicion that defendant was somehow involved in criminal activity. The trial court accepted the explanation that defendant had abandoned his coat as he fled. Diaz v. Commonwealth,, 2010 Va. App. LEXIS 417 (Oct. 26, 2010).

In a prosecution for malicious wounding, the evidence was sufficient to show that defendant's actions caused the victim's wounds as the evidence showed that defendant, at a minimum, acted as a principal, within the meaning of § 18.2-18 , in the malicious wounding of the victim, in that the evidence showed that defendant was present during the malicious wounding of the victim and performed an overt act of assistance by striking the initial blow against the victim. Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Evidence was sufficient to establish that the victim was wounded in a manner sufficient to satisfy the requirements of § 18.2-51 , in that the evidence showed that, following the attack, there was a very large pool of blood beside the victim's head, with blood coming out of his nose, mouth, and eye. These breaks or cuts in the skin were sufficient to show that the victim suffered a qualified wound under § 18.2-51 . Johnson v. Commonwealth, 58 Va. App. 303, 709 S.E.2d 175, 2011 Va. App. LEXIS 185 (2011).

Evidence that defendant's beating of the victim lasted for a sustained period, involving 25 to 30 blows; that the beating caused the victim intense shooting pain, temporarily leaving the victim barely able to move; and that months later the victim was still partially incapacitated and continued to need medical treatment for nerve damage and chronic radiating pain, supported a conviction for maliciously causing bodily injury. English v. Commonwealth, 58 Va. App. 711, 715 S.E.2d 391, 2011 Va. App. LEXIS 298 (2011).

Evidence was sufficient to support defendant's malicious wounding conviction, where the trier of fact was free to conclude that defendant did not act in the heat of passion, as defendant left the room to get a pistol before the fight began, and that there was no provocation that reasonably produced such fear or anger in defendant as would have caused defendant to act on impulse without conscious reflection. Cook v. Commonwealth,, 2011 Va. App. LEXIS 409 (Dec. 20, 2011).

Where the trial court expressly found that the "pocket discharge" that wounded the unintended victim was negligent or accidental and defendant had the intent to maim, disfigure or kill codefendant's intended victim when defendant began the process of withdrawing the gun from his pocket, the action causing the shooting, the evidence supported a finding that defendant had the intent to maim, disfigure, disable, or kill the victim. Moore v. Commonwealth,, 2012 Va. App. LEXIS 218 (July 3, 2012).

Evidence was sufficient to convict defendant of malicious wounding; though the victim had only a limited opportunity to view his three attackers, who hit him from behind, he was not completely unable to witness them as the crime began, and the reliability of his identification of defendant, whom he knew, was proven through other circumstances. Smith v. Commonwealth, No. 1266-12-1, 2013 Va. App. LEXIS 383 (Dec. 17, 2013).

Evidence was sufficient to prove defendant was an accomplice or principal in the second degree of malicious wounding and attempted robbery, as the victim testified that defendant and two other men all attacked him and searched his pockets. Smith v. Commonwealth, No. 1266-12-1, 2013 Va. App. LEXIS 383 (Dec. 17, 2013).

Evidence was sufficient to convict defendant of malicious wounding; though defendant and his two companions struck the victim only with their fists, he was beaten with such force and brutality that his eyes bled and he missed two weeks of school. Smith v. Commonwealth, No. 1266-12-1, 2013 Va. App. LEXIS 383 (Dec. 17, 2013).

Evidence was sufficient to convict defendant of malicious wounding because the victim identified him as the person who punched her twice in the mouth with his closed fist, without provocation, and the seriousness of the victim's injuries demonstrated a level of violence sufficient to find the existence of intent to permanently injure the victim. Thompson v. Commonwealth, No. 2131-12-2, 2013 Va. App. LEXIS 350 (Nov. 26, 2013).

Evidence that the attack on the victim caused the victim to receive stitches and suffer from a permanently damaged tooth supported defendant's conviction for malicious wounding. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 212 (May 27, 2014).

The evidence was sufficient to convict defendant of malicious wounding a reasonable trier of fact could have determined that the victim was cut inside or around his mouth or eye and thereby suffered a "wound"; after defendant's attack on the victim ceased, the victim was unconscious, bleeding from his eye and mouth, and his face was swollen, and a weapon other than that with which the body was naturally provided did have to be used to cause the wound. Conway v. Commonwealth,, 2015 Va. App. LEXIS 182 (June 2, 2015).

Evidence supported defendant's conviction for malicious wounding because the evidence was sufficient to prove that defendant intended to inflict a permanent injury on the victim as the trial court found from the victim's testimony that defendant charged at the victim, knocked the victim to the ground, and repeatedly punched the victim in the head. Howard v. Commonwealth, No. 0793-14-1, 2015 Va. App. LEXIS 152 (May 5, 2015).

Evidence that defendant tool control of the wheel and abruptly steered across oncoming traffic and into an embankment, putting his and his wife's lives in danger supported a conviction for malicious wounding. Synan v. Commonwealth, 67 Va. App. 173, 795 S.E.2d 464 (2017).

Defendant's malicious wounding convictions were supported by the evidence, as the jury could have found that he specifically intended to disfigure the two minor children when he tattooed their arms; the victims resisted and were hurt by the tattooing, defendant was inexperienced and did not change the needle between tattooing each victim, and despite one victim's crying, defendant forced her to receive three separate tattoos. Edwards v. Commonwealth, No. 0939-16-3, 2017 Va. App. LEXIS 102 (Apr. 11, 2017).

Evidence was sufficient to support the circuit court's finding that defendant maliciously wounded the victim and used a firearm to commit that malicious wounding because the circuit court explicitly weighed a number of factors in making its credibility determination; the fact that the victim used crack cocaine and consumed alcohol sometime before the shooting did not render his testimony inadmissible but were relevant factors for the circuit court to weigh in assigning credibility. McClain v. Commonwealth, No. 1838-16-2, 2017 Va. App. LEXIS 259 (Oct. 17, 2017).

Defendant's malicious wounding conviction under should have been upheld, because violently striking an unsuspecting, defenseless victim, without provocation, in the back of the head with a firearm - with or without the combined violence of another acting in concert of action - supported the reasonable inference that the attacker had the intent to maliciously wound the victim in cases where the attack actually injured the victim. Commonwealth v. Perkins, 295 Va. 323 , 812 S.E.2d 212, 2018 Va. LEXIS 60 (2018).

Evidence that defendant attacked a victim who was not expecting a blow and was unable and unprepared to defend himself, striking him more than once, breaking bones, and cutting a vulnerable area of the victim's body with some object, and defendant left the victim seriously injured was sufficient to support defendant's conviction for unlawful wounding. Hunter v. Commonwealth,, 2018 Va. App. LEXIS 65 (Mar. 20, 2018).

Evidence was sufficient to support defendant's conviction of malicious wounding because it showed that defendant kicked the victim, struck him with his shield and knocked him to the ground, and then kicked him at least three times while he was on the ground. The victim suffered a large laceration to his head and a fracture to his arm. Goodwin v. Commonwealth, 71 Va. App. 125, 834 S.E.2d 487, 2019 Va. App. LEXIS 257 (2019).

Defendant's conviction of two counts of unlawful wounding was supported by sufficient evidence; it was uncontroverted that defendant and his two younger brothers got into an altercation, neither of the younger brothers testified to having a weapon, and defendant admitted that he possessed a knife during the fight. Since defendant was the only individual holding a knife during the altercation, it was reasonable for the trial court to conclude that the brothers' wounds were caused by the knife wielded by defendant. Gram v. Commonwealth, No. 0728-19-4, 2020 Va. App. LEXIS 55 (Mar. 3, 2020).

Trial court did not err in convicting defendant of unlawful wounding because the fact that the trial court found the victim's version of the events incredible did not mean that the trial court was obligated to find each and every part of her testimony incredible and it was not obligated to accept the entirety of defendant's testimony; although the victim attempted to rob defendant, there was evidence to support that defendant became irate and continued stabbing the victim after he gained control of the knife; and, despite the attempted robbery and the severity of the victim's injuries, defendant neglected to call either the police or emergency medical services. McNair v. Commonwealth, No. 1299-19-1, 2020 Va. App. LEXIS 246 (Oct. 20, 2020).

Evidence was sufficient to support defendant's conviction of attempted malicious wounding because it showed that he blocked her car, aggressively yelled at her to get out, and repeatedly struck her window with a tire iron, damaging the window. Fletcher v. Commonwealth, 72 Va. App. 493, 849 S.E.2d 594, 2020 Va. App. LEXIS 275 (2020).

Evidence held insufficient to sustain verdict. - Evidence raised no more than a suspicion of the defendant's guilt and, therefore, was insufficient to support his conviction where: (1) after drinking with a friend for much of a day, the victim had an altercation with the defendant, during which the defendant hit the victim in the back and stomach; (2) the victim passed out shortly thereafter and, when he awoke, he was in a hospital being treated for stab wounds; (3) the victim testified that he did not perceive being stabbed and that the defendant struck him with his fists, but that some stab wounds were in places he recalled being hit by the defendant; (4) there was no evidence of the time of the altercation with the defendant, the length of time he was passed out, or the time he was taken to the hospital; and (5) the defendant stated that he knew that the victim had been stabbed, but that he did not inflict the wounds. Smith v. Commonwealth, No. 2130-97-2 (Ct. of Appeals Mar. 2, 1999).

There was insufficient evidence to support the defendant's conviction for malicious wounding where the stabbing victim testified that the defendant attacked him with his fists, and the record at trial contained no evidence of the length of time the victim lay unconscious on the sidewalk or what transpired in the interval of time preceding his arrival at the hospital. The evidence of record supported two hypotheses: (1) that the period of unconsciousness resulted from a fist attack that developed into a knife attack by the defendant or (2) that the victim's unconsciousness resulted from his state of intoxication which inspired an unidentified pedestrian present at the scene (or one arriving later) to use a knife to terrorize the victim in order to achieve some ulterior motive and, consequently, the Commonwealth failed to prove the guilt of the accused to the exclusion of every reasonable hypothesis consistent with his innocence. Commonwealth v. Smith, 259 Va. 780 , 529 S.E.2d 78, 2000 Va. LEXIS 76 (2000).

Evidence presented by the Commonwealth that the defendant and a gunman entered a home, demanded the contents of a safe and tied the victim up, and that a table was broken and that the victim received scratches on her body presumably from the glass was insufficient to support the defendant's conviction; the evidence did not show that the defendant broke the glass table, that the glass caused the victim's injuries, or that the defendant intended to injure someone by breaking the table. Anderson v. Commonwealth, No. 0235-99-1, 2000 Va. App. LEXIS 539 (Ct. of Appeals July 25, 2000).

Evidence that established nothing more than that defendant was one of four passengers in a vehicle from which shots were fired wounding the victim in another car was not sufficient to support conviction of defendant for malicious wounding; suspicion that defendant was the shooter, no matter how strong, could not support the conviction. Hudgins v. Commonwealth, No. 0960-00-2, 2001 Va. App. LEXIS 526 (Ct. of Appeals Sept. 25, 2001).

Trial court erred in convicting defendant of unlawful wounding after finding the Commonwealth failed to prove an intent to maim, disfigure, disable or kill; as defendant admitted he committed assault and battery, the case was remanded for entry of an order of conviction for such. Jones v. Commonwealth,, 2015 Va. App. LEXIS 101 (Mar. 31, 2015).

Although the evidence showed that defendant struck the victim in the head with gun and injured the victim, the evidence was insufficient to support a conviction for malicious wounding, as the record did not contain sufficient evidence from which the trial court could have inferred an intent to cause permanent disability. Perkins v. Commonwealth, No. 1040-15-1, 2017 Va. App. LEXIS 10 (Ct. of Appeals Jan. 17, 2017).

Firing weapon into floor of upstairs apartment. - Evidence was sufficient to support the trial court's finding that defendant possessed the specific intent required to convict him of malicious wounding. After eruption of an argument between himself and women he had just had intercourse with and requested that she leave before his girlfriend returned home, he intentionally twice fired a powerful weapon into the floor of his upstairs apartment at three o'clock in the morning, almost severing the leg of the sleeping resident above. Such conduct was inherently dangerous and imposed grave risk to anyone in the vicinity, thus, the fact finder was entitled to infer from this that defendant intended the direct and probable consequences of his act. Shimhue v. Commonwealth, No. 1736-97-2 (Ct. of Appeals June 30, 1998).

D. INSTRUCTIONS.

Jury should be charged as to offenses of which accused may be convicted. - Generally, on an indictment for malicious wounding under this section, the accused may be convicted of either malicious wounding, unlawful wounding, or simple assault and battery, and the jury are so charged by the clerk under the authority of the court, stating the punishment annexed to each. The pleadings are made up before this charge is given, and if the charge is not correct, objection to it should then be made. Honacker v. Commonwealth, 136 Va. 752 , 118 S.E. 85 (1923).

A jury should be instructed that this section contemplates that a cutting or wounding may either be a malicious or unlawful wounding. Shifflett v. Commonwealth, 221 Va. 191 , 269 S.E.2d 353 (1980).

And intent must be to disfigure permanently. - On a prosecution for maiming under this section, where it was an open question whether the wound was caused by the blow of accused's fist or by a blow with a sharp instrument, it was error for the court to refuse to instruct the jury that the accused could not be convicted of the felony charged unless they believed he intended to kill, or maim, or disfigure permanently, the prosecutor, and to give the same instruction with the word "permanently" stricken out. Lee v. Commonwealth, 135 Va. 572 , 115 S.E. 671 (1923).

Instruction not based on evidence refused. - In a prosecution under this section, defendant objected that in declining to give instructions asked by him on provocation, self-defense, and his intoxication at the time of the shooting, the court refused to present to the jury the law covering accused's theory of the case. It was held, that, as the record failed to disclose any evidence upon which the instructions would have been based, their refusal was not error. Harris v. Commonwealth, 134 Va. 688 , 114 S.E.2d 597 (1922).

Defendant's request that the trial court instruct the jury that if the detention of the victim was incidental to an assault, defendant could not be guilty of abduction, was properly denied as defendant followed the victim after she fled from the car and grabbed her, which was not incidental to the malicious wounding charge based on the restraint defendant used at the time he bit off the victim's finger, before she fled. Lewis v. Commonwealth, No. 1770-03-2, 2004 Va. App. LEXIS 296 (Ct. of Appeals June 29, 2004).

Instruction when defendant not charged with malicious cutting. - Where defendants were indicted upon the charge of having "unlawfully and feloniously" cut and wounded another, but the indictments contained no charge of "malicious" cutting, the court erred in permitting the clerk to read the jury this section without explaining to them that they were not to regard that portion of it which related to the punishment for maliciously doing the acts therein described, and in refusing an instruction requested by counsel for defendants that under the indictment defendants could not be found guilty of maliciously cutting or stabbing. Hummer v. Commonwealth, 122 Va. 826 , 94 S.E. 157 (1917).

Instruction on the lesser offense of unlawful wounding. - Where a defendant produces evidence that he acted in the heat of passion, he is entitled to an instruction on the lesser offense of unlawful wounding. If the evidence as a whole raises a reasonable doubt that he acted maliciously, he is entitled to a verdict on the lesser charge. Miller v. Commonwealth, 5 Va. App. 22, 359 S.E.2d 841 (1987).

Failure to give a jury instruction on unlawful wounding, as a lesser-included offense of malicious wounding required reversal, because there was more than a scintilla of evidence to support the theory that defendant pulled a gun only after the victim first shot him. Person v. Commonwealth,, 2012 Va. App. LEXIS 187 (June 5, 2012).

Defendant's request for a jury instruction on the lesser-included offense of unlawful wounding was properly denied in his malicious wounding trial as malice could be inferred as: (1) defendant brought a loaded gun with him, even though he knew it was unlawful for him to do so; (2) he retrieved the gun from under the seat of a car and, knowing that it was loaded, pointed it toward the victim and pulled the trigger; (3) he continued to pull the trigger as the victim was fleeing; and (4) his acts were not done in the heat of passion as his fear because he heard about a friend's murder nine days earlier was not the result of reasonable provocation by the victim and did not occur simultaneously with the shooting. Williams v. Commonwealth, 64 Va. App. 240, 767 S.E.2d 252, 2015 Va. App. LEXIS 13 (2015).

Instruction on lesser offenses of assault and battery. - Defendant, convicted of malicious wounding in violation of § 18.2-51 , was not entitled to a jury instruction on the lesser-included offenses of assault and battery, as the evidence showed he had the specific intent to maim, disfigure, disable, or kill the victim, which would violate the malicious wounding statute, and the evidence did not show that defendant only had the intent to cause bodily harm to the victim. Commonwealth v. Vaughn, 263 Va. 31 , 557 S.E.2d 220, 2002 Va. LEXIS 7 (2002).

Although defendant claimed he intended merely to rob the victim, he shoved her into a brick wall, threatened to kill her by slitting her throat, pushed his gloves into her eyes to the point the victim thought she would lose her eyes, participated in brutally beating and kicking the victim, and smashed her head into the brick wall and doorway; the victim suffered injuries to her face, hands, wrists, arms, ribs, legs, and ankles as a result of the attack. The gravity of the victim's uncontroverted physical injuries inflicted by defendant, his brutal conduct in attacking her, and his verbal threats to kill her belied any finding that he did not maliciously intend to maim, disfigure, disable, or kill the victim; thus, there was no scintilla of evidence that he did not intend to maim, disfigure, disable, or kill her, and the trial court did not err in denying the jury instruction on the lesser-included offense of assault and battery. Thomas v. Commonwealth,, 2006 Va. App. LEXIS 37 (Jan. 31, 2006).

Instruction on lesser offenses. - In a case of malicious wounding, defendant's tendered jury instructions, which allowed the jury the option of considering the lesser offenses of unlawful wounding and assault and battery, were improperly denied because the jury could have found that defendant did not have the requisite intent to maim, disfigure, or kill or that he lacked malice as he was acting in the heat of passion founded upon fear because defendant testified that the victim came into the bedroom and thrust a knife at him that went through his shirt, that the victim came at him again, that defendant then grabbed his gun and came around and fired, and that he did not aim and just wanted to scare the victim so he could get out of the apartment. Witherow v. Commonwealth, 65 Va. App. 557, 779 S.E.2d 223, 2015 Va. App. LEXIS 354 (2015).

Jury to be given complete definition of malice. - In order to properly distinguish malicious wounding from unlawful wounding, the jury must be given a complete definition of malice; thus, when the trial court instructed the jury that it could ignore the concepts of heat of passion and control of reason, its definition of malice was rendered incomplete. Mason v. Commonwealth, 7 Va. App. 339, 373 S.E.2d 603 (1988).

Instruction on self-defense. - In a prosecution for malicious wounding, the trial court erred by refusing defendant's request to charge the jury on self-defense and the burden of proving self-defense, as the defense evidence supported defendant's theory that the victim advanced on defendant, kicked and swung at her, and defendant reacted by striking the victim. Brooks v. Commonwealth,, 2012 Va. App. LEXIS 397 (Dec. 11, 2012).

Self-defense without fault. - In a case in which defendant was convicted of malicious wounding and use of a firearm in the commission of malicious wounding, because the evidence failed to support an instruction on self-defense without fault, defendant was not entitled to such an instruction, as a matter of law, and the trial court properly refused defendant's proffered instruction on self-defense without fault. Robinson v. Commonwealth,, 2006 Va. App. LEXIS 474 (Oct. 24, 2006).

It was error not to give assault and battery instruction where from defendant's testimony, the jury reasonably could have concluded that defendant acted only with the intent to do victim bodily harm, albeit with malice; jury should have received, in addition to the malicious wounding instruction given, an instruction giving them the opportunity to assess the evidence as it related to assault and battery, an offense that may be accompanied by malice, but does not require intent to maim, disfigure or kill. Boone v. Commonwealth, 14 Va. App. 130, 415 S.E.2d 250 (1992).

A trial court erred in failing to instruct the jury on both malicious wounding and the lesser included offense of assault and battery where the jury could have concluded that the defendant lacked the specific intent to maim, disfigure, disable or kill and acted only with the intent to do bodily harm to the victim, whether with or without malice; credible evidence was before the jury that, if believed, supported an instruction on assault and battery and it was immaterial that the jury might have rejected the lesser-included offense. Maye v. Commonwealth, No. 2311-98-2, 2000 Va. App. LEXIS 629 (Ct. of Appeals Aug. 29, 2000).

Instruction on insanity defense. - Because the instruction given by the trial court was an accurate statement of law regarding the burden of proof, the trial court did not err in refusing defendant's proffered instructions. Moreover, Virginia's allocation to defendant of both the burden of production and the burden of persuasion with respect to the affirmative defense of insanity was constitutionally permissible. Morgan v. Commonwealth, 50 Va. App. 120, 646 S.E.2d 899, 2007 Va. App. LEXIS 251 (2007).

Instruction on heat of passion defense. - In a prosecution on a charge of malicious wounding, the trial court erred in refusing to instruct the jury concerning heat of passion as a rational jury could have concluded that the attack by the victim and his friend on defendant from the front and the back in the form of a choke hold and the friend's perceived attempted theft together constituted a reasonable provocation. This testimony provided more than a scintilla of evidence that provocation caused fear for defendant's own safety and the safety of his girlfriend. Parisi v. Commonwealth,, 2009 Va. App. LEXIS 130 (Mar. 24, 2009).

In a prosecution for malicious wounding, although the jury instructions properly defined malice, defendant was nevertheless entitled to have "heat of passion" defined in support of her theory of defense, as there was evidence to support that defense. Brooks v. Commonwealth,, 2012 Va. App. LEXIS 397 (Dec. 11, 2012).

Instruction on defense of accident. - In a case where defendant was convicted of malicious wounding, the trial court erred by failing to properly instruct the jury on the defense of accident as credible evidence supported defendant's proffered instruction because, while the victim testified in support of the prosecution's malicious wounding theory of the case, defendant's testimony established that she did not intend to deliberately harm the victim, and, instead, wanted to commit suicide, but, during a struggle over the firearm, the victim reached for defendant's right arm, which held the firearm, the firearm accidentally discharged, and the victim was wounded. King v. Commonwealth,, 2014 Va. App. LEXIS 356 (Oct. 28, 2014).

Erroneous jury instruction. - Erroneous jury instruction on malicious wounding that omitted the element of intent to permanently maim, disfigure, or disable the victim did not render the trial fundamentally unfair as the evidence in the case clearly gave rise to a conclusive presumption that defendant intended to permanently injure the victim. Dominguez v. Pruett, 287 Va. 434 , 756 S.E.2d 911, 2014 Va. LEXIS 59 (2014).

E. VERDICT, SENTENCE AND PUNISHMENT.

Accused may be convicted of any offense substantially charged. - Under an indictment with only one count, for malicious shooting, stabbing or cutting, with the intent to kill, the accused may be convicted of the offense charged, or of unlawfully doing such acts, or indeed, of any other offense - felony or misdemeanor - which is substantially charged in the indictment. Canada v. Commonwealth, 63 Va. (22 Gratt.) 899 (1872); Stuart v. Commonwealth, 69 Va. (28 Gratt.) 950 (1877); Montgomery v. Commonwealth, 98 Va. 840 , 36 S.E. 371 (1900). See § 18.2-54 .

Under an indictment charging that accused "in and upon one Dorothy Crutchfield feloniously did make an assault and her, the said Dorothy Crutchfield then and there unlawfully, feloniously and maliciously did stab, cut and wound with intent then and there, the said Dorothy Crutchfield, to maim, disfigure, disable and kill," accused could have been convicted: (1) of a malicious wounding with intent to maim, disfigure, disable and kill; (2) of unlawful wounding with the same intent; or (3) of simple assault and battery. Crutchfield v. Commonwealth, 187 Va. 291 , 46 S.E.2d 340 (1948). See Williams v. Commonwealth, 153 Va. 987 , 151 S.E. 151 (1930); Smyth v. Gay, 197 Va. 800 , 91 S.E.2d 425 (1956).

Under an indictment charging felonious and malicious maiming with intent to maim, disfigure, disable or kill, the jury, if warranted by the evidence, may find the accused guilty of: (1) malicious wounding with the intent to maim, disfigure, disable or kill; or (2) unlawful wounding with the same intent; or (3) simple assault and battery. Spradlin v. Commonwealth, 195 Va. 523 , 79 S.E.2d 443 (1954); Banner v. Commonwealth, 204 Va. 640 , 133 S.E.2d 305 (1963).

Maryland statute substantially conformed to § 18.2-51 . - Defendant's conviction of assault with intent to maim under former Md. Ann. Code art. 27, § 386 substantially conformed to § 18.2-51 and could be used under subsection B of § 19.2-297.1 to establish a violent felony under § 17.1-805 to support defendant's conviction of possession of a firearm after being convicted of a violent felony under subsection A of § 18.2-308.2 as defendant was specifically convicted of an intent to maim, which was proscribed by § 18.2-51. Dillsworth v. Commonwealth, 62 Va. App. 93, 741 S.E.2d 818, 2013 Va. App. LEXIS 148 (2013).

Imposition of improper sentence. - Trial court erred by sentencing defendant to ten years' incarceration for each of defendant's two convictions of unlawful wounding, in violation of § 18.2-51 , because § 18.2-10(f) authorized the imposition of a maximum five years' incarceration for unlawful wounding, a Class 6 felony. Furthermore, because the appellate court could only speculate as to the sentence that the trial court might have imposed on remand for each conviction of unlawful wounding, using the correct statutory sentencing range, each case had to be remanded to the trial court for resentencing. Gordon v. Commonwealth, 61 Va. App. 682, 739 S.E.2d 276, 2013 Va. App. LEXIS 102 (2013).

Sufficient finding of intent. - J. was indicted for the malicious stabbing, etc., of W., with intent to maim, etc., and the jury found J. "guilty of unlawful cutting, as charged in the within indictment," etc. The language, "as charged in the within indictment," has reference both to the cutting and the intent, and is sufficient finding of the intent with which the unlawful act was done, to meet the requirement of the statute. Jones v. Commonwealth, 72 Va. (31 Gratt.) 830 (1878).

Verdict need not specify degree of crime charged. - This section does not require either that the verdict of a jury or the finding of a court specify the degree of the crime charged. Smyth v. Gay, 197 Va. 800 , 91 S.E.2d 425 (1956).

Nor inform defendant of what offense he was convicted. - In the instant case accused was indicted for unlawfully, maliciously, and feloniously wounding one B. with intent to maim, disfigure, disable and kill him. The jury found the accused guilty as charged in the indictment and fixed his punishment at two years in the penitentiary (now state correctional facility). It was claimed for accused that the trial court should have set aside the verdict, because, as the punishment fixed therein could have been lawfully imposed for either unlawful or malicious maiming, it failed to inform the defendant of the offense for which he was convicted. It was held that there was no merit in this contention. The statute did not require the jury to specify the degree or grade of the crime, and, the verdict being general, the presumption is that they found the defendant guilty of the highest degree charged in the indictment and to which the punishment prescribed was applicable. Lee v. Commonwealth, 135 Va. 572 , 115 S.E. 671 (1923).

Conviction not invalid because verdict form lacked recitation of intent. - Where appellant asserted that the unlawful wounding verdict form was invalid because it failed to specify that he wounded victim with an intent to maim, disfigure, disable, or kill, the verdict form included the phrase "on the issue joined." Additionally, the instructions defining unlawful wounding included the requisite intent. Appellant's conviction for unlawful wounding was therefore not invalid merely because the verdict form lacked recitation of the requisite intent. McKenley v. Commonwealth, No. 1910-96-3 (Ct. of Appeals Oct. 28, 1997).

Verdict of "unlawful maiming" is acquittal of malicious wounding. - A verdict of "unlawful maiming," although fatally defective, necessarily manifested an acquittal of malicious wounding, and therefore defendant could not upon a new trial be convicted of malicious wounding with intent to maim, but might be convicted of unlawful wounding with the requisite intent or of the lesser and included offense of assault and battery. Banner v. Commonwealth, 204 Va. 640 , 133 S.E.2d 305 (1963).

Verdicts of unlawful wounding and unlawful use of firearm in malicious wounding not inconsistent. - Defendant did not have to be charged with malicious wounding to be convicted of the unlawful use of a firearm in commission of malicious wounding. Guilty verdicts on both unlawful wounding and unlawful use of a firearm in commission of malicious wounding charges were not inconsistent because the evidence supported both verdicts. Reese v. Commonwealth, No. 1279-03-4, 2004 Va. App. LEXIS 316 (Ct. of Appeals July 6, 2004).

Verdict read in connection with indictment. - On an indictment for maliciously shooting with intent to kill, etc., one S., the jury returned their verdict: "We, the jury, find the prisoner guilty of unlawful shooting with intent to kill, as charged in the indictment, and fix the term of imprisonment, at three years in the penitentiary (now state correctional facility)." The verdict is to be read in connection with the indictment, and therefore sufficiently indicates the person shot. Price v. Commonwealth, 77 Va. 393 (1883). See Hoback v. Commonwealth, 69 Va. (28 Gratt.) 922 (1877); Hairston v. Commonwealth, 97 Va. 754 , 32 S.E. 797 (1899). But see Randall v. Commonwealth, 65 Va. (24 Gratt.) 644 (1874), overruled on another point, Jolly v. Commonwealth, 136 Va. 756 , 118 S.E. 109 (1923).

Verdicts held valid. - Verdicts in which the jury found the defendant guilty of malicious wounding and unlawful wounding were valid since the requisite intent, while not stated specifically in the verdicts, was necessarily implied. Jackson v. Commonwealth, 218 Va. 490 , 237 S.E.2d 791 (1977).

Defendant was not improperly convicted of malicious wounding when an indictment charged defendant with the crime of unlawful wounding, under § 18.2-51 , because even though the trial court used the words "malicious wounding" when pronouncing guilt at the close of a bench trial, the trial court's written order convicted defendant as charged. However, defendant's sentence to twenty years in prison, with fifteen years suspended, for unlawful wounding was excessive because the crime was a class 6 felony for which the maximum sentence was five years in prison under § 18.2-10 . Ferguson v. Commonwealth, 51 Va. App. 427, 658 S.E.2d 692, 2008 Va. App. LEXIS 367 (2008).

Trial court did not abuse its discretion in sentencing defendant to three years of active incarceration on a malicious wounding charge. Even if the appellate court thought defendant's arguments for overturning binding precedent had merit and that sentencing a repeat violent offender such as defendant to a term of active incarceration for maliciously shooting another human being could constitute an abuse of discretion, the appellate court lacked the authority to grant defendant the relief he sought. Williams v. Commonwealth,, 2017 Va. App. LEXIS 230 (Sept. 5, 2017).

Verdicts held insufficient. - A prisoner was tried upon an indictment containing two counts. The first charged that he unlawfully, feloniously, willfully, voluntarily, maliciously, etc., stabbed a person with intent to maim, disfigure and kill said person. The second count charged that the person unlawfully, feloniously, voluntarily and with purpose stabbed the said person with intent to maim, disable, disfigure and kill said person. The jury returned a verdict finding "the person not guilty under the first count of the indictment but guilty of unlawful stabbing." It was held that the verdict is insufficient and will not authorize a judgment, but the court should direct a new trial. Marshall v. Commonwealth, 46 Va. (5 Gratt.) 663 (1848).

A judgment of conviction cannot be sustained, where it was not possible under the verdict of the jury to determine the crime of which the jury intended to find the accused guilty, as so much of the verdict as found accused guilty of "unjustful assault" might be fairly construed as finding him guilty of unlawful assault; that is, simple assault and battery; but the concluding clause of the verdict in which the punishment was fixed at two years in the penitentiary (now state correctional facility) contradicts this finding of simple assault. The punishment as for a felony is inconsistent with the finding that accused was guilty of a misdemeanor. Williams v. Commonwealth, 153 Va. 987 , 151 S.E. 151 (1930).

A verdict which merely found the defendant guilty of "unlawful wounding" and failed to name the person wounded, to recite that the wounding was done "with intent to maim," etc., or to state that it was committed "as charged in the indictment," was fatally defective. Lane v. Commonwealth, 190 Va. 58 , 55 S.E.2d 450 (1949).

A verdict finding defendant guilty of "unlawful maiming" was fatally defective in that it failed to recite the requisite intent or to state "as charged in the indictment." Banner v. Commonwealth, 204 Va. 640 , 133 S.E.2d 305 (1963).

A jury verdict stating "We, the jury, find the accused guilty of unlawful wounding and fix his punishment at 12 months in jail - $500 fine," is void, except insofar as it served to acquit the defendant of malicious wounding, for failure to recite that the wounding was done with the necessary intent or as charged in the indictment. Bacci v. Commonwealth, 213 Va. 236 , 191 S.E.2d 182 (1972).

Verdict of guilty of assault and battery properly accepted by trial court. - Defendant, indicted and tried for violation of the maiming act, was found guilty of assault and battery. Since the evidence was sufficiently conflicting to create a reasonable difference of opinion, the verdict was properly accepted by the trial court. Harper v. Commonwealth, 196 Va. 723 , 85 S.E.2d 249 (1955).

Verdict of guilty of assault and battery improper. - In a prosecution for attempted murder where the jury concluded that the evidence was not sufficient to show an intent by the defendant to murder the wounded victim or that the defendant's act was committed maliciously, and where the jury did find that the defendant committed an unlawful wounding of the victim and convicted him accordingly, this conviction barred the defendant's further conviction of all other offenses of a higher grade and of any lesser included offense encompassed by a malicious wounding indictment, and it therefore was improper for the jury to have returned a verdict finding the defendant guilty of assault and battery under the indictment charging attempted murder. Brown v. Commonwealth, 222 Va. 111 , 279 S.E.2d 142 (1981).

Sentence excessive after plea of guilty to misdemeanor accepted. - In a prosecution under this section, accused was allowed to plead guilty to unlawful assault, and was sentenced to three years in the penitentiary (now state correctional facility). It was held that, by reason of the acceptance of the plea of guilty, accused could have been found guilty of no greater offense than simple assault, a misdemeanor, and that the sentence imposed was in excess of that prescribed for a misdemeanor, and as to the excess was invalid. Crutchfield v. Commonwealth, 187 Va. 291 , 46 S.E.2d 340 (1948).

Relationship with federal sentencing. - Fact that defendant was ultimately convicted of only misdemeanors had no bearing on the district court's finding of a Grade A violation; defendant was charged under Virginia law with abduction and malicious wounding, both felonies punishable by a year or more in prison. These crimes met the requirements of U.S. Sentencing Guidelines Manual § 7B1.1(a)(1)(A), Pol'y Statement, in that they were state crimes of violence punishable by more than one year's imprisonment; thus, they constituted Grade A violations. United States v. Washington, 336 Fed. Appx. 343, 2009 U.S. App. LEXIS 14801 (4th Cir. 2009).

Defendant's sentence was properly enhanced under Armed Career Criminal Act (ACCA) because taken together, documents demonstrated that he had been convicted of unlawful wounding under Virginia law, which involved use of force as required by ACCA, and thus, defendant's conviction constituted violent felony predicate under ACCA. United States v. Rumley, 952 F.3d 538, 2020 U.S. App. LEXIS 8128 (4th Cir. 2020), cert. denied, 2021 U.S. LEXIS 650 (2021).

Restitution. - In a case in which defendant was convicted of attempted malicious wounding, the trial court did not err in imposing, as one of the conditions of defendant's suspended sentence, that he was had to pay the victim $6,639.23 in restitution because, although defendant contended that it was error for the trial court to include in his restitution the $3,289.23 still owed by the victim on her car loan after the insurance company had paid her full restitution, a trial court, in determining restitution, could include the amount still owed on a loan for property damaged or destroyed through defendant's criminal acts. Baugh v. Commonwealth, No. 0347-18-2, 2019 Va. App. LEXIS 287 (Dec. 10, 2019).

CIRCUIT COURT OPINIONS

Speedy trial considerations. - Defendant's motion to dismiss an alleged violation of § 18.2-51 on speedy trial grounds was denied, as: (1) he was more responsible than the Commonwealth for the delay in bringing him to trial, due to his deportation; and (2) he failed to advise the Commonwealth of his whereabouts after illegally entering the country and returning to Virginia. Commonwealth v. Manzanares,, 2008 Va. Cir. LEXIS 34 (Fairfax County Mar. 26, 2008).

Double jeopardy. - Child had distinct injuries to her head, arm, back and mouth, each of which constituted an instance of malicious wounding that could be charged separately, and even if it were plausible for an act to be continuous over the course of three days, double jeopardy would not be implicated here because the individual acts were prohibited as opposed to the course of action which they constituted; the two convictions against defendant for inflicting two different injuries did not violate double jeopardy. Commonwealth v. Griffis, 101 Va. Cir. 27, 2019 Va. Cir. LEXIS 13 (Norfolk Jan. 10, 2019).

Criminal agency established. - Defendant was the sole custodian of the child, and although defendant claimed that there were six other people in the house and one of them could have inflicted the injuries on the child, he did not provide this explanation to investigators, and there was no evidence that any of these other people actually injured or even came into contact with the child; the evidence was sufficient to establish criminal agency of defendant and bodily injury to the child. Commonwealth v. Griffis, 101 Va. Cir. 27, 2019 Va. Cir. LEXIS 13 (Norfolk Jan. 10, 2019).

Facts insufficient to show malice. - Evidence did not establish that defendant acted with malice when he kicked a victim who was on top of defendant's uncle and struggling with defendant's uncle on the floor of a bedroom, and the trial court reduced a charge of malicious wounding to the lesser included offense of unlawful wounding. Commonwealth v. Harrington,, 2002 Va. Cir. LEXIS 268 (Newport News June 11, 2002).

Evidence sufficient to infer malice. - Testimony from the doctor that the child's injuries were inflicted sufficiently supported an inference that the person who inflicted them did so with malice, and that the Commonwealth had no proof of the specific action did not eliminate the inference of malice because the injuries resulted from a deliberate and cruel act rather than an accident. Commonwealth v. Griffis, 101 Va. Cir. 27, 2019 Va. Cir. LEXIS 13 (Norfolk Jan. 10, 2019).

Maine statute not substantially similar. - Defendant's prior Maine conviction of elevated aggravated assault was not substantially similar to an unlawful wounding charge in Virginia for purposes of classification as a violent felony, subjecting defendant to a mandatory minimum term of imprisonment of five years, because a person could be convicted under the Maine statute for acting knowingly without acting intentionally, which was not in accordance with the Virginia statute, which required that a person could be convicted only if he possessed the specific intent to maim, disfigure, disable, or kill another. Commonwealth v. Schooley, 94 Va. Cir. 256, 2016 Va. Cir. LEXIS 136 (Nelson County Sept. 7, 2016).

§ 18.2-51.1. Malicious bodily injury to law-enforcement officers, firefighters, search and rescue personnel, or emergency medical services personnel; penalty; lesser-included offense.

If any person maliciously causes bodily injury to another by any means including the means set out in § 18.2-52 , with intent to maim, disfigure, disable or kill, and knowing or having reason to know that such other person is a law-enforcement officer, as defined hereinafter, firefighter, as defined in § 65.2-102 , search and rescue personnel as defined hereinafter, or emergency medical services personnel, as defined in § 32.1-111.1 engaged in the performance of his public duties as a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel, such person is guilty of a felony punishable by imprisonment for a period of not less than five years nor more than 30 years and, subject to subdivision (g) of § 18.2-10 , a fine of not more than $100,000. Upon conviction, the sentence of such person shall include a mandatory minimum term of imprisonment of two years.

If any person unlawfully, but not maliciously, with the intent aforesaid, causes bodily injury to another by any means, knowing or having reason to know such other person is a law-enforcement officer, firefighter, as defined in § 65.2-102 , search and rescue personnel, or emergency medical services personnel, engaged in the performance of his public duties as a law-enforcement officer, firefighter, search and rescue personnel, or emergency medical services personnel as defined in § 32.1-111.1 , he is guilty of a Class 6 felony, and upon conviction, the sentence of such person shall include a mandatory minimum term of imprisonment of one year.

Nothing in this section shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

As used in this section, "law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office that is part of or administered by the Commonwealth or any political subdivision thereof, who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth; any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115 ; any conservation police officer appointed pursuant to § 29.1-200 ; and auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 and auxiliary deputy sheriffs appointed pursuant to § 15.2-1603 .

As used in this section, "search and rescue personnel" means any employee or member of a search and rescue organization that is authorized by a resolution or ordinance duly adopted by the governing body of any county, city, or town of the Commonwealth or any member of a search and rescue organization operating under a memorandum of understanding with the Virginia Department of Emergency Management.

The provisions of § 18.2-51 shall be deemed to provide a lesser-included offense hereof.

(1983, c. 578; 1985, c. 444; 1994, cc. 205, 427; 1997, cc. 8, 120; 2002, cc. 588, 623; 2004, cc. 461, 841; 2007, c. 87; 2010, c. 344; 2015, cc. 502, 503.)

Cross references. - As to pointing a laser at law-enforcement officers, see § 18.2-57.01 .

As to disarming a law-enforcement officer, see § 18.2-57.02 .

The 1997 amendments. - The 1997 amendment by c. 8, in the first and second paragraphs, substituted "or firefighter, as defined in § 65.2-102 , engaged in the performance of his public duties as a law-enforcement officer or firefighter" for "engaged in the performance of his public duties as a law-enforcement officer."

The 1997 amendment by c. 120 rewrote the first paragraph which formerly read: "If any person maliciously causes bodily injury to another by any means including the means set out in § 18.2-52 , with intent to maim, disfigure, disable or kill, and knowing or having reason to know that such other person is a law-enforcement officer, as defined hereinafter, engaged in the performance of his public duties as a law-enforcement officer, such person shall be guilty of a Class 3 felony, and, upon conviction, the sentence of such person shall include a mandatory, minimum term of imprisonment of two years" and, in the second paragragh, inserted "or firefighter, as defined in § 65.2-102 " following "as defined hereinafter" and inserted "or firefighter" following "law-enforcement officer."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and substituted "firefighters, search and rescue personnel, or emergency medical service providers" for "or firefighters" in the section catchline; in the first paragraph, deleted "or" preceding "firefighter" twice, inserted "search and rescue personnel as defined hereinafter, or emergency medical services personnel, as defined in § 32.1-111.1 ," and inserted "search and rescue personnel, or emergency medical services personnel"; in the second paragraph, deleted "as defined hereinafter, or" preceding the first occurrence of "firefighter," inserted "search and rescue personnel, or emergency medical services personnel" twice, and deleted "or" preceding the second occurrence of "firefighter"; deleted "a" following "section" near the beginning of the fifth paragraph; and added the present sixth paragraph.

The 2004 amendments. - The 2004 amendment by c. 461 deleted the former fourth paragraph, which read: "As used in this section the term 'mandatory, minimum' means that the sentence it describes shall be served with no suspension of sentence in whole or in part" and made minor stylistic changes.

The 2004 amendment by c. 841 substituted "subsection" for "subdivision" near the end of the first sentence in the first paragraph; inserted "any game warden appointed pursuant to § 29.1-200 " near the end of the fifth paragraph; and made a minor stylistic change.

The 2007 amendments. - The 2007 amendment by c. 87 substituted "conservation police officer" for "game warden" near the end in the fourth paragraph.

The 2010 amendments. - The 2010 amendment by c. 344 inserted "or any member of a search and rescue organization operating under a memorandum of understanding with the Virginia Department of Emergency Management" at the end of the next-to-last paragraph.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "is guilty" for "shall be guilty" in the first paragraph; substituted "as defined in § 32.1-111.1 , he is guilty" for "he shall be guilty" in the second paragraph; and substituted "the Commonwealth" for "this Commonwealth" in the fourth paragraph.

CASE NOTES

Officer acting in private capacity. - Although officer encountered defendant while acting in a private capacity, he was fully empowered by his public office to pursue an investigation, detain defendant if necessary, and arrest if justified; he was, therefore, "engaged in the performance of his public duties as a law-enforcement officer" when attacked and unlawfully wounded by defendant. Key v. Commonwealth, 21 Va. App. 311, 464 S.E.2d 171 (1995).

Intent may be inferred from assault with bare fists. - Ordinarily, an assault with fists does not reflect an intent to maim, disfigure, disable or kill, but it may be accompanied with sufficient violence and brutality that such intent may be presumed. Clark v. Commonwealth, No. 0445-92-1 (Ct. of Appeals Dec. 14, 1993).

Effect of indictment amendment. - Adding the words "with the intent to maime [sic], disfigure, disable or kill," was a permissible, although unnecessary, amendment to indictment in the instant case. The amendment neither changed the nature or character of the offense charged, nor resulted in prejudice or surprise to appellant. Appellant was sufficiently informed of the felony offense with which he was charged and could fairly prepare his defense. Trusty v. Commonwealth, No. 0278-93-1 (Ct. of Appeals Dec. 20, 1994).

Indictment adequately informing defendant. - Clearly, an element of unlawfully and feloniously causing malicious bodily injury to a law-enforcement officer is the intent to maim, disfigure, disable or kill. Supported by the reference to this section, which includes the language "with intent to maim, disfigure, disable or kill," indictment adequately informed appellant of the nature and character of the offense charged. Trusty v. Commonwealth, No. 0278-93-1 (Ct. of Appeals Dec. 20, 1994).

Sufficient evidence of malice. - Finding of malice by the trial court was well supported by the circumstances attending the attack and the resulting injury, where after continued struggle with officer after arrest for assault and battery, defendant bit officer's arm. Defendant "reached out and clamped on to [his] arm and just bit as hard as he could," the officer said, noting that he "could see the muscles in [defendant's] jaw just clamping down," and "he had to pull it out because [defendant] wasn't letting it go." Cooper v. Commonwealth, No. 0553-94-1 (Ct. of Appeals May 30, 1995).

Intent to maim or act maliciously shown where defendant repeatedly rammed a police vehicle while traveling at 80 miles per hour while weaving in and out of traffic. Luck v. Commonwealth, 32 Va. App. 827, 531 S.E.2d 41, 2000 Va. App. LEXIS 530 (2000).

Evidence sufficient to support conviction. - The evidence was sufficient to support a finding that the defendant maliciously attempted to injure a state trooper in furtherance of his criminal purpose where the defendant, in an attempt to evade apprehension, ignored emergency lights and sirens of two law-enforcement vehicles, together with an officer's entreaties to stop, fled along interstate highways at excessive speed, dangerously operated his truck and, in a continuing effort to escape capture, twice collided with the police vehicle operated by the trooper, intentionally driving forward on both occasions. Simmons v. Commonwealth, No. 1202-99-3, 2000 Va. App. LEXIS 563 (Ct. of Appeals Aug. 1, 2000).

Evidence was sufficient to support defendant's conviction for assaulting a police officer, as the trial court found defendant's testimony to be unworthy of belief and the conviction was supported by the testimony of an officer, which the trial court was entitled to believe. McCray v. Commonwealth,, 2008 Va. App. LEXIS 38 (Jan. 22, 2008).

Evidence that defendant deliberately crashed into a trooper's car to avoid being stopped, after leading officers on a dangerous, high-speed, 28-mile long car chase supported the finding that defendant intended to wound officer. Blow v. Commonwealth, 52 Va. App. 533, 665 S.E.2d 254, 2008 Va. App. LEXIS 400 (2008).

Intent demonstrated. - When a police officer intervened during an altercation, he was wearing a "raid shirt" which was emblazoned with large "POLICE" letters. He also testified that when he entered the foray, he announced that he was a police officer. The record also contained evidence that he had a clear view of defendant's face and made eye contact with him prior to his throwing a cinder block, which came within three feet of striking the police officer, it also indicates that defendant apologized to the police officer for throwing the cinder block. Accordingly, the conviction was affirmed. Gill v. Commonwealth, No. 0334-96-3 (Ct. of Appeals Feb. 25, 1997).

Where defendant followed police officer into the bedroom, attempted to stab him with a knife and missed, and struck a third person who was injured, the trial court, as fact finder, could reasonably conclude that defendant acted with the intent to maim, disfigure, disable or kill the officer. Starkes v. Commonwealth, No. 1458-96-2 (Ct. of Appeals Apr. 1, 1997).

Commonwealth sufficiently proved that defendant acted with the intent to maim, disfigure, disable or kill, as required by § 18.2-51.1 , through his actions of attempting to elude a police officer and accelerating his van into the direct path of a police officer without making an effort to veer or avoid hitting said officer; moreover, the evidence raised the sole inference that defendant intended to escape even if in so doing he had to drive his accelerating vehicle into the officer who stood before him. Holley v. Commonwealth, 44 Va. App. 228, 604 S.E.2d 127, 2004 Va. App. LEXIS 515 (2004).

Evidence that defendant repeatedly rammed defendant's pickup truck in a trooper's cruiser demonstrated defendant's intent to maim, disfigure, disable, or kill the trooper, and supported defendant's conviction for attempted malicious wounding under § 18.2-51.1 . Swanson v. Commonwealth,, 2008 Va. App. LEXIS 406 (Aug. 26, 2008).

Evidence of bodily injury. - Two troopers suffered bodily injury when the defendant repeatedly rammed his vehicle into the vehicle the officers were occupying, causing soft-tissue injuries that required medical treatment and caused pain and stiffness; this section does not require that an officer suffer broken bones or bruises or that the injuries be observable or determinable by objective means. Luck v. Commonwealth, 32 Va. App. 827, 531 S.E.2d 41, 2000 Va. App. LEXIS 530 (2000).

Applied in Lowery v. Stovall, 92 F.3d 219 (4th Cir. 1996); Dawson v. Commonwealth, 63 Va. App. 429, 758 S.E.2d 94, 2014 Va. App. LEXIS 199 (2014).

§ 18.2-51.2. Aggravated malicious wounding; penalty.

  1. If any person maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.
  2. If any person maliciously shoots, stabs, cuts or wounds any other woman who is pregnant, or by any other means causes bodily injury, with the intent to maim, disfigure, disable or kill the pregnant woman or to cause the involuntary termination of her pregnancy, he shall be guilty of a Class 2 felony if the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment.
  3. For purposes of this section, the involuntary termination of a woman's pregnancy shall be deemed a severe injury and a permanent and significant physical impairment.

    (1986, c. 460; 1991, c. 670; 1997, c. 709.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

The 1997 amendment inserted the A designation at the beginning of the first paragraph and added subsections B and C.

Law review. - For note, "Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application," see 41 Wm. & Mary L. Rev. 1845 (2000).

CASE NOTES

Constitutionality. - Because defendant had no standing to make a broad and general facial statutory challenge, and he agreed that victim's injuries qualified as both "significant" and "permanent" injuries, the trial court properly denied defendant's motion to dismiss the aggravated malicious wounding conviction based solely upon his facial constitutional challenge. Cottee v. Commonwealth, 31 Va. App. 546, 525 S.E.2d 25 (2000).

Right to counsel not violated. - Defendant's aggravated malicious wounding and use of a firearm in the commission of a felony convictions were not subject to reversal on appeal, as the trial court did not violate his right to counsel by erroneously disqualifying his retained trial counsel prior to trial, and appointing substitute counsel to defend him, based on an existing conflict of interest due to counsel's representation of a Commonwealth's witness. Johnson v. Commonwealth, 50 Va. App. 600, 652 S.E.2d 156, 2007 Va. App. LEXIS 406 (2007).

Non-vocational quality of life. - In determining the extent of disability, courts must apply both a functional and humane approach, taking into consideration not only the injured person's permanent unemployability, but also his non-vocational quality of life. Branch v. Commonwealth, 14 Va. App. 836, 419 S.E.2d 422 (1992).

Totally disabled. - The term "totally ... disabled" does not mean a state of absolute helplessness, but means the "inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted." Branch v. Commonwealth, 14 Va. App. 836, 419 S.E.2d 422 (1992).

Victim is "totally ... disabled" because he is unable to use his legs, has no bowel and bladder control, and has only limited use of his hands and arms. As a result of his paralysis, his ability to continue his former employment, his chances of pursuing other employment, and his quality of life are substantially diminished. His condition is the type intended by the General Assembly to be covered by this section. Branch v. Commonwealth, 14 Va. App. 836, 419 S.E.2d 422 (1992).

Malicious wounding distinguished. - Unlike the crime of aggravated malicious wounding under § 18.2-51 .2, which requires proof that the victim suffered a permanent and significant physical impairment as a result of the wound inflicted by the defendant, the crime of malicious wounding under § 18.2-51 , does not require that the wound inflicted by the defendant be permanent or significant. An Trong Tran v. Commonwealth, No. 2565-02-4, 2004 Va. App. LEXIS 195 (Ct. of Appeals Apr. 27, 2004).

Section 19.2-294 does not prohibit prosecution in a single trial for violation of § 18.2-51 and this section. Powell v. Commonwealth, No. 0554-89-1 (Ct. of Appeals Oct. 6, 1992).

Double jeopardy considerations. - Multiple punishments for the crimes of attempted murder and malicious wounding do not violate the double jeopardy clause when the convictions are obtained in a single trial. Creamer v. Commonwealth, No. 1298-91-3 (Ct. of Appeals Dec. 15, 1992).

Proof of attempted murder does not require proof of an actual injury, and therefore aggravated malicious wounding and attempted murder each contain an element not contained by the other, and neither crime is a lesser-included offense of the other for double jeopardy purposes. Dennis v. Commonwealth, No. 1285-98-1, 1999 Va. App. LEXIS 583 (Ct. of Appeals Oct. 19, 1999).

Court rejected defendant's contention that he was punished twice for the same offense as the Virginia General Assembly intended to impose multiple punishments when enacting § 18.2-53 . Moreover, the statutes each contained an element that the other did not: aggravated malicious wounding required malice, an intent to maim, and resulting permanent physical injury, while unlawful stabbing required a wounding during the commission of an underlying felony. Franklin v. Commonwealth,, 2012 Va. App. LEXIS 356 (Nov. 6, 2012).

Two offenses required elements of proof that the other did not since the aggravated malicious wounding statute, § 18.2-51.2 , prohibited certain methods of violence resulting in severe and permanent injury, and the murder statute, § 18.2-32 , punished the taking of life without regard to the method. Aggravated malicious wounding required proof of a specific intent, whereas second-degree murder required no specific intent, and with different elements of proof, aggravated malicious wounding was not a lesser-included offense of second-degree murder, malicious wounding was not a lesser-included offense of attempted murder and the legislature intended multiple punishments; therefore, the offenses, having separate and distinct elements, allowed for prosecution under both statutes, the legislature authorized separate punishments for those acts, and the defendant's convictions for both aggravated malicious wounding and second-degree murder did not violate the Fifth Amendment prohibition against double jeopardy. Bomber v. Commonwealth,, 2013 Va. App. LEXIS 75 (Mar. 5, 2013).

Court rejected defendant's contention that he was punished twice for the same offense as the Virginia General Assembly intended to impose multiple punishments when enacting § 18.2-53 . Moreover, the statutes each contained an element that the other did not: aggravated malicious wounding required malice, an intent to maim, and resulting permanent physical injury, while unlawful stabbing required a wounding during the commission of an underlying felony. Franklin v. Commonwealth,, 2012 Va. App. LEXIS 356 (Nov. 6, 2012).

There were at least two separate and distinct attacks on the shooting victim, supporting two attempted malicious wounding convictions, when defendant and accomplices attempted to steal firearms and a gun battle erupted and when the occupants of the property returned while defendant and the accomplices were still there. One of the accomplices fired shots at the victim when the victim arrived, while defendant fired shots at the victim when defendant drove off, which constituted separate acts at separate times of attempted malicious wounding. Blowe v. Commonwealth, No. 1189-18-2, 2019 Va. App. LEXIS 221 (Ct. of Appeals Oct. 8, 2019).

Intent to wound does not preclude intent to steal. - The mere fact that appellant had the intent to commit malicious wounding did not exclude the hypothesis that he also formed the intent to steal victim's property. Saunders v. Commonwealth, 18 Va. App. 825, 447 S.E.2d 526 (1994).

Sufficiency of indictment. - Pursuant to § 19.2-220 and Va. Sup. Ct. R. 3A:6(a), the citation to § 18.2-51.2 in the indictment incorporated by reference the complete definition of aggravated malicious wounding and supplemented the charging language of the indictment; therefore, the statutory citation, coupled with the facts alleged, was sufficient to set forth all relevant elements of the aggravated malicious wounding offense. Robinson v. Commonwealth, No. 1623-02-2, 2003 Va. App. LEXIS 327 (Ct. of Appeals June 3, 2003).

Jury instructions. - The words "maim" and "disable" do not have a distinct legal meaning, and trial court did not err by instructing jury that they should apply ordinary meanings of those words. Morgan v. Commonwealth, No. 1590-98-3 (Ct. of Appeals Oct. 5, 1999).

In a prosecution for aggravated malicious wounding, evidence that defendant directed racial epithets against the victim was properly admitted, as it was relevant to prove defendants' malice, and the trial court did not abuse its discretion in ruling that the probative value of this evidence outweighed its prejudicial effect. Landeck v. Commonwealth, 59 Va. App. 744, 722 S.E.2d 643, 2012 Va. App. LEXIS 72 (2012).

In a prosecution for aggravated malicious wounding, the trial court's heat of passion instruction was proper, as the jury could have inferred from the evidence that there was a reasonable opportunity for defendants' passions to cool before they attacked the victim. Landeck v. Commonwealth, 59 Va. App. 744, 722 S.E.2d 643, 2012 Va. App. LEXIS 72 (2012).

Jury instructions on self-defense. - Trial court did not abuse its discretion by giving the jury a curative instruction that stated that self-defense was not an issue in defendant's trial for aggravated malicious wounding and use of a firearm in the commission of that offense since the victim was a transsexual prostitute whose true gender defendant claimed to have learned only moments before the shooting during what began as a consensual sexual encounter, and defendant said he became fearful and pulled his firearm when the prostitute suggested that they continue the sexual encounter despite the fact that the prostitute, like defendant, was male; defendant came perilously close to a claim that the act of shooting the victim was excusable as it was done in self-defense, and claimed that the fear he experienced negated a finding of malice, without supporting a heat-of-passion defense. Rollison v. Commonwealth,, 2007 Va. App. LEXIS 61 (Feb. 20, 2007).

Trial court did not abuse its discretion by giving the jury a curative instruction that stated that self-defense was not an issue in defendant's trial for aggravated malicious wounding and use of a firearm in the commission of that offense after defendant made defendant's closing argument and before the Commonwealth delivered its rebuttal argument; defendant did not object to the Commonwealth's right to argue in rebuttal that self-defense was not an issue, and the instruction was worded in a neutral fashion that did not mention defendant's argument. Rollison v. Commonwealth,, 2007 Va. App. LEXIS 61 (Feb. 20, 2007).

Jury instruction defining physical impairment. - Where appellant stabbed a victim and was convicted of aggravated malicious wounding, a jury instruction defining physical impairment was proper because: (1) the jury instruction was a correct statement of the law; and (2) sufficient evidence supported the trial court granting the instruction since the victim received a permanent and significant injury due to leg numbness and a limp, which were not likely to improve. Toler v. Commonwealth,, 2008 Va. App. LEXIS 277 (June 10, 2008).

Lesser-included offense instruction rejected. - The crime of malicious wounding lacks the severity of injury and permanence of impairment elements required for the offense of aggravated malicious wounding; an instruction on the lesser offense is properly refused where there is not a scintilla of evidence in the record to support a finding that the injury was not severe or that it did not result in a significant and permanent impairment and the jury's ability to reject the commonwealth's evidence may not be treated as a substitute for the evidentiary support required to grant a defendant's request for an instruction on the lesser-included offense of malicious wounding. Commonwealth v. Donkor, 256 Va. 443 , 507 S.E.2d 75 (1998).

Evidence sufficient. - Evidence that defendant threatened victim, coupled with defendant's use of a gun to get revenge, proved defendant's intent to "maim, disfigure, disable or kill" victim. As a result of the shooting, victim was paralyzed. The evidence thus proved beyond a reasonable doubt the elements of the crime of malicious wounding. Nicholas v. Commonwealth, 15 Va. App. 188, 422 S.E.2d 790 (1992).

Under the statute, the trial court reasonably could have found from the number of wounds, the need for stitches for some of them, and the resulting scars still visible after five months, that victim's injuries constituted "permanent and significant physical impairment." Newton v. Commonwealth, 21 Va. App. 86, 462 S.E.2d 117 (1995).

Despite conflicting testimony as to circumstances of fight, evidence of severe, brutal beating received by victim was sufficient to support defendant's conviction of unlawful wounding. Morgan v. Commonwealth, No. 1590-98-3 (Ct. of Appeals Oct. 5, 1999).

Commonwealth produced sufficient evidence to prove defendant's aggravated malicious wounding of the victim beyond a reasonable doubt where, viewed in the light most favorable to the Commonwealth, the evidence showed that defendant beat the victim with the intent to maim, disfigure, disable or kill him, as well as with malice, given the brutal nature of the attack, which supported the jury's finding of malice and intent, and defendant's actions in covering up the crime also indicated that he acted with specific intent and malice. U-Thasoonthorn v. Commonwealth, No. 1879-01-4, 2002 Va. App. LEXIS 607 (Ct. of Appeals Oct. 8, 2002).

Evidence was sufficient to support defendant's conviction for aggravated malicious wounding for defendant's attack with a hammer on the victim outside a bar after the victim confronted a codefendant about breaking into cars at the bar, as evidence that the victim still had facial scarring and numbness in his face more than two years after the attack was sufficient to show that the victim had sustained the severe, permanent, and significant injuries required to support an aggravated malicious wounding conviction. Swick v. Commonwealth, No. 1282-02-4, 2003 Va. App. LEXIS 360 (Ct. of Appeals June 24, 2003).

Trial court did not err in entering a judgment of conviction against defendant on a charge of aggravated malicious wounding, as the evidence was sufficient to show that defendant was acting with malice when he shot another man; defendant, knowing the man was at defendant's residence, armed himself with a gun, followed and shot the other man as he attempted to leave the property, and fled, and the jury was entitled to reject defendant's claim that the shooting was an accident and conclude defendant acted with malice. Hood v. Commonwealth, No. 2419-02-2, 2004 Va. App. LEXIS 33 (Ct. of Appeals Jan. 28, 2004).

Defendant's malicious wounding, aggravated malicious wounding, and use of a firearm in the commission of a felony convictions were upheld on appeal, as sufficient evidence linked him to a shooting while driving a jeep loaned to him and his cohorts in exchange for drugs, and based on the same, the trial judge could reject defendant's hypothesis another group of men gained possession of the Jeep and committed the crimes alleged. Powell v. Commonwealth, No. 1942-05-2, 2006 Va. App. LEXIS 537 (Ct. of Appeals Nov. 28, 2006).

Given that the Commonwealth presented sufficient evidence that defendant burglarized an apartment with the requisite specific intent and malice to disfigure, maim, disable, or kill at least three of the victims, without provocation, his convictions based upon said actions were upheld on appeal. Slayton v. Commonwealth, No. 0441-06-2, 2007 Va. App. LEXIS 180 (May 1, 2007).

Evidence defendant admitted that, the day after defendant and another planned the attack on the victim, the two of them met in the evening at a gas station near the scene of the attack, pursuant to their plan, and then proceeded to their hiding place behind the bushes next to the government building, where they waited for 30 minutes for the victim to appear, was sufficient to support defendant's attempted robbery and aggravated malicious wounding convictions. Goode v. Commonwealth, 52 Va. App. 380, 663 S.E.2d 532, 2008 Va. App. LEXIS 331 (2008).

Where appellant stabbed a victim, sufficient evidence supported the conviction for aggravated malicious wounding because the jury could reasonably conclude that the victim had a permanent and significant physical impairment as a result of the stabbing based on the victim's need for stitches, the resulting scar, a limp, leg numbness, and random abdominal spasms. Toler v. Commonwealth,, 2008 Va. App. LEXIS 277 (June 10, 2008).

There was sufficient evidence to support convictions of aggravated malicious wounding and use of a firearm in the commission of aggravated malicious wounding. Ample credible evidence, including the victim's identification of defendant, placed him in close proximity to the crime scene both immediately before and after the shooting; a rational finder of fact could determine that, notwithstanding another person's fingerprint on the firearm, defendant was present at the crime scene and fired the weapon, even though his prints were not on the weapon. Barnes v. Commonwealth,, 2008 Va. App. LEXIS 533 (Dec. 9, 2008), aff'd, 279 Va. 22 , 688 S.E.2d 210, 2010 Va. LEXIS 17 (2010).

There was sufficient evidence to support the convictions for unlawful, felonious and malicious shooting of the victim and for the unlawful and felonious use and display of a firearm while committing an aggravated malicious wounding where: (1) the victim and numerous witnesses identified defendant as the armed assailant who shot the victim with a 9mm pistol discovered at defendants' house; (2) a doctor testified that the bullet that entered the victim's body damaged the lining of his left hip joint, thereby causing traumatic arthritis; and (3) traumatic arthritis could result in chronic pain and a limitation of the range of motion of that joint. Barnes v. Commonwealth, 279 Va. 22 , 688 S.E.2d 210, 2010 Va. LEXIS 17 (2010).

Defendant's convictions for malicious wounding while part of a mob under § 18.2-41 , and aggravated malicious wounding under § 18.2-51.2 were appropriate because defendant was not permitted to complain on appeal of the trial court's refusal to suppress the very evidence that he elicited on his own behalf. Defendant himself elicited the testimony about his statements to the Security Threat Unit that he was a gang member. Boone v. Commonwealth,, 2010 Va. App. LEXIS 37 (Feb. 2, 2010).

Evidence was sufficient to convict defendants of aggravated malicious wounding, as the jury could have found that they harbored a malicious intent as evidenced by their actions calculated to instigate a fight with the victim. Landeck v. Commonwealth, 59 Va. App. 744, 722 S.E.2d 643, 2012 Va. App. LEXIS 72 (2012).

There was sufficient evidence to support the trial court's decision that defendant had the intent to cause the involuntary termination of the victim's pregnancy and that he acted with malice because the trial court heard the testimony of the witnesses, observed the demeanor of the witnesses, and questioned the witnesses, and at the conclusion of the evidence, it found defendant's version of events to be suspect. Ruff v. Commonwealth,, 2014 Va. App. LEXIS 172 (May 13, 2014).

Evidence that the victim was struck twice in the side of the head with a heavy metal object, received six stitches above his right eye, and since the attack experienced persistent headaches, sensitivity to light, difficulty walking, and cognitive deficiencies was sufficient to support defendant's conviction for aggravated malicious wounding. Ballard v. Commonwealth,, 2014 Va. App. LEXIS 188 (May 20, 2014).

Evidence was sufficient to support defendant's conviction of aggravated malicious wounding where he made death threats against the victim, returned home early from work and hid in the dark until the victim went to bed, he slashed her throat and face, and he did not seek medical assistance for her. Ford v. Commonwealth,, 2014 Va. App. LEXIS 348 (Oct. 21, 2014).

Trial court erred by excluding evidence of an injured motorcyclist's blood alcohol content on the basis of lack of relevance because the evidence had some logical tendency to establish that the motorcyclist's operation of his motorcycle, not defendant's conduct, caused the crash that resulted in his injuries where the evidence supporting the trial court's factual finding that defendant - caused the accident - was largely circumstantial. Miller v. Commonwealth,, 2014 Va. App. LEXIS 357 (Oct. 28, 2014).

Trial court properly convicted defendant of malicious wounding because the evidence of the victim's scars and of the treatment she received for her injuries provided sufficient evidence to conclude that defendant caused her to suffer "permanent and significant physical impairment" where the victim received 13 staples to close a gash above her left temple, experienced severe headaches almost daily, and almost a year after the attack, the victim's scarring was still readily visible. Harris v. Commonwealth,, 2014 Va. App. LEXIS 410 (Dec. 16, 2014).

Jury did not err in finding that the evidence did not contain a reasonable hypothesis of innocence, as the child abuse pediatric fellow diagnosed the victim with subdural hemorrhages caused by recent trauma, the infant had no prior medical history to explain the injuries, there were no reported accidents to explain the injuries, defendant had been the sole adult with the victim for two days, and the fellow testified that the onset of symptoms would have been immediate and noticeable. Stephens v. Commonwealth, No. 1432-15-1, 2016 Va. App. LEXIS 278 (Ct. of Appeals Oct. 25, 2016).

Evidence was sufficient to sustain appellant's conviction for aggravated malicious wounding in violation of § 18.2-51.2 where the trial court could have reasonably inferred from appellant's initiation of the beating of the victim and his "high-fiving" with the group after the beating that he acted in concert with the other attackers. Jordan v. Commonwealth, No. 1723-15-1, 2016 Va. App. LEXIS 317 (Ct. of Appeals Nov. 22, 2016).

Evidence was sufficient to convict defendant of aggravated malicious wounding as the victim had to survive, if only briefly, for an injury to be considered permanent, and the evidence proved that the victim remained alive during intervals of the attack before her death because defendant used both hands to punch the victim numerous times in the face and head and suffocated her, but she remained alive; and the testimony of the doctor who supervised the victim's autopsy supported the conclusion that there was at least one interval in the incident when the victim remained alive as the doctor noted multiple contusions all over the victim's body, and such bruising developed only while the victim remained alive. Ellis v. Commonwealth, 70 Va. App. 385, 827 S.E.2d 786, 2019 Va. App. LEXIS 124 (2019).

Circuit court properly convicted defendant, in a bench trial, of aggravated malicious wounding because there was sufficient evidence of malice where, an hour or two after his argument with the victim over her alleged relationship with another man, defendant had two knives, which he then used to attack and stab the victim 14 times, and he told their daughter that he would kill the victim if the daughter left to get help. Palmer v. Commonwealth, 71 Va. App. 225, 835 S.E.2d 80, 2019 Va. App. LEXIS 276 (2019).

Evidence was sufficient to convict defendant of maliciously wounding her estranged husband, and using a firearm in the commission of a felony because she was present at the time of the shooting; her account of what happened directly contravened other physical evidence and the testimony of other witnesses; and her brother and his girlfriend stated that defendant left their grandmother's house alone right before the time of the shooting, and returned alone and distraught. Oliver v. Commonwealth, No. 0848-20-2, 2021 Va. App. LEXIS 110 (July 6, 2021).

Injuries sustained constituted "permanent and significant physical impairment." Cottee v. Commonwealth, 31 Va. App. 546, 525 S.E.2d 25 (2000).

The evidence was sufficient to show that the victim had suffered a "permanent and significant physical impairment" as a result of being shot by the defendant where the victim had a scar running from his chest to his navel that was still clearly visible at trial, three months after the surgery required by the shooting, the bullet, which was lodged against the victim's spinal cord, had not been removed and might never be removed, due to the location of the bullet, doctors had forbade the victim to lift any weight heavier than five pounds, thereby limiting his ability to find work and to live normally, the position of the bullet threatened the victim with the possibility of paralysis and the victim testified that he was in constant pain. Terry v. Commonwealth, No. 0716-99-2, 2000 Va. App. LEXIS 355 (Ct. of Appeals May 9, 2000).

Trial court did not err by failing to reduce the aggravated malicious wounding under § 18.2-51.2 to simple malicious wounding under § 18.2-51 because considering the victim's testimony and physical evidence, the jury could reasonably conclude that the victim had a permanent and significant physical impairment as a result of the shooting; defendant shot the victim in her left shoulder, she had two entrance wounds and one exit wound, the bullet lodged next to the victim's spine had to be removed during surgery; the victim had scars, and the victim testified that two years after the shooting she still had not regained full use of her left arm and hand. Martinez v. Commonwealth, 42 Va. App. 9, 590 S.E.2d 57, 2003 Va. App. LEXIS 678 (2003).

When defendant was convicted of aggravated malicious wounding and use of a firearm in the commission of aggravated malicious wounding, the evidence was sufficient to show that the victim was permanently and significantly impaired. A treating physician testified that his injury resulted in traumatic arthritis and abdominal scarring and that he faced the potential of a bowel obstruction. Barnes v. Commonwealth,, 2008 Va. App. LEXIS 533 (Dec. 9, 2008), aff'd, 279 Va. 22 , 688 S.E.2d 210, 2010 Va. LEXIS 17 (2010).

New evidence that a victim's sense of smell had returned did not entitle defendant to a new aggravated malicious wounding trial under Va. Sup. Ct. R. 3A:15 because the evidence did not definitively prove that the results would have been different where metal plates in the victim's face showed that she was permanently and significantly injured. Lamm v. Commonwealth, 55 Va. App. 637, 688 S.E.2d 295, 2010 Va. App. LEXIS 48 (2010).

Evidence was sufficient to convict defendant of aggravated malicious wounding because evidence that the victim was hospitalized for 11 days after defendant stabbed him, had a prolonged recovery, was scarred, and had to use a machine to treat his lung supported the jury's finding that his physical impairment was permanent and significant. Kersey v. Commonwealth,, 2012 Va. App. LEXIS 225 (July 10, 2012).

Where defendant was convicted of aggravated malicious wounding for shooting a man in the abdomen, the trial court did not err in denying his motion to strike the aggravated portion of the charge, because the victim's surgical scar was a permanent and significant physical impairment, and the surgery did not break the causal connection between the shooting and the scar since the surgery was a reasonably foreseeable consequence of the shooting. Hawkins v. Commonwealth, 64 Va. App. 650, 770 S.E.2d 787, 2015 Va. App. LEXIS 136 (2015).

Evidence supported defendant's conviction for aggravated malicious wounding because the shooting victim - who was shot twice in one leg - could not walk normally and had to utilize an orthotic boot to walk without catching the victim's toes and tripping. The limitation on the victim's daily activity inherent in the victim's "foot drop" condition was a permanent and significant physical impairment. Blowe v. Commonwealth, No. 1189-18-2, 2019 Va. App. LEXIS 221 (Ct. of Appeals Oct. 8, 2019).

No significant or permanent impairment. - Malicious wounding conviction had to be reversed, because any inference that the victim suffered a significant and permanent impairment as a result of surgery or as a result of the shooting in the form of visible scarring was pure speculation and was not based on any proven fact nor related to any proven fact. Marrow v. Commonwealth, No. 1041-16-1, 2017 Va. App. LEXIS 116 (Apr. 25, 2017).

Sentence within the range set by legislature is proper. - Trial court did not abuse its discretion in imposing a 43-year sentence against defendant, as said sentence was within the ranges set by the legislature and well below the total statutory maximum for the various felony offenses for which he was convicted. Clark v. Commonwealth, No. 1727-07-3,, 2008 Va. App. LEXIS 234 (Ct. of Appeals May 13, 2008).

Applied in Saunders v. Commonwealth, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011); Dominguez v. Pruett, 287 Va. 434 , 756 S.E.2d 911, 2014 Va. LEXIS 59 (2014).

CIRCUIT COURT OPINIONS

Involuntary termination of a pregnancy. - Defendant's motion to strike the charge of aggravated malicious wounding causing the involuntary termination of a pregnancy was denied because the jury was presented with facts suggesting an uncomplicated pregnancy up to the date of the fire; although defendant adduced evidence that the victim engaged in significant drug and alcohol abuse until the date she was injured, the fact the fetus survived for one day at the hospital suggested the mechanism of death was not exclusively, if at all, due to the use of drugs and alcohol by the victim; and the most glaring change for the survival of the fetus was the catastrophic set of injuries to the victim, injuries directly caused by the fire and subsequent fall while escaping the fire. Commonwealth v. Green, 97 Va. Cir. 152, 2017 Va. Cir. LEXIS 325 (Fairfax County Nov. 15, 2017).

§ 18.2-51.3. Prohibition against reckless endangerment of others by throwing objects from places higher than one story; penalty.

  1. It shall be unlawful for any person, with the intent to cause injury to another, to intentionally throw from a balcony, roof top, or other place more than one story above ground level any object capable of causing any such injury.
  2. A violation of this section shall be punishable as a Class 6 felony.

    (1990, c. 761.)

Applied in Newton v. Commonwealth, 21 Va. App. 86, 462 S.E.2d 117 (1995).

§ 18.2-51.4. Maiming, etc., of another resulting from driving while intoxicated.

  1. Any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton, and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person is guilty of a Class 6 felony.
  2. Any person who, as a result of driving while intoxicated in violation of § 18.2-266 or any local ordinance substantially similar thereto in a manner so gross, wanton, and culpable as to show a reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment is guilty of a Class 4 felony.
  3. The driver's license of any person convicted under this section shall be revoked pursuant to subsection B of § 46.2-391 .
  4. The provisions of Article 2 (§ 18.2-266 et seq.) of Chapter 7 shall apply, mutatis mutandis, upon arrest for a violation of this section.
  5. As used in this section, "serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

    (1997, c. 691; 1999, cc. 945, 987; 2000, cc. 956, 982; 2019, c. 465.)

Cross references. - For authorization for locality to provide by ordinance for reimbursement of certain expenses incurred in responding to DUI and other traffic incidents related to violation of §§ 18.2-51.4 , 18.2-266 , 29.1-738 , 46.2-300 et seq., 46.2-852 et seq., and 46.2-894 , see § 15.2-1716 .

As to admissibility of written results of blood alcohol tests conducted in the regular course of providing emergency medical treatment, see § 19.2-187.02 .

As to sealing criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction by petition, see § 19.2-392.12 .

The 1999 amendments. - The 1999 amendments by cc. 945 and 987, are identical, and rewrote subsection B, which formerly read: "In addition to the penalties otherwise prescribed, the judgment of conviction if for a first offense under this section, shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth for a period of one year from the date of such judgment. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2 . However, upon conviction and after sentencing of any person for a first offense under this section or any local ordinance substantially similar thereto, if the court finds that the person has not before entered a program pursuant to § 18.2-271.1 , the court shall order, as a condition of probation or otherwise, that the person enter and successfully complete an alcohol safety action program, and the provisions of § 18.2-271.1 shall apply mutatis mutandis.

"If a person is convicted of a violation of this section committed within ten years of a prior offense resulting in a conviction, such person's license or privilege to operate a motor vehicle, engine or train shall be revoked for a period of three years from the date of the judgment of conviction. This revocation period shall be in addition to the suspension period provided under § 46.2-391.2 . Any period of license suspension or revocation imposed pursuant to this section, in any case, shall run consecutively with any period of suspension for failure to permit a blood or breath sample to be taken as required by §§ 18.2-268.1 through 18.2-268.12 or §§ 46.2-341.26:1 through 46.2-341.26:11 .

"If a person is convicted of a third or subsequent offense of violating this section within ten years of two other prior offenses resulting in convictions, such person shall not be eligible for participation in a program pursuant to § 18.2-271.1 and shall have his license revoked as provided in subsection B of § 46.2-391 . The court trying such case shall order the surrender of the driver's license of the person so convicted, to be disposed of in accordance with § 46.2-398 , and shall notify such person that his license has been revoked indefinitely"; added subsections C through E, added the subsection F designator, redesignated former subsection C as G, and added the subsection H and I designators.

The 2000 amendments. - The 2000 amendments by cc. 956 and 982 are identical, and added the last sentence in subsection A, redesignated former subsection I as present subsection B, and deleted former subsections B through H.

The 2019 amendments. - The 2019 amendment by c. 465 designated the former last sentence of subsection A as subsection C, added subsections B and E and redesignated former subsection B as subsection D; in subsection A, substituted "is guilty of a Class 6 felony" for "resulting in permanent and significant physical impairment shall be guilty of a Class 6 felony"; and made stylistic changes.

Law review. - For note, "Fetal Homicide: Woman or Fetus as Victim? A Survey of Current State Approaches and Recommendations for Future State Application," see 41 Wm. & Mary L. Rev. 1845 (2000).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 12B M.J. Mayhem, § 2.

CASE NOTES

Common-law criminal negligence. - While no Virginia appellate court has issued a decision interpreting § 18.2-51.4 , the common-law definition of criminal negligence, as stated in the statute, is well settled; conduct is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature, showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of the offender's acts. Wright v. Commonwealth, 39 Va. App. 698, 576 S.E.2d 242, 2003 Va. App. LEXIS 60 (2003).

Blood test results not required. - Even if the State's failure to comply with the implied consent law procedural requirements did not forbid a prosecution for aggravated manslaughter, blood test results were not required for a conviction under either § 18.2-266 or 18.2-36.1 . Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

Under the influence of drugs. - Reading §§ 18.2-51.4 and 18.2-266 (iii) together, their plain meaning is that a person violates § 18.2-51.4 when he or she recklessly causes serious bodily injury to another person resulting in permanent and significant physical impairment to that person while operating a vehicle under the influence of any narcotic drug that impairs the driver's ability to operate a motor vehicle in violation of § 18.2-266 (iii). Ratliff v. Commonwealth, 53 Va. App. 443, 672 S.E.2d 913, 2009 Va. App. LEXIS 83 (2009).

Defendant was properly convicted of recklessly causing serious and permanent bodily injury to another person while driving under the influence of narcotic drugs, as she admitted having controlled substances in her system, and § 18.2-51.4 did not apply only to those who operated a vehicle under the influence of alcohol. Ratliff v. Commonwealth, 53 Va. App. 443, 672 S.E.2d 913, 2009 Va. App. LEXIS 83 (2009).

Evidence sufficient to establish gross, wanton and culpable manner. - Evidence was sufficient to establish that defendant drove in manner so gross, wanton and culpable as to show reckless disregard for human life where defendant drove the car in a manner too fast for defendant to control it properly, and where defendant's intellectual and motor functions were impaired by the voluntary consumption of drugs and alcohol; defendant was properly convicted of maiming. Wright v. Commonwealth, 39 Va. App. 698, 576 S.E.2d 242, 2003 Va. App. LEXIS 60 (2003).

Defendant was properly convicted of DUI maiming because the evidence was sufficient for a rational factfinder to conclude that defendant's actions were criminally negligent; defendant admitted to being inattentive while driving, she voluntarily consumed alcohol up to and well beyond the point of intoxication, and she voluntarily decided to drive while having little sleep. Rich v. Commonwealth,, 2015 Va. App. LEXIS 320 (Nov. 10, 2015), aff'd, 793 S.E.2d 798, 2016 Va. LEXIS 188 (Va. 2016).

Trial court did not err in finding that the required criminal negligence was present and that defendant was guilty of driving while intoxicated, maiming, because defendant had a blood alcohol content well above the legal limit, and she failed to brake for a pedestrian; an officer observed that defendant was unsteady, and she was unable to consistently complete field sobriety tests. Francis v. Commonwealth,, 2019 Va. App. LEXIS 49 (Mar. 5, 2019).

Sufficient evidence supporting conviction. - Sufficient evidence supported defendant's conviction for maiming another as a result of driving while intoxicated because defendant drove into the victim, other vehicles, and a tree without braking after he voluntarily ingested an overdose of sleeping pills and while he was in an intoxicated state. Riley v. Commonwealth,, 2008 Va. App. LEXIS 159 (Apr. 8, 2008), aff'd, 277 Va. 467 , 675 S.E.2d 168, 2009 Va. LEXIS 50 (2009).

Evidence was sufficient to convict defendant of maiming another person as a result of driving while intoxicated. Defendant voluntarily ingested an overdose of sleeping medication in conjunction with other medications, and in an intoxicated state drove a vehicle and struck the victim and two other vehicles before hitting a tree, all without any apparent braking. Riley v. Commonwealth, 277 Va. 467 , 675 S.E.2d 168, 2009 Va. LEXIS 50 (2009).

Defendant was properly convicted of DUI maiming because the evidence was sufficient for a rational factfinder to conclude that his actions caused the victim's injury since defendant was driving while intoxicated, and she was sleep-deprived and fatigued; although there was evidence the victim was highly intoxicated and was operating his scooter in an erratic fashion, the evidence failed to demonstrate the victim's actions amounted to an independent, intervening act that alone caused his injuries. Rich v. Commonwealth,, 2015 Va. App. LEXIS 320 (Nov. 10, 2015), aff'd, 793 S.E.2d 798, 2016 Va. LEXIS 188 (Va. 2016).

Trial court's finding that defendant's action rose to the level of criminal negligence was not erroneous where the evidence showed that she took her eyes off of the road and leaned over toward her intoxicated boyfriend in the passenger seat so he could light a cigarette for her. Rich v. Commonwealth, 292 Va. 791 , 793 S.E.2d 798, 2016 Va. LEXIS 188 (2016).

Trial court did not err in finding that, for purposes of § 18.2-51.4 , defendant was the proximate cause of the victim's injuries where a reasonable inference from testimony and an accident scene reconstruction report was that the victim had traversed three lanes of traffic in a wheelchair and was heading into the fourth when he was struck by defendant, the victim's intoxication was not an intervening factor, and defendant's admitted inattentiveness while driving, alcohol consumption, and decision to drive with little sleep formed a natural and continuous sequence that caused the accident. Rich v. Commonwealth, 292 Va. 791 , 793 S.E.2d 798, 2016 Va. LEXIS 188 (2016).

Applied in Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004); Bristol v. Commonwealth, 272 Va. 568 , 636 S.E.2d 460, 2006 Va. LEXIS 115 (2006).

§ 18.2-51.5. Maiming, etc., of another resulting from operating a watercraft while intoxicated; penalty.

  1. Any person who, as a result of operating a watercraft or motorboat in violation of subsection B of § 29.1-738 or a similar local ordinance in a manner so gross, wanton, and culpable as to show reckless disregard for human life, unintentionally causes the serious bodily injury of another person is guilty of a Class 6 felony.
  2. Any person who, as a result of operating a watercraft or motorboat in violation of subsection B of § 29.1-738 or a similar local ordinance in a manner so gross, wanton, and culpable as to show reckless disregard for human life, unintentionally causes the serious bodily injury of another person resulting in permanent and significant physical impairment is guilty of a Class 4 felony.
  3. The court shall order any person convicted under this section not to operate a watercraft or motorboat that is underway upon the waters of the Commonwealth. After two years have passed from the date of the conviction, the convicted person may petition the court that entered the conviction for the right to operate a watercraft or motorboat upon the waters of the Commonwealth. Upon consideration of such petition, the court may restore the right to operate a watercraft or motorboat subject to such terms and conditions as the court deems appropriate, including the successful completion of a water safety alcohol rehabilitation program described in § 29.1-738.5 .
  4. The provisions of Article 3 (§ 29.1-734 et seq.) of Chapter 7 of Title 29.1 shall apply, mutatis mutandis, upon arrest for a violation of this section.
  5. As used in this section, "serious bodily injury" means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

    (2007, cc. 379, 679; 2019, c. 465.)

Cross references. - As to sealing criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction by petition, see § 19.2-392.12 .

The 2019 amendments. - The 2019 amendment by c. 465 designated the former last three sentences of subsection A as subsection C, added subsections B and E and redesignated former subsection B as subsection D; in subsection A, substituted inserted "is guilty of a Class 6 felony" for "resulting in permanent and significant physical impairment is guilty of a Class 6 felony"; and made stylistic changes.

§ 18.2-51.6. Strangulation of another; penalty.

Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.

(2012, cc. 577, 602.)

CASE NOTES

Bodily injury. - Concluding that the term "bodily injury" has one meaning in the context of § 18.2-51 , but has another meaning within the context of § 18.2-51 .6, when the two statutes are part of the same legislative scheme and the relevant language of the two statutes is identical, would be illogical. Accordingly, reading these statutes in pari materia, it is clear that the legislature intended the term "bodily injury" to hold its everyday, ordinary meaning throughout the entire statutory scheme. Moore v. Commonwealth,, 2014 Va. App. LEXIS 162 (May 6, 2014).

"Bodily injury" within the scope of § 18.2-51.6 is any bodily injury whatsoever and includes an act of damage or harm or hurt that relates to the body; is an impairment of a function of a bodily member, organ, or mental faculty; or is an act of impairment of a physical condition. Ricks v. Commonwealth, 290 Va. 470 , 778 S.E.2d 332, 2015 Va. LEXIS 166 (2015).

Physical consequences of defendant's strangulations of the victim established that defendant caused the victim to suffer a bodily injury because the victim testified that in one incident defendant squeezed and pressed down upon the victim's neck to restrict the victim's ability to breathe and the victim suffered neck abrasions, while in the other incident defendant got on top of the victim, placed both hands on the victim's neck, and choked the victim for so long that the victim's face and lips went numb and the victim's neck hurt and was red. Wandemberg v. Commonwealth, 70 Va. App. 124, 825 S.E.2d 291, 2019 Va. App. LEXIS 71 (2019).

Harmless error in admission of evidence. - Defendant was properly convicted by a jury, inter alia, of strangulation because any error by the circuit court - in allowing a medical examiner's report and testimony to include the pathological diagnosis of "Status Post Assault/Manual Strangulation" - was harmless inasmuch as the jury was aware of the context of the diagnosis and was able to determine the proper weight to give it, two experts testified that the victim's stroke symptoms were consistent with strangulation, witnesses testified that the victim said she had been choked, the jury could infer that defendant's delay in seeking medical treatment for the victim was because he caused her injuries, defendant had a fair trial according to law, and the proof was conclusive of his guilt. Hudson v. Commonwealth, No. 0569-18-2, 2019 Va. App. LEXIS 74 (Apr. 2, 2019).

Sufficiency of evidence. - It was reasonable to infer that when defendant compressed his girlfriend's neck he caused a soft tissue injury that resulted in swelling around her neck. Thus, the trial court had credible evidence before it that supported its finding that defendant strangled his girlfriend. Moore v. Commonwealth,, 2014 Va. App. LEXIS 162 (May 6, 2014).

Evidence was sufficient to support defendant's conviction for strangulation because, from the victim's testimony, a reasonable fact-finder could have concluded that defendant applied pressure to the victim's neck which impeded the victim's respiration and/or blood flow and that the bruises around the victim's neck constituted a bodily injury that resulted from defendant applying pressure to the victim's neck. Dawson v. Commonwealth, 63 Va. App. 429, 758 S.E.2d 94, 2014 Va. App. LEXIS 199 (2014).

In two strangulation cases that were considered together on appeal, the evidence presented in one of the cases showed that defendant held the victim down with his hand on her neck, that she was unable to yell and/or talk as a result of his actions, that the victim stated that she could not breathe when his hand was on her neck, and she had a red mark on her neck. The court of appeals did not err in refusing this defendant's petition for appeal, nor did the circuit court err in finding him guilty of violating § 18.2-51.6 . Ricks v. Commonwealth, 290 Va. 470 , 778 S.E.2d 332, 2015 Va. LEXIS 166 (2015).

Evidence insufficient. - Commonwealth's evidence was insufficient to support the conviction for strangulation, as it failed to demonstrate that the victim suffered a bodily injury, where the victim neither sought nor required medical attention, displayed no evidence of visible bruising or cuts, suffered no residual effects following the altercation, did not take or require medication, and did not testify to suffering any type of pain or stiffness at the time of the altercation. Chilton v. Commonwealth,, 2014 Va. App. LEXIS 379 (Nov. 18, 2014).

In two strangulation cases that were considered together on appeal, the court of appeals did not err in reversing the conviction of one of the defendants and dismissing the indictment against him. The Commonwealth's evidence was so minimal that it failed to establish that the victim suffered a bodily injury in the form of a loss of consciousness. Ricks v. Commonwealth, 290 Va. 470 , 778 S.E.2d 332, 2015 Va. LEXIS 166 (2015).

§ 18.2-51.7. Female genital mutilation; penalty.

  1. Any person who knowingly circumcises, excises, or infibulates, in whole or in any part, the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years is guilty of a Class 2 felony.
  2. Any parent, guardian, or other person responsible for the care of a minor who consents to the circumcision, excision, or infibulation, in whole or in any part, of the labia majora or labia minora or clitoris of such minor is guilty of a Class 2 felony.
  3. Any parent, guardian, or other person responsible for the care of a minor who knowingly removes or causes or permits the removal of such minor from the Commonwealth for the purposes of committing an offense under subsection A is guilty of a Class 2 felony.
  4. A surgical operation is not a violation of this section if the operation is (i) necessary to the health of the person on whom it is performed and is performed by a person licensed in the place of its performance as a medical practitioner or (ii) performed on a person in labor who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
  5. A violation of this section shall constitute a separate and distinct offense. The provisions of this section shall not preclude prosecution under any other statute.

    (2017, c. 667; 2018, c. 549.)

The 2018 amendments. - The 2018 amendment by c. 549 substituted "Class 2 felony" for "Class 1 misdemeanor" in subsections A through C.

§ 18.2-52. Malicious bodily injury by means of any caustic substance or agent or use of any explosive or fire.

If any person maliciously causes any other person bodily injury by means of any acid, lye or other caustic substance or agent or use of any explosive or fire, he shall be guilty of a felony and shall be punished by confinement in a state correctional facility for a period of not less than five years nor more than thirty years. If such act is done unlawfully but not maliciously, the offender shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-67; 1960, c. 358; 1975, cc. 14, 15, 604; 1995, c. 439.)

Editor's note. - The above section is § 18.2-52 as enacted by Acts 1975, c. 604. Pursuant to § 30-152, it has been substituted for § 18.2-52 as enacted by Acts 1975, cc. 14 and 15.

The 1995 amendment inserted "or fire" following "any explosive" in the first sentence and substituted "act is done unlawfully" for "act be done unlawfully" in the second sentence.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 12B M.J. Mayhem, §§ 2, 4, 11.

CASE NOTES

Caustic substance. - Spray that smelled like pepper, caused victim's eyes and skin to burn, temporarily blinded her, and required medical attention was a caustic substance, even though the substance was not recovered, tested, or introduced into evidence. Floyd v. Commonwealth, 31 Va. App. 193, 522 S.E.2d 382 (1999).

Classification of a substance as a "caustic substance" does not preclude a classification of the same substance as a noxious gas; a substance may have the characteristics of both a noxious gas and a caustic substance, and a noxious gas, for example, may cause bodily injury through its caustic, or burning, effects. Therefore, in a case where defendant either used mace or pepper spray, it was up to the prosecutor to determine what crime to charge her with. Somerville v. Commonwealth, No. 0543-14-2, 2015 Va. App. LEXIS 45 (Feb. 10, 2015).

Pepper spray. - Defendant's conviction for being part of a mob that maliciously caused bodily injury by means of a caustic substance was affirmed, as the pepper spray used during his gang's attack on a rival gang at a hotel was a caustic substance within the meaning of the term "caustic substance or agent." Corado v. Commonwealth, 47 Va. App. 315, 623 S.E.2d 452, 2005 Va. App. LEXIS 528 (2005).

Sufficient evidence. - Commonwealth proved beyond a reasonable doubt that the pepper spray used during the attack against a rival gang was a caustic substance, as testimony established that the pepper spray caused burning and significant irritation. Corado v. Commonwealth, 47 Va. App. 315, 623 S.E.2d 452, 2005 Va. App. LEXIS 528 (2005).

Insufficient evidence. - Lower courts erred in finding defendant guilty of felony malicious bodily injury by means of a caustic substance, felony assault and battery of a law-enforcement officer, and obstruction of justice because the evidence contradicted the inference that defendant was hiding behind a water heater and released a bear deterrent "while his brother's hands were raised," the evidence that defendant was present in the basement two hours later was equally as susceptible to a finding consistent with his innocence as it was to a finding of guilt, and the record did not demonstrate that defendant procured, encouraged, countenanced, approved commission of the crime, shared the criminal intent of his brother, or was guilty of some overt act. Wright v. Commonwealth, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016), cert. denied, 137 S. Ct. 1442, 2017 U.S. LEXIS 2293, 197 L. Ed. 2d 655 (U.S. 2017).

§ 18.2-52.1. Possession of infectious biological substances or radiological agents; penalties.

  1. Any person who possesses, with the intent thereby to injure another, an infectious biological substance or radiological agent is guilty of a Class 5 felony.
  2. Any person who (i) destroys or damages, or attempts to destroy or damage, any facility, equipment or material involved in the sale, manufacturing, storage or distribution of an infectious biological substance or radiological agent, with the intent to injure another by releasing the substance, or (ii) manufactures, sells, gives, distributes or uses an infectious biological substance or radiological agent with the intent to injure another is guilty of a Class 4 felony.
  3. Any person who maliciously and intentionally causes any other person bodily injury by means of an infectious biological substance or radiological agent is guilty of a felony and shall be punished by confinement in a state correctional facility for a period of not less than five years nor more than 30 years.
  4. For purposes of this section:

    An "infectious biological substance" includes any bacteria, viruses, fungi, protozoa, or rickettsiae capable of causing death or serious bodily injury. "Infectious biological substance" does not include the human immunodeficiency virus ( HIV ) or any other related virus that causes acquired immunodeficiency syndrome (AIDS), syphilis, or hepatitis B.

    A "radiological agent" includes any substance able to release radiation at levels that are capable of causing death or serious bodily injury.

    (1996, c. 769; 2002, cc. 588, 623, 816; 2004, c. 833; 2021, Sp. Sess. I, c. 465.)

Editor's note. - Acts 1996, c. 769, cl. 2, provides: "[t]hat the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 2002 amendments. - The 2002 amendments by cc. 588, 623, and 816 are identical, and added "or radiological agents; penalties" at the end of the section catchline; substituted "or radiological agent" for "capable of causing death" in subsections A and B; and in subsection B, inserted the clause (i) designation and inserted "or (ii) manufacturers, sells . . . with intent to injure another" in the first paragraph, substituted "viruses" for "virus" and added "or serious bodily injury" in the second paragraph, and added the last paragraph.

The 2004 amendments. - The 2004 amendment by c. 833 added the first paragraph of subsection C and redesignated the former second and third paragraphs of subsection B as the present second and third paragraphs of subsection C; and added the last sentence in the second paragraph of subsection C.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 465, effective July 1, 2021, added the subsection D designation, added the introductory language for subsection D, and rewrote the second sentence in the first paragraph, which formerly read: "This definition shall not include HIV as defined in § 18.2-67.4:1 , syphilis or hepatitis B."

Law review. - For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

§ 18.2-52.2. Animal attack resulting from owner's disregard for human life; penalty.

  1. Any owner of an animal is guilty of a Class 6 felony if his willful act or omission in the care, control, or containment of such animal is so gross, wanton, and culpable as to show a reckless disregard for human life and is the proximate cause of such animal attacking and causing serious bodily injury to any person.
  2. The provisions of subsection A shall not apply to any animal that at the time of the act complained of was responding to pain or injury, was protecting itself, its kennel, its offspring, a person, or its owner's property, or was a police dog engaged in the performance of its duties at the time of the attack.
  3. The court may determine that a person convicted under this section shall be prohibited from owning, possessing, or residing on the same property with an animal of the type that led to such conviction.

    (2021, Sp. Sess. I, c. 464.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 464, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Effective date. - This section is effective July 1, 2021.

§ 18.2-53. Shooting, etc., in committing or attempting a felony.

If any person, in the commission of, or attempt to commit, felony, unlawfully shoot, stab, cut or wound another person he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-68; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 12B M.J. Mayhem, § 2.

CASE NOTES

The purpose of this section is to deter the use of specific forms of violence and thus lessen the risk of bodily harm to the potential victims of felonious crime. To effectuate this purpose, the General Assembly employed the only appropriate means available, viz., the imposition of punishment for the use of such violence in addition to the penalty prescribed for the primary felony. Blythe v. Commonwealth, 222 Va. 722 , 284 S.E.2d 796 (1981).

Legislative intent regarding multiple punishments. - Defendant's punishment for two counts of malicious wounding resulting from the stabbing of two victims and for two counts of stabbing/cutting the same victims during the commission of a felony does not offend the double jeopardy clause because the General Assembly intended to impose multiple punishments when enacting this section. Hall v. Commonwealth, 14 Va. App. 892, 421 S.E.2d 455 (1992).

Court rejected defendant's contention that he was punished twice for the same offense as the Virginia General Assembly intended to impose multiple punishments when enacting § 18.2-53 . Moreover, the statutes each contained an element that the other did not: aggravated malicious wounding required malice, an intent to maim, and resulting permanent physical injury, while unlawful stabbing required a wounding during the commission of an underlying felony. Franklin v. Commonwealth,, 2012 Va. App. LEXIS 356 (Nov. 6, 2012).

The legislative intent to authorize cumulative punishment is clear in this section, despite the absence of an express statement to that effect. Blythe v. Commonwealth, 222 Va. 722 , 284 S.E.2d 796 (1981).

Section 19.2-294 does not prohibit defendant's prosecution in a single trial for aggravated malicious wounding and use of a firearm in the commission of the aggravated malicious wounding. Powell v. Commonwealth, No. 0554-89-1 (Ct. of Appeals Oct. 6, 1992).

Intent to wound does not preclude intent to steal. - The mere fact that appellant had the intent to commit malicious wounding did not exclude the hypothesis that he also formed the intent to steal victim's property. Saunders v. Commonwealth, 18 Va. App. 825, 447 S.E.2d 526 (1994).

Sentence upheld. - Trial court did not abuse its discretion following defendant's guilty pleas to voluntary manslaughter, shooting in the commission of a felony, and two counts of unlawfully discharging a firearm in an occupied building in imposing a fifteen-year sentence with five years suspended, which did not exceed the statutory maximum, because the proffer contained facts from which the court could have found that defendant exhibited both premeditation and malice in getting a gun and returning to twice shoot defendant's spouse during a dispute in their home. Spradling v. Commonwealth, No. 2082-15-4, 2016 Va. App. LEXIS 313 (Ct. of Appeals Nov. 15, 2016).

§ 18.2-53.1. Use or display of firearm in committing felony.

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2 , robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51 , malicious bodily injury to a law-enforcement officer as defined in § 18.2-51 .1, aggravated malicious wounding as defined in § 18.2-51.2 , malicious wounding by mob as defined in § 18.2-41 or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.

(1975, cc. 624, 628; 1976, c. 371; 1980, c. 333; 1982, c. 654; 1991, c. 506; 1992, cc. 191, 726; 1993, cc. 549, 835; 1994, c. 950; 2004, c. 461.)

The 2004 amendments. - The 2004 amendment by c. 461, in the second sentence, inserted "mandatory minimum" and substituted "to a mandatory minimum" for "for a" and deleted the former next-to-last sentence, which read: "Notwithstanding any other provision of law, the sentence prescribed for a violation of the provisions of this section shall not be suspended in whole or in part, nor shall anyone convicted hereunder be placed on probation."

Law review. - For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For 1995 survey of criminal law and procedures, see 29 U. Rich. L. Rev. 951 (1995).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abduction and Kidnapping, § 1; 2C M.J. Autrefois, Acquit and Convict, §§ 16, 18, 20; 5B M.J. Criminal Procedure, §§ 4, 86, 87; 13A M.J. Mobs, Riots and Lynchings, § 4; 16 M.J. Robbery, §§ 3, 4; 20 M.J. Weapons, §§ 2, 4.1, 7.2, 9.

CASE NOTES

I. IN GENERAL.

Effect of 1976 amendment. - As a result of the 1976 amendment to this section, the use of a firearm "while committing a felony" no longer is sufficient to constitute a violation of the section. Now, a violation occurs only when a firearm is used with respect to the felonies specified in this section. Bundy v. Commonwealth, 220 Va. 485 , 259 S.E.2d 826 (1979).

Legislative intent. - General Assembly clearly indicated its intent to impose multiple punishments for capital murder and use of a firearm in the commission of a felony pursuant to this section. Wolfe v. Commonwealth, 6 Va. App. 640, 371 S.E.2d 314 (1988).

The General Assembly, in adopting this section, intended to discourage the use of a firearm at any time during the course of the specified criminal endeavors. Creasy v. Commonwealth, 9 Va. App. 470, 389 S.E.2d 316 (1990).

The purpose of § 18.2-53.1 is not only to deter violent criminal conduct, but also to discourage criminal conduct that produces fear of physical harm to a victim from an instrument that gives the appearance of having a firing capability. Wubneh v. Commonwealth, 51 Va. App. 224, 656 S.E.2d 418, 2008 Va. App. LEXIS 56 (2008), overruled in part by Startin v. Commonwealth, 56 Va. App. 26, 690 S.E.2d 310, 2010 Va. App. LEXIS 115 (2010).

The purpose of this section is to deter violent criminal conduct rather than to reform the most dangerous class of criminals. Ansell v. Commonwealth, 219 Va. 759 , 250 S.E.2d 760 (1979).

The purpose of this section is to deter violent criminal conduct. Creasy v. Commonwealth, 9 Va. App. 470, 389 S.E.2d 316 (1990).

The purpose of this section, keyed to serious crimes and prescribing inflexible penalties, is to deter violent criminal conduct. Holloman v. Commonwealth, 221 Va. 196 , 269 S.E.2d 356 (1980).

This section not only is aimed at preventing actual physical injury or death but also is designed to discourage criminal conduct that produces fear of physical harm. Holloman v. Commonwealth, 221 Va. 196 , 269 S.E.2d 356 (1980).

The purpose of this section is to deter violent crimes, not to reform or rehabilitate criminals. It expressly prohibits a court from either suspending the sentence or placing a defendant on probation. The statute provides that the sentence "shall not be suspended," and this language means that the court can neither delay imposition of the sentence nor stay its execution. In re Commonwealth, 229 Va. 159 , 326 S.E.2d 695 (1985).

The mandatory sentence in this section aims to deter violent criminal conduct by imposing a mandatory penalty. The purpose of [this statute], keyed to serious crimes and prescribing inflexible penalties, is to deter violent criminal conduct. By replacing a wide range of discretionary penalties with inflexible penalties, the General Assembly intended to deter violent criminal conduct rather than to reform the most dangerous class of criminals. LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

The purpose of this section would be eroded by committing an offender under § 19.2-311 in lieu of sentencing him under this section. This would substitute a discretionary penalty for an inflexible one. The General Assembly has directed a contrary policy which courts must follow. LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

Construction. - This section is penal in nature and therefore must be strictly construed and any ambiguity or reasonable doubt as to its meaning must be resolved in defendant's favor. Ansell v. Commonwealth, 219 Va. 759 , 250 S.E.2d 760 (1979); Holloman v. Commonwealth, 221 Va. 196 , 269 S.E.2d 356 (1980).

Construction with § 16.1-272. - The terms of this section are not limited by other incongruous laws including subdivision A 1 of § 16.1-272, which provides for the conditional suspension of sentence for juveniles convicted of violent felonies; this section requires a trial court to impose a three-year, unsuspended sentence on a juvenile convicted of use of a firearm in the commission of one of the enumerated felonies despite the provisions of § 16.1-272. Green v. Commonwealth, 28 Va. App. 567, 507 S.E.2d 627 (1998).

Preservation for review. - Where defendant did not preserve for appeal the issues regarding admission and exclusion of testimony and did not show "good cause" or that review was necessary to attain the "ends of justice," the issues could not be raised on direct appeal of defendant's conviction for first-degree murder and for use of a firearm in the commission of the murder. Nguyen v. Commonwealth, No. 0432-02-4, 2003 Va. App. LEXIS 155 (Ct. of Appeals March 25, 2003).

Where defendant did not preserve an insufficiency claim and the record did not "affirmatively prove" that defendant did not commit the offenses of robbery, use of a firearm in the robbery, and wearing a mask in public, in violation of §§ 18.2-58 , 18.2-53.1 , and 18.2-422 , the Va. Sup. Ct. R. 5A:18 "ends of justice" exception did not apply because no manifest injustice occurred. Young v. Commonwealth, No. 0363-03-1, 2003 Va. App. LEXIS 588 (Ct. of Appeals Nov. 12, 2003).

Defendant waived the right to appellate review of the issue of the sufficiency of the evidence to support defendant's conviction under § 18.2-53.1 because defendant's appellate brief was utterly devoid of any case law or legal argument - as required by Va. Sup. Ct. R. 5A:20(e) - with which to judge the correctness or viability of defendant's position on the issue. Mitchell v. Commonwealth, 60 Va. App. 349, 727 S.E.2d 783, 2012 Va. App. LEXIS 219 (2012).

Because § 18.2-91 did not require the use or display of a firearm during a burglary, and because defendant's challenge to the sufficiency of the evidence under § 18.2-53.1 for use of a firearm in the commission of a breaking and entering was waived, the ends of justice exception in Va. Sup. Ct. R. 5A:18 did not apply. Blackwell v. Commonwealth,, 2012 Va. App. LEXIS 9 (Jan. 17, 2012).

In a case in which defendant appealed his conviction for violating §§ 18.2-51 , 18.2-53.1 , and 18.2-286.1 , he argued that evidence of other crimes was inadmissible. The appellate court lacked jurisdiction to consider his argument as it was not presented in the assignment of error on his brief, as required by Va. Sup. Ct. R. 5A:12(c)(1), and was not included as part of the assignment of error on which the appeal was granted at the petition stage. Wyche v. Commonwealth,, 2012 Va. App. LEXIS 227 (July 10, 2012).

Self-defense without fault. - In a case in which defendant was convicted of malicious wounding and use of a firearm in the commission of malicious wounding, because the evidence failed to support an instruction on self-defense without fault, defendant was not entitled to such an instruction, as a matter of law, and the trial court properly refused defendant's proffered instruction on self-defense without fault. Robinson v. Commonwealth,, 2006 Va. App. LEXIS 474 (Oct. 24, 2006).

Self-defense. - Trial court erred in convicting defendant of both use of a firearm in the commission of a felony and discharge of a firearm in a public place because, while the jury was properly instructed and the evidence was sufficient to convict defendant, the trial court erred in not requiring the Commonwealth to elect which offense it would prosecute where the second statute gave the Commonwealth a choice as to which offense to prosecute. Green v. Commonwealth, No. 0344-17-1, 2018 Va. App. LEXIS 36 (Feb. 13, 2018).

Batson motion correctly denied. - Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the trial court was not clearly erroneous in denying defendant's Batson motion. The Commonwealth offered facially valid race-neutral reasons for the exercise of its strikes and defendant failed to offer any evidence or argument that the proffered rationale behind the strikes challenged were pretextual. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Proper jury instruction. - Jury instruction properly stated that for a firearm conviction, the jury had to find the defendant committed murder and his profferred instruction did not permit inconsistent verdicts; the court did not err refusing the defendant's instruction or motion to set aside. Gaines v. Commonwealth, 39 Va. App. 562, 574 S.E.2d 775, 2003 Va. App. LEXIS 75 (2003).

Where defendant preserved the argument for a voluntary manslaughter instruction and the Commonwealth did not argue at trial that the evidence did not support the instruction, the trial court erred in excluding the instruction; therefore, defendant's conviction for second-degree murder and use of a firearm during the commission of a felony, violations of §§ 18.2-32 and 18.2-53.1 , had to be reversed. Fox v. Commonwealth, No. 1717-02-1, 2003 Va. App. LEXIS 362 (Ct. of Appeals June 24, 2003).

Timing of jury instruction. - Trial court did not abuse its discretion by giving the jury a curative instruction that stated that self-defense was not an issue in defendant's trial for aggravated malicious wounding and use of a firearm in the commission of that offense after defendant made defendant's closing argument and before the Commonwealth delivered its rebuttal argument; defendant did not object to the Commonwealth's right to argue in rebuttal that self-defense was not an issue, and the instruction was worded in a neutral fashion that did not mention defendant's argument. Rollison v. Commonwealth,, 2007 Va. App. LEXIS 61 (Feb. 20, 2007).

Jury instructions. - Trial court did not abuse its discretion by giving the jury a curative instruction that stated that self-defense was not an issue in defendant's trial for aggravated malicious wounding and use of a firearm in the commission of that offense since the victim was a transsexual prostitute whose true gender defendant claimed to have learned only moments before the shooting during what began as a consensual sexual encounter, and defendant said he became fearful and pulled his firearm when the prostitute suggested that they continue the sexual encounter despite the fact that the prostitute, like defendant, was male; defendant came perilously close to a claim that the act of shooting the victim was excusable as it was done in self-defense, and claimed that the fear he experienced negated a finding of malice, without supporting a heat-of-passion defense. Rollison v. Commonwealth,, 2007 Va. App. LEXIS 61 (Feb. 20, 2007).

Defendant did not preserve for review the claim that the trial court's response to the jury's question caused the jury instruction to incorrectly state the law because defendant did not make a contemporaneous objection at the time the trial court informed defendant how the trial court would respond to the question. However, in defendant's murder case, the jury instruction did correctly state the law because defendant could be found not guilty of murder under § 18.2-32 yet be convicted of use of a firearm in attempting to commit murder under § 18.2-53.1 . Ludwig v. Commonwealth, 52 Va. App. 1, 660 S.E.2d 679, 2008 Va. App. LEXIS 227 (2008).

Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony were proper because the jury did not err in refusing to award an instruction on voluntary manslaughter. The jury rejected the instruction on second-degree murder and convicted defendant of first-degree murder; it followed that the jury would never have reached a voluntary manslaughter verdict. Cortez-Hernandez v. Commonwealth, 58 Va. App. 66, 706 S.E.2d 893, 2011 Va. App. LEXIS 114 (2011).

Jury instruction as to actual or replica firearm. - Defendant was not properly convicted of use of a firearm in the commission of a felony because the trial court erred in instructing the jury that it was not necessary that the object that defendant possessed was in fact an actual or replica firearm so long as the victim perceived a threat or intimidation by a firearm. Retrial was appropriate because, considering defendant's threats coupled with the pointing motions, which defendant made with defendant's hand in defendant's jacket pocket, the evidence was sufficient to support the convictions. Barney v. Commonwealth, 69 Va. App. 604, 822 S.E.2d 368, 2019 Va. App. LEXIS 5 (2019).

Defense of justification not proved. - Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because, under either account of the events given by defendant, either his trial testimony or his statements made to investigators, he forfeited his right to a self-defense jury instruction since he was not without fault in bringing on the difficulty that resulted in the victim's death; he was not in reasonable fear of death or great bodily harm when he killed the victim. Accordingly, the trial court did not err when it refused defendant's proffered jury instruction on justifiable homicide. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Evidence sufficient. - It is possible to brandish a firearm during a violation for § 18.2-53.1 because brandishing often does occur when one uses or displays a firearm in the commission of a felony; nevertheless, the prosecution is not required to prove a criminal defendant actually brandished his or her firearm in order to obtain a conviction under § 18.2-53.1 because § 18.2-53.1 is written in the disjunctive, prohibiting either the actual use of a firearm, or the display of a firearm in a threatening manner, and thus, the Commonwealth can obtain a conviction under § 18.2-53.1 if it proves the defendant "used or attempted to use" his or her firearm, even in the absence of evidence that the defendant brandished it, but the prosecution is not required to prove the defendant displayed his or her firearm in a threatening manner to obtain a conviction for brandishing a firearm under § 18.2-282 . Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Word "threaten" means to utter threats against, promise punishment, reprisal, or other distress to, whereas the word "induce" means to move and lead, to bring in, or to bring on or bring about: effect, cause; thus, in cases involving the threatening display of a firearm under § 18.2-53.1 , the defendant must display his or her firearm to promise punishment, reprisal or other distress to the victim, whereas in cases involving brandishing under § 18.2-282 , the defendant must merely brandish or display a firearm in such a manner as to reasonably bring about or cause fear in the mind of the victim, and while the concepts are concededly similar, they are not the same. Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Brandishing not a lesser-included offense of use of a firearm in commission of felony. - Trial court erred in convicting defendant of brandishing a firearm in violation of § 18.2-282 as a lesser-included offense of use of a firearm in the commission of a felony, § 18.2-53.1 , because brandishing under § 18.2-282 was not a lesser-included offense of use of a firearm in the commission of a felony under § 18.2-53.1 ; the Commonwealth can obtain a conviction for use of a firearm during the commission of a felony without proof that the defendant brandished the firearm, and a conviction for brandishing without also proving use of the firearm in the commission of a felony, and although the evidence presented to prove the former offense may, overlap with the evidence used to prove the latter, the Commonwealth must submit proof of completely different elements for a finding of guilt as to each separate offense, and thus, these offenses are different for purposes of Blockburger. Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Because it is possible to commit a violation of § 18.2-53.1 without brandishing a firearm, and because one can brandish a firearm without also committing a violation of § 18.2-53.1 , the act of brandishing is not a lesser-included offense of use of a firearm in the commission of a felony; viewed in the abstract, these code sections each require proof of a fact that the other does not because the offense of using a firearm in the commission of a felony requires proof that the defendant either used or attempted to use a firearm or that he or she displayed a firearm in a threatening manner during the commission or attempt to commit one of the felonies enumerated in the statute, and thus, in such cases, the Commonwealth must prove that the defendant used or threateningly displayed the firearm expressly to assist him or her in attempting or completing a specified underlying criminal act, but, in a prosecution for the act of brandishing, the Commonwealth must merely prove that the defendant pointed, held or brandished a firearm in a manner that reasonably induced fear in the mind of some nearby person. Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Failure to present objections to the trial court. - Because defendant failed to present to the trial court one of defendant's Double Jeopardy Clause arguments and defendant's argument that the prosecutor discriminated on the basis of race in the use of peremptory challenges, by failing to present one argument with sufficient specificity and failing to present the other argument, the appellate court did not consider the arguments as they were waived. Blowe v. Commonwealth, No. 1189-18-2, 2019 Va. App. LEXIS 221 (Ct. of Appeals Oct. 8, 2019).

Applied in Brown v. Commonwealth, 222 Va. 111 , 279 S.E.2d 142 (1981); Blythe v. Commonwealth, 222 Va. 722 , 284 S.E.2d 796 (1981); Bradshaw v. Commonwealth, 228 Va. 484 , 323 S.E.2d 567 (1984); Barrett v. Commonwealth, 231 Va. 102 , 341 S.E.2d 190 (1986); Hill v. Commonwealth, 2 Va. App. 683, 347 S.E.2d 913 (1986); Colclasure v. Commonwealth, 10 Va. App. 200, 390 S.E.2d 790 (1990); Akers v. Commonwealth, 31 Va. App. 521, 525 S.E.2d 13 (2000); Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32; Hoyt v. Commonwealth, 44 Va. App. 489, 605 S.E.2d 755, 2004 Va. App. LEXIS 599 (2004); Orndorff v. Commonwealth, 271 Va. 486 , 628 S.E.2d 344, 2006 Va. LEXIS 43 (2006); Morgan v. Commonwealth, 50 Va. App. 120, 646 S.E.2d 899, 2007 Va. App. LEXIS 251 (2007); Saunders v. Commonwealth, 281 Va. 448 , 706 S.E.2d 350, 2011 Va. LEXIS 45 (2011); Ellis v. Commonwealth, 281 Va. 499 , 706 S.E.2d 849, 2011 Va. LEXIS 46 (2011); Jones v. Commonwealth, 65 Va. App. 274, 777 S.E.2d 229, 2015 Va. App. LEXIS 277 (2015).

II. ELEMENTS OF OFFENSE.
A. UNDERLYING OFFENSES.

Violation of this section occurs only when the firearm is used with respect to specified felonies of murder, rape, robbery, burglary, malicious wounding or abduction. Wolfe v. Commonwealth, 6 Va. App. 640, 371 S.E.2d 314 (1988).

The common-law crime of robbery and the crime defined in this section are separate and distinct offenses for double jeopardy purposes. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

And have different elements as matter of law. - The crime of robbery and the crime of using a firearm in committing robbery have different elements as a matter of law, although they may have common elements as a matter of fact, since the "gist" of robbery is the taking and carrying away of the personal property of another, not necessarily by the use of a firearm, whereas the "gist" of this section is the use of a firearm in situations where it is likely that weapons may be used to injure victims of robbery or bystanders. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

To convict a defendant on a charge of using or displaying a weapon in the commission of a felony under this section, requires proof of a different element and evidence additional to that required for the offense of robbery. The use of a firearm is not one of the essential elements of the underlying felony. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

Elements Commonwealth must show. - To support a conviction of use of a firearm in the commission of a felony, the Commonwealth must prove that the accused actually had a firearm in his possession and that he used or attempted to use the firearm or displayed the firearm in a threatening manner while committing or attempting to commit robbery or one of the other specified felonies. Yarborough v. Commonwealth, 247 Va. 215 , 441 S.E.2d 342 (1994).

To sustain a conviction for attempted capital murder, the evidence must establish "both a specific intent to kill the victim and an overt but ineffectual act committed in furtherance of the criminal purpose." Davis v. Commonwealth, No. 1244-95-3 (Ct. of Appeals Mar. 25, 1997).

Guilty of compound offense though not guilty of underlying offense. - A judgment may be entered on a guilty verdict of the compound offense of using a firearm in the commission of a robbery, even though, in the same trial, the jury finds the defendant not guilty of the underlying robbery. Reed v. Commonwealth, 239 Va. 594 , 391 S.E.2d 75 (1990).

Use of predicate offense. - Where trial court acquitted defendant of the murder charge used as the predicate offense in the first indictment to support the use of a firearm charge, trial court did not err when it used the murder charge in the second indictment as the predicate offense to support the firearm charge. Strohecker v. Commonwealth, 23 Va. App. 242, 475 S.E.2d 844 (1996).

Reversal of predicate felony required reversal of firearm charge. - Upon defendant's sufficiency challenge, because the Commonwealth had the burden to prove beyond a reasonable doubt that defendant committed the crime of attempted robbery and it failed to do so, as one would have to resort to speculation and conjecture in order to find that he was attempting to rob as opposed to attempting to obtain money by false pretenses, an attempted robbery conviction could not stand; moreover, given reversal of the attempted robbery conviction, defendant's conviction for attempted use of a firearm during the commission of attempted robbery also had to be reversed. Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Evidence was insufficient to convict defendant of use of a firearm during the attempted commission of a robbery because the evidence was insufficient to conviction of attempted robbery of a particular person because defendant placed a gun to the victim's neck and told the victim to keep ringing the bell for entry to his place of employment, which showed an intent to gain access to the building, but it did not show an intent to deprive the victim of his property. DeSilva v. Commonwealth, No. 2796-08-2, 2009 Va. App. LEXIS 482 (Ct. of Appeals Oct. 27, 2009).

Because the trial court acquitted defendant of a robbery charge after a jury's verdict finding him guilty, defendant's conviction for use of a firearm in the commission of robbery in violation of § 18.2-53.1 was required to be reversed and dismissed on appeal pursuant to the ends of justice requirement, although defendant failed to raise this argument in the trial court. Martin v. Commonwealth,, 2009 Va. App. LEXIS 511 (Nov. 17, 2009).

Conviction under this section not barred by determination defendant only guilty of unlawful wounding. - Defendant's conviction for use of a firearm in the commission of malicious wounding was not barred by the jury's determination that he was guilty of unlawful wounding only; a defendant may not attack his conviction on one count simply because it is inconsistent with the jury's acquittal on another count. Whitehurst v. Commonwealth, No. 0178-91-1 (Ct. of Appeals Mar. 31, 1992).

Conviction of use of firearm in commission of unlawful wounding. - The Code of Virginia contains no statute by which a defendant may be convicted of use of a firearm in the commission of unlawful wounding. A violation of this section occurs only when a firearm is used with respect to the statutorily specified felonies. Johnson v. Commonwealth, 20 Va. App. 547, 458 S.E.2d 599 (1995).

Convictions under this section and unlawful wounding section not inconsistent. - Defendant did not have to be charged with malicious wounding to be convicted of the unlawful use of a firearm in commission of malicious wounding; guilty verdicts on both were not inconsistent because the evidence supported both verdicts. Reese v. Commonwealth, No. 1279-03-4, 2004 Va. App. LEXIS 316 (Ct. of Appeals July 6, 2004).

Statute applies until underlying crime is completed in fact. - This section is not limited in application to the period of time from the commencement of the underlying crime until the point in time when the acts of the defendant make successful prosecution possible. The statute applies to the conduct of the accused until the underlying crime is completed in fact. Creasy v. Commonwealth, 9 Va. App. 470, 389 S.E.2d 316 (1990).

One-to-one relationship between underlying felonies and firearms convictions is not required. It is the identity of offenses which is dispositive, and, if a single act results in injury to two or more persons, a corresponding number of distinct offenses may result. Morris v. Commonwealth, 228 Va. 206 , 321 S.E.2d 633 (1984).

Murder by "malicious shooting" does not preclude conviction under this section. - Murder under § 18.2-154 accomplished by a "malicious shooting" does not preclude a conviction under this section for use of a firearm in the commission of murder. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Conviction under this section and § 18.2-31 not double jeopardy. - Conviction for the use of a firearm in the commission of a felony under this section as well as murder in the commission of a robbery while armed with a deadly weapon under § 18.2-31 (d) (now § 18.2-31 4) does not violate the double jeopardy clause of the United States Constitution. Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct. 2347, 68 L. Ed. 2d 863 (1981).

Not necessary to separately indict and prosecute the underlying felony for conviction under this section. - Where an indictment is returned for an alleged violation of this section, the underlying felony must be proved beyond a reasonable doubt, and to obtain a conviction for violation of this section it is not necessary to separately indict and prosecute the underlying felony. Davis v. Commonwealth, 4 Va. App. 27, 353 S.E.2d 905 (1987).

Common-law burglary as underlying offense. - Defendant could be convicted of use of a firearm in the commission of burglary based on common-law burglary, as § 18.2-53.1 does not distinguish between common-law and statutory burglary. Rashad v. Commonwealth, 50 Va. App. 528, 651 S.E.2d 407, 2007 Va. App. LEXIS 395 (2007).

Member of mob. - Defendant's convictions under § 18.2-53.1 were reversed and dismissed because even though defendant was a member of a mob, § 18.2-42.1 did not render him criminally responsible for using a firearm in the commission of lynching and using a firearm in the commission of malicious wounding by mob simply by being a member of such mob. Paiz v. Commonwealth, 54 Va. App. 688, 682 S.E.2d 71, 2009 Va. App. LEXIS 380 (2009).

Proof of criminal agent element. - Considering a witness' statement the night of the shooting that defendant fired a gun in close proximity to the victim, who clutched her throat and started gasping for air, the officers' testimony that they saw the victim at the scene with what appeared to be a gunshot wound to the neck, and a detective's testimony that the witness identified defendant in a photo lineup, a reasonable fact finder could have found beyond a reasonable doubt that defendant shot the victim, and thus, the evidence was sufficient to establish the criminal agent element. Marrow v. Commonwealth, No. 1041-16-1, 2017 Va. App. LEXIS 116 (Apr. 25, 2017).

B. USE OF A FIREARM.

In deciding whether a firearm was used or displayed in a threatening manner under this section, the evidence is examined from the victim's point of view. Ballentine v. Commonwealth, No. 1457-89-3 (Ct. of Appeals May 7, 1991).

It is irrelevant that defendant did not in fact have a firearm if his victim rationally believed he had one. Cross v. Commonwealth, No. 1559-92-4 (Ct. of Appeals Feb. 22, 1994).

Firearm need not be used as firearm. - Application of § 18.2-53.1 is not restricted to instances where a firearm is used to expel a projective force; once an object satisfies the definition of a firearm, any use of that firearm that is intended to cause physical injury is a violation of § 18.2-53.1 . Rose v. Commonwealth, 53 Va. App. 505, 673 S.E.2d 489, 2009 Va. App. LEXIS 106 (2009).

Need to show firearm was in fact present. - If an object is used to inflict fear or intimidation to accomplish its purpose of rape or robbery, the fear or intimidation may be proved by showing that the victim had reason to believe the object was a firearm although, in fact, it was not a firearm. However, that defendant may not be convicted for the use of a firearm under this section unless the evidence discloses beyond a reasonable doubt that the object used to cause the victim to reasonably believe it was a firearm was, in fact, a firearm. Sprouse v. Commonwealth, No. 1696-93-2 (Ct. of Appeals Jan. 24, 1995).

It was error for trial court to give instruction that relieved Commonwealth of burden of proving beyond a reasonable doubt that object used was in fact a firearm. Castillo v. Commonwealth, No. 0090-99-4 (Ct. of Appeals Feb. 22, 2000).

Instrument giving appearance of firearm. - Evidence was sufficient to convict defendant of using a firearm in violation of this section upon proof that defendant employed an instrument which gave the appearance of having a firing capability, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder. Holloman v. Commonwealth, 221 Va. 196 , 269 S.E.2d 356 (1980).

An instrument which gave the appearance of having a firing capability was sufficient to support a conviction under this section, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder. Vanzant v. Commonwealth, No. 0713-95-1 (Ct. of Appeals April 9, 1996).

The evidence was sufficient to convict the defendant under this section even though the pistol and grenade were fake, where he brandished the pistol, a weapon whose use was specifically proscribed by this section, to threaten and intimate the persons in the bank where the robbery was committed, and the defendant conceded the evidence adduced at trial was sufficient to convict him of robbery. Cox v. Commonwealth, 218 Va. 689 , 240 S.E.2d 524 (1978).

A BB gun appearing to be a .45 caliber pistol was a "firearm" within the meaning of this section. Vanzant v. Commonwealth, No. 0713-95-1 (Ct. of Appeals April 9, 1996).

The evidence was sufficient to prove that the BB pistol used by appellant while robbing the victim was a "firearm" under this section. Thomas v. Commonwealth, 25 Va. App. 681, 492 S.E.2d 460 (1997).

Rusted, inoperable revolver used in robberies constituted a firearm within the meaning of this section. Miller v. Commonwealth, 23 Va. App. 208, 475 S.E.2d 828 (1996).

Even though it was inoperable, the display of a replica of a handgun during two robberies supported a conviction of use of a firearm during the commission of a felony under § 18.2-53 because it looked like a firearm, it had not lost its identity as a firearm, and it had the capacity to operate as if to fire. Startin v. Commonwealth, 54 Va. App. 778, 682 S.E.2d 115, 2009 Va. App. LEXIS 394 (2009).

Evidence was sufficient to convict defendant of using a firearm in the commission of a felony in violation of § 18.2-53.1 because defendant employed a replica of a handgun during robberies which gave the appearance of having a firing capability, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder, and was capable of evoking fear of physical harm. Startin v. Commonwealth, 281 Va. 374 , 706 S.E.2d 873, 2011 Va. LEXIS 57 (2011).

Evidence was sufficient for the circuit court to conclude defendant's rifle was a deadly weapon within the meaning of § 18.2-90 based upon the manner in which it was used and that the rifle had the appearance of being a firearm as required by this section. Hampton v. Commonwealth,, 2015 Va. App. LEXIS 335 (Nov. 17, 2015).

Victim's perception of firearm not relevant. - In an action charging defendant with use of a firearm while in the commission of robbery, the victim's perception was not relevant because the victim sustained actual physical injury when struck with the weapon; the victim's perception is only relevant in those instances when a perpetrator is displaying a weapon in a threatening manner. Rose v. Commonwealth, 53 Va. App. 505, 673 S.E.2d 489, 2009 Va. App. LEXIS 106 (2009).

Actual possession of firearm required. - A victim's perception that an accused is armed, without more, is insufficient to support a conviction under this section which requires actual possession of a firearm as a necessary element of the offense. Wilkins v. Commonwealth, No. 2606-98-2, 2000 Va. App. LEXIS 619 (Ct. of Appeals Aug. 22, 2000).

Proof of "actual" possession of a firearm under this section may be established by circumstantial evidence, direct evidence, or both. Byers v. Commonwealth, 23 Va. App. 146, 474 S.E.2d 852 (1996).

Circumstantial evidence, such as an assailant's statement that he possesses a firearm, can be sufficient evidence to prove beyond a reasonable doubt that an accused indeed possessed a firearm. Williams v. Commonwealth, No. 0326-00-1, 2001 Va. App. LEXIS 147 (Ct. of Appeals Mar. 20, 2001).

By defendant's own statements. - Proof of "actual" possession of a firearm under this section may be established by defendant's own statements that he had a gun and that he threatened to hurt the victims if they didn't follow his instruction; despite the fact that police never found a gun, the jury was entitled to resolve the conflicts in the evidence against defendant, and in doing so, concluded that defendant had a gun. Powell v. Commonwealth, 268 Va. 233 , 602 S.E.2d 119, 2004 Va. LEXIS 120 (2004).

Acting in concert with accomplice. - Where defendant never actually possessed the gun used in robberies, but he acted in concert with an accomplice who did display the weapon, defendant effectively "used" the revolver and was thereby subject to the terms of this section. Cortner v. Commonwealth, 222 Va. 557 , 281 S.E.2d 908 (1981).

Although defendant did not personally possess weapon used in robbery of cab driver, by acting in concert with others to commit robbery, defendant was criminally accountable for use of weapon in commission of a felony. Broggin v. Commonwealth, No. 0131-98-3 (Ct. of Appeals Oct. 5, 1999).

Commonwealth was not required to prove that defendant, as opposed to a co-defendant, was in actual possession of firearm during robbery. Wallace v. Commonwealth, No. 2331-98-1 (Ct. of Appeals Nov. 9, 1999).

Where defendant robbed the victim after the victim was distracted by another person with a gun, the evidence was sufficient to prove that defendant acted in concert with the other person in using a firearm to commit a felony. Nelson v. Commonwealth, No. 1868-02-2, 2003 Va. App. LEXIS 363 (Ct. of Appeals June 24, 2003).

Evidence sufficient to find principal in the second degree. - Defendant's conviction for using a firearm in the commission of a felony in violation of § 18.2-53.1 as a principal in the second degree was supported by sufficient evidence as: (1) in accordance with a prior association, when defendant took a gun to a job interview and gave a principal the gun, defendant intended that the principal use it to obtain the victim's keys and drive away in the victim's vehicle; (2) defendant's theory that defendant was an innocent bystander was rejected; (3) defendant admitted that defendant knew the principal intended to carjack the victim and that defendant observed the crimes; (4) defendant did not discourage the principal or attempt to reclaim defendant's gun; and (5) defendant returned to the scene, retrieved the keys based on knowledge defendant obtained from the principal, and stole the car. Kirksey-Waugh v. Commonwealth,, 2008 Va. App. LEXIS 290 (June 17, 2008).

Defendant was properly convicted of robbery and use of a firearm in the commission of a felony because defendant acted, at the very least, as a principal in the second degree. When a police officer responded to a call of an armed robbery with one man wearing a ski mask, the officer saw four individuals who ran from the officer and were found hiding in a culvert, the victim's stolen cell phone was found in the immediate vicinity, defendant lied about not knowing the other individuals, and a mask was found in defendant's pocket. Jackson v. Commonwealth, No. 1457-16-2, 2017 Va. App. LEXIS 203 (Aug. 8, 2017).

Jury instruction's definition of firearm. - Where defendant failed to object to jury instruction's definition of firearm and the definition that included a BB gun was correct under § 18.2-53.1 , the issue was procedurally defaulted on appeal and no miscarriage of justice warranted application of "ends of justice" exception to Va. Sup Ct. R. 5A:18. Wubneh v. Commonwealth, 51 Va. App. 224, 656 S.E.2d 418, 2008 Va. App. LEXIS 56 (2008), overruled in part by Startin v. Commonwealth, 56 Va. App. 26, 690 S.E.2d 310, 2010 Va. App. LEXIS 115 (2010).

Reasonable inference of actual possession. - Where evidence established that: (1) appellant twice told victim "this is a stickup"; (2) appellant threatened to "butt" victim in the head if victim turned around; (3) victim felt a metal object which he thought was a gun against the back of his neck; and (4) appellant took part in a similar robbery a week before in which a firearm was used, in light of this evidence, the trial court, as trier of fact, could reasonably have inferred that appellant "actually" possessed a firearm while robbing victim. Byers v. Commonwealth, 23 Va. App. 146, 474 S.E.2d 852 (1996).

Evidence was sufficient to establish that the defendant used a firearm in the commission of abduction, notwithstanding that the victim did not see a weapon, where the victim believed that the object that the defendant placed at her back was a weapon and, when the victim pleaded that the defendant not shoot her, the defendant did not respond that she did not have a gun and merely told the victim that she would not shoot. Washington v. Commonwealth, No. 0568-98-1 (Ct. of Appeals Apr. 6, 1999).

The evidence was sufficient to support a defendant's conviction under this section where the defendant handed a note to a hotel desk clerk on which he had written "have gun, will shoot, large bills"; although the defendant later claimed that he was unarmed and the clerk testified that she had seen no evidence of a firearm, the trier of fact could have concluded from the contents of the note that the defendant was armed at the time of the crime. Wilkins v. Commonwealth, No. 2606-98-2, 2000 Va. App. LEXIS 619 (Ct. of Appeals Aug. 22, 2000).

Credible evidence supported defendant's convictions for robbery, abduction, and use of a firearm as, during the hold-up, his statements, his assertive conduct, and the circumstances surrounding them were an "implied assertion" that he had a firearm. Powell v. Commonwealth, No. 1490-02-1, 2003 Va. App. LEXIS 427 (Ct. of Appeals Aug. 5, 2003), aff'd, 268 Va. 233 , 602 S.E.2d 119 (2004).

Evidence was sufficient to convict defendant of using a firearm in the commission of a felony in violation of § 18.2-53.1 , as the victim testified that the firearms used to rob him matched those recovered from the car in which defendant was found riding 15 minutes after the crime, and an officer testified that defendant had been sitting in the car next to where one of the guns was recovered. Berry v. Commonwealth,, 2012 Va. App. LEXIS 385 (Nov. 27, 2012).

III. EVIDENTIARY MATTERS.

Evidence properly admitted. - Trial court did not abuse its discretion in allowing the Commonwealth's forensic expert to opine that the physical facts were inconsistent with defendant's differing versions of how his wife's fatal injury occurred, as these evidentiary facts were useful to the jury in deciding whether the death was accidental, self-inflicted, or a homicide, and whether any of the versions defendant gave to the police were credible; moreover, not only was it important for the Commonwealth's expert witnesses to explain the impact of the physical and forensic evidence to the jury to aid it in evaluating defendant's differing versions to the police of how his wife died, the significance of these evidentiary factors was beyond the scope of knowledge of the average juror. Smallwood v. Commonwealth,, 2005 Va. App. LEXIS 196 (May 17, 2005).

In a prosecution for robbery and the use of a firearm during the commission of robbery, the trial court did not err in admitting testimony by the police regarding other crimes committed by his accomplices that had no relevance to the crimes for which he was being tried, as he failed to restate his objection to the same when the first of two officers testified about those crimes, and also failed to object when the second officer testified about much of the same evidence; thus, in permitting the admission of said evidence, he waived any complaint on appeal regarding the same. Boggs v. Commonwealth,, 2006 Va. App. LEXIS 66 (Feb. 21, 2006).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because the record in the case, which included defendant's own testimony, indicated that his will was not overborne during questioning and that his capacity for self-determination was not impaired. Defendant was apprised of his Miranda rights by the interrogating officer; he was given food and an opportunity to sleep; and he described himself as calm and comfortable throughout the questioning. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Defendant's convictions for murder in violation of § 18.2-32 , use of a firearm in the commission of a felony in violation of § 18.2-53.1 , and grand larceny in violation of § 18.2-95 were appropriate because the trial court did not err in admitting evidence of prior crimes to establish defendant's identity since he disputed his identity as the perpetrator of the instant offenses. Additionally, given the substantial evidence of prior bad acts, evidence of a damaged fence did not substantially influence the jury; its admission was therefore harmless. McMillian v. Commonwealth,, 2011 Va. App. LEXIS 74 (Mar. 1, 2011).

Admission of hearsay held harmless error. - Based on the overwhelming evidence of defendant's guilt, including testimony from an expert, a police detective, and defendant himself, the latter of which demonstrated a motive and intent to kill, the trial court's admission of alleged hearsay testimony under the "state of mind" exception to the hearsay rule was harmless error. West v. Commonwealth,, 2008 Va. App. LEXIS 193 (Apr. 22, 2008).

Admission of an abuse affidavit into evidence, although violative of defendant's U.S. Const., Amend. VI right to confrontation, was harmless beyond a reasonable doubt for convictions for capital murder, abduction with intent to defile, rape, grand larceny, and two counts of use of a firearm, where the evidence was sufficient to support the convictions absent the affidavit. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Gang culture evidence admitted. - Trial court did not abuse its discretion in admitting expert testimony on gang culture in defendant's criminal trial for malicious wounding and use of a firearm during the commission of a felony; the Commonwealth provided a sufficient foundation for the admission of the testimony, the testimony was relevant in that it established a motive for the shooting, and the evidence was not outweighed by prejudice. Hubbard v. Commonwealth,, 2006 Va. App. LEXIS 72 (Feb. 28, 2006).

In a case in which defendant appealed his conviction for violating §§ 18.2-51 , 18.2-53.1 , and 18.2-286.1 , he unsuccessfully argued that the trial court erred in permitting an expert witness to testify about gang practices and terminology, including his involvement with a gang. The trial court reasonably concluded that the probative value of the expert's testimony outweighed any prejudicial effect; the evidence was relevant to prove the identity of the shooter, and the testimony about his gang affiliation was probative as to defendant's identity. Wyche v. Commonwealth,, 2012 Va. App. LEXIS 227 (July 10, 2012).

Photographs admitted into evidence. - In defendant's trial for first-degree murder, a violation of § 18.2-32 , and use of a firearm in the commission of murder, a violation of § 18.2-53.1 , the trial court did not abuse its discretion when it admitted into evidence six photographs of defendant's bedroom, which served as an independent silent witness corroborating a witness's testimony that defendant handled a firearm. Although the photographs supported the prosecution's case, the photographs also supported defendant's testimony regarding intoxication. Therefore, the photographs were relevant evidence and were not prejudicial. Szenasy v. Commonwealth,, 2010 Va. App. LEXIS 412 (Oct. 26, 2010).

Expert testimony. - Defendant's convictions for multiple counts of abduction and use of a firearm in the commission of a felony were appropriate because, even assuming that the side-switching doctrine applied, defendant failed to prove that he disclosed confidential or privileged information to the doctor. Thus, the trial court did not err by allowing the doctor to testify as an expert for the Commonwealth. Chappelle v. Commonwealth, 62 Va. App. 339, 746 S.E.2d 530, 2013 Va. App. LEXIS 235 (2013).

Expert improperly qualified. - In a prosecution for the use of a deadly weapon with the intent to commit larceny and the use of a firearm in the commission of a robbery, the trial court erred in qualifying a detective as an expert in firearms, as the BB gun defendant used was clearly not a "firearm." However, the error was harmless as the detective had the requisite knowledge to be classified as an expert on BB guns, and his improper classification could have only had a slight effect on the jury, if any. Justiss v. Commonwealth, 61 Va. App. 261, 734 S.E.2d 699, 2012 Va. App. LEXIS 404 (2012).

Evidence sufficient where victim believed defendant was armed. - Where victim said that he saw defendant with his hands in his pocket, that defendant approached him and stuck something in his stomach which he did not see, but that "it felt hard like a pistol, the end of a pistol," and that he assumed it was a pistol, and it was clear from the evidence that he responded to the orders and directions of the robber with that belief, the evidence was sufficient to prove defendant guilty under this section beyond a reasonable doubt. Cromite v. Commonwealth, 3 Va. App. 64, 348 S.E.2d 38 (1986).

Where defendant pushed an object into the victim's back and told him he would "shoot" if the victim did not cooperate, then, while defendant did not explicitly state that he had a gun, the clear inference to be drawn from his threat to "shoot," is that he did have a gun. McBride v. Commonwealth, 22 Va. App. 730, 473 S.E.2d 85 (1996), aff'd on reh'g en banc, 24 Va. App. 603, 484 S.E.2d 165 (1997).

Commonwealth presented competent and credible evidence sufficient to prove beyond a reasonable doubt that defendant possessed and used a firearm during a robbery, § 18.2-53.1 . The victim testified that the object felt like and appeared to be a real firearm, and the only evidence that the weapon was a BB gun came from defendant's accomplice, whose testimony the fact finder rejected. Wubneh v. Commonwealth,, 2008 Va. App. LEXIS 6 (Jan. 8, 2008).

Defendant's conviction for use of a firearm in the commission of a robbery was appropriate because the evidence was sufficient; defendant stated that he had a gun and the victim believed that he had one. Defendant had told the victim that he had a gun, to quit looking at him, and to get back in her car; the victim testified that she never saw a gun but that defendant pointed his finger under his sweatshirt like he had a gun, and she believed that he had a gun based on his words and actions. Courtney v. Commonwealth,, 2010 Va. App. LEXIS 111 (Mar. 23, 2010), aff'd, 281 Va. 363 , 706 S.E.2d 344, 2011 Va. LEXIS 51 (2011).

Identification evidence. - Defendant's convictions for robbery and the felonious use of a firearm were appropriate because the evidence was sufficient where the victims identified defendant as the robber; both victims had ample opportunity to observe defendant; the victims were certain that they had identified defendant correctly; and the victims' identification testimony was corroborated by others who had observed defendant at the crime scenes. Griffin v. Commonwealth,, 2007 Va. App. LEXIS 504 (Nov. 7, 2007).

Identification evidence supported defendant's conviction of use of a firearm in the commission of a felony (attempted malicious shooting), as the victims' identification of defendant was sufficient to prove defendant's identity as the shooter; one victim reliably identified defendant as the person with whom the victim argued on the night of the subject shooting and another victim testified unequivocally that the same person who argued with the first victim was the shooter. Cuffee v. Commonwealth, 61 Va. App. 353, 735 S.E.2d 693, 2013 Va. App. LEXIS 7 (2013).

Trial court did not err in refusing to set aside the jury's verdict because it was supported by one witness's testimony, which was not contradicted by the testimony of two other witnesses; the first witness unequivocally testified she saw defendant shoot the victim, and the testimony of the other witnesses, viewed in light of their particular vantage points, did not directly contradicted her identification of defendant. Wood v. Commonwealth, No. 0937-17-1, 2018 Va. App. LEXIS 255 (Oct. 2, 2018).

Evidence was sufficient to establish defendant's criminal agency because the victim positively recognized defendant as the second robber in a photo on the day of the incident; the victim had a good opportunity to view the second robber at the time of the incident because after the men had taken all of his belongings, he came "chest to chest" with the man, and from that close proximity, the victim was looking at him in his face, and corroborating evidence supported the identification. Jones v. Commonwealth, No. 0426-19-1, 2020 Va. App. LEXIS 96 (Apr. 7, 2020).

Evidence was sufficient to find defendants were two of the perpetrators of the offenses because the surveillance footage showed four males traveling together on the day of the beating and homicide; it showed two men wearing clothing consistent with defendants chasing after the second victim with their arms outstretched and a puff of smoke that looked as if a gun was fired; and the jury was entitled to rely on the witnesses' identifications of defendants and the videos. Benniefield v. Commonwealth, No. 0001-20-2, 2020 Va. App. LEXIS 231 (Sept. 29, 2020).

Evidence held sufficient. - Evidence supported conviction of robbery and use of a firearm in commission of robbery where there was positive identification testimony by witness and two other employees, who were in close proximity to defendant during robbery, who testified that the defendant was the armed robber who entered store alone, threatened them, and left with money, and where defendant was also identified by his accomplice as person who entered store and committed crime. Lewis v. Commonwealth, 7 Va. App. 596, 376 S.E.2d 295 (1989), aff'd en banc, 8 Va. App. 574, 383 S.E.2d 736 (1989).

Where the defendant gave a bank teller a note stating that he had a gun and pointed to his pocket, and saying he did not want to hurt anyone, this evidence was sufficient to prove beyond a reasonable doubt that the defendant actually possessed a firearm and used it in a threatening manner, even though he was acquitted in the same bench trial of entering the bank with a deadly weapon. Elmore v. Commonwealth, 22 Va. App. 424, 470 S.E.2d 588 (Va. App. 1996).

In this case, defendant aimed his loaded gun at police officer while he was in the car and attempted to aim at him again after he partially emerged from the car. Even though defendant did not verbally threaten the officer, the trial court could have reasonably concluded that his actions amounted to the commencement of the consummation of his murder of this officer. Davis v. Commonwealth, No. 1244-95-3 (Ct. of Appeals Mar. 25, 1997).

Evidence was sufficient to support the defendant's conviction of using a firearm in the commission of robbery where he aided and abetted another, who used a gun during a robbery, as, by such conduct, the defendant effectively "used" the firearm used by his coperpetrator. Turner v. Commonwealth, No. 2117-97-1 (Ct. of Appeals Oct. 6, 1998).

The evidence was sufficient to support a defendant's conviction under this section where a participant in a robbery identified the defendant and described his involvement in the crime. Kingsberry v. Commonwealth, No. 0142-99-1, 2000 Va. App. LEXIS 622 (Ct. of Appeals Aug. 22, 2000).

A defendant's statements and his menacing actions provided sufficient evidence from which the trial judge could conclude beyond a reasonable doubt that the defendant was guilty of using a firearm in the commission of two robberies where the evidence proved that the defendant threatened to "shoot" a store owner while gesturing and pointing at him with what appeared to the owner to be a heavy object and that the defendant told a bank teller that he would "blow her head off" and kept his hand tucked under his belt buckle during the course of robbing the bank. Williams v. Commonwealth, No. 0326-00-1, 2001 Va. App. LEXIS 147 (Ct. of Appeals Mar. 20, 2001).

Evidence was sufficient to support defendant's conviction of possession of a firearm, as defendant entered the victim's store with defendant's hand behind defendant's back, and threatened to shoot the victim; although the victim did not know whether defendant had a gun, defendant's threat was sufficient to cause the victim to relinquish all the money in the cash register. Artis v. Commonwealth, No. 3259-01-1, 2002 Va. App. LEXIS 749 (Ct. of Appeals Dec. 17, 2002).

Evidence was sufficient to support defendant's attempted murder and use of a firearm in the commission of attempted murder charges where defendant's intent to kill the victim was shown by defendant's actions in climbing on the top of the victim's truck, and repeatedly firing his weapon toward the victim, who was on the ground trying to shield himself with the truck. Cook v. Commonwealth, No. 1968-02-2, 2003 Va. App. LEXIS 375 (Ct. of Appeals July 1, 2003), aff'd, 268 Va. 111 , 597 S.E.2d 84 (2004).

Evidence was sufficient to support defendant's illegal use of a firearm in the commission of a second-degree murder conviction where: (1) the position of the victim's body was inconsistent with defendant's explanation that she had committed suicide; (2) defendant gave inconsistent factual accounts to the EMTs, law enforcement officers, friends, and the jury; (3) despite defendant's claims that his relationship with the victim had no problems or difficulties, the victim moved out four months earlier, bought a new home, removed defendant as beneficiary on her life insurance policy, and started dating other men; (4) the victim's friends described her as happy and upbeat following her separation from defendant; and (5) defendant testified that immediately prior to the victim's death, he and the victim engaged in an emotional discussion over the victim's admitted relationships with other men that hurt defendant's feelings and emotionally upset him. Sluder v. Commonwealth, No. 2531-02-3, 2003 Va. App. LEXIS 605 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to support defendant's conviction where the Commonwealth proved that defendant raped a woman and held a gun the entire time as well as put the gun under his chin and told the victim he was going to blow his head off if she did not have intercourse with him. Breeden v. Commonwealth, 43 Va. App. 169, 596 S.E.2d 563, 2004 Va. App. LEXIS 257 (2004).

Trial court's judgment following a bench trial that found defendant guilty of eight counts of attempted malicious wounding and eight counts of felonious use of a firearm was not plainly wrong or without evidence to support it and, thus, was affirmed; an inference that defendant tried to maim eight police officers providing security at a nightclub could be drawn by defendant's conduct in firing a fusillade of gunfire in their direction. Coleman v. Commonwealth,, 2006 Va. App. LEXIS 502 (Nov. 7, 2006).

Defendant's malicious wounding, aggravated malicious wounding, and use of a firearm in the commission of a felony convictions were upheld on appeal, as sufficient evidence linked him to a shooting while driving a Jeep loaned to him and his cohorts in exchange for drugs, and based on the same, the trial judge could reject defendant's hypothesis that another group of men gained possession of the Jeep and committed the crimes alleged. Powell v. Commonwealth, No. 1942-05-2, 2006 Va. App. LEXIS 537 (Ct. of Appeals Nov. 28, 2006).

Testimony offered by two victims was not inherently incredible, and the trial court did not err in finding the evidence sufficient to support defendant's convictions for robbery, § 18.2-58 , and using a firearm in the commission of a felony, § 18.2-53.1 . Both victims described defendant as having played an active role in the robbery, and nothing in the record rendered their testimony inherently incredible. Winckler v. Commonwealth,, 2007 Va. App. LEXIS 73 (Mar. 6, 2007).

Direct eyewitness testimony of two witnesses identifying defendant as the gunman was not inherently incredible as a matter of law and was, thus, sufficient to support defendant's convictions for second-degree murder, in violation of § 18.2-32 , and use of a firearm in the commission of murder, in violation of § 18.2-53.1 . The witnesses' testimony was corroborated by other testimony and the physical evidence, including shell casings recovered from the scene of the murder. Jones v. Commonwealth,, 2007 Va. App. LEXIS 265 (July 17, 2007).

Evidence was sufficient to support defendant's convictions on four counts of using a firearm in the commission of a felony where after the fatal shooting of three people defendant hid out at a friend's house and then fled the state, the murder weapon was found in the friend's backyard, other crimes evidence tended to prove that defendant stole the murder weapon in a robbery, and an accomplice's testimony identifying defendant as the shooter was corroborated by fingerprint evidence. Rayford v. Commonwealth, No. 0328-07-1, 2007 Va. App. LEXIS 506 (Ct. of Appeals Aug. 9, 2007).

Fact that defendant apparently found and loaded a pistol, defendant fired all five rounds and still continued pulling the trigger, and defendant initially packed a bag for flight were circumstances that the jury properly considered in concluding that the defendant acted with malice and supported defendant's convictions for first-degree murder and the use of a firearm in committing the murder. Cayton v. Commonwealth,, 2008 Va. App. LEXIS 393 (Aug. 12, 2008).

Fact that the infant was unaware of defendant's use of the gun did not invalidate defendant's conviction for use of a firearm in the commission of abduction. Clanton v. Commonwealth, 53 Va. App. 561, 673 S.E.2d 904, 2009 Va. App. LEXIS 202 (2009).

Defendant's challenge to the sufficiency of the evidence to support conviction for use of a firearm in the commission of murder and use of a firearm in the commission of malicious wounding lacked merit, because the testimony of defendant's grandfather, identifying defendant as the person who shot the pistol that wounded the grandfather and killed another victim, was not inherently incredible as a matter of law; any challenge based on the grandfather's admission that the grandfather had been drinking and doing drugs before the shooting did not render the testimony inherently incredible. Carrington v. Commonwealth,, 2009 Va. App. LEXIS 152 (Mar. 31, 2009).

Evidence was sufficient to support a jury's verdict convicting defendant of robbery, use of a firearm in the commission of a felony, § 18.2-53.1 , and wearing a mask in public, § 18.2-422 , under circumstances in which defendant did not contest the victim's testimony that a robbery occurred, defendant and another individual were identified when the victim's purse was found in a creek near the other individual's residence and the other individual's fingerprint was found on the victim's credit card still inside the purse, when the other individual was arrested, defendant was with him, and, in a subsequent videotaped confession, defendant told a detective that he was the robber and gave numerous specific details about the offense, his subsequent flight from the scene, and the disposal of the purse in the creek; defendant admitted wearing a mask and using a BB gun to commit the offense. Defendant's actions did not support his claim that he confessed to prevent the other individual from being held responsible for the robbery. Sears v. Commonwealth,, 2009 Va. App. LEXIS 319 (July 14, 2009).

Evidence was sufficient to support defendant's convictions for robbery, shooting within an occupied dwelling, using a firearm in the commission of a felony, armed burglary, and malicious wounding, because ample evidence supported a finding that defendant was a perpetrator in a home invasion: three of the victims identified defendant at trial, and a co-defendant testified that defendant said he intended to rob the home, that he entered the home wearing a bullet-proof vest and armed with a handgun, and that he later told the co-defendant that he had struck one of the victim's in the head. Trial court did not abuse discretion in ruling on misidentification of accomplices by witnesses. Streater v. Commonwealth,, 2009 Va. App. LEXIS 504 (Nov. 10, 2009).

Evidence, when viewed in the light most favorable to the Commonwealth, supported the jury's verdicts that defendant was guilty of abduction to extort money for pecuniary benefit in violation of § 18.2-48 and use of a firearm during the commission of a felony in violation of § 18.2-53.1 because the jury, as it was entitled to do, ostensibly disregarded some of the testimony from the Commonwealth's witnesses; defendant pointed a handgun at the victim and demanded money, the victim's boyfriend gave defendant money after an initial attempt to obtain money from the victim's brother failed, over the course of the next two hours, defendant accompanied the victim to numerous locations in an attempt to obtain more money, and numerous witnesses testified on behalf of the Commonwealth confirming the victim's allegations. Brown v. Commonwealth,, 2009 Va. App. LEXIS 575 (Dec. 22, 2009).

There was sufficient evidence to support the convictions for unlawful, felonious and malicious shooting of the victim and for the unlawful and felonious use and display of a firearm while committing an aggravated malicious wounding where: (1) the victim and numerous witnesses identified defendant as the armed assailant who shot the victim with a 9mm pistol discovered at defendants' house; (2) a doctor testified that the bullet that entered the victim's body damaged the lining of his left hip joint, thereby causing traumatic arthritis; and (3) traumatic arthritis could result in chronic pain and a limitation of the range of motion of that joint. Barnes v. Commonwealth, 279 Va. 22 , 688 S.E.2d 210, 2010 Va. LEXIS 17 (2010).

Defendant's convictions for first-degree murder and the use of a firearm in the commission of a felony were proper because he admitted to purposefully using a sawed-off shotgun both to shoot and bludgeon the victim; therefore, there was sufficient evidence from which the jury could have inferred malice, and the charges of first- and second-degree murder were properly before the jury. Accordingly, the trial court did not err when it denied defendant's motion to strike those charges; for the same reasons, the trial court did not err when it failed to strike the charge of use of a firearm in the commission of a felony. Avent v. Commonwealth, 279 Va. 175 , 688 S.E.2d 244, 2010 Va. LEXIS 10 (2010).

Because defendant, a North Carolina bail bondsman, did not have authority pursuant to §§ 9.1-185.18 and 9.1-186.13 , to seize a fugitive or the victim, and the Commonwealth showed that defendant intended to abduct the fugitive, there was no legal justification for his actions and defendant's convictions for attempted abduction, a violation of §§ 18.2-26 and 18.2-47 , and use of a firearm in the commission of an attempted abduction, a violation of § 18.2-53.1 , were proper. Collins v. Commonwealth, 57 Va. App. 355, 702 S.E.2d 267, 2010 Va. App. LEXIS 480 (2010), aff'd, 283 Va. 263 , 720 S.E.2d 530, 2012 Va. LEXIS 17 (2012).

Evidence was sufficient to prove attempted murder and use of a firearm while attempting to commit murder, violations of §§ 18.2-26 , 18.2-32 , and 18.2-154 , where defendant pointed a gun at the victim's car, firing four or five times. Thus, defendant must have intended the immediate, direct, and necessary consequences of his voluntary act. Stullenberg v. Commonwealth, No. 0223-09-3, 2010 Va. App. LEXIS 179 (Ct. of Appeals May 4, 2010).

Appellant's convictions for two counts of robbery, one count of statutory burglary, and three counts of use of a firearm in the commission of the felonies were affirmed because it was reasonable for the fact finder to conclude the intruder knew the victims' habits and DNA evidence indicated at some point in time, appellant had touched the BB gun. Swinson v. Commonwealth,, 2010 Va. App. LEXIS 311 (Aug. 3, 2010).

Evidence was sufficient to sustain defendant's convictions for use of a firearm in the commission of a murder and use of a firearm in the commission of an abduction, violations of § 18.2-53.1 , where defendant purchased a gun just prior to the victim's disappearance and death, and defendant admitted to shooting the victim, although defendant claimed that the shooting was accidental. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Defendant's conviction for use or display of a firearm in the commission of a felony was appropriate because his statements, combined with is opportunity to discard an actual firearm, were sufficient to find him guilty under § 18.2-53.1 . Because there was evidence to support defendant's conviction, the supreme court was not permitted to substitute its own judgment. Courtney v. Commonwealth, 281 Va. 363 , 706 S.E.2d 344, 2011 Va. LEXIS 51 (2011).

Evidence defendant repeatedly entered the store robbed wearing gang colors, a witness observed guns in the van used to get to and from the store, defendant drove van used to and from the store, and defendant was present when the person who robbed the store came running out with the register drawer and defendant drove the van away supported defendant's convictions for robbery and use of a firearm during the robbery. Lebron v. Commonwealth, 58 Va. App. 540, 712 S.E.2d 15, 2011 Va. App. LEXIS 238 (2011).

There was sufficient evidence to prove defendant was guilty of use of a firearm in the commission of a robbery, including testimony that defendant repeatedly entered the store that day of the robbery; told another he needed to "man up," meaning he needed to commit the robbery; and was in the get away van, which had been seen with firearms in it earlier that day, when the individual committing the robbery came running out with the register drawer. Salcedo v. Commonwealth, 58 Va. App. 525, 712 S.E.2d 8, 2011 Va. App. LEXIS 239 (2011).

Evidence was sufficient to support defendant's convictions for two counts of use of a firearm in the commission of robbery and burglary under § 18.2-53.1 , where defendant clearly displayed the weapon in a threatening manner when he demanded money, threatened to kill the pharmacy technician, and lifted his shirt to reveal a weapon. Towler v. Commonwealth, 59 Va. App. 284, 718 S.E.2d 463, 2011 Va. App. LEXIS 402 (2011).

Where the object defendant used had the appearance of being capable of firing a projective by explosion, the evidence was sufficient evidence to support defendant's conviction for use of a firearm in the commission of a felony. Cook v. Commonwealth,, 2011 Va. App. LEXIS 409 (Dec. 20, 2011).

Evidence was sufficient to support defendant's convictions where, taken in the light most favorable to the Commonwealth, it established that defendant shot and killed the victim; the jury was free to disbelieve defendant's testimony that defendant was not at scene when the victim was shot and to believe the testimony of other witnesses that defendant was there and shot and killed the victim. Mayfield v. Commonwealth, 59 Va. App. 839, 722 S.E.2d 689, 2012 Va. App. LEXIS 88 (2012).

Ample evidence supported a finding that defendant committed the offenses of first-degree murder and use of a firearm in the commission of a felony as the testimony of an eyewitness, who was at the scene at the time of the offenses, proved that defendant shot and killed two unarmed men without provocation, in that the eyewitness testified that defendant obtained a rifle, that he had a brief verbal exchange with the first victim before he shot the first victim twice, that defendant then turned the gun toward the second victim and shot him twice in the back, that the eyewitness did not have a gun, and that the eyewitness did not see any weapons in the possession of the two victims. Additionally, the evidence showed that defendant moved the two bodies to a location behind his garage and fled from police. Daugherty v. Commonwealth,, 2012 Va. App. LEXIS 136 (May 1, 2012).

Trial court did not err in finding that the evidence proved beyond a reasonable doubt that defendant acted as a principal in the second degree to use of a firearm in the commission of a robbery as the evidence showed that defendant aided in the commission of and shared the main actor's intent to rob a clothing retail store during normal business hours, where he was likely to encounter both store employees and customers. The evidence showed that defendant transported the main actor to and from the immediate area where he committed the robbery and abduction; that defendant remained in her SUV at a nearby apartment complex, where neither she nor the main actor lived, when the main actor departed the vehicle to commit the robbery; that she tried to assist him in eluding police, and that she tried to provide him with an alibi when questioned about the offenses, and that she gave false and contradictory statements to officers when questioned about her part in the robbery. Wade v. Commonwealth, No. 2115-11-2,, 2012 Va. App. LEXIS 161 (Ct. of Appeals May 15, 2012).

Conviction for use of a firearm in the commission of a robbery was supported by sufficient evidence, where the record contained ample evidence demonstrating that defendant took marijuana from a victim's car on the day of the shooting, including testimony that the victim weighed out one ounce of marijuana in the car but police recovered less than two-tenths of an ounce and defendant admitted he took a pill bottle containing marijuana. Person v. Commonwealth,, 2012 Va. App. LEXIS 187 (June 5, 2012).

Sufficient evidence supported defendant's conviction as the victim observed that the accomplice had a semi-automatic gun, felt the cold, hard barrel of the gun that defendant placed against his neck, and saw the tip of that gun; further, defendant was guilty as a principal in the second degree of possessing the firearm used by his accomplice. Gibbs v. Commonwealth, No. 1726-11-1, 2012 Va. App. LEXIS 324 (Ct. of Appeals Oct. 16, 2012).

Evidence was sufficient to support defendant's conviction for using a firearm in the commission of burglary under § 18.2-53.1 because the way defendant used a gun after entering the victims home supported the jury's finding that he used it during the entry for the same purpose: in order to be ready to subdue the victim as necessary. Smith v. Commonwealth, 61 Va. App. 690, 739 S.E.2d 280, 2013 Va. App. LEXIS 104 (2013).

Sufficient evidence supported defendant's conviction for use of a firearm during the commission of an attempted felony because sufficient evidence supported defendant's conviction for attempted first-degree murder. Commonwealth v. Herring, 288 Va. 59 , 758 S.E.2d 225, 2014 Va. LEXIS 94 (2014).

Evidence was sufficient to support defendant's convictions of second degree murder and the use of a firearm in the commission of that murder where, based on defendant's animosity towards the victim, evidenced by numerous statements in which he expressed a desire to shoot and kill him, the jury could have inferred that defendant killed the victim with malice. Buchanan v. Commonwealth,, 2015 Va. App. LEXIS 153 (May 5, 2015).

Evidence was sufficient to support defendant's conviction of two counts of using a firearm in the commission of a felony where a witness heard defendant tell the victim he was going to kill the victim, she saw the gun in defendant's left hand, she watched him aim the gun at the car and discharge the weapon, and she identified him at trial with certainty. The victim also saw the gun in defendant's left hand and heard a gunshot coming from his left where defendant was situated, and a detective saw defendant sign his name with his left hand. Baird v. Commonwealth,, 2015 Va. App. LEXIS 164 (May 12, 2015).

Evidence was sufficient to support defendant's convictions for attempted robbery, use of a firearm in the commission of an attempted robbery, and possession of a firearm by a violent convicted felon, as it showed that defendant pointed a gun at the victim and chased the victim in an attempt to get the victim to go back to his house so defendant could rob him. Howard v. Commonwealth, No. 1621-14-2, 2015 Va. App. LEXIS 220 (July 21, 2015).

Circuit court properly convicted defendant of attempted murder, shooting at an occupied vehicle, and use of a firearm in the commission of a felony because defendant was the only individual seen handling a firearm, threatened the victim, pointed his gun at the victim, and, after becoming momentarily distracted, fired it at the victim, and hit his truck, and a rational factfinder could find that defendant shot at the victim with malice. Logan v. Commonwealth, 67 Va. App. 747, 800 S.E.2d 202 (2017).

Since the evidence was sufficient to establish defendant's identity as the criminal agent, it was sufficient to establish that defendant used a firearm in the commission of malicious wounding. Marrow v. Commonwealth, No. 1041-16-1, 2017 Va. App. LEXIS 116 (Apr. 25, 2017).

Circuit court properly convicted defendant of robbery and use of a firearm in the commission of a felony because the evidence, viewed under the proper standard, was sufficient to support the conviction where defendant gave a note to the victim stating that he had a gun and that he did not want to hurt her, told her as he committed the robbery to keep her hands where he could see them, rifled through her purse, took her debit card and a photo of her driver's license, pointing out that if she said anything to the police, he could find her, again implying that he had the capacity to hurt her in retaliation if she failed to follow his instructions, and the victim testified that she was "very scared" during the robbery. Kinlaw v. Commonwealth, No. 0761-16-1, 2017 Va. App. LEXIS 151 (June 20, 2017).

Trial court properly convicted defendant of robbery and using a firearm in the commission of a felony and denied his motion to strike the victim's testimony as unbelievable because the her testimony matched what she reported to the police officers on the morning of the incident, she unequivocally identified defendant as the man who robbed her, and the gun used during the robbery and the victim's cell phone were found at defendant's house. Williams v. Commonwealth, No. 0445-16-1, 2017 Va. App. LEXIS 163 (July 11, 2017).

Evidence was sufficient to support the circuit court's finding that defendant maliciously wounded the victim and used a firearm to commit that malicious wounding because the circuit court explicitly weighed a number of factors in making its credibility determination; the fact that the victim used crack cocaine and consumed alcohol sometime before the shooting did not render his testimony inadmissible but were relevant factors for the circuit court to weigh in assigning credibility. McClain v. Commonwealth, No. 1838-16-2, 2017 Va. App. LEXIS 259 (Oct. 17, 2017).

Evidence that defendant displayed a firearm in a threatening manner while committing or attempting to commit a murder met the requirements of this section, and proved that defendant violated this section by using or attempting to use the firearm while committing or attempting to commit murder, despite the fact that the victim died of knife wounds. Taylor v. Commonwealth, No. 1390-16-2, 2018 Va. App. LEXIS 4 (Jan. 9, 2018).

Sufficient evidence supported defendant's conviction for use of a firearm to commit abduction because the evidence showed defendant was guilty of abduction and acted in concert with a man who possessed a firearm to commit the abduction. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Circuit court erred in convicting defendant of attempted robbery and use of a firearm in the commission of attempted robbery because the evidence did not prove that defendant had begun the actual robbery or that its execution was otherwise imminent where the police saw a man get out of a car followed a short while later by defendant and another man, who had put on hooded sweatshirts and walked down an alley in the same direction as the first man had gone, and defendant ran when he saw the police; defendant's conviction for use of a firearm in the commission of attempted robbery could not stand since it was contingent upon proof of the underlying robbery, which was lacking. Jones v. Commonwealth, No. 1764-16-2, 2018 Va. App. LEXIS 256 (Oct. 2, 2018).

Evidence was sufficient to convict defendant of use of a firearm in the commission of a robbery because an inconsistent verdict acquitting defendant of the underlying robbery did not constitute reversible error; defendant, acting in concert with the accomplice, would be guilty as a principal in the second degree of possessing and using the firearm used by his accomplice; defendant took advantage of the victim's detention at gun point to search her bedroom and personal belongings; and, afterward, the victim discovered that $50 was missing from her purse. Harris v. Commonwealth, No. 1084-17-2, 2018 Va. App. LEXIS 266 (Oct. 9, 2018).

Record entirely supported the jury's finding that defendant used a firearm in the commission of murder. The jury, as the finder of fact, was entitled to reject defendant's hypothesis of innocence that his uncle shot the victim. Bolar v. Commonwealth, No. 1152-17-4, 2018 Va. App. LEXIS 329 (Nov. 27, 2018).

Evidence was sufficient to convict defendant of maliciously wounding her estranged husband, and using a firearm in the commission of a felony because she was present at the time of the shooting; her account of what happened directly contravened other physical evidence and the testimony of other witnesses; and her brother and his girlfriend stated that defendant left their grandmother's house alone right before the time of the shooting, and returned alone and distraught. Oliver v. Commonwealth, No. 0848-20-2, 2021 Va. App. LEXIS 110 (July 6, 2021).

Evidence sufficient to prove use of firearm. - Evidence was sufficient to support defendant's conviction for use of a firearm in the commission of a felony, in violation of § 18.2-53.1 , when the victims testified that defendant, while threatening to rob them, lifted his shirt and displayed a firearm, and the fact that only one victim saw the firearm did not require a different result, nor did the facts that a firearm was not found on defendant's person and his house was not searched for a weapon. Jones v. Commonwealth, No. 1730-03-1, 2004 Va. App. LEXIS 300 (Ct. of Appeals June 29, 2004).

Commonwealth presented sufficient evidence to sustain two convictions of using a firearm in commission of both a charge of attempted murder and a charge of malicious wounding, based on the victim's testimony, and the inferences drawn therefrom, in which the jury could reasonably conclude that: (1) defendant had a firearm in her possession when she hit the victim with the hammer; (2) when defendant shot the victim, and before she hit the victim with a hammer, nothing in the record indicated that she put the gun down before she hit him with the hammer; and (3) by having the firearm in her possession, defendant displayed the firearm in a threatening manner during the hammer attack; furthermore, although the record did not indicate that defendant presented the pistol in a threatening manner, the jury could properly conclude that her mere possession of the pistol during the hammer attack, coupled with the fact she had already used the pistol, could create a legitimate fear of further use and constituted display of a firearm in a threatening manner. Coleman v. Commonwealth, No. 1488-04-2, 2005 Va. App. LEXIS 379 (Ct. of Appeals Oct. 4, 2005).

Circumstantial evidence was sufficient to prove that defendant possessed a firearm and used it in a threatening way in the commission of a robbery of a convenience store; defendant kept his concealed hand beneath his clothing during the robbery, he nodded his head up and down in a gesture of yes when asked by the clerk if he had a gun, and defendant gestured with his concealed hand by "jiggling" it. Kendrick v. Commonwealth,, 2006 Va. App. LEXIS 39 (Jan. 31, 2006).

There was sufficient evidence to support convictions of aggravated malicious wounding and use of a firearm in the commission of aggravated malicious wounding. Ample credible evidence, including the victim's identification of defendant, placed him in close proximity to the crime scene both immediately before and after the shooting; a rational finder of fact could determine that, notwithstanding another person's fingerprint on the firearm, defendant was present at the crime scene and fired the weapon, even though his prints were not on the weapon. Barnes v. Commonwealth,, 2008 Va. App. LEXIS 533 (Dec. 9, 2008), aff'd, 279 Va. 22 , 688 S.E.2d 210, 2010 Va. LEXIS 17 (2010).

Conviction for use of a firearm while in the commission of robbery was supported by evidence that defendant used the gun to inflict physical harm in order to accomplish the robbery when the victim was struck with the weapon. Rose v. Commonwealth, 53 Va. App. 505, 673 S.E.2d 489, 2009 Va. App. LEXIS 106 (2009).

Reversal of defendant's conviction for use of a firearm in an attempted robbery was not required because the victim, who was deaf, did not see any gestures indicating the presence of a gun and could not hear any verbal threats regarding a gun. Section 18.2-53.1 was not restricted to situations in which the victim was aware of or able to comprehend the use of a firearm; the trial court could find that in making threats to use the gun and keeping his hand cocked under his clothing as though he was holding a gun, defendant used a firearm or attempted to use a firearm. Corprew v. Commonwealth,, 2009 Va. App. LEXIS 145 (Mar. 24, 2009).

There was sufficient evidence of a firearm to support defendant's convictions for use of a firearm in an attempted robbery and use of a firearm in a robbery. The trial court had concluded that defendant had a gun based on defendant's assertions that he had a gun and the motions he made toward his clothing. Corprew v. Commonwealth,, 2009 Va. App. LEXIS 145 (Mar. 24, 2009).

Where no weapon was fired. - Evidence was sufficient to support conviction for use of a firearm during a burglary despite the fact that no weapon was fired until after defendant gained entry because § 18.2-53.1 applied until the underlying crime was complete. Tucker v. Commonwealth,, 2006 Va. App. LEXIS 526 (Nov. 21, 2006).

Sufficient evidence to show acting in concert. - Evidence that defendant, in concert with the gunman, intentionally attempted to seize control of the vehicle by trying to enter the vehicle while the gunman pointed a firearm at the driver was sufficient to support defendant's convictions for attempted carjacking, in violation of § 18.2-58.1 , and use of a firearm in the commission of a felony, in violation of § 18.2-53.1 . Walker v. Commonwealth,, 2007 Va. App. LEXIS 214 (May 22, 2007).

Where no weapon was found. - There was sufficient evidence to convict defendant of the use of a firearm in the commission of a felony, even thought a firearm was never found, because the victim testified that he saw defendant holding a gun and the trial judge, as finder of fact, was entitled to accept this testimony. McCray v. Commonwealth,, 2008 Va. App. LEXIS 38 (Jan. 22, 2008).

Evidence held insufficient. - Defendant's conviction for use of a firearm during the commission of a felony was reversed because, at its best, the inculpatory evidence showed only that defendant knew that the triggerman killed the victim and that, two months after the killing, defendant and another decided to "roll up" or leave the area. No reasonable interpretation of defendant's statement that defendant knew the triggerman implied that defendant, even if present at the scene of the murder, aided and abetted the triggerman in committing the murder. Jones v. Virginia,, 2007 Va. App. LEXIS 430 (Nov. 27, 2007).

In a case in which the Commonwealth appealed the Court of Appeals of Virginia's reversal of defendant's convictions for violating §§ 18.2-58 and 18.2-53.1 , the evidence was insufficient to support the circuit court's factual findings, to establish that a store department lead was intimidated, or to support the circuit court's judgment convicting defendant of robbery and use of a firearm in the commission of robbery. In the end, about all that the Commonwealth was left with was the robber's eye contact with the department lead and the latter's testimony that he stopped because there was a weapon involved and that gave him some concern. Commonwealth v. Anderson, 278 Va. 419 , 683 S.E.2d 536, 2009 Va. LEXIS 86 (2009).

Evidence was insufficient to support a conviction of use or display of a firearm during the commission of the burglary, in violation of § 18.2-53.1 , because the elements of statutory burglary were complete before defendant used or displayed a firearm. Rowland v. Commonwealth, 281 Va. 396 , 707 S.E.2d 331, 2011 Va. LEXIS 60 (2011).

Where defendant's accomplice shot an occupant of a home after they broke in, the evidence was insufficient to convict defendant of the use of a firearm in commission of burglary, as the Commonwealth was required to prove that the firearm was used before entry was fully accomplished. Rushing v. Commonwealth, 284 Va. 270 , 726 S.E.2d 333, 2012 Va. LEXIS 133 (2012).

Although no witness was able to identify defendant by facial recognition, as the robber was wearing a mask during the robbery, there was sufficient evidence to convict defendant of displaying a firearm during a robbery where the surveillance camera photographs showed the robber wearing a dark, hooded jacket or sweatshirt of some type, with a tag or label on the lower left front side, as well as distinctively marked gloves, the store owner testified that defendant's height was about the same as the height of the robber and the robber was African-American, as was defendant, a police officer later encountered defendant wearing a dark jacket, zipped up, with a knit cap on his head and the hood of his jacket pulled over his head, with a tag or label on the lower left front side, and the officer discovered a pair of gloves and a handgun lying on the ground in a haphazard fashion, as if someone had quickly or carelessly tossed them there, defendant's DNA profile was consistent with that found on the gloves, and the gloves had the same color and distinctive markings as the gloves worn by the robber. Spence v. Commonwealth, 60 Va. App. 355, 727 S.E.2d 786, 2012 Va. App. LEXIS 221 (2012).

Evidence was insufficient to sustain defendant's conviction for use of a firearm in the commission of an attempted robbery because it did not reflect that defendant manipulated a sawed-off shotgun in any manner prohibited by the statute while committing or attempting to commit robbery; even though defendant possessed the sawed-off shotgun, his possession of it only amounted to preparation to commit robbery and not attempted robbery as required by the statute. Jones v. Commonwealth, 70 Va. App. 307, 826 S.E.2d 908, 2019 Va. App. LEXIS 110 (2019).

Sufficient evidence to support conviction as principal in the second degree. - Defendant's convictions, as a principal in second degree, of robbery, § 18.2-58 , and use of a firearm in the commission of a felony, § 18.2-53.1 , were proper because, as the "getaway" driver, defendant contributed to the execution of the robbery, and his actions belied his claim that he was merely a bystander who knew nothing of the perpetrator's intent to rob; defendant spent the afternoon with the perpetrator, held the perpetrator's gun, drove the perpetrator to the parking lot where the victim was standing, and stopped the car "directly" in front of the victim. Defendant remained in the car in the driver's seat and watched the perpetrator get out of the car while carrying a gun, and it was reasonable to conclude that defendant knew what the perpetrator intended to do and assisted him by driving him directly in front of victim and waiting in the driver's seat until the perpetrator returned. Hayes v. Commonwealth,, 2009 Va. App. LEXIS 132 (Mar. 24, 2009).

Defendant was properly convicted, as a principal in the second degree, of two counts of abduction, three counts of robbery, and five counts of use of firearm in commission of a felony because, while defendant remained in the "get away" vehicle, a cook and a waitress were grabbed and forced into an office and three employees, two assistant managers and a waitress were each subjected to violence and intimidation to accomplish the goal of obtaining the money from a safe. Harper v. Commonwealth, No. 0319-16-1, 2016 Va. App. LEXIS 328 (Ct. of Appeals Dec. 6, 2016).

Evidence sufficient to support conviction. - Defendant's convictions for first-degree murder and use of a firearm in the commission of a felony in violation of §§ 18.2-32 and 18.2-53.1 were appropriate because the jury was entitled to disbelieve defendant's assertion that she did not know that her boyfriend had a weapon when they entered the victim's home. Further, there was sufficient evidence of concert of action because defendant and her boyfriend arrived at the home of defendant's father knowing that they were forbidden to be there; they gained entrance through the back door; they were intent upon forcing her father to surrender the welfare checks; and when defendant's father refused, they pursued him up the stairs where he was shot and brutally beaten. Thomas v. Commonwealth, 279 Va. 131 , 688 S.E.2d 220, 2010 Va. LEXIS 11, cert. denied, 131 S. Ct. 143, 178 L. Ed. 2d 8, 2010 U.S. LEXIS 6109 (U.S. 2010).

IV. PUNISHMENT.

Section aimed at punishment not reform. - This section is not a general recidivist statute, but a "specific recidivist" statute; this section imposes additional punishment for a subsequent conviction for the same offense; such statutes are aimed at punishment of specific behavior, not reform. Stubblefield v. Commonwealth, 10 Va. App. 343, 392 S.E.2d 197 (1990).

Where the offense for the predicate conviction was committed after the charged offense, this section was intended to impose additional punishment for a subsequent conviction for the same offense. Miller v. Commonwealth, 22 Va. App. 497, 471 S.E.2d 780 (1996).

This statute is recidivist in nature because it is aimed at punishment of specific behavior, not reform. Batts v. Commonwealth, 30 Va. App. 1, 515 S.E.2d 307 (1999).

No double jeopardy when multiple convictions and punishments obtained in same trial. - Even where a single act is the subject of multiple punishments, there is no double jeopardy violation when multiple convictions and punishments are obtained in a single trial if the General Assembly has clearly indicated its intent to impose multiple punishments. The statute's language plainly expresses the legislature's intent to impose an enhanced punishment on an accused when he uses a firearm in the commission of a felony. This intent and its deterrence policy is the same whether the felonies are committed against several victims, or as in this case, one person. Ballentine v. Commonwealth, No. 1457-89-3 (Ct. of Appeals May 7, 1991).

Convictions under this section and § 18.2-93 not double jeopardy. - In order to prove the offense pursuant to this section, the commonwealth must establish that the defendant used or displayed a gun in the commission of a robbery and the location of the robbery is irrelevant whereas, under § 18.2-93 , the commonwealth must show that the defendant entered a bank while armed with a deadly weapon but evidence of use or display of the weapon is not an element of the crime and, therefore, convicting a defendant for use of a firearm in the commission of a robbery and for entry into a banking house while armed with a deadly weapon does not violate the double jeopardy clause. Collins v. Commonwealth, No. 0253-00-1, 2001 Va. App. LEXIS 90 (Ct. of Appeals Feb. 27, 2001).

Concurrent sentences for multiple convictions. - Neither § 18.2-53.1 nor the mandatory minimum sentencing statute, § 18.2-12.1 , prohibit a trial court from running multiple sentences imposed for convictions of § 18.2-53.1 concurrently with each other. To the extent that the holding in Bullock v. Commonwealth, 631 S.E.2d 334 (2006), is inconsistent, it is overruled. Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (2012).

Motion to withdraw guilty plea. - In a case in which defendant pled guilty to violating §§ 18.2-90 , 18.2-47 , 18.2-67.1 and 18.2-53.1 , he argued unsuccessfully that the circuit court abused its discretion in denying his motion to withdraw his guilty pleas prior to sentencing; defendant failed to show a good faith basis for seeking to withdraw his guilty pleas. He was clearly aware of the potential range of punishments available to the court at the time he pled guilty; as such, the fact that the sentencing guidelines recommended a higher sentence than he had hoped did not constitute a good faith basis for rescinding his pleas. Mack v. Commonwealth,, 2009 Va. App. LEXIS 417 (Sept. 22, 2009).

Applicability of enhanced punishment provisions. - The enhanced punishment provision of this section applied to three separate offenses committed on the same day and tried together. Ansell v. Commonwealth, 219 Va. 759 , 250 S.E.2d 760 (1979).

The enhanced punishment provided by this statute is not geared to whether an accused has committed one or more acts, but rather, it is geared to the number of actual convictions suffered by an accused; thus, where several convictions result from the same act, each conviction is separate and distinct from the other. Flythe v. Commonwealth, 221 Va. 832 , 275 S.E.2d 582 (1981).

Final sentencing order predicate to instruction on enhanced punishment. - A final sentencing order with respect to the prior prosecution is a necessary predicate to an instruction on the enhanced punishment provisions for a second or subsequent conviction; a jury's verdict in the prior prosecution is not a final conviction without the entry of the sentencing order and, therefore, cannot be used to establish the predicate first offense. Batts v. Commonwealth, 30 Va. App. 1, 515 S.E.2d 307 (1999).

Number of actual convictions and not how many acts committed. - The statute is geared to the number of actual convictions suffered by an accused and not how many acts the accused has committed. Ballentine v. Commonwealth, No. 1457-89-3 (Ct. of Appeals May 7, 1991).

Identity of offense and not act is dispositive. - Where defendant argued that each of the two criminal events, although comprised of several felonies, was continuous in nature, involving only a single victim and a single "criminal intent," and he, therefore, reasoned that punishment for successive and distinct firearm offenses arising from each component felony amounted to multiple punishments for the same offense, the court of appeals found no merit in defendant's argument. This section addresses itself not to the act or the incident, but to the offenses committed with a firearm. It is the identity of the offense and not of the act which is dispositive. Brown v. Commonwealth, No. 3084-96-1 (Ct. of Appeals Nov. 18, 1997).

Subsequent conviction defined. - Any conviction that follows a first conviction is a subsequent conviction within the purview of this section. Flythe v. Commonwealth, 221 Va. 832 , 275 S.E.2d 582 (1981).

Conviction for use of firearm in killing of second victim as part of same act constituted second conviction. - Where the defendant was convicted under § 18.2-31 (g) (now § 18.2-31 7) for killing two persons as part of the same act or transaction and the evidence showed he shot both his victims, he committed a corresponding number of distinct firearms offenses in the commission of those killings. Accordingly, his conviction of the use of a firearm in the murder of the second victim constituted a second or subsequent conviction under this section. Morris v. Commonwealth, 228 Va. 206 , 321 S.E.2d 633 (1984).

Multiple firearms convictions for commission of more than one felony against victim. - It is possible to commit more than one of the felonies listed in this section against one victim and to incur multiple firearm convictions as a result thereof. Goad v. Commonwealth, No. 0137-86-3 (Ct. of Appeals July 13, 1987).

No requirement of prior notice to defendant. - Even though the Commonwealth failed to inform defendant that he was being charged as a second offender, defendant was validly convicted of use of firearm as a second offense; Ansell v. Commonwealth , 219 Va. 759 , 250 S.E.2d 760 (1979), makes clear that this section has no requirement of prior notice to the defendant. Stubblefield v. Commonwealth, 10 Va. App. 343, 392 S.E.2d 197 (1990).

An indictment alleging an offense need not notify a defendant that he is being charged as a second or subsequent offender, because the essential purpose of the statute, deterrence through punishment, is achieved despite the lack of such a recitation. Thus, when defendant was charged with violating § 18.2-53.1 and had previously been convicted under the statute, it was not necessary for the indictment to notify him that he was being tried as a second or subsequent offender. Hillard v. Commonwealth,, 2006 Va. App. LEXIS 234 (Apr. 18, 2006).

Use of firearm in commission of abduction. - Where the defendant was convicted of robbery, the use of a firearm in the commission of robbery, and three counts of abduction, all arising out of the same robbery, the three counts of use of a firearm in the commission of abduction were clearly second or subsequent convictions. Scaggs v. Commonwealth, 5 Va. App. 1, 359 S.E.2d 830 (1987).

Indictment not required to charge second or subsequent offense. - Virginia law clearly provides that § 18.2-53.1 does not require the Commonwealth to charge in an indictment, for using a firearm in the commission of an enumerated felony, that the particular crime is a second or subsequent offense before the offender may be sentenced to the enhanced mandatory minimum penalty. Totten v. Commonwealth,, 2006 Va. App. LEXIS 178 (May 9, 2006).

Proof of prior conviction. - When a defendant is charged with violating § 18.2-53.1 and has previously been convicted under the statute, the Commonwealth need not prove a defendant's prior use of a firearm conviction during the guilt phase of trial; rather, the Commonwealth is permitted to introduce evidence at sentencing to prove that conviction. Accordingly, when the Commonwealth offered no evidence of the prior conviction during the guilt phase, but offered a certified copy of an order to prove the conviction at sentencing, there was no error. Hillard v. Commonwealth,, 2006 Va. App. LEXIS 234 (Apr. 18, 2006).

Existence of more than one conviction, not sequence of offenses, is what gives rise to enhanced punishment. - It is the existence of more than one conviction under the statute, not the sequence of offenses, which gives rise to the enhanced punishment. To the extent that the indictment alleges "the second or subsequent time while committing Armed Robbery," the allegation is surplusage. The purpose of an indictment is to inform the defendant of the charge against him, and any variance between the indictment and proof is not fatal where there is not prejudice to the defendant in preparing for his trial. The indictment fulfilled its function, and defendant suffered no prejudice. Goad v. Commonwealth, No. 0137-86-3 (Ct. of Appeals July 13, 1987).

The order in which the crimes are committed, the order in which the verdicts are returned, or the order in which the acts are alleged in the indictment are all irrelevant to second or subsequent convictions for firearm offenses under this section. Goad v. Commonwealth, No. 0137-86-3 (Ct. of Appeals July 13, 1987).

This section addresses itself not to the act or incident, but to the offenses committed with a firearm and the convictions that result therefrom; where several convictions result from the same act, each conviction is separate and distinct from the other. Scaggs v. Commonwealth, 5 Va. App. 1, 359 S.E.2d 830 (1987).

Here, the defendant had been previously convicted in another county of violating this section at the time of sentencing for the charged offense. Therefore, the charged offense was a second or subsequent conviction and the trial court did not err by sentencing the defendant as a recidivist. Miller v. Commonwealth, 22 Va. App. 497, 471 S.E.2d 780 (1996).

Judges divested of discretion respecting punishment. - Because this statute's purpose is "to deter violent criminal conduct," it provides an "inflexible" penalty. Clearly, therefore, by prescribing a mandatory sentence, the General Assembly has divested trial judges of all discretion respecting punishment. In re Commonwealth, 229 Va. 159 , 326 S.E.2d 695 (1985).

Notwithstanding the 2004 amendment to § 18.2-53.1 , Green v. Commonwealth, 28 Va. App. 567, 507 S.E.2d 627 (1998), remains valid and precludes the courts from applying § 16.1-272 to suspend any part of a mandatory minimum sentence imposed. Bullock v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334, 2006 Va. App. LEXIS 296 (2006), overruled in part by Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (Va. 2012).

Read in conjunction with § 18.2-12.1 , this section expressly requires the court to impose the entire term of confinement and provides that the court shall not suspend the sentence in full or in part. Thus, a trial court may not set the mandatory minimum sentences imposed for multiple convictions under § 18.2-53.1 to run concurrently with each other. Bullock v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334, 2006 Va. App. LEXIS 296 (2006), overruled in part by Brown v. Commonwealth, 284 Va. 538 , 733 S.E.2d 638, 2012 Va. LEXIS 190 (Va. 2012).

Sentencing of juvenile. - Even after the 2004 statutory amendments, the mandatory sentencing provisions of § 18.2-53.1 control over the juvenile sentencing options contained in subdivision A 1 of § 16.1-272 that allow suspension of an adult sentence. Commonwealth v. Brown,, 2008 Va. App. LEXIS 517 (2008), aff'd in part and rev'd in part, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

Convictions for using a firearm in the commission of robbery were clearly "ancillary crimes" requiring sentencing under subdivision A 1 of § 16.1-272 rather than subdivision A 2 of § 16.1-272, and the mandatory sentencing provisions of § 18.2-53.1 controlled over the juvenile sentencing options in § 16.1-272. Thus, defendants had to receive the mandatory minimum sentences. Commonwealth v. Brown,, 2008 Va. App. LEXIS 517 (2008), aff'd in part and rev'd in part, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

Juvenile defendant who was charged as an adult and pled guilty to five counts of use of a firearm in the commission of a felony, in violation of § 18.2-53.1 , should have been sentenced to the mandatory minimum rather than sentenced to juvenile dispositions under § 16.1-272 because the statutes were in conflict, and § 18.2-53.1 was the more specific statute. Brown v. Commonwealth, 279 Va. 210 , 688 S.E.2d 185, 2010 Va. LEXIS 9 (2010).

Multiple punishments did not violate double jeopardy clause. - The convictions and imposition of multiple punishments for capital murder, robbery and use of a firearm in the commission of a felony did not violate appellant's rights under the double jeopardy clause of the Fifth Amendment. Since those convictions and punishments did not violate the double jeopardy clause, his counsel was not ineffective for failing to raise the issue. Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475 (1986).

Where defendant was indicted and convicted for the offense of capital murder and the separate offense of robbery during the commission of which he used a firearm, the prosecution and convictions for dual violations of this section were proper. Walton v. Commonwealth, No. 0900-85 (Ct. of Appeals Dec. 11, 1986).

Conviction in jury trial held proper where defendant found guilty of voluntary manslaughter. - Neither principles of double jeopardy or collateral estoppel were applicable in a single criminal jury trial, where defendant was found guilty of voluntary manslaughter but not murder, and did not bar his conviction for use of a firearm in the commission of murder. Wolfe v. Commonwealth, 6 Va. App. 640, 371 S.E.2d 314 (1988).

Inconsistent with verdict of guilty of involuntary manslaughter. - A finding that a defendant is guilty beyond a reasonable doubt of murder is a necessary element of the firearm offense, as charged under this section, and a finding by a jury that the defendant is guilty of the lesser offense of involuntary manslaughter is inconsistent with a guilty verdict under this section; the use of a firearm during the commission of involuntary manslaughter is not a criminal offense under this section. Gray v. Commonwealth, 28 Va. App. 227, 503 S.E.2d 252 (1998).

All defendants held responsible for shooting by one of them in course of robbery. - Where defendant was one of four men, acting in concert, who decided to rob the victim; they followed him, surrounded him, and accosted him; it then appeared to at least one of them that shooting the victim would be expedient for their common purpose, and that the shooting was done as an incident of that common purpose, each co-actor was criminally responsible for the shooting, even those who did not intend it or anticipate that it would occur. Because they shared the common intent to rob, they shared the common intent to commit all of the elements of robbery, an incidental probable consequence of which was the use of a weapon, including a firearm if one should be at hand. In such circumstances, each co-actor is responsible for the acts of the others, and may not interpose his personal lack of intent as a defense. Carter v. Commonwealth, 232 Va. 122 , 348 S.E.2d 265 (1986).

Mandatory term of imprisonment. - Upon a conviction under § 18.2-53.1 , the use of a firearm statute, a trial court may sentence a defendant only to a mandatory term of imprisonment of three years for the first conviction or a mandatory term of imprisonment of five years for a second or subsequent conviction. Hines v. Commonwealth, 59 Va. App. 567, 721 S.E.2d 792, 2012 Va. App. LEXIS 45 (2012).

Sentence of five years' imprisonment on the charge of using a firearm in the commission of a felony was reversed because the sentence exceeded the statutory maximum authorized by the General Assembly because the three-year mandatory minimum sentence constituted both the mandatory minimum and the mandatory maximum for that offense. Because a three-year fixed term of confinement was the only sentence available under this statute, a new sentencing hearing was unnecessary as to defendant's conviction, and the case was remanded for entry of a new sentencing order. Graves v. Commonwealth, 294 Va. 196 , 805 S.E.2d 226, 2017 Va. LEXIS 146 (2017).

Commitment under § 19.2-311 contrary to mandatory provisions of this section. - The sentencing alternatives under § 19.2-311 differ from those required by this section. Thus, a commitment under § 19.2-311 is contrary to the mandatory provision of this section. LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

Court confirmed convictions for first-degree murder and use of a firearm in the commission of the murder where blood spatter analysis was proper expert testimony for which a sufficient evidentiary foundation was established. Smith v. Commonwealth, 265 Va. 250 , 576 S.E.2d 465, 2003 Va. LEXIS 36 (2003).

Sentence to indeterminate commitment held improper. - The mandatory sentence required upon a conviction for the use of a firearm during the commission of a felony prevents a trial court from sentencing a person to an indeterminate commitment to the Department of Corrections. LaFleur v. Commonwealth, 6 Va. App. 190, 366 S.E.2d 712 (1988).

Sentence not improper. - Trial court had subject matter jurisdiction and did not err in sentencing defendant after defendant pled guilty to two counts of robbery and one count of using a firearm while committing a robbery; Apprendi did not apply because defendant's sentences for those offenses was within the statutory ranges set by the legislature. Barnes v. Commonwealth,, 2006 Va. App. LEXIS 506 (Nov. 7, 2006).

Trial court did not abuse its discretion in imposing a 43-year sentence against defendant, as said sentence was within the ranges set by the legislature and well below the total statutory maximum for the various felony offenses for which he was convicted. Clark v. Commonwealth, No. 1727-07-3,, 2008 Va. App. LEXIS 234 (Ct. of Appeals May 13, 2008).

Circuit court lacked jurisdiction to consider defendant's motion to vacate his sentences because it erred by ruling that the erroneous sentences were void ab initio for being shorter than the statutorily-prescribed five-year minimum. Commonwealth v. Watson, 297 Va. 355 , 827 S.E.2d 778, 2019 Va. LEXIS 48 (2019), cert. denied, 140 S. Ct. 2583, 2020 U.S. LEXIS 2054, 206 L. Ed. 2d 507 (U.S. 2020).

Sentence improper. - Judgment was reversed and the case was remanded for a new sentencing hearing on defendant's robbery, conspiracy, and wearing a mask in public convictions as the ends of justice exception in Va. Sup. Ct. R. 5A:18 applied because defendant was sentenced to a maximum total sentence of 33 years' in violation of § 19.2-295 , when the jury imposed a maximum total sentence of 15 years of imprisonment. Gibbs v. Commonwealth, No. 1726-11-1, 2012 Va. App. LEXIS 324 (Ct. of Appeals Oct. 16, 2012).

Trial court followed the clear mandate of subdivision C1 of § 18.2-374.1 in convicting defendant of six counts of production of child pornography, first offense, for taking six sexually explicit photographs within a two-minute window and sentenced defendant to six minimum terms to be served concurrently with each other as Bullock v. Commonwealth , 631 S.E.2d 334 (Va. App. 2006), was not a predicate for the application of stare decisis here as Bullock's holding was limited to the imposition of multiple mandatory minimum sentences under § 18.2-53.1 , and § 18.2-53.1 specified that the punishment for violating the statute was to be separate and apart from, and was to be made to run consecutively with, any punishment received for the primary felony. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012).

Sentence of 10 years, with 5 years suspended, for possession of a firearm after having been convicted of a violent felony and a sentence of 5 years, with 2 years suspended, for using a firearm in the commission of a felony exceeded the maximum sentence permitted by law for those offenses; the 5-year mandatory minimum for the first offense was the statutory maximum, and only a 3-year mandatory term of incarceration was permitted for a first offender as to the second offense. Byrd v. Commonwealth, No. 1426-12-3, 2014 Va. App. LEXIS 102 (Mar. 18, 2014).

CIRCUIT COURT OPINIONS

Double jeopardy. - Commonwealth could introduce the same evidence relied on in the prosecution of first degree murder and use of a firearm in the commission of a felony in a prosecution for possession of a firearm by a non-violent felon because the latter charge was not a subsequent prosecution for double jeopardy purposes where defendant sought a severance. The possession charge required proof of facts not necessarily decided in defendant's favor in the prior adjudication, which resulted in an acquittal. Commonwealth v. Walker, 86 Va. Cir. 405, 2013 Va. Cir. LEXIS 42 (Norfolk Apr. 8, 2013).

Although the Firearm Possession Statute prohibits felons from possessing actual firearms, a witness observing a weapon, combined with an indication that the firearm might be used, can be sufficient to prove that a defendant possessed an actual firearm; the Firearm Use Statute, by contrast, only requires that the victim reasonably believed that the defendant had an actual firearm while committing the felony. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Defendant's conviction for possessing a firearm as a convicted felon did not invoke double jeopardy because in contrast to using a firearm to commit a felony, of which he was acquitted, his possession conviction was based on the fact that there was sufficient evidence he possessed a firearm; the fact that similar evidence was used to prove the two crimes was not unique, and the fact that evidence for both charges consisted of witness testimony did not invoke Double Jeopardy Clause concerns. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Conviction under the Firearm Use Statute requires that the Commonwealth prove the defendant committed one of the listed felonies, and a conviction for possession of a firearm by a felon does not require that a felony be committed while possessing the firearm but that the defendant be a convicted felon; although a defendant acquitted of an underlying felony cannot be convicted of using a firearm in the commission of a felony he may nevertheless be convicted under the Firearm Possession Statute. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Defendant was provided with proper notice of charges. - Defendant's motion to set aside the verdict was denied because defendant was provided proper notice of his charges, which was consistent with his due process rights; defendant was charged with using a firearm in the commission of murder, and he was found guilty of that crime by the jury. Commonwealth v. McKinney, 92 Va. Cir. 266, 2015 Va. Cir. LEXIS 187 (Norfolk Dec. 23, 2015).

Defendant's motion to set aside the verdict was denied because defendant was not convicted of using a firearm in the commission of any felony, which was not recognized as a crime by the Code of Virginia, but rather, he was convicted of using a firearm while committing murder, which was recognized. Commonwealth v. McKinney, 92 Va. Cir. 266, 2015 Va. Cir. LEXIS 187 (Norfolk Dec. 23, 2015).

Admissibility of evidence. - Trial court denied defendant's motion in limine to exclude evidence that defendant had an altercation with another person while defendant was incarcerated for premeditated murder and use of a firearm while committing a murder, and that altercation led to a charge and conviction for assault and battery; that evidence, plus evidence that defendant made incriminating statements regarding his crimes were relevant and probative, and were not unduly prejudicial. Commonwealth v. Wallace, 70 Va. Cir. 341, 2006 Va. Cir. LEXIS 32 (Portsmouth 2006).

Proper jury instruction. - Defendant's motion to set aside the verdict was denied because the firearm jury instruction was consistent with the firearm verdict form; the instruction correctly stated the two elements of the crime for which defendant was indicted. Commonwealth v. McKinney, 92 Va. Cir. 266, 2015 Va. Cir. LEXIS 187 (Norfolk Dec. 23, 2015).

Evidence insufficient. - Court vacated the finding of guilt on two counts of using a firearm in the commission of robbery where neither the defendant nor his accomplice had ever uttered to their victims that either actually had a firearm, each victim was left to infer that the object he or she saw during the course of the robbery was an operational firearm, and while the "gun" in question was never found, the Commonwealth was unable to rebut the testimony of its own witness, the defendant's accomplice, that he and the defendant had in fact stolen a toy pistol and covered it with black tape to give it an authentic appearance. Commonwealth v. Ruiz, 64 Va. Cir. 431, 2004 Va. Cir. LEXIS 177 (Norfolk 2004).

§ 18.2-54. Conviction of lesser offenses under certain indictments.

On any indictment for maliciously shooting, stabbing, cutting or wounding a person or by any means causing him bodily injury, with intent to maim, disfigure, disable or kill him, or of causing bodily injury by means of any acid, lye or other caustic substance or agent, the jury or the court trying the case without a jury may find the accused not guilty of the offense charged but guilty of unlawfully doing such act with the intent aforesaid, or of assault and battery if the evidence warrants.

(Code 1950, § 19.1-251; 1960, c. 366; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Homicide, § 119; 12B M.J. Mayhem, § 10.

CASE NOTES

On charge of malicious cutting, accused may be convicted of unlawful cutting. - On an indictment for malicious cutting and wounding with intent to maim, disfigure and kill, the defendant may be convicted of unlawful cutting and wounding with like intent, or of assault and battery, if the evidence warrants. Canada v. Commonwealth, 63 Va. (22 Gratt.) 899 (1872); Hoback v. Commonwealth, 69 Va. (28 Gratt.) 922 (1877); Stuart v. Commonwealth, 69 Va. (28 Gratt.) 950 (1877); Montgomery v. Commonwealth, 98 Va. 840 , 36 S.E. 371 (1900).

Unlawful wounding is a lessor offense included under malicious wounding. Hewitt v. Commonwealth, 213 Va. 605 , 194 S.E.2d 893 (1973).

But may not be convicted of malicious cutting under indictment for unlawful cutting. Hummer v. Commonwealth, 122 Va. 826 , 94 S.E. 157 (1917).

It was error not to give assault and battery instruction where from defendant's testimony, the jury reasonably could have concluded that defendant acted only with the intent to do victim bodily harm, albeit with malice; jury should have received, in addition to the malicious wounding instruction given, an instruction giving them the opportunity to assess the evidence as it related to assault and battery, an offense that may be accompanied by malice, but does not require intent to maim, disfigure or kill. Boone v. Commonwealth, 14 Va. App. 130, 415 S.E.2d 250 (1992).

Applied in Jackson v. Commonwealth, 218 Va. 490 , 237 S.E.2d 791 (1977).

§ 18.2-54.1. Attempts to poison.

If any person administers or attempts to administer any poison or destructive substance in food, drink, prescription or over-the-counter medicine, or otherwise, or poisons any spring, well, waterworks as defined in § 32.1-167 , or reservoir of water with intent to kill or injure another person, he shall be guilty of a Class 3 felony.

(Code 1950, § 18.1-64; 1960, c. 358; 1975, cc. 14, 15; 1983, c. 129; 2006, c. 300.)

Cross references. - As to adulteration of food, drink, drugs, cosmetics, etc., see § 18.2-54.2 .

As to alleging intent in indictment, see § 19.2-225 .

The 2006 amendments. - The 2006 amendment by c. 300 inserted "waterworks as defined in § 32.1-167 ."

Michie's Jurisprudence. - For related discussion, see 9B M.J. Homicide, § 37; 14B M.J. Poisons and Poisoning, §§ 1, 2.

CASE NOTES

Delivery of poison does not constitute an attempt to administer. - The mere delivery of poison by one person to another does not constitute an attempt to administer poison within the meaning of the statute because it is not such an act as is likely, in the natural course of events, to bring about the result desired. Hicks v. Commonwealth, 86 Va. 223 , 9 S.E. 1024 (1889).

Indictment demurrable that alleges preparatory acts only. - An indictment, under this section, for an attempt to administer poison, that does not allege such acts as, in a legal sense, constitute an attempt to commit the offense charged, but only such as show preparation, is demurrable. Hicks v. Commonwealth, 86 Va. 223 , 9 S.E. 1024 (1889).

Insanity defense of juvenile. - Defendant juvenile was not denied his equal protection rights under U.S. Const., amend. XIV, § 1 because he had no right in juvenile court to assert an insanity defense to attempting to poison his mother's tea with intent to kill or injure her in violation of § 18.2-54.1 as defendant suffered no disparate treatment as he had the same ability as an adult to assert an insanity defense under § 19.2-168 in the trial court, but he did not exercise his right under § 16.1-270 to be tried as adult and to assert the insanity defense available to him under the adult system. D.L.G. v. Commonwealth, 60 Va. App. 77, 724 S.E.2d 208, 2012 Va. App. LEXIS 123 (2012).

§ 18.2-54.2. Adulteration of food, drink, drugs, cosmetics, etc.; penalty.

Any person who adulterates or causes to be adulterated any food, drink, prescription or over-the-counter medicine, cosmetic or other substance with the intent to kill or injure any individual who ingests, inhales or uses such substance shall be guilty of a Class 3 felony.

(1983, c. 129.)

Cross references. - As to administering or attempting to administer poisons, etc., in food, drink or medicine and poisoning of springs, wells or reservoirs, see § 18.2-54.1 .

§ 18.2-55. Bodily injuries caused by prisoners, state juvenile probationers and state and local adult probationers or adult parolees.

  1. It shall be unlawful for a person confined in a state, local or regional correctional facility as defined in § 53.1-1 ; in a secure facility or detention home as defined in § 16.1-228 or in any facility designed for the secure detention of juveniles; or while in the custody of an employee thereof to knowingly and willfully inflict bodily injury on:
    1. An employee thereof, or
    2. Any other person lawfully admitted to such facility, except another prisoner or person held in legal custody, or
    3. Any person who is supervising or working with prisoners or persons held in legal custody, or
    4. Any such employee or other person while such prisoner or person held in legal custody is committing any act in violation of § 53.1-203 .
  2. It shall be unlawful for an accused, probationer or parolee under the supervision of, or being investigated by, (i) a probation or parole officer whose powers and duties are defined in § 16.1-237 or § 53.1-145 , (ii) a local pretrial services officer associated with an agency established pursuant to Article 5 (§ 19.2-152.2 ) of Chapter 9 of Title 19.2, or (iii) a local community-based probation officer associated with an agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1, to knowingly and willfully inflict bodily injury on such officer while he is in the performance of his duty, knowing or having reason to know that the officer is engaged in the performance of his duty. Any person violating any provision of this section is guilty of a Class 5 felony. (1975, cc. 14, 15; 1977, c. 553; 1982, c. 636; 1985, c. 508; 1996, c. 527; 1999, cc. 618, 658; 2001, cc. 818, 848; 2007, c. 133.)

Editor's note. - Acts 1996, c. 527, cl. 2, provides: "[t]hat the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $125,000."

Acts 2001, cc. 818 and 848, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 1996 amendment, in subsection A, substituted "person confined" for "prisoner confined," deleted "or" following "state," inserted "or regional" following "local," and inserted "in a secure facility or detention home as defined in § 16.1-228 or in any facility designed for the secure detention of juveniles" following "as defined in § 53.1-1 ," inserted "or person held in legal custody" following "another prisoner" in subdivision A 2, inserted "or persons held in legal custody" following "with prisoners" in subdivision A 3, and inserted "or person held in legal custody" following "such prisoner" in subdivision A 4.

The 1999 amendments. - The 1999 amendments by cc. 618 and 658, are identical, and in subsection B, substituted "or" for "and" preceding "parole" and inserted " § 16.1-237 or."

The 2001 amendments. - The 2001 amendments by cc. 818 and 848 are identical, and in the first paragraph of subsection B, substituted "an accused" for "a" and added "or being investigated by," substituted "whose powers and duties are" for "as" in clause (i), added clause (ii), in clause (iii), added "a local probation officer associated with a program established pursuant to Article 2 ( § 53.1-180 et seq.) of Chapter 9 of Title 53.1," to the beginning, inserted "he is" after "on such officer while," substituted "his duty," for "such officer's duty," added "knowing or having reason to know that the officer is engaged in the performance of his duty," and substituted "shall be" for "is" in the second paragraph of subsection B.

The 2007 amendments. - The 2007 amendment by c. 133, in subsection B, substituted "an agency" for "a program" in two places and inserted "community-based" preceding "probation officer" in clause (iii).

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

The specific intent to "knowingly and willfully inflict bodily injury" is an essential element of proof of a violation of this section. Seegars v. Commonwealth, 18 Va. App. 641, 445 S.E.2d 720 (1994).

"Bodily injury." - The burning of the eyes of a correctional officer which lasted for ten to fifteen minutes, requiring medical treatment, caused by prisoner who threw urine at the officer constituted "bodily injury" under the provisions of this section. Karnes v. Commonwealth, No. 0982-88-2 (Ct. of Appeals Dec. 19, 1989).

Instruction on lesser included offense required. - The jury could have found that while the defendant might not have had the specific intent to "knowingly and willfully inflict bodily injury" under this section, he was nonetheless guilty of the lesser included offense of misdemeanor assault and battery, and the jury should have been instructed on the lesser included offense. Kelly v. Commonwealth, No. 0495-96-4 (Ct. of Appeals Feb. 4, 1997).

Relationship to other laws. - Where a defendant appealed his 15-year sentence for violating 18 U.S.C.S. § 922(g)(1), he was properly sentenced under the Armed Career Criminal Act (ACCA) as his three prior convictions under § 18.2-55 were violent felonies as they had, as an element, the use of physical force against the person of another, and the ACCA's phrase use of physical force included force applied directly or indirectly. United States v. Reid, 861 F.3d 523, 2017 U.S. App. LEXIS 11513 (4th Cir. 2017).

Administrative punishment not bar to prosecution. - The Department of Correction's administrative hearing was not a judicial proceeding or prosecution and the administrative punishment for striking and injuring a corrections officer imposed by prison officials did not render the subsequent judicial proceeding under this section violative of the prohibition against double jeopardy. Wild v. Commonwealth, 18 Va. App. 716, 446 S.E.2d 626 (1994).

Applied in Williams v. Commonwealth, 21 Va. App. 616, 466 S.E.2d 754 (1996).

§ 18.2-55.1. Hazing of youth gang members unlawful; criminal liability.

It shall be unlawful to cause bodily injury by hazing (i) any member of a criminal street gang as defined in § 18.2-46.1 , or (ii) a person seeking to become a member of a youth gang or criminal street gang. Any person found guilty of hazing is guilty of a Class 1 misdemeanor.

For the purposes of this section, "hazing" means to recklessly or intentionally endanger the health or safety of a person or to inflict bodily injury on a person in connection with or for the purpose of initiation, admission into or affiliation with or as a condition for continued membership in a youth gang or criminal street gang regardless of whether the person so endangered or injured participated voluntarily in the relevant activity.

(2004, c. 850; 2005, c. 843.)

The 2005 amendments. - The 2005 amendment by c. 843, deleted "a youth gang as defined in § 16.1-299.2 or" preceding "a criminal street gang" in clause (i).

§ 18.2-56. Hazing unlawful; civil and criminal liability; duty of school, etc., officials; penalty.

It shall be unlawful to haze so as to cause bodily injury, any student at any school or institution of higher education.

Any person found guilty thereof shall be guilty of a Class 1 misdemeanor.

Any person receiving bodily injury by hazing shall have a right to sue, civilly, the person or persons guilty thereof, whether adults or infants.

The president or other presiding official of any school or institution of higher eduction receiving appropriations from the state treasury shall, upon satisfactory proof of the guilt of any student hazing another student, sanction and discipline such student in accordance with the institution's policies and procedures. The institution's policies and procedures shall provide for expulsions or other appropriate discipline based on the facts and circumstances of each case and shall be consistent with the model policies established by the Department of Education or the State Council of Higher Education for Virginia, as applicable. The president or other presiding official of any school or institution of higher education receiving appropriations from the state treasury shall report hazing which causes bodily injury to the attorney for the Commonwealth of the county or city in which such school or institution of higher education is, who shall take such action as he deems appropriate.

For the purposes of this section, "hazing" means to recklessly or intentionally endanger the health or safety of a student or students or to inflict bodily injury on a student or students in connection with or for the purpose of initiation, admission into or affiliation with or as a condition for continued membership in a club, organization, association, fraternity, sorority, or student body regardless of whether the student or students so endangered or injured participated voluntarily in the relevant activity.

(Code 1950, § 18.1-71; 1960, c. 358; 1975, cc. 14, 15; 2003, cc. 62, 67; 2014, c. 627.)

Editor's note. - Acts 2014, c. 627, cl. 2 provides: "That the Department of Education and the State Council of Higher Education for Virginia, with the Department of Criminal Justice Services, shall establish model policies regarding the prevention of and appropriate disciplinary action for hazing as defined in § 18.2-56 of the Code of Virginia."

At the direction of the Virginia Code Commission, "or institution of higher education" was substituted for "college, or university" in the first paragraph and "or institution of higher education" was substituted for "college or university" throughout the fourth paragraph to conform to Acts 2016, c. 588.

The 2003 amendments. - The 2003 amendments by cc. 62 and 67 are virtually identical, and deleted "or otherwise mistreat" following "haze" in the first paragraph; deleted "unless the injury would be such as to constitute a felony, and in that event the punishment shall be inflicted as is otherwise provided by law for the punishment of such felony" at the end of the second paragraph; deleted "or mistreatment" following "hazing" in the third paragraph; rewrote the fourth paragraph, which formerly read: "The president, or other presiding official of any school, college or university, receiving appropriations from the state treasury shall, upon satisfactory proof of the guilt of any student found guilty of hazing or mistreating another student so as to cause bodily injury, expel such student so found guilty, and shall make report thereof to the attorney for the Commonwealth of the county or city in which such school, college or university is, who shall present the same to the grand jury of such city or county convened next after such report is made to him"; and added the final paragraph.

The 2014 amendments. - The 2014 amendment by c. 627 in the fourth paragraph inserted "and shall be consistent with the model policies established by the Department of Education or the State Council of Higher Education for Virginia, as applicable."

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

CIRCUIT COURT OPINIONS

Civil remedy. - This section created a civil remedy for persons receiving bodily injury by hazing whether or not they were criminally charged and convicted, and that the student had sufficiently alleged that he was subject to conduct by the fraternity members that could reasonably constitute hazing, including the over consumption of alcohol and a severe burn to the student's left buttock. Liberati v. Andress,, 2021 Va. Cir. LEXIS 120 (Radford Apr. 23, 2021).

Student sufficiently alleged that the fraternity members could be held liable for negligence per se under this section because the statute appeared to be intended for public safety, the student fell within the class of persons the statute was designed to protect, and he alleged that his bodily injury was a result of excessive consumption of alcohol. Liberati v. Andress,, 2021 Va. Cir. LEXIS 120 (Radford Apr. 23, 2021).

§ 18.2-56.1. Reckless handling of firearms; reckless handling while hunting.

  1. It shall be unlawful for any person to handle recklessly any firearm so as to endanger the life, limb or property of any person. Any person violating this section shall be guilty of a Class 1 misdemeanor.

    A1. Any person who handles any firearm in a manner so gross, wanton, and culpable as to show a reckless disregard for human life and causes the serious bodily injury of another person resulting in permanent and significant physical impairment is guilty of a Class 6 felony.

  2. If this section is violated while the person is engaged in hunting, trapping or pursuing game, the trial judge may, in addition to the penalty imposed by the jury or the court trying the case without a jury, revoke such person's hunting or trapping license and privileges to hunt or trap while possessing a firearm for a period of one to five years.
  3. Upon a revocation pursuant to subsection B hereof, the clerk of the court in which the case is tried pursuant to this section shall forthwith send to the Department of Wildlife Resources (i) such person's revoked hunting or trapping license or notice that such person's privilege to hunt or trap while in possession of a firearm has been revoked and (ii) a notice of the length of revocation imposed. The Department shall keep a list which shall be furnished upon request to any law-enforcement officer, the attorney for the Commonwealth or court in this Commonwealth, and such list shall contain the names and addresses of all persons whose license or privilege to hunt or trap while in possession of a firearm has been revoked and the court which took such action.
  4. If any person whose license to hunt and trap, or whose privilege to hunt and trap while in possession of a firearm, has been revoked pursuant to this section, thereafter hunts or traps while in possession of a firearm, he shall be guilty of a Class 1 misdemeanor, and, in addition to any penalty imposed by the jury or the court trying the case without a jury, the trial judge may revoke such person's hunting or trapping license and privileges to hunt or trap while in possession of a firearm for a period of one year to life. The clerk of the court shall notify the Department of Wildlife Resources as is provided in subsection C herein.

    (1977, c. 194; 1985, c. 182; 1991, c. 384; 2010, c. 183; 2011, c. 684; 2014, cc. 444, 579; 2020, c. 958.)

The 2010 amendments. - The 2010 amendment by c. 183, in subsection B, substituted "and privileges" for "or privilege"; and in subsection D, substituted "and privileges" for "or privilege," made related changes, and substituted "of one to five years" for "not to exceed five years."

The 2011 amendments. - The 2011 amendment by c. 684 substituted "for a period of one to five years" for "for a period of one year to life" in subsection B; and substituted "possession of a firearm for a period of one year to life" for "possession of a firearm for an additional period of one to five years" in the first sentence in subsection D.

The 2014 amendments. - The 2014 amendments by cc. 444 and 579 are identical, and added subdivision A 1.

The 2020 amendments. - The 2020 amendment by c. 958, in subsection C, first sentence, and subsection D, last sentence, substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries."

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Game and Game Laws, § 5; 20 M.J. Weapons, § 9.

CASE NOTES

Subsection A is not limited to activity of hunters; subsection B provides for additional penalties in cases where firearms are handled recklessly during hunting activities. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Where intentional violation of statute involves inherently dangerous act which is the proximate cause of the resulting homicide, the killing is involuntary manslaughter. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Violation resulting in death not necessarily involuntary manslaughter. - Every statutory violation of reckless handling of a firearm resulting in death does not constitute involuntary manslaughter. Darnell v. Commonwealth, 6 Va. App. 485, 370 S.E.2d 717 (1988).

Reckless handling of firearms may or may not equate to criminal negligence. - The recklessness involved in reckless handling of a firearm may or may not equate with the "recklessness" involved in criminal negligence, and the fact that a jury determines that a defendant violated the statute prohibiting the "reckless" handling of a firearm does not necessarily imply that they have also determined that he or she did so with a callous disregard for human life. Darnell v. Commonwealth, 6 Va. App. 485, 370 S.E.2d 717 (1988).

The meaning of "reckless" varies significantly depending on who uses it and in what circumstances, and the reckless handling of a firearm may not be limited to a handling so gross, wanton or culpable as to show a reckless disregard of human life. Luck v. Commonwealth, 30 Va. App. 36, 515 S.E.2d 325 (1999).

Negligence per se. - Where a hunter was sued for shooting appellant during a hunt, and as a result of that shooting had pled guilty to reckless handling of a firearm, the trial court erred in refusing to instruct the jury on negligence per se. Schlimmer v. Poverty Hunt Club, 268 Va. 74 , 597 S.E.2d 43, 2004 Va. LEXIS 85 (2004).

Reckless handling. - Evidence was sufficient to show that defendant recklessly handled a firearm and in doing so endangered the spouse as the spouse's testimony showed that defendant, while angry and intoxicated, obtained the spouse's gun and fired two shots into the bedroom floor while the spouse was sitting in the nearby living room since the evidence showed the ammunition had a tendency to deflect and the spouse could have been harmed; also, defendant later apologized for having scared the spouse. Kirby v. Commonwealth, 264 Va. 440 , 570 S.E.2d 832, 2002 Va. LEXIS 164 (2002).

Section 18.2-371.1 punished willful omissions, which require an awareness that defendant's conduct would cause or permit serious injury; where the evidence against defendant did not establish that he knew danger ensued from only ordering his son to put a gun away rather than taking it from him, and failed to establish defendant's knowledge and consciousness that an injury will result from the act done, his child abuse and reckless handling of a firearm convictions were reversed. Mangano v. Commonwealth, 44 Va. App. 210, 604 S.E.2d 118, 2004 Va. App. LEXIS 511 (2004).

Implied malice. - Evidence of defendant's actions implied sufficient malice to support his conviction for second degree murder; there could be no doubt that intentionally firing multiple shots from a handgun down a city street was unlawful and it is patently obvious that firing multiple shots from a handgun in the middle of a populous city is the very definition of an action flowing from a wicked and corrupt motive, done with an evil mind and purpose and wrongful intention. Watson-Scott v. Commonwealth, 298 Va. 251 , 835 S.E.2d 902, 2019 Va. LEXIS 152 (2019).

Pointing of loaded gun at another. - Defendant's acts of intentionally removing the loaded gun from his pocket and holding it down in the direction of the victim who was lying on the ground no more than five to ten feet away constituted reckless handling of a firearm. Furthermore, under these circumstances it was clearly foreseeable that another could be seriously injured or killed if the gun was discharged. Consequently, defendant's violation of subsection A proximately caused the homicide. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Probable cause to arrest. - Court was unable to conclude that there was probable cause to arrest for reckless use of a firearm, under § 18.2-56.1 , because the complaint indicated that the arrestee did not match the description of the individual identified by a neighbor, the arrestee lived approximately 300 yards from the neighbor's house, the arrestee had obviously just used his gun to shoot a rodent in his backyard, and his gun remained pointed toward the ground the entire time. Botkin v. Fisher,, 2009 U.S. Dist. LEXIS 24554 (W.D. Va. Mar. 25, 2009).

Evidence. - In a case in which defendant appealed his conviction for reckless handling of a firearm, the evidence failed to prove that the object in question was a firearm as contemplated by § 18.2-56.1 . By acquitting defendant of violating § 18.2-308.2 , when defendant's status as a felon was undisputed and where defendant possessed an object resembling a firearm, the trial court as factfinder rejected the only interpretation of the facts which would allow an appellate court to conclude that the facts supported a conviction under § 18.2-56.1 (A). Jones v. Commonwealth, 65 Va. App. 274, 777 S.E.2d 229, 2015 Va. App. LEXIS 277 (2015).

Admissibility of perception expert testimony in hunting shooting. - Testimony by sensation and perception expert would have explained to the jury how the camouflage contributed to the possibility of misperception. Some jurors might not appreciate how the victim, being camouflaged and using a turkey call, and defendant, expecting a turkey, could combine to cause defendant reasonably to believe he saw a turkey. The jury might have wondered how defendant could have made such a mistake unless he was grossly, wantonly, and wilfully negligent. The expert testimony could have provided the jury with an explanation that the jury could have found to be a reasonable hypothesis of innocence. Therefore, the testimony would have assisted the jury in resolving an essential issue and should not have been rejected on the grounds that it would not assist the jury or was a matter of common knowledge. Farley v. Commonwealth, 20 Va. App. 495, 458 S.E.2d 310 (1995).

Applied in Davis v. Commonwealth, 63 Va. App. 45, 754 S.E.2d 533, 2014 Va. App. LEXIS 53 (2014).

§ 18.2-56.2. Allowing access to firearms by children; penalty.

  1. It shall be unlawful for any person to recklessly leave a loaded, unsecured firearm in such a manner as to endanger the life or limb of any child under the age of fourteen. Any person violating the provisions of this subsection shall be guilty of a Class 1 misdemeanor.
  2. It shall be unlawful for any person knowingly to authorize a child under the age of twelve to use a firearm except when the child is under the supervision of an adult. Any person violating this subsection shall be guilty of a Class 1 misdemeanor. For purposes of this subsection, "adult" shall mean a parent, guardian, person standing in loco parentis to the child or a person twenty-one years or over who has the permission of the parent, guardian, or person standing in loco parentis to supervise the child in the use of a firearm.

    (1991, c. 537; 1994, c. 832; 2020, c. 742.)

The 2020 amendments. - The 2020 amendment by c. 742, in subsection A, substituted "Class 1 misdemeanor" for "Class 3 misdemeanor."

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 9.

CASE NOTES

Evidence insufficient to sustain conviction. - Section § 18.2-371.1 punished willful omissions, which require an awareness that defendant's conduct would cause or permit serious injury; where the evidence against defendant did not establish that he knew danger ensued from only ordering his son to put a gun away rather than taking it from him, and failed to establish defendant's knowledge and consciousness that an injury will result from the act done, his child abuse and reckless handling of a firearm convictions were reversed. Mangano v. Commonwealth, 44 Va. App. 210, 604 S.E.2d 118, 2004 Va. App. LEXIS 511 (2004).

§ 18.2-57. Assault and battery; penalty.

  1. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, the penalty upon conviction shall include a term of confinement of at least six months.
  2. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months.
  3. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a magistrate, a law-enforcement officer as defined in subsection F, a correctional officer as defined in § 53.1-1 , a person directly involved in the care, treatment, or supervision of inmates in the custody of the Department of Corrections or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services, a firefighter as defined in § 65.2-102 , or a volunteer firefighter or any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a member of a bona fide volunteer fire department or volunteer emergency medical services agency, regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or emergency medical services personnel as employees, engaged in the performance of his public duties anywhere in the Commonwealth, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months. Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.
  4. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time employee of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he is guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to § 18.2-308.1 , the person shall serve a mandatory minimum sentence of confinement of six months.
  5. In addition, any person who commits a battery against another knowing or having reason to know that such individual is a health care provider as defined in § 8.01-581.1 who is engaged in the performance of his duties in a hospital or in an emergency room on the premises of any clinic or other facility rendering emergency medical care is guilty of a Class 1 misdemeanor. The sentence of such person, upon conviction, shall include a term of confinement of 15 days in jail, two days of which shall be a mandatory minimum term of confinement.
  6. As used in this section: "Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities. "Hospital" means a public or private institution licensed pursuant to Chapter 5 (§ 32.1-123 et seq.) of Title 32.1 or Article 2 (§ 37.2-403 et seq.) of Chapter 4 of Title 37.2. "Judge" means any justice or judge of a court of record of the Commonwealth including a judge designated under § 17.1-105 , a judge under temporary recall under § 17.1-106 , or a judge pro tempore under § 17.1-109 , any member of the State Corporation Commission, or of the Virginia Workers' Compensation Commission, and any judge of a district court of the Commonwealth or any substitute judge of such district court. "Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office that is part of or administered by the Commonwealth or any political subdivision thereof who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115 , any special agent of the Virginia Alcoholic Beverage Control Authority, conservation police officers appointed pursuant to § 29.1-200 , full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 , and any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 , and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733 , auxiliary deputy sheriffs appointed pursuant to § 15.2-1603 , police officers of the Metropolitan Washington Airports Authority pursuant to § 5.1-158 , and fire marshals appointed pursuant to § 27-30 when such fire marshals have police powers as set out in §§ 27-34.2 and 27-34.2:1 . "School security officer" means the same as that term is defined in § 9.1-101 .
  7. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

    In determining whether a person was acting within the exceptions provided in this subsection, due deference shall be given to reasonable judgments that were made by a school security officer or full-time or part-time employee of any public or private elementary or secondary school at the time of the event.

    (1975, cc. 14, 15; 1994, c. 658; 1997, c. 833; 1999, cc. 771, 1036; 2000, cc. 288, 682; 2001, c. 129; 2002, c. 817; 2004, cc. 420, 461; 2006, cc. 270, 709, 829; 2008, c. 460; 2009, c. 257; 2011, cc. 230, 233, 374; 2013, cc. 698, 707, 711, 748, 782; 2014, cc. 663, 714; 2015, cc. 38, 196, 730; 2016, c. 420; 2017, cc. 29, 56; 2019, c. 120; 2020, cc. 746, 1171.)

Cross references. - As to disarming a law-enforcement or correctional officer and penalty involved, see § 18.2-57.02 .

As to approval as an adoptive parent by a child-placing agency of an applicant who has been convicted of not more than one misdemeanor as set out in § 18.2-57 not involving abuse, neglect or moral turpitude, provided 10 years have elapsed, see § 63.2-1721 E. As to grant of waiver from disqualification to a family day home for an adult living in the home for a misdemeanor offense under § 18.2-57 or § 18.2-57.2 under certain circumstances, see § 63.2-1723 .

Editor's note. - Acts 2013, c. 698, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, c. 698, cl. 4 provides: "That the General Assembly determines that the requirements of the third enactment of this act have been met."

Acts 2013, c. 748, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, c. 748, cl. 4 provides: "That the General Assembly determines that the requirements of the third enactment of this act have been met."

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

Acts 2015, c. 196, cl. 2 provides: "That the provisions of this act are declarative of existing law."

Acts 2017, cc. 29 and 56, cl. 2 provides: "That the Department of Health shall work with stakeholders to develop guidelines regarding (i) the publication of penalties for a battery on a health care provider who is engaged in the performance of his duties in a hospital or in an emergency room clinic or other facility that provides emergency medical care and (ii) the training of health care professionals and health care providers in violence prevention programs."

Acts 2020, cc. 746 and 1171, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 746, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law."

The 1997 amendment added the language following "Class 1 misdemeanor" in subsection A; in subsection B, deleted "the offense" following "whom," inserted "an assault and battery resulting in bodily injury," and inserted "person shall be guilty of a Class 6 felony, and the" and added subsections C and D.

The 1999 amendments. - The 1999 amendment by c. 771, in the first paragraph of subsection C, inserted "a correctional officer as defined in § 53.1-1 , a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department," inserted "a" preceding "firefighter," substituted "such" for "law enforcement officer or firefighter," deleted "in jail" following "confinement," and added "which mandatory, minimum term shall not be suspended, in whole or in part," in the third paragraph, substituted "15.2-1731" for "15.1-159.2," substituted "15.2-1733" for "15.1-159.4," and substituted "15.2-1603" for "15.1-48," and deleted former subsection D, which read: "As used in this section, the term 'mandatory, minimum' means that the sentence it describes shall be served with no suspension of sentence in whole or in part, and that no probation shall be given by the court."

The 1999 amendment by c. 1036 substituted "commits" for "shall commit" in subsection A, inserted present subsection D, redesignated the former third paragraph in subsection C as subsection E, inserted "As used in this section" in subsection E, and deleted former subsection D which read: "As used in this section, the term "mandatory, minimum" means that the sentence it describes shall be served with no suspension of sentence in whole or in part, and that no probation shall be given by the court."

The 2000 amendments. - The 2000 amendment by c. 288, in subsection E, inserted "and game wardens appointed pursuant to § 29.1-200 ," and inserted "jail officers in local correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities."

The 2000 amendment by c. 682 added subsection F.

The 2001 amendments. - The 2001 amendment by c. 129 inserted "and regional" in subsection E.

The 2002 amendments. - The 2002 amendment by c. 817, in subsection E, deleted "a" from the end of the introductory language and added the definition of "school security officer"; and in subsection F, inserted "principal, assistant principal, guidance counselor, or school security officer" in the first paragraph, and in the second paragraph, inserted "that were made by a teacher . . . school security officer" and deleted "that were made by a teacher" following "event."

The 2004 amendments. - The 2004 amendment by c. 420 inserted the language "or a volunteer firefighter ... or members as employees" near the middle in the first paragraph of subsection C and made minor stylistic changes.

The 2004 amendment by c. 461, throughout the section, deleted "mandatory, minimum" following "shall include a" and substituted "be a mandatory minimum term of confinement" for "not be suspended, in whole or in part"; in subsection C, in the first paragraph, substituted "of" for "for" and deleted "which mandatory, minimum term shall not be suspended, in whole or in part" at the end; deleted "which shall not be suspended in whole or in part" at the end of the last sentence in subsection D; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 270, in subsection C, inserted "a judge," and substituted "such person is guilty" for "as such, such person shall be guilty"; and added the definition of "Judge" in subsection E.

The 2006 amendments by cc. 709 and 829 are nearly the same, and in the first paragraph of subsection F, inserted "teacher aide," deleted "or" before "school security officer," inserted "school bus driver or school bus aide, while acting," and deleted "acting" before "official capacity"; and in the second paragraph of subsection F inserted "teacher aide," deleted "or" before "school security officer," and inserted "school bus driver, or school bus aide."

Subsection F is set out in the form above at the direction of the Virginia Code Commission.

The 2008 amendments. - The 2008 amendment by c. 460, in subsection E, in the definition of "Law-enforcement officer," deleted "and" following "of this Commonwealth," and " § 10.1-115 ," and inserted "and full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 ."

The 2009 amendments. - The 2009 amendment by c. 257 added "and police officers of the Metropolitan Washington Airports Authority pursuant to § 5.1-158 " to the end of the second paragraph of subsection E and made a related change.

The 2011 amendments. - The 2011 amendment by c. 230 inserted "any special agent of the Department of Alcoholic Beverage Control" in the definition for "Law-enforcement officer" in subsection F.

The 2011 amendment by c. 233 added subsection E and redesignated the remaining subsections accordingly.

The 2011 amendment by c. 374, in subsection F, inserted "and fire marshals appointed pursuant to § 27-30 when such fire marshals have police powers as set out in §§ 27-34.2 and 27-34.2:1 " at the end of the definition of "law-enforcement officer," and made stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 698, in subsection C, substituted "any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a" for "lifesaving or rescue squad member who is a," "emergency medical services agency" for "rescue or emergency medical squad" and "emergency medical services personnel" for "members."

The 2013 amendment by 707, in subsection C, substituted "in subsection F" for "hereinafter" following "defined," deleted "employed by the Department of Corrections" preceding "directly involved," inserted "of Corrections" preceding "a firefighter"; and made stylistic changes throughout.

The 2013 amendments by c. 711 inserted "a magistrate" in the first paragraph of subsection C.

The 2013 amendment by c. 748 inserted "or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility" near the middle of the first paragraph of subsection C.

The 2013 amendment by c. 782 substituted "is guilty" for "shall be guilty" throughout the section; and in the first paragraph of subsection C, substituted "as defined in subsection F, a" for "as defined hereinafter, a," deleted "employed by the Department of Corrections" following " § 53.1-1 , a person," and inserted "of Corrections, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services."

The 2014 amendments. - The 2014 amendments by cc. 663 and 714 are identical, and in subsection D, substituted "employee" for "teacher, principal, assistant principal, or guidance counselor"; in subsection G in both paragraphs, inserted "full-time or part-time employee of any public or private elementary or secondary school," deleted "teacher, teacher aide, principal, assistant principal, guidance counselor" preceding "school security officer," "school bus driver" following "school security officer," and "bus aide" following "school," and made minor stylistic changes.

The 2015 amendments. - The 2015 amendment by c. 196 inserted "anywhere in the Commonwealth" near the end of the first paragraph in subsection C.

The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Department of Alcoholic Beverage Control" in the definition of "Law-enforcement officer" in subsection F.

The 2016 amendments. - The 2016 amendment by c. 420, in subsection F in both versions of the definition of "Law-enforcement officer," inserted "and any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 ."

The 2017 amendments. - The 2017 amendments by cc. 29 and 56 are identical, and substituted "in a hospital or in an emergency room on the premises of any clinic or" for "as an emergency health care provider in an emergency room of a hospital or clinic or on the premises of any" in subsection E; and added the definition for "Hospital" in subsection F.

The 2019 amendments. - The 2019 amendment by c. 120, in subsection F, rewrote the definition for "School security officer," which read: "'School security officer' means an individual who is employed by the local school board for the purpose of maintaining order and discipline, preventing crime, investigating violations of school board policies and detaining persons violating the law or school board policies on school property, a school bus or at a school-sponsored activity and who is responsible solely for ensuring the safety, security and welfare of all students, faculty and staff in the assigned school."

The 2020 amendments. - The 2020 amendments by cc. 746 and 1171 are identical, and in subsections A and B, inserted "gender, disability, gender identity, sexual orientation" and deleted "30 days of which shall be a mandatory minimum term of confinement" at the end; in subsection F, added the definition for "Disability"; and made stylistic changes.

Law review. - For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982). For comment on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983). For note, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," see 72 Va. L. Rev. 619 (1986).

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For article summarizing Virginia labor and employment law cases from 2007, see 43 U. Rich. L. Rev. 211 (2008).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, §§ 3, 5, 17; 5B M.J. Criminal Procedure, § 78; 9B M.J. Husband and Wife, § 87; 13A M.J. Mobs, Riots and Lynchings, § 4.

CASE NOTES

I. IN GENERAL.

Assault as predicate offense. - Defendant's offense in the 1989 assault case met the elements under 18 U.S.C.S. § 921(a)(33)(A) as interpreted by the U.S. Supreme Court in Hayes; she was convicted of a misdemeanor offense under § 18.2-57 , involving the element of force against her husband. Accordingly, that state conviction qualified as a predicate offense under 18 U.S.C.S. § 922(g)(9), making defendant's possession of the firearm unlawful; in turn, her false statement on the firearms form met the materiality element required for a conviction under § 922(a)(6). United States v. Holbrook, 613 F. Supp. 2d 745, 2009 U.S. Dist. LEXIS 39737 (W.D. Va. 2009).

To sustain a conviction for assault, the evidence need only prove an attempt or offer, with force and violence, to do some bodily hurt to another. Adams v. Commonwealth, 33 Va. App. 463, 534 S.E.2d 347 (2000).

Slight injury sufficient. - When the injury is actually inflicted, a battery has been committed regardless of how small the injury might be. Adams v. Commonwealth, 33 Va. App. 463, 534 S.E.2d 347 (2000).

Touching by intangible substance. - For purposes of determining whether a battery has occurred, contact by an intangible substance such as light must be considered in terms of its effect on the victim; there need be no actual injury for a touching to have occurred but the evidence must prove that the substance made objectively offensive or forcible contact with the victim's person resulting in some manifestation of a physical consequence or corporeal hurt. Adams v. Commonwealth, 33 Va. App. 463, 534 S.E.2d 347 (2000).

A defendant was properly convicted of assault and battery on a police officer where the evidence established that the defendant hit the officer in the eye with a laser light, the officer felt a stinging sensation in his eye as a "red dot" hit him and the defendant admitted he did not get along with the officer and that he had been waving the laser in the area where the officer was standing; the defendant, by aiming the laser at the officer, effected a contact that caused bodily harm to the officer. Adams v. Commonwealth, 33 Va. App. 463, 534 S.E.2d 347 (2000).

Victim's knowledge or fear of threat not required. - One may commit an assault even though the victim is not aware of or frightened by any acts directed at him, provided the perpetrator has the specific intent to commit a battery and commits an overt act in furtherance of that intent. Stith v. Commonwealth, No. 1210-00-2, 2001 Va. App. LEXIS 245 (Ct. of Appeals May 8, 2001).

Purely verbal threat insufficient. - A purely verbal threat with no appearance of an overt physical act does not constitute an assault. Therefore, where defendant only stated to officer from his jail cell that he was going to kill him before the new year and defendant did not make any physical movements while officer was in his presence at that time, defendant could not properly be found guilty of assault. Taylor v. Commonwealth, No. 0665-96-3 (Ct. of Appeals Apr. 22, 1997).

Racial epithets sufficient evidence of racial motivation. - Evidence was sufficient to sustain defendant's convictions of felonious and unlawful assault and battery on two victims selected because of their race in violation of subsection B of § 18.2-57 where defendant used racial epithets to initiate a conversation with the victims, and continued to use them during his unprovoked assault of them; defendant's use of racial epithets constituted sufficient evidence of the speaker's racial motivation in committing the crime, and the sentence was properly enhanced. Carfagno v. Commonwealth, 39 Va. App. 718, 576 S.E.2d 765, 2003 Va. App. LEXIS 77 (2003).

Specific intent to strike officer not required. - A person violates this section if he commits an assault or an assault and battery against another person, knowing or having reason to know that the other person is a law-enforcement officer engaged in the performance of his public duties; the statute does not require proof that the defendant intentionally selected the officer as a target. O'Connell v. Commonwealth, No. 0286-00-4, 2001 Va. App. LEXIS 42 (Ct. of Appeals Jan. 30, 2001).

Assault and battery as part of mob. - Once a group assembled comprises a mob, if the assault or battery which is committed is a simple assault or battery, then under this section, every person composing the mob becomes criminally culpable even though the member may not have actively encouraged, aided, or countenanced the act. Harrell v. Commonwealth, 11 Va. App. 1, 396 S.E.2d 680 (1990).

Common-law battery compared with sexual battery. - The legislature imposed a greater burden on the Commonwealth to prove sexual battery than to prove common-law battery, the latter requiring only a showing of nonconsensual touching. To prove the crime of sexual battery, the Commonwealth has to establish beyond a reasonable doubt that the accused touched the intimate parts of the complaining witness, or that the complaining witness was forced to touch the intimate parts of the accused, with the intent to sexually molest, arouse or gratify any person. The acts must have been against the will of the complaining witness. Doss v. Commonwealth, No. 0019-85 (Ct. of Appeals July 30, 1986).

No authority to defer or dismiss charge. - Trial court did not have the inherent authority to either defer a finding of guilt, defer sentencing, or dismiss defendant's charge of feloniously assaulting a police officer, in violation of subsection C of § 18.2-57 , where there was no statutory authorization for deferral or dismissal of the charge. Hernandez v. Commonwealth, 55 Va. App. 190, 684 S.E.2d 845, 2009 Va. App. LEXIS 509 (2009), rev'd, remanded, 281 Va. 222 , 707 S.E.2d 273, 2011 Va. LEXIS 11 (Va. 2011).

Justified shooting not assault and battery. - Police officer, who shot running handcuffed arrestee believed to be armed, was justified, therefore, arrestee's assault and battery claim against the officer was patently without merit. McLenagan v. Karnes, 27 F.3d 1002 (4th Cir.), cert. denied, 513 U.S. 1018, 115 S. Ct. 581, 130 L. Ed. 2d 496 (1994).

Must prove officer performing public duties. - The prosecution must prove a law-enforcement officer was performing his public duties to sustain a felony conviction under this section. Oulds v. Commonwealth, 260 Va. 210 , 532 S.E.2d 33 (2000).

School personnel exception. - Defendant's conviction of assault and battery of a child under § 18.2-57 was affirmed where the trial court expressly recognized the need for due deference under the statutory school personnel exception to assault and battery charges afforded under clause (i) of subsection G of § 18.2-57 , explained that defendant's judgment was unreasonable, even accepting her version of the facts, and found that defendant's touching, shouting, and pulling of the child were neither incidental, minor, nor reasonable, thereby rendering the exception inapplicable. Commonwealth v. Lambert, 292 Va. 748 , 793 S.E.2d 805, 2016 Va. LEXIS 189 (2016).

Self-defense argument prohibited. - Defendant's conviction for assault and battery of a law-enforcement officer in violation of subsection C of § 18.2-57 was appropriate because the trial court did not err in refusing to accept defendant's self-defense argument. Whether the police had probable cause to arrest defendant for disorderly conduct was immaterial because police did have probable cause to arrest him for public intoxication; thus, the police officers were acting properly when they arrested defendant and he had no legal justification for head-butting a law-enforcement officer who was carrying out his lawful duties. Davis v. Commonwealth,, 2010 Va. App. LEXIS 209 (May 18, 2010).

Failure to challenge victims' status as firefighters. - Defendant failed to preserve her contention that the evidence was insufficient to support her convictions for felonies rather than misdemeanors when she failed to challenge the victims' statutory status as "firefighters." McClung v. Commonwealth, No. 0641-01-2, 2002 Va. App. LEXIS 391 (Ct. of Appeals July 16, 2002).

Defendant's conviction for assault did not bar, under double jeopardy, his subsequent conviction for abduction since the offense of assault and that of abduction each required proof of a fact that the other did not. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

The fact that the same evidence, in whole or in part, was used in both trials does not give rise to a double jeopardy objection. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

The conduct used to support the second prosecution was not the same conduct as that used to support the first conviction; evidence of separate, discrete conduct by the defendant supported each offense. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

The assault required proof of an attempt or offer to do bodily harm through an unlawful show of force and violence; the abduction required proof of an asportation or detention by force, intimidation or deception. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

Assault, therefore, required proof of force while abduction, although it may have been accomplished by force, did not require proof of force because it may also have been accomplished through intimidation or deception; abduction, on the other hand, required proof of asportation or detention while assault did not. Johnson v. Commonwealth, 13 Va. App. 515, 412 S.E.2d 731 (1992).

No double jeopardy violation. - Because defendant's commission of an assault and the brandishing of a firearm were two distinct and separate acts, separated in time and space, and each conviction was sustained by different evidence, his double jeopardy rights were not violated. Jackson v. Commonwealth,, 2008 Va. App. LEXIS 251 (May 27, 2008).

Time limitation for lesser-included offense. - Trial court erred in denying defendant's motion to set aside a verdict convicting her of misdemeanor battery because prosecution of that misdemeanor was barred by the applicable statute of limitations where it was commenced more than one year from the date of the offense, no warrant was issued on the charge, and the purpose and meaning of the statute of limitations would be negated if the Commonwealth could charge her with a felony after the limitations period on the misdemeanor had run, just to obtain a conviction on the misdemeanor when the evidence was insufficient to convict for the greater felony. Taylor v. Commonwealth, 64 Va. App. 282, 767 S.E.2d 721, 2015 Va. App. LEXIS 20 (2015).

Conviction as lesser-included offense of attempted capital murder. - Defendant could not challenge defendant's conviction for assault and battery of a law-enforcement officer, as a lesser included offense of attempted capital murder of a law-enforcement officer, where defendant advanced the assault charge as a more lenient alternative and maintaining that it was a lesser-included offense. Rowe v. Commonwealth, 277 Va. 495 , 675 S.E.2d 161, 2009 Va. LEXIS 59 (2009).

Preliminary hearing. - Defendant's conviction for assaulting a police officer in violation of subsection C of § 18.2-57 had to stand, as defendant was not denied the right to a preliminary hearing on that charge after the district court terminated the charge by entering a nolle prosequi officer and the Commonwealth then obtained a direct indictment for the same offense and proved its case in the trial court. Since the case had been terminated in the district court once the nolle prosequi order was entered, defendant was not under actual arrest for that charge as required by the preliminary hearing statute, § 19.2-218 , and not holding the preliminary hearing was a statutory, not constitutional, matter, which meant that defendant's due process rights under Va. Const., Art. I, § 11 were not violated because a preliminary hearing was not held. Wright v. Commonwealth, 52 Va. App. 690, 667 S.E.2d 787, 2008 Va. App. LEXIS 509 (2008).

Jury instructions. - Trial court properly refused to give defendant's requested instructions on the merger of charges of abduction and assault and battery, as the question whether the abduction was incidental to the assault and battery was a question of law, and the trial court determined that the evidence was sufficient to go to the jury on both charges. Mawyer v. Commonwealth,, 2006 Va. App. LEXIS 554 (Dec. 12, 2006).

Defendant was not entitled to a self-defense instruction because there was no evidence that the victim committed an overt act indicating immediate injury to justify or excuse the assault, and as there was no evidence that defendant was threatened with an immediate injury, a duress instruction was not warranted. Taylor v. Commonwealth,, 2010 Va. App. LEXIS 114 (Mar. 23, 2010).

Applied in Edwards v. Commonwealth, 41 Va. App. 752, 589 S.E.2d 444, 2003 Va. App. LEXIS 637 (2003); Jones v. West, 46 Va. App. 309, 616 S.E.2d 790 (2005); Moreno v. Commonwealth, 65 Va. App. 121, 775 S.E.2d 422, 2015 Va. App. LEXIS 242 (2015).

II. ASSAULT AND BATTERY OF LAW-ENFORCEMENT OFFICER.

Performance of public duties shown. - The evidence was sufficient to establish that the police officer assaulted by the defendant was engaged in his public duties where the off-duty officer was working as a security guard when he attempted to arrest the defendant for trespassing after the defendant had been warned to stay off of the premises. Oulds v. Commonwealth, 260 Va. 210 , 532 S.E.2d 33 (2000).

Defendant was properly convicted of assault and battery on a police officer under subsection C of § 18.2-57 because while defendant claimed that the officer's public duties were limited to one mile outside the geographic borders of Virginia Beach under § 19.2-250 , a law-enforcement mutual aid agreement permitted by § 15.2-1726 gave the officer authority to perform his public duties in Chesapeake based on the immediate threat to public safety presented by defendant's erratic driving. Rowe v. Commonwealth,, 2008 Va. App. LEXIS 242 (May 20, 2008), aff'd, 277 Va. 495 , 675 S.E.2d 161, 2009 Va. LEXIS 59 (2009).

Federal law-enforcement officers. - Because Navy police officers were not employees of a Commonwealth or local law-enforcement agency, and because a reciprocal agreement under § 15.2-1726 did not incorporate itself into the assault and battery statute, the trial court erred as a matter of law in convicting defendant under subsection C of § 18.2-57 .as to remanding the case for a new trial rather than remanding for new sentencing on the lesser included offense, see 2006 Va. LEXIS 56 (Va. 2006) South v. Commonwealth, 47 Va. App. 247, 623 S.E.2d 419, 2005 Va. App. LEXIS 513 (2005).

Campus police officer of private university. - Campus police officer at a private university is not a "law-enforcement officer" as defined by the language of subsection E of § 18.2-57 . Guinyard v. Commonwealth,, 2007 Va. App. LEXIS 287 (July 31, 2007).

Metro Transit Police. - Officer of the Metro Transit Police meets the definition of a law-enforcement officer described in subsection E of § 18.2-57 . Fox v. Commonwealth, No. 0204-09-4, 2009 Va. App. LEXIS 574 (Dec. 22, 2009).

Corrections officer. - In a case in which defendant was convicted of two counts of assault and battery of a corrections officer in violation of § 18.2-57 , the appellate court could conclude from the record on appeal that one of defendant's victims was a correctional officer within the meaning of § 53.1-1 , even though a lieutenant at the correctional center administered the oath of office to the victim. Cottrell v. Commonwealth, No. 0795-13-2, 2014 Va. App. LEXIS 154 (Apr. 29, 2014).

Assaulting a police officer. - To sustain a conviction under subsection C of this section, the Commonwealth must prove that the defendant assaulted an individual that he knew or had reason to know was a police officer engaged in the performance of his duties. Wright v. Commonwealth, No. 1019-99-1, 2000 Va. App. LEXIS 263 (Ct. of Appeals Apr. 11, 2000).

Based on defendant's actions and statements while drunk at county fair, trial court did not err in finding that he intended to strike police officer as officer assisted him into his friend's car. Stallings v. Commonwealth, No. 0609-99-3 (Ct. of Appeals Mar. 21, 2000).

Defendant's conviction was reinstated where he used force to resist an illegal detention, and was consequently indicted and convicted for assault and battery of a law-enforcement officer, in violation of subsection C of § 18.2-57 . Commonwealth v. Hill, 264 Va. 541 , 570 S.E.2d 805, 2002 Va. LEXIS 170 (2002).

Trial court's finding that defendant intended to spit on the officer, thereby committing an assault and battery, was not plainly wrong or without supporting evidence and had to be upheld on appeal. English v. Commonwealth, No. 0675-02-3, 2002 Va. App. LEXIS 789 (Ct. of Appeals Dec. 31, 2002).

Although defendant moved to strike the evidence, he failed to specifically assert any grounds upon which the alleged evidence was insufficient to prove that he was guilty of assaulting a police officer in violation of subdivision C of § 18.2-57 ; therefore, defendant was precluded from raising that issue, with regard to the particular element of intent, for the first time on appeal, and finding no "good cause" supporting defendant's failure to raise the specific issue, nor justification to apply the ends of justice exception in Va. Sup. Ct. R. 5A:18, the trial court's judgment convicting him of assaulting a police officer was affirmed. Bowman v. Commonwealth, No. 2169-02-1, 2003 Va. App. LEXIS 379 (Ct. of Appeals July 1, 2003).

Where defendant aimed and gunned a speeding vehicle at a police officer, the facts clearly established a malicious attempt, with force and violence, to harm the officer by means calculated to produce that end if carried into execution, in violation of subsection C of § 18.2-57 . Zimmerman v. Commonwealth, 266 Va. 384 , 585 S.E.2d 538, 2003 Va. LEXIS 89 (2003).

Although defendant did not possess a gun and had no actual ability to harm a police officer, defendant's conduct in pointing a finger at the officer and saying "pow," reasonably and unequivocally denoted an intention and the present ability to harm the officer; defendant's actions, therefore, constituted an assault. Carter v. Commonwealth, 41 Va. App. 448, 585 S.E.2d 848, 2003 Va. App. LEXIS 472 (2003).

Where the circumstantial evidence established that defendant was carrying a weapon and had the ability to harm a police officer, the trial court could reasonably infer that defendant made an "attempt" to assault the officer in violation of subsection C of § 18.2-57 , and the evidence was sufficient to support the conviction. Agee v. Commonwealth, 40 Va. App. 123, 578 S.E.2d 68, 2003 Va. App. LEXIS 151 (2003).

Evidence that defendant who was a passenger in a vehicle that was stopped by a police officer moved his right hand from a position where it was hidden, extended his index finger and thumb, pointed his finger at the officer, and said "Pow" was sufficient to sustain defendant's conviction for assaulting a police officer. Carter v. Commonwealth, 42 Va. App. 681, 594 S.E.2d 284, 2004 Va. App. LEXIS 215 (2004), aff'd, 606 S.E.2d 839 (2005).

In an assault and battery case in which defendant urinated on a law-enforcement officer, sufficient evidence supported defendant's conviction. The fact finder could infer that defendant had enough control over his faculties and movements to avoid urinating directly onto the officer, if he in fact could not avoid the urge to urinate, and the jury could reasonably reject defendant's claim that he accidentally urinated directly on the officer while attempting to urinate on the side door of the jail transport van. Determan v. Commonwealth,, 2007 Va. App. LEXIS 308 (Aug. 21, 2007).

Defendant was properly convicted of assault upon a law-enforcement officer under subsection C of § 18.2-57 as defendant was not entitled to claim self-defense since defendant expressly disclaimed that defendant committed any violence when defendant pointed a butter knife at a police officer responding to a breaking and entering call; there was no evidentiary basis to support counsel's closing argument raising self-defense. Terry v. Commonwealth,, 2008 Va. App. LEXIS 386 (Aug. 12, 2008).

Evidence, including that defendant behaved belligerently in the presence of a magistrate and that the contact between defendant and the police officer occurred as the officer was attempting to escort defendant from the magistrate's office, was sufficient to find defendant committed assault and battery on an individual he knew was a law enforcement officer in violation of § 18.2-57 . Holloway v. Commonwealth, 55 Va. App. 609, 687 S.E.2d 557, 2010 Va. App. LEXIS 32 (2010).

Because defendant's arrest for burglary was supported by probable cause, the trial court properly refused his proposed instructions relating to the legality of the arrest as a defense to a charge of assault and battery against a law-enforcement officer, in violation of subsection C of § 18.2-57 . Dejesus v. Commonwealth, No. 1055-12-2, 2013 Va. App. LEXIS 194 (Ct. of Appeals July 2, 2013).

Because assault and battery on a police officer encompasses any common-law battery, however slight, without causing physical injury to another, that statute cannot, by reason of its elements, be viewed as presenting a serious potential risk of physical injury under U.S. Sentencing Guidelines § 4B1.2. United States v. Carthorne, 726 F.3d 503, 2013 U.S. App. LEXIS 16739 (4th Cir. 2013).

Because assault and battery on a police officer encompasses any common-law battery, however slight, that statute does not categorically have as an element the use, attempted use, or threatened use of physical force against another for U.S. Sentencing Guidelines § 4B1.2. United States v. Carthorne, 726 F.3d 503, 2013 U.S. App. LEXIS 16739 (4th Cir. 2013).

Sufficient evidence showed defendant's acts were directed at a particular deputy because (1) the deputy unambiguously stated defendant spat towards the deputy and another deputy, and (2) another witness saw defendant turn defendant's head and heard spitting towards the first deputy, showing defendant directed defendant's actions at both deputies. Moore v. Commonwealth, No. 0721-17-2, 2018 Va. App. LEXIS 118 (May 1, 2018).

It was no error to convict defendant of assault on a police officer because defendant's conduct was sufficient to establish common-law criminal assault, as (1) defendant made a "gesture of spitting" at deputies, (2) defendant's gesture was an overt act intended to inflict bodily harm, made with the present ability to inflict that harm, especially given defendant's belligerent and violent behavior during defendant's interaction with the deputies, and (3) it was unnecessary to prove an overt act arousing a reasonable fear of bodily harm. Moore v. Commonwealth, No. 0721-17-2, 2018 Va. App. LEXIS 118 (May 1, 2018).

Evidence was sufficient to support defendant's conviction of assault and battery of an officer because it showed that defendant shoved the officer's chest and face, and he even grabbed the officer's head and shoulders to try to take him to the floor; defendant's contact was so violent it caused the officer to fall twice. Video footage showed defendant's repeated aggressions toward the officer, including him later charging the officer as the officer retreated. Lopez v. Commonwealth,, 2021 Va. App. LEXIS 30 (Mar. 2, 2021).

Insurance action for death following assault on officer. - In a civil action in which an insurer denied coverage under an accidental death policy because the insured's death arose out of the insured's commission of the felony of assaulting a police officer, the denial of coverage was improper since there was no basis to conclude that the insured knew or had reason to know that the persons in his house were police officers; only a few seconds passed between the insured being awakened, pointing his rifle, and being shot, and there was no evidence that the officers identified themselves or that the room was sufficiently lit to permit a visual identification. Cox v. Reliance Std. Life Ins. Co.,, 2002 U.S. App. LEXIS 16216 (4th Cir. Aug. 13, 2002).

Persons engaged in performance of public duties. - Police officer who was off-duty and in full uniform, working as a private security guard, was "engaged in the performance of his public duties" when he was assaulted by defendant during course of defendant's arrest for trespassing. Oulds v. Commonwealth, No. 2062-98-3 (Ct. of Appeals Sept. 28, 1999).

When defendant knew a police officer, greeting him by his nickname, and assaulted the officer during an arrest, there was sufficient evidence to show that defendant knew the police officer was engaged in the performance of his public duty. Davis v. Commonwealth, 44 Va. App. 562, 605 S.E.2d 790, 2004 Va. App. LEXIS 618 (2004).

Force in resisting illegal arrest. - In case in which the Court of Appeals held that defendant could use reasonable force to resist an illegal detention and search, the Virginia Supreme Court reversed, holding in part that allowing resistance to a brief "pat down" search for weapons would only increase the danger and violence involved in those detentions. Commonwealth v. Hill, 264 Va. 541 , 570 S.E.2d 805, 2002 Va. LEXIS 170 (2002).

Defendant's conviction was reinstated where he used force to resist an illegal detention, and was consequently indicted and convicted for assault and battery of a law-enforcement officer, in violation of subsection C of § 18.2-57 . Commonwealth v. Hill, 264 Va. 541 , 570 S.E.2d 805, 2002 Va. LEXIS 170 (2002).

Instruction on reasonable force in unlawful arrest denied. - Trial court did not err in refusing to instruct the jury on the use of reasonable force in self-defense when faced with an unlawful arrest, regarding his conviction for resisting arrest because defendant was an inmate and had disregarded the instruction to return to his cell. Because defendant had no legal right to resist and defendant was at fault, he was legally barred from arguing self-defense. Burch v. Commonwealth,, 2014 Va. App. LEXIS 343 (Oct. 14, 2014).

Resistance to unlawful arrest or detention not shown. - Where the evidence was sufficient to convict defendant of felony assault on a police officer under § 18.2-57 because she approached the officer as he tried to issue a summons to another person, and defendant swatted the officer, and then, when he tried to arrest her, she dug her fingernails into his hand, causing cuts and scrapes, defendant's conduct was not justified on the basis of resisting an unlawful arrest or detention. Bennett v. Commonwealth,, 2010 Va. App. LEXIS 12 (Jan. 12, 2010).

In a case in which defendant was convicted of felony assault on a law-enforcement officer, misdemeanor intentional destruction of property and misdemeanor obstruction of justice, defendant was not resisting an unlawful arrest when she punched, kicked, slapped, and threatened a deputy, in response to his attempts to restrain her, because there was probable cause to arrest her for obstruction of justice when the officer first attempted to handcuff her as the officer told defendant to stay with her vehicle, but she left her vehicle and walked toward a convenience store; defendant refused to obey the deputy's commands to return to her vehicle; and defendant understood that she was actually obstructing the deputy in his duties. Lightfoot v. Commonwealth, No. 0313-20-2, 2021 Va. App. LEXIS 55 (Apr. 6, 2021).

III. EVIDENCE.

Evidence properly admitted. - Fact that defendant threatened a deputy verbally 90 minutes after defendant's arrest and was still angry and combative at that time was probative of defendant's intent when defendant struck the deputy and took the deputy's weapon, and was more probative of defendant's intent than prejudicial; the evidence was properly admitted as defendant was being tried for assaulting the deputy and taking defendant's weapon under subsection C of § 18.2-57 . Bufford v. Commonwealth, No. 0630-08-4, 2009 Va. App. LEXIS 335 (July 28, 2009).

Evidence held sufficient. - The evidence was sufficient to support the conviction of a teacher for assault and battery where the teacher had touched a female student on the nape of the neck on two occasions while making statements that the student understood to relate to sex. Perkins v. Commonwealth, 31 Va. App. 326, 523 S.E.2d 512 (2000).

Where burglar came within 12 to 18 inches of victim's face and, in a menacing and threatening manner, pointed his finger at victim within an inch of her face and threatened to kill her, he committed an "overt act" sufficient to constitute assault. Monteiro v. Commonwealth, No. 1842-98-1 (Ct. of Appeals Jan. 4, 2000).

Evidence that defendant resisted officers who were trying to put her in shackles, inter alia, by kicking her feet, and that she kicked an officer in the face was sufficient to sustain her conviction for felonious assault and battery of a law-enforcement officer. Morrison v. Commonwealth, No. 2645-00-2, 2002 Va. App. LEXIS 244 (Ct. of Appeals Apr. 23, 2002).

Evidence, which included expert testimony by two physicians, showed that defendant was the only adult present with the baby several hours prior to the appearance of her symptoms of limpness and unresponsiveness, and that the injuries were inflicted by defendant in rudeness or anger, with force and violence, and with reckless disregard for the baby's well-being. Given the totality of the evidence, the appellate court found that the jury was entitled to reject defendant's explanations of innocence and to conclude that the evidence was sufficient to establish she inflicted the baby's injuries with the requisite state of mind. Morton v. Commonwealth, No. 2677-02-2, 2004 Va. App. LEXIS 40 (Ct. of Appeals Jan. 28, 2004).

Defendant's conviction for assault was affirmed where, during a confrontation with a police officer, defendant raised her hand and threw a cup at the officer. Davis v. Commonwealth, No. 2638-03-2, 2004 Va. App. LEXIS 489 (Ct. of Appeals Oct. 12, 2004).

Where defendant, was in a car at night in an area of frequent drug activity, quickly raised previously concealed hand toward the police officer as if holding a gun, causing the officer to back away from defendant's vehicle, defendant was properly convicted of assault; present ability to inflict harm is not required for an assault conviction, as a well-founded fear or apprehension of harm, combined with an intent to instill that fear, is sufficient to support a conviction for common-law assault. Carter v. Commonwealth, 269 Va. 44 , 606 S.E.2d 839, 2005 Va. LEXIS 5 (2005).

Evidence that defendant spit on an officer; kicked the dashboard, cursed, and screamed after his arrest; and threatened to kill both responding officers and their families, was sufficient to support an assault and battery on a law-enforcement officer conviction, as said circumstances abundantly supported a finding that defendant's acts were committed in a rude, insolent, or angry manner. Gilbert v. Commonwealth, 45 Va. App. 67, 608 S.E.2d 509, 2005 Va. App. LEXIS 60 (2005).

Evidence was sufficient to support defendant's assault and battery conviction where, during an argument with his wife, defendant grabbed a knife, advanced toward her, and when she fell, reached out, knife in hand, and cut the hand she raised defensively; defendant made no claim of accident in the emergency call or in his initial conversations with the police, which suggested that defendant's accident claim was a later contrivance. Walker v. Commonwealth,, 2005 Va. App. LEXIS 433 (Nov. 1, 2005).

In a prosecution for assault and battery of a firefighter, as the victim's uniform identified her as a firefighter, and defendant had reason to know she was a member of an emergency rescue team because he was strapped to a stretcher with an oxygen mask on his face, the evidence was sufficient to convict him of the charges. Solorzano v. Commonwealth,, 2008 Va. App. LEXIS 39 (Jan. 22, 2008).

Because defendant's initial arrest for being drunk in public under § 18.2-388 was supported by probable cause, defendant had no right to resist; consequently, defendant was properly convicted of assault and battery of a police officer under § 18.2-57 when defendant later fled and then struggled with and injured a police officer. Brower v. Commonwealth,, 2008 Va. App. LEXIS 83 (Feb. 19, 2008).

Defendant's assault conviction was supported by the evidence as the totality of the evidence supported a finding that defendant assaulted the victim under the assimilated tort definition of assault by engaging in an overt act intended to place the victim in fear or apprehension of bodily harm and creating such reasonable fear or apprehension in the victim. Defendant blocked the victim's only path of escape by blocking the victim's bus with her car; she threatened the victim with her arms across her chest and her lips pursed; she stood outside the bus cursing at the victim until the principal came up, thereby blocking the victim's only reasonable means of escaping on foot; and she repeated this same conduct later the same afternoon. Clark v. Commonwealth, 54 Va. App. 120, 676 S.E.2d 332, 2009 Va. App. LEXIS 225 (2009), aff'd, 279 VA. 636, 691 S.E.2d 786, 2010 Va. LEXIS 58 (2010).

In a case in which defendant appealed his conviction for violating subsection C of § 18.2-57 , he argued unsuccessfully that the evidence was insufficient to support his conviction for assault and battery of a law-enforcement officer. The evidence showed that defendant pushed a police officer and struck him in the chest with an elbow while defendant was trying to prevent the police officers from taking him into custody on outstanding arrest warrants; that was sufficient to establish that defendant acted with the intent to inflict physical harm on the officer in order to impede the officers' ability to subdue him. Montague v. Commonwealth, 278 Va. 532 , 684 S.E.2d 583, 2009 Va. LEXIS 113 (2009), cert. denied, 130 S. Ct. 1537, 176 L. Ed. 2d 133, 2010 U.S. LEXIS 1456 (U.S. 2010).

Sufficient evidence supported an assault conviction where defendant threatened to harm a school bus driver and then, later the same day, approached and threatened the driver a second time because, viewing defendant's words and actions in the context of her first threat, defendant's approach to the door of the bus a second time was an act sufficient to create a reasonable fear or apprehension of bodily harm on the part of the driver. Clark v. Commonwealth, 279 Va. 636 , 691 S.E.2d 786, 2010 Va. LEXIS 58 (2010).

Evidence was sufficient to convict defendant of assault and battery because after yelling at the victim, a postal service employee, to deliver her mail sooner, defendant grabbed the victim by the shoulder as she was walking away, and pulled her back so that they were standing face-to-face, while pulling the victim's hair and twisting her head and body. Parish v. Commonwealth, 56 Va. App. 324, 693 S.E.2d 315, 2010 Va. App. LEXIS 225 (2010).

Evidence that defendant engaged police in a 13-mile pursuit, during which time defendant was speeding and swerved from lane to lane to avoid the troopers, hit a cruiser but still drove erratically, and swerved and hit back of another cruiser, causing the trooper to hit a jersey wall was sufficient to support defendant's conviction for assault and battery of law-enforcement officer under subsection C of § 18.2-54 . Bell v. Commonwealth,, 2012 Va. App. LEXIS 114 (Apr. 10, 2012).

Defendant's conviction for assault of a law-enforcement officer was appropriate because the evidence was sufficient. He was handcuffed and lying on the ground, the officer bent down over defendant in order to remove the taser leads from his chest, and at that time, defendant told the officer that he was going to kick him. Defendant then brought his feet up and made a kicking motion, which missed the officer but struck a deputy. Beale v. Commonwealth, No. 2180-11-4, 2013 Va. App. LEXIS 239 (Ct. of Appeals Aug. 20, 2013).

Trial court erred in convicting defendant of unlawful wounding after finding the Commonwealth failed to prove an intent to maim, disfigure, disable or kill; as defendant admitted he committed assault and battery, the case was remanded for entry of an order of conviction for such. Jones v. Commonwealth,, 2015 Va. App. LEXIS 101 (Mar. 31, 2015).

Evidence was sufficient to convict defendant of assault and battery on a police officer based on defendant spitting on the officer because defendant was behaving in a destructive and disorderly manner prior to the incident; he used profane language and threatened to kick the officer's teeth in once he was free from his restraints; he laughed after he spit at the officer; and his comment that he would not have spit on the officer if he had known who he was negated defendant's claim of accidental spitting. Clark v. Commonwealth,, 2015 Va. App. LEXIS 130 (Apr. 14, 2015).

Trial court did not err in convicting defendant of both assault and battery, § 18.2-57 , and abduction, § 18.2-47 A, where the crimes, although temporally connected, did not occur simultaneously, and the victim's testimony established that detention occurred in a different room of the house and was separate and apart from the assault and battery. Epps v. Commonwealth, 66 Va. App. 393, 785 S.E.2d 792 (2016), aff'd, 293 Va. 403 , 799 S.E.2d 516, 2017 Va. LEXIS 77 (2017).

Lower courts erred in finding defendant guilty of felony malicious bodily injury by means of a caustic substance, felony assault and battery of a law-enforcement officer, and obstruction of justice because the evidence contradicted the inference that defendant was hiding behind a water heater and released a bear deterrent "while his brother's hands were raised," the evidence that defendant was present in the basement two hours later was equally as susceptible to a finding consistent with his innocence as it was to a finding of guilt, and the record did not demonstrate that defendant procured, encouraged, countenanced, approved commission of the crime, shared the criminal intent of his brother, or was guilty of some overt act. Wright v. Commonwealth, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016), cert. denied, 137 S. Ct. 1442, 2017 U.S. LEXIS 2293, 197 L. Ed. 2d 655 (U.S. 2017).

Evidence was sufficient to establish that defendant intended to inflict bodily harm on a police officer when defendant pushed him because he could have been injured as a natural and probable consequence of defendant's actions; defendant pushed the officer with a force great enough to destabilize him and change his physical position. Jones v. Commonwealth, No. 1079-16-1, 2017 Va. App. LEXIS 133 (May 23, 2017).

Evidence supported defendant's conviction for the assault and battery of a law-enforcement officer because it established that defendant pushed the officer in an offensive and insolent manner in order to evade arrest; the circuit court could infer that defendant intentionally pushed the officer in order to get away from the officer because he specifically testified that he immediately decided to escape and that he was willing to take whatever opportunity he could to get away from the officer. Jones v. Commonwealth, No. 1079-16-1, 2017 Va. App. LEXIS 133 (May 23, 2017).

Evidence supported defendant's conviction for misdemeanor assault and battery because the trial court credited the victim's testimony in finding that defendant intended to act in a rude manner and did so when defendant grabbed the victim's face and attempted to force a kiss on the victim as the victim communicated the lack of permission to defendant by pulling away from defendant and saying no. Furthermore, the trial court did not err in rejecting defendant's theory that defendant acted with legal justification or excuse. Kelley v. Commonwealth, 69 Va. App. 617, 822 S.E.2d 375, 2019 Va. App. LEXIS 9 (2019).

Trial court properly convicted defendant of assault and battery on a law enforcement officer, assault and battery, and animal cruelty because, each time the police officers attempted to effectuate an arrest, defendant clenched his fists, took a step toward them, took a fighting stance, and made threatening statements, the officers' testimony and actions demonstrated that they reasonably feared a threat of bodily injury, defendant's overt act of moving towards the victim while threatening to kill him was sufficient to establish the elements of assault and battery, and there was evidence that defendant voluntarily acted with a consciousness that inhumane injury or pain would result from punching and kicking a police dog while resisting a lawful arrest. Blankenship v. Commonwealth, 71 Va. App. 608, 838 S.E.2d 568, 2020 Va. App. LEXIS 65 (2020).

Trial court properly convicted defendant of assault and battery of a law-enforcement officer because, inter alia, the officer was acting within the scope of his public duties as he attempted to investigate the basis for a 911 call, defendant battered the officer by slamming his foot in the door multiple times before he seized her and placed her in handcuffs, and defendant's acts of assault and battery against the officer were efforts to resist an investigative detention, not an arrest. Carter v. Commonwealth, No. 1559-19-3, 2020 Va. App. LEXIS 227 (Aug. 18, 2020).

First defendant's motion to strike was properly denied as the evidence was sufficient to convict the first defendant of assault and battery because, when the first victim tried to move towards the exit, the first defendant shoved him back towards the second defendant; and his shoving of the first victim was voluntarily and intentionally done to prevent him from escaping. Benniefield v. Commonwealth, No. 0001-20-2, 2020 Va. App. LEXIS 231 (Sept. 29, 2020).

Evidence was sufficient to find defendants were two of the perpetrators of the offenses because the surveillance footage showed four males traveling together on the day of the beating and homicide; it showed two men wearing clothing consistent with defendants chasing after the second victim with their arms outstretched and a puff of smoke that looked as if a gun was fired; and the jury was entitled to rely on the witnesses' identifications of defendants and the videos. Benniefield v. Commonwealth, No. 0001-20-2, 2020 Va. App. LEXIS 231 (Sept. 29, 2020).

Insufficient evidence of assault. - The evidence was insufficient, as a matter of law, to prove that defendant assaulted two police officers in the course of a confrontation in which the defendant insisted that the officers leave his house, where both officers testified that the defendant was not armed and made no threatening gestures with his hands and, although the defendant stood within inches of the officers, he made no overt act or attempt to physically harm either officer during the time the officers remained in his home after being asked to leave. Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209, 2001 Va. App. LEXIS 262 (2001).

Circuit court erred in convicting defendant, in a bench trial, of misdemeanor assault and battery because the factual determination that defendant, acting in his role as a student coordinator at a school, pushed a student into a refrigerator in the teachers' lounge was contrary to the evidence and the testimony of the witnesses at trial, and was simply not supported by the record on appeal, where the circuit court explicitly based its finding of defendant's guilt upon statements allegedly made by a teacher that were never admitted at trial and were actually contradicted by the teacher's testimony at trial. Hart v. Commonwealth, No. 2074-15-1, 2016 Va. App. LEXIS 335 (Ct. of Appeals Dec. 6, 2016).

Sufficient evidence for assault and battery of law-enforcement officer. - Sufficient evidence supported defendant's conviction for assault and battery of a law-enforcement officer, under subsection C of § 18.2-57 , because circumstantial evidence showed defendant's intent, as the evidence showed defendant purposely resisted officers who were attempting to arrest defendant and that defendant struck an officer as a natural consequence of defendant's voluntary actions. Montague v. Commonwealth,, 2009 Va. App. LEXIS 15 (Jan. 20, 2009).

With regard to defendant's conviction for assault and battery of a law-enforcement officer, there was sufficient evidence to sustain the conviction based on the testimony of another officer who witnessed defendant smirk and wink after he initiated the handshake with the officer who was the victim and then, along with the victim officer, observed what appeared to be blood on the victim officer's palm. The fact finder properly inferred that defendant must have been aware of the incision on his hand and that he should likewise have been aware of the copious blood flow, especially since its substantial wetness was transferred at some point prior to the handshake from defendant's left hand to his right hand and, while defendant testified to the contrary, the fact finder was permitted to reject his testimony and conclude that defendant was aware that the handshake he initiated would convey his blood to the victim officer. Harman v. Commonwealth, No. 1925-07-3, 2009 Va. App. LEXIS 74 (Feb. 17, 2009).

Evidence that the officer was acting pursuant to a Mutual Aid Agreement signed by the officer's town and the town where the encounter took place gave the officer authority to enforce the laws and to perform the other duties of a law-enforcement officer in instances where an apparent, immediate threat to public safety precluded the option of deferring action to the local law-enforcement agency and was sufficient to support the finding that the officer was engaged in his public duties when defendant assaulted the officer. Rowe v. Commonwealth, 277 Va. 495 , 675 S.E.2d 161, 2009 Va. LEXIS 59 (2009).

Although defendant argued that his conviction should be reversed because the trial court erred in refusing to instruct the jury on the statutory definition of law-enforcement officer and as a matter of law the victim was not a law-enforcement officer within the meaning of subsection E of § 18.2-57 , the jury was instructed that proof that the victim was a police officer engaged in the performance of his public duties was essential for conviction, thus the refusal to give the instruction requested by defendant did not permit the jury to convict defendant without proof of an element of the offense. The Metro Transit Police were a police department administered by the Commonwealth pursuant to the Washington Metropolitan Area Transit Authority Compact. Fox v. Commonwealth, No. 0204-09-4, 2009 Va. App. LEXIS 574 (Dec. 22, 2009).

Defendant's conviction for assault and battery of a law-enforcement officer under subsection C of § 18.2-57 was appropriate because the evidence was sufficient. Defendant was intent upon preventing the officer from discharging her duties; he squeezed the officer's hand after she grabbed the bags; and he then rushed at the officer to destabilize her before he grabbed the box containing the contraband. Jimenez-Calcano v. Commonwealth,, 2010 Va. App. LEXIS 135 (Apr. 6, 2010).

Conviction for assault and battery of a law-enforcement officer in the performance of his duties, in violation of subsection C of § 18.2-57 , was appropriate because defendant was not under arrest, and the police officer did not exceed the scope of a limited detention by placing handcuffs on defendant's wrists, thereby precluding defendant from using force to resist the officer's limited detention. The officer decided to detain defendant for further investigation, and because of defendant's agitated state, the officer wanted to place defendant in the handcuffs for the safety of everybody who was at the scene. Cooper v. Commonwealth,, 2011 Va. App. LEXIS 341 (Nov. 8, 2011).

Trial court convicted defendant of assault and battery of a police officer because defendant's unappealed public-intoxication conviction conclusively established his guilt beyond a reasonable doubt and the existence of probable cause justifying his arrest, and defendant physically assaulted the arresting officer. Neff v. Commonwealth, 63 Va. App. 413, 758 S.E.2d 87, 2014 Va. App. LEXIS 180 (2014).

Exclusionary rule. - With regard to defendant's conviction for assault and battery of a law-enforcement officer and his contention on appeal that the trial court erred by ordering him to submit to a blood test since the officer alleged that defendant transferred blood onto him via a handshake, the court held that the exclusionary rule did not apply, therefore, the trial court did not err by denying defendant's motion to suppress the blood evidence. Application of the exclusionary rule was not the proper remedy since the defendant made no allegation of police misconduct relevant to the appeal. Harman v. Commonwealth, No. 1925-07-3, 2009 Va. App. LEXIS 74 (Feb. 17, 2009).

Suppression motion properly denied. - Defendant's suppression motion was properly denied, and the Fourth Amendment was not violated, where: (1) a police officer had a reasonable, articulable suspicion that defendant was the man who was wanted on the capias as defendant's physical characteristics and clothing matched the description provided by dispatch, and defendant was near the address provided by dispatch in the backseat of a taxi matching the description provided by dispatch; (2) the officer was justified in detaining defendant further as he gave obviously false identifying information; and (3) when defendant struck the officer, he had probable cause for the arrest, which led to the search incident to a lawful arrest in which the drugs were discovered. Jackson v. Commonwealth, No. 0628-02-3, 2003 Va. App. LEXIS 340 (Ct. of Appeals June 17, 2003).

Because defendant's post-entry assaults on police officers were outside the scope of the exclusionary rule, and because police officers had probable cause under § 19.2-81 to make a warrantless arrest for public intoxication, the Fourth Amendment was irrelevant; since defendant had no right to resist the arrest, defendant's motion to suppress was properly denied and defendant was properly convicted of assault and battery on a police officer and obstruction of justice. Messier v. Commonwealth,, 2007 Va. App. LEXIS 201 (May 15, 2007).

In a case in which defendant had been convicted of violating §§ 18.2-250 , 18.2-308.2 , 18.2-308.4 , and subsection C of § 18.2-57 , he argued unsuccessfully that the Court of Appeals of Virginia erroneously upheld the circuit court's denial of his motion to suppress the evidence because his encounter with the police officers was not consensual, and the officers lacked any reasonable suspicion to believe that he was engaged in criminal activity. During the encounter, which lasted only two or three minutes, the police checked the "ban list" but did not engage in any show of force or use language indicating that defendant was required to remain at that location, the police did not tell him that he was required to stay, and defendant did not make any attempt to leave; instead, defendant remained in the area, standing about five feet away from the officers while his companion moved to sit on some nearby steps. Montague v. Commonwealth, 278 Va. 532 , 684 S.E.2d 583, 2009 Va. LEXIS 113 (2009), cert. denied, 130 S. Ct. 1537, 176 L. Ed. 2d 133, 2010 U.S. LEXIS 1456 (U.S. 2010).

Improper admission of evidence not harmless. - In a rape and assault and battery prosecution, the incriminating statements defendant made after he unambiguously invoked his right to counsel were admitted over his objections. As it could not be said that his statements that he choked and knocked the alleged victim down before having consensual sex with her did not contribute to his convictions or to the severity of his sentence, the error in admitting the statements was not harmless. Zektaw v. Commonwealth, 278 Va. 127 , 677 S.E.2d 49, 2009 Va. LEXIS 76 (2009).

CIRCUIT COURT OPINIONS

Mandatory minimum sentence for assaulting police officer precludes electronic incarceration. - Defendant was convicted of assaulting a police officer in violation of § 18.2-57 , which carried a mandatory minimum term of six months; probation could not be imposed during this period. Therefore, she was not eligible for electronic incarceration under § 53.1-131.2 . Commonwealth v. Wright, 72 Va. Cir. 215, 2006 Va. Cir. LEXIS 220 (Fairfax County 2006).

Metro Transit police officer. - Metro Transit police officer with whom defendant allegedly engaged in an altercation was a law-enforcement officer within the definition set forth in subsection E of § 18.2-57 . Commonwealth v. Fox, 78 Va. Cir. 40, 2008 Va. Cir. LEXIS 177 (Fairfax County 2008).

Evidence sufficient. - Court found defendant guilty of felonious assault on a law-enforcement officer because the officer identified himself as a law-enforcement officer; the officer testified to his injuries and his testimony was corroborated by a sergeant; the officer used no more force than reasonably necessary to effectuate defendant's arrest; defendant certainly had reason to know that the officer was a law-enforcement officer from the body camera footage; and defendant had reason to not want the police to search or pat him down because of the scale he had in his possession. Commonwealth v. Bailey, 101 Va. Cir. 195, 2019 Va. Cir. LEXIS 25 (Orange County Feb. 12, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Rejection of plea agreement after amendment of arrest warrant. - A Juvenile and Domestic Relations District Court judge may reject a plea agreement when an arrest warrant is amended from assault and battery against a family or household member under § 18.2-57.2 to "simple" assault under this section. See opinion of Attorney General to The Honorable Michael J. Valentine, Judge, Juvenile and Domestic Relations District Court, Nineteenth Judicial District, 06-061, 2007 Va. AG LEXIS 11 (3/22/07).

Enhanced punishment provisions. - Except for employees of the Department of Corrections involved in the care of inmates, and volunteers and members of a bona fide rescue squad who are engaged in the performance of their duties, medical personnel who provide care to inmates are not covered by the enhanced punishment provisions of § 18.2-57 . See opinion of Attorney General to The Honorable Ralph S. Northam, Member, Senate of Virginia, 10-090, 2010 Va. AG LEXIS 58 (9/24/10).

The phrase "while employed in a child day center" refers to an offense committed during the period of time an individual is employed at a child day center, regardless of whether or not the offense was committed within the scope of employment there. See opinion of Attorney General to The Honorable T. Scott Garrett, M.D., Member, House of Delegates, No. 15-003, 2015 Va. AG LEXIS 20 (7/31/15).

The phrase "in the scope of his employment" means the offense must have occurred in connection with the individual's work at a covered facility. See opinion of Attorney General to The Honorable T. Scott Garrett, M.D., Member, House of Delegates, No. 15-003, 2015 Va. AG LEXIS 20 (7/31/15).

§ 18.2-57.01. Pointing laser at law-enforcement officer unlawful; penalty.

If any person, knowing or having reason to know another person is a law-enforcement officer as defined in § 18.2-57 , a probation or parole officer appointed pursuant to § 53.1-143 , a correctional officer as defined in § 53.1-1 , or a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department engaged in the performance of his public duties as such, intentionally projects at such other person a beam or a point of light from a laser, a laser gun sight, or any device that simulates a laser, shall be guilty of a Class 2 misdemeanor.

(2000, c. 350.)

§ 18.2-57.02. Disarming a law-enforcement or correctional officer; penalty.

Any person who knows or has reason to know a person is a law-enforcement officer as defined in § 18.2-57 , a correctional officer as defined in § 53.1-1 , or a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department, who is engaged in the performance of his duties as such and, with the intent to impede or prevent any such person from performing his official duties, knowingly and without the person's permission removes a chemical irritant weapon or impact weapon from the possession of the officer or deprives the officer of the use of the weapon is guilty of a Class 1 misdemeanor. However, if the weapon removed or deprived in violation of this section is the officer's firearm or stun weapon as defined in § 18.2-308.1 , he shall be guilty of a Class 6 felony. A violation of this section shall constitute a separate and distinct offense.

(2001, c. 2; 2007, c. 519.)

Editor's note. - Acts 2001, c. 2, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2001."

The 2007 amendments. - The 2007 amendment by c. 519 inserted "as defined in § 18.2-308.1 " in the third sentence.

CASE NOTES

Evidence properly admitted. - Fact that defendant threatened a deputy verbally 90 minutes after defendant's arrest and was still angry and combative at that time was probative of defendant's intent when defendant struck the deputy and took the deputy's weapon, and was more probative of defendant's intent than prejudicial; the evidence was properly admitted as defendant was being tried for assaulting the deputy and taking defendant's weapon under § 18.2-57.02 . Bufford v. Commonwealth, No. 0630-08-4, 2009 Va. App. LEXIS 335 (July 28, 2009).

Evidence supported firearm finding. - Officer's testimony was sufficient to establish that her service pistol was a firearm where she testified that what appellant grabbed was her service pistol and her state-issued firearm, while testifying she also stood and pointed to the weapon in her holster and indicated the weapon grabbed by appellant was the same one that she possessed in the courtroom, and contrary to appellant's argument, case law had never required the Commonwealth to present specific testimony that the object was designed, made, and intended to fire or expel a projectile by means of an explosion. Salley v. Commonwealth, No. 1339-18-1, 2019 Va. App. LEXIS 268 (Ct. of Appeals Nov. 19, 2019).

Evidence supported intent finding. - Evidence supported the finding that when defendant disarmed a deputy, defendant acted with the intent to impede or prevent the deputy from performing the deputy's official duties under § 18.2-57.02 ; that defendant might also have acted with the intent to avoid the pain or disability associated with being stunned did not negate a finding of an intent to disarm the deputy. Bufford v. Commonwealth, No. 0630-08-4, 2009 Va. App. LEXIS 335 (July 28, 2009).

Appellant's confession and a police officer's testimony supported a conclusion that appellant intentionally grabbed the officer's firearm in an attempt to disarm her. Therefore, the trial court was not plainly wrong in rejecting appellant's hypothesis of innocence. Salley v. Commonwealth, No. 1339-18-1, 2019 Va. App. LEXIS 268 (Ct. of Appeals Nov. 19, 2019).

Evidence was sufficient to prove that defendant attempted to disarm the officer of his stun weapon and disarmed him of his baton because it showed that the officers were engaged in the performance of their official duties when they tried to arrest defendant on the outstanding capias and defendant had the intent to impede the officer in the performance of his official duties when he grabbed the officer's stun weapon and baton. Lopez v. Commonwealth,, 2021 Va. App. LEXIS 30 (Mar. 2, 2021).

§ 18.2-57.1.

Repealed by Acts 1997, c. 833.

Editor's note. - This section was amended by Acts 1997, cc. 8 and 120. At the direction of the Code Commission, the repeal by Acts 1997, c. 833, was implemented. For comparable current provisions, see § 18.2-57 , which was amended by Acts 1997, c. 833.

§ 18.2-57.2. Assault and battery against a family or household member; penalty.

  1. Any person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.
  2. Upon a conviction for assault and battery against a family or household member, where it is alleged in the warrant, petition, information, or indictment on which a person is convicted, that such person has been previously convicted of two offenses against a family or household member of (i) assault and battery against a family or household member in violation of this section, (ii) malicious wounding or unlawful wounding in violation of § 18.2-51 , (iii) aggravated malicious wounding in violation of § 18.2-51 .2, (iv) malicious bodily injury by means of a substance in violation of § 18.2-52 , (v) strangulation in violation of § 18.2-51.6 , or (vi) an offense under the law of any other jurisdiction which has the same elements of any of the above offenses, in any combination, all of which occurred within a period of 20 years, and each of which occurred on a different date, such person is guilty of a Class 6 felony.
  3. Whenever a warrant for a violation of this section is issued, the magistrate shall issue an emergency protective order as authorized by § 16.1-253.4, except if the defendant is a minor, an emergency protective order shall not be required.
  4. The definition of "family or household member" in § 16.1-228 applies to this section.

    (1991, c. 238; 1992, cc. 526, 886; 1996, c. 866; 1997, c. 603; 1999, cc. 697, 721, 807; 2004, cc. 448, 738; 2009, c. 726; 2014, c. 660.)

Cross references. - As to sealing criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction by petition, see § 19.2-392.12 .

As to grant of waiver from disqualification to a family day home for an adult living in the home for a misdemeanor offense under § 18.2-57 or § 18.2-57.2 under certain circumstances, see § 63.2-1723 .

The 1996 amendment, effective July 1, 1997, added present subsection C and redesignated former subsection C as present subsection D.

The 1997 amendment, in subsection C, substituted "this section" for " § 18.2-57.2 " and deleted "when the person arrested and taken into custody is brought before the magistrate" following " § 16.1-253.4."

The 1999 amendments. - The 1999 amendments by cc. 697 and 721, are identical, and rewrote subsection D, which formerly read: "As used in this section, 'family or household member' means (i) the defendant's spouse, whether or not he or she resides in the same home with the defendant; (ii) the defendant's former spouse, whether or not he or she resides in the same home with the defendant; (iii) the defendant's parents, stepparents, children, stepchildren, brothers and sisters, grandparents and grandchildren who reside in the same home with the defendant; (iv) the defendant's mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the defendant; (v) any person who has a child in common with the defendant, whether or not the defendant and that person have been married or have resided together at any time; or (vi) any individual who cohabits or who, within the previous twelve months, cohabited with the defendant, and any children of either of them then residing in the same home with the defendant."

The 1999 amendment by c. 807 deleted "that" preceding "(ii)" in subsection B; and added "except if the defendant is a minor, an emergency protective order shall not be required" in subsection C.

The 2004 amendments. - The 2004 amendment by c. 448 rewrote subsection B, which formerly read: "On a third or subsequent conviction for assault and battery against a family or household member, where it is alleged in the warrant, information, or indictment on which a person is convicted, that (i) such person has been previously convicted twice of assault and battery against a family or household member, or of a similar offense under the law of any other jurisdiction, within ten years of the third or subsequent offense, and (ii) each such assault and battery occurred on different dates, such person shall be guilty of a Class 6 felony."

The 2004 amendment by c. 738 substituted "20" for "ten" in subsection B.

The 2009 amendments. - The 2009 amendment by c. 726 inserted "petition" near the beginning of subsection B.

The 2014 amendments. - The 2014 amendment by c. 660, in subsection B, inserted "or unlawful wounding" and "strangulation in violation of § 18.2-51.6 , or (vi)," and made a stylistic change.

Law review. - For article, "Marriage Mimicry: The Law of Domestic Violence," see 47 Wm. & Mary L. Rev. 1841 (2006).

For note, "Estop in the Name of Love: A Case for Constructive Marriage in Virginia," see 49 Wm. & Mary L. Rev. 973 (2007).

Research References. - Virginia Forms (Matthew Bender). No. 9-203 Emergency Protective Order -- Family Abuse, et seq.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, § 3.

CASE NOTES

Construction. - Requirements imposed by the statutory language are clear and unambiguous; they do not require that a defendant have two predicate convictions at the time he or she commits the offense ultimately charged as a felony, but rather, the statute requires that the warrant, petition, information, or indictment charging the defendant with a felony offense must allege that he or she has been previously convicted of two of the listed predicate offenses on different dates within twenty years. Lewis v. Commonwealth, 295 Va. 454 , 813 S.E.2d 732, 2018 Va. LEXIS 64 (2018).

When a defendant is tried upon an indictment charging a felony offense of assault and battery of a family or household member he or she cannot be convicted of the felony unless the indictment alleged the two predicate convictions; two predicate convictions must exist at the time of the indictment because the Commonwealth must present sufficient evidence to enable a grand jury to find probable cause, and it must adduce sufficient evidence to prove two such convictions beyond a reasonable doubt. Lewis v. Commonwealth, 295 Va. 454 , 813 S.E.2d 732, 2018 Va. LEXIS 64 (2018).

Household member. - Evidence was sufficient to support a conviction of assault and battery against a household member under subsection B of § 18.2-57.2 where defendant and the victim were in a long-term romantic relationship and where they lived together in a motel room when defendant assaulted the victim. Harris v. Commonwealth, No. 2818-01-4 CHIEF, 2002 Va. App. LEXIS 622 (Ct. of Appeals Oct. 15, 2002).

Circuit court has subject matter jurisdiction to determine parentage. - Florida circuit court does not err in exercising subject matter jurisdiction to determine parentage for purposes of adjudicating a defendant's guilt on charges of felony domestic assault, whether or not other proceedings involving a determination of parentage are then pending in the juvenile and domestic relations district court. Graves v. Commonwealth, No. 2938-05-3, 2007 Va. App. LEXIS 63 (Ct. of Appeals Feb. 20, 2007).

Probable cause. - Where an officer arrested an arrestee after questioning the arrestee's daughter about alleged domestic violence, summary judgment was inappropriate as to the false arrest claim because (1) the application of de minimus force by a parent did not automatically create probable cause for arrest under Virginia law, and (2) the arrestee pled a plausible claim that the officer lacked probable cause to arrest the arrestee. Pleasants v. Town of Louisa,, 2013 U.S. App. LEXIS 9267 (4th Cir. May 7, 2013).

Court rejects the contention that any touching by a parent of a child creates probable cause for an officer to arrest the parent and then a jury is left to determine whether that force was excessive; such a position is legally untenable in light of Virginia law. A parent often must use de minimus force to reprimand or even protect the parent's children, and such force cannot always lead to the possibility that a police officer can arrest the parent; the application of de minimus force by a parent does not automatically create probable cause for arrest. Pleasants v. Town of Louisa,, 2013 U.S. App. LEXIS 9267 (4th Cir. May 7, 2013).

Certified criminal warrants reflecting defendant's misdemeanor convictions for assault of a family member were properly admitted at defendant's trial for felony assault of a family member, despite any failure of the warrants to reflect whether defendant was present at the time of the prior convictions because (1) nothing showed defendant was not present, and (2) it was presumed defendant was not sentenced in absentia, contrary to § 19.2-237 . Farmer v. Commonwealth, 62 Va. App. 285, 746 S.E.2d 504, 2013 Va. App. LEXIS 229 (2013).

Certified criminal warrants reflecting defendant's misdemeanor convictions for assault of a family member were properly admitted at defendant's trial for felony assault of a family member, despite any noncompliance with § 19.2-307 , regarding the contents of judgments, due to not showing defendant's plea, because any statutory noncompliance did not make the warrants wholly inadmissible, as the warrants were relevant to the trial court's required inquiry as to whether defendant had the required number of predicate prior convictions. Farmer v. Commonwealth, 62 Va. App. 285, 746 S.E.2d 504, 2013 Va. App. LEXIS 229 (2013).

Admissibility of warrants. - Certified criminal warrants reflecting defendant's misdemeanor convictions for assault of a family member were properly admitted at defendant's trial for felony assault of a family member because the warrants plainly showed the charges were actually adjudicated, permitting an inference of defendant's predicate convictions. Farmer v. Commonwealth, 62 Va. App. 285, 746 S.E.2d 504, 2013 Va. App. LEXIS 229 (2013).

Indictment sufficient. - Indictment for a subsequent was sufficient to fulfill the requirement of subsection B that it allege two predicate convictions because the Commonwealth obtained an amendment to the indictment for a prior offense reducing it to a misdemeanor; defendant did not move for a bill of particulars or to dismiss or otherwise challenge the indictment for the later offense. Lewis v. Commonwealth, 295 Va. 454 , 813 S.E.2d 732, 2018 Va. LEXIS 64 (2018).

Self-defense claim. - Defendant's conviction for third-offense assault and battery of a family or household member in violation of § 18.2-57.2 would stand because the evidence failed to show that he acted in self-defense; the evidence did not show that defendant struck his wife in self-defense after she struck him, but, rather, that defendant struck her in an act of retaliation after she struck him. Washington v. Commonwealth,, 2006 Va. App. LEXIS 517 (Nov. 14, 2006).

Self-defense claim fails where force is unreasonable in relation to threat. - Appellant's conviction for assault and battery was affirmed; the trial court found that when appellant struck appellant's roommate, the roommate was unarmed, and his claim of self-defense failed. There was sufficient evidence to support the trial court's finding that the amount of force used by appellant was unreasonable in relation to the threat presented. Davis v. Commonwealth,, 2007 Va. App. LEXIS 5 (Jan. 9, 2007).

Relationship to federal law. - Phrase physical force meant violent force - that is, force capable of causing physical pain or injury to another person - and it was clear that physical force, so defined, was not an element of assault and battery under the well-established law of Virginia; therefore, defendant's conviction under § 18.2-57.2 was not, on its face, a misdemeanor crime of domestic violence under 18 U.S.C.S. § 922(g)(9) because the Virginia statute was not an offense that had, as an element, the use or attempted use of physical force. Applying the modified categorical approach, the record was devoid of any qualifying documentation to show defendant's conviction under § 18.2-57.2 was otherwise a misdemeanor crime of domestic violence under 18 U.S.C.S. § 922(g)(9). United States v. White, 606 F.3d 144, 2010 U.S. App. LEXIS 11026 (4th Cir. 2010).

Evidence that victim is "family or household member." - In a prosecution for domestic assault in violation of § 18.2-57.2 , evidence that defendant considered the victim's child to be his daughter was sufficient to prove the victim was his "family or household member" as defined in § 16.1-228 and incorporated in § 18.2-57.2 . As he made no timely request for court-ordered DNA testing, he could not challenge the sufficiency of the evidence on this issue on appeal. Graves v. Commonwealth, No. 2938-05-3, 2007 Va. App. LEXIS 63 (Ct. of Appeals Feb. 20, 2007).

Burden of proof. - Commonwealth needed no written order memorializing a misdemeanor conviction to meet its burden of proof at the felony trial, and the certified copy of the conviction supplied the proof of the second predicate conviction necessary to establish the felony offense because the circuit court took judicial notice that it had convicted defendant of a misdemeanor; although no written order was offered into evidence, the judgment was rendered by the same judge in the same court on the same day. Lewis v. Commonwealth, 295 Va. 454 , 813 S.E.2d 732, 2018 Va. LEXIS 64 (2018).

Jury instruction defining "cohabitation" denied. - Jury instruction defining "cohabitation" was properly denied where it incorrectly stated the applicable law and failing to inform the jury that it had to employ a totality of the circumstances analysis, and would have misled the jury that it could only consider the specific factors listed in the instruction. Cowell v. Commonwealth, No. 3198-03-1, 2005 Va. App. LEXIS 42 (Ct. of Appeals Feb. 1, 2005).

Sufficiency of evidence. - The evidence was sufficient to support the defendant's conviction where the victim, his estranged girlfriend, testified that the defendant followed her out of her trailer, pursued her until he caught her, picked her up and carried her away from where she was standing, while she pounded on him and yelled at him to let her down; although the victim suffered from memory loss, paranoia, and bi-polar disorder due to an earlier car crash, her testimony to the assault events did not seem inherently incredible and the trial court had been entitled to weigh these facts in determining the victim's credibility. Whitby v. Commonwealth, No. 1343-99-1, 2000 Va. App. LEXIS 551 (Ct. of Appeals July 25, 2000).

The evidence was sufficient to support defendant's assault conviction where defendant, after consuming alcohol and admittedly "frustrated" by his children's behavior, smacked his son on the face with a closed hand. Guzman v. Commonwealth, No. 2329-01-2, 2002 Va. App. LEXIS 361 (Ct. of Appeals June 25, 2002).

Certified copies of two domestic assault conviction orders entered by another circuit court which bore defendant's name, birth date, and social security number were sufficient to raise an inference that defendant was the person named in those orders, and the trial court which tried defendant on a charge of felony domestic assault did not err by overruling defendant's objections to the orders or by finding that defendant was the person named in the orders. Holmes v. Commonwealth, 41 Va. App. 690, 589 S.E.2d 11, 2003 Va. App. LEXIS 609 (2003).

Despite the absence of specific evidence that defendant threatened the victim, or evidence of his specific intent to harm her, upon his admission that he began to throw things at her in anger and that his action of doing so showed a reckless disregard for her safety, his assault and battery of a household member conviction was upheld. Trent v. Commonwealth, No. 1844-03-2, 2004 Va. App. LEXIS 263 (Ct. of Appeals June 8, 2004).

Victim's testimony that defendant grabbed her by her throat and pushed her down on a bed and that, on a second occasion, he snatched her up out of her bed and punched her in the nose, was sufficient to prove beyond a reasonable doubt that defendant assaulted and battered the victim in violation of § 18.2-57.2 . Graves v. Commonwealth, No. 2938-05-3, 2007 Va. App. LEXIS 63 (Ct. of Appeals Feb. 20, 2007).

Conviction of felony domestic assault and battery was not supported by sufficient evidence because the warrant at issue, which alleged that defendant assaulted a family or household member "on or about 06/11/2004 to 06/13/2004," failed to indicate any finding of guilt and thus, was insufficient to prove a prior conviction on any date; nonetheless, the lesser-included misdemeanor was proven beyond a reasonable doubt. Sensabaugh v. Commonwealth,, 2007 Va. App. LEXIS 199 (May 15, 2007).

Commonwealth's evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt two counts of domestic assault and battery. The testimony of officers, the victim's written report, defendant's statements, and the physical evidence of the victim's injuries constituted sufficient evidence to permit a finding that defendant committed one of the counts. Cabrera-Sanchez v. Commonwealth,, 2008 Va. App. LEXIS 71 (Feb. 12, 2008).

When the relevant evidence showed that defendant threw a beer can at his girlfriend, with whom he had a relationship for over ten years, which hit her on the shoulder, such was sufficient to support defendant's conviction for assault and battery of a family member, in violation of § 18.2-57.2 . Gray v. Commonwealth,, 2008 Va. App. LEXIS 224 (May 6, 2008).

Evidence was sufficient to convict defendant of assault on his domestic partner because the trial court was entitled to credit her testimony that, after they struggled over possession of her cell phone, defendant dragged her by her hair and upper body to the front door of their residence and threw her out. Pitt v. Commonwealth,, 2009 Va. App. LEXIS 470 (Oct. 20, 2009).

Although the victim denied being hit by defendant, the testimony of a police officer, the victim's demeanor, defendant's statements, and the physical evidence of the victim's injury constituted sufficient circumstantial evidence to permit a finding that defendant committed domestic assault and battery on the victim in violation of § 18.2-57.2 . Watkins v. Commonwealth,, 2012 Va. App. LEXIS 147 (May 8, 2012).

Evidence was sufficient to convict defendant of assault and battery of a family member because the victim testified that, when she left the bathroom, she immediately fell backward and experienced severe pain in her right eye; her description of the location, which was clear of obstructions, and the fact that she was alone with defendant, who was immediately by her side after the blow, supported her conclusion that he was the criminal actor; the photographs of the injury, which was localized and indicative of a blow to the eye, supported the victim's testimony that she had been hit and that defendant caused the injury; and it was entirely reasonable that the victim did not see the blow coming and realized who hit her only after the impact. Spitler v. Commonwealth,, 2015 Va. App. LEXIS 383 (Dec. 15, 2015).

Sufficient evidence to prove misdemeanor crime of domestic violence. - Evidence was sufficient to support defendant's conviction for violating the statute because he made a materially false statement on ATF Form 4473 regarding whether he had ever been convicted in any court of a misdemeanor crime of domestic violence; defendant's prior conviction order for assault and battery of a family member, coupled with his statement that the incident involved his former spouse, established that he had previously been convicted of a misdemeanor crime of domestic violence. Marshall v. Commonwealth, 69 Va. App. 648, 822 S.E.2d 389, 2019 Va. App. LEXIS 14 (2019).

Adjudication of guilt. - Defendant was properly convicted within the meaning of subsection B because the circuit court did more than merely find the evidence sufficient to find defendant guilty of the misdemeanor charge arising from the prior offense and actually found him guilty; the circuit court went beyond the initial phase of finding the evidence sufficient to find defendant guilty and actually convicted him of the charge. Lewis v. Commonwealth, 295 Va. 454 , 813 S.E.2d 732, 2018 Va. LEXIS 64 (2018).

Lesser offense. - Where the Commonwealth proved that defendant committed the felony charged, assault and battery on a family or household member, third offense, the trial court, sitting without a jury, had the power to convict defendant of something less but defendant had no right to have it do so. Kirby v. Commonwealth, No. 1788-01-3, 2002 Va. App. LEXIS 592 (Ct. of Appeals Oct. 8, 2002).

Applied in St. Clair v. Town of Rocky Mount,, 2005 U.S. Dist. LEXIS 1376 (W.D. Va. Feb. 1, 2005); Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011).

CIRCUIT COURT OPINIONS

Concealed handgun permit. - Circuit court initially denied an applicant's application for a concealed handgun permit because, while the applicant's prior conviction for domestic assault made it unlawful under federal law for the applicant to possess a firearm, it was facially insufficient to trigger disqualification where the court received no notarized statement from the county sheriff or the county's attorney, the applicant should have the opportunity to produce a certified copy of all of the prior court records in case any question as to whether the prior conviction was actually for domestic assault. In re Concealed Weapon Permit,, 2020 Va. Cir. LEXIS 151 (Culpeper Sept. 13, 2020).

OPINIONS OF THE ATTORNEY GENERAL

No authority to grant general continuance. - Courts do not have the authority to grant a "general continuance" as an alternative to § 18.2-57.3 for cases involving an adult charged with a first offense of assault and battery against a family or household member under this section. See opinion of Attorney General to the Honorable Michael J. Valentine, Judge, Juvenile and Domestic Relations District Court, 05-013, 2005 Va. AG LEXIS 9 (3/31/05).

Rejection of plea agreement after amendment of arrest warrant. - A Juvenile and Domestic Relations District Court judge may reject a plea agreement when an arrest warrant is amended from assault and battery against a family or household member under this section to "simple" assault under § 18.2-57 . See opinion of Attorney General to The Honorable Michael J. Valentine, Judge, Juvenile and Domestic Relations District Court, Nineteenth Judicial District, 06-061, 2007 Va. AG LEXIS 11 (3/22/07).

The phrase "while employed in a child day center" refers to an offense committed during the period of time an individual is employed at a child day center, regardless of whether or not the offense was committed within the scope of employment there. See opinion of Attorney General to The Honorable T. Scott Garrett, M.D., Member, House of Delegates, No. 15-003, 2015 Va. AG LEXIS 20 (7/31/15).

The phrase "in the scope of his employment" means the offense must have occurred in connection with the individual's work at a covered facility. See opinion of Attorney General to The Honorable T. Scott Garrett, M.D., Member, House of Delegates, No. 15-003, 2015 Va. AG LEXIS 20 (7/31/15).

§ 18.2-57.3. Persons charged with first offense of assault and battery against a family or household member may be placed on local community-based probation; conditions; education and treatment programs; costs and fees; violations; discharge.

  1. When a person is charged with a simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or a violation of § 18.2-57.2 , the court may defer the proceedings against such person, without a finding of guilt, and place him on probation under the terms of this section.
  2. For a person to be eligible for such deferral, the court shall find that (i) the person was an adult at the time of the commission of the offense; (ii) the person has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to an assault or assault and battery against a family or household member; (iii)(a) the person has not previously been convicted of an act of violence as defined in § 19.2-297.1 or (b) if such person has been previously convicted of such an act of violence, the attorney for the Commonwealth does not object to the deferral; (iv) the person has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section; (v) the person pleads guilty to, or enters a plea of not guilty or nolo contendere and the court finds the evidence is sufficient to find the person guilty of, simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or a violation of § 18.2-57.2 ; and (vi) the person consents to such deferral and to a waiver of his right to appeal a finding of facts sufficient to justify a finding of guilt under this section entered pursuant to subsection F for a violation of a term or condition of his probation. If the court defers further proceedings, at that time the court shall determine whether the clerk of court has been provided with the fingerprint identification information or fingerprints of the person, taken by a law-enforcement officer pursuant to § 19.2-390 , and, if not, shall order that the fingerprints and photograph of the person be taken by a law-enforcement officer. A person may file a motion to withdraw his consent to the deferral and waiver of his right to appeal within 10 days of the entry of the order deferring proceedings on a form prescribed by the Office of the Executive Secretary of the Supreme Court of Virginia. The court shall schedule a hearing within 30 days of receipt of the motion and shall provide reasonable notice to the attorney for the Commonwealth and to the person and his attorney, if any. If the person appears at the hearing and requests to withdraw his consent, the court shall grant such request, enter a final order adjudicating guilt, and sentence the person accordingly. If the person does not appear at the hearing, the court shall deny his request to withdraw his consent.
  3. The court shall (i) where a local community-based probation services agency established pursuant to Article 9 (§ 9.1-173 et seq.) of Chapter 1 of Title 9.1 is available, order that the eligible person be placed with such agency and require, as a condition of local community-based probation, the person to successfully complete all treatment, education programs, or services, or any combination thereof, indicated by an assessment or evaluation obtained by the local community-based probation services agency if such assessment, treatment, or education services are available or (ii) require successful completion of treatment, education programs, or services, or any combination thereof, such as, in the opinion of the court, may be best suited to the needs of the person.
  4. The court shall require the person entering such education or treatment program or services under the provisions of this section to pay all or part of the costs of the program or services, including the costs of any assessment, evaluation, testing, education, and treatment, based upon the person's ability to pay. Such programs or services shall offer a sliding-scale fee structure or other mechanism to assist participants who are unable to pay the full costs of the required programs or services.

    The court shall order the person to be of good behavior for a total period of not less than two years following the deferral of proceedings, including the period of supervised probation, if available.

  5. Upon fulfillment of the terms and conditions specified in the court order, and upon determining that the clerk of court has been provided with the fingerprint identification information or fingerprints of such person, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. No charges dismissed pursuant to this section shall be eligible for expungement under § 19.2-392.2 .
  6. Upon violation of a term or condition of supervised probation or of the period of good behavior, the court may enter an adjudication of guilt and proceed as otherwise provided by law. Any person placed on probation pursuant to this section who is subsequently adjudicated guilty upon a violation of a term or condition of his probation shall have no right of appeal on such adjudication.
  7. Notwithstanding any other provision of this section, whenever a court places a person on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of Article 6.1 (§ 18.2-307.1 et seq.) of Chapter 7. (1999, c. 963; 2000, c. 1040; 2003, cc. 33, 38; 2004, c. 377; 2007, c. 133; 2009, cc. 313, 347; 2013, c. 746; 2016, cc. 422, 742; 2017, cc. 621, 785; 2019, cc. 782, 783.)

Editor's note. - Acts 2004, cc. 972 and 980, cl. 6, provide: "That the Office of the Executive Secretary of the Supreme Court shall determine appropriate standards for the approval of education and treatment programs for persons accused of assault and battery against a family or household member pursuant to § 18.2-57.3 and arrange for such programs to be approved by an appropriate entity."

Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

The 2000 amendments. - The 2000 amendment by c. 1040 substituted "a person who is no younger than eighteen years of age or who is considered an adult at the time of conviction" for "any person who" at the beginning of the first paragraph; in the second paragraph, rewrote the first sentence, and deleted a former second sentence, referring to the location of the treatment and/or education program; in the third paragraph, substituted "education or treatment program" for "a program", and inserted "education" following "testing"; and in the fourth paragraph, inserted "local" preceding "probation" and added "following the completion of local probation supervision" at the end of the paragraph.

The 2003 amendments. - The 2003 amendment by cc. 33 and 38 are identical, and substituted "18" for "eighteen" in the first sentence of the first paragraph; in the second paragraph, substituted "may" for "shall," and substituted "screened, assessed, or evaluated and, with or without any evaluation, may require the accused" for "evaluated and, based on the results of screening, assessment, evaluation, and testing"; substituted "any" for "the" preceding "screening" in the third paragraph; and rewrote the fourth paragraph, which formerly read: "As a condition of local probation, the court shall require the accused to successfully complete all treatment and/or education programs required and to be of good behavior for a period of not less than two years following the completion of local probation supervision."

The 2004 amendments. - The 2004 amendment by c. 377 substituted "the proceeding and who" for "conviction" in the first paragraph; in the second paragraph, in the first sentence, inserted "where assessment or evaluation services are available," deleted "screened" preceding "assessed," substituted "based on the results of the assessment or evaluation" for "with or without any evaluation, may," and inserted "indicated by the assessment or evaluation" and added "The court, when assessment or evaluation services are not available, may require education or treatment services" to the beginning of the last sentence; substituted "assessment" for "screening" in the third paragraph; in the fourth paragraph, added the first sentence, in the second sentence, inserted "community-based," deleted "such probation is" preceding "available," and added the language beginning "by the assessment or evaluation" at the end and in the last sentence, deleted "further" following "court shall" and added "when no supervised probation is ordered" at the end; and inserted "of supervised probation or of the period of good behavior" in the first sentence of the sixth paragraph.

The 2007 amendments. - The 2007 amendment by c. 133, throughout the section, inserted "or services"; inserted "local community-based" preceding "probation" near the end of the first paragraph; in the fourth paragraph, in the first sentence, substituted "with a local community-based probation services agency" for "in a local community-based probation program" and "a services agency" for "program."

The 2009 amendments. - The 2009 amendment by cc. 313 and 347 are identical, and rewrote this section.

The 2013 amendments. - The 2013 amendment by c. 746 substituted "for purposes of Article 6.1 ( § 18.2-307.1 et seq.) of Chapter 7" for "for purposes of § 18.2-308 " at the end of subsection G.

The 2016 amendments. - The 2016 amendment by c. 422 substituted "The court shall" for "The court may" in subsection C.

The 2016 amendment by c. 742 inserted "simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or a" in subsection A; and in subsection B, substituted "relating to an assault or assault" for "relating to assault" in clause (ii), and inserted "simple assault in violation of subsection A of § 18.2-57 where the victim was a family or household member of the person or" in clause (iv).

The 2017 amendments. - The 2017 amendment by c. 621, in subsection B, inserted clause (iii); and made stylistic changes.

The 2017 amendment by c. 785, in subsection B, inserted "and to a waiver of his right to appeal a finding of facts sufficient to justify a finding of guilt under this section entered pursuant to subsection F for a violation of a term or condition of his probation" at the end of the first sentence and added the last four sentences; and in subsection F, added the last sentence.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and in subsection B, inserted the second sentence; in subsection D, deleted the former third paragraph, which read: "The court shall, unless done at arrest, order the person to report to the original arresting law-enforcement agency to submit to fingerprinting"; and in subsection E, inserted "and upon determining that the clerk of court has been provided with the fingerprint identification information or fingerprints of such person"; and made stylistic changes.

CASE NOTES

Failure to preserve argument. - Court of appeals could not address defendant's argument that the trial court impermissibly considered the proceedings in the juvenile and domestic relations district court (JDR court) because the record simply did not demonstrate that defendant objected to the trial court considering what had occurred in the JDR court or otherwise brought the issue to the trial court's attention. Abalos v. Commonwealth, No. 0724-19-4, 2020 Va. App. LEXIS 23 (Jan. 28, 2020).

Applied in Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Deferred finding of guilt relating to first-offense assault and battery under this section is not a "conviction" in the legal sense of the word, but such a deferred finding is considered a "conviction" for purposes of applying this section in subsequent proceedings and for purposes of § 18.2-308 during a defendant's term of probation; also, the person's "conviction" terminates once the person completes probation and the deferred finding proceedings against him are dismissed, except for purposes of applying this section in any future proceeding under the section. See opinion of Attorney General to The Honorable Gary A. Mills, Judge, Seventh Judicial District, 04-066 (9/27/04).

No authority to grant general continuance. - Courts do not have the authority to grant a "general continuance" as an alternative to this section for cases involving an adult charged with a first offense of assault and battery against a family or household member under § 18.2-57.2 . See opinion of Attorney General to the Honorable Michael J. Valentine, Judge, Juvenile and Domestic Relations District Court, 05-013 (3/31/05).

§ 18.2-57.4. Reporting findings of assault and battery to military family advocacy representatives.

If any active duty member of the United States Armed Forces is found guilty of a violation of § 18.2-57.2 or § 18.2-57.3 , the court shall report the conviction to family advocacy representatives of the United States Armed Forces.

(2004, c. 681.)

§ 18.2-57.5. Certain matters not to constitute defenses.

  1. Another person's actual or perceived sex, gender, gender identity, or sexual orientation is not in and of itself, or together with an oral solicitation, a defense to any charge brought under this article.
  2. Nothing in this section shall be construed to prevent a defendant from exercising his constitutionally protected rights, including his right to call for evidence in his favor that is relevant and otherwise admissible in a criminal prosecution.

    (2021, Sp. Sess. I, c. 460.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 460, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Effective date. - This section is effective July 1, 2021.

Article 5. Robbery.

§ 18.2-58. Robbery; penalties.

  1. For the purposes of this section, "serious bodily injury" means the same as that term is defined in § 18.2-51.4 .
  2. Any person who commits robbery is guilty of a felony and shall be punished as follows:
    1. Any person who commits robbery and causes serious bodily injury to or the death of any other person is guilty of a Class 2 felony.
    2. Any person who commits robbery by using or displaying a firearm, as defined in § 18.2-308.2:2 , in a threatening manner is guilty of a Class 3 felony.
    3. Any person who commits robbery by using physical force not resulting in serious bodily injury or by using or displaying a deadly weapon other than a firearm in a threatening manner is guilty of a Class 5 felony.
    4. Any person who commits robbery by using threat or intimidation or any other means not involving a deadly weapon is guilty of a Class 6 felony. (Code 1950, § 18.1-91; 1960, c. 358; 1966, c. 361; 1975, cc. 14, 15, 605; 1978, c. 608; 2021, Sp. Sess. I, c. 534.)

Cross references. - For definition of "barrier crime" as including a conviction of robbery as set out in § 18.2-58 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including robbery as set out in § 18.2-58 , or an equivalent offense in another state, see § 63.2-1726 .

Editor's note. - The above section is § 18.2-58 as enacted by Acts 1975, c. 605. Pursuant to § 30-152, it has been substituted for § 18.2-58 as enacted by Acts 1975, cc. 14 and 15.

Acts 2021, Sp. Sess. I, c. 534, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 534, effective July 1, 2021, rewrote the section, which read: "If any person commit robbery by partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony and shall be punished by confinement in a state correctional facility for life or any term not less than five years."

Law review. - For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

Research References. - Virginia Forms (Matthew Bender). No. 9-511 Indictment -- Robbery.

Michie's Jurisprudence. - For related discussion, see 16 M.J. Robbery, §§ 2, 9.

CASE NOTES

I. GENERAL CONSIDERATION.

This section fixes the punishment for, but does not define, the crime of robbery; consequently, the Supreme Court looks to the common law for its definition. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964); Pettus v. Peyton, 207 Va. 906 , 153 S.E.2d 278 (1967); Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

The crime of robbery in Virginia is not defined by statute. This section fixes the punishments for robbery, but the definition of the crime is found in the common law. Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Robbery is a common-law crime in Virginia, although its punishment is prescribed by this section. Pritchard v. Commonwealth, 225 Va. 559 , 303 S.E.2d 911 (1983).

Although the punishment for robbery is fixed by statute, the offense is not statutorily defined, and the court must look to the common law for its definition. Robbery at common law is defined as the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. George v. Commonwealth, 242 Va. 264 , 411 S.E.2d 12 (1991), cert. denied, 503 U.S. 973, 112 S. Ct. 1591, 118 L. Ed. 2d 308 (1992).

Grand larceny not lesser included offense of robbery. - Trial court erred in reducing the robbery charge in the indictment against defendant to grand larceny because grand larceny was not a lesser included offense of robbery, as all the elements of grand larceny were not included in robbery. However, petit larceny was a lesser-included offense of robbery because all of the elements of petit larceny were contained in robbery. Dufresne v. Commonwealth, No. 0281-15-2, 2016 Va. App. LEXIS 38 (Feb. 9, 2016).

When a statute prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion. West v. Commonwealth, No. 1146-91-1 (Ct. of Appeals Jan. 19, 1993).

"Unit of prosecution" for double jeopardy purposes. - Because the essential character of both this section and common-law robbery is violence against a person for the purpose of theft, the appropriate "unit of prosecution" for double jeopardy purposes is determined by the number of persons from whose possession property is taken separately by force or intimidation. Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

Convictions under this section and § 18.2-93 not double jeopardy. - Convictions for both robbery and entry of a banking house with the intent to commit larceny while armed with a deadly weapon did not violate the double jeopardy clause. Hill v. Commonwealth, 2 Va. App. 683, 347 S.E.2d 913 (1986).

Multiple punishments did not violate double jeopardy clause. - The convictions and imposition of multiple punishments for capital murder, robbery and use of a firearm in the commission of a felony did not violate appellant's rights under the double jeopardy clause of the Fifth Amendment. Since those convictions and punishments did not violate the double jeopardy clause, his counsel was not ineffective for failing to raise the issue. Peterson v. Bass, 2 Va. App. 314, 343 S.E.2d 475 (1986).

Armed robbery trial not barred by first degree murder conviction. - See Harrison v. Commonwealth, 220 Va. 188 , 257 S.E.2d 777 (1979).

Conviction for both robbery and carjacking allowed. - The Commonwealth is clearly permitted to try and convict an offender of both robbery and carjacking when the evidence supports convictions for those crimes. Brown v. Commonwealth, 37 Va. App. 507, 559 S.E.2d 415, 2002 Va. App. LEXIS 88 (2002).

Robbery is not an incidental, probable consequence of an assault. - Robbery pursuant to § 18.2-58 is not an incidental, probable consequence of an assault; robbery requires a completely different type of wrongdoing: stealing. McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 2008 Va. LEXIS 91 (2008).

Double jeopardy. - Court of Appeals erred in reversing defendant's conviction of grand larceny of a person, in violation of § 18.2-95 , due to defendant's earlier acquittal of robbery, charged pursuant to this section, as proof of violence or intimidation was required in a robbery prosecution, but not for grand larceny from the person, and proof of the value of the property stolen was required in a prosecution for grand larceny from the person, but not for robbery; hence, double jeopardy did not bar prosecution on the grand larceny charge upon a robbery acquittal. Commonwealth v. Hudgins, 269 Va. 602 , 611 S.E.2d 362, 2005 Va. LEXIS 37 (2005), reversing 43 Va. App. 219, 597 S.E.2d 221 (2004); overruling Jones v. Commonwealth, 218 Va. 757 , 240 S.E.2d 658 (1978).

Where defendant pled guilty to conspiracy to commit robbery, § 18.2-22 , defendant's subsequent indictment for robbery, in violation of § 18.2-58 , did not violate double jeopardy because each statute required proof of an element that the other did not. Williams v. Commonwealth, No. 3096-08-1,, 2010 Va. App. LEXIS 382 (Ct. of Appeals Sept. 28, 2010).

Where defendant pled guilty to an amended indictment for conspiracy to commit robbery, § 18.2-22 , and the amendment occurred because defendant entered the plea, defendant's subsequent indictment for robbery did not violate double jeopardy. Williams v. Commonwealth, No. 3096-08-1,, 2010 Va. App. LEXIS 382 (Ct. of Appeals Sept. 28, 2010).

Plea agreement. - Although defendant was originally indicted for robbery in violation of § 18.2-58 , and defendant pled guilty to an amended indictment for conspiracy to commit robbery, § 18.2-22 , the Commonwealth was free to seek a new indictment for robbery when defendant failed to comply with a condition of the plea agreement that defendant would cooperate fully in the prosecution of a codefendant. Williams v. Commonwealth, No. 3096-08-1,, 2010 Va. App. LEXIS 382 (Ct. of Appeals Sept. 28, 2010).

Common-law indictment is good. - A "robbery" under this section differs in no respect from a robbery purely at the common law; hence, if an indictment would be good as a common-law indictment, it is good also under this section. Houston v. Commonwealth, 87 Va. 257 , 12 S.E. 385 (1890). See Brookman v. Commonwealth, 151 Va. 522 , 145 S.E. 358 (1928).

Robbery and crime defined in § 18.2-53.1 are separate offenses. - The common-law crime of robbery and the crime defined in § 18.2-53.1 (use or display of a firearm in committing certain felonies) are separate and distinct offenses for double jeopardy purposes. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

And have different elements as matter of law. - The crime of robbery and the crime of using a firearm in committing robbery have different elements as a matter of law, although they may have common elements as a matter of fact, since the "gist" of robbery is the taking and carrying away of the personal property of another, not necessarily by the use of a firearm, whereas the "gist" of § 18.2-53.1 is the use of a firearm in situations where it is likely that weapons may be used to injure victims of robbery or bystanders. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

The crime of robbery as defined at common law involves a forceful taking "by violence or intimidation" but such force need not be by means of the use or threat of presenting a firearm. Robbery may be committed in many ways, such as by partial strangulation or suffocation, or by striking or beating with the fist or other less dangerous devices. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

To convict a defendant on a charge of using or displaying a weapon in the commission of a felony under § 18.2-53.1 , requires proof of a different element and evidence additional to that required for the offense of robbery. The use of a firearm is not one of the essential elements of the underlying felony. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

Jury instructions accurately stated the law. - Trial court's taking instruction accurately stated the law regarding the taking element of the robbery given that the robbery victim asported the money from a safe under the command of defendant. Furthermore, it was not error for the trial court to have refused an instruction on circumstantial evidence regarding the taking of the money because the Commonwealth of Virginia did not rely on circumstantial evidence, but, instead, relied on the direct evidence that the robbery victim asported the money under the command of defendant. El-Shabazz v. Commonwealth,, 2012 Va. App. LEXIS 99 (Apr. 3, 2012).

Sentence. - The import of § 19.2-295 is that the jury, upon determining a petitioner's guilt of robbery, has to set the sentence between the statutory limits for robbery as set forth in this section. Roman v. Parrish, 328 F. Supp. 882 (E.D. Va. 1971).

Trial court had subject matter jurisdiction and did not err in sentencing defendant after defendant pled guilty to two counts of robbery and one count of using a firearm while committing a robbery; Apprendi did not apply because defendant's sentences for those offenses was within the statutory ranges set by the legislature. Barnes v. Commonwealth,, 2006 Va. App. LEXIS 506 (Nov. 7, 2006).

No error in denying concurrent sentence. - Given that the record on appeal adequately demonstrated that the sentencing judge correctly understood his discretion and sentenced defendant within the lawful scope of that discretion, the Court of Appeals of Virginia declined to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18. As a result, no error resulted in the denial of defendant's request for a concurrent sentence. Scalf v. Commonwealth, No. 0007-07-3,, 2008 Va. App. LEXIS 230 (Ct. of Appeals May 13, 2008).

No error in limiting cross-examination of co-conspirator witness. - In an armed robbery trial under § 18.2-58 , defendant's cross-examination of a co-conspirator witness regarding prior plea agreements that the witness had reached in other unrelated cases was properly denied because "bare bones" proffer was inadequate to determine that the line of questioning was relevant to bias or credibility and other evidence was overwhelming. Williams v. Commonwealth,, 2007 Va. App. LEXIS 74 (Mar. 6, 2007).

No error in admitting other crimes evidence against defendant. - In a prosecution for robbery and the use of a firearm during the commission of robbery, the trial court did not err in admitting testimony by the police regarding other crimes committed by his accomplices that had no relevance to the crimes for which he was being tried, as he failed to restate his objection to the same when the first of two officers testified about those crimes, and also failed to object when the second officer testified about much of the same evidence; thus, in permitting the admission of said evidence, he waived any complaint on appeal regarding the same. Boggs v. Commonwealth,, 2006 Va. App. LEXIS 66 (Feb. 21, 2006).

Mistrial and new trial unwarranted. - Because the record on appeal sufficiently showed that the trial judge thoroughly admonished a challenged witness, who was also defendant's former girlfriend, and determined that her alleged inflammatory testimony did not prejudice defendant, both a mistrial and a new trial were unwarranted. Moreover, because the jury necessarily determined that the Commonwealth's evidence proved the robbery charged, and were worthy of belief, that determination was upheld. White v. Commonwealth,, 2005 Va. App. LEXIS 538 (Sept. 15, 2005).

Aggravated felony under Immigration and Naturalization Act. - United States Citizenship and Immigration Services (USCIS) did not err in denying plaintiff's application for naturalization by finding that his 1995 robbery conviction under Virginia law qualified as "aggravated felony" under Immigration and Naturalization Act (INA) because conviction was both theft offense and crime of violence. Ralord Allah Lao Tung v. Johnson, 159 F. Supp. 3d 677, 2016 U.S. Dist. LEXIS 16895 (E.D. Va. 2016), aff'd, 2016 U.S. App. LEXIS 22111 (4th Cir. Va. 2016).

"Ends of justice" exception applicable. - Evidence clearly and affirmatively showed that an element of one of the crimes of which defendant was convicted did not occur. Accordingly, there was error in the judgment appealed from and application of the ends of justice exception was necessary to avoid a grave injustice. Ali v. Commonwealth, 280 Va. 665 , 701 S.E.2d 64, 2010 Va. LEXIS 273 (2010).

Applied in Goode v. Commonwealth, 217 Va. 863 , 234 S.E.2d 239 (1977); Clay v. Commonwealth, 30 Va. App. 254, 516 S.E.2d 684 (1999); Hoyt v. Commonwealth, 44 Va. App. 489, 605 S.E.2d 755, 2004 Va. App. LEXIS 599 (2004); Goode v. Commonwealth, 52 Va. App. 380, 663 S.E.2d 532, 2008 Va. App. LEXIS 331 (2008); Rowland v. Commonwealth, 281 Va. 396 , 707 S.E.2d 331, 2011 Va. LEXIS 60 (2011); Newton v. Commonwealth,, 2011 Va. App. LEXIS 212 (June 28, 2011); Dominguez v. Pruett, 287 Va. 434 , 756 S.E.2d 911, 2014 Va. LEXIS 59 (2014).

II. ELEMENTS OF COMMON-LAW ROBBERY.

This section is silent on the elements of robbery and merely provides how the crime, when committed under given circumstances, shall be punished. Falden v. Commonwealth, 167 Va. 542 , 189 S.E. 326 (1937).

While fixing the punishment by this section, Virginia has never codified the elements of common-law robbery. Cox v. Commonwealth, 218 Va. 689 , 240 S.E.2d 524 (1978).

It does not change the common-law essentials of the crime. At common-law robbery is defined as the taking, with intent to deprive the owner permanently, of personal property, from his person or in his presence, against his will, by violence or intimidation. Ayres v. Commonwealth, 157 Va. 897 , 161 S.E. 888 (1932); Smyth v. White, 195 Va. 169 , 77 S.E.2d 454 (1953).

Robbery, at common law, as defined by text writers, is the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting in fear. Houston v. Commonwealth, 87 Va. 257 , 12 S.E. 385 (1890); Falden v. Commonwealth, 167 Va. 542 , 189 S.E. 326 (1937).

Robbery at common law is defined as the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. Mason v. Commonwealth, 200 Va. 253 , 105 S.E.2d 149 (1958); Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964); Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964); Pettus v. Peyton, 207 Va. 906 , 153 S.E.2d 278 (1967); Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968); Mitchell v. Commonwealth, 213 Va. 149 , 191 S.E.2d 261 (1972); Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973); Hunt v. Haga, 368 F. Supp. 527 (W.D. Va. 1973); Johnson v. Commonwealth, 215 Va. 495 , 211 S.E.2d 71 (1975); Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977); Bunch v. Commonwealth, 225 Va. 423 , 304 S.E.2d 271, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983), , 505 U.S. 1230, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992).

Robbery is a common-law crime in this State, and while this section regulates the punishment, it does not attempt to define robbery, but leaves the crime as it was defined at common law. Houston v. Commonwealth, 87 Va. 257 , 12 S.E. 385 (1890); Brookman v. Commonwealth, 151 Va. 522 , 145 S.E. 358 (1928); Maxwell v. Commonwealth, 165 Va. 860 , 183 S.E. 452 (1936); Jones v. Commonwealth, 172 Va. 615 , 1 S.E.2d 300 (1939); Haughey v. Smyth, 187 Va. 320 , 46 S.E.2d 419 (1948).

Robbery in Virginia is common-law robbery. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965); Johnson v. Commonwealth, 215 Va. 495 , 211 S.E.2d 71 (1975).

All common-law elements must exist. - To constitute the crime of robbery in Virginia, all of the elements essential at common law must exist. Fleming v. Commonwealth, 170 Va. 636 , 196 S.E. 696 (1938).

No statute in Virginia defines robbery, and to constitute robbery all of the elements essential at common law must exist. Mason v. Commonwealth, 200 Va. 253 , 105 S.E.2d 149 (1958).

All elements of the common-law offense must be proved beyond a reasonable doubt in order to establish that a robbery has occurred. Mitchell v. Commonwealth, 213 Va. 149 , 191 S.E.2d 261 (1972).

Robbery is an offense against the person. Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964); Johnson v. Commonwealth, 215 Va. 495 , 211 S.E.2d 71 (1975); Pritchard v. Commonwealth, 225 Va. 559 , 303 S.E.2d 911 (1983).

Violence must be directed at person of victim. - The element of violence is related to the violence or intimidation directed at the person of the victim not violence used on the object taken. In the absence of evidence of physical contact or a struggle with the victim, there is no violence used in the taking of a purse. Henderson v. Commonwealth, No. 3017-99-1, 2000 Va. App. LEXIS 809 (Ct. of Appeals Dec. 12, 2000).

The distinctive elements of robbery are: (1) the use of violence, or the threat thereof, against the victim; and (2) the theft of property from his person or in his presence. Briley v. Commonwealth, 221 Va. 532 , 273 S.E.2d 48 (1980), cert. denied, 451 U.S. 1031, 101 S. Ct. 3022, 69 L. Ed. 2d 400 (1981).

The principal elements of robbery, a crime against the person of the victim, are the taking, the intent to steal, and the violence (or intimidation). Definitionally, there is a temporal correlation among these elements. The violence must occur before or at the time of the taking. The intent to steal and the taking must coexist. And the offense is not robbery unless the animus furandi (intent to steal) was conceived before or at the time the violence was committed. Branch v. Commonwealth, 225 Va. 91 , 300 S.E.2d 758 (1983).

Elements of robbery are the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation. Pritchard v. Commonwealth, 225 Va. 559 , 303 S.E.2d 911 (1983).

The essential element of violence must precede or be concomitant with the taking of property from the person or presence of the owner. Bunch v. Commonwealth, 225 Va. 423 , 304 S.E.2d 271, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983), , 505 U.S. 1230, 112 S. Ct. 3056, 120 L. Ed. 2d 922 (1992).

In order to sustain a robbery conviction, the commonwealth has the burden of proving beyond a reasonable doubt the elements of robbery, which include a taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation which precedes or is concomitant with the taking. Henderson v. Commonwealth, No. 3017-99-1, 2000 Va. App. LEXIS 809 (Ct. of Appeals Dec. 12, 2000).

A conviction for robbery requires proof beyond a reasonable doubt that the defendant took property from the victim by force, threats or violence and that the intent to steal co-existed with the act of force. Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000).

Robbery is larceny from the person, or in his presence, by violence or intimidation. Comer v. Commonwealth, 211 Va. 246 , 176 S.E.2d 432 (1970).

Restraint in attempted robbery may not be abduction. - Defendant may not be convicted of both abduction and attempted robbery unless the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the attempted robbery. Bell v. Commonwealth, No. 0318-02-1, 2003 Va. App. LEXIS 373 (Ct. of Appeals July 1, 2003).

Conviction for roberry and abduction allowed. - Trial court properly denied defendant's motion to strike an abduction charge as incidental to a robbery charge because defendant did not need to move the victim underneath a stairwell to a darkened alcove to take his possessions and doing so exceeded the minimum restraint necessary to complete the robbery. Conyers v. Commonwealth, No. 1635-15-2, 2016 Va. App. LEXIS 362 (Ct. of Appeals Dec. 20, 2016).

A store empty of persons cannot be robbed. Crawford v. Commonwealth, 217 Va. 595 , 231 S.E.2d 309 (1977).

Robbery must be accomplished by violence or putting in fear. - Under the authorities the taking in common-law robbery must be accomplished by violence to the person who theretofore had the property in his possession (on his person or in his presence), or must be accomplished by putting such person in fear of immediate injury to his person. Mason v. Commonwealth, 200 Va. 253 , 105 S.E.2d 149 (1958).

Where the owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from taking the property and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief's action constitutes robbery. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

In the commission of robbery, the property must be taken by force and violence, not necessarily from the owner, but from any person in possession thereof whose right of possession is superior to that of the robber. Johnson v. Commonwealth, 215 Va. 495 , 211 S.E.2d 71 (1975).

Violence or force requires a physical touching or violation of the victim's person; the touching or violation necessary to prove the offense may be indirect but cannot result merely from the force associated with the taking. Henderson v. Commonwealth, No. 3017-99-1, 2000 Va. App. LEXIS 809 (Ct. of Appeals Dec. 12, 2000).

In a case in which the Commonwealth appealed the Court of Appeals of Virginia's reversal of defendant's convictions for violating §§ 18.2-58 and 18.2-53.1 , the evidence was insufficient to support the circuit court's factual findings, to establish that a store department lead was intimidated, or to support the circuit court's judgment convicting defendant of robbery and use of a firearm in the commission of robbery. In the end, about all that the Commonwealth was left with was the robber's eye contact with the department lead and the latter's testimony that he stopped because there was a weapon involved and that gave him some concern. Commonwealth v. Anderson, 278 Va. 419 , 683 S.E.2d 536, 2009 Va. LEXIS 86 (2009).

Which must precede or be concomitant with taking. - The violence of putting in fear, to constitute the essential element in robbery, must precede, or be concomitant with, the taking of the property from the person or presence of the owner. No violence, no excitation of fear, resorted to merely for the purpose of retaining a possession already acquired, or to effect escape, will, in point of time, supply the element of force or intimidation, an essential ingredient of the offense. Mason v. Commonwealth, 200 Va. 253 , 105 S.E.2d 149 (1958).

The violence, in order to constitute an essential element of robbery, must precede or be concomitant with the appropriation of the property from the person or presence of the owner. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981).

Defendant is properly found guilty of robbery and use of a firearm in the commission of a robbery where, after the proprietor of a service station fills his tank with gasoline at his request, defendant intimidates the proprietor with a firearm. Use of the firearm subdues the proprietor's ability to resist and enables defendant to convert his custody of the gasoline into possession by carrying the goods away in violation of the condition of prompt payment, with the intent to steal. The use of force thus precedes the conversion and enables defendant to obtain possession. Pritchard v. Commonwealth, 225 Va. 559 , 303 S.E.2d 911 (1983).

To establish a robbery, the act of violence or intimidation employed must precede or be concomitant with the taking; if the violence or intimidation preceded or was concomitant with the taking, the offense of robbery is established, but if the taking was accomplished before the violence toward or intimidation of the victim, then it was not robbery. Gary v. Commonwealth, No. 1099-00-3, 2001 Va. App. LEXIS 202 (Ct. of Appeals Apr. 17, 2001).

The evidence was sufficient to establish a robbery where the defendant had taken a wallet from the victim's purse but had not yet left the premises when he was discovered by the victim and another person, at which time he pulled out a gun; it was logical and reasonable to infer that the defendant's intention changed from the commission of larceny to robbery when, in order to accomplish his original purpose, he used force to overcome the interference with his asportation of the property. Gary v. Commonwealth, No. 1099-00-3, 2001 Va. App. LEXIS 202 (Ct. of Appeals Apr. 17, 2001).

The violence used does not need to be great or cause any actual harm to the victim; tapping the victim on the shoulder and jerking her around is sufficient violence to support a robbery conviction even though the victim isn't knocked down. Henderson v. Commonwealth, No. 3017-99-1, 2000 Va. App. LEXIS 809 (Ct. of Appeals Dec. 12, 2000).

But violence for purposes of retaining possession does not suffice. - No violence or excitation of fear, resorted to merely for the purpose of retaining a possession already acquired, or to effect escape, will, in point of time, supply the element of force or intimidation, an essential element of robbery. Gary v. Commonwealth, No. 1099-00-3, 2001 Va. App. LEXIS 202 (Ct. of Appeals Apr. 17, 2001).

Timing. - For theft by violence or intimidation to constitute robbery, the intent to steal must exist at the time of the violence or intimidation. Shepperson v. Commonwealth, 19 Va. App. 586, 454 S.E.2d 5 (1995).

Such acts concurrent with larceny may indicate intent to commit robbery. - Where the putting in fear and violence of the owner were concurrent or concomitant with the larceny or attempt to commit larceny, those acts may indicate an intent to commit, or an attempt to commit, robbery. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

The fear of bodily harm must result from the words or conduct of the accused, rather than the temperamental timidity of the victim. Harris v. Commonwealth, 3 Va. App. 519, 351 S.E.2d 356 (1986).

But threats of violence are not indispensable. - Threats of violence or bodily harm are not an indispensable ingredient of intimidation. It is only necessary that the victim actually be put in fear of bodily harm by the willful conduct or words of the accused. Harris v. Commonwealth, 3 Va. App. 519, 351 S.E.2d 356 (1986).

Victim's fear is not judged by objective standard. - There is no requirement in Virginia that the "fear" induced by the defendant's intimidating words or conduct be judged by an objective standard of reasonableness. Harris v. Commonwealth, 3 Va. App. 519, 351 S.E.2d 356 (1986).

Robbery continues while violence and trespass continues. - Where the violence against the victim and the trespass to his property combine in a continuing, unbroken sequence of events, the robbery itself continues as well for the same period of time. Briley v. Commonwealth, 221 Va. 532 , 273 S.E.2d 48 (1980), cert. denied, 451 U.S. 1031, 101 S. Ct. 2022, 69 L. Ed. 2d 400 (1981).

Theft of property is a trespass upon the rights of the owner therein for as long as he is deprived of the use thereof; he retains legal possession of the goods stolen even when they are in the actual possession of the thief. Briley v. Commonwealth, 221 Va. 532 , 273 S.E.2d 48 (1980), cert. denied, 451 U.S. 1031, 101 S. Ct. 3022, 69 L. Ed. 2d 400 (1981).

But robbery includes the offense of larceny. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965).

Larceny, robbery distinguished. - If appellant killed victim intending to steal his property, the theft was robbery. If appellant killed victim only for a purpose unrelated to theft, and as an after thought decided to steal his property, the theft was larceny. Shepperson v. Commonwealth, 19 Va. App. 586, 454 S.E.2d 5 (1995).

Where the victim was violently flung around as defendant forcefully pulled the victim's purse from the victim's hands and arm, the conduct was sufficiently violent to support a burglary conviction rather than a larceny conviction. Taylor v. Commonwealth, No.0735-02-1, 2003 Va. App. LEXIS 117 (Ct. of Appeals Mar. 4, 2003).

Malicious wounding is not a lesser included offense of robbery. Walker v. Commonwealth, 14 Va. App. 203, 415 S.E.2d 446 (1992).

Brandishing not a lesser included offense. - Given that robbery did not require the use of a firearm, and brandishing did not require the taking of property, but required pointing or brandishing a firearm, it was clear that robbery could be committed without brandishing and brandishing could be committed without the taking of property. Morris v. Commonwealth, 45 Va. App. 181, 609 S.E.2d 92, 2005 Va. App. LEXIS 79 (2005).

The accused may be found guilty of larceny under an indictment for robbery. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965).

Assault not a lesser included offense. - Trial court did not err in refusing to give a jury instruction on assault during defendant's trial for attempted robbery because assault was not a lesser-included offense of robbery or attempted robbery; because assault contains an element that robbery does not, to wit, words alone cannot constitute assault, yet words alone can create sufficient intimidation to constitute robbery, assault cannot be a lesser-included offense of robbery. Adeniran v. Commonwealth, 63 Va. App. 617, 761 S.E.2d 782, 2014 Va. App. LEXIS 281 (2014).

And is liable to conviction as a criminal receiver. - The accused in an indictment for robbery is apprised of his liability to conviction as a criminal receiver. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965).

The robber must have a fraudulent intent, and must intend to deprive the owner permanently of his property. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

The felonious intent to steal, or the animus furandi, is as necessary to constitute robbery as it is to constitute larceny. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

Proof of intent to steal is necessary to a conviction of robbery. It is definitely an element of the crime. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

Where defendant possessed no intent to steal at the moment the shooting occurred, the evidence was insufficient as a matter of law to support his conviction of robbery. Branch v. Commonwealth, 225 Va. 91 , 300 S.E.2d 758 (1983).

"Intent to steal." - An intent to steal is an intent to feloniously deprive the owner permanently of his property. But "feloniously" in this connection simply means with criminal intent. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

Where defendant said, "Give me your wallet," victim thereupon handed his wallet to defendant, stating he had no money, and defendant looked in the wallet and, seeing that there was no money in it, threw it on the ground as he backed away, the court correctly refused the attempted robbery instruction. Through the use of force, defendant demanded and received the victim's wallet with the intent to deprive the victim permanently of his money. Brown v. Commonwealth, No. 1341-94-2 (Ct. of Appeals Nov. 21, 1995).

No evidence supported attempted robbery instruction because the record indisputably showed that defendant completed the crime. Through the use of force, defendant demanded and received victim's wallet with the intent to deprive him permanently of his money. His direct acts did not fall short of the accomplishment of the ultimate design. The fact that the wallet contained no money and was thereafter abandoned did not nullify defendant's intent to deprive victim of his money when he demanded and received the wallet. Brown v. Commonwealth, 24 Va. App. 292, 482 S.E.2d 75 (1997).

Trial court did not abuse its discretion in refusing defendant's proposed instruction defining "intent to steal" because the meaning of the intent to steal was common sense and self-explanatory, and the jurors were capable of understanding the plain meaning of "intent to steal" required proof that defendant intended to permanently deprive the victim of his belongings; the trial court also gave, inter alia, defendant's proffered instruction on duress, which was the theory of defendant's case. Mines v. Commonwealth,, 2014 Va. App. LEXIS 56 (Feb. 25, 2014).

Animus furandi is generally translated as "an intent to steal." Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

An intent to commit robbery does not have to exist for any particular length of time. It may occur momentarily. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

A custodian, holding the property of another upon condition of prompt payment in cash, has committed no larceny until he carries the goods away in violation of the condition, with requisite intent. If, before carrying the goods away, he uses violence or intimidation to avoid payment, that violence or intimidation precedes the taking. Custody is converted into possession by the exercise of force, and the offense is robbery. Pritchard v. Commonwealth, 225 Va. 559 , 303 S.E.2d 911 (1983).

Whether such an intent did exist is to be determined from the particular facts and circumstances of the acts committed. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

The jury may infer the felonious intent from the immediate asportation and conversion of the property, in the absence of satisfactory countervailing evidence by the prisoner. The whole question is one peculiarly for their consideration, to be determined upon all the facts and circumstances. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

The degree of asportation necessary to constitute a taking under the common-law definition of robbery need be only slight. Durham v. Commonwealth, 214 Va. 166 , 198 S.E.2d 603 (1973).

A "taking" in a robbery requires dominion or absolute control of the property and the absolute dominion must exist at some time, though it be only momentary. Brown v. Commonwealth, No. 2559-99-1, 2000 Va. App. LEXIS 810 (Ct. of Appeals Dec. 12, 2000).

Requirement of asportation for defendant's robbery conviction was satisfied by the undisputed evidence that the robbery victim put the money from the safe in a bag at defendant's command at gunpoint. El-Shabazz v. Commonwealth,, 2012 Va. App. LEXIS 99 (Apr. 3, 2012).

Possession. - The very fact that property is taken from a person by the use of firearms, violence or threatened violence is, within and of itself, sufficient to show that the person from whom it was taken was in possession thereof. Johnson v. Commonwealth, 215 Va. 495 , 211 S.E.2d 71 (1975).

Defendant cannot avoid a robbery conviction by developing a modus operandi of committing the crime by implicitly threatening or intimidating his victim while at the same time making explicit statements that, taken out of the context, belie his true intent. Braxton v. Commonwealth, 13 Va. App. 585, 414 S.E.2d 410 (1992).

Taking under claim of right is not robbery. - To take property under a bona fide claim of right, as under a claim of ownership, or in a bona fide attempt to enforce payment of a debt, is not robbery, though the taking be accompanied by violence or putting in fear. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

There can be no larceny of the property taken if it, in fact, is the property of the taker, or if he, in good faith, believes it is his, for there is lacking the criminal intent which is an essential element of larceny. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

Unless claim of right is a mere pretext. - If the claim of right is a mere pretext covering the intent to steal, the taking by violence is robbery. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

No need to prove ultimate ownership of property taken. - Because robbery is a crime against the person, the prosecution need not prove the ultimate ownership of the property taken but need only prove that the possessory rights of the victim were superior to those of the thief. As such, it is not "legally essential" to allege or identify the ultimate owner of the property taken. Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986).

It is not necessary that there be distinct proof of specific value. A description is sufficient to show some value. Pierce v. Commonwealth, 205 Va. 528 , 138 S.E.2d 28 (1964).

III. ILLUSTRATIVE CASES.
A. IN GENERAL.

Evidence showing elements of crime. - In a prosecution for robbery, the evidence showed that the accused struck a boy 16 years old and took from him a gun and mining lamp, and some frogs that the boy had caught; that he made the boy get into a car and drove off with him; and that the accused refused to halt when commanded to do so by officers of the law, but drove rapidly away and was caught only after a chase. The accused assigned as error the refusal of the trial court to set aside the verdict because the same was contrary to the law and the evidence and without evidence to support it. It was held that the evidence met every element of the crime of common-law robbery. Fleming v. Commonwealth, 170 Va. 636 , 196 S.E. 696 (1938).

Under the robbery statute the state's evidence must prove a defendant used violence or intimidation against a victim, as a necessary element to support a conviction. Winn v. Commonwealth, 21 Va. App. 179, 462 S.E.2d 911 (1995).

Indictment should set out form of violence employed. - A demurrer was sustained to an indictment for robbery, which only alleged that the accused made "an assault and in bodily fear feloniously did put and violently did take and steal," but did not set out the form of violence, whether it was by strangulation, or suffocation, of striking, or beating, etc., the court holding that it was necessary to state specifically the form of violence by which the robbery was committed. Commonwealth v. Stollings, 11 Va. L. Reg. 148 (1905).

Identification evidence. - Defendant's convictions for robbery and the felonious use of a firearm were appropriate because the evidence was sufficient where the victims identified defendant as the robber; both victims had ample opportunity to observe defendant; the victims were certain that they had identified defendant correctly; and the victims' identification testimony was corroborated by others who had observed defendant at the crime scenes. Griffin v. Commonwealth,, 2007 Va. App. LEXIS 504 (Nov. 7, 2007).

Witnesses' show-up identifications did not violate defendant's due process rights because they were not unconstitutionally suggestive; police officers separated the two witnesses to conduct separate show-up identifications, and both witnesses immediately identified defendant as the man that robbed them approximately twenty minutes earlier. Scott v. Commonwealth, 68 Va. App. 452, 809 S.E.2d 254, 2018 Va. App. LEXIS 15 (2018).

Prosecution for conspiracy to commit robbery barred where previous acquittal of underlying robbery. - Defendant's prosecution for conspiracy to commit robbery was barred under principles of double jeopardy where defendant had previously been acquitted of the underlying robbery. Ginanni v. Commonwealth, 13 Va. App. 1, 408 S.E.2d 767 (1991).

Robbery conviction properly used as predicate under federal act. - Because robbery in Virginia has as an element the use or threatened use of force, defendant's robbery convictions were properly used as predicates under the federal Armed Career Criminal Act. United States v. Presley, 52 F.3d 64 (4th Cir.), cert. denied, 516 U.S. 891, 116 S. Ct. 237, 133 L. Ed. 2d 165 (1995).

Offenses not substantially similar for purposes of § 19.2-297.1 . - Defendant's robbery, third or subsequent offense, conviction under § 18.2-58 and 19.2-297.1 was reversed as defendant's two prior robbery offenses in Maryland were not substantially similar for purposes of § 19.2-297.1 since in Virginia, there was a requirement that the intent to steal had to have existed before or at the time the force or violence was used; Maryland law, by contrast, did not require that the intent to steal precede or co-exist with the violence, and permitted a conviction for robbery even if the intent to steal was formed only after the force or violence, as an afterthought, as long as it occurred as part of the same general events and coexisted with the later taking. Dean v. Commonwealth, 61 Va. App. 209, 734 S.E.2d 673, 2012 Va. App. LEXIS 394 (2012).

Use of a pistol with a blocked barrel and which fired only blank cartridges was sufficient to sustain a charge of robbery with firearms. Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Separate sentences for robbery of employer's money from several employees not double jeopardy. - Where defendant pointed a gun at a restaurant employee and demanded that he turn over money in a cash register and he also threatened another employee and demanded that he turn over money from his pockets, although the money yielded by the two employees was the property of their employer, both employees were subjected to the threat of violence by the presenting of firearms as money was taken from each of them. Therefore, defendant committed the two robberies of which he was convicted; thus, the trial court's imposition of separate sentences for the robbery of each of the two employees did not punish defendant twice for the "same offense." Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

Conduct arguably constituted two criminal offenses. - Court of appeals declined to invoke the "ends of justice" exception to Va. Sup. Ct. R. 5A:18 to consider defendant's argument that he could not lawfully be convicted of both robbery and grand larceny from the person since they arose from a single act because defendant could not affirmatively prove that an element of the offense did not occur since it was unclear from the record whether the evidence adduced at trial established two distinct criminal acts or one, and defendant's conduct arguably constituted two criminal offenses; arguably, the instant defendant removed money from a register's drawer the crime of grand larceny from the person was complete, but when the cashier realized what defendant was doing, she tried to stop him, and because defendant was able to pry the money out of the cashier's grasp and flee the store, the second taking constituted a robbery as it was accomplished through force, violence or intimidation. Ali v. Commonwealth,, 2009 Va. App. LEXIS 500 (Nov. 10, 2009), aff'd in part, rev'd in part, 280 Va. 665 , 701 S.E.2d 64 (2010).

When an indictment charged that the defendant robbed a corporation the offense of robbery was sufficiently stated in the original indictment and amendment was unnecessary, though desirable, since it in effect charged that he committed robbery by putting the agents of the corporation in fear and taking its money from their personal protection and in their presence. Crawford v. Commonwealth, 217 Va. 595 , 231 S.E.2d 309 (1977).

Although indictment which charged that defendant "robbed Pizza Hut" came uncomfortably close to alleging that a store was robbed, a charge which the Virginia Supreme Court implied might be defective, because the indictment named the entity and because § 1-13.19 [see now § 1-230 ] broadly defines "person," the offense of robbery was sufficiently stated. Waters v. Commonwealth, 29 Va. App. 133, 510 S.E.2d 262 (1999).

Indictment held sufficient. - See Smyth v. White, 195 Va. 169 , 77 S.E.2d 454 (1953); Pettus v. Peyton, 207 Va. 906 , 153 S.E.2d 278 (1967).

Where no objection to the form of the indictment was made in the trial court, and any evidence in the record that defendant or his counsel were under any misapprehension as to the fact that defendant had been indicted for robbery, an indictment charging "robbery" with no mention of force is not faulty. Hunt v. Haga, 368 F. Supp. 527 (W.D. Va. 1973).

Use of victim's bank card. - Where defendant and abduction victim drove to money machine and in victim's presence using her bank card, he was able to get 50 dollars and victim testified that she permitted him to get the money because she thought he would physically hurt her, there was sufficient evidence to support robbery conviction. When one takes cash from the presence of a person whose right to possession is superior to that of the thief, the robbery is complete. Clay v. Commonwealth, 13 Va. App. 617, 414 S.E.2d 432 (1992).

Conviction of both robbery and murder. - The clear conclusion of the trial court, sitting without a jury, that defendant was a principal in the second degree to a willful, deliberate and premeditated killing provided an independent statutory basis for his first-degree murder conviction, apart from any association with or relation to the crime of robbery out of which course of action the killing arose, and defendant could be convicted of both murder and robbery. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

Because defendant admitted to being at the victim's residence, because glitter similar to that worn by defendant was found on the victim, because defendant's driver testified that defendant was taken to the victim's residence and left an hour later with the victim's property, and because the victim's property was later discovered in defendant's home and purse, defendant was properly found to have assisted her husband in the victim's death and shared the requisite criminal intent; accordingly, the evidence was sufficient to convict defendant of second-degree murder and robbery under §§ 18.2-32 and 18.2-58 . McLean v. Commonwealth,, 2008 Va. App. LEXIS 449 (Oct. 7, 2008).

Conviction of both robbery and abduction. - Making victims get out of their car and onto ground during robbery and attempted robbery constituted the separate crime of abduction. Taylor v. Commonwealth, No. 0995-94-1 (Ct. of Appeals May 23, 1995).

Evidence of death of defendant's accomplice properly admitted. - Where defendant was charged with committing a home invasion robbery and a carjacking with the aid of an accomplice, the trial court did not abuse its discretion in admitting evidence of the killing of his accomplice in another robbery attempt shortly thereafter, as this evidence was highly probative of defendant's identity as one of the perpetrators of the charged offenses, which he challenged throughout his trial. Layug v. Commonwealth,, 2007 Va. App. LEXIS 369 (Oct. 2, 2007).

Proof of overt act for attempted robbery. - Evidence was sufficient to show that defendant committed an overt act for purposes of attempted robbery where: (1) defendant and his co-defendant talked about robbing a bank the day before; (2) defendant drove to a remote location in town; (3) the two pulled bandanas over their faces outside the bank; (4) defendant carried a knapsack with his hand inside, and the two men walked toward the entrance to the bank; and (5) when they made eye contact with the witness, they pulled down the masks, but continued walking toward the entrance to the bank, where they paused at the entrance, but at the last minute, aborted their plan and walked away. Williams v. Commonwealth, No. 0641-03-1, 2004 Va. App. LEXIS 154 (Ct. of Appeals Apr. 6, 2004).

In an attempted robbery prosecution, where defendant and his companions intended to rob "some people" in a house, demanded money from the persons they found in the house, and shot a killed a man who later entered, the evidence had been insufficient to convict defendant of attempting to rob this man, as the evidence showed he never formed an intent to rob him, and that he and companions took no action toward realizing the ultimate purpose of robbing him. Lewis v. Commonwealth, 43 Va. App. 126, 596 S.E.2d 542, 2004 Va. App. LEXIS 252 (2004).

B. SUFFICIENCY OF EVIDENCE.

Evidence of violence sufficient. - The evidence was sufficient to establish beyond a reasonable doubt the violence requisite to a robbery conviction where the defendant ran toward the victim, lowered his right shoulder and swung it forward in a football-blocking-type motion and appeared to prepare to strike the victim before the contact occurred and where, after being hit, the victim fell to the ground as the defendant ran away with her purse; the violence was directed at the victim and did not result merely from the force associated with the taking. Henderson v. Commonwealth, No. 3017-99-1, 2000 Va. App. LEXIS 809 (Ct. of Appeals Dec. 12, 2000).

There was sufficient evidence to support defendant's robbery convictions, including evidence that defendant's actions were all indicative of a person who knew what was going to happen and a person who knew how to exit with the primary actor in the robbery in a quick manner and to make a quick escape from each of the two locations. The similarities between the two robberies - committed just hours apart - showed a pattern and a modus operandi indicative of defendant's active participation. Winfield v. Commonwealth, No. 0626-20-2, 2021 Va. App. LEXIS 23 (Feb. 16, 2021).

Evidence of asportation sufficient. - The requisite asportation occurred when a defendant concealed merchandise inside his coat and that asportation continued through his struggle with the store manager. The evidence established that the defendant exercised absolute control over the merchandise as he walked away and during the struggle and the fact that the defendant was prevented from leaving the store did not mean that there had been no taking. Brown v. Commonwealth, No. 2559-99-1, 2000 Va. App. LEXIS 810 (Ct. of Appeals Dec. 12, 2000).

Evidence held sufficient to support conviction for armed robbery. Lewis v. Commonwealth, 193 Va. 612 , 70 S.E.2d 293 (1952).

Testimony offered by two victims was not inherently incredible, and the trial court did not err in finding the evidence sufficient to support defendant's convictions for robbery, § 18.2-58 , and using a firearm in the commission of a felony, § 18.2-53.1 . Both victims described defendant as having played an active role in the robbery, and nothing in the record rendered their testimony inherently incredible. Winckler v. Commonwealth,, 2007 Va. App. LEXIS 73 (Mar. 6, 2007).

Evidence sufficient to support a conviction of attempted robbery. - See Johnson v. Commonwealth, 209 Va. 291 , 163 S.E.2d 570 (1968).

Evidence supported conviction for attempted robbery where defendant told bank teller he wanted to make a withdrawal, he failed to respond in an appropriate manner after she queried him to determine if he sought to make an ordinary lawful withdrawal, thus, making it obvious to teller that he did not desire to make a lawful transaction, when she suggested the lawful way of making a withdrawal, he advised her that she did not understand, apparently referring to some other manner by which he wished to make his withdrawal, his repeated assurance to her that he would not hurt her implied that he had the capability to do so, and he held his hand in his pocket, conduct that frightened teller and further caused her to believe she was about to be robbed. In light of all of the circumstances, a reasonable person in her position would have reacted as she did and would have believed that defendant intended for her to believe she was in danger if she did not turn over money to him. Braxton v. Commonwealth, 13 Va. App. 585, 414 S.E.2d 410 (1992).

The defendant's statement that he was going to shoot the victim and take his money was sufficient to prove beyond a reasonable doubt that he intended to rob the victim. Furthermore, the defendant committed numerous overt acts in furtherance of the robbery by placing his hand in his pocket in a manner that caused the victim to believe that he had a gun, following the victim into the store and stating that he did not "want anybody to get hurt," and attempting to enter the taxi after leaving the store. Accordingly, the evidence was sufficient to sustain the defendant's conviction for attempted robbery. Chrisman v. Commonwealth, No. 1724-95-3 (Ct. of Appeals April 30, 1996).

Evidence was sufficient to support defendant's attempted robbery conviction, in violation of §§ 18.2-58 and 18.2-25 , when the victims testified that defendant said he would "take your stuff," did not appear to be joking, and, when they ran from him, lifted his shirt and displayed a firearm, as this showed defendant intended to take, with intent to steal, the personal property of another, from his person or in his presence, against his will, by violence or intimidation, and engaged in a direct, ineffectual, act towards its commission. Jones v. Commonwealth, No. 1730-03-1, 2004 Va. App. LEXIS 300 (Ct. of Appeals June 29, 2004).

Victim's testimony that defendant pointed a gun at the victim and told the victim to give defendant what the victim had in the victim's pocket provided sufficient evidence to support defendant's conviction for attempted robbery. Totten v. Commonwealth,, 2006 Va. App. LEXIS 178 (May 9, 2006).

Fact that defendant told an on-duty undercover officer that defendant would take the officer's money and defendant's brisk walk back toward the officer supported defendant's conviction for attempted robbery under § 18.5-57. Jordan v. Commonwealth, No. 1155-06-1, 2007 Va. App. LEXIS 259 (Ct. of Appeals June 26, 2007).

In a case in which the only issue before the appellate court was whether there was sufficient evidence to support defendant's conviction for attempted robbery, while he testified that he played no role in the robbery, the jury disbelieved his testimony. Thus, the evidence viewed in the light most favorable to the Commonwealth proved that defendant intended to steal personal property from the victim, against his will, by force, violence, or intimidation and committed a direct, but ineffectual, act to accomplish the crime. Drew v. Commonwealth,, 2009 Va. App. LEXIS 415 (Sept. 22, 2009).

Evidence was sufficient to convict defendant of attempted robbery, because the trial court, as fact finder, could reasonably have concluded that defendant's and his accomplices' act of placing their hands in the victim's pockets after brutally beating him was not simply "an incidental, probable consequence" of the attack. Smith v. Commonwealth, No. 1266-12-1, 2013 Va. App. LEXIS 383 (Dec. 17, 2013).

Evidence was sufficient to support the trial court's conclusion that defendant committed a direct act calculated to accomplish the robbery, and therefore his conviction for attempted robbery was affirmed, where defendant expressly informed the victim of his intention to rob the store, he entered the store twice, and the police arrived as he was leaning behind the ice machine where his machete was hidden. Reaux-King v. Commonwealth, No. 0734-14-2, 2015 Va. App. LEXIS 142 (Apr. 28, 2015).

Evidence was sufficient to support defendant's convictions for attempted robbery, use of a firearm in the commission of an attempted robbery, and possession of a firearm by a violent convicted felon, as it showed that defendant pointed a gun at the victim and chased the victim in an attempt to get the victim to go back to his house so defendant could rob him. Howard v. Commonwealth, No. 1621-14-2, 2015 Va. App. LEXIS 220 (July 21, 2015).

Evidence was sufficient to find that defendant was involved in a home invasion, which led to convictions for armed burglary, attempted robbery, and wearing a mask in public because, about 40 minutes after the victim fired two shots at intruders, defendant and codefendant arrived with gunshot wounds at a hospital located about 40 minutes' away; both men claimed that they were together at a house party when they were shot, but they could not provide details to police to confirm their story; cell phone records suggested that both men were near the victims' residence when the home invasion occurred; and codefendant was shot with the same kind of unusual ammunition that the victim used during the home invasion. Chantz v. Commonwealth, No. 0113-16-3, 2017 Va. App. LEXIS 44 (Ct. of Appeals Feb. 21, 2017).

Sufficient evidence of robbery. - The taking of the money and the taking of the cab, under the circumstances shown by the evidence in the instant case, constituted two distinct offenses, i.e., a robbery of money and an "unauthorized use" of an automobile. Comer v. Commonwealth, 211 Va. 246 , 176 S.E.2d 432 (1970).

Under circumstances in which the trier of fact could reasonably infer that the money was actually taken and that defendant was at least an aider and abettor to the taking, defendant could be convicted of robbery. Hunt v. Haga, 368 F. Supp. 527 (W.D. Va. 1973).

Evidence supported robbery conviction where defendant threatened sheriff deputy's life while brandishing an object which appeared to be a weapon, and as a result, the deputy was fearful and surrendered the vehicle to defendant who then escaped with both the automobile and the deputy's pistol, apparently taken by defendant while the deputy was in extremity. Jones v. Commonwealth, 13 Va. App. 566, 414 S.E.2d 193 (1992).

Evidence supported robbery conviction where after defendant got possession of the purse in the hotel room, he fled from the room, chased by the victim, and defendant pushed victim six to eight feet against the hood of her automobile after the purse fell to the ground in the parking lot and defendant then got away with the purse. Broady v. Commonwealth, 16 Va. App. 281, 429 S.E.2d 468 (1993).

In view of the testimony that the victim was on the ground, that he "just felt the guy on me," observer's testimony that the defendant was "over top of" the victim, and that his cousin "tackled" the defendant in order to get him "from on top of" the victim, the evidence was sufficient for the fact finder to infer that observer and his cousin subdued the defendant and held him until the officers arrived because the defendant was robbing the victim. Branch v. Commonwealth, No. 1408-96-1 (Ct. of Appeals July 8, 1997).

The evidence was sufficient to support the defendant's conviction where the victim, his estranged girlfriend, testified that when she would not go with the defendant, he snatched her purse and fled; although the victim suffered from memory loss, paranoia, and bi-polar disorder due to an earlier car crash, her testimony to the relevant events did not seem inherently incredible. Whitby v. Commonwealth, No. 1343-99-1, 2000 Va. App. LEXIS 551 (Ct. of Appeals July 25, 2000).

The evidence was sufficient to support the defendant's conviction for robbery where one of the other participants in the crime identified the defendant and a third party as the men who were with him. Kingsberry v. Commonwealth, No. 0142-99-1, 2000 Va. App. LEXIS 622 (Ct. of Appeals Aug. 22, 2000).

The evidence was sufficient to support the defendant's conviction for robbery of motel where he had been staying, where it was established that the defendant had obtained access to the office where the cash box was kept under false pretenses, that he had savagely beaten the elderly manager who had the keys to the cash box into unconsciousness, that when the police arrived and the manager regained consciousness, the money and the defendant were gone, and that the defendant had obtained a ride to North Carolina immediately following the incident but had taken no luggage or personal possessions with him. Watson v. Commonwealth, No. 0494-00-1, 2001 Va. App. LEXIS 219 (Ct. of Appeals Apr. 24, 2001).

Testimony from the victim that identified defendant and provided that defendant threatened the victim with a knife, demanded money from him, and stabbed him in the back was sufficient to support the convictions for robbery. Muhammad v. Commonwealth, No. 1300-01-2, 2002 Va. App. LEXIS 731 (Ct. of Appeals Dec. 10, 2002).

Where defendant did not preserve an insufficiency claim and the record did not "affirmatively prove" that defendant did not commit the offenses of robbery, use of a firearm in the robbery, and wearing a mask in public, in violation of §§ 18.2-58 , 18.2-53.1 , and 18.2-422 , the Va. Sup. Ct. R. 5A:18 "ends of justice" exception did not apply because no manifest injustice occurred. Young v. Commonwealth, No. 0363-03-1, 2003 Va. App. LEXIS 588 (Ct. of Appeals Nov. 12, 2003).

Evidence sufficient to support two convictions of robbery against two separate victims, where each victim had constructive possession of the property taken in their presence, and defendant subjected each victim to intimidation in taking the same; in other words, the stolen property did not have to be taken separately from each victim. Barksdale v. Commonwealth, No. 3028-03-2, 2005 Va. App. LEXIS 132 (Ct. of Appeals Mar. 29, 2005).

Evidence was sufficient to support defendant's robbery conviction, as it was reasonable for the trial court to have found defendant was referring to the victim's cell phone during a conversation with an investigator and defendant's mother confirmed that it was defendant calling the mother from the victim's cell phone number; in addition, the conviction was not solely based on defendant's possession of the victim's cell phone, but was also based on the victim's description of the assailant. Harris v. Commonwealth,, 2007 Va. App. LEXIS 121 (Mar. 27, 2007).

Where a pizza delivery man was robbed of money, his cell phone, and a pizza at the house where he went to deliver the pizza, evidence that: (1) an officer recovered the phone from defendant's person; (2) pizza boxes found in the house had defendant's fingerprints on them; and (3) defendant confessed, was sufficient to convict him of robbery. McCray v. Commonwealth,, 2008 Va. App. LEXIS 38 (Jan. 22, 2008).

Considering the totality of the circumstances, including the victim's observation of defendant before the robbery for thirty minutes from twenty feet away, the victim's observation of defendant during the robbery for five to eight minutes, and defendant's return to the scene to demand the victim's cell phone, together with the victim's description of defendant to officers within minutes of the robbery, the evidence was sufficient to prove defendant committed the robbery, in violation of § 18.2-58 . Shelton v. Commonwealth,, 2008 Va. App. LEXIS 28 (Jan. 15, 2008).

Since all three robbery victims, who each were able to get a good look at the robber, picked defendant out of the same photo lineup, the evidence was sufficient to convict the defendant, even without considering the defendant's incriminating statements. Taylor v. Commonwealth, 52 Va. App. 388, 663 S.E.2d 536, 2008 Va. App. LEXIS 330 (2008).

Evidence was sufficient to support defendant's convictions for robbery, shooting within an occupied dwelling, using a firearm in the commission of a felony, armed burglary, and malicious wounding, because ample evidence supported a finding that defendant was a perpetrator in a home invasion: three of the victims identified defendant at trial, and a co-defendant testified that defendant said he intended to rob the home, that he entered the home wearing a bullet-proof vest and armed with a handgun, and that he later told the co-defendant that he had struck one of the victim's in the head. Trial court did not abuse discretion in ruling on misidentification of accomplices by witnesses. Streater v. Commonwealth,, 2009 Va. App. LEXIS 504 (Nov. 10, 2009).

Defendant's robbery conviction in violation of § 18.2-58 was appropriate because the evidence was sufficient. The victim testified that, upon walking outside of an apartment complex, he was hit in the face and knocked down; he further testified that every time he got up, he was knocked down again and that everything was taken out of his pocket, which included a cell phone, keys, and money. Young v. Commonwealth,, 2010 Va. App. LEXIS 164 (Apr. 27, 2010).

Appellant's convictions for two counts of robbery, one count of statutory burglary, and three counts of use of a firearm in the commission of the felonies were affirmed because it was reasonable for the fact finder to conclude the intruder knew the victims' habits and DNA evidence indicated at some point in time, appellant had touched the BB gun. Swinson v. Commonwealth,, 2010 Va. App. LEXIS 311 (Aug. 3, 2010).

Evidence defendant repeatedly entered the store robbed wearing gang colors, a witness observed guns in the van used to get to and from the store, defendant drove van used to and from the store, and defendant was present when the person who robbed the store came running out with the register drawer and defendant drove the van away supported defendant's convictions for robbery and use of a firearm during the robbery. Lebron v. Commonwealth, 58 Va. App. 540, 712 S.E.2d 15, 2011 Va. App. LEXIS 238 (2011).

There was sufficient evidence to support defendant's conviction for robbery, including testimony that defendant repeatedly entered the store that day of the robbery; told another he needed to "man up," meaning he needed to commit the robbery; and was in the get away van when the individual committing the robbery came running out with the register drawer. Salcedo v. Commonwealth, 58 Va. App. 525, 712 S.E.2d 8, 2011 Va. App. LEXIS 239 (2011).

Conviction for robbery under § 18.2-58 was supported by defendant's statements, including "damn right I'm going to take it. I'm going to take it all," and defendant's continued use of violence after the victim offered his property to defendant, indicating an intent to permanently deprive the victim of the property through the ongoing use of violence. Carlstrom v. Commonwealth,, 2011 Va. App. LEXIS 335 (Nov. 8, 2011).

In a prosecution on a charge of robbery, the items taken from the victim's purse located in another room of the trailer where the victim was held were close enough to the victim and sufficiently under her control that, had she not been subjected to violence and intimidation by the intruders, she could have tried to prevent the taking of her personal items. Because the victim was in the residence during the acts of violence and the taking of the property, her property was taken from her presence. Oliver v. Commonwealth,, 2012 Va. App. LEXIS 71 (Mar. 13, 2012).

Conviction for robbery was supported by sufficient evidence, where the record contained ample evidence demonstrating that defendant took marijuana from a victim's car on the day of the shooting, including testimony that the victim weighed out one ounce of marijuana in the car but police recovered less than two-tenths of an ounce and defendant admitted he took a pill bottle containing marijuana. Person v. Commonwealth,, 2012 Va. App. LEXIS 187 (June 5, 2012).

Although no witness was able to identify defendant by facial recognition, as the robber was wearing a mask during the robbery, there was sufficient evidence to convict defendant of robbery where the surveillance camera photographs showed the robber wearing a dark, hooded jacket or sweatshirt of some type, with a tag or label on the lower left front side, as well as distinctively marked gloves, the store owner testified that defendant's height was about the same as the height of the robber and the robber was African-American, as was defendant, a police officer later encountered defendant wearing a dark jacket, zipped up, with a knit cap on his head and the hood of his jacket pulled over his head, with a tag or label on the lower left front side, and the officer discovered a pair of gloves and a handgun lying on the ground in a haphazard fashion, as if someone had quickly or carelessly tossed them there, defendant's DNA profile was consistent with that found on the gloves, and the gloves had the same color and distinctive markings as the gloves worn by the robber. Spence v. Commonwealth, 60 Va. App. 355, 727 S.E.2d 786, 2012 Va. App. LEXIS 221 (2012).

Evidence was sufficient to convict defendant of robbery in violation of § 18.2-58 , because 15 minutes after the crime, he was found 17 blocks away from the crime scene, in a sedan matching the victim's description of the car that had passed him just before the robbery, and guns that matched the victim's decription of those used by the robbers were found in or on the ground near the car. Berry v. Commonwealth,, 2012 Va. App. LEXIS 385 (Nov. 27, 2012).

Trial court properly convicted defendant of robbery and using a firearm in the commission of a felony and denied his motion to strike the victim's testimony as unbelievable because the her testimony matched what she reported to the police officers on the morning of the incident, she unequivocally identified defendant as the man who robbed her, and the gun used during the robbery and the victim's cell phone were found at defendant's house. Williams v. Commonwealth, No. 0445-16-1, 2017 Va. App. LEXIS 163 (July 11, 2017).

Evidence was sufficient to convict defendant of robbery as the victim's phone was taken from his presence through the use of force, threat, or intimidation because the victim interposed himself between the carjacker or carjackers and his property that was in the car, including his keys and cell phone, and resisted the efforts to overcome him, but was subject to an assailant's use of violent force; no one else could have accessed the interior of the victim's car in the interval between the attempted carjacking and the victim's return to the car, as the car was locked; the phone was no longer in the car when the victim returned; and it was recovered shortly thereafter from a suspect. Heard v. Commonwealth, No. 1576-16-1, 2018 Va. App. LEXIS 14 (2018).

Trial court properly ruled that there was sufficient evidence of violence or intimidation to sustain defendant's conviction for robbery because, while the victim's statements on both direct examination and on cross-examination could be interpreted in various ways or given varying amounts of weight based on her demeanor, mannerisms, and other factors not discernible from the written record, the victim's testimony that she "jerked down" or "dropped her arm" when the thief grabbed her arm and pocketbook supported the Commonwealth's argument that a reasonable fact finder could infer that the victim resisted the thief's effort to take her purse. Le'Dre Pritchett v. Commonwealth, No. 0419-18-3, 2019 Va. App. LEXIS 61 (Mar. 19, 2019).

Evidence held insufficient. - The Commonwealth's circumstantial evidence did not exclude the hypothesis that defendant may have handled the bottle for an innocent purpose before the robbery. At best, the Commonwealth's case only proved that defendant once handled the bottle. The print evidence did not show when defendant handled the bottle or that he handled it at the scene of the crime. Moreover, defendant's prints were found on the handle and body of the half-gallon bottle, a location not inconsistent with someone holding the bottle to pour from it. Other than the fingerprints on the bottle, there was no evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. Accordingly, under the circumstances of this case, the evidence was insufficient to support the conviction. Granger v. Commonwealth, 20 Va. App. 576, 459 S.E.2d 106 (1995).

Upon defendant's sufficiency challenge, because the Commonwealth had the burden to prove beyond a reasonable doubt that defendant committed the crime of attempted robbery and it failed to do so, as one would have to resort to speculation and conjecture in order to find that he was attempting to rob as opposed to attempting to obtain money by false pretenses, an attempted robbery conviction could not stand; moreover, given reversal of the attempted robbery conviction, defendant's conviction for attempted use of a firearm during the commission of attempted robbery also had to be reversed. Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008).

Evidence was insufficient to support defendant's robbery conviction, where the robbery arose during the attack on the victim, the attack was not initiated with the purpose of robbing the victim, and no evidence was presented linking defendant, any even any other man involved in the assault, with the taking of the victim's laptop. Abdullah v. Commonwealth, 53 Va. App. 750, 675 S.E.2d 215, 2009 Va. App. LEXIS 169 (2009).

Evidence was insufficient to convict defendant of attempted robbery of a particular person in violation of § 18.2-58 because defendant placed a gun to the victim's neck and told the victim to keep ringing the bell for entry to his place of employment, which showed an intent to gain access to the building, but it did not show an intent to deprive the victim of his property. DeSilva v. Commonwealth, No. 2796-08-2, 2009 Va. App. LEXIS 482 (Ct. of Appeals Oct. 27, 2009).

DNA evidence was insufficient to prove defendant was the person who perpetrated the robbery since the DNA was from multiple people, and there was no evidence establishing whether defendant's DNA was deposited on the items at the time of the robbery; defendant's conviction was plainly wrong because a reasonable factfinder could not have concluded beyond a reasonable doubt that he was guilty of the crime without resorting to sheer speculation outside the evidence presented by the Commonwealth. Jennings v. Commonwealth, 67 Va. App. 620, 798 S.E.2d 828 (2017).

Sufficient evidence to support conviction. - There was sufficient evidence to support the conviction for robbery in violation of § 18.2-58 because appellant's larceny became a robbery when the victim and another individual confronted appellant, demanded return of the cell phone, and appellant reached into his waistband and pulled out a "flat, black object." Williams v. Commonwealth, 278 Va. 633 , 685 S.E.2d 178, 2009 Va. LEXIS 109 (2009).

Evidence was sufficient to convict defendant as an accomplice to a robbery because, knowing that his friend needed money to support his girlfriend, he discussed a robbery with the friend, drove the friend to obtain a gun, approved an intended victim, and drove the friend from the robbery scene. Battin v. Commonwealth,, 2010 Va. App. LEXIS 116 (Mar. 30, 2010).

Defendant's convictions for robbery, abduction, and malicious wounding, were proper because the fact that he was not wearing a white coat did not negate a detective's reasonable suspicion that defendant was somehow involved in criminal activity. The trial court accepted the explanation that defendant had abandoned his coat as he fled. Diaz v. Commonwealth,, 2010 Va. App. LEXIS 417 (Oct. 26, 2010).

Trial court did not err in finding that the evidence proved beyond a reasonable doubt that defendant acted as a principal in the second degree to use of a firearm in the commission of a robbery as the evidence showed that defendant aided in the commission of and shared the main actor's intent to rob a clothing retail store during normal business hours, where he was likely to encounter both store employees and customers. The evidence showed that defendant transported the main actor to and from the immediate area where he committed the robbery and abduction; that defendant remained in her SUV at a nearby apartment complex, where neither she nor the main actor lived, when the main actor departed the vehicle to commit the robbery; that she tried to assist him in eluding police, and that she tried to provide him with an alibi when questioned about the offenses, and that she gave false and contradictory statements to officers when questioned about her part in the robbery. Wade v. Commonwealth, No. 2115-11-2,, 2012 Va. App. LEXIS 161 (Ct. of Appeals May 15, 2012).

Evidence was sufficient to convict defendant of robbery, because from evidence that intruders entered an apartment for the purpose of committing robbery and departed with a bag full of items of value, the jury could reasonably have concluded that the "something" an intruder removed from a victim's pocket possessed some inherent value. Jackson v. Commonwealth,, 2012 Va. App. LEXIS 224 (July 10, 2012).

Defendant's confession and the corroborating DNA evidence was sufficient to support defendant's convictions for murder, rape, statutory burglary, and robbery. Farmer v. Commonwealth, 61 Va. App. 402, 737 S.E.2d 32, 2013 Va. App. LEXIS 34 (2013).

Evidence supported defendant's conviction because, after defendant completed work on the victim's residential drive, defendant demanded more than the agreed amount of money and threatened harm to the victim with a shovel if the victim did not pay. The victim, who was elderly and lived alone, drove to a bank to obtain the money and allowed defendant to take the money because the victim's will was overborne as the victim was still intimidated and fearful that defendant would hurt the victim if the victim did not comply with defendant's demand. Small v. Commonwealth, No. 1722-15-1, 2016 Va. App. LEXIS 346 (Ct. of Appeals Dec. 13, 2016).

Evidence was sufficient to convict defendant of robbery because defendant had discussed committing a robbery with his companions and then specifically told the driver to follow the victim; the victim was forced out of his vehicle by defendant while his companions stole items from the vehicle; the victim was shot while property was being taken from him and after an intent to rob him had been formed by defendant; and it was reasonable for the jury to conclude that the distinctive duct tape was located within the victim's vehicle and that it was taken from the victim as it matched the duct tape that was used to repair the vehicle's molding. Smith v. Commonwealth,, 2017 Va. App. LEXIS 330 (Dec. 19, 2017).

Evidence was sufficient to convict defendant of two counts of robbery as the reasonable inferences supported the finding that defendant had the intent to steal the jewelry and cell phone prior to or during the killings because he took the victims' chains and the phone during the course of the murders; the evidence permitted the rational inference that he shot the victims almost immediately after he entered the car the victims were in and left the car shortly after he shot the victims; the trial court could have properly inferred that defendant had dual motives in committing the violence, in that he desired to both kill the victims and steal their possessions; and defendant did not discard the stolen goods. Keith v. Commonwealth, No. 1921-19-3, 2020 Va. App. LEXIS 282 (Nov. 17, 2020).

Evidence supported conviction of robbery and use of a firearm in commission of robbery where there was positive identification testimony by witness and two other employees, who were in close proximity to defendant during robbery, who testified that the defendant was the armed robber who entered store alone, threatened them, and left with money, and where defendant was also identified by his accomplice as person who entered store and committed crime. Lewis v. Commonwealth, 7 Va. App. 596, 376 S.E.2d 295 (1989).

Evidence sufficient to support two counts of robbery. - Appropriate unit of prosecution was determined by the number of persons from whose possession property was taken separately by force or intimidation. Because the clerk and the supervisor were both custodians of the hotel's money, and therefore, had joint constructive possession of the money in the cash register, the evidence was clear that, although the supervisor did not actually turn over the money to defendant, by pointing his gun at her, defendant insured that the supervisor would make no effort to stop him from taking the property that was in her constructive possession; therefore, because defendant intimidated each employee and obtained the money through the agency of that intimidation, the evidence was sufficient to prove that he committed two counts of robbery in violation of § 18.2-58 . Crichlow v. Commonwealth,, 2009 Va. App. LEXIS 564 (Dec. 15, 2009).

Evidence of taking by violence or intimidation. - Where, viewed in the light most favorable to the Commonwealth, the evidence disclosed that appellant "stalked" victim for a considerable period before taking the van, lingered near her while she loaded her groceries, entered her vehicle, and twice ordered her to get inside the van, and victim testified that she feared bodily harm, even death before the appellant "gunned" the van's motor and drove away, the totality of appellant's words and willful conduct were sufficient to support a rational finder of fact's conclusion that appellant robbed victim of personal property from her presence and possession, against her will, by intimidation. Jackson v. Commonwealth, 19 Va. App. 557, 453 S.E.2d 567 (1995).

The evidence supports a finding that the taking was effected through the use of violence or intimidation. From the evidence of the beating of the handcuffed victim, and the use of pliers to remove the gold crown from Bonner's mouth, the fact finder could have found beyond a reasonable doubt that the beating and the theft of the crown were "interdependent objects of a common criminal design" to obtain something of monetary value from the victim. Thus, the violence and intimidation, through both the beating and the forceful extraction of the gold crown, preceded or was concomitant with the taking. Therefore, the evidence was sufficient to prove beyond a reasonable doubt that the defendant committed the robbery. Perry v. Commonwealth, No. 0237-95-2 (Ct. of Appeals July 9, 1996).

Required element of violence was sufficiently close in time and effect to be concomitant with defendant's taking, where defendant struck victim within two or three seconds after her purse was removed from her shoulder and while she was trying to resist the taking. Stanley v. Commonwealth, No. 1902-98-2 (Ct. of Appeals Dec. 28, 1999).

Evidence was sufficient to support defendant's robbery conviction in a case where he attacked the victim from behind in a wooded area, and raped and sodomized before taking money from her; although defendant claimed that nothing he did intimidated the victim into giving defendant money, the violence he engaged in immediately preceding the demand for money, the rape and sodomy, was sufficient to convert mere thievery into robbery. Anderson v. Commonwealth, 48 Va. App. 704, 634 S.E.2d 372, 2006 Va. App. LEXIS 414 (2006), aff'd, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (Va. 2007).

Evidence was sufficient to support defendant's conviction for robbery, as the Commonwealth introduced evidence showing that defendant entered the store where the store clerk was working and demanded money in a forceful manner. The trial court was entitled to conclude that the store clerk was put in fear of incurring serious bodily harm based on the store clerk's testimony that defendant held a screwdriver in defendant's hand and that the store clerk was frightened as a result. Thomas v. Commonwealth, No. 1206-06-2, 2006 Va. App. LEXIS 605 (Dec. 20, 2006).

Defendant was properly convicted, as a principal in the second degree, of two counts of abduction, three counts of robbery, and five counts of use of firearm in commission of a felony because, while defendant remained in the "get away" vehicle, a cook and a waitress were grabbed and forced into an office and three employees, two assistant managers and a waitress were each subjected to violence and intimidation to accomplish the goal of obtaining the money from a safe. Harper v. Commonwealth, No. 0319-16-1, 2016 Va. App. LEXIS 328 (Ct. of Appeals Dec. 6, 2016).

Insufficient evidence of violence or intimidation. - Defendant's conviction for robbery was unfounded because no violence or intimidation was directed at the alleged victim to accomplish the taking. The alleged victim's subjective fear induced by a co-conspirator's actions did not facilitate the taking, but merely resulted from the taking; no force or intimidation was directed at the alleged victim's person. Anderson v. Commonwealth, 52 Va. App. 501, 664 S.E.2d 514, 2008 Va. App. LEXIS 377 (2008), aff'd, 278 Va. 419 , 683 S.E.2d 536, 2009 Va. LEXIS 86 (Va. 2009).

Sufficient evidence of a taking. - The fact that the appellant did not specify money or drugs when demanding the victim empty his pockets does nothing to alter the fact that defendant exercised dominion and control over the money when at the defendant's command the victim retrieved the money and dropped it. When the victim took the money from his pocket and dropped it, he no longer exercised control over the money and merely acted on the defendant's behalf. Accordingly, the defendant constructively possessed the money as soon as the victim complied with the defendant's order. Therefore, the evidence was sufficient to sustain the trial court's finding that a taking occurred and that the defendant had the intent to deprive the victim of his property. Spencer v. Commonwealth, No. 2074-95-3 (Ct. of Appeals Nov. 26, 1996).

Where a victim was detained in a bedroom while her property was stolen from the living room, as she was in the residence during the acts of violence and the taking of her property, the trial court properly found that her property was taken from her presence; therefore, the evidence was sufficient to convict defendant of robbery in violation of § 18.2-58 . Price v. Commonwealth, 59 Va. App. 764, 722 S.E.2d 653, 2012 Va. App. LEXIS 68 (2012).

Sufficient evidence to support conviction as principal in the second degree to robbery. - Appellate court affirmed defendant's conviction for robbery as a principal in the second degree because the evidence was sufficient to prove that defendant aided and abetted in the commission of a robbery, as defendant knew the perpetrators were going to commit a robbery, he waited for them in the get-away vehicle to facilitate their escape, during the escape he tried to hide the clothing they wore during the robbery by placing it in the glove compartment or at his feet, and a reasonable person could conclude that defendant shared the intent to commit a robbery. Bradner v. Commonwealth, No. 2640-00-3, 2001 Va. App. LEXIS 572 (Ct. of Appeals Oct. 23, 2001).

Evidence showing that the principal used intimidation to accomplish the taking and that defendant knew what the principal was going to do and acted as the driver of the car was sufficient to support defendant's conviction for robbery as a principal in the second degree. Young v. Commonwealth,, 2009 Va. App. LEXIS 98 (Mar. 10, 2009).

Defendant's convictions, as a principal in second degree, of robbery, § 18.2-58 , and use of a firearm in the commission of a felony, § 18.2-53.1 , were proper because, as the "getaway" driver, defendant contributed to the execution of the robbery, and his actions belied his claim that he was merely a bystander who knew nothing of the perpetrator's intent to rob; defendant spent the afternoon with the perpetrator, held the perpetrator's gun, drove the perpetrator to the parking lot where the victim was standing, and stopped the car "directly" in front of the victim. Defendant remained in the car in the driver's seat and watched the perpetrator get out of the car while carrying a gun, and it was reasonable to conclude that defendant knew what the perpetrator intended to do and assisted him by driving him directly in front of victim and waiting in the driver's seat until the perpetrator returned. Hayes v. Commonwealth,, 2009 Va. App. LEXIS 132 (Mar. 24, 2009).

Defendant was properly convicted of robbery as a principal in the second degree, because defendant, although not the driver, was part of the getaway team. Defendant was present during the planning, he remained with the getaway driver, he reentered the car when he saw the principals fleeing the scene, and he was given the same amount of money as the lookout, permitting an inference that he performed an act of similar value to the accomplishment of the overall crime. Whitley v. Commonwealth, No. 0839-12-1,, 2013 Va. App. LEXIS 63 (Ct. of Appeals Feb. 26, 2013).

Defendant was properly convicted of robbery and use of a firearm in the commission of a felony because defendant acted, at the very least, as a principal in the second degree. When a police officer responded to a call of an armed robbery with one man wearing a ski mask, the officer saw four individuals who ran from the officer and were found hiding in a culvert, the victim's stolen cell phone was found in the immediate vicinity, defendant lied about not knowing the other individuals, and a mask was found in defendant's pocket. Jackson v. Commonwealth, No. 1457-16-2, 2017 Va. App. LEXIS 203 (Aug. 8, 2017).

Evidence insufficient to support principal in the second degree conviction. - Defendant's conviction for robbery as a principal in the second degree pursuant to § 18.2-58 was improper because the circumstantial evidence presented by the Commonwealth was insufficient to prove that defendant knowingly committed an overt act in furtherance of robbery, shared in the criminal intent of the principal, or that the robbery was a natural and probable consequence of wrongful assaults. McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 2008 Va. LEXIS 91 (2008).

Evidence sufficient to support conviction for conspiracy to commit robbery. - Where the evidence showed that defendant said that defendant planned to rob the victim and put defendant's plan into action with an intent to rob the victim, and that, from that starting premise, a co-conspirator agreed to participate in defendant's plan, defendant's conviction for conspiracy to commit robbery in violation of §§ 18.2-58 and 18.2-22 was supported by sufficient evidence. James v. Commonwealth, 53 Va. App. 671, 674 S.E.2d 571, 2009 Va. App. LEXIS 155 (2009).

Evidence was sufficient to support defendant's conviction for conspiracy to commit robbery, as there was sufficient proof of an agreement to commit robbery between defendant and a woman; there was a reasonable inference that defendant and the woman had a prearranged plan to take the television from the victim. Searcy v. Commonwealth, No. 1937-11-1,, 2012 Va. App. LEXIS 383 (Ct. of Appeals Nov. 27, 2012).

CIRCUIT COURT OPINIONS

Evidence insufficient. - Court agreed to prohibit defendant from offering any character evidence of the victim to support defendant's claim of self-defense based on the victim's convictions for robbery and domestic assault and battery because the evidence of the robbery was so distant in time as to be void of real probative value in showing present character, and the victim's single act of domestic assault and battery conviction, on its own, was not admissible absent production of additional violent acts by the victim that passed the tests of relevance. Commonwealth v. Johnson,, 2020 Va. Cir. LEXIS 667 (Petersburg June 29, 2020).

§ 18.2-58.1. Carjacking; penalty.

  1. Any person who commits carjacking, as herein defined, shall be guilty of a felony punishable by imprisonment for life or a term not less than fifteen years.
  2. As used in this section, "carjacking" means the intentional seizure or seizure of control of a motor vehicle of another with intent to permanently or temporarily deprive another in possession or control of the vehicle of that possession or control by means of partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever. "Motor vehicle" shall have the same meaning as set forth in § 46.2-100 .
  3. The provisions of this section shall not preclude the applicability of any other provision of the criminal law of the Commonwealth which may apply to any course of conduct which violates this section.

    (1993, c. 500.)

Cross references. - For definition of "barrier crime" as including a conviction of carjacking as set out in § 18.2-58.1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Law review. - For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 126; 12A M.J. Larceny, § 2.

CASE NOTES

When the defendant took possession of the victim's keys, he took "possession and control" of her vehicle. Bell v. Commonwealth, 21 Va. App. 693, 467 S.E.2d 289 (1996).

Violence or intimidation required. - Carjacking must be viewed as a crime against the person as well as against the person's property; thus, the requisite violence or intimidation must precede or be concomitant with the taking. Bell v. Commonwealth, 21 Va. App. 693, 467 S.E.2d 289 (1996).

The carjacking statute does not cover every case where a defendant takes a victim's keys and then deprives the victim of her vehicle; rather the Commonwealth must prove an act of violence against the victim that precedes or is concomitant with the taking of the vehicle from the possession or control of the victim. Bell v. Commonwealth, 21 Va. App. 693, 467 S.E.2d 289 (1996).

The carjacking provision is confined by the same limitations which apply to robbery and, therefore, the requisite violence or intimidation must precede or be concomitant with the taking. Abraham v. Commonwealth, 32 Va. App. 22, 526 S.E.2d 277 (2000).

Elements of crime. - To prove that an accused violated the provisions of this section, the Commonwealth must prove beyond a reasonable doubt that the carjacker took possession or control of the vehicle; it is not sufficient to prove that the accused merely attempted to seize the vehicle or seize control of the vehicle. Keyser v. Commonwealth, 22 Va. App. 747, 473 S.E.2d 93 (1996).

Proof of intent. - Evidence that defendant and the gunman attempted to seize control and possession of the vehicle was sufficient to show intent to take the vehicle, as defendant's attempt to enter the vehicle from the rear door was inconsistent with an attempt to accost the driver, as claimed by defendant. Walker v. Commonwealth,, 2007 Va. App. LEXIS 214 (May 22, 2007).

Possessory interest not necessary. - This section does not require any ownership or possessory interest on the part of the victim; the evidence was sufficient to support defendant's conviction because it proved that the victim was in control of the vehicle at the time of the offense. Walker v. Commonwealth,, 2007 Va. App. LEXIS 214 (May 22, 2007).

Assault and battery not lesser-included offense. - Carjacking is defined as a particularized form of robbery and, because assault and battery is not a lesser-included offense of robbery, neither is it a lesser-included offense of carjacking. Sanchez v. Commonwealth, 32 Va. App. 238, 527 S.E.2d 461, 2000 Va. App. LEXIS 282 (2000).

Larceny not lesser included offense. - Larceny could not be a lesser-included offense of carjacking as larceny requires the intent to permanently deprive, but the lesser intent to temporarily deprive is sufficient to prove carjacking; carjacking does not always require proof of the specific intent to permanently deprive another of property because § 18.2-58.1 employs the disjunctive "or." Chambers v. Commonwealth, No. 0805-01-4, 2002 Va. App. LEXIS 452 (Ct. of Appeals Aug. 6, 2002).

Identification evidence. - Evidence was sufficient to establish defendant's criminal agency because the victim positively recognized defendant as the second robber in a photo on the day of the incident; the victim had a good opportunity to view the second robber at the time of the incident because after the men had taken all of his belongings, he came "chest to chest" with the man, and from that close proximity, the victim was looking at him in his face, and corroborating evidence supported the identification. Jones v. Commonwealth, No. 0426-19-1, 2020 Va. App. LEXIS 96 (Apr. 7, 2020).

Evidence of death of defendant's accomplice properly admitted. - Where defendant was charged with committing a home invasion robbery and a carjacking with the aid of an accomplice, the trial court did not abuse its discretion in admitting evidence of the killing of his accomplice in another robbery attempt shortly thereafter, as this evidence was highly probative of defendant's identity as one of the perpetrators of the charged offenses, which he challenged throughout his trial. Layug v. Commonwealth,, 2007 Va. App. LEXIS 369 (Oct. 2, 2007).

Prior acts evidence admissible. - Prior domestic dispute between defendant and the victim had a logical and natural connection to the events at carjacking and the facts that established their nexus were probative of the existence or non-existence of the elements of carjacking set forth in § 18.2-58.1 . Smallwood v. Commonwealth,, 2008 Va. App. LEXIS 211 (Apr. 29, 2008).

Evidence of prior carjackings admitted. - Admission of evidence of 10 to 20 prior carjackings by defendant and a principal in defendant's trial for carjacking under § 18.2-58.1 was not an abuse of discretion as: (1) the evidence was relevant to intent; (2) the prior offenses involved defendant and the principal operating as a team using a similar weapon to perpetrate carjackings; (3) acting in accord with their prior association, defendant brought a gun to a job interview, gave the gun to the principal, accompanied the principal, and observed the crimes without attempting to prevent them; and (4) the probative value of the prior carjackings outweighed any prejudice. Kirksey-Waugh v. Commonwealth,, 2008 Va. App. LEXIS 290 (June 17, 2008).

Jury instructions proper. - Trial court did not err in denying defendant's proffered carjacking instruction because the carjacking instruction given by the trial court, which was taken from the Virginia Model Jury Instructions, and drew no objection from either side, tracked the elements of carjacking under this statute nearly verbatim; the instruction fully and fairly covered the elements of that offense; the jury was armed with a proper carjacking instruction when it considered the Commonwealth's evidence offered to prove the critical element that defendant seized control of the victim's truck; and it was for the jury to determine how defendant's act of taking the truck keys from the victim by force factored into whether he exerted such control. Hilton v. Commonwealth, 293 Va. 293 , 797 S.E.2d 781, 2017 Va. LEXIS 51 (2017).

Evidence sufficient to sustain conviction. - Evidence that defendant entered car while passenger was waiting for owner to return, held a knife to passenger's throat, and took passenger's purse and owner's car was sufficient to sustain defendant's conviction for carjacking and robbery. Brown v. Commonwealth, 37 Va. App. 507, 559 S.E.2d 415, 2002 Va. App. LEXIS 88 (2002).

Where defendant admitted at trial that he met with the victim at the same location indicated by the victim, defendant corroborated the victim's testimony that the two were together sometime that evening, and the detective partially corroborated the victim's description of the attack, the evidence was sufficient to sustain defendant's conviction for carjacking. Mitchell v. Commonwealth, No. 3325-02-1, 2004 Va. App. LEXIS 44 (Ct. of Appeals Feb. 3, 2004).

Evidence that the victim retained possession of her vehicle when defendant entered it in her presence and that, in an unbroken sequence of events, she was forced by defendant, through violence and intimidation, to give up possession was sufficient to support a carjacking conviction. Spencer v. Commonwealth, 42 Va. App. 443, 592 S.E.2d 400, 2004 Va. App. LEXIS 56 (2004).

Evidence that defendant, in concert with the gunman, intentionally attempted to seize control of the vehicle by trying to enter the vehicle while the gunman pointed a firearm at the driver was sufficient to support defendant's convictions for attempted carjacking, in violation of § 18.2-58.1 , and use of a firearm in the commission of a felony, in violation of § 18.2-53.1 . Walker v. Commonwealth,, 2007 Va. App. LEXIS 214 (May 22, 2007).

Evidence that the victim reported the incident to the victim's husband as soon as the victim returned to their hotel room, reported it to the police after the victim discovered evidence identifying the assailant, and located several landmarks the victim had seen while defendant held the victim captive was sufficient to support convictions for carjacking, abduction, and robbery; based on defendant's display of a gun and defendant's bizarre behavior, the victim reasonably feared defendant would kill the victim, explaining the victim's failure to make a more determined attempt to escape. Corbin v. Commonwealth,, 2007 Va. App. LEXIS 359 (Oct. 2, 2007).

Evidence supported defendant's conviction for carjacking as the evidence showed that defendant demanded the car keys from the victim, that the car was no longer in the parking lot ten minutes after the victim handed over the keys to defendant, that the police found the car three hours after its disappearance within a mile from the scene of the robbery, and that defendant and his accomplice were the only people with the means to move the car. This evidence was sufficient to infer that defendant and his accomplice took possession or control of the car. Parham v. Commonwealth,, 2009 Va. App. LEXIS 58 (Feb. 10, 2009).

Evidence that defendant approached the victim at night, on a partially lit street, with a mask covering lower half of defendant's face, demanded the victim's possession, and made persistent requests for the victim's car keys was sufficient to support a finding that the victim surrendered the victim's vehicle because the victim was intimidated and to support defendant's conviction for carjacking under § 18.2-58.1 . Pressley v. Commonwealth, 54 Va. App. 380, 679 S.E.2d 551, 2009 Va. App. LEXIS 341 (2009).

Trial court did not err in denying defendant's motion to strike the evidence supporting his carjacking charge and a related firearm charge as there was more than sufficient evidence to convict defendant of carjacking and the related firearm offense because a rational factfinder could easily conclude that between the time defendant took the truck keys from the victim at gunpoint and the time the victim was forced back into his truck, however brief that period of time might have been, defendant intentionally and temporarily seized control of the victim's truck through the use of a firearm and thereby deprived the victim of possession or control of the truck. Hilton v. Commonwealth, 293 Va. 293 , 797 S.E.2d 781, 2017 Va. LEXIS 51 (2017).

Defendant was properly convicted of carjacking as a principal in the second degree because the evidence was sufficient to allow a reasonable fact finder to conclude that defendant countenanced, approved, and assisted in the accomplice's actions and thereby aided and abetted the accomplice in the carjacking; the facts supported the reasonable conclusion that defendant was more than merely present, and the evidence showed that he knew of the accomplice's intent to conduct a drug deal and willingly accompanied him. Johnson v. Commonwealth, No. 1894-16-2, 2017 Va. App. LEXIS 287 (Nov. 14, 2017).

Evidence was sufficient to convict defendant of attempted carjacking and conspiracy to commit carjacking because the victim testified that three men approached his car just before the attempted carjacking; one individual entered the victim's car, and a second individual tried to remove the victim's keys and pull him out of his car; the victim was then struck in the face; shortly thereafter, and only about a mile from the hotel, an officer saw three juvenile males walking together who matched the description he received of the carjacking suspects; one of the males was in possession of the victim's cell phone; and a rational fact finder could have found that defendant agreed with the other two males to carjack the victim. Heard v. Commonwealth, No. 1576-16-1, 2018 Va. App. LEXIS 14 (2018).

Evidence was sufficient to support defendant's carjacking conviction because it showed that he seized control over the victim's car by blocking it into a ditch, preventing her from driving away, and the victim made no attempt to retain or regain control over her vehicle. Fletcher v. Commonwealth, 72 Va. App. 493, 849 S.E.2d 594, 2020 Va. App. LEXIS 275 (2020).

Evidence sufficient to find principal in the second degree. - Defendant's conviction for carjacking in violation of § 18.2-58.1 as a principal in the second degree was supported by sufficient evidence as: (1) in accordance with a prior association, when defendant took a gun to a job interview and gave a principal the gun, defendant intended that the principal use it to obtain the victim's keys and drive away in the victim's vehicle; (2) defendant's theory that defendant was an innocent bystander was rejected; (3) defendant admitted that defendant knew the principal intended to carjack the victim and that defendant observed the crimes; (4) defendant did not discourage the principal or attempt to reclaim defendant's gun; and (5) defendant returned to the scene, retrieved the keys based on knowledge defendant obtained from the principal, and stole the car. Kirksey-Waugh v. Commonwealth,, 2008 Va. App. LEXIS 290 (June 17, 2008).

Article 6. Extortion and Other Threats.

§ 18.2-59. Extortion of money, property or pecuniary benefit.

Any person who (i) threatens injury to the character, person, or property of another person, (ii) accuses him of any offense, (iii) threatens to report him as being illegally present in the United States, or (iv) knowingly destroys, conceals, removes, confiscates, withholds or threatens to withhold, or possesses any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person, and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.

For the purposes of this section, injury to property includes the sale, distribution, or release of identifying information defined in clauses (iii) through (xii) of subsection C of § 18.2-186.3 , but does not include the distribution or release of such information by a person who does so with the intent to obtain money, property or a pecuniary benefit to which he reasonably believes he is lawfully entitled.

(Code 1950, § 18.1-184; 1960, c. 358; 1975, cc. 14, 15; 2006, c. 313; 2007, cc. 453, 547; 2010, c. 298.)

Cross references. - As to seizure of property used in connection with certain offenses, see § 19.2-386.35 .

For definition of "barrier crime" as including a conviction of extortion by threat as set out in § 18.2-59 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including extortion by threat as set out in § 18.2-59 , or an equivalent offense in another state, see § 63.2-1726 .

The 2006 amendments. - The 2006 amendment by c. 313 inserted "or threaten to report him as being illegally present in the United States."

The 2007 amendments. - The 2007 amendment by c. 453 rewrote this section, which read: "If any person threaten injury to the character, person, or property of another person or accuse him of any offense or threaten to report him as being illegally present in the United States and thereby extort money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, he shall be guilty of a Class 5 felony."

The 2007 amendment by c. 547 added the A designation at the beginning of the first paragraph, and in subsection A, substituted "Any person who threatens" for "If any person threaten," "accuses" for "accuse," "threatens" for "threaten," "extorts" for "extort" and "is guilty" for "he shall be guilty"; and added subsection B.

This section has been set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 298 added the last paragraph.

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973). For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974).

For article, "Labor and Employment Law," see 35 U. Rich. L. Rev. 725 (2001).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Racketeer Influenced and Corrupt Organizations, § 4.1; 8A M.J. Extortion, § 1; 10B M.J. Interstate Commerce, § 7.

CASE NOTES

Constitutionality. - This section is not vague and is facially constitutional; the words "threat," "character," and "pecuniary benefit" are all ordinary, everyday words whose meanings are plain to a person of normal intelligence and education; furthermore, the trial court defined "pecuniary benefit" in a jury instruction as "benefits that can be valued in money," and this definition was accepted by the defendant without objection; finally the concept and proscription of extortion have long existed in the law of this Commonwealth. Stein v. Commonwealth, 12 Va. App. 65, 402 S.E.2d 238 (1991).

This section is constitutional in that it is not overbroad and does not impinge upon the First Amendment right to free speech. Stein v. Commonwealth, 12 Va. App. 65, 402 S.E.2d 238 (1991).

Rule of absolute privilege in judicial proceedings. - Defendant, a real estate subdivision developer, was entitled to strike an attempted extortion indictment because defendant's written notice to a property owner of intent to file a lien was made in the context of a judicial proceeding. The relevant and material statements in the notice were thereby covered by absolute privilege and were not a wrongful threat in the context of an extortion charge. Ware v. Commonwealth, No. 1458-18-2, 2019 Va. App. LEXIS 212 (Oct. 1, 2019).

The threat to do a legal act is not per se protected speech. Morrissey v. Commonwealth, 16 Va. App. 172, 428 S.E.2d 503 (1993).

Guilt or innocence of victim of extortion is irrelevant. - Questions propounded by the counsel of the accused concerning the guilt or innocence of the victim of the extortion, were irrelevant, immaterial and properly excluded. Whether persons upon whom extortion is practiced are vicious or virtuous they are equally entitled to the protection of the law. Mitchell v. Commonwealth, 75 Va. 856 (1880).

Claim of right is not considered a defense to extortion under Virginia law. United States v. Teplin, 775 F.2d 1261 (4th Cir. 1985).

Claim of right no defense to extortion. - Appellant's alleged claim of right to the money he sought to obtain by extortion from the victim provided no defense. Strohecker v. Commonwealth, 23 Va. App. 242, 475 S.E.2d 844 (1996).

The absence of any "claim of right" defense demonstrates that, under the Virginia extortion statute, the lawfulness of the demanded object is irrelevant; therefore, an extortionate means is sufficient to establish liability under § 18.2-59 . Smithfield Foods, Inc. v. United Food & Commer. Workers Int'l Union, 585 F. Supp. 2d 789, 2008 U.S. Dist. LEXIS 81889 (E.D. Va. 2008).

Public disclosure or even proposed public disclosure is not extortion unless coupled with an effort to obtain money or other value from the victim. Wood v. Commonwealth, 8 Va. App. 560, 382 S.E.2d 306 (1989).

Constructive breaking. - Where entry is gained by threats, fraud or conspiracy, a constructive breaking is deemed to have occurred; thus, breaking may be actual or constructive. Broady v. Commonwealth, 16 Va. App. 281, 429 S.E.2d 468 (1993).

Money demanded to remain silent about invalid revocation of prenuptial agreement. - Defendant had no claim of right to the money he demanded, where he was clearly demanding "hush money" to remain silent about the alleged invalidity of a revocation agreement nullifying a prenuptial agreement between defendant's former legal client and her husband. The revocation agreement allowed the wife to claim her statutory share of her husband's estate. United States v. Teplin, 775 F.2d 1261 (4th Cir. 1985).

Commonwealth did not need to prove that accusation underlying threat was false. - Where defendant had accused victim of raping her and where the Commonwealth elected to charge defendant with threatening to injure victim's character, it was not necessary for the Commonwealth to prove that an accusation underlying the threat was false, even though the threatened injury was to the character of a person and did not constitute an accusation of an offense. Wood v. Commonwealth, 8 Va. App. 560, 382 S.E.2d 306 (1989).

Extortion held alleged. - Where it was alleged that: (a) defendants entered into a contract with plaintiff, knowing at the time that they did not intend to perform and knowing also that plaintiff would rely on their contract to expose itself to economic risk; (b) plaintiff in reliance on the contract with defendant entered into a commercial arrangement with another; and (c) defendants exacted moneys, property and pecuniary benefits on the threat of causing plaintiff the economic harm which would stem from nonperformance of its other commercial arrangement, extortion was alleged. Battlefield Bldrs., Inc. v. Swango, 743 F.2d 1060 (4th Cir. 1984).

Evidence sufficient. - Trial court did not err in finding defendant guilty, following a bench trial, of computer fraud, computer trespass, embezzlement, and attempted extortion, as the evidence showed that defendant transferred computer files from his computer at work to a third-party server before he was terminated from his position as human resource director, that he used the removed material to threaten the company in an attempt to forgive a loan it had made to him, and that the company established the value of the material removed as required to support convictions on those offenses. DiMaio v. Commonwealth, 46 Va. App. 755, 621 S.E.2d 696, 2005 Va. App. LEXIS 456 (2005).

Evidence insufficient. - Evidence was insufficient to sustain defendant's extortion conviction because the victim testified that he intended to pay defendant the agreed sum of money for her services when he went to her apartment and had the cash in an envelope with her name on it in his wallet; defendant did not threaten the victim or accuse him of any crime before she took the envelope containing the money from the victim's wallet; and she told him that he was under arrest for solicitation and that she would release him if he gave her a satisfactory reason to do so, but she did not demand that he give her any additional money or property as a condition of his release. Ahmadzi v. Commonwealth, No. 0384-19-4, 2020 Va. App. LEXIS 77 (Mar. 24, 2020).

§ 18.2-60. Threats of death or bodily injury to a person or member of his family; threats of death or bodily injury to persons on school property; threats of death or bodily injury to health care providers; penalty.

    1. Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony. However, any person who violates this subsection with the intent to commit an act of terrorism as defined in § 18.2-46.4 is guilty of a Class 5 felony. A. 1.  Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony. However, any person who violates this subsection with the intent to commit an act of terrorism as defined in § 18.2-46.4 is guilty of a Class 5 felony.
    2. Any person who communicates a threat, in a writing, including an electronically transmitted communication producing a visual or electronic message, to kill or do bodily harm, (i) on the grounds or premises of any elementary, middle or secondary school property, (ii) at any elementary, middle or secondary school-sponsored event or (iii) on a school bus to any person or persons, regardless of whether the person who is the object of the threat actually receives the threat, and the threat would place the person who is the object of the threat in reasonable apprehension of death or bodily harm, is guilty of a Class 6 felony.
    3. Any person 18 years of age or older who communicates a threat in writing, including an electronically transmitted communication producing a visual or electronic message, to another to kill or to do serious bodily injury to any other person and makes such threat with the intent to (i) intimidate a civilian population at large; (ii) influence the conduct or activities of a government, including the government of the United States, a state, or a locality, through intimidation; or (iii) compel the emergency evacuation, or avoidance, of any place of assembly, any building or other structure, or any means of mass transportation is guilty of a Class 5 felony. Any person younger than 18 years of age who commits such offense is guilty of a Class 1 misdemeanor.
  1. Any person who orally makes a threat to kill or to do bodily injury to (i) any employee of any elementary, middle, or secondary school, while on a school bus, on school property, or at a school-sponsored activity or (ii) any health care provider as defined in § 8.01-581.1 who is engaged in the performance of his duties in a hospital as defined in § 18.2-57 or in an emergency room on the premises of any clinic or other facility rendering emergency medical care, unless the person is on the premises of the hospital or emergency room of the clinic or other facility rendering emergency medical care as a result of an emergency custody order pursuant to § 37.2-808 , involuntary temporary detention order pursuant to § 37.2-809 , involuntary hospitalization order pursuant to § 37.2-817 , or emergency custody order of a conditionally released acquittee pursuant to § 19.2-182.9 , is guilty of a Class 1 misdemeanor.
  2. A prosecution pursuant to this section may be either in the county, city, or town in which the communication was made or received or in the City of Richmond if venue cannot otherwise be established and the person threatened is one of the following officials or employees of the Commonwealth and such official or employee was threatened while engaged in the performance of his public duties or because of his position with the Commonwealth: the Governor, Governor-elect, Lieutenant Governor, Lieutenant Governor-elect, Attorney General, or Attorney General-elect, a member or employee of the General Assembly, a justice of the Supreme Court of Virginia, or a judge of the Court of Appeals of Virginia.

    (Code 1950, § 18.1-257; 1960, c. 358; 1973, c. 118; 1975, cc. 14, 15; 1994, c. 265; 1998, cc. 687, 788; 2001, cc. 644, 653; 2002, cc. 588, 623; 2019, c. 506; 2020, c. 1002; 2021, Sp. Sess. I, cc. 83, 84.)

Cross references. - As to threats of violence to judge, etc., as contempt, see § 18.2-456 .

As to obstructing justice by threats, see § 18.2-460 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 83 and 84, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendments. - The 1998 amendments by cc. 687 and 788, are identical, and in subsection A, in the first sentence, deleted "or" following "any letter" and inserted the language beginning "or electronically transmitted" and ending "electronic message."

The 2001 amendments. - The 2001 amendments by cc. 644 and 653 are identical, and rewrote subsection A, which formerly read: "If any person write or compose and also send or procure the sending of any letter, inscribed communication or electronically transmitted communication producing a visual or electronic message, so written or composed, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of his or her family, the person so writing or composing and sending or procuring the sending of such letter or communication shall be guilty of a Class 6 felony and may be prosecuted either in the county, city or town in which the letter or inscribed communication is composed, written, sent or procured to be sent or in the county, city or town in which the letter or inscribed communication is received"; and in subsection B, substituted "Any person who" for "If any person" at the beginning and substituted "is guilty" for "he shall be guilty" in the first paragraph and added the second paragraph.

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and added the present last sentence to subdivision A 1.

The 2019 amendments. - The 2019 amendment by c. 506, in subsection B, inserted "kill or to do bodily injury to (i)" and substituted clause (ii) for "to kill or to do bodily injury to such person."

The 2020 amendments. - The 2020 amendment by c. 1002 added "or in the City of Richmond if venue cannot otherwise be established and the person threatened is one of the following officials or employees of the Commonwealth and such official or employee was threatened while engaged in the performance of his public duties or because of his position with the Commonwealth: the Governor, Governor-elect, Lieutenant Governor, Lieutenant Governor-elect, Attorney General, or Attorney General-elect, a member or employee of the General Assembly, a justice of the Supreme Court of Virginia, or a judge of the Court of Appeals of Virginia" in the last paragraph of the section.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 83 and 84, effective July 1, 2021, are identical, and added subdivision A 3; and designated the last paragraph of the section as subsection C.

Law review. - For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974).

For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

CASE NOTES

Malice not element of offense. - In a prosecution under this section, a trial court is not required to instruct the jury on malice, as malice is not an element of the offense. Saunders v. Commonwealth, 31 Va. App. 321, 523 S.E.2d 509 (2000).

What constitutes threats. - Defendant's posts on his MySpace profile constituted threats under subdivision A 1 of § 18.2-60 as the graphic and violent imagery used in the messages specifically referred to the victim and her family, referring to the victim by using her maiden name, referencing specific incidents involving the victim, and identifying details that were unique to the acrimonious history between defendant and the victim. Defendant frequently stated in his messages that he "just had to stab" the victim and "slit her neck into a fountain drink." Holcomb v. Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 2011 Va. App. LEXIS 190 (2011).

In determining whether a statement is threatening and places the recipient in reasonable apprehension of death or bodily injury under subdivision A 1 of § 18.2-60 , proof of the effect of the alleged threat upon the addressee is highly relevant. Holcomb v. Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 2011 Va. App. LEXIS 190 (2011).

Threatening letter. - Evidence showed a defendant prisoner sent a threatening letter when he put it in the institutional mail. Keyes v. Commonwealth, 39 Va. App. 294, 572 S.E.2d 512, 2002 Va. App. LEXIS 698 (2002).

Letter from defendant to girlfriend threatening to kill her stepfather. - Letter from defendant to 15-year-old girl he had been dating, which contained a threat to kill her stepfather, who, along with the girl's mother, had been trying to "break up" the relationship between the girl and defendant, was held to violate this section. Flint v. Commonwealth, No. 0588-85 (Ct. of Appeals Oct. 30, 1986).

Electronic communications. - Defendant's posts on his MySpace profile were electronic communications capable of constituting threats in violation of § 18.2-60 . Posting a message on a MySpace profile was an electronic communication because it produced a visual message that could be viewed by anyone who had access to that page. Holcomb v. Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 2011 Va. App. LEXIS 190 (2011).

Reasonable apprehension of death or injury. - Defendant's threats on his MySpace profile placed the victim in fear of death or bodily injury as the evidence showed that the victim, in response to reading the posts, moved into her parents' home to take advantage of their security system and cameras and that she was scared that she was going to be killed or maimed and that her daughter was going to be kidnapped. Holcomb v. Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 2011 Va. App. LEXIS 190 (2011).

Search and seizure. - District court properly denied defendant's motion to suppress evidence in his trial for possession of an unregistered machine gun and an unregistered silencer in violation of 26 U.S.C.S. §§ 5861(d) and 5871 because the seizure of the gun and silencer was justified under the plain-view exception to the warrant requirement under U.S. Const., Amend. IV; a valid warrant had been issued to search for evidence and instrumentalities of criminal activity under § 18.2-60 , evidence such as disks and thumbnail drives could easily have been stored in the lockbox with the gun and silencer, and the incriminating character of the gun and silencer became immediately apparent during the course of a legitimate safety inspection. United States v. Williams, 592 F.3d 511, 2010 U.S. App. LEXIS 1327 (4th Cir. 2010), cert. denied, 131 S. Ct. 595, 178 L. Ed. 2d 434, 2010 U.S. LEXIS 8864 (U.S. 2010).

§ 18.2-60.1. Threatening the Governor or his immediate family.

Any person who shall knowingly and willfully send, deliver or convey, or cause to be sent, delivered or conveyed, to the Governor or his immediate family any threat to take the life of or inflict bodily harm upon the Governor or his immediate family, whether such threat be oral or written, is guilty of a Class 6 felony. A violation of this section may be prosecuted in the jurisdiction in which the communication was made or received or in the City of Richmond if venue cannot otherwise be established.

(1982, c. 568; 2020, c. 1002.)

The 2020 amendments. - The 2020 amendment by c. 1002 added the second sentence; and made a stylistic change.

§ 18.2-60.2. Members of the Governor's immediate family.

As used in § 18.2-60.1 , the immediate family of the Governor shall include any parent, sibling, child, grandchild, spouse, parent of a spouse, and spouse of a sibling, child or grandchild who resides in the same household as the Governor.

(1982, c. 568.)

§ 18.2-60.3. Stalking; penalty.

  1. Any person, except a law-enforcement officer, as defined in § 9.1-101 , and acting in the performance of his official duties, and a registered private investigator, as defined in § 9.1-138 , who is regulated in accordance with § 9.1-139 and acting in the course of his legitimate business, who on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member is guilty of a Class 1 misdemeanor. If the person contacts or follows or attempts to contact or follow the person at whom the conduct is directed after being given actual notice that the person does not want to be contacted or followed, such actions shall be prima facie evidence that the person intended to place that other person, or reasonably should have known that the other person was placed, in reasonable fear of death, criminal sexual assault, or bodily injury to himself or a family or household member.
  2. Any person who is convicted of a second offense of subsection A occurring within five years of a prior conviction of such an offense under this section or for a substantially similar offense under the law of any other jurisdiction is guilty of a Class 6 felony.
  3. A person may be convicted under this section irrespective of the jurisdiction or jurisdictions within the Commonwealth wherein the conduct described in subsection A occurred, if the person engaged in that conduct on at least one occasion in the jurisdiction where the person is tried. Evidence of any such conduct that occurred outside the Commonwealth may be admissible, if relevant, in any prosecution under this section provided that the prosecution is based upon conduct occurring within the Commonwealth.
  4. Upon finding a person guilty under this section, the court shall, in addition to the sentence imposed, issue an order prohibiting contact between the defendant and the victim or the victim's family or household member.
  5. The Department of Corrections, sheriff or regional jail director shall give notice prior to the release from a state correctional facility or a local or regional jail of any person incarcerated upon conviction of a violation of this section, to any victim of the offense who, in writing, requests notice, or to any person designated in writing by the victim. The notice shall be given at least 15 days prior to release of a person sentenced to a term of incarceration of more than 30 days or, if the person was sentenced to a term of incarceration of at least 48 hours but no more than 30 days, 24 hours prior to release. If the person escapes, notice shall be given as soon as practicable following the escape. The victim shall keep the Department of Corrections, sheriff or regional jail director informed of the current mailing address and telephone number of the person named in the writing submitted to receive notice.

    All information relating to any person who receives or may receive notice under this subsection shall remain confidential and shall not be made available to the person convicted of violating this section.

    For purposes of this subsection, "release" includes a release of the offender from a state correctional facility or a local or regional jail (i) upon completion of his term of incarceration or (ii) on probation or parole.

    No civil liability shall attach to the Department of Corrections nor to any sheriff or regional jail director or their deputies or employees for a failure to comply with the requirements of this subsection.

  6. For purposes of this section:

    "Family or household member" has the same meaning as provided in § 16.1-228.

    (1992, c. 888; 1994, cc. 360, 521, 739; 1995, c. 824; 1996, cc. 540, 866; 1998, c. 570; 2001, c. 197; 2002, c. 377; 2013, c. 759; 2016, cc. 545, 696, 745.)

Cross references. - For definition of "barrier crime" as including a conviction of felony stalking as set out in § 18.2-60.3 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

The 1996 amendments. - The 1996 amendment by c. 540 added the last sentence in subsection D.

The 1996 amendment by c. 866, effective July 1, 1997, substituted "family or household member" for "spouse or child" in three places, and added subsection G.

The 1998 amendment, in subsection A, substituted "Class 1" for "Class 2"; rewrote subsection B; and redesignated former subsections D through G as present subsections C through F.

The 2001 amendments. - The 2001 amendment by c. 197, in subsection A, substituted "when he knows or reasonably should know" for "with the knowledge," and substituted "is guilty" for "shall be guilty"; substituted "that occurred" for "which occurred" in subsection C; and substituted "For purposes of this section: 'Family or household member' has" for "As used in this section the term 'family or household member' shall have" in subsection F.

The 2002 amendments. - The 2002 amendment by c. 377 inserted "except a law-enforcement ... legitimate business" in the first sentence of subsection A.

The 2013 amendments. - The 2013 amendment by c. 759 added present subsection B and redesignated the following subsections accordingly; in subsection C, substituted "Any person convicted of a third" for "A third," inserted "of subsection A" and substituted "is guilty of a Class 6 felony" for "shall be a Class 6 felony"; and made minor stylistic changes.

The 2016 amendments. - The 2016 amendments by cc. 545 and 745 are identical, and added the last sentence in subsection A.

The 2016 amendment by c. 696, in subsection B, substituted "under this section or for a substantially similar offense under the law of any other jurisdiction" for "when the person was also convicted within the five-year period prior to the instant offense of a violation of (i) § 18.2-51 , 18.2-51.2 , 18.2-51 .6, 18.2-52 , or 18.2-57 and the victim of that crime was the same person who is the victim of the stalking activity in the instant conviction, (ii) § 18.2-57.2 , or (iii) a protective order"; deleted former subsection C, which read "Any person convicted of a third or subsequent conviction of subsection A occurring within five years of a conviction for an offense under this section or for a similar offense under the law of any other jurisdiction is guilty of a Class 6 felony"; and redesignated remaining subsections accordingly.

Law review. - For note, "'Stalk Talk': A First Look at Anti-Stalking Legislation," see 50 Wash. & Lee L. Rev. 1303 (1993).

For article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For article, "Gender Bias Task Force: Comments on Substantive Law Issues," see 58 Wash. & Lee L. Rev. 1095 (2001).

CASE NOTES

Constitutionality. - For a case upholding the constitutionality of this section as it read prior to the 1994 amendments, see Woolfolk v. Commonwealth, 18 Va. App. 840, 447 S.E.2d 530 (1994).

This section is not unconstitutionally vague either on its face or as applied to defendant. Both the "reasonable fear" element and the requirement of specific intent make this section sufficiently clear to inform both citizens and law-enforcement officers of what acts constitute stalking. Parker v. Commonwealth, 24 Va. App. 681, 485 S.E.2d 150 (1997), cert. denied, 523 U.S. 1071, 118 S. Ct. 1510, 140 L. Ed. 2d 665 (1998).

This section is not unconstitutionally overbroad on the ground that it chills protected speech. The purpose is legitimate: to protect innocent citizens from intentional or knowingly threatening conduct that subjects them to a reasonable fear of harm. And it is not directed primarily at speech nor does it overreach to prevent contact, speech or otherwise between quarreling lovers. The statute permits all communications between individuals that are conducted in a time, place and manner that do not intentionally or knowingly cause the receiver of the message reasonably to fear for his or her physical safety. Parker v. Commonwealth, 24 Va. App. 681, 485 S.E.2d 150 (1997), cert. denied, 523 U.S. 1071, 118 S. Ct. 1510, 140 L. Ed. 2d 665 (1998).

Evidence proved that appellant stalked his ex-wife where from mid-summer 1992 until his arrest in September 1992, he persistently followed her, he watched her in her home at all hours of the day and night, and even began to follow her boyfriend, who lived 40 miles away; threatened to shoot his ex-wife and her boyfriend; followed this threat by driving through the boyfriend's apartment complex and repeatedly driving by his ex-wife's residence; and ex-wife testified that appellant's threat, combined with his persistent course of conduct, "terrified" her and that she believed that appellant wanted to shoot or kill her. Woolfolk v. Commonwealth, 18 Va. App. 840, 447 S.E.2d 530 (1994).

Reasonableness of victim's fear. - Upon rehearing en banc it was determined that where a prior stalking conviction provided only a historical context in which defendant's subsequent conduct was adjudged, neither double jeopardy nor res judicata applied; the evidence abundantly supported the reasonableness of the victim's fear. Burwell v. Commonwealth, No. 1777-99-2, 2001 Va. App. LEXIS 711 (Ct. of Appeals Apr. 17, 2001).

Evidence was sufficient for the jury to find beyond a reasonable doubt that defendant's conduct caused the victim to experience reasonable fear because the victim testified about the numerous times that defendant contacted her against her wishes, the jury could have reasonably concluded defendant's 15-year absence before he contacted the victim again would cause her to be more fearful, not less, and the evidence supported the inference that defendant's persistence and ability to locate the victim even after she moved would reasonably cause her fear as the target of his obsession. Banks v. Commonwealth, 67 Va. App. 273, 795 S.E.2d 908, 2017 Va. App. LEXIS 35 (2017).

Proof of accused's intent or knowledge. - To convict a defendant of stalking under this section, the Commonwealth must prove beyond a reasonable doubt that, on at least two occasions, the defendant either intended to cause the victim fear of the enumerated harms or knew his conduct would cause the victim such fear; the knowledge of the accused may be inferred from the surrounding facts and circumstances and, in drawing inferences from all the circumstances, the fact finder may discount defendant's explanation for his acts. Gilbert v. Commonwealth, No. 0418-00-2, 2001 Va. App. LEXIS 273 (Ct. of Appeals May 22, 2001).

State court judgment in a creditor's favor on his civil cause of action for stalking in violation of Virginia law satisfied the willfulness element for nondischargeability because the jury's verdict established that it must have found that debtor intended to cause fear or should have known that his conduct would cause fear. However, the judgment did not satisfy the malice element because in finding debtor liable for stalking, the Virginia jury could have found that he should have known that he would cause harm but not that he acted deliberately and intentionally. Moreno v. Basl (In re Basl),, 2018 Bankr. LEXIS 1164 (Bankr. E.D. Va. Apr. 18, 2018).

Where Commonwealth fails to prove specific intent to cause fear, proof that the defendant actually knew that his conduct would place the victim in fear of the enumerated harms is a necessary element of the offense. Bowen v. Commonwealth, 27 Va. App. 377, 499 S.E.2d 20 (1998).

Evidence of prior conduct. - Trial court did not err by instructing the jury that the facts and circumstances relating to a prior charge could be considered as evidence of a common scheme or plan in the prosecution of the defendant for stalking in violation of § 18.2-60.3 and violating a protective order in violation of § 18.2-60.4 because defendant's 2007 prior conduct tended to prove that he knew or should have reasonably known that his 2008 conduct would reasonably cause the victim to fear bodily harm, and the jury instructions properly informed the jury for what specific purposes the victim's testimony could be considered; the 2007 events, as described by the victim at trial, were pertinent to the jury's determination regarding whether or not defendant had motive and intent when he violated the protective order in 2008 and went to the victim's home, followed her in various vehicles, and called her repeatedly at work, and defendant's pursuit of the victim in his car in 2008 was comparable to his pursuits in 2007. Jordan v. Commonwealth, No. 2689-09-2, 2011 Va. App. LEXIS 139 (Ct. of Appeals Apr. 26, 2011).

Trial court did not err in allowing the jury to consider the evidence of the earlier contacts between defendant and the victim because they were probative of the "on more than one occasion" element of the crime of stalking. Banks v. Commonwealth, 67 Va. App. 273, 795 S.E.2d 908, 2017 Va. App. LEXIS 35 (2017).

Sufficient evidence of accused's intent or knowledge. - In a prosecution for stalking, where the evidence showed that defendant had continued his unwelcome advances toward the victim after she had told him that she was not interested and after the parties' employer had terminated defendant for sexual harassment, that the victim had moved out of state to avoid defendant, that the victim had communicated her fear of defendant to police, and that she had posted warning posters inside her apartment building with defendant's picture on it identifying defendant as a stalker, there was credible evidence to support the trial court's conclusion beyond a reasonable doubt that the victim had reasonable cause to fear that defendant would harm her and that he knew or should have known that his conduct caused her to have that fear. Schoenberger v. Commonwealth, No. 0156-04-4, 2005 Va. App. LEXIS 15 (Ct. of Appeals Jan. 11, 2005).

Trial court properly issued a protective order based on a finding of stalking because an ex-boyfriend persistently tried to contact the ex-girlfriend through social media and e-mail, contacted her parents, called her at home and work, sent her flowers, visited her home, acknowledged that she did not wish to associate with him, was told by others to leave her alone, and should have known that his abnormally persistent efforts to contact her were unwelcomed and would cause fear. Stephens v. Rose, 288 Va. 150 , 762 S.E.2d 758, 2014 Va. LEXIS 118 (2014).

Sufficient evidence. - Where defendant engaged in frenzied sprees of phone calls that he knew would cause the victim to worry for her safety upon his pending release from jail; he was aware of his past abusive relationship with victim and that he had previously been convicted for placing her in reasonable fear of bodily harm; he knew his release from jail was in two months; and he continued his barrage of calls after he knew they were unwelcome, evidence was sufficient of a violation of this section. Parker v. Commonwealth, 24 Va. App. 681, 485 S.E.2d 150 (1997), cert. denied, 523 U.S. 1071, 118 S. Ct. 1510, 140 L. Ed. 2d 665 (1998).

Evidence was sufficient to support convictions of stalking where the defendant repeatedly threw sexually explicit materials toward three minors and repeatedly drove by two minors and engaged in conversations that would reasonably frighten young girls. Hartman v. Commonwealth, No. 0569-98-3 (Ct. of Appeals Mar. 30, 1999).

The evidence was sufficient to support the defendant's conviction for stalking where the victim testified that she did not know the defendant very well when he began making daily telephone calls to her, that the initial calls were friendly but in later conversations the defendant began interjecting sexual comments and asserting his desire to have sex with her, that the defendant scared her when he said he would rape her if he saw her wearing a certain bathing suit, that the defendant made repeated and unwanted calls to her workplace, that the defendant continued calling her after having been told by the victim's boyfriend to stop because the victim was afraid of him, and that the defendant threatened victim over the telephone when she refused to help him raise bail money. Gilbert v. Commonwealth, No. 0418-00-2, 2001 Va. App. LEXIS 273 (Ct. of Appeals May 22, 2001).

Evidence was sufficient to sustain defendant's conviction for stalking as a rational fact finder could reasonably conclude that defendant, a complete stranger to the victim, engaged in conduct directed at the victim on more than one occasion that he reasonably should have known would place the victim in reasonable fear of death, criminal sexual assault, or bodily injury, in that defendant followed the victim for a year, driving up and down her neighborhood every evening for a month. Defendant's conduct persisted despite the fact that the victim moved to two different unpublished addresses, changed her telephone number, protected the number as unlisted, and rejected defendant's advances by stating that she was married. Frazier v. Commonwealth,, 2007 Va. App. LEXIS 285 (July 31, 2007).

Evidence was sufficient to prove that in stalking a mother and a child, a father committed an act of abuse against a family member, and, therefore, the circuit court was authorized to issue an order to protect the mother and the child; the father intended to cause fear or knew or should have known that his conduct would cause fear for the mother and child because he pursued the mother and child in a car chase, and he knew the mother had reported that the child feared him. Vechery v. Cottet-Moine, No. 0636-20-4, 2021 Va. App. LEXIS 94 (June 15, 2021).

Sufficiency of the evidence argument not preserved. - Where defendant appealed his conviction for stalking, claiming that the evidence was insufficient to support the conviction, the appellate court did not consider the argument on the merits because it was barred by Va. Sup. Ct. Rule 5A:18, as the issue was not properly preserved for review; although defendant had made two motions to strike against the Commonwealth's evidence, those motions were not supported with any specificity as to the grounds of the objections and accordingly, the trial court did not have an opportunity to consider the issue of sufficiency of the evidence. Hurley v. Commonwealth, No. 1332-03-3, 2004 Va. App. LEXIS 255 (Ct. of Appeals June 1, 2004).

Evidence sufficiently proved appropriateness of venue. - Ordinarily, a criminal case has to be prosecuted in the county or city in which the offense was committed, under § 19.2-244 ; despite the special venue provision of former § 18.2-60.3 .A, there was no error in the refusal to grant defendant's motion to strike a stalking charge based upon an allegation of improper venue, as the evidence gave rise to a strong presumption that at least one of the stalking events occurred within the jurisdiction of the court where defendant was tried. Raja v. Commonwealth, 40 Va. App. 710, 581 S.E.2d 237, 2003 Va. App. LEXIS 318 (2003).

CIRCUIT COURT OPINIONS

Reasonableness of victim's fear. - Petitioner was not entitled to reconsideration of the court's denial of a protective order against the respondent because the petitioner did not prove that, on more than one occasion, she was in reasonable fear of death, criminal sexual assault, or bodily injury, as required for stalking, the court did not limit the evidence it considered, and the instances recounted in the petitioner's motion were not sufficient to prove that the respondent intended to place her in reasonable fear of death, criminal sexual assault, or bodily injury or that he knew or reasonably should have known that he placed her in reasonable fear of death, criminal sexual assault, or bodily injury. Ewer v. Jayson,, 2021 Va. Cir. LEXIS 181 (Fairfax County Aug. 26, 2021).

Expungement denied. - Entering of an order of expungement was improper because, having pleaded guilty to the use of profane language removed defendant from the group of innocent citizens the legislature envisioned as being eligible for expungement; had the incident giving rise to the stalking charge and subsequent conviction of use of profane language been otherwise dismissed, the result would have left defendant as an innocent citizen with a record of the charge being a hindrance to his ability to obtain employment, an education, and to obtain credit. Defendant was not an innocent citizen in regard to the stalking charge and subsequent guilty plea to use of profane language over a telephone. Commonwealth v. Rowe, 85 Va. Cir. 323, 2012 Va. Cir. LEXIS 174 (Hanover County Aug. 31, 2012).

§ 18.2-60.4. Violation of protective orders; penalty.

  1. Any person who violates any provision of a protective order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 is guilty of a Class 1 misdemeanor. Conviction hereunder shall bar a finding of contempt for the same act. The punishment for any person convicted of a second offense of violating a protective order, other than a protective order issued pursuant to subsection C of § 19.2-152.10 , when the offense is committed within five years of the prior conviction and when either the instant or prior offense was based on an act or threat of violence, shall include a mandatory minimum term of confinement of 60 days. Any person convicted of a third or subsequent offense of violating a protective order, other than a protective order issued pursuant to subsection C of § 19.2-152.10 , when the offense is committed within 20 years of the first conviction and when either the instant or one of the prior offenses was based on an act or threat of violence, is guilty of a Class 6 felony and the punishment shall include a mandatory minimum term of confinement of six months. The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence.
  2. In addition to any other penalty provided by law, any person who, while knowingly armed with a firearm or other deadly weapon, violates any provision of a protective order with which he has been served issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 , other than a protective order issued pursuant to subsection C of § 19.2-152.10 , is guilty of a Class 6 felony.
  3. If the respondent commits an assault and battery upon any party protected by the protective order, other than a protective order issued pursuant to subsection C of § 19.2-152.10 , resulting in bodily injury to the party or stalks any party protected by the protective order in violation of § 18.2-60.3 , he is guilty of a Class 6 felony. Any person who violates such a protective order, other than a protective order issued pursuant to subsection C of § 19.2-152.10 , by furtively entering the home of any protected party while the party is present, or by entering and remaining in the home of the protected party until the party arrives, is guilty of a Class 6 felony, in addition to any other penalty provided by law.
  4. Upon conviction of any offense hereunder for which a mandatory minimum term of confinement is not specified, the person shall be sentenced to a term of confinement and in no case shall the entire term imposed be suspended.
  5. Upon conviction, the court shall, in addition to the sentence imposed, enter a protective order pursuant to § 19.2-152.10 for a specified period not exceeding two years from the date of conviction.
  6. A violation of this section may be prosecuted in the jurisdiction where the protective order was issued or in any county or city where any act constituting the violation of the protective order occurred.

    (1998, c. 569; 2003, c. 219; 2011, cc. 445, 480; 2013, cc. 761, 774; 2016, cc. 583, 585, 638; 2020, cc. 487, 1005.)

Editor's note. - Acts 2020, c. 1005, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendment by c. 219 added the last sentence.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are nearly identical, and in the first paragraph, added the last sentence and made a stylistic change; added the second and third paragraphs.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added the last sentence of the first paragraph.

The 2016 amendments. - The 2016 amendment by c. 583, in the first sentence of the second paragraph, substituted "bodily injury" for "serious bodily injury" and inserted "or stalks any party protected by the protective order in violation of § 18.2-60.3 ."

The 2016 amendments by cc. 585 and 638 are identical, and inserted the subsection designations and added subsection B.

The 2020 amendments. - The 2020 amendment by c. 487 added subsection F.

The 2020 amendment by c. 1005 inserted "other than a protective order issued pursuant to subsection C of § 19.2-152.10 " twice in subsections A and C and once in subsection B.

Research References. - Virginia Forms (Matthew Bender). No. 5-149 Preliminary Child Protective Order.

CASE NOTES

Evidence of prior conduct. - Trial court did not err by instructing the jury that the facts and circumstances relating to a prior charge could be considered as evidence of a common scheme or plan in the prosecution of the defendant for stalking in violation of § 18.2-60.3 and violating a protective order in violation of § 18.2-60.4 because defendant's 2007 prior conduct tended to prove that he knew or should have known that his 2008 conduct would reasonably cause the victim to fear bodily harm, and the jury instructions properly informed the jury for what specific purposes the victim's testimony could be considered; the 2007 events, as described by the victim at trial, were pertinent to the jury's determination regarding whether or not defendant had motive and intent when he violated the protective order in 2008 and went to the victim's home, followed her in various vehicles, and called her repeatedly at work, and defendant's pursuit of the victim in his car in 2008 was comparable to his pursuits in 2007. Jordan v. Commonwealth, No. 2689-09-2, 2011 Va. App. LEXIS 139 (Ct. of Appeals Apr. 26, 2011).

Jury instructions. - Trial court did not err in instructing the jury because the jury was expressly informed of the act or threat of violence element of the crime and defendant's proposed instructions on contact would have suggested a narrower range of prohibited contact than the protective order's broad prohibition forbidding contact of any time. Walton v. Commonwealth,, 2015 Va. App. LEXIS 128 (Apr. 14, 2015).

Evidence sufficient. - Evidence was sufficient to support defendant's conviction of violating a protective order based on a threat of violence where given the victim's problems with defendant in the past, the fact that defendant was holding a then-unknown object, and defendant was approaching at a fast clip the jury was entitled to accept the victim's testimony that he was nervous and scared. In addition, defendant allowed his German Shepherd dog to approach the scene without a leash and go to the door of the victim's truck while barking and baring his teeth. Walton v. Commonwealth,, 2015 Va. App. LEXIS 128 (Apr. 14, 2015).

Evidence supported the trial court's finding that defendant's acts amounted to stalking and that defendant twice violated a protective order because the victim, defendant's former paramour, testified as to receiving harassing phone calls and text messages and as to defendant following the victim to a convenience store on two occasions. Additionally, defendant admitted to seeing the victim in the store parking lot on one date, while receipts from the store on the two dates were found in defendant's residence. Peters v. Commonwealth, No. 1888-15-1, 2016 Va. App. LEXIS 315 (Ct. of Appeals Nov. 15, 2016).

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

§ 18.2-60.5. Unauthorized use of electronic tracking device; penalty.

  1. Any person who installs or places an electronic tracking device through intentionally deceptive means and without consent, or causes an electronic tracking device to be installed or placed through intentionally deceptive means and without consent, and uses such device to track the location of any person is guilty of a Class 1 misdemeanor.
  2. The provisions of this section shall not apply to the installation, placement, or use of an electronic tracking device by:
    1. A law-enforcement officer, judicial officer, probation or parole officer, or employee of the Department of Corrections when any such person is engaged in the lawful performance of official duties and in accordance with other state or federal law;
    2. The parent or legal guardian of a minor when tracking (i) the minor or (ii) any person authorized by the parent or legal guardian as a caretaker of the minor at any time when the minor is under the person's sole care;
    3. A legally authorized representative of an incapacitated adult, as defined in § 18.2-369 ;
    4. The owner of fleet vehicles, when tracking such vehicles;
    5. An electronic communications provider to the extent that such installation, placement, or use is disclosed in the provider's terms of use, privacy policy, or similar document made available to the customer; or
    6. A registered private investigator, as defined in § 9.1-138 , who is regulated in accordance with § 9.1-139 and is acting in the normal course of his business and with the consent of the owner of the property upon which the electronic tracking device is installed and placed. However, such exception shall not apply if the private investigator is working on behalf of a client who is subject to a protective order under § 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-279.1, 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 or subsection B of § 20-103 , or if the private investigator knows or should reasonably know that the client seeks the private investigator's services to aid in the commission of a crime.
  3. For the purposes of this section:

    "Electronic tracking device" means an electronic or mechanical device that permits a person to remotely determine or track the position and movement of another person.

    "Fleet vehicle" means (i) one or more motor vehicles owned by a single entity and operated by employees or agents of the entity for business or government purposes, (ii) motor vehicles held for lease or rental to the general public, or (iii) motor vehicles held for sale by motor vehicle dealers.

    (2013, c. 434; 2020, c. 140.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2020 amendments. - The 2020 amendment by c. 140 substituted "Class 1 misdemeanor" for "Class 3 misdemeanor" in subsection A; and made stylistic changes.

CIRCUIT COURT OPINIONS

Sufficiency of evidence. - Defendant violated the statute because he surreptitiously installed an electronic tracking device in the victim's vehicle without her consent, and he used the device to track the victim's location; defendant placed the device on the vehicle at a time and place and in a manner where he would not be observed by the victim, and he knew that by placing a tracking device on the victim's primary vehicle, he would be tracking the victim when she had their child in the car and when she did not. Commonwealth v. Blacker, 94 Va. Cir. 50, 2016 Va. Cir. LEXIS 118 (Fairfax County July 18, 2016).

Article 7. Criminal Sexual Assault.

§ 18.2-61. Rape.

  1. If any person has sexual intercourse with a complaining witness, whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim, he or she shall be guilty of rape.
  2. A violation of this section shall be punishable, in the discretion of the court or jury, by confinement in a state correctional facility for life or for any term not less than five years; and in addition:
    1. For a violation of clause (iii) of subsection A where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or § 18.2-48 , (ii) § 18.2-89 , 18.2-90 , or 18.2-91 , or (iii) § 18.2-51.2 , the punishment shall include a mandatory minimum term of confinement of 25 years; or
    2. For a violation of clause (iii) of subsection A where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life. The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence. If the term of confinement imposed for any violation of clause (iii) of subsection A, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant's life, subject to revocation by the court. There shall be a rebuttable presumption that a juvenile over the age of 10 but less than 12, does not possess the physical capacity to commit a violation of this section. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
  3. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 . If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1 , the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness. (Code 1950, § 18.1-44; 1960, c. 358; 1972, c. 394; 1975, cc. 14, 15, 606; 1981, c. 397; 1982, c. 506; 1986, c. 516; 1994, cc. 339, 772, 794; 1997, c. 330; 1999, c. 367; 2002, cc. 810, 818; 2005, c. 631; 2006, cc. 853, 914; 2012, cc. 575, 605; 2013, cc. 761, 774.)

Cross references. - As to punishment for attempted rape, see §§ 18.2-26 and 18.2-67.5 .

As to admissibility of evidence regarding the prosecutrix' chastity or prior sexual conduct, see § 18.2-67.7 .

For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to arrest policies and procedures in domestic violence and family abuse cases, see Chapter 13 ( § 9.1-1300 et seq.) of Title 9.1.

As to unenforceability of employee nondisclosure or confidentiality agreement regarding sexual assault, see § 40.1-28.01 .

For provision that consent to adoption shall not be required of the birth father when the father has been convicted of a violation of § 18.2-61 A, § 18.2-63 , or § 18.2-366 B, see § 63.2-1202 F.

As to validity of an entrustment agreement for termination of parental rights, despite lack of birth father's signature, when the father has been convicted of a violation of § 18.2-61 A, § 18.2-63 , or § 18.2-366 B, and the child in question was conceived as a result of such violation, see § 63.2-903 C and § 63.2-1222 .

For definition of "barrier crime" as including a conviction of sexual assault as set out in § 18.2-61 et seq., or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including sexual assault as set out in § 18.2-61 et seq., or an equivalent offense in another state, see § 63.2-1726 .

Editor's note. - This article was enacted by Acts 1975, c. 606. Pursuant to § 30-152, it has been substituted for §§ 18.2-61 through 18.2-67 as enacted by Acts 1975, cc. 14 and 15.

The 1997 amendment substituted "less than 12" for "less than 14" in the second sentence of subsection C.

The 1999 amendment substituted "bodily" for "serious physical" in the last paragraph of subsection B.

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and deleted the second paragraph in subsection B, which read: "However, no person shall be found guilty under this subsection unless, at the time of the alleged offense, (i) the spouses were living separate and apart, or (ii) the defendant caused bodily injury to the spouse by the use of force or violence."

The 2005 amendments. - The 2005 amendment by c. 631, in subsection A, substituted "whether or not" for "who is not"; deleted former subsection B which read: "If any person has sexual intercourse with his or her spouse and such act is accomplished against the spouse's will by force, threat or intimidation of or against the spouse or another, he or she shall be guilty of rape."; redesignated former subsections C and D as subsections B and C; substituted "under this section against a spouse" for "subsection B" in subsection B; in subsection C, substituted "this section" for "subsection B," inserted "when a spouse is the complaining witness" preceding "in any case tried," and "who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection" preceding "and with the consent"; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendments by cc. 853 and 914 are nearly the same, and in subsection B, in the first paragraph, added the language beginning "the penalty for a violation" to the end of the first sentence and the last two sentences.

The 2012 amendments. - The 2012 amendments by cc. 575 and 605 are identical, and rewrote subsection B.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added the first sentence of the paragraph following subdivision B 2.

Law review. - For note, "Recent Statutory Developments in the Definition of Forcible Rape," see 61 Va. L. Rev. 1500 (1975). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For article discussing constitutional problems with "rape shield" laws, see 18 Wm. & Mary L. Rev. 1 (1976). For survey of Virginia law on evidence for the year 1975-1976, see 62 Va. L. Rev. 1442 (1976). For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982). For comment on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983). For note, "Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings," see 70 Va. L. Rev. 1657 (1984). For comment, "Sexism and the Common Law: Spousal Rape in Virginia," see 8 Geo. Mason U.L. Rev. 369 (1986).

For an article, "Sex and Guilt," see 84 Va. L. Rev. 1 (1998).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Research References. - Virginia Forms (Matthew Bender). No. 9-509 Indictment -- Rape.

Michie's Jurisprudence. - For related discussion, see 1A Adduction and Kidnapping, § 1; 2C M.J. Autrefois, Acquit and Convict, § 16; 9B M.J. Husband and Wife, § 87; 15 M.J. Rape and Other Statutory Offenses, §§ 2, 3, 4, 6, 9, 27.

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's note. - Attention is directed to the fact that many of the cases in the following annotations were decided under this article as it read before the extensive amendments in Acts 1981, c. 397.

Rape may be committed as well on a woman unchaste, or a common prostitute, as on any other woman. In matter of evidence, however, want of chastity may, within recognized limits, be shown as rendering it more probable that she consented. Christian v. Commonwealth, 64 Va. (23 Gratt.) 954 (1873); Bailey v. Commonwealth, 82 Va. 107 (1886); Fry v. Commonwealth, 82 Va. 334 (1886)But see § 18.2-67.7 .

History of section. - See Hart v. Commonwealth, 131 Va. 726 , 109 S.E. 582 (1921).

For case holding that abduction and rape were different offenses and that the several penalties imposed did not offend the double jeopardy guarantee against multiple punishments, see Brown v. Commonwealth, 230 Va. 310 , 337 S.E.2d 711 (1985).

Court erred in failing to strike a juror where she would have required a defendant to prove sexual consent from a rape victim and this burden on the defendant was impermissible and the problem of the juror's "feeling" on consent was unaddressed. Bradbury v. Commonwealth, 40 Va. App. 176, 578 S.E.2d 93, 2003 Va. App. LEXIS 146 (2003).

Consensual intercourse with mentally retarded/impaired persons. - Statutes like this section must not be interpreted and applied in a manner that creates an unintended rule that would prohibit all mentally impaired or retarded persons from engaging in consensual sexual intercourse without having their partners commit a felony. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

When a mentally impaired or mentally retarded person has sufficient cognitive and intellectual capacity to comprehend or appreciate that he or she is engaging in intimate or personal sexual behavior which later may have some effect or residual impact upon the person, upon the person's partner, or upon others, then the person does not have a "mental incapacity" within the meaning of the statute. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

If a person is mentally incapacitated but, nevertheless, has the capacity to understand the nature and consequences of the sexual act, which understanding includes the capacity to make a volitional choice to engage or not engage in such act, then that person's sexual partner has not violated the rape statute merely because a mentally impaired person has made an unwise decision or has chosen to be sexually active. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Failure to order bill of particulars when Commonwealth amended indictment not abuse of discretion. - Trial judge did not abuse his discretion by failing to order a bill of particulars when the Commonwealth amended one of the three rape indictments to allege a new offense date. The indictment was sufficient to apprise the appellant of the nature and character of the offense, as he had already entered his plea prior to his bill of particulars request. In a statutory rape case, when the age of the victim is not in dispute, time is not of the essence of such an offense, and the Commonwealth is not required to specify the exact date. Yeager v. Commonwealth, 16 Va. App. 761, 433 S.E.2d 248 (1993).

Two-year reporting delay not inherently incredible. - Although two years passed before victim - who was 12 years of age at time of the offense - reported the crime to police, she had related the incident to two friends immediately after it occurred, and one testified at trial, corroborating victim's evidence. Under the circumstances, her failure to immediately report the rape did not render her testimony inherently incredible as a matter of law. The jury was entitled to attribute such significance as it deemed appropriate to this delay. West v. Commonwealth, No. 1766-93-2 (Ct. of Appeals Feb. 7, 1995).

No error in failing to strike juror. - In a case in which defendant appealed his conviction for rape, in violation of § 18.2-61 , he argued unsuccessfully on appeal that the trial court erred in denying his motion to strike two prospective jurors, who indicated they were friends with police officers, based on their statements during voir dire. In light of the O'Dell decision, the two prospective jurors were not impermissibly biased in favor of police testimony, bias could not be presumed from the entirety of their statements during voir dire, and defendant had made claim during jury selection that any credibility determinations involving a police officer's testimony would be put to the jury. Weeks v. Commonwealth, No. 2837-07-3, 2009 Va. App. LEXIS 368 (Aug. 18, 2009).

Lesser-included offense. - Under this section, aggravated sexual battery is not a lesser-included offense of rape. Fisher v. Commonwealth, No. 0278-00-4 CHIEF, 2001 Va. App. LEXIS 342 (Ct. of Appeals June 19, 2001).

The offense of carnally knowing a child under 14 years of age without the use of force is not a lesser-included offense of rape, and the Commonwealth did not violate defendant's right against double jeopardy under the federal or state Constitutions by seeking an indictment for carnally knowing a child after a rape charge against defendant was dismissed. Ragsdale v. Commonwealth, 38 Va. App. 421, 565 S.E.2d 331, 2002 Va. App. LEXIS 366 (2002).

Applied in Woodward v. Commonwealth, 12 Va. App. 118, 402 S.E.2d 244 (1991); Clifton v. Commonwealth, 22 Va. App. 178, 468 S.E.2d 155 (1996); Crawford v. Commonwealth, 23 Va. App. 661, 479 S.E.2d 84 (1996); Terry v. Cross, 112 F. Supp. 2d 543, 2000 U.S. Dist. LEXIS 13315 (E.D. Va. 2000); Richardson v. Commonwealth, 42 Va. App. 236, 590 S.E.2d 618, 2004 Va. App. LEXIS 8 (2004); McBride v. Commonwealth, 44 Va. App. 526, 605 S.E.2d 773, 2004 Va. App. LEXIS 597 (2004); Johnson v. Commonwealth, 53 Va. App. 608, 674 S.E.2d 541, 2009 Va. App. LEXIS 157 (2009); Haas v. Commonwealth, 71 Va. App. 1, 833 S.E.2d 886, 2019 Va. App. LEXIS 237 (2019).

II. ELEMENTS OF OFFENSE.
A. PENETRATION.

Penetration is an essential element of the crime of rape, and without it there can be no rape. Bailey v. Commonwealth, 82 Va. 107 (1886).

The essential element of penetration must be proved beyond a reasonable doubt. McCall v. Commonwealth, 192 Va. 422 , 65 S.E.2d 540 (1951).

Under an indictment charging statutory rape of a child, as well as one charging the common-law offense of rape of an adult woman, the prosecution must prove that there has been an actual penetration to some extent of the male sexual organ into the female sexual organ. McCall v. Commonwealth, 192 Va. 422 , 65 S.E.2d 540 (1951); Strawderman v. Commonwealth, 200 Va. 855 , 108 S.E.2d 376 (1959).

If penetration did not occur, under Virginia law, the substantive crime would not have been committed. Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S. Ct. 80, 21 L. Ed. 2d 120 (1968).

Rape contemplates and requires penetration as an essential element of the crime. Black v. Peyton, 292 F. Supp. 45 (W.D. Va. 1968).

Because the terms "intimate relations," "sexual relations," "intimate," and "regular sex," employed by the police during an interview with defendant were not precise, and might or might not include penetration, the evidence was insufficient to prove penetration, which was an essential element of rape. Motameni v. Commonwealth,, 2005 Va. App. LEXIS 441 (Nov. 1, 2005).

But emission is not. - It seems, however, that penetration alone, without emission, constitutes the crime of rape. Commonwealth v. Thomas, 3 Va. (1 Va. Cas.) 307 (1812).

Virginia law does not require proof of emission as an element of the crime of rape, although it recognizes negative proof of emission as a strong circumstance indicating lack of penetration. Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S. Ct. 80, 21 L. Ed. 2d 120 (1968).

The fact that the man's penis was placed on, not in, the woman's sexual organ was insufficient to establish the element of penetration. Moore v. Commonwealth, 254 Va. 184 , 491 S.E.2d 739 (1997).

Slight penetration sufficient. - Penetration by a penis of a vagina is an essential element of the crime of rape; proof of penetration, however slight the entry may be, is sufficient. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Penetration can be established by circumstantial, as well as direct, evidence. Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356 (1986).

Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence. Patrick v. Commonwealth, 27 Va. App. 655, 500 S.E.2d 839 (1998).

Testimonies of victim and doctor sufficient to prove penetration. - Although 12-year-old victim never testified directly that defendant achieved penetration, her testimony, in conjunction with the testimony of doctor was sufficient to prove the element of penetration. Morrison v. Commonwealth, 10 Va. App. 300, 391 S.E.2d 612 (1990).

Use of doll in order to aid 11-year-old victim in explaining her testimony, was entirely appropriate and there was no abuse of discretion in the trial court's ruling allowing it. Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356 (1986).

Testimony of 11-year-old victim sufficient if penetration can be reasonably inferred. - Where an 11-year-old girl was attempting to describe, with difficulty, where the defendant had put his penis "in" her, since it could not be expected that children would know enough to use the word "vagina," nor was such specificity required, it was enough if the trier of fact could reasonably infer from the evidence adduced where the penetration took place. Kehinde v. Commonwealth, 1 Va. App. 342, 338 S.E.2d 356 (1986).

Victim's testimony sufficient to prove penetration. - Victim's use of the term "into" connoted penetration, particularly when viewed with her testimony that defendant undressed her, got on top of her, and wore a condom when they had sex, and thus, was sufficient to show the essential element of penile-vaginal penetration necessary to support defendant's conviction for rape. Robinson v. Commonwealth, No. 0301-04-2, 2005 Va. App. LEXIS 63 (Ct. of Appeals Feb. 15, 2005).

Separate acts of penetration. - Defendant was guilty of three separate counts of rape when as he raped victim the first time, he had the knife at her throat; the second rape occurred after he had taken the victim down the hall to the bathroom, returned, told her to get on the bed and turn over; the third rape occurred after the act of sodomy and after he had told her to sleep. Clearly, the evidence supported three separate acts of penetration. Carter v. Commonwealth, 16 Va. App. 118, 428 S.E.2d 34 (1993).

B. FORCE.

The legislative intent in the 1981 amendment was to include a prohibition against sexual intercourse with a woman against her will by threat or intimidation, which expanded the parameters of rape. Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985).

Under this section prior to its 1981 amendment, it was necessary to prove sexual intercourse against the victim's will by force. Under the amended statute it is sufficient to prove sexual intercourse against the victim's will by force, threat or intimidation. Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985).

Meaning of "threat" and "intimidation." - There is a difference between threat and intimidation. As used in this section, threat means expression of an intention to do bodily harm. Intimidation may occur without threats. Intimidation, as used in this section, means putting a victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her will. Intimidation may be caused by the imposition of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to such pressure. Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985).

There is no standard of reasonableness expressly provided by this section. Moreover, the cases from other jurisdictions do not universally hold that in rape cases the fear induced by the defendant's intimidating actions must be judged by an objective standard of reasonableness. Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985).

Where the evidence shows that an atmosphere of fear was developed and maintained by the defendant to intimidate a 15-year-old physically handicapped girl and that her fear of bodily harm was reasonable, such evidence is sufficient to affirm defendant's conviction of rape. Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985); Mings v. Commonwealth, 85 Va. 638 , 8 S.E. 474 (1889); Bradley v. Commonwealth, 196 Va. 1126 , 86 S.E.2d 828 (1955); Satterwhite v. Commonwealth, 201 Va. 478 , 111 S.E.2d 820 (1960); Barnett v. Commonwealth, 216 Va. 200 , 217 S.E.2d 828 (1975); Schrum v. Commonwealth, 219 Va. 204 , 246 S.E.2d 893 (1978); Snyder v. Commonwealth, 220 Va. 792 , 263 S.E.2d 55 (1980).

A carnal connection with no consent may provide sufficient force. - Whenever there is a carnal connection and no consent in fact, fraudulently obtained, or otherwise, there is evidently, in the wrongful act itself, all the force which the law demands as an element of the crime. Bailey v. Commonwealth, 82 Va. 107 (1886).

Commonwealth not required to prove force when victim is under thirteen. - Because a complaining witness was under the age of thirteen at the time of alleged sexual abuse by petitioner, the Commonwealth was not required to prove force, threat, or intimidation under §§ 18.2-61 and 18.2-67.1 . Cairns v. Johnson,, 2008 U.S. App. LEXIS 4128 (4th Cir. Feb. 26, 2008), cert. denied, 129 S. Ct. 581, 2008 U.S. LEXIS 8293, 172 L. Ed. 2d 439 (U.S. 2008).

Evidence of intimidation sufficient. - Defendant's statement that he was angry and displayed a knife when he ordered his 14-year-old stepdaughter to disrobe and that he threatened her supported the trial court's conclusion that he used intimidation to facilitate sexual intercourse with the victim. Campbell v. Commonwealth,, 2006 Va. App. LEXIS 571 (Dec. 19, 2006).

Finding that petitioner accomplished forcible sodomy and rape by intimidation within the meaning of §§ 18.2-61 and 18.2-67.1 was supported by evidence showing that the complaining witness, petitioner's stepdaughter, did not want to engage in sexual activity with petitioner, that the stepdaughter did not resist because petitioner was more powerful than she was, that the stepdaughter was afraid of petitioner when he was angry, that the stepdaughter's mother participated in the abuse, and that petitioner had physically abused his wife and one of his sons in the stepdaughter's presence. Cairns v. Johnson,, 2008 U.S. App. LEXIS 4128 (4th Cir. Feb. 26, 2008), cert. denied, 129 S. Ct. 581, 2008 U.S. LEXIS 8293, 172 L. Ed. 2d 439 (U.S. 2008).

Defendant was properly convicted of two counts of rape because the evidence established that defendant had sexual intercourse with the victim, defendant's teenage niece, against the victim's will by force and intimidation when the victim was visiting defendant and defendant's girlfriend and was a guest in their home. Davis v. Commonwealth,, 2014 Va. App. LEXIS 140 (Apr. 15, 2014).

As to jury questions on issue of force, see Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952); Schrum v. Commonwealth, 219 Va. 204 , 246 S.E.2d 893 (1978).

Use of force shown. - Evidence that defendant pushed the victim down a hall toward a bedroom where he raped her was sufficient proof of the use of force. Sabol v. Commonwealth, 37 Va. App. 9, 553 S.E.2d 533, 2001 Va. App. LEXIS 567 (2001).

Use of force not shown. - Evidence that defendant threatened to withhold victim's privilege to use the family car and to withhold money from her, if she did not have sex with him, was not sufficient evidence of force, threat or intimidation to support a rape conviction, since the victim was not in fear of bodily harm. Sabol v. Commonwealth, 37 Va. App. 9, 553 S.E.2d 533, 2001 Va. App. LEXIS 567 (2001).

C. CONSENT.

In general. - It is essential in order to constitute the crime of rape that the accused should have had connection with the prosecutrix against her will and consent. Bailey v. Commonwealth, 82 Va. 107 (1886); Brown v. Commonwealth, 82 Va. 653 (1886).

Viewing the evidence in the light most favorable to the Commonwealth, it did not prove its contention that the victim was so drunk that she could not give her consent to the acts committed by appellant. Howard v. Commonwealth, 21 Va. App. 473, 465 S.E.2d 142 (1995).

Purpose. - The legislative purpose of clause (ii) of subsection A of this section is to protect persons who are mentally impaired or retarded from being sexually exploited due to their mental incapacity. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Legislative intent. - Manifestly, the legislature did not intend to include as part of the protected class of people under clause (ii) of subsection A of this section those whose mental impairment or handicap may prevent them from comprehending the more complex aspects of the nature or consequences of sexual intercourse, but who, nevertheless, have the mental capacity to have a basic understanding of the elementary and rudimentary nature and consequences of sexual intercourse. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Employee's proposed amendment (amending her complaint to allege that her discharge followed from her refusal to commit fornication, lewd and lascivious behavior and sexual assault under Virginia law) would have been futile because the Virginia Supreme Court had struck down § 18.2-344 as unconstitutional, the hug the employee complained of did not even begin to approach the sort of "open and gross lewdness" § 18.2-345 prohibited, and it was legally impossible to consent to sexual assault. Balas v. Huntington Ingalls Indus., 711 F.3d 401, 2013 U.S. App. LEXIS 5199 (4th Cir. Mar. 15, 2013).

Virginia law interposes consent as an absolute bar to a prosecution for rape when the alleged victim is over the age of consent. Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), cert. denied, 393 U.S. 849, 89 S. Ct. 80, 21 L. Ed. 2d 120 (1968).

Previous want of chastity is relevant and probative evidence of consent. Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), cert. denied, 393 U.S. 849, 89 S. Ct. 80, 21 L. Ed. 2d 120 (1968)But see § 18.2-67.7 .

A consent induced by fear of bodily harm or personal violence is no consent; and though a man lay no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, he is guilty of rape by having the unlawful intercourse. Bailey v. Commonwealth, 82 Va. 107 (1886).

Likewise, submission through fear to sexual intercourse is not consent. Even under the pre-1981 definition of rape, where the intercourse was induced through fear of a person whom the victim was accustomed to obey, such as a person standing in loco parentis. Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985).

Mental incapacity. - Term "mental incapacity" as used in §§ 18.2-67.10 and 18.2-61 may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand "the nature or consequences of the sexual act." Molina v. Commonwealth, 272 Va. 666 , 636 S.E.2d 470, 2006 Va. LEXIS 106 (2006).

Evidence was sufficient to show the complaining witness' mental incapacity and defendant's knowledge thereof, where the complainant's IQ was well below the cutoff point and she, while 18 years old, functioned on the level of an eight year old. Desper v. Commonwealth,, 2011 Va. App. LEXIS 343 (Nov. 8, 2011).

Because the trial court properly found that the victim was mentally incapacitated at the time of the attempted rape, the victim was not legally capable of consenting to engage in sexual acts with defendant; defendant's contention that any sexual activity that he intended to engage in with the victim was based on mutual consent was irrelevant. Diggs v. Commonwealth, No. 2125-16-1, 2018 Va. App. LEXIS 22 (Jan. 30, 2018).

Not all persons who are mentally retarded or handicapped need the special protection of clause (ii) of subsection A of this section. The range of intellectual functioning among the mentally impaired and mentally retarded varies widely. The statute was not designed to unfairly punish the sexual partners of those mentally impaired or mentally retarded persons who have a basic understanding of the act and consequences of sexual intercourse and are capable of making volitional choice to engage or not engage in such conduct. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Corroboration of defense of consent. - In a prosecution for rape and sodomy, where the defense was that prosecutrix consented to the sexual acts, it was error for the court not to permit corroborative testimony suggesting that prosecutrix's conduct was sexually solicitous, not merely affectionate. Massey v. Commonwealth, 230 Va. 436 , 337 S.E.2d 754 (1985).

Evidence that act was not consensual held sufficient. - Although defendant claimed he engaged with victim in consensual sexual intercourse, victim testified that when these events were occurring, she said she didn't want to, she said she didn't want to get pregnant, and she said she wanted to go home; evidence, believed by the jury, was sufficient to prove beyond a reasonable doubt that the sexual intercourse was committed against her will and without her consent. Inge v. Commonwealth, No. 1628-98-2, 2000 Va. App. LEXIS 457 (Ct. of Appeals June 20, 2000).

Prosecutrix in second trial could not testify as to lack of consent in first trial. - The court's ruling in the first trial of defendant for rape that the testimony of the prosecutrix in the second trial of defendant for rape was proper to prove a lack of consent by the prosecutrix in the first trial was reversible error. The fact that prosecutrix in the second trial had been attacked nine days after the offenses under indictment had no bearing as to whether prosecutrix in the first trial consented to the intercourse. It merely showed that defendant had a propensity to commit this type of crime. This is precisely what the prosecution is not allowed to show in a criminal case. Foster v. Commonwealth, 5 Va. App. 316, 362 S.E.2d 745 (1987).

III. ATTEMPT TO COMMIT RAPE.

Attempted rape consists of the intent to engage in sexual intercourse, and some direct, yet ineffectual, act towards its consummation. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Double jeopardy. - Sexual battery and attempted rape were separate and distinct offenses under facts in case at bar, and thus defendant could not have been twice convicted for the same offense in violation of double jeopardy. Haynes v. Commonwealth, No. 1778-98-3 (Ct. of Appeals Oct. 5, 1999).

This section and § 18.2-26 , relating to attempts, are in pari materia and must be considered together, and compared with each other in the construction of their various material provisions. Buzzard v. Commonwealth, 134 Va. 641 , 114 S.E. 664 (1922).

Upon an indictment for rape, the accused may be found guilty of an attempt to commit a rape. Givens v. Commonwealth, 70 Va. (29 Gratt.) 830 (1878); Lawrence v. Commonwealth, 71 Va. (30 Gratt.) 845 (1878) overruled on another point in Jones v. Commonwealth, 87 Va. 65 , 12 S.E. 226 (1890); Mings v. Commonwealth, 85 Va. 638 , 8 S.E. 474 (1889); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889); Cates v. Commonwealth, 111 Va. 837 , 69 S.E. 520 (1910). See § 19.2-286 .

The intent to commit rape is an essential element of the crime of an attempt to commit rape. Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889); Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919). See Lufty v. Commonwealth, 126 Va. 707 , 100 S.E. 829 (1919).

Inference of specific intent. - The evidence need not show that the defendant touched the victim's sexual organs or removed the victim's clothing to reasonably infer the specific intent to rape. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Sufficiency of evidence of intent. - Where the purpose of the accused to have intercourse with the prosecutrix appeared from his own testimony, and his employment of force to accomplish that purpose was sworn to by the prosecutrix, and by her brother, in corroboration of her testimony, there was sufficient evidence before the jury to support their verdict in finding the existence of a felonious intent on the part of the accused. Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

The evidence that the defendant forcibly took a young child into a vacant bathroom, covering her mouth so that she could not call for her mother, and that while removing his erect penis from his pants he directed the child to bend over in a position that would facilitate his rape, was sufficient to prove that the defendant took direct, yet ineffectual, steps towards the commission of rape. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Proof of mere persuasion or solicitation on the part of the accused is insufficient to support the charge. Mings v. Commonwealth, 85 Va. 638 , 8 S.E. 474 (1889); Hairston v. Commonwealth, 97 Va. 754 , 32 S.E. 797 (1899). See Commonwealth v. Fields, 31 Va. (4 Leigh) 648 (1832); Woodson v. Commonwealth, 107 Va. 895 , 59 S.E. 1097 (1908); Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

An element is the doing of some act towards the commission of the crime. Christian v. Commonwealth, 64 Va. (23 Gratt.) 954 (1873); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889); Cunningham v. Commonwealth, 88 Va. 37 , 13 S.E. 309 (1891). See Commonwealth v. Clark, 47 Va. (6 Gratt.) 675 (1849).

The elements of the offense of abduction with intent to defile are separate and distinct from the elements of attempted rape. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

Instruction as to attempted rape in trial for abduction with intent to defile. - Even if the proof adduced at defendant's trial for abduction with intent to defile was sufficient to show that a rape was attempted, defendant was not entitled to an instruction on the offense of attempted rape, with which he was not specifically charged, as it was not a necessarily included lesser offense of the crime with which he was charged. Simms v. Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986).

Error in admitting evidence of attempted rape. - The trial court in defendant's rape trial erred in admitting evidence of an attempted rape for which he was not being tried, since entering a women's public restroom and displaying a knife to a victim is not so unusual as to serve as a signature, and the similarities of the two crimes were not sufficient to establish a common perpetrator. White v. Commonwealth, 9 Va. App. 366, 388 S.E.2d 645 (1990), overruled on other grounds, Lavinder v. Commonwealth, 12 Va. App. 1003, 407 S.E.2d 910 (1991).

Evidence sufficient to support attempted rape conviction. - Evidence was sufficient to support a conviction of attempted rape, § 18.2-61 , because a reasonable fact finder could have found that by asking the victim for "a favor," forcing her to the ground from behind, and attempting to remove her pants, defendant was preparing to have nonconsensual sexual intercourse with the victim; because the Commonwealth proved that defendant had the requisite intent, only a slight act in furtherance of the crime was required. Moreover, because, after the victim threw money behind her head, defendant did not get off of her, but instead he remained on top of her, and continued to force her to the ground, a reasonable fact finder could have found these actions to have been overt acts in furtherance of the commission of a rape. Futrell v. Commonwealth, No. 0207-06-1, 2007 Va. App. LEXIS 83 (Ct. of Appeals Mar. 13, 2007).

IV. EVIDENCE.
A. COMPLAINTS AND OUTCRIES.

An out-of-court complaint alone does not constitute sufficient evidence of rape. McManus v. Commonwealth, 16 Va. App. 475, 429 S.E.2d 475 (1993).

Fact that prosecutrix made complaint is admissible. - In prosecutions for rape the fact that the person injured made complaint recently after the commission of the offense is admissible, and the absence of such complaint would be suspicious. The proof of such offenses depends in a great measure upon the testimony of a single witness, and therefore every test should be applied to her integrity for the safety of the accused. Brogy v. Commonwealth, 51 Va. (10 Gratt.) 722 (1853).

The only exception to the general rule excluding, as hearsay evidence, the statements or declarations of parties which constitute complaints is the exception in cases of rape. Such a victim must at once make complaint, or she will be suspected of consent. But even in such cases the evidence is confined to the complaint, and no detailed statement of the transaction is permitted to go in evidence. Haynes v. Commonwealth, 69 Va. (28 Gratt.) 942 (1877).

Under a rule unique to rape cases, evidence of an out-of-court complaint by an alleged rape victim is admissible, not as independent evidence of the offense, but as corroboration of the victim's testimony. Cartera v. Commonwealth, 219 Va. 516 , 248 S.E.2d 784 (1978).

But particulars of complaint are not. - Though it is competent to prove the fact of a recent complaint by the female for the purpose of sustaining her credit, it is not competent to prove the particulars of her complaint. Brogy v. Commonwealth, 51 Va. (10 Gratt.) 722 (1853).

Only the fact that the complaint was made is admissible, neither the details of the alleged offense nor a description of the alleged assailant, as reported by the victim, may be admitted. Cartera v. Commonwealth, 219 Va. 516 , 248 S.E.2d 784 (1978).

The failure to report an alleged rape by force and violence for an unreasonable period after the incident occurred casts suspicion and doubt on the truthfulness of the story of a prosecutrix unless there is a credible explanation given for such a delay. Willis v. Commonwealth, 218 Va. 560 , 238 S.E.2d 811 (1977).

The testimony concerning rape victim's mental disability bears directly upon the issue of her resistance and the amount of force necessary to overcome her will. Jerry v. Commonwealth, No. 0075-86-2 (Ct. of Appeals Feb. 13, 1990).

Weight of failure to make outcry or complaint a jury question. - The failure to make outcry in prosecutions for rape, or attempt to commit rape, is a fact tending to disprove the good faith of the charge, but raises no presumption of law that the prosecutrix has sworn falsely; it is a circumstance to be weighed by the jury. Delay in making complaint is treated likewise. Broaddus v. Commonwealth, 126 Va. 733 , 101 S.E. 321 (1919).

Appearance of female admissible to show force and resistance. - The state and appearance of the female, any marks of violence, and the condition of her dress shortly after the occurrence, are admissible to show force and resistance. Brogy v. Commonwealth, 51 Va. (10 Gratt.) 722 (1853); Bailey v. Commonwealth, 82 Va. 107 (1886). See Boxley v. Commonwealth, 65 Va. (24 Gratt.) 649 (1874).

Victim's failure to testify not bar. - A rape victim's complaint corroborates more than his or her testimony; it also corroborates the occurrence of the rape itself, no reason justifies limiting the rule to corroboration of a victim's testimony and therefore the rule allowing admission of rape victim's out-of-court complaint is applicable to corroborate other independent evidence of the offense. McManus v. Commonwealth, 16 Va. App. 475, 429 S.E.2d 475 (1993).

Magazine properly admitted. - Pornographic magazine which contained sexually explicit photographs and articles depicting male and female genitalia and persons engaged in heterosexual and homosexual sex, which defendant possessed in back pocket at the time of the attempted rape was relevant to prove his state of mind and motive. The trial court specifically instructed the jury that the magazine was admissible only to show the defendant's state of mind at the time and that they were free to accept or reject its probative value on this issue. Therefore, the trial court did not abuse its discretion in admitting the pornographic magazine for this purpose. Washington v. Commonwealth, No. 1730-94-2 (Ct. of Appeals Nov. 7, 1995).

B. WEIGHT AND SUFFICIENCY.

Circumstantial evidence will uphold verdict. - A verdict of guilty of rape ought not to be set aside by the appellate court because it depends on circumstantial evidence, especially where the court which tried the cause did not think proper to disturb it. Commonwealth v. Bennet, 4 Va. (2 Va. Cas.) 235 (1820).

The necessary element of sexual intercourse may be proven by circumstantial as well as by direct evidence. McCall v. Commonwealth, 192 Va. 422 , 65 S.E.2d 540 (1951).

As will the uncorroborated testimony of prosecutrix. - In prosecutions for rape the accused may be legally convicted on the sole and uncorroborated testimony of the prosecutrix and this is true even though the prosecutrix be a child of tender years. The weight to be given to her testimony is a question exclusively for the jury. Givens v. Commonwealth, 70 Va. (29 Gratt.) 830 (1878); Bailey v. Commonwealth, 82 Va. 107 (1886). See Smith v. Commonwealth, 85 Va. 924 , 9 S.E. 148 (1889); Glover v. Commonwealth, 86 Va. 382 , 10 S.E. 420 (1889); Lear v. Commonwealth, 195 Va. 187 , 77 S.E.2d 424 (1953); Robinson v. Commonwealth, 197 Va. 754 , 91 S.E.2d 396 (1956).

If the evidence of the Commonwealth is credible and from it the guilt of the accused is believed by the jury beyond a reasonable doubt, it is sufficient to sustain a conviction of rape, and this is true even though the evidence consists only of the uncorroborated testimony of the prosecutrix. But if the evidence is inherently incredible or so contrary to human experience or to usual human behavior as to render it unworthy of belief, it is not sufficient to warrant a verdict of guilty beyond a reasonable doubt. Bradley v. Commonwealth, 196 Va. 1126 , 86 S.E.2d 828 (1955).

Corroboration of the prosecutrix in a rape case is not essential and her testimony alone is sufficient to sustain a conviction if it is credible and the guilt of the accused is believed by the jury beyond a reasonable doubt. Fogg v. Commonwealth, 208 Va. 541 , 159 S.E.2d 616 (1968).

In a rape case, it is not necessary for the testimony of the prosecutrix to be corroborated, and her testimony alone is sufficient to sustain a conviction. Barnett v. Commonwealth, 216 Va. 200 , 217 S.E.2d 828 (1975).

A conviction of rape may be sustained on the uncorroborated testimony of a prosecutrix if her evidence is credible, and the guilt of the accused is believed by the jury beyond a reasonable doubt. Willis v. Commonwealth, 218 Va. 560 , 238 S.E.2d 811 (1977).

A conviction of rape may be sustained solely upon the testimony of the prosecutrix. Snyder v. Commonwealth, 220 Va. 792 , 263 S.E.2d 55 (1980).

Unless incredible. - While the uncorroborated testimony of the prosecutrix, when credible, is sufficient to support a conviction, the Supreme Court has consistently refused to approve a conviction where such testimony is contrary to human experience and is inherently incredible. Barker v. Commonwealth, 198 Va. 500 , 95 S.E.2d 135 (1956).

The conviction of a man 70 years of age of the crime of rape on the uncorroborated evidence of the woman, who made no complaint until after the birth of a child, and whose evidence otherwise bears the impress of falsehood on its face, cannot be sustained, although the plaintiff in error stands in the Supreme Court as a demurrant to the evidence. The court cannot be expected to believe the incredible. Harvey v. Commonwealth, 103 Va. 850 , 49 S.E. 481 (1905).

It is not sufficient to warrant a verdict of guilty beyond a reasonable doubt if the evidence is inherently incredible, or so contrary to human experience or to usual human behavior as to render it unworthy of belief. Willis v. Commonwealth, 218 Va. 560 , 238 S.E.2d 811 (1977); Snyder v. Commonwealth, 220 Va. 792 , 263 S.E.2d 55 (1980).

Burden of proof. - In a prosecution for rape the burden is on the Commonwealth to prove the identity of the accused beyond a reasonable doubt. Fogg v. Commonwealth, 208 Va. 541 , 159 S.E.2d 616 (1968).

While it is true that the burden was on the Commonwealth to prove the identity of the accused beyond a reasonable doubt, the related evidence, which the trial court sitting as a jury accepted, was sufficient to meet this requirement and warrant a finding that the defendant was identified beyond a reasonable doubt as one of the persons who assaulted and raped the prosecutrix. Such finding is conclusive on appeal. Brickhouse v. Commonwealth, 208 Va. 533 , 159 S.E.2d 611 (1968).

A person may passively or suggestively take advantage of a mentally retarded or incapacitated individual; however, the fact that a victim may have diminished mental capacity does not relieve the Commonwealth of its burden of proving that the "mental incapacity" is that defined by subdivision 3 of § 18.2-67.10 . Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Seven of eight convictions against defendant for rape of a child less than 13-years-old in violation of § 18.2-61 could not stand because the Commonwealth did not meet its burden of proving beyond a reasonable doubt those offenses. The victim's testimony regarding the seven convictions that the sexual activity the victim had with defendant after a move to a new home was either "oral or intercourse sex" left the jury to speculate about whether the required rape element of sexual intercourse had occurred. Slate v. Commonwealth,, 2008 Va. App. LEXIS 113 (Mar. 11, 2008).

The fact finder cannot infer from proof of general mental incapacity or retardation or an IQ range or mental age that a victim is prevented or unable to understand the nature and consequences of a sexual act, unless the evidence proves that the victim lacks the ability to comprehend or appreciate either the distinguishing characteristics or physical qualities of the sexual act or the future natural behavioral or societal results or effects which may flow from the sexual act. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Evidence sufficient to show mental incapacity. - Denial of defendant's motion to strike on the ground of insufficient evidence of mental incapacity was not plainly wrong because a rational trier of fact could have found that at the time of the attempted rape, the victim was mentally incapacitated; a doctor testified that the victim functioned at the mental level of an eight to ten-year-old, the victim's mother testified that the victim was unable to tell the difference between right and wrong, and the victim was unable to live independently. Diggs v. Commonwealth, No. 2125-16-1, 2018 Va. App. LEXIS 22 (Jan. 30, 2018).

Evidence was sufficient to support finding that defendant was the criminal agent. - Where record contained evidence that appellant applied force, an element of rape, to victim when he abducted her; that the victim had been sexually assaulted; that both the victim and appellant had Type B blood (found only in 12 percent of the population) and both were Type B secretors; that Type B blood was found on appellant's shorts, inside the fly area and on his underpants; and that a foreign hair consistent with that of appellant was found in the victim's pubic hair, there was no other evidence in this record from which it reasonably could be inferred that a person other than appellant was the criminal agent. Vanegas v. Commonwealth, 17 Va. App. 451, 438 S.E.2d 289 (1993).

The evidence was sufficient to support the jury's finding that the act of intercourse was against victim's will and resulted from force, threat, or intimidation where the medical examiner found red, fresh bruises on victim's body, two inside the left wrist, one on the right forearm, and one on the upper right arm and her wrists and ankles had been tightly bound with electrical cords, her mouth was snugly gagged, and she was 56 years old and weighed only 125 pounds. Hoke v. Commonwealth, 237 Va. 303 , 377 S.E.2d 595, cert. denied, 491 U.S. 910, 109 S. Ct. 3201, 105 L. Ed. 2d 709 (1989).

Lighting in room was sufficient for victim to identify defendant. - Jury was entitled to conclude from rape victim's testimony that the lighting in the room was sufficient for the victim to identify the defendant. Maynard v. Commonwealth, 11 Va. App. 437, 399 S.E.2d 635 (1990).

It is not sufficient that facts and circumstances proven be consistent with defendant's guilt. To sustain a conviction they must be inconsistent with every reasonable hypothesis of his innocence. McCall v. Commonwealth, 192 Va. 422 , 65 S.E.2d 540 (1951); Strawderman v. Commonwealth, 200 Va. 855 , 108 S.E.2d 376 (1959).

The evidence was sufficient to establish penetration where the victim testified that, when she and the defendant fell to the floor, the defendant was on top of her, that he pulled her pants and underwear down to her knees and did the same to his pants and underwear, that she felt a sharp pain inside of her vagina area when the defendant's head was on the top of her stomach, his waist was between her knees and his hands were on the floor lying flat beside her hips and that the pain continued for five minutes as the defendant's bottom half was making an up and down movement. In addition, there was testimony by a sexual assault nurse examiner that the victim had recent injuries, including lacerations in the vagina. Velazquez v. Commonwealth, 35 Va. App. 189, 543 S.E.2d 631, 2001 Va. App. LEXIS 157 (2001), aff'd in part and rev'd in part, 263 Va. 95 , 557 S.E.2d 213 (2002).

Evidence of penetration was sufficient to support defendant's rape conviction, where, in addition to defendant's admission to having sexual intercourse with the complainant, the complainant provided testimony to corroborate defendant's confession, stating that she and defendant had sex three times and testifying that defendant put "his thing," which she said was between his legs, in hers. Desper v. Commonwealth,, 2011 Va. App. LEXIS 343 (Nov. 8, 2011).

Evidence was sufficient to support finding that defendant used force, threat, or intimidation. - Evidence was sufficient to prove defendant used "force, threat, or intimidation" against the stepdaughter for the purposes of conviction under the forcible rape statute as it showed defendant accomplished the intercourse which occurred when the stepdaughter was 13 years old through fear and intimidation; the evidence showed defendant had beaten both the stepdaughter's mother and the stepdaughter prior to the time he had intercourse with the stepdaughter, that he had also committed other acts of physical abuse on the stepdaughter prior to that time, and, even though the acts of intercourse were against her will, she was fearful of not submitting to them. Rankin v. Commonwealth, No. 3065-00-3, 2002 Va. App. LEXIS 224 (Ct. of Appeals Apr. 9, 2002).

Evidence was sufficient to support the conviction. - There was sufficient evidence to find that defendant was guilty of rape, forcible sodomy, and indecent liberties with a child for acts upon defendant's wife's four-year-old cousin because the evidence supported the victim's account of the events and defendant did have an opportunity to commit the acts on at least two occasions; the victim gave her foster mother a substantially similar account when she initially made her complaint, the victim's testimony was consistent with a drawing she did at the psychologist's instruction, and the medical evidence showed that the victim was a sexually abused child as her hymen was consistent with a painful penetrating injury. Johnson v. Commonwealth, 40 Va. App. 605, 580 S.E.2d 486, 2003 Va. App. LEXIS 303 (2003).

Evidence was sufficient to support defendant's conviction for rape, where the Commonwealth proved the use of force, threat, or intimidation by providing evidence from the complaining witness that defendant broke into her home and waited for her, held a gun to her the entire time, as well as repeatedly pushed, kicked, and hit her. Breeden v. Commonwealth, 43 Va. App. 169, 596 S.E.2d 563, 2004 Va. App. LEXIS 257 (2004).

Evidence was sufficient to support defendant's conviction for rape, as the trial court was under no obligation to believe the rape victim's testimony that she lied about being raped because she was angry and jealous, especially since other competent evidence that was not inherently incredible was sufficient to prove defendant was guilty of rape. Mejia-Martinez v. Commonwealth,, 2006 Va. App. LEXIS 80 (Mar. 7, 2006).

In a prosecution for rape of a child under age 13, the child's detailed account of two acts of sexual intercourse was sufficient to convict, despite minor inconsistencies in her testimony, her history of mental illness, and the lack of corroborating physical evidence. Nobrega v. Commonwealth, 271 Va. 508 , 628 S.E.2d 922, 2006 Va. LEXIS 48 (2006).

Where defendant admitted to having sexual intercourse with his 14-year-old stepdaughter after displaying a knife, his flight from the state provided the basis for a reasonable inference that he committed the rape to which he confessed. Campbell v. Commonwealth,, 2006 Va. App. LEXIS 571 (Dec. 19, 2006).

Evidence was sufficient to support defendant's conviction on one count of rape of a child under the age of 13, as the evidence showed that defendant penetrated the victim when the victim was 12 years old by sticking the tip of defendant's penis in the victim's vagina; that evidence supported the finding of the legal definition of penetration as being penetration by the penis of the vagina however slight and the evidence was sufficient despite the fact that the victim testified on cross-examination that defendant did not penetrate the victim until the victim was 13 years old, as that testimony was pursuant to the lay definition of penetration where complete penetration or putting the penis all of the way in the vagina was involved. Perez-Amaya v. Commonwealth,, 2006 Va. App. LEXIS 569 (Dec. 19, 2006).

Because a child victim testified that defendant put his "thingy" "up in" "where she peed out of," which was located at her "bottom," and "started to hump her," the evidence was sufficient to convict defendant of aggravated sexual battery, animate object sexual penetration, and statutory rape under §§ 18.2-67.3 , 18.2-67.2 , and 18.2-61 . Tinsley v. Commonwealth,, 2007 Va. App. LEXIS 207 (May 15, 2007).

Defendant's challenge to the sufficiency of the evidence supporting defendant's rape conviction failed because the victim's delay in reporting the rape by the victim's stepfather was explained by the victim's testimony that the victim was afraid of defendant, shocked, embarrassed, and feared destroying the victim's relationship with the victim's mother. Smart v. Commonwealth, No. 1722-15-1, 2007 Va. App. LEXIS 319 (Ct. of Appeals Aug. 28, 2007).

Defendant's rape conviction under § 18.2-61 was not against the weight of the evidence as the discrepancies in the victim's account presented by a mother's and a school official's statements, and the victim's claim that the victim fell asleep following the rape and later accepted a ride from defendant and defendant's friend without telling the friend of the rape, did not render the victim's account inherently incredible as the mother could not have been home at the time of the incident, and the school attendance records could have been inaccurate; the victim's delay in reporting the rape did not make the victim's testimony incredible. Elam v. Commonwealth,, 2007 Va. App. LEXIS 436 (Dec. 11, 2007).

Evidence admitted at defendant's bench trial sufficiently supported defendant's convictions for the rape and forcible sodomy of defendant's teenage stepdaughter. That evidence showed that defendant forcibly required defendant's teenage stepdaughter to submit to defendant's sexual advances on three occasions, that the victim credibly testified to those events, and that defendant's explanations of recorded, incriminating statements defendant made to the victim's mother, defendant's wife, were lacking in credibility. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

Because the victim's testimony and the documentary evidence established that defendant had sexual intercourse with a child under the age of 13, in violation of subsection A of § 18.2-61 , and that the offense occurred on a date within the time period set forth in the indictment, the evidence was sufficient to sustain defendant's conviction. Booth v. Commonwealth,, 2009 Va. App. LEXIS 198 (Apr. 28, 2009).

Victim's identification along with a wide range of circumstantial evidence, including the fact that defendant was acting strangely the day after the incident and had changed defendant's appearance, that clothing matching what the victim said the attacker wore was found in defendant's home, and that duct tape like that used on the victim was found in defendant's home were sufficient to support defendant's convictions for rape, robbery, statutory burglary, malicious wounding, and unlawful wounding in the commission of a felony. Parker v. Commonwealth,, 2009 Va. App. LEXIS 235 (May 19, 2009).

There was sufficient evidence to convict appellant of rape where: (1) the victim testified that she woke up with sharp pains between her legs; (2) the sexual assault nurse examiner observed small hemorrhagic spots, abrasions, and skin breaking on the victim's genitalia, which she testified was consistent with trauma; (3) a rational trier of fact could find beyond a reasonable doubt that the degree of the victim's intoxication reached a point where she did not understand the nature or consequences of the sexual act; and (4) appellant knew of the victim's condition because he was at the party, and he was one of the people who walked her home from the party. Roberts v. Commonwealth,, 2010 Va. App. LEXIS 13 (Jan. 12, 2010).

Defendant's convictions for abduction with intent to defile, in violation of § 18.2-48 , and attempted rape, in violation of §§ 18.2-26 and 18.2-61 , were proper because the trial court did not err in finding the facts sufficient to show the abduction or detention was separate and apart from, rather than incidental to, the attempted rape. The evidence showed the detention by deception posed an additional danger to the victim, was accomplished before the attempted rape, and was not intrinsic to or inherent in the separate offense. Smith v. Commonwealth, 56 Va. App. 711, 697 S.E.2d 14, 2010 Va. App. LEXIS 336 (2010).

Defendant's convictions for abduction with intent to defile, in violation of § 18.2-48 , and attempted rape, in violation of §§ 18.2-26 and 18.2-61 , were proper because the jury heard the victim's conflicting accounts and in its role as factfinder, it alone was entitled to judge credibility given the discrepancy and assign her testimony what weight it deemed appropriate. Moreover, the officer's testimony and the victim's own actions corroborated the remainder of the victim's account of the incident; the victim immediately notified her mother and a friend about the incident. Smith v. Commonwealth, 56 Va. App. 711, 697 S.E.2d 14, 2010 Va. App. LEXIS 336 (2010).

Evidence was sufficient to sustain defendant's conviction for rape, in violation of § 18.2-61 , where the victim, defendant's wife, was found dead in a motel room, her body positioned in a particularly gruesome and suggestive manner, and defendant's semen was found inside the victim's vagina, and sperm was found in or around the victim's mouth and anus. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Commonwealth's evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt attempted rape and abduction with intent to defile, because jury believed the victim's version of what happened and the Commonwealth's evidence and rejected defendant's version of those events, and the jury was permitted to consider defendant's prior felony convictions in assessing his credibility; the victim testified that defendant held her down, partially removed her pants, exposed his penis, pulled out a knife, and repeatedly threatened to kill the victim. Gay v. Commonwealth,, 2011 Va. App. LEXIS 134 (Apr. 19, 2011).

Defendant's convictions for forcible sodomy and rape were supported by sufficient evidence as the victim's testimony showed that defendant handcuffed her, placed her face-down over a desk, pushed her down so that she could not stand up, vaginally penetrated her without her consent, and forced her to perform fellatio on him without her consent. Because defendant penetrated the victim both vaginally and orally without her consent and through the use of force, despite her resistance, the evidence was sufficient to show that defendant committed rape and forcible sodomy. Dillingham v. Commonwealth,, 2011 Va. App. LEXIS 184 (2011).

Testimony of the victim, which the fact finder accepted and which was corroborated by (1) the victim's statements in the immediate aftermath of the crimes to the victim's parent and the police; (2) the DNA evidence; and (3) defendant's initial denial that defendant even knew the victim, a denial that the trial court could reasonably have concluded was a lie offered to conceal defendant's guilt, when combined with defendant's later acknowledgement that defendant had consensual sexual intercourse with the victim, fully justified the trial court's conclusion that the prosecution sufficiently established defendant's guilt of the crimes of rape, object sexual penetration, and sodomy. Shepperson v. Commonwealth,, 2012 Va. App. LEXIS 329 (Oct. 16, 2012).

Defendant's confession and the corroborating DNA evidence was sufficient to support defendant's convictions for murder, rape, statutory burglary, and robbery. Farmer v. Commonwealth, 61 Va. App. 402, 737 S.E.2d 32, 2013 Va. App. LEXIS 34 (2013).

Narrative of the victim, who was deaf and mute, was sufficient to support a finding of rape and sodomy, because the numbering system used to refer to various body parts was clear to the court, allowing the court to find that the victim was specifically talking about certain body parts when using certain numbers. Bynum v. Commonwealth, No. 0854-12-1, 2013 Va. App. LEXIS 170 (Ct. of Appeals June 4, 2013).

Evidence was sufficient to convict defendant of two counts of rape, two counts of carnal knowledge, five counts of custodial indecent liberties with a minor, and one count of manufacturing child pornography because the victim testified that defendant had vaginal intercourse with her three or four times when she was 11 and that he continued to have vaginal intercourse with her every year, with increasing frequency after she turned 13; she testified that defendant set up a camera, they engaged in vaginal intercourse, and the victim turned off the camera; corroboration of the victim's testimony was not needed to uphold defendant's convictions; and the victim's testimony was not so inherently incredible as to render it unworthy of belief. Harris v. Commonwealth,, 2014 Va. App. LEXIS 342 (Oct. 14, 2014).

Evidence was sufficient to convict defendant of rape as the victim was asleep and physically helpless at the time of the unwanted sexual contact because the victim explained that she was asleep in her room when she felt her pants being removed; she stated that she was half asleep when defendant's penis first entered her vagina; although defendant argued that the victim was fully aware during the incident, her testimony supported the jury's conclusion that she was sleeping and was not conscious when defendant removed her pants and penetrated her; and defendant's behavior after being confronted by the victim and her husband suggested that he knowingly took advantage of the victim's physical helplessness. Quisque v. Commonwealth,, 2016 Va. App. LEXIS 57 (Feb. 23, 2016).

Defendant's messages to a friend indicating the victim was not interested in having sexual intercourse with him, thoughts that plying the victim with alcohol would help ensure she would have intercourse with him, defendant's repeated reference to the fact that the victim was passed out, and a message from defendant's friend indicating that defendant and the victim were having sex supported convictions for rape and aggravated sexual battery. Taylor v. Commonwealth, No. 1031-14-4, 2016 Va. App. LEXIS 239 (Ct. of Appeals Sept. 13, 2016).

Sufficient evidence supported defendant's rape conviction; his wife testified that defendant penetrated her against her will and in spite of her repeated protests, plus her testimony was corroborated in part by the forensic evidence and photographs of her injuries. Poole v. Commonwealth,, 2021 Va. App. LEXIS 122 (July 20, 2021).

Intent to rape not proven. - Where a trier of fact could find an intent to rape only by resorting to surmise and speculation, and neither a spoken word of defendant nor any other action on his part justifies the inference that he harbored the intent to rape, so far as the evidence shows, the defendant's intent might just as well have been to commit larceny or any of a number of offenses other than rape. Patterson v. Commonwealth, 215 Va. 698 , 213 S.E.2d 752 (1975).

The proof must go beyond the mere showing of injury to the genital organs of the female and an opportunity on the part of the accused to have committed the offense. McCall v. Commonwealth, 192 Va. 422 , 65 S.E.2d 540 (1951); Strawderman v. Commonwealth, 200 Va. 855 , 108 S.E.2d 376 (1959).

Statement by doctor that injury to child was caused by a male sexual organ is not sufficient to prove the act of sexual intercourse beyond a reasonable doubt. Strawderman v. Commonwealth, 200 Va. 855 , 108 S.E.2d 376 (1959).

Evidence of child rape sufficient. - Evidence was sufficient to support defendant's convictions for forcible sodomy, in violation of subsection A of § 18.2-67.1 , rape, in violation of § 18.2-61 , and producing sexually explicit material, in violation of § 18.2-374.1 , where evidence showed that a victim and defendant engaged in oral sex while the victim's mother was at work, during a strip poker game in which the victim ran out of clothes and had to do favors for defendant, which included putting defendant's penis in the victim's mouth and defendant putting defendant's penis in the victim's vagina; in addition, there was testimony that a victim made videos at defendant's direction and that these were termed a type of punishment, and the videos detailed various instances of sexual abuse, at least one of which was seen by the victims' 13-year-old brother. Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340, 2003 Va. App. LEXIS 221 (2003).

Identification of accused by prosecutrix held insufficient. Boxley v. Commonwealth, 65 Va. (24 Gratt.) 649 (1874).

The female having declined to give a description of the person who committed the outrage when upon oath, it is not competent to prove the description given by her when not upon oath. Brogy v. Commonwealth, 51 Va. (10 Gratt.) 722 (1853).

Evidence held sufficient to support rape conviction. - Where a rape victim testified that defendant raped her at knifepoint, coerced her at gunpoint to sign an agreement promising not to reveal what had occurred, and officers searching defendant's house found both the knife and the agreement written in his handwriting, and the victim appeared distraught and made a prompt complaint after the incident, the evidence supported defendant's conviction of rape. Dowdy v. Commonwealth, No. 2509-02-3, 2003 Va. App. LEXIS 705 (Ct. of Appeals Dec. 30, 2003).

Reversal required where evidence erroneously admitted. - Admission of similar crimes evidence was not harmless error in defendant's trial for rape and sodomy as: (1) the required intent was established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape; (2) the required lack of consent for rape involved the victim's mental state, not the defendant's; (3) the fact that one woman was raped had no tendency to prove that another woman did not consent; and (4) the testimony of two escorts that defendant had attacked them in a manner similar to that described by the victim was highly prejudicial and encouraged the inference that defendant committed the charged crimes as he had committed similar crimes in the past. Gonzales v. Commonwealth, No. 1351-03-4, 2004 Va. App. LEXIS 337 (Ct. of Appeals July 13, 2004).

C. OTHER MATTERS.

Age of prosecutrix a jury question. - Buzzard v. Commonwealth, 134 Va. 641 , 114 S.E. 664 (1922).

Question of force or consent one for jury. - Where a rape case presents a typical situation where the prosecutrix maintains that she was forced by the accused to have intercourse with him and he insists that the act occurred with her consent, the case is subject to the general rule that whether the act was forcible or consensual was a question for the jury to decide. Snyder v. Commonwealth, 220 Va. 792 , 263 S.E.2d 55 (1980).

Affidavits requesting dismissal of prosecution are not after-discovered evidence. - Affidavits made after the trial merely requesting that the prosecution be dismissed have no bearing on the case as after-discovered evidence. Salyer v. Commonwealth, 163 Va. 1027 , 175 S.E. 757 (1934).

Error to admit murder victim's affidavit in support of a request for protective order. - Admission at trial of a murder victim's affidavit in support of her request for a protective order against defendant, her husband, violated the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, and the error was not harmless because in it she swore he had threatened and raped her; therefore, his convictions for rape under § 18.2-61 , abduction with the intent to defile under § 18.2-48 , use of a firearm during the commission of an abduction, and capital murder, which was predicated on the former three offenses, were unconstitutional as well as based on insufficient evidence. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Subpoena of victim's psychiatric records denied where request based on speculation. - Subpoena duces tecum sought by defendant, on trial for rape and forcible sodomy, directing the victim, to produce records "of any psychiatrist or psychologist which she has visited for treatment and/or other services within the last five (5) years," was properly denied where defendant hoped that victim's psychiatric records would show that she had fantasies of being raped, thereby creating the inference that she consented to the sexual activity to punish her husband for arguing with her, but where defendants' theory of consent was based on nothing more than surmise and speculation. Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).

No right to have psychiatric exam of child victim. - Trial court judge lacked authority to order a medical examination of the complaining witness and, therefore, did not err by denying defendant's motion for a psychiatric examination of the child victim, namely his daughter, though, as a matter of law, the trial court judge erred by denying the motion for incorrect reasons. Nobrega v. Commonwealth,, 2005 Va. App. LEXIS 189 (May 10, 2005), aff'd, 271 Va. 508 , 628 S.E.2d 922 (2006).

Psychiatric or psychological evaluation of complaining witness not authorized. - In a prosecution for rape of a child under age 13, the trial court properly denied defendant's motion for a psychiatric or psychological evaluation of the complaining witness, as no Virginia statute or rule authorized the trial court to do so, even though the witness had a history of mental illness and her testimony was uncorroborated. Nobrega v. Commonwealth, 271 Va. 508 , 628 S.E.2d 922, 2006 Va. LEXIS 48 (2006).

No error in admitting expert testimony. - When defendant was convicted of rape by force or threat, it was no error to admit the expert testimony of a nurse who had not been certified as a Sexual Assault Nurse Examiner because (1) it was undisputed that the subject matter was beyond the knowledge of ordinary persons, (2) it was also undisputed that the nurse had specialized knowledge in the area of sexual assault forensic examinations, and (3) the general assembly had not adopted a statute regarding the qualifications of nurses to testify as experts about forensic examinations in sexual assault cases, and the governing evidentiary rule contained no such requirement. Wakeman v. Commonwealth, 69 Va. App. 528, 820 S.E.2d 879, 2018 Va. App. LEXIS 326 (2018), aff'd, 838 S.E.2d 732, 2020 Va. LEXIS 21 (Va. 2020).

Error in permitting testimony regarding previous rape. - It was reversible error for the court to allow the victim of a previous rape perpetrated by the defendant to testify regarding that crime where there was no confusion or issue regarding the defendant's state of mind at the time of the events at issue and the only question was whether the defendant or the victim told the truth about the events. Baker v. Commonwealth, No. 2875-97-1 (Ct. of Appeals Mar. 9, 1999).

Error in admitting paternity test result. - The trial court erred in admitting the HLA paternity test result where the record showed that the sample tested as the victim's daughter was taken from a male child and the evidence proved that the victim's aunt gave birth to appellant's son shortly after the victim gave birth to a daughter. The admissibility of the test result turned on the identity of the child tested and this discrepancy in the testing documentation eliminated the reliability of the connection between the appellant and the matters in issue, therefore, further inquiry as to the identity of the child tested was required before the paternity test could be deemed admissible. Townsend v. Commonwealth, No. 0212-93-2 (Ct. of Appeals June 7, 1994).

Testimony as to prior offense which was characteristic of numerous other offenses was not admissible. - Testimony of prosecutrix that on a previous occasion defendant approached her with a small handgun and forced her into her apartment where he raped and robbed her characterized numerous offenses by other perpetrators. Accordingly, its probative value was minimal, especially in light of the extreme prejudice that resulted from such a detailed account of a prior rape and robbery. Such testimony also was inadmissible to prove defendant's intent to commit rape and robbery. If evidence of another crime is offered ostensibly to prove intent, it is still not admissible if the actual issue is identity or commission of the act itself. Foster v. Commonwealth, 5 Va. App. 316, 362 S.E.2d 745 (1987).

Admission of evidence under rape shield law. - Court did not need to decide whether the trial court erred in sustaining the Commonwealth's objection to the introduction of text messages based on the rape shield statute because even if the messages had been admitted for impeachment purposes, the DNA and forensic evidence, defendant's text to the victim, and defendant's own testimony and statements to police would have provided the trial court with overwhelming evidence corroborating the victim's testimony that defendant had raped her. Arroyo v. Commonwealth, No. 0135-20-2, 2021 Va. App. LEXIS 45 (Mar. 23, 2021).

Evidence of acquittal in prior similar case. - Court's exclusion of the Maryland trial and acquittal verdict in similar case involving appellant and victim was not an abuse of discretion. The blanket acquittal in the Maryland trial failed to prove that the victim "lied" or made a "false accusation." Rather, a general verdict of acquittal can be read only for the proposition that the prosecution failed to prove each of the required elements beyond a reasonable doubt. Wooden v. Commonwealth, No. 2173-93-4 (Ct. of Appeals May 2, 1995).

Evidence of defendant's relationship with victim allowed. - State was allowed to introduce evidence of defendant's relationship with the victim, his niece, such explained the victim's presence at defendant's house and her conduct towards him throughout the evening on the night of the crime, and her willingness to accompany him to a remote area at night; further, it bore on the issues of fear or intimidation, and lack of consent and defendant was not entitled to have the evidence sanitized so as to deny the jury knowledge of all but the immediate crime for which he was on trial. Chinn v. Commonwealth, No. 2547-03-2, 2004 Va. App. LEXIS 469 (Ct. of Appeals Oct. 5, 2004).

Capability of consent. - Evidence clearly showed the 28-year-old victim, who had a performance IQ of 57, and was not able to live outside her family home, was not capable of giving consent to defendant, who offered to take her to work, but instead drove her to his home and had sex with her. Sene v. Commonwealth,, 2009 Va. App. LEXIS 333 (July 28, 2009).

Insufficient evidence of non-spousal relationship with victim. - Where defendant was charged for violating this section, evidence that defendant was not a resident in the victim's house, that he dated the victim's sister, that defendant had a different last name than the victim, and that the victim was a virgin, did not suffice to prove beyond a reasonable doubt that he was not the victim's spouse. Smith v. Commonwealth, No. 1902-93-1 (Ct. of Appeals March 28, 1995).

Evidence of attempted escape. - It was not an abuse of discretion to permit the admission of evidence of defendant's attempted escape to show consciousness of guilt as to the rape and abduction with intent to defile charges, even though he was also incarcerated at the time of the attempted escape on two other charges. Leonard v. Commonwealth, 39 Va. App. 134, 571 S.E.2d 306, 2002 Va. App. LEXIS 657 (2002), cert. denied, 540 U.S. 989, 124 S. Ct. 479, 157 L. Ed. 2d 384 (2003).

Inculpatory statements admitted in violation of defendant's right to counsel. - Defendant's Sixth Amendment right to counsel was violated and a trial court erred by permitting the Commonwealth to use inculpatory statements made by defendant in its case-in-chief where the statements, made by defendant while in custody in the hospital being treated for asthma, were made without defendant voluntarily waiving his right to counsel. The Commonwealth failed to meet its burden of showing that defendant waived his right to counsel since the questioning police officer obtained the statements at the hospital through deception and duplicity by acting as a friend toward defendant, while wearing a recorder, and defendant was never aware that the purpose of the casual conversation was to gather evidence for use against him at trial. Bellamy v. Commonwealth,, 2005 Va. App. LEXIS 259 (July 5, 2005).

During police interrogation, defendant said, "I'd really like to talk to a lawyer because this - oh my God, oh, my Jesus, why?" Under an objective test, this statement was a clear and unambiguous invocation of defendant's right to counsel under Miranda; therefore, his subsequent inculpatory statements were improperly admitted in his rape trial. Zektaw v. Commonwealth, 278 Va. 127 , 677 S.E.2d 49, 2009 Va. LEXIS 76 (2009).

Recanted allegations. - In a case where the victim testified regarding two incidents of sexual assault by defendant, her brother, but later recanted her allegations, the evidence was sufficient to sustain defendant's conviction, because the appellate court found nothing in the record to suggest it should overtake the fact finder's role, and recantations by the victim and her other brother were explored at trial and would not have produced a different result because DNA evidence corroborated the sexual assault and polygraph tests indicated the victim's recantations and defendant's denial of the allegations were false. Linkous v. Commonwealth, No. 2725-02-3, 2003 Va. App. LEXIS 644 (Ct. of Appeals Dec. 16, 2003).

Reputation for untruthfulness. - In a rape case, defendant claimed that the trial court erred in preventing the victim's aunt from testifying as to the victim's reputation for untruthfulness; as his proffer did not address the question whether the aunt ever discussed the victim's reputation with members of the community or which community might have been involved, the proffer was insufficient to allow the appellate court to determine whether the testimony was admissible and whether defendant was prejudiced by its exclusion. Newsome v. Commonwealth,, 2012 Va. App. LEXIS 386 (Nov. 27, 2012), habeas corpus proceeding, appeal dismissed, 814 Fed. Appx. 783, 2020 U.S. App. LEXIS 24809 (4th Cir. 2020).

Improper admission of evidence held harmless. - In a rape prosecution under § 18.2-61 , the trial court's admission as a business record of a nurse's report stating that the victim's genitalia appeared abnormal, if error, was harmless because the DNA evidence provided overwhelming proof of sexual contact between defendant and the victim. Campbell v. Commonwealth,, 2006 Va. App. LEXIS 571 (Dec. 19, 2006).

Admission of an abuse affidavit into evidence, although violative of defendant's U.S. Const., Amend. VI right to confrontation, was harmless beyond a reasonable doubt for convictions for capital murder, abduction with intent to defile, rape, grand larceny, and two counts of use of a firearm, where the evidence was sufficient to support the convictions absent the affidavit. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Improper admission of evidence not harmless. - In a rape and assault and battery prosecution, the incriminating statements defendant made after he unambiguously invoked his right to counsel were admitted over his objections. As it could not be said that his statements that he choked and knocked the alleged victim down before having consensual sex with her did not contribute to his convictions or to the severity of his sentence, the error in admitting the statements was not harmless. Zektaw v. Commonwealth, 278 Va. 127 , 677 S.E.2d 49, 2009 Va. LEXIS 76 (2009).

V. INDICTMENT.

In general. - Where an indictment for rape is in the usual form and in the words of the statute defining the offense, or is, in substance, sufficiently specific to put the prisoner fairly upon trial for the offense therein charged, such an indictment will generally be held sufficient. Smith v. Commonwealth, 85 Va. 924 , 9 S.E. 148 (1889); Mitchell v. Commonwealth, 89 Va. 826 , 17 S.E. 480 (1893).

Word "female" held not necessary. - An indictment for rape did not charge that it was committed on a female, but the name given is a woman's name, and the indictment uses the pronouns "she" and "her," in speaking of the person upon whom the rape was committed. Though it would have been better to use the word female, as it is the word used in the statute, yet the language used sufficiently shows that rape was committed on a female, and therefore is good. Taylor v. Commonwealth, 61 Va. (20 Gratt.) 825 (1871). See Commonwealth v. Bennet, 4 Va. (2 Va. Cas.) 235 (1820).

Whether names idem sonans a jury question. - Where the indictment charged that rape was committed upon Ellen Frances Davis and the true name was Helen Frances Davids, the question whether the names were idem sonans was for the jury and not for the court. Taylor v. Commonwealth, 61 Va. (20 Gratt.) 825 (1871).

Offense must be described as in indictment for rape. - In an indictment for an attempt to commit a rape under the statute, it is sufficient to charge the attempt in the terms of the statute, but the offense must be described with the same legal precision and certainty and in the terms in which it is necessary to describe it in an indictment for a rape. Christian v. Commonwealth, 64 Va. (23 Gratt.) 954 (1873).

And must allege overt acts. - Christian v. Commonwealth, 64 Va. (23 Gratt.) 954 (1873); Cunningham v. Commonwealth, 88 Va. 37 , 13 S.E. 309 (1891).

Variance as to time of offense not basis for reversal. - Generally, time is not a material ingredient of the offense of rape, and it need not be proven precisely as alleged. Accordingly, the variance between the date on which the bill of particulars alleged the rape occurred and the date which the evidence ultimately established as the day the crime occurred was not of itself a basis for reversal of defendant's conviction. Evans v. Commonwealth, No. 0503-85 (Ct. of Appeals Oct. 10, 1986).

Defendant could be convicted of raping his daughter on October 17 when the Commonwealth, in its bill of particulars, alleged that the rape occurred on October 19, since whether the rape was shown to have occurred on the 17th or 19th, the elements of the crime, for which the Commonwealth had the burden of proof, would remain the same. The indictment charging defendant with the rape, and to which he personally entered a plea of not guilty, alleged the commission of the rape "on or about" the 17th of October. The evidence presented at trial varied from the bill of particulars only as to the date on which the crime occurred and not as to the nature of the offense. This was, therefore, no basis upon which defendant could argue that he was, as a result of a discrepancy between the bill and indictment or between the bill and the facts as shown at trial, subjected to the possibility of being tried for a crime for which he was not indicted. Evans v. Commonwealth, No. 0503-85 (Ct. of Appeals Oct. 10, 1986).

Amendment of indictment proper. - Pursuant to § 19.2-231 , the trial court properly allowed the prosecution, after trial began, to amend an indictiment charging rape ( § 18.2-61 ) to object sexual penetration ( § 18.2-67.2 ), because the amendment did not change the nature or character of the underlying conduct, penetrating victim's vagina against her will by force, only the object used to accomplish the penetration. Jackson v. Commonwealth,, 2012 Va. App. LEXIS 224 (July 10, 2012).

VI. INSTRUCTIONS.

In general. - The courts should not be unmindful of that just observation by Lord Hale that rape "is an accusation easily made, hard to be proved, and still harder to be defended by one ever so innocent." The court, however, will refuse to put this language in the form of an independent instruction to the jury, because it is rather a statement of the conclusion of the judicial mind from experience in the trial of this class of offenses than an enunciation of a principle of law. Crump v. Commonwealth, 98 Va. 833 , 23 S.E. 760 (1895). See Bailey v. Commonwealth, 82 Va. 107 (1886).

Force and resistance. - On a trial for rape prisoner asked for an instruction "that such force is essential to the crime as may be adequate to overcome the resistance of the woman, taking into consideration the relative strength of the parties and other circumstances"; and the court giving it adds: "such as making outcries and giving alarm." It was held that the instruction was proper. Mings v. Commonwealth, 85 Va. 638 , 8 S.E. 474 (1889).

Consent. - Where consent was crucial to appellant's defense and the instructions granted by the court did not sufficiently inform the jury that if the act of intercourse was consensual there could not be a conviction, the conviction was reversed and remanded. Bryant v. Commonwealth, 216 Va. 390 , 219 S.E.2d 669 (1975).

There was sufficient evidence of consent by the prosecutrix to justify an instruction specifically directed to such defense. Bryant v. Commonwealth, 216 Va. 390 , 219 S.E.2d 669 (1975).

Mental incapacity. - Jury was properly instructed that defendant could be found guilty of rape in violation of subsection A of § 18.2-61 if it found he had intercourse with the victim by using her mental incapacity. The evidence showed the victim had lost consciousness after a blow to the head, and blacked-out due to aggravation of her bipolar condition by alcohol and drug abuse; as used in subdivision 3 of § 18.2-67.10 , the term "mental incapacity" could extend to a transitory circumstance such as voluntary intoxication. Molina v. Commonwealth, 272 Va. 666 , 636 S.E.2d 470, 2006 Va. LEXIS 106 (2006).

Instruction going beyond charge in indictment. - In a prosecution for attempted rape an instruction to the jury that if they found the accused guilty they should do so under this section and former § 18.1-16 (now § 18.2-26 ) was held to be error since it might have tended to confuse and mislead the jury. The instruction went beyond the charge in the indictment and was also in conflict with the other instruction. Richards v. Commonwealth, 161 Va. 1073 , 171 S.E. 525 (1933).

Inference permitted. - Trial court did not err in instructing the jury that it could infer that defendant's unauthorized presence in a building of another was with the intent to commit rape, absent evidence to the contrary, because the inference referred to in the subject instruction was justified by the rape itself; given the surrounding facts and circumstances and the context of other instructions given, the subject instruction recited a "proper principal of law." Velasquez v. Commonwealth,, 2007 Va. App. LEXIS 313 (Aug. 21, 2007), aff'd, 661 S.E.2d 454, 2008 Va. LEXIS 67 (Va. 2008).

Inference not permitted. - While an instruction telling the jury that an intent to rape could be inferred from defendant's unauthorized presence in the victim's home was incorrect, as rape was a general intent crime and it was not the function of the court to suggest to the jury what conclusion it should draw from the facts in evidence, granting the instruction was harmless because of the overwhelming evidence of defendant's guilt where the victim identified defendant as her rapist, there was DNA evidence, and defendant confessed. Velasquez v. Commonwealth, 276 Va. 326 , 661 S.E.2d 454, 2008 Va. LEXIS 67 (2008), cert. denied, 129 S. Ct. 580, 2008 U.S. LEXIS 8260, 172 L. Ed. 2d 438 (U.S. 2008).

Instructions that combine alternatives. - In a prosecution for rape, the trial court did not err in granting an instruction merely because it combined two alternatives upon which to convict defendant, as: (1) the theory under each alternative was stated in the disjunctive; (2) the jury was not misled by the instruction; and (3) the evidence was clearly sufficient to support an instruction on mental incapacity at the time of the alleged rape based on the victim's intoxication; moreover, based on the same, any error in giving the instruction was harmless. Molina v. Commonwealth, 47 Va. App. 338, 624 S.E.2d 83, 2006 Va. App. LEXIS 6 (2006).

An instruction that accused may be found guilty of a lesser offense than attempted rape should be given. Richards v. Commonwealth, 161 Va. 1073 , 171 S.E. 525 (1933).

Jury instruction on defendant fleeing was improper. - Circuit court erred by instructing a jury on defendant's purported flight from an alleged victim's apartment because the record was devoid of more than a scintilla of evidence that defendant left the apartment as defendant sought to avoid detection, apprehension, arrest, or criminal prosecution. Turman v. Commonwealth, 276 Va. 558 , 667 S.E.2d 767, 2008 Va. LEXIS 123 (2008).

VII. VERDICT.

The verdict in a criminal case is always to be read in connection with the indictment, and if, upon reading them together, the meaning of the verdict is certain, that is sufficient. The verdict need not give the name of the prisoner, nor of the person assaulted. Hairston v. Commonwealth, 97 Va. 754 , 32 S.E. 797 (1899).

Verdict of jury rendered after their discharge invalid. - Where the court told the jury after a verdict of guilty of rape that they were discharged, and the jurors thereupon returned to the jury room accompanied by the sheriff to claim attendance fees, but were thereafter recalled by the court upon discovery that the jury had made a mistake fixing the penalty under this section, and again retired and returned another verdict, such other verdict would not support a conviction, having been rendered after discharge. Melton v. Commonwealth, 132 Va. 703 , 111 S.E. 291 (1922).

Motion to set aside verdict because prosecutrix did not understand oath. - Where prosecutrix, twelve years old, has been critically examined as to her understanding the motive of an oath by the trial court to its satisfaction, and the jury instructed that they were the judges of her credibility, motion to set aside a verdict of guilty, on the ground that she could not understand the same, will not be sustained. Smith v. Commonwealth, 85 Va. 924 , 9 S.E. 148 (1889).

New trial ordered. - Where appellant's conviction was based altogether on the testimonial accusation of victim and proposed new witness stood in a special, advisory and protective relationship to the victim, his proffered testimony, describing her failure to make outcry or complaint at the time of the alleged rape and sodomy and her statement to him exonerating the appellant, would have weighed heavily in the assessment of her credibility and the appellant's. Therefore, trial court erred in denying the appellant's motion for a new trial on the ground of after-discovered evidence. Gatling v. Commonwealth, 14 Va. App. 60, 414 S.E.2d 862 (1992).

VIII. PUNISHMENT.

Punishment does not vary according to race. - The degrees of punishment determined by different juries for the crime of rape vary. This variation does not depend upon the race of the accused, but upon the circumstances, aggravation, and enormity of the crime proven in each case. The law applies to all alike, regardless of race or creed. Hampton v. Commonwealth, 190 Va. 531 , 58 S.E.2d 288 (1950).

Probation revocation. - Trial court did not err in determining that a convicted rapist violated the terms of probation when defendant refused to admit guilt during the course of court-ordered sex-offender treatment, although defendant's conviction was entered upon an Alford plea and defendant was not advised at the time of the plea that such refusal could have resulted in probation revocation. Carroll v. Commonwealth, 280 Va. 641 , 701 S.E.2d 414, 2010 Va. LEXIS 277 (2010).

Sentence appropriate. - Defendant's sentences after he pled guilty to rape, in violation of § 18.2-61 , and two counts of abduction with intent to defile, in violation of § 18.2-48 , were appropriate because the circuit court did not base his three life sentences on a prior molestation investigation, but on his history as a "career criminal" and on defendant's lack of remorse. Therefore, even if the testimony regarding a prior molestation investigation was inadmissible, such error was harmless. Pagan v. Commonwealth,, 2011 Va. App. LEXIS 7 (Jan. 11, 2011).

IX. MARITAL RAPE.

Editor's note. - Note that many cases annotated below were decided prior to amendments in 1986 and 2005.

Construction. - General Assembly distinguishes rape against a spouse after the court has either convicted the defendant and is in the sentencing phase, under subdivision B 2 of § 18.2-61 , or has made a finding of guilt, under subsection C of § 18.2-61 ; General Assembly's clear intent was to make the marital status of the defendant and the victim immaterial during the guilt phase, but to allow a court to treat rape of a spouse differently in the punishment phase. Poole v. Commonwealth,, 2021 Va. App. LEXIS 122 (July 20, 2021).

Common-law rule and related case holdings abrogated. - Amendment to statute plainly shows the General Assembly's intent to remove any additional elements needed for a conviction of rape when the defendant and victim are spouses; the common-law rule regarding marital rape and the holdings applying this rule in Weishaupt v. Commonwealth, 227 Va. 389 (1984), and Kizer v. Commonwealth, 228 Va. 256 (1984), have been entirely abrogated by the General Assembly's 2005 amendment and the trial court did not err in denying defendant's motions to strike and reconsider on this ground. Poole v. Commonwealth,, 2021 Va. App. LEXIS 122 (July 20, 2021).

Spouses living together. - Neither the rape statute nor the marital sexual assault statute prohibits sexual intercourse accomplished against the will of a spouse by "intimidation" where at the time of the act the spouses are living together. Morse v. Commonwealth, 17 Va. App. 627, 440 S.E.2d 145 (1994).

When husband guilty of raping wife. - A wife can unilaterally revoke her implied consent to marital sex where she has made manifest her intent to terminate the marital relationship by living separate and apart from her husband; refraining from voluntary sexual intercourse with her husband; and, in light of all the circumstances, conducting herself in a manner that establishes a de facto end to the marriage. And, once the implied consent is revoked, even though the parties have not yet obtained a divorce, the husband can be found guilty of raping his wife, if the evidence against him establishes a violation of this section. Weishaupt v. Commonwealth, 227 Va. 389 , 315 S.E.2d 847 (1984), decided prior to 1986 amendment.

Common-law rule that wife cannot revoke implied consent is rejected. - So much of the English common-law rule regarding a husband's marital exemption from a charge of raping his wife and the implied consent to marital intercourse as provides that a wife cannot unilaterally revoke her implied consent to marital intercourse is rejected. Weishaupt v. Commonwealth, 227 Va. 389 , 315 S.E.2d 847 (1984), decided prior to 1986 amendment.

Revocation of consent must be demonstrated by manifest intent to terminate marriage. - In order to sustain a conviction of marital rape, the prosecution, in addition to establishing a violation of this section, must prove beyond a reasonable doubt that the wife unilaterally had revoked her implied consent to marital intercourse. The wife's revocation of consent must be demonstrated by a manifest intent to terminate the marital relationship. The facts necessary to show this intention to terminate must reveal that the wife: has lived separate and apart from the husband; has refrained from voluntary sexual intercourse with her husband; and, in light of all the circumstances, has conducted herself in a manner that establishes a de facto end to the marriage. Kizer v. Commonwealth, 228 Va. 256 , 321 S.E.2d 291 (1984), decided prior to 1986 amendment.

Spouse's express intent to terminate the marriage not required. - Virginia General Assembly refused to require proof of a spouse's express intent to end the relationship in order to sustain convictions for marital rape and marital sexual assault. Thus, the Commonwealth was not required to show that the victim communicated to defendant an express and unequivocal desire to terminate her marriage; accordingly, his convictions for marital rape and attempted marital sexual assault were affirmed. Walker v. Commonwealth,, 2005 Va. App. LEXIS 425 (Oct. 25, 2005).

Wife's subjective intent not manifest due to vacillating conduct. - In a prosecution for marital rape, where the wife subjectively considered the marriage fractured beyond repair when the parties separated, but this subjective intent was not manifested objectively to the husband, in view of the wife's vacillating conduct, so that he perceived that the marriage actually was ended, the evidence was insufficient to sustain a conviction. Kizer v. Commonwealth, 228 Va. 256 , 321 S.E.2d 291 (1984), decided prior to 1986 amendment.

Separate and apart. - From the language of the marital rape statute, former subsection B of § 18.2-61 , it is clear that the legislature did not intend for separate and apart to include the requirement that the parties refrain from any cohabitation, or that the period of separation be without interruption, which was one of the requirements for divorce under subsection A of § 20-91 . Had the legislature intended such an interpretation, it would have included such language in the marital rape statute. Walker v. Commonwealth,, 2005 Va. App. LEXIS 425 (Oct. 25, 2005)(decided prior to 2005 amendment deleting former subsection B).

Evidence clearly established that defendant and the victim, his wife, lived separate and apart because (1) he had a home in Virginia Beach and she lived in Chesapeake; (2) he did not have a key to her apartment; (3) he did not contribute financially to her household; (4) she did not pay any of the bills at his house; (5) she testified they were separated; and (6) defendant's counsel conceded that defendant and the victim were not living together. Walker v. Commonwealth,, 2005 Va. App. LEXIS 425 (Oct. 25, 2005)(decided prior to 2005 amendment deleting former subsection B).

Evidence of conduct prior to marital rape properly admitted. - There was no abuse of discretion in the trial court's admission of evidence of defendant's beating and forcible taking of the victim to a remote area prior to committing marital rape, as the evidence tended to prove that defendant used a present threat of force, and the prior bad acts were also important in establishing defendant's state of mind toward the victim; defendant was not entitled to have the evidence "sanitized," so as to deny the jury knowledge of all but the immediate crime for which defendant was on trial. Beale v. Commonwealth, No. 1252-02-1, 2003 Va. App. LEXIS 251 (Ct. of Appeals Apr. 29, 2003).

Reliability of expert testimony. - Where a sexual assault nurse examiner's scientific methodology did not depend upon the reliability of the procedures for the results to be sound or valid, the trial court did not have to make a reliability finding before admitting the testimony; as a result, defendant's conviction for rape and forcible sodomy was affirmed. Beale v. Commonwealth, No. 1808-03-2, 2004 Va. App. LEXIS 180 (Ct. of Appeals Apr. 20, 2004).

CIRCUIT COURT OPINIONS

Evidence as to defendant's diminished capacity. - Because the defense which defendant sought to assert, that defendant's mental incapacity prevented defendant from knowing or having the capacity to know that the statutory rape victim was mentally incapacitated to consent to sexual intercourse, was unavailable to defendant the evidence which defendant maintained defense counsel should have been presented to support the defense was irrelevant. Desper v. Woodson, 89 Va. Cir. 32, 2014 Va. Cir. LEXIS 114 (Augusta County Mar. 13, 2014).

Sentence appropriate. - In a case where defendant repeatedly engaged in sexual intercourse with his 12-year-old daughter, defendant's motion, arguing that the mandatory punishment of life in prison for his convictions for raping a minor under the age of 13 was unconstitutional, was denied because the mandatory life sentence imposed on defendant was not disproportionate to the gravity of the offense; courts were in general agreement that such offenses were deserving of serious punishment and had declined to intervene on Eighth Amendment grounds in cases involving life sentences; and defendant's heinous actions were consistent with the General Assembly's rationale for the establishment of a mandatory life sentence. Commonwealth v. Saravia, 91 Va. Cir. 48, 2015 Va. Cir. LEXIS 158 (Fairfax County July 22, 2015).

§ 18.2-62.

Repealed by Acts 2021, Sp. Sess. I, c. 465, cl. 2, effective July 1, 2021.

Editor's note. - Former § 62, pertaining to testing of certain persons for human immunodeficiency virus or hepatitis B or C viruses, derived 1990, c. 957; 1992, cc. 500, 587; 1993, c. 512; 2001, c. 862; 2005, c. 661; 2008, c. 756.

§ 18.2-63. Carnal knowledge of child between thirteen and fifteen years of age.

  1. If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of a Class 4 felony.
  2. If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age who consents to sexual intercourse and the accused is a minor and such consenting child is three years or more the accused's junior, the accused shall be guilty of a Class 6 felony. If such consenting child is less than three years the accused's junior, the accused shall be guilty of a Class 4 misdemeanor.

    In calculating whether such child is three years or more a junior of the accused minor, the actual dates of birth of the child and the accused, respectively, shall be used.

  3. For the purposes of this section, (i) a child under the age of thirteen years shall not be considered a consenting child and (ii) "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate and inanimate object sexual penetration.

    (Code 1950, § 18.1-44; 1960, c. 358; 1972, c. 394; 1975, cc. 14, 15, 606; 1981, c. 397; 1993, c. 852; 2007, c. 718.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to validity of an entrustment agreement for termination of parental rights, despite lack of birth father's signature, when the father has been convicted of a violation of § 18.2-61 A, § 18.2-63 , or § 18.2-366 B, and the child in question was conceived as a result of such violation, see § 63.2-903 C and § 63.2-1222 .

For provision that consent to adoption shall not be required of the birth father when the father has been convicted of a violation of § 18.2-61 A, § 18.2-63 , or § 18.2-366 B, see § 63.2-1202 F.

The 2007 amendments. - The 2007 amendment by c. 718 inserted the subsection A, B and C designations; in subsection B, in the first sentence, substituted "If any person carnally knows, without the use of force, a child" for "However, if such child is" and "who" for "and" following "fifteen years of age" and made a minor stylistic change.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For article discussing constitutional problems with "rape shield" laws, see 18 Wm. & Mary L. Rev. 1 (1976).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

Research References. - Virginia Forms (Matthew Bender). No. 9-510 Indictment -- Rape (Statutory).

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape and Other Statutory Offenses, §§ 3, 5, 27.

CASE NOTES

Not a lesser-included offense of rape. - The offense of carnally knowing a child under 14 years of age without the use of force is not a lesser-included offense of rape, and the Commonwealth did not violate defendant's right against double jeopardy under the federal or state Constitutions by seeking an indictment for carnally knowing a child after a rape charge against defendant was dismissed. Ragsdale v. Commonwealth, 38 Va. App. 421, 565 S.E.2d 331, 2002 Va. App. LEXIS 366 (2002).

Constructive force is present when consent given by one under age of consent. - A female under the age of consent cannot legally consent to the act, and constructive force is present, even though she does in fact consent. Buzzard v. Commonwealth, 134 Va. 641 , 114 S.E. 664 (1922).

When force essential element. - In prosecution under this section verdict finding defendant guilty of having carnal knowledge of prosecutrix without force was properly amended to show that prosecutrix was under the age of 16 (now 15) where evidence unquestionably showed that she was under 16. The original verdict was ambiguous according to the definition of rape under this section, because if the female be 16 (now 15) or more force must be used but if she be under that age force is not an essential ingredient. Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

Knowledge of victim's age not essential to constitute attempt to commit statutory rape. Rainey v. Commonwealth, 169 Va. 892 , 193 S.E. 501 (1937).

Failure to allege exact age of prosecutrix. - In a prosecution for statutory rape where the indictment alleged that the prosecutrix was under the age of 15, it was held that the defendant was not in any way prejudiced by the failure to allege the exact age of the prosecutrix. Stump v. Commonwealth, 137 Va. 804 , 119 S.E. 72 (1923).

When consent immaterial, evidence of subsequent intercourse is admissible. - The authorities are in conflict upon the general question as to whether, in a prosecution for statutory rape, evidence may be admitted of intercourse between the accused and the prosecutrix subsequent to the act upon which the prosecution is based. The better doctrine is that where the consent of the prosecutrix is immaterial, such evidence is admissible as tending to show the disposition of the defendant with respect to the particular act charged. Stump v. Commonwealth, 137 Va. 804 , 119 S.E. 72 (1923).

And consent of infant is no defense to attempt charge. - Since a 14-year-old girl's consent would have been no defense to a charge of statutory rape if the sexual act had taken place, it was no defense to an attempt to commit the crime of statutory rape. Rainey v. Commonwealth, 169 Va. 892 , 193 S.E. 501 (1937).

Failure to make outcry held not to make prosecutrix's testimony incredible. - In a prosecution under this section the accused having been indicted for statutory rape and the testimony having conclusively shown that the prosecutrix was 14 years of age and that intercourse had been had with her, she having given birth to a child, the fact that she failed to make any outcry was not sufficient to warrant the Supreme Court in holding that her testimony was so incredible that it could not be believed. Salyer v. Commonwealth, 163 Va. 1027 , 175 S.E. 757 (1934).

As a general rule, time is not a material ingredient of the offense of rape, and it need not be proved precisely as alleged, it being sufficient in prosecutions for the offense on females under the age of consent to prove the commission of the offense on any day when the female was still under the statutory age. Lear v. Commonwealth, 195 Va. 187 , 77 S.E.2d 424 (1953).

Chastity of a female is not made an ingredient of the offense of statutory rape. Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

Evidence of prior sexual act admissible. - Evidence of prior sexual act with child rape victim was admissible and relevant for the limited purposes of showing defendant's inclination to commit the acts with which defendant was charged and as tending to corroborate the testimony of the alleged victim. Mangum v. Commonwealth, No. 0761-02-2, 2003 Va. App. LEXIS 43 (Ct. of Appeals Feb. 4, 2003).

Defendant's age established. - Even if defendant's appearance did not establish that defendant was well over 18 at the time of a § 18.2-63 incident, defendant's appearance, combined with defendant's statements that defendant had graduated from high school, that defendant was celebrating a birthday, and that defendant was one of the people over 21 who had been drinking established that defendant was over 18 at the time of the incident. Hall v. Commonwealth, No. 2902-07-3, 2009 Va. App. LEXIS 73 (Feb. 17, 2009).

Evidence held sufficient. - Where evidence showed that defendant's mouth came in contact with the minor's penis, trial court's conclusion that the defendant had carnal knowledge of the minor by the mouth in violation of this section was not plainly wrong. Shull v. Commonwealth, 16 Va. App. 667, 431 S.E.2d 924 (1993).

Testimony by the victim that she was 14 years old and that she had sexual relations with defendant over 20 times and testimony of the victims' mother that she suspected that defendant and the victim were having sexual relations, and that defendant confirmed that her suspicions were true, provided sufficient evidence to support defendant's conviction for having carnal knowledge of child between 13 and 15, in violation of § 18.2-63 . Welch v. Commonwealth,, 2005 Va. App. LEXIS 253 (June 28, 2005).

Defendant asserted that, in granting his motion to strike on the ground that the Commonwealth's evidence was insufficient to prove the charge of animate object sexual penetration under § 18.2-67.2 , the trial court effectively acquitted him of that charge and dismissed the indictment, but the trial court concluded that, although the Commonwealth's evidence was insufficient to prove the element of force, threat, intimidation, or physical helplessness, the evidence was sufficient, as a matter of law, to sustain a conviction for carnal knowledge under this section; thus, the trial court's granting of the motion to strike did not constitute a judgment of acquittal under Va. Sup. Ct. R. 3A:15. Therefore, the trial court's ruling on the motion to strike did not preclude the Commonwealth from proceeding on the amended charge of carnal knowledge; accordingly, his conviction was affirmed. Sandoval v. Commonwealth,, 2006 Va. App. LEXIS 51 (Feb. 7, 2006).

Because defendant pleaded guilty to the offense of unlawful carnal knowledge, defendant supplied all of the evidence necessary to support a conviction; accordingly, the trial court did not err in finding defendant guilty of violating § 18.2-63 . Armstrong v. Commonwealth,, 2006 Va. App. LEXIS 593 (Dec. 28, 2006).

Victim testified at trial that defendant put defendant's tongue on the victim's vagina on monthly occasions after the victim moved with her family and defendant to a new home. Thus, the evidence sufficiently proved that defendant committed the six offenses at issue of carnal knowledge of a child between the ages of 13 and 15 in violation of § 18.2-63 . Slate v. Commonwealth,, 2008 Va. App. LEXIS 113 (Mar. 11, 2008).

Denial of motion to suppress was affirmed because the trial court's factual determination that the officers did not deliberately use improper tactics or coercion was not plainly wrong or without the evidence to support it. Defendant told the officer that he understood the warnings, which he conceded were accurate and complete, and then confessed to having sexual intercourse with the 13-year-old victim in violation of § 18.2-63 . Crosby v. Commonwealth,, 2009 Va. App. LEXIS 514 (Nov. 17, 2009).

Evidence was sufficient to convict defendant of two counts of rape, two counts of carnal knowledge, five counts of custodial indecent liberties with a minor, and one count of manufacturing child pornography because the victim testified that defendant had vaginal intercourse with her three or four times when she was 11 and that he continued to have vaginal intercourse with her every year, with increasing frequency after she turned 13; she testified that defendant set up a camera, they engaged in vaginal intercourse, and the victim turned off the camera; corroboration of the victim's testimony was not needed to uphold defendant's convictions; and the victim's testimony was not so inherently incredible as to render it unworthy of belief. Harris v. Commonwealth,, 2014 Va. App. LEXIS 342 (Oct. 14, 2014).

Evidence was sufficient to convict defendant of two counts of carnal knowledge and two counts of indecent liberties because, notwithstanding any impeachment, the trial court accepted the 14-year-old victim's testimony of a sexual relationship between herself and defendant; the victim's testimony was supported by her pregnancy and subsequent abortion; the stepfather's and girlfriend's statements were admissible under the recent complaint exception to the hearsay rule as they were utilized to corroborate the victim's independent testimony; and defendant's statements regarding the victim's pregnancy and abortion constituted a waiver of his assertion that the Commonwealth's testimony on those issues was inadmissible. Pickett v. Commonwealth, No. 1320-14-2, 2015 Va. App. LEXIS 219 (July 21, 2015).

Commonwealth presented sufficient evidence to prove the corpus delicti of carnal knowledge of a minor, including corroboration of defendant's confession by multiple witnesses who corroborated significant details of that confession. Trent v. Commonwealth, No. 0350-17-3, 2017 Va. App. LEXIS 332 (Dec. 19, 2017).

Evidence not sufficient. - Defendant's conviction of carnal knowledge of a child in violation of § 18.2-63 was reversed and the indictment was dismissed, as testimony of a 14-year-old girl that she had "sexual relations" with defendant was too vague to prove carnal knowledge under the terms of the statute. Welch v. Commonwealth, 271 Va. 558 , 628 S.E.2d 340, 2006 Va. LEXIS 50 (2006).

Evidence sustained conviction under this section for carnal knowledge, without force, of 15-year-old female. Carpenter v. Commonwealth, 193 Va. 851 , 71 S.E.2d 377 (1952).

Evidence held sufficient for multiple convictions. - Because the statutory elements of carnal knowledge of a child were satisfied with each successive act of sexual intercourse, the trial court properly found that each penetration constituted a separate act of sexual intercourse during the four hours defendant was present, permitting a separate punishment for each act of sexual intercourse under § 18.2-63 . Evans v. Commonwealth,, 2008 Va. App. LEXIS 25 (Jan. 15, 2008).

Trial court did not err in finding defendant guilty of two carnal knowledge violations because defendant's digital penetration and sexual intercourse with the victim were statutorily proscribed and were occasioned by independent acts, and the lack of ambiguity in the statute did not justify application of the rule of lenity. Paduano v. Commonwealth, 64 Va. App. 173, 766 S.E.2d 745, 2014 Va. App. LEXIS 419 (2014).

Severance of indictments. - Because: (1) evidence of defendant's separate misdemeanor offenses, in violation of § 18.2-371 , with two separate victims was not necessary to prove any relevant element of the felony offenses charged involving a third victim or necessary to prove defendant's motive, intent or knowledge, and in a separate trial involving only the felony offenses; and (2) evidence of defendant's sexual offenses involving the two misdemeanor victims would do little more than show that defendant was a bad man likely to commit that sort of crime, the trial court abused its discretion by not granting defendant's motion to sever the felony indictments from the misdemeanor indictments for separate trials; however, said error was harmless due to the overwhelming evidence of defendant's guilt. Smith v. Commonwealth, No. 1004-04-1, 2005 Va. App. LEXIS 140 (Ct. of Appeals Apr. 5, 2005).

Amendment of charge allowed. - Because the custodial indecent liberties statute had a similarity of purpose and subject matter as the carnal knowledge statute, both indictments charged defendant with sexually abusing a minor victim, the evidence necessary to prove criminal conduct under both statutes was identical, and the evidence revealed that, on more than one occasion, defendant put the victim's penis in his mouth, the amendment to the indictment did not change the nature or character of the offense charged, and the trial court properly permitted the Commonwealth to amend the indictment of carnal knowledge to custodial indecent liberties. Jones v. Commonwealth, No. 1151-19-2, 2020 Va. App. LEXIS 164 (June 2, 2020).

Jury instructions. - Trial judge did not commit reversible error by omitting an element of the offense in instructing the jury, specifically admitting the phrase "without the use of force," as defendant was barred from presenting this issue on appeal by the invited error doctrine, as he, by tendering the jury instructions to the trial judge, could not take advantage of his own wrong on appeal; but, the matter was remanded for the sole purpose of correcting a clerical error in one of the conviction orders. McBride v. Commonwealth, 44 Va. App. 526, 605 S.E.2d 773, 2004 Va. App. LEXIS 597 (2004).

Sentence. - Sentence which the trial court imposed on defendant who was convicted of statutory rape was within the range prescribed by §§ 18.2-10 and 18.2-63 , and the trial court did not abuse its discretion by considering defendant's risk factors and imposing an active sentence that exceeded the length of the active sentence recommended by the sentencing guidelines. Brooks v. Commonwealth, No. 2540-02-3, 2004 Va. App. LEXIS 29 (Ct. of Appeals Jan. 28, 2004).

Sentence enhancement under the federal Armed Career Criminal Act improper. - Conviction under Virginia's carnal knowledge offense was not associated with a likelihood of future violent, aggressive, and purposeful armed career criminal behavior and thus, defendant's Virginia's carnal knowledge offense under § 18.2-63 was not sufficiently similar to the enumerated crimes in kind or in degree of risk to constitute a violent felony under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e)(2)(B). Therefore, defendant's sentence as an armed career criminal subject to a sentence enhancement based in part on a 1986 statutory rape conviction was vacated, and the case was remanded for resentencing. United States v. Thornton, 554 F.3d 443, 2009 U.S. App. LEXIS 1988 (4th Cir. 2009).

"Sexually violent offense" requiring registration as a sexually violent offender. - Defendant was properly convicted of providing false information to the Virginia Sex Offender and Crimes Against Minors Registry and of failing to register as a violent sex offender because the evidence was sufficient to prove that defendant's prior conviction for carnal knowledge of a minor constituted a sexually violent offense, that defendant was required to register as a sexually violent offender, and that defendant failed to re-register and failed to report defendant's change of address. Wright v. Commonwealth, No. 1238-18-1, 2019 Va. App. LEXIS 202 (Sept. 17, 2019).

No collateral estoppel effect on dischargeability in defendant's subsequent bankruptcy. - Debtor's plea of guilty to carnal knowledge under Virginia law had no preclusive effect in a creditor's nondischargeability proceeding, as there was no mutuality and the issues were not actually litigated. Lewis v. Long (In re Long), 504 Bankr. 424, 2014 Bankr. LEXIS 374 (Bankr. W.D. Va. Jan. 28, 2014).

Even if a default judgment in creditor's state court action was sufficient for bankruptcy court to determine that issues were actually litigated for purposes of determining if debtor's confession of judgment was nondischargeable as a willful and malicious injury, causes of actual for sexual assault and battery and carnal knowledge of minor, to extent recognized under Virginia common law as torts distinct from common-law assault and battery, would not have required creditor to prove that debtor committed those acts with intent to injure. The bankruptcy looked to Virginia's criminal code to determine intent requirement for these torts. Lewis v. Long (In re Long), 504 Bankr. 424, 2014 Bankr. LEXIS 374 (Bankr. W.D. Va. Jan. 28, 2014).

Applied in McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754, 2006 Va. App. LEXIS 259 (2006); Legault v. Commonwealth,, 2015 Va. App. LEXIS 206 (June 30, 2015).

CIRCUIT COURT OPINIONS

No double jeopardy violation. - Trial court denied defendant's motion to dismiss, as the county juvenile court's dismissal of the contributing to the delinquency of a minor charge filed against him, which was done without explanation, did not mean that the county juvenile court found that he did not have sexual intercourse with the 14-year-old victim; as a result, defendant was not entitled to have the felony charge filed against him of carnal knowledge dismissed, as the prosecution of him on that charge did not violate double jeopardy principals since he was not being tried in the trial court on the same charge as the county juvenile court dismissed. Commonwealth v. Hopkinson, 67 Va. Cir. 520, 2004 Va. Cir. LEXIS 362 (Loudoun County July 19, 2004).

OPINIONS OF THE ATTORNEY GENERAL

Reporting of pregnancy of minor by licensing inspector. - Virginia Department of Health licensing inspector who is a nurse and who, during the course of a hospital inspection, learns from the review of a medical record that a fourteen-year-old girl received services related to her pregnancy is not required to make a report of child abuse and neglect pursuant to § 63.2-1509 unless there is reason to suspect that a parent or other person responsible for the child's care committed, or allowed to be committed, the unlawful sexual act upon the child. Nor is the licensing inspector required to make a report to law enforcement of the crime of carnal knowledge of a child between the ages of thirteen and fifteen. See opinion of Attorney General to The Honorable Marissa J. Levine, MD, MPH, FAAFP, State Health Commissioner, No. 14-021, 2014 Va. AG LEXIS 30 (9/12/14).

§ 18.2-63.1. Death of victim.

When the death of the victim occurs in connection with an offense under this article, it shall be immaterial in the prosecution thereof whether the alleged offense occurred before or after the death of the victim.

(1978, c. 803; 1981, c. 397.)

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape and Other Statutory Offenses, § 3.

Applied in Coleman v. Commonwealth, 226 Va. 31 , 307 S.E.2d 864 (1983).

§ 18.2-64.

Repealed by Acts 1981, c. 397.

§ 18.2-64.1. Carnal knowledge of certain minors.

If any person providing services, paid or unpaid, to juveniles under the purview of the Juvenile and Domestic Relations District Court Law, or to juveniles who have been committed to the custody of the State Department of Juvenile Justice, carnally knows, without the use of force, any minor fifteen years of age or older, when such minor is confined or detained in jail, is detained in any facility mentioned in § 16.1-249, or has been committed to the custody of the Department of Juvenile Justice pursuant to § 16.1-278.8, knowing or having good reason to believe that (i) such minor is in such confinement or detention status, (ii) such minor is a ward of the Department of Juvenile Justice, or (iii) such minor is on probation, furlough, or leave from or has escaped or absconded from such confinement, detention, or custody, he shall be guilty of a Class 6 felony.

For the purposes of this section, "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate and inanimate object sexual penetration.

(1977, c. 304; 1981, c. 397; 1989, c. 733; 1991, c. 534; 1993, c. 852.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provided that the amendment to this section by Acts 1993, c. 930, cl. 1, would become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape and Other Statutory Offenses, § 3.

§ 18.2-64.2. Carnal knowledge of a person detained or arrested by a law-enforcement officer or an inmate, parolee, probationer, juvenile detainee, or pretrial defendant or posttrial offender; penalty.

  1. An accused is guilty of carnal knowledge of a person detained or arrested by a law-enforcement officer or an inmate, parolee, probationer, juvenile detainee, or pretrial defendant or posttrial offender if he is a law-enforcement officer or an employee or contractual employee of, or a volunteer with, a state or local correctional facility or regional jail, the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home as defined in § 16.1-228, a state or local court services unit as defined in § 16.1-235, a local community-based probation services agency, or a pretrial services agency; is in a position of authority over the person detained or arrested by a law-enforcement officer, inmate, probationer, parolee, juvenile detainee, or pretrial defendant or posttrial offender; knows that the person detained or arrested by a law-enforcement officer, inmate, probationer, parolee, juvenile detainee, or pretrial defendant or posttrial offender is in the custody of a private, local, or state law-enforcement agency or under the jurisdiction of a state or local correctional facility or regional jail, the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home as defined in § 16.1-228, a state or local court services unit as defined in § 16.1-235, a local community-based probation services agency, or a pretrial services agency; and carnally knows, without the use of force, threat, or intimidation, (i) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail or (ii) a person detained or arrested by a law-enforcement officer, probationer, parolee, juvenile detainee, or pretrial defendant or posttrial offender in the custody of a private, local, or state law-enforcement agency or under the jurisdiction of the Department of Corrections, the Department of Juvenile Justice, a secure facility or detention home as defined in § 16.1-228, a state or local court services unit as defined in § 16.1-235, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program, or any other parole/probationary or pretrial services program or agency. Such offense is a Class 6 felony.

    An accused is guilty of carnal knowledge of a pretrial defendant or posttrial offender if he (a) is an owner or employee of the bail bond company that posted the pretrial defendant's or posttrial offender's bond; (b) has the authority to revoke the pretrial defendant's or posttrial offender's bond; and (c) carnally knows, without use of force, threat, or intimidation, a pretrial defendant or posttrial offender. Such offense is a Class 6 felony.

  2. For the purposes of this section: "Carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate or inanimate object sexual penetration. "Law-enforcement officer" means the same as that term is defined in § 9.1-101 . (1999, c. 294; 2000, c. 1040; 2001, c. 385; 2007, c. 133; 2013, c. 602; 2020, c. 479; 2020, Sp. Sess. I, cc. 26, 37.)

Editor's note. - Acts 2000, c. 1040, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

Acts 2020, c. 479, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020 Sp. Sess. I, cc. 26 and 37, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 1040 substituted "local community-based probation program" for "local community corrections program"; and inserted "services" following "pretrial" throughout the section.

The 2001 amendments. - The 2001 amendment by c. 385, in the first paragraph, inserted "detainee" in four places, and inserted "the Department of Juvenile Justice, a secure facility or detention home, as defined in § 16.1-228, a state or local court services unit, as defined in § 16.1-235" in three places.

The 2007 amendments. - The 2007 amendment by c. 133, in the first paragraph, in the first sentence, inserted "defendant" following "pretrial" in four places, substituted "community-based probation services agency or a pretrial services agency" for "community-based probation program or a pretrial services program," "community-based probation services agency, or a pretrial services agency" for "community-based probation program, or a pretrial services program" and "community-based probation services agency, a pretrial services agency" for "community-based probation program, a pretrial services program" and inserted "or agency" at the end.

The 2013 amendments. - The 2013 amendment by c. 602, in the first sentence of the first paragraph, substituted "An accused is" for "An accused shall be" and "if he" for "if he or she"; and inserted the second paragraph.

The 2020 amendments. - The 2020 amendment by c. 479 substituted "Class 6 felony" for "Class 1 misdemeanor" at the end of the second paragraph.

The 2020 Sp. Sess. I amendments. - The 2020 amendments by Sp. Sess. I, cc. 26 and 37, effective March 1, 2021, are identical, and designated the first two existing paragraphs as subsections A and B; in the first paragraph in subsection A, inserted "person detained or arrested by a law-enforcement officer" in four places, inserted "juvenile" preceding "detainee" in four places, inserted "a law-enforcement officer or" preceding "an employee or contractual employee," inserted "in the custody of a private, local, or state law-enforcement agency or" in two places; added the definition of "Law-enforcement officer" in subsection B; and made stylistic changes.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

CASE NOTES

Sufficient evidence. - Male correctional facility officer's conviction for carnal knowledge of a female inmate was based upon sufficient evidence, including the inmate's statement, a nurse's report and testimony after her physical examination which found the inmate's vaginal laceration was not self-induced, and defendant's voluntary post-Miranda confession. Martin v. Commonwealth,, 2005 Va. App. LEXIS 395 (Oct. 11, 2005).

Although there were some inconsistencies in the inmate's testimony, her testimony alone constituted sufficient evidence to convict a defendant of carnal knowledge of an inmate. Martin v. Commonwealth,, 2005 Va. App. LEXIS 395 (Oct. 11, 2005).

Applied in Ward v. Commonwealth,, 2011 Va. App. LEXIS 81 (Mar. 8, 2011).

§ 18.2-65.

Repealed by Acts 1981, c. 397.

§ 18.2-66.

Repealed by Acts 2008, cc. 174 and 206, cl. 2.

Editor's note. - Former § 18.2-66 , pertaining to effect of subsequent marriage to child over fourteen years of age, derived from Code 1950, § 18.1-45; 1960 c. 358; 1975, cc. 14, 15, 606; 1981, c. 397; 1993, c. 418.

§ 18.2-67. Depositions of complaining witnesses in cases of criminal sexual assault and attempted criminal sexual assault.

Before or during the trial for an offense or attempted offense under this article, the judge of the court in which the case is pending, with the consent of the accused first obtained in open court, by an order of record, may direct that the deposition of the complaining witness be taken at a time and place designated in the order, and the judge may adjourn the taking thereof to such other time and places as he may deem necessary. Such deposition shall be taken before a judge of a circuit court in the county or city in which the offense was committed or the trial is had, and the judge shall rule upon all questions of evidence, and otherwise control the taking of the same as though it were taken in open court. At the taking of such deposition the attorney for the Commonwealth, as well as the accused and his attorneys, shall be present and they shall have the same rights in regard to the examination of such witness as if he or she were testifying in open court. No other person shall be present unless expressly permitted by the judge. Such deposition shall be read to the jury at the time such witness might have testified if such deposition had not been taken, and shall be considered by them, and shall have the same force and effect as though such testimony had been given orally in court. The judge may, in like manner, direct other depositions of the complaining witness, in rebuttal or otherwise, which shall be taken and read in the manner and under the conditions herein prescribed as to the first deposition. The cost of taking such depositions shall be paid by the Commonwealth.

(Code 1950, § 18.1-47; 1960, c. 358; 1975, cc. 14, 15, 606; 1981, c. 397.)

Law review. - For article discussing constitutional problems with "rape shield" laws, see 18 Wm. & Mary L. Rev. 1 (1976). For note, "Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings," see 70 Va. L. Rev. 1657 (1984).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Continuances, § 7; 5B M.J. Criminal Procedure, § 23; 15 M.J. Rape and Other Statutory Offenses, § 17.

CASE NOTES

Only statute authorizing depositions in criminal prosecution. - With the exception of this section there is no statute in Virginia which authorizes depositions to be taken or used in a criminal prosecution. Setliff v. Commonwealth, 162 Va. 805 , 173 S.E. 517 (1934).

Convening of court, without order of record, in home of bedridden prosecutrix, and the hearing of her testimony and that of a third party and the defendant, could not be considered a harmless substitute for the process permitted by this section. Lewis v. Peyton, 352 F.2d 791 (4th Cir. 1965).

Attempted aggravated sexual battery. - General assembly passed a law, § 18.2-67 .5, stating the punishment for attempted sexual assault offenses, including attempted aggravated sexual battery, and passed § 18.2-67 , permitting the deposition of a "complaining witness" in cases of sexual assault and attempted sexual assault, and, if it had intended to exclude attempt crimes from § 18.2-67.3 , it would not have passed a law permitting a deposition of a "complaining witness" in attempted aggravated sexual battery and would not have passed a law stating the punishment for attempted aggravated sexual battery, so there was no evidence the general assembly intended to abrogate common-law attempt when it passed § 18.2-67.3 , and the crime of attempted aggravated sexual battery existed in Virginia. Moody v. Commonwealth, No. 1395-02-2, 2003 Va. App. LEXIS 696 (Ct. of Appeals Dec. 30, 2003).

CIRCUIT COURT OPINIONS

Taking of deposition of unavailable witness. - Denial of defendant's motions pertaining to the conduct of a deposition of the Commonwealth of Virginia's witness was appropriate because the taking of depositions in criminal matters was limited, under § 18.2-67 , to cases involving criminal sexual assault and attempted criminal sexual assault. There was no statute or rule or practice in Virginia permitting the taking of depositions in a criminal case except the deposition of a victim of rape. Commonwealth v. Cooper, 102 Va. Cir. 227, 2019 Va. Cir. LEXIS 261 (Chesapeake June 11, 2019).

§ 18.2-67.01.

Not in effect.

Editor's note. - This section, which was enacted by Acts 1987, c. 448, was to become effective only if reenacted by the 1988 Session of the General Assembly. This section was not reenacted at the 1988 Session and therefore did not become effective.

§ 18.2-67.1. Forcible sodomy.

  1. An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness whether or not his or her spouse, or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person, and
    1. The complaining witness is less than 13 years of age; or
    2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
  2. Forcible sodomy is a felony punishable by confinement in a state correctional facility for life or for any term not less than five years; and in addition:
    1. For a violation of subdivision A 1, where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or § 18.2-48 , (ii) § 18.2-89 , 18.2-90 , or 18.2-91 , or (iii) § 18.2-51.2 , the punishment shall include a mandatory minimum term of confinement of 25 years; or
    2. For a violation of subdivision A 1 where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life. The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence. If the term of confinement imposed for any violation of subdivision A 1, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant's life, subject to revocation by the court. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
  3. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 . If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1 , the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness. (1981, c. 397; 1986, c. 516; 1994, cc. 772, 794; 1999, c. 367; 2005, c. 631; 2006, cc. 853, 914; 2012, cc. 575, 605; 2013, cc. 761, 774.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to unenforceability of employee nondisclosure or confidentiality agreement regarding sexual assault, see § 40.1-28.01 .

The 1999 amendment substituted "bodily" for "serious physical" in the last paragraph of subsection B.

The 2005 amendments. - The 2005 amendment by c. 631, in subsection A, substituted "anilingus" for "anallingus," "whether or" for "who is," and "13" for "thirteen" in subdivision 1; deleted former subsection B and redesignated former subsections C and D as present subsection B and C; substituted "under this section against a spouse" for "subsection B" in subsection B; in subsection C, substituted "this section, when a spouse is the complaining witness" for "subsection B" and inserted "who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection."

The 2006 amendments. - The 2006 amendments by cc. 853 and 914 are nearly the same, and added the second, third and fourth sentences of subsection B.

The 2012 amendments. - The 2012 amendments by cc. 575 and 605 are identical, and rewrote subsection B.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added the first sentence of the paragraph following subdivision B 2.

Law review. - For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape and Other Statutory Offenses, §§ 3, 27; 16 M.J. Sodomy, § 1.

CASE NOTES

Definition. - Forcible sodomy is, inter alia, the act of cunnilingus accomplished against the will of the complaining witness and by force, threat or intimidation. An attempt is an unfinished crime, composed of the intent to commit the crime and the doing of some direct act toward its consummation, but falling short of the accomplishment of the ultimate design. Jones v. Commonwealth, No. 0033-96-2 (Ct. of Appeals Feb. 25, 1997).

Commonwealth not required to prove force when victim is under thirteen. - Because a complaining witness was under the age of thirteen at the time of alleged sexual abuse by petitioner, the Commonwealth was not required to prove force, threat, or intimidation under §§ 18.2-61 and 18.2-67.1 . Cairns v. Johnson,, 2008 U.S. App. LEXIS 4128 (4th Cir. Feb. 26, 2008), cert. denied, 129 S. Ct. 581, 2008 U.S. LEXIS 8293, 172 L. Ed. 2d 439 (U.S. 2008).

Proof of intimidation. - In order to prove that defendant intimidated victim into submitting to a sex act, evidence must show that defendant caused his victim to fear some bodily harm if he or she failed to comply, or that, under the circumstances, defendant imposed such a degree of psychological or emotional pressure on a vulnerable and susceptible victim as to cause that person to submit. Stoudt v. Commonwealth, No. 2386-98-4 (Ct. of Appeals Feb. 15, 2000).

Evidence was sufficient to support defendant's conviction for forcible sodomy, under subsection A of § 18.2-67.1 , as intimidation could be caused by the imposition of psychological pressure on one who, under the circumstances, was vulnerable and susceptible to such pressure; proof that the victim feared some type of bodily harm other than the harm inherent in the sexual assault was not required, and instead, matters such as the victim's age, the relative size of defendant and the victim, and the familial relationship between defendant and the victim, were relevant matters to be considered with other testimony when determining whether the victim was put in fear of bodily harm. Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340, 2003 Va. App. LEXIS 221 (2003).

Defendant was not entitled to reversal of his conviction for forcible sodomy under § 18.2-67.1 because there was sufficient evidence that he used his position of authority to coerce the victim into engaging in sexual acts against his will; defendant assumed a parental role in victim's upbringing, required the victim to perform sexual acts as a means of punishment, and isolated the victim from his friends and family. Bell v. Commonwealth,, 2007 Va. App. LEXIS 456 (Dec. 18, 2007).

Finding that petitioner accomplished forcible sodomy and rape by intimidation within the meaning of §§ 18.2-61 and 18.2-67.1 was supported by evidence showing that the complaining witness, petitioner's stepdaughter, did not want to engage in sexual activity with petitioner, that the stepdaughter did not resist because petitioner was more powerful than she was, that the stepdaughter was afraid of petitioner when he was angry, that the stepdaughter's mother participated in the abuse, and that petitioner had physically abused his wife and one of his sons in the stepdaughter's presence. Cairns v. Johnson,, 2008 U.S. App. LEXIS 4128 (4th Cir. Feb. 26, 2008), cert. denied, 129 S. Ct. 581, 2008 U.S. LEXIS 8293, 172 L. Ed. 2d 439 (U.S. 2008).

Defendant's position of trust and victim's vulnerable condition. - Evidence was sufficient to establish that defendant used his position of trust and the victim's vulnerable condition to commit forcible sodomy where: (1) although the victim was able to communicate and a conviction could not be based on physical helplessness under § 18.2-67.10(4) , his Parkinson's disease severely limited his abilities; (2) defendant, while bathing the victim, took the victim's penis in his hand and washed him up and down, which made the victim uncomfortable; (3) defendant put the victim's penis in defendant's mouth for 15-20 seconds before the victim was able to move away from defendant; (4) defendant's claim that the victim's "body language" led him to believe the victim desired the contact was rejected as it was not unusual for a male patient to become sexually aroused while being bathed; and (5) the following day, the victim reported the incident, and as the victim made the report, he was "physically shaking," and "tears were coming down his eyes." Emerick v. Commonwealth, No. 3042-02-3, 2004 Va. App. LEXIS 152 (Ct. of Appeals Apr. 6, 2004).

Only applicable with consent of complaining witness and Commonwealth's attorney. - Trial court did not err in denying defendant's motion under subsection C of §§ 18.2-67.1 and 18.2-67.2 , to be placed on probation pending completion of counseling or therapy because the provisions of subsection C of §§ 18.2-67.1 and 18.2-67.2 , were only applicable with the consent of the complaining witness and the Commonwealth's attorney, and the Commonwealth's attorney clearly did not consent. Wilson v. Commonwealth, 58 Va. App. 513, 711 S.E.2d 251, 2011 Va. App. LEXIS 230 (2011).

Where spouse is complaining witness. - After defendant had a preliminary hearing in juvenile and domestic relations court, and a grand jury indicted defendant on charges of forcible sodomy and animate object sexual penetration against his wife, violations of §§ 18.2-67.1 and 18.2-67.2 , defendant was not entitled under § 19.2-218.2 to return the case to the juvenile and domestic relations court for a hearing to authorize the preparation of a report to address the feasibility of counseling or therapy pursuant to § 19.2-218.1 where defendant failed to make the request for such a report at the preliminary hearing. Wilson v. Commonwealth, 58 Va. App. 513, 711 S.E.2d 251, 2011 Va. App. LEXIS 230 (2011).

Double jeopardy violated in convictions for forcible sodomy and carnal knowledge. - Convictions of both forcible sodomy and carnal knowledge violate the federal and State Constitutional protections against double jeopardy. Every instance of cunnilingus, fellatio, anallingus, or anal intercourse in violation of this section also constitutes a violation of § 18.2-361 . Moreover, there is no indication that the legislature intended that two punishments be imposed for the same act. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

Impact of reporting delay in parent/child context. - When the victim is a child and the accused her father or stepfather, the failure of a child to report incidents of sodomy or other sexual offenses immediately does not render victim's testimony inherently incredible as a matter of law. Hall v. Commonwealth, No. 0699-91-3 (Ct. of Appeals July 7, 1992).

Multiple units of prosecution was authorized by the statute. - Given the legislative intent to allow multiple units of prosecution, as indicated by the language of clause (i) of subdivision A 1 of § 18.2-67.1 , the trial court did not err in denying defendant's motion for merger of the indictments; the Commonwealth's evidence proved three different acts of sodomy occurred between the victim and defendant on the day alleged in the indictments. Nelson v. Commonwealth, 41 Va. App. 716, 589 S.E.2d 23, 2003 Va. App. LEXIS 615 (2003), aff'd, 268 Va. 665 , 604 S.E.2d 76 (2004).

Motion to withdraw guilty plea. - In a case in which defendant pled guilty to violating §§ 18.2-90 , 18.2-47 , 18.2-67.1 and 18.2-53.1 , he argued unsuccessfully that the circuit court abused its discretion in denying his motion to withdraw his guilty pleas prior to sentencing; defendant failed to show a good faith basis for seeking to withdraw his guilty pleas. He was clearly aware of the potential range of punishments available to the court at the time he pled guilty; as such, the fact that the sentencing guidelines recommended a higher sentence than he had hoped did not constitute a good faith basis for rescinding his pleas. Mack v. Commonwealth,, 2009 Va. App. LEXIS 417 (Sept. 22, 2009).

Sexual battery not a lesser-included offense of forcible sodomy. - Because forcible sodomy required proof of penetration, while sexual battery only required proof of touching the clothing covering a victim's intimate parts, the trial court erred in finding that sexual battery under § 18.2-67.3 was a lesser-included offense of forcible sodomy under § 18.2-67.1 . Bowden v. Commonwealth, 52 Va. App. 673, 667 S.E.2d 27, 2008 Va. App. LEXIS 455 (2008).

Medical evidence is not required to convict a defendant of forcible sodomy. Civitello v. Commonwealth, No. 1963-01-2, 2003 Va. App. LEXIS 2 (Ct. of Appeals Jan. 7, 2003).

Admission of evidence. - Defendant's convictions for sodomy and incest were affirmed because the trial court did not err in refusing to quash the Commonwealth's subpoena duces tecum, requesting records from a doctor who examined defendant; and in refusing to admit the evidence proffered by the defense; furthermore, there was no evidence of substantial bias on the part of the judge. Via v. Commonwealth, 42 Va. App. 164, 590 S.E.2d 583, 2004 Va. App. LEXIS 14 (2004).

Evidence obtained illegally by a hacker from defendant's computer was admissible against defendant, who was charged with sodomy, object sexual penetration, and aggravated sexual battery; the government did not know of and acquiesce in the hacker's search in a manner sufficient to transform the hacker into a government agent. Jarrett v. Commonwealth, 42 Va. App. 702, 594 S.E.2d 295, 2004 Va. App. LEXIS 127 (2004).

Trial court did not err in admitting evidence of appellant's uncharged misconduct to prove that he committed the charged crimes as the victim's testimony fell within the exception allowing evidence of prior bad acts to show the conduct and feeling of the accused toward the victim and the prior relations between the parties to prove an element of the offense charged; at trial, the victim specifically testified that, as a result of his previous attacks, she was scared that appellant was going to hurt her if she resisted him. She further testified that she continued to return to appellant's house and did not tell anyone about the attacks because she felt stuck; she believed appellant's threat that if she told anyone about his actions appellant's daughter would find out and kill herself and such testimony, if believed by the jury, would tend to demonstrate that the forcible sodomy and object sexual penetration were accomplished by actions that were tantamount to force, threat or intimidation. Lemen v. Commonwealth,, 2009 Va. App. LEXIS 580 (Dec. 22, 2009).

In an action for various sexual offenses, even if the trial court erred in admitting evidence of defendant's prior convictions for rape and crimes against nature, the error was harmless because the victim's testimony was corroborated by the victim's mother who observed defendant on the ground between the victim's legs with his hand underneath her blanket, and the trial court found the victim to be "very credible," but found defendant's testimony not particularly credible. Aggar v. Commonwealth, No. 1605-18-1, 2020 Va. App. LEXIS 193 (July 7, 2020).

Reversal required where evidence erroneously admitted. - Admission of similar crimes evidence was not harmless error in defendant's trial for rape and sodomy as: (1) the required intent was established upon proof that the accused knowingly and intentionally committed the acts constituting the elements of rape; (2) the required lack of consent for rape involved the victim's mental state, not the defendant's; (3) the fact that one woman was raped had no tendency to prove that another woman did not consent; and (4) the testimony of two escorts that defendant had attacked them in a manner similar to that described by the victim was highly prejudicial and encouraged the inference that defendant committed the charged crimes as he had committed similar crimes in the past. Gonzales v. Commonwealth, No. 1351-03-4, 2004 Va. App. LEXIS 337 (Ct. of Appeals July 13, 2004).

Evidence held relevant and material. - Where father, during the period of time in which it was alleged he was sexually abusing his child, showed movies to child which taught one of the very acts which he required the child to perform on him, he thereby indicated to the child that the behavior was acceptable, which made this evidence relevant and material. Stevens v. Commonwealth, No. 1056-88-3 (Ct. of Appeals, Feb. 27, 1990).

Trial court did not err in admitting doctor's testimony and photographs of victim's anus taken during medical examination. Majette v. Commonwealth, No. 2307-98-2 (Ct. of Appeals Jan. 27, 2000).

Proof of the defendant's possession of a trove of "sex toys" was admissible where it corroborated the victim's account of the defendant's attack on him and where possession and use of those items was probative of the defendant's intent toward his victims. Keller v. Commonwealth, No. 1591-99-2, 2000 Va. App. LEXIS 517 (Ct. of Appeals July 18, 2000).

Evidence held sufficient to convict defendant of sodomy. - Evidence that established that defendant's tongue penetrated at least child victim's outer vaginal lips, or labia majora, and touched but did not penetrate the vaginal opening itself, was sufficient to convict defendant of sodomy by cunnilingus. Love v. Commonwealth, 18 Va. App. 84, 441 S.E.2d 709 (1994).

Since cunnilingus involves stimulation of the vulva or clitoris and the vulva encompasses the outermost part of the female genitalia, penetration of any portion of the vulva is sufficient to prove sodomy by cunnilingus. Penetration of the vaginal opening or vagina is not required. Horton v. Commonwealth, 255 Va. 606 , 499 S.E.2d 258 (1998).

Evidence was sufficient to prove that the defendant committed forcible sodomy on his eldest son, who suffered from a learning disability and Asperger's Syndrome and required specialized education, where the defendant did not challenge the child's competency as a witness but, rather, the credibility of his trial testimony when considered together with his inconsistent and oftentimes nonsensical statements to the police. Starnes v. Commonwealth, No. 0905-97-1 (Ct. of Appeals April 28, 1998).

Evidence was sufficient to support conviction of defendant for forcible sodomy arising from an incident in which 13 year old victim was awakened when the intoxicated defendant turned her over on the sofa on which she was sleeping, pulled her underpants down, and penetrated her anus with his penis, notwithstanding that the victim did not protest or resist, where she testified that she pretended to be asleep because she was scared, that she did not want it to happen, and that the defendant held her down and kept her from moving. Holden v. Commonwealth, No. 2245-97-2 (Ct. of Appeals June 30, 1998).

Evidence was sufficient to support defendant's conviction based on child victim's testimony, which was corroborated by independent evidence, including results of a physical examination. Brandon v. Commonwealth, No. 2434-98-2 (Ct. of Appeals Jan. 11, 2000).

Medical evidence was not required to convict defendant of forcible sodomy, and the evidence for conviction was sufficient given that other witnesses substantially corroborated the victims' testimony and defendant made incriminating statements to the police and at trial admitted to sexual contact with the victims. Civitello v. Commonwealth, No. 1963-01-2, 2003 Va. App. LEXIS 2 (Ct. of Appeals Jan. 7, 2003).

There was sufficient evidence to find that defendant was guilty of rape, forcible sodomy, and indecent liberties with a child for acts upon defendant's wife's four-year-old cousin because the evidence supported the victim's account of the events and defendant did have an opportunity to commit the acts on at least two occasions; the victim gave her foster mother a substantially similar account when she initially made her complaint, the victim's testimony was consistent with a drawing she did at the psychologist's instruction, and the medical evidence showed that the victim was a sexually abused child as her hymen was consistent with a painful penetrating injury. Johnson v. Commonwealth, 40 Va. App. 605, 580 S.E.2d 486, 2003 Va. App. LEXIS 303 (2003).

Trial court did not err in finding the evidence sufficient to support defendant's conviction for forcible sodomy because the jury could have reasonably concluded that defendant perpetrated the sodomy by force where the victim testified that defendant grabbed her head and turned it toward him and proceeded to hit her in the face with his penis until he shoved it into her mouth. Mohajer v. Commonwealth, 40 Va. App. 312, 579 S.E.2d 359, 2003 Va. App. LEXIS 309 (2003).

Evidence was sufficient to convict defendant of committing forcible sodomy on the victim, a mentally-retarded male, as the evidence showed that defendant knew the victim was mentally-retarded and used that disability to commit an act of sodomy on the victim because he believed that the victim "did not know what was going on." Mitchell v. Commonwealth, 41 Va. App. 598, 587 S.E.2d 727, 2003 Va. App. LEXIS 544 (2003).

Where the evidence showed that defendant made sexual contact with two boys under the age of 13, there was sufficient evidence to support convictions under §§ 18.2-67.1 and 18.2-67.3 , despite the fact that the exact date of the incidents was not established. Harland v. Commonwealth, No. 0842-03-4, 2004 Va. App. LEXIS 445 (Ct. of Appeals Sept. 14, 2004).

Defendant's convictions on two counts of forcible sodomy were upheld, as sufficient evidence was presented that defendant exerted psychological pressure and emotionally dominated his employee, who was younger, smaller, and intoxicated through defendant's act of supplying him with alcohol, and intimidated him into submitting to his sexual advances. Montague v. Commonwealth, No. 2236-03-1, 2004 Va. App. LEXIS 507 (Ct. of Appeals Nov. 2, 2004).

Defendant's use of the victim's cell phone shortly after it was stolen and the undisputed DNA evidence establishing that DNA recovered from the victim matched defendant's DNA profile provided sufficient evidence to prove that defendant was the criminal agent who committed the crimes of forcible sodomy, abduction, robbery, and conspiracy to commit robbery. Hayden v. Commonwealth, No. 1042-05-2,, 2006 Va. App. LEXIS 275 (Ct. of Appeals June 27, 2006).

Evidence that a woman lost consciousness after a blow to her head, that she was dragged to a concealed area, that she did not consent to have sex with defendant, and that spermatozoa with DNA consistent with defendant's was found in her anal cavity, was sufficient to prove that defendant used force to sodomize her, in violation of § 18.2-67.1 . Molina v. Commonwealth, 272 Va. 666 , 636 S.E.2d 470, 2006 Va. LEXIS 106 (2006).

Evidence admitted at defendant's bench trial sufficiently supported defendant's convictions for the rape and forcible sodomy of defendant's teenage stepdaughter. That evidence showed that defendant forcibly required defendant's teenage stepdaughter to submit to defendant's sexual advances on three occasions, that the victim credibly testified to those events, and that defendant's explanations of recorded, incriminating statements defendant made to the victim's mother, defendant's wife, were lacking in credibility. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

Evidence was sufficient to support a conviction for sodomy of a child because defendant acknowledged that defendant had oral sex with the victim, that defendant's mouth was on the victim's vaginal area, and that the victim was 12 years old at the time. Moreover, the victim testified that defendant's tongue was both on and in the opening of the victim's vagina and that the victim contracted herpes as a result of the victim's contact with defendant. Robeson v. Commonwealth,, 2008 Va. App. LEXIS 260 (May 27, 2008).

Evidence was sufficient to support defendant's convictions involving the second victim for taking indecent liberties with a child under 14-years-old pursuant to § 18.2-370 , forcible sodomy in violation of § 18.2-67.1 , and aggravated sexual battery of a child less than 13 years old pursuant to § 18.2-67.3 . Although the second victim could not pinpoint her exact age at the time of the incidents giving rise to the convictions, the trial court as the fact finder could determine that she was under the age of 13, as the second based her age on the relative dates of momentous events in her life, which gave the trial court a basis for determining she was less than 13 years old at the relevant times. Wood v. Commonwealth,, 2008 Va. App. LEXIS 451 (Oct. 7, 2008).

Evidence was sufficient to support defendant's convictions regarding taking indecent liberties with a child under 14 years old in violation of § 18.2-370 , forcible sodomy in violation of § 18.2-67.1 , and aggravated sexual battery of a child less than 13 years old pursuant to § 18.2-67.3 , all regarding the first victim. The trial court, as the fact finder because a bench trial was involved, could determine that the events that the first victim described occurred while still rejecting the first victim's timeline of the events all happening while she was in the fourth grade, which conflicted with the dates set forth in the indictment. Wood v. Commonwealth,, 2008 Va. App. LEXIS 451 (Oct. 7, 2008).

Evidence that the victim was mentally retarded; that the victim could not live independently and required constant supervision; that the victim was not told about oral sex, that was, the nature of the act; and the victim's limited ability to assess cause-effect relationships in social interaction supported defendant's conviction for forcible sodomy through use of the victim's mental incapacity under subdivision A 2 of § 18.2-67.1 . Sanford v. Commonwealth, 54 Va. App. 357, 678 S.E.2d 842, 2009 Va. App. LEXIS 307 (2009).

Evidence as a whole, viewed in the light most favorable to the Commonwealth, was sufficient to support convictions for forcible sodomy, in violation of § 18.2-67.1 , and attempted aggravated sexual battery, in violation of §§ 18.2-67.3 and 18.2-67.5 , where the evidence included extensive corroboration of the victim's testimony and none of the arguments raised by defendant rendered the victim's testimony inherently incredible as a matter of law. Moran v. Commonwealth,, 2010 Va. App. LEXIS 198 (May 11, 2010).

Evidence was sufficient to prove that defendant committed two counts of object sexual penetration and four counts of forcible sodomy as the victim's testimony established that defendant put his fingers inside her vagina more times than she could count and made her put his penis in her mouth approximately five times. Walker v. Commonwealth,, 2010 Va. App. LEXIS 331 (Aug. 17, 2010).

Defendant's convictions for forcible sodomy and rape were supported by sufficient evidence as the victim's testimony showed that defendant handcuffed her, placed her face-down over a desk, pushed her down so that she could not stand up, vaginally penetrated her without her consent, and forced her to perform fellatio on him without her consent. Because defendant penetrated the victim both vaginally and orally without her consent and through the use of force, despite her resistance, the evidence was sufficient to show that defendant committed rape and forcible sodomy. Dillingham v. Commonwealth,, 2011 Va. App. LEXIS 184 (2011).

Evidence was insufficient to prove oral sodomy where defendant told an investigator that he performed oral sex on the complainant, however, defendant was not asked to define "oral sex" or to indicate in any other way whether, when he performed oral sex on the complainant, he penetrated any portion of her female sexual organs. Desper v. Commonwealth,, 2011 Va. App. LEXIS 343 (Nov. 8, 2011).

Testimony of the victim, which the fact finder accepted and which was corroborated by (1) the victim's statements in the immediate aftermath of the crimes to the victim's parent and the police; (2) the DNA evidence; and (3) defendant's initial denial that defendant even knew the victim, a denial that the trial court could reasonably have concluded was a lie offered to conceal defendant's guilt, when combined with defendant's later acknowledgement that defendant had consensual sexual intercourse with the victim, fully justified the trial court's conclusion that the prosecution sufficiently established defendant's guilt of the crimes of rape, object sexual penetration, and sodomy. Shepperson v. Commonwealth,, 2012 Va. App. LEXIS 329 (Oct. 16, 2012).

Evidence was sufficient to convict appellant of sodomy under § 18.2-67.1 because penetration occurred as appellant had to penetrate the outermost parts of the female genitalia when he licked the victim's vagina, and appellant confirmed that he placed his mouth on the victim's vagina. Dawit Alemayehu Habtemariam v. Commonwealth,, 2013 Va. App. LEXIS 10 (Jan. 15, 2013).

Sufficient evidence supported defendant's conviction for forcible sodomy, as during a child victim's videotaped forensic interview with a detective the victim did not hesitate to demonstrate with anatomically correct dolls exactly how defendant inserted defendant's penis in the victim's mouth. Klevenz v. Commonwealth,, 2013 Va. App. LEXIS 45 (Feb. 5, 2013).

Narrative of the victim, who was deaf and mute, was sufficient to support a finding of rape and sodomy, because the numbering system used to refer to various body parts was clear to the court, allowing the court to find that the victim was specifically talking about certain body parts when using certain numbers. Bynum v. Commonwealth, No. 0854-12-1, 2013 Va. App. LEXIS 170 (Ct. of Appeals June 4, 2013).

Evidence supported defendant's conviction for forcible sodomy because, although defendant testified that the victim did not struggle and helped defendant to undress the victim in the victim's apartment and bedroom, the victim testified that defendant acted against the victim's will as the victim rejected and resisted defendant's sexual advances. Immediately after the incident, the victim called a friend, who described the victim as very upset, and the victim promptly sought counseling for sexual assault. Harrison v. Commonwealth,, 2015 Va. App. LEXIS 285 (Oct. 13, 2015).

Evidence held insufficient to convict defendant of sodomy. - Evidence failed to support conviction of forcible sodomy on grounds of intimidation since, under circumstances, court could not conclude that victim's will was overborne by psychological or emotional domination, and there was no evidence that victim feared bodily injury if he failed to comply. Stoudt v. Commonwealth, No. 2386-98-4 (Ct. of Appeals Feb. 15, 2000).

Evidence was insufficient to support defendant's conviction for forcible sodomy under § 18.2-67.1 ; while there was evidence of contact in that defendant put defendant's mouth and tongue on the victim's vagina, such evidence did not establish penetration. Carter v. Commonwealth, No. 2506-01-3, 2002 Va. App. LEXIS 645 (Ct. of Appeals Oct. 29, 2002).

Although the nine-year-old victim's testimony was insufficient to prove penetration by itself, when coupled with the medical evidence, it proved that defendant penetrated the victim with his finger as a nurse testified that the victim had a tear in the "vaginal vault" beyond her hymen, and that insertion or pressure to the area caused the tear; however, the medical evidence that proved digital penetration negated penetration during sodomy, as the nurse stated that a tongue could not have created the tear that the nurse observed. Breeden v. Commonwealth, No. 0404-02-3, 2003 Va. App. LEXIS 24 (Ct. of Appeals Jan. 28, 2003).

Although the trial court properly admitted an out-of-court statement which defendant's stepdaughter gave to a detective as a recent complaint of criminal sexual assault, pursuant to § 19.2-268.2 , the court erred by using the stepdaughter's statement to convict defendant of forcible sodomy because testimony which the stepdaughter gave at defendant's trial did not corroborate her out-of-court statement and there was no other evidence that established the elements of the offense. Fincham v. Commonwealth, No. 3361-02-2, 2004 Va. App. LEXIS 259 (Ct. of Appeals June 8, 2004).

Although the appellate court reversed defendant's convictions on two counts of forcible sodomy because the trial court erred when it refused to allow him to cross-examine his daughter about conversations she may have had with her mother that influenced her testimony, the court found that the daughter's testimony that defendant required her to put her mouth on his penis several years earlier, when she was five years old, was sufficient to sustain defendant's convictions and, as a result, a new trial was not barred on double jeopardy grounds. Almond v. Commonwealth, No. 0273-03-2, 2004 Va. App. LEXIS 351 (Ct. of Appeals July 20, 2004).

Given the Commonwealth's evidence that defendant's DNA was found in the victim's vaginal and anal cavity, the victim denied consenting to have sexual intercourse with defendant, and the only other person on the scene was excluded by the DNA evidence, the jury had sufficient evidence with which to convict defendant of both rape and forcible sodomy. Molina v. Commonwealth, 47 Va. App. 338, 624 S.E.2d 83, 2006 Va. App. LEXIS 6 (2006).

Evidence held sufficient to convict defendant of attempted forcible sodomy. - Evidence was sufficient to prove beyond a reasonable doubt that defendant committed attempted forcible sodomy where defendant announced the intention to commit sodomy by force and when the victim resisted, defendant proceeded to apply force to subdue the victim to defendant's will; although the acts were ineffectual, neither the ineffectuality of defendant's acts nor the prevention of performance was of a kind to rid defendant's acts of their criminal character. Smith v. Commonwealth, No. 2319-00-3, 2001 Va. App. LEXIS 640 (Ct. of Appeals Nov. 20, 2001).

Evidence was sufficient to support defendant's conviction for sodomy where the victim testified that his shorts had been lowered while he slept, that defendant was close behind the victim and was facing toward his back, and that he felt something "sticky, slimy" behind him, coupled with the medical evidence that the victim had injuries to his anus consistent with blunt force trauma directed inward. Morris v. Commonwealth, No. 2931-01-1, 2003 Va. App. LEXIS 181 (Ct. of Appeals Apr. 1, 2003).

Evidence was sufficient to support defendant's convictions for forcible sodomy even though they were based solely on the victim's testimony; that the victim could not recount in what room of the house each incident occurred and exhibited no internal physical injuries when examined by a physician over seven months later did not render his testimony inherently incredible. Gardner v. Commonwealth, No. 2192-02-3, 2004 Va. App. LEXIS 151 (Ct. of Appeals Apr. 6, 2004).

Evidence was sufficient to prove that defendant both intended to penetrate the victim anally with his penis and committed an overt act directed toward the consummation of the crime of forcible anal intercourse and thus, the evidence was sufficient to support defendant's conviction for attempted forcible anal sodomy. Valentin v. Commonwealth,, 2015 Va. App. LEXIS 34 (Feb. 3, 2015).

Sufficient evidence of penetration. - Where victim testified that defendant put his mouth on her vaginal area and on her vulva area, the jury could have found that during defendant's protracted assault of the victim and effort to moisten her, his mouth penetrated her vulva. Indeed, the victim testified that his mouth was on her vulva and that she could feel heat emanating from his mouth. Thus, the evidence was sufficient to prove penetration. Newby v. Commonwealth, No. 2473-95-2 (Ct. of Appeals July 1, 1997).

Evidence was sufficient to establish penetration of outermost portion of female victim's genitalia, in violation of this section. Medici v. Commonwealth, No. 0527-98-4 (Ct. of Appeals May 25, 1999).

To sustain a conviction for sodomy, the Commonwealth must prove beyond a reasonable doubt that penetration occurred; however, penetration may be proved by circumstantial evidence, and that evidence need only be slight, and in the context of a sodomy charge, evidence of the condition, position, and proximity of the parties may afford sufficient evidence of penetration. Morris v. Commonwealth, No. 2931-01-1, 2003 Va. App. LEXIS 181 (Ct. of Appeals Apr. 1, 2003).

Penetration for purposes of sodomy, like any other element, may be proved by circumstantial evidence and is not dependent on direct testimony from the victim that penetration occurred. Morris v. Commonwealth, No. 2931-01-1, 2003 Va. App. LEXIS 181 (Ct. of Appeals Apr. 1, 2003).

Defendant's conviction for forcible sodomy by cunnilingus of a child under the age of thirteen was not plainly wrong or without evidence to support it because the minor victim testified that defendant touched the victim's vagina with defendant's tongue. Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 833 S.E.2d 900, 2019 Va. App. LEXIS 239 (2019).

Defendant preserved the double jeopardy argument for appeal where defense counsel stated in a discussion with the judge that the indictments of sodomy and carnal knowledge ought to be struck, although the argument was not precisely framed as an objection, this colloquy sufficed to present the issue to the trial judge. Moreover, the trial judge's response was a clear acknowledgment that he understood the issue. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

Actual innocence not proven. - In his recantation, the minor victim stated that the prisoner never forced him to engage in any sexual act; thus, the prisoner claimed that he was actually innocent of the nolle prossed charges brought against him pursuant to §§ 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , and 18.2-370 . However, the victim's statement did not demonstrate that the prisoner was actually innocent, since none of the nolle prossed charges required proof of force, threats, or intimidation where the victim was under the age of 13, or 15, or for the indecent liberties charges; thus, even if the victim, who was 11 at the time of the abuse, consented to engage in the alleged sexual acts, the conduct was still unlawful. DiCaprio-Cuozzo v. Johnson,, 2010 U.S. Dist. LEXIS 108702 (E.D. Va. Oct. 12, 2010).

Jury instructions. - Inmate was properly denied habeas corpus relief on his claim that his counsel were ineffective for failing to request a jury instruction that would require unanimity on forcible sodomy because unanimity as to the means of commission of a crime was not constitutionally required for a conviction, and to the extent that the oral sodomy supported the aggravating factor that the offense was "outrageously or wantonly vile, horrible, or inhuman" there was substantial other evidence to support this aggravating factor. Moreover, the jury found the additional aggravating factor that the inmate would be a "continuing serious threat to society," which could serve as an independent basis for imposition of the death penalty. Hedrick v. True, 443 F.3d 342, 2006 U.S. App. LEXIS 7904 (4th Cir. 2006), cert. denied, 548 U.S. 928, 127 S. Ct. 10, 165 L. Ed. 2d 992 (2006).

In defendant's prosecution for forcible sodomy and aggravated sexual battery, jury instructions combining alternative theories of force, mental incapacity, or physical helplessness as the means of committing the crimes against the victim's will did not err because (1) the alternative means were not elements on which the jury had to unanimously agree, as a sexual offense was a crime against the victim's will, however accomplished, (2) the evidence supported a finding that the crimes were committed by each means stated, and (3) the jury convicted defendant of the same crimes, all meeting the requirement of unanimity. Davison v. Commonwealth, 69 Va. App. 321, 819 S.E.2d 440, 2018 Va. App. LEXIS 282 (2018).

Indefinite period of supervised probation modified. - Trial court abused its discretion in sentencing defendant to an indefinite period of supervised probation, as the period of supervised probation imposed could not extend beyond the specified period of suspension. Mason v. Commonwealth,, 2007 Va. App. LEXIS 119 (Mar. 27, 2007).

Applied in Manning v. Commonwealth, 2 Va. App. 352, 344 S.E.2d 197 (1986); Crawford v. Commonwealth, 23 Va. App. 661, 479 S.E.2d 84 (1996); Jett v. Commonwealth, 29 Va. App. 190, 510 S.E.2d 747 (1999); Anderson v. Commonwealth, 282 Va. 457 , 717 S.E.2d 623, 2011 Va. LEXIS 226 (2011).

CIRCUIT COURT OPINIONS

Evidence held sufficient to convict defendant of sodomy. - Defendant's motion to set aside the jury verdicts was denied because the jury could have reasonably found that defendant engaged in forcible sodomy with the victim through intimidation; the victim's testimony suggested that defendant was in a relative position of power over him, he was generally obedient to defendant's authority, he was not a willing participant in the sexual abuse, and he felt he could not physically resist defendant since defendant was bigger than him. Commonwealth v. Stueber,, 2019 Va. Cir. LEXIS 101 (Norfolk Apr. 30, 2019).

§ 18.2-67.2. Object sexual penetration; penalty.

  1. An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, whether or not his or her spouse, other than for a bona fide medical purpose, or causes such complaining witness to so penetrate his or her own body with an object or causes a complaining witness, whether or not his or her spouse, to engage in such acts with any other person or to penetrate, or to be penetrated by, an animal, and
    1. The complaining witness is less than 13 years of age; or
    2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness's mental incapacity or physical helplessness.
  2. Inanimate or animate object sexual penetration is a felony punishable by confinement in the state correctional facility for life or for any term not less than five years; and in addition:
    1. For a violation of subdivision A 1, where the offender is more than three years older than the victim, if done in the commission of, or as part of the same course of conduct as, or as part of a common scheme or plan as a violation of (i) subsection A of § 18.2-47 or § 18.2-48 , (ii) § 18.2-89 , 18.2-90 , or 18.2-91 , or (iii) § 18.2-51.2 , the punishment shall include a mandatory minimum term of confinement of 25 years; or
    2. For a violation of subdivision A 1 where it is alleged in the indictment that the offender was 18 years of age or older at the time of the offense, the punishment shall include a mandatory minimum term of confinement for life. The mandatory minimum terms of confinement prescribed for violations of this section shall be served consecutively with any other sentence. If the term of confinement imposed for any violation of subdivision A 1, where the offender is more than three years older than the victim, is for a term less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years. This suspended sentence shall be suspended for the remainder of the defendant's life, subject to revocation by the court. In any case deemed appropriate by the court, all or part of any sentence imposed for a violation under this section against a spouse may be suspended upon the defendant's completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and will be in the best interest of the complaining witness.
  3. Upon a finding of guilt under this section, when a spouse is the complaining witness in any case tried by the court without a jury, the court, without entering a judgment of guilt, upon motion of the defendant who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection and with the consent of the complaining witness and the attorney for the Commonwealth, may defer further proceedings and place the defendant on probation pending completion of counseling or therapy, if not already provided, in the manner prescribed under § 19.2-218.1 . If the defendant fails to so complete such counseling or therapy, the court may make final disposition of the case and proceed as otherwise provided. If such counseling is completed as prescribed under § 19.2-218.1 , the court may discharge the defendant and dismiss the proceedings against him if, after consideration of the views of the complaining witness and such other evidence as may be relevant, the court finds such action will promote maintenance of the family unit and be in the best interest of the complaining witness. (1981, c. 397; 1982, c. 508; 1986, c. 516; 1988, c. 437; 1993, c. 549; 1994, cc. 772, 794; 1999, c. 367; 2005, c. 631; 2006, cc. 853, 914; 2012, cc. 575, 605; 2013, cc. 761, 774.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

The 1999 amendment substituted "bodily" for "serious physical" in the last paragraph of subsection B.

The 2005 amendments. - The 2005 amendment by c. 631, in subsection A, substituted "whether or not" for "who is not," deleted "with any object" preceding "other than for a bona fide" and substituted "13" for "thirteen"; deleted former subsection B and redesignated former subsections C and D as present subsections B and C; substituted "under this section against a spouse" for "of subsection B" in subsection B; and in subsection C, substituted "under this section against a spouse" for "of subsection B" and inserted "who has not previously had a proceeding against him for violation of this section dismissed pursuant to this subsection."

The 2006 amendments. - The 2006 amendments by cc. 853 and 914 are nearly the same, and inserted the last three sentences in the first paragraph of subsection B.

The 2012 amendments. - The 2012 amendments by cc. 575 and 605 are identical, and rewrote subsection B.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added the first sentence of the paragraph following subdivision B 2.

Law review. - For comment, "Sexism and the Common Law: Spousal Rape in Virginia," see 8 Geo. Mason U.L. Rev. 369 (1986).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006). For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 15 Rape and Other Statutory Offenses, §§ 3, 5; 16 M.J. Sodomy, § 1; 20 M.J. Weapons, § 9.

CASE NOTES

Penetration need only be slight for purposes of this section, as well as for the statutes prohibiting rape and forcible sodomy. Jett v. Commonwealth, 27 Va. App. 759, 501 S.E.2d 457 (1998).

Evidence of penetration or stimulation of clitoris is sufficient to establish penetration under this section, since according to the anatomical description, the clitoris lies within the labia majora. Jett v. Commonwealth, 27 Va. App. 759, 501 S.E.2d 457 (1998).

Fingers as "object." - This statute makes it a crime to sexually penetrate a victim with "any object," including, as here, the defendant's finger. Bell v. Commonwealth, 22 Va. App. 93, 468 S.E.2d 114 (1996).

Any object. - The language of this section referring to penetration with "any object" is not ambiguous and includes both animate and inanimate objects. Herrel v. Commonwealth, 28 Va. App. 579, 507 S.E.2d 633 (1998).

This section criminalizes both "inanimate" and "animate object sexual penetration" and expressly states that penetration with "any object" violates the statute if all other elements have been proved; the fact that the conduct might also constitute forcible sodomy under § 18.2-67.1 did not require a different result, as where conduct permitted prosecution under either of two statutes, the selection of the charge was a matter of prosecutorial election. Gardner v. Commonwealth, No. 2192-02-3, 2004 Va. App. LEXIS 151 (Ct. of Appeals Apr. 6, 2004).

The force required to sustain a conviction is some force other than merely that force required to accomplish the unlawful touching prohibited by the statute. Adsit v. Commonwealth, No. 0882-98-2 (Ct. of Appeals Feb. 9, 1999).

Use of force shown despite lack of positive resistance. - Requisite force was proven where a male nurse committed object sexual vaginal penetration of a cerebral palsy victim whose leg had been severely injured in car accident, as defendant was in a position of trust and initiated unwanted touching and penetration, and defendant's aggressive behavior instilled fear and psychological paralysis. Wactor v. Commonwealth, 38 Va. App. 375, 564 S.E.2d 160, 2002 Va. App. LEXIS 326 (2002).

Intimidation shown. - Victim's fear of bodily harm from defendant prevented her from communicating her objections to his assault and was, therefore, sufficient to overbear her will, and evidence was sufficient to prove defendant used intimidation to accomplish animate object penetration. Mohajer v. Commonwealth, 39 Va. App. 21, 569 S.E.2d 738, 2002 Va. App. LEXIS 550 (2002).

Trial court did not err in finding the evidence sufficient to support defendant's conviction for animate object penetration because the evidence was sufficient to prove that defendant used intimidation to accomplish animate object penetration where the circumstances surrounding the assault establish that the victim was in a vulnerable position; specifically, she was naked and alone in the presence of someone she believed she could trust and whom she allowed to touch her body only because of his position as masseur. Mohajer v. Commonwealth, 40 Va. App. 312, 579 S.E.2d 359, 2003 Va. App. LEXIS 309 (2003).

Subsection C of 18.2-67.1 only applicable with consent of complaining witness and Commonwealth's attorney. - Trial court did not err in denying defendant's motion under subsection C of §§ 18.2-67.1 and 18.2-67.2 , to be placed on probation pending completion of counseling or therapy because the provisions of subsection C of §§ 18.2-67.1 and 18.2-67.2 , were only applicable with the consent of the complaining witness and the Commonwealth's attorney, and the Commonwealth's attorney clearly did not consent. Wilson v. Commonwealth, 58 Va. App. 513, 711 S.E.2d 251, 2011 Va. App. LEXIS 230 (2011).

Where spouse is complaining witness. - After defendant had a preliminary hearing in juvenile and domestic relations court, and a grand jury indicted defendant on charges of forcible sodomy and animate object sexual penetration against his wife, violations of §§ 18.2-67.1 and 18.2-67.2 , defendant was not entitled under § 19.2-218.2 to return the case to the juvenile and domestic relations court for a hearing to authorize the preparation of a report to address the feasibility of counseling or therapy pursuant to § 19.2-218.1 where defendant failed to make the request for such a report at the preliminary hearing. Wilson v. Commonwealth, 58 Va. App. 513, 711 S.E.2d 251, 2011 Va. App. LEXIS 230 (2011).

Proof of lascivious intent not required. - A plain reading of § 18.2-67.2 establishes that the Virginia Code merely requires proof of penetration of a named sexual part, not proof of lascivious intent. Viars v. Commonwealth,, 2005 Va. App. LEXIS 147 (Apr. 12, 2005).

Amendment of indictment proper. - Pursuant to § 19.2-231 , the trial court properly allowed the prosecution, after trial began, to amend an indictiment charging rape ( § 18.2-61 ) to object sexual penetration ( § 18.2-67.2 ), because the amendment did not change the nature or character of the underlying conduct, penetrating victim's vagina against her will by force, only the object used to accomplish the penetration. Jackson v. Commonwealth,, 2012 Va. App. LEXIS 224 (July 10, 2012).

Crimes against nature not lesser included offense. - Because every instance of object penetration does not constitute carnal knowledge under § 18.2-361 A, an offense under that statute is not a lesser-included offense of § 18.2-67.2 . Smith v. Commonwealth, No. 1546-97-4 (Ct. of Appeals Dec. 1, 1998).

No double jeopardy violation. - Because the Commonwealth's evidence proved that defendant performed two separate acts on the victim while she was intoxicated to the point of unconsciousness the Double Jeopardy Clause was not implicated or violated. Jones v. Commonwealth,, 2008 Va. App. LEXIS 252 (May 27, 2008).

Admission of evidence. - Evidence obtained illegally by a hacker from defendant's computer was admissible against defendant, who was charged with sodomy, object sexual penetration, and aggravated sexual battery; the government did not know of and acquiesce in the hacker's search in a manner sufficient to transform the hacker into a government agent. Jarrett v. Commonwealth, 42 Va. App. 702, 594 S.E.2d 295, 2004 Va. App. LEXIS 127 (2004).

Trial court did not err in admitting evidence of appellant's uncharged misconduct to prove that he committed the charged crimes as the victim's testimony fell within the exception allowing evidence of prior bad acts to show the conduct and feeling of the accused toward the victim and the prior relations between the parties to prove an element of the offense charged; at trial, the victim specifically testified that, as a result of his previous attacks, she was scared that appellant was going to hurt her if she resisted him. She further testified that she continued to return to appellant's house and did not tell anyone about the attacks because she felt stuck; she believed appellant's threat that if she told anyone about his actions appellant's daughter would find out and kill herself and such testimony, if believed by the jury, would tend to demonstrate that the forcible sodomy and object sexual penetration were accomplished by actions that were tantamount to force, threat or intimidation. Lemen v. Commonwealth,, 2009 Va. App. LEXIS 580 (Dec. 22, 2009).

When, in a prosecution for object sexual penetration, in violation of subdivision A 2 of § 18.2-67.2 , certificates of analysis of bodily fluids for DNA evidence were admitted, along with the testimony of the author of those certificates, but two scientists involved in the analysis did not testify, defendant's right to confrontation was not violated because the witness supervised both scientists' work and was directly involved in the entire DNA analysis at issue, so only the witness could testify about the accuracy of the analysis, the laboratory's operating procedures, and any deviations from or systemic problems in those procedures. Aguilar v. Commonwealth, 280 Va. 322 , 699 S.E.2d 215, 2010 Va. LEXIS 224 (2010).

When, in a prosecution for object sexual penetration, in violation of subdivision A 2 of § 18.2-67.2 , certificates of analysis of bodily fluids for DNA evidence were admitted, along with the testimony of the author of those certificates, but two scientists involved in the analysis did not testify, defendant's right to confrontation was not violated because the certificates did not explain the work of one of the non-testifying scientists, contain reports that scientist might have generated, or report that scientist's factual findings, so the certificates were not that scientist's declarations, expressly or impliedly, and nothing from that scientist was presented to the fact-finder in a form functionally identical to live, in-court testimony. Aguilar v. Commonwealth, 280 Va. 322 , 699 S.E.2d 215, 2010 Va. LEXIS 224 (2010).

When, in a prosecution for object sexual penetration, in violation of subdivision A 2 of § 18.2-67.2 , certificates of analysis of bodily fluids for DNA evidence were admitted, along with the testimony of the author of those certificates, but two scientists involved in the analysis did not testify, defendant's right to confrontation was not violated because the witness's testimony showed one non-testifying scientist had no role in the DNA analysis, since that scientist did not find spermatozoa the witness examined, so the certificates did not contain the results of that non-testifying scientist's work. Aguilar v. Commonwealth, 280 Va. 322 , 699 S.E.2d 215, 2010 Va. LEXIS 224 (2010).

Trial court did not err by admitting evidence of child pornography found on defendant's computer because it was relevant to show defendant's conduct or attitude toward the victim, as she alleged defendant showed pornographic movies involving naked adults on the same computer while he assaulted her, to prove motive or method of committing the sexual assaults, as evidence of defendant's specific intent to engage in sex with a minor, and to corroborate the victim's allegations. Kenner v. Commonwealth, 71 Va. App. 279, 835 S.E.2d 107, 2019 Va. App. LEXIS 282 (2019), aff'd, 299 Va. 414 , 854 S.E.2d 493 (Va. 2021).

Commonwealth of Virginia's evidence of the titles of the child pornography downloads found on defendant's desktop computer was properly admitted at trial because the evidence was relevant to show defendant's attitude and conduct towards the minor victim, to prove motive or method of committing the sexual assault, and to prove the elements of the offense of custodial sexual abuse. Furthermore, the legitimate probative value of the evidence received by the trial court outweighed its incidental prejudice to defendant. Kenner v. Commonwealth, 299 Va. 414 , 854 S.E.2d 493, 2021 Va. LEXIS 6 (2021).

Testimony concerning physical evidence. - When, in a prosecution for object sexual penetration, in violation of subdivision A 2 of § 18.2-67.2 , certificates of analysis of bodily fluids for DNA evidence were admitted, along with the testimony of the author of those certificates, but two scientists involved in the analysis did not testify, defendant's right to confrontation was not violated because the only declarations in the certificates were those of the testifying witness. Aguilar v. Commonwealth, 280 Va. 322 , 699 S.E.2d 215, 2010 Va. LEXIS 224 (2010).

Testimony of character witness. - Circuit court erred by sustaining the Commonwealth of Virginia's objection to defendant's question that sought admissible character evidence, as defendant was not limited solely to reputation evidence regarding truthfulness, but was entitled to offer evidence to prove good character for any trait relevant in the case, and the error was not harmless. Gardner v. Commonwealth, 288 Va. 44 , 758 S.E.2d 540, 2014 Va. LEXIS 98 (2014).

Circumstantial evidence may be more compelling and persuasive than direct evidence, and when convincing, it is entitled to as much weight as direct evidence. Jett v. Commonwealth, 29 Va. App. 190, 510 S.E.2d 747 (1999).

Circumstantial evidence sufficient to support conviction. - Circumstantial evidence was sufficient to support conviction for attempted object sexual penetration of 8 month-old son by father where trial court implicitly found that the only reasonable hypotheses flowing from the evidence were that injuries to child's anus occurred while in father's care rather than while undergoing medical treatment and that father was the criminal agent. Marshall v. Commonwealth, 26 Va. App. 627, 496 S.E.2d 120 (1998).

Penetration may be proved by circumstantial evidence and is not dependent on direct testimony from the victim that penetration occurred. Jett v. Commonwealth, 27 Va. App. 759, 501 S.E.2d 457 (1998).

Although the child victim's testimony did not establish penetration, circumstantial evidence of the victim's pain and swollen clitoris established the element of penetration. Jett v. Commonwealth, 27 Va. App. 759, 501 S.E.2d 457 (1998).

Digital penetration shown by medical evidence. - Although the nine-year-old victim's testimony was insufficient to prove penetration by itself, when coupled with the medical evidence, it proved that defendant penetrated the victim with his finger as a nurse testified that the victim had a tear in the "vaginal vault" beyond her hymen, and that insertion or pressure to the area caused the tear; however, the medical evidence that proved digital penetration negated penetration during sodomy, as the nurse stated that a tongue could not have created the tear that the nurse observed. Breeden v. Commonwealth, No. 0404-02-3, 2003 Va. App. LEXIS 24 (Ct. of Appeals Jan. 28, 2003).

Licensed professional counselor permitted to testify as to post-traumatic stress disorder of child victim. - In a prosecution for indecent liberties with a child in defendant's custody and one count of object sexual penetration, the trial court did not abuse its discretion by allowing an expert, who was also a licensed professional counselor, to give testimony regarding a psychiatric diagnosis of the victim of sexual abuse, as the expert was both: (1) permitted by state law, and (2) qualified by her training and experience, to testify about post-traumatic stress disorder. Fitzgerald v. Commonwealth, 48 Va. App. 271, 630 S.E.2d 337, 2006 Va. App. LEXIS 249 (2006), aff'd, 273 Va. 596 , 643 S.E.2d 162, 2007 Va. LEXIS 63 (2007).

Evidence held sufficient to support conviction. - Testimonial evidence, along with the familial relationship, the relative ages and sizes of defendant and the victim, and the improper touching that preceded the penetration, constituted sufficient proof to support a finding that defendant committed animate sexual penetration by intimidation. Commonwealth v. Bower, 264 Va. 41 , 563 S.E.2d 736, 2002 Va. LEXIS 89 (2002).

Although the trial court properly admitted an out-of-court statement which defendant's stepdaughter gave to a detective as a recent complaint of criminal sexual assault, pursuant to § 19.2-268.2 , the court erred by using the stepdaughter's statement to convict defendant of forcible sodomy because testimony which the stepdaughter gave at defendant's trial did not corroborate her out-of-court statement and there was no other evidence which established the elements of the offense. However, the stepdaughter's testimony and defendant's admission that he rubbed his stepdaughter's genitalia were sufficient to prove that he committed animate object sexual penetration and aggravated sexual battery, and the appellate court affirmed the trial court's judgment convicting defendant of those crimes. Fincham v. Commonwealth, No. 3361-02-2, 2004 Va. App. LEXIS 259 (Ct. of Appeals June 8, 2004).

There was sufficient evidence to support defendant's conviction for animate object sexual penetration of a minor under 13 years of age where defendant admitted that he had touched the victim's vagina, the victim testified that defendant's finger went "in a little bit" and that it hurt, and the child showed her mother bloodstained toilet tissue afterwards. Avalos v. Commonwealth,, 2005 Va. App. LEXIS 241 (June 21, 2005).

Sufficient evidence, including the victim's distraught demeanor and pressure marks on her upper thigh, supported defendant's conviction of animate object sexual penetration. The fact that defendant was middle-aged, had no relevant criminal past, knew the victim for two years, and that she may have been flirtatious or sexually suggestive did not render her testimony inherently incredible. Stevenson v. Commonwealth,, 2006 Va. App. LEXIS 49 (Feb. 7, 2006).

Because a child victim testified that defendant put his "thingy" "up in" "where she peed out of," which was located at her "bottom," and "started to hump her," the evidence was sufficient to convict defendant of aggravated sexual battery, animate object sexual penetration, and statutory rape under §§ 18.2-67.3 , 18.2-67.2 , and 18.2-61 . Tinsley v. Commonwealth,, 2007 Va. App. LEXIS 207 (May 15, 2007).

There was sufficient evidence that defendant was not the spouse of the victims for purposes of § 18.2-67.2 as: (1) the minimum legal age for marriage, even with parental consent, was 16 under § 20-48 ; (2) at the time of the offenses, the younger victim was between four and eight; the elder was between 11 and 12; and (3) any marriage between defendant and either victim would have been void pursuant to § 20-45.1 . Haley v. Commonwealth, No. 0877-06-2, 2007 Va. App. LEXIS 402 (Ct. of Appeals Nov. 6, 2007).

Given that the fact finder acted within its province to accept the Commonwealth's evidence and reject defendant's version of the facts, the absence of a suppression hearing record, no double jeopardy violation, and no error in denying a motion to strike, defendant's aggravated sexual battery and sexual penetration convictions were upheld on appeal. Jones v. Commonwealth,, 2008 Va. App. LEXIS 252 (May 27, 2008).

Defendant's convictions for object sexual penetration in violation of § 18.2-67.2 and aggravated sexual battery in violation of § 18.2-67.3 were upheld on appeal despite the 11-year-old victim's inconsistent testimony and statements to an investigator. The trial court was free to believe the victim rather than defendant. Rose v. Commonwealth,, 2009 Va. App. LEXIS 385 (Sept. 1, 2009).

Evidence was sufficient to prove that defendant committed two counts of object sexual penetration and four counts of forcible sodomy as the victim's testimony established that defendant put his fingers inside her vagina more times than she could count and made her put his penis in her mouth approximately five times. Walker v. Commonwealth,, 2010 Va. App. LEXIS 331 (Aug. 17, 2010).

Testimony of the victim, which the fact finder accepted and which was corroborated by (1) the victim's statements in the immediate aftermath of the crimes to the victim's parent and the police; (2) the DNA evidence; and (3) defendant's initial denial that defendant even knew the victim, a denial that the trial court could reasonably have concluded was a lie offered to conceal defendant's guilt, when combined with defendant's later acknowledgement that defendant had consensual sexual intercourse with the victim, fully justified the trial court's conclusion that the prosecution sufficiently established defendant's guilt of the crimes of rape, object sexual penetration, and sodomy. Shepperson v. Commonwealth,, 2012 Va. App. LEXIS 329 (Oct. 16, 2012).

Evidence supported defendant's conviction for object sexual penetration because, although defendant testified that the victim did not struggle and helped defendant to undress the victim in the victim's apartment and bedroom, the victim testified that defendant acted against the victim's will as the victim rejected and resisted defendant's sexual advances. Immediately after the incident, the victim called a friend, who described the victim as very upset, and the victim promptly sought counseling for sexual assault. Harrison v. Commonwealth,, 2015 Va. App. LEXIS 285 (Oct. 13, 2015).

Evidence sufficient to show use of force. - Conviction for animate object sexual penetration under § 18.2-67.2 was supported by sufficient evidence, as defendant's acts of grabbing the victim and continuing to penetrate the victim's vagina after the victim told defendant to stop constituted additional and sufficient reasons, along with the "rather significant probing" of the victim's vagina and hymen found by the trial court, for the trial court to have concluded that defendant used the requisite force under § 18.2-67.2 . Kanczuzewski v. Commonwealth,, 2009 Va. App. LEXIS 93 (Mar. 10, 2009).

Evidence insufficient to show use of force. - In a prosecution arising from an incident in which the 25-year-old defendant inserted his hand into the 14-year-old victim's vagina while she spent the night on the sofa in the home of a friend, in which the defendant also lived, the evidence did not establish the use of force where the victim testified that she was unable to shut her legs because of the way the defendant had his hand under her, but there was no evidence of any other use of force. Adsit v. Commonwealth, No. 0882-98-2 (Ct. of Appeals Feb. 9, 1999).

In case in which the Court of Appeals held that intimidation was not proved based on the fact that the accused was victim's parent and may have been physically larger than victim, the Virginia Supreme Court reversed, holding that those factors and the testimony of witness that she was frightened could sustain the conviction. Commonwealth v. Bower, 264 Va. 41 , 563 S.E.2d 736, 2002 Va. LEXIS 89 (2002).

Defendant asserted that, in granting his motion to strike on the ground that the Commonwealth's evidence was insufficient to prove the charge of animate object sexual penetration, the trial court effectively acquitted him of that charge and dismissed the indictment, but the trial court concluded that, although the Commonwealth's evidence was insufficient to prove the element of force, threat, intimidation, or physical helplessness, the evidence was sufficient, as a matter of law, to sustain a conviction for carnal knowledge under § 18.2-63 ; thus, the trial court's granting of the motion to strike did not constitute a judgment of acquittal under Va. Sup. Ct. R. 3A:15. Therefore, the trial court's ruling on the motion to strike did not preclude the Commonwealth from proceeding on the amended charge of carnal knowledge; accordingly, his conviction was affirmed. Sandoval v. Commonwealth,, 2006 Va. App. LEXIS 51 (Feb. 7, 2006).

Evidence of penetration held sufficient. - Despite defendant's contention that only his fingers touched the victim's clothing which covered her labia majora, and that her trousers and undergarments were between his fingers and the opening to the sexual organ and thus could not support the necessary element of penetration, the Court of Appeals of Virginia properly held that because the victim was aware of the intricate structure of her genitalia, and she testified explicitly that defendant put his finger inside the front area of the lips of her vagina, such was sufficient evidence to uphold defendant's object sexual penetration conviction; moreover, the victim's later statement that defendant's finger hit the front area of her genitalia did not detract in any way from her earlier testimony or cause the evidence to be in a state of equipoise. Davis v. Commonwealth, 272 Va. 476 , 634 S.E.2d 322, 2006 Va. LEXIS 74 (2006).

Evidence of penetration held insufficient. - A defendant's conviction for object sexual penetration was not supported by the evidence where the victim's testimony was inherently incredible and so contrary to human experience as to render it unworthy of belief or to sustain guilt beyond a reasonable doubt. Davis v. Commonwealth, No. 1637-99-2, 2000 Va. App. LEXIS 612 (Ct. of Appeals Aug. 22, 2000).

Defendant's conviction for animate object sexual penetration was reversed for insufficient evidence of penetration as, even if defendant's testimony that he did not know a word other than "fingered" for touching the victim's vagina, that he did not know it meant putting his hands inside of the victim, and that he put his hand on top of her vagina on her pubic hair, but did not feel the lips of her vagina or her clitoris, was rejected as not credible, defendant's statement that he "fingered" the victim was insufficient to prove digital penetration as a detective never testified why "fingered" meant digital penetration to him, or that it was commonly accepted street slang for digital penetration. Davis v. Commonwealth,, 2006 Va. App. LEXIS 298 (July 5, 2006).

Actual innocence not proven. - In his recantation, the minor victim stated that the prisoner never forced him to engage in any sexual act; thus, the prisoner claimed that he was actually innocent of the nolle prossed charges brought against him pursuant to §§ 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , and 18.2-370 . However, the victim's statement did not demonstrate that the prisoner was actually innocent, since none of the nolle prossed charges required proof of force, threats, or intimidation where the victim was under the age of 13, or 15, or for the indecent liberties charges; thus, even if the victim, who was 11 at the time of the abuse, consented to engage in the alleged sexual acts, the conduct was still unlawful. DiCaprio-Cuozzo v. Johnson,, 2010 U.S. Dist. LEXIS 108702 (E.D. Va. Oct. 12, 2010).

Appeal procedurally barred. - Defendant's argument was procedurally barred because it was presented for the first time on appeal; because defendant only objected to the Commonwealth's lack of evidence regarding intimidation and threat, the court of appeals could not consider a separate argument challenging the sufficiency of the evidence of penetration on appeal. Kirkpatrick v. Commonwealth,, 2015 Va. App. LEXIS 210 (July 7, 2015).

CIRCUIT COURT OPINIONS

Exemption from death penalty. - Defendant proved by a preponderance of the evidence that he was exempted from the death penalty because he had sub-average intellectual functioning as confirmed by standardized testing and significant adaptive functioning deficits measured by a nationally accepted standardized assessment test corroborated by his academic records and family history; he was sentenced to the maximum punishment because his murder of and sexual assault of an elderly widow was inhuman, senseless, and depraved. Commonwealth v. Terry,, 2016 Va. Cir. LEXIS 218 (Halifax County Oct. 31, 2016).

§ 18.2-67.2:1.

Repealed by Acts 2005, c. 631, cl. 2.

Editor's note. - Former § 18.2-67.2:1 , pertaining to marital sexual assault, derived from 1986, c. 516; 1994, cc. 772, 794; 1999, c. 367.

§ 18.2-67.3. Aggravated sexual battery; penalty.

  1. An accused is guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and
    1. The complaining witness is less than 13 years of age; or
    2. The act is accomplished through the use of the complaining witness's mental incapacity or physical helplessness; or
    3. The offense is committed by a parent, step-parent, grandparent, or step-grandparent and the complaining witness is at least 13 but less than 18 years of age; or
    4. The act is accomplished against the will of the complaining witness by force, threat or intimidation, and
      1. The complaining witness is at least 13 but less than 15 years of age; or
      2. The accused causes serious bodily or mental injury to the complaining witness; or
      3. The accused uses or threatens to use a dangerous weapon; or
    5. The offense is not a recognized form of treatment in the profession, and is committed, without the express consent of the patient, by (i) a massage therapist, or a person purporting to be a massage therapist, during an actual or purported practice of massage therapy, as those terms are defined in § 54.1-3000 ; (ii) a person practicing or purporting to practice the healing arts, during an actual or purported practice of the healing arts, as those terms are defined in §§ 54.1-2900 and 54.1-2903 ; or (iii) a physical therapist, or a person purporting to be a physical therapist, during an actual or purported practice of physical therapy, as those terms are defined in § 54.1-3473 .
  2. Aggravated sexual battery is a felony punishable by confinement in a state correctional facility for a term of not less than one nor more than 20 years and by a fine of not more than $100,000.

    (1981, c. 397; 1993, c. 590; 2004, c. 843; 2005, cc. 185, 406; 2020, c. 1003.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to unenforceability of employee nondisclosure or confidentiality agreement regarding sexual assault, see § 40.1-28.01 .

Editor's note. - Acts 2020, c. 1003, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 843, in subdivision A 2, deleted "against the will of the complaining witness, by force, threat or intimidation" following "is accomplished" and "or physical helplessness, and" at the end; added subdivision A 3; and made related and minor stylistic changes.

The 2005 amendments. - The 2005 amendment by c. 185 added subdivision A 3 and redesignated the former subdivision A 3 as subdivision A 4.

The 2005 amendment by c. 406, in subsection A, inserted "or physical helplessness" in subdivision 2, and deleted "or through the use of the complaining witness's physical helplessness" in subdivision 4.

The 2020 amendments. - The 2020 amendment by c. 1003 added subdivision A 5; and made stylistic changes.

Law review. - For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, § 10; 7B M.J. Evidence, § 267; 15 M.J. Rape and Other Statutory Offenses, §§ 3, 4, 15, 19, 21, 23, 27; 16 M.J. Sodomy, § 4.

CASE NOTES

Age of complaining witness, "at least thirteen but less than fifteen," is aggravating factor which distinguishes the felonious act from a misdemeanor where force, threat or intimidation are involved. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988).

Aggravated sexual battery is different from attempted rape in that an intent to have sexual intercourse is not required; aggravated sexual battery is markedly similar to attempted rape where the victim is female and her genitalia is touched by the perpetrator's penis. Garland v. Commonwealth, 8 Va. App. 189, 379 S.E.2d 146 (1989).

Attempted aggravated sexual battery. - General Assembly passed a law, § 18.2-67 .5, stating the punishment for attempted sexual assault offenses, including attempted aggravated sexual battery, and passed § 18.2-67 , permitting the deposition of a "complaining witness" in cases of sexual assault and attempted sexual assault, and, if it had intended to exclude attempt crimes from § 18.2-67.3 , it would not have passed a law permitting a deposition of a "complaining witness" in attempted aggravated sexual battery and would not have passed a law stating the punishment for attempted aggravated sexual battery, so there was no evidence the General Assembly intended to abrogate common-law attempt when it passed § 18.2-67.3 , and the crime of attempted aggravated sexual battery existed in Virginia. Moody v. Commonwealth, No. 1395-02-2, 2003 Va. App. LEXIS 696 (Ct. of Appeals Dec. 30, 2003).

No requirement for corroboration for aggravated sexual battery. - The reasons that support the rule that a conviction for attempted rape may be supported solely upon the testimony of the victim without further corroboration are equally applicable to prosecutions for aggravated sexual battery and there is no requirement for corroboration under this section. Garland v. Commonwealth, 8 Va. App. 189, 379 S.E.2d 146 (1989).

Impact of reporting delay in parent/child context. - When the victim is a child and the accused her father or stepfather, the failure of a child to report incidents of sodomy or other sexual offenses immediately does not render victim's testimony inherently incredible as a matter of law. Hall v. Commonwealth, No. 0699-91-3 (Ct. of Appeals July 7, 1992).

In the absence of evidence in the record explaining the extraordinary 16-month delay between the alleged molestation and the child's statements about the alleged incident to her stepmother, the evidence failed to provide a foundation from which the trial judge could have found that the complaint met the statutory requirement in § 19.2-268.2 , relating to the recent complaint hearsay exception, that it was made "recently after commission of the offense." Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137 (1999).

Common-law battery compared with sexual battery. - From the language of the statutes the legislature intended some force other than merely that force required to accomplish the unlawful touching to be included within the statutorily defined criminal acts of either sexual battery or aggravated sexual battery. Where the complaining witness is at least 13 years old, unless some force is used to overcome the will of the complaining witness, the unlawful touching constitutes common-law assault and battery. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988).

Johnson v. Commonwealth , 5 Va. App. 529 (1988), was overruled as it was wrongly decided. The elements of the statute were clearly met as defendant touched the genitalia and buttocks of the victim to sexually arouse or gratify defendant, the touching was accomplished against the will of the complaining witness as the victim twice got up to try to get away from defendant, and the element of force was met as the victim testified that defendant woke up the victim and was holding the victim real close as defendant fondled the victim's genitals. Robinson v. Commonwealth, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Force. - Evidence that the defendant would lie on top of his daughter at night while touching her intimate parts established force and was more force than that required to accomplish the unlawful touching. Clark v. Commonwealth, 30 Va. App. 406, 517 S.E.2d 260 (1999).

Sections 18.2-67.10 and 18.2-67.3 were harmonious, neither negated the other, and both retained a substantive meaning consistent with established caselaw; there was no requirement to show force to prove charges under § 18.2-67.3 where the victim was eight years old. Martin v. Commonwealth,, 2005 Va. App. LEXIS 337 (Sept. 6, 2005), aff'd, 630 S.E.2d 291 (2006).

"Force" as used in § 18.2-67.10 included actual and constructive force, and constructive force included engaging in proscribed conduct with a victim who was under age of consent; the victim's age of eight years served as proof of both the force requirement and the age requirement, which was neither improper nor incongruous in defendant's prosecution for aggravated sexual battery. Martin v. Commonwealth, 272 Va. 31 , 630 S.E.2d 291, 2006 Va. LEXIS 64 (2006).

Sufficient evidence supported a conviction for aggravated sexual battery, in violation of § 18.2-67.3 , although there was no evidence of actual force, because constructive force existed where the victim was mentally incapacitated under subdivision 3 of § 18.2-67.10 and was incapable of legally consenting to the sexual touching. This section did not require the use of actual force to establish sexual abuse when the complaining witness was mentally incapacitated. Consent without understanding was no consent at all. Nicholson v. Commonwealth, 56 Va. App. 491, 694 S.E.2d 788, 2010 Va. App. LEXIS 276 (2010).

Intimidation. - In a prosecution of a father for sexual battery against his daughter, the victim's testimony may support a finding that the father exercised such domination and control of her as to overcome her mind and overbear her will so as to constitute intimidation. Clark v. Commonwealth, 30 Va. App. 406, 517 S.E.2d 260 (1999).

Intimidation may be caused by the imposition of psychological pressure on one who, under the circumstances is vulnerable and susceptible to such pressure, and factors such as the paternal bond between the defendant and the victim, the victim's age and the victim's relative isolation from others may be relevant circumstances showing that the victim's ability to resist her father was impeded and that she was vulnerable and susceptible to pressure from her father. Clark v. Commonwealth, 30 Va. App. 406, 517 S.E.2d 260 (1999).

Dangerous weapon. - Defendant's conviction for aggravated sexual battery was appropriate because the taser, which the trial court found that defendant used to incapacitate the victim during the course of defendant's assault on the victim, qualified as a dangerous weapon due to its classification as a stun weapon and its ability to inflict injury. Cabral v. Commonwealth, 69 Va. App. 67, 815 S.E.2d 805, 2018 Va. App. LEXIS 190 (2018).

Serious mental injury. - In order to prove the requisite element of "serious mental injury" to sustain a felony conviction for aggravated sexual battery, the record must reflect evidence proving a greater injury to the victim's mental health by way of the frequency, degree, duration or after effects than that which would attend any sexual battery. Any holding to the contrary would render a lesser offense of sexual battery a nullity. Gonzin v. Commonwealth, 59 Va. App. 1, 716 S.E.2d 466, 2011 Va. App. LEXIS 321 (2011).

Defendant was properly convicted of aggravated sexual battery because the Commonwealth's evidence was sufficient for a rational trier of fact to conclude that defendant caused serious mental injury to the victim; the victim testified that she had multiple "nightmares" and "flashbacks" and that she had panic attacks, and she attended weekly sexual assault counseling sessions. Borras v. Commonwealth, No. 2007-15-2, 2017 Va. App. LEXIS 138 (May 30, 2017).

Prosecution may be initiated by felony warrant of arrest. - This section, the provisions of Chapter 12.1 of Title 63.1 (see now Chapter 15 of Title 63.2), and §§ 16.1-259 and 16.1-260, were enacted to serve different functions in furtherance of a common goal, and when read together there are no words which specifically or inferentially prevent police authorities from initiating a prosecution for violation of this section by a felony warrant of arrest. Steele v. Commonwealth, No. 0166-90-1 (Ct. of Appeals, Oct. 8, 1991).

Sexual battery was lesser included offense of aggravated battery. - Where indictment was based on subdivision A 2 b [now see A 4 b], which required a showing that the defendant: (1) sexually abused the complaining witness; (2) against the will of the complaining witness; (3) by force, threat or intimidation or through the use of the complaining witness's mental incapacity or physical helplessness; and (4) the accused caused serious bodily or mental injury to the complaining witness, and where the misdemeanor of sexual battery consists of the first three of these elements, in this case, sexual battery was an offense which was composed entirely of elements that were also elements of the greater offense, and by listing these factors in the indictment, sexual battery was "substantially charged"; therefore, the indictment was broad enough to warrant a conviction of the lesser crime. Walker v. Commonwealth, 12 Va. App. 438, 404 S.E.2d 394 (1991).

Sexual battery not a lesser-included offense of forcible sodomy. - Because forcible sodomy required proof of penetration, while sexual battery only required proof of touching the clothing covering a victim's intimate parts, the trial court erred in finding that sexual battery under § 18.2-67.3 was a lesser-included offense of forcible sodomy under § 18.2-67.1 . Bowden v. Commonwealth, 52 Va. App. 673, 667 S.E.2d 27, 2008 Va. App. LEXIS 455 (2008).

No error in permitting amendment. - Amendment of the indictment, which occurred nearly three months before trial, did not change the nature or character of the offense with which defendant was charged. The amendment affected only the manner in which the aggravated sexual battery was committed - from defendant touching the child to forcing the child to touch him - and defendant remained charged with the same crime committed against the same victim during the same period of time. He had ample opportunity to prepare a defense to the amended charge. Thus, the trial judge did not err in permitting the amendment, and in denying defendant's motion to dismiss the indictment. Atorick v. Commonwealth, No. 2934-95-4 (Ct. of Appeals July 8, 1997).

Effect of guilty plea. - Defendant's motion to dismiss for want of jurisdiction on grounds the Commonwealth did not prove where the crimes took place was properly denied because (1) under § 19.2-244 , he waived his right to contest venue by not doing so before pleading guilty; and (2) as he pled guilty to aggravated sexual battery, he conceded that the trial court had jurisdiction. Bryant v. Commonwealth, No. 1462-12-4, 2013 Va. App. LEXIS 214 (Ct. of Appeals July 23, 2013).

When defendant pled guilty to aggravated sexual battery, he admitted the existence of all elements of the offense; therefore, the Commonwealth's failure to make a proffer of evidence of the ages of defendant and the victim at the time of the crimes was immaterial. Bryant v. Commonwealth, No. 1462-12-4, 2013 Va. App. LEXIS 214 (Ct. of Appeals July 23, 2013).

Evidence of child's prior sexual conduct properly excluded. - Trial court did not err in denying defendant's motion to present evidence of a six-year-old victim's prior sexual conduct because there was no evidence that defendant gave the notice required by § 18.2-67.7 , the rape shield statute, other than the prosecutor's statement that he had received a hand-written notice. Gleason v. Commonwealth,, 2010 Va. App. LEXIS 256 (June 29, 2010).

Exclusion of evidence of credibility witnesses reversible error. - Trial court committed reversible error when it excluded testimony of former neighbors that woman allegedly molested by accused had a bad reputation for truthfulness, where Commonwealth's case rested in large measure on the credibility of the accuser; where accused specifically stated in opening statement that he intended to produce witnesses to establish victim's bad reputation for truth; and where in closing argument attorney for the Commonwealth stated over accused's objection that the defense had failed to prove that the victim had a bad reputation for truth. Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), overruled in part by Kenner v. Commonwealth, 2021 Va. LEXIS 6 854 S.E.2d 493 (Va. 2021).

Circuit court erred by sustaining the Commonwealth of Virginia's objection to defendant's question that sought admissible character evidence, as defendant was not limited solely to reputation evidence regarding truthfulness, but was entitled to offer evidence to prove good character for any trait relevant in the case, and the error was not harmless. Gardner v. Commonwealth, 288 Va. 44 , 758 S.E.2d 540, 2014 Va. LEXIS 98 (2014).

Pornographic pictures, sexually explicit story from computer inadmissible where intent not in genuine dispute. - Trial court improperly admitted pornographic pictures and sexually explicit story from defendant's computer as probative of defendant's lascivious intent because neither the Commonwealth's evidence nor that developed by the appellant put the issue of intent in genuine dispute, and therefore the probative value of the evidence was outweighed by its prejudicial effect. Blaylock v. Commonwealth, 26 Va. App. 579, 496 S.E.2d 97 (1998), overruled in part by Kenner v. Commonwealth, 2021 Va. LEXIS 6 854 S.E.2d 493 (Va. 2021).

Membership in association. - Defendant's membership in the North American Man-Boy Love Association and pornographic materials in his possession at the time of his arrest were admissible in order to prove that the defendant engaged in acts with the intent to sexually molest, arouse, or gratify any person when he massaged the victim's buttocks. Smith v. Commonwealth, No. 1546-97-4 (Ct. of Appeals Dec. 1, 1998).

Exclusion of evidence of prior false allegations of sexual assault, which consisted only of a denial by the prior accused of said allegations was proper, where such were uncertain, self-serving, and lacked a reasonable probability of falsity. Richardson v. Commonwealth, 42 Va. App. 236, 590 S.E.2d 618, 2004 Va. App. LEXIS 8 (2004).

Possession of pornography admissible. - Where defendant was charged with committing aggravated sexual battery, his statement that he owned pornographic videos was relevant as it heightened the likelihood that the six-year-old victim told the truth when she testified that she had watched such videos with him; the trial court properly found that the probative value of the statement outweighed its potential prejudicial effect. Croxton v. Commonwealth,, 2005 Va. App. LEXIS 166 (Apr. 26, 2005).

Admission of evidence. - Evidence obtained illegally by a hacker from defendant's computer was admissible against defendant, who was charged with sodomy, object sexual penetration, and aggravated sexual battery; the government did not know of and acquiesce in the hacker's search in a manner sufficient to transform the hacker into a government agent. Jarrett v. Commonwealth, 42 Va. App. 702, 594 S.E.2d 295, 2004 Va. App. LEXIS 127 (2004).

In a prosecution for taking indecent liberties with a minor and aggravated sexual battery, the trial court's admission of the victim's hearsay statements that she was afraid of being raped by defendant and prayed that God would take her pain away, if error, was harmless under § 8.01-678 , as the appellate court was able to conclude that the effect, if any, of these statements on the jury was only slight. Barker v. Commonwealth, No. 1802-12-3, 2013 Va. App. LEXIS 163 (Ct. of Appeals May 28, 2013).

Trial court did not abuse its discretion in defendant's trial for aggravated sexual battery by admitting evidence prepared by Virginia Department of Forensic Science personnel, including certificates of analysis for DNA tests, blood stain cards, and fabric swatch. Although there were gaps in the chain of custody as to the blood stain cards and swatch of underwear fabric, defendant cited no evidence suggesting that the evidence was contaminated or tampered with when it was in police custody so that any doubt went to the weight of the evidence. Kumar v. Commonwealth, No. 1636-15-4, 2017 Va. App. LEXIS 232 (Sept. 5, 2017).

Trial court did not err by admitting evidence of child pornography found on defendant's computer because it was relevant to show defendant's conduct or attitude toward the victim, as she alleged defendant showed pornographic movies involving naked adults on the same computer while he assaulted her, to prove motive or method of committing the sexual assaults, as evidence of defendant's specific intent to engage in sex with a minor, and to corroborate the victim's allegations. Kenner v. Commonwealth, 71 Va. App. 279, 835 S.E.2d 107, 2019 Va. App. LEXIS 282 (2019), aff'd, 299 Va. 414 , 854 S.E.2d 493 (Va. 2021).

Commonwealth of Virginia's evidence of the titles of the child pornography downloads found on defendant's desktop computer was properly admitted at trial because the evidence was relevant to show defendant's attitude and conduct towards the minor victim, to prove motive or method of committing the sexual assault, and to prove the elements of the offense of custodial sexual abuse. Furthermore, the legitimate probative value of the evidence received by the trial court outweighed its incidental prejudice to defendant. Kenner v. Commonwealth, 299 Va. 414 , 854 S.E.2d 493, 2021 Va. LEXIS 6 (2021).

Motion to suppress defendant's statement properly denied. - Because defendant's statement was given in a non-custodial setting, Miranda warnings were administered to him out of an abundance of caution, and law enforcement did not apply any coercive tactics or take advantage of defendant's disability in order to obtain a statement, said statement was properly admitted. Smith v. Commonwealth,, 2008 Va. App. LEXIS 27 (Jan. 15, 2008).

Sufficient evidence of intent. - Trial court could reasonably conclude that defendant intended to sexually molest the victim by reaching his hand into the victim's underwear and rubbing his groin area for five to six seconds; hence, the evidence was sufficient on this issue. Hirst v. Commonwealth,, 2005 Va. App. LEXIS 175 (May 3, 2005).

Evidence was clearly sufficient to support appellant's conviction for aggravated sexual battery where victim testified that appellant removed her underpants and all of his own clothing, and she demonstrated with the anatomically correct dolls what transpired next, and after observing her demonstration, the prosecutor stated, "Let the record show that she's placing the hand of the doll on the private area, in the groin area, of the female doll, and furthermore, the fact that appellant removed all of his clothing before the touching took place and that the touching was of sufficient intensity and duration to hurt the prosecutrix and make her vagina including her lips and her behind red provided sufficient circumstantial evidence to support the conclusion that he acted with the requisite intent to molest or gratify either himself or the victim, or both." Hargrove v. Commonwealth, No. 2421-92-2, 1994 Va. App. LEXIS 176 (Ct. of Appeals Mar. 29, 1994).

Sufficiency of evidence. - Where the only evidence was the uncorroborated testimony of the victim, there was substantial evidence in the record of the victim's poor reputation for truthfulness, and the victim failed to promptly report the incident to anyone, there was reasonable doubt as a matter of law as to the guilt of the defendant. Dailey v. Commonwealth, No. 0940-85 (Ct. of Appeals Sept. 11, 1987).

Because the victims in the instant case were over thirteen years of age, the Commonwealth had to prove that the act of aggravated sexual battery was accomplished "by force, threat or intimidation" to support the convictions; the record had to disclose that the acts of which defendant stood accused were "accomplished against the will of the complaining witness by force," which it did not. Winter v. Commonwealth, No. 0172-96-1 (Ct. of Appeals Mar. 11, 1997).

Defendant touched an "intimate part or material directly covering an intimate part", as addressed in § 18.2-67.10 6 b, where record indicated that he placed his hand at a point where victim's shirt had breast pockets. Sanderson v. Commonwealth, No. 1555-98-1 (Ct. of Appeals Jan. 11, 2000).

The evidence was sufficient to establish that the defendant touched the child victim in one of the areas specified in this section where the child testified that the defendant touched her "privates" and defined "privates" as "the area between her legs." Goode v. Commonwealth, No. 1125-00-2, 2001 Va. App. LEXIS 234 (Ct. of Appeals May 8, 2001).

The evidence was clearly sufficient to support a finding that a defendant intended to "sexually molest, arouse, or gratify" in violation of this section, where it showed that the defendant touched the intimate parts of the child victim's body with his hand and "underneath" her leg with his tongue as she and others slept in a darkened room. Goode v. Commonwealth, No. 1125-00-2, 2001 Va. App. LEXIS 234 (Ct. of Appeals May 8, 2001).

Evidence held sufficient to convict defendant of aggravated sexual battery of 9 and 12 year old sisters either during a karate class or in related circumstances. Creed v. Commonwealth, No. 0593-01-2, 2002 Va. App. LEXIS 352 (Ct. of Appeals June 18, 2002).

Although the trial court properly admitted an out-of-court statement which defendant's stepdaughter gave to a detective as a recent complaint of criminal sexual assault, pursuant to § 19.2-268.2 , the court erred by using the stepdaughter's statement to convict defendant of forcible sodomy because testimony that the stepdaughter gave at defendant's trial did not corroborate her out-of-court statement and there was no other evidence that established the elements of the offense. However, the stepdaughter's testimony and defendant's admission that he rubbed his stepdaughter's genitalia were sufficient to prove that he committed animate object sexual penetration and aggravated sexual battery, and the appellate court affirmed the trial court's judgment convicting defendant of those crimes. Fincham v. Commonwealth, No. 3361-02-2, 2004 Va. App. LEXIS 259 (Ct. of Appeals June 8, 2004).

Where the evidence showed that defendant made sexual contact with two boys under the age of 13, there was sufficient evidence to support convictions under §§ 18.2-67.1 and 18.2-67.3 , despite the fact that the exact date of the incidents was not established. Harland v. Commonwealth, No. 0842-03-4, 2004 Va. App. LEXIS 445 (Ct. of Appeals Sept. 14, 2004).

Convictions for aggravated sexual battery were upheld despite alleged inconsistencies in the girls' testimony at trial, at the preliminary hearing, and their earlier accounts to the principal and the police because the jury could have concluded that because of the girls' age, their immaturity, and their susceptibility to leading questions, the inconsistencies did not undermine their credibility. Defendant admitted he had been drinking, that he told the girls to come into his bedroom, that he was watching television, and that they were all on the bed; defendant also accepted one girl's testimony that the girls manipulated his hand so as to fondle two others. Hawkins v. Commonwealth, No. 0932-04-1, 2005 Va. App. LEXIS 106 (Ct. of Appeals Mar. 15, 2005).

Uncorroborated testimony supported defendant's conviction for aggravated sexual battery despite the victim's delay in reporting the assault because the delay, which was due to the victim's fear of her father, defendant, and her shame and embarrassment, was consistent with human experience and did not render her testimony inherently incredible. Wilson v. Commonwealth, 46 Va. App. 73, 615 S.E.2d 500, 2005 Va. App. LEXIS 268 (2005).

Because defendant offered no affirmative evidence of innocence to show that a criminal offense did not occur, no basis supported his miscarriage of justice argument to support reversal of his aggravated sexual battery conviction. Messina v. Commonwealth,, 2006 Va. App. LEXIS 490 (Oct. 31, 2006).

Because a child victim testified that defendant put his "thingy" "up in" "where she peed out of," which was located at her "bottom," and "started to hump her," the evidence was sufficient to convict defendant of aggravated sexual battery, animate object sexual penetration, and statutory rape under §§ 18.2-67.3 , 18.2-67.2 , and 18.2-61 . Tinsley v. Commonwealth,, 2007 Va. App. LEXIS 207 (May 15, 2007).

Given that the fact finder acted within its province to accept the Commonwealth's evidence and reject defendant's version of the facts, the absence of a suppression hearing record, no double jeopardy violation, and no error in denying a motion to strike, defendant's aggravated sexual battery and sexual penetration convictions were upheld on appeal. Jones v. Commonwealth,, 2008 Va. App. LEXIS 252 (May 27, 2008).

Evidence was sufficient to support defendant's convictions involving the second victim for taking indecent liberties with a child under 14 years old pursuant to § 18.2-370 , forcible sodomy in violation of § 18.2-67.1 , and aggravated sexual battery of a child less than 13 years old pursuant to § 18.2-67.3 . Although the second victim could not pinpoint her exact age at the time of the incidents giving rise to the convictions, the trial court as the fact finder could determine that she was under the age of 13, as the second based her age on the relative dates of momentous events in her life, which gave the trial court a basis for determining she was less than 13 years old at the relevant times. Wood v. Commonwealth,, 2008 Va. App. LEXIS 451 (Oct. 7, 2008).

Evidence was sufficient to support defendant's convictions regarding taking indecent liberties with a child under 14 years old in violation of § 18.2-370 , forcible sodomy in violation of § 18.2-67.1 , and aggravated sexual battery of a child less than 13 years old pursuant to § 18.2-67.3 , all regarding the first victim. The trial court, as the fact finder because a bench trial was involved, could determine that the events that the first victim described had occurred while still rejecting the first victim's timeline of the events all happening while she was in the fourth grade, which conflicted with the dates set forth in the indictment. Wood v. Commonwealth,, 2008 Va. App. LEXIS 451 (Oct. 7, 2008).

Evidence, including a child's observation of defendant's actions before, during, and after the incident, her giving a description of defendant containing specific details, and her showing no hesitancy in identifying defendant less than 24 hours after the crime, was sufficient to convict defendant of aggravated sexual battery in violation of § 18.2-67.3 . Weisel v. Commonwealth,, 2009 Va. App. LEXIS 377 (Aug. 25, 2009).

Defendant's conviction of aggravated sexual battery in violation of § 18.2-67.3 was affirmed because evidence, which included victim's testimony regarding numerous touchings, and nothing in the record indicated that her testimony was inherently incredible or so contrary to human experience as to render it unworthy of belief despite defendant's attempts to impeach the victim. Martin v. Commonwealth,, 2009 Va. App. LEXIS 376 (Aug. 25, 2009).

Defendant's convictions for object sexual penetration in violation of § 18.2-67.2 and aggravated sexual battery in violation of § 18.2-67.3 were upheld on appeal despite the 11-year-old victim's inconsistent testimony and statements to an investigator. The trial court was free to believe the victim rather than defendant. Rose v. Commonwealth,, 2009 Va. App. LEXIS 385 (Sept. 1, 2009).

In a case in which defendant appealed his conviction for aggravated sexual battery, in violation of § 18.2-67.3 , he argued unsuccessfully that the evidence was insufficient to support his conviction because the victim's testimony was inherently unbelievable. The victim's testimony was not inherently incredible, or so contrary to human experience as to render it unworthy of belief; while the record indicated discrepancies in the victim's accounts of what occurred and when, his prior inconsistent testimony was a factor in determining his credibility, but it did not automatically render the victim's testimony incredible. Levesque v. Commonwealth,, 2009 Va. App. LEXIS 512 (Nov. 17, 2009).

Evidence as a whole, viewed in the light most favorable to the Commonwealth, was sufficient to support convictions for forcible sodomy, in violation of § 18.2-67.1 , and attempted aggravated sexual battery, in violation of §§ 18.2-67.3 and 18.2-67.5 , where the evidence included extensive corroboration of the victim's testimony and none of the arguments raised by defendant rendered the victim's testimony inherently incredible as a matter of law. Moran v. Commonwealth,, 2010 Va. App. LEXIS 198 (May 11, 2010).

Defendants' convictions for aggravated sexual battery were inappropriate pursuant to subsection A of § 18.2-67.3 because the evidence failed to establish that they committed the elevated felony offense of aggravated sexual battery. The Commonwealth failed to prove serious physical or mental injury to the victim. Gonzin v. Commonwealth, 59 Va. App. 1, 716 S.E.2d 466, 2011 Va. App. LEXIS 321 (2011).

Sufficient evidence supported defendant's conviction for attempted aggravated sexual battery in violation of §§ 18.2-67.3 , 18.2-67.5 , and 18.2-67.10 , because the trial court accepted the testimony of the child victim that defendant touched the clothing covering her breasts and private parts as she exited the school bus. In addition, the trial court viewed a video recording and found it disclosed that something happened on the bus. Gallier v. Commonwealth,, 2012 Va. App. LEXIS 60 (Mar. 6, 2012).

Narrative of the victim, who was deaf and mute, was sufficient to support a finding that defendant violated § 18.2-67.3 , aggravated sexual battery, when he touched her genitalia in various fashions with the intent to sexually gratify himself. Bynum v. Commonwealth, No. 0854-12-1, 2013 Va. App. LEXIS 170 (Ct. of Appeals June 4, 2013).

Evidence was not sufficient to support defendant's conviction for aggravated sexual battery because testimony from defendant's daughter did not slightly corroborate the corpus delicti of the offense, which involved defendant's extrajudicial confession to inappropriate sexual behavior with his grandson. Allen v. Commonwealth, 287 Va. 68 , 752 S.E.2d 856, 2014 Va. LEXIS 9 (2014).

Defendant's messages to a friend indicating the victim was not interested in having sexual intercourse with him, thoughts that plying the victim with alcohol would help ensure she would have intercourse with him, defendant's repeated reference to the fact that the victim was passed out, and a message from defendant's friend indicating that defendant and the victim were having sex supported convictions for rape and aggravated sexual battery. Taylor v. Commonwealth, No. 1031-14-4, 2016 Va. App. LEXIS 239 (Ct. of Appeals Sept. 13, 2016).

Evidence was sufficient to convict defendant of abduction with intent to defile and aggravated sexual battery, as the inconsistencies and contradictions in the victim's testimony did not render that testimony inherently incredible. Salmeron v. Commonwealth,, 2017 Va. App. LEXIS 213 (Aug. 22, 2017).

Evidence was sufficient to convict defendant of three counts of aggravated sexual battery against a minor under 13 years of age because the victim testified that defendant put his fingers into her privates on three different occasions when she was between 10 and 12 years old; her statement to police was inconsistent with her testimony only with regards to the frequency of the abuse; she detailed the three instances that resulted in the convictions; she did not equivocate about defendant's specific actions; her account alone was sufficient to prove the offenses; and the trial court, as the trier of fact, found the victim credible and accepted her account of the crimes. Vigil v. Commonwealth, No. 0805-16-1, 2017 Va. App. LEXIS 240 (Sept. 26, 2017).

Evidence was clearly sufficient to support defendant's conviction for sexual battery of a child, as defendant admitted to touching the victim's vaginal area twice to members of his family, investigating officers, and during his trial testimony, and even though defendant attempted to characterize the events as an "accident" the jury was not required to believe defendant's testimony. McCoy v. Commonwealth, No. 0710-17-3, 2018 Va. App. LEXIS 182 (July 10, 2018).

Because the evidence - a forensic nurse examiner's testimony about the pain of the minor victim with urination and during an examination; defendant's admissions to defendant's spouse of touching the child, and defendant's conduct toward defendant's spouse and a police detective - was consistent with a reasonable inference that defendant committed the crime to which defendant confessed, the trial court did not err in finding sufficient corroboration of defendant's extrajudicial confession to prove the corpus delicti of aggravated sexual battery. Martin Garcia Davila v. Commonwealth, No. 2013-17-4, 2019 Va. App. LEXIS 6 (Jan. 8, 2019).

Trial court properly convicted defendant of aggravated sexual battery of his stepdaughter because the stepdaughter's testimony proved that defendant was awake during the touching, defendant's intent to sexually abuse the stepdaughter appeared not only on the date of the touching, but also was manifested in a course of conduct indicating he had a sexual attraction to the stepdaughter where he had made numerous sexual comments about her breasts, it could be reasonably inferred that he had taken nude photos of the stepdaughter while she was asleep, and he sent her a text message that he missed seeing her nude. Bush v. Commonwealth, No. 0409-18-1, 2019 Va. App. LEXIS 91 (Apr. 16, 2019).

Trial court correctly concluded that the evidence presented by the Commonwealth, if believed by the jury, was sufficient to support separate convictions for abduction with the intent to defile and the aggravated sexual battery offenses. The trial court correctly held that the abduction was not inherent in the other crimes and it could proceed to the jury as a separately charged offense. Lydon v. Commonwealth, No. 1436-18-4, 2020 Va. App. LEXIS 212 (July 21, 2020).

Chain of custody defense waived. - Defense waived the argument that a gap in the chain of custody for evidence existed because defense counsel never argued to the trial court that the Commonwealth of Virginia failed to establish a proper chain of custody for the evidence. Moreover, defendant did not ask that the appellate court consider the argument under the good cause or ends of justice exceptions, and the appellate court declined to do so sua sponte. Kumar v. Commonwealth, No. 1636-15-4, 2017 Va. App. LEXIS 232 (Sept. 5, 2017).

Public policy exception to employment-at-will doctrine. - Employee who alleged that he was forced to quit his job as a result of retaliatory conduct that supervisors directed at the employee after the employee refused to engage in sexual harassment at work sufficiently stated a claim for wrongful constructive discharge in violation of public policy because the employee was a member of the class of persons that the statutes forbidding fornication, sexual battery, aggravated sexual battery, and prostitution were designed to protect. Hill v. Paramont Mfg., LLC,, 2006 U.S. Dist. LEXIS 78488 (W.D. Va. Oct. 18, 2006).

Statement of child to expert was hearsay. - Where trial court permitted expert to testify that the child had told him that he had been "sexed," and where the child's statement to the psychologist went "beyond a recital of 'past pain, suffering and subjective symptoms,' " statement was hearsay, it was not subject to hearsay exception, and the trial court erred in admitting it before the jury. Jenkins v. Commonwealth, 254 Va. 333 , 492 S.E.2d 131 (1997).

No double jeopardy violation. - Conviction for committing three acts of aggravated sexual battery did not violate § 19.2-294 or the double jeopardy clause of the Fifth Amendment, as defendant was convicted in a simultaneous prosecution for multiple violations of a single statute and § 19.2-294 only barred successive convictions under two or more statutes, and the trial court's segregation of offenses properly recognized the separate acts of touching separate intimate parts. De'Armond v. Commonwealth, 51 Va. App. 26, 654 S.E.2d 317, 2007 Va. App. LEXIS 460 (2007).

Because the Commonwealth's evidence proved that defendant performed two separate acts on the victim while she was intoxicated to the point of unconsciousness the Double Jeopardy Clause was not implicated or violated. Jones v. Commonwealth,, 2008 Va. App. LEXIS 252 (May 27, 2008).

Jury instructions. - In defendant's prosecution for forcible sodomy and aggravated sexual battery, jury instructions combining alternative theories of force, mental incapacity, or physical helplessness as the means of committing the crimes against the victim's will did not err because (1) the alternative means were not elements on which the jury had to unanimously agree, as a sexual offense was a crime against the victim's will, however accomplished, (2) the evidence supported a finding that the crimes were committed by each means stated, and (3) the jury convicted defendant of the same crimes, all meeting the requirement of unanimity. Davison v. Commonwealth, 69 Va. App. 321, 819 S.E.2d 440, 2018 Va. App. LEXIS 282 (2018).

Instruction on sexual battery as lesser included offense properly denied. - The trial court properly denied the instruction on sexual battery since the difference between aggravated sexual battery and sexual battery is the age of the victim and since the evidence would not support a finding that victim was not between 13 and 15 years of age, it being uncontradicted that she was 14, a sexual battery instruction would have been inappropriate in the case. Kauffman v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989).

Instruction on contributing to the delinquency of minor as lesser included offense properly denied. - Trial court properly denied the instruction on contributing to the delinquency of a minor because it was not a lesser included offense of aggravated sexual battery since the offense of aggravated sexual battery does not require proof that the defendant was 18 years of age or older and thus, all of the elements of § 18.2-371 are not included within the offense of this section. Kauffman v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989).

Where the father, during the period of time in which it is alleged he was sexually abusing his child, showed movies to the child which taught one of the very acts which he required the child to perform on him, thereby indicating to the child that the behavior was acceptable, made this evidence relevant and material. Stevens v. Commonwealth, No. 1056-88-3 (Ct. of Appeals, Feb. 27, 1990).

Aggravated sexual assault was predicate offense for minimum sentence for child pornography under federal law. - Even if the federal statutory definition of "sexual abuse" was not congruent with the Virginia statutory definition of that term, the district court properly considered prior convictions for aggravated sexual assault, in violation of § 18.2-67.3 , as predicate offenses for purposes of imposing 18 U.S.C.S. § 2252A(b)(1)'s 15-year minimum sentence against defendant for knowingly receiving child pornography because § 2252A(b)(1) clearly permits the broad inquiry into whether a prior offense "relates to" sexual abuse of a minor and was not tied to federal law definitions. United States v. Mills,, 2007 U.S. App. LEXIS 8780 (4th Cir. Apr. 17, 2007).

Conditions of probation. - In a case in which defendant pleaded guilty to aggravated sexual battery of a child under the age of 13, the circuit court erred in ordering that, as a condition of probation, defendant could have no use of any device that could access the internet unless approved by his probation officer because there was no evidence that computers or the internet played any role in defendant's offense; the circuit court articulated no justification for how imposing that restriction on defendant's fundamental right to free speech would serve any rehabilitative or public safety purpose; and that restriction burdened substantially more speech than was necessary to further the government's legitimate interests and was not narrowly tailored. Fazili v. Commonwealth, 71 Va. App. 239, 835 S.E.2d 87, 2019 Va. App. LEXIS 281 (2019).

Restriction on where sex offender could reside. - When defendant pled guilty to aggravated sexual battery, the trial court did not err in prohibiting him, as a condition of probation, from residing in a set geographical area around the minor victim's house, which included the home of defendant's parents; as the condition was aimed at protecting the victim, it was not unreasonable. Bryant v. Commonwealth, No. 1462-12-4, 2013 Va. App. LEXIS 214 (Ct. of Appeals July 23, 2013).

Actual innocence not proven. - In his recantation, the minor victim stated that the prisoner never forced him to engage in any sexual act; thus, the prisoner claimed that he was actually innocent of the nolle prossed charges brought against him pursuant to §§ 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , and 18.2-370 . However, the victim's statement did not demonstrate that the prisoner was actually innocent, since none of the nolle prossed charges required proof of force, threats, or intimidation where the victim was under the age of 13, or 15, or for the indecent liberties charges; thus, even if the victim, who was 11 at the time of the abuse, consented to engage in the alleged sexual acts, the conduct was still unlawful. DiCaprio-Cuozzo v. Johnson,, 2010 U.S. Dist. LEXIS 108702 (E.D. Va. Oct. 12, 2010).

Applied in Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986); Seibert v. Commonwealth, 22 Va. App. 40, 467 S.E.2d 838 (1996); Jenkins v. Commonwealth, 22 Va. App. 508, 471 S.E.2d 785 (1996); M. G. v. Albemarle County Dep't of Soc. Servs., 41 Va. App. 170, 583 S.E.2d 761, 2003 Va. App. LEXIS 406 (2003).

§ 18.2-67.4. Sexual battery.

  1. An accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10 , (i) the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse, (ii) within a two-year period, more than one complaining witness or one complaining witness on more than one occasion intentionally and without the consent of the complaining witness, (iii) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail, and the accused is an employee or contractual employee of, or a volunteer with, the state or local correctional facility or regional jail; is in a position of authority over the inmate; and knows that the inmate is under the jurisdiction of the state or local correctional facility or regional jail, or (iv) a probationer, parolee, or a pretrial defendant or posttrial offender under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services or agency and the accused is an employee or contractual employee of, or a volunteer with, the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail; is in a position of authority over an offender; and knows that the offender is under the jurisdiction of the Department of Corrections, a local community-based probation services agency, a pretrial services agency or a local or regional jail.
  2. Sexual battery is a Class 1 misdemeanor.

    (1981, c. 397; 1997, c. 643; 1999, c. 294; 2000, cc. 832, 1040; 2006, c. 284; 2007, c. 133; 2014, c. 656.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to unenforceability of employee nondisclosure or confidentiality agreement regarding sexual assault, see § 40.1-28.01 .

Editor's note. - Acts 2000, c. 1040, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 1997 amendment substituted "threat, intimidation or ruse, or" for "threat or intimidation, or" in subsection A.

The 1999 amendment inserted "(i)" preceding "the complaining witness" and added clauses (ii) and (iii).

The 2000 amendments. - The 2000 amendment by c. 832 inserted "as defined in § 18.2-67.10 " near the beginning of subsection A.

The 2000 amendment by c. 1040, substituted "local community-based probation program" for "local community corrections program" and inserted "services" following "pretrial" throughout subsection A.

The 2006 amendments. - The 2006 amendment by c. 284, in subsection A, substituted "is" for "shall be" following "An accused," deleted "or she" following "he," and deleted "or through the use of the complaining witness's mental incapacity or physical helplessness, or" at the end of clause (i).

The 2007 amendments. - The 2007 amendment by c. 133, in subsection A, inserted "defendant" following "pretrial," and substituted "community-based probation services agency, a pretrial services agency" for "community-based probation program, a pretrial services program" in three places and "pretrial services or agency" for "pretrial services program."

The 2014 amendments. - The 2014 amendment by c. 656 in subsection A, added clause (ii) and renumbered (ii) and (iii) as (iii) and (iv).

Law review. - For note, "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Dissent," see 72 Va. L. Rev. 619 (1986).

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape and Other Statutory Offenses, §§ 3, 23.

CASE NOTES

Factor that elevates criminal act to felony is age of victim. - The use of identical language in these statutes defining sexual battery and aggravated sexual battery with reference to force, threat or intimidation makes it clear that the legislature did not intend for these factors to be the distinction between the two statutes. Rather, the factors that elevate the criminal act from the misdemeanor to the felony are the specific age of the victim, serious bodily or mental injury, or the use or threat of use of a dangerous weapon. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988).

Johnson v. Commonwealth , 5 Va. App. 529 (1988), was overruled as it was wrongly decided. The elements of the statute were clearly met as defendant touched the genitalia and buttocks of the victim to sexually arouse or gratify defendant, the touching was accomplished against the will of the complaining witness as the victim twice got up to try to get away from defendant, and the element of force was met as the victim testified that defendant woke up the victim and was holding the victim real close as defendant fondled the victim's genitals. Robinson v. Commonwealth, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Common-law battery compared with sexual battery. - The legislature imposed a greater burden on the Commonwealth to prove sexual battery than to prove common-law battery, the latter requiring only a showing of nonconsensual touching. To prove the crime of sexual battery, the Commonwealth has to establish beyond a reasonable doubt that the accused touched the intimate parts of the complaining witness, or that the complaining witness was forced to touch the intimate parts of the accused, with the intent to sexually molest, arouse or gratify any person. The acts must have been against the will of the complaining witness. Doss v. Commonwealth, No. 0019-85 (Ct. of Appeals July 30, 1986).

Sexual battery was lesser included offense of aggravated battery. - Where indictment was based on § 18.2-67.3 A 2 b [now see A 3 b], which required a showing that the defendant: (1) sexually abused the complaining witness; (2) against the will of the complaining witness; (3) by force, threat or intimidation or through the use of the complaining witness's mental incapacity or physical helplessness; and (4) the accused caused serious bodily or mental injury to the complaining witness, and where the misdemeanor of sexual battery consists of the first three of these elements, in this case, sexual battery was an offense which was composed entirely of elements that were also elements of the greater offense, and by listing these factors in the indictment, sexual battery was "substantially charged"; therefore, the indictment was broad enough to warrant a conviction of the lesser crime. Walker v. Commonwealth, 12 Va. App. 438, 404 S.E.2d 394 (1991).

Assault and battery was lesser included offense in sexual battery. - Trial court did not err in convicting defendant of lesser-included offense of assault and battery after granting motion to strike charge of sexual battery; each element of an assault and battery is encompassed within the elements of sexual battery: both offenses require a touching and the more specific and aggravated state of mind necessary to commit sexual abuse encompasses the less culpable mental state found in assault and battery. Gnadt v. Commonwealth, 27 Va. App. 148, 497 S.E.2d 887 (1998).

Role as teacher not sufficient to constitute intimidation. - Defendant's role as a teacher supervising the victim who was his student was not sufficient, standing alone, to constitute intimidation used to sexually abuse her. Clark v. Commonwealth, 12 Va. App. 1163, 408 S.E.2d 564 (1991).

Instruction on sexual battery as lesser included offense properly denied. - The trial court properly denied the instruction on sexual battery since the difference between aggravated sexual battery and sexual battery is the age of the victim and since the evidence would not support a finding that victim was not between 13 and 15 years of age, it being uncontradicted that she was 14, a sexual battery instruction would have been inappropriate in the case. Kauffman v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989).

Double jeopardy. - Sexual battery and attempted rape were separate and distinct offenses under facts in case at bar, and thus defendant could not have been twice convicted for the same offense in violation of double jeopardy. Haynes v. Commonwealth, No. 1778-98-3 (Ct. of Appeals Oct. 5, 1999).

Instruction on consent as defense was not required as there was no more than a scintilla of evidence of consent, since: (1) although there was evidence that another person entered the office in which the alleged crime occurred and that the complainant failed to seek help at that time, the defendant was fully clothed and the complainant was seated at a desk at that time and, therefore, such evidence supported the argument that a crime did not occur, but did not support the defense of consent; and (2) although there was evidence that the complainant, after leaving the defendant's office, bought cigarettes and gas and laughed at a joke, the defendant made no attempt to connect this evidence with the defense of consent. Ogungbade v. Commonwealth, No. 0991-97-2 (Ct. of Appeals May 26, 1998).

Jury instruction on defendant fleeing was improper. - Circuit court erred by instructing a jury on defendant's purported flight from an alleged victim's apartment because the record was devoid of more than a scintilla of evidence that defendant left the apartment because defendant sought to avoid detection, apprehension, arrest, or criminal prosecution. Turman v. Commonwealth, 276 Va. 558 , 667 S.E.2d 767, 2008 Va. LEXIS 123 (2008).

Sufficiency of evidence. - Uncorroborated testimony supported defendant's conviction for sexual battery despite the victim's delay in reporting the assault because the delay, which was due to the victim's fear of her father, defendant, and her shame and embarrassment, was consistent with human experience and did not render her testimony inherently incredible. Wilson v. Commonwealth, 46 Va. App. 73, 615 S.E.2d 500, 2005 Va. App. LEXIS 268 (2005).

In a bench trial, evidence was sufficient to support a sexual battery conviction where the victim, whom the trial court found to be credible, testified that defendant exposed himself, tried to force her to touch his penis, and tried to reach between her legs, touch her breasts, and kiss her neck while she struggled. Patrick v. Commonwealth,, 2006 Va. App. LEXIS 457 (Oct. 17, 2006).

Sufficient evidence supported the jury's finding that within a two-year period defendant sexually abused more than one complaining witness intentionally and without the consent of the complaining witness because he did not challenge the elements of sexual battery regarding two victims. Rosana v. Commonwealth, No. 1656-17-4, 2018 Va. App. LEXIS 295 (Oct. 30, 2018).

Commonwealth established sufficient evidence of intent to prove sexual battery because the victims testified that defendant, a licensed optometrist, touched their intimate parts during eye exams; the jury reasonably could conclude from the evidence that because contact with a patient's or doctor's intimate areas was unwarranted during an eye exam, defendant touched one victim and caused the other victim to touch him for his own sexual gratification. Rosana v. Commonwealth, No. 1656-17-4, 2018 Va. App. LEXIS 295 (Oct. 30, 2018).

Evidence supported defendant's conviction for sexual battery because not only did defendant touch or grab the victim's breasts but defendant also twisted as hard as defendant could - and held on to the victim in that manner for about a minute, according to the victim's sibling, who was standing stunned next to the victim. Furthermore, it was undisputed on appeal that the battery occurred against the will of the victim - and that the touching satisfied the statutory requirement of sexual abuse. Robinson v. Commonwealth, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Evidence was insufficient. - G.W. had her back to appellant and was unaware that he was behind her. Appellant employed no force beyond that necessary to squeeze G.W.'s buttocks. While the unlawful touching was patently nonconsensual, it was accomplished by surprise, not by force. Despite appellant's harassing and reprehensible conduct, the evidence in this case was insufficient to sustain a conviction under this section. Wilson v. Commonwealth, No. 2636-96-2 (Ct. of Appeals Nov. 4, 1997).

Circuit court erred in convicting defendant of sexual battery by force because, while it was undisputed that defendant sexually abused the victim as that term was statutorily defined, the evidence failed to establish that the alleged touching was accomplished by the use of force sufficient to overcome the victim's will where the restraint employed by defendant was inherent in the act itself, and any durational evidence served only to demonstrate the non-consensual touching occurred. Robinson v. Commonwealth, No. 1679-17-2, 2019 Va. App. LEXIS 11 (Jan. 15, 2019), different results reached on reh'g, en banc, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Trial court erred in convicting defendant of sexual battery of his niece because, while the evidence was sufficient to prove defendant committed an assault and battery on the niece by touching her "private area" and chest, by the niece's own testimony, the sexual battery was not accomplished by force, threats, intimidation, or ruse. Bush v. Commonwealth, No. 0409-18-1, 2019 Va. App. LEXIS 91 (Apr. 16, 2019).

Public policy exception to employment-at-will doctrine. - Employee who alleged that he was forced to quit his job as a result of retaliatory conduct that supervisors directed at the employee after the employee refused to engage in sexual harassment at work sufficiently stated a claim for wrongful constructive discharge in violation of public policy because the employee was a member of the class of persons that the statutes forbidding fornication, sexual battery, aggravated sexual battery, and prostitution were designed to protect. Hill v. Paramont Mfg., LLC,, 2006 U.S. Dist. LEXIS 78488 (W.D. Va. Oct. 18, 2006).

No collateral estoppel. - Even if a default judgment in creditor's state court action was sufficient for bankruptcy court to determine that issues were actually litigated for purposes of determining if debtor's confession of judgment was nondischargeable as a willful and malicious injury, causes of actual for sexual assault and battery and carnal knowledge of minor, to extent recognized under Virginia common law as torts distinct from common-law assault and battery, would not have required creditor to prove that debtor committed those acts with intent to injure. The bankruptcy looked to Virginia's criminal code to determine intent requirement for these torts. Lewis v. Long (In re Long), 504 Bankr. 424, 2014 Bankr. LEXIS 374 (Bankr. W.D. Va. Jan. 28, 2014).

Applied in Woodard v. Commonwealth, 27 Va. App. 405, 499 S.E.2d 557 (1998); Fairfax Cty. Sch. Bd. v. S.C., 297 Va. 363 , 827 S.E.2d 592, 2019 Va. LEXIS 49 (2019).

§ 18.2-67.4:1. Infected sexual battery; penalty.

  1. Any person who is diagnosed with a sexually transmitted infection and engages in sexual behavior that poses a substantial risk of transmission to another person with the intent to transmit the infection to that person and transmits such infection to that person is guilty of a Class 6 felony.
  2. Nothing in this section shall prevent the prosecution of any other crime against persons under Chapter 4 (§ 18.2-30 et seq.). (2000, c. 831; 2004, c. 449; 2021, Sp. Sess. I, c. 465.)

Editor's note. - Acts 2000, c. 831, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 2004 amendments. - The 2004 amendment by c. 449 inserted subsection A designation at the beginning of the first paragraph; inserted subsection B; inserted subsection C designation at the beginning of the former second paragraph; and made a minor stylistic change.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 465, effective July 1, 2021, rewrote the section.

Law review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

§ 18.2-67.4:2. Sexual abuse of a child under 15 years of age; penalty.

Any adult who, with lascivious intent, commits an act of sexual abuse, as defined in § 18.2-67.10 , with any child 13 years of age or older but under 15 years of age is guilty of a Class 1 misdemeanor.

(2007, c. 463.)

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

§ 18.2-67.5. Attempted rape, forcible sodomy, object sexual penetration, aggravated sexual battery, and sexual battery.

  1. An attempt to commit rape, forcible sodomy, or inanimate or animate object sexual penetration shall be punishable as a Class 4 felony.
  2. An attempt to commit aggravated sexual battery shall be a felony punishable as a Class 6 felony.
  3. An attempt to commit sexual battery is a Class 1 misdemeanor.

    (1981, c. 397; 1993, c. 549.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

CASE NOTES

Attempted rape consists of the intent to engage in sexual intercourse, and some direct, yet ineffectual, act towards its consummation. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Inference of specific intent. - The evidence need not show that the defendant touched the victim's sexual organs or removed the victim's clothing to reasonably infer the specific intent to rape. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Abduction and attempted rape as separate crimes. - It could not be said as a matter of law that the evidence was insufficient to support a conviction for abduction with intent to defile, where, when defendant grabbed the victim, he transported her from a location that was lighted and visible to one out of sight of potential passersby or others, as defendant's asportation of the victim substantially increased the risk of harm to the victim by decreasing the possibility of detecting his criminal activity, and as, moreover, asportation to decrease the possibility of detection is not an act inherent in or necessary to the restraint required in the commission of attempted rape. Thus, the jury could reasonably infer that the abduction was separate and apart from, and not merely incidental to the crime of attempted rape. Accordingly, multiple punishments for defendant's abduction and attempted rape of victim did not offend the double jeopardy guarantee. Coram v. Commonwealth, 3 Va. App. 623, 352 S.E.2d 532 (1987).

Attempted aggravated sexual battery. - For purposes of establishing attempted aggravated sexual battery, a direct, ineffectual act done toward the commission of the offense is not required to be the last proximate act toward the completion of the offense, but it must go beyond mere preparation and be done to produce the intended result. Tharrington v. Commonwealth, 2 Va. App. 491, 346 S.E.2d 337 (1986).

To establish the offense of attempted aggravated sexual battery, the Commonwealth is required to prove that defendant intended to sexually abuse the victim and that he did a direct, ineffectual act toward the commission of the offense. Tharrington v. Commonwealth, 2 Va. App. 491, 346 S.E.2d 337 (1986).

General assembly passed a law, § 18.2-67 .5, stating the punishment for attempted sexual assault offenses, including attempted aggravated sexual battery, and passed § 18.2-67 , permitting the deposition of a "complaining witness" in cases of sexual assault and attempted sexual assault, and, if it had intended to exclude attempt crimes from § 18.2-67.3 , it would not have passed a law permitting a deposition of a "complaining witness" in attempted aggravated sexual battery and would not have passed a law stating the punishment for attempted aggravated sexual battery, so there was no evidence the general assembly intended to abrogate common-law attempt when it passed § 18.2-67.3 , and the crime of attempted aggravated sexual battery existed in Virginia. Moody v. Commonwealth, No. 1395-02-2, 2003 Va. App. LEXIS 696 (Ct. of Appeals Dec. 30, 2003).

Sufficiency of evidence of specific intent. - The evidence that the defendant brought a five-year-old girl into the seclusion of a bathroom, suggestively kissed her on the mouth, removed his pants and underwear while he had an erection and directed the child to bend over was sufficient to infer that he possessed the specific intent to rape. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Victim not capable of consent. - Because the trial court properly found that the victim was mentally incapacitated at the time of the attempted rape, the victim was not legally capable of consenting to engage in sexual acts with defendant; defendant's contention that any sexual activity that he intended to engage in with the victim was based on mutual consent was irrelevant. Diggs v. Commonwealth, No. 2125-16-1, 2018 Va. App. LEXIS 22 (Jan. 30, 2018).

Medical evidence is not required to convict a defendant of attempted forcible sodomy. Civitello v. Commonwealth, No. 1963-01-2, 2003 Va. App. LEXIS 2 (Ct. of Appeals Jan. 7, 2003).

Reliability of expert testimony. - Where a sexual assault nurse examiner's scientific methodology did not depend upon the reliability of the procedures for the results to be sound or valid, the trial court did not have to make a reliability finding before admitting the testimony; as a result, defendant's conviction for rape and forcible sodomy was affirmed. Beale v. Commonwealth, No. 1808-03-2, 2004 Va. App. LEXIS 180 (Ct. of Appeals Apr. 20, 2004).

Evidence was sufficient to sustain the jury's verdict of attempted rape where appellant abducted the victim, detained her by force when she attempted to flee, attempted to remove her shorts, removed her blouse, and beat her. Atkins v. Commonwealth, No. 2250-91-3 (Ct. of Appeals July 13, 1993).

Evidence sufficient to show mental incapacity. - Denial of defendant's motion to strike on the ground of insufficient evidence of mental incapacity was not plainly wrong because a rational trier of fact could have found that at the time of the attempted rape, the victim was mentally incapacitated; a doctor testified that the victim functioned at the mental level of an eight to ten-year-old, the victim's mother testified that the victim was unable to tell the difference between right and wrong, and the victim was unable to live independently. Diggs v. Commonwealth, No. 2125-16-1, 2018 Va. App. LEXIS 22 (Jan. 30, 2018).

Evidence held sufficient for conviction for attempted aggravated sexual battery of an 11-year-old child. Tharrington v. Commonwealth, 2 Va. App. 491, 346 S.E.2d 337 (1986).

Evidence as a whole, viewed in the light most favorable to the Commonwealth, was sufficient to support convictions for forcible sodomy, in violation of § 18.2-67.1 , and attempted aggravated sexual battery, in violation of §§ 18.2-67.3 and 18.2-67.5 , where the evidence included extensive corroboration of the victim's testimony and none of the arguments raised by defendant rendered the victim's testimony inherently incredible as a matter of law. Moran v. Commonwealth,, 2010 Va. App. LEXIS 198 (May 11, 2010).

Evidence sufficient to support conviction. - Uncorroborated testimony supported defendant's convictions for attempted rape and attempted forcible sodomy despite the victim's delay in reporting the assault because the delay, which was due to the victim's fear of her father, defendant, and her shame and embarrassment, was consistent with human experience and did not render her testimony inherently incredible. Wilson v. Commonwealth, 46 Va. App. 73, 615 S.E.2d 500, 2005 Va. App. LEXIS 268 (2005).

Sufficient evidence supported defendant's conviction for attempted aggravated sexual battery in violation of §§ 18.2-67.3 , 18.2-67.5 , and 18.2-67.10 , because the trial court accepted the testimony of the child victim that defendant touched the clothing covering her breasts and private parts as she exited the school bus. In addition, the trial court viewed a video recording and found it disclosed that something happened on the bus. Gallier v. Commonwealth,, 2012 Va. App. LEXIS 60 (Mar. 6, 2012).

§ 18.2-67.5:1. Punishment upon conviction of third misdemeanor offense.

When a person is convicted of sexual battery in violation of § 18.2-67.4 , attempted sexual battery in violation of subsection C of § 18.2-67.5 , a violation of § 18.2-371 involving consensual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus with a child, indecent exposure of himself or procuring another to expose himself in violation of § 18.2-387 , or a violation of § 18.2-130 , and it is alleged in the warrant, information, or indictment on which the person is convicted and found by the court or jury trying the case that the person has previously been convicted within the 10-year period immediately preceding the offense charged of two or more of the offenses specified in this section, each such offense occurring on a different date, he is guilty of a Class 6 felony.

(1994, c. 468; 2006, c. 875; 2014, c. 794.)

The 2006 amendments. - The 2006 amendment by c. 875 inserted "or a violation of § 18.2-130 " and made related changes.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, inserted "anal intercourse, cunnilingus, fellatio, or anilingus," substituted "10-year" for "ten-year," "is guilty" for "shall be guilty," and made a minor stylistic change.

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

CASE NOTES

Jury instructions. - In a prosecution for sexual battery, third or subsequent offense, the jury asked the trial court if it could consider defendant's prior convictions. As the jury instructions covered the issues raised by the evidence and addressed this jury question, the trial court did not abuse its discretion by referring the jury to the instructions already given with no further amplification. Minh Ngoc Tran v. Commonwealth, No. 1610-07-3, 2008 Va. App. LEXIS 536 (Dec. 9, 2008).

§ 18.2-67.5:2. Punishment upon conviction of certain subsequent felony sexual assault.

  1. Any person convicted of (i) more than one offense specified in subsection B or (ii) one of the offenses specified in subsection B of this section and one of the offenses specified in subsection B of § 18.2-67.5:3 when such offenses were not part of a common act, transaction, or scheme and who has been at liberty as defined in § 53.1-151 between each conviction shall, upon conviction of the second or subsequent such offense, be sentenced to the maximum term authorized by statute for such offense and shall not have all or any part of such sentence suspended, provided that it is admitted, or found by the jury or judge before whom the person is tried, that he has been previously convicted of at least one of the specified offenses.
  2. The provisions of subsection A shall apply to felony convictions for:
    1. Carnal knowledge of a child between 13 and 15 years of age in violation of § 18.2-63 when the offense is committed by a person over the age of 18;
    2. Carnal knowledge of certain minors in violation of § 18.2-64.1 ;
    3. Aggravated sexual battery in violation of § 18.2-67.3 ;
    4. Crimes against nature in violation of subsection B of § 18.2-361 ;
    5. Sexual intercourse with one's own child or grandchild in violation of § 18.2-366 ;
    6. Taking indecent liberties with a child in violation of § 18.2-370 or 18.2-370.1 ; or
    7. Conspiracy to commit any offense listed in subdivisions 1 through 6 pursuant to § 18.2-22 .
  3. For purposes of this section, prior convictions shall include (i) adult convictions for felonies under the laws of any state or the United States that are substantially similar to those listed in subsection B and (ii) findings of not innocent, adjudications, or convictions in the case of a juvenile if the juvenile offense is substantially similar to those listed in subsection B, the offense would be a felony if committed by an adult in the Commonwealth, and the offense was committed less than 20 years before the second offense.

    The Commonwealth shall notify the defendant in writing, at least 30 days prior to trial, of its intention to seek punishment pursuant to this section.

    (1995, c. 834; 2000, c. 333; 2020, cc. 122, 900.)

Editor's note. - Acts 2000, c. 333, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $."

The 2000 amendments. - The 2000 amendment by c. 333, in subsection A, inserted the (i) designation and "or (ii) one of the offenses specified in subsection B of this section and one of the offenses specified in subsection B of § 18.2-67.5:3 ."

The 2020 amendments. - The 2020 amendment by c. 122, in subdivision B 5, substituted "Sexual intercourse" for "Adultery or fornication"; and made stylistic changes.

The 2020 amendment by c. 900, in subsection A, substituted "provided that it is admitted" for "provided it is admitted"; in subdivision B 5, substituted "Sexual intercourse" for "Adultery or fornication"; and made stylistic changes.

CASE NOTES

Defendant "at liberty." - Trial court did not err in finding that defendant was "at liberty" because the jury's decision that defendant was "at liberty" when he abducted, raped, and sodomized the victim was supported by the evidence and did not conflict with the plain language of the statute. Ramsuer v. Commonwealth, No. 1122-16-4, 2017 Va. App. LEXIS 318 (Dec. 12, 2017).

§ 18.2-67.5:3. Punishment upon conviction of certain subsequent violent felony sexual assault.

  1. Any person convicted of more than one offense specified in subsection B, when such offenses were not part of a common act, transaction or scheme, and who has been at liberty as defined in § 53.1-151 between each conviction shall, upon conviction of the second or subsequent such offense, be sentenced to life imprisonment and shall not have all or any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of at least one of the specified offenses.
  2. The provisions of subsection A shall apply to convictions for:
    1. Rape in violation of § 18.2-61 ;
    2. Forcible sodomy in violation of § 18.2-67.1 ;
    3. Object sexual penetration in violation of § 18.2-67.2 ;
    4. Abduction with intent to defile in violation of § 18.2-48 ; or
    5. Conspiracy to commit any offense listed in subdivisions 1 through 4 pursuant to § 18.2-22 .
  3. For purposes of this section, prior convictions shall include (i) adult convictions for felonies under the laws of any state or the United States that are substantially similar to those listed in subsection B and (ii) findings of not innocent, adjudications or convictions in the case of a juvenile if the juvenile offense is substantially similar to those listed in subsection B, the offense would be a felony if committed by an adult in the Commonwealth and the offense was committed less than twenty years before the second offense.

    The Commonwealth shall notify the defendant in the indictment, information, or warrant, at least thirty days prior to trial, of its intention to seek punishment pursuant to this section.

    (1995, c. 834; 2007, c. 506.)

The 2007 amendments. - The 2007 amendment by c. 506 substituted "the indictment, information, or warrant" for "writing" in the last paragraph of subsection C.

CASE NOTES

Constitutionality. - Mandatory life sentence imposed by this section for a second or subsequent commission of violent sexual assault was not grossly disproportionate to the offense, and was therefore not unconstitutional. Medici v. Commonwealth, No. 0527-98-4 (Ct. of Appeals May 25, 1999).

Similar laws of other jurisdictions. - For purposes of identifying prior conviction under laws of another state, only that prohibition of other state's law under which defendant was convicted was required to substantially conform to Virginia law. Medici v. Commonwealth, No. 0527-98-4 (Ct. of Appeals May 25, 1999).

While it was true that the California statute, when read in its entirety, permitted a rape conviction for acts that would not necessarily constitute rape in Virginia, in making a comparison regarding the similarity of the statutes, it was only necessary to compare the Virginia rape statute with the subsection of the California statute under which the defendant was charged and convicted. Medici v. Commonwealth, 260 Va. 223 , 532 S.E.2d 28, 2000 Va. LEXIS 86 (2000), overruled on other grounds by Townsend v. Commonwealth, 270 Va. 325 , 619 S.E.2d 71 (2005).

Evidence of prior convictions. - Evidence of defendant's prior rape convictions was properly admitted to establish rape in question as a subsequent offense. Medici v. Commonwealth, No. 0527-98-4 (Ct. of Appeals May 25, 1999).

Admission of evidence not violation of due process rights. - The admission into evidence of a defendant's prior rape convictions during the guilt/innocence phase of his trial did not violate the defendant's due process rights where the defendant, if convicted, was subject to enhanced punishment under this section. Medici v. Commonwealth, 260 Va. 223 , 532 S.E.2d 28, 2000 Va. LEXIS 86 (2000), overruled on other grounds by Townsend v. Commonwealth, 270 Va. 325 , 619 S.E.2d 71 (2005).

§ 18.2-67.6. Proof of physical resistance not required.

The Commonwealth need not demonstrate that the complaining witness cried out or physically resisted the accused in order to convict the accused of an offense under this article, but the absence of such resistance may be considered when relevant to show that the act alleged was not against the will of the complaining witness.

(1981, c. 397.)

Law review. - For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982).

CASE NOTES

Reasonable resistance no longer required. - The enactment of this section in 1981 eliminated the reasonable resistance requirement that previously existed under Virginia law. Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).

Victim need not believe resistance would be useless. - Under this section, the victim is not required to cry out or physically resist. The victim also does not have to reasonably believe resistance would be useless. Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).

Burden of proof not shifted to defendant. - This section does not shift the burden of proof to the defendant, but merely eliminates the requirement that the Commonwealth must prove that the victim actually resisted the attack. Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).

Assault must be shown to be against victim's will. - Under this section, the Commonwealth still must prove that the assault was against the victim's will. This section merely allows the defendant to use lack of resistance to buttress his consent defense. Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).

Instruction as to force, threat, or intimidation not required. - Since, under this section, no physical resistance is required by law, the court in a prosecution for rape was not required to instruct the jury that "there must be a show of force, threat or intimidation sufficient to overcome resistance." Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).

§ 18.2-67.7. Admission of evidence (Supreme Court Rule 2:412 derived from this section).

  1. In prosecutions under this article, or under clause (iii) or (iv) of § 18.2-48 , 18.2-370 , 18.2-370.01 , or 18.2-370 .1, general reputation or opinion evidence of the complaining witness's unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:
    1. Evidence offered to provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution, limited to evidence designed to explain the presence of semen, pregnancy, disease, or physical injury to the complaining witness's intimate parts; or
    2. Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged offense was not accomplished by force, threat or intimidation or through the use of the complaining witness's mental incapacity or physical helplessness, provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case; or
    3. Evidence offered to rebut evidence of the complaining witness's prior sexual conduct introduced by the prosecution.
  2. Nothing contained in this section shall prohibit the accused from presenting evidence relevant to show that the complaining witness had a motive to fabricate the charge against the accused. If such evidence relates to the past sexual conduct of the complaining witness with a person other than the accused, it shall not be admitted and may not be referred to at any preliminary hearing or trial unless the party offering same files a written notice generally describing the evidence prior to the introduction of any evidence, or the opening statement of either counsel, whichever first occurs, at the preliminary hearing or trial at which the admission of the evidence may be sought.
  3. Evidence described in subsections A and B of this section shall not be admitted and may not be referred to at any preliminary hearing or trial until the court first determines the admissibility of that evidence at an evidentiary hearing to be held before the evidence is introduced at such preliminary hearing or trial. The court shall exclude from the evidentiary hearing all persons except the accused, the complaining witness, other necessary witnesses, and required court personnel. If the court determines that the evidence meets the requirements of subsections A and B of this section, it shall be admissible before the judge or jury trying the case in the ordinary course of the preliminary hearing or trial. If the court initially determines that the evidence is inadmissible, but new information is discovered during the course of the preliminary hearing or trial which may make such evidence admissible, the court shall determine in an evidentiary hearing whether such evidence is admissible.

    (1981, c. 397; 2007, c. 890; 2011, c. 785.)

Editor's note. - At the direction of the Virginia Code Commission, the notation to the Virginia Rules of Evidence was added to the catchline of this section. Acts 2012, cc. 688 and 708, cl. 6 provides: "That pursuant to the authority set forth in §§ 30-146 and 30-147 of the Code of Virginia, the Virginia Code Commission shall direct any party with whom the Virginia Code Commission contracts to publish the Code of Virginia to include in the catchline of every section of the Code of Virginia from which any rule contained in the Rules of Evidence has been derived a notation specifying such rule."

The 2007 amendments. - The 2007 amendment by c. 890 inserted "or under § 18.2-370 , 18.2-370.01 , or 18.2-370.1 " preceding "general reputation" in subsection A.

The 2011 amendments. - The 2011 amendment by c. 785 substituted "clause (iii) or (iv) of § 18.2-48 , 18.2-370 " for " § 18.2-370 " in the first sentence of subsection A.

Law review. - For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982). For comment on the rape shield statute in light of Winfield v. Commonwealth, 225 Va. 211 , 301 S.E.2d 15 (1983), see 18 U. Rich. L. Rev. 433 (1984).

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Research References. - Virginia Forms (Matthew Bender). No. 9-2227 Motion to Allow Evidence -- Rape Shield, et seq.

Michie's Jurisprudence. - For related discussion, see 15 M.J. Rape and Other Statutory Offenses, §§ 7, 17, 18; 20 M.J. Witnesses, § 43.

CASE NOTES

Legislative intent. - The General Assembly intended to preclude evidence of general reputation or opinion of the unchaste character of the complaining witness in all circumstances. This view arises not only from the criticisms of this kind of evidence which underlay the legislative reforms of 1981, but also from the fact that the new law gives a defendant access for the first time to evidence relating to specific prior sexual conduct with third persons, if it is relevant for the purposes set forth in this section. Winfield v. Commonwealth, 225 Va. 211 , 301 S.E.2d 15 (1983).

Trial court to conduct constitutional analysis of relevant evidence. - Rape shield law serves as a predicate to the constitutional analysis for the admission of evidence of a victim's prior sexual conduct in a sexual assault case; this section first directs a trial judge to make a determination of relevance, and after discarding evidence of prior sexual conduct proffered by the defendant to impugn the character of the victim or for some similarly impermissible purpose, the trial judge must then determine whether the evidence falls within one of the enumerated exceptions in the statute, which by implication is a test of materiality, or is otherwise material to an issue of the case. Finally, the trial judge must admit other relevant, material evidence, not within the enumerated exceptions, when the exclusion of such evidence would deny the defendant the constitutional right to a fair opportunity to present evidence probative of his defense of the charges against him. Neeley v. Commonwealth, 17 Va. App. 349, 437 S.E.2d 721 (1993).

This section is procedural in nature and the trial court did not violate defendant's rights under U.S. Const., Art. 1, § 10, or Va. Const., Art. 1, § 9, to be free from ex post facto laws by applying it during defendant's trial on charges that he violated former § 18.1-191 by committing fornication with his daughter in 1969 and 1970, even though § 18.2-67.7 was not enacted into law at the time defendant committed the offenses. Pilcher v. Commonwealth, No. 2483-01-3, 2003 Va. App. LEXIS 402 (Ct. of Appeals July 15, 2003). See also, Pilcher v. Commonwealth, 41 Va. App. 158, 583 S.E.2d 70, 2003 Va. App. LEXIS 398 (2003).

Hearing must be held. - The applicability of the rape shield law and the necessity for a hearing to determine the admissibility of such evidence is not affected by the form of the inquiry. Even if the question is framed to address another's conduct, as in this case, "[d]id [the neighbor] ever touch you," the requirements of this section must be satisfied before such evidence is admissible; as no hearing was requested as required by subsection C of this section, the evidence was not admissible. McNeil v. Commonwealth, No. 1517-92-3 (Ct. of Appeals, May 17, 1994).

Court not required to conduct evidentiary hearing. - This section requires a defendant seeking to introduce evidence of a victim's prior sexual conduct to request an evidentiary hearing before such evidence can be elicited at trial, but a trial court is not required to grant a request for such a hearing; a trial court can make a threshold evaluation of a motion to hold a hearing to determine the admissibility of the evidence at issue based upon its relevance and probative value only after specific instances of sexual conduct occurring prior to the charged offense have been alleged and proffered and, where the defendant fails to proffer any specific sexual conduct occurring on any occasion prior to the offense, the defendant's request for an evidentiary hearing may be properly denied. Blackmon v. Commonwealth, 33 Va. App. 728, 536 S.E.2d 918, 2000 Va. App. LEXIS 733 (2000).

Constitutional rights of compulsory process, confrontation and due process gave defendant the right to present evidence favorable to his defense which included evidence of victim's prior sexual behavior to explain the presence of a hair fragment in her cervix, even though that evidence did not fall within the specific enumerated exception of the rape shield statute for this evidence explained the presence of the hair fragment and tended to rebut the Commonwealth's assertion that defendant was the source of it. Neeley v. Commonwealth, 17 Va. App. 349, 437 S.E.2d 721 (1993).

Relevant prior sexual conduct admissible unless barred by enumerated exceptions. - In a rape prosecution evidence of prior sexual conduct which tends to establish a matter in issue would be admissible, unless barred by the second of the three enumerated exceptions in the rape shield statute or by other evidentiary rules. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Statute not ex post facto as applied. - Rape shield law, § 18.2-67.7 , was not an ex post facto law as applied to defendant, convicted of rape of a female child under age 16 in violation of § 18.1-44 [now see § 18.2-61 ], and of placing his hand upon a sexual or genital part of a child under the age of 14 in violation of § 18.1-215 [now see § 18.2-370 ], as the law changed only procedures as to the admission of evidence; the evidence of the victim's sexual history was excluded due to defendant's failure to follow the statute's procedure by requesting a recess, as suggested by the trial court, to discuss the evidence defendant wished to admit and its relevancy. Pilcher v. Commonwealth, 41 Va. App. 158, 583 S.E.2d 70, 2003 Va. App. LEXIS 398 (2003).

Evidence of other sexual activity controlled by rape shield law. - Rape shield law, § 18.2-67.7 , controls the introduction of any evidence that a victim had other sexual activity. Mott v. Commonwealth, No. 0058-03-3, 2003 Va. App. LEXIS 653 (Ct. of Appeals Dec. 16, 2003).

Evidence of prior testimony in unrelated rape prosecution, when offered to show its substantial similarity for the purpose of testing the credibility of the witness, does not fall within the scope of this section. Brown v. Commonwealth, 29 Va. App. 199, 510 S.E.2d 751 (1999).

The determination whether prior sexual conduct is reasonably proximate to the offense charged is a function not only of time, but also of the circumstances of the case, including the situation and factors surrounding the prior conduct, the relationship between the parties, and the circumstances of the alleged offense. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Any evidence of prior sexual conduct must comply with the usual rules of evidence as well as the requirements of this section. Winfield v. Commonwealth, 225 Va. 211 , 301 S.E.2d 15 (1983).

Evidence of past sexual conduct, to be admissible under the "motive to fabricate" provisions of subsection B of this section however, must show a pattern of behavior which directly relates to the conduct charged against the complaining witness in the case on trial. Winfield v. Commonwealth, 225 Va. 211 , 301 S.E.2d 15 (1983).

Evidence tending to show that the complaining witness had a distinctive pattern of past sexual conduct, involving the extortion of money by threat after acts of prostitution is relevant, probative, and admissible in defense. Winfield v. Commonwealth, 225 Va. 211 , 301 S.E.2d 15 (1983).

Scope of statute. - By definition, "conduct involved in the offense" is expressly outside the scope of the rape shield statute. Maldini v. Commonwealth, No. 0477-17-4, 2018 Va. App. LEXIS 172 (June 26, 2018).

Trial court erred in defendant's trial for aggravated sexual battery of the child of defendant's paramour by applying the rape shield statute to the paramour's testimony about the child's statement that the child did not want defendant to go to jail and did not want to say the things they're telling the child to say because the statement did not involve the child's past sexual conduct. Mancedo v. Commonwealth, No. 0150-18-4, 2019 Va. App. LEXIS 116 (May 14, 2019).

Notice insufficient. - Trial court did not err in denying defendant's motion to present evidence of a six-year-old victim's prior sexual conduct because there was no evidence that defendant gave the notice required by § 18.2-67.7 , the rape shield statute, other than the prosecutor's statement that he had received a hand-written notice. Gleason v. Commonwealth,, 2010 Va. App. LEXIS 256 (June 29, 2010).

The approach for determining admissibility of evidence of prior sexual conduct between a prosecutrix and defendant is two-fold; first, a trial court must determine whether it is relevant; the second prong requires the trial court to determine whether the prior sexual conduct occurred within a period of time reasonably proximate to the offense charged. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Admissibility of prior sexual conduct must be decided on case-by-case basis. - The rape shield statute has rejected the common-law notion that once consensual sex has been shown in the past it always is relevant to prove that subsequent sexual intercourse was consensual; the rape shield statute requires the question of the admissibility of prior sexual conduct between a prosecutrix and defendant be decided on a case-by-case basis. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Evidence of sexual contact with third party properly excluded. - The trial court properly refused to permit the introduction into evidence of a statement by the victim regarding sexual contact with someone other than the defendant where the defendant failed to proffer what the witness would have said and failed to demonstrate that the statement would have explained the medical finding that the victim had been sexually penetrated. Horsley v. Commonwealth, No. 2925-97-3 (Ct. of Appeals Dec. 22, 1998).

Prior false allegations of sexual assault, which consisted only of a denial by the prior accused of said allegations, was proper where such were uncertain, self-serving, and lacked a reasonable probability of falsity. Richardson v. Commonwealth, 42 Va. App. 236, 590 S.E.2d 618, 2004 Va. App. LEXIS 8 (2004).

Virginia's Rape Shield Statute precluded defendant from introducing evidence of the victim's alleged prior sexual conduct with a third person, wherein the victim accused the boyfriend of the victims' mother of inappropriate touching and then recanted; contrary to defendant's claim of fabrication, defendant failed to show that there was a reasonable probability that the child's allegations against the third person were false. Ortiz v. Commonwealth, 276 Va. 705 , 667 S.E.2d 751, 2008 Va. LEXIS 122 (2008).

Evidence of complainant's contraction of gonorrhea admissible. - Trial court erred in applying this section to exclude evidence that complaining witness learned that she had contracted gonorrhea. Because such evidence did not directly or necessarily prove prior sexual conduct of the complaining witness within the meaning of this section, and because such evidence was otherwise relevant to show that the complaining witness may have had a motive to fabricate her allegations of rape, the evidence was admissible. Evans v. Commonwealth, 14 Va. App. 118, 415 S.E.2d 851 (1992).

Relevance of venereal disease contracted by accuser. - Regardless of whether the evidence implicates the accused as the person who purportedly transmitted the disease, evidence that a complaining witness contracted a venereal disease after the date of the alleged offense is relevant because it tends to prove that the infected person harbors bias or ill-will against a recent sexual partner. Evans v. Commonwealth, 14 Va. App. 118, 415 S.E.2d 851 (1992).

Evidence that complainant contracted venereal disease is more relevant when the victim delayed in reporting the incident of sexual assault. Evans v. Commonwealth, 14 Va. App. 118, 415 S.E.2d 851 (1992).

Evidence inadmissible to prove propensity or to impeach credibility. - Where the only purpose offered for introducing evidence of the victim's prior sexual conduct is to establish her propensity to engage in consensual sexual acts or to impeach her general credibility, such evidence is rendered inadmissible under the statute. Currie v. Commonwealth, 10 Va. App. 204, 391 S.E.2d 79 (1990).

The term "reasonably proximate" cannot be closely confined within any particular time frame. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Whether prior sexual conduct is reasonably proximate to the offense charged must be decided based on the totality of the circumstances of each case; while the time which has elapsed between the two alleged sexual acts is an important factor to be considered, a court also must consider the nature of the prior relationship and sexual conduct, whether the relationship was a continuing one, and the circumstances surrounding the alleged offense; these factors, together with the time lapse between the alleged acts, govern whether the evidentiary value of the prior conduct is so remote that it cannot fairly be said to have probative value on the issue whether the prosecutrix consented to the sexual act with which the accused is charged. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Remark about prior consensual intercourse justified mistrial. - Manifest necessity existed for declaring a mistrial, where defendant's counsel, ignorant of the Virginia Rape Shield Statute, in his opening statement related to the jury the alleged prior consensual sexual intercourse between defendant and the complaining witness. Graves v. Garraghty, 618 F. Supp. 1348 (E.D. Va. 1985).

Considering only lapse of time in ruling on prior sexual conduct was error. - Where the trial court refused to allow the defendant to testify about a prior act of consensual sexual intercourse between the prosecutrix and him, the trial court erred by considering only the lapse of time in ruling that the prior sexual conduct was too remote to be admissible, and by failing to consider other circumstances of the relationship; based on defendant's account of what transpired, since the alleged rape was so intertwined with the prior consensual sexual intercourse and the alleged discussion about future sex for money that to exclude that evidence deprived defendant of a meaningful opportunity to present his defense. League v. Commonwealth, 9 Va. App. 199, 385 S.E.2d 232 (1989).

Evidence of prior false accusation admissible. - In sex offense cases, however, the weight of authority recognizes more liberal rules concerning impeachment of complaining witnesses. Accordingly, a majority of jurisdictions that have considered the issue hold that evidence of prior false accusations is admissible to impeach the complaining witness' credibility or as substantive evidence tending to prove that the instant offense did not occur. Clinebell v. Commonwealth, 235 Va. 319 , 368 S.E.2d 263 (1988).

Where defendant sought to prove for impeachment purposes that his daughter makes false statements concerning sexual behavior, such statements were not conduct within the meaning of this section, and, therefore, the section was inapplicable. Clinebell v. Commonwealth, 235 Va. 319 , 368 S.E.2d 263 (1988).

Victim's testimony about a false accusation of rape could not fall under the rape shield law, because it was not testimony about her past sexual activity but an alleged lie that she told about alleged sexual activity. Poff v. Commonwealth, No. 0911-15-1, 2017 Va. App. LEXIS 15 (Jan. 24, 2017).

False denial of prior intercourse not an "accusation." - While a special rule relating to impeachment in sexual assault cases has been recognized which permits evidence of prior false accusations to be admitted to impeach the alleged victim's credibility or as substantive evidence that the alleged offense did not occur, this rule does not permit introduction of a victim's false statement to the police that she had not previously engaged in intercourse; this statement could not be construed as part of a system of false accusations casting doubt on the victim's accusation against the defendant. Thompson v. Commonwealth, 28 Va. App. 543, 507 S.E.2d 110 (1998).

Exclusion of prior complaint proper. - Exclusion of evidence of the victim's prior complaint of sexual abuse against another man was proper, because the circumstances of the prior complaint were so different that the disputed evidence had no logical tendency to establish the prior incident as an alternate source of the child's sexual knowledge; the prior complaint was that when the victim was five years old, the victim's grandmother's boyfriend placed the victim's hand on the boyfriend's penis, over clothing, an incident that had no logical tendency to show the victim's prior knowledge of the physical appearance of a penis, or of the fellatio or object sexual penetration the victim described at trial. Polaski v. Commonwealth,, 2009 Va. App. LEXIS 165 (Apr. 7, 2009).

Mixed question of fact and law. - Under this section the trial judge is called upon to apply a mixed question of fact and law. The trial judge must determine whether alleged sexual conduct "occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case." Graves v. Garraghty, 618 F. Supp. 1348 (E.D. Va. 1985).

Exception for evidence offered to explain physical evidence. - In a prosecution for forcible anal sodomy, the exception which permits the introduction of evidence which is relevant and is offered to provide an alternative explanation for physical evidence of the offense did not permit cross-examination of a victim concerning a false statement she had made to the police denying that she had previously engaged in any kind of sexual intercourse where the physical evidence at issue was of a rectal scar and the victim's prior consensual vaginal intercourse would not have caused such a scar. Thompson v. Commonwealth, 28 Va. App. 543, 507 S.E.2d 110 (1998).

Court's ability to determine if evidence comes within section. - Only by hearing the witnesses, or by stipulation of the Commonwealth that witnesses would testify as indicated in the notice required by subsection B, could the court determine whether the proffered evidence came within this section. Johnson v. Commonwealth, 9 Va. App. 176, 385 S.E.2d 223 (1989).

Exclusion of properly excludable evidence on improper grounds. - Where the trial judge based his decision to exclude the evidence of prior sexual conduct on inappropriate grounds under Virginia law, but he unquestionably could have decided to exclude the evidence of prior sexual conduct between the complaining witness and defendant on the basis of the lack of "reasonable proximity" or upon a lack of materiality of the evidence, defendant failed to demonstrate the existence of circumstances impugning fundamental fairness or infringing specific constitutional protections. Absent such circumstances, the admissibility of the evidence at issue does not present a federal question, and, accordingly, his habeas claim that this section was unconstitutional if the trial judge's function thereunder was to admit or exclude evidence based on his credibility findings was dismissed as failing to present a federal question for consideration by the federal district court. Graves v. Garraghty, 618 F. Supp. 1348 (E.D. Va. 1985).

Victim's journal admissible for impeachment. - Exclusion of child sexual assault victim's journal, under Virginia's rape shield statute, § 18.2-67.7 , was in error, as the purpose of the journals was to attack the victim's credibility, and the journals were proper impeachment; however, the error was harmless where the evidence of guilt was found to be overwhelming, and the trial court, in a bench trial, stated that the trial court had reviewed the journals, and had the journals been considered, the journals would not have changed the trial court's mind. Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340, 2003 Va. App. LEXIS 221 (2003).

Trial counsel did not err in failing to present testimony of victim's unchaste character. - Trial counsel for an inmate convicted of rape did not err in failing to present testimony regarding the victim's unchaste character because Virginia's Rape Shield statute specifically excluded such testimony. Esser v. Johnson,, 2005 U.S. Dist. LEXIS 35830 (W.D. Va. July 19, 2005).

What evidence statute designed to exclude. - This statute was designed to prevent the introduction of evidence that would serve only to degrade the victim and that would be highly prejudicial; where the only purpose offered for introducing evidence of the victim's prior sexual conduct is to establish his or her propensity to engage in consensual sexual acts or to impeach his or her general credibility, such evidence is rendered inadmissible by the statute. Thompson v. Commonwealth, 28 Va. App. 543, 507 S.E.2d 110 (1998).

Harmless error. - Although the trial court erred in not permitting defendant to cross-examine the victim about a prior statement about the 2011 attack on the rape shield law ground as the testimony defendant sought to elicit concerned the victim's prior statement about the 2011 attack, not about her conduct, the error was harmless based on the overwhelming evidence against defendant. Hall v. Commonwealth, No. 1001-18-4, 2019 Va. App. LEXIS 164 (July 16, 2019).

Court did not need to decide whether the trial court erred in sustaining the Commonwealth's objection to the introduction of text messages based on the rape shield statute because even if the messages had been admitted for impeachment purposes, the DNA and forensic evidence, defendant's text to the victim, and defendant's own testimony and statements to police would have provided the trial court with overwhelming evidence corroborating the victim's testimony that defendant had raped her. Arroyo v. Commonwealth, No. 0135-20-2, 2021 Va. App. LEXIS 45 (Mar. 23, 2021).

Trial court did not abuse its discretion. - Trial court, where defendant was accused of sodomy and incest towards his adopted teenage daughter, did not err in refusing to admit evidence concerning the daughter's prior reports of sexual abuse toward the boyfriend of her biological mother to the extent the evidence alleged that the child had sexual activity and only with respect to the sodomy charge. Via v. Commonwealth, 42 Va. App. 164, 590 S.E.2d 583, 2004 Va. App. LEXIS 14 (2004).

Evidence that a juvenile previously made reports of sexually stimulating behavior to gain attention to show that she and other complaining witnesses had a similar motive to fabricate the charges against defendant was properly excluded as: (1) the proffered evidence only showed that the juvenile had previously been exposed to sexual conduct, not that she made any false reports of sexual abuse or that she had any motive to make up the charges against defendant; (2) the evidence had no relevance to the allegations pertaining to the victim, for which defendant was convicted; and (3) the evidence involved conduct over two years prior to the issues at trial. Holcomb v. Commonwealth,, 2006 Va. App. LEXIS 269 (June 20, 2006).

Trial court did not abuse its discretion in refusing to admit evidence of the alleged victim's prior sexual involvement with other people while the victim was involved with defendant. The evidence of the victim's sexual conduct with people other than the victim's new paramour and defendant, was not relevant to the victim's motive to fabricate the charge against defendant. Dellinger v. Commonwealth,, 2014 Va. App. LEXIS 111 (Mar. 25, 2014).

Trial court did not abuse its discretion in denying defendant's request for a rape shield hearing, as he did not proffer evidence of specific instances of the victim's prior sexual conduct. Taylor v. Commonwealth, No. 1031-14-4, 2016 Va. App. LEXIS 239 (Ct. of Appeals Sept. 13, 2016).

Statement not admissible. - Victim's statement that she wanted to get defendant drunk so he would engage in rough sex later did not qualify for admission under the rape shield statute. Moulds v. Commonwealth, No. 1396-15-4, 2016 Va. App. LEXIS 284 (Ct. of Appeals Oct. 25, 2016).

Jury instructions. - Trial court did not err in refusing defendant's proffered jury instruction concerning evidence of prior sexual conduct between the victim and defendant because kissing did not fit within the definition of "sexual conduct" as contemplated by this section and there was no evidence that they had any contact with one another's intimate parts prior to the incident at issue. Fahringer v. Commonwealth, 70 Va. App. 208, 827 S.E.2d 1, 2019 Va. App. LEXIS 104 (2019).

CIRCUIT COURT OPINIONS

Portions of videotape were admissible. - Portions of a videotape of sexual conduct between a victim and defendant was admissible as: (1) the victim and defendant were in a sexual relationship for a long period of time; (2) they engaged in what could be characterized as "rough sex"; (3) the videotape was made with the victim's consent; (4) the alleged offenses occurred approximately five weeks after the intimate relationship ended; (5) they lived in the same apartment after their intimate relationship ended; and (6) the prejudicial effect of the videotape did not outweigh its probative value. Commonwealth v. Goodwin,, 2005 Va. Cir. LEXIS 310 (Alexandria June 15, 2005).

Evidence admissible for impeachment only. - In a rape case, evidence of two other assaults on the complaining witness allegedly occurring near the time of defendant's alleged assault on the complaining witness was admissible for impeachment purposes, but not to show that the complaining witness consented to sexual intercourse with defendant; evidence of sperm DNA from an unknown third person on the complaining witness's shirt, and evidence that the complaining witness was kissing a female friend on the night of the alleged rape was inadmissible. Commonwealth v. Sanchez-Garcia,, 2004 Va. Cir. LEXIS 250 (Amherst County June 22, 2004).

Evidence of prior sexual conduct admissible. - Because only one to one and one-half months lapsed between the parties' prior sexual conduct and an alleged rape, because the conduct was alleged to have been consensual, and because the rape was allegedly the result of a fee dispute over the conduct, the alleged prior sexual conduct was admissible under subdivision A 2 of § 18.2-67.7 . Commonwealth v. Quintanilla, 70 Va. Cir. 11, 2005 Va. Cir. LEXIS 298 (Greensville County 2005).

Defendant did not seek to use the prior false accusation to prove that the child engaged in prior sexual conduct or that she has an unchaste character; rather, defendant wanted to demonstrate that the child was not credible and had a propensity to make false accusations of sexual abuse; thus, the prior accusation was not conduct and Virginia's Rape Shield Law did not apply. Commonwealth v. Durham, 91 Va. Cir. 470, 2016 Va. Cir. LEXIS 3 (Norfolk Jan. 14, 2016).

State's motion in limine to exclude video recordings of two sexual encounters between defendant and the victim was denied because they were in close proximity in time to the rape as the second encounter and the rape occurred less than two weeks apart, the videos showed a consensual encounter in a substantially similar circumstance to the rape, the videos were relevant in determining whether defendant and the victim had consensual sex on the date in question, and the rough sex exhibited in the videos could explain the bruising to the victim. Commonwealth v. Taylor,, 2019 Va. Cir. LEXIS 435 (Newport News Aug. 21, 2019).

Evidence not admissable. - Defendant's motion to admit evidence of the prior sexual conduct of the complainant with another person was denied because the reason proffered for admission of that evidence was not enumerated in § 18.2-67.7 , the Rape Shield statute, and the evidence was neither material nor probative of whether the complaining witness had sexual intercourse with defendant. Commonwealth v. Beckford,, 2005 Va. Cir. LEXIS 312 (Alexandria Nov. 22, 2005).

Circuit court denied defendant's motion to reconsider its ruling sustaining the Commonwealth's objection to reference to alleged prior sexual conduct of the complaining witnesses, including why their bedroom door was removed, because defendant was successful at trial in pointing out the inconsistencies regarding why the bedroom door was removed; to the extent defendant desired to impeach the complaining witnesses or to imply their behavior led to removal of the door, he presented those issues. Commonwealth v. Stueber,, 2019 Va. Cir. LEXIS 101 (Norfolk Apr. 30, 2019).

Pattern of past sexual conduct for purposes of career advancement. - In a sexual battery case in which the circuit court heard argument relating to the admissibility of the complainant's statement pursuant to § 18.2-67.7 , the circuit court concluded there was neither a nexus or a pattern of past sexual conduct or, more specifically, the use of sexual favors for purposes of career advancement. While there may have been one prior incident of mild intimacy between the complainant and the defendant's son, there was no argument, nor could one be made, that this was part of a pattern of conduct. Commonwealth v. Ghousheh, 105 Va. Cir. 388, 2020 Va. Cir. LEXIS 100 (Fairfax County July 27, 2020).

§ 18.2-67.7:1. Evidence of similar crimes in child sexual offense cases (Supreme Court Rule 2:413 derived from this section).

  1. In a criminal case in which the defendant is accused of a felony sexual offense involving a child victim, evidence of the defendant's conviction of another sexual offense or offenses is admissible and may be considered for its bearing on any matter to which it is relevant.
  2. The Commonwealth shall provide to the defendant 14 days prior to trial notice of its intention to introduce copies of final orders evidencing the defendant's qualifying prior criminal convictions. Such notice shall include (i) the date of each prior conviction, (ii) the name and jurisdiction of the court where each prior conviction was obtained, and (iii) each offense of which the defendant was convicted. Prior to commencement of the trial, the Commonwealth shall provide to the defendant photocopies of certified copies of the final orders that it intends to introduce.
  3. This section shall not be construed to limit the admission or consideration of evidence under any other section or rule of court.
  4. For purposes of this section, "sexual offense" means any offense or any attempt or conspiracy to engage in any offense described in Article 7 (§ 18.2-61 et seq.) of Chapter 4 or § 18.2-370 , 18.2-370.01 , or 18.2-370.1 or any substantially similar offense under the laws of another state or territory of the United States, the District of Columbia, or the United States.
  5. Evidence offered in a criminal case pursuant to the provisions of this section shall be subject to exclusion in accordance with the Virginia Rules of Evidence, including but not limited to Rule 2:403.

    (2014, c. 782.)

Editor's note. - In the section catchline "(Supreme Court Rule 2:413 derived from this section)" was added at the direction of the Virginia Code Commission. The Supreme Court of Virginia adopted Rule 2:413 by order dated July 2, 2014, effective immediately.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal, Procedure, § 59; 7B M.J. Evidence, §§ 38, 48.

CASE NOTES

Construction. - This section and its parallel Va. Sup. Ct. R. 2:413 provide an exception to the general prohibition against introduction of "other crimes, wrongs, or acts" as set out in Va. Sup. Ct. R. 2:404(b); the language of § 18.2-67.7:1 changes the general prohibition against character evidence to prove propensity by creating a narrow exception in child sexual abuse cases. Blankenship v. Commonwealth, 69 Va. App. 692, 823 S.E.2d 1, 2019 Va. App. LEXIS 28 (2019).

Prior conviction admissible. - Trial court did not abuse its discretion in admitting defendant's prior conviction because the probative value of the prior conviction outweighed the danger of unfair prejudice; the indictment, police report, and witness statements from the prior conviction indicated that both cases involved defendant exposing himself to the child of an acquaintance, and in each case, the victim was significantly younger than him and dependent on him for transportation, thereby limiting opportunity to escape. Blankenship v. Commonwealth, 69 Va. App. 692, 823 S.E.2d 1, 2019 Va. App. LEXIS 28 (2019).

Harmless error. - Defendant was net entitled to relief based on the trial court's admission of a prior rape conviction because any error was harmless since the victim's testimony was corroborated by a DNA test showing defendant impregnated her and, while first denying any sexual contact with the victim, defendant later confirmed he had sex with her shortly after he was released from prison, when the victim was fourteen years old. Brown v. Commonwealth, No. 0554-19-1, 2020 Va. App. LEXIS 201 (July 14, 2020).

§ 18.2-67.8. Closed preliminary hearings.

In preliminary hearings for offenses charged under this article or under §§ 18.2-361 , 18.2-366 , 18.2-370 or § 18.2-370.1 , the court may, on its own motion or at the request of the Commonwealth, the complaining witness, the accused, or their counsel, exclude from the courtroom all persons except officers of the court and persons whose presence, in the judgment of the court, would be supportive of the complaining witness or the accused and would not impair the conduct of a fair hearing.

(1981, c. 397; 1993, c. 440.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 20.

CASE NOTES

Mandamus not available to challenge closure order. - A writ of mandamus was improperly issued to a reporter and newspaper granting them access to records of certain preliminary proceedings; the proper procedure would have been for the petitioners to have filed motions to intervene and objections to the courts' closure orders and, if such had been rejected, to appeal those orders. Hertz v. Times-World Corp., 259 Va. 599 , 528 S.E.2d 458, 2000 Va. LEXIS 81 (2000).

§ 18.2-67.9. Testimony by child victims and witnesses using two-way closed-circuit television.

  1. The provisions of this section shall apply to an alleged victim who was 14 years of age or younger at the time of the alleged offense and is 16 years of age or younger at the time of the trial and to a witness who is 14 years of age or younger at the time of the trial. In any criminal proceeding, including preliminary hearings, involving an alleged offense against a child, relating to a violation of the laws pertaining to kidnapping pursuant to Article 3 (§ 18.2-47 et seq.) of Chapter 4, criminal sexual assault pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4, commercial sex trafficking or prostitution offenses pursuant to Article 3 (§ 18.2-346 et seq.) of Chapter 8, or family offenses pursuant to Article 4 (§ 18.2-362 et seq.) of Chapter 8, or involving an alleged murder of a person of any age, the attorney for the Commonwealth or the defendant may apply for an order from the court that the testimony of the alleged victim or a child witness be taken in a room outside the courtroom and be televised by two-way closed-circuit television. The party seeking such order shall apply for the order at least seven days before the trial date or at least seven days before such other preliminary proceeding to which the order is to apply.
  2. The court may order that the testimony of the child be taken by closed-circuit television as provided in subsection A if it finds that the child is unavailable to testify in open court in the presence of the defendant, the jury, the judge, and the public, for any of the following reasons:
    1. The child's persistent refusal to testify despite judicial requests to do so;
    2. The child's substantial inability to communicate about the offense; or
    3. The substantial likelihood, based upon expert opinion testimony, that the child will suffer severe emotional trauma from so testifying.

      Any ruling on the child's unavailability under this subsection shall be supported by the court with findings on the record or with written findings in a court not of record.

  3. In any proceeding in which closed-circuit television is used to receive testimony, the attorney for the Commonwealth and the defendant's attorney shall be present in the room with the child, and the child shall be subject to direct and cross-examination. The only other persons allowed to be present in the room with the child during his testimony shall be those persons necessary to operate the closed-circuit equipment and any other person whose presence is determined by the court to be necessary to the welfare and well-being of the child.
  4. The child's testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge, and public to view. The defendant shall be provided with a means of private, contemporaneous communication with his attorney during the testimony.
  5. Notwithstanding any other provision of law, none of the cost of the two-way closed-circuit television shall be assessed against the defendant.

    (1988, c. 846; 1999, c. 668; 2001, c. 410; 2019, c. 146; 2020, c. 122.)

Editor's note. - Acts 2001, c. 410, cl. 2, provides: "That the provisions of this act shall not be construed so as to require the installation of permanent two-way closed-circuit television equipment in any courtroom in the Commonwealth."

The 1999 amendment, in subsection A, in the first sentence, deleted "the age of twelve or under" following "a child," deleted "child's" preceding "testimony," and inserted "of the alleged victim or a child witness"; added subsection A1; and substituted "subsections A and A1" for "subsection A" in subsection B.

The 2001 amendments. - The 2001 amendment by c. 410, in subsection A, added the present first paragraph and inserted "or involving an alleged murder of a person of any age" in the second paragraph, deleted subsection A 1, which formerly read: "The provisions of this section shall apply to the following: 1. An alleged victim who was fourteen years of age or under at the time of the alleged offense and is sixteen or under at the time of the trial; and 2. Any child witness who is fourteen years of age or under at the time of the trial," and substituted "subsection A" for "subsections A and A 1" in subsection B.

The 2019 amendments. - The 2019 amendment by c. 146, in the first paragraph of subsection A, substituted "years of age or younger" for "years of age or under" throughout; in the second paragraph of subsection A, inserted "commercial sex trafficking or prostitution offenses pursuant to Article 3 ( § 18.2-344 et seq.) of Chapter 8"; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 122 substituted " § 18.2-346 " for " § 18.2-344 " in the second paragraph of subsection A.

Law review. - For comment on testimony by child victims using two-way closed-circuit television, see 22 U. Rich. L. Rev. 691 (1988).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Witnesses, §§ 9, 31.

CASE NOTES

Constitutionality of the statute. - Section 18.2-67.9 comports with the requirements of the Sixth Amendment's Confrontation Clause because the use of a two-way closed-circuit television provides greater protections for a criminal defendant and more closely mirrors a courtroom environment, and the elements of effective confrontation not only permit a defendant to confound and undo the false accuser, or reveal the child coached by a malevolent adult, but may well aid a defendant in eliciting favorable testimony from the child witness. Johnson v. Commonwealth, 40 Va. App. 605, 580 S.E.2d 486, 2003 Va. App. LEXIS 303 (2003).

Although this section is broader in scope than the statute examined in Craig, nothing in the language of Craig itself indicates that this section is unconstitutional because of its broader provisions, and therefore the court rejected defendant's challenge to the constitutionality of this section. Castillo v. Commonwealth, 70 Va. App. 394, 827 S.E.2d 790, 2019 Va. App. LEXIS 132 (2019).

Substantial inability to communicate about the offense. - Testimony and demeanor of two child witnesses at the hearing on the Commonwealth's motion to allow the witnesses to testify at defendant's trial by closed-circuit television supported the trial court's finding that the witnesses had a substantial inability to communicate about the sex offenses at issue in open court in defendant's presence, and justified the trial court's decision to allow their testimony by closed-circuit television pursuant to § 18.2-67.9 B 2. Civitello v. Commonwealth, No. 1963-01-2, 2003 Va. App. LEXIS 2 (Ct. of Appeals Jan. 7, 2003).

Ability to communicate with counsel. - In a case in which defendant was convicted of rape and aggravated malicious wounding of his then-seven-year-old daughter, the trial court provided defendant with the ability to contemporaneously communicate with his counsel during the closed-circuit testimony of the child victim as required by this statute because defendant was provided with a telephone so that he could communicate nearly instantaneously with counsel as he only had to pick up the telephone receiver and press any two buttons on the phone to speak with his counsel in the anteroom. Ruff v. Commonwealth, 73 Va. App. 405, 860 S.E.2d 414, 2021 Va. App. LEXIS 131 (2021).

Defendant's constitutional protections not violated. - Section 18.2-67.9 , which allowed the victim to testify via a two-way closed circuit television, did not violate defendant's constitutional protections because the trial court followed the statutory requirements and applied them correctly; the statute was valid as applied to defendant as there was a finding of "necessity," which was supported by the evidence, as the trial court found that the victim was unable to testify in open court in the presence of defendant, the jury, the judge and the public, the finding was based on expert testimony that there was a substantial likelihood that the child would suffer severe emotional trauma from testifying, the trial court took the additional step of requiring the Commonwealth to have the victim undergo an independent psychological examination prior to making a decision on the necessity of using closed-circuit television at trial, and the record also proved that the "other elements" of defendant's confrontations rights were met. Johnson v. Commonwealth, 40 Va. App. 605, 580 S.E.2d 486, 2003 Va. App. LEXIS 303 (2003).

Providing a criminal defendant with a telephone to communicate with defense counsel met the requirement of this statute that a defendant be provided with a means of contemporaneous communication with counsel. Ruff v. Commonwealth, 73 Va. App. 405, 860 S.E.2d 414, 2021 Va. App. LEXIS 131 (2021).

Statute inapplicable. - Statute was inapplicable because a child victim was available and did testify in open court, and thus, the threshold requirement of the statute's applicability, that the witness be unable to testify in open court, was not met; even if the child was unavailable to testify, nothing in the plain language of the statute required its application, and the trial court was within its discretion in allowing the child to write certain portions of her testimony. Turner v. Commonwealth, 63 Va. App. 401, 758 S.E.2d 81, 2014 Va. App. LEXIS 182 (2014).

Illustrative case. - In a case in which defendant was alleged to have sexually abused his six year old daughter, the trial court did not err in finding a substantial likelihood that, based upon expert opinion testimony, the child would suffer severe emotional trauma if forced to testify in open court, and to allow her under § 18.2-67.9 B 3 to testify by closed-circuit television; because the child would suffer "severe emotional trauma" if forced to testify in open court, she was "unavailable." Parrish v. Commonwealth, 38 Va. App. 607, 567 S.E.2d 576, 2002 Va. App. LEXIS 487 (2002).

Trial court did not err in allowing the use of two-way closed-circuit television because it found that the social worker's testimony demonstrated that there was a "substantial likelihood" that the child, the son of defendant and the victim, would suffer severe emotional trauma from testifying in open court due to the presence of defendant. The evidence supported the finding that the child would be traumatized, not by the courtroom generally, but by the courtroom presence of defendant, as the social worker testified that he had displayed aggressive behaviors and experienced bed wetting episodes before and after visitation with defendant. Castillo v. Commonwealth, 70 Va. App. 394, 827 S.E.2d 790, 2019 Va. App. LEXIS 132 (2019).

Failure to raise issue at trial barred consideration on appeal. - Appellate court did not consider defendant's argument that two-way closed-circuit testimony of the victim and her brother violated § 18.2-67.9 where defendant conceded that he had not made the statutory argument at trial. Roadcap v. Commonwealth, 50 Va. App. 732, 653 S.E.2d 620, 2007 Va. App. LEXIS 445 (2007).

CIRCUIT COURT OPINIONS

Applicability. - Circuit court could not accept the contested proffer of the Assistant Commonwealth's Attorney to allow the child victim to testify via closed circuit television and to admit statements made by juvenile victims to a guidance counselor as substantive evidence to apply the statute because substantive evidence, testimony, and facts were required to determine the applicability of the statute. Commonwealth v. Maupin, 103 Va. Cir. 106, 2019 Va. Cir. LEXIS 444 (Orange County Sept. 14, 2019).

§ 18.2-67.9:1. Use of a certified facility dog for testimony in a criminal proceeding.

  1. As used in this section, "certified facility dog" means a dog that (i) has completed training and been certified by a program accredited by Assistance Dogs International or by another assistance dog organization that is a member of an organization whose main purpose is to improve training, placement, and utilization of assistance dogs and (ii) is accompanied by a duly trained handler.
  2. In any criminal proceeding, including preliminary hearings, the attorney for the Commonwealth or the defendant may apply for an order from the court allowing a certified facility dog to be present with a witness testifying before the court through in-person testimony or testimony televised by two-way closed-circuit television pursuant to § 18.2-67.9 .
  3. The court may enter an order authorizing a dog to accompany a witness while testifying at a hearing in accordance with subsection B if the court finds by a preponderance of the evidence that:
    1. The dog to be used qualifies as a certified facility dog;
    2. The use of a certified facility dog will aid the witness in providing his testimony; and
    3. The presence and use of the certified facility dog will not interfere with or distract from the testimony or proceedings.
  4. The party seeking such order shall apply for the order at least 14 days before the preliminary hearing, trial date, or other hearing to which the order is to apply.
  5. The court may make such orders as necessary to preserve the fairness of the proceeding, including imposing restrictions on and instructing the jury regarding the presence of the certified facility dog during the proceedings.
  6. Nothing contained in this section shall prevent the court from providing any other accommodations to a witness as provided by law.

    (2018, cc. 524, 699.)

§ 18.2-67.10. General definitions.

As used in this article:

  1. "Complaining witness" means the person alleged to have been subjected to rape, forcible sodomy, inanimate or animate object sexual penetration, marital sexual assault, aggravated sexual battery, or sexual battery.
  2. "Intimate parts" means the genitalia, anus, groin, breast, or buttocks of any person.
  3. "Mental incapacity" means that condition of the complaining witness existing at the time of an offense under this article which prevents the complaining witness from understanding the nature or consequences of the sexual act involved in such offense and about which the accused knew or should have known.
  4. "Physical helplessness" means unconsciousness or any other condition existing at the time of an offense under this article which otherwise rendered the complaining witness physically unable to communicate an unwillingness to act and about which the accused knew or should have known.
  5. The complaining witness's "prior sexual conduct" means any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article.
  6. "Sexual abuse" means an act committed with the intent to sexually molest, arouse, or gratify any person, where:
    1. The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts;
    2. The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts;
    3. If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts; or
    4. The accused forces another person to touch the complaining witness's intimate parts or material directly covering such intimate parts.

      (1981, c. 397; 1987, c. 277; 1993, c. 549; 1994, c. 568; 2004, c. 741.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

The 2004 amendments. - The 2004 amendment by c. 741 added a new subdivision 6 c and redesignated former subdivision 6 c as subdivision 6 d.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 26 Tort Actions: Other Common-Law and Statutory Remedies. § 26.12 Sexual Abuse. Friend.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, § 10; 15 M.J. Rape & Other Sexual Offenses, § 3.

CASE NOTES

Factor that elevates criminal act to felony is age of victim. - The use of identical language in these statutes defining sexual battery and aggravated sexual battery with reference to force, threat or intimidation makes it clear that the legislature did not intend for these factors to be the distinction between the two statutes. Rather, the factors that elevate the criminal act from the misdemeanor to the felony are the specific age of the victim, serious bodily or mental injury, or the use or threat of use of a dangerous weapon. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988).

Johnson v. Commonwealth , 5 Va. App. 529 (1988), was overruled as it was wrongly decided. The elements of the statute were clearly met as defendant touched the genitalia and buttocks of the victim to sexually arouse or gratify defendant, the touching was accomplished against the will of the complaining witness as the victim twice got up to try to get away from defendant, and the element of force was met as the victim testified that defendant woke up the victim and was holding the victim real close as defendant fondled the victim's genitals. Robinson v. Commonwealth, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Statute did not require force against eight-year-old victim. - Sections 18.2-67.10 and 18.2-67.3 were harmonious, neither negated the other, and both retained a substantive meaning consistent with established caselaw; there was no requirement to show force to prove charges under § 18.2-67.3 where the victim was eight years old. Martin v. Commonwealth,, 2005 Va. App. LEXIS 337 (Sept. 6, 2005), aff'd, 630 S.E.2d 291 (2006).

"Force" as used in § 18.2-67.10 included actual and constructive force, and constructive force included engaging in proscribed conduct with a victim who was under age of consent; the victim's age of eight years served as proof of both the force requirement and the age requirement, which was neither improper nor incongruous in defendant's prosecution for aggravated sexual battery. Martin v. Commonwealth, 272 Va. 31 , 630 S.E.2d 291, 2006 Va. LEXIS 64 (2006).

Statute did not require force against mentally incapacitated adult. - Sufficient evidence supported a conviction for aggravated sexual battery, in violation of § 18.2-67.3 , although there was no evidence of actual force, because constructive force existed where the victim was mentally incapacitated under subdivision 3 of § 18.2-67.10 and was incapable of legally consenting to the sexual touching. Section 18.2-67.3 did not require the use of actual force to establish sexual abuse when the complaining witness was mentally incapacitated. Consent without understanding was no consent at all. Nicholson v. Commonwealth, 56 Va. App. 491, 694 S.E.2d 788, 2010 Va. App. LEXIS 276 (2010).

Burden of proving mental incapacity. - A person may passively or suggestively take advantage of a mentally retarded or incapacitated individual; however, the fact that a victim may have diminished mental capacity does not relieve the Commonwealth of its burden of proving that the "mental incapacity" is that defined by subdivision 3 of this section. Adkins v. Commonwealth, 20 Va. App. 332, 457 S.E.2d 382 (1995).

Common-law battery compared with sexual battery. - The legislature imposed a greater burden on the Commonwealth to prove sexual battery than to prove common-law battery, the latter requiring only a showing of nonconsensual touching. To prove the crime of sexual battery, the Commonwealth has to establish beyond a reasonable doubt that the accused touched the intimate parts of the complaining witness, or that the complaining witness was forced to touch the intimate parts of the accused, with the intent to sexually molest, arouse or gratify any person. The acts must have been against the will of the complaining witness. Doss v. Commonwealth, No. 0019-85 (Ct. of Appeals July 30, 1986).

Previous false statements concerning sexual behavior not conduct. - Where defendant sought to prove for impeachment purposes that his daughter makes false statements concerning sexual behavior, such statements were not conduct within the meaning of § 18.2-67.7 , and, therefore, that section was inapplicable. Clinebell v. Commonwealth, 235 Va. 319 , 368 S.E.2d 263 (1988).

No requirement for corroboration for aggravated sexual battery. - The reasons that support the rule that a conviction for attempted rape may be supported solely upon the testimony of the victim without further corroboration are equally applicable to prosecutions for aggravated sexual battery, and there is no requirement for corroboration under § 18.2-67.3 . Garland v. Commonwealth, 8 Va. App. 189, 379 S.E.2d 146 (1989).

Aggravated sexual battery is different from attempted rape in that an intent to have sexual intercourse is not required; aggravated sexual battery is markedly similar to attempted rape where the victim is female and her genitalia is touched by the perpetrator's penis. Garland v. Commonwealth, 8 Va. App. 189, 379 S.E.2d 146 (1989).

"Sexual abuse." - Circuit court erred in convicting defendant of sexual battery by force because, while it was undisputed that defendant sexually abused the victim as that term was statutorily defined, the evidence failed to establish that the alleged touching was accomplished by the use of force sufficient to overcome the victim's will where the restraint employed by defendant was inherent in the act itself, and any durational evidence served only to demonstrate the non-consensual touching occurred. Robinson v. Commonwealth, No. 1679-17-2, 2019 Va. App. LEXIS 11 (Jan. 15, 2019), different results reached on reh'g, en banc, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Evidence supported defendant's conviction for sexual battery because not only did defendant touch or grab the victim's breasts but defendant also twisted as hard as defendant could and held on to the victim in that manner for about a minute, according to the victim's sibling, who was standing stunned next to the victim. Furthermore, it was undisputed on appeal that the battery occurred against the will of the victim and that the touching satisfied the statutory requirement of sexual abuse. Robinson v. Commonwealth, 70 Va. App. 509, 828 S.E.2d 269, 2019 Va. App. LEXIS 144 (2019).

Intent to gain sexual gratification not shown. - Disposition of founded, level-one sexual abuse was erroneous because there was no evidence that the father had an intent to sexually molest, arouse, or gratify; the father's testimony describing the occasions where he medically examined the child or administered suppositories rebutted an inference that the father intended to gain sexual gratification by touching the child on those occasions. Rice v. Va. Dep't of Soc. Servs.,, 2007 Va. App. LEXIS 123 (Mar. 27, 2007).

Intent to injure. - Even if a default judgment in creditor's state court action was sufficient for bankruptcy court to determine that issues were actually litigated for purposes of determining if debtor's confession of judgment was nondischargeable as a willful and malicious injury, causes of actual for sexual assault and battery and carnal knowledge of minor, to extent recognized under Virginia common law as torts distinct from common-law assault and battery, would not have required creditor to prove that debtor committed those acts with intent to injure. The bankruptcy looked to Virginia's criminal code to determine intent requirement for these torts. Lewis v. Long (In re Long), 504 Bankr. 424, 2014 Bankr. LEXIS 374 (Bankr. W.D. Va. Jan. 28, 2014).

Evidence held irrelevant to issue of intent. - Testimony of detective that videotapes seized from defendant's home during search were pornographic was irrelevant to show that defendant had criminal intent to sexually molest, arouse, or gratify himself under subdivision 6 of this section, where he was charged with the aggravated sexual battery of a seven-year old girl, as no causal relationship or logical connection existed between that characterization and the current charge; thus, such testimony should not have been admitted, was more prejudicial than probative, and was immaterial to issue of criminal intent. Quinones v. Commonwealth, 35 Va. App. 634, 547 S.E.2d 524, 2001 Va. App. LEXIS 337 (2001).

Testimony of daughter that defendant allegedly forced her to perform a sex act on him 20 years earlier was irrelevant to show that defendant had criminal intent to sexually molest, arouse, or gratify himself under subdivision 6 of this section, where he was charged with the aggravated sexual battery of a seven-year old girl, as no causal relationship or logical connection existed between the earlier incident and the current charge; thus, such testimony should not have been admitted, was more prejudicial than probative, and was impermissible prior bad act evidence. Quinones v. Commonwealth, 35 Va. App. 634, 547 S.E.2d 524, 2001 Va. App. LEXIS 337 (2001).

Mental incapacity need not be permanent condition. - Term "mental incapacity" as used in subdivision 3 of § 18.2-67.10 may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand "the nature or consequences of the sexual act." Molina v. Commonwealth, 272 Va. 666 , 636 S.E.2d 470, 2006 Va. LEXIS 106 (2006).

Sufficient evidence of mental incapacity. - In a prosecution for rape, the evidence was clearly sufficient to support an instruction on mental incapacity at the time of the alleged rape based on the victim's intoxication. Molina v. Commonwealth, 47 Va. App. 338, 624 S.E.2d 83, 2006 Va. App. LEXIS 6 (2006).

Jury was properly instructed that defendant could be found guilty of rape in violation of subsection A of § 18.2-61 if it found he had intercourse with the victim by using her mental incapacity. The evidence showed the victim had lost consciousness after a blow to the head, and blacked-out due to aggravation of her bipolar condition by alcohol and drug abuse; as used in § 18.2-67.10 , the term "mental incapacity" could extend to a transitory circumstance such as voluntary intoxication. Molina v. Commonwealth, 272 Va. 666 , 636 S.E.2d 470, 2006 Va. LEXIS 106 (2006).

Evidence clearly showed the 28-year-old victim, who had a performance IQ of 57, and was not able to live outside her family home, was not capable of giving consent to defendant, who offered to take her to work, but instead drove her to his home and had sex with her. Sene v. Commonwealth,, 2009 Va. App. LEXIS 333 (July 28, 2009).

There was sufficient evidence to convict appellant of rape where: (1) the victim testified that she woke up with sharp pains between her legs; (2) the sexual assault nurse examiner observed small hemorrhagic spots, abrasions, and skin breaking on the victim's genitalia, which she testified was consistent with trauma; (3) a rational trier of fact could find beyond a reasonable doubt that the degree of the victim's intoxication reached a point where she did not understand the nature or consequences of the sexual act; and (4) appellant knew of the victim's condition because he was at the party, and he was one of the people who walked her home from the party. Roberts v. Commonwealth,, 2010 Va. App. LEXIS 13 (Jan. 12, 2010).

Because the trial court properly found that the victim was mentally incapacitated at the time of the attempted rape, the victim was not legally capable of consenting to engage in sexual acts with defendant; defendant's contention that any sexual activity that he intended to engage in with the victim was based on mutual consent was irrelevant. Diggs v. Commonwealth, No. 2125-16-1, 2018 Va. App. LEXIS 22 (Jan. 30, 2018).

Denial of defendant's motion to strike on the ground of insufficient evidence of mental incapacity was not plainly wrong because a rational trier of fact could have found that at the time of the attempted rape, the victim was mentally incapacitated; a doctor testified that the victim functioned at the mental level of an eight to ten-year-old, the victim's mother testified that the victim was unable to tell the difference between right and wrong, and the victim was unable to live independently. Diggs v. Commonwealth, No. 2125-16-1, 2018 Va. App. LEXIS 22 (Jan. 30, 2018).

Insufficient evidence of mental incapacity. - Where complainant had advanced with her peers from middle school to high school during the period following the alleged rape, and a peer-comparison placed her only "slightly below average," the record failed to show beyond a reasonable doubt that at the time of the alleged crime that complainant suffered from a mental incapacity that prevented her from understanding the nature and consequences of the sexual act involved in such offense and about which the defendant knew or should have known. White v. Commonwealth, 23 Va. App. 593, 478 S.E.2d 713 (1996).

Proof of physical helplessness. - Evidence was sufficient to establish that defendant used his position of trust and the victim's vulnerable condition to commit forcible sodomy in violation of § 18.2-67.1 where: (1) although the victim was able to communicate and a conviction could not be based on physical helplessness, his Parkinson's disease severely limited his abilities; (2) defendant, while bathing the victim, took the victim's penis in his hand and washed him up and down, which made the victim uncomfortable; (3) defendant put the victim's penis in defendant's mouth for 15-20 seconds before the victim was able to move away from defendant; (4) defendant's claim that the victim's "body language" led him to believe the victim desired the contact was rejected as it was not unusual for a male patient to become sexually aroused while being bathed; and (5) the following day, the victim reported the incident, and as the victim made the report, he was "physically shaking," and "tears were coming down his eyes." Emerick v. Commonwealth, No. 3042-02-3, 2004 Va. App. LEXIS 152 (Ct. of Appeals Apr. 6, 2004).

Evidence was sufficient to convict defendant of rape as the victim was asleep and physically helpless at the time of the unwanted sexual contact because the victim explained that she was asleep in her room when she felt her pants being removed; she stated that she was half asleep when defendant's penis first entered her vagina; although defendant argued that the victim was fully aware during the incident, her testimony supported the jury's conclusion that she was sleeping and was not conscious when defendant removed her pants and penetrated her; and defendant's behavior after being confronted by the victim and her husband suggested that he knowingly took advantage of the victim's physical helplessness. Quisque v. Commonwealth,, 2016 Va. App. LEXIS 57 (Feb. 23, 2016).

Membership in association. - Defendant's membership in the North American Man-Boy Love Association and pornographic materials in his possession at the time of his arrest were admissible in order to prove that the defendant engaged in acts with the intent to sexually molest, arouse, or gratify any person when he massaged the victim's buttocks. Smith v. Commonwealth, No. 1546-97-4 (Ct. of Appeals Dec. 1, 1998).

Prior sexual conduct. - Exclusion of child sexual assault victim's journal, under Virginia's rape shield statute, § 18.2-67.7 , was in error, although harmless, as the purpose of the journals was to attack the victim's credibility, and the journals were proper impeachment; prior similar testimony was not considered prior sexual conduct, under subdivision 5 of § 18.2-67.10 , when offered to impeach the complaining witness by suggesting fabrication. Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340, 2003 Va. App. LEXIS 221 (2003).

"Intimate parts or material directly covering such intimate parts." - Defendant touched an "intimate part or material directly covering an intimate part" where record indicated that he placed his hand at a point where victim's shirt had breast pockets. Sanderson v. Commonwealth, No. 1555-98-1 (Ct. of Appeals Jan. 11, 2000).

Trial court properly held that the evidence, via the victim's testimony and demonstration as to how and where defendant touched him in the groin area, was sufficient as to the element of "intimate part." Hirst v. Commonwealth,, 2005 Va. App. LEXIS 175 (May 3, 2005).

Evidence sufficient to support conviction. - Sufficient evidence supported defendant's conviction for attempted aggravated sexual battery in violation of §§ 18.2-67.3 , 18.2-67.5 , and 18.2-67.10 , because the trial court accepted the testimony of the child victim that defendant touched the clothing covering her breasts and private parts as she exited the school bus. In addition, the trial court viewed a video recording and found it disclosed that something happened on the bus. Gallier v. Commonwealth,, 2012 Va. App. LEXIS 60 (Mar. 6, 2012).

Circuit court did not err in finding that defendant abused, sexually or otherwise, his girlfriend's child because defendant's intent could be inferred where his girlfriend's landlord testified that she clearly saw defendant put his mouth on the child's "private parts" when the child was not wearing a diaper, that, although defendant was fully clothed, his zipper was down, and that he "slowly" rubbed the child down his body. Chavez v. Arlington County Dep't of Human Servs.,, 2014 Va. App. LEXIS 195 (May 20, 2014).

Sufficient evidence supported defendant's conviction of abduction with intent to defile, as he used force to prevent the victim from continuing her run and wrapped his arms around her, such that she could not move, which showed that defendant intended to deprive the victim of her personal liberty; furthermore, defendant intended to sexually molest the victim because he intentionally put his hand on her breast and left it there, and defendant's use of force and restraint of the victim was separate, yet interrelated, to the sexual assault. Billow v. Commonwealth,, 2017 Va. App. LEXIS 214 (Aug. 22, 2017).

Sufficient evidence supported the jury's finding that within a two-year period defendant sexually abused more than one complaining witness intentionally and without the consent of the complaining witness because he did not challenge the elements of sexual battery regarding two victims. Rosana v. Commonwealth, No. 1656-17-4, 2018 Va. App. LEXIS 295 (Oct. 30, 2018).

Commonwealth established sufficient evidence of intent to prove sexual battery because the victims testified that defendant, a licensed optometrist, touched their intimate parts during eye exams; the jury reasonably could conclude from the evidence that because contact with a patient's or doctor's intimate areas was unwarranted during an eye exam, defendant touched one victim and caused the other victim to touch him for his own sexual gratification. Rosana v. Commonwealth, No. 1656-17-4, 2018 Va. App. LEXIS 295 (Oct. 30, 2018).

Trial court properly convicted defendant of aggravated sexual battery of his stepdaughter because the stepdaughter's testimony proved that defendant was awake during the touching, defendant's intent to sexually abuse the stepdaughter appeared not only on the date of the touching, but also was manifested in a course of conduct indicating he had a sexual attraction to the stepdaughter where he had made numerous sexual comments about her breasts, it could be reasonably inferred that he had taken nude photos of the stepdaughter while she was asleep, and he sent her a text message that he missed seeing her nude. Bush v. Commonwealth, No. 0409-18-1, 2019 Va. App. LEXIS 91 (Apr. 16, 2019).

Evidence was clearly sufficient to support appellant's conviction for aggravated sexual battery where victim testified that appellant removed her underpants and all of his own clothing, and she demonstrated with the anatomically correct dolls what transpired next, and after observing her demonstration, the prosecutor stated, "Let the record show that she's placing the hand of the doll on the private area, in the groin area, of the female doll," and furthermore, the fact that appellant removed all of his clothing before the touching took place and that the touching was of sufficient intensity and duration to hurt the prosecutrix and make her vagina including her lips and her behind red provides sufficient circumstantial evidence to support the conclusion that he acted with the requisite intent to molest or gratify either himself or the victim, or both. Hargrove v. Commonwealth, No. 2421-92-2, 1994 Va. App. LEXIS 176 (Ct. of Appeals Mar. 29, 1994).

Applied in Walker v. Commonwealth, 12 Va. App. 438, 404 S.E.2d 394 (1991); Previtire v. Commonwealth, 16 Va. App. 869, 433 S.E.2d 515 (1993); Howard v. Commonwealth, 21 Va. App. 473, 465 S.E.2d 142 (1995); Carter v. Gordon, 28 Va. App. 133, 502 S.E.2d 697 (1998); Wactor v. Commonwealth, 38 Va. App. 375, 564 S.E.2d 160, 2002 Va. App. LEXIS 326 (2002); M. G. v. Albemarle County Dep't of Soc. Servs., 41 Va. App. 170, 583 S.E.2d 761, 2003 Va. App. LEXIS 406 (2003); Jones v. West, 46 Va. App. 309, 616 S.E.2d 790 (2005).

CIRCUIT COURT OPINIONS

Evidence of diminished capacity. - Because the defense that defendant sought to assert, that defendant's mental incapacity prevented defendant from knowing or having the capacity to know that the statutory rape victim was mentally incapacitated to consent to sexual intercourse, was unavailable to defendant, the evidence, which defendant maintained defense counsel should have been presented to support the defense, was irrelevant. Desper v. Woodson, 89 Va. Cir. 32, 2014 Va. Cir. LEXIS 114 (Augusta County Mar. 13, 2014).

Accusation not conduct. - Defendant did not seek to use the prior false accusation to prove that the child engaged in prior sexual conduct or that she has an unchaste character; rather, defendant wanted to demonstrate that the child was not credible and had a propensity to make false accusations of sexual abuse; thus, the prior accusation was not conduct and Virginia's Rape Shield Law did not apply. Commonwealth v. Durham, 91 Va. Cir. 470, 2016 Va. Cir. LEXIS 3 (Norfolk Jan. 14, 2016).

Prior sexual conduct. - Subdivision 5 did not apply to a request to introduce evidence of the complainant's prior false accusation of sexual abuse where defendant did not seek to use them to prove that the she engaged in prior sexual conduct or that she had an unchaste character, but sought to use it to demonstrate that the complainant was not credible and had a propensity to make false accusations of sexual abuse. Commonwealth v. Durham,, 2016 Va. Cir. LEXIS 2 (Norfolk Jan. 13, 2016).

Article 8. Seduction.

§§ 18.2-68 through 18.2-70.

Repealed by Acts 1994, c. 59.

Article 9. Abortion.

§ 18.2-71. Producing abortion or miscarriage, etc.; penalty.

Except as provided in other sections of this article, if any person administer to, or cause to be taken by a woman, any drug or other thing, or use means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and thereby destroy such child, or produce such abortion or miscarriage, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-62; 1960, c. 358; 1970, c. 508; 1975, cc. 14, 15.)

Cross references. - As to limitation of prosecution, see § 19.2-8 .

As to prohibition against partial birth infanticide, and penalty therefor, see § 18.2-71.1 .

Law review. - For note on abortion, Medicaid and equal protection, see 62 Va. L. Rev. 788 (1976).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abortion, § 1.

CASE NOTES

United States Supreme Court ruling regarding abortion. - A state criminal abortion statute that excepts from criminality only a life saving procedure on behalf of the mother without regard to pregnancy stage and without recognition of the other interests involved, is violative of the due process clause of the Fourteenth Amendment. (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability the state, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). See also Webster v. Reproductive Health Servs., 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989) and Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992).

Constitutionality. - While it is true that a statute which imposes a duty upon a physician to take affirmative action to preserve a fetus, irrespective of the stage of pregnancy and the viability of the fetus, is constitutionally impermissible, after viability the sovereign has a compelling interest sufficient to justify regulation reasonably designed to preserve the life of the fetus. The proscription in this section against destruction of the fetus is not a command to preserve it; and, while subsection c of § 18.2-74 requires a physician to utilize fetal life support measures during the third trimester if there is any clearly visible evidence of viability, nothing in this article imposes such an affirmative duty during the pre-viable stages of pregnancy. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Section 54.1-2917 was clearly enacted in aid of and for the purpose of facilitating the standards established in the state abortion statute, § 18.2-71 , et seq. Simopoulos v. Virginia State Bd. of Medicine, 644 F.2d 321 (4th Cir. 1981).

Abortion and miscarriage synonymous. - Abortion is defined as "the expulsion of the fetus at so early a period of uterogestation that it has not acquired the power of sustaining an independent life." Although there may be a technical distinction recognized in medicine between abortion and miscarriage, the words are usually synonymous in law. Coffman v. Commonwealth, 188 Va. 553 , 50 S.E.2d 431 (1948); Anderson v. Commonwealth, 190 Va. 665 , 58 S.E.2d 72 (1950).

Section was passed to protect child, and society. - This section was passed, not for the protection of the pregnant woman, but for the protection of the unborn child and through it society. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217 (1949).

The crime denounced is not limited to abortion in its narrow meaning of expulsion of the fetus, but includes, as it plainly declares, the use of any means with intent to destroy an unborn child, resulting in the destruction of such child. Coffman v. Commonwealth, 188 Va. 553 , 50 S.E.2d 431 (1948); Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

The intent with which the means are used is the controlling factor. It seems clear from the language of this section that more than one intended consequence is included. If only the intent to cause an abortion, in the sense of expulsion of the fetus, and the causing of such abortion, were meant to be covered, the words "intent to destroy her unborn child," and "thereby destroy such child" would be useless. It is not to be presumed that those words were used for no purpose and mean nothing in the statute. Anderson v. Commonwealth, 190 Va. 665 , 58 S.E.2d 72 (1950).

Fetus need not be living at time of act. - This section is in two parts. The first part deals with the destruction of an unborn child by administering to the woman any drug or other thing, or using any means with intent so to do. The second portion of the statute deals with performing these same acts with intent to produce and producing an abortion or miscarriage. Nowhere in the section is there any requirement that the fetus be living at the time of the act in order to constitute a violation, but under the first portion the life of the fetus at the time of the act is presupposed from the words "destroy her unborn child." Anderson v. Commonwealth, 190 Va. 665 , 58 S.E.2d 72 (1950).

If the means used with the intent to destroy an unborn child result in the death of the mother and thereby the destruction of the child, the death of the mother is an agency set in motion by the means used to destroy the child. If the destruction of the child - the intended result - was accomplished by the means used, the perpetrator is guilty, under this section, of using means with intent to destroy the child, and thereby destroying the child, even though the death of the mother was not intended. Coffman v. Commonwealth, 188 Va. 553 , 50 S.E.2d 431 (1948).

Medical necessity exception matter of defense. - Where defendant's indictment for violation of abortion statutes did not attempt to negate the exception of a medical necessity to treat the patient, the exception was a matter of defense for the defendant to assert and not for the indictment to deny since the exception was made in a substantive section subsequent to the enacting section of the abortion statutes. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Unnecessary to charge intent that fetus be expelled outside hospital. - Where defendant was convicted under an indictment charging that he employed procedures intended to initiate abortion during the second trimester of pregnancy and that he did so outside of a hospital licensed by the state, it was unnecessary to charge that he intended his patient to expel the fetus outside a hospital, since the proviso in § 18.2-73 applies to all procedures performed during the entire process, and since the definition of abortion is not limited to "expulsion of the fetus." Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Option with respect to allegation of causation. - The Commonwealth had the option of alleging and proving that a saline injection administered by the defendant caused either the death of the fetus or the expulsion of the fetus in a prosecution for violation of the abortion statutes, since the crime is not limited to a narrow meaning of expulsion of the fetus. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Sufficiency of evidence to prove causation. - Absent evidence of any other causative factor, evidence that the defendant acknowledged administering a saline solution with intent to terminate pregnancy and that he realized that the procedure would destroy the fetus, testimony by the patient that the defendant told her the fetus was destroyed, and testimony by the medical examiner that the fetus was born dead, was sufficient to show that the saline solution destroyed the fetus. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Declaratory or injunctive relief against section. - Where plaintiff was convicted under this section, his attempt to secure either declaratory or injunctive relief against this section was foreclosed by the United States Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Simopoulos v. Virginia State Bd. of Medicine, 644 F.2d 321 (4th Cir. 1981).

Unprofessional conduct. - Order of the Virginia Board of Medicine suspending a physician's license for unprofessional conduct was supported by evidence that the physician initiated an abortion without performing a sonogram to determine the gestational age of the fetus because the physician's failure to correctly estimate the age of the fetus caused the physician to perform a criminal abortion, under § 18.2-71 , as the fetus's age was such that the procedure had to be performed in a hospital, under § 18.2-73 . Abofreka v. Va. Bd. of Med., No. 2793-06-4, 2007 Va. App. LEXIS 304 (Ct. of Appeals Aug. 14, 2007).

Applied in Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998); Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998).

CIRCUIT COURT OPINIONS

Construction. - Because the term "any person" means any individual human being, the term, as used in § 18.2-71 , encompasses the entire universe of people, including a pregnant woman. There is no authority for excluding a pregnant woman from that universe. If the legislature had intended to exclude a pregnant woman from the inclusive language, the legislature would have said so. Commonwealth v. Roberts, 96 Va. Cir. 378, 2017 Va. Cir. LEXIS 313 (Chesterfield County Sept. 20, 2017).

Legislature's use of the term "any person" in § 18.2-71 , the absence of any other word or coupling of words limiting that inclusive language, and the absence of any specific exception is highly probative of its intent not to exclude the expectant woman from the inclusive language utilized in the statute. Commonwealth v. Roberts, 96 Va. Cir. 378, 2017 Va. Cir. LEXIS 313 (Chesterfield County Sept. 20, 2017).

Purposes. - Supreme Court of Virginia has articulated several obvious purposes of § 18.2-71 , namely: (1) protection of the expectant woman; (2) protection of the unborn child; and (3) an all-inclusive prohibition against any means of abortion. The Supreme Court did not make protection of the unborn child contingent upon the identity of the individual committing the proscribed acts. Nor did it state that the prohibited means are transformed into lawful means based upon the identity of the individual committing the proscribed acts. Accordingly, the protective covering extended to the unborn child pursuant to § 18.2-71 can be breached during the third trimester only pursuant to § 18.2-74 , the statute providing the conditions under which an abortion may be lawfully performed after the second trimester of pregnancy. Commonwealth v. Roberts, 96 Va. Cir. 378, 2017 Va. Cir. LEXIS 313 (Chesterfield County Sept. 20, 2017).

Circuit Court of Chesterfield County, Virginia, finds that plain and unambiguous language of § 18.2-71 expressly states a change in the common law regarding criminalization of abortion performed by third-parties and self-induced abortions. Commonwealth v. Roberts, 96 Va. Cir. 378, 2017 Va. Cir. LEXIS 313 (Chesterfield County Sept. 20, 2017).

Motion to dismiss denied. - Defendant's motion to dismiss an indictment charging her with a violation of § 18.2-71 was denied where the legislature had not excluded expectant women from the inclusive language of § 18.2-71 , the protective covering extended to the unborn child pursuant to § 18.2-71 could be breached during the third trimester only pursuant to § 18.2-74 , and § 18.2-71 expressly stated a change in the common law regarding criminalization of self-induced abortions. Commonwealth v. Roberts, 96 Va. Cir. 378, 2017 Va. Cir. LEXIS 313 (Chesterfield County Sept. 20, 2017).

§ 18.2-71.1. Partial birth infanticide; penalty.

  1. Any person who knowingly performs partial birth infanticide and thereby kills a human infant is guilty of a Class 4 felony.
  2. For the purposes of this section, "partial birth infanticide" means any deliberate act that (i) is intended to kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother, and that (ii) does kill such infant, regardless of whether death occurs before or after extraction or expulsion from its mother has been completed.

    The term "partial birth infanticide" shall not under any circumstances be construed to include any of the following procedures: (i) the suction curettage abortion procedure, (ii) the suction aspiration abortion procedure, (iii) the dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother, or (iv) completing delivery of a living human infant and severing the umbilical cord of any infant who has been completely delivered.

  3. For the purposes of this section, "human infant who has been born alive" means a product of human conception that has been completely or substantially expelled or extracted from its mother, regardless of the duration of pregnancy, which after such expulsion or extraction breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.
  4. For purposes of this section, "substantially expelled or extracted from its mother" means, in the case of a headfirst presentation, the infant's entire head is outside the body of the mother, or, in the case of breech presentation, any part of the infant's trunk past the navel is outside the body of the mother.
  5. This section shall not prohibit the use by a physician of any procedure that, in reasonable medical judgment, is necessary to prevent the death of the mother, so long as the physician takes every medically reasonable step, consistent with such procedure, to preserve the life and health of the infant. A procedure shall not be deemed necessary to prevent the death of the mother if completing the delivery of the living infant would prevent the death of the mother.
  6. The mother may not be prosecuted for any criminal offense based on the performance of any act or procedure by a physician in violation of this section.

    (2003, cc. 961, 963.)

Law review. - For 2006 survey article, "Health Care Law," see 41 U. Rich. L. Rev. 179 (2006).

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.

Constitutionality. - Insofar as plaintiffs purported to mount an as-applied challenge to Virginia's Partial Birth Infanticide Act, the court concluded that they had not presented sufficiently concrete circumstances in which the as-applied challenge could be resolved, but recognized that the Act was open to a proper as-applied challenge in a discrete case. Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 2009 U.S. App. LEXIS 13593 (4th Cir. 2009).

Virginia's Partial Birth Infanticide Act provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it, and therefore the Virginia Act is constitutional. Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 2009 U.S. App. LEXIS 13593 (4th Cir. 2009).

Plaintiffs' facial challenge to Virginia's Partial Birth Infanticide Act failed, as there was little or no evidence in the record suggesting the inevitability of the "accidental" intact dilation and evacuation abortion that would have violated the Virginia Act, and to the extent that such a circumstance might have arisen in a rare case, the doctor had adequate alternatives so as to preclude a finding on a facial challenge that the statute was unconstitutional in "a large fraction" of the cases in which it was relevant (when the fetus appeared at the cervix head first and passed the anatomical landmarks, there was never a need to perform an overt act to kill it, as it could simply be removed from the woman intact, and in the rare event that the fetus appeared at the cervix in breech position and its skull became lodged in the cervix, the woman's life was in danger, and the doctor could take any step within reasonable medical judgment that was necessary to prevent the mother's death). Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 2009 U.S. App. LEXIS 13593 (4th Cir. 2009).

Standard dilation and evacuations. - Provisions for a safe harbor and affirmative defenses, as well as the requirement of "an overt act," ensured that Virginia's Partial Birth Infanticide Act would not create a barrier or have a chilling effect on a woman's right to have a standard dilation and evacuation or her physician's ability to undertake the procedure without fear of criminal liability. Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 2009 U.S. App. LEXIS 13593 (4th Cir. 2009).

Exclusion of evidence. - Even if the district court abused its discretion in excluding the Commonwealth's opinion evidence from the summary judgment process, it did not change the fact that § 18.2-71.1 , which criminalized certain partial-birth abortion methods, was facially unconstitutional because it did not contain an exception to preserve a woman's health. The Commonwealth's evidence, at most, indicated some division of medical opinion on the question of whether banning the intact dilation and evacuation and dilation and extraction procedures could have endangered a woman's health, but a unanimity of medical opinion was not required. Richmond Med. Ctr. for Women v. Hicks, 409 F.3d 619, 2005 U.S. App. LEXIS 10186 (4th Cir. 2005) reh'g denied, 422 F.3d 160, 2005 U.S.App. LEXIS 19067 (4th Cir. 2005), vacated and remanded, Herring v. Richmond Medical Ctr. for Women, 127 S. Ct. 2094, 167 L. Ed. 2d 810, 2007 U.S. LEXIS 4339 (2007) (for further consideration in light of Gonzales v. Carhart , 127 S. Ct. 1610, 167 L. Ed. 2d 480, 2007 U.S. LEXIS 4338 (April 18, 2007)).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases below were decided under former § 18.2-74.2 .

Constitutionality. - Former § 18.2-74.2 was unconstitutional under the due process clause of the Fourteenth Amendment in that it impermissibly infringed upon the fundamental right to choose an abortion; because it imposed an undue burden on that right; and because it contained no health exception and an inadequate life exception. Richmond Med. Ctr. for Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), aff'd, 224 F.3d 337 (4th Cir. 2000).

Former § 18.2-74.2 violated the due process clause of the Fourteenth Amendment to the United States Constitution because it did not contain an exception for pre-viability or post-viability abortion procedures that were necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Richmond Med. Ctr. for Women v. Gilmore, 224 F.3d 337, 2000 U.S. App. LEXIS 19111 (4th Cir. 2000).

Vagueness. - Plaintiffs, who were Virginia physicians, medical clinics, and non-profit corporations offering reproductive health services and obstetrical and gynecological medical services, including abortions, to women in Virginia, in their request for injunctive relief, raised questions as to the vagueness of former § 18.2-74.2 , going to the merits so serious, substantial, difficult and doubtful, as to make them grounds for more deliberate investigation. Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998).

Void for vagueness. - Plaintiffs challenging the constitutionality of former § 18.2-74.2 , raised questions so serious, substantial, difficult and doubtful as to make them grounds for more deliberate investigation. Indeed, plaintiffs were likely to succeed on their challenge that the section was void for vagueness, as there were various constructions, definitions and interpretations of the term "partial birth abortion," as well as the constituent definitional elements of that term including "delivers," "living fetus" and "substantial portion thereof." Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

Former § 18.2-74.2 did not give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden by the statute. Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

"Partial birth abortion" lacks medical meaning. - The term "partial birth abortion," as a whole and as defined in former § 18.2-74.2 , is impermissibly vague in that the term has no medical meaning and no one, not even those charged with enforcing it, know its precise contours. Richmond Med. Ctr. for Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), aff'd, 224 F.3d 337 (4th Cir. 2000).

Undue burden on woman's right to seek abortion pre-viability. - On a motion for preliminary injunction, plaintiffs, who were Virginia physicians, medical clinics, and non-profit corporations offering reproductive health services and obstetrical and gynecological medical services, including abortions, to women in Virginia, established a likelihood of success in showing that, without a maternal health exception, former § 18.2-74.2 placed an undue burden on a woman's right to seek an abortion pre-viability because it had the effect of subjecting women to an appreciably greater risk of injury or death than would be the case if these women could rely upon their physician to perform the currently accepted and widely used method of abortion. Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998); Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

Former § 18.2-74.2 operated to ban dilation and evacuation procedure, indisputably the most common and safest method of abortion in the second trimester of pregnancy. Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

Former § 18.2-74.2 denied women seeking a late-term (but pre-viability) abortion access to a safe procedure, and instead, in those cases in which the statute was implicated, required them to undergo a statistically more risky procedure; this amounted to an undue burden. Richmond Med. Ctr. for Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), aff'd, 224 F.3d 337 (4th Cir. 2000).

And was unconstitutional due to lack of health exception and inadequate life exception. - The United States Supreme Court has made it clear that the state may not proscribe abortion without providing an exception for procedures that are necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Former § 18.2-74.2 contained no health exception and an inadequate life exception. Richmond Med. Ctr. for Women v. Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), aff'd, 224 F.3d 337 (4th Cir. 2000).

Public interest favored issuance of injunction to enjoin former § 18.2-74.2 , for the public is certainly interested in the prevention of enforcement of laws which may be unconstitutional. Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

In granting injunctive relief, the court took into account the ambiguity in the statutory terms and the fact that the defendants were unwilling to agree that procedures regularly performed by the plaintiffs were excluded from the reach of the Act. The Court also considered the nature of the injury likely to be sustained by the plaintiffs and their patients, absent such an injunction, and the lack of harm to the defendants, as well as their unencumbered ability to enforce Virginia's existing abortion regulations. Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

Absent injunction, plaintiffs physicians would have suffered irreparable harm through the threat of criminal prosecution for exercising what they considered safe medical judgment in the treatment of their patients and for performing abortions which, under Roe and Casey , they were permitted to perform. Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998).

§ 18.2-72. When abortion lawful during first trimester of pregnancy.

Notwithstanding any of the provisions of § 18.2-71 , it shall be lawful for (i) any physician licensed by the Board of Medicine to practice medicine and surgery or (ii) any person jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner and acting within such person's scope of practice to terminate or attempt to terminate a human pregnancy or aid or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman during the first trimester of pregnancy.

(1975, cc. 14, 15; 2020, cc. 898, 899.)

Cross references. - As to prohibition against partial birth infanticide, and penalty therefor, see § 18.2-71.1 .

The 2020 amendments. - The 2020 amendments by cc. 898 and 899 are identical, and inserted the (i) designation and inserted "or (ii) any person jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner and acting within such person's scope of practice."

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

CASE NOTES

This statute pertaining to first trimester abortions conforms to the constitutional principles expressed in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045 (4th Cir. 1980).

Applied in Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045 (4th Cir. 1980); Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998); Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Commonwealth has authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations. See opinion of Attorney General to The Honorable Ralph K. Smith, Member, Senate of Virginia, 2010 Va. AG LEXIS 45 (8/20/10); Opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 10-012, 2010 Va. AG LEXIS 44 (8/20/10).

§ 18.2-73. When abortion lawful during second trimester of pregnancy.

Notwithstanding any of the provisions of § 18.2-71 and in addition to the provisions of § 18.2-72 , it shall be lawful for any physician licensed by the Board of Medicine to practice medicine and surgery, to terminate or attempt to terminate a human pregnancy or aid or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman during the second trimester of pregnancy and prior to the third trimester of pregnancy provided such procedure is performed in a hospital licensed by the State Department of Health or operated by the Department of Behavioral Health and Developmental Services.

(1975, cc. 14, 15; 2009, cc. 813, 840.)

Cross references. - As to prohibition against partial birth infanticide, and penalty therefor, see § 18.2-71.1 .

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical and substituted "operated by the Department of Behavioral Health and Developmental Services" for "under the control of the State Board of Mental Health, Mental Retardation and Substance Abuse Services."

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For note on permissible limits of abortion regulation in light of Simopoulos v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983), see 18 U. Rich. L. Rev. 137 (1983).

For annual survey of Virginia law article, "Administrative Law," see 47 U. Rich. L. Rev. 7 (2012).

CASE NOTES

Constitutionality. - The hospital requirement contained in the proviso in this section is constitutionally permissible, since it is reasonably related to the state's compelling interest in preserving and protecting maternal health, and since it does not unreasonably limit a pregnant woman's access to medical care and thereby abridge her right to elect to abort. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Virginia's requirement that second-trimester abortions be performed in licensed clinics is not an unreasonable means of furthering the state's compelling interest in protecting the woman's own health and safety. The state has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. Simopoulos v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Section consistent with normal medical practice. - This section does not require that the patient be hospitalized as an inpatient or that the abortion be performed in a full-service, acute-care hospital. Rather, the state's requirement that second-trimester abortions be performed in licensed clinics appears to comport with accepted medical practice, and leaves the method and timing of the abortion precisely where they belong - with the physician and the patient. Simopoulos v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

The hospital proviso applies to all procedures performed during the entire abortion process, including the means employed with intent to initiate the process. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Thus, unnecessary to charge intent that fetus be expelled outside hospital. - Where defendant was convicted under an indictment charging that he employed procedures intended to initiate abortion during the second trimester of pregnancy and that he did so outside of a hospital licensed by the state, it was unnecessary to charge that he intended his patient to expel the fetus outside a hospital. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Applied in Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998); Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Commonwealth has authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations. See opinion of Attorney General to The Honorable Ralph K. Smith, Member, Senate of Virginia, 2010 Va. AG LEXIS 45 (8/20/10); Opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 10-012, 2010 Va. AG LEXIS 44 (8/20/10).

§ 18.2-74. When abortion or termination of pregnancy lawful after second trimester of pregnancy.

Notwithstanding any of the provisions of § 18.2-71 and in addition to the provisions of §§ 18.2-72 and 18.2-73 , it shall be lawful for any physician licensed by the Board of Medicine to practice medicine and surgery to terminate or attempt to terminate a human pregnancy or aid or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman in a stage of pregnancy subsequent to the second trimester provided the following conditions are met:

  1. Said operation is performed in a hospital licensed by the Virginia State Department of Health or operated by the Department of Behavioral Health and Developmental Services.
  2. The physician and two consulting physicians certify and so enter in the hospital record of the woman, that in their medical opinion, based upon their best clinical judgment, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman.
  3. Measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability.

    (1975, cc. 14, 15; 2009, cc. 813, 840.)

Cross references. - As to prohibition against partial birth infanticide, and penalty therefor, see § 18.2-71.1 .

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical and substituted "operated by the Department of Behavioral Health and Developmental Services" for "under the control of the State Board of Mental Health, Mental Retardation and Substance Abuse Services" in subdivision (a).

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

CASE NOTES

Constitutionality. - While it is true that a statute which imposes a duty upon a physician to take affirmative action to preserve a fetus, irrespective of the stage of pregnancy and the viability of the fetus, is constitutionally impermissible, after viability the sovereign has a compelling interest sufficient to justify regulation reasonably designed to preserve the life of the fetus. The proscription in § 18.2-71 against destruction of the fetus is not a command to preserve it; and, while subdivision (c) of this section requires a physician to utilize fetal life support measures during the third trimester if there is any clearly visible evidence of viability, nothing in this article imposes such an affirmative duty during the pre-viable stages of pregnancy. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Applied in Richmond Medical Ctr. for Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998); Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998).

CIRCUIT COURT OPINIONS

Construction. - Circuit Court of Chesterfield County, Virginia, finds that the text of § 18.2-74 limits the manner in which abortions subsequent to the second trimester may be performed and evinces the intent of the legislature that such abortions shall not be done in any other way. Commonwealth v. Roberts, 96 Va. Cir. 378, 2017 Va. Cir. LEXIS 313 (Chesterfield County Sept. 20, 2017).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Commonwealth has authority to promulgate regulations for facilities in which first trimester abortions are performed as well as for providers of first trimester abortions, so long as the regulations adhere to constitutional limitations. See opinion of Attorney General to The Honorable Ralph K. Smith, Member, Senate of Virginia, 2010 Va. AG LEXIS 45 (8/20/10); Opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 10-012, 2010 Va. AG LEXIS 44 (8/20/10).

§ 18.2-74.1. Abortion, etc., when necessary to save life of woman.

In the event it is necessary for a licensed physician to terminate a human pregnancy or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman in order to save her life, in the opinion of the physician so performing the abortion or causing the miscarriage, §§ 18.2-71 , 18.2-73 and 18.2-74 shall not be applicable.

(Code 1950, § 18.1-62.3; 1970, c. 508; 1975, cc. 14, 15.)

Cross references. - As to prohibition against partial birth infanticide, and penalty therefor, see § 18.2-71.1 .

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For note discussing access of minors to contraceptives, abortion, and sterilization without parental consent, see 12 U. Rich. L. Rev. 221 (1977).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abortion, §§ 1, 2; 9B M.J. Indictments, Informations and Presentments, § 25.

CASE NOTES

Medical necessity exception matter of defense. - Where defendant's indictment for violation of abortion statutes did not attempt to negate the exception of a medical necessity to treat the patient, the exception was a matter of defense for the defendant to assert and not for the indictment to deny since the exception was made in a substantive section subsequent to the enacting section of the abortion statutes. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

And burden of negating necessity on Commonwealth. - Once a defendant invokes this section as a defense in a prosecution for violation of the abortion statutes, the Commonwealth has the burden of negating maternal health necessity beyond a reasonable doubt. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

The prosecution is not obligated to prove lack of medical necessity beyond a reasonable doubt until appellant invokes medical necessity as a defense. Simopoulos v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Evidence sufficient to refute claim of maternal health necessity. - See Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Applied in Richmond Medical Ctr. for Women v. Gilmore, 11 F. Supp. 2d 795 (E.D. Va. 1998).

§ 18.2-74.2.

Repealed by Acts 2003, cc. 961 and 963.

Cross references. - As to prohibition against partial birth infanticide, and penalty therefor, see § 18.2-71.1 .

§ 18.2-75. Conscience clause.

Nothing in §§ 18.2-72 , 18.2-73 or § 18.2-74 shall require a hospital or other medical facility or physician to admit any patient under the provisions hereof for the purpose of performing an abortion. In addition, any person who shall state in writing an objection to any abortion or all abortions on personal, ethical, moral or religious grounds shall not be required to participate in procedures which will result in such abortion, and the refusal of such person, hospital or other medical facility to participate therein shall not form the basis of any claim for damages on account of such refusal or for any disciplinary or recriminatory action against such person, nor shall any such person be denied employment because of such objection or refusal. The written objection shall remain in effect until such person shall revoke it in writing or terminate his association with the facility with which it is filed.

(Code 1950, § 18.1-63.1; 1974, c. 679; 1975, cc. 14, 15.)

Law review. - For note, "Patient Autonomy Versus Religious Freedom: Should State Legislatures Require Catholic Hospitals to Provide Emergency Contraception to Rape Victims," see 60 Wash. & Lee L. Rev. 1007 (2003).

For article, "Taking Conscience Seriously," see 98 Va. L. Rev. 1501 (2012).

Michie's Jurisprudence. - For related discussion, see 19 M.J. Warrants, § 2.

CASE NOTES

Restrictions on abortion services not required. - While this section permits private hospital corporations to place certain restrictions on abortion services or to refuse them altogether, it does not require them to do so, and it need not forbid them to do so. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Statute of limitations. - Where plaintiffs questioned whether Virginia's Conscience Clause imbued their claims with sufficient implied contractual obligations to warrant application of Virginia's three-year contract limitation period, § 8.01-246 , to a wrongful discharge claim based on the Conscience Clause, the court rejected a similar argument, holding that wrongful discharge claims fall under Virginia's catchall statute of limitations, § 8.01-248 . Michael v. Sentara Health Sys., 939 F. Supp. 1220 (E.D. Va. 1996).

§ 18.2-76. Informed written consent required.

Before performing any abortion or inducing any miscarriage or terminating a pregnancy as provided in § 18.2-72 , 18.2-73 , or 18.2-74 , the physician or, if such abortion, induction, or termination is to be performed pursuant to § 18.2-72 , either the physician or the nurse practitioner authorized pursuant to clause (ii) of § 18.2-72 to perform such abortion, induction, or termination shall obtain the informed written consent of the pregnant woman. However, if the woman has been adjudicated incapacitated by any court of competent jurisdiction or if the physician or, if the abortion, induction, or termination is to be performed pursuant to § 18.2-72, either the physician or the nurse practitioner authorized pursuant to clause (ii) of § 18.2-72 to perform such abortion, induction, or termination knows or has good reason to believe that such woman is incapacitated as adjudicated by a court of competent jurisdiction, then only after permission is given in writing by a parent, guardian, committee, or other person standing in loco parentis to the woman, may the physician or, if the abortion, induction, or termination is to be performed pursuant to § 18.2-72, either the physician or the nurse practitioner authorized pursuant to clause (ii) of § 18.2-72 to perform such abortion, induction, or termination perform the abortion or otherwise terminate the pregnancy.

(Code 1950, § 18.1-62.1; 1970, c. 508; 1972, c. 823; 1975, cc. 14, 15; 1979, c. 250; 1997, c. 801; 2001, cc. 473, 477; 2003, c. 784; 2012, c. 131; 2020, cc. 898, 899.)

Editor's note. - Acts 1997, c. 801, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

Acts 2001, cc. 473 and 477, cl. 2, are identical, and provide: "That the provisions of this act shall become effective on October 1, 2001."

The 1997 amendment, effective January 1, 1998, in the first paragraph, substituted "woman has been adjudicated incapacitated by" for "woman shall be incompetent as adjudicated by," substituted "woman is incapacitated" for "woman is incompetent," substituted "to the woman" for "to such incompetent," and substituted "the abortion" for "such abortion."

The 2001 amendments. - The 2001 amendments by cc. 473 and 477, effective October 1, 2001, are identical, and added the subsection A designator to the first paragraph, and in subsection A, deleted "for" following "as provided," substituted "However, if the" for "provided, however, if such," and deleted the second paragraph, which formerly read: "The physician shall inform the pregnant woman of the nature of the proposed procedure to be utilized and the risks, if any, in her particular case to her health in terminating or continuing the pregnancy"; and added subsections B through E.

The 2003 amendments. - The 2003 amendment by c. 784, in subsection B, substituted "24" for "twenty-four" in three places; inserted "in a respectful and understandable manner, without prejudice and intended to give the woman the opportunity to make an informed choice and shall be provided to her" and substituted "72" for "seventy-two" in the second sentence of subdivision B 5; and in subdivision D 1, inserted the clause (i) to (vi) designators, inserted "as a positive alternative" at the end of clause (i), and inserted the text of clause (ii).

The 2012 amendments. - The 2012 amendment by c. 131 substituted " § 18.2-72 , 18.2-73 , or 18.2-74 " for " §§ 18.2-72 , 18.2-73 , or § 18.2-74 " in subsection A; added subsections B and C; redesignated former subsections B through E as subsections D through G; inserted "and that fetal ultrasound imaging shall be performed prior to the abortion to confirm the gestational age" in subdivision D 4; in subdivision D 5, in the first paragraph, inserted clause (v) in the next-to-last sentence and deleted "above" following "in clause (iii)" in the last sentence and rewrote the final paragraph; inserted clause (vii) in the next-to-last sentence of subdivision F 1; and made related changes.

The 2020 amendments. - The 2020 amendments by cc. 898 and 899 are identical, and deleted the subsection A designation from the first paragraph; in the first paragraph, inserted "or, if such abortion, induction, or termination is to be performed pursuant to § 18.2-72 , either the physician or the nurse practitioner authorized pursuant to clause (ii) of § 18.2-72 to perform such abortion, induction, or termination" in the first sentence and inserted nearly identical language twice in the second sentence; and deleted subsections B through G, which required fetal ultrasound imaging, defined "informed written consent," excepted medical emergency and spontaneous miscarriage from the informed consent requirement, required the Department of Health to publish certain materials, and imposed a $2,500 civil penalty on a physician who failed to comply with the provisions of the section.

Law review. - For note discussing access of minors to contraceptives, abortion, and sterilization without parental consent, see 12 U. Rich. L. Rev. 221 (1977). For note on the permissible scope of parental involvement in the abortion decision of an unmarried minor, see 2 G.M.U. L. Rev. 235 (1978). For survey of Virginia law on domestic relations for the year 1978-1979, see 66 Va. L. Rev. 281 (1980).

For comment on abortion and the two-parent notification requirement, see 11 G.M.U. L. Rev. 207 (1989).

For survey on evidence in Virginia for 1989, see 23 U. Rich. L. Rev. 647 (1989).

For 2000 survey of Virginia health law, see 34 U. Rich. L. Rev. 853 (2000).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 31 Proceedings in General District Court. § 31.03 Jurisdiction. Friend.

§ 18.2-76.1. Encouraging or promoting abortion.

If any person, by publication, lecture, advertisement, or by the sale or circulation of any publication, or through the use of a referral agency for profit, or in any other manner, encourage or promote the performing of an abortion or the inducing of a miscarriage in this Commonwealth which is prohibited under this article, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-63; 1960, c. 358; 1972, c. 725; 1975, cc. 14, 15.)

Law review. - For survey of Virginia constitutional law for the year 1974-1975, see 61 Va. L. Rev. 1677 (1975).

Editor's note. - The case cited below was decided under this section as it read in 1971 when all encouragement for procuring of abortion by advertisement was prohibited. The section has since been limited to prohibit advertisement in Virginia of practices prohibited by state law.

CASE NOTES

Unconstitutional application. - Virginia could not apply this section as it read in 1971, to appellant's publication of an advertisement without unconstitutionally infringing upon his First Amendment rights. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

Formerly aimed at out-of-state services. - As applied, this section as it stood before the 1972 amendment was directed at the publishing of informative material relating to services offered in another state and was not directed at advertising by a referral agency or a practitioner whose activity Virginia had authority or power to regulate as the section now does. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

State police power does not extend to legal activities in other states. - A state does not acquire power or supervision over the internal affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state. It may seek to disseminate information so as to enable its citizens to make better informed decisions when they leave. But it may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

Section's overbreadth moot. - In view of this section's amendment since appellant's conviction in such a way as "effectively to repeal" its prior application, there is no possibility now that the statute's pre-1972 form will be applied again to appellant or will chill the rights of others. As a practical matter, the issue of its overbreadth has become moot for the future. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

Advertising, like all public expression, may be subject to reasonable regulation that serves a legitimate public interest. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

But is subject to First Amendment protection. - The fact that a particular advertisement in appellant's newspaper had commercial aspects or reflected the advertiser's commercial interests did not negate all First Amendment guarantees. The state was not free of constitutional restraint merely because the advertisement involved sales or "solicitations." Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

Commercial activity protected. - The existence of commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

Informative aspects of advertisement. - Advertisement published in appellant's newspaper did more than simply propose a commercial transaction where it contained factual material of clear "public interest." Portions of its message, most prominently the lines, "Abortions are now legal in New York. There are no residency requirements," involved the exercise of the freedom of communicating information and disseminating opinion. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).

§ 18.2-76.2.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 18.2-76.2 , pertaining to severability, derived from 1975, cc. 14, 15.

Chapter 5. Crimes Against Property.

Arson and Related Crimes.

Burglary and Related Offenses.

Larceny and Receiving Stolen Goods.

Embezzlement and Fraudulent Conversions.

Trespass to Realty.

Damage to Realty and Personalty Thereon.

Damage to and Tampering With Property.

Computer Crimes.

Fraudulent Procurement, Sale, or Receipt of Telephone Records.

Offenses Relating to Railroads and Other Utilities.

Article 1. Arson and Related Crimes.

§ 18.2-77. Burning or destroying dwelling house, etc.

  1. If any person maliciously (i) burns, or by use of any explosive device or substance destroys, in whole or in part, or causes to be burned or destroyed, or (ii) aids, counsels or procures the burning or destruction of any dwelling house or manufactured home whether belonging to himself or another, or any occupied hotel, hospital, mental health facility, or other house in which persons usually dwell or lodge, any occupied railroad car, boat, vessel, or river craft in which persons usually dwell or lodge, or any occupied jail or prison, or any occupied church or occupied building owned or leased by a church that is immediately adjacent to a church, he shall be guilty of a felony, punishable by imprisonment for life or for any period not less than five years and, subject to subdivision g of § 18.2-10 , a fine of not more than $100,000. Any person who maliciously sets fire to anything, or aids, counsels or procures the setting fire to anything, by the burning whereof such occupied dwelling house, manufactured home, hotel, hospital, mental health facility or other house, or railroad car, boat, vessel, or river craft, jail or prison, church or building owned or leased by a church that is immediately adjacent to a church, is burned shall be guilty of a violation of this subsection.
  2. Any such burning or destruction when the building or other place mentioned in subsection A is unoccupied, shall be punishable as a Class 4 felony.
  3. For purposes of this section, "church" shall be defined as in § 18.2-127 . (Code 1950, § 18.1-75; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 63; 1978, c. 443; 1993, c. 406; 1997, c. 832.)

Cross references. - For definition of "barrier crime" as including a conviction of arson as set out in § 18.2-77 et seq., or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including arson as set out in § 18.2-77 et seq., or an equivalent offense in another state, see § 63.2-1726 .

The 1997 amendment, in subsection A, in clause (ii), inserted "or any occupied church or occupied building owned or leased by a church that is immediately adjacent to a church" preceding "he shall be guilty of a felony" and inserted "church or building owned or leased by a church that is immediately adjacent to a church" preceding "is burned shall"; and added subsection C.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arson, §§ 1-3 , 6; 8A M.J. Explosions and Explosives, § 14; 9B M.J. Hotels, Inns and Restaurants, § 2; 12A M.J. Larceny, § 27; 15 M.J. Railroads, § 143.

CASE NOTES

When a building is burned, the law presumes the fire was caused by accident rather than by a deliberate act. Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983).

Elements of offense. - To establish arson, the Commonwealth must prove the fire was of incendiary origin and that the accused was a guilty agent in the burning. Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983); Avila v. Commonwealth, No. 1980-99-4, 2000 Va. App. LEXIS 472 (Ct. of Appeals June 27, 2000).

In order to support a conviction for arson, it is essential that the evidence reveal that the fire was of incendiary origin and that it point unerringly to the guilty party. Plowden v. Commonwealth, No. 1620-96-2 (Ct. of Appeals June 10, 1997).

Term "anything" in § 18.2-77 refers to the accelerant used to start the fire of a dwelling, not the object of the fire; the statutory language proscribes the setting fire to anything, by the burning whereof such occupied dwelling house is burned. Schwartz v. Commonwealth, 267 Va. 751 , 594 S.E.2d 925, 2004 Va. LEXIS 72 (2004).

Corpus delicti must consist of proof that the fire was of incendiary, rather than of accidental origin. In this respect the defense is aided by a presumption that the fire was caused by accident. But this presumption is rebuttable. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

Arson may be proved by circumstantial evidence where all the circumstances of time, place, motive, means, opportunity and conduct concur in pointing out the accused as the perpetrator of the crime. Avila v. Commonwealth, No. 1980-99-4, 2000 Va. App. LEXIS 472 (Ct. of Appeals June 27, 2000).

Circumstantial evidence of criminal agency in an arson case must "point unerringly" to the defendant. But this amounts to no more and no less than a requirement that the evidence must exclude every reasonable hypothesis of innocence, the standard applicable to every criminal case. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

When the Commonwealth relies upon circumstantial evidence, it is essential not only that the evidence reveal that the fire was of incendiary origin, but it must also point unerringly to the guilty party. Augustine v. Commonwealth, 226 Va. 120 , 306 S.E.2d 886 (1983).

It is sufficient where every reasonable hypothesis of innocence is excluded. - Arson stands upon no different footing than any other criminal offense. Where circumstantial evidence is sufficient to exclude every reasonable hypothesis of innocence, it is sufficient to support a conviction. The hypotheses which must be thus excluded are those which flow from the evidence itself, and not from the imaginations of defense counsel. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

Language of section should be followed in indictment. - In indictments for statutory offenses, the language of the statute defining the offense should be strictly followed. Howel v. Commonwealth, 46 Va. (5 Gratt.) 664 (1848).

Ownership need not be in indictment. - To prove the dwelling-house element under this section, the Commonwealth need not establish ownership of the premises, only routine habitation, and an allegation in an indictment that the property the defendant had set on fire was owned by a named individual was thus a circumstance immaterial to the offense and clearly unnecessary to a successful prosecution of the indictment. Alston v. Commonwealth, 32 Va. App. 661, 529 S.E.2d 851, 2000 Va. App. LEXIS 460 (2000).

Use of word "burn" is essential. - In an indictment for arson, it is not sufficient to use the words "set fire to" the house; but the word "burn" must be used, that being the word employed in this section to define the offense. Howel v. Commonwealth, 46 Va. (5 Gratt.) 664 (1848).

Time of burning must be charged. - To convict of the offense of burning at night, it seems that the indictment must charge the burning in the night. Curran's Case, 48 Va. (7 Gratt.) 619 (1850).

Though the offense of burning in the daytime may be charged in the common-law form, omitting to state whether the burning was in the night or daytime, yet it is more appropriate to charge the burning in the daytime. Curran's Case, 48 Va. (7 Gratt.) 619 (1850).

Term "dwelling house" means place which human beings regularly use for sleeping even though the occupants are temporarily absent. Marable v. Commonwealth, 27 Va. App. 505, 500 S.E.2d 233 (1998).

A dwelling referred to as "temporarily unoccupied" is one that is currently uninhabited, not one from which its occupants are merely absent at the time it is burned. Davis v. Commonwealth, 16 Va. App. 6, 427 S.E.2d 441 (1993).

Despite that legislature subsequently deleted the word "temporarily" from statute, it should not be construed to require proof that one or more people were physically present in the dwelling at the time of the burning. Marable v. Commonwealth, 27 Va. App. 505, 500 S.E.2d 233 (1998).

Use of term "unoccupied" was not intended to reduce punishment for violation of this section where the occupant or occupants are merely temporarily absent, but continue to reside there. Marable v. Commonwealth, 27 Va. App. 505, 500 S.E.2d 233 (1998).

Absence of occupants. - When the defendant burned the house in which he and others lived, he was guilty of a Class 2 felony, rather than a Class 3 felony, even though no one was in the house at the time. Davis v. Commonwealth, 16 Va. App. 6, 427 S.E.2d 441 (1993).

Question whether fire is of incendiary or of accidental origin is a question of fact which must often turn upon the weight of circumstantial evidence. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

When a fact finder has accepted the testimony of a qualified expert witness, which negates every reasonable possibility that a fire was of accidental origin, the Supreme Court cannot hold the evidence insufficient, as a matter of law, to support a finding that the fire was of incendiary origin. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

Felony obstruction. - Attempted arson fell within the proscribed offenses in the felony obstruction statute because the language of the obstruction statute, when considered in conjunction with the language of the statute that it incorporated by reference, subsection C of § 17.1-805 , reflected an intention by the legislature to proscribe attempt crimes. Tanner v. Commonwealth, 72 Va. App. 86, 841 S.E.2d 377, 2020 Va. App. LEXIS 131 (2020).

Separate offenses. - Section 18.2-77 clearly and unambiguously set forth the legislature's intent that the burning of a dwelling house, caused by igniting another item, be prosecuted as a separate and distinct offense. Schwartz v. Commonwealth, 41 Va. App. 61, 581 S.E.2d 891, 2003 Va. App. LEXIS 339 (2003), aff'd, 267 Va. 751 , 594 S.E.2d 925 (2004).

By separate statutes, the legislature has criminalized the arson of an occupied dwelling, on the one hand, § 18.2-77 , and the arson of personal property, § 18.2-81 , on the other. Therefore, where defendant burned a dwelling and two separate vehicles, the legislature intended that there should be three units of prosecution, for the burning of the dwelling and for the burning of each vehicle. Schwartz v. Commonwealth, 267 Va. 751 , 594 S.E.2d 925, 2004 Va. LEXIS 72 (2004).

When defendant was charged with multiple arson counts, the single larceny doctrine did not bar his convictions, because he was charged with the statutory offense of arson, not larceny, this doctrine was only applied to those statutory offenses for which no legislative intent to abrogate the theory of common-law larceny could be ascertained, and the plain language of §§ 18.2-77 and 18.2-81 showed the legislature's intention to allow multiple arson convictions in certain circumstances. Schwartz v. Commonwealth, 41 Va. App. 61, 581 S.E.2d 891, 2003 Va. App. LEXIS 339 (2003), aff'd, 267 Va. 751 , 594 S.E.2d 925 (2004).

Insufficiency of evidence. - Evidence that a fire was of incendiary origin, that the accused had an opportunity to commit the crime, and that he cherished and had expressed ill feelings towards the owner of the property destroyed, does not warrant a conviction. Garner v. Commonwealth, 2 Va. Dec. 458, 26 S.E. 507 (1897); Jones v. Commonwealth, 103 Va. 1012 , 49 S.E. 663 (1905).

Court of appeals applied the ends of justice exception to defendant's conviction for solicitation of arson because there was no proof that a letter defendant wrote directing the recipient to set fire to a residence was received by the intended recipient; the letter was confiscated before it was mailed from jail, and thus, without a letter being communicated to the recipient, defendant could not aid, counsel, procure, or solicit any action by the recipient. Smith v. Virginia, No. 0099-18-1, 2019 Va. App. LEXIS 119 (May 14, 2019).

Evidence sufficient. - The evidence was sufficient to support a defendant's conviction under this section where nine fires were set in the condominium occupied by the defendant's estranged husband in a manner described by the fire marshall as a classic example of a revenge fire and where the circumstantial evidence established time, means and opportunity, from which the jury could infer that the defendant was the perpetrator of the crime. Avila v. Commonwealth, No. 1980-99-4, 2000 Va. App. LEXIS 472 (Ct. of Appeals June 27, 2000).

The circumstantial evidence sufficiently supported a defendant's arson conviction, where the owner of the home that was burned testified that, on the night of the fire, the defendant entered her house upset and intoxicated and was alone in the house for approximately 20 minutes before the fire was detected, where immediately after the fire was discovered, two witnesses saw a man running from the house and attempting to leave the area hurriedly in a blue sedan bearing a particular license plate, and where the defendant was later found in possession of that car. Neblett v. Commonwealth, No. 1247-00-2, 2001 Va. App. LEXIS 282 (Ct. of Appeals May 22, 2001).

Although defendant's conviction of solicitation to commit a felony was reversed because improper impeachment evidence was admitted, the evidence that she asked another person to commit an arson against a dwelling house was sufficient to support her conviction, and thus the Commonwealth could retry her if it was so inclined. Goodson v. Commonwealth,, 2006 Va. App. LEXIS 515 (Nov. 14, 2006).

Evidence was sufficient to prove beyond a reasonable doubt that defendant set fire to defendant's wife's home intentionally and maliciously and that defendant was guilty of arson of the dwelling where defendant set fire to the couch using a cigarette lighter and left the dwelling, removing the parties' cat from the home. The obvious result of defendant's burning of the sofa was the complete destruction of the house. Bradbury v. Commonwealth,, 2010 Va. App. LEXIS 421 (Nov. 2, 2010).

Trial court did not err in finding the evidence sufficient for the jury to conclude that a dwelling was occupied within the meaning of subsection A of § 18.2-77 because defendant admittedly purchased gasoline and burned the dwelling where defendant and other employees lived shortly after defendant's employment was terminated. Andelic v. Commonwealth,, 2012 Va. App. LEXIS 155 (May 15, 2012).

Evidence was sufficient to support defendant's conviction for attempted arson because a rational trier of fact could have found that he committed a direct but ineffectual act in furtherance of setting the victim's house on fire; the facts indicated that defendant deliberately acted in order to create an explosion and start a fire. Davis v. Commonwealth, 65 Va. App. 485, 778 S.E.2d 557, 2015 Va. App. LEXIS 341 (2015).

In a case in which defendant was convicted of maliciously burning an occupied dwelling and maliciously burning personal property valued in excess of $200, the Commonwealth produced evidence sufficient to enable a trier of fact to determine beyond a reasonable doubt that defendant acted with malice. Although defendant maintained that he set the fire in order to burn his own mementos of his ex-girlfriend, the evidence demonstrated that defendant purposely set the fire inside and took only minimal steps to contain it. Yergovich v. Commonwealth, No. 2010-15-4, 2016 Va. App. LEXIS 245 (Ct. of Appeals Sept. 20, 2016).

Evidence was sufficient to prove that defendant was the criminal agent in the arson of the residence because it showed that he had just had a fight with his girlfriend who also lived in the residence and stormed out of a bar the evening of the arson, he had more than 25 minutes to enter the home, remove his personal belongings, let his dog out, set the fire, and return to the bar, he admitted that he entered the home that night and removed his personal belongings, and it appeared he did so in a hurry. Blanding v. Commonwealth, No. 1339-19-2, 2020 Va. App. LEXIS 307 (Dec. 15, 2020).

Applied in Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983); Creech v. Commonwealth, 242 Va. 385 , 410 S.E.2d 650 (1991).

§ 18.2-78. What not deemed dwelling house.

No outhouse, not adjoining a dwelling house, nor under the same roof, although within the curtilage thereof, shall be deemed a part of such dwelling house, within the meaning of this chapter, unless some person usually lodge therein at night.

(Code 1950, § 18.1-77; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - For sections limited by this section, see notes to §§ 18.2-90 and 18.2-91 .

Law review. - For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

CASE NOTES

This section creates no offense. It declares nothing necessary to be noticed in pleading, either in the indictment or elsewhere. It is a mere incident to § 18.2-77 , and a mere limitation of the words "dwelling house" therein mentioned. Page v. Commonwealth, 67 Va. (26 Gratt.) 943 (1875).

When outhouse deemed a dwelling house. - To make an outhouse, not adjoining a dwelling house nor under the same roof, a dwelling house, two things must appear: First, that the outhouse is within the curtilage of a dwelling house, and occupied therewith; and, second, that some person usually lodges therein at night. Page v. Commonwealth, 67 Va. (26 Gratt.) 943 (1875).

§ 18.2-79. Burning or destroying meeting house, etc.

If any person maliciously burns, or by the use of any explosive device or substance, maliciously destroys, in whole or in part, or causes to be burned or destroyed, or aids, counsels, or procures the burning or destroying, of any meeting house, courthouse, townhouse, institution of higher education, academy, schoolhouse, or other building erected for public use except an asylum, hotel, jail, prison or church or building owned or leased by a church that is immediately adjacent to a church, or any banking house, warehouse, storehouse, manufactory, mill, or other house, whether the property of himself or of another person, not usually occupied by persons lodging therein at night, at a time when any person is therein, or if he maliciously sets fire to anything, or causes to be set on fire, or aids, counsels, or procures the setting on fire of anything, by the burning whereof any building mentioned in this section is burned, at a time when any person is therein, he shall be guilty of a Class 3 felony. If such offense is committed when no person is in such building mentioned in this section, the offender shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-78; 1960, c. 358; 1975, cc. 14, 15; 1997, c. 832.)

Editor's note. - At the direction of the Virginia Code Commission, "institution of higher education" was substituted for "college" in text of this section to conform to Acts 2016, c. 588.

The 1997 amendment rewrote the first sentence which formerly read: "If any person maliciously burn, or by the use of any explosive device or substance, maliciously destroy, in whole or in part, or cause to be burned or destroyed, or aid, counsel, or procure the burning or destroying, of any meeting house, courthouse, townhouse, college, academy, schoolhouse, or other building erected for public use, except an asylum, hotel, jail or prison, or any banking house, warehouse, storehouse, manufactory, mill, or other house, whether the property of himself or of another person, not usually occupied by persons lodging therein at night, at a time when any person is therein, or if he maliciously set fire to anything, or cause to be set on fire, or aid, counsel, or procure the setting on fire of anything, by the burning whereof any building mentioned in this section shall be burned, at a time when any person is therein, he shall be guilty of a Class 3 felony" and substituted "is guilty" for "be guilty" in the second sentence.

Law review. - For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

CASE NOTES

Any burning sufficient. - The amount of burning necessary to support a conviction pursuant to this section is any amount, provided there is a perceptible wasting of the fiber of the building or object which is the subject of arson. Calderon v. Commonwealth, No. 2132-99-4, 2000 Va. App. LEXIS 475 (Ct. of Appeals June 27, 2000).

Only a slight burning is necessary for the purposes of conviction under this section. Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301 (1991).

Malice required for arson same as malice required for other common-law crimes. - No Virginia case distinguishes the malice which is a necessary element of arson from the malice which has been required in other common-law crimes; malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It may be directly evidenced by words, or inferred from acts and conduct which necessarily result in injury and its existence is a question of fact to be determined by the trier of fact. Bell v. Commonwealth, 11 Va. App. 530, 399 S.E.2d 450 (1991).

Retail store was "storehouse." - Country store was a "storehouse," as it had a room where grain or feed was stored and it could also be inferred from the evidence that the goods sold at the store were "stored" there until purchased by customers. Wilson v. Commonwealth, 66 Va. App. 9, 781 S.E.2d 754, 2016 Va. App. LEXIS 33 (2016).

Evidence held sufficient. - Where evidence showed that defendant either doused cushion with gasoline or placed the cushion and used the match to ignite the gasoline, either act was sufficient to constitute arson in violation of this section. Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301 (1991).

Evidence was sufficient to support defendant's conviction for arson, for setting fire to an unoccupied building, in violation of § 18.2-79 . Though circumstantial, the evidence showed that: (1) defendant threatened to burn down the structure after defendant was ejected from the property following a disagreement with another person; (2) defendant threatened to burn the structure down; (3) defendant was present at the time of the fire; (4) an accelerant was used to start the fire; and (5) defendant fled when defendant was confronted. Sloan v. Commonwealth,, 2008 Va. App. LEXIS 452 (Oct. 7, 2008).

Because the trial court's finding that the country store was "storehouse" was supported by credible evidence, a rational trier of fact could have found that defendant was guilty beyond a reasonable doubt of attempted arson of a storehouse. Wilson v. Commonwealth, 66 Va. App. 9, 781 S.E.2d 754, 2016 Va. App. LEXIS 33 (2016).

Applied in Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

§ 18.2-80. Burning or destroying any other building or structure.

If any person maliciously, or with intent to defraud an insurance company or other person, burn, or by the use of any explosive device or substance, maliciously destroy, in whole or in part, or cause to be burned or destroyed, or aid, counsel or procure the burning or destruction of any building, bridge, lock, dam or other structure, whether the property of himself or of another, at a time when any person is therein or thereon, the burning or destruction whereof is not punishable under any other section of this chapter, he shall be guilty of a Class 3 felony. If he commits such offense at a time when no person is in such building, or other structure, and such building, or other structure, with the property therein, be of the value of $1,000 or more, he shall be guilty of a Class 4 felony, and if it and the property therein be of less value, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, §§ 18.1-80, 18.1-81, 18.1-85; 1960, c. 358; 1975, cc. 14, 15; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" in the second sentence.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more" in the second sentence.

Law review. - For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

CASE NOTES

Indictment should describe building with particularity. - An indictment under this section must describe the building with such particularity as will inform accused what building is meant. Richards v. Commonwealth, 81 Va. 110 (1885).

Accidental burning presumed. - Where a building or structure is burned, the presumption is that the fire was caused by accident, rather than by the act of the accused accompanied by a deliberate intent. Simmons v. Commonwealth, 208 Va. 778 , 160 S.E.2d 569 (1968).

Burden of proof. - To establish the offense against the defendant, the Commonwealth had the burden of proving that the fire which burned the railway company's bridge was of incendiary origin and that the defendant was the guilty agent in the burning. Simmons v. Commonwealth, 208 Va. 778 , 160 S.E.2d 569 (1968).

To support a conviction under this section, the Commonwealth has the burden to prove beyond a reasonable doubt both that the fire was incendiary and that the accused was the criminal agent. Jefferson v. Commonwealth, No. 2706-98-2, 2000 Va. App. LEXIS 620 (Ct. of Appeals Aug. 22, 2000).

Indictment held sufficient. - When an indictment charged that the accused "did feloniously burn a certain barn and property therein, said barn and the property therein being the property of one H.H. Dulaney, and situated in the county aforesaid, which said barn and the property therein was then and there of the value of $1,500," the indictment was sufficient under this section. Wolf v. Commonwealth, 71 Va. (30 Gratt.) 833 (1878).

Evidence as to value of building prior to fire. - It was not error for the trial court to refuse to strike the evidence of an expert who testified that the value of the burned building, before the fire, would have exceeded the minimum threshold for a felony conviction under this section, on grounds that his reasoning was faulty and that he had no experience in this kind of appraisal. The validity of the reasoning process by which an expert reaches his opinion is within the province of the trier of fact, and goes only to the weight to be accorded to his opinion. Addison v. Commonwealth, 224 Va. 713 , 299 S.E.2d 521 (1983).

Evidence held sufficient. - Evidence held sufficient where the defendant was at the location of the shed that was burned, alone and out of sight of any witness, only minutes before the fire started, she was admittedly angry at the owner and displayed this anger by intentionally denting a car just after leaving the shed, and where the defendant admitted that she was smoking just before she went to the shed and after. Jefferson v. Commonwealth, No. 2706-98-2, 2000 Va. App. LEXIS 620 (Ct. of Appeals Aug. 22, 2000).

Evidence was insufficient to sustain defendant's conviction under this section. Simmons v. Commonwealth, 208 Va. 778 , 160 S.E.2d 569 (1968).

§ 18.2-81. Burning or destroying personal property, standing grain, etc.

If any person maliciously, or with intent to defraud an insurance company or other person, set fire to or burn or destroy by any explosive device or substance, or cause to be burned, or destroyed by any explosive device or substance, or aid, counsel, or procure the burning or destroying by any explosive device or substance, of any personal property, standing grain or other crop, he shall, if the thing burnt or destroyed be of the value of $1,000 or more, be guilty of a Class 4 felony; and if the thing burnt or destroyed be of less value, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, §§ 18.1-79, 18.1-85; 1960, c. 358; 1972, c. 53; 1975, cc. 14, 15; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more."

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

CASE NOTES

Construction. - Because the burning of personal property with intent to defraud as defined under § 18.2-81 substantially corresponded to the generic definition of arson for the purposes of 18 U.S.C.S. § 924(e), the district court did not err in finding that defendant's conviction under § 18.2-81 qualified as a predicate conviction for purposes of the Armed Career Criminal Act. United States v. Craig,, 2007 U.S. App. LEXIS 12903 (4th Cir. June 4, 2007).

Section 19.2-284 has no application to proving a violation of this section; this section is silent on the issue of ownership. This section proscribes not only burning another person's property, but the broader offense of burning any property with malice or the intent to defraud an insurance company or another person; thus, this section requires proof only of malice or intent to defraud. Proof of ownership, or of an insurable interest, is not an element of malicious burning under this section, and § 19.2-284 does not make it such. Hamm v. Commonwealth, 16 Va. App. 150, 428 S.E.2d 517 (1993).

Corpus delicti must consist of proof that the fire was of incendiary, rather than of accidental origin. In this respect the defense is aided by a presumption that the fire was caused by accident. But this presumption is rebuttable. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

Malice in the case of arson is not necessarily a feeling of ill will toward another person, but may be a purposeful intent to do a wrongful act. Consequently, malice may be inferred from the fact that a person intentionally burned insured property for the purpose of defrauding or injuring an insurance carrier. Hamm v. Commonwealth, 16 Va. App. 150, 428 S.E.2d 517 (1993).

Malice. - In a case in which defendant was convicted of maliciously burning an occupied dwelling and maliciously burning personal property valued in excess of $200, the Commonwealth produced evidence sufficient to enable a trier of fact to determine beyond a reasonable doubt that defendant acted with malice. Although defendant maintained that he set the fire in order to burn his own mementos of his ex-girlfriend, the evidence demonstrated that defendant purposely set the fire inside and took only minimal steps to contain it. Yergovich v. Commonwealth, No. 2010-15-4, 2016 Va. App. LEXIS 245 (Ct. of Appeals Sept. 20, 2016).

When defendant was charged with multiple arson counts, the single larceny doctrine did not bar his convictions, because he was charged with the statutory offense of arson, not larceny, this doctrine was only applied to those statutory offenses for which no legislative intent to abrogate the theory of common law larceny could be ascertained, and the plain language of §§ 18.2-77 and 18.2-81 showed the legislature's intention to allow multiple arson convictions in certain circumstances. Schwartz v. Commonwealth, 41 Va. App. 61, 581 S.E.2d 891, 2003 Va. App. LEXIS 339 (2003), aff'd, 267 Va. 751 , 594 S.E.2d 925 (2004).

Circumstantial evidence of criminal agency in an arson case must "point unerringly" to the defendant. But this amounts to no more and no less than a requirement that the evidence must exclude every reasonable hypothesis of innocence, the standard applicable to every criminal case. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

It is sufficient where every reasonable hypothesis of innocence is excluded. - Arson stands upon no different footing than any other criminal offense. Where circumstantial evidence is sufficient to exclude every reasonable hypothesis of innocence, it is sufficient to support a conviction. The hypotheses which must be thus excluded are those which flow from the evidence itself, and not from the imaginations of defense counsel. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

Question whether fire is of incendiary or of accidental origin is a question of fact which must often turn upon the weight of circumstantial evidence. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

When a fact finder has accepted the testimony of a qualified expert witness, which negates every reasonable possibility that a fire was of accidental origin, the Supreme Court cannot hold the evidence insufficient, as a matter of law, to support a finding that the fire was of incendiary origin. Cook v. Commonwealth, 226 Va. 427 , 309 S.E.2d 325 (1983).

Intent to defraud insurance company may also be malicious burning. - The fact that this section includes a separate provision for "burning with intent to defraud an insurance company" does not exclude that wrongful act as being an act of malicious burning; this section separately identifies a common species of malicious burning, which, prior to the enactment of this section, was defined separately and punished differently from other acts of malicious burning. (See former Code §§ 18.1-79 and 18.1-85.) Hamm v. Commonwealth, 16 Va. App. 150, 428 S.E.2d 517 (1993).

Conviction bars recovery on insurance policy. - In an action on a fire insurance policy brought after the plaintiff had been convicted under this section, the question whether or not the plaintiff fraudulently destroyed, or connived at the destruction of, his own property for the purpose of securing the insurance is identical with that which was heard and determined against him in the criminal prosecution, and while it is not res judicata as against the insurance company, the plaintiff should not be permitted to reopen the question and avoid the legal effect of the judgment of conviction by a collateral attack upon it. If the defendant could succeed in such an action, he would thereby avoid the logical consequences of his conviction. Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82 , 140 S.E. 314 (1927).

Clause vitiating section is against public policy. - It would be against public policy to write into a contract of fire insurance a provision that the assured might recover even though convicted under this section of burning the property with intent to defraud the insurer. Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82 , 140 S.E. 314 (1927).

Unit of prosecution. - Section 18.2-81 , by its plain language, created a single and separate unit of prosecution for each item of personal property destroyed as the result of arson. Schwartz v. Commonwealth, 41 Va. App. 61, 581 S.E.2d 891, 2003 Va. App. LEXIS 339 (2003), aff'd, 267 Va. 751 , 594 S.E.2d 925 (2004).

By separate statutes, the legislature has criminalized the arson of an occupied dwelling, on the one hand, § 18.2-77 , and the arson of personal property, § 18.2-81 , on the other. Therefore, where defendant burned a dwelling and two separate vehicles, the legislature intended that there should be three units of prosecution, for the burning of the dwelling and for the burning of each vehicle. Schwartz v. Commonwealth, 267 Va. 751 , 594 S.E.2d 925, 2004 Va. LEXIS 72 (2004).

The Commonwealth's evidence was sufficient to support appellant's arson conviction. Virginia v. Commonwealth, 17 Va. App. 684, 440 S.E.2d 438 (1994).

Applied in Underwood v. Commonwealth, 218 Va. 1045 , 243 S.E.2d 231 (1978).

§ 18.2-82. Burning building or structure while in such building or structure with intent to commit felony.

If any person while in any building or other structure unlawfully, with intent to commit a felony therein, shall burn or cause to be burned, in whole or in part, such building or other structure, the burning of which is not punishable under any other section of this chapter, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-80.1; 1970, c. 356; 1975, cc. 14, 15.)

Law review. - For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

CASE NOTES

Legislative intent. - The legislative intent was not to exclude burnings proscribed by other sections of the arson chapter, but rather to enlarge the compass of the chapter by including burnings not otherwise proscribed. Such a building, a multi-purpose structure which ill fits the limited definition of buildings mentioned elsewhere in the chapter, falls squarely within the meaning of "any building or other structure." Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

This section requires the Commonwealth to prove that the burning occurred while the accused was in the building with intent to commit a felony. Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

The Commonwealth has the burden of proving that the fire was of incendiary origin and that the defendant was the guilty agent in the burning. Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

Whether the origin of a fire was accidental or incendiary is a question of fact, and resolution of that question may, and often must, turn upon the weight of circumstantial evidence. Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

§ 18.2-83. Threats to bomb or damage buildings or means of transportation; false information as to danger to such buildings, etc.; punishment; venue.

  1. Any person (i) who makes and communicates to another by any means any threat to bomb, burn, destroy or in any manner damage any place of assembly, building or other structure, or any means of transportation, or (ii) who communicates to another, by any means, information, knowing the same to be false, as to the existence of any peril of bombing, burning, destruction or damage to any such place of assembly, building or other structure, or any means of transportation, is guilty of a Class 5 felony, provided, however, that if such person is under 15 years of age, he is guilty of a Class 1 misdemeanor.
  2. A violation of this section may be prosecuted either in the jurisdiction from which the communication was made or in the jurisdiction where the communication was received or in the City of Richmond if venue cannot otherwise be established and the property threatened is owned by the Commonwealth and located within the Capitol District.

    (Code 1950, §§ 18.1-78.1 through 18.2-78.4; 1960, c. 358; 1975, cc. 14, 15; 1982, c. 502; 2020, c. 1002.)

Cross references. - As to denial of driving privileges to juvenile for a violation of this section, see § 16.1-278.9.

The 2020 amendments. - The 2020 amendment by c. 1002, in subsection A, redesignated clauses (a) and (b) as (i) and (ii); added "or in the City of Richmond if venue cannot otherwise be established and the property threatened is owned by the Commonwealth and located within the Capitol District" in subsection B; and made stylistic changes.

Law review. - For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

CASE NOTES

This section is not vague. - A threat, in the criminal context, is recognized to be a communication avowing an intent to injure another's person or property. The communication, taken in its particular context, must reasonably cause the receiver to believe that the speaker will act according to his expression of intent. Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991).

Section is not overbroad. - A claim that a statute on its face contains no requirement of mens rea or scienter is no ground for holding the statute unconstitutional since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved. Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991).

Elements of offense. - In order to sustain a conviction under the statute, the communication must be taken in context, must have been maliciously made, and must reasonably cause the receiver of the threat to believe that the speaker of the threat will act according to his expressed intent. Jones v. Commonwealth, No. 0977-98-3 (Ct. of Appeals Feb. 23, 1999).

This section can be read as requiring a criminal mens rea. Such a narrowing construction of this statute prevents overbreadth. Only an individual who maliciously makes and communicates any threat prohibited by the statute will be punished. Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991).

But intent to carry out threat not required. - The statute does not require the Commonwealth to prove that the defendant intended to carry out his threat to burn the victim's house; proof that the threat was made and communicated satisfies the statutory requirement. Wyatt v. Commonwealth, No. 0554-97-3 (Ct. of Appeals March 24, 1998).

Defendant's age is not an essential element of the offense defined in this section. Lambert v. Commonwealth, 9 Va. App. 67, 383 S.E.2d 752 (1989).

"Threat" defined. - The term "threat" is defined as an avowed present determination or intent to injure presently or in the future. Parnell v. Commonwealth, 15 Va. App. 342, 423 S.E.2d 834 (1992).

This section is not limited to unconditional threats. Henry v. Commonwealth, No. 0520-96-4 (Ct. of Appeals June 17, 1997).

Context must be considered when determining whether words were threat. - In determining whether words were uttered as a threat, the context in which they were uttered must be considered. Parnell v. Commonwealth, 15 Va. App. 342, 423 S.E.2d 834 (1992).

Instruction that Commonwealth had to prove "true threat." - Trial judge did not err in refusing to instruct the jury that the Commonwealth had to prove a "true threat" or a "serious threat." The statute requires proof of a "threat." The adjectives "true" and "serious" would have interjected an issue that was not supported by the evidence. Parnell v. Commonwealth, 15 Va. App. 342, 423 S.E.2d 834 (1992).

Jury instruction on proof of a threat. - Even if the trial judge erred in not more fully explaining to the jury the definition of "threat," the omission was harmless error. Parnell v. Commonwealth, 15 Va. App. 342, 423 S.E.2d 834 (1992).

Defendant's statement that "he will die and his house will burn" was admissible, and its probative value outweighed the incidental prejudice that it may have engendered. Parnell v. Commonwealth, 15 Va. App. 342, 423 S.E.2d 834 (1992).

Delay in reporting threat to police. - The fact that the victim did not immediately report the defendant's threat to the police did not require a finding that she did not believe that he would commit the act. Jones v. Commonwealth, No. 0977-98-3 (Ct. of Appeals Feb. 23, 1999).

Relevance of evidence. - Evidence concerning a message that was left a mere three days before a bomb threat was made was not so far removed in time from the charged offense as to render it irrelevant. Summerlin v. Commonwealth, 37 Va. App. 288, 557 S.E.2d 731, 2002 Va. App. LEXIS 17 (2002).

In light of the manifest anger and hostility expressed by defendant toward the organization he threatened to bomb, and his hostile voicemail, the evidence presented was sufficient to prove beyond a reasonable doubt that defendant made and communicated a threat to bomb a building with the requisite unlawful intent to make and communicate such a threat. Summerlin v. Commonwealth, 37 Va. App. 288, 557 S.E.2d 731, 2002 Va. App. LEXIS 17 (2002).

Applied in Dance v. Commonwealth, 32 Va. App. 466, 528 S.E.2d 723, 2000 Va. App. LEXIS 360 (2000).

§ 18.2-84. Causing, inciting, etc., commission of act proscribed by § 18.2-83.

Any person fifteen years of age or over, including the parent of any child, who shall cause, encourage, incite, entice or solicit any person, including a child, to commit any act proscribed by the provisions of § 18.2-83 , shall be guilty of a Class 5 felony.

(Code 1950, § 18.1-78.5; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-85. Manufacture, possession, use, etc., of fire bombs or explosive materials or devices; penalties.

For the purpose of this section:

"Device" means any instrument, apparatus or contrivance, including its component parts, that is capable of producing or intended to produce an explosion but shall not include fireworks as defined in § 27-95 .

"Explosive material" means any chemical compound, mechanical mixture or device that is commonly used or can be used for the purpose of producing an explosion and which contains any oxidizing and combustive agents or other ingredients in such proportions, quantities or packaging that an ignition by fire, friction, concussion, percussion, detonation or by any part of the compound or mixture may cause a sudden generation of highly heated gases. These materials include, but are not limited to, gunpowder, powders for blasting, high explosives, blasting materials, fuses (other than electric circuit breakers), detonators, and other detonating agents and smokeless powder.

"Fire bomb" means any container of a flammable material such as gasoline, kerosene, fuel oil, or other chemical compound, having a wick composed of any material or a device or other substance which, if set or ignited, is capable of igniting such flammable material or chemical compound but does not include a similar device commercially manufactured and used solely for the purpose of illumination or cooking.

"Hoax explosive device" means any device which by its design, construction, content or characteristics appears to be or to contain a bomb or other destructive device or explosive but which is an imitation of any such device or explosive.

Any person who (i) possesses materials with which fire bombs or explosive materials or devices can be made with the intent to manufacture fire bombs or explosive materials or devices or, (ii) manufactures, transports, distributes, possesses or uses a fire bomb or explosive materials or devices shall be guilty of a Class 5 felony. Any person who constructs, uses, places, sends, or causes to be sent any hoax explosive device so as to intentionally cause another person to believe that such device is a bomb or explosive shall be guilty of a Class 6 felony.

Nothing in this section shall prohibit the authorized manufacture, transportation, distribution, use or possession of any material, substance, or device by a member of the armed forces of the United States, fire fighters or law-enforcement officers, nor shall it prohibit the manufacture, transportation, distribution, use or possession of any material, substance or device to be used solely for scientific research, educational purposes or for any lawful purpose, subject to the provisions of §§ 27-97 and 27-97.2 .

(Code 1950, § 18.1-78.6; 1968, c. 249; 1972, c. 126; 1975, cc. 14, 15, 497; 1976, c. 526; 1977, c. 326; 1990, cc. 644, 647; 1992, c. 540; 2000, cc. 951, 1065; 2002, cc. 588, 623; 2005, c. 204.)

Cross references. - As to prohibition and penalty for possession, manufacture, distribution etc. of weapons of terrorism or hoax device, see, § 18.2-46.6 .

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendments by cc. 951 and 1065 are identical, and added "subject to the provisions of §§ 27-97 and 27-97.2 " at the end of the last paragraph. Acts 2000, c. 951 is effective July 1, 2000, while Acts 2000, c. 1065 is effective January 1, 2001. Hence the changes identically made by these acts are treated as not postponed.

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and deleted "in fact" preceding "an imitation" in the paragraph defining "Hoax explosive device."

The 2005 amendments. - The 2005 amendment by c. 204 substituted "composed of any material or a device or other substance" for "or other substance or device" in the definition of "Fire bomb."

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

CASE NOTES

Burden of proof on defendant. - Trial court did not violate defendant's due process rights by requiring defendant to show that defendant possessed or manufactured explosive materials or devices for an educational purpose, a scientific purpose, or any lawful purpose, because the last clause of § 18.2-85 , constituted a statutory defense for which defendant bore burden of providing supporting evidence. Flanagan v. Commonwealth, 58 Va. App. 681, 714 S.E.2d 212, 2011 Va. App. LEXIS 274 (2011).

Sufficient evidence of fire bomb possession. - There was sufficient evidence to support the trial court's finding beyond a reasonable doubt that defendant possessed the fire bomb where defendant was a passenger in vehicle; the fire bomb was found on the vehicle's passenger side floorboard; defendant was aware of the object's presence in the vehicle; and although defendant denied knowledge that the object was a fire bomb, the trial court found his testimony to be totally incredible. The trial court was entitled to infer from defendant's "totally incredible" testimony that defendant had lied about his knowledge of the nature of the fire bomb, as well as the events surrounding his arrest, to conceal his guilt. Benton v. Commonwealth, No. 1510-96-1 (Ct. of Appeals May 13, 1997).

Defendant's felony convictions for possession of materials with which explosive materials could be made with intent to manufacture such materials in violation of clause (i) and possession of explosive materials in violation of clause (ii) did not violate the Double Jeopardy Clauses of the United States and Virginia Constitutions even though defendant had been convicted of violating Norfolk City, Va., Code §§ 17.1-43 and 17.1-44(25) because each of the misdemeanor and felony offenses required an element of proof the other offenses did not; sections 17.1-43 and 17.1-44(25) required findings of a dangerous condition liable to cause or contribute to a fire and that a defendant possessed or manufactured fireworks, convictions under clauses (i) and (ii) of this section did not, and a conviction under clause (ii) required a showing that defendant possessed prohibited items other than fireworks. Saunders v. Commonwealth, No. 1195-10-1, 2011 Va. App. LEXIS 384 (Dec. 6, 2011).

No double jeopardy bar. - Defendant's felony convictions for possession of materials with which explosive materials could be made with intent to manufacture such materials in violation of clause (i) and possession of explosive materials in violation of clause (ii) did not violate § 19.2-294 even though defendant had been convicted of violating Norfolk City, Va., Code §§ 17.1-43 and 17.1-44(25) because § 19.2-294 did not bar convictions for felony and misdemeanor charges based on the same act as long as those charges were prosecuted in a single, concurrent evidentiary hearing. Saunders v. Commonwealth, No. 1195-10-1, 2011 Va. App. LEXIS 384 (Dec. 6, 2011).

Sufficient evidence of possession of explosive materials. - Evidence established beyond a reasonable doubt that defendant clearly possessed explosive materials in violation of § 18.2-85 because among the items found in defendant's possession was gunpowder, which was, by explicit statutory designation, explosive material; the trial court explicitly found that defendant was not found guilty under the indictments with respect to firebombs or explosive devices but as to explosive materials. Saunders v. Commonwealth, No. 1195-10-1, 2011 Va. App. LEXIS 384 (Dec. 6, 2011).

Trial court properly convicted defendant of manufacturing, possessing, or using an explosive device because, while he stated that he intended to make a "fountain firework," his cell phone contained numerous text messages indicating that he had arranged to assemble a bomb, the devices were metal pipes, sealed at both ends but for a small drill hole for a fuse, and filled with explosive material taken from fireworks and possession of an illegal firework was not a lesser-included offense where fireworks were expressly excluded from the offense. Callahan v. Commonwealth,, 2015 Va. App. LEXIS 280 (Oct. 6, 2015).

CIRCUIT COURT OPINIONS

No double jeopardy bar. - Double jeopardy pursuant to Va. Const., art. I, § 8, U.S. Const., amend. V, or § 19.2-294 did not bar defendant's felony prosecution for charges stemming from the making and storing of hazardous materials for the purpose of manufacturing fireworks, violations of §§ 18.2-85 , 10.1-1455 , after he pleaded guilty to violations of Norfolk, Va. City Code §§ 17.1-43 and 17.1-44(25), because each of the four statutes required different elements of proof. Commonwealth v. Saunders, 78 Va. Cir. 345, 2009 Va. Cir. LEXIS 173 (Norfolk May 27, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Explosive materials. - Tannerite, like many other substances, is an explosive material within the meaning of § 182-85, but its use or possession is not illegal so long as the use or possession is for a lawful purpose such as the recreational use for which it is intended. Whether any particular use or possession of Tannerite is for an illegal purpose would be a question of fact. See opinion of Attorney General to The Honorable William W. Davenport, Commonwealth's Attorney, Chesterfield County, No. 14-044, 2014 Va. AG LEXIS 57, (10/1/14).

§ 18.2-86. Setting fire to woods, fences, grass, etc.

If any person maliciously set fire to any wood, fence, grass, straw or other thing capable of spreading fire on land, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-82; 1960, c. 358; 1968, c. 362; 1975, cc. 14, 15.)

Law review. - For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

CASE NOTES

Insufficient evidence. - While evidence was sufficient to prove beyond a reasonable doubt that defendant intentionally and maliciously set fire to a couch and that defendant was guilty of arson of the dwelling, the Commonwealth failed to prove that defendant intended to burn the land or, indeed, that any land was burned as a result of defendant's actions. Bradbury v. Commonwealth,, 2010 Va. App. LEXIS 421 (Nov. 2, 2010).

§ 18.2-87. Setting woods, etc., on fire intentionally whereby another is damaged or jeopardized.

Any person who intentionally sets or procures another to set fire to any woods, brush, leaves, grass, straw, or any other inflammable substance capable of spreading fire, and who intentionally allows the fire to escape to lands not his own, whereby the property of another is damaged or jeopardized, shall be guilty of a Class 1 misdemeanor, and shall be liable for the full amount of all expenses incurred in fighting the fire.

(Code 1950, § 18.1-83; 1960, c. 358; 1975, cc. 14, 15; 1988, c. 403.)

Law review. - For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fires, § 3; 15 M.J. Railroads, § 68.

§ 18.2-87.1. Setting off chemical bombs capable of producing smoke in certain public buildings.

It shall be unlawful for any person to willfully and intentionally set off or cause to be set off any chemical bomb capable of producing smoke in any building used for public assembly or regularly used by the public including, but not limited to, schools, theaters, stores, office buildings, shopping malls, coliseums and arenas. Any person convicted of a violation of this section shall be guilty of a Class 2 misdemeanor.

(1976, c. 153.)

Law review. - For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

§ 18.2-88. Carelessly damaging property by fire.

If any person carelessly, negligently or intentionally set any woods or marshes on fire, or set fire to any stubble, brush, straw, or any other substance capable of spreading fire on lands, whereby the property of another is damaged or jeopardized, he shall be guilty of a Class 4 misdemeanor, and shall be liable for the full amount of all expenses incurred in fighting the fire.

(Code 1950, § 18.1-84; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arson, §§ 1-3 ; 8B M.J. Fires, §§ 3, 8; 15 M.J. Railroads, § 68.

CASE NOTES

Anyone justified in fighting fire may recover expenses. - The clear meaning of this section is that the negligent party is liable for all expenses incurred in fighting the fire by anyone who is justified in fighting it. United States v. C & O Ry., 130 F.2d 308 (4th Cir. 1942). See also C & O Ry. v. United States, 139 F.2d 632 (4th Cir. 1944).

That other sections provide for the recovery of expenses in the putting out of fires by state officials only does not nullify the plain provisions of this section to the effect that the negligent party "shall be liable for the full amount of all expenses incurred in fighting the fire." United States v. C & O Ry., 130 F.2d 308 (4th Cir. 1942).

United States may recover. - The United States was held entitled to recover under this section for expenses incurred in fighting a fire which endangered a national forest. United States v. C & O Ry., 130 F.2d 308 (4th Cir. 1942); C & O Ry. v. United States, 139 F.2d 632 (4th Cir. 1944).

Article 2. Burglary and Related Offenses.

§ 18.2-89. Burglary; how punished.

If any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or any larceny therein, he shall be guilty of burglary, punishable as a Class 3 felony; provided, however, that if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

(Code 1950, § 18.1-86; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to requirement of saliva or tissue sample for DNA analysis after arrest for a violent felony, see § 19.2-310.2:1 .

For definition of "barrier crime" as including a conviction of burglary as set out in § 18.2-89 et seq., or an equivalent offense in another state, and prohibition against child welfare agencies and foster and adoptive homes approved by child-placing agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including burglary as set out in § 18.2-89 et seq., or an equivalent offense in another state, see § 63.2-1726 .

Law review. - For note, "Reformation of Burglary," see 11 Wm. & Mary L. Rev. 211 (1969). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, §§ 2-5, 9, 10.

CASE NOTES

The term "dwelling house" in this section means a place which human beings regularly use for sleeping. Turner v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619, 2000 Va. App. LEXIS 566 (2000).

Following principles demonstrate how a house must be "regularly used" to qualify as a dwelling under § 18.2-89 : (1) a person may have multiple dwelling houses, and each dwelling house must have humans sleep in it and engage in other functions typically associated with habitation; (2) the house must be maintained to make it suitable for immediate or rapid habitation; (3) a person must inhabit the house on a usual or periodic basis; and (4) when the occupant is absent, he or she must intend to return to the house within a usual or periodic time. Giles v. Commonwealth, 51 Va. App. 449, 658 S.E.2d 703, 2008 Va. App. LEXIS 167 (2008), aff'd, 277 Va. 369 , 672 S.E.2d 879, 2009 Va. LEXIS 42 (2009).

A dwelling is no longer a "dwelling house" for purposes of this section when its occupants leave it without any intention to return. Rash v. Commonwealth, 9 Va. App. 22, 383 S.E.2d 749 (1989).

Defendant's burglary conviction was reversed where the house that defendant broke into and entered was no longer a "dwelling house" for purposes of § 18.2-89 since the homeowner's testimony disclosed he had already left the property with no intent to return to the house. Barts v. Commonwealth, No. 0556-01-3, 2002 Va. App. LEXIS 110 (Ct. of Appeals Feb. 19, 2002).

Vacation home is dwelling house even when unoccupied. - Court of appeals did not err in affirming a circuit court's ruling that the house defendant broke into satisfied the dwelling house requirement of § 18.2-89 because the house was analogous to a vacation home; vacation homes are dwelling houses even when unoccupied at the time of a break in. Giles v. Commonwealth, 277 Va. 369 , 672 S.E.2d 879, 2009 Va. LEXIS 42 (2009).

Commonwealth satisfied its burden of proving that the structure defendant broke into was used as a habitation to satisfy the "dwelling house" requirement of § 18.2-89 because the contents of the house and evidence of the owner's behavior in relation to the house were probative of whether it was used periodically for the purpose of habitation; a house is a dwelling house pursuant to § 18.2-89 when the house is used for habitation, including periodic habitation, and periodic habitation does not require that the house be used at regular intervals but rather requires that when the house is used, it is used for the purpose of habitation. Giles v. Commonwealth, 277 Va. 369 , 672 S.E.2d 879, 2009 Va. LEXIS 42 (2009).

Structure does not have to be physically inhabited every day or week or month to be a dwelling house when the danger to personal safety that is sought to be protected does not dissipate simply because the structure is not occupied on a regular basis; the danger continues irrespective of frequency of habitation so long as when the structure is used, it is used for the purpose of habitation, and a dwelling house does not lose its character as such simply because a person is absent for either a regular or irregular period of time. Giles v. Commonwealth, 277 Va. 369 , 672 S.E.2d 879, 2009 Va. LEXIS 42 (2009).

Evidence of "dwelling house." - Commonwealth presented sufficient evidence to show that a house was a dwelling because the owner of the house slept there about one weekend per month, and the house was maintained for immediate occupancy; habitation sufficient to constitute a dwelling house under § 18.2-89 includes maintenance for reasonably prompt habitation and at a minimum periodic habitation. Giles v. Commonwealth, 51 Va. App. 449, 658 S.E.2d 703, 2008 Va. App. LEXIS 167 (2008), aff'd, 277 Va. 369 , 672 S.E.2d 879, 2009 Va. LEXIS 42 (2009).

Statutory burglary conviction under § 18.2-91 was improper as the house involved in the burglary was not a "dwelling house," as that term was defined in §§ 18.2-89 , 18.2-90 , and 18.2-91 , in that the record contained no evidence that the house was used for habitation as no one slept there, the house was unfurnished, and no one used it for the usual activities of life. Additionally, there was no evidence that anyone who had used the house for habitation had any intention of resuming that use. Johns v. Commonwealth, 53 Va. App. 742, 675 S.E.2d 211, 2009 Va. App. LEXIS 172 (2009).

Sufficient evidence that defendant was armed with a deadly weapon. - In a prosecution on a charge of burglary while armed with a deadly weapon, the evidence was sufficient to prove that defendant was armed with a deadly weapon when he entered the victim's home as the evidence showed that defendant admitted to the police that he obtained the knife from another home, that he entered the home through the screened-in porch, that the screen had been cut, and that a knife was recovered near the victim's keys, which were laying in a neighbor's yard. It was a reasonable inference that the recovered knife was the knife used to attack the victim, especially since the victim testified that the recovered knife did not belong to her. Morales v. Commonwealth,, 2010 Va. App. LEXIS 452 (Nov. 16, 2010).

Intent constitutes an essential part of the crime of burglary and should be both alleged and proved. Vaughn v. Commonwealth, 51 Va. (10 Gratt.) 758 (1853).

Specific intent is an essential element of the crime of statutory burglary and it is necessary for the intent to be established as a matter of fact before a conviction can be had. Williams v. Peyton, 414 F.2d 776 (4th Cir. 1969).

Specific intent is an essential element of burglary. Taylor v. Commonwealth, 207 Va. 326 , 150 S.E.2d 135 (1966).

Intent is almost always established by circumstantial evidence. Williams v. Peyton, 414 F.2d 776 (4th Cir. 1969).

Intent to commit felony may be inferred. - The intent to commit a felony may be inferred from the defendant's unauthorized presence in a building at night. Witt v. Commonwealth, 15 Va. App. 215, 422 S.E.2d 465 (1992).

Sufficient evidence supported a burglary conviction, although defendant was discovered in an apartment before any theft took place, where defendant's intent to commit larceny was implied when defendant entered the apartment only after witnessing its occupant leave and defendant's testimony regarding the reason for entering the apartment was not credible. Newby v. Commonwealth,, 2010 Va. App. LEXIS 210 (May 18, 2010).

Conviction reversed where incorrect intent shown. - Defendant's conviction for breaking and entering with intent to commit larceny was reversed, where circumstantial evidence showing a nighttime entry and assault of a female resident reflected an intent to rape or ravish rather than an intent to steal from the victim. Maynard v. Commonwealth, 10 Va. App. 15, 389 S.E.2d 910 (1990).

Intent to do serious physical harm. - Defendant's burglary conviction in violation of § 18.2-89 was appropriate because the evidence was sufficient and the trial court was entitled to draw on all the circumstances shown by the evidence to determine what defendant's intent actually was when he entered the victim's apartment. Considering defendant's prior robbery of the victim, defendant's threat to the victim with a gun a few hours earlier, and defendant's threats to the victim as he was unlawfully entering the victim's apartment, it was appropriately determined that defendant intended to do serious physical harm to the victim at the time of entry. Young v. Commonwealth,, 2010 Va. App. LEXIS 164 (Apr. 27, 2010).

Breaking which will constitute burglary may be actual or constructive. Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874).

Constructive breaking includes entrance effected by threats, fraud, or conspiracy. Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874).

Opening of a secured window is sufficient to constitute the element of breaking. Bright v. Commonwealth, 4 Va. App. 248, 356 S.E.2d 443 (1987).

Facts showing insufficient breaking. - D. and H. jointly rented a room, of which each has a key. C. rented an adjoining room, the doors of the two rooms entering upon the same porch near each other. They frequently interchanged visits. H. and C. conspired to steal D.'s goods in his absence, and H. opened the door with his key, and they entered the room, and took and carried away the trunk of D., with its contents. This was not such a breaking as would constitute burglary in C. Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874).

The removal of a cloth from one of the nails by which it hung over a window was not a sufficient breaking to constitute burglary. Hunter v. Commonwealth, 48 Va. (7 Gratt.) 641 (1850).

Possession of stolen goods as evidence of guilt. - The law in Virginia is well settled that the possession of stolen goods is of itself not even prima facie evidence of housebreaking or of burglary. But when goods have been obtained by means of a burglary or housebreaking, the fact of such possession is a most material circumstance to be considered by the jury, and when, in addition to such possession, other inculpatory circumstances are proved, such, for example, as the refusal of the accused to give any account, or his giving a false account of how he came by the goods, such proof will warrant a conviction. Stallard v. Commonwealth, 130 Va. 769 , 107 S.E. 722 (1921). See also Hall's Case, 44 Va. (3 Gratt.) 593 (1846); Walker v. Commonwealth, 69 Va. (28 Gratt.) 969 (1877); Taliaferro v. Commonwealth, 77 Va. 411 (1883); Wright v. Commonwealth, 82 Va. 183 (1886); Gravely v. Commonwealth, 86 Va. 396 , 10 S.E. 431 (1889); Porterfield v. Commonwealth, 91 Va. 801 , 22 S.E. 352 (1895); Henderson v. Commonwealth, 98 Va. 794 , 34 S.E. 881 (1900); Williams v. Commonwealth, 193 Va. 764 , 71 S.E.2d 73 (1952).

Unexplained or falsely explained possession of goods recently stolen in a burglary, coupled with other inculpatory circumstances, will sustain a conviction of burglary where the sufficiency of the evidence is challenged. Schaum v. Commonwealth, 215 Va. 498 , 211 S.E.2d 73 (1975).

Under Virginia law, upon proof of a breaking and entering and a theft of goods, and if the evidence warrants an inference that the breaking and entering and the theft were committed at the same time by the same person and as part of the same transaction, the exclusive possession of the stolen goods shortly thereafter, unexplained or falsely denied, has the same efficiency to give rise to an inference that the possessor is guilty of the breaking and entering as to an inference that he is guilty of the larceny. Bright v. Commonwealth, 4 Va. App. 248, 356 S.E.2d 443 (1987).

Rational factfinder could conclude that defendant was guilty of burglary because defendant was found in possession of stolen checks shortly after the victim's son discovered the burglary of the victim's home, and that fact gave rise to the reasonable inference that defendant broke into the victim's home and took the checks from her checkbook. Delain v. Commonwealth,, 2012 Va. App. LEXIS 340 (Oct. 23, 2012).

Strict proof of the identity of the articles stolen is required unless the possession is recent. Cook v. Commonwealth, 214 Va. 686 , 204 S.E.2d 252 (1974).

The identity of stolen property which is incapable of strict proof is not required to be strictly proved where the possession is very recent. Cook v. Commonwealth, 214 Va. 686 , 204 S.E.2d 252 (1974).

Fingerprint evidence. - A latent fingerprint found at the scene of the crime tends to show that the accused was at the scene of the crime. However, only if the circumstances regarding the fingerprint show that the accused was at the scene of the crime at the time the crime was committed, may one rationally infer that the accused committed the crime. Thus, where defendant's handprint was found outside the office broken into and near the point of entry, it established that the defendant, at some point in time, was in the dance studio, but since neither the handprint nor the circumstances surrounding its discovery established when the defendant was in the dance studio, the presence of the handprint created no inference that the defendant broke into the office and the burglary conviction should be reversed. Varker v. Commonwealth, 14 Va. App. 445, 417 S.E.2d 7 (1992).

Although the only fingerprint of defendant's was found on the back door of the house, and not at the point of entry, it was a clear and reasonable inference that the same person made efforts to enter other parts of the house by, inter alia, removing wood from around the window of the back door. That evidence, in conjunction with testimony that the victim did not know defendant, denied authorizing him to be on her property, and excluded him as a worker authorized to be there, was sufficient to support defendant's conviction for burglary. Green v. Commonwealth,, 2005 Va. App. LEXIS 266 (July 12, 2005).

Overt acts constituting crime under this section and § 18.2-91 may be the same. - The overt acts constituting the crime of burglary under this section, and constituting housebreaking with intent to commit larceny under § 18.2-91 , now defined as statutory burglary, may be the same, that is, the breaking and entering. The intent with which the particular crime is committed, the character of the house entered, and the time of the occurrence determine the nature and degree of the crime. Proof of the intent, of the character of the house entered, and of the time of the breaking and entering, or entering without breaking, are matters of evidence. Smyth v. Morrison, 200 Va. 728 , 107 S.E.2d 430 (1959).

Indictment alleging burglary is good. - An indictment which charges a breaking into a house in the nighttime with intent to steal, and stealing therefrom, is an indictment for burglary, and is good. Wright v. Commonwealth, 82 Va. 183 (1886).

Allegation of actual larceny in an indictment for burglary or housebreaking is simply to show the intent to commit a felony, which intent is an essential part of these crimes. Speers v. Commonwealth, 58 Va. (17 Gratt.) 570 (1867).

One may be found guilty of larceny, though acquitted of burglary. - Where the indictment charged not only breaking and entering, but the stealing of a trunk and its contents, of a stated value, the prisoner, though acquitted of burglary, might be found guilty of larceny. Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874).

And one charged with burglary and larceny may be found guilty of housebreaking or larceny. - One charged with breaking and entering a dwelling house of another in the nighttime, with intent to commit larceny, and the commission of larceny at one and the same time may, depending upon the evidence, be acquitted of burglary and found guilty of housebreaking, or guilty of larceny, as the proof justifies. Smyth v. Morrison, 200 Va. 728 , 107 S.E.2d 430 (1959).

A conviction was not void on the ground that upon defendant's plea of guilty to an indictment charging burglary the court found him guilty of, and sentenced him for, housebreaking and larceny. Smyth v. Morrison, 200 Va. 728 , 107 S.E.2d 430 (1959).

Robbery, burglary, grand larceny and abduction, are each treated separately and are governed by a separate statutory provision. Austin v. Peyton, 279 F. Supp. 227 (W.D. Va. 1968).

No lesser included offense of trespass. - When defendant was indicted for burglary, in violation of § 18.2-89 , he could not validly be convicted of trespass, in violation of § 18.2-119 , as statutory trespass was not a lesser included offense of common-law burglary, unless he acquiesced in such a conviction, and counsel's statements leading the trial court to believe it could convict defendant of trespass if it found the evidence insufficient to convict him of burglary, were such an acquiescence. Freeman v. Commonwealth, No. 0796-02-3, 2003 Va. App. LEXIS 331 (Ct. of Appeals June 10, 2003).

Statutory burglary was a lesser-included offense of common-law burglary. - Conviction for common-law burglary was vacated and the case was remanded for a new sentencing hearing on the offense of statutory burglary because statutory burglary was a lesser-included offense of common-law burglary; the additional element of requiring that the offense take place in the nighttime was the only distinction between the two forms of burglary. Wright v. Commonwealth, 49 Va. App. 312, 641 S.E.2d 119, 2007 Va. App. LEXIS 60 (2007).

Attempted burglary. - Evidence supported defendant's conviction of attempted burglary, as a rational trier of fact could conclude that defendant intended to break into a residence and, by opening an outer glass door and trying to force open an wooden inner door, committed direct acts in furtherance of that goal. Shelton v. Commonwealth,, 2008 Va. App. LEXIS 255 (May 27, 2008).

Restitution may be ordered for insurer. - The statutes declare a legislative intent to provide restitution for the victims of crimes, including corporations. One cannot conclude that the legislature intended by the most recent legislation to limit the power of the courts to order restitution. Therefore, it was proper for the court in the instant case to order burglar to pay restitution to insurance carrier of victims. Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (1994).

Burden of proof. - When the Commonwealth's evidence proves a breaking and entering and a theft of goods and justifies an inference that both offenses were committed at the same time by the same person as a part of the same criminal enterprise, if the evidence proves further that the goods stolen were found soon thereafter in the possession of the accused, the Commonwealth has made a prima facie case that the accused broke and entered. At that point, although the ultimate burden of proof remains with the Commonwealth, the burden of going forward with the evidence shifts to the accused. Brown v. Commonwealth, 213 Va. 748 , 195 S.E.2d 703 (1973); Schaum v. Commonwealth, 215 Va. 498 , 211 S.E.2d 73 (1975).

When a prima facie case of breaking and entering has been established, if the accused fails to go forward with the evidence in justification of possession, his failure is an inculpatory circumstance which, considered with the circumstance of possession, is sufficient to support a conviction of breaking and entering. Brown v. Commonwealth, 213 Va. 748 , 195 S.E.2d 703 (1973).

If the accused elects to go forward with the evidence, he bears the burden of proving the truth of his evidence in justification of possession, and if he fails, his failure is another such inculpatory circumstance. Brown v. Commonwealth, 213 Va. 748 , 195 S.E.2d 703 (1973).

Where the record disclosed no evidence that a family member of the victim opened the secured window through which it was alleged that defendant entered burglarized dwelling, the Commonwealth was not required to examine every person who might have had access to the window in order to establish a prima facie case of burglary. Bright v. Commonwealth, 4 Va. App. 248, 356 S.E.2d 443 (1987).

Facts showing "nighttime." - Because the burglar apparently needed to turn on the lights to effectuate the burglary, the jury reasonably could have inferred that it was dark at the time of the burglary. Inman v. Commonwealth, No. 0939-88-3 (Ct. of Appeals March 27, 1990).

Where evidence proved that the residence was burglarized sometime between 8:00 p.m. on July 1, 1992, and 4:00 p.m. the following day; melted candle wax was discovered throughout the house, including the victim's bedroom, where she kept her jewelry; and further, no artificial light was necessary in the house during the daytime, the jury was entitled to infer that there was sufficient evidence to support a conviction for nighttime burglary. Pair v. Commonwealth, No. 0451-93-2 (Ct. of Appeals June 14, 1994).

Court would not take judicial notice of records. - The Commonwealth failed to establish that defendant broke and entered victims' house in the nighttime even though the Commonwealth argued that the court could take judicial notice of records (not in evidence in the case) that on June 3, 1986, the sun set at 8:19 p.m. and rose the following morning at 5:46 a.m., and that it was reasonable to assume that the family did not retire prior to 8:19 p.m. White v. Commonwealth, No. 0056-89-1 (Ct. of Appeals July 24, 1990).

Sufficiency of evidence. - The record was not so lacking in evidence of the petitioner's specific intent to commit larceny that a conviction for burglary was constitutionally precluded. Williams v. Peyton, 414 F.2d 776 (4th Cir. 1969).

Evidence that defendant broke into a victim's home by popping open a screen door and entering it armed with a knife, and that defendant attempted to kill the victim, was sufficient to sustain defendant's burglary conviction. Singleton v. Commonwealth, No. 1432-02-1, 2003 Va. App. LEXIS 185 (Ct. of Appeals Apr. 1, 2003).

Where a neighbor heard noise at the victim's house, saw defendant leaving the victim's house with a cord dangling from a pocket, defendant cursed upon realizing that the neighbor had seen defendant, and defendant gave conflicting statements as to defendant's whereabouts on the night of the incident, the Commonwealth's circumstantial evidence was sufficient to support the convictions for burglary and petit larceny. Tucker v. Commonwealth, No. 1288-02-2, 2003 Va. App. LEXIS 347 (Ct. of Appeals June 17, 2003).

Evidence was sufficient to find defendant guilty of felony burglary in violation of § 18.2-89 , where defendant was identified by the victim who saw him at her window, there was blood that matched defendant's DNA on the inside windowsill of the victim's home and on a chair that defendant stood on to reach the window, and two other witnesses identified defendant; defendant's intent to commit larceny was inferable where there was no evidence of a contrary intent, and defendant's explanation that he was intoxicated and confused and thought that he was at his own home lacked merit. Carter v. Commonwealth, No. 1051-02-2, 2003 Va. App. LEXIS 390 (Ct. of Appeals July 8, 2003).

Evidence was sufficient to establish that defendant entered the victim's home without permission because defendant told an investigator that he entered his uncle's home without permission and damage to plywood that fit over a window and to the outside of a door was consistent with illegal entry. Hairston v. Commonwealth,, 2006 Va. App. LEXIS 612 (Nov. 20, 2006).

Victim's identification along with a wide range of circumstantial evidence, including the fact that defendant was acting strangely the day after the incident and had changed defendant's appearance, that clothing matching what the victim said the attacker wore was found in defendant's home, and that duct tape like that used on the victim was found in defendant's home were sufficient to support defendant's convictions for rape, robbery, statutory burglary, malicious wounding, and unlawful wounding in the commission of a felony. Parker v. Commonwealth,, 2009 Va. App. LEXIS 235 (May 19, 2009).

Evidence was sufficient to support defendant's convictions for robbery, shooting within an occupied dwelling, using a firearm in the commission of a felony, armed burglary, and malicious wounding, because ample evidence supported a finding that defendant was a perpetrator in a home invasion: three of the victims identified defendant at trial, and a co-defendant testified that defendant said he intended to rob the home, that he entered the home wearing a bullet-proof vest and armed with a handgun, and that he later told the co-defendant that he had struck one of the victim's in the head. Trial court did not abuse discretion in ruling on misidentification of accomplices by witnesses. Streater v. Commonwealth,, 2009 Va. App. LEXIS 504 (Nov. 10, 2009).

Defendant's confession and the corroborating DNA evidence was sufficient to support defendant's convictions for murder, rape, statutory burglary, and robbery. Farmer v. Commonwealth, 61 Va. App. 402, 737 S.E.2d 32, 2013 Va. App. LEXIS 34 (2013).

Evidence was sufficient to find that defendant was involved in a home invasion, which led to convictions for armed burglary, attempted robbery, and wearing a mask in public because, about 40 minutes after the victim fired two shots at intruders, defendant and codefendant arrived with gunshot wounds at a hospital located about 40 minutes' away; both men claimed that they were together at a house party when they were shot, but they could not provide details to police to confirm their story; cell phone records suggested that both men were near the victims' residence when the home invasion occurred; and codefendant was shot with the same kind of unusual ammunition that the victim used during the home invasion. Chantz v. Commonwealth, No. 0113-16-3, 2017 Va. App. LEXIS 44 (Ct. of Appeals Feb. 21, 2017).

Common scheme or plan in burglary. - That three businesses, in close proximity, were burglarized within six days; that the same method of entry was used in each case; and that in each burglary, cash registers or parts of them were stolen, allowed the trial court to find that the crimes were connected or constituted parts of a common scheme or plan, Va. Sup. Ct. R. 3A:6(b), to such a degree that justice did not require that the charges be severed under Va. Sup. Ct. R. 3A:10(c). Kinnard v. Commonwealth,, 2008 Va. App. LEXIS 340 (July 22, 2008).

Sentence enhancement. - Statutory burglary under § 18.2-89 qualifies as a violent felony under 18 U.S.C.S. § 924(e)(2)(B)(ii) for purposes of sentence enhancement. King v. United States, 214 F. Supp. 2d 669, 2002 U.S. Dist. LEXIS 14911 (E.D. Va. 2002).

Sentence within range set by legislature is proper. - Trial court did not abuse its discretion in imposing a 43-year sentence against defendant, as said sentence was within the ranges set by the legislature and well below the total statutory maximum for the various felony offenses for which he was convicted. Clark v. Commonwealth, No. 1727-07-3,, 2008 Va. App. LEXIS 234 (Ct. of Appeals May 13, 2008).

Applied in Hitt v. Commonwealth, 43 Va. App. 473, 598 S.E.2d 783, 2004 Va. App. LEXIS 320 (2004).

§ 18.2-90. Entering dwelling house, etc., with intent to commit murder, rape, robbery or arson; penalty.

If any person in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape, robbery or arson in violation of §§ 18.2-77 , 18.2-79 or § 18.2-80 , he shall be deemed guilty of statutory burglary, which offense shall be a Class 3 felony. However, if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

(Code 1950, § 18.1-88; 1960, c. 358; 1970, c. 381; 1975, cc. 14, 15; 1985, c. 110; 1992, c. 546; 1997, c. 832; 2004, c. 842.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to requirement of saliva or tissue sample for DNA analysis after arrest for a violent felony, see § 19.2-310.2:1 .

The 1997 amendment, in the first sentence, inserted "church as defined in § 18.2-127 " after "banking house" and substituted "rape, robbery or arson in violation of §§ 18.2-77 , 18.2-79 or § 18.2-80 " for "rape or robbery."

The 2004 amendments. - The 2004 amendment by c. 842 substituted "building permanently affixed to realty" for "office, shop, manufactured home, storehouse, warehouse, banking house, church as defined in § 18.2-127 , or other house" in the first sentence.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

For note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, §§ 2-5, 10, 21.

CASE NOTES

I. IN GENERAL.

The offense of housebreaking is purely statutory in Virginia. Williams v. Commonwealth, 193 Va. 764 , 71 S.E.2d 73 (1952).

Offense qualifies as a generic burglary. - Defendant's offenses that were in violation of §§ 18.2-90 and 18.2-91 did qualify as generic burglaries, for purposes of 18 U.S.C.S. § 924(e). United States v. Joshua, 259 F. Supp. 2d 446, 2003 U.S. Dist. LEXIS 6963 (E.D. Va. 2003).

In a case in which defendant pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C.S. § 922(g)(1), and he objected to the assertion in his presentence report that he qualified as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e), he argued unsuccessfully that one of the offenses the probation report cited as a predicate offense failed to qualify. Under §§ 18.2-90 and 18.2-91 , defendant's offense of breaking and entering a shop with the intent to commit larceny qualified as generic burglary under the Armed Career Criminal Act, and, under the modified categorical approach, the appropriate documents necessarily established that he pled guilty to and was convicted of generic burglary. United States v. Baxter,, 2010 U.S. Dist. LEXIS 1678 (W.D. Va. Jan. 11, 2010), aff'd, 642 F.3d 475, 2011 U.S. App. LEXIS 8476 (4th Cir. Va. 2011).

In a case in which defendant was sentenced to 27 months of imprisonment for violating 18 U.S.C.S. § 922(g)(1), the district court incorrectly found that the Armed Career Criminal Act did not apply to defendant. Defendant had three violations of § 18.2-90 , and, contrary to the district court's determination, his breaking and entering of a restaurant and a market were generic burglaries under the Armed Career Criminal Act. United States v. Foster, 662 F.3d 291, 2011 U.S. App. LEXIS 23807 (4th Cir. 2011), cert. denied, 133 S. Ct. 207, 2012 U.S. LEXIS 6146, 184 L. Ed. 2d 107 (U.S. 2012).

Offense could not count as Armed Career Criminal Act predicate. - Because the Virginia burglary statute defines the crime of burglary more broadly than the generic definition, no conviction under the law could count as an Armed Career Criminal Act predicate; the generic burglary requires breaking into a building or premises permanently attached to real property, but the first grouping of locations in § 18.2-90 includes water and rail vehicles and the second grouping involves only mobile vehicles. United States v. Payne, 248 F. Supp. 3d 757, 2017 U.S. Dist. LEXIS 50316 (W.D. Va. 2017), appeal dismissed, 2019 U.S. App. LEXIS 4554 (4th Cir. 2019).

Relationship to Armed Career Criminal Act. - Defendant's conviction for Virginia burglary committed with the intent to murder did not necessarily involve the use of force for Armed Career Criminal Act purposes because § 18.2-90 did not require any factual finding that the defendant used, attempted to use, or threatened to use violent physical force. United States v. Al-Muwwakkil, No. 18-6201, 2020 U.S. App. LEXIS 40258 (4th Cir. Dec. 23, 2020).

This section is limited by § 18.2-78 . Compton v. Commonwealth, 190 Va. 48 , 55 S.E.2d 446 (1949).

Timing of offense is not essential element of offense. - Whenever there is a breaking and entering of a dwelling with a larcenous intent, the timing of the offense is not an essential element of the offense. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Since breaking and entering of a dwelling, at any time, is the essential element of the offense, the indictment's allegation that the offense occurred in the daytime was nothing more than surplusage. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Because breaking and entering a dwelling "at any time" with the requisite intent is a violation of this section, the specification "daytime" was neither "legally essential" to charge a violation of the statute nor varied the conduct which the statute proscribes. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Unnecessary words that describe, limit or qualify statutory necessary words must be proved. - Where unnecessary words in an indictment describe, limit or qualify the statutory necessary words, the unnecessary words have to be proven as charged. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

The addition of the word "daytime" in the defendant's indictment more particularly defined the term "any time," the general span of time within which the conduct of breaking and entering the dwelling is statutorily described; the phrase "any time" is not, however, a statutorily necessary word. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Evidence sufficient to show that appellant entered home after sunset. - Evidence at trial was sufficient to prove beyond a reasonable doubt that appellant entered victim's home after sunset. Although victim returned home when it was not "fully dark," she put away her groceries, sat to watch television, and heard him enter after she turned the lights on. Dailey v. Commonwealth, No. 0555-97-2 (Ct. of Appeals Dec. 9, 1997).

The addition of "daytime" was surplusage that designated the general time of the offense but did not describe, limit, or qualify the conduct which is statutorily proscribed. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

This section and § 18.2-91 might well have been combined, for they refer directly, though not solely, to, and define as an offense, the breaking and entering of a dwelling house in the daytime, with intent to commit murder, rape or robbery (this section) or larceny, or any felony other than murder, rape, or robbery ( § 18.2-91 ). The overt acts constituting the crime are the same - that is, the breaking and entering. The intent with which the particular crime is committed does not change its general nature or character, because whichever intent is shown, the crime is of the same nature - that is, a felony of the specific class denounced by these sections. Sullivan v. Commonwealth, 157 Va. 867 , 161 S.E. 297 (1931).

Under this and the following section, housebreaking or storebreaking, as a consummated crime, includes both a nighttime entry without breaking and a breaking and entry in the daytime or nighttime under stated conditions, as precisely the same felony. An attempt to commit the offense may be perpetrated either by the attempt to enter without breaking or by the attempt to break and enter. Willoughby v. Smyth, 194 Va. 267 , 72 S.E.2d 636 (1952).

Applied in Scott v. Commonwealth, 228 Va. 519 , 323 S.E.2d 572 (1984); Martin v. Taylor, 857 F.2d 958 (4th Cir. 1988); Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002); Rowland v. Commonwealth, 281 Va. 396 , 707 S.E.2d 331, 2011 Va. LEXIS 60 (2011).

II. ELEMENTS OF OFFENSE.
A. INTENT.

Specific intent is an essential element of burglary. Taylor v. Commonwealth, 207 Va. 326 , 150 S.E.2d 135 (1966).

Intent must be proved. - Where a statute makes an offense consist of an act combined with a particular intent, such intent is as necessary to be proved as the act itself, and it is necessary for the intent to be established as a matter of fact before a conviction can be had. Surmise and speculation as to the existence of the intent are not sufficient, and no intent in law or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter. Dixon v. Commonwealth, 197 Va. 380 , 89 S.E.2d 344 (1955).

Intent not satisfied by showing entry contrary to will of occupier. - Even where the entry is contrary to the will of the occupier of the premises, the requirement that a person breaks and enters any banking house with intent to commit robbery under this section is not satisfied by the mere showing that the accused entered the bank with the intent to commit robbery contrary to the will of the occupier of the premises. Johns v. Commonwealth, 10 Va. App. 283, 392 S.E.2d 487 (1990).

Inference of intent to rob. - Jurors were not required to accept defendant's statement that he did not want victim to see him as indicative of intent only to commit larceny; they could reasonably infer that he broke and entered home with intent to rob. Alston v. Commonwealth, No. 0468-01-4 CHIEF, 2002 Va. App. LEXIS 252 (Ct. of Appeals Apr. 30, 2002).

Record contained ample other evidence supporting the trial court's findings that defendant participated in a theft and entered the victims' home with the necessary intent because the police received the report of a burglary in progress at the victim's residence within an hour and fifteen minutes of when the victim left the home; inside the described vehicle, the officer saw four men of the same race as the four men reported to have just been seen stealing from the home. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Defendant had dominion and control over stolen items because location of the significant number of stolen goods throughout the vehicle driven by defendant, coupled with his behavior during the encounter with police, supported the conclusion that defendant possessed the stolen goods; the evidence, including defendant's flight, supported a finding that he had knowledge of the very recently stolen goods in the passenger compartment and the trunk. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Evidence established defendant committed grand larceny and burglary because the trial court was entitled to conclude the only reasonable hypothesis flowing from the evidence was that the four men who burgled a house were the same four men in the car that contained the stolen goods; defendant admitted that he had been driving the car prior to the stop, which supported the inference he was driving it during the time period for the burglary and illegally entered the home and committed larceny. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

A person who enters a store intending to commit robbery therein enters the store unlawfully. Clark v. Commonwealth, 22 Va. App. 673, 472 S.E.2d 663 (1996), aff'd on reh'g en banc, 24 Va. App. 253, 481 S.E.2d 495 (1997).

Sufficient evidence of intent. - There was sufficient evidence for a trial judge to infer that defendant's specific intent when he unlawfully entered an apartment with a firearm and ordered the occupant to get down was to commit one of the felonies enumerated in § 18.2-90 , such as murder, even though the trial court found that the evidence was insufficient to prove a specific intent to rob as required for attempted robbery. Collins v. Commonwealth,, 2005 Va. App. LEXIS 380 (Oct. 4, 2005).

Given that the Commonwealth presented sufficient evidence that defendant burglarized an apartment with the requisite specific intent and malice to disfigure, maim, disable, or kill at least three of the victims, without provocation, his convictions based upon said actions were upheld on appeal. Slayton v. Commonwealth, No. 0441-06-2, 2007 Va. App. LEXIS 180 (May 1, 2007).

Evidence was sufficient to prove that defendant intended to commit arson where defendant unlawfully entered defendant's wife's home in violation of a protective order, knowing both that defendant's wife was not there and that defendant was not permitted to be there, and where defendant intentionally and maliciously set fire to the couch and removed the parties' cat from the home. Bradbury v. Commonwealth,, 2010 Va. App. LEXIS 421 (Nov. 2, 2010).

B. BREAKING AND ENTERING.

Right to possession, not ownership, determines whether entry lawful. - Where a defendant and his wife had been separated for a year and the wife had remained in the family residence, the defendant's proprietary interest was relegated to the wife's superior possessory interest and right to exclusive habitation such that the defendant's acts in breaking and entering the home, accompanied by the requisite unlawful intent, offended the wife's right of habitation and constituted burglary in violation of this section, notwithstanding his joint ownership of the property. Turner v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619, 2000 Va. App. LEXIS 566 (2000).

"Housebreaking" and "storebreaking" are proper descriptive terms. - The descriptive words "housebreaking" and "storebreaking" have long been applied to the statutory offenses defined in this and the following section and are proper descriptive terms of the statutory offense. Willoughby v. Smyth, 194 Va. 267 , 72 S.E.2d 636 (1952).

The word "break," used in this section, is borrowed from the law of burglary. If then, in any case, a person by even slight force removes or displaces anything attached to the house as a part thereof, and relied on by the occupant for the safety of the house, it is a breaking within the meaning of this section, if the other constituent parts of the offense exist. Finch v. Commonwealth, 55 Va. (14 Gratt.) 643 (1858).

Slight force sufficient to constitute "breaking." - Breaking, as an element of the crime of burglary, may be either actual or constructive. Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected. Merely pushing open a door, turning the key, lifting the latch, or resort to other slight physical force is sufficient to constitute this element of the crime. Phoung v. Commonwealth, 15 Va. App. 457, 424 S.E.2d 712 (1992).

A "breaking" within the meaning of this section may be actual or constructive. Hucks v. Commonwealth, 33 Va. App. 168, 531 S.E.2d 658, 2000 Va. App. LEXIS 568 (2000), overruled in part by Velasquez v. Commonwealth, 276 Va. 326 , 661 S.E.2d 454 (2008).

No breaking required where the entry occurs at night. - Defendant's burglary conviction under § 18.2-91 was supported by the evidence since no breaking was required under § 18.2-90 since defendant entered the apartment in the nighttime; intent to commit an assault and battery was shown as defendant was wearing body armor, and carrying brass knuckles and a gun. Consent was not a defense to statutory burglary. Jones v. Commonwealth, No. 1201-08-1,, 2009 Va. App. LEXIS 44 (Ct. of Appeals Feb. 3, 2009), aff'd, 279 Va. 295 , 687 S.E.2d 738 (2010).

Breaking was not a required element to support a conviction for statutory burglary under § 18.2-90 where defendant's entry occurred at night and, therefore, the fact that an occupant of the house opened the door to defendant did not render the evidence insufficient to support a conviction under § 18.2-91 . Stegall v. Commonwealth,, 2010 Va. App. LEXIS 137 (Apr. 6, 2010).

Entry must be contrary to will of occupier. - A breaking, either actual or constructive, to support a conviction of burglary, must have resulted in an entrance contrary to the will of the occupier of the house. Opie v. Commonwealth, No. 2173-99-1, 2000 Va. App. LEXIS 633 (Ct. of Appeals Aug. 29, 2000).

Because the Commonwealth's evidence in support of a statutory burglary offense charged under § 18.2-90 showed that defendant entered the victim's residence without first being allowed to enter, as was usually the case between the two, such was sufficient to show that defendant's entry was without permission, and any conflicts in the testimony was for the jury to resolve. Moreover, the victim's testimony that he did not have a problem with defendant's entry did not compel a different result. Sayers v. Commonwealth,, 2007 Va. App. LEXIS 438 (Dec. 11, 2007).

Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected. Williams v. Commonwealth, 193 Va. 764 , 71 S.E.2d 73 (1952).

Slight touching sufficient to establish "breaking." - Actual breaking involves the application of some force, slight though it may be, whereby entrance is effected; merely pushing open a door, turning the key, lifting the latch, or resorting to other slight physical force is sufficient to constitute this element of the crime. Levenberry v. Commonwealth, No. 0979-00-4, 2001 Va. App. LEXIS 177 (Ct. of Appeals Apr. 3, 2001).

Force must be applied to something attached to premises. - While it is well settled that only slight force is required to constitute a breaking, the force must be applied to something attached to the premises and relied upon by the occupant for safety. Johns v. Commonwealth, 10 Va. App. 283, 392 S.E.2d 487 (1990).

What constitutes breaking. - Evidence supported a finding that an unknown woman was a part of a plan by defendant and his accomplice to gain access to the victim's house. Whether the unknown woman with the victim merely ensured the door was unlocked for defendant and the accomplice or opened it for them was unknown, but either scenario constituted a breaking. Lane v. Commonwealth, No. 0972-16-1, 2018 Va. App. LEXIS 89 (Apr. 10, 2018).

Opening closed door may be breaking. - An entry into a dwelling house, through a door that was so closed that it came within the casing, and to open which required some degree of force, constitutes in law a breaking, though there was no fastening of any other kind on the door. Finch v. Commonwealth, 55 Va. (14 Gratt.) 643 (1858).

But door must be shown to have been closed. - Where the evidence established only that door was open when homeowner returned, and no evidence proved that the door was closed when the homeowner left for work or when his children later left for school, the record was devoid of evidence of any force, even the slight physical force necessary to establish a breaking. Levenberry v. Commonwealth, No. 0979-00-4, 2001 Va. App. LEXIS 177 (Ct. of Appeals Apr. 3, 2001).

Sliding glass door partially open. - Intruders enlarged the opening of a partially open sliding glass door in order to get inside the house; therefore, the evidence was sufficient to permit the jury to find that a breaking had occurred. Phoung v. Commonwealth, 15 Va. App. 457, 424 S.E.2d 712 (1992).

Lifting latch or opening gate may be breaking. - A breaking, for purposes of burglary, requires the application of force, however slight, to accomplish an entrance against the occupier's will. Therefore, merely lifting a latch or opening a gate, where it is contrary to the will of the occupier, is sufficient proof of breaking to support a conviction for burglary. Dalton v. Commonwealth, 14 Va. App. 544, 418 S.E.2d 563 (1992).

Screen from window removed. - The evidence established that a screen from a window had been removed. The evidence was sufficient to prove beyond a reasonable doubt that appellant entered victim's trailer by breaking. Dailey v. Commonwealth, No. 0555-97-2 (Ct. of Appeals Dec. 9, 1997).

Breaking into warehouse or store is not breach of peace. - While breaking and entering a dwelling of another may often constitute a breach of the peace, particularly when it is done for the purpose of committing rape, robbery, or murder, breaking into a warehouse or store for the purpose of committing larceny is not a breach of the peace. Taylor v. Commonwealth, 11 Va. App. 649, 400 S.E.2d 794 (1991).

Constructive breaking. - Where entry is gained by threats, fraud or conspiracy, a constructive breaking is deemed to have occurred. Opie v. Commonwealth, No. 2173-99-1, 2000 Va. App. LEXIS 633 (Ct. of Appeals Aug. 29, 2000).

Although there was no evidence that any force, however slight, was used by the defendant to gain entry into the dwelling, the evidence proved a constructive breaking where the owner testified that the defendant walked onto his porch, grabbed him by the arm, and while holding a box-cutter, forced him inside the house; the owner's testimony that he was scared and that he couldn't do anything about it proved beyond a reasonable doubt that the defendant gained entry into the residence by threat of violence to the owner. Opie v. Commonwealth, No. 2173-99-1, 2000 Va. App. LEXIS 633 (Ct. of Appeals Aug. 29, 2000).

A constructive breaking by fraud under this section requires proof of more than an entry with criminal intent. Johns v. Commonwealth, 10 Va. App. 283, 392 S.E.2d 487 (1990).

Entry while armed with deadly weapon. - To elevate statutory burglary to a Class 2 felony, the Commonwealth must prove that the defendant was armed with a deadly weapon at the time of the entry; a deadly weapon is one which is likely to produce death or great bodily injury from the manner in which it is used, and whether a weapon is to be regarded as deadly often depends more on the manner in which it has been used than on its intrinsic character. Opie v. Commonwealth, No. 2173-99-1, 2000 Va. App. LEXIS 633 (Ct. of Appeals Aug. 29, 2000).

For purposes of this section a box-cutter may constitute a "deadly weapon" in that a boxcutter is not materially different from a locked-blade knife and combines the fine-edged sharpness of a straight razor with the retracting capacity of a locked-blade knife; it is common knowledge that a box-cutter is an instrument with a sharp blade or razor that could be used as a weapon to kill or inflict serious injury on a person. Opie v. Commonwealth, No. 2173-99-1, 2000 Va. App. LEXIS 633 (Ct. of Appeals Aug. 29, 2000).

Sufficient evidence of conspiracy to break and enter. - Evidence supported the trial court's finding of the collocation of circumstances necessary to establish a conspiracy to break and enter with the intent to commit larceny because four men were traveling together in a car and arrived at the victims' residence together at a time when no one was home; the evidence supported a finding that the men worked together to remove numerous items from the residence, and the men left the scene together, were together when pulled over by the police, and fled. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Sufficient proof of breaking. - Evidence that, after being pushed out of the house by a houseguest, defendant fired several shots through the door into the dwelling and then reentered the home through the partially closed door was sufficient to support a finding that he committed a breaking for purposes of this section. Sumner v. Commonwealth, No. 0520-16-2, 2017 Va. App. LEXIS 131 (May 23, 2017).

Sufficient proof of entering. - Despite defendant's claim on appeal that the evidence at his trial was insufficient to support his conviction for armed burglary, the fact that his accomplice had kicked in the door of an apartment was sufficient to prove that an "entering" of the apartment had occurred because it was reasonable for the jury to have inferred that when the door was kicked in, and it fell off its hinges and into the apartment, that the foot of the accomplice, however briefly, had entered the home as well. Further, under the theory of accomplice liability, the actions of one principal were imputed to any other, pursuant to § 18.2-18 . Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243 (May 30, 2006).

Evidence was sufficient to convict defendant of burglary of an auto service store because his exclusive unexplained possession of stolen inspection stickers within hours of the break-in gave rise to the inference he was guilt; even if the inference did not arise, there was sufficient circumstantial evidence to convict defendant because he was found in possession of a heavily dented aluminum baseball bat and an oversized screwdriver that the trial court could infer were used in the burglary. Sims v. Commonwealth, No. 0638-16-2, 2017 Va. App. LEXIS 128 (May 16, 2017).

Defendant had not rebutted the inference of guilt based upon his possession of a recently stolen bicycle where the purchaser did not speak to the other person with defendant and indicated that defendant was selling the bicycle. Smith v. Commonwealth, No. 0228-20-1, 2020 Va. App. LEXIS 311 (Dec. 22, 2020).

Insufficient evidence. - Evidence was insufficient to convict defendant as a principal in the second degree of petit larceny because, although the circumstances were highly suspicious, they did not show that the items defendant helped the principal, a known burglar, carry from the triplex containing the burgled apartment, were items belonging to the victim, which had been stolen from the apartment. Gillison v. Commonwealth,, 2009 Va. App. LEXIS 477 (Oct. 27, 2009).

C. DWELLING HOUSE, ETC.

A "meathouse" is a "storehouse" within the meaning of this section and § 18.2-91 . Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

Chain link fence and "storehouse." - The eight foot chain link fence, enclosing the storage area on three sides, provided some security against unwanted intruders. In the absence of an expressed legislative intent to the contrary, the court declines to hold that a wall of a structure must be composed of a particular material in order for the structure to be the subject of burglary. Accordingly, the fact that three sides of this structure were composed of a chain link fence, rather than some other material, does not exclude the structure from classification as a "storehouse" under this section. Dalton v. Commonwealth, 14 Va. App. 544, 418 S.E.2d 563 (1992).

Mill may be "house." - Whether a mill is or is not a house within the scope of this and the following section is a matter of law and fact. A mill may be a house. McDorman v. Smyth, 187 Va. 522 , 47 S.E.2d 441 (1948), overruled in part on other grounds, by Carroll v. Johnson, 278 Va. 683 , 685 S.E.2d 647 (2009).

A chicken house which was at least 75 feet from the dwelling house, and in which no person usually lodged at night, was not a parcel of the dwelling house, and not within the terms of the first part of this section. But a chicken house tall enough to stand up in, and having walls and a roof, was such a structure as is included in the words of this section "or other house." Compton v. Commonwealth, 190 Va. 48 , 55 S.E.2d 446 (1949); Carter v. Commonwealth, 199 Va. 466 , 100 S.E.2d 681 (1957).

Burglarizing building leased to United States as post office. - Where the defendants had burglarized a building privately owned and leased to the United States for a post office, and where there had been no federal prosecution, the prosecution for burglarizing post offices was not preempted by the United States. Bowling v. Slayton, 344 F. Supp. 650 (W.D. Va. 1972).

Before breaking into a trailer can serve as the basis for statutory burglary, the Commonwealth must prove that the trailer is used as a dwelling or place of human habitation. Graybeal v. Commonwealth, 228 Va. 736 , 324 S.E.2d 698 (1985).

It would violate sound principles of statutory construction and strain the clear intendment of this section to hold that a trailer not used as a dwelling nevertheless falls under the definition of "other house." Graybeal v. Commonwealth, 228 Va. 736 , 324 S.E.2d 698 (1985).

Trailer used as an office is an "office" within the meaning of this section. - Although the wheels remained attached to a sixteen-foot office trailer set up on a storage lot, it was an office within the meaning of this section where it rested on a cinder block foundation, it served as a mailing address and had electrical and telephone services and it was furnished, equipped and used as the office of a towing business operating off of the lot. Rooney v. Commonwealth, 16 Va. App. 738, 432 S.E.2d 525 (1993).

"Dwelling house" does not include rooms or compartments within a private residence. - For purposes of §§ 18.2-90 and 18.2-91 , the definition of "dwelling house" contemplates a residence within which human beings sleep or habituate, but it does not contemplate individual rooms or compartments within such residence that are not "dwelling houses" in and of themselves, such as a rented room within a larger dwelling, intended to be the place of habitation/residence for the individual residing there. Hitt v. Commonwealth, 43 Va. App. 473, 598 S.E.2d 783, 2004 Va. App. LEXIS 320 (2004).

The phrase "other house," in this section, is a general phrase placed at the end of a list of specific references to various structures. Those specific structures share the common element of being improvements affixed to the ground, that is, they are realty. Under the doctrine of ejusdem generis, the general phrase "other house" must look for its meaning to the specific items which precede it. Graybeal v. Commonwealth, 228 Va. 736 , 324 S.E.2d 698 (1985).

A school is an "other house" and the proper subject of burglary, within the meaning of the statute. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

In the present case, the evidence concerning the school's physical characteristics pointed to the single, inexorable conclusion that the school was an "other house" within the meaning of the statute, despite the trial court's reference to the "school" as the situs of the alleged burglary. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

"Shop." - Use of the term "shop" in the indictment to which defendant pled guilty did not take his conviction in violation of § 18.2-90 outside the sweep of Taylor or the meaning of "burglary" under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e). Rather the reference to "shop" necessarily established that his prior burglary conviction was based on his entry into a structure affixed to the ground, namely, "a building." United States v. Baxter, 642 F.3d 475, 2011 U.S. App. LEXIS 8476 (4th Cir. 2011).

Requirement that structure be affixed to the ground. - It is clear that in order for a structure to be the subject of burglary, the structure must be permanently affixed to the ground so as to become a part of the realty at the time of the unlawful entry. Dalton v. Commonwealth, 14 Va. App. 544, 418 S.E.2d 563 (1992).

Where the evidence did not establish that a shed was affixed to the realty, it was insufficient to prove that defendant broke into a "storehouse" as prohibited by § 18.2-90 . Robinson v. Commonwealth, No. 0470-03-1, 2004 Va. App. LEXIS 90 (Ct. of Appeals Feb. 24, 2004).

Shed was permanently affixed to realty for purposes of § 18.2-90 where it was built on cinder-block piers, had not been moved in the 28 years since built, and was equipped with electricity. Smith v. Commonwealth, No. 0228-20-1, 2020 Va. App. LEXIS 311 (Dec. 22, 2020).

Whether previously mobile property that has been rendered stationary is affixed and a part of the real estate, and thus a subject of burglary, is a factual question, and the determination of the trial court will be reversed only if unsupported by credible evidence. Buie v. Commonwealth, 21 Va. App. 526, 465 S.E.2d 596 (1996).

School bus used for storage not shown affixed to realty. - In a prosecution for burglary of a school bus and larceny of mobile home skirting stored therein, where the record revealed that the school bus was used for storage and that the back door handle was secured by a large I-bolt and security lock, but there was no other evidence of the condition of the bus, the Commonwealth failed to prove an essential fact as charged in the indictment and required by the statute, that is, that the school bus was permanently affixed to the ground as in the case of a "storehouse" or "warehouse" and thus was part of the realty. Crews v. Commonwealth, 3 Va. App. 531, 352 S.E.2d 1 (1987).

With respect to structures other than the dwelling house of another, the legislature specifically chose to impose the habitability element only for automobiles, trucks or trailers; accordingly the Commonwealth was not required to prove the school's habitability as an element of the crime in this case. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

"Dwelling house" not found. - Statutory burglary conviction under § 18.2-91 was improper as the house involved in the burglary was not a "dwelling house," as that term was defined in §§ 18.2-89 , 18.2-90 , and 18.2-91 , in that the record contained no evidence that the house was used for habitation as no one slept there, the house was unfurnished, and no one used it for the usual activities of life. Additionally, there was no evidence that anyone who had used the house for habitation had any intention of resuming that use. Johns v. Commonwealth, 53 Va. App. 742, 675 S.E.2d 211, 2009 Va. App. LEXIS 172 (2009).

III. OTHER MATTERS.

Motion to withdraw guilty plea. - In a case in which defendant pled guilty to violating §§ 18.2-90 , 18.2-47 , 18.2-67.1 and 18.2-53.1 , he argued unsuccessfully that the circuit court abused its discretion in denying his motion to withdraw his guilty pleas prior to sentencing; defendant failed to show a good faith basis for seeking to withdraw his guilty pleas. He was clearly aware of the potential range of punishments available to the court at the time he pled guilty; as such, the fact that the sentencing guidelines recommended a higher sentence than he had hoped did not constitute a good faith basis for rescinding his pleas. Mack v. Commonwealth,, 2009 Va. App. LEXIS 417 (Sept. 22, 2009).

Effect of motion to require Commonwealth to elect. - Whatever the motive of the attorney for an accused in making a motion to require the attorney for the Commonwealth to elect whether the accused will be tried under this section or under § 18.2-91 , the same consequences follow: The accused acquiesces in a prosecution for breaking and entering with intent to commit murder, rape or robbery. The motion, by necessary implication, conceded the right to try the accused under either section. Though the procedure may be irregular, the accused cannot be allowed to take advantage of an irregularity for which he is directly responsible. Sullivan v. Commonwealth, 157 Va. 867 , 161 S.E. 297 (1931).

Alibi defense. - See Johnson v. Commonwealth, 210 Va. 16 , 168 S.E.2d 97 (1969).

Section 18.2-121 is not lesser included offense of § 18.2-91 or this section. - This section, which identifies § 18.2-91 's prohibited acts, includes offenses against properties not specified in § 18.2-121 , i.e., ships, vessels, river craft. Thus, a violation of § 18.2-91 will not invariably and necessarily include a violation of § 18.2-121 and the misdemeanor is, consequently, not a lesser included offense of either this section or § 18.2-91. Crump v. Commonwealth, 13 Va. App. 286, 411 S.E.2d 238 (1991).

Evidence sufficient to find defendant present at scene of crimes. - Defendant's fingerprint, impressed in blood on a moveable object (a flashlight), found at the scene of the crimes was sufficient in light of attendant circumstances to find that the defendant was at the scene at the time the crimes were committed in a prosecution for murder and breaking and entering with intent to commit murder. Turner v. Commonwealth, 218 Va. 141 , 235 S.E.2d 357 (1977).

Appellant's convictions for two counts of robbery, one count of statutory burglary, and three counts of use of a firearm in the commission of the felonies were affirmed because it was reasonable for the fact finder to conclude the intruder knew the victims' habits and DNA evidence indicated at some point in time, appellant had touched the BB gun. Swinson v. Commonwealth,, 2010 Va. App. LEXIS 311 (Aug. 3, 2010).

Evidence sufficient to convict as principal in the second degree. - Evidence was sufficient to show that defendant aided and abetted in statutory burglary because, while the perpetrator attempted to gain entry into the victim's apartment, defendant waited a short distance away, entered the apartment when summoned by the perpetrator, exited the apartment when the police arrived, and knocked on the door of another apartment. Defendant's knowledge of the perpetrator's criminal intent, failure to discourage completion of the crime, and subsequent attempt to conceal defendant's involvement in the crime was shown. Kersey v. Commonwealth,, 2015 Va. App. LEXIS 349 (Nov. 24, 2015).

Evidence sufficient to show intent to commit rape. - See Dixon v. Commonwealth, 197 Va. 380 , 89 S.E.2d 344 (1955).

Evidence of possession of stolen goods is not sufficient of itself to support a conviction of housebreaking. Williams v. Commonwealth, 193 Va. 764 , 71 S.E.2d 73 (1952).

Evidence insufficient to show that breaking occurred. - Where appellant's sister had not told appellant that he could not return to the apartment, where appellant temporarily resided in the apartment, slept on the sofa, and had clothing in the apartment, and where the inference that appellant somehow broke into the apartment was no more reasonable than the inference that one of the children or the mother opened the door to give him entry to the apartment, the evidence failed to prove beyond a reasonable doubt that a breaking occurred. Mayo v. Commonwealth, No. 0293-97-2 (Ct. of Appeals Nov. 25, 1997).

Although the evidence showed that defendant entered each of two residences within minutes of each other on the same morning, the evidence was insufficient to show that defendant "broke" into either of the residences, and, thus, defendant's convictions on two counts of burglary had to be reversed and the two counts of burglary had to be dismissed. Pettey v. Commonwealth, No. 1702-03-1, 2004 Va. App. LEXIS 299 (Ct. of Appeals June 29, 2004).

Evidence that the front door of the victims' home was clearly breached, that a tracker dog picked up defendant's scent, that defendant gave conflicting stories as to why he was hiding in the woods at 4:30 in the morning, and the fact that defendant's clothes were dry despite the fact that he was found lying on the ground, which was heavily covered with dew, was sufficient to support defendant's conviction for burglary. Tucker v. Commonwealth,, 2006 Va. App. LEXIS 526 (Nov. 21, 2006).

There was insufficient evidence to support defendant's burglary conviction related to the second victim, as there was no facts from which to infer the time of the burglary and there was no evidence to support a breaking. Berton v. Commonwealth, No. 1388-12-4, 2013 Va. App. LEXIS 357 (Dec. 3, 2013).

Defendant not convicted of crime different from that in indictment. - Defendant was not convicted of a crime different in nature from that charged in the indictment where the original indictment charged the crime of breaking and entering a dwelling house with the intent to maim, and was amended to charge breaking and entering with the intent to commit murder, nor did the trial court err in permitting the amendment. Smith v. Commonwealth, 10 Va. App. 592, 394 S.E.2d 30 (1990).

Where instruction omitted requirement of violence or intimidation, error was harmless. - Where the error in the jury instruction was that the instruction omitted the requirement of violence or intimidation as an element of the offense charged in the indictment, it essentially permitted a conviction on a finding that defendant broke and entered the dwelling with only the intent to commit larceny rather than robbery, contrary to the statutory law. Because the erroneous instruction related to the elements of the crime charged, the error also was "substantial." However, the error in the jury instruction was not material because it did not affect the outcome of the trial; while error, it was harmless. Phoung v. Commonwealth, 15 Va. App. 457, 424 S.E.2d 712 (1992).

Verdict held responsive to indictment. - Where indictment charged that petitioner "feloniously did enter the storehouse" verdict finding him guilty "of attempted storebreaking" was responsive to the indictment. The charge embraced the lesser offense of attempting to enter without breaking or of attempting to break and enter and whether the act towards its commission was an attempt to enter without breaking, or an attempt to break and enter, which was a matter of evidence, the effect was the same. Willoughby v. Smyth, 194 Va. 267 , 72 S.E.2d 636 (1952).

Amendment to defendant's burglary indictment, which added the aggravated circumstance of committing the felony while armed with a deadly weapon, did not change the nature or character of the offense. Hawkins v. Commonwealth, No. 0188-87-1 (Ct. of Appeals Jan. 3, 1989).

Sufficiency of evidence. - Evidence was sufficient for the circuit court to conclude defendant's rifle was a deadly weapon within the meaning of this section based upon the manner in which it was used and that the rifle had the appearance of being a firearm as required by § 18.2-53.1 . Hampton v. Commonwealth,, 2015 Va. App. LEXIS 335 (Nov. 17, 2015).

Location of a significant number of stolen goods throughout a vehicle, coupled with defendant's behavior during the encounter with police, supported the conclusion that defendant possessed the stolen goods. Based upon the proof of defendant's joint possession of at least the stolen items in the passenger compartment, the trial court, as the fact finder, was entitled to infer that defendant was guilty of both grand larceny and the statutory burglary. Taybron v. Commonwealth, No. 0623-18-1, 2019 Va. App. LEXIS 99 (Apr. 23, 2019).

CIRCUIT COURT OPINIONS

Exemption from death penalty. - Defendant proved by a preponderance of the evidence that he was exempted from the death penalty because he had sub-average intellectual functioning as confirmed by standardized testing and significant adaptive functioning deficits measured by a nationally accepted standardized assessment test corroborated by his academic records and family history; he was sentenced to the maximum punishment because his murder of and sexual assault of an elderly widow was inhuman, senseless, and depraved. Commonwealth v. Terry,, 2016 Va. Cir. LEXIS 218 (Halifax County Oct. 31, 2016).

§ 18.2-91. Entering dwelling house, etc., with intent to commit larceny, assault and battery or other felony.

If any person commits any of the acts mentioned in § 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson in violation of §§ 18.2-77 , 18.2-79 or § 18.2-80 , or if any person commits any of the acts mentioned in § 18.2-89 or § 18.2-90 with intent to commit assault and battery, he shall be guilty of statutory burglary, punishable by confinement in a state correctional facility for not less than one or more than twenty years or, in the discretion of the jury or the court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both. However, if the person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

(Code 1950, § 18.1-89; 1960, c. 358; 1962, c. 505; 1970, c. 381; 1975, cc. 14, 15, 602; 1991, c. 710; 1992, c. 486; 1996, c. 1040; 1997, c. 832.)

Cross references. - For provision making it unlawful to work or volunteer on school grounds following convictions of certain sex offenses, see § 18.2-370.4 .

As to requirement of saliva or tissue sample for DNA analysis after arrest for a violent felony, see § 19.2-310.2:1 .

Editor's note. - The above section is § 18.2-91 as enacted by Acts 1975, c. 602. Pursuant to § 30-152, it has been substituted for § 18.2-91 as enacted by Acts 1975, cc. 14 and 15.

The 1996 amendment deleted "assault and battery" following "with intent to commit larceny" and inserted "or if any person commits any of the acts mentioned in § 18.2-89 or § 18.2-90 with intent to commit assault and battery" following "other than murder, rape or robbery."

The 1997 amendment substituted "rape, robbery or arson in violation of §§ 18.2-77 , 18.2-79 or § 18.2-80 " for "rape or robbery" in the first sentence.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975). For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For a note, "Predicate Offenses for First Degree Felony Murder in Virginia," see 57 Wash. & Lee L. Rev. 561 (2000).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abduction and Kidnapping, § 3; 3A M.J. Burglary and Housebreaking, §§ 2-4, 10, 21; 12A M.J. Larceny, § 33; 20 M.J. Weapons, § 2.

CASE NOTES

I. IN GENERAL.

Offense described in section is a felony. - Breaking and entering a house in the nighttime, with intent to commit larceny, is a felony. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895). See also Benton v. Commonwealth, 89 Va. 570 , 16 S.E. 725 (1893).

Section is limited by § 18.2-78 . Compton v. Commonwealth, 190 Va. 48 , 55 S.E.2d 446 (1949).

Elements. - To sustain a conviction for statutory burglary under this section, the commonwealth must prove: (1) The accused entered a dwelling house in the nighttime without breaking or broke and entered the dwelling house in the daytime and (2) The accused entered with the intent to commit any felony other than murder, rape, robbery or arson. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Offense qualifies as a generic burglary. - Defendant's offenses that were in violation of §§ 18.2-90 and 18.2-91 did qualify as generic burglaries, for purposes of 18 U.S.C.S. § 924(e). United States v. Joshua, 259 F. Supp. 2d 446, 2003 U.S. Dist. LEXIS 6963 (E.D. Va. 2003).

In a case in which defendant pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C.S. § 922(g)(1), and he objected to the assertion in his presentence report that he qualified as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e), he argued unsuccessfully that one of the offenses the probation report cited as a predicate offense failed to qualify. Under §§ 18.2-90 and 18.2-91 , defendant's offense of breaking and entering a shop with the intent to commit larceny qualified as generic burglary under the Armed Career Criminal Act, and, under the modified categorical approach, the appropriate documents necessarily established that he pled guilty to and was convicted of generic burglary. United States v. Baxter,, 2010 U.S. Dist. LEXIS 1678 (W.D. Va. Jan. 11, 2010), aff'd, 642 F.3d 475, 2011 U.S. App. LEXIS 8476 (4th Cir. Va. 2011).

"Shop." - Use of the term "shop" in the indictment to which defendant pled guilty did not take his conviction in violation of § 18.2-90 outside the sweep of Taylor or the meaning of "burglary" under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e). Rather the reference to "shop" necessarily established that his prior burglary conviction was based on his entry into a structure affixed to the ground, namely, "a building." United States v. Baxter, 642 F.3d 475, 2011 U.S. App. LEXIS 8476 (4th Cir. 2011).

The Commonwealth can establish a prima facie case that a defendant broke and entered by: (1) proving that goods were stolen from a house which was broken into; (2) justifying the inference that both offenses were committed at the same time, by the same person, as part of the same criminal enterprise and (3) proving that the goods were found soon thereafter in the possession of the accused. Rosser v. Commonwealth, No. 2862-99-3, 2000 Va. App. LEXIS 762 (Ct. of Appeals Nov. 28, 2000).

Unnecessary words that describe, limit or qualify statutory necessary words must be proved. - Unnecessary words in an indictment describe, limit or qualify the statutory necessary words and, thus, the unnecessary words have to be proven as charged. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

The addition of the word "daytime" in the defendant's indictment more particularly defined the term "any time," the general span of time within which the conduct of breaking and entering the dwelling is statutorily described; the phrase "any time" is not, however, a statutorily necessary word. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

The addition of "daytime" was surplusage that designated the general time of the offense but did not describe, limit, or qualify the conduct which is statutorily proscribed. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Larceny is necessarily involved. - In a charge of entering a barn in the night and stealing property therefrom, larceny is necessarily involved. Stallard v. Commonwealth, 130 Va. 769 , 107 S.E. 722 (1921).

Probable cause for arrest. - Probable cause supported defendant's arrest for burglary because when an officer arrived at the victim's house, she informed him that defendant was her ex-boyfriend and did not live there; the officer saw defendant inside the house and observed damage to the door where someone forced entry. Dejesus v. Commonwealth, No. 1055-12-2, 2013 Va. App. LEXIS 194 (Ct. of Appeals July 2, 2013).

Motion to withdraw guilty plea. - Trial court did not err in refusing to allow defendant to withdraw his guilty pleas because defendant did not provide proof of a substantial and reasonable defense to the charges; even if the testimony that defendant was not in the residence at the time of the burglary was accepted as true, it could still be evidence of his guilt as a principal in the second degree. Ramsey v. Commonwealth, 65 Va. App. 593, 779 S.E.2d 241, 2015 Va. App. LEXIS 359 (2015).

Trespass not lesser-included offense of statutory burglary. - Trespass in violation of § 18.2-119 is not a lesser-included offense of statutory burglary and a trial court lacks the authority to convict for trespass under an indictment charging breaking and entering even if the accused fails to object. Shifflett v. Commonwealth, No. 2702-99-2, 2000 Va. App. LEXIS 843 (Ct. of Appeals Dec. 28, 2000).

Section 18.2-121 is not lesser included offense of § 18.2-90 or this section. - Section 18.2-90 , which identifies this section's prohibited acts, includes offenses against properties not specified in § 18.2-121 , i.e., ships, vessels, river craft. Thus, a violation of this section will not invariably and necessarily include a violation of § 18.2-121 and the misdemeanor is, consequently, not a lesser included offense of either § 18.2-90 or this section. Crump v. Commonwealth, 13 Va. App. 286, 411 S.E.2d 238 (1991).

Common-law trespass is not a lesser included offense of statutory burglary under this section. Dowell v. Commonwealth, No. 1567-87-2 (Ct. of Appeals May 21, 1991).

Common-law trespass is not a lesser included offense of statutory burglary under this section, even when the indictment specifically charges that a dwelling was burglarized. Taylor v. Commonwealth, 11 Va. App. 649, 400 S.E.2d 794 (1991).

Since statutory burglary does not contain the element of an actual or threatened breach of the peace, common-law trespass is not a lesser included offense of statutory burglary. Taylor v. Commonwealth, 11 Va. App. 649, 400 S.E.2d 794 (1991).

Instruction as to punishment. - In a prosecution for carbreaking with intent to commit larceny, the court instructed the jury that if they found the accused guilty, his punishment should be not less than one nor more than 10 years in the penitentiary (now state correctional facility), "or, in the discretion of the jury, confinement in jail for twelve months and a fine not exceeding $500." The instruction was held error, as this section as it stood at the time of the prosecution plainly said, "or, in the discretion of the jury, confined in jail not exceeding twelve months and fined not exceeding $500." But as the jury did not exercise its discretion, but fixed a penitentiary (now state correctional facility) sentence, the error was harmless. Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

Applied in Guynn v. Commonwealth, 220 Va. 478 , 259 S.E.2d 822 (1979); Edwards v. Sasser, 462 F. Supp. 374 (E.D. Va. 1979); Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983); Hall v. Commonwealth, 225 Va. 533 , 303 S.E.2d 903 (1983); Crews v. Commonwealth, 3 Va. App. 531, 352 S.E.2d 1 (1987); Martin v. Taylor, 857 F.2d 958 (4th Cir. 1988); Buie v. Commonwealth, 21 Va. App. 526, 465 S.E.2d 596 (1996); Stinnie v. Commonwealth, 21 Va. App. 610, 466 S.E.2d 752 (1996); Crawley v. Commonwealth, 29 Va. App. 372, 512 S.E.2d 169 (1999); Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002); Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008); Rowland v. Commonwealth, 281 Va. 396 , 707 S.E.2d 331, 2011 Va. LEXIS 60 (2011).

II. ELEMENTS.
A. INTENT.

Specific intent is an essential element of burglary. Taylor v. Commonwealth, 207 Va. 326 , 150 S.E.2d 135 (1966).

Intent must be proved. - This section makes an offense consist of an act combined with a particular intent. Therefore, proof of such intent is as necessary as proof of the act itself and must be established as a matter of fact. Ridley v. Commonwealth, 219 Va. 834 , 252 S.E.2d 313 (1979).

Under this section, proof of intent is as necessary as proof of the act itself. Ridley v. Commonwealth, 219 Va. 834 , 252 S.E.2d 313 (1979).

But may be inferred from facts and circumstances. - The specific intent with which an unlawful entry into a dwelling or storehouse was made may be inferred from the surrounding facts and circumstances. Ridley v. Commonwealth, 219 Va. 834 , 252 S.E.2d 313 (1979).

Intent may, and often must, be inferred from the facts and circumstances in a particular case. Ridley v. Commonwealth, 219 Va. 834 , 252 S.E.2d 313 (1979).

When an unlawful entry is made into a dwelling, the presumption is that the entry was made for an unlawful purpose and the specific purpose, meaning specific intent, with which such an entry is made may be inferred from the surrounding facts and circumstances. Black v. Commonwealth, 222 Va. 838 , 284 S.E.2d 608 (1981).

Evidence was sufficient to prove that the defendant had formed an intent to physically harm the victim when he forced his way into her home where the recent relationship between the defendant and the victim had been adversarial and litigious, the defendant had been arguing with and "talking trash" to the victim moments before his unlawful entry, he displayed a pocket knife in his hand during the argument, and he forced his way into the victim's home as soon as she attempted to end their encounter. Donaldson v. Commonwealth, No. 1956-97-1 (Ct. of Appeals Sept. 22, 1998).

The fact finder may infer that a person intends the immediate, direct and necessary consequences of his voluntary acts. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Intent may be shown by the circumstances, including a person's conduct and statements. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

In a prosecution for burglary under this section, proof that the accused unlawfully entered another's dwelling supports an inference that the entry was made for an unlawful purpose; the specific intent with which the unlawful entry is made may be inferred from the surrounding facts and circumstances. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Defendant's unlawful entry into complainant's residence supported inference that he entered with an unlawful purpose, and surrounding circumstances supported inference that he entered with an intent to assault complainant. Gore v. Commonwealth, No. 1393-99-1 (Ct. of Appeals Apr. 4, 2000).

Evidence was sufficient to prove beyond a reasonable doubt that defendant possessed the specific intent to commit larceny, as required by this section, when he unlawfully broke into and entered a victim's home because: (1) the evidence and reasonable inferences flowing from that evidence proved that defendant forcibly broke and entered the victim's home by breaking through a boarded-up front door and a door jamb and that he walked inside the house, where the victim's uncle saw him with something white in his hand; (2) when seen by the uncle, defendant fled and later denied entering the home, giving rise to an inference of guilt; and (3) even though the victim could not specifically identify anything missing from his home and the uncle could not identify the white object in defendant's hand, a rational fact finder could have reasonably inferred that defendant held an item in his hand that he intended to steal from the victim's home. Hairston v. Commonwealth,, 2008 Va. App. LEXIS 551 (Dec. 23, 2008).

Because defendant struck the victim in the back of the head with a baseball bat after forcibly entering the victim's house with two companions who were similarly armed with weapons, the evidence was sufficient to find defendant intended an unlawful wounding; therefore, defendant was properly found guilty of violating § 18.2-91 . Wilson v. Commonwealth,, 2010 Va. App. LEXIS 425 (Nov. 2, 2010).

Evidence supported defendant's burglary conviction, as the surrounding facts and circumstances adequately established defendant's intent to commit larceny when defendant entered an apartment; as defendant stated to a detective and in a written statement, when defendant broke into other persons' homes, defendant's intention was always to steal property or money. Smith v. Commonwealth,, 2011 Va. App. LEXIS 156 (May 10, 2011).

In a prosecution for attempted burglary with the intent to commit larceny, assault and battery, or a felony other than rape, robbery or arson in violation of §§ 18.2-91 and 18.2-26 , there was sufficient evidence that defendant had the specific intent to commit larceny when he broke a window in an attempt to enter a garage. His codefendant's knowledge that the victim stored property there was imputed to defendant. Bourne v. Commonwealth, No. 1017-11-2, 2012 Va. App. LEXIS 171 (Ct. of Appeals May 22, 2012).

Evidence was sufficient to prove that defendant entered a home with the specific intent to commit larceny because after breaking through the back door, defendant stole a bag of pennies found in the home and also stole a bag of copper pipe, which defendant admitted that defendant intended to resell. Defendant left the premises only because defendant sustained an injury during the break-in. Yaconis v. Commonwealth, No. 1363-13-1, 2014 Va. App. LEXIS 270 (July 29, 2014).

Evidence was sufficient to support defendant's conviction for statutory burglary because a rational fact finder could have concluded from the evidence that defendant intended to commit assault and battery at the time of entry into the victim's house, as defendant, who was fleeing from the police, expected the victim's house to be occupied at the time defendant entered and intended to use force against the victim to avoid detection by the police. Alston v. Commonwealth,, 2015 Va. App. LEXIS 207 (June 30, 2015).

Intent to commit larceny inferred from unauthorized presence. - In the absence of evidence showing a contrary intent, the trier of fact may infer that a defendant's unauthorized presence in a house or building of another in the nighttime was with intent to commit larceny. Ridley v. Commonwealth, 219 Va. 834 , 252 S.E.2d 313 (1979).

Inference from possession of recently stolen property. - The reasonableness of the inference of guilty knowledge, or theft, from the unexplained possession of recently stolen property has been often upheld by the Fourth Circuit. Nevertheless, even a reasonable inference if unsupported, will not provide a basis for proof beyond a reasonable doubt. Rather, the recent possession of stolen property should be viewed as probative evidence of the crime and reviewed along with the other evidence in the case to determine whether a rational juror could find the defendant guilty beyond a reasonable doubt. Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985) (certification of probable cause denied and dismissed, 792 F.2d 139 (4th Cir. 1986)).

Upon proof of a breaking and entering and a theft of goods, and if the evidence warrants an inference that the breaking and entering and the theft were committed at the same time by the same person and as part of the same transaction, the exclusive possession of the stolen goods shortly thereafter, unexplained or falsely denied, has the same efficiency to give rise to an inference that the possessor is guilty of the breaking and entering as to an inference that he is guilty of larceny. Rosser v. Commonwealth, No. 2862-99-3, 2000 Va. App. LEXIS 762 (Ct. of Appeals Nov. 28, 2000).

In a burglary prosecution, the commonwealth can establish a violation of this section by: (1) proving that goods were stolen from a house which was broken into; (2) justifying the inference that both offenses were committed at the same time, by the same person, as part of the same criminal enterprise; and (3) proving that the goods were found soon thereafter in the possession of the accused. Dickerson v. Commonwealth, No. 0090-00-1, 2001 Va. App. LEXIS 105 (Ct. of Appeals Mar. 6, 2001).

To prove beyond a reasonable doubt that the possession of stolen property was exclusive so as to give rise to the presumption that the possessor obtained the property unlawfully, the commonwealth's evidence must show that the accused was consciously asserting at least a possessory interest in the stolen property or was exercising dominion over the stolen property. Dickerson v. Commonwealth, No. 0090-00-1, 2001 Va. App. LEXIS 105 (Ct. of Appeals Mar. 6, 2001).

Where it was established that the defendant was in exclusive possession of the victims' stolen jewelry within days of the theft and he alone exercised dominion over the stolen property when he sold it to a jeweler, the defendant's exclusive possession was sufficiently recent to establish prima facie cases of larceny and burglary and to justify inferences by the trial court that the defendant was the thief and burglar who broke into both victims' homes and stole their property. Dickerson v. Commonwealth, No. 0090-00-1, 2001 Va. App. LEXIS 105 (Ct. of Appeals Mar. 6, 2001).

It is well settled that the unexplained possession of recently stolen property creates a presumption of guilt, but such possession must be exclusive on the part of the accused; the evidence must reveal that the accused was consciously asserting at least a possessory interest in or exercising dominion over the stolen property. Savage v. Commonwealth, No. 0889-00-1, 2001 Va. App. LEXIS 119 (Ct. of Appeals Mar. 13, 2001).

When evidence has been introduced, which, if believed, establishes that a house has been broken and entered and goods stolen therefrom, and warrants an inference beyond a reasonable doubt that the breaking and entering and the larceny of the goods were committed at the same time, by the same person or persons, as a part of the same transaction, upon principle and authority, the exclusive possession of the stolen goods shortly thereafter, unexplained or falsely denied, has the same efficiency to give rise to an inference that the possessor is guilty of the breaking and entering as to an inference that he is guilty of the larceny. Savage v. Commonwealth, No. 0889-00-1, 2001 Va. App. LEXIS 119 (Ct. of Appeals Mar. 13, 2001).

Defendant had dominion and control over stolen items because location of the significant number of stolen goods throughout the vehicle driven by defendant, coupled with his behavior during the encounter with police, supported the conclusion that defendant possessed the stolen goods; the evidence, including defendant's flight, supported a finding that he had knowledge of the very recently stolen goods in the passenger compartment and the trunk. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Evidential value of possession of stolen goods. - In Virginia it is well settled that the possession of stolen goods is, of itself, not even prima facie evidence of housebreaking or burglary. Walters v. Commonwealth, 159 Va. 903 , 165 S.E. 495 (1932); Williams v. Commonwealth, 193 Va. 764 , 71 S.E.2d 73 (1952).

Bare evidence of the possession of the stolen goods is not sufficient of itself to support a conviction of housebreaking. Fields v. Commonwealth, 215 Va. 120 , 207 S.E.2d 822 (1974).

Defendant's possession of single item of stolen property with no showing when burglary occurred or that a larceny and burglary occurred simultaneously do not support an inference that he burglarized the victim's home. Clark v. Commonwealth, No. 0275-85 (Ct. of Appeals Sept. 22, 1986).

Intent to commit larceny cannot be inferred from lack of other intent. - Defendant's conviction for breaking and entering with an intent to commit larceny in violation of § 18.2-91 could not stand, as the Commonwealth did not proved beyond a reasonable doubt the defendant intended to commit larceny. Larceny could not be inferred from the absence of evidence of a different intent, and defendant was neither found in the store or with any store merchandise. Vincent v. Commonwealth, 276 Va. 648 , 668 S.E.2d 137, 2008 Va. LEXIS 109 (2008).

Testimony concerning other items of stolen property not subject of indictment. - Trial court did not err in overruling motion to exclude testimony concerning other items of property stolen at the time of the burglary, even though such items were not the subject of the grand larceny indictment. Caccioppo v. Commonwealth, 20 Va. App. 534, 458 S.E.2d 592 (1995).

Evidence of prior conviction for burglary properly admitted. - Evidence relating to defendant's involvement in a prior burglary was properly admitted in his trial for a later burglary because defendant's statement to police raised the issue of larcenous intent, and evidence of prior bad acts was permissible in order to show absence of mistake or accident and intent. Slaughter v. Commonwealth, 49 Va. App. 659, 644 S.E.2d 89, 2007 Va. App. LEXIS 182 (2007).

Sufficiency of evidence to prove intent. - Defendant's intent to elude the police was insufficient to supply the requisite felonious intent for statutory burglary because eluding the police was a felony only if it was committed through the use of an automobile; however, defendant was attempting to elude the police on foot when defendant entered the victim's house. Alston v. Commonwealth,, 2015 Va. App. LEXIS 207 (June 30, 2015).

Defendant was properly convicted of attempted statutory burglary with intent to commit assault and battery because, while defendant claimed that he intended to lure the victim outside to fight, his statements and actions supported a finding of an intent to enter the victim's apartment to commit assault and battery inside where he banged on the victim's door over an extended period of time, broke windows, and abruptly left when a police officer approached. Henderson v. Commonwealth,, 2015 Va. App. LEXIS 381 (Dec. 15, 2015).

Evidence was sufficient to prove defendant's intent to commit larceny and that a larceny occurred because defendant did not challenge the sufficiency of the evidence that defendant was the individual who unlawfully entered the victim's home, and because the victim testified that the victim had set aside $50 on top of the chest of drawers in the victim's bedroom to pay for lawn care and that the money was missing when the victim returned home. Shabazz v. Commonwealth, No. 0470-18-3, 2019 Va. App. LEXIS 58 (Mar. 12, 2019).

Record contained ample other evidence supporting the trial court's findings that defendant participated in a theft and entered the victims' home with the necessary intent because the police received the report of a burglary in progress at the victim's residence within an hour and fifteen minutes of when the victim left the home; inside the described vehicle, the officer saw four men of the same race as the four men reported to have just been seen stealing from the home. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

B. ENTERING.

Under common law, an entry occurs when any part of the body enters a dwelling and the Virginia legislature has not altered this definition of entry in this section. Franklin v. Commonwealth, 28 Va. App. 719, 508 S.E.2d 362 (1998).

Entering store during business hours. - A defendant can be found guilty of burglary where he enters a store during normal business hours with the intent to commit robbery therein. Browder v. Commonwealth, No. 1499-97-2 (Ct. of Appeals Dec. 22, 1998).

Entrance must be against will of occupier. - A breaking, either actual or constructive, to support a conviction of burglary must have resulted in an entrance contrary to the will of the occupier of the house. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Presumption of entry for unlawful purpose. - When an unlawful entry is made into a dwelling of another, the presumption is that the entry was made for an unlawful purpose. This same principle is equally applicable to breaking and entering a storehouse in the nighttime with intent to commit larceny. Ridley v. Commonwealth, 219 Va. 834 , 252 S.E.2d 313 (1979).

When an unlawful entry is made into the dwelling of another, the presumption is that the entry is made for an unlawful purpose. The specific purpose, meaning specific intent, with which such an entry is made may be inferred from the surrounding facts and circumstances. Scott v. Commonwealth, 228 Va. 519 , 323 S.E.2d 572 (1984).

Remaining on business premises after close of business without owner's consent. - Where a store owner invites the public to enter his premises he consents for the entrant to view his merchandise for the limited purpose of purchase, or to otherwise engage in a lawful activity thereon. It is not the will of the owner that entrance be made to defraud or steal from him. The consent to entry expires at the close of business and an invitee's presence on the premises thereafter, without the knowledge or consent of the owner, constitutes a form of entry by fraud and deception when the original entry was made with intent to steal. Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 (1986).

Where defendant entered the store under the pretense that he was a prospective customer and he then secreted himself on the premises until the store closed for business at which time, without permission of the owner, he attempted to remove property from the store without paying for it, the evidence established that prior to entry defendant had formed in his mind the intent to remain on the premises and to commit the theft. Under such circumstances, an intent was sufficient to meet the requirement of this section. Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 (1986).

Where defendants entered the store before closing and secreted themselves in the storeroom where they remained until the store closed, at which time they intended to do "a little Christmas shopping," there was a "breaking and entering" within the meaning of this section despite defendant's argument that there was no attempt to steal during regular store hours. The intent to steal was formulated prior to the time defendants entered the store, and such intent, when combined with the method of entry, was sufficient to sustain the conviction. Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 (1986).

To constitute the crime of statutory burglary of a storehouse in the nighttime, an entry, with or without breaking, must be made with intent to commit larceny or a felony. Fields v. Commonwealth, 215 Va. 120 , 207 S.E.2d 822 (1974).

No breaking required where the entry occurs at night. - Defendant's burglary conviction under § 18.2-91 was supported by the evidence since no breaking was required under § 18.2-90 since defendant entered the apartment in the nighttime; intent to commit an assault and battery was shown as defendant was wearing body armor, and carrying brass knuckles and a gun. Consent was not a defense to statutory burglary. Jones v. Commonwealth, No. 1201-08-1,, 2009 Va. App. LEXIS 44 (Ct. of Appeals Feb. 3, 2009), aff'd, 279 Va. 295 , 687 S.E.2d 738 (2010).

In the daytime, both an entry and a breaking must occur with the same intent. Fields v. Commonwealth, 215 Va. 120 , 207 S.E.2d 822 (1974).

Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected; merely pushing open a door, turning the key, lifting the latch or resort to other slight physical force is sufficient to constitute this element of the crime. Robertson v. Commonwealth, 31 Va. App. 814, 525 S.E.2d 640 (2000).

Evidence did not establish beyond a reasonable doubt that defendant was required to use any physical force to enter a shed and, thus, committed a breaking as required by § 18.2-91 . The breaking of the shed door could have occurred at any time during the seven or eight days that the owner was away from the owner's property. Finney v. Commonwealth, 277 Va. 83 , 671 S.E.2d 169, 2009 Va. LEXIS 12 (2009).

Broken refrigerator lock held insufficient evidence of breaking. - Court's reliance on evidence of damaged and broken lock on a walk-in refrigerator to show a forceful entry into the premises was misplaced as the refrigerator was not attached to the premises and there was no showing that the lock on it was intended to protect anything other than its contents. Hence, the "breaking" element of statutory burglary was not satisfied. Murphy v. Commonwealth, No. 1198-01-2, 2002 Va. App. LEXIS 399 (Ct. of Appeals July 23, 2002).

Timing of offense is not essential element of offense. - Whenever there is a breaking and entering of a dwelling with a larcenous intent, the timing of the offense is not an essential element of the offense. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Since breaking and entering of a dwelling, at any time, is the essential element of the offense, the indictment's allegation that the offense occurred in the daytime was nothing more than surplusage. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Because breaking and entering a dwelling "at any time" with the requisite intent is a violation of § 18.2-90 , the specification "daytime" was neither "legally essential" to charge a violation of the statute nor varied the conduct which the statute proscribes. Griffin v. Commonwealth, 13 Va. App. 409, 412 S.E.2d 709 (1991).

Right to possession, not ownership, determines whether entry lawful. - Where a defendant and his wife had been separated for a year and the wife had remained in the family residence, the defendant's proprietary interest was relegated to the wife's superior possessory interest and right to exclusive habitation such that the defendant's acts in breaking and entering the home, accompanied by the requisite unlawful intent, offended the wife's right of habitation and constituted burglary in violation of this section, notwithstanding his joint ownership of the property. Turner v. Commonwealth, 33 Va. App. 88, 531 S.E.2d 619, 2000 Va. App. LEXIS 566 (2000).

Circuit court properly convicted defendant of breaking and entering, with the intent to commit a felony, because although he had been living in his wife's house since they were married, he did not have any ownership interest in the property, the house was no longer defendant's residence and any interest he had in it was relegated her superior possessory interest and right to exclusive habitation as the result of a protective order, defendant's entry into the house with the intent to commit a felony offended the wife's right of habitation, and the fact that defendant's clothing and identification were still in the house did not alter the conclusion. Graves v. Commonwealth, No. 1341-16-2, 2017 Va. App. LEXIS 130 (May 23, 2017).

Allegation of ownership of building. - An indictment for housebreaking which described the property as "a certain mill house not adjoining to or occupied with the dwelling house of Frances Newman," was a sufficient allegation of ownership by Frances Newman. Webster v. Commonwealth, 80 Va. 598 (1885); Speers v. Commonwealth, 58 Va. (17 Gratt.) 570 (1867). See Butler v. Commonwealth, 81 Va. 159 (1885).

Entry of portion of body sufficient. - The evidence established the defendant's entry into the subject premises where, after breaking the lock and splintering the door, the defendant inserted his arm and shoulder through the opening into the victim's apartment. Franklin v. Commonwealth, 28 Va. App. 719, 508 S.E.2d 362 (1998).

Evidence sufficient to find entering. - Evidence was sufficient to support defendant's statutory burglary conviction where in entering the office, defendant had to turn the handle of the main door, which was always shut, and push the door open; the jury could properly reject defendant's theories in his burglary defense that there was no actual or constructive breaking. Sheppard v. Commonwealth, No. 3230-02-4, 2004 Va. App. LEXIS 155 (Ct. of Appeals Apr. 6, 2004).

Evidence was sufficient to support defendant's burglary conviction even though no signs of forced entry were found around the door or windows immediately after the burglary, because the evidence established that defendant and defendant's companion had no lawful authority to enter the subject residence and the detective who arrived to investigate described the interior of the residence as "ransacked"; thus, the jury was entitled to find that defendant applied some force, however slight, to gain entry into the residence. Seis v. Commonwealth, No. 1619-06-3,, 2007 Va. App. LEXIS 432 (Ct. of Appeals Nov. 27, 2007).

Defendant had not rebutted the inference of guilt based upon his possession of a recently stolen bicycle where the purchaser did not speak to the other person with defendant and indicated that defendant was selling the bicycle. Smith v. Commonwealth, No. 0228-20-1, 2020 Va. App. LEXIS 311 (Dec. 22, 2020).

Evidence sufficient to find attempt to enter. - In a prosecution for attempted burglary with the intent to commit larceny, assault and battery, or a felony other than rape, robbery or arson in violation of §§ 18.2-91 and 18.2-26 , the evidence was sufficient to support the theory that defendant broke the victim's window in an attempt to enter his garage. The fact finder could conclude that the victim heard the noise of a breaking glass and metallic window frame, which had been intact earlier, and that the fleeing defendant and codefendant had broken the window and frame in an attempt to gain entry to the garage. Bourne v. Commonwealth, No. 1017-11-2, 2012 Va. App. LEXIS 171 (Ct. of Appeals May 22, 2012).

Evidence insufficient to prove breaking. - Although the evidence showed that defendant entered each of two residences within minutes of each other on the same morning, the evidence was insufficient to show that defendant "broke" into either of the residences, and, thus, defendant's convictions on two counts of burglary had to be reversed and the two counts of burglary had to be dismissed. Pettey v. Commonwealth, No. 1702-03-1, 2004 Va. App. LEXIS 299 (Ct. of Appeals June 29, 2004).

Evidence sufficient to prove breaking. - Evidence was sufficient to demonstrate that appellant committed a breaking for purposes of § 18.2-91 where she only had permission to be at the mobile home when specifically invited by the resident, and the resident testified that he did not invite appellant to the residence and that there were no plans for her to be at the residence on the day of the incident. Pooler v. Commonwealth, 71 Va. App. 214, 834 S.E.2d 530, 2019 Va. App. LEXIS 267 (2019).

C. DWELLING HOUSE, ETC.

Dwelling of another. - Evidence was sufficient to demonstrate that a mobile home was the dwelling of another for purposes of § 18.2-91 where appellant had no property interest in the home, while she occasionally spent the night with the resident, she had no legally cognizable special relationship to him, and thus, she had no possessory interest in the home and no right to occupy. Pooler v. Commonwealth, 71 Va. App. 214, 834 S.E.2d 530, 2019 Va. App. LEXIS 267 (2019).

Winnebago mobile home was "dwelling." - In a prosecution under this section as embraced by the Assimilative Crimes Act, 18 U.S.C. §§ 2 and 13, a Winnebago mobile home was a "dwelling" at the time of the theft, where evidence showed that the owner used it as a home when he was on the road and that it was appropriately equipped for that purpose. United States v. Lavender, 602 F.2d 639 (4th Cir. 1979).

"Dwelling house" does not include rooms or compartments within a private residence. - For purposes of §§ 18.2-90 and 18.2-91 , the definition of "dwelling house" contemplates a residence within which human beings sleep or habituate, but it does not contemplate individual rooms or compartments within such residence that are not "dwelling houses" in and of themselves, such as a rented room within a larger dwelling, intended to be the place of habitation/residence for the individual residing there. Hitt v. Commonwealth, 43 Va. App. 473, 598 S.E.2d 783, 2004 Va. App. LEXIS 320 (2004).

Crawl space is part of "dwelling house." - Evidence that defendant entered the crawl space of the residence was sufficient to establish a breaking and entering and to support defendant's burglary conviction. Grimes v. Commonwealth, 62 Va. App. 470, 749 S.E.2d 218, 2013 Va. App. LEXIS 302 (2013).

Crawl space underneath the home in question fell within the plain meaning of "dwelling house" for purposes of the burglary statute, and thus, evidence that defendant was in the crawl space was sufficient to support defendant's conviction. Grimes v. Commonwealth, 288 Va. 314 , 764 S.E.2d 262, 2014 Va. LEXIS 147 (2014).

Before breaking into a trailer can serve as the basis for statutory burglary, the Commonwealth must prove that the trailer is used as a dwelling or place of human habitation. Graybeal v. Commonwealth, 228 Va. 736 , 324 S.E.2d 698 (1985).

It would violate sound principles of statutory construction and strain the clear intendment of § 18.2-90 to hold that a trailer not used as a dwelling nevertheless falls under the definition of "other house." Graybeal v. Commonwealth, 228 Va. 736 , 324 S.E.2d 698 (1985).

The phrase "other house," in § 18.2-90 , is a general phrase placed at the end of a list of specific references to various structures. Those specific structures share the common element of being improvements affixed to the ground, that is, they are realty. Under the doctrine of ejusdem generis, the general phrase "other house" must look for its meaning to the specific items which precede it. Graybeal v. Commonwealth, 228 Va. 736 , 324 S.E.2d 698 (1985).

"Affixed to realty." - In a burglary conviction, the Commonwealth established that the victim's home was permanently affixed to realty because the testimony established that the structure defendant entered was the victim's dwelling, and photographs showed that the residence was affixed to realty. Arrington v. Commonwealth,, 2010 Va. App. LEXIS 87 (Mar. 9, 2010).

Habitability as element of offense. - With respect to structures other than the dwelling house of another, the legislature specifically chose to impose the habitability element only for automobiles, trucks or trailers; accordingly the Commonwealth was not required to prove the school's habitability as an element of the crime in this case. Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 139 (1997).

Burglarizing building leased to United States as post office. - Where the defendants had burglarized a building privately owned and leased to the United States for a post office, and where there had been no federal prosecution, the prosecution for burglarizing post offices was not preempted by the United States. Bowling v. Slayton, 344 F. Supp. 650 (W.D. Va. 1972).

"Dwelling house" found. - Evidence supported the rationality of the jury's finding that the home which defendant burglarized was a dwelling house because, although the owner had turned the power off, the owner was renovating the home at the time of the burglary for the owner's spouse to return to the home and reside in the home when the renovations were finished. Yaconis v. Commonwealth, No. 1363-13-1, 2014 Va. App. LEXIS 270 (July 29, 2014).

"Dwelling house" not found. - Statutory burglary conviction under § 18.2-91 was improper as the house involved in the burglary was not a "dwelling house," as that term was defined in §§ 18.2-89 , 18.2-90 , and 18.2-91 , in that the record contained no evidence that the house was used for habitation as no one slept there, the house was unfurnished, and no one used it for the usual activities of life. Additionally, there was no evidence that anyone who had used the house for habitation had any intention of resuming that use. Johns v. Commonwealth, 53 Va. App. 742, 675 S.E.2d 211, 2009 Va. App. LEXIS 172 (2009).

III. DEADLY WEAPON.

Fact finder determines whether weapon deadly. - Generally, unless a weapon is per se a deadly one, the fact finder should determine whether it, and the manner of its use, place it in that category. Pritchett v. Commonwealth, 219 Va. 927 , 252 S.E.2d 352 (1979).

And burden is upon Commonwealth. - The burden of showing that a weapon is deadly is upon the Commonwealth. Pritchett v. Commonwealth, 219 Va. 927 , 252 S.E.2d 352 (1979).

Club made from metal pipe as deadly weapon. - A club made from a piece of metal pipe or tubing flattened at one end to provide a gripping handle with a heavy metal bolt inserted in and affixed to the opposite end of the pipe, making that end heavier than the handle end, was designed and constructed as a weapon. Where, if that weapon is used in the manner contemplated by its design and construction, as an instrument to forcefully strike or flail an object, it would be likely to cause death or great bodily harm to a human being, it would not be error to conclude that it was a deadly weapon for purposes of prosecution under this section. Pritchett v. Commonwealth, 219 Va. 927 , 252 S.E.2d 352 (1979).

Proof of an act of violence not required. - A violation of this section does not require proof of an act of violence or an act likely to produce violence. Taylor v. Commonwealth, 11 Va. App. 649, 400 S.E.2d 794 (1991).

Proof of breach of the peace not required. - A breach of the peace is not a fact the government is required to prove to obtain a conviction for violation of this section. Taylor v. Commonwealth, 11 Va. App. 649, 400 S.E.2d 794 (1991).

Breaking into warehouse or store is not breach of peace. - While breaking and entering a dwelling of another may often constitute a breach of the peace, particularly when it is done for the purpose of committing rape, robbery, or murder, breaking into a warehouse or store for the purpose of committing larceny is not a breach of the peace. Taylor v. Commonwealth, 11 Va. App. 649, 400 S.E.2d 794 (1991).

Weapon. - Evidence was sufficient to support defendants' convictions for breaking and entering with intent to commit larceny while armed with a deadly weapon at the time of entry into the victim's townhouse because defendants acted in concert and one defendant admitted to possession of a knife at that time, in one of the two backpacks used by defendants, while the other defendant stated that defendant also had a little knife in that defendant's jacket at the time of the break-in into the victim's townhouse. Vasquez v. Commonwealth, 291 Va. 232 , 781 S.E.2d 920, 2016 Va. LEXIS 13 (2016), cert. denied, 137 S. Ct. 568, 2016 U.S. LEXIS 7338, 196 L. Ed. 2d 448 (U.S. 2016).

This section's enhanced penalty for being armed with a deadly weapon was properly applied to appellant where the evidence showed that he knew someone was home when he entered the dwelling, he kept a screwdriver in his hand, for ready use, as he went through the dwelling, and at the time of his arrest, he stated that he had used it to threaten the occupant. Lee v. Commonwealth, 68 Va. App. 313, 808 S.E.2d 224, 2017 Va. App. LEXIS 320 (2017).

IV. INDICTMENT.

Indictment may aver intent, commission of larceny, or both. - The averment of an intent to steal is sufficient under this section; so also, where the felony has actually been committed, it seems sufficient to allege the commission, as that is the strongest evidence of the intention. But the intent to commit a felony and the actual commission of it may both be alleged, and, in general, this is the better mode of statement. Speers v. Commonwealth, 58 Va. (17 Gratt.) 570 (1867); Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

While it is good practice for a prosecutor to aver and establish the commission of larceny as proving burglarious intent, under this section only the intent, not the theft, is an integrant of burglary. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

It may charge housebreaking and larceny in one count. - Housebreaking with intent to commit larceny would be complete under this section whether the larceny was actually committed or not, but it is permissible to charge not only the breaking and entering with intent to commit larceny, but also the larceny, at the same time, as one continuous act; the charge of larceny in such case being the best evidence of the intent with which the breaking was committed. Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

Though they are distinct offenses. - Grand larceny and housebreaking with the intent to commit larceny are distinct offenses under the law, and to each is affixed its own penalty, but they may be and often are one continued act, and may be charged in the same count of an indictment. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895); Branch v. Commonwealth, 184 Va. 394 , 35 S.E.2d 593 (1945).

Such an indictment is for housebreaking and not for larceny. - An indictment which charges a breaking into a house with intent to steal, and the stealing therefrom, is an indictment for housebreaking, and not for larceny, and is good. Speers v. Commonwealth, 58 Va. (17 Gratt.) 570 (1867); Vaughan v. Commonwealth, 58 Va. (17 Gratt.) 576 (1867); Butler v. Commonwealth, 81 Va. 159 (1885).

Accused may be found guilty of either offense. - Where the accused is charged with breaking and entering with intent to commit larceny, and the commission of the larceny, he may be convicted of either offense but not of both. Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

In an indictment under this section if the actual larceny is properly stated, the prisoner may be found guilty of the larceny, though acquitted of the housebreaking. Vaughan v. Commonwealth, 58 Va. (17 Gratt.) 576 (1867). See also Speers v. Commonwealth, 58 Va. (17 Gratt.) 570 (1867).

Viewed in the light most favorable to the Commonwealth, the evidence showed both: (1) that a breaking and entering and larceny occurred and (2) that the defendant possessed one of the credit cards taken in that burglary within hours of the break-in, thereby permitting application of the inference that he was the thief; there was sufficient evidence of burglary under § 18.2-91 to support conviction. Issak v. Commonwealth, No. 1853-02-4, 2003 Va. App. LEXIS 346 (Ct. of Appeals June 17, 2003).

Except where breaking and larceny are one continuous act. - Where the breaking and entering with intent to commit larceny and the commission of the larceny are one continuous act, the accused can only be convicted of the offense of breaking and entering with intent to commit larceny. Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

An indictment contained a single count, and charged defendant with breaking and entering a certain railroad car with intent to commit larceny therein, and the larceny from the car of certain enumerated articles. Accused asked an instruction that should the jury find the accused guilty of breaking and entering the car with intent to steal, and also guilty of stealing the property, they could bring in a verdict for only one of the offenses. It was held that it was not error to refuse this instruction, as it told the jury that if the accused broke and entered the car with intent to steal, and stole the property, they could bring in a verdict for only one of the offenses, when in fact only one offense was committed if the act was continuous. Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

Although both burglary under this section and grand larceny under § 18.2-95 are committed in an unbroken line of misconduct, the continuity does not bar an indictment and a conviction for each of the two offenses. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

No fatal variance found. - Evidence was sufficient to convict defendant of breaking and entering under § 18.2-91 and there was not a fatal variance between the evidence offered at trial and the indictment, which charged defendant with breaking and entering with the intent to commit larceny, as: (1) § 18.2-91 was cited in the indictment in accordance with § 19.2-220 and Va. Sup. Ct. R. 3A:6(a); (2) the citation in the indictment to § 18.2-91 incorporated by reference the complete definition of the offense set forth in the statute and supplemented the charging language of the indictment; (3) as the statute's title reflected, the offense could be committed with the "intent to commit larceny, assault and battery or other felony"; (4) although the body of the charge omitted reference to the intent to commit assault and battery, that specific intent was alleged in the indictment; (5) in reciting an abbreviated title of the charged offense, the indictment specifically referenced the "intent to commit A and B," or assault and battery; and (6) the arrest warrant underlying the felony charge specifically accused defendant of breaking and entering in the nighttime the dwelling house of the victim with the intent to commit assault and battery. Barth v. Commonwealth,, 2007 Va. App. LEXIS 56 (Feb. 20, 2007).

Sufficiency of charge in indictment. - An indictment in the usual form for housebreaking was not insufficient because it did not negative the idea that the barroom which was broken and entered adjoined any dwelling house other than that of the owner of the barroom. Lawrence v. Commonwealth, 81 Va. 484 (1886).

Insufficient indictment. - A burglary indictment which charges the accused entered the premises with the intent to commit a "felony other than murder, rape or robbery" does not set forth the element of intent specifically enough to apprise the accused of the nature and character of the offense. Sims v. Commonwealth, 28 Va. App. 611, 507 S.E.2d 648 (1998).

V. PROSECUTION AND CONVICTION.

There can be only one penalty imposed. - Upon a count charging both grand larceny and housebreaking, the accused may be found guilty of either of the offenses, but there can be only one penalty imposed. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895); Branch v. Commonwealth, 184 Va. 394 , 35 S.E.2d 593 (1945).

Unless there is a separate count for larceny. - If it is desired to punish for both larceny and housebreaking a separate count for larceny must be inserted in the indictment. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

General verdict of guilty is deemed to be for housebreaking. - It is well settled in Virginia that when an indictment contains but one count, charging housebreaking and larceny, and the verdict is a general one of guilty, the verdict will be considered as one for the major offense of housebreaking. Walters v. Commonwealth, 159 Va. 903 , 165 S.E. 495 (1932); Harris v. Commonwealth, 185 Va. 26 , 37 S.E.2d 868 (1946).

Conviction is bar to further prosecution. - If there is a conviction generally, or of the grand larceny only, and it is submitted to, in either case, this is a bar to further prosecution. Benton v. Commonwealth, 91 Va. 782 , 21 S.E. 495 (1895).

Double jeopardy. - The double jeopardy clause does not bar conviction and sentence at one trial for burglary under this section and grand larceny under § 18.2-95 arising from a unitary criminal transaction, since each offense rests on different necessary elements. The clause is infringed only if all the components of a crime defined under one statute must also be proved to convict under another. The test to be applied is whether each provision requires proof of an additional fact which the other does not. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

Whether a defendant effected an integrated transgression or two unrelated ones, where the defendant executed each fundamental burglary, i.e., a breaking and an entry with essential intent, and every ingredient of grand larceny, i.e., a taking of goods, chattels and money of the value of $50 or more, quite clearly the factors of taking, asportation and value, indispensable in larceny, are not so in burglary. By contrast, breaking and entering - the essence of burglary - are not constituents of larceny. Obviously, convictions of both burglary under this section and larceny under § 18.2-95 do not invade a defendant's constitutional protection from double jeopardy. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

One may be convicted of destruction of private property and burglary. - One may be convicted of destruction of private property in violation of § 18.2-137 , in addition to being convicted of burglary in violation of this section, as a result of causing damage to property when breaking and entering a building because each offense requires proof of a fact not required for the other. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

Prosecution for breaking and entering and destroying private property not barred by § 19.2-294 . - Section 19.2-294 , which bars a prosecution for a violation of one statute if a defendant has been convicted of violation of another statute for the same act, is inapplicable where the "same act" involved was the breaking of the doors of the places broken into. This act, although common to both the convictions of breaking and entering and the convictions for destroying private property, was a violation of § 18.2-137 , destroying private property, but was not a violation of this section, statutory burglary. Thus, the same act was a violation of only one of the two statutes, not both. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

Prosecution in federal court for both breaking and entering and larceny. - A defendant charged with breaking and entering an officers' club on a United States Army post and stealing the contents of a safe in the club could be prosecuted both for breaking and entering under this section, as authorized by the federal Assimilative Crimes Act, and for larceny under the federal statute relating to larceny within the special maritime and territorial jurisdiction of the United States. Clark v. United States, 267 F.2d 99 (4th Cir. 1959).

Verdict held responsive to charge. - An indictment contained only one count, and charged the statutory offense of housebreaking, with twofold averment of intent to steal and of actual theft as one continuous act. The jury found the accused guilty of housebreaking "as charged in the indictment" and he contended that the verdict was a nullity on the ground that it found him guilty of housebreaking alone and not of housebreaking with intent to commit larceny. It was held that the verdict was responsive to the charge in the indictment. McDorman v. Smyth, 187 Va. 522 , 47 S.E.2d 441 (1948).

Sentences under this section and § 18.2-95 held not excessive. - Concurrent three-year terms of imprisonment for violations of this section and § 18.2-95 are not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 0739-85 (Ct. of Appeals Apr. 23, 1986).

Sentences of six years in the penitentiary (now state correctional facility) upon conviction of breaking and entering a dwelling house with intent to commit larceny under this section and 20 years upon conviction of grand larceny under § 18.2-95 , all of the 20-year sentence being suspended, were not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 1001-85 (Ct. of Appeals Apr. 23, 1986).

Sentences of 10 years in the penitentiary (now state correctional facility) upon conviction of breaking and entering a dwelling house with intent to commit larceny under this section and 20 years upon conviction of grand larceny under § 18.2-95 , all of the 20-year sentence for grand larceny being suspended, were not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 1000-85 (Ct. of Appeals Apr. 23, 1986).

Sentences of 10 years in the penitentiary (now state correctional facility) upon conviction of each of two charges of breaking and entering a dwelling house with intent to commit larceny under this section, two years of the sentence on each offense being suspended, 5 years upon conviction of grand larceny under § 18.2-95 , two years of the sentence for the offense being suspended, 10 years in the penitentiary (now state correctional facility) for additional statutory burglary and grand larceny convictions at a later trial, four years of the sentence being suspended, were not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 0740-85 (Ct. of Appeals Apr. 23, 1986).

No error in denying concurrent sentence. - Given that the record on appeal adequately demonstrated that the sentencing judge correctly understood his discretion and sentenced defendant within the lawful scope of that discretion, the Court of Appeals of Virginia declined to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18. As a result, no error resulted in the denial of defendant's request for a concurrent sentence. Scalf v. Commonwealth, No. 0007-07-3,, 2008 Va. App. LEXIS 230 (Ct. of Appeals May 13, 2008).

Insufficient documentation to show nature of delinquent act. - As the Commonwealth failed to prove that appellant juvenile was previously adjudicated delinquent of an act that would have been a violent felony under subsection C of § 17.1-805 if committed by an adult, his conviction for possession of a firearm, in violation of Subsection A of § 18.2-308.2 , could not stand; the Commonwealth's attempt to prove a prior breaking and entering conviction, in violation of § 18.2-91 , was insufficient where the nature of the delinquent act for which the juvenile was adjudicated was unclear by the document in support of that conviction. Preston v. Commonwealth, 281 Va. 52 , 704 S.E.2d 127, 2011 Va. LEXIS 23 (2011).

VI. ILLUSTRATIVE CASES.

Evidence sufficient to sustain conviction. - In a prosecution under this section the evidence, though conflicting, warranted the jury in finding that a saddle found near defendant's residence was the property of the prosecuting witness; that this saddle had been seen by a witness in defendant's possession; that the saddle was stolen property; that defendant's possession was recent; that defendant failed to give a reasonable account of how his possession was acquired, but gave false account; that the saddle was obtained by entry of the barn of the prosecuting witness in the nighttime, as charged in the indictment; and that defendant was guilty of the larceny of the saddle. It was held that this was sufficient to sustain a verdict of guilty. Stallard v. Commonwealth, 130 Va. 769 , 107 S.E. 722 (1921). See also, United States v. Butler, 390 F.2d 620 (4th Cir. 1968), cert. denied, 392 U.S. 915, 88 S. Ct. 2078, 20 L. Ed. 2d 1375 (1968); Guynn v. Commonwealth, 220 Va. 478 , 259 S.E.2d 822 (1979).

Where credible evidence proved that defendant exited the back door of the residence, leaving the door open, and moved his truck to a nearby parking lot, and re-entered the residence carrying a gun with the intent to assault the victim, this was sufficient to support his conviction. Bruce v. Commonwealth, 22 Va. App. 264, 469 S.E.2d 64 (1996), aff'd, 256 Va. 371 , 506 S.E.2d 318 (1998).

Evidence was sufficient to convict defendant under this section where there was direct evidence of breaking by force, the defendant had pawned some of the stolen property, and the police found a set of tin snips at the scene bearing the defendant's first initial and last name. Cobb v. Commonwealth, 26 Va. App. 418, 494 S.E.2d 899 (1998).

Evidence was sufficient to identify the defendant as the person who broke into and entered a dwelling in violation of this section, notwithstanding the defendant's contention that the victim was mistaken in identifying him as the person inside the house because he only saw the intruder for "a couple of seconds" and his ability to see into the house was impaired by bright afternoon sunlight, where the victim testified that he had known the defendant for 20 years and that he was certain that he was the man he saw walking through his house. Wright v. Commonwealth, No. 0672-97-3.

Where the evidence placed the defendant in the office or rooms from which property was taken immediately before the thefts were discovered, where the defendant had no rationale for being in those locations, and where, when confronted, he gave each victim a false explanation of his presence and intentions, the evidence was sufficient to support his conviction. Brown v. Commonwealth, No. 0107-97-2 (Ct. of Appeals June 16, 1998).

Evidence was sufficient to convict defendant under this section where there was direct evidence of breaking by force, the defendant had pawned some of the stolen property, and the police found a set of tin snips at the scene bearing the defendant's first initial and last name. Cobb v. Commonwealth, 26 Va. App. 418, 494 S.E.2d 899 (1998).

A conviction for burglary was proper where the evidence showed that the defendant also intended to discharge a firearm in an occupied building and to commit criminal assault. Browder v. Commonwealth, No. 1499-97-2 (Ct. of Appeals Dec. 22, 1998).

The evidence was sufficient to support a defendant's conviction under this section where the defendant appeared on the victim's porch with two accomplices immediately before the break-in, supposedly looking for someone they believed lived in her home, the defendant was present in the car with the accomplices immediately following the break-in, the defendant attempted to conceal himself as the get-away car passed by a police officer and fled on foot when the car was eventually stopped, and the victim's neighbor, who witnessed the incident, testified that she observed two men leave the victim's home and her general description of the race and height of one of the men she saw leaving the victim's home fit the defendant. Perry v. Commonwealth, No. 2667-99-2, 2000 Va. App. LEXIS 749 (Ct. of Appeals Nov. 21, 2000).

Evidence was sufficient to establish intent to commit assault and battery, where defendant's conduct, both before and after he broke open apartment door, clearly manifested a continuing intent to assault his estranged wife. Moore v. Commonwealth, No. 0915-99-1 (Ct. of Appeals Feb. 29, 2000).

The evidence was sufficient to support the defendant's conviction for breaking and entering with the intent to commit assault and battery where the defendant called the owner of a home and, in threatening manner, informed the owner that he was coming to retrieve his wife, angrily demanded admittance when he arrived, entered the house, broke down the door to a bedroom and then assaulted both his wife and the owner; these circumstances supported the inference that the defendant traveled to the house with the intent to commit assault. Archer v. Commonwealth, No. 2550-99-2, 2000 Va. App. LEXIS 485 (Ct. of Appeals July 5, 2000).

The evidence was sufficient to sustain a defendant's conviction for breaking and entering with the intent to commit larceny where the defendant's unauthorized presence in an office suite before normal business hours permitted an inference that he intended to commit larceny and where, in addition to his unauthorized presence, the evidence proved that the defendant possessed a screwdriver whose tip was altered sufficiently to serve as a burglary tool and a latex glove that would prevent his fingerprints from being detected on a door he might manipulate for entry and an officer testified that several additional altered screwdrivers were found in the defendant's car. Hucks v. Commonwealth, 33 Va. App. 168, 531 S.E.2d 658, 2000 Va. App. LEXIS 568 (2000), overruled in part by Velasquez v. Commonwealth, 276 Va. 326 , 661 S.E.2d 454 (2008).

Evidence that showed that defendant broke into a house, took a woman's duffel bag which had distinctive red striping on it, and was seen by several neighbors carrying the bag around the time that two neighborhood houses were burglarized was sufficient to sustain defendant's convictions for statutory burglary. Cullipher v. Commonwealth, No. 2422-01-1, 2002 Va. App. LEXIS 626 (Ct. of Appeals Oct. 15, 2002).

Circumstantial evidence, such as the defendant's statement that he possesses a firearm, was sufficient evidence to prove beyond a reasonable doubt that an accused indeed possessed a firearm during a burglary under § 18.2-91 . Bell v. Commonwealth, No. 0318-02-1, 2003 Va. App. LEXIS 373 (Ct. of Appeals July 1, 2003).

Evidence was sufficient to support defendant's convictions for statutory burglary and grand larceny where: (1) defendant's DNA profile was consistent with blood drops underneath a window; (2) a partial analysis on a beer bottle did not exclude defendant; (3) defendant was not a customer or an employee of the co-op, and no evidence suggested that he had a reason to be on the premises; (4) defendant lied to police about his whereabouts at the time of the break-in; and (5) before police shared any information with defendant as to the condition of the truck, he made the spontaneous statement that "the truck was not damaged." Davis v. Commonwealth, No. 0649-03-2, 2004 Va. App. LEXIS 220 (Ct. of Appeals May 11, 2004).

Defendant's conviction for breaking and entering with the intent to commit a larceny was upheld on appeal where sufficient evidence existed to permit a rational trier of fact to have found that defendant broke into a transmission shop. Eyewitness testimony identified defendant as the perpetrator and the sequential testimony of the witnesses left no time frame unaccounted for. Green v. Commonwealth, No. 0703-04-2, 2005 Va. App. LEXIS 49 (Ct. of Appeals Feb. 8, 2005).

Defendant's convictions for grand larceny and breaking and entering with intent to commit larceny were affirmed as: (1) an employee of the victim business testified that a storeroom window was intact on the day before the burglary and that the next day he discovered his computer and other items missing and found that the window was broken; (2) the storeroom was not a place where employees regularly went; (3) defendant repeatedly told a detective that he had never been inside the storeroom; (4) it could be hypothesized that defendant's blood was left in the storeroom during the burglary and that defendant was the burglar; and (5) the fact that the burglar did not take a broken printer and that defendant knew that the printer was broken provided additional circumstantial evidence that defendant was the perpetrator. Smith v. Commonwealth,, 2006 Va. App. LEXIS 295 (July 5, 2006).

Evidence was sufficient to prove that defendant illegally entered an apartment, even though only the tenant testified on this point, because neither the owner nor the realty company could have given defendant permission to enter the apartment, as the apartment was leased; moreover, the trial court could have reasonably inferred that neither the tenant's roommate nor the owner gave defendant permission to enter the apartment given his method of entry, which was through a broken and boarded up window. Contrary to defendant's claim that there was insufficient evidence of burglary intent, defendant's statement to the police did not provide any alternative reason why he entered the home through the window off the alley, and he had a bag with him, directly below the window, which allowed the trial court to infer that defendant intended to take things from the home, put them into the bag, and steal those items. Slaughter v. Commonwealth, 49 Va. App. 659, 644 S.E.2d 89, 2007 Va. App. LEXIS 182 (2007).

Given that the Commonwealth presented sufficient evidence that defendant burglarized an apartment with the requisite specific intent and malice to disfigure, maim, disable, or kill at least three of the victims, without provocation, his convictions based upon said actions were upheld on appeal. Slayton v. Commonwealth, No. 0441-06-2, 2007 Va. App. LEXIS 180 (May 1, 2007).

Evidence was sufficient to prove that defendant broke into and entered the dwelling house of another because defendant had conceded that he had no legal right to be in his former girlfriend's apartment, and his counsel conceded that defendant was not legally there; a protective order that was in place at the time of the break-in forbade defendant from having any contact with the girlfriend, who told defendant not to come over and that if he did, she would call the police. Thomas v. Commonwealth,, 2008 Va. App. LEXIS 161 (Apr. 8, 2008).

Defendant's convictions on four counts of grand larceny and four counts of burglary were supported by sufficient evidence as defendant admitted that he took part in the burglaries of the first two of four homes, and the evidence supported a reasonable inference that defendant took part in the burglaries of the third and fourth homes, in that, at the fourth house, defendant's fingerprints were found on bank envelopes stolen from the third house. The similarity of the burglaries was relevant circumstantial evidence that tended to show that defendant was the criminal agent as the breaking and entering occurred by the same means each time, the same type of personal property was stolen, the master bedroom in each house was the target of each burglary, and dresser drawers were dumped in each location. Wilkins v. Commonwealth, No. 1297-07-1,, 2008 Va. App. LEXIS 483 (Ct. of Appeals Oct. 28, 2008).

Convictions of grand larceny, § 18.2-95 , and statutory burglary, § 18.2-91 , were supported by sufficient evidence because the trial court was not obligated to accept defendant's explanation of possession of recently stolen tools as credible, and was entitled to rely on evidence of his falsely denied recent possession as proof of his guilt; the trial court clearly rejected defendant's story of how he purchased, then pawned, the stolen tools as too coincidental, and disregarded defendant's explanation as too opposed to probabilities. Marshall v. Commonwealth,, 2009 Va. App. LEXIS 318 (July 14, 2009).

In a case in which defendant appealed his convictions for breaking and entering, in violation of § 18.2-91 , and grand larceny, in violation of § 18.2-95 , he argued unsuccessfully that the evidence was insufficient to support his convictions. The trial court reasonably concluded from the evidence that the items stolen and those defendant sold to a pawn shop were the same items: (1) the pawn shop required a picture identification prior to purchasing property from a customer; (2) the purchase agreements issued to defendant for the purchase of a guitar and television listed the serial numbers of the items purchased; and (3) those serial numbers matched the serial numbers of the stolen guitar and television. Lunsford v. Commonwealth, 55 Va. App. 59, 683 S.E.2d 831, 2009 Va. App. LEXIS 461 (2009).

Evidence, including that defendant and another individual went to a victim's apartment while armed, went to confront the victim, and rushed out of the apartment in pursuit of the victim, who had escaped through a window, was sufficient to support defendant's conviction for burglary while armed with a deadly weapon under § 18.2-91 . Jones v. Commonwealth, 279 Va. 295 , 687 S.E.2d 738, 2010 Va. LEXIS 4 (2010).

Evidence was sufficient to support defendant's conviction for statutory burglary under § 18.2-91 , although a companion who lived in the house opened a door to defendant, because defendant entered the house with the intent to steal and the entry occurred at night and, therefore, under § 18.2-90 , breaking was not a required element. Stegall v. Commonwealth,, 2010 Va. App. LEXIS 137 (Apr. 6, 2010).

Evidence that one set of victims testified that a nylon camouflaged holster found with defendant's wallet and belongings looked like one missing from their house, one of the firearms recovered from defendant's shed bore the serial number of a firearm missing from their home, and deer meat stolen from another victim and uniquely packaged was identified by another victim supported defendant's convictions for grand larceny, two counts of breaking and entering, two counts of larceny of a firearm, petit larceny, and destruction of property. Bowles v. Commonwealth,, 2010 Va. App. LEXIS 275 (July 13, 2010).

Totality of the circumstances permitted a reasonable inference that defendant broke and entered two businesses and intended to commit larceny when he did so because defendant was present at an office complex for an extended period of time at night after business hours; defendant left the building carrying a concealed object and placed it in his vehicle where a duffle bag was found containing a tire iron, work gloves, a flashlight, and loose change. Baker v. Commonwealth,, 2011 Va. App. LEXIS 358 (Nov. 22, 2011).

There was sufficient evidence to establish that defendant entered the pharmacy store with the intent to commit larceny or a felony other than murder, rape, robbery, or arson, upholding his conviction under the right result for the wrong reason doctrine, where the evidence showed that defendant told an informant during a controlled buy that defendant went to a pharmacy to rob it for specified drugs, and demanded money and a drug, demanded the drug from filled prescriptions when the pharmacist responded he had no access to the drug. Towler v. Commonwealth, 59 Va. App. 284, 718 S.E.2d 463, 2011 Va. App. LEXIS 402 (2011).

Because § 18.2-91 did not require the use or display of a firearm during a burglary, and because defendant's challenge to the sufficiency of the evidence under § 18.2-53.1 for use of a firearm in the commission of a breaking and entering was waived, the ends of justice exception in Va. Sup. Ct. R. 5A:18 did not apply. Blackwell v. Commonwealth,, 2012 Va. App. LEXIS 9 (Jan. 17, 2012).

Where the Commonwealth demonstrated that someone broke and entered into an office one day and the next day defendant successfully cashed a forged check drawn from that company's checking account, the factfinder was permitted to determine that defendant's justification for possessing the stolen checks was not credible and the evidence was sufficient to support defendant's burglary conviction. Hopper v. Commonwealth,, 2012 Va. App. LEXIS 200 (June 12, 2012).

Where defendant punched the victim, who had been blocking the entrance into his home, through the entry space and followed the victim into the house, the evidence was sufficient to allow the trial court to infer that defendant applied some force to the door in order to enter the house and to support defendant's conviction for statutory burglary with the intent to commit assault and battery. Latson v. Commonwealth,, 2012 Va. App. LEXIS 207 (June 19, 2012).

Evidence supported a finding that the breaking and entering and the grand larceny from one residence occurred at the same time and that the same person or persons committed the offenses as part of the same transaction. Furthermore, the facts gave rise to a fair inference that defendant committed the acts as recently stolen property from the residence was found in defendant's possession. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 155 (Apr. 29, 2014).

Evidence that a burglary occurred and that the items in defendants' possession were stolen in the burglary permitted an inference that they stole the items and the fact that no physical evidence linked defendants to the burglary was not relevant. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 285 (Aug. 19, 2014).

Evidence supported the conclusion that defendant was guilty of breaking and entering with the intent to commit larceny because defendant gained entry into the victim's home through force, and he was found in possession of goods recently taken from the house two days after the burglary; defendant's theory that the victim had given him the jewelry was contradicted by her testimony, and her testimony was supported by a police officer. Davis v. Commonwealth, 65 Va. App. 485, 778 S.E.2d 557, 2015 Va. App. LEXIS 341 (2015).

Defendant was properly convicted of statutory burglary because, while the evidence failed to prove whether the offense occurred during the daytime or during the nighttime, the landlord's living quarters and defendant's apartment were separate dwellings that shared a garage and utility room, and defendant committed a breaking when he gained access to the landlord's living quarters by opening the closed door from the utility room into the landlord's living quarters. Beck v. Commonwealth, 66 Va. App. 259, 784 S.E.2d 310 (2016).

Circumstantial evidence was sufficient to sustain defendant's breaking and entering and grand larceny convictions where he was seen pulling off the curb next to the burgled residence during the relevant time frame, he was arrested in the area of a second burglary, his seized vehicle contained stolen items, and thus, it was reasonable to infer defendant's involvement in all of the offenses. Commonwealth v. Moseley, 293 Va. 455 , 799 S.E.2d 683 (2017).

Evidence was sufficient to convict defendant of burglary of an auto service store because his exclusive unexplained possession of stolen inspection stickers within hours of the break-in gave rise to the inference he was guilt; even if the inference did not arise, there was sufficient circumstantial evidence to convict defendant because he was found in possession of a heavily dented aluminum baseball bat and an oversized screwdriver that the trial court could infer were used in the burglary. Sims v. Commonwealth, No. 0638-16-2, 2017 Va. App. LEXIS 128 (May 16, 2017).

Sufficient evidence supported defendant's burglary conviction because, (1) as the evidence was sufficient to prove defendant committed a larceny of the victim's property, the evidence was sufficient to prove defendant broke and entered a building to obtain the property, as defendant admitted entering the building to remove items from inside the building, and that the door was locked when defendant got to the building, and (2) a jury was entitled to disbelieve the part of defendant's testimony regarding a woman who allegedly let defendant in the building but believe defendant when defendant admitted the building was locked. Chambers v. Commonwealth, No. 1214-17-2, 2018 Va. App. LEXIS 136 (May 22, 2018).

Evidence was sufficient to support defendant's burglary convictions; it was reasonable to conclude that defendant and his cohorts broke and entered both victims' homes with the intent to commit larceny, as defendant was seen getting out of the vehicle seen at the victims' homes, which contained the victims' property, and one piece of property contained defendant's fingerprint. Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

Evidence established defendant committed grand larceny and burglary because the trial court was entitled to conclude the only reasonable hypothesis flowing from the evidence was that the four men who burgled a house were the same four men in the car that contained the stolen goods; defendant admitted that he had been driving the car prior to the stop, which supported the inference he was driving it during the time period for the burglary and illegally entered the home and committed larceny. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Sufficient evidence supported defendant's statutory burglary conviction because (1) a codefendant's testimony was not inherently incredible, (2) the testimony's key details were corroborated, and (3) defendant's possession of recently stolen jewelry implied defendant's participation. Lamp v. Commonwealth, No. 0660-18-3, 2019 Va. App. LEXIS 161 (July 16, 2019).

Evidence of defendant's identity was sufficient as a matter of law to convict him of statutory burglary, petit larceny, and obtaining money by false pretenses because the Commonwealth presented evidence from which the circuit court could infer that defendant was, in fact, the individual who sold a cell phone at a machine that gave people cash for their cell phones, which established a prima facie case that he was the individual who burglarized the victim's home and stole and sold her cell phone; and the circuit court could reasonably infer from the machine's report that an employee had an opportunity to view the individual at the machine and confirm that his appearance matched defendant's identification card. Wilson v. Commonwealth, No. 1887-18-1, 2019 Va. App. LEXIS 313 (Dec. 27, 2019).

Trial court did not err by denying defendant's motion to strike because the evidence was sufficient to prove his identity as the perpetrator of the burglary and larceny as from the evidence the jury could have concluded that defendant was the same person they viewed in the camera footage and photographs from the victim's home, the officer saw emerge and flee from the residence, the officer pursued from the home, and the detective arrested. Davis v. Commonwealth, No. 1010-19-2, 2020 Va. App. LEXIS 138 (May 5, 2020).

Circumstantial evidence held sufficient. - See Johnson v. Commonwealth, No. 3026-02-2, 2003 Va. App. LEXIS 707 (Ct. of Appeals Dec. 30, 2003).

Evidence sufficient to convict as principal in the second degree. - In a case in which defendant was convicted of burglary, in violation of § 18.2-91 , as a principal in the second degree, he argued unsuccessfully that the evidence was insufficient to show that he actually committed the burglary. The evidence established that he gave his wife the entry codes she needed to enter both the main office building in which an insurance agency was located and the agent's actual office space, and the evidence further established that when he gave her the codes he knew that she intended to use them to gain entry to the insurance office and steal property; the Commonwealth was not required to prove that he committed the actual burglary. Saunders v. Commonwealth,, 2009 Va. App. LEXIS 532 (Dec. 1, 2009).

Evidence was sufficient to show that defendant aided and abetted in statutory burglary because, while the perpetrator attempted to gain entry into the victim's apartment, defendant waited a short distance away, entered the apartment when summoned by the perpetrator, exited the apartment when the police arrived, and knocked on the door of another apartment. Defendant's knowledge of the perpetrator's criminal intent, failure to discourage completion of the crime, and subsequent attempt to conceal defendant's involvement in the crime was shown. Kersey v. Commonwealth,, 2015 Va. App. LEXIS 349 (Nov. 24, 2015).

Tool marks on door and admission of burglaries in neighborhood were insufficient evidence. - Where burglary victim's testimony furnished evidence only of tool marks on his garage door, and defendant's admissions that he had committed burglaries in the neighborhood furnished no proof that an entry was actually made into the house in question by a person having the requisite intent, because he simply did not know which houses he had entered, burglary conviction would be reversed for failure to prove the corpus delicti. Caminade v. Commonwealth, 230 Va. 505 , 338 S.E.2d 846 (1986).

Evidence sufficient to convict for attempted statutory burglary. - Evidence was sufficient to convict defendant of attempted statutory burglary because the evidence was sufficient to prove that defendant attempted to break into his sister's house with the intent to steal money or items from her house at a time when he needed "a fix" for his drug addiction because: (1) defendant knew his sister was not at home because no one responded to his "banging" on the door; (2) defendant pulled off the screens on some windows, but was unable to open the windows; (3) defendant then beat on the lock on the back door with a shovel; (4) a neighbor informed defendant that his sister was not at home and defendant walked to the front of the house where the neighbor heard more loud noise but did not investigate further; and (5) defendant's sister testified that she had not given defendant permission to enter her house and that he later told her he that he did try and break into her house. Perkins v. Commonwealth, No. 1025-03-1, 2004 Va. App. LEXIS 419 (Ct. of Appeals Sept. 7, 2004).

Evidence that a resident of the apartment building observed defendant, from a distance of about ten feet, with a hammer in his hand immediately after she heard banging in the vicinity, and that, five to ten minutes later, police found defendant with an object later identified as a hammer was sufficient to support defendant's conviction for attempted breaking and entering with intent to commit larceny. Barnett v. Commonwealth,, 2007 Va. App. LEXIS 2 (Jan. 9, 2007).

Evidence was sufficient to prove that defendant attempted to commit burglary of a residence, as an officer observed evidence of a break-in after receiving a call from the home, and a maintenance person described damage to screens that the maintenance person replaced during the time frame consistent with defendant's method of cutting screens to gain entry. Smith v. Commonwealth,, 2011 Va. App. LEXIS 156 (May 10, 2011).

Evidence sufficient to sustain conviction for conspiracy to commit burglary. - Evidence was sufficient to support defendant's convictions of conspiracy to commit burglary; it was reasonable to conclude that because defendant conspired to commit a burglary on one victim's property, he conspired to commit a burglary on the other victim's property, as eyewitnesses saw three men enter one victim's house together, carry out his property, leave together, and then run from police together, and both victims' homes were burglarized the same day and were geographically near each other. Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

Evidence supported the trial court's finding of the collocation of circumstances necessary to establish a conspiracy to break and enter with the intent to commit larceny because four men were traveling together in a car and arrived at the victims' residence together at a time when no one was home; the evidence supported a finding that the men worked together to remove numerous items from the residence, and the men left the scene together, were together when pulled over by the police, and fled. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Driving the getaway car. - Evidence was sufficient to sustain a burglary conviction where defendant drove the other participants to the crime scene, waited for their return from a safe distance across the street in the dark, and then provided the transportation for their flight from the scene of the crime by driving the getaway car. Defendant admitted on cross-examination to knowing before the burglary that "something bad was going to happen at the burglary scene." Thomas v. Commonwealth, No. 2765-04-2,, 2006 Va. App. LEXIS 73 (Ct. of Appeals Feb. 28, 2006).

Evidence held insufficient to sustain conviction. - See Williams v. Commonwealth, 193 Va. 764 , 71 S.E.2d 73 (1952).

Where neighbor's testimony failed to correspond with the victim's description of her knitting bag in two pivotal respects and the neighbor did not testify as to whether or not defendant was carrying the bag when he initially walked behind the town homes towards the victim's residence, the evidence was insufficient to support the inference that defendant was the person who broke into the victim's residence and stole her property. McKinney v. Commonwealth, No. 1129-96-2 (Ct. of Appeals May 13, 1997).

Where appellant's sister had not told appellant that he could not return to the apartment, where appellant temporarily resided in the apartment, slept on the sofa, and had clothing in the apartment, and where the inference that appellant somehow broke into the apartment was no more reasonable than the inference that one of the children or the mother opened the door to give him entry to the apartment, the evidence failed to prove beyond a reasonable doubt that a breaking occurred. Mayo v. Commonwealth, No. 0293-97-2 (Ct. of Appeals Nov. 25, 1997).

Circumstantial evidence was insufficient to prove that the defendant committed grand larceny and/or burglary where: (1) there was evidence that she walked toward a business that was burglarized, but there was no evidence that she entered the business or was seen inside the business; (2) although the defendant's boots were very similar to footprints in the snow at the scene of the crime, no evidence of a match was presented; and (3) police officers saw other persons near the scene of the crime shortly after the defendant was allowed to leave, but did not examine their shoes or try to match them to the footprints in the snow. Martin v. Commonwealth, No. 1556-97-2 (Ct. of Appeals June 9, 1998).

Evidence was insufficient to prove a "breaking" into the residence of the defendant's mother and stepfather where the defendant had a key to the house, the defendant's mother testified that when he called her she gave him permission to enter the house and that he was never told that he could not enter the house, and the defendant's stepfather testified that he did not tell the defendant that he could not be in the house, that he knew that the defendant still had clothes in the house, and that the defendant did have permission to enter the house. Whitaker v. Commonwealth, No. 2050-97-4 (Ct. of Appeals July 7, 1998).

Evidence was insufficient to support a conviction where: (1) the parties stipulated that two homes were burglarized and that goods valued at more than $200 were stolen from each home; (2) although there was evidence that the defendant thereafter pawned some items, there was no evidence as to what those items were; and (3) a police officer could not recall whether the defendant admitted that he pawned "that stuff" or "some stuff." Dailey v. Commonwealth, No. 0327-98-1 (Ct. of Appeals Feb. 9, 1999).

Where the evidence established that on two occasions on the day of the burglary a stolen cell phone was used to call a cab to transport the defendant, and the defendant acknowledged that the calls were made on his behalf although he did not recall who made the actual calls, such evidence was insufficient to establish the defendant's guilt beyond a reasonable doubt. While the suspicion of the defendant's guilt was strong, it was equally plausible that the phone calls were made by a certain third parties. Savage v. Commonwealth, No. 0889-00-1, 2001 Va. App. LEXIS 119 (Ct. of Appeals Mar. 13, 2001).

Defendant's conviction of statutory burglary was reversed, because the offense of statutory burglary required an entry during the nighttime, and the evidence clearly indicated that defendant's entry into a business took place during the day, and the Commonwealth did not amend the indictment to allege breaking and entering, which would have constituted burglary where the entry occurred during the day. Scott v. Commonwealth, 49 Va. App. 68, 636 S.E.2d 893, 2006 Va. App. LEXIS 511 (2006).

Evidence was insufficient to sustain defendant's conviction for statutory burglary under § 18.2-91 , because defendant entered the house through the open garage, which was part of the house, and only employed force to enter the utility room, once inside the house. Lacey v. Commonwealth, 54 Va. App. 32, 675 S.E.2d 846, 2009 Va. App. LEXIS 214 (2009).

Evidence was insufficient to convict defendant as a principal in the second degree of burglary because, although the circumstances were highly suspicious, they did not show that defendant knowingly contributed to the burglary committed by a principal, a known burglar, or that the principal committed a burglary since evidence that the principal came from a house containing three apartments did not show that he came from the burgled apartment or that he was the perpetrator of the burglary, particularly as the victim had been away for several days and did not know when the breaking had occurred. Gillison v. Commonwealth,, 2009 Va. App. LEXIS 477 (Oct. 27, 2009).

While the evidence showed that defendant and a coconspirator entered the subject house sometime while the house was empty, between 6:30 and 11:30 p.m, there was no clarification on the time of the entry and the trial court did not take judicial notice of what time sunset occurred. Thus, the evidence was insufficient to prove that defendant entered the house in the nighttime, as required for a burglary conviction. Derrick v. Commonwealth, No. 0240-12-2,, 2013 Va. App. LEXIS 101 (Ct. of Appeals Apr. 2, 2013).

Evidence was insufficient to prove that defendant committed the breaking and entering and grand larceny offenses at two residences because a reasonable fact finder could not have concluded beyond a reasonable doubt that defendant exercised dominion and control over stolen property that was recovered. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 155 (Apr. 29, 2014).

Evidence sufficient to support unlawful entry. - Evidence was sufficient to support the unlawful entry element for defendant's burglary conviction under § 18.2-91 where defendant conceded that he entered the victim's apartment at night, without her permission and contrary to her will, and the trial court had ample reason to disbelieve that defendant heard any voice, whether real or imagined, inviting him into the apartment. Menefee v. Commonwealth, No. 3188-02-2, 2004 Va. App. LEXIS 77 (Ct. of Appeals Feb. 17, 2004).

Statutory burglary conviction was upheld, where it was supported by evidence that defendant: (1) broke into the victim's home around midnight after making repeated phone calls to the victim which were eventually unanswered; (2) broke into the victim's home, initially taking some of the victim's belongings; (3) returned to the home and assaulted the victim; and (4) threatened to return to the home in order to "get the victim"; defendant's assaultive intent could be inferred by the fact finder, despite defendant's denial of the same. Hicks v. Commonwealth, No. 1421-03-3, 2004 Va. App. LEXIS 172 (Ct. of Appeals Apr. 13, 2004).

Evidence was sufficient to support defendant's conviction for statutory burglary where the Commonwealth proved that defendant broke into the victim's locked house through a back window. When the victim arrived home, defendant stepped from behind the front door with a pistol in his hand and subsequently raped her. Breeden v. Commonwealth, 43 Va. App. 169, 596 S.E.2d 563, 2004 Va. App. LEXIS 257 (2004).

District court properly applied the Armed Career Criminal Act to defendant's state conviction for burglary, even though the statute under which defendant was convicted ( § 18.2-91 ) encompassed unlawful entry into areas that were not buildings or structures, because the indictment charged defendant with breaking and entering a business, which necessarily ensured that defendant sought to enter a building or structure. United States v. Shelton,, 2006 U.S. App. LEXIS 22284 (4th Cir. Aug. 30, 2006).

CIRCUIT COURT OPINIONS

Evidence sufficient to sustain conviction. - Because photographs of a door showed extensive damage to the door and the door frame, defendant was found in the premises going through a trash can, and defendant did not have permission to enter the apartment, the evidence fully supported a conviction for statutory burglary. Commonwealth v. Abbott, 68 Va. Cir. 73, 2005 Va. Cir. LEXIS 89 (Amherst County 2005).

§ 18.2-92. Breaking and entering dwelling house with intent to commit other misdemeanor.

If any person break and enter a dwelling house while said dwelling is occupied, either in the day or nighttime, with the intent to commit any misdemeanor except assault and battery or trespass, he shall be guilty of a Class 6 felony. However, if the person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

(Code 1950, § 18.1-88.1; 1968, c. 530; 1970, c. 381; 1975, cc. 14, 15; 1992, c. 486.)

Cross references. - As to requirement of saliva or tissue sample for DNA analysis after arrest for a violent felony, see § 19.2-310.2:1 .

Law review. - For 1995 survey of criminal law and procedure, see 29 U. Rich. L. Rev. 951 (1995).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, §§ 3-5; 9B M.J. Husband and Wife, § 87.

CASE NOTES

Other than by judicial extension in some jurisdictions, there was no common law equivalent to this section. Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994).

This section is a lesser included offense of § 18.2-89 , the principal distinction being that under this section the crime intended upon entry is a non-theft misdemeanor rather than a felony. Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994).

"Occupied" construed. - The phrase "while said dwelling is occupied" in this section is not an element of the crime requiring the physical presence of the occupant at the time of the unlawful entry. Rather, it is language intended by the legislature to emphasize the character of the use of the dwelling as a place of current habitation rather than a dwelling that is temporarily vacant. Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994).

Evidence establishing both actual and constructive breaking and entering. - Where the prosecutrix in a case of breaking and entering with the intent to commit assault and battery testified that she opened her door only about one foot, and thus the defendant had to push the door open additionally in order to enter the apartment, and where she also stated that she expressly told the defendant to remain outside when she went to get him a glass of water, this testimony established both an actual and a constructive breaking and entering by the defendant. Johnson v. Commonwealth, 221 Va. 872 , 275 S.E.2d 592 (1981).

Forcing victim to open door is constructive breaking. - Given the lack of any qualifications, the phrase "to gain entry" in a jury instruction permitted the jury to find defendant guilty of burglary under § 18.2-92 by way of a constructive breaking if defendant forced the victim to open a door no less than if defendant had forced the door open. Lay v. Commonwealth, 50 Va. App. 330, 649 S.E.2d 714, 2007 Va. App. LEXIS 326 (2007).

Evidence showing only that the defendant broke and entered an apartment as he fled from the police, entering from one side of the apartment and exiting on the other, was insufficient to show that he did this with intent to obstruct a law enforcement officer. Thomas v. Commonwealth, No. 0213-90-2 (Ct. of Appeals March 12, 1991).

Defendant's mere presence did not establish participation in the break-in; however, other circumstances surrounding his presence and his subsequent entry into the dwelling were sufficient to establish that he shared the criminal intent to break into the apartment. Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994).

Intent inferred. - Required intent to commit some misdemeanor could be inferred by defendant's participation either as the principal housebreaker or as a principal in the second degree to the breaking, and his subsequent entry into the home. Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994).

Amending the indictment to change the intent. - Trial court did not err by amending the indictment, which charged breaking and entering with the intent to commit destruction of property, by adding the phrase "or indecent exposure" where: (1) the amendment permitted the Commonwealth to satisfy its burden of proof with either of two specific alternatives; (2) the modification of the original indictment did not change the general nature or character of the crime charged; (3) only the intent changed, and as amended the indictment still charged a misdemeanor of the same general nature or class; (4) the amendment did not surprise defendant because the original indictment included a count that charged indecent exposure; (5) the amendment did not prejudice defendant because the trial court continued the case after making the amendment; and (6) the trial court convicted defendant of the charge as originally stated. Esquibele v. Commonwealth, No. 2500-03-4, 2004 Va. App. LEXIS 586 (Ct. of Appeals Nov. 30, 2004).

Evidence sufficient for breaking. - Evidence presented at trial was sufficient to show that defendant broke and entered the victim's apartment. The evidence proved that defendant was present at the scene of the break-in and that he was inside the victim's apartment immediately following the break-in. Although victim's testimony was not conclusive as to what door - the main door of the apartment building or the interior apartment door - she saw defendant push against, the trier of fact was privileged to weigh this evidence and determine whether or not defendant committed an act of breaking. Johnson v. Commonwealth, 18 Va. App. 441, 444 S.E.2d 559 (1994).

Evidence of deadly weapon sufficient. - Evidence was sufficient to convict defendant of statutory burglary while armed with a deadly weapon under § 18.2-92 where it showed that defendant entered an apartment looking for his assailants, brandished gun at the occupants, and only left when satisfied his quarry was not present; the Commonwealth did not need to prove that the gun was operable or loaded for it to be a deadly weapon. Inge v. Commonwealth, 39 Va. App. 85, 570 S.E.2d 869, 2002 Va. App. LEXIS 617 (2002).

No error in failure to instruct. - Where defendant made no effort to take any property or thing of value, reached for and tore the victim's night clothes, and attempted to quiet her and get her to her bedroom, the trial judge did not err in refusing to instruct the jury that they could find the defendant guilty of burglary with the intent to commit a misdemeanor. Lea v. Commonwealth, 16 Va. App. 300, 429 S.E.2d 477 (1993).

Evidence insufficient to show intent to obstruct justice. - Evidence did not prove that defendants had the intent to obstruct justice when they entered apartment where evidence proved that the three men entered the apartment in an apparent attempt to avoid detection or to await the end of the disturbances in which they had been involved; no evidence proved that they had any contact with police officers before they entered the apartment or even that police officers were present when they entered the apartment; and although the men peered through the windows, no facts or circumstances proved that the defendants intended by threat or force to attempt to intimidate or impede a law-enforcement officer. Dowdell v. Commonwealth, No. 1694-93-1 (Ct. of Appeals March 7, 1995).

Review. - Because defendant did not argue, and neither party briefed the specific issues, the court of appeals decline to address his assignment of error as it was insufficiently preserved; neither party addressed whether defendant intended to commit any misdemeanor except assault and battery or trespass, and thus, it was unclear whether he would have fulfilled the requirements for the crime with which he was charged, burglary. Bethel v. Commonwealth, No. 1095-16-1, 2017 Va. App. LEXIS 120 (May 2, 2017).

Applied in Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002).

§ 18.2-93. Entering bank, armed, with intent to commit larceny.

If any person, armed with a deadly weapon, shall enter any banking house, in the daytime or in the nighttime, with intent to commit larceny of money, bonds, notes, or other evidence of debt therein, he shall be guilty of a Class 2 felony.

(Code 1950, § 18.1-90; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For survey of Virginia law on criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, § 5; 12A M.J. Larceny, § 2; 16 M.J. Robbery, §§ 3, 9.

CASE NOTES

Section recognizes robbery as crime against the person. - The enactment of this section clearly shows that it has never been the intention of the legislature to enlarge, decrease or change the common-law crime of robbery. Recognizing the doctrine that robbery is a crime against the person, and not against a house or other inanimate thing, the legislature passed this section. Falden v. Commonwealth, 167 Va. 542 , 189 S.E. 326 (1937); Cox v. Commonwealth, 218 Va. 689 , 240 S.E.2d 524 (1978).

Property of another need not be taken. - A person convicted under this section need not have taken the personal property of another. Hill v. Commonwealth, 2 Va. App. 683, 347 S.E.2d 913 (1986).

"Banking house." - Technical distinctions in the definitions of "bank" and "savings and loan association" provided for regulatory purposes, and found in the banking and finance title of the Code, do not bar inclusion of both types of financial institutions within the general descriptive term "banking house" as used in this section. Black v. Commonwealth, 20 Va. App. 186, 455 S.E.2d 755 (1995).

Expert improperly qualified. - In a prosecution for the use of a deadly weapon with the intent to commit larceny and the use of a firearm in the commission of a robbery, the trial court erred in qualifying a detective as an expert in firearms, as the BB gun defendant used was clearly not a "firearm." However, the error was harmless as the detective had the requisite knowledge to be classified as an expert on BB guns, and his improper classification could have only had a slight effect on the jury, if any. Justiss v. Commonwealth, 61 Va. App. 261, 734 S.E.2d 699, 2012 Va. App. LEXIS 404 (2012).

Expert's opinion went to ultimate issue. - In prosecution for the use of a firearm with the intent to commit larceny, the trial court reversibly erred in allowing a detective to testify as an expert that the BB gun defendant used was capable of causing serious injury or death, as this opinion went to the ultimate issue - whether the BB gun was a "deadly weapon" - and improperly invaded the province of the jury. Justiss v. Commonwealth, 61 Va. App. 261, 734 S.E.2d 699, 2012 Va. App. LEXIS 404 (2012).

Evidence of deadly weapon sufficient. - Evidence was sufficient to support defendant's conviction of entering a bank with a deadly weapon, because defendant displayed the object as an offensive weapon, capable of inflicting death or great bodily injury, and the teller, who was familiar with guns, testified that she saw the handle part of the pistol. Davis v. Commonwealth, No. 1149-01-3, 2002 Va. App. LEXIS 580 (Ct. of Appeals Oct. 1, 2002).

Because there was evidence that a BB gun could cause serious injury or death, even if the trial court had given defendant's requested jury instructions, the verdict would have been the same; thus, defendant was properly convicted of entering a bank armed with a deadly weapon with the intent to commit larceny. Young v. Commonwealth,, 2005 Va. App. LEXIS 402 (Oct. 11, 2005).

In prosecution for the use of a deadly weapon with the intent to commit larceny, there was sufficient evidence for a jury to conclude that the BB gun defendant used while robbing a bank was a deadly weapon, including a detective's testimony that he knew of two incidents involving BB guns that resulted in either death or serious bodily injury. Justiss v. Commonwealth, 61 Va. App. 261, 734 S.E.2d 699, 2012 Va. App. LEXIS 404 (2012).

Pistol with wooden bullets held to be deadly. - Where the defendant entered the bank wielding a pistol in the ordinary manner contemplated by its nature and design and his brandishing of it held it out as an offensive weapon, capable of inflicting death or great bodily injury, the mere fact that the wooden bullets therein were ab initio incapable of being discharged did not make the pistol any less deadly within the meaning of this section. Cox v. Commonwealth, 218 Va. 689 , 240 S.E.2d 524 (1978).

Evidence of good character of accused is admissible. - Evidence of the good character of the accused in a prosecution under this section should be admitted, not for the purpose of affecting his guilt or innocence, but for the effect it may have upon the degree of his punishment. The Commonwealth should also have the right to introduce evidence in rebuttal. Roach v. Commonwealth, 157 Va. 954 , 162 S.E. 50 (1932).

Nolo contendere should not be accepted. - A charge of entering a banking house while armed with a deadly weapon with intent to commit larceny is a charge of a felony. Under the law prevailing in Virginia a plea of nolo contendere cannot be accepted in a felony case, and in a prosecution under this section the court errs in receiving the plea. Roach v. Commonwealth, 157 Va. 954 , 162 S.E. 50 (1932).

Convictions under this section and § 18.2-53.1 not double jeopardy. - In order to prove the offense pursuant to this section, the commonwealth must establish that the defendant entered a bank while armed with a deadly weapon but evidence of use or display of the weapon is not an element of this crime as it is under § 18.2-53.1 and, therefore, convicting a defendant both for use of a firearm in the commission of a robbery and for entry into a banking house while armed with a deadly weapon does not violate the double jeopardy clause. Collins v. Commonwealth, No. 0253-00-1, 2001 Va. App. LEXIS 90 (Ct. of Appeals Feb. 27, 2001).

Convictions under this section and § 18.2-58 not double jeopardy. - Convictions for both robbery and entry of a banking house with the intent to commit larceny while armed with a deadly weapon did not violate the double jeopardy clause. Hill v. Commonwealth, 2 Va. App. 683, 347 S.E.2d 913 (1986).

§ 18.2-94. Possession of burglarious tools, etc.

If any person have in his possession any tools, implements or outfit, with intent to commit burglary, robbery or larceny, upon conviction thereof he shall be guilty of a Class 5 felony. The possession of such burglarious tools, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary, robbery or larceny.

(Code 1950, § 18.1-87; 1960, c. 358; 1970, c. 587; 1975, cc. 14, 15.)

Law review. - For note discussing possession of burglarious tools, see 53 Va. L. Rev. 702 (1967). For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973). For Fourth Circuit Review, see 35 Wash. & Lee L. Rev. 564 (1978).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

For note, "Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest," 97 Va. L. Rev. 1727 (2011).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary & Housebreaking, §§ 6.1, 16.

CASE NOTES

The presumption of criminal intent does not attach to all tools, implements, or outfits embraced by the statute but only to such offending articles innately burglarious in character, those commonly used by burglars in house breaking and safe cracking, particularly suitable and appropriate to accomplish the destruction of any ordinary hindrance of access to any building, vault or safe. Hagy v. Commonwealth, 35 Va. App. 152, 543 S.E.2d 614, 2001 Va. App. LEXIS 153 (2001).

Statute requires proof that tools, implements or outfit were intrinsically "burglarious" only when the Commonwealth relies upon the statutory presumption to establish the requisite criminal intent. Moss v. Commonwealth, 29 Va. App. 1, 509 S.E.2d 510 (1999).

Plastic bag not an "implement." - As an ordinary plastic bag is not an "implement" as proscribed by § 18.2-94 because it serves no particular purpose in furtherance of a trade, occupation, profession, or work, defendant's conviction for possession of burglarious tools was reversed. Williams v. Commonwealth, 50 Va. App. 337, 649 S.E.2d 717, 2007 Va. App. LEXIS 333 (2007).

Mere possession of burglarious tools is not a crime. - The mere possession of burglarious tools is not a crime under the statute. It is possession with intent to use them to commit a crime. The tools or implements may be, and usually are, designed and manufactured for lawful purposes. Burnette v. Commonwealth, 194 Va. 785 , 75 S.E.2d 482 (1953).

The mere possession of burglarious tools, without more, is not in itself considered a crime under this section. Richards v. Cox, 303 F. Supp. 946 (W.D. Va. 1969).

Mere possession of burglarious tools is not a crime, for such may be, and usually are, designed and manufactured for lawful purposes; the gravamen of the offense arises from the possessor's intent to use these common, ordinary objects for a criminal purpose specified by statute, namely, burglary, robbery or larceny. Blaney v. Commonwealth, No. 2571-99-1, 2001 Va. App. LEXIS 174 (Ct. of Appeals Apr. 3, 2001).

This section does not require that burglarious tools actually be used in the burglary, only that they be possessed with intent to commit burglary. Watkins v. Commonwealth, 26 Va. App. 335, 494 S.E.2d 859 (1998).

All the last sentence of this section does is to create a presumption of a criminal intent from proof of possession of burglarious tools or implements. Such a presumption is not conclusive; it cuts off no defense. It interposes no obstacle to a contest of all the issues of fact, and relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence. It is merely a rule of evidence and not the determination of a fact. Burnette v. Commonwealth, 194 Va. 785 , 75 S.E.2d 482 (1953); Nance v. Commonwealth, 203 Va. 428 , 124 S.E.2d 900 (1962).

Possession creates only a prima facie presumption of the criminal intent of the accused which is not conclusive. Richards v. Cox, 303 F. Supp. 946 (W.D. Va. 1969).

And such sentence is constitutional. - The last sentence of this section is not unconstitutional as making the mere possession of common ordinary tools of a trade or calling prima facie evidence of intent to commit a crime. The word "such," as used in the last sentence, does not refer to the phrase "any tools, etc.," used in the preceding sentence, and viewing the history and purpose of this section a proper construction requires the word "such" to be ignored and deleted. Thus construed the statute makes the meaning of the last sentence clear and consistent with the legislative intent to adopt a rule of evidence making possession of only burglarious tools (by one other than a licensed dealer) prima facie evidence of intent to commit burglary, robbery or larceny. Burnette v. Commonwealth, 194 Va. 785 , 75 S.E.2d 482 (1953).

The test of the constitutionality of a statute making proof of a certain fact presumptive evidence of another fact is whether there is a natural and rational evidentiary relation between the fact proven and the ultimate fact presumed. The last sentence of this section, making possession of burglarious tools prima facie evidence of intent to commit burglary, robbery or larceny meets this test. Burnette v. Commonwealth, 194 Va. 785 , 75 S.E.2d 482 (1953).

This section couples "possession" of tools with the "intent" to commit a crime. Richards v. Cox, 303 F. Supp. 946 (W.D. Va. 1969).

State must prove "tools" were under control of accused. - It is incumbent upon the Commonwealth to prove that the "tools" were under the control of the accused. Richards v. Cox, 303 F. Supp. 946 (W.D. Va. 1969).

Pair of pants can constitute "outfit" as that term is used in this section. Mercer v. Commonwealth, 29 Va. App. 380, 512 S.E.2d 173 (1999).

Burden of proof on showing pant wearing intent. - Because a pair of pants is not necessarily "burglarious," that is, it is not an item commonly used to break into a structure, to convict defendant under Virginia's burglary statute, the Commonwealth was required to prove that defendant possessed these pants with the intent to use them to commit larceny. Mercer v. Commonwealth, 29 Va. App. 380, 512 S.E.2d 173 (1999), overruled as stated in Edwards v. Commonwealth, 53 VA. App. 402, 672 S.E.2d 894 (2009) (overruled "to the extent that it defines 'outfit' as 'wearing apparel"').

"Outfit" not limited to wearing apparel. - The Court of Appeals of Virginia overrules Mercer v. Commonwealth, 29 Va. App. 380, 512 S.E.2d, 173 (1999) to the extent that it defines "outfit" as "wearing apparel," and holds that, in the context of § 18.2-94 , the appropriate definition of "outfit" is the articles forming equipment or the tools or instruments comprised in any special equipment; as a carpenter's or a surgeon's outfit. Edwards v. Commonwealth, 53 Va. App. 402, 672 S.E.2d 894, 2009 Va. App. LEXIS 160 (2009).

Burden of making reasonable explanation is shifted to defendant. - When a person, other than a licensed dealer, has been shown to have in his possession burglarious tools, the burden of making a reasonable explanation to overcome the statutory presumption is shifted to him, - an explanation sufficiently credible to be accepted by a jury. Nance v. Commonwealth, 203 Va. 428 , 124 S.E.2d 900 (1962).

Once possession is proven, the burden of going forward with the evidence shifts to the defendant, but this does not shift the burden of ultimate proof, or deprive defendant of his right to have the jury instructed on the presumption of innocence. Richards v. Cox, 303 F. Supp. 946 (W.D. Va. 1969).

Upon proof that one not a licensed dealer is in possession of "burglarious tools," the Commonwealth is entitled to a presumption on intent, shifting the burden to the defendant to explain the possession. However, the Commonwealth is free to prove its case without the benefit of the presumption. Carter v. Commonwealth, 223 Va. 528 , 290 S.E.2d 865 (1982).

Instruction held proper. - An instruction to the jury in the words of the last sentence of this section was proper where the evidence showed possession of burglarious tools. Nance v. Commonwealth, 203 Va. 428 , 124 S.E.2d 900 (1962).

Vending machine keys were tools. - Where defendant admitted that he wrongfully gained possession of vending machine keys and thereafter employed them to open several vending machines and steal coins, he clearly possessed and used the keys, tools embraced by this section, with an intent to commit larceny, a violation of the statute. Moss v. Commonwealth, 29 Va. App. 1, 509 S.E.2d 510 (1999).

Sufficiency of evidence. - In prosecution under this section where evidence showed that burglarious tools were found in a car in which defendant was riding with another man, conviction was reversed because Commonwealth failed to prove beyond a reasonable doubt that defendant had actual or constructive possession and control of them. Burnette v. Commonwealth, 194 Va. 785 , 75 S.E.2d 482 (1953).

Where the two defendants had been riding together in an automobile and one of them, while being hotly pursued by police officers late at night, had thrown burglarious tools from the car, a conviction of each defendant under this section was affirmed. Nance v. Commonwealth, 203 Va. 428 , 124 S.E.2d 900 (1962).

Where defendant was a stranger in the neighborhood, passed by people and houses closer to his car to get to the residence in question, left his companion positioned so as to serve as a lookout, was wearing a wool coat on a hot summer day, concealing a screwdriver that could be used in a break-in and carrying a towel, and claimed that he had had car trouble and that his companion was a hitchhiker but his car was started without difficulty, the trier of fact was entitled to draw reasonable inferences from these facts. Carter v. Commonwealth, 223 Va. 528 , 290 S.E.2d 865 (1982).

A trial court did not err in concluding that, in the aggregate, a defendant's possession of a ski mask, dark clothing, duct tape, a glass cutter and a long screwdriver constituted "tools, implements, or outfits innately burglarious in character." Filby v. Commonwealth, No. 2208-99-1, 2000 Va. App. LEXIS 552 (Ct. of Appeals July 25, 2000).

The evidence was sufficient to support a conviction under this section where all the tools found in the vehicle occupied by the defendant and others were prying implements or tools that could be used to forcibly open vending machines or other structures, the defendant had been seen on three separate occasions exchanging large amounts of coins for currency after vending machines in the vicinity had been vandalized, the driver of the car had a key used to enter vending machines and one of the screwdrivers in the car was found to have red paint on it that was of the same color that is on Coca-Cola vending machines Hagy v. Commonwealth, 35 Va. App. 152, 543 S.E.2d 614, 2001 Va. App. LEXIS 153 (2001).

Although a dent-puller was not innately burglarious in character, the circumstantial evidence in defendant's case was sufficient to sustain defendant's conviction of possession of burglarious tools, specifically a dent-puller, where: (1) a motorist who drove by and saw defendant walking from some vending machines toward defendant's truck noticed nothing wrong with the machines at that time, but upon returning within 10 minutes, noticed that defendant's truck was gone and the machines had been broken into; (2) the motorist's testimony regarding the timing of the damage seemed to contradict defendant's claim that defendant only went to investigate the machines after seeing some suspicious juveniles at the machines and discovered at that time that the machines had been broken into; (3) defendant's truck contained a dent-puller; (4) a police officer testified that the vending machines appeared to have been broken into using a dent-puller; and (5) the stolen money changers from the vending machines were found in a dumpster 25 yards from defendant's apartment. Sprouse v. Commonwealth,, 2002 Va. App. LEXIS 748 (Dec. 17, 2002).

Considering that defendant used rocks to assist in breaking through a door and that he intended to break and enter, the evidence was sufficient to prove he possessed burglary tools, where a police officer responded to a scene and saw defendant manipulating the victim's screen door with something in his hand, defendant fled when the officer was announced, and the officer and a neighbor chased and apprehended defendant and found two, three-inch in diameter rocks in defendant's front pants pocket. Bell v. Commonwealth, No. 3181-02-1, 2003 Va. App. LEXIS 548 (Ct. of Appeals Nov. 4, 2003).

Evidence that: (1) defendant was stopped near a parked car that had a broken window and a screwdriver in plain view in the back seat; (2) he said the screwdriver was not his but his fingerprints might be on it; (3) he later admitted using the screwdriver to break the window to gain entry into the car so as to obtain money; and (4) the car owner had not given him permission to enter her car, was sufficient to convict him of possession of burglarious tools. Ridley v. Commonwealth,, 2006 Va. App. LEXIS 156 (Apr. 25, 2006).

Evidence that a resident of the apartment building observed defendant, from a distance of about ten feet, with a hammer in his hand immediately after she heard banging in the vicinity, and that, five to ten minutes later, police found defendant with an object later identified as a hammer was sufficient to support defendant's conviction for possession of burglarious tools. Barnett v. Commonwealth,, 2007 Va. App. LEXIS 2 (Jan. 9, 2007).

Where defendant stuffed a shirt into a store clerk's mouth and bound her hands and feet with a plastic tie in the course of his robbery of the store, the evidence was sufficient to prove that defendant possessed the plastic ties with the intent to commit robbery; defendant's binding of the victim's hands and feet, during which he actually possessed the plastic ties, was part of the continuing violence against her that defendant used to accomplish the theft. Solesbee v. Commonwealth,, 2008 Va. App. LEXIS 35 (Jan. 22, 2008).

Because a purse defendant possessed at the time she committed petit larceny, and which she admitted to intending to use to conceal merchandise from a department store, was not a burglarious "tool," "implement," or "outfit" as these terms were defined under § 18.2-94 , her conviction under said statute was reversed. Edwards v. Commonwealth, 52 Va. App. 70, 661 S.E.2d 488, 2008 Va. App. LEXIS 259 (2008).

Evidence was not sufficient to support defendant's conviction for possession of a tool, implement or outfit with intent to commit larceny under § 18.2-94 ; while the appellate court rejected defendant's argument that the evidence was insufficient merely because defendant's purse was not burglarious, it held that defendant's purse did not constitute a larcenous "outfit" within the meaning of § 18.2-94 . Edwards v. Commonwealth, 53 Va. App. 402, 672 S.E.2d 894, 2009 Va. App. LEXIS 160 (2009).

When defendant's co-conspirator attempted to burglarize the subject residence with a screwdriver, defendant, who set in motion and participated in the burglary plan, was criminally liable as a principal in the second degree; thus, the evidence was sufficient to support conviction for possession of burglary tools under § 18.2-94 . Owens v. Commonwealth, 54 Va. App. 99, 675 S.E.2d 879, 2009 Va. App. LEXIS 204 (2009).

Because defendant lacked permission to be at a car lot after hours or to possess a car radio, the pliers and other tools that defendant had provided sufficient evidence of intent; therefore, the evidence was sufficient to convict defendant of possession of burglary tools under § 18.2-94 and to revoke the suspension of defendant's sentence for a prior offense. Jones v. Commonwealth,, 2009 Va. App. LEXIS 201 (Apr. 28, 2009).

Evidence was sufficient to support defendant's conviction for possession of burglarious tools because doors of two offices were pried open, and defendant placed an object in the passenger compartment of his car where the police found a duffle bag; only a tire iron and loose change were made exhibits, but testimony showed that the duffle bag also contained a flashlight and work gloves. Baker v. Commonwealth,, 2011 Va. App. LEXIS 358 (Nov. 22, 2011).

Evidence was sufficient to convict defendant of possession of burglarious tools as the trial court's conclusion that defendant put the hobby knife in his sleeve with the intent to use it for a burglary, robbery, or larceny was not plainly wrong because defendant was stopped and arrested while he was still in the shopping mall after having recently committed several larcenies there; the officer found the knife in defendant's possession as well as several stolen items; the knife was in defendant's sleeve, a place both concealed and relatively accessible to him; and the trial court rejected defendant's explanation, and the rejection of defendant's deceptive statement gave rise to the inference that defendant lied to conceal his guilt. Simmons v. Commonwealth,, 2015 Va. App. LEXIS 384 (Dec. 15, 2015).

Defendant's conviction for possession of burglary tools was not plainly wrong or without evidence to support it because defendant was found in his work van with a heavily dented aluminum baseball bat and an oversized, rusted screwdriver; a rational fact finder could conclude that defendant had an awareness of the character and presence of a baseball bat and screwdriver in the van he was driving and that he had dominion and control over those items. Sims v. Commonwealth, No. 0638-16-2, 2017 Va. App. LEXIS 128 (May 16, 2017).

Evidence insufficient. - As the Commonwealth provided no real basis for its contention that appellant actually intended to commit common-law larceny - as opposed to the crime for which he was charged - other than its claim that appellant vaguely intended to steal, the Commonwealth failed to establish that appellant possessed the laptop and remagging device with the intent to commit burglary, robbery, or larceny. In proving appellant had the intent to commit credit card fraud, the Commonwealth did not also prove that he intended to commit common-law larceny; consequently, appellant's conviction for possession of burglarious tools was reversed. Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50, 2009 Va. App. LEXIS 424 (2009), aff'd in part, rev'd in part, 280 Va. 678 , 701 S.E.2d 407 (2010).

Applied in Boone v. Stacy, 597 F. Supp. 114 (E.D. Va. 1984).

Article 3. Larceny and Receiving Stolen Goods.

§ 18.2-95. Grand larceny defined; how punished.

Any person who (i) commits larceny from the person of another of money or other thing of value of $5 or more, (ii) commits simple larceny not from the person of another of goods and chattels of the value of $1,000 or more, or (iii) commits simple larceny not from the person of another of any firearm, regardless of the firearm's value, shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than 20 years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding 12 months or fined not more than $2,500, either or both.

(Code 1950, § 18.1-100; 1960, c. 358; 1966, c. 247; 1975, cc. 14, 15, 603; 1980, c. 175; 1991, c. 710; 1992, c. 822; 1998, c. 821; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to punishment for attempt to commit larceny, see § 18.2-26 .

As to charging housebreaking and larceny in one count, see § 18.2-91 and note.

As to petit larceny, see § 18.2-96 .

As to dogs as subject to larceny, see § 18.2-97 .

As to computer time, services, etc., as property subject to larceny, see § 18.2-152.1 et seq.

As to payment by the Department of Social Services of assistant attorney for the Commonwealth for prosecution of public assistance fraud cases, see § 63.2-525 .

Editor's note. - The above section is § 18.2-95 as enacted by Acts 1975, c. 603. Pursuant to § 30-152, it has been substituted for § 18.2-95 as enacted by Acts 1975, cc. 14 and 15.

The 1998 amendment, in clause (iii), substituted "firearm" for "handgun, rifle or shotgun" and substituted "firearm's" for "handgun's, rifle's or shotgun's."

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200," "20" for "twenty," and "12" for "twelve."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more."

Law review. - For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia criminal law for the year 1976-1977, see 63 Va. L. Rev. 1396 (1977). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For a note, "Pleading for Theft Consolidation in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-284 ," see 55 Wash. & Lee L. Rev. 249 (1998).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 25 Tort Actions: Negligent and Intentional Personal Injuries and Wrongful Death. § 25.03 Intentional Personal Injuries. Friend.

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 1; 12A M.J. Larceny, §§ 2, 6, 8, 17, 24, 31; 15 M.J. Prohibition, § 14; 20 M.J. Weapons, § 4.1.

CASE NOTES

I. GENERAL CONSIDERATION.
A. IN GENERAL.

The standards of grand and petit larceny are wholly arbitrary. The legislature may change them, and it might entirely abolish such distinctions. Bell v. Commonwealth, 167 Va. 526 , 189 S.E. 441 (1937).

Robbery, burglary, grand larceny and abduction, are each treated separately and are governed by a separate statutory provision. Austin v. Peyton, 279 F. Supp. 227 (W.D. Va. 1968).

Larceny has often been defined as the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently. Skeeter v. Commonwealth, 217 Va. 722 , 232 S.E.2d 756 (1977).

Larceny is the wrongful or fraudulent taking of personal goods belonging to another without his consent and with the intention to deprive the owner thereof permanently. Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985), certification of probable cause denied and dismissed, 792 F.2d 139 (4th Cir. 1986).

Larceny, robbery distinguished. - If appellant killed victim intending to steal his property, the theft was robbery. If appellant killed victim only for a purpose unrelated to theft, and as an after thought decided to steal his property, the theft was larceny. Shepperson v. Commonwealth, 19 Va. App. 586, 454 S.E.2d 5 (1995).

For theft by violence or intimidation to constitute robbery, the intent to steal must exist at the time of the violence or intimidation. Shepperson v. Commonwealth, 19 Va. App. 586, 454 S.E.2d 5 (1995).

Trial court erred in reducing the robbery charge in the indictment against defendant to grand larceny because grand larceny was not a lesser included offense of robbery, as all the elements of grand larceny were not included in robbery. However, petit larceny was a lesser-included offense of robbery because all of the elements of petit larceny were contained in robbery. Dufresne v. Commonwealth, No. 0281-15-2, 2016 Va. App. LEXIS 38 (Feb. 9, 2016).

Larceny, embezzlement distinguished. - Embezzlement and larceny are separate offenses with different elements. The key distinction between embezzlement and larceny is that larceny involves a trespassory taking of property while embezzlement involves a conversion of property received with the owner's consent. Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995).

Larceny and embezzlement are not the same offense for determining time limits under § 19.2-243 . Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995).

Under Virginia law, embezzlement, false pretenses, and larceny are three separate offenses, and there is not a general "theft" statute, as there is in most states, that encompasses both types of behavior; § 18.2-95 defines grand larceny; § 18.2-111 defines embezzlement; and § 18.2-178 defines false pretenses. The Commonwealth of Virginia has always purported to treat the three basic theft crimes of larceny, embezzlement, and false pretenses as separate and distinct offenses, and maintains separate statutes for each crime. United States v. Good, 326 F.3d 589, 2003 U.S. App. LEXIS 7543 (4th Cir. Apr. 22, 2003).

Grand larceny. - Under this section, grand larceny includes the taking, not from the person of another, of goods that have a value of $200 or more. Tarpley v. Commonwealth, 261 Va. 251 , 542 S.E.2d 761, 2001 Va. LEXIS 31 (2001).

The concept of larceny from the person recognizes an enhanced societal concern for conduct that implicates at least a potential for personal assault, conduct that involves the person of the victim and jeopardizes his personal security. Garland v. Commonwealth, 18 Va. App. 706, 446 S.E.2d 628 (1994).

Larceny by receiving stolen goods is a lesser offense which is included in the major one of larceny, and the lesser offense is indictable as larceny, and the accused may be convicted of the lesser offense of receiving stolen goods. Cabbler v. Commonwealth, 212 Va. 520 , 184 S.E.2d 781 (1971), cert. denied, 405 U.S. 1075, 92 S. Ct. 1501, 31 L. Ed. 2d 807 (1972).

The crime of receiving stolen goods is a lesser offense included in the crime of larceny. Henderson v. Commonwealth, 215 Va. 811 , 213 S.E.2d 782 (1975).

Larceny by receiving stolen goods. - Although the trial court erred by convicting defendant of violating § 18.2-95 , instead of § 18.2-108 , after the jury found defendant guilty of grand larceny by receiving stolen property, the trial court's failure to include a reference to § 18.2-108 in its final order was a clerical error that did not require reversal. Bazemore v. Commonwealth, No. 0103-02-1, 2003 Va. App. LEXIS 291 (Ct. of Appeals May 13, 2003).

Because larceny is a continuing offense, anyone who knows that personal property is stolen and assists in its transportation or disposition is guilty of larceny. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

Aiding and abetting grand larceny. - Evidence showed that defendant aided and abetted in attempted grand larceny because, while the perpetrator attempted to gain entry into the victim's apartment, defendant waited a short distance away, entered the apartment when summoned by the perpetrator, exited the apartment when the police arrived, and knocked on the door of another apartment. Defendant's knowledge of the perpetrator's criminal intent, failure to discourage completion of the crime, and subsequent attempt to conceal defendant's involvement in the crime was thus shown. Kersey v. Commonwealth,, 2015 Va. App. LEXIS 349 (Nov. 24, 2015).

Lesser included offenses. - Trial court erred by reducing the felony grand larceny charge to misdemeanor interference with the property rights of another, because the latter was not a lesser-included offense of grand larceny since a violation of the misdemeanor statute focused on interference while a violation of the grand larceny statute focused on good and chattels over $200. Jones v. Commonwealth, No. 0837-16-3, 2017 Va. App. LEXIS 244 (Oct. 3, 2017).

Double jeopardy. - The double jeopardy clause does not bar conviction and sentence at one trial for burglary under § 18.2-91 and grand larceny under this section arising from a unitary criminal transaction since each offense rests on different necessary elements. The clause is infringed only if all the components of a crime defined under one statute must also be proved to convict under another. The test to be applied is whether each provision requires proof of an additional fact which the other does not. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

Court of Appeals erred in reversing defendant's conviction of grand larceny of a person due to defendant's earlier acquittal of robbery, charged pursuant to § 18.2-58 , as proof of violence or intimidation was required in a robbery prosecution, but not for grand larceny from the person, and proof of the value of the property stolen was required in a prosecution for grand larceny from the person, but not for robbery; hence, double jeopardy did not bar prosecution on the grand larceny charge upon a robbery acquittal. Commonwealth v. Hudgins, 269 Va. 602 , 611 S.E.2d 362, 2005 Va. LEXIS 37 (2005), reversing 43 Va. App. 219, 597 S.E.2d 221 (2004); overruling Jones v. Commonwealth, 218 Va. 757 , 240 S.E.2d 658 (1978).

Defendant did not show that defendant's Va. Const., Art. I, § 8, double jeopardy rights were violated when the trial court, after defendant pled guilty, denied defendant's motion to consolidate separate indictments charging defendant with grand larceny. The indictments charged defendant with making two separate, unauthorized purchases of various equipment parts on the same day and from the same victim, but both indictments alleged that the purchases each exceeded $200, which meant that defendant did not show a double jeopardy violation on the face of the indictments or in the record. Johns v. Commonwealth,, 2008 Va. App. LEXIS 74 (Feb. 12, 2008).

Because the General Assembly clearly and unambiguously intended that grand larceny and larceny with intent to sell or distribute (in violation of §§ 18.2-95 and 18.2-108.01 , respectively) were to be punished separately, no double jeopardy violation occurred. Tharrington v. Commonwealth, 58 Va. App. 704, 715 S.E.2d 388, 2011 Va. App. LEXIS 296 (2011).

Larceny as a predicate offense. - District court's sentencing determination that a prior conviction for larceny constituted a crime of violence for purposes of determining career offender status predicate offenses, was upheld on appeal. United States v. Smith, 359 F.3d 662, 2004 U.S. App. LEXIS 3981 (4th Cir. 2004).

Defendant's Virginia conviction for grand larceny from a person in violation of § 18.2-95 qualified as a violent felony under 18 U.S.C.S. § 924(e). United States v. Rogers, - F.3d - , 2008 U.S. App. LEXIS 218 (4th Cir. Jan. 7, 2008), cert. denied, 129 S. Ct. 994, 2009 U.S. LEXIS 596, 173 L. Ed. 2d 291 (U.S. 2009).

Section 19.2-270.1 provides alternative means of establishing adequate foundation to authenticate a photograph which is offered under the independent silent witness theory in prosecutions under this section and § 18.2-96 . Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Applied in Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980); Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982); Boone v. Stacy, 597 F. Supp. 114 (E.D. Va. 1984); Salecki v. Virginia, 51 Bankr. 364 (Bankr. E.D. Va. 1985); Brown v. Booker, 622 F. Supp. 993 (E.D. Va. 1985); Kern v. Commonwealth, 2 Va. App. 84, 341 S.E.2d 397 (1986); Speight v. Commonwealth, 2 Va. App. 140, 342 S.E.2d 408 (1986); Crews v. Commonwealth, 3 Va. App. 531, 352 S.E.2d 1 (1987); Wilson v. Commonwealth, 249 Va. 95 , 452 S.E.2d 669 (1995); Commonwealth v. Taylor, 256 Va. 514 , 506 S.E.2d 312 (1998); Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999); Jay v. Commonwealth, 275 Va. 510 , 659 S.E.2d 311, 2008 Va. LEXIS 53 (2008); Charles v. Commonwealth, 63 Va. App. 289, 756 S.E.2d 917, 2014 Va. App. LEXIS 151 (2014).

B. ELEMENTS.

To sustain conviction of larceny by false pretenses, the Commonwealth must prove: (1) That the accused intended to defraud; (2) that a fraud actually occurred; (3) that the accused used false pretenses to perpetrate the fraud; and (4) that the false pretenses induced the owner to part with his property. Brown v. Commonwealth, 30 Va. App. 243, 516 S.E.2d 678 (1999).

Line of credit not subject of larceny. - At common law only the credit card itself, not the line of credit it represented, could be the subject of larceny; the same limitation applies under this section. Owolabi v. Commonwealth, 16 Va. App. 78, 428 S.E.2d 14 (1993).

Computer data subject to larceny. - Felony enhancement of defendant's Computer Fraud and Abuse Act conviction based on conduct in furtherance of committing grand larceny under Virginia law did not violate due process because defendant could have been convicted under the Virginia grand larceny statute for accessing and downloading his former employer's proprietary information; intangible computer data may be subject to larceny. United States v. Steele, 595 Fed. Appx. 208, 2014 U.S. App. LEXIS 24441 (4th Cir. 2014).

There is a caption when the defendant takes possession and he takes possession when he exercises dominion and control over the property. Ellis v. Commonwealth, No. 2704-99-1, 2001 Va. App. LEXIS 82 (Ct. of Appeals Feb. 27, 2001).

What is a taking. - In every larceny there must be an actual taking, or severance of the goods from the possession of the owner. To "take" an article, signifies "to lay hold of, seize or grasp it with the hands or otherwise," and doing so, animo furandi, constitutes a felonious taking. Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 (1986).

To constitute the crime of larceny, there must have been a felonious taking of property from the possession of the owner, and the thief must, for an instant at least, have had complete and absolute possession of the stolen property, and during such possession and control he must have feloniously removed the same from the place it occupied just before he grasped, seized or laid hold of the same. Winston v. Commonwealth, No. 0431-95-2 (Ct. of Appeals April 9, 1996).

Taking from possession of owner required. - In every larceny there must be an actual taking or severance of the goods from the possession of the owner. Bruhn v. Commonwealth, 35 Va. App. 339, 544 S.E.2d 895, 2001 Va. App. LEXIS 216 (2001), aff'd, 264 Va. 597 , 570 S.E.2d 866 (2002).

Felony enhancement of defendant's Computer Fraud and Abuse Act (CFAA) conviction based on conduct in furtherance of committing grand larceny under Virginia law did not violate double jeopardy because the Virginia grand larceny statute, unlike the CFAA, required an actual taking of information. United States v. Steele, 595 Fed. Appx. 208, 2014 U.S. App. LEXIS 24441 (4th Cir. 2014).

No larceny when property never in possession of alleged victim. - Where an employee received payment in the form of a check made payable to him personally for work allegedly done on behalf of his employer, but the employee never signed the check over to the employer and the employer never obtained possession of the funds, the employee's action in retaining the funds did not constitute larceny. Bruhn v. Commonwealth, 35 Va. App. 339, 544 S.E.2d 895, 2001 Va. App. LEXIS 216 (2001), aff'd, 264 Va. 597 , 570 S.E.2d 866 (2002).

Good faith belief that property belongs to defendant. - There can be no larceny if an accused, in good faith, believes that the property taken belongs to him, since the essential element of intent is absent in that circumstance. Stanley v. Webber, 260 Va. 90 , 531 S.E.2d 311, 2000 Va. LEXIS 93 (2000).

To prove that a defendant took property, the Commonwealth has to establish that there was a caption or taking of the property and an asportation or carrying away of the property. Ellis v. Commonwealth, No. 2704-99-1, 2001 Va. App. LEXIS 82 (Ct. of Appeals Feb. 27, 2001).

There is an asportation when a defendant carries away the property. Ellis v. Commonwealth, No. 2704-99-1, 2001 Va. App. LEXIS 82 (Ct. of Appeals Feb. 27, 2001).

Asportation may be imputed to defendant who acts through innocent agent. - Where defendant sold farm equipment that he did not own to an innocent buyer and authorized the buyer to remove the equipment from the actual owner's farm, the removal of the property by the buyer as defendant's "innocent agent" was properly attributed to defendant as a principal in the first degree, thereby satisfying the asportation requirement for larceny. McAlevy v. Commonwealth, 44 Va. App. 318, 605 S.E.2d 283, 2004 Va. App. LEXIS 575 (2004), aff'd, 620 S.E.2d 758 (2005).

Although an innocent third party took a victim's farm equipment, defendant was criminally responsible for grand larceny because the third party was acting under defendant's direction and as defendant's agent; using the third party to remove the property was no different than if defendant took it and then sold it to the third party. McAlevy v. Commonwealth, 270 Va. 378 , 620 S.E.2d 758, 2005 Va. LEXIS 89 (2005).

Common-law definition. - Declared a crime by this section, larceny is also a common-law crime defined as the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently. The animus furandi must accompany the taking, but the wrongful taking of property in itself imports the animus furandi. Winston v. Commonwealth, No. 0431-95-2 (Ct. of Appeals April 9, 1996).

Physical contact with victim not necessary. - Larceny from the person embraces not only theft of property from physical contact with the victim, but also theft of property that is in the victim's possession and within his immediate custody and control. Therefore, defendant who reached over countertop and took money out of open cash drawer, while standing within two feet and reaching to within inches of cashier, who stood just to the side of the cash register, and across the countertop from cashier and grabbed a handful of cash and ran from the restaurant, frightening the cashier, was guilty under this section. Garland v. Commonwealth, 18 Va. App. 706, 446 S.E.2d 628 (1994).

The animus furandi must accompany the taking, but the wrongful taking of the property in itself imports the animus furandi. Skeeter v. Commonwealth, 217 Va. 722 , 232 S.E.2d 756 (1977).

Exclusive possession required to raise larceny presumption. - For the larceny presumption to arise, the Commonwealth must establish that the accused was in exclusive possession of property recently stolen. Best v. Commonwealth, 222 Va. 387 , 282 S.E.2d 16 (1981).

The presumption of fact arising from the unexplained possession of recently stolen property requires, inter alia, a showing of exclusive possession of the stolen property by the accused, though such possession may be joint. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

Regardless of other incriminating evidence. - The larceny presumption arises only when the accused has been shown to be in exclusive possession of recently stolen property, regardless of how much other incriminating evidence the Commonwealth has marshalled. Best v. Commonwealth, 222 Va. 387 , 282 S.E.2d 16 (1981).

To prove beyond a reasonable doubt that an accused's possession of stolen property was exclusive, the Commonwealth's evidence must show that the accused was consciously asserting at least a possessory interest in the stolen property or was exercising dominion over the stolen property. Blaney v. Commonwealth, No. 2571-99-1, 2001 Va. App. LEXIS 174 (Ct. of Appeals Apr. 3, 2001).

Inference of larceny arising from exclusive possession of stolen property. - Unexplained possession of recently stolen goods permits the fact finder to infer that the possessor is the thief. In order for the fact finder to draw the inference of larceny from possession of recently stolen property, the Commonwealth must establish that the accused was in exclusive possession of the stolen property. Exclusive possession need not be sole possession; exclusive possession may be established by showing that the person jointly possessed the property with another, provided that he exerts dominion and control over the property. Edmondson v. Commonwealth, No. 1504-92-1 (Ct. of Appeals Dec. 21, 1993).

A challenged instruction which informed the jury that it might reasonably draw an inference from the defendant's exclusive possession of a recently stolen automobile that he was the thief provided that the defendant did not reasonably or satisfactorily explain his possession did not relieve the commonwealth of its burden to prove every element of the crime beyond a reasonable doubt in violation of the due process clause; the challenged instruction created only a permissive inference that the jury was free to reject, irrespective of whether the defendant offered a reasonable explanation consistent with his innocence. Dobson v. Commonwealth, 260 Va. 71 , 531 S.E.2d 569, 2000 Va. LEXIS 88 (2000).

Where it was established that the defendant was in exclusive possession of the victims' stolen jewelry within days of the theft and he alone exercised dominion over the stolen property when he sold it to a jeweler, the defendant's exclusive possession was sufficiently recent to establish prima facie cases of larceny and burglary and to justify inferences by the trial court that the defendant was the thief and burglar who broke into both victims' homes and stole their property. Dickerson v. Commonwealth, No. 0090-00-1, 2001 Va. App. LEXIS 105 (Ct. of Appeals Mar. 6, 2001).

Possession of goods recently stolen is prima facie evidence of guilt of the crime of larceny and throws upon the accused the burden of accounting for that possession. Blaney v. Commonwealth, No. 2571-99-1, 2001 Va. App. LEXIS 174 (Ct. of Appeals Apr. 3, 2001).

In a burglary prosecution, the Commonwealth can establish a violation of this section by: (1) proving that goods were stolen from a house which was broken into; (2) justifying the inference that both offenses were committed at the same time, by the same person, as part of the same criminal enterprise; and (3) proving that the goods were found soon thereafter in the possession of the accused. Blaney v. Commonwealth, No. 2571-99-1, 2001 Va. App. LEXIS 174 (Ct. of Appeals Apr. 3, 2001).

In a case in which defendant appealed his convictions for uttering a forged check in violation of § 18.2-172 and attempted grand larceny in violation of §§ 18.2-95 and 18.2-26 , he argued unsuccessfully that it would violate his due process rights under the Fourteenth Amendment to infer his guilty knowledge solely from the fact that he possessed the forged check. The evidence in the record rationally connected the permissive inference of guilty knowledge of the check's forgery to defendant's possession of the forged instrument, and his possession of the forged check, in conjunction with the other circumstantial evidence, allowed the inference that he knew the check was forged. Coles v. Commonwealth, No. 0624-08-2, 2009 Va. App. LEXIS 484 (Ct. of Appeals Oct. 27, 2009).

Defendant had dominion and control over stolen items because location of the significant number of stolen goods throughout the vehicle driven by defendant, coupled with his behavior during the encounter with police, supported the conclusion that defendant possessed the stolen goods; the evidence, including defendant's flight, supported a finding that he had knowledge of the very recently stolen goods in the passenger compartment and the trunk. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Larceny inference not applicable. - Because the trial court erred in applying the larceny inference to the scrap metal that was not unusual in any way, and the only other evidence against defendant was defendant's statement to a detective that defendant assisted an individual in selling similar scrap metal, the evidence was insufficient to support defendant's conviction for grand larceny of scrap metal. Smith v. Commonwealth,, 2009 Va. App. LEXIS 37 (Feb. 3, 2009).

Possession of stolen property supporting inference of breaking and entering. - The unexplained or falsely denied exclusive possession of stolen goods shortly after a burglary has the same efficiency to give rise to an inference that the possessor is guilty of the breaking and entering as to an inference that he is guilty of the larceny. Blaney v. Commonwealth, No. 2571-99-1, 2001 Va. App. LEXIS 174 (Ct. of Appeals Apr. 3, 2001).

No presumption where several people had access. - The larceny presumption does not arise when the evidence merely reveals that the stolen property was found in a place to which several people, including the accused, had access. Best v. Commonwealth, 222 Va. 387 , 282 S.E.2d 16 (1981).

Joint possession raising presumption. - One can be in exclusive possession of an item when he jointly possesses it with another. The evidence must reveal, however, that the accused was consciously asserting at least a possessory interest in the stolen property or was exercising dominion over the stolen property. Best v. Commonwealth, 222 Va. 387 , 282 S.E.2d 16 (1981).

Larceny presumption shifts burden of persuasion. - Possession of goods recently stolen is prima facie evidence of guilt of the crime of larceny and throws upon the accused the burden of accounting for that possession. Dickerson v. Commonwealth, No. 0090-00-1, 2001 Va. App. LEXIS 105 (Ct. of Appeals Mar. 6, 2001).

Permanent loss by the owner is not a required element of larceny. Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 (1986).

Mere removal of merchandise not larceny unless intent to steal shown. - The mere removal of merchandise from a display shelf to a shopping cart, and the subsequent movement of the shopping cart to other areas of the store, is not larceny unless the evidence otherwise shows that the taking was with the intent to steal. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Slightest asportation sufficient. - When an individual harbors the requisite intent to steal and permanently deprive the owner of property, acts on such intent by taking possession of the property even for an instant, and moves the targeted property, larceny has been committed. The slightest asportation is sufficient, even though the property may be abandoned immediately. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Removal of property from owner's premises not required. - Removal of the targeted property from the owner's premises is not required. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Testimony concerning other items of stolen property not subject of indictment. - Trial court did not err in overruling motion to exclude testimony concerning other items of property stolen at the time of the burglary, even though such items were not the subject of the grand larceny indictment. Caccioppo v. Commonwealth, 20 Va. App. 534, 458 S.E.2d 592 (1995).

Definition of firearm. - This section, like § 18.2-308.2 , deals with the dangerous nature of the firearm and not the criminal conduct that produces fear of physical harm to an individual victim; by definition, larceny does not require any force, threat or intimidation to a victim, and there is no logical reason why the definition of firearm under § 18.2-308.2 should not also apply to a prosecution under this section. Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

It was in Commonwealth's Attorney's discretion whether to prosecute appellant under § 58.1-348 or to prosecute him under this section. Brown v. Commonwealth, 30 Va. App. 243, 516 S.E.2d 678 (1999).

Writs of prohibition and mandamus did not lie. - Writ of prohibition did not lie against a judge with jurisdiction to adjudicate and to enter any order in proceedings involving felony charges against two defendants; a writ of mandamus did not lie to fix and prescribe the judgment to be rendered. In re Commonwealth's Atty. for Roanoke, 265 Va. 313 , 576 S.E.2d 458, 2003 Va. LEXIS 38 (2003).

Single intent. - Defendant's conviction for grand larceny in violation of § 18.2-95 was affirmed because a reasonable jury could find that defendant did in fact act with a single intent as the factors enumerated in Acey v. Commonwealth and defendant's methodology both supported finding single intent. Tanner v. Commonwealth,, 2010 Va. App. LEXIS 23 (Jan. 19, 2010).

Venue. - In a case in which defendant appealed his conviction in a bench trial for grand larceny of a rental vehicle, he argued that Chesterfield County, Virginia, was not the proper venue in which to try the case as the Commonwealth did not prove he possessed the vehicle within the county. Venue was not an element of the offense, and the Commonwealth did not have to prove it beyond a reasonable doubt; since the evidence proved that renter last saw the vehicle outside of her Chesterfield County residence and it was from there the car was stolen, the Commonwealth presented sufficient evidence that the crime occurred within the territorial jurisdiction of the trial court and venue was proper in Chesterfield County. Williams v. Commonwealth,, 2012 Va. App. LEXIS 231 (July 17, 2012).

Trial court erred in denying defendant's motion to strike for improper venue, under § 19.2-244 , because the court erred in holding that the Commonwealth of Virginia proved venue in Pittsylvania County, Virginia, in that the evidence as to venue in the case was overall vague and uncertain. Collins v. Commonwealth,, 2014 Va. App. LEXIS 219 (June 3, 2014).

C. VALUE.

Value is an essential element of the offense of grand larceny and the Commonwealth is required to prove that the value of stolen property is at least equal to the statutory amount. Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985), certification of probable cause denied and dismissed, 792 F.2d 139 (4th Cir. 1986).

The intent required to commit larceny, the animus furandi, is defined as the taking of property with the mental design of permanently depriving the owner of possession of the goods; the animus furandi must accompany the taking but the wrongful taking of property in itself imports the animus furandi. Briggs v. Commonwealth, No. 2917-99-2, 2001 Va. App. LEXIS 32 (Ct. of Appeals Jan. 30, 2001).

Intent to steal. - A conviction of larceny requires proof beyond a reasonable doubt of the defendant's intent to steal, which must accompany his taking of the property. Tarpley v. Commonwealth, 261 Va. 251 , 542 S.E.2d 761, 2001 Va. LEXIS 31 (2001).

The value of the goods specified in this section is an essential element of the crime. Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount. Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

While the original purchase price of an item may be admitted as evidence of its current value, there must also be "due allowance for elements of depreciation." Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

The value of the goods specified in the statute is an element of the crime which the Commonwealth must prove beyond a reasonable doubt. Parker v. Commonwealth, 254 Va. 118 , 489 S.E.2d 482 (1997).

To prove grand larceny, the Commonwealth is required to prove that the items stolen had a value equal to or greater than the statutory amount. Hodges v. Commonwealth, No. 0622-99-2, 2000 Va. App. LEXIS 225 (Ct. of Appeals Mar. 28, 2000).

Value of item stolen not entire property it is part. - The monetary element of this section is measured by the value of the item actually stolen, not by the value of the entire property of which it is a part. Camden v. Commonwealth, No. 2951-96-3 (Ct. of Appeals Dec. 16, 1997).

Value of firearm. - This section makes larceny of a firearm a felony "regardless of its value." Therefore, value is not an element of the crime, and the value language in an indictment is unnecessary to the charge. Murphy v. Commonwealth, No. 0974-99-2, 2000 Va. App. LEXIS 366 (Ct. of Appeals May 16, 2000).

Proof of firearm. - To obtain a conviction for grand larceny of a firearm, when a value of more than $200 is not shown, the Commonwealth must prove that the item stolen was any instrument designed, made, and intended to fire or expel a projectile by means of an explosion; however, as is the case in prosecutions under § 18.2-308.2 , proof that the firearm was operable at the time of the theft is not required. Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

Commonwealth must present sufficient evidence to support a finding that the object was designed, made, and intended to fire or expel a projectile by means of an explosion, but the court declines to require the Commonwealth to present specific testimony that the object was designed, made, and intended to fire or expel a projectile by means of an explosion; whether the object is a firearm that was designed, made, and intended to fire or expel a projectile by means of an explosion is a question of fact that may be proven by circumstantial evidence. Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

General consideration. - There was no need to reverse a defendant grand larceny conviction where the indictment stated that he was indicted for grand larceny of a shotgun, without regard to its value; this was also true as to the petit larceny conviction. Winkler v. Commonwealth, No. 2998-01-2, 2003 Va. App. LEXIS 353 (Ct. of Appeals June 24, 2003).

Direct proof of the value is not essential if circumstantial evidence proves the same fact and at the same time excludes every reasonable hypothesis to the contrary. Veney v. Commonwealth, 212 Va. 805 , 188 S.E.2d 80 (1972).

Necessity for allegation and proof of value. - Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount. Wright v. Commonwealth, 196 Va. 132 , 82 S.E.2d 603 (1954); Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

While evidence that an article has some value is sufficient to sustain a conviction for petit larceny, when the value of the stolen item determines the grade of the offense, the Commonwealth must prove the value to be at least the statutory amount. Parker v. Commonwealth, 254 Va. 118 , 489 S.E.2d 482 (1997).

The Commonwealth bears the burden of proving the value of the goods element beyond a reasonable doubt. Knight v. Commonwealth, 225 Va. 85 , 300 S.E.2d 600 (1983).

In a grand larceny case, the evidence was sufficient as a matter of law to prove that stolen trailer tongues had a market value of $200 or more because the Commonwealth presented valuation evidence from an individual with forty years of experience in the manufactured homes industry; moreover, the owner of the property provided an opinion regarding the value of the trailer tongues. The Commonwealth presented evidence that the condition of the trailer tongues was operational because they were made of steel, lasted a lifetime, and did not deteriorate if left out in the weather. Buisset v. Commonwealth, No. 0406-15-2, 2016 Va. App. LEXIS 128 (Ct. of Appeals Apr. 19, 2016).

Sufficient evidence did not support defendant's convictions for grand larceny and larceny with the intent to sell or distribute because the evidence did not prove stolen items had a value of $200 or more, as (1) the victim did not testify to value, so value at the time of the theft could not be estimated, and (2) an insurance claim did not suffice, as nothing showed how value was estimated. Lamp v. Commonwealth, No. 0660-18-3, 2019 Va. App. LEXIS 161 (July 16, 2019).

Standard of proof regarding value. - In a grand larceny prosecution, the burden is upon the Commonwealth to prove beyond a reasonable doubt that the value of the goods stolen equals at least the amount fixed by statute in definition of the offense. Dunn v. Commonwealth, 222 Va. 704 , 284 S.E.2d 792 (1981).

Testimony as to value included cigarette packs that were dropped. - Evidence was insufficient to establish grand larceny where the owner of a store, following a break-in of the store, testified that the total amount of the cigarette packs found on the floor of the store, on the ground outside of the entrance to the store, and dropped from a bag carried by defendant as defendant fled from a police officer, was $410.59. The evidence failed to prove that: (1) defendant and defendant's accomplice exercised dominion or absolute control over the cigarette packs found on the floor; (2) there was an asportation of the items found on the floor, i.e. movement of the seized items accompanied by the intent to steal; and (3) the amount of the cigarette packs dropped by defendant from the bag was at least $200. Britt v. Commonwealth, 276 Va. 569 , 667 S.E.2d 763, 2008 Va. LEXIS 115 (2008).

Price tags used to determine item's value. - The Virginia Supreme Court has recognized an exception to the hearsay rule in shoplifting cases permitting the admission into evidence of price tags regularly affixed to items of personalty offered for sale or, in substitution, testimony concerning the amounts shown on such tags when there is no objection to such testimony on best evidence grounds. Robinson v. Commonwealth, 258 Va. 3 , 516 S.E.2d 475 (1999).

Price tags affixed to items of merchandise, when admitted, suffice to make out a prima facie case of an item's value; and the accused retains full opportunity to cross-examine adverse witnesses and to present rebutting evidence on the issue of value. Briggs v. Commonwealth, No. 2917-99-2, 2001 Va. App. LEXIS 32 (Ct. of Appeals Jan. 30, 2001).

Because the Commonwealth did not produce the price tags at trial or give an explanation as to why the price tags were not available, the best evidence rule barred the loss prevention supervisor's testimony concerning the price of the stolen jeans as his testimony was based on the price tags, and defendant's conviction for grand larceny was improper as there was no evidence regarding the value of the stolen jeans. Watkins v. Commonwealth, No. 1558-13-1, 2014 Va. App. LEXIS 264 (July 22, 2014).

Testimony of security officer regarding price shown on price tags. - The value of merchandise a defendant had attempted to steal was properly established where a security officer for the store testified that, after the stolen items had been photographed and after she had examined the price tags affixed to the items, the merchandise was resold, and identified the price of each of the stolen items based on her inspection of the price tags affixed to the merchandise at the time of the theft. Pilson v. Commonwealth, No. 1051-99-3, 2000 Va. App. LEXIS 791 (Ct. of Appeals Dec. 5, 2000).

Computer generated inventory report of stolen items from a store. - Defendant's convictions for grand larceny and larceny with the intent to sell or distribute stolen property, in violation of § 18.2-108 , were affirmed because the trial court did not err by admitting into evidence a computer-generated inventory report of stolen pharmaceutical items from a drug store as a business records exception to the hearsay rule. Further, the record reflected sufficient evidence from which the trial court could infer beyond a reasonable doubt that defendant stole merchandise valued at $200 or more; thus, the credible evidence before the trial court was sufficient to convict defendant of grand larceny and larceny with the intent to sell or distribute stolen property. McDowell v. Commonwealth, 48 Va. App. 104, 628 S.E.2d 542, 2006 Va. App. LEXIS 229 (2006).

Qualification of witness testifying to property's value. - Ownership of property by a corporation does not automatically qualify a company employee to testify about the value of company property. Walls v. Commonwealth, 248 Va. 480 , 450 S.E.2d 363 (1994).

The general rule is that opinion testimony of a nonexpert, who is not the owner of the personal property in question, is admissible upon the subject of property value, provided the witness possesses sufficient knowledge of the value of the property or has had ample opportunity for forming a correct opinion as to value. Walls v. Commonwealth, 248 Va. 480 , 450 S.E.2d 363 (1994); Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

The opinion testimony of the owner of personal property is competent and admissible on the question of the value of such property, regardless of the owner's knowledge of property values. Neville v. Commonwealth, No. 1228-99-2, 2000 Va. App. LEXIS 492 (Ct. of Appeals July 5, 2000).

The opinion testimony of the owner of stolen property is generally competent and admissible on the issue of the value of that property. Parker v. Commonwealth, 254 Va. 118 , 489 S.E.2d 482 (1997); Lester v. Commonwealth, 30 Va. App. 495, 518 S.E.2d 318 (1999).

Victim's evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt that a stolen power washer had a value of more than $200 and that defendant committed grand larceny. The victim was the owner, and for that reason alone, was competent to state the victim's opinion regardless of the victim's knowledge of property values, and the victim's testimony established a solid foundation upon which the victim based the victim's opinion. Fitzgerald v. Commonwealth,, 2007 Va. App. LEXIS 471 (Dec. 27, 2007).

Where defendant was charged with grand larceny based on his theft of over $200 worth of coins from a decedent's home, as the decedent's brother had filled jars with coins, taken them to the decedent's home, and had specific knowledge about the size and contents of each jar, the trial court did not abuse its discretion in permitting the brother's testimony that the missing coins were worth more than $200. Burton v. Commonwealth, 58 Va. App. 274, 708 S.E.2d 444, 2011 Va. App. LEXIS 177 (2011).

Property owner's testimony as to value. - Testimony of the owner of the stolen copper wire, who had operated a contracting company for eight years, was sufficient to support a finding that the stolen wire was worth about $2,000. Since the wire was not mechanical or electrical equipment that had a limited life span or was subject to deterioration from wear and tear, a depreciation analysis was not required. Tackett v. Commonwealth,, 2009 Va. App. LEXIS 81 (Feb. 24, 2009).

Evidence of value of burglarized items was sufficient to support a grand larceny conviction because the victim consistently testified that the value of the cigarettes taken from his store, which he had restocked the day before the burglary, exceeded $200, and he also testified that $50 in change left in a drawer for his employees had been taken. Fitzgerald v. Commonwealth,, 2010 Va. App. LEXIS 17 (Jan. 12, 2010).

In this grand larceny case, the phone owner testified that she did not sell used cell phones and thus was not in a good position to say what the value of the iPhone was as a used cell phone on the date it was stolen, but this concession on cross-examination went only to the weight that the factfinder chose to give her testimony, which was sufficient to establish that the value of the phone was approximately $600, the original purchase price. Neblett v. Commonwealth,, 2014 Va. App. LEXIS 294 (Sept. 2, 2014).

In this grand larceny case, the stolen iPhone 5 at issue was purchased for $600 only a month prior to the larceny, and the original purchase price of this item was admissible as evidence of its current value, plus the owner, who happened to sell cell phones, testified to purchasing the phone for $600 and that its value was the same, and her testimony was competent and admissible regarding the issue of the phone's value. Neblett v. Commonwealth,, 2014 Va. App. LEXIS 294 (Sept. 2, 2014).

Trial court was not plainly wrong when it concluded that the value of a stolen bicycle was $200 or more, where the bicycle's purchase price was more than two and a half times the felony threshold, the depreciation period was much shorter, and the property owner testified (without objection) to the condition and value of the bicycle at the time of the theft. Although the Commonwealth offered no specific evidence about depreciation rates for bicycles, the facts were sufficient to permit the factfinder to infer that the bicycle had not depreciated in value below the felony threshold. Bailey v. Commonwealth, No. 0013-16-1, 2017 Va. App. LEXIS 111 (Apr. 25, 2017).

Fair market value. - The value of an object of larceny is the fair market value at the time and place of theft. Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985), certification of probable cause denied and dismissed, 792 F.2d 139 (4th Cir. 1986).

The test is market value, and particularly retail value. Robinson v. Commonwealth, 258 Va. 3 , 516 S.E.2d 475 (1999).

Fair market value is the price property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer under no necessity of purchasing. Robinson v. Commonwealth, 258 Va. 3 , 516 S.E.2d 475 (1999).

Defendant's conviction for grand larceny for his theft of a leaf blower and hedge pruner could not be sustained because the Commonwealth did not prove that the fair market value of the items at the time they were taken was $200 or more; although the groundskeeper who saw defendant take the tools testified about what she thought would be the retail price of the stolen tools with new ones, her testimony was in a range and at no point in her testimony did she say that the retail price of new tools approximated the original purchase price of the stolen tools, which had shown signs of ordinary wear and tear. Brown v. Commonwealth,, 2005 Va. App. LEXIS 198 (May 17, 2005).

Evidence had been insufficient to convict defendant of grand larceny. While the victim testified that she paid $270 for two new technical devices that defendant stole, they were a year old, and there was no evidence from which a reasonable fact finder could conclude that the devices' fair market value, along with a bag of sugar and pair of hair clippers together worth less than $20, met or exceeded the $200 statutory threshold. Ayres v. Commonwealth, No. 1438-12-1, 2013 Va. App. LEXIS 386 (Dec. 17, 2013).

Value of stolen property is measured as of time of theft, and the original purchase price may be admitted as evidence of its current value. Lester v. Commonwealth, 30 Va. App. 495, 518 S.E.2d 318 (1999).

It is generally held that evidence of value a reasonable time prior and subsequent to the larceny is admissible, its weight being for the trier of fact. Lester v. Commonwealth, 30 Va. App. 495, 518 S.E.2d 318 (1999).

Although the evidence of the value of a tire and rim at the time of a theft was insufficient to support defendant's conviction of grand larceny under clause (ii) of § 18.2-95 , the circumstantial evidence was sufficient to find defendant guilty of the lesser-included offense of petit larceny. Banks v. Commonwealth,, 2009 Va. App. LEXIS 27 (Jan. 27, 2009).

Allowance for depreciation in value. - While the original purchase price of an item may be admitted as evidence of its current value, there must also be due allowance for elements of depreciation. Dunn v. Commonwealth, 222 Va. 704 , 284 S.E.2d 792 (1981).

Evidence was insufficient to prove requisite $200 of property value, where testimony established only that bicycles had originally cost $200, and they were purchased a year or two prior to the attempted larceny. Curry v. Commonwealth, No. 0722-99-1 (Ct. of Appeals Mar. 14, 2000).

In this grand larceny case, specific evidence regarding depreciation of the iPhone 5 was unnecessary and the trier of fact could reasonably infer that the one-month-old phone had not depreciated over two-thirds in value rendering it worth less than $200 at the time of the theft; the unrebutted evidence was such that the trial court could conclude that there was minimal depreciation or possibly no depreciation in the value of the one-month-old cell phone. Neblett v. Commonwealth,, 2014 Va. App. LEXIS 294 (Sept. 2, 2014).

Value. - The Commonwealth failed to present sufficient evidence to establish beyond a reasonable doubt that the value of the stolen items was equal to or over two hundred dollars where there was no evidence from the owner or persons familiar with the goods of their current values reflecting the effects of age and wear and tear on their values, and, in spite of evidence of appellant's asking prices or prices that potential buyers agreed or offered to pay for the goods, the potential buyers never bought those items. White v. Commonwealth, No. 2125-93-2 (Ct. of Appeals Feb. 28, 1995).

Where witness, who was not the owner of the tools, did not testify about the original purchase price of the tools or the effect of age and wear and tear on the value of the tools; testified only that the tools were purchased in 1986 or 1987 by someone other than herself; that she did not know the purchase price; that the tools were tools with a lifetime guaranty; and that they were in excellent working order. Although she estimated the replacement cost of the tools to be $540 and thus more than $200, this estimate did not adequately establish the current value of the stolen tools, reflecting the effects of wear and tear. Therefore, the trial court erred in finding the evidence sufficient to prove that the value of the tools was more than $200. Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

Value of goods taken from a store was shown to be at least $200, so as to sufficiently prove that the taking was felonious, where the items taken on one day were valued at $142 and there were five other occasions when similar or greater quantities of items were taken from the store by the defendant. Bentley v. Commonwealth, No. 1569-97-2 (Ct. of Appeals May 5, 1998).

Evidence was sufficient to establish that a cellular telephone was valued at more than $200, where two clerks working at the cellular telephone store at which the defendant obtained the telephone by fraud testified that the telephone was worth $300 when new and that it was still in good working order. Faulk v. Commonwealth, No. 0154-97-1 (Ct. of Appeals June 9, 1998).

Evidence was sufficient to establish the value of women's clothing taken from a store by the defendant where two loss prevention officers testified to such value based on price tags from identical clothing which indicated their value. Jackson v. Commonwealth, No. 1212-97-4 (Ct. of Appeals Oct. 6, 1998).

The expert testimony of a pawn shop owner regarding the value of two stolen computers was sufficient to support a defendant's conviction for grand larceny where the witness was provided with the make, model, manufacturer, age and last known working condition and features of the computers; the fact that the witness had not personally examined the computers went only to the weight of his testimony and that testimony, together with the circumstantial evidence of the computers' condition before, during, and after the theft, was sufficient to support the conviction. Hodges v. Commonwealth, No. 0622-99-2, 2000 Va. App. LEXIS 225 (Ct. of Appeals Mar. 28, 2000).

The evidence was sufficient to establish the value of a necklace stolen by the defendant where, although no evidence was offered to prove the condition of the necklace, its carat weight, or its current value, the owner testified that the necklace was worth $600 and that he had bought it for that price; without any countervailing evidence, the fact finder was entitled to infer from the evidence that the necklace, originally purchased for $600, was worth at least $200 at the time of the theft. Neville v. Commonwealth, No. 1228-99-2, 2000 Va. App. LEXIS 492 (Ct. of Appeals July 5, 2000).

Evidence was sufficient to support defendant's grand larceny conviction where defendant stole two laptop computers and a personal digital assistant that were relatively new; the jury could reasonably conclude as a matter of common knowledge and in light of the purchase prices and the purchase dates, that they were valued, in the aggregate, at more than $200, without evidence of depreciation. Sheppard v. Commonwealth, No. 3230-02-4, 2004 Va. App. LEXIS 155 (Ct. of Appeals Apr. 6, 2004).

Trial court did not err in convicting defendant of felony embezzlement and sentencing him accordingly, as the evidence sufficiently proved that the value of the material transferred from his computer at work to a third-party server was greater than $200 and embezzlement, like computer fraud, carried a greater punishment if the value of goods embezzled was more than $200. DiMaio v. Commonwealth, 46 Va. App. 755, 621 S.E.2d 696, 2005 Va. App. LEXIS 456 (2005).

Because used catalytic converters had no legal market value beyond the scrap or recycling value of their component parts, and the Commonwealth did not demonstrate that the actual value of the converters at the time of the theft exceeded the statutory threshold of $200 in § 18.2-95 , defendant's conviction was reversed. Baylor v. Commonwealth, 55 Va. App. 82, 683 S.E.2d 843, 2009 Va. App. LEXIS 460 (2009).

For purposes of defendant's grand larceny conviction, the Commonwealth met its burden in showing that the depreciated value of the stolen electronics was greater than $200; the victim testified that the stolen iPod was worth around $200 because that was how much she purchased it for and camera was worth $200 to $250, which was what it was purchased for less than a year earlier. Watson v. Commonwealth,, 2013 Va. App. LEXIS 32 (Jan. 29, 2013).

Abundant evidence enabled the trial court to conclude that the cell phone was in good working order at the time of the theft, for value purposes, given the owner's testimony and the manner in which it was recovered a short time after the theft. Neblett v. Commonwealth,, 2014 Va. App. LEXIS 294 (Sept. 2, 2014).

Evidence supported conviction for grand larceny because the trial court could reasonably have reached the conclusion that, whatever precise value two trees cut down and removed from an owner's property may have had, their worth was $200 or more. The owner testified that the trees were worth more than $200 and approximated their value, while defendant testified as to incurring over $200 in expenses in cutting down, removing, and transporting the trees to a sawmill. Reed v. Commonwealth,, 2015 Va. App. LEXIS 119 (Apr. 7, 2015).

Intrinsic value of stock certificates. - Defendant's claim that his conviction for possessing stolen property was improper on the ground that stock certificates had no intrinsic value was defaulted where defendant failed to raise the issue in the trial court. The "ends of justice" exception could not be applied to the defaulted claim because defendant did not suffer a miscarriage of justice in that precedent held that stock certificates had significant value and were readily transferable on the open market, and the Commonwealth established the value of the stock through testimony from the owner of the stock as to the fact that the certificates had a value of approximately $21,000. Wheeler v. Commonwealth, 44 Va. App. 689, 607 S.E.2d 133, 2005 Va. App. LEXIS 8 (2005).

II. ILLUSTRATIVE CASES.
A. PROOF GENERALLY.

Where no ability to pay, jury could infer intent to steal. - Where the record showed that, when the defendant was arrested and searched, he did not possess any money or retail charge cards, this evidence indicated that the appellant had no ability to pay for the two televisions. Accordingly, the jury could reasonably have inferred that he acted with the intent to steal. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Larceny "from the person." - A. was standing in the street, holding six dollars, which he was counting, in his open hand, and J. passing by took the money out of A.'s hand and walked off, no force being used beyond what was necessary to withdraw the money. A. asked J. for it several times as she walked off, but she would not return it. This was larceny from the person, within the meaning of this section, if it was done animo furandi. Johnson v. Commonwealth, 65 Va. (24 Gratt.) 555 (1873).

Purse between legs "on her person." - Where at the time the assault and the concomitant theft began the evidence established that victim had the pocketbook tucked between her legs, this qualified as being on her person for the purposes of this section. Saunders v. Commonwealth, 18 Va. App. 825, 447 S.E.2d 526 (1994).

Multiple counts supported by evidence. - Evidence was sufficient to support a conviction of two counts, rather than only one count, of grand larceny, arising from the defendant's taking of a truck in which a gun was located, where the defendant did not see the gun until he had already taken the truck, and where he then hid it so that he could later sell it to purchase crack cocaine. Atkins, Jr. v. Commonwealth, No. 1322-97-2 (Ct. of Appeals June 9, 1998).

Conduct arguably constituted two criminal offenses. - Evidence clearly and affirmatively showed that an element of one of the crimes of which defendant was convicted did not occur. Accordingly, there was error in the judgment appealed from and application of the ends of justice exception was necessary to avoid a grave injustice. Ali v. Commonwealth, 280 Va. 665 , 701 S.E.2d 64, 2010 Va. LEXIS 273 (2010).

Intent to permanently deprive owner. - Despite defendant's claims to the contrary, the circumstantial evidence, particularly defendant's conduct, established that he intended to permanently deprive the victim of the car. Yancey v. Commonwealth, No. 2647-01-2, 2002 Va. App. LEXIS 428 (Ct. of Appeals July 30, 2002).

Evidence supported the trial court's finding that defendant took a victim's vehicle with the intent to permanently deprive the victim of it, supporting defendant's conviction for grand larceny of a vehicle. That defendant's murder plan never succeeded due to the victim's escape did not vitiate defendant's larcenous intent during the trespassory taking. McEachern v. Commonwealth, 52 Va. App. 679, 667 S.E.2d 343, 2008 Va. App. LEXIS 471 (2008).

Record contained ample other evidence supporting the trial court's findings that defendant participated in a theft and entered the victims' home with the necessary intent because the police received the report of a burglary in progress at the victim's residence within an hour and fifteen minutes of when the victim left the home; inside the described vehicle, the officer saw four men of the same race as the four men reported to have just been seen stealing from the home. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Evidence properly considered as evidence of intention to commit larceny. - Where, as defendant was placed under arrest, he identified himself to the police using a false name, and provided the police with a fictitious social security number and date of birth, while this conduct ultimately gave rise to his conviction of forging a public document, this evidence also was properly considered as evidence of the appellant's intention to commit larceny. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Jury could infer defendant acted with criminal intent. - Where after manager asked defendant to accompany him back inside the store, the defendant fled, where during the ensuing chase, the defendant stopped and confronted the manager, indicated that he was armed and told the manager, "don't make me shoot you," from this evidence the jury could properly infer that the defendant had acted with criminal intent when he moved televisions toward the exit gate. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Intent to wound does not preclude intent to steal. - The mere fact that appellant had the intent to commit malicious wounding did not exclude the hypothesis that he also formed the intent to steal victim's property. Saunders v. Commonwealth, 18 Va. App. 825, 447 S.E.2d 526 (1994).

Possession and movement satisfied asportation element. - A jury could reasonably have concluded that the appellant actually possessed the televisions from the moment he took them from the display shelf and placed them in the shopping cart, until he abandoned the cart in the lawn and garden area outside the store building. Such possession and movement satisfied the asportation element of larceny, if such conduct was done animo furandi. The evidence clearly showed such an intent to steal. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Proof of firearms sufficient. - Circumstantial evidence was sufficient to demonstrate that the instruments taken by defendant were designed, made, and intended to fire or expel a projectile by means of an explosion, given the testimony of the victims, who described their guns; one victim testified that he had fired the gun months before the theft and it was operational, and the other victim testified that a number of shotguns, rifles, and ammunition were stolen out of his locked gun safe, such that a fact finder could have determined that the instruments stolen were firearms. Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

Retailers not required to wait until thief flees to attempt apprehension. - The Court of Appeals would not impose upon Virginia retailers a requirement that they must wait until a suspected thief flees the store with merchandise before they may attempt an apprehension. Where there is evidence that an individual has acted in a manner that is inconsistent with that of a prospective purchaser, and has exercised immediate dominion and control over the property, despite his continued presence within the owner's store, such conduct establishes sufficient possession to satisfy that element of larceny. Welch v. Commonwealth, 15 Va. App. 518, 425 S.E.2d 101 (1992).

Removal of goods from store display was larceny where found near store exit. - Larceny was accomplished when defendants removed the items from the locations in the store where they were displayed by the owner, where such items were adjacent to the storeroom door which led to the outside or were being worn at the time of arrest. Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 (1986).

Larceny shown despite period following break-in during which location of property uncertain. - Evidence was sufficient to prove the element of larceny, despite the almost four-week interval following the break-in during which the location of the rings was uncertain in that their owner merely assumed that they were in their usual place in the case on top of his dresser, where the rings were carefully stored, evidence presented showed that they were not removed from this box or the box disturbed save on the rare occasions when they were worn by their owner. These facts made it unlikely that the rings could have been lost through carelessness or accident. Nor was the time during which they were unaccounted for before and after the break-in so long as to dispel the reasonable inference that they were taken at that time. Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985), certification of probable cause denied and dismissed, 792 F.2d 139 (4th Cir. 1986).

Vehicle in repair shop. - When the victim took her vehicle to repair shop, she retained both her ownership and her right to reclaim possession, and thus defendant's conviction for grand theft from her was proper. Catterton v. Commonwealth, 23 Va. App. 407, 477 S.E.2d 748 (1996).

That defendant was in the stolen car nine days after the theft does not prove that defendant either stole the car or exercised dominion or control over the vehicle at any time. Burgess v. Commonwealth, 14 Va. App. 1018, 421 S.E.2d 664 (1992).

Although both burglary under § 18.2-91 and grand larceny under this section are committed in an unbroken line of misconduct, the continuity does not bar an indictment and a conviction for each of the two offenses. Downey v. Peyton, 451 F.2d 236 (4th Cir. 1971).

For a charge under former § 18.2-340.9, the misappropriated funds must be from gross receipts of bingo games or raffles conducted by licensed organizations; there is no minimum amount. For a charge of grand larceny not from the person under this section, there is no limitation on the source of the stolen property, but the property must be worth at least $200; thus, each offense contains an element the other does not, and defendant therefore was not punished twice for the same offense. Waldrop v. Commonwealth, No. 2094-94-2 (Ct. of Appeals Dec. 29, 1995).

Circumstances reflected intent to rape rather than intent to steal. - Where later in the morning of the crime as victim searched through her purse for a telephone number to report her absence from work, she discovered that $80 was missing from her wallet, and where the purse containing the wallet was on the floor beside the dresser in the victim's bedroom during the attack, the circumstantial evidence in this record failed to support an inference beyond a reasonable doubt that the intruder entered the victim's dwelling with the intent to commit larceny; the evidence established that the intruder entered the victim's dwelling sometime between 1:30 a.m. and 3:00 a.m. by cutting through the front door screen, and he then assaulted the victim over the course of the next two hours; these circumstances, standing alone, reflected an intent to rape or ravish rather than an intent to steal from the victim. Maynard v. Commonwealth, 11 Va. App. 437, 399 S.E.2d 635 (1990).

Assisting principal in the commission of the crime. - There was sufficient evidence to support the jury's finding that defendant encouraged and assisted the principal in the commission of the crime of larceny and was, therefore, guilty as a principal. Defendant and the principal together entered a grocery store, selected some deli sandwiches and beer, and together walked out of the store without paying for them. Wright v. Commonwealth,, 2014 Va. App. LEXIS 376 (Nov. 18, 2014), aff'd in part and rev'd in part, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016).

B. ADMISSIBILITY OF EVIDENCE.

Admission of authenticated photograph of goods as substantive evidence. - A photograph of the goods or merchandise alleged to have been taken or converted, which bears the sworn writing of the arresting officer and the photographer's signature, shall be deemed competent evidence of such goods or merchandise and shall be admissible to the same extent as if such goods and merchandise had been introduced as evidence. When a photograph is so authenticated and admitted, it becomes not just an illustration of the testimony of a witness but an independent silent witness constituting substantive evidence. Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Photographs admissible as illustrative evidence despite noncompliance with § 19.2-270.1 . - The trial court did not err in admitting photographs of recovered, stolen property in a larceny prosecution where the Commonwealth failed to comply with § 19.2-270.1 because they were received as illustrative, rather than substantive, evidence, and, thus, were not subject to the requirements of § 19.2-270.1 . Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Thumbprint as evidence of dominion and control. - Where defendant's thumbprint was on the jewelry box the presence of the thumbprint was evidence that he exercised dominion and control over that item of recently stolen property found in the room, as well as the other items stolen from that residence. Edmondson v. Commonwealth, No. 1504-92-1 (Ct. of Appeals Dec. 21, 1993).

Name on personal documents in bag. - Evidence that defendant's name was on personal documents contained in the bag permitted the fact finder to infer bag belonged to defendant and thus to place the value of the stolen items at a level sufficient to support grand larceny conviction. Washington v. Commonwealth, No. 1866-03-2, 2004 Va. App. LEXIS 246 (Ct. of Appeals June 1, 2004).

Valuation testimony. - Where store loss prevention officers took identical items of clothing, photographed them, recorded their prices and calculated their value to be over one thousand dollars and the items stolen were for sale and bore price tags indicating their value, the actions taken by the officers gave them sufficient knowledge to establish the value of the stolen merchandise, and their testimony was reliable and sufficient for that purpose. Jackson v. Commonwealth, No. 1212-97-4 (Ct. of Appeals October 6, 1998).

Admissibility of price tags. - Price tags in instant case clearly fell within the business records hearsay exception where loss prevention officers testified that the price tags arrive at the store attached to the merchandise; the tags were placed on the merchandise in the ordinary course of business by a store employee at the time their price was determined; the purpose of the tags is to record the value of the merchandise and track its sale; and tags were used by customers and cashiers to indicate the price of goods for sale and were collected when the items were sold. Jackson v. Commonwealth, No. 1212-97-4 (Ct. of Appeals October 6, 1998).

Admissibility of cash register receipts. - Cash register receipt was properly admitted into evidence under the price tag exception to the hearsay rule because the bar code on the products stolen were not readily decipherable by a judge or jury, but the receipt generated by scanning the bar codes at a cash register summarized the purchase prices of the items in a form that was comprehensible to the fact finder at trial. Twine v. Commonwealth, 48 Va. App. 224, 629 S.E.2d 714, 2006 Va. App. LEXIS 212 (2006).

Trial court did not abuse its discretion by admitting a cash register receipt for the items found in defendant's shopping cart into evidence, to establish the value of the items, which defendant was accused of having attempted to steal from a retail store, because an asset protection associate for the store was present when the customer service manager scanned the bar codes of the items in defendant's cart and the associate photographed the items in the cart. Calfee v. Commonwealth,, 2014 Va. App. LEXIS 178 (May 13, 2014).

Admission of murder victim's affidavit. - In a capital murder case, the trial court's admission of the victim's affidavit, which had been attached to her request for a protective order and stated that defendant, her husband, had previously threatened and raped her, in order to prove that defendant later raped and murdered his estranged wife, violated the Confrontation Clause; however, the affidavit's admission was harmless as to defendant's conviction for grand larceny because it did not affect the jury's determination of guilt as to defendant's theft of the victim's car. Crawford v. Commonwealth, 53 Va. App. 138, 670 S.E.2d 15, 2008 Va. App. LEXIS 554 (2008).

Admission of an abuse affidavit into evidence, although violative of defendant's U.S. Const., Amend. VI right to confrontation, was harmless beyond a reasonable doubt for convictions for capital murder, abduction with intent to defile, rape, grand larceny, and two counts of use of a firearm, where the evidence was sufficient to support the convictions absent the affidavit. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Evidence properly admitted. - Defendant's convictions for murder in violation of § 18.2-32 , use of a firearm in the commission of a felony in violation of § 18.2-53.1 , and grand larceny in violation of § 18.2-95 were appropriate because the trial court did not err in admitting evidence of prior crimes to establish defendant's identity since he disputed his identity as the perpetrator of the instant offenses. Additionally, given the substantial evidence of prior bad acts, evidence of a damaged fence did not substantially influence the jury; its admission was therefore harmless. McMillian v. Commonwealth,, 2011 Va. App. LEXIS 74 (Mar. 1, 2011).

Harmless error. - Admission of affidavits, although in error, was held harmless. Hutt v. Commonwealth,, 2012 Va. App. LEXIS 228 (July 10, 2012).

C. SUFFICIENCY OF EVIDENCE.

Evidence was sufficient to establish that a car was stolen, notwithstanding fact that one of its two owners did not testify that he did not give permission to the defendant to use the car, where the record contained no evidence that defendant or his codefendants had ever met either owner of the car, one owner of the car reported it as stolen, and the steering column of the car was broken open to allow it to be started without a key. Davidson, Jr. v. Commonwealth, No. 2514-97-2 (Ct. of Appeals July 7, 1998).

Evidence was sufficient to establish dominion and control of a stolen car where the defendant and his codefendants used the car to execute and escape after a robbery. Davidson, Jr. v. Commonwealth, No. 2514-97-2 (Ct. of Appeals July 7, 1998).

Fingerprint evidence alone insufficient. - Evidence that a defendant's fingerprints were found on a vehicle from which various items had been stolen was insufficient to sustain a conviction for grand larceny in the absence of other evidence indicating that the fingerprints were left on the vehicle at the time of the crime; in order to show a defendant was the criminal agent, fingerprint evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime. Watkins v. Commonwealth, No. 1975-99-1, 2000 Va. App. LEXIS 247 (Ct. of Appeals Apr. 4, 2000).

Location of stolen goods. - Location of a significant number of stolen goods throughout a vehicle, coupled with defendant's behavior during the encounter with police, supported the conclusion that defendant possessed the stolen goods. Based upon the proof of defendant's joint possession of at least the stolen items in the passenger compartment, the trial court, as the fact finder, was entitled to infer that defendant was guilty of both grand larceny and the statutory burglary. Taybron v. Commonwealth, No. 0623-18-1, 2019 Va. App. LEXIS 99 (Apr. 23, 2019).

Evidence of value of stolen goods shown by Commonwealth. - Testimony that a small fraction of the property stolen was sold shortly after its theft for eight hundred and fifty dollars was an inherently reliable indication of the value of the property stolen from which the jury could have determined that its total value was at least two hundred dollars, therefore, the Commonwealth did not fail to produce evidence of theft of goods valued in excess of two hundred dollars in support of the charge of grand larceny. Bradley v. Commonwealth, No. 0260-93-3 (Ct. of Appeals May 10, 1994).

Expert's testimony, along with circumstantial evidence of stolen computers' operability before, during and after theft, established that value of stolen goods was $200 or more. Hodges v. Commonwealth, No. 0622-99-2 (Ct. of Appeals Mar. 28, 2000).

Commonwealth sufficiently proved defendant committed grand larceny where evidence showed that defendant tried to leave store with a boxed computer priced at $798 without paying for the computer and that, after the computer was retrieved with the box still sealed with the original tape, it was later sold to a customer for $798 and was not returned; given such evidence and the lack of evidence to support defendant's theories that the box defendant took was empty or contained a damaged computer, the trial court's failure to require the Commonwealth to exclude such hypothesis was not plainly wrong. Mitchell v. Commonwealth, No. 1549-01-2, 2002 Va. App. LEXIS 313 (Ct. of Appeals May 21, 2002).

Because the testimony of a victim was sufficient to prove beyond a reasonable doubt that the value of the stolen pressure washer was at least $200 and defendant failed to preserve his other claims as required by Va. Sup. Ct. R. 5A:18, defendant's conviction for grand larceny, in violation of § 18.2-95 , was affirmed. Hatcher v. Commonwealth,, 2010 Va. App. LEXIS 76 (Feb. 23, 2010).

In defendant's prosecution for grand larceny in which it was shown that defendant stripped siding, fixtures, electrical wiring, and plumbing from the victim's trailer, it was no error to find the evidence was sufficient to prove the value of the stolen items was $200 or more because: (1) the record did not show the victim's testimony as to value simply recited replacement cost, as, while the "figures" the victim testified to were replacement costs the victim obtained, and the victim's estimates of value used this predicate information, the estimates were stated to be the victim's appraisal of the items' value "at the time they were taken"; (2) the evidence included a receipt showing defendant was paid $101.09 for the items and defendant's statement that defendant received "approximately $200" for the scrap metal; and (3) the victim testified the victim valued the fixtures "at the time that they were taken" at $2,000, based on the information the victim gathered, stated as the victim's opinion. Denoncourt v. Commonwealth,, 2010 Va. App. LEXIS 329 (Aug. 10, 2010).

In defendant's prosecution for grand larceny in which it was shown that defendant stripped siding, fixtures, electrical wiring, and plumbing from the victim's trailer, hearsay was not erroneously received as to the cost of repairing the damage, when the victim testified to estimates to repair the trailer, because the trial court could explore the victim's knowledge of the value of the stolen items to assess how much weight to attach to the victim's opinion, including the basis for the opinion. Denoncourt v. Commonwealth,, 2010 Va. App. LEXIS 329 (Aug. 10, 2010).

In a grand larceny prosecution under § 18.2-95 , the evidence was sufficient to prove that the value of the stolen items exceeded $200 as the victim's testimony established that the four stolen items collectively totaled at least $651 when they were purchased new, and the trial court found that the stolen items did not depreciate below $200. The victim was the sole owner of the four items and had knowledge of their use and condition. Hill v. Commonwealth,, 2011 Va. App. LEXIS 196 (June 7, 2011).

Defendant was properly convicted of grand larceny of a stove because the stove owner's testimony, admitted without objection, that the stove's value to him was the price charged for a new stove, $650, was sufficient to prove that its value was $450 above the $200 statutory threshold for a grand larceny conviction. Cairo v. Commonwealth, No. 1587-12-3, 2013 Va. App. LEXIS 281 (Ct. of Appeals Oct. 8, 2013).

Evidence was sufficient to convict defendant of grand larceny because a rational trier of fact could find that defendant stole nine hoodies from the store with a total value of $224.91, more than enough to satisfy the $200 threshold for a grand larceny conviction; and even if defendant stole only seven hoodies, a rational trier of fact could find that she also stole three pairs of denim pants from the store for a total value of $264.90 of stolen merchandise, which was above the threshold necessary to sustain a grand larceny conviction. Manning v. Commonwealth, No. 2082-12-1, 2013 Va. App. LEXIS 384 (Dec. 17, 2013).

Record was devoid of any suggestion that the victim's testimony was inherently incredible. The evidence, as accepted by the trier of fact, was sufficient to prove the value of the stolen items exceeded $200 at the time they were stolen, and thus, was sufficient to support defendant's conviction for grand larceny. Anderson v. Commonwealth,, 2014 Va. App. LEXIS 67 (Mar. 4, 2014).

Fact-finder could have concluded that defendant deprived a business of property valued in excess of the statutory minimum, as a witness identified a copy of the check he cashed for defendant, which was made payable to the witness in the amount of $ 1,748, and the bank teller confirmed that she gave that amount when she cashed the check. Moore v. Commonwealth,, 2014 Va. App. LEXIS 301 (Sept. 9, 2014).

Ample evidence established the value of the money orders defendant was found to have embezzled, as there was testimony that money orders were only provided in exchange for an equivalent amount of cash and the money order report showed that the money orders were issued for a total amount of $3,502, thereby exceeding the $200 threshold necessary to make the crime a felony. Phillips v. Commonwealth, No. 0237-16-1, 2017 Va. App. LEXIS 88 (Mar. 28, 2017).

Testimony that purchase price of one of two stolen items exceeded $200 held sufficient. - In a prosecution for larceny of two rings, testimony of the owner of the rings that the purchase price of only one of the rings exceeded $200, while this factor might not conclusively establish value, could certainly have given the trial judge, who saw both rings, a sufficient basis, taken with the other evidence of value, for finding that the "current value" of the rings exceed $200. Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985).

Value of stolen goods not shown. - The Commonwealth introduced evidence as to the age, original purchase price, and condition of each of the items taken, the owner of the items testified that all were in good working condition, and the Commonwealth introduced photographs of the items taken; however, the record contained insufficient evidence of the value of the items where there was no testimony as to the fair market value of the items, some of which were 15 years old, except for one item, a VCR valued at $50, and the record contained insufficient evidence from which the jury could determine depreciation from the original purchase prices. Davis v. Commonwealth, No. 2045-92-4 (Ct. of Appeals, May 17, 1994).

Evidence of value presented in instant case was inadequate as a matter of law to establish that element of the crime beyond a reasonable doubt where witness demonstrated insufficient knowledge of the value of the stolen items and lacked ample opportunity for forming an accurate opinion on value. Employed by the cable television company as production manager for "just over a month," witness described the items, stated their age, and said they were in "good working order." But he did not testify about the original cost or the effect of age and wear and tear on the value of the stolen equipment. He did not personally buy equipment for his employer, and merely based his estimate of fair market value on "personal experience" as a consumer and "experience as a manager for the company," neither of which afforded him a basis for giving a competent opinion of value. Walls v. Commonwealth, 248 Va. 480 , 450 S.E.2d 363 (1994).

Trial court erred in permitting two of the owner's employees to testify about the value of the stolen television set where neither of the employees had examined the television set, nor knew whether it was fully functional, other than turning it on and off; did not know the make, model, or exact age of the set; and their only knowledge of television set values came from their own personal purchases. Givens v. Commonwealth, No. 0105-94-2 (Ct. of Appeals March 21, 1995).

Where there was no testimony that the cordless telephone handset was worth $200 or more, and the Commonwealth did not present other evidence to prove the value of the handset satisfied required statutory amount, the evidence was insufficient to prove this element of grand larceny beyond a reasonable doubt. Parker v. Commonwealth, 254 Va. 118 , 489 S.E.2d 482 (1997).

Defendant's conviction for grand larceny in violation of § 18.2-95 was reversed because the trial court had no basis to determine the value of the copper or the air conditioning unit and thus, the evidence was insufficient to prove that the value of the goods stolen was $200 or more. Branch v. Commonwealth,, 2010 Va. App. LEXIS 83 (Mar. 9, 2010).

Defendant's conviction for grand larceny was improper because the Commonwealth failed to prove that the value of the jackhammer that defendant rented was at least $200. The only evidence of the jackhammer's value that the trial court found persuasive, which was its original purchase price and replacement cost, was insufficient to prove its worth. Byrum v. Commonwealth,, 2010 Va. App. LEXIS 211 (May 18, 2010).

Commonwealth failed to establish the value, either market value or current value, of the stolen copper pipes, a necessary element of grand larceny, conspiracy to commit grand larceny, larceny of property belonging to another with a value of $200 or more with the intent to sell or distribute such property, and conspiracy to commit larceny with the intent to sell or distribute. Grimes v. Commonwealth, 62 Va. App. 470, 749 S.E.2d 218, 2013 Va. App. LEXIS 302 (2013).

Evidence was insufficient to support defendant's conviction for grand larceny, as the evidence regarding the specific trees stolen was insufficient to allow a reasonable factfinder to conclude beyond a reasonable doubt that the value was $200 or more. Frango v. Commonwealth, 66 Va. App. 34, 782 S.E.2d 175, 2016 Va. App. LEXIS 51 (2016).

Circumstantial evidence was sufficient to support conclusion that defendant was an aider and abetter in a purse snatching and was the driver of the "getaway" car. Powell v. Commonwealth, No. 0549-89-2 (Ct. of Appeals Aug. 28, 1990).

Circumstantial evidence was sufficient to support finding that defendant embezzled deposit money from his employer. Cassell v. Commonwealth, No. 1595-98-2 (Ct. of Appeals Sept. 28, 1999).

The circumstantial evidence was sufficient to support the defendant's conviction for grand larceny where the evidence established that, after the defendant made a delivery to an individual at the business from which a laptop computer was stolen, the defendant was observed entering the room where the recipient of the delivery had been working on the laptop five to fifteen minutes earlier, the recipient then heard the sound of a cable dropping on the floor from that room and, after hearing the defendant depart, checked and discovered that the laptop was missing but that the laptop cable remained on the floor; no one else had entered the office during the relevant time and the recipient of the delivery identified the defendant as the courier in his office. The defendant had a motive in that he owed money to the IRS in taxes and the defendant admitted that he had falsified his log sheet for the day to change the order of his deliveries. Marshall v. Commonwealth, No. 0576-99-4, 2000 Va. App. LEXIS 294 (Ct. of Appeals Apr. 25, 2000).

The evidence was sufficient to support the defendant's conviction for grand larceny where the Commonwealth not only proved the defendant had the opportunity to steal the money and thereafter behaved furtively, in a manner suggestive of guilt, but also excluded anyone else as a possible thief, thereby eliminating every reasonable hypothesis consistent with innocence. Mendez v. Commonwealth, No. 0946-99-2, 2000 Va. App. LEXIS 525 (Ct. of Appeals July 18, 2000).

When viewed in the light most favorable to the Commonwealth, the circumstantial evidence presented at trial was sufficient to sustain the defendant's conviction where such evidence established that the defendant was the only person who had the opportunity to take the missing items from the victim's bedroom, the value of the stolen property exceeded $200, the defendant had a crack habit, and the defendant had stolen from his girlfriend days before the theft in question. Hines v. Commonwealth, No. 3049-99-1, 2000 Va. App. LEXIS 782 (Ct. of Appeals Nov. 28, 2000).

The only reasonable hypothesis flowing from the evidence was that the defendant took money from the cash box at a finance company where the defendant was the only person who entered the office where the cash box was kept after having observed an employee put $300 in the box, the employee had heard rattling sounds coming from the office while the defendant was in the office alone and, immediately after the defendant left the office, the employee discovered that the cash box was empty. Ellis v. Commonwealth, No. 2704-99-1, 2001 Va. App. LEXIS 82 (Ct. of Appeals Feb. 27, 2001).

Circumstantial evidence was sufficient to convict defendant of grand larceny, where victim testified that she left upholstery cleaner alone for over an hour and he had had to retrieve water from kitchen for living room by passing open door to bedroom where purse containing $2,300 was located. Petteway v. Commonwealth, No. 1679-00-2, 2001 Va. App. LEXIS 344 (Ct. of Appeals June 19, 2001).

In a prosecution for grand larceny, drawing all reasonable inferences in favor of the prosecution, the jury could have reasonably concluded that the direct and circumstantial evidence presented at trial supported a finding that defendant was in joint possession of a stolen white automobile with an unidentified driver of the vehicle, such that the "possession" element of the charge of grand larceny was proved beyond a reasonable doubt. Teal v. Angelone,, 2003 U.S. App. LEXIS 278 (4th Cir. Jan. 9, 2003), cert. denied, 539 U.S. 948, 123 S. Ct. 2622, 156 L. Ed. 2d 639 (2003).

Where a witness saw a car leave a burglarized home, the car's license plate matched that of defendant's live-in girlfriend, defendant admitted handling unusual shotgun shells found in the car that matched shells from the home, the witness was "90 percent" sure defendant was the driver of the car, and defendant (who had eight prior felony convictions) gave numerous conflicting stories about whether, when, and where he had driven his girlfriend's car, the circumstantial evidence had been sufficient to convict him of breaking and entering. Johnson v. Commonwealth, No. 3026-02-2, 2003 Va. App. LEXIS 707 (Ct. of Appeals Dec. 30, 2003).

Only reasonable hypothesis flowing from circumstantial evidence that defendant entered an apartment at a very late hour, without permission, and that money and medication was found missing from the apartment the next morning, was that defendant took the money and medication, and the evidence sufficiently supported defendant's grand larceny conviction, despite the fact that two other maintenance workers also had keys to the apartment, as there was no evidence they entered the apartment. Freeman v. Commonwealth, No. 0796-02-3, 2003 Va. App. LEXIS 331 (Ct. of Appeals June 10, 2003).

Where the victim's car and personal belongings were taken while the house was locked and defendant was asleep on the victim's couch, nothing in the record supported the scenario suggested by defendant that someone else stole the victim's property; the trial court was not wrong in rejecting a hypothesis "from the imagination" of defendant because the circumstantial evidence was sufficient to convict defendant of grand larceny. Brown v. Commonwealth, No. 1749-03-2, 2004 Va. App. LEXIS 211 (Ct. of Appeals May 4, 2004).

Finding that defendant was the thief who committed grand larceny of three power washers was justified where said circumstances showed that: (1) he was the only one seen leaving the scene of the crime running into the woods; (2) he ran past his stolen getaway car and attempted to obtain a ride from a complete stranger; and (3) when that plan failed, he was apprehended while driving the getaway car that he had eariler abandoned. Watts v. Commonwealth, No. 2974-03-2, 2005 Va. App. LEXIS 133 (Ct. of Appeals Mar. 29, 2005).

Defendant's conviction for petit and grand larceny was supported by sufficient evidence where: (1) the items found in the rear cargo area of the car driven by defendant at the time of a traffic stop had been recently stolen from vehicles parked on a body shop lot; (2) the jury was not required to accept defendant's explanation that he was legitimately present on the lot and that either his brother or co-defendant could have placed the stolen items in the cargo compartment, unbeknownst to him; (3) there was a discrepancy between defendant's statement to a police officer as to the time defendant was on the property and the time a security officer saw defendant's car leaving the body shop lot; (4) defendant drove from the lot in a rapid manner; and (5) the jury could have reasonably inferred that defendant's denial of knowledge of the presence of the stolen goods in the car and his explanation to the police officer were not credible. Sbitan v. Commonwealth,, 2006 Va. App. LEXIS 19 (Jan. 17, 2006).

Evidence was sufficient to support a conviction for grand larceny of $1,000 from defendant's girlfriend because the circumstantial evidence taken as a whole was consistent with a finding of guilt and excluded all reasonable hypotheses of innocence. Only seven people had any access to the bedroom where the money was located, only two people knew that the victim had the money, only defendant saw the victim put the money in a Bible in her bedroom, and defendant exhibited a number of unusual behaviors. White v. Commonwealth,, 2006 Va. App. LEXIS 538 (Nov. 28, 2006).

Larceny conviction based on theft of inkjet cartridges was supported by sufficient circumstantial evidence including evidence that, when arrested, defendant attempted to conceal the whereabouts of his car and his possession of the stolen cartridges; the trial court was entitled to infer that the 56 cartridges consisting of 24 different types of cartridges found in defendant's possession was inconsistent with a normal consumer purchase. Finally, while still in possession of the stolen cartridges, defendant was arrested attempting to steal more inkjet cartridges. Brown v. Commonwealth,, 2007 Va. App. LEXIS 223 (May 29, 2007).

Defendant's convictions on four counts of grand larceny and four counts of burglary were supported by sufficient evidence as defendant admitted that he took part in the burglaries of the first two of four homes, and the evidence supported a reasonable inference that defendant took part in the burglaries of the third and fourth homes, in that, at the fourth house, defendant's fingerprints were found on bank envelopes stolen from the third house. The similarity of the burglaries was relevant circumstantial evidence that tended to show that defendant was the criminal agent as the breaking and entering occurred by the same means each time, the same type of personal property was stolen, the master bedroom in each house was the target of each burglary, and dresser drawers were dumped in each location. Wilkins v. Commonwealth, No. 1297-07-1,, 2008 Va. App. LEXIS 483 (Ct. of Appeals Oct. 28, 2008).

Evidence that defendant had the opportunity to take the copper wire, no one other than defendant had worked on the wire, defendant knew that the wire's connections had been cut, and defendant had access to the locked panel boxes where the wire had been connected at the time in question was sufficient to prove beyond a reasonable doubt that defendant was the person who stole the wire. Tackett v. Commonwealth,, 2009 Va. App. LEXIS 81 (Feb. 24, 2009).

Because the circumstantial evidence - including the owners' identification of their all terrain vehicle, a witness's identification of defendant, and defendant's DNA on a crushed beer can found in a pack on the all terrain vehicle's handlebars - excluded any reasonable hypothesis of innocence and proved beyond a reasonable doubt that defendant stole the all terrain vehicle, defendant was properly convicted of grand larceny. Dove v. Commonwealth,, 2011 Va. App. LEXIS 243 (July 19, 2011).

Circumstantial evidence was sufficient to sustain defendant's breaking and entering and grand larceny convictions where he was seen pulling off the curb next to the burgled residence during the relevant time frame, he was arrested in the area of a second burglary, his seized vehicle contained stolen items, and thus, it was reasonable to infer defendant's involvement in all of the offenses. Commonwealth v. Moseley, 293 Va. 455 , 799 S.E.2d 683 (2017).

Evidence established defendant committed grand larceny and burglary because the trial court was entitled to conclude the only reasonable hypothesis flowing from the evidence was that the four men who burgled a house were the same four men in the car that contained the stolen goods; defendant admitted that he had been driving the car prior to the stop, which supported the inference he was driving it during the time period for the burglary and illegally entered the home and committed larceny. Greene v. Commonwealth, No. 0641-18-1, 2019 Va. App. LEXIS 97 (Apr. 23, 2019).

Evidence of value in welfare fraud case. - Court of Appeals properly upheld defendant's convictions for welfare fraud because applying an earned income deduction the income defendant failed to report would not have reduced the total overpayment for each indictment period to less than $200, and a housing deduction would not have reduced the total overpayment for the first period to less than $200. Jefferson v. Commonwealth, 298 Va. 1 , 833 S.E.2d 462, 2019 Va. LEXIS 134 (Oct. 24, 2019).

Evidence held sufficient to sustain conviction of grand larceny. Wright v. Commonwealth, 196 Va. 132 , 82 S.E.2d 603 (1950); Jordan v. Commonwealth, 207 Va. 591 , 151 S.E.2d 390 (1966); Skeeter v. Commonwealth, 217 Va. 722 , 232 S.E.2d 756 (1977); Shepherd v. Commonwealth, No. 2728-97-4 (Ct. of Appeals Nov. 10, 1998); Martin v. Commonwealth, No. 1556-97-2 (Ct. of Appeals Jan. 12, 1999); Brown v. Commonwealth, No. 0542-02-3, 2003 Va. App. LEXIS 22 (Jan. 21, 2003).

Evidence was sufficient to support defendant's conviction for grand larceny, as evidence that defendant broke into home and stole a woman's duffel bag with distinctive red striping, and was seen by several neighbors shortly afterwards carrying that duffel bag, allowed for the reasonable inference that defendant also stole items from the woman that she claimed were missing from her home and which supported a conviction under the grand larceny statute. Cullipher v. Commonwealth, No. 2422-01-1, 2002 Va. App. LEXIS 626 (Ct. of Appeals Oct. 15, 2002).

Where the trial court erred in admitting, over defendant's objection, hearsay testimony from two witnesses concerning information they saw displayed on a cash register computer screen, as the Commonwealth failed to admit the printout information of what was displayed, such error was harmless; defendant's inconsistent reasons for not having a receipt for a generator he had stolen, and the fact that the receipt that was attached to the generator was for a toolbox he had earlier abandoned, provided sufficient evidence to support his conviction. Baber v. Commonwealth, No. 2832-01-2, 2003 Va. App. LEXIS 212 (Ct. of Appeals Apr. 8, 2003).

Where defendant was found driving a vehicle that had been stolen 35 days earlier, defendant claimed that he didn't know that the vehicle was stolen, defendant claimed that his brother asked him to drive the vehicle, and defendant's brother denied the claim that he had asked defendant to drive the vehicle and testified that a cousin acquired the vehicle in exchange for drugs, there was uncontroverted evidence that defendant was in recent and exclusive possession of the stolen vehicle; hence, there was sufficient evidence to support defendant's conviction for grand larceny. Randolph v. Commonwealth, No. 2162-02-1, 2003 Va. App. LEXIS 511 (Ct. of Appeals Oct. 14, 2003).

Evidence was not insufficient to support larceny convcition as the trial judge was not required to believe testimony that defendant did not know that projector was stolen and there was identification evidence to support the conclusion that defendant stole the projector. Howard v. Commonwealth, No. 2166-03-2, 2004 Va. App. LEXIS 460 (Ct. of Appeals Sept. 28, 2004).

Evidence was sufficient to support defendant's conviction for grand larceny for possession of a recently stolen backhoe, as the trial court was at liberty to discount defendant's self-serving explanations as little more than lying to conceal defendant's guilt and could treat such prevarications as affirmative evidence of guilty knowledge. Burton v. Commonwealth,, 2006 Va. App. LEXIS 464 (Oct. 17, 2006).

Evidence, taken in the light most favorable to the Commonwealth, demonstrated that defendant, through defendant's own admission, took a savings withdrawal book from the residence of a person for whom defendant had performed cleaning services, presented forged withdrawal slips from the person's savings book to a teller at the bank where the relevant account was located, and received in cash the amount written on the withdrawal slip; as a result, a rational trier of fact could reasonably conclude that defendant committed grand larceny in violation of § 18.2-95 . Stokes v. Commonwealth, 49 Va. App. 401, 641 S.E.2d 780, 2007 Va. App. LEXIS 89 (2007).

Because a police officer's statement of the result of an investigation did not call for objectionable matter and did not state an assertion of an out-of-court declarant, defendant's hearsay objection was properly overruled; defendant's unexplained recent possession of a stolen vehicle was sufficient to prove defendant guilty of grand larceny. Rodgers v. Commonwealth,, 2007 Va. App. LEXIS 107 (Mar. 20, 2007).

Witness's testimony implicating the witness, defendant, and another person was not inherently incredible and was sufficient to prove beyond a reasonable doubt that defendant was guilty of grand larceny. Walker v. Commonwealth,, 2008 Va. App. LEXIS 475 (Oct. 21, 2008).

Victim's testimony, that defendant was only person besides the victim to enter the victim's home between the time the victim placed the victim's purse with the wallet in it on the bed and when the victim found the wallet missing, was sufficient to support defendant's conviction for grand larceny. Hollie v. Commonwealth,, 2009 Va. App. LEXIS 5 (Jan. 13, 2009).

While no one saw defendant carrying the bags of stolen crab legs out of a store, the evidence showed that defendant and his two cohorts walked into the store, grabbed twelve bags of crab legs, went into a bathroom with them, returned holding nothing in their hands, exited the store without paying for anything, and ran to their car; thus, the logical inference from the evidence presented was that defendant and his two cohorts concealed the crab legs in their clothing while in the bathroom and left the store. Brown v. Commonwealth, 54 Va. App. 107, 676 S.E.2d 326, 2009 Va. App. LEXIS 226 (2009).

Because defendant acknowledged that the traveler's checks defendant executed "probably" belonged to someone else, it was immaterial whether defendant knew they were counterfeit or fake; accordingly, the evidence was sufficient to find defendant guilty of grand larceny and uttering a forged traveler's check in violation of §§ 18.2-95 and 18.2-172 . McQuinn v. Commonwealth,, 2009 Va. App. LEXIS 258 (June 9, 2009).

Defendant's conviction for grand larceny of a string trimmer in violation of § 18.2-95 was appropriate because the evidence proved that defendant's blood was deposited on the metal stand when it was used to commit the larceny of the string trimmer. The owner's testimony was also competent on the issue of the value of the trimmer and sufficient to establish its value of at least $200. Swiggett v. Commonwealth,, 2010 Va. App. LEXIS 53 (Feb. 9, 2010).

Grand larceny conviction was supported by sufficient evidence, as a rational factfinder would easily have found the vehicle possessed by defendant belonged to the victim, as no witnesses testified that there were two identical vehicles in the mechanic's yard at the time the victim's car was stolen and it was within the trial court's province to believe the mechanic's testimony and not that of defendant, a convicted felon. Britt v. Commonwealth,, 2010 Va. App. LEXIS 246 (June 22, 2010).

Evidence that one set of victims testified that a nylon camouflaged holster found with defendant's wallet and belongings looked like one missing from their house, one of the firearms recovered from defendant's shed bore the serial number of a firearm missing from their home, and deer meat stolen from another victim and uniquely packaged was identified by another victim supported defendant's convictions for grand larceny, two counts of breaking and entering, two counts of larceny of a firearm, petit larceny, and destruction of property. Bowles v. Commonwealth,, 2010 Va. App. LEXIS 275 (July 13, 2010).

Sufficient evidence supported defendant's § 18.2-95 conviction as it could be inferred that defendant acted with the intent to permanently deprive a bank of its money since: (1) defendant opened a new checking account solely to deposit a cashier's check; (2) within days, defendant cashed three checks on the newly created account using two different names and addresses; (3) when contacted by the bank, defendant did not appear surprised there was a problem with the cashier's check; (4) defendant did not show for a meeting with the bank defendant promised to attend; and (5) defendant ignored the bank representatives and decided to keep and use the money from the spurious check. Dennis v. Commonwealth,, 2010 Va. App. LEXIS 377 (Sept. 21, 2010).

Evidence was sufficient to sustain defendant's conviction for grand larceny, in violation of § 18.2-95 , where defendant was found in possession of the victim's vehicle, without the victim's permission, and defendant admitted that he drove the vehicle to Florida. Crawford v. Commonwealth, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (2011).

Conviction for grand larceny under § 18.2-95 was supported by fact finder's conclusion that defendant did not have the substantial ability to return the property at time defendant took it due to money troubles; the trial judge was not required to believe defendant's testimony that defendant intended to return jewelry the next day when defendant got paid and could retrieve the items from the pawn shop. Marsh v. Commonwealth, 57 Va. App. 645, 704 S.E.2d 624, 2011 Va. App. LEXIS 44 (2011).

Where defendant cashed in $385 worth of coins a few days after the coins, a motorcycle, and other belongings were taken from a decedent's home, defendant was seen in possession of the motorcycle, and some of the decedent's belongings were found at his home, there was sufficient evidence that the coins he cashed in were the same coins taken from the decedent's home and that the coins were worth more than $200. Burton v. Commonwealth, 58 Va. App. 274, 708 S.E.2d 444, 2011 Va. App. LEXIS 177 (2011).

Defendant's conviction for grand larceny, § 18.2-95 , for taking items from a store was proper, as an innocent shopper would have produced a receipt, if the shopper still had it; when asked at trial where the receipt was, defendant first guessed it was at home, but changed defendant's story and claimed the police confiscated it from defendant's home. Gray v. Commonwealth,, 2012 Va. App. LEXIS 178 (May 29, 2012).

Evidence was sufficient to convict defendant of grand larceny because five manhole covers were removed from the shopping center parking lot sometime between December 1 and December 14, 2011; defendant dropped off four or five manhole covers for scrap metal at an auto disposal company on December 14, 2011; the auto disposal company was only approximately three to five miles away from the shopping center; the three manhole covers that were recovered fit the uncovered manholes at the shopping center; the property manager for the shopping center testified that the recovered manhole covers were the ones that belonged to the shopping center property; and the manhole covers cost $125 each. Johnson v. Commonwealth, No. 0256-13-1, 2013 Va. App. LEXIS 372 (Dec. 17, 2013).

Evidence was sufficient to convict defendant of grand larceny because the $200 threshold for grand larceny was met as a loss prevention associate at the store determined that 14 DVDs, which were sold for $19.96 each, were missing from the store; although the loss prevention associate lost sight of defendant for about 20 seconds, it was quite reasonable to conclude that defendant did not have time to pay for the DVDs before he left the store; and the fact that the DVDs had been concealed under clothing in a shopping cart and that defendant removed them from the cart and put them in a store bag that he had apparently brought with him was evidence that he intended to steal the merchandise. Freeman v. Commonwealth,, 2014 Va. App. LEXIS 261 (July 22, 2014).

Evidence that a burglary occurred and that the items in defendants' possession were stolen in the burglary permitted an inference that they stole the items and the fact that no physical evidence linked defendants to the burglary was not relevant. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 285 (Aug. 19, 2014).

Evidence was sufficient to convict defendant of grand larceny, as his landlord testified that he gave defendant permission to keep the home's furnishings if he bought the home, it was undisputed that defendant did not do so, he admitted taking the furnishings before moving out, and he did not dispute that they were worth more than $200. Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226, 2015 Va. App. LEXIS 2 (2015).

Evidence was sufficient to support defendant's larceny conviction because defendant's actions violated the owner's possessory right to an air conditioning unit, and thus constituted a taking by trespass, as a maintenance employee of the owner, relinquished custody of the unit to defendant based solely on defendant's representation that defendant would install the unit at the owner's rental property, but defendant transferred custody to defendant's friend and failed to install the unit. Bailey v. Commonwealth,, 2015 Va. App. LEXIS 117 (Apr. 7, 2015).

Reversal of defendant's convictions for grand larceny and larceny with the intent to sell was appropriate because, although defendant took and sold items from a house that was in the name of only one of defendant's siblings, defendant jointly owned the personal property in the house with defendant's siblings. Thus, although defendant's siblings could have brought a civil claim against defendant for taking jointly owned property, a criminal conviction for grand larceny and for larceny with the intent to sell was improper. Russell v. Commonwealth,, 2015 Va. App. LEXIS 343 (Nov. 24, 2015).

Rational trier of fact could have found the evidence sufficient to convict defendant of grand larceny because defendant could not rebut the fact that he was found in possession of the victim's rings only two days after the break-in; the victim testified that the value of all of the pieces exceeded $200 and that she had not given defendant permission to take any of the items. Davis v. Commonwealth, 65 Va. App. 485, 778 S.E.2d 557, 2015 Va. App. LEXIS 341 (2015).

Evidence was sufficient to convict defendant of grand larceny of a motor vehicle because the owner of the truck, defendant's girlfriend, impliedly authorized defendant's father to sign the truck title as she did not object to or indicate disapproval of the conduct of defendant's father; and defendant possessed the requisite larcenous intent as he knew the transaction was successfully completed and that the truck was the victim's property; when defendant returned with a second key to the truck and drove the truck off of the victim's property, he did not have the victim's permission to take the truck; and the victim testified that the value of the truck was over $200. Doss v. Commonwealth, No. 0421-17-3, 2018 Va. App. LEXIS 157 (June 12, 2018).

Circuit court properly convicted defendant of grand larceny because there was no dispute that the website printouts at issue fell under the business records exception to the hearsay rule where the information contained in the printouts was collected at the store where defendant sold the victim's jewelry at the time of the relevant transactions, included pictures of the jewelry and the defendant's driver's license, and was uploaded by agents of the store onto the website in accordance to the timing and trustworthiness requirements to be searchable by law enforcement organizations that contracted with the website, and there was nothing inherently unbelievable in owner's testimony regarding value. Melick v. Commonwealth, 69 Va. App. 122, 816 S.E.2d 599, 2018 Va. App. LEXIS 208 (2018).

In its capacity as fact finder, the trial court determined that the victim's money was unaccounted for after defendant emptied the victim's motel room immediately after the victim's arrest, and the inference that defendant took the victim's money flowed from these facts. Thus, the evidence, viewed in the light most favorable to the Commonwealth, and with proper deference to the fact finder, was sufficient to support the circuit court's verdict convicting defendant of grand larceny. Dunithan v. Commonwealth, No. 0424-18-3, 2019 Va. App. LEXIS 102 (Apr. 30, 2019).

Sufficient evidence of grand larceny by false pretenses. - Where defendant sold victims a car he had not paid for and for which he did not have legal title; victims gave defendant money for the car, ownership of which he could not legally transfer; and defendant issued victims a receipt for the car and he deceived them regarding the status of the car's title, conviction for grand larceny by false pretenses was affirmed. Wileman v. Commonwealth, 24 Va. App. 642, 484 S.E.2d 621 (1997).

Evidence sustaining conviction of attempted grand larceny. - Where the defendant was arrested while in the act of prying open the trunk of a car that contained a money bag, which he knew was in the trunk and which he thought contained money, but which was in fact empty; and the trunk also contained a camera, a movie projector and a tire having a total value of more than $200; and the indictment returned against the defendant charged him with attempted grand larceny of those three articles; the defendant was properly convicted of attempted grand larceny because the natural inference to be drawn from his actions was that he intended to steal whatever he found in the trunk. Coleman v. Commonwealth, 211 Va. 571 , 179 S.E.2d 470 (1971).

Because the cash register tapes were properly admitted under the business records exception to the hearsay rule, the evidence presented was sufficient to convict cashier of attempted grand larceny. From the eyewitness testimony and the tapes, the trial judge properly inferred that out of customer's entire grocery order, totaling $426.22, cashier, in an attempt to hide the actual amount of items taken from the store, scanned only five deli items equaling $25.30. That the scanner in cashier's checkstand may have malfunctioned, not registering over $400 worth of groceries, and gone unnoticed by cashier, was a hypothesis of innocence unsupported by the evidence. Furthermore, the customer's five deli items scanned in cashier's lane exactly matched five deli items that were re-scanned by head teller. Lastly, prices of certain items from the customer's cart, worth over $200 in total, were personally verified by head teller, thus supplying conclusive proof of the value of the items taken to prove a conviction of attempted grand larceny. Fitzhugh v. Commonwealth, 20 Va. App. 275, 456 S.E.2d 163 (1995).

Evidence was sufficient to sustain a conviction of grand larceny because a victim testified that defendant sold him a tow dolly, a surveillance video showed a truck similar to defendant's truck leaving a gas station's parking lot after hours with a tow dolly, and testimony showed that the tow dolly was worth more than $1,500. Berry v. Commonwealth,, 2010 Va. App. LEXIS 217 (May 25, 2010).

Evidence held sufficient to prove grand larceny. - Where trial court was entitled to conclude that defendant knew that property was stolen, actively participated in its disposition, and lied about his actual role in the transaction in order to mask this fact, defendant's conviction for grand larceny would be affirmed. Speight v. Commonwealth, 4 Va. App. 83, 354 S.E.2d 95 (1987).

Considering the unique nature of the copper bus bars, the circumstances under which they were found in the defendant's possession, their location next to the plant and in close proximity to a storage bin containing similar bus bars, the time of day - approximately 11 p.m. - at which the defendant was transporting them, the matching distinctive shiny and tarnished colorations between the stockpiled copper and that possessed by the defendant, the gap in the fence enabling the copper to be removed from the plant's property, and the fact that the plant had copper of these dimensions missing from its inventory, the evidence was sufficient to identify the copper found in the defendant's possession as belonging to the plant and to prove that it was stolen. Lew v. Commonwealth, 20 Va. App. 353, 457 S.E.2d 392 (1995).

Ample evidence supported the finding that the defendant was the criminal agent who stole the plant's copper bus bars. Unexplained or falsely explained possession of recently stolen goods is a fact sufficient for the judge or jury to infer that the person in possession of the stolen goods was the thief. Moreover, the evidence showed that as a workman inside the plant, the defendant had the means and opportunity to gain access to the secured area where the copper was stored. His explanation that he found the large amount of valuable copper alongside the roadway, next to the plant where he worked, and that he was taking his found property home late at night, was not credible, and the fact finder was entitled to disbelieve it. Lew v. Commonwealth, 20 Va. App. 353, 457 S.E.2d 392 (1995).

All of the evidence in this case indicated that the car found in the possession of the defendant was the same car that had recently been stolen. Accordingly, the conviction was affirmed. Warf v. Commonwealth, No. 1086-96-1 (Ct. of Appeals Jan. 28, 1997).

Where the victim testified that she requested the return of her motorcycle and defendant refused, and defendant's own testimony established that he had converted the motorcycle to his own use by giving it to his cousin, the trial court was entitled to conclude that he intended to permanently deprive the victim of her property. Morris v. Commonwealth, No. 1606-96-2 (Ct. of Appeals Apr. 1, 1997).

Where, when questioned by police regarding whether there were any weapons in the room, defendant said there might possibly be a gun or knife under one of the beds, where the police immediately found the gun under one of the mattresses, lying directly beside a knife that appellant admitted was his, and where although appellant denied ownership of the gun, its presence with his knife and his earlier statement indicating his awareness of its presence permitted the inference "that appellant exercised the dominion and control necessary to show constructive possession," the evidence of his constructive possession of a firearm was sufficient to support his conviction for grand larceny of the firearm and possession of a firearm by a convicted felon. Archer v. Commonwealth, 26 Va. App. 1, 492 S.E.2d 826 (1997).

Evidence was sufficient to prove that the defendant committed grand larceny of a cellular telephone where he opened a cellular account and obtained a telephone using a false name and social security number, and he was told to return the telephone after several days, but neither the defendant nor the telephone ever returned. Faulk v. Commonwealth, No. 0154-97-1 (Ct. of Appeals June 9, 1998).

Evidence was sufficient to establish that defendant had exclusive possession of stolen car, where he was found operating vehicle and in possession of its keys, his wallet was found hidden in vehicle, and he had been seen in possession of an identical car after theft but prior to his arrest. Dobson v. Commonwealth, No. 2802-97-2 (Ct. of Appeals June 15, 1999).

Evidence was sufficient to sustain defendant's conviction of grand larceny under this section where a patient observed defendant twisting her bracelet while defendant, a phlebotomist, was drawing blood which was the last time the patient saw the bracelet and the only other person who could have stolen it, an emergency room doctor, never touched the bracelet. Bailey v. Commonwealth, No. 0485-01-4, 2002 Va. App. LEXIS 146 (Ct. of Appeals Mar. 12, 2002).

Absent a credible, exculpatory explanation for his possession of a stolen check, the trial judge permissibly inferred that the evidence was sufficient to support defendant's conviction for larceny. Gilbert v. Commonwealth, No. 2128-01-3, 2002 Va. App. LEXIS 664 (Ct. of Appeals Nov. 5, 2002). See Sprouse v. Commonwealth,, 2002 Va. App. LEXIS 748 (Dec. 17, 2002); Covil v. Commonwealth, No. 2860-02-1, 2003 Va. App. LEXIS 632 (Ct. of Appeals Dec. 9, 2003), aff'd, 268 Va. 692 , 604 S.E.2d 79 (2004).

Evidence was sufficient to support defendant's convictions for statutory burglary and grand larceny where: (1) defendant's DNA profile was consistent with blood drops underneath a window; (2) a partial analysis on a beer bottle did not exclude defendant; (3) defendant was not a customer or an employee of the co-op, and no evidence suggested that he had a reason to be on the premises; (4) defendant lied to police about his whereabouts at the time of the break-in; and (5) before police shared any information with defendant as to the condition of the truck, he made the spontaneous statement that "the truck was not damaged." Davis v. Commonwealth, No. 0649-03-2, 2004 Va. App. LEXIS 220 (Ct. of Appeals May 11, 2004).

Because the cash register receipt for the items defendant stole was properly admitted and established that the value of the merchandise stolen was $693.29 and because defendant offered no evidence at trial to refute the prices of the stolen items listed on the receipt, the evidence was sufficient to sustain defendant's conviction for grand larceny. Twine v. Commonwealth, 48 Va. App. 224, 629 S.E.2d 714, 2006 Va. App. LEXIS 212 (2006).

Whether defendant made unauthorized transactions from defendant's former employer's account or supplied the necessary information to defendant's spouse for the spouse to conduct the transactions, the evidence was sufficient to prove beyond a reasonable doubt that defendant committed grand larceny as either a principal in the first or second degree. The evidence showed that unauthorized transactions were paid to accounts containing the names of defendant and the spouse, and that defendant and the spouse, by retaining copies of checks drawn on the employer's bank account, had ready access to the account and routing numbers required to make transactions by telephone. Rashad Jamar Cason v. Commonwealth,, 2009 Va. App. LEXIS 46 (Feb. 3, 2009).

In a case in which defendant appealed his convictions for breaking and entering, in violation of § 18.2-91 , and grand larceny, in violation of § 18.2-95 , he argued unsuccessfully that the evidence was insufficient to support his convictions. The trial court reasonably concluded from the evidence that the items stolen and those defendant sold to a pawn shop were the same items: (1) the pawn shop required a picture identification prior to purchasing property from a customer; (2) the purchase agreements issued to defendant for the purchase of a guitar and television listed the serial numbers of the items purchased; and (3) those serial numbers matched the serial numbers of the stolen guitar and television. Lunsford v. Commonwealth, 55 Va. App. 59, 683 S.E.2d 831, 2009 Va. App. LEXIS 461 (2009).

Evidence that defendant secretly took a rifle without the owner's permission after she had fallen asleep, engaged the police in a high speed chase that resulted in his crashing his car, and that he abandoned the rifle, was sufficient to convict him of grand larceny in violation of § 18.2-95 , as there was no evidence he intended to return the gun. Massa v. Commonwealth,, 2012 Va. App. LEXIS 300 (Sept. 25, 2012).

Evidence was sufficient to prove beyond a reasonable doubt that defendant committed grand larceny, by stealing items from a retail store, because the trial court could have inferred from the evidence that defendant intended to steal all of the items in defendant's shopping cart, not just the merchandise that defendant put into a plastic bag. Furthermore, defendant did not pay for the items and fled on foot when stopped in a vestibule area outside the store. Calfee v. Commonwealth,, 2014 Va. App. LEXIS 178 (May 13, 2014).

Evidence was sufficient to support a conviction for grand larceny because the receipt of numerous camouflage t-shirts of various sizes purchased with another person's money and defendant's failure to deliver them to him constituted a taking that was accomplished with an intent to permanently deprive the owner of the shirts. Moreover, the asportation element of grand larceny was met because defendant acquired the t-shirts and then failed to deliver them, in violation of her duties as a patient shopper. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Sufficient evidence supported defendant's grand larceny conviction because, inter alia, a jury could reject defendant's claim of right defense, as the jury was free to reject defendant's explanation of how defendant obtained stolen items and could find defendant had no valid claim of right to a victim's property. Chambers v. Commonwealth, No. 1214-17-2, 2018 Va. App. LEXIS 136 (May 22, 2018).

Evidence was sufficient to convict defendant of grand larceny because defendant took the pieces of the victim's jewelry and pawned them, without the victim's permission; defendant failed to rebut the inference that her trespassory taking was accomplished with the intent to permanently deprive the victim of the jewelry as, at trial, defendant, a convicted felon, testified that she believed that the victim had loaned her son the jewelry to be pawned for gas money, but that testimony contradicted defendant's own prior statement to a deputy, which omitted any reference to a loan; and defendant's inconsistent explanations provided affirmative evidence of her guilt. Lindow v. Commonwealth, No. 1259-18-3, 2019 Va. App. LEXIS 261 (Ct. of Appeals Nov. 12, 2019).

Sufficient evidence to convict defendant as principal. - In a criminal prosecution for grand larceny, where defendant and his father deceived the owner of a car to gain access to the car and then disappeared with the car for six weeks, the evidence was sufficient to convict defendant as a principal. Tuck v. Commonwealth, No. 3376-02-3, 2003 Va. App. LEXIS 623 (Ct. of Appeals Dec. 9, 2003).

In a case in which defendant appealed his conviction in a bench trial for grand larceny of a rental vehicle, his challenge to the sufficiency of the evidence that he was the criminal agent who stole the vehicle was without merit as it ignored the credibility determinations that the court necessarily reached in support of the conviction, and it also failed to consider the competency of circumstantial evidence to establish guilt beyond a reasonable doubt. The evidence supported the conviction beyond a reasonable doubt. Williams v. Commonwealth,, 2012 Va. App. LEXIS 231 (July 17, 2012).

Evidence held insufficient to prove grand larceny. - Fact that defendant, who was hitchhiking, accepted a ride from the first person who stopped, and that he knew that person was driving a stolen vehicle, raised a suspicion of guilt, but was not sufficient to establish beyond a reasonable doubt that the defendant committed grand larceny. Moehring v. Commonwealth, 223 Va. 564 , 290 S.E.2d 891 (1982).

Proof that a defendant knew that an automobile was stolen and was in the automobile as a passenger did not suffice to prove the defendant guilty of larceny of the automobile. Burgess v. Commonwealth, 14 Va. App. 1018, 421 S.E.2d 664 (1992).

Where the evidence did not prove beyond a reasonable doubt that defendant exercised any degree of dominion or control over the vehicle or that he shared joint exclusive possession of the stolen vehicle with anyone, the court of appeals reversed the larceny conviction. Burgess v. Commonwealth, 14 Va. App. 1018, 421 S.E.2d 664 (1992).

In an action for grand larceny no evidence was presented of the value of credit cards, only of the lines of credit they represented; consequently, the evidence did not support a finding that the card had a value greater than $200, and the defendant, who obtained the cards by false representation, could be convicted only of petit larceny, not grand larceny. Owolabi v. Commonwealth, 16 Va. App. 78, 428 S.E.2d 14 (1993).

Evidence failed to support conviction of grand larceny where defendant cashed an Aid to Dependent Children (now TANF) check at a convenience store, reported to the Department of Social Services that the check was stolen or lost and by affidavit swore that she had neither endorsed the check nor authorized its endorsement, and Social Services subsequently issued her another check and withdrew the amount of the first check from the bank account of the convenience store. Nothing in the evidence supported a finding that defendant intended thereby to steal from the convenience store or that, at that time, she intended to present a false claim to the Department of Social Services. Nor was there any evidence supporting a finding that defendant knew that her execution of the affidavit would cause the Department of Social Services to withdraw money from the account of the convenience store. Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436 (1999).

Circumstantial evidence was insufficient to prove that the defendant committed grand larceny and/or burglary where: (1) there was evidence that she walked toward a business that was burglarized, but there was no evidence that she entered the business or was seen inside the business; (2) although the defendant's boots were very similar to footprints in the snow at the scene of the crime, no evidence of a match was presented; and (3) police officers saw other persons near the scene of the crime shortly after the defendant was allowed to leave, but did not examine their shoes or try to match them to the footprints in the snow. Martin v. Commonwealth, No. 1556-97-2 (Ct. of Appeals June 9, 1998).

Evidence was insufficient to support a conviction where: (1) the parties stipulated that two homes were burglarized and that goods valued at more than $200 were stolen from each home; (2) although there was evidence that the defendant thereafter pawned some items, there was no evidence as to what those items were; and (3) a police officer could not recall whether the defendant admitted that he pawned "that stuff" or "some stuff." Dailey v. Commonwealth, No. 0327-98-1 (Ct. of Appeals Feb. 9, 1999).

A defendant's conduct in not leaving a vehicle and moving into the front seat while it was being stolen by another was insufficient to support his conviction for grand larceny as a principal in the second degree; no evidence proved the defendant participated in the theft or aided and abetted the perpetrator by inciting, encouraging, advising or assisting him or proved the defendant was a look-out and no evidence proved the defendant shared the perpetrator's criminal intent. Hampton v. Commonwealth, 32 Va. App. 644, 529 S.E.2d 843, 2000 Va. App. LEXIS 465 (2000).

The evidence was insufficient as a matter of law to establish the defendant's larcenous intent at the time he drove a companion's car away from a fight in which the owner had been attacked where the trier of fact could not determine, without speculation, that the defendant intended to deprive the owner of his car permanently. Tarpley v. Commonwealth, 261 Va. 251 , 542 S.E.2d 761, 2001 Va. LEXIS 31 (2001).

Charges that a defendant committed grand larceny by passing counterfeit checks were not sufficiently proved by evidence which failed to link him to the specific checks upon which the charges were based. Bell v. Commonwealth, No. 0139-01-2, 2002 Va. App. LEXIS 151 (Ct. of Appeals Mar. 12, 2002).

Although the evidence showed that the woman's purse and its contents, valued at more the $200, was taken from the lawyer's office where the woman worked as a paralegal, the evidence was insufficient to prove all of the elements of grand larceny beyond a reasonable doubt, and, thus defendant's grand larceny conviction was reversed. Defendant denied taking the purse, was not shown to be in possession of any of its contents, and two other people had been in the office during the two-hour time period before the woman noticed that the purse was missing. Anderson v. Commonwealth, No. 2460-02-2, 2003 Va. App. LEXIS 690 (Ct. of Appeals Dec. 23, 2003).

Defendant's conviction for grand larceny was reversed because the evidence failed to prove that the value of the lottery ticket she allegedly stole was $200 or more; under the common law, the value of the ticket was the value of the paper on which it was printed or 50 cents. Hunt v. Commonwealth, 46 Va. App. 25, 614 S.E.2d 668, 2005 Va. App. LEXIS 239 (2005).

Evidence did not support defendant's conviction for grand larceny, as the evidence of the value of a laptop computer was insufficient to demonstrate that the $200 statutory threshold was met; the factfinder did not even know the age of the laptop, let alone have any information about wear and tear or whether the laptop was even operable. Williams v. Commonwealth,, 2015 Va. App. LEXIS 134 (Apr. 21, 2015).

Evidence offered to prove the corpus delicti in a trial for larceny was insufficient where the evidence failed to prove that property has been stolen from another or where property found in the accused's possession could not be identified as having been stolen. Lew v. Commonwealth, 20 Va. App. 353, 457 S.E.2d 392 (1995).

Evidence held sufficient. - Unbroken chain of events, including defendant's entry into the victim's home, taking of a VCR, carrying such away while shielding the front of his body from the victim's view, his immediate departure thereafter, and fingerprints found on a beer can within ten feet from the place where the VCR was taken, was sufficient circumstantial evidence to support petit larceny conviction. Turner v. Commonwealth, No. 1942-01-3, 2002 Va. App. LEXIS 222 (Ct. of Appeals Apr. 9, 2002).

Evidence proved beyond a reasonable doubt that defendant was the criminal agent of the charged offenses of forgery and uttering, in violation of § 18.2-172 , and grand larceny of the proceeds, in violation of § 18.2-95 , where only defendant had access to the victim's checkbook during the time the check in question was stolen, and defendant cashed the check. Clary v. Commonwealth, No. 3010-00-2, 2002 Va. App. LEXIS 324 (Ct. of Appeals May 28, 2002).

Evidence showing that after bingo game had concluded, witness, who had the only key, had locked the proceeds in walk-in refrigerator in kitchen, that the next day defendant was found leaving the kitchen with a box of stolen food, and that the refrigerator locks were broken and food was strewn all over the refrigerator, and that when on the following day the refrigerator and its contents were examined, the cash was missing, was sufficient for the trial court to reasonably infer that defendant, who had been seen stealing the food, had also stolen the missing cash. Murphy v. Commonwealth, No. 1198-01-2, 2002 Va. App. LEXIS 399 (Ct. of Appeals July 23, 2002).

Evidence sufficiently supported defendant's conviction for committing grand larceny in the second degree as it showed that defendant helped to select the items that were eventually stolen and handed them to defendant's sister, that defendant concealed one of the two stolen items with a garment bag defendant brought into the store, and that defendant was with defendant's sister as the sister visibly carried items out of the store in a red shopping bag despite the fact that the sister had not brought that bag into the store and had made no purchases; it was not reasonable to infer from the evidence and the circumstances that the sister acted alone in stealing the items. Falo v. Commonwealth, No. 2730-01-4, 2002 Va. App. LEXIS 753 (Ct. of Appeals Dec. 17, 2002).

Evidence that defendant wrote 142 checks worth $82,130 on a church's bank account over a 25-month period and used the money for various purposes, including as gifts to others, supported the trial court's judgment that he committed multiple, separate acts of embezzlement, in violation of §§ 18.2-111 and 18.2-95 . Bragg v. Commonwealth, 42 Va. App. 607, 593 S.E.2d 558, 2004 Va. App. LEXIS 103 (2004).

Defendant's convictions for grand larceny and breaking and entering with intent to commit larceny were affirmed as: (1) an employee of the victim business testified that a storeroom window was intact on the day before the burglary and that the next day he discovered his computer and other items missing and found that the window was broken; (2) the storeroom was not a place where employees regularly went; (3) defendant repeatedly told a detective that he had never been inside the storeroom; (4) it could be hypothesized that defendant's blood was left in the storeroom during the burglary and that defendant was the burglar; and (5) the fact that the burglar did not take a broken printer and that defendant knew that the printer was broken provided additional circumstantial evidence that defendant was the perpetrator. Smith v. Commonwealth,, 2006 Va. App. LEXIS 295 (July 5, 2006).

Defendant's conviction for larceny from a person under § 18.2-95 was supported for § 8.01-680 purposes by a victim's identification of defendant that was corroborated by Deoxyribonucleic Acid from a vest defendant left at the crime scene. Gantt v. Commonwealth, No. 2966-07-1, 2008 Va. App. LEXIS 430 (Ct. of Appeals Sept. 23, 2008).

Defendant's conviction of embezzlement in violation of § 18.2-95 was supported by the evidence, as a manager of the store where defendant worked testified that store video showed defendant print two money orders, grab them, and walk off. There was no customer at the cash register at the time. McDonald v. Commonwealth,, 2008 Va. App. LEXIS 532 (Dec. 9, 2008).

Convictions of grand larceny and statutory burglary were supported by sufficient evidence because the trial court was not obligated to accept defendant's explanation of possession of recently stolen tools as credible, and was entitled to rely on evidence of his falsely denied recent possession as proof of his guilt; the trial court clearly rejected defendant's story of how he purchased, then pawned, the stolen tools as too coincidental, and disregarded defendant's explanation as too opposed to probabilities. Marshall v. Commonwealth,, 2009 Va. App. LEXIS 318 (July 14, 2009).

Evidence was sufficient to sustain defendant's conviction for grand larceny because defendant's act of removing paint from the display shelf in a store, placing it in a cart, and representing that the paint had already been purchased created a substantial risk of permanent loss of the paint to the store, and since defendant's stated intent to return the paint was entirely contingent upon the store's payment of the full value of the paint, which was a condition he had no right to impose, his intent to "sell" it back to the owner under fraudulent circumstances did not negate his intent to steal the paint at the time of the taking; the intent to return, conditioned on a future event that may or may not occur and based on a false assertion of ownership, should be disregarded as a matter of law and, as such, cannot negate the inference of intent to steal. Carter v. Commonwealth, 54 Va. App. 700, 682 S.E.2d 77, 2009 Va. App. LEXIS 386 (2009), aff'd, 280 Va. 100 , 694 S.E.2d 590, 2010 Va. LEXIS 74 (2010).

Evidence supported a finding that defendant and two accomplices had agreed to commit grand larceny in violation of subsection B of § 18.2-23 and § 18.2-95 because testimony revealed that they were in a store, together, for one-and-a-half hours, taking merchandise and thereafter concealing the merchandise, and the trial court could properly infer that defendant and the accomplices, prior to entering the store, agreed upon a course of action that would provide the means to conceal the merchandise to be stolen from the store; because the evidence proved conspiracy, and the aggregate value of the merchandise concealed by defendant and the accomplices exceeded $200, the trial court did not err in convicting defendant of grand larceny. Brown v. Commonwealth, No. 1984-09-1,, 2010 Va. App. LEXIS 299 (Ct. of Appeals July 27, 2010).

Conviction for grand larceny as principal in second degree, was supported by defendant's statement that defendant had not yet been arrested and defendant's persistent use of the vehicle to accommodate a friend, meet a family member, and ride to defendant's own home rather than any attempt to stop the continued use of the vehicle. Williams v. Commonwealth, 56 Va. App. 638, 696 S.E.2d 233, 2010 Va. App. LEXIS 315 (2010).

In a prosecution for grand larceny under clause (ii) of § 18.2-95 , evidence that a decedent's home was in complete disarray after his death, that coins as well as other items were missing, and that his brother had filed a police report, was sufficient to support the trial court's conclusion that the missing coins were taken without the owner's permission. Burton v. Commonwealth, 58 Va. App. 274, 708 S.E.2d 444, 2011 Va. App. LEXIS 177 (2011).

Evidence supported a finding that the breaking and entering and the grand larceny from one residence occurred at the same time and that the same person or persons committed the offenses as part of the same transaction. Furthermore, the facts gave rise to a fair inference that defendant committed the acts as recently stolen property from the residence was found in defendant's possession. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 155 (Apr. 29, 2014).

Evidence was sufficient to support defendant's convictions for larceny of a firearm, larceny with intent to sell, and sale of a firearm to a felon. The trial court determined the evidence that defendant stole a handgun from its owner and sold it to a buyer was proved beyond a reasonable doubt, and the record in the case showed that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Ridley v. Commonwealth, No. 0061-16-1, 2016 Va. App. LEXIS 323 (Ct. of Appeals Nov. 29, 2016).

Evidence was sufficient to establish that defendant was a criminal agent in connection with a charged grand larceny because an eyewitness identified defendant as one of the individuals who appeared to be attempting to break into parked cars and who left in a particular type of car, and, when the police found the same type of car shortly thereafter in a nearby neighborhood, defendant was across the street, walking away. Inside the car were the belongings stolen out of the victim's car, and defendant admitted to being the driver of the car. George v. Commonwealth, No. 1382-17-1, 2019 Va. App. LEXIS 38 (Feb. 19, 2019).

Insufficient evidence. - Where a deputy found a stolen handgun within 60 feet of where a truck in which defendant had been riding had stopped, where gun was not found until the next day, defendant did nothing to suggest he had any knowledge of, or dominion or control over the gun; further, assuming the driver of the truck stole the gun, as there was neither proof that defendant failed to oppose the theft nor proof of other circumstances upon which to find he acted as a principal in the second degree, his conviction of grand larceny on an aiding and abetting theory was not supported by sufficient evidence. Myers v. Commonwealth, 43 Va. App. 113, 596 S.E.2d 536, 2004 Va. App. LEXIS 238 (2004).

Evidence was insufficient to prove that defendant committed the breaking and entering and grand larceny offenses at two residences because a reasonable fact finder could not have concluded beyond a reasonable doubt that defendant exercised dominion and control over stolen property that was recovered. Johnson v. Commonwealth,, 2014 Va. App. LEXIS 155 (Apr. 29, 2014).

III. PROSECUTION, SENTENCING, ETC.

Trial in absentia. - Record supported the trial court's judgment that defendant was warned he could be tried in absentia if he did not appear for trial, and the trial court did not abuse its discretion when it allowed the Commonwealth to try defendant in absentia on a charge of conspiracy to commit grand larceny. Sullivan v. Commonwealth, No. 2300-02-4, 2004 Va. App. LEXIS 67 (Ct. of Appeals Feb. 10, 2004).

Larceny and venue considerations. - Even though larceny is a continuing offense and the offense of receiving stolen property is deemed larceny, an accused who receives stolen property knowing it to be stolen may be tried only in those jurisdictions in which the accused is guilty of trespassing against the owner's property right. That offense can only occur in the place where the accused received the property or possessed it. The fiction of larceny as a continuing offense does not create venue where the offense for which the accused is prosecuted occurred outside the jurisdiction of the trial court. Davis v. Commonwealth, 14 Va. App. 709, 419 S.E.2d 285 (1992).

Single larceny doctrine. - Defendant and an accomplice used a stolen credit card to complete three transactions, each separated by 10 to 20 minutes, at three different locations within a department store. Credible evidence existed to support the trial court's determination that the single larceny doctrine was not applicable. Gibson v. Commonwealth,, 2014 Va. App. LEXIS 70 (Mar. 4, 2014).

Trial court did not err in rejecting the applicability of the single larceny doctrine and convicting defendant of grand larceny and grand larceny of a firearm because although the two incidents at issue occurred in the same house, they occurred in different rooms of the house, by different people, and at different times, there were "intervening events" that occurred between the two events, and the trial court could reasonably infer that a codefendant's intent to steal the items from the living room was not the same intent as defendant's and a second codefendant's intent to steal the rifle from another person. Pollard v. Commonwealth, No. 1137-18-2, 2019 Va. App. LEXIS 143 (June 18, 2019).

Guilty pleas. - In a case in which defendant appealed his conviction for grand larceny, in violation § 18.2-95 , the trial court did not abuse its discretion in denying his motion to withdraw his guilty plea prior to sentencing. He had 14 prior felony convictions, several for grand larceny, and he also had numerous misdemeanor convictions for petit larceny; for him to argue that he was confused or subjected to undue influence by his attorney was nothing more than a dilatory attempt to postpone his trial. Terrell v. Commonwealth,, 2012 Va. App. LEXIS 243 (July 24, 2012).

Sufficiency of indictment. - It was unnecessary that there be a specific allegation of felonious intent contained in the indictment. Skeeter v. Commonwealth, 217 Va. 722 , 232 S.E.2d 756 (1977).

The charge in an indictment that defendant did steal United States currency of the value of $200 from a named person is sufficient to charge defendant with the commission of larceny of goods and chattels of the value of $100 (now $200) or more as defined in this section. Skeeter v. Commonwealth, 217 Va. 722 , 232 S.E.2d 756 (1977).

Evidence that defendant's employer owned a truck and tools that were supplied to defendant but not returned by him was sufficient to sustain defendant's conviction for grand larceny, in violation of § 18.2-95 , even though the indictment charged defendant with stealing the truck and tools from a corporation and the Commonwealth of Virginia did not prove that defendant's employer was a corporation. Commonwealth v. Nuckles, 266 Va. 519 , 587 S.E.2d 695, 2003 Va. LEXIS 107 (2003).

Amendment of indictment. - Defendant's conviction of grand larceny under § 18.2-95 was not improper based on an alleged amendment of the indictment during his trial from § 18.2-95 to § 18.2-98 because while the amendment was granted, the indictment was not actually amended. Lucas v. Commonwealth,, 2009 Va. App. LEXIS 181 (Apr. 21, 2009).

As to instructions relating to presumption of innocence of charge under this section, see Barnes v. Commonwealth, 190 Va. 732 , 58 S.E.2d 12 (1950).

Instruction as to mistaken belief that bike was abandoned. - Defendant was not entitled to instruction that provided that he could not be guilty of grand larceny of a bicycle if he had the "mistaken" belief, no matter how unreasonable, that it was abandoned property; there had to have been a reasonable basis for him to have a good faith belief that the property was abandoned in order to negate the criminal intent to steal. Habahbih v. Commonwealth, No. 1289-12-4, 2013 Va. App. LEXIS 213 (July 23, 2013).

No basis to give petit larceny instruction. - Refusal to give a jury instruction on petit larceny as a lesser-included offense of grand larceny was proper because defendant's theory was that she had nothing to do with the theft, but that her boyfriend stole the tools and that she merely loaned her identification card to her brother to enable him to pawn some of the stolen items; the jury could have either acquitted defendant or convicted her of grand larceny, but no version of the facts supported a petit larceny instruction. Juliano v. Commonwealth,, 2009 Va. App. LEXIS 321 (July 21, 2009).

Inference of larceny defined; how punished. - Defendant was properly found guilty of being an accomplice to grand larceny where he snickered and smiled while ignoring the victim's demands for his property and the stolen property was seen in the defendant's car with him right after the theft. Taylor v. Commonwealth, No. 2367-02-1, 2003 Va. App. LEXIS 355 (Ct. of Appeals June 24, 2003).

No error in denying concurrent sentence. - Given that the record on appeal adequately demonstrated that the sentencing judge correctly understood his discretion and sentenced defendant within the lawful scope of that discretion, the Court of Appeals of Virginia declined to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18. As a result, no error resulted in the denial of defendant's request for a concurrent sentence. Scalf v. Commonwealth, No. 0007-07-3,, 2008 Va. App. LEXIS 230 (Ct. of Appeals May 13, 2008).

Sentences under this section and § 18.2-91 held not excessive. - Concurrent three-year terms of imprisonment for violations of § 18.2-91 and this section are not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 0739-85 (Ct. of Appeals Apr. 23, 1986).

Sentences of six years in the penitentiary (now state correctional facility) upon conviction of breaking and entering a dwelling house with intent to commit larceny under § 18.2-91 and 20 years upon conviction of grand larceny under this section, all of the 20-year sentence being suspended, were not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 1001-85 (Ct. of Appeals Apr. 23, 1986).

Sentences of 10 years in the penitentiary (now state correctional facility) upon conviction of breaking and entering a dwelling house with intent to commit larceny under § 18.2-91 and 20 years upon conviction of grand larceny under this section, all of the 20-year sentence for grand larceny being suspended, were not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 1000-85 (Ct. of Appeals Apr. 23, 1986).

Sentences of 10 years in the penitentiary (now state correctional facility) upon conviction of each of two charges of breaking and entering a dwelling house with intent to commit larceny under § 18.2-91 , two years of the sentence on each offense being suspended, 5 years upon conviction of grand larceny under this section, two years of the sentence for the offense being suspended, 10 years in the penitentiary (now state correctional facility) for additional statutory burglary and grand larceny convictions at a later trial, four years of the sentence being suspended, were not constitutionally excessive in view of the nature of the offenses. Phennicie v. Huffman, No. 0740-85 (Ct. of Appeals Apr. 23, 1986).

Sentence proper. - Defendant's 10-year sentence for felony embezzlement constituted half of the maximum punishment, was not in excess of the statutory maximum, and could not be reviewed on appeal since embezzlement could result in a larceny conviction under § 18.2-111 , and grand larceny had a maximum sentence under § 18.2-95 of 20 years in prison. Greene v. Commonwealth,, 2008 Va. App. LEXIS 319 (July 15, 2008).

Restitution award proper. - Trial court did not abuse its discretion in entering a restitution award in the amount of $58,054 because there was ample evidence to support a restitution award of at least that amount; the evidence adduced at sentencing established that defendant's theft of silver resulted in a loss of $58,054, the amount that an insurance company had to pay for the victim's loss, and evidence during both the guilt phase and at sentencing established a similar loss related to the missing jewelry. Lewis v. Commonwealth, No. 1093-17-2, 2018 Va. App. LEXIS 274 (Oct. 16, 2018).

Prior juvenile adjudication. - As appellant juvenile did not dispute that he was previously convicted of the non-violent felony of grand larceny, in violation of § 18.2-95 , the evidence was sufficient to support his conviction for possession of a firearm after having been adjudicated delinquent, as a juvenile 14 years of age or older, of an act that would have been a non-violent felony if committed by an adult, in violation of § 18.2-308.2 . Preston v. Commonwealth, 281 Va. 52 , 704 S.E.2d 127, 2011 Va. LEXIS 23 (2011).

Motion to strike multiple indictments under the single larceny doctrine. - Trial court did not err in denying defendant's motion to strike three of the four grand larceny indictments against defendant, under the single larceny doctrine, because defendant's criminal act of telling a logger to cut down trees on the property that defendant rented, without the owner's permission, constituted four larcenous acts, which defendant committed over eight days. White v. Commonwealth,, 2014 Va. App. LEXIS 65 (Mar. 4, 2014).

Trial court properly denied defendant's motion to strike her grand larceny of a firearm offense because, although the two thefts at issue occurred in the same house, the single larceny doctrine did not apply where they occurred in different rooms, by different people, at different times, with different intents, and there were intervening events. Wells v. Commonwealth, No. 0896-18-2, 2019 Va. App. LEXIS 141 (June 18, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Explosive materials. - Tannerite, like many other substances, is an explosive material within the meaning of § 182-85, but its use or possession is not illegal so long as the use or possession is for a lawful purpose such as the recreational use for which it is intended. Whether any particular use or possession of Tannerite is for an illegal purpose would be a question of fact. See opinion of Attorney General to The Honorable William W. Davenport, Commonwealth's Attorney, Chesterfield County, No. 14-044, 2014 Va. AG LEXIS 57, (10/1/14).

§ 18.2-96. Petit larceny defined; how punished.

Any person who:

  1. Commits larceny from the person of another of money or other thing of value of less than $5, or
  2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $1,000, except as provided in clause (iii) of § 18.2-95 , shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor. (Code 1950, § 18.1-101; 1960, c. 358; 1966, c. 247; 1975, cc. 14, 15; 1980, c. 175; 1992, c. 822; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to punishment for attempt to commit petit larceny, see § 18.2-27 .

As to grand larceny, see § 18.2-95 .

As to computer time, services, etc., as property subject to larceny, see § 18.2-152.1 et seq.

As to limitation on prosecution for petit larceny, see § 19.2-8 .

As to sentence of petit larceny on prosecution for grand larceny, see § 19.2-289 .

As to conviction of petit larceny though thing stolen is worth more than $500, see § 19.2-290 .

As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

As to payment by the Department of Social Services of assistant attorney for the Commonwealth for prosecution of public assistance fraud cases, see § 63.2-525 .

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and in subdivision 2, substituted "$500" for "$200" and "clause (iii)" for "subdivision (iii)."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" in subdivision 2.

Law review. - For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

For a note, "Pleading for Theft Consolidation in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-284 ," see 55 Wash. & Lee L. Rev. 249 (1998).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89; 3A M.J. Burglary and Housebreaking, § 12; 12A M.J. Larceny, §§ 2, 6, 18, 24, 32.

CASE NOTES

Larceny defined. - Larceny is the wrongful taking of the goods of another without the owner's consent and with the intention to permanently deprive the owner of possession of the goods. Bright v. Commonwealth, 4 Va. App. 248, 356 S.E.2d 443 (1987).

Larceny that was a misdemeanor was a petit larceny, there were no other possibilities for other larcenies within the context of § 18.2-181 . Since § 18.2-96 had no impact upon the foregoing analysis, the one year statute of limitations under § 19.2-8 , which applied to misdemeanors, did not apply to defendant's act of passing a bad check for $140.88. Foster v. Commonwealth, 271 Va. 235 , 623 S.E.2d 902, 2006 Va. LEXIS 6 (2006).

The term "felonious" is not used in this section in defining petit larceny, and a charge in a warrant that the accused did unlawfully take, steal and carry away the property of another distinguishes the offense from a mere trespass, and stamps it as petit larceny. The definition of Webster and other lexicographers of the verb "to steal" is "to take and carry away feloniously"; the words "steal" and "larceny" are synonymous. Satterfield v. Commonwealth, 105 Va. 867 , 52 S.E. 979 (1906).

This section does not require proof of any minimum value. Evans v. Commonwealth, 226 Va. 292 , 308 S.E.2d 126 (1983).

Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount. Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

Allowance for depreciation. - While the original purchase price of an item may be admitted as evidence of its current value, there must also be "due allowance for elements of depreciation." Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

No proof need be adduced to show that the subject of petit larceny has a specific value. Evans v. Commonwealth, 226 Va. 292 , 308 S.E.2d 126 (1983).

Larceny by receiving stolen goods is a lesser offense which is included in the major one of larceny, and the lesser offense is indictable as larceny, and the accused may be convicted of the lesser offense of receiving stolen goods. Cabbler v. Commonwealth, 212 Va. 520 , 184 S.E.2d 781 (1971).

The crime of receiving stolen goods is a lesser offense included in the crime of larceny. Henderson v. Commonwealth, 215 Va. 811 , 213 S.E.2d 782 (1975).

When larceny is lesser-included offense of robbery. - Where defendant was charged initially with robbery for stealing a bicycle from an 11-year-old victim, and where the trial court, in acquitting defendant of that robbery charge, noted its belief that the evidence was sufficient to convict him of larceny from the person but did not convict him of any larceny offense, the court thereby acquitted defendant of any larceny offense that was a part of the robbery charge, and the Commonwealth was thereafter barred by the Double Jeopardy Clause from requiring him to stand trial anew for stealing the same bicycle from the same person in the same criminal act that was the basis of the robbery trial. Therefore, the trial court erred in denying defendant's motion to dismiss the indictment as violative of the Double Jeopardy Clause. Hudgins v. Commonwealth, 43 Va. App. 219, 597 S.E.2d 221, 2004 Va. App. LEXIS 264 (2004), rev'd, remanded, 269 Va. 209 , 608 S.E.2d 907 (2005), as to issue of impeachment questions asked during cross-examination.

Larceny and venue considerations. - Even though larceny is a continuing offense and the offense of receiving stolen property is deemed larceny, an accused who receives stolen property knowing it to be stolen may be tried only in those jurisdictions in which the accused is guilty of trespassing against the owner's property right. That offense can only occur in the place where the accused received the property or possessed it. The fiction of larceny as a continuing offense does not create venue where the offense for which the accused is prosecuted occurred outside the jurisdiction of the trial court. Davis v. Commonwealth, 14 Va. App. 709, 419 S.E.2d 285 (1992).

The information contained in the warrant provided the defendant with sufficient notice of the charged crime, even in the absence of a clear indication of who owned the picture. Therefore, the trial court did not err in denying the defendant's motion to dismiss on grounds that the warrant was fatally defective in not naming the owner of the picture. Humphreys v. Commonwealth, No. 1324-95-4 (Ct. of Appeals Feb. 11, 1997).

Probable cause for purposes of store's right to detain suspected shoplifter. - Store was immune from liability under § 8.01-226.9 in a customer's false imprisonment and malicious prosecution action, and therefore it was entitled to summary judgment, because it had probable cause to detain customer for committing petit larceny in violation of § 18.2-96 after she attempted to leave the store with a TV and VCR for which she had no receipt. At the time the store's employees detained the customer, they knew that: (1) she had received full credit on her mother's credit card for the returned merchandise; (2) she did not pay for the new television and VCR; (3) she had stood close to her friend while the friend shoplifted twice in the store; and (4) the customer attempted to leave the store with the TV and VCR without a receipt proving that she had paid for them. Jones v. Target Corp., 341 F. Supp. 2d 583, 2004 U.S. Dist. LEXIS 21425 (E.D. Va. 2004).

Where defendant was found in possession of property of a type recently stolen, it was not necessary for the goods to have been identified by serial number or with further precision than appeared from the record. Wright v. Commonwealth, 2 Va. App. 743, 348 S.E.2d 9 (1986).

Unexplained possession of stolen goods permits inference of larceny by possessor. - Once the crime of larceny is established, the unexplained possession of recently stolen goods permits an inference of larceny by the possessor. Bright v. Commonwealth, 4 Va. App. 248, 356 S.E.2d 443 (1987).

Defendant's recent exclusive possession of stolen handgun and his conflicting or false explanation as to where he obtained it supported finding of his guilt as to petit larceny. Bright v. Commonwealth, 4 Va. App. 248, 356 S.E.2d 443 (1987).

Defendant's conviction for petit and grand larceny was supported by sufficient evidence where: (1) the items found in the rear cargo area of the car driven by defendant at the time of a traffic stop had been recently stolen from vehicles parked on a body shop lot; (2) the jury was not required to accept defendant's explanation that he was legitimately present on the lot and that either his brother or co-defendant could have placed the stolen items in the cargo compartment, unbeknownst to him; (3) there was a discrepancy between defendant's statement to a police officer as to the time defendant was on the property and the time a security officer saw defendant's car leaving a body shop lot; (4) defendant drove from the lot in a rapid manner; and (5) the jury could have reasonably inferred that defendant's denial of knowledge of the presence of the stolen goods in the car and his explanation to the police officer were not credible. Sbitan v. Commonwealth,, 2006 Va. App. LEXIS 19 (Jan. 17, 2006).

There was sufficient evidence to convict defendant of petit larceny because the trial court could reasonably infer he was consciously asserting at least a possessory interest in a backpack and inspection stickers since defendant acknowledged the items inside a van belonged to him; because defendant asserted a possessory interest in or exercised dominion over the stolen inspection stickers, his unexplained possession of them within hours of a break-in gave rise to the larceny inference. Sims v. Commonwealth, No. 0638-16-2, 2017 Va. App. LEXIS 128 (May 16, 2017).

Larceny inference. - Arguments which defendant made at trial, coupled with the Commonwealth's argument and the trial court's express findings, indicated that the court was aware of and took into consideration defendant's challenge to the sufficiency of the evidence to bring the larceny inference into play, despite the fact that defendant did not specifically mention the larceny inference, as the Commonwealth clearly addressed the inference and argued that defendant's falsely explained possession of the property permitted the reasonable inference that he was the one who stole it; further, when the trial court rejected defendant's explanation for how he came into possession of the property, defendant's challenge to the applicability of the larceny inference was properly before the appellate court on appeal. Woods v. Commonwealth,, 2005 Va. App. LEXIS 142 (Apr. 12, 2005).

One month time lapse between when items were discovered missing and when they were found in defendant's bedroom was sufficiently brief to be construed as recent possession. Wright v. Commonwealth, 2 Va. App. 743, 348 S.E.2d 9 (1986).

Where some of the missing items were found in a private area of the home occupied by the defendant, the trier of fact was permitted to find that they were in his exclusive constructive possession. Wright v. Commonwealth, 2 Va. App. 743, 348 S.E.2d 9 (1986).

Disorderly conduct is not a lesser included offense of larceny. Cuthrell v. Zayre of Va., Inc., 214 Va. 427 , 201 S.E.2d 779 (1974).

Charges of petit larceny and of disorderly conduct are two separate and distinct offenses, and a conviction of the one does not bar the conviction of the other. Cuthrell v. Zayre of Va., Inc., 214 Va. 427 , 201 S.E.2d 779 (1974).

Invited error. - Trial court did not err in finding defendant guilty of petit larceny, a misdemeanor, when she was indicted as a principal in the second degree to third offense petit larceny, a felony under §§ 18.2-104 and 18.2-18 , where defendant requested the trial court to treat her actions as misdemeanor petit larceny, and she was subject to the misdemeanor finding that her counsel requested, as she was precluded from raising the same on appeal under the invited error doctrine; additionally, misdemeanor petit larceny was a lesser-included offense of a violation of § 18.2-104 . Brumfield v. Commonwealth, No. 0794-04-3, 2004 Va. App. LEXIS 625 (Ct. of Appeals Dec. 21, 2004).

Section 19.2-270.1 provides alternative means of establishing adequate foundation to authenticate a photograph which is offered under the independent silent witness theory in prosecutions under § 18.2-95 and this section. Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Admission of authenticated photograph of goods as substantive evidence. - A photograph of the goods or merchandise alleged to have been taken or converted, which bears the sworn writing of the arresting officer and the photographer's signature, shall be deemed competent evidence of such goods or merchandise and shall be admissible to the same extent as if such goods and merchandise had been introduced as evidence. When a photograph is so authenticated and admitted, it becomes not just an illustration of the testimony of a witness but an independent silent witness constituting substantive evidence. Saunders v. Commonwealth, 1 Va. App. 396, 339 S.E.2d 550 (1986).

Opinion testimony of nonexpert admissible. - The general rule is that opinion testimony of a nonexpert, who is not the owner of the personal property in question, is admissible upon the subject of property value, provided the witness possesses sufficient knowledge of the value of the property or has had ample opportunity for forming a correct opinion as to value. Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

Department of Transportation employee off-loading stone at his residence. - Where appellant, in the course of his employment with the Virginia Department of Transportation (VDOT), was driving a truck containing approximately five tons of stone that was the property of VDOT; was instructed to take the stone back to the VDOT shop, three to four miles away - the stone was not waste material, had some value, and could have been used in the future by VDOT; but instead of returning the stone to the shop as he had been instructed to do, appellant, without permission, drove the truck to his place of residence and off-loaded the stone onto the residence's driveway, evidence was sufficient to support the jury's finding that when appellant put the stone on the driveway he intended to deprive its owner thereof permanently and, thus, to steal VDOT's property. Baylor v. Commonwealth, No. 1017-93-2 (Ct. of Appeals Dec. 6, 1994).

Evidence of violence supports burglary. - Where the victim was violently flung around as defendant forcefully pulled the victim's purse from the victim's hands and arm, the conduct was sufficiently violent to support a burglary conviction rather than a larceny conviction. Taylor v. Commonwealth, No.0735-02-1, 2003 Va. App. LEXIS 117 (Ct. of Appeals Mar. 4, 2003).

Evidence held sufficient. - Where the evidence placed the defendant in the office or rooms from which the property was taken immediately before the thefts were discovered, the defendant had no rationale for being in those locations, and where, when confronted, he gave each victim a false explanation of his presence and intentions, the evidence was sufficient to support his conviction. Brown v. Commonwealth, No. 0107-97-2 (Ct. of Appeals June 16, 1998).

Unbroken chain of events, including defendant's entry into the victim's home, taking of a VCR, carrying such away while shielding the front of his body from the victim's view, his immediate departure thereafter, and fingerprints found on a beer can within ten feet from the place where the VCR was taken, was sufficient circumstantial evidence to support petit larceny conviction. Turner v. Commonwealth, No. 1942-01-3, 2002 Va. App. LEXIS 222 (Ct. of Appeals Apr. 9, 2002).

Evidence was clearly sufficient to prove beyond a reasonable doubt that defendant took victim's credit card and also took money from her friend's cash box without permission. Warren v. Commonwealth, No. 1078-01-2, 2002 Va. App. LEXIS 275 (Ct. of Appeals May 7, 2002).

Circumstantial evidence was sufficient to prove that the cigarette cartons defendant carried beneath his jacket and discarded as he fled through store's parking lot were stolen from the store. Curtis v. Commonwealth, No. 3225-01-2, 2002 Va. App. LEXIS 380 (Ct. of Appeals July 9, 2002).

Evidence was competent, not inherently incredible, and sufficient to prove beyond a reasonable doubt that defendant was guilty of petit larceny, because the victims testified that the items recovered from defendant's truck had been taken from their vehicles, and on the same day the police officer discovered the stolen items in defendant's vehicle. Harris v. Commonwealth, 38 Va. App. 680, 568 S.E.2d 385, 2002 Va. App. LEXIS 501 (2002), rev'd on other grounds, 266 Va. 28 , 581 S.E.2d 385, 2002 Va. App. LEXIS 501 (2002).

Viewing the totality of the circumstances, the trial judge could reasonably conclude that defendant aided and abetted a common plan and scheme to commit forgery, uttering, and petit larceny, using counterfeit traveler's checks. Spruill v. Commonwealth, No. 3054-01-3, 2002 Va. App. LEXIS 705 (Ct. of Appeals Nov. 26, 2002).

Where a neighbor heard noise at the victim's house, saw defendant leaving the victim's house with a cord dangling from a pocket, defendant cursed upon realizing that the neighbor had seen defendant, and defendant gave conflicting statements as to defendant's whereabouts on the night of the incident, the Commonwealth's circumstantial evidence was sufficient to support the convictions for burglary and petit larceny. Tucker v. Commonwealth, No. 1288-02-2, 2003 Va. App. LEXIS 347 (Ct. of Appeals June 17, 2003).

Defendant was properly convicted of larceny for removing two tubes of ointment from their boxes and placing them in his pocket, despite his not leaving the store with them, because his acts and his statement that he was just being "stupid" indicated criminal intent. Dance v. Commonwealth, No. 3085-02-2, 2003 Va. App. LEXIS 393 (Ct. of Appeals July 8, 2003).

Where defendant was seen entering a store with an empty bag and leaving with a full one, and thereafter, she returned with another empty bag and when she was accused of taking canned goods, due to the messy condition of the recently restocked shelf, she denied it but bent out of view and left the store, whereupon the canned goods from that shelf were left on the floor, and further, where a police deputy saw defendant's bags in her motel room and then recovered them from the woods, filled with unpaid items from the store after defendant's son threw them from the balcony, the evidence was sufficient to support defendant's conviction for petit larceny, third degree, in violation of § 18.2-96 . Saunders v. Commonwealth, No. 1606-02-3, 2003 Va. App. LEXIS 394 (Ct. of Appeals July 8, 2003).

Evidence which showed that defendant did not return to a gas station within one hour to pay for gasoline she put into a car, as promised, and did not contact the station to explain her failure to return, was sufficient to uphold the trial court's judgment convicting defendant of petit larceny, third offense. Cherry v. Commonwealth, No. 3365-01-2, 2003 Va. App. LEXIS 488 (Ct. of Appeals Sept. 30, 2003).

Petit larceny conviction was upheld, where defendant continued to order drinks from a bar, despite knowing that he didn't have any money to pay for them; further, an inculpatory inference was strengthened by defendant's verbal abuse of the proprietor's wife and his later assault on the police officer, which were hardly the response of an innocent patron attempting to cope with a simple misunderstanding over a bar tab. Wheeler v. Commonwealth, No. 0860-03-3, 2004 Va. App. LEXIS 461 (Ct. of Appeals Sept. 28, 2004).

Because: (1) sufficient evidence established that defendant was in exclusive possession of multiple items taken without permission from the scene of the crime; (2) the trier of fact was entitled to apply the larceny inference to infer that he was the thief, and reject defendant's explanation for how he gained exclusive possession of the stolen items; (3) additional evidence established that someone closely resembling defendant was seen fleeing the burglarized premises shortly after defendant carted the stolen dresser off down the street; and (4) defendant admitted having in his possession several of the items missing from the premises, defendant's petit larceny and statutory burglary convictions were upheld on appeal. Woods v. Commonwealth,, 2005 Va. App. LEXIS 142 (Apr. 12, 2005).

Evidence was sufficient to convict defendant of two counts of petit larceny where two grocery store clerks identified photographs of defendant as the person who presented forged checks to them and the true owner of the checks testified that her checks were stolen when an unknown thief broke into her car. Shelton v. Commonwealth,, 2006 Va. App. LEXIS 610 (Nov. 16, 2006).

In a prosecution of defendant for uttering two forged checks and petit larceny, the evidence was sufficient to prove beyond a reasonable doubt that defendant committed petit larceny on the basis that defendant received $50 from a bank in return for each of the forged checks. This evidence was sufficient for the trial court to conclude that defendant fraudulently induced the bank to give him this money and that he did not intend to return it. Vernon v. Commonwealth,, 2006 Va. App. LEXIS 585 (Dec. 28, 2006).

Although the evidence of the value of a tire and rim at the time of a theft was insufficient to support defendant's conviction of grand larceny under clause (ii) of § 18.2-95 , the circumstantial evidence was sufficient to find defendant guilty of the lesser-included offense of petit larceny. Banks v. Commonwealth,, 2009 Va. App. LEXIS 27 (Jan. 27, 2009).

In a case in which defendant was convicted of petit larceny as a third or subsequent offense in violation of §§ 18.2-96 and 18.2-104 , he argued unsuccessfully that the Commonwealth's evidence against him was circumstantial and insufficient to prove beyond a reasonable doubt that he committed larceny from a store. The assistant manager's testimony, which the trial court credited, excluded defendant's three hypotheses, and the assistant manager's delay in reporting the incident to the police did not diminish his certainty about what he witnessed. Townsend v. Commonwealth,, 2009 Va. App. LEXIS 493 (Nov. 3, 2009).

Defendant told a detective that defendant took a pair of pants during a break-in at an apartment and threw them on the ground when defendant realized a wallet was not in the pants; this evidence was sufficient to prove a larceny of the pants. Smith v. Commonwealth,, 2011 Va. App. LEXIS 156 (May 10, 2011).

Where company's owner testified that several checks were missing from his office after it was broken into and that he did not sign the check that defendant cashed, and defendant admitted to an officer that he cashed the subject check the day after the break-in, the evidence was sufficient to support a larceny inference. Hopper v. Commonwealth,, 2012 Va. App. LEXIS 200 (June 12, 2012).

Evidence was sufficient to support defendant's conviction because defendant was present and aided and abetted an accomplice by defendant's actions of placing retail store merchandise in the accomplice's bag and leaving the store with the accomplice, knowing that the accomplice did not pay for the merchandise. Furthermore, defendant's efforts to resist detention and attempted flight from the store's loss prevention officer was evidence of defendant's guilty mind. Charles v. Commonwealth, 63 Va. App. 289, 756 S.E.2d 917, 2014 Va. App. LEXIS 151 (2014).

Evidence that defendant passed out intoxicated with four miniature alcohol bottles lying on the ground next to him, that the video showed defendant removing items from the shelf in the miniature bottle section of the store and pulling them in toward him, and that the bottles found next to defendant matched those missing from the store's inventory supported the petit larceny conviction. Williams v. Commonwealth, No. 1557-14-1, 2015 Va. App. LEXIS 391 (Dec. 22, 2015).

Even without the larceny inference, there was sufficient evidence for the trial court to convict defendant of petit larcency because there were stolen state inspection stickers in the console area in plain view and inspection stickers scattered throughout the van defendant had been driving; a few hours after the burglary defendant was found in the driver's seat of a work van that he "drove all the time," with inspection stickers stolen from an auto service store within arm's reach. Sims v. Commonwealth, No. 0638-16-2, 2017 Va. App. LEXIS 128 (May 16, 2017).

Evidence was sufficient to prove defendant's intent to commit larceny and that a larceny occurred because defendant did not challenge the sufficiency of the evidence that defendant was the individual who unlawfully entered the victim's home, and because the victim testified that the victim had set aside $50 on top of the chest of drawers in the victim's bedroom to pay for lawn care and that the money was missing when the victim returned home. Shabazz v. Commonwealth, No. 0470-18-3, 2019 Va. App. LEXIS 58 (Mar. 12, 2019).

Evidence of defendant's identity was sufficient as a matter of law to convict him of statutory burglary, petit larceny, and obtaining money by false pretenses because the Commonwealth presented evidence from which the circuit court could infer that defendant was, in fact, the individual who sold a cell phone at a machine that gave people cash for their cell phones, which established a prima facie case that he was the individual who burglarized the victim's home and stole and sold her cell phone; and the circuit court could reasonably infer from the machine's report that an employee had an opportunity to view the individual at the machine and confirm that his appearance matched defendant's identification card. Wilson v. Commonwealth, No. 1887-18-1, 2019 Va. App. LEXIS 313 (Dec. 27, 2019).

Trial court did not err by denying defendant's motion to strike because the evidence was sufficient to prove his identity as the perpetrator of the burglary and larceny as from the evidence the jury could have concluded that defendant was the same person they viewed in the camera footage and photographs from the victim's home, the officer saw emerge and flee from the residence, the officer pursued from the home, and the detective arrested. Davis v. Commonwealth, No. 1010-19-2, 2020 Va. App. LEXIS 138 (May 5, 2020).

Evidence held insufficient. - Evidence which placed the defendant where the theft occurred and in the general area where the fruits of the crime were found created no more than a suspicion that defendant was a perpetrator of the crime and was insufficient to prove beyond a reasonable doubt that he was guilty of larceny. Duncan v. Commonwealth, 218 Va. 545 , 238 S.E.2d 807 (1977).

Where witness, who was not the owner of the tools, did not testify about the original purchase price of the tools or the effect of age and wear and tear on the value of the tools; testified only that the tools were purchased in 1986 or 1987 by someone other than herself; that she did not know the purchase price; that the tools were tools with a lifetime guaranty; and that they were in excellent working order. Although she estimated the replacement cost of the tools to be $540 and thus more than $200, this estimate did not adequately establish the current value of the stolen tools, reflecting the effects of wear and tear. Therefore, the trial court erred in finding the evidence sufficient to prove that the value of the tools was more than $200. Owen v. Commonwealth, No. 1495-95-2 (Ct. of Appeals May 28, 1996).

Evidence was insufficient to prove that defendant intended to permanently deprive owner of drill defendant had borrowed, where defendant at all times acknowledged that owner was entitled to possession and that defendant intended to return drill, and where when defendant was unable to do so, he accounted for drill by paying owner for it. Huddleston v. Commonwealth, No. 2335-98-3 (Ct. of Appeals Oct. 19, 1999).

Enhanced by prior conviction. - A conviction of "petit larceny" in violation of this section may be enhanced by a prior conviction of an offense "deemed to be larceny" by former § 19.2-297 . Swinson v. Commonwealth, 16 Va. App. 923, 434 S.E.2d 348 (1993).

Defendant's previous convictions of larceny were not elements of the offense for which he was convicted; evidence of the convictions, however, was evidence which, if believed, enhanced the punishment for the petit larceny for which he was on trial. Woodson v. Commonwealth, 16 Va. App. 539, 431 S.E.2d 82 (1993).

Introduction of prior convictions proper in recidivist crimes. - Defendant moved to bifurcate the guilt phase of the trial so that the jury would not be aware of his prior larceny convictions until it determined whether he was guilty of petit larceny in violation of §§ 18.2-96 and 18.2-104 , but the trial court stated that there was no authority for such a procedure and that it was for the legislature to change the manner of proof in recidivist crimes. When the legislature enacted and amended § 19.2-295.1 , it chose not to create a separate bifurcated procedure of the guilt phase for these offenses, thus, the trial court did not err. Elem v. Commonwealth, 55 Va. App. 55, 683 S.E.2d 830, 2009 Va. App. LEXIS 462 (2009).

Error in failing to give instruction was not harmless. - Error in failing to give the requested instruction that defendant's previous larceny conviction should not be considered in determining his guilt or innocence on petit larceny charge was not harmless, for the witness' ability to observe the defendant at the time of the offense was questionable and the defendant's statements to the police were ambiguous and thus, the evidence of the defendant's guilt was not so overwhelming and the error so insignificant by comparison that the Court of Appeals could have said that the error could not have affected the verdict. Woodson v. Commonwealth, 16 Va. App. 539, 431 S.E.2d 82 (1993).

Cautionary instruction is appropriate in trial on a charge of petit larceny. - A cautionary instruction to the jury is appropriate in a trial on a charge of petit larceny under the enhanced punishment provisions; such an instruction should direct the jury not to consider a defendant's previous convictions in determining guilt or innocence. Woodson v. Commonwealth, 16 Va. App. 539, 431 S.E.2d 82 (1993).

No basis to give petit larceny instruction. - Refusal to give a jury instruction on petit larceny, § 18.2-96 , as a lesser-included offense of grand larceny was proper because defendant's theory was that she had nothing to do with the theft, but that her boyfriend stole the tools and that she merely loaned her identification card to her brother to enable him to pawn some of the stolen items; the jury could have either acquitted defendant or convicted her of grand larceny, but no version of the facts supported a petit larceny instruction. Juliano v. Commonwealth,, 2009 Va. App. LEXIS 321 (July 21, 2009).

Larceny was petit due to insufficient evidence of value. - Since defendant did not contend that the evidence was insufficient to demonstrate that he knowingly and willfully stole timber from the victim, he conceded the evidence was sufficient to support the statutory elements of larceny in § 55-334.1, and because there was insufficient evidence to show that the timber was worth $200 or more, the larceny was petit larceny. Frango v. Commonwealth, 66 Va. App. 34, 782 S.E.2d 175, 2016 Va. App. LEXIS 51 (2016).

When defendant's convictions for grand larceny and larceny with the intent to sell or distribute were reversed due to insufficient proof of the value of stolen items, defendant could be prosecuted for petit larceny because the evidence showed the items had some value. Lamp v. Commonwealth, No. 0660-18-3, 2019 Va. App. LEXIS 161 (July 16, 2019).

Lesser included offense of felony third offense larceny. - Defendant's conviction for petit larceny was reversed and dismissed because defendant was also convicted of felony third offense larceny, in violation of § 18.2-104 , and the felony larceny offense was a greater offense of the lesser included offense of petit larceny. Farrar v. Commonwealth,, 2006 Va. App. LEXIS 301 (July 5, 2006).

New trial warranted where value of goods were not proven in grand larceny case. - Defendant's conviction for grand larceny was improper because the Commonwealth failed to prove that the value of the jackhammer that defendant rented was at least $200; the only evidence of the jackhammer's value that the trial court found persuasive, which was its original purchase price and replacement cost, was insufficient to prove its worth. Thus, a remand for a new trial on a charge of petit larceny was warranted. Byrum v. Commonwealth,, 2010 Va. App. LEXIS 211 (May 18, 2010).

Applied in Conkling v. Commonwealth, 45 Va. App. 518, 612 S.E.2d 235 (2005); Smith v. Commonwealth, 59 Va. App. 710, 722 S.E.2d 310, 2012 Va. App. LEXIS 56 (2012); Hall v. Commonwealth, 65 Va. App. 368, 778 S.E.2d 139, 2015 Va. App. LEXIS 319 (2015).

CIRCUIT COURT OPINIONS

Petty offense exception. - Petition for writ of habeas corpus was granted and petitioner's conviction of petit larceny was vacated; regardless of whether jail time was suspended or imposed, the amount exceeded the jail threshold for invoking the petty offense exception, counsel did not advise petitioner of the likelihood of any adverse immigration consequences, and petitioner would not have accepted the plea offer if properly advised. Jurado-Alcantara v. Kinkaid, 103 Va. Cir. 278, 2019 Va. Cir. LEXIS 614 (Fairfax County Oct. 24, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Theft of gasoline from self-service pump. - The actions of an individual who presses the "pay inside" button at a self-service gasoline pump to activate the pump to dispense fuel into his motor vehicle and drives away without paying for such fuel are tantamount to theft of the gasoline and such an individual is subject to criminal prosecution for petit larceny. See opinion of Attorney General to The Honorable R. Steven Landes, Member, House of Delegates, 01-090 (12/27/01).

§ 18.2-96.1. Identification of certain personalty.

  1. The owner of personal property may permanently mark such property, including any part thereof, for the purpose of identification with the social security number of the owner, preceded by the letters "VA."
  2. [Repealed.]
  3. It shall be unlawful for any person to remove, alter, deface, destroy, conceal, or otherwise obscure the manufacturer's serial number or marks, including personalty marked with a social security number preceded by the letters "VA," from such personal property or any part thereof, without the consent of the owner, with intent to render it or other property unidentifiable.
  4. It shall be unlawful for any person to possess such personal property or any part thereof, without the consent of the owner, knowing that the manufacturer's serial number or any other distinguishing identification number or mark, including personalty marked with a social security number preceded by the letters "VA," has been removed, altered, defaced, destroyed, concealed, or otherwise obscured with the intent to violate the provisions of this section.
  5. A person in possession of such property which is otherwise in violation of this section may apply in writing to the Bureau of Criminal Investigation, Virginia State Police, for assignment of a number for the personal property providing he can show that he is the lawful owner of the property. If a number is issued in conformity with the provisions of this section, then the person to whom it was issued and any person to whom the property is lawfully disposed of shall not be in violation of this section. This subsection shall apply only when the application has been filed by a person prior to arrest or authorization of a warrant of arrest for that person by a court.
  6. Any person convicted of an offense under this section, when the value of the personalty is less than $1,000, shall be guilty of a Class 1 misdemeanor and, when the value of the personalty is $1,000 or more, shall be guilty of a Class 5 felony.

    (1981, c. 165; 1982, c. 382; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in subsection F.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in subsection F.

Applied in Clay v. Commonwealth, 36 Va. App. 433, 552 S.E.2d 369, 2001 Va. App. LEXIS 518 (2001).

§ 18.2-97. Larceny of certain animals and poultry.

Any person who shall be guilty of the larceny of a dog, horse, pony, mule, cow, steer, bull, or calf shall be guilty of a Class 5 felony, and any person who shall be guilty of the larceny of any poultry of the value of $5 or more, but of the value of less than $1,000, or of a sheep, lamb, swine, or goat, of the value of less than $1,000, shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-102; 1960, c. 358; 1962, c. 15; 1966, c. 247; 1975, cc. 14, 15; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and deleted "dollars" following "$5" and twice substituted "$500" for "$200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "less than $1,000" for "less than $500" twice.

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, §§ 2, 8, 30, 31.

CASE NOTES

This section makes cattle-stealing a special crime, with a special punishment, and a person charged with the commission of this crime may not be forced to answer for any other. Wolfe v. Commonwealth, 167 Va. 486 , 189 S.E. 320 (1937).

And the value of the property stolen is not the measure of the offense of cattle-stealing. Wolfe v. Commonwealth, 167 Va. 486 , 189 S.E. 320 (1937).

It is of no moment that "a" appears before the names of the animals embraced in this section, for it has been held that the article does not necessarily denote the singular. Wolfe v. Commonwealth, 167 Va. 486 , 189 S.E. 320 (1937). See § 1-13.15

Sufficiency of evidence. - Where no one witnessed the alleged crime of larceny of a dog, and the dog's owner testified that his dogs ran loose all the time, there was no evidence to prove that the defendant took and carried away the dog; the defendant's possession of the missing dog nine months later was insufficient evidence to establish larceny where the defendant explained that he traded dogs with another person in the spring, a fact which was corroborated by the Commonwealth's evidence. Hall v. Commonwealth, No. 0473-86-3 (Ct. of Appeals Oct. 26, 1987).

Applied in Chesson v. Commonwealth, 216 Va. 827 , 223 S.E.2d 923 (1976).

§ 18.2-97.1. Removal of a transmitting device; penalty.

Any person who removes an electronic or radio transmitting device from a dog, falcon, hawk, or owl without the permission of the owner and with the intent to prevent or hinder the owner from locating the dog, falcon, hawk, or owl is guilty of a Class 1 misdemeanor. Upon a finding of guilt, the court shall order that the defendant pay as restitution the actual value of any dog, falcon, hawk, or owl lost or killed as a result of such removal. The court may also order restitution to the owner for any lost breeding revenues.

(2007, cc. 484, 721; 2011, c. 191.)

The 2011 amendments. - The 2011 amendment by c. 191 substituted "an electronic or radio transmitting device from a dog, falcon, hawk, or owl," for "from a dog an electronic or radio transmitting collar," deleted "of the dog" following "permission of the owner," and inserted "falcon, hawk, or owl" twice.

§ 18.2-98. Larceny of bank notes, checks, etc., or any book of accounts.

If any person steal any bank note, check, or other writing or paper of value, whether the same represents money and passes as currency, or otherwise, or any book of accounts, for or concerning money or goods due or to be delivered, he shall be deemed guilty of larceny thereof, and may be charged for such larceny under § 18.2-95 or 18.2-96 , and if convicted shall receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The provisions of this section shall be construed to embrace all bank notes and papers of value representing money and passing as currency, whether the same be the issue of this Commonwealth or any other state, or of the United States, or of any corporation, and shall include all other papers of value, of whatever description. In a prosecution under this section, the money due on or secured by the writing, paper or book, and remaining unsatisfied, or which in any event might be collected thereon, or the value of the property or money affected thereby, shall be deemed to be the value of the article stolen.

(Code 1950, §§ 18.1-104, 18.1-105; 1960, c. 358; 1975, cc. 14, 15; 2009, c. 591.)

Cross references. - See § 18.2-111 .

The 2009 amendments. - The 2009 amendment by c. 591 inserted "may be charged for such larceny under § 18.2-95 or 18.2-96 , and if convicted shall" in the first sentence.

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 6B M.J. Embezzlement, § 4; 12A M.J. Larceny, §§ 8, 17.

CASE NOTES

Travelers' checks are susceptible of larceny or embezzlement, by virtue of this section. Allen v. Commonwealth, 186 Va. 376 , 42 S.E.2d 838 (1947).

Larceny of bond by obligor. - An obligor who obtains possession of his bond by fraud lucri causa is guilty of the larceny thereof. And it is no defense that he did not know that his act amounted to larceny. Vaughn v. Commonwealth, 51 Va. (10 Gratt.) 758 (1853).

Indictment should charge paper is property of some person. - If an indictment for stealing bank notes does not charge that they are the bank notes of, or belong to, some named person or persons, or some person to the jurors unknown, the defect is fatal, and is not cured by the statute of jeofails. Barker v. Commonwealth, 4 Va. (2 Va. Cas.) 122 (1817).

It should describe paper. - An indictment charging the prisoner with stealing certain papers of the value of $110, without further description of the papers, is fatally defective. Robinson v. Commonwealth, 73 Va. (32 Gratt.) 866 (1879).

Amount of note is taken as value. - In an indictment for stealing bank notes, it is sufficient to state that the notes were for a certain sum of money, without stating their value. Adams v. Commonwealth, 64 Va. (23 Gratt.) 949 (1873).

Face value of money is its value. - The indictment here properly charged grand larceny in that it alleged the money stolen to be $590. Since money was the subject of the larceny its face value is its value. Wright v. Commonwealth, 196 Va. 132 , 82 S.E.2d 603 (1954).

The last sentence of this section merely prescribes a rule for estimating the value of the paper, and is not a part of the necessary description of the offense prescribed by the preceding sections, although the words "remaining unsatisfied" are usually inserted in the indictment in such cases. Whalen v. Commonwealth, 90 Va. 544 , 19 S.E. 182 (1894).

Value of paper is not traversable. - In an indictment for stealing bank notes, it is sufficient to state that the notes were for a certain sum of money, without stating their value, under this section. In such a case, since the passage of this section, the value of the bank notes is not traversable. Adams v. Commonwealth, 64 Va. (23 Gratt.) 949 (1873).

And no proof of value is necessary. - Pursuant to this section, no proof of the value of a stolen check was necessary, as the law deems it to be of the value expressed on its face. Whalen v. Commonwealth, 90 Va. 544 , 19 S.E. 182 (1894).

Enhancing punishment. - Stealing a check, in violation of this section, is "like" concealing merchandise in violation of § 18.2-103 for purposes of enhancing punishment under § 18.2-104 , and is an offense deemed to be larceny for purposes of enhancing punishment under former § 19.2-297 . Stamps v. Commonwealth, 12 Va. App. 862, 407 S.E.2d 337 (1991).

Amendment of indictment. - Defendant's conviction of grand larceny under § 18.2-95 was not improper based on an alleged amendment of the indictment during his trial from § 18.2-95 to § 18.2-98 because while the amendment was granted, the indictment was not actually amended. Lucas v. Commonwealth,, 2009 Va. App. LEXIS 181 (Apr. 21, 2009).

Sufficient averment of property. - An indictment which charged a larceny of bank notes "of the value, etc., of the money, goods and chattels of one G.F. and from the said G.F." is a sufficient averment of property in the notes in G.F., the person from whom they were stolen, after verdict; for the words "the money, goods and chattels of" may be rejected as surplusage. Commonwealth v. Moseley, 4 Va. (2 Va. Cas.) 154 (1819).

Evidence held sufficient to prove defendant was guilty of grand larceny. - Facts supported a reasonable inference by the trier of fact that defendant had both the opportunity and the means to obtain all of the checks and that he knew his possession of employee's check was wrongful, therefore, Commonwealth met its burden to establish guilt of grand larceny beyond a reasonable doubt. Hubbard v. Commonwealth, No. 2111-92-3 (Ct. of Appeals May 10, 1994).

Because defendant took a check that was payable to her husband, endorsed his name to the check, and deposited it to her personal account without permission or pursuant to a good faith claim of right, she was properly convicted of grand larceny and uttering under §§ 18.2-98 and 18.2-172 . Kocher v. Commonwealth,, 2009 Va. App. LEXIS 115 (Mar. 17, 2009).

Applied in Morton v. Commonwealth, 225 Va. 282 , 302 S.E.2d 27 (1983).

§ 18.2-98.1.

Repealed by Acts 1984, c. 751.

Cross references. - For present provisions as to computer crimes, see § 18.2-152.1 et seq.

§ 18.2-99. Larceny of things fixed to the freehold.

Things which savor of the realty, and are at the time they are taken part of the freehold, whether they be of the substance or produce thereof, or affixed thereto, shall be deemed goods and chattels of which larceny may be committed, although there be no interval between the severing and taking away.

(Code 1950, § 18.1-106; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For note on crops as personalty or realty relative to larceny, see 39 Va. L. Rev. 1116 (1953). For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Crops, § 3; 8B M.J. Fixtures, § 14; 12A M.J. Larceny, §§ 8, 30.

CASE NOTES

Motion to strike multiple indictments under the single larceny doctrine. - Trial court did not err in denying defendant's motion to strike three of the four grand larceny indictments against defendant, under the single larceny doctrine, because defendant's criminal act of telling a logger to cut down trees on the property that defendant rented, without the owner's permission, constituted four larcenous acts, which defendant committed over eight days. White v. Commonwealth,, 2014 Va. App. LEXIS 65 (Mar. 4, 2014).

§ 18.2-100. Removal of crop by tenant before rents and advances are satisfied.

It shall be unlawful for any person renting the lands of another, either for a share of the crop or for money consideration, to remove therefrom, without the consent of the landlord, any part of such crop until the rents and advances are satisfied. Every such offense shall be punishable as a Class 3 misdemeanor.

(Code 1950, § 18.1-115; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-101. Selling, etc., of goods distrained or levied on.

If any person fraudulently sell, pledge, encumber, remove, destroy, receive or secrete any goods, chattels or other personal property of any kind whatsoever that has been distrained or levied upon, with intent to defeat such distress or levy, he shall be deemed guilty of the larceny thereof.

(Code 1950, § 18.1-108; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For comment on cumulative remedies under article 9 of the U.C.C., see 14 Wm. & Mary L. Rev. 213 (1972). For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

CASE NOTES

Gravamen is removal with intent to defeat levy. - The gravamen of the offense created by this section is that the property was fraudulently removed, etc., with intent to defeat the levy or distress. Duff v. Commonwealth, 92 Va. 769 , 23 S.E. 643 (1895).

§ 18.2-102. Unauthorized use of animal, aircraft, vehicle or boat; consent; accessories or accomplices.

Any person who shall take, drive or use any animal, aircraft, vehicle, boat or vessel, not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be guilty of a Class 6 felony, provided, however, that if the value of such animal, aircraft, vehicle, boat or vessel shall be less than $1,000, such person shall be guilty of a Class 1 misdemeanor. The consent of the owner of an animal, aircraft, vehicle, boat or vessel to its taking, driving or using shall not in any case be presumed or implied because of such owner's consent on a previous occasion to the taking, driving or using of such animal, aircraft, vehicle, boat or vessel by the same or a different person. Any person who assists in, or is a party or accessory to, or an accomplice in, any such unauthorized taking, driving or using shall be subject to the same punishment as if he were the principal offender.

(Code 1950, § 18.1-164; 1960, c. 358; 1970, c. 8; 1975, cc. 14, 15; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - For provision that this section shall not apply to a bona fide repossession of a vehicle, aircraft, boat or vessel by the holder of a lien thereon or his agents, see § 18.2-148 .

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" and made minor stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" in the first sentence.

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

For article, "Preclusion of Evidence of Criminal Conviction in Civil Action Arising from the Same Incident," see 10 G.M.U. L. Rev. 107 (1988).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 126; 2C M.J. Aviation, § 1; 12A M.J. Larceny, §§ 8, 24; 12A M.J. Livery Stables, § 1; 18 M.J. Trespass, § 27.

CASE NOTES

Elements of offense. - Under this section, a conviction of unauthorized use of a vehicle requires proof of use without the consent of the owner with intent temporarily to deprive the owner of possession, without intent to steal, or proof of assistance in such use. Reese v. Commonwealth, 230 Va. 172 , 335 S.E.2d 266 (1985).

Violation when scope of permitted taking exceeded. - Where an act violates the specific scope or duration of consent to use a vehicle, a trespassory taking contemplated by this section occurs. This is not to say that in every instance where a person is in possession of property with the owner's consent, an unanticipated use constitutes a trespass. The focus is strictly on acts that violate the owner's express limitations of the scope or duration of the consent given. Overstreet v. Commonwealth, 17 Va. App. 234, 435 S.E.2d 906 (1993).

Where the owner gives consent to a temporary possession or a possession for a limited purpose, the expiration of that qualification creates a constructive revestment of possession in the true owner with "bare charge or custody" in the other person. A violation of this possessory right constitutes a trespassory taking. Overstreet v. Commonwealth, 17 Va. App. 234, 435 S.E.2d 906 (1993).

Where owner had given defendant permission to use his automobile on the express condition that the car be returned by 3:00 a.m. on April 8, and defendant retained possession of the car until 11:30 p.m. on April 8, a prima facie case of unauthorized use was established since the evidence shows that the borrower's use of the vehicle exceeded the scope and duration of the owner's consent. Eley v. Commonwealth, No. 2526-95-1 (Ct. of Appeals Mar. 11, 1997).

Conviction for the unauthorized use of a motor vehicle was not a theft offense under 8 U.S.C.S. § 1101(a)(43)(G) because the unauthorized use statute applied to even de minimis deprivations of ownership interests and circumstances typically viewed as "glorified borrowing," which were not included in the definition of a theft offense by the Board of Immigration Appeals. Castillo v. Holder, 776 F.3d 262, 2015 U.S. App. LEXIS 559 (4th Cir. Jan. 14, 2015).

Evidence was sufficient to support defendant's conviction for unauthorized use of a motor vehicle because it allowed the fact finder to conclude that a vehicle owner's consent to let defendant possess the vehicle to fix the brakes did not extend to allowing defendant to use the vehicle to tow his own vehicle; defendant admitted that he intended to use the owner's vehicle to tow his own vehicle. Otey v. Commonwealth, 71 Va. App. 792, 839 S.E.2d 921, 2020 Va. App. LEXIS 100 (2020).

The main difference between larceny and the statutory offense of unauthorized use of a motor vehicle is that in the former there must be an intent to deprive the owner of his property permanently, while in the latter the intent is to deprive the owner of possession of his automobile temporarily and without any intent to steal the same. The intent with which property is taken determines the offense. Slater v. Commonwealth, 179 Va. 264 , 18 S.E.2d 909 (1942); Robinson v. Commonwealth, 190 Va. 134 , 56 S.E.2d 367 (1949); Travelers Indem. Co. v. Ford, 208 Va. 151 , 156 S.E.2d 606 (1967); Comer v. Commonwealth, 211 Va. 246 , 176 S.E.2d 432 (1970).

The taking of a car, unaccompanied by an intent permanently to deprive the owner of the car, is a crime separate from the crime of larceny. A taking without the requisite intent is not within the coverage of a theft insurance policy. Travelers Indem. Co. v. Ford, 208 Va. 151 , 156 S.E.2d 606 (1967).

Intent alone distinguishes larceny of a vehicle from unauthorized use. Hewitt v. Commonwealth, 213 Va. 605 , 194 S.E.2d 893 (1973).

Permissive use may develop into unauthorized use where the borrower's acts exceed the scope or duration of the owner's consent to use his or her vehicle. Eley v. Commonwealth, No. 2526-95-1 (Ct. of Appeals Mar. 11, 1997).

Where, as here, an owner gives another consent to temporary possession for a limited time, the expiration of that qualification extinguishes the borrower's rightful possession. Continued possession by the borrower is a violation of the owner's possessory right and constitutes a trespassory taking. Eley v. Commonwealth, No. 2526-95-1 (Ct. of Appeals Mar. 11, 1997).

No theft if return intended. - Under the terms of an automobile insurance policy, in order to constitute a theft there must be present an intent permanently to deprive the owner of the vehicle. If it is shown that the alleged thief intended to return the vehicle after using it temporarily, there is no theft. Travelers Indem. Co. v. Ford, 208 Va. 151 , 156 S.E.2d 606 (1967).

The intent temporarily to deprive the owner of his property is an essential element of this offense and that intent is just as necessary to be proved as the act itself. Blanks v. Gordon, 202 Va. 295 , 117 S.E.2d 82 (1960).

Taking without intent to steal. - If defendant did unlawfully take the automobile of another, without the consent of the owner and in his absence, and with the intent to temporarily deprive the owner of his possession, but without intent to steal said vehicle, the crime is complete under this section. United States v. Schuster, 220 F. Supp. 61 (E.D. Va. 1963).

Unauthorized use is a lesser offense included under larceny. Hewitt v. Commonwealth, 213 Va. 605 , 194 S.E.2d 893 (1973).

Where defendant argued that the evidence did not show he only intended to temporarily deprive the owner of the use of his car, rather, any intent shown was that he had intended to deprive permanently the owner of his car, and therefore, the evidence was insufficient to show unauthorized taking, such argument had little or no validity in view of the supreme court's decision that unauthorized use is a lesser included offense of larceny. United States v. Garcia, 868 F.2d 114 (4th Cir.), cert. denied, 490 U.S. 1094, 109 S. Ct. 2439, 104 L. Ed. 2d 995 (1989).

Unauthorized use is a lesson. - Where the defendant was found in exclusive possession of the recently stolen vehicle, the evidence was sufficient to find he was driving a stolen car and to exclude every reasonable hypothesis that he drove a different car. Montague v. Commonwealth, 40 Va. App. 430, 579 S.E.2d 667, 2003 Va. App. LEXIS 289 (2003).

Taking and abandonment constitute larceny. - Accused, who did not have the consent of the owner to take his car, testified that he had no intention of stealing the car though he never intended to return it but intended to abandon it in a neighboring town. It was held that he was guilty of larceny. Slater v. Commonwealth, 179 Va. 264 , 18 S.E.2d 909 (1942).

In Reese v. Commonwealth, 230 Va. 172 , 335 S.E.2d 266 (1985), the court held that the circumstances under which the car was taken, and accused's actions regarding it afterwards, including his abandoning it in a public highway, showed clearly that he was guilty of the offense of larceny and not of unauthorized use.

Defendant properly convicted of using wife's car without consent. - Defendant was properly convicted of destroying and using without consent a car that was "not his own," in violation of §§ 18.2-137 and 18.2-102 , respectively, because his interest in his wife's car was an inchoate right that would vest only on entry of a decree of equitable distribution in a divorce proceeding. McDuffie v. Commonwealth, 49 Va. App. 170, 638 S.E.2d 139, 2006 Va. App. LEXIS 573 (2006).

Value of the automobile. - Where, in prosecution for the felonious unauthorized use of an automobile in violation of this section, the evidence did not clearly show that the automobile in working condition could not have a value of more than $200, the ends of justice did not require that the Supreme Court consider the issue of the sufficiency of the evidence to prove that the value of the automobile was over $200 for the first time on appeal. Mounce v. Commonwealth, 4 Va. App. 433, 357 S.E.2d 742 (1987).

Evidence was sufficient to prove the value of a vehicle because the owner of the vehicle was qualified to give an estimate that the value was $5,000; thus, the circuit court was permitted to consider the testimony in determining whether the value of the vehicle exceeded the statutory amount, and the $5,000 value far exceeded the statutory requirement. Otey v. Commonwealth, 71 Va. App. 792, 839 S.E.2d 921, 2020 Va. App. LEXIS 100 (2020).

Conviction under section when evidence tends to prove only larceny. - Although the evidence may tend to prove only the offense of larceny charged in the indictment, the finder of fact may nevertheless convict of a lesser offense of unauthorized use. Hewitt v. Commonwealth, 213 Va. 605 , 194 S.E.2d 893 (1973).

Evidence of defendant's mere presence in stolen vehicle is not enough to support a conviction as a principal in the second degree. Reese v. Commonwealth, 230 Va. 172 , 335 S.E.2d 266 (1985).

Sufficient evidence of unauthorized use. - Where defendant had the consent of the owner to use the vehicle for a limited purpose and for a limited period of time, and defendant exceeded both of these limitations, in so doing, his use of the vehicle constituted a trespassory taking. Accordingly, the Commonwealth established a prima facie case of unauthorized use of an automobile and the record supported by sufficient evidence defendant's conviction. Overstreet v. Commonwealth, 17 Va. App. 234, 435 S.E.2d 906 (1993).

Although defendant had permission to use the victim's car, defendant did not return the vehicle within the scope of the consent; consequently, the trial court properly convicted defendant of unauthorized use of a vehicle. Huber v. Commonwealth,, 2005 Va. App. LEXIS 382 (Oct. 4, 2005).

Evidence that a vehicle owner saw defendant get into the owner's vehicle and drive away, a witness saw the vehicle pass by at a "high rate of speed," and seconds later, the vehicle collided with another vehicle, was sufficient to prove that defendant was driving the vehicle at the time of the accident. Davis v. Commonwealth,, 2009 Va. App. LEXIS 220 (May 12, 2009).

Evidence, including that a car owner revoked her consent allowing defendant to use her car, that defendant received a voice message regarding such revocation, and that defendant drove away with the owner's car, was sufficient to support his conviction of unauthorized use of a vehicle in violation of § 18.2-102 . Butor v. Commonwealth,, 2010 Va. App. LEXIS 61 (Feb. 23, 2010).

Defendant was properly convicted of unauthorized use of a motor vehicle and hit and run because a police officer found the victim sitting or standing near a heavily damaged guardrail, defendant's cell phone rang when the officer called a number that he obtained while with the victim, a damaged car was found about a quarter of a mile from the guardrail, defendant was found about three-quarters of a mile from the guardrail, and he admitted that he did not have permission to use the car. Cousins v. Commonwealth,, 2014 Va. App. LEXIS 329 (Sept. 30, 2014).

Proof of venue. - Venue was improper for defendant's trial for unauthorized use of an automobile in violation of § 19.2-244 because although the trial court found that defendant unlawfully used the car, the only evidence of that use was in jurisdictions other than the city where defendant was tried, and even though defendant was charged with the larceny of the car in the city, the trial court specifically acquitted him of that offense; the Commonwealth may not rely on a greater offense to prove venue where the evidence fails to prove the defendant committed the greater offense and the lesser-included offense could not be properly charged in the jurisdiction. Taylor v. Commonwealth, 58 Va. App. 185, 708 S.E.2d 241, 2011 Va. App. LEXIS 140 (2011).

Restitution. - Trial court did not abuse its discretion in ordering defendant to pay restitution in the amount necessary to replace the locks and cylinders on the first car, which defendant took without authorization, and on the second car, and to reprogram the second car's computer because, by unlawfully taking the first car and its contents, including the victim's purse containing the keys to the second car, defendant compromised the victim's ability to protect her vehicles from unwanted intrusion as both sets of keys were missing when the first car was recovered; and requiring defendant to pay for changing the locks was not too remote or attenuated from the crime of unauthorized use of a motor vehicle to establish an abuse of discretion. Fleisher v. Commonwealth, 69 Va. App. 685, 822 S.E.2d 679, 2019 Va. App. LEXIS 20 (2019).

§ 18.2-102.1. Removal of shopping cart from store premises.

  1. The term "shopping cart" when used in this section means those push carts of the type or types which are commonly provided by grocery stores, drugstores, or other merchant stores or markets for the use of the public in transporting commodities in stores and markets from the store to a place outside the store.
  2. It shall be unlawful for any person to remove a shopping cart from the premises, of the owner of such shopping cart without the consent, of the owner or of his agent, servant, or employee given at the time of such removal. For the purpose of this section, the premises shall include all the parking area set aside by the owner, or on behalf of the owner, for the parking of cars for the convenience of the patrons of the owner.
  3. Any person convicted of a violation under subsection (2) shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-117.2; 1975, c. 269.)

The number of this section was assigned by the Virginia Code Commission, the 1975 act having assigned no number.

§ 18.2-102.2. Unauthorized use of dairy milk cases or milk crates; penalty.

It shall be unlawful for any person to:

  1. Buy, sell, or dispose of any milk case or milk crate bearing the name or label of the owner without the written consent of the owner or his designated agent;
  2. Refuse, upon written demand of the owner or his designated agent, to return to the owner or his designated agent any milk case or milk crate bearing the name or label of the owner; or
  3. Deface, obliterate, erase, cover up, or otherwise remove or conceal any name, label, registered trademark, insignia, or other business identification of an owner of a milk case or milk crate without the consent of the owner, for the purpose of destroying or removing from the milk case or milk crate evidence of its ownership.

    A violation of this section shall be punishable as a Class 4 misdemeanor.

    For purposes of this section, milk cases or milk crates shall be deemed to bear a name or label of an owner when there is imprinted or attached on the case or crate a name, insignia, mark, business identification, or label showing ownership or sufficient information to ascertain ownership. The term "milk case" or "milk crate" means a wire or plastic container which holds sixteen quarts or more of beverage and is used by distributors or retailers or their agents as a means to transport, store, or carry dairy products.

    (1990, c. 452.)

§ 18.2-103. Concealing or taking possession of merchandise; altering price tags; transferring goods from one container to another; counseling, etc., another in performance of such acts.

Whoever, without authority, with the intention of converting goods or merchandise to his own or another's use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts, when the value of the goods or merchandise involved in the offense is less than $1,000, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $1,000 or more, shall be guilty of grand larceny. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner thereof out of the value of the goods or merchandise.

(Code 1950, § 18.1-126; 1960, c. 358; 1970, c. 652; 1975, cc. 14, 15; 1994, c. 706; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice.

Law review. - For survey of Virginia law on criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 25 Tort Actions: Negligent and Intentional Personal Injuries and Wrongful Death. § 25.03 Intentional Personal Injuries. Friend.

CASE NOTES

To convict an accused for unlawful concealment in violation of this section, the commonwealth must prove a willful concealment of merchandise done with the intent to convert the merchandise or to defraud the storekeeper. Johnson v. Commonwealth, 35 Va. App. 134, 543 S.E.2d 605, 2001 Va. App. LEXIS 133 (2001).

Goods. - "Goods" includes not only merchandise offered for sale but also any other items of tangible personal property belonging to a merchant; the Virginia Legislature intended to proscribe the concealment of both merchandise offered for sale and other types of goods not offered for sale. Hulcher v. Commonwealth, 39 Va. App. 601, 575 S.E.2d 579, 2003 Va. App. LEXIS 33 (2003).

Concealment must be "willful." - This section does not prohibit simply the concealment of merchandise; it prohibits a "willful" concealment and the word "willful" when used in a criminal statute generally means an act done with a bad purpose, without justifiable excuse, stubbornly, obstinately, perversely or without ground for believing it is lawful. Johnson v. Commonwealth, 35 Va. App. 134, 543 S.E.2d 605, 2001 Va. App. LEXIS 133 (2001).

Concealment while still on premises. - The willful concealment of goods while still on the premises is prima facie evidence of intent to defraud the owner of the value of the goods or merchandise at issue. Johnson v. Commonwealth, 35 Va. App. 134, 543 S.E.2d 605, 2001 Va. App. LEXIS 133 (2001).

Concealment on the person not required. - The plain language of this section does not require proof of concealment on the person; concealment in another area of the store may thus constitue a violation of the statute if done willfully. Johnson v. Commonwealth, 35 Va. App. 134, 543 S.E.2d 605, 2001 Va. App. LEXIS 133 (2001).

Evidence of probation violation properly admitted to prove concealment. - During defendant's trial for third offense petit larceny under §§ 18.2-103 and 18.2-104 , the circuit court properly admitted into evidence an order finding defendant had previously violated probation to prove she committed the predicate offense of concealment. Defendant was not unfairly prejudiced by the admission of the order, even though it mentioned a prior conviction for drug distribution, because the record showed that the circuit court did not consider the evidence regarding drug distribution, as the law presumed; rather, the circuit court convicted defendant based on its consideration of the credibility of the witnesses, not defendant's history with law enforcement. Thornley v. Commonwealth,, 2008 Va. App. LEXIS 273 (June 10, 2008).

Evidence of value of items stolen was improperly admitted. - Defendant's felony shoplifting conviction was reversed because the admission of evidence of the value of the items defendant stole violated defendant's right to confrontation, as (1) a handwritten list of the items and the items' value, and a subsequent voided store receipt created from the list, were testimonial, as the list and receipt were created to prove the items' value to show defendant committed felony, rather than misdemeanor, shoplifting, (2) the author and declarant of the handwritten list and the store receipt did not testify, nor was the author subject to cross-examination, (3) a testifying supervisor admitted the supervisor did not verify that the list stated each stolen item's correct quantity and price, and (4) these exhibits were the only evidence of the items taken and the items' value. Robertson v. Commonwealth, 60 Va. App. 688, 732 S.E.2d 30, 2012 Va. App. LEXIS 297 (2012).

Improperly admitting evidence of value of items stolen was not harmless. - In a felony shoplifting prosecution, the erroneous admission of a handwritten list and a voided store receipt to prove the value of the items stolen was not harmless because (1) admitting the voided receipt did not cure admitting the handwritten list, since the receipt was based on the list, and (2) these exhibits, which had the same constitutional defect, were the only evidence of the value of what defendant stole. Robertson v. Commonwealth, 60 Va. App. 688, 732 S.E.2d 30, 2012 Va. App. LEXIS 297 (2012).

Evidence supported willful concealment. - Defendant's conviction for petit larceny, third offense, in violation of § 18.2-103 was appropriate because the evidence showed that he had willfully concealed merchandise while on the store's premises, thus creating a prima facie case of an intent to steal and defraud the owner. A deputy testified that a store employee indicated to him that she suspected defendant of shoplifting and because there was no objection to that testimony, the trial court was free to consider it as evidence. Talley v. Commonwealth,, 2010 Va. App. LEXIS 441 (Nov. 9, 2010).

Evidence was sufficient to support a conviction for shoplifting because defendant acted willfully when he placed a television out of sight by purchasing a storage container and placing it over the television box in an attempt to get the television out of the store. Moreover, when he was approached by loss prevention, defendant ran out of the store and abandoned the items, despite the fact that he said he was going to pay. Vaughan v. Commonwealth,, 2017 Va. App. LEXIS 75 (Mar. 14, 2017).

Sufficient evidence supported conviction. - Defendant's conviction for felony shoplifting was supported by sufficient evidence that the value of the merchandise was at least $200, the minimum required by § 18.2-103 , as the admission of exhibits listing the items shoplifted, their prices, and an adding machine tape adding the prices together, and a voided receipt did not violate the Confrontation Clause, U.S. Const. amend. VI, since the exhibits were jointly prepared by a store manager and an employee, under the manager's supervision and direction, and the manager testified at trial about the preparation of the exhibits. Robertson v. Commonwealth, 61 Va. App. 554, 738 S.E.2d 531, 2013 Va. App. LEXIS 97 (Mar. 19, 2013).

Defendant's conviction for grand larceny was appropriate because a loss prevention incident report was properly admitted into evidence and additionally, the evidence presented at trial, including the report, was sufficient. Even if every item was discounted the total value was more than $200. Walker v. Commonwealth, No. 0868-12-3, 2013 Va. App. LEXIS 186 (Ct. of Appeals June 18, 2013).

Evidence supported the trial court's finding that defendant committed the crime of concealment under two theories, by removing the tank bag from the packaging, taking it to the restroom, and failing to return it to the box or the reshop cart before leaving the store and by hiding the tank bag somewhere on his person and fleeing with it and disposing of it when out of the officer's sight. Cunningham v. Commonwealth, No. 0240-17-1, 2018 Va. App. LEXIS 72 (Mar. 20, 2018).

Insufficient evidence. - Insufficient evidence supported defendant's felony shoplifting conviction because, absent exhibits that were admitted in violation of defendant's right to confrontation, the evidence did not prove the element that the stolen items' value was at least $200. Robertson v. Commonwealth, 60 Va. App. 688, 732 S.E.2d 30, 2012 Va. App. LEXIS 297 (2012).

Circuit court was plainly wrong in finding there was sufficient evidence to convict defendant of petit larceny because the Commonwealth failed to prove that the video an officer viewed was of the incident and that there was a willful concealment of merchandise by defendant that was done with the intent to convert the merchandise; the circuit court had to make a number of inferences because no evidence was provided actually establishing that the items concealed were merchandise or goods. Wright v. Commonwealth, No. 1373-17-3, 2018 Va. App. LEXIS 293 (Oct. 30, 2018).

Jury instruction concerning willful concealment. - In a petit larceny case, defendant's due process rights were not violated by a jury instruction concerning willful concealment of goods or merchandise while on the premises of a store. Because the instruction contained a permissive inference and not a mandatory presumption, the trial court did not err in giving it to the jury. Lindsey v. Commonwealth, 293 Va. 1 , 795 S.E.2d 311, 2017 Va. LEXIS 2 (2017), cert. denied, 138 S. Ct. 554, 2017 U.S. LEXIS 7488, 199 L. Ed. 2d 436 (U.S. 2017).

Enhanced punishment for repeat offenders. - An objective reading of § 18.2-104 demonstrates the General Assembly, in plain terms, has designed a system of enhanced punishment for those who repeatedly commit the "shoplifting" offenses defined in this section, whether the prior conviction resulted from charges under a comparable local ordinance or under the state statute. Scott v. Commonwealth, 217 Va. 425 , 230 S.E.2d 236 (1976) (decided under former § 18.1-126).

Over defendant's objection, the district court assigned him a criminal history point for a 2005 sentence in a Virginia state court for shoplifting - or, more specifically, for altering a price tag on merchandise valued at less than $200 - and on appeal, defendant contended that he should not have received a criminal history point for his prior shoplifting sentence because the underlying offense was similar to the listed insufficient funds check offense and because his sentence did not include any term of probation or incarceration; however, the district court correctly determined that defendant's prior shoplifting offense was not similar to the listed insufficient funds check offense and properly assessed a single criminal history point for the shoplifting sentence. Under Virginia law, both shoplifting and insufficient funds check offenses could involve the acquisition of a store's merchandise without paying the full purchase price thereof but in a shoplifting offense, this was effectuated by concealing the merchandise or altering the merchandise's price tag and in an insufficient funds check offense the merchandise acquisition was carried out by issuing a bad check; because of these significant differences, the elements of the shoplifting offense and those of the insufficient funds check offense could not be deemed nearly corresponding or resembling in many respects. United States v. Osborne, 514 F.3d 377, 2008 U.S. App. LEXIS 1871 (4th Cir. 2008), cert. denied, 128 S. Ct. 2525, 2008 U.S. LEXIS 4438 (U.S. 2008).

Satisfaction of enhancement requirements. - Because a 1999 petit larceny conviction and an NCIC report sufficiently showed defendant's two prior larceny convictions, and he could not benefit from using three different social security numbers in his prior encounters with law enforcement, defendant's third or subsequent larceny conviction was upheld on appeal as supported by sufficient evidence. Ghee v. Commonwealth,, 2008 Va. App. LEXIS 105 (Mar. 4, 2008).

Sentence not excessive. - As defendant did not raise a challenge to the a petit larceny, third offense sentence under §§ 18.2-103 and 18.2-104 below, and because the sentence to five years of imprisonment with three years' suspended was not excessive on its face, there was no reason to invoke the ends of justice exception under Va. Sup. Ct. R. 5A:18. Brittle v. Commonwealth, 54 Va. App. 505, 680 S.E.2d 335, 2009 Va. App. LEXIS 359 (2009).

Qualified privilege. - The legal principles applicable to shoplifting, and to civil litigation arising from efforts to control this crime, do not include the concept of qualified privilege. Tweedy v. J.C. Penney Co., 216 Va. 596 , 221 S.E.2d 152 (1976).

Stealing a check in violation of § 18.2-98 is "like" concealing merchandise in violation of this section for purpose of enhancing punishment under § 18.2-104 , and is an offense deemed to be larceny for purposes of enhancing punishment under former § 19.2-297 . Stamps v. Commonwealth, 12 Va. App. 862, 407 S.E.2d 337 (1991).

Appellate review precluded. - Defendant's failure to object to the introduction of the prior convictions and failure to challenge the sufficiency of the evidence precluded appellate review of defendant's third offense petit larceny conviction under §§ 18.2-103 and 18.2-104 as: (1) Va. Sup. Ct. R. 5A:18 did not apply as defendant did not dispute that defendant concealed steaks in a grocery store, or challenge a 2005 order stating that defendant pled guilty to second offense petit larceny; (2) although the two 1997 orders did not prove the convictions, they did not establish the non-existence of the predicate offenses; (3) the pre-sentence report proved that defendant was sentenced in 1993 for petit larceny; and (4) defendant did not show that an element of the offense did not occur or that he was convicted of a non-offense. Brittle v. Commonwealth, 54 Va. App. 505, 680 S.E.2d 335, 2009 Va. App. LEXIS 359 (2009).

CIRCUIT COURT OPINIONS

Right to impartial jury. - Defendant's claim that if the Commonwealth was allowed to introduce defendant's prior larceny convictions at defendant's trial for violating §§ 18.2-103 and 18.2-104 in a non-bifurcated guilt phase, defendant's constitutional right to an impartial jury under the Sixth Amendment and Va. Const., Art. I, § 8 would be abridged was not supported and was rejected. Commonwealth v. Dickens, 77 Va. Cir. 57, 2008 Va. Cir. LEXIS 124 (Fairfax County 2008).

Cruel and unusual punishment. - Defendant's claim that the Eighth Amendment and Va. Const., Art. I, § 9, applied to criminal procedure issues was unsupported and was rejected; there was no logical nexus between the Eighth Amendment's proscription against cruel and unusual punishment and the admissibility of evidence at trial concerning prior convictions of a criminal defendant charged under a recidivist statute such as §§ 18.2-103 and 18.2-104 . Commonwealth v. Dickens, 77 Va. Cir. 57, 2008 Va. Cir. LEXIS 124 (Fairfax County 2008).

Bifurcated trial denied. - Commonwealth could introduce evidence of defendant's prior larceny convictions in the guilt phase of a concealment trial under §§ 18.2-103 and 18.2-104 , and upon request, a limiting instruction would be given that the evidence could be considered only as proof of defendant's prior predicate convictions, and not as proof that defendant committed the concealment; defendant's request for a separate proceeding after a preliminary finding of culpability, but before defendant was convicted, was rejected as under § 19.2-295.1 , a separate proceeding to determine punishment occurred only after a defendant was convicted of a felony. Commonwealth v. Dickens, 77 Va. Cir. 57, 2008 Va. Cir. LEXIS 124 (Fairfax County 2008).

OPINIONS OF THE ATTORNEY GENERAL

Theft of gasoline from self-service pump. - The actions of an individual who presses the "pay inside" button at a self-service gasoline pump to activate the pump to dispense fuel into his motor vehicle and drives away without paying for such fuel are tantamount to theft of the gasoline and such an individual is subject to criminal prosecution for petit larceny. See opinion of Attorney General to The Honorable R. Steven Landes, Member, House of Delegates, 01-090 (12/27/01).

§ 18.2-104.

Repealed by Acts 2021, Sp. Sess. I, c. 192, cl. 1, effective July 1, 2021.

Editor's note. - Former § 18.2-104 , which set forth the punishment for conviction of misdemeanor larceny, derived from Code 1950, § 18.1-126.1; 1970, c. 652; 1975, cc. 14, 15; 1980, c. 174; 1987, c. 178; 1994, c. 706.

§ 18.2-104.1. Liability upon conviction under § 18.2-103.

Any person who has been convicted of violating the provisions of § 18.2-103 shall be civilly liable to the owner for the retail value of any goods and merchandise illegally converted and not recovered by the owner, and for all costs incurred in prosecuting such person under the provisions of § 18.2-103 . Such costs shall be limited to actual expenses, including the base wage of one employee acting as a witness for the Commonwealth and suit costs. Provided, however, the total amount of allowable costs granted hereunder shall not exceed $250, excluding the retail value of the goods and merchandise.

(1976, c. 577.)

Law review. - For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 11.

§ 18.2-105.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions relating to exemption from civil liability in connection with arrest or detention of a person suspected of shoplifting, see § 8.01-226.9 .

§ 18.2-105.1. Detention of suspected shoplifter.

A merchant, agent or employee of the merchant, who has probable cause to believe that a person has shoplifted in violation of § 18.2-95 or § 18.2-96 or § 18.2-103 , on the premises of the merchant, may detain such person for a period not to exceed one hour pending arrival of a law-enforcement officer.

(1976, c. 515.)

Research References. - Virginia Forms (Matthew Bender). No. 1-703 Complaint for False Imprisonment.

CASE NOTES

Miranda not applicable. - An interrogation by private store security agents of a suspect detained pursuant to this section is not a custodial police interrogation, but is a confrontation between private citizens. Thus, such an interrogation is not governed by the requirements of Miranda. Vazirnezami v. Commonwealth, No. 0497-90-4 (Ct. of Appeals July 1, 1991).

CIRCUIT COURT OPINIONS

Resistance to arrest. - The court found that the employee did identify himself and therefore the detention was lawful; thus, the defendant did not have the right to use reasonable force to resist his detention, where he knew he had shoplifted and was detained as he left the store. Commonwealth v. Patterson, 60 Va. Cir. 312, 2002 Va. Cir. LEXIS 276 (Fairfax County 2002).

§ 18.2-105.2. Manufacture, sale, etc., of devices to shield against electronic detection of shoplifting prohibited; penalty.

It shall be unlawful to manufacture, sell, offer for sale, distribute or possess any specially coated or laminated bag or other device primarily designed and intended to shield shoplifted merchandise from detection by an anti-theft electronic alarm sensor, with the intention that the same be used to aid in the shoplifting of merchandise. A violation of this section shall be punishable as a Class 1 misdemeanor.

(1984, c. 386; 2003, c. 831.)

The 2003 amendments. - The 2003 amendment by c. 831 substituted "Class 1 misdemeanor" for "Class 3 misdemeanor" at the end of the section.

Law review. - For note, "Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest," 97 Va. L. Rev. 1727 (2011).

§ 18.2-106. "Agents of the merchant" defined.

As used in this article "agents of the merchant" shall include attendants at any parking lot owned or leased by the merchant, or generally used by customers of the merchant through any contract or agreement between the owner of the parking lot and the merchant.

(Code 1950, § 18.1-128; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to limitations on powers of registered armed security officers, see § 9.1-146 .

§ 18.2-107. Theft or destruction of public records by others than officers.

If any person steal or fraudulently secrete or destroy a public record or part thereof, including a microphotographic copy thereof, he shall, if the offense be not embraced by § 18.2-472 be guilty of a Class 6 felony.

(Code 1950, § 18.1-308; 1960, c. 358; 1974, c. 649; 1975, cc. 14, 15; 1977, c. 107.)

CASE NOTES

Jury instructions. - Trial court did not erred in rejecting defendant's proffered jury instructions, each of which included an instruction that "the destruction was done with fraudulent intent" because there was no requirement that the destruction of public records be done with a fraudulent intent. Rompalo v. Commonwealth, 72 Va. App. 147, 842 S.E.2d 426, 2020 Va. App. LEXIS 165 (2020).

§ 18.2-108. Receiving, etc., stolen goods.

  1. If any person buys or receives from another person, or aids in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender is not convicted.
  2. If any person buys or receives any goods or other thing, used in the course of a criminal investigation by law enforcement that such person believes to have been stolen, he shall be deemed guilty of larceny thereof.

    (Code 1950, § 18.1-107; 1960, c. 358; 1975, cc. 14, 15; 2008, c. 578.)

Cross references. - As to right of accused to demand statement from Commonwealth's attorney of what section he intends to rely upon to ask for conviction of larceny, see § 18.2-111 .

The 2008 amendments. - The 2008 amendment by c. 578 designated the existing provisions as subsection A and added subsection B; in subsection A, substituted "buys or receives" for "buy or receive," "aids" for "aid" and "is" for "be."

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 92; 12A M.J. Larceny, § 9; 15 M.J. Receiving Stolen Goods, §§ 1-4 , 7.

CASE NOTES

Section read in connection with §§ 18.2-95 and 18.2-96 . - Since an offense against this section is made larceny, without specifying either the punishment or the degree of larceny, this section must be read in connection with §§ 18.2-95 and 18.2-96 . Wright v. Commonwealth, 196 Va. 132 , 82 S.E.2d 603 (1954).

Although the trial court erred by convicting defendant of violating § 18.2-95 , instead of § 18.2-108 , after the jury found defendant guilty of grand larceny by receiving stolen property, the trial court's failure to include a reference to § 18.2-108 in its final order was a clerical error that did not require reversal. Bazemore v. Commonwealth, No. 0103-02-1, 2003 Va. App. LEXIS 291 (Ct. of Appeals May 13, 2003).

Statute written in the disjunctive. - The statute defines the offense of larceny in the disjunctive, stating that any person who buys or receives or aids in concealing property knowing that it was the fruit of a theft is guilty of constructive larceny. Roach v. Commonwealth, No. 2783-98-2, 2000 Va. App. LEXIS 562 (Ct. of Appeals Aug. 1, 2000).

Receiving stolen goods may be charged as larceny. - Receiving stolen goods, knowing them to be stolen, may be charged as larceny. Clark v. Commonwealth, 135 Va. 490 , 115 S.E. 704 (1923).

An accused may be tried for receiving stolen goods under a larceny indictment. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965); Gunter v. Peyton, 287 F. Supp. 928 (W.D. Va. 1968).

Or robbery. - The accused in an indictment for robbery is apprised of his liability to conviction as a criminal receiver. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965).

And where defendant is indicted for armed robbery, but is tried as an accessory to armed robbery and convicted for receiving stolen property and the conviction is affirmed by the Supreme Court, he cannot be retried for any crime of greater gravity than the receipt of stolen goods. Dove v. Peyton, 343 F.2d 210 (4th Cir. 1965).

And proof of receiving sustains charge of simple larceny. - If a person is indicted for the simple larceny of a thing, and the proof is that it was stolen by some other person, and received by the accused knowing it to have been stolen, the proof will sustain the charge. Price v. Commonwealth, 62 Va. (21 Gratt.) 846 (1872); Hey v. Commonwealth, 73 Va. (32 Gratt.) 946 (1879).

Under this section, on a charge of actual larceny it is permissible to prove and obtain a conviction of constructive larceny, consisting of the receiving of stolen goods, knowing them to have been stolen. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

For offense is included in larceny. - The crime of receiving stolen goods is a lesser offense which is included in the major one of larceny. Branch v. Commonwealth, 184 Va. 394 , 35 S.E.2d 593 (1945).

Larceny by receiving stolen goods is a lesser offense which is included in the major one of larceny, and the lesser offense is indictable as larceny, and the accused may be convicted of the lesser offense of receiving stolen goods. Cabbler v. Commonwealth, 212 Va. 520 , 184 S.E.2d 781 (1971).

And is deemed larceny under this section. - Receiving stolen goods, knowing them to have been stolen, is deemed larceny merely by reason of this section. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

The act of receiving stolen goods is deemed to be larceny in Virginia. Gunter v. Peyton, 287 F. Supp. 928 (W.D. Va. 1968).

Effect of failure to demand statement under § 18.2-111 . - The accused having been indicted for larceny and having failed to exercise his right under § 18.2-111 to demand a statement in writing from the attorney for the Commonwealth of what he intended to rely upon to ask for a conviction, the prosecuting attorney was entitled to ask for a conviction for receiving stolen bonds, or for receiving lost bonds, as might be shown by the evidence. Hutchinson v. Commonwealth, 133 Va. 710 , 112 S.E. 624 (1922).

To convict an offender under this section, four things must be proved: (1) that the goods or other things were previously stolen by some other person; (2) that the accused bought or received them from another person, or aided in concealing them; (3) that at the time the accused bought or received them, or aided in concealing them, he knew that they had been stolen; and (4) that he bought or received them, or aided in concealing them, malo animo or with a dishonest intent. Hey v. Commonwealth, 73 Va. (32 Gratt.) 946 (1879); Gilland v. Commonwealth, 184 Va. 223 , 35 S.E.2d 130 (1945); Starks v. Commonwealth, 225 Va. 48 , 301 S.E.2d 152 (1983).

In order to convict defendant, the Commonwealth had the burden of proving: (1) guilty knowledge; (2) buying, receiving, or aiding in concealing the property; and (3) dishonest intent. Lee v. Commonwealth, No. 0352-89-1 (Ct. of Appeals Aug. 21, 1990).

In order to support defendant's conviction of grand larceny, the evidence must show beyond a reasonable doubt that he: (1) received fifty or more dollars of stolen money from another, or aided in concealing such amount of stolen money, (2) knowing the same to be stolen, and (3) so received or aided in concealing such stolen amount of money with a dishonest intent. Wright v. Commonwealth, 196 Va. 132 , 82 S.E.2d 603 (1954).

To prove the corpus delicti and to establish the guilt of the defendant, the Commonwealth has the burden of showing: (1) that goods of the value of more than $50 were previously stolen by some other person; (2) the defendant aided in concealing them; (3) that at the time he so aided in concealing them, he knew they had been stolen; and (4) that he so aided in concealing them with a dishonest intent. Parish v. Commonwealth, 206 Va. 627 , 145 S.E.2d 192 (1965), cert. denied, 384 U.S. 942, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966); Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

Evidence insufficient to prove intent. - Evidence was insufficient as a matter of law to prove the requisite intent for larceny, where the Commonwealth's uncontradicted evidence did not exclude as a reasonable hypothesis that defendant came upon a pair of stolen jet skis in the woods and used them with the intent of returning them each day to that place. Lee v. Commonwealth, No. 0352-89-1 (Ct. of Appeals Aug. 21, 1990).

Even if the evidence were sufficient to show that appellant knew the vehicle was stolen, mere presence in and subsequent flight from the vehicle was insufficient to show that the accused aided in concealing it with a dishonest intent. Reid v. Commonwealth, No. 0480-93-1 (Ct. of Appeals Oct. 4, 1994).

To convict a defendant under this section, the Commonwealth must prove that property was: (1) previously stolen by another; and (2) received by defendant; (3) with knowledge of the theft; and (4) a dishonest intent. Snow v. Commonwealth, 33 Va. App. 766, 537 S.E.2d 6, 2000 Va. App. LEXIS 754 (2000).

Conviction is dependent upon guilty knowledge. - This section makes a conviction dependent upon guilty knowledge, and the Commonwealth must show beyond a reasonable doubt that the accused received from another person "any stolen goods or other thing, knowing the same to have been stolen." Kanter v. Commonwealth, 171 Va. 524 , 199 S.E. 477 (1938).

The testimony of two police officers describing the defendant's frantic efforts to evade the police in a stolen vehicle, as well as the testimony by one officer concerning the "popped" ignition and the defendant's statement that he believed one of the other occupants had stolen the vehicle, if believed by the fact finder, were sufficient to prove receipt of the stolen vehicle with the requisite knowledge required by this section. Snow v. Commonwealth, 33 Va. App. 766, 537 S.E.2d 6, 2000 Va. App. LEXIS 754 (2000).

The defendant's dishonest intent in aiding in the concealment of the goods not only may, but usually must, be shown by circumstantial evidence. Parish v. Commonwealth, 206 Va. 627 , 145 S.E.2d 192 (1965), cert. denied, 384 U.S. 942, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966); Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

Knowledge that the goods received were stolen property is an essential element of the crime, one which the Commonwealth must prove beyond a reasonable doubt. Lewis v. Commonwealth, 225 Va. 497 , 303 S.E.2d 890 (1983).

Guilty knowledge may be shown by circumstances. - The great weight of authority is to the effect that guilty knowledge need not be directly proved. It may be shown by circumstances. It is sufficiently shown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they were stolen. Reaves v. Commonwealth, 192 Va. 443 , 65 S.E.2d 559 (1951).

Absent proof of an admission against interest, knowledge that the goods received were stolen necessarily must be shown by circumstantial evidence. Lewis v. Commonwealth, 225 Va. 497 , 303 S.E.2d 890 (1983).

Guilty knowledge need not be directly proved. It may be shown by circumstances. It is sufficiently shown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they were stolen. Lewis v. Commonwealth, 225 Va. 497 , 303 S.E.2d 890 (1983).

An essential element of the offense of receiving stolen property is guilty knowledge, which may be supplied by circumstantial evidence, including the circumstance that the accused was in possession of recently stolen property. Roberts v. Commonwealth, 230 Va. 264 , 337 S.E.2d 255 (1985).

Guilty knowledge is an essential element of the offense as defined by the statute, but absent proof of an admission against interest, such knowledge necessarily must be shown by circumstantial evidence. Spitzer v. Commonwealth, 233 Va. 7 , 353 S.E.2d 711 (1987).

Police officer's testimony describing defendant's frantic efforts to evade arrest was sufficient to prove concealment with guilty knowledge within the intendment of this section. Spitzer v. Commonwealth, 233 Va. 7 , 353 S.E.2d 711 (1987).

When the evidence shows concealment of stolen property, the Commonwealth is not required to prove that the accused was the thief or that he received that property from the thief or "another person." Spitzer v. Commonwealth, 233 Va. 7 , 353 S.E.2d 711 (1987).

The testimony of one who sold allegedly stolen goods to defendant is especially relevant. - Such testimony is admissible under the guilty-knowledge exception to the general rule that evidence of offenses other than those charged is inadmissible. Lewis v. Commonwealth, 225 Va. 497 , 303 S.E.2d 890 (1983).

When goods are stolen and concealed, it is proper to show the connection of the accused therewith wherever they may be traced. Parish v. Commonwealth, 206 Va. 627 , 145 S.E.2d 192 (1965), cert. denied, 384 U.S. 942, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966); Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

Where the secreting of goods is performed pursuant to a common plan and design and carried out by a combination of which the defendant was a part, defendant was "concluded and bound" by such action, regardless of the identity of the person who actually secreted the stolen goods. Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

Evidence of recent possession is relevant. - On the prosecution of an indictment for larceny it was not error to instruct the jury in effect that they might consider the fact of recent exclusive possession of the stolen property, under the circumstances set forth in the instruction, as evidence of constructive larceny, as well as of actual larceny. Evidence of possession is relevant not only in cases of larceny, but also in prosecutions for receiving stolen goods. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924); Reaves v. Commonwealth, 192 Va. 443 , 65 S.E.2d 559 (1951). See also Gilland v. Commonwealth, 184 Va. 223 , 35 S.E.2d 130 (1945).

The mere naked possession of stolen goods, unaided by other proof, is no evidence that the possessor received the goods knowing them to have been stolen. But recent exclusive unexplained possession of stolen goods is a circumstance for the consideration of the jury. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

And possession of goods not mentioned in indictment may be shown. - In a prosecution for burglary and larceny the court did not err in admitting testimony showing that the accused had in his possession when arrested other stolen goods not mentioned in the indictment. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

Permitted inference. - Proof of recent possession of stolen property allows the trier of fact to infer that the defendant knew it to be stolen. Collins v. Commonwealth, No. 1965-96-4 (Ct. of Appeals June 3, 1997).

Trial court did not have to believe defendant's version of how defendant acquired car and was entitled to infer that defendant knew car was stolen; defendant knew of the shotgun based on its location under the passenger seat. Ridley v. Commonwealth, No. 1850-01-1, 2002 Va. App. LEXIS 387 (Ct. of Appeals July 16, 2002).

Uncharged crimes properly admitted. - When defendant was convicted of receiving stolen property, evidence that defendant possessed stolen property for which defendant was not charged was properly admitted because (1) the jury was properly instructed to consider evidence that defendant committed a crime other than that for which defendant was tried only as evidence defendant knowingly possessed stolen goods, and not as evidence that defendant stole the items, and (2) the evidence was relevant and admissible to prove guilty knowledge and an absence of mistake in possessing stolen property, as the evidence concerned events roughly contemporaneous with the charged crimes, much of the evidence was factually interwoven with evidence in the case, and defendant was not entitled to have the evidence "sanitized." Kelley v. Commonwealth,, 2012 Va. App. LEXIS 305 (Oct. 2, 2012).

In a prosecution for receiving stolen property in which evidence of defendant's uncharged crimes was admitted, the Commonwealth was not limited to only admitting evidence of one uncharged crime because the jury was properly instructed as to the limited purposes for which the evidence could be considered. Kelley v. Commonwealth,, 2012 Va. App. LEXIS 305 (Oct. 2, 2012).

Evidence insufficient to show possession. - Defendant was apprehended before he had even approached the stolen vehicle, and he never admitted to the police that he used the vehicle. The record was devoid of physical evidence, such as fingerprints, or testimonial evidence from witnesses that would tie defendant to the vehicle on the day in question. There was a lack of evidence to show defendant possessed the stolen vehicle as set forth in the indictment. McClary v. Commonwealth, No. 0187-97-1 (Ct. of Appeals Jan. 27, 1998).

Evidence was insufficient to establish defendant possessed stolen property in Virginia Beach, Virginia. While defendant clearly exercised dominion and control over the stolen vehicle in Williamsburg, the record did not suggest that defendant, a passenger, exercised any measure of dominion or control over the vehicle or otherwise asserted a possessory interest in the vehicle while in Virginia Beach. Ramsey v. Commonwealth,, 2008 Va. App. LEXIS 354 (July 8, 2008).

Evidence that the accused had in his possession when arrested other stolen goods, not mentioned in the indictment, is admissible on a prosecution for receiving stolen goods, knowing them to have been stolen, as tending to show guilty knowledge. Stapleton v. Commonwealth, 140 Va. 475 , 124 S.E. 237 (1924).

And when circumstantial evidence is of a convincing character and excludes every reasonable hypothesis other than that the accused is guilty, there is no ground upon which the Supreme Court may, or will, disturb the judgment of the trial court. Parish v. Commonwealth, 206 Va. 627 , 145 S.E.2d 192 (1965), cert. denied, 384 U.S. 942, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966); Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

Burden of proof. - All that the Commonwealth is required to do under its burden of proof is to establish, beyond a reasonable doubt, the essential elements of the offense of aiding in concealing stolen goods. Parish v. Commonwealth, 206 Va. 627 , 145 S.E.2d 192 (1965), cert. denied, 384 U.S. 942, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966); Pasanello v. Commonwealth, 206 Va. 640 , 145 S.E.2d 200 (1965).

Receiving stolen goods and larceny considerations. - Even though larceny is a continuing offense and the offense of receiving stolen property is deemed larceny, an accused who receives stolen property knowing it to be stolen may be tried only in those jurisdictions in which the accused is guilty of trespassing against the owner's property right. That offense can only occur in the place where the accused received the property or possessed it. The fiction of larceny as a continuing offense does not create venue where the offense for which the accused is prosecuted occurred outside the jurisdiction of the trial court. Davis v. Commonwealth, 14 Va. App. 709, 419 S.E.2d 285 (1992).

Insufficient evidence to show receipt of stolen property. - Appellate court incorrectly held that defendant "received" stolen property, which was brought home by the father of her child in an effort to support defendant and her child, just by proof that defendant benefited from the proceeds of the sale of this property as the fact that a defendant received a benefit from the stolen property was not an element of receiving stolen property and was insufficient to show that defendant "received" the stolen property. Thus, the trial court's judgment of conviction was plainly wrong and had to be reversed under § 8.01-680 . Whitehead v. Commonwealth, 278 Va. 105 , 677 S.E.2d 265, 2009 Va. LEXIS 62 (2009).

Evidence was insufficient to convict defendant of receiving stolen property because the Commonwealth did not prove beyond a reasonable doubt that another individual took the car with the intent to permanently deprive the victim of the vehicle as the victim's testimony that he gave an individual his car for drugs - without any more information to indicate what was communicated to the other individual - was simply not sufficient to show that the other individual actually stole the vehicle, and that defendant subsequently received stolen property. Marshall v. Commonwealth, No. 1706-15-1, 2017 Va. App. LEXIS 17 (Jan. 24, 2017).

Canons of Ethics (see now the Rules of Professional Conduct) may not conflict with section. - Section 54.1-3915 authorizing the promulgation of the Canons of Ethics (see now the Rules of Professional Conduct) forbids inconsistency with this section. In re Ryder, 263 F. Supp. 360 (E.D. Va.), aff'd, 381 F.2d 713 (4th Cir. 1967).

Instructions held proper. - See Gilland v. Commonwealth, 184 Va. 223 , 35 S.E.2d 130 (1945); Reaves v. Commonwealth, 192 Va. 443 , 65 S.E.2d 559 (1951).

The Commonwealth's election to proceed against the defendant for the greater offenses under the general larceny statutes did not preclude the giving of instructions on, and the conviction of the defendant of, the lesser offenses of larceny by receiving stolen property, since the lesser offenses were included in the major offense of larceny. Cabbler v. Commonwealth, 212 Va. 520 , 184 S.E.2d 781 (1971), cert. denied, 405 U.S. 1075, 92 S. Ct. 1501, 31 L. Ed. 2d 807 (1972).

Evidence held sufficient to sustain conviction of grand larceny. Wright v. Commonwealth, 196 Va. 132 , 82 S.E.2d 603 (1954).

Sufficient evidence. - Where defendant was found in possession of the stolen automobile within hours of its theft, falsely denied any connection to the vehicle, but later admitted acquiring it from a cocaine fiend in exchange for narcotics, such evidence, together with the entire record, was sufficient to establish the guilty knowledge requisite to the conviction. Bynum v. Commonwealth, 23 Va. App. 412, 477 S.E.2d 750 (1996).

Evidence was sufficient to affirm defendant's conviction for receiving stolen property, where it showed that the owner's grandson stole a bracelet and diamond ring worth $2,950 from this grandmother, that he and a friend pawned the stolen jewelry to the defendant, who worked at a pawn shop, for $120, that defendant prepared no paperwork and that he did not file the required information with the police, and that subsequently, the defendant returned the bracelet to the grandmother and charged her nothing, and gave conflicting explanations for his actions. Diaz v. Commonwealth, No. 2987-97-4 (Ct. of Appeals Feb. 16, 1999).

Evidence sustained defendants' convictions where a stolen all terrain vehicle (ATV) was recovered from their property, where defendants admitted possession of the ATV and claimed to have purchased it for less than half of its value from a seller they could not identify, and where defendants could not produce a receipt for the sale. Shaver v. Commonwealth, 30 Va. App. 789, 520 S.E.2d 393 (1999).

Evidence was sufficient to establish that police officer knew vehicle was stolen, and that she aided and abetted her brother's receipt and concealment of vehicle. Barnes v. Commonwealth, No. 2693-98-1 (Ct. of Appeals Mar. 21, 2000).

The evidence was sufficient to support a finding beyond a reasonable doubt that the defendant was aiding in concealing property that he knew to be stolen where the defendant, although possibly not involved in the theft of a vehicle, had occupied the vehicle for a period of hours before being approached by a police officer and, when approached by the officer, falsely told the officer that the vehicle belonged to his sister in a deliberate attempt to conceal from the officer that the car was stolen. Roach v. Commonwealth, No. 2783-98-2, 2000 Va. App. LEXIS 562 (Ct. of Appeals Aug. 1, 2000).

Where after defendant returned a clock to a retailer for cash police found nine other of the retailer's clocks in their original store wrappers in the trunk of defendant's car, evidence was sufficient to support defendant's conviction. Panajotov v. Commonwealth, No. 1054-01-4, 2002 Va. App. LEXIS 330 (Ct. of Appeals June 4, 2002).

Where the pipe that defendant sold to a scrap metal dealer was unique, had recently been stolen, and defendant's hypothesis of innocence was rejected as unreasonable, the evidence of possession of recently stolen goods was sufficient to support a conviction for receiving stolen property. Thomas v. Commonwealth, No. 0738-02-2, 2002 Va. App. LEXIS 738 (Ct. of Appeals Dec. 10, 2002).

Evidence was sufficient to prove defendant intended to permanently deprive the owner of the stolen vehicle he was driving of the vehicle, because larceny was a continuing offense, and evidence that defendant knew the vehicle was stolen and drove it with that knowledge was sufficient to establish this element. Bazemore v. Commonwealth, 42 Va. App. 203, 590 S.E.2d 602, 2004 Va. App. LEXIS 19 (2004).

Evidence was sufficient to show that the camcorder stolen from the victim was the same one defendant pawned and thus, to support his receipt of stolen property conviction. Angelina v. Commonwealth,, 2005 Va. App. LEXIS 233 (June 14, 2005).

Defendant's convictions for grand larceny, in violation of § 18.2-95 , and larceny with the intent to sell or distribute stolen property, in violation of § 18.2-108 , were affirmed because the trial court did not err by admitting into evidence a computer-generated inventory report of stolen pharmaceutical items from a drug store as a business records exception to the hearsay rule. Further, the record reflected sufficient evidence from which the trial court could infer beyond a reasonable doubt that defendant stole merchandise valued at $200 or more; thus, the credible evidence before the trial court was sufficient to convict defendant of grand larceny and larceny with the intent to sell or distribute stolen property. McDowell v. Commonwealth, 48 Va. App. 104, 628 S.E.2d 542, 2006 Va. App. LEXIS 229 (2006).

Defendant's admission to two witnesses that the guns defendant had were stolen, in addition to the special agent's finding that one of the shotguns in defendant's possession had been stolen from a county was sufficient to support the trial court's finding that defendant was guilty of knowingly receiving a stolen shotgun. Cooper v. Commonwealth, 54 Va. App. 558, 680 S.E.2d 361, 2009 Va. App. LEXIS 356 (2009).

Sufficient evidence supported a conviction of felony receipt of stolen property because shortly after a reported theft, which included the victim's watch and several video games and related video game items, the stolen watch was found in defendant's residence, and defendant and another person sold 50 used video games to a resale store, and the store's receipt exactly matched the victim's list of stolen games. Palmer v. Commonwealth,, 2009 Va. App. LEXIS 533 (Dec. 1, 2009).

Trial court was entitled to reject defendant's explanation for his possession of the jewelry; the trial court reasonably could have inferred that defendant either stole the items himself when he had access to the house key or he knew that another person had stolen the items, and thus defendant's conviction was affirmed. Hutton v. Commonwealth,, 2015 Va. App. LEXIS 103 (Mar. 31, 2015).

Evidence was sufficient to support defendant's conviction of receiving stolen property because a rational trier of fact could have concluded that defendant had guilty knowledge that the vehicle he was driving was stolen, as defendant was found in possession of it mere hours after it was stolen, he admitted he knew that his friend did not own the car, and he attempted to flee when the police pulled up to the driver's side of the vehicle. Jones v. Commonwealth, No. 0351-16-1, 2017 Va. App. LEXIS 32 (Ct. of Appeals Feb. 14, 2017).

Trial court did not err in finding the evidence sufficient to support defendant's conviction for receiving stolen property because defendant failed to rebut the Commonwealth's prima facie inference of guilty knowledge; defendant was operating, and in possession of, a stolen pickup truck a mere five days after it was taken from the owner's driveway, and his flight also permitted the factfinder to infer his guilty knowledge. Powell v. Commonwealth, No. 1548-18-1, 2019 Va. App. LEXIS 269 (Ct. of Appeals Nov. 19, 2019).

In an action for receipt of stolen property, the trial court's determination that defendant unlawfully received stolen property was not plainly wrong or without evidence to support it, as the leaf blower was stolen and defendant admitted that he received a leaf blower from the same individual from whom the leaf blower was ultimately recovered only a few days after the leaf blower was stolen from the victim's property. From that admission, the trial court rationally could infer guilty knowledge from the close proximity in time between defendant's possession of the leaf blower and the date that leaf blower was stolen. Edwards v. Commonwealth, No. 0464-20-3, 2020 Va. App. LEXIS 290 (Dec. 1, 2020).

Evidence of value of goods. - Defendant's claim that his conviction for possessing stolen property was improper on the ground that stock certificates had no intrinsic value was defaulted where defendant failed to raise the issue in the trial court. The "ends of justice" exception could not be applied to the defaulted claim because defendant did not suffer a miscarriage of justice in that precedent held that stock certificates had significant value and were readily transferable on the open market, and the Commonwealth established the value of the stock through testimony from the owner of the stock as to the fact that the certificates had a value of approximately $21,000. Wheeler v. Commonwealth, 44 Va. App. 689, 607 S.E.2d 133, 2005 Va. App. LEXIS 8 (2005).

In a case in which defendant was convicted of receiving stolen property, the evidence of value regarding the stolen items ("demo" cell phones) was of such a nature that a factfinder could reasonably conclude that their replacement cost was sufficient to establish that their actual value exceeded the statutory minimum of $200. Since it was reasonable to infer that these phones were new models in good working condition, it followed that evidence of their replacement value closely approximated their actual value. Little v. Commonwealth, 59 Va. App. 725, 722 S.E.2d 317, 2012 Va. App. LEXIS 58 (2012).

Evidence was sufficient to support defendant's conviction for receiving stolen property worth more than $200, where the evidence established that approximately 75 to 80 cartons of cigarettes worth approximately $40 each were stolen and the value of the stolen cigarettes was at least $3,000; that defendant's share of the theft may have only been a few packs did not alter the fact that he received stolen goods worth more than $200. Dellinger v. Commonwealth,, 2012 Va. App. LEXIS 226 (July 10, 2012).

Determination that rental truck was abandoned justified search. - Police properly concluded that a U-Haul truck rented by defendant was abandoned, and a trial court properly refused to suppress the evidence of stolen motorcycles found therein, where, after the police received a tip, it was determined that the rental agreement had expired, the truck was covered with mud and stuck, and was left on the property of defendant's aunt without her knowledge. Defendant had no expectation of privacy in the rental truck at the time and place of the search, because it was deemed abandoned. Thomas v. Commonwealth, No. 0524-03-3, 2004 Va. App. LEXIS 298 (Ct. of Appeals June 29, 2004).

Restitution. - Because defendant's plea agreement to receiving or concealing stolen property in violation of § 18.2-108 specifically waived any right of appeal from the decision of the trial court, not merely the conviction itself, the trial court did not err in ordering defendant to pay restitution pursuant to subsection B of § 19.2-305 . Craig v. Commonwealth,, 2011 Va. App. LEXIS 329 (Nov. 1, 2011).

Circuit court erred in denying defendant's motion for reconsideration because the trial court ordered him to pay $1,500 restitution to the victim for "what was apparently taken" from the victim's home when defendant pleaded guilty to and was convicted of receiving stolen goods - a television, valued at $450 - and an offense that presupposed he was not the thief. Ellis v. Commonwealth, 68 Va. App. 706, 813 S.E.2d 16, 2018 Va. App. LEXIS 125 (2018).

Firearm carried in stolen car. - Defendant was not an authorized user because under the plain meaning of "personal" as used in the statutory exemption for a firearm carried in a personal, private motor vehicle, the stolen vehicle was certainly not one intended "exclusively" for defendant or one subject to his authorized use; by entering a plea of guilty to receiving stolen property, the appellant admitted that he knew the pickup truck was stolen. Eley v. Commonwealth, 70 Va. App. 158, 826 S.E.2d 321, 2019 Va. App. LEXIS 92 (2019).

Applied in Wilson v. Commonwealth, 220 Va. 26 , 255 S.E.2d 464 (1979); Grant v. Commonwealth, 223 Va. 680 , 292 S.E.2d 348 (1982); Fulcher v. Commonwealth, 226 Va. 96 , 306 S.E.2d 874 (1983); Berryman v. Moore, 619 F. Supp. 853 (E.D. Va. 1985).

§ 18.2-108.01. Larceny with intent to sell or distribute; sale of stolen property; penalty.

  1. Any person who commits larceny of property with a value of $1,000 or more with the intent to sell or distribute such property is guilty of a felony punishable by confinement in a state correctional facility for not less than two years nor more than 20 years. The larceny of more than one item of the same product is prima facie evidence of intent to sell or intent to distribute for sale.
  2. Any person who sells, attempts to sell or possesses with intent to sell or distribute any stolen property with an aggregate value of $1,000 or more where he knew or should have known that the property was stolen is guilty of a Class 5 felony.
  3. A violation of this section constitutes a separate and distinct offense.

    (2003, c. 831; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" in subsections A and B.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" in subsections A and B.

CASE NOTES

Subsection B not lesser-included offense of subsection A. - Defendant's conviction under subsection B of § 18.2-108.01 was reversed because (1) defendant was charged with a violation of subsection A of § 18.2-108.01 , and (2) a violation of subsection B of § 18.2-108.01 was not a lesser-included offense of subsection A of § 18.2-108.01 , since subsection A prohibited a grand larceny with the intent to sell or distribute stolen goods, but did not require proof of a sale or distribution, while subsection B prohibited the sale or attempt to sell or distribute stolen property, requiring proof of an actual or attempted sale or distribution, so proof of a violation of subsection A did not encompass a violation of subsection B. Bryant v. Commonwealth,, 2012 Va. App. LEXIS 222 (July 10, 2012).

Double jeopardy. - Because the General Assembly clearly and unambiguously intended that grand larceny and larceny with intent to sell or distribute (in violation of §§ 18.2-95 and 18.2-108.01 , respectively) were to be punished separately, no double jeopardy violation occurred. Tharrington v. Commonwealth, 58 Va. App. 704, 715 S.E.2d 388, 2011 Va. App. LEXIS 296 (2011).

Value of stolen goods not shown. - Commonwealth failed to establish the value, either market value or current value, of the stolen copper pipes, a necessary element of grand larceny, conspiracy to commit grand larceny, larceny of property belonging to another with a value of $200 or more with the intent to sell or distribute such property, and conspiracy to commit larceny with the intent to sell or distribute. Grimes v. Commonwealth, 62 Va. App. 470, 749 S.E.2d 218, 2013 Va. App. LEXIS 302 (2013).

Sufficient evidence did not support defendant's convictions for grand larceny and larceny with the intent to sell or distribute because the evidence did not prove stolen items had a value of $200 or more, as (1) the victim did not testify to value, so value at the time of the theft could not be estimated, and (2) an insurance claim did not suffice, as nothing showed how value was estimated. Lamp v. Commonwealth, No. 0660-18-3, 2019 Va. App. LEXIS 161 (July 16, 2019).

Evidence sufficient to support conviction. - Evidence that defendant's companion stole multiple packages of three different items from a store, permitting a statutory inference that the companion acted with the requisite intent to sell or distribute those items; that defendant was the sole driver of the vehicle where the goods were found and admitted that he let a companion put the stolen items in the vehicle; and that defendant knew the value of the items was greater than $200 was sufficient to support defendant's conviction for the second offense of larceny with intent to sell or distribute stolen property, in violation of § 18.2-108.01 . Bunch v. Commonwealth,, 2010 Va. App. LEXIS 483 (Dec. 14, 2010).

Evidence was sufficient to support defendant's convictions for larceny of a firearm, larceny with intent to sell, and sale of a firearm to a felon. The trial court determined the evidence that defendant stole a handgun from its owner and sold it to a buyer was proved beyond a reasonable doubt, and the record in the case showed that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Ridley v. Commonwealth, No. 0061-16-1, 2016 Va. App. LEXIS 323 (Ct. of Appeals Nov. 29, 2016).

Evidence insufficient to support conviction. - Evidence was insufficient to support defendant's conviction for the first charged offense of larceny with intent to sell or distribute stolen property, in violation of § 18.2-108.01 , where there was no evidence to prove that defendant acted with the requisite intent to sell the items stolen in connection with that offense. Bunch v. Commonwealth,, 2010 Va. App. LEXIS 483 (Dec. 14, 2010).

Reversal of defendant's convictions for grand larceny and larceny with the intent to sell was appropriate because, although defendant took and sold items from a house that was in the name of only one of defendant's siblings, defendant jointly owned the personal property in the house with defendant's siblings. Thus, although defendant's siblings could have brought a civil claim against defendant for taking jointly owned property, a criminal conviction for grand larceny and for larceny with the intent to sell was improper. Russell v. Commonwealth,, 2015 Va. App. LEXIS 343 (Nov. 24, 2015).

CIRCUIT COURT OPINIONS

Commonwealth not required to prove all elements at preliminary hearing. - Assuming that the Commonwealth failed to prove the requisite valuation at the preliminary hearing, that did not constitute a basis to dismiss the larceny with the intent to sell or distribute charge because the Commonwealth was not required to prove all elements of the alleged crime at the preliminary hearing. Commonwealth v. Poe, 90 Va. Cir. 435, 2015 Va. Cir. LEXIS 112 (Norfolk Aug. 17, 2015).

§ 18.2-108.1. Receipt of stolen firearm.

Notwithstanding the provisions of § 18.2-108 , any person who buys or receives a firearm from another person or aids in concealing a firearm, knowing that the firearm was stolen, shall be guilty of a Class 6 felony and may be proceeded against although the principal offender is not convicted.

(1988, c. 358; 1998, c. 821.)

The 1998 amendment deleted " § 18.2-96 or," following "provisions of," deleted former subdivision 1, and deleted the former subdivision 2 designation.

Law review. - For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

CASE NOTES

The purpose and policy of this section is to prohibit the possession of a stolen firearm. This section, in effect, is designed to deter the potential physical harm that could emanate from the acquisition of a weapon by nefarious means. Fields v. Commonwealth, No. 0437-94-3 (Ct. of Appeals Aug. 22, 1995).

The term firearm, as used in this section, refers to actual firearms only. Fields v. Commonwealth, No. 0437-94-3 (Ct. of Appeals Aug. 22, 1995).

Proof by circumstantial evidence. - Although the Commonwealth may prove that the object possessed in violation of this section is an actual firearm by presenting direct forensic evidence of its nature, as with any other element of a crime, the Commonwealth may also assert its proof by circumstantial evidence. Fields v. Commonwealth, No. 0437-94-3 (Ct. of Appeals Aug. 22, 1995).

Offense under section not lesser included offense of grand larceny. - Defendant was indicted for grand larceny pursuant to § 18.2-95 and convicted in a bench trial for larceny of a firearm in violation of this section. The trial judge erroneously ruled that § 18.2-108.1 was a lesser included offense of § 18.2-95 , and the conviction was reversed. Hendrix v. Commonwealth, No. 0625-96-1 (Ct. of Appeals Mar. 18, 1997).

Evidence sufficient. - Defendant's conviction for receiving or concealing a stolen firearm was supported by sufficient evidence as the evidence showed that defendant was arrested in the area where a gun was found in the woods, that his DNA profile was recovered from the firearm, and that defendant came back later the same night, leading to an inference that he did so in order to search for the items he had previously hidden. Defendant's effort to conceal the firearm just prior to his arrest and then retrieve it just after his release permitted the reasonable inference that he knew that the firearm was stolen. Scott v. Commonwealth,, 2010 Va. App. LEXIS 458 (Nov. 23, 2010).

There was sufficient evidence to support defendant's conviction for receiving a stolen firearm including defendant's failure to comply with the officer's request to get out of the car, which would expose the gun, and his refusal to identify the person from whom he received the gun, stating only that he bought it from "a person." Williams v. Commonwealth, 71 Va. App. 462, 837 S.E.2d 91, 2020 Va. App. LEXIS 14 (2020).

Applied in Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999).

§ 18.2-109. Receipt or transfer of possession of stolen vehicle, aircraft or boat.

Any person who, with intent to procure or pass title to a vehicle, aircraft, boat or vessel, which he knows or has reason to believe has been stolen, shall receive or transfer possession of the same from one to another or who shall with like intent have in his possession any vehicle, aircraft, boat or vessel which he knows or has reason to believe has been stolen, and who is not an officer of the law engaged at the time in the performance of his duty as an officer, shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-165; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1; 15 M.J. Receiving Stolen Goods, § 1; 18 M.J. Trespass, § 27.

§ 18.2-110.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to forfeiture of motor vehicles used in commission of certain crimes, see § 19.2-386.16 .

Article 4. Embezzlement and Fraudulent Conversions.

§ 18.2-111. Embezzlement deemed larceny; indictment.

If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading or any other personal property, tangible or intangible, which he shall have received for another or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another or by any court, corporation or company, he shall be guilty of embezzlement. Proof of embezzlement shall be sufficient to sustain the charge of larceny. Any person convicted hereunder shall be deemed guilty of larceny and may be indicted as for larceny and upon conviction shall be punished as provided in § 18.2-95 or § 18.2-96 .

(Code 1950, § 18.1-109; 1960, c. 358; 1975, cc. 14, 15; 1979, c. 349; 1994, c. 555; 2003, c. 733.)

Cross references. - As to computer time, services, etc., as property subject to larceny, see § 18.2-152.1 et seq.

As to indictment for embezzlement, see § 19.2-223 .

The 2003 amendments. - The 2003 amendment by c. 733 inserted the present second sentence and rewrote the third sentence.

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

For a note, "Pleading for Theft Consolidation in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-284 ," see 55 Wash. & Lee L. Rev. 249 (1998).

For annual survey essay, "Rethinking Theft Crimes in Virginia," see 38 U. Rich. L. Rev. 13 (2003).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 118; 2B M.J. Automobiles, § 126; 2C M.J. Aviation, § 1; 6B M.J. Embezzlement, §§ 2-5, 7; 8B M.J. False Pretenses and Cheats, § 1; 9B M.J. Indictments, Informations and Presentments, § 48; 12A M.J. Larceny, §§ 2, 8, 21.

CASE NOTES

I. ELEMENTS OF OFFENSE.

This section is not by itself vague. Statutes are not read in isolation where there exists a judicial gloss on their meaning. Mechling v. Slayton, 361 F. Supp. 770 (E.D. Va. 1973).

Embezzlement is a statutory crime. Moss v. Harwood, 102 Va. 386 , 46 S.E. 385 (1904).

Elements of offense. - A person entrusted with possession of another's personalty who converts such property to his own use or benefit is guilty of the statutory offense of embezzlement. Evans v. Commonwealth, 226 Va. 292 , 308 S.E.2d 126 (1983).

To establish the crime of embezzlement under this section, the Commonwealth must prove that the accused wrongfully appropriated to his or her own use or benefit, with the intent to deprive the owner thereof, the property entrusted or delivered to the accused. However, proof of the misappropriation of property entrusted to the possession of the accused is insufficient, standing alone, to prove that the accused was the embezzler. Zoretic v. Commonwealth, 13 Va. App. 241, 409 S.E.2d 832 (1991).

Embezzlement, larceny distinguished. - Embezzlement and larceny are separate offenses with different elements. The key distinction between embezzlement and larceny is that larceny involves a trespassory taking of property while embezzlement involves a conversion of property received with the owner's consent. Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995).

Larceny and embezzlement are not the same offense for determining time limits under § 19.2-243 . Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995).

Under Virginia law, embezzlement, false pretenses, and larceny are three separate offenses and there is not a general "theft" statute, as there is in most states, that encompasses both types of behavior, and § 18.2-95 defines grand larceny; § 18.2-111 defines embezzlement; and § 18.2-178 defines false pretenses. The Commonwealth of Virginia has always purported to treat the three basic theft crimes of larceny, embezzlement, and false pretenses as separate and distinct offenses, and maintains separate statutes for each crime. United States v. Good, 326 F.3d 589, 2003 U.S. App. LEXIS 7543 (4th Cir. Apr. 22, 2003).

Proof of embezzlement not sufficient to support larceny charge. - Proof of embezzlement does not support a conviction under an indictment alleging larceny. While prior to being amended in 1994, this section permitted a defendant to be "indicted as for larceny," and proof of embezzlement was sufficient to sustain a larceny charge, these provisions were eliminated by the 1994 amendments. By eliminating these provisions, the General Assembly intended to change the law so that proof of embezzlement is no longer sufficient to sustain a larceny charge. Bruhn v. Commonwealth, 35 Va. App. 339, 544 S.E.2d 895, 2001 Va. App. LEXIS 216 (2001), aff'd, 264 Va. 597 , 570 S.E.2d 866 (2002).

General Assembly intended the current version of the statute to preclude conviction under an indictment for larceny on proof of embezzlement. Bruhn v. Commonwealth, 37 Va. App. 537, 559 S.E.2d 880, 2002 Va. App. LEXIS 127 , aff'd, 264 Va. 597 , 570 S.E.2d 866 (2002).

The legislature only recently eliminated the election provision in this section, supporting the conclusion that the legislature's deletion of the election provision was generated by and followed from its amendment making the crime charged and the crime underlying the conviction one and the same. Bruhn v. Commonwealth, 37 Va. App. 537, 559 S.E.2d 880, 2002 Va. App. LEXIS 127 , aff'd, 264 Va. 597 , 570 S.E.2d 866 (2002).

First sentence of § 18.2-111 provides that any person committing the described acts shall be guilty of embezzlement, and the only reference to larceny is in the second sentence, which now states that embezzlement shall be deemed larceny and upon conviction thereof, the person shall be punished as provided in the larceny code sections. Commonwealth v. Bruhn, 264 Va. 597 , 570 S.E.2d 866, 2002 Va. LEXIS 166 (2002).

The 1994 amendments to § 18.2-111 , regarding embezzlement deemed larceny, were not narrowly tailored to eliminate unneeded language, but constituted a complete reformulation of the statute, and most particularly, the elimination of the permissive provision that embezzlement could be "indicted as for larceny" evinces a clear legislative intent to require specificity in the indictment. Commonwealth v. Bruhn, 264 Va. 597 , 570 S.E.2d 866, 2002 Va. LEXIS 166 (2002).

When defendant kept money given to him on behalf of his employer, the evidence was insufficient to convict him of larceny, due to the absence of a trespassory taking, and he could not be considered guilty under § 18.2-111 , which, prior to its amendment, had allowed someone found guilty of the elements of embezzlement to be considered guilty of larceny, but now required that defendant be specifically charged with embezzlement. Commonwealth v. Bruhn, 264 Va. 597 , 570 S.E.2d 866, 2002 Va. LEXIS 166 (2002).

Mental element of the crime of embezzlement is a fraudulent purpose to deprive the owner of his property and to appropriate the same. Bain v. Commonwealth, 215 Va. 89 , 205 S.E.2d 641 (1974).

To constitute the statutory crime of embezzlement it is necessary to prove that an accused wrongfully appropriated to his own use or benefit, with the intent to deprive the owner thereof, the property of another which has been entrusted to him by reason of his employment or office. Revell v. Commonwealth, 215 Va. 708 , 213 S.E.2d 756 (1975).

"Delivered" as an alternative element to "entrusted." - Focus in case law on the entrustment aspect of the crime of embezzlement, § 18.2-111 , did not exclude the alternative element of "delivered" as an option to constitute a completed embezzlement; "delivered" following the disjunctive "or" demonstrated that the General Assembly intended this to be a separate and alternative element from entrusted. Pittman v. Commonwealth, 69 Va. App. 632, 822 S.E.2d 382, 2019 Va. App. LEXIS 1 (2019).

Section 18.2-112 emphasizes the conversion of property by someone in a position of trust who, by virtue of their position, exercises control over the property converted or has custody of the property. Ratliff v. Commonwealth, 20 Va. App. 43, 455 S.E.2d 259 (1995).

Formal fiduciary relationship not necessary. - In order to prove embezzlement, however, the existence of a formal fiduciary relationship is not necessary. Rather, the Commonwealth must prove that the defendant was entrusted with the property of another. In this case, victim entrusted defendant as his insurance agent, with $1,400 to pay over to insurance company. The court found irrespective of § 38.2-1813 that these facts established the required entrustment to sustain defendant's conviction. Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 (1988).

Evidence showed an embezzlement of entrusted funds because, (1) before defendant and an investor signed a shareholders' agreement, the investor did not give defendant discretion to use the funds as defendant pleased, and, (2) after the shareholders' agreement was signed, proof of defendant's formal fiduciary relationship with the investor was unnecessary, as funds were embezzled from the companies. Nordan v. Commonwealth, No. 0238-17-2, 2018 Va. App. LEXIS 194 (July 17, 2018).

Defendant, a real estate subdivision developer, was entitled to strike an embezzlement indictment because the evidence was insufficient to prove the money, which was paid by property owners for road maintenance fees, was the property of another entrusted to defendant. Ware v. Commonwealth, No. 1458-18-2, 2019 Va. App. LEXIS 212 (Oct. 1, 2019).

Requisite intent. - To establish the requisite intent, it is not necessary to show that the defendant wrongfully appropriated the entrusted property to his or her own personal use or benefit. This section only requires that a person wrongfully and fraudulently use, dispose of, conceal or embezzle the property. Therefore, if the defendant diverts funds to benefit another, that action is sufficient to establish the wrongful appropriation of the property to his or her own use. Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 (1988).

Defendant's fraudulent intent to embezzle was shown because defendant's claim of right defense failed, as defendant had no reason to believe defendant had a legitimate claim of right to use funds for personal expenses. Nordan v. Commonwealth, No. 0238-17-2, 2018 Va. App. LEXIS 194 (July 17, 2018).

Proof of embezzlement will sustain charge of larceny. - On an indictment for larceny, proof of embezzlement is sufficient to sustain the charge. Shinn v. Commonwealth, 73 Va. (32 Gratt.) 899 (1879); Pitsnogle v. Commonwealth, 91 Va. 808 , 22 S.E. 351 (1895). But see Bruhn v. Commonwealth, 35 Va. App. 339, 544 S.E.2d 895, 2001 Va. App. LEXIS 216 (2001), aff'd, 264 Va. 597 , 570 S.E.2d 866 (2002).

Because defendant conceded that the evidence demonstrated that defendant was guilty of embezzlement by converting an air conditioning unit to defendant's own use, defendant was guilty of a crime that would sustain a conviction under defendant's indictment for larceny. Bailey v. Commonwealth,, 2015 Va. App. LEXIS 117 (Apr. 7, 2015).

Bona fide conversion is not embezzlement. - The conversion of property under a bona fide claim of ownership is not embezzlement. To constitute embezzlement there must be a fraudulent intent to deprive the owner of his property. Wadley v. Commonwealth, 98 Va. 803 , 35 S.E. 452 (1900); Whitlow v. Commonwealth, 184 Va. 910 , 37 S.E.2d 18 (1946).

Proof of criminal agency. - While proof that property entrusted to the possession of the accused has been misappropriated is not enough, standing alone, to prove that the accused was the embezzler, where there is additional evidence, sufficient to show that the accused acted with the requisite criminal intent and that his conduct was designed to conceal his criminal purpose, a finding that the accused was the criminal agent will be upheld. Smith v. Commonwealth, 222 Va. 646 , 283 S.E.2d 209 (1981).

Employer's retention of withheld taxes can give rise to embezzlement prosecution. - Section 58.1-474 imposes a statutorily-created trust on funds withheld by employers from employees' wages for state income tax liability purposes. Because such funds are held in trust for the benefit of the Commonwealth of Virginia and are not the property of the employer, an employer's retention of such funds can give rise to a criminal prosecution for embezzlement under § 18.2-111 , which requires the fraudulent use, disposition, concealment or embezzlement of money received for another by virtue of one's employment. George v. Commonwealth, 276 Va. 767 , 667 S.E.2d 779, 2008 Va. LEXIS 125 (2008).

Evidence insufficient to impute personal criminal liability to corporate president where the only proof of his involvement with the funds was the stipulation that he was the corporation's president. Rooney v. Commonwealth, 27 Va. App. 634, 500 S.E.2d 830 (1998).

Authority of corporate officer. - Evidence was insufficient to support embezzlement convictions where the Commonwealth failed to show that defendant, as the treasurer of a real estate development corporation, lacked authority to pay defendant for defendant's time and reimburse defendant for expenses incurred in managing the development corporation's property. Stinespring v. Commonwealth,, 2009 Va. App. LEXIS 200 (Apr. 28, 2009).

Failure to return rented automobile. - Defendant came into lawful possession of an automobile through a rental agreement, and under its terms he had an absolute duty to return it at a stipulated time. He failed to return the automobile entrusted to him and gave no explanation of what had happened to it until sometime after his arrest. The failure of defendant to return the vehicle, coupled with the surrounding circumstances, furnished sufficient evidence from which the trial court could conclude that the defendant, after lawfully coming into possession of the automobile, formed an intent to wrongfully and fraudulently convert it to his own use. The requisite intent to commit the offense was inferred from all the facts and circumstances of the case. Stegall v. Commonwealth, 208 Va. 719 , 160 S.E.2d 566 (1968).

Evidence was sufficient to show that the victim had committed embezzlement where the victim had delivered a rental car to defendant for a limited purpose, and defendant's failure to return the car despite repeated requests from the victim and having been advised to do so over the phone by a police officer amply demonstrated fraudulent intent. Pittman v. Commonwealth, 69 Va. App. 632, 822 S.E.2d 382, 2019 Va. App. LEXIS 1 (2019).

Words not imputing crime of embezzlement. - To publish of a chief of police that he "has within the last past twelve months collected certain fines of Officer P., which fines do not appear by the records of the police court to have been reported," does not impute to him the crime of embezzlement. Moss v. Harwood, 102 Va. 386 , 46 S.E. 385 (1904).

Applied in Gwaltney v. Commonwealth, 19 Va. App. 468, 452 S.E.2d 687 (1995); Nestle v. Commonwealth, 22 Va. App. 336, 470 S.E.2d 133 (1996); Commissary Concepts Mgmt. Corp. v. Mziguir, 267 Va. 586 , 594 S.E.2d 915, 2004 Va. LEXIS 66 (2004).

II. PROCEDURE.

Charging embezzlement of several sums as one act. - An indictment which charges the larceny of a specific sum, although the bill of particulars sets forth various and sundry charges of smaller sums aggregating the total charged in the indictment, charges but a single act of embezzlement, and is sufficient. Commonwealth v. Brown, 11 Va. L. Reg. (n.s.) 140 (1925). See § 19.2-223 .

When an indictment charges a statutory offense that is capable of being classified as either a felony or a misdemeanor, the use of the word "feloniously" is not surplusage. Instead, it indicates which grade of the offense is being charged. Thus, the inclusion of the word "feloniously" in defendant's indictment indicated the grand jury's intent to charge the felony grade of embezzlement. Davis v. Commonwealth, No. 2626-95-2 (Ct. of Appeals Apr. 1, 1997).

Finding that variance claim was waived was harmless error. - Although an appeals court erred in concluding that defendant had waived a variance claim, because the record showed that defendant sufficiently raised the issue in the trial court, the error was harmless because no fatal variance existed in defendant's case: (1) defendant was convicted of embezzlement under § 18.2-111 based on evidence showing that he had withheld taxes from his employees' paychecks but he had not paid over the withheld amount to the Commonwealth of Virginia, as required by § 58.1-472 ; (2) defendant claimed a variance existed because his indictments defined the crime as embezzling funds belonging to the Commonwealth, but a jury instruction defined the crime as embezzling funds belonging to the employees; (3) the jury instruction merely identified the funds at issue and did not contradict the indictments' allegation as to the statutory owner of the withheld taxes, i.e., the Commonwealth; and (4) no fatal variance occurred because the ownership of the funds was not a matter for jury determination in defendant's case. George v. Commonwealth, 276 Va. 767 , 667 S.E.2d 779, 2008 Va. LEXIS 125 (2008).

Fatal variance. - an indictment charged defendant with embezzlement from a subcontractor in violation of § 18.2-111 , but the Commonwealth's evidence at trial failed to show that defendant was in a position of trust with the subcontractor, defendant's conviction was reversed due to a fatal variance between the indictment and the evidence. Bowman v. Commonwealth,, 2013 Va. App. LEXIS 41 (Feb. 5, 2013).

Defendant's embezzlement indictments contained no fatal variance by alleging embezzlement from five companies instead of from an investor defendant persuaded to invest in the companies because the evidence showed defendant embezzled from the companies after the investor transferred money to the companies. Nordan v. Commonwealth, No. 0238-17-2, 2018 Va. App. LEXIS 194 (July 17, 2018).

Effect of failure to demand statement from attorney for Commonwealth. - Accused having been indicted for larceny and having failed to exercise his right under this section to demand a statement in writing from the attorney for the Commonwealth of what he intended to rely upon to ask for a conviction, the prosecuting attorney was entitled to ask for a conviction for receiving stolen bonds or for receiving lost bonds, as might be shown by the evidence. Hutchinson v. Commonwealth, 133 Va. 710 , 112 S.E. 624 (1922).

Virginia is authorized by § 19.2-245 to prosecute embezzlement, even though most or all of the illegal acts took place in another state. Keselica v. Commonwealth, 24 Va. App. 115, 480 S.E.2d 756 (1997).

The trial court had jurisdiction over a prosecution for embezzlement where the defendant took a guitar amplifier belonging to the victim with him when he moved from Virginia to West Virginia and then used it as collateral for a loan he secured from a pawn shop in West Virginia, as the crime commenced when the defendant appropriated the amplifier to his own use and removed it, without authorization, to West Virginia. Bescher v. Commonwealth, No. 1489-97-4 (Ct. of Appeals April 14, 1998).

Late motion. - When a motion is made under this section, but not within the time prescribed by the statute, a designation made orally in open court is sufficient and, in the absence of a showing of prejudice, does not result in reversible error. Roberts v. Commonwealth, 230 Va. 264 , 337 S.E.2d 255 (1985).

Jury questions to court. - In an embezzlement prosecution, the trial court did not err in not defining "fraud" upon the request of the jury as the term was a plain word commonly used in general discourse and as a jury instruction had already provided the jury with the definition of a fraudulent act. Wells v. Commonwealth, 60 Va. App. 111, 724 S.E.2d 225, 2012 Va. App. LEXIS 131 (2012).

Jury instructions. - In an embezzlement prosecution, the trial court did not err in failing to instruct the jury that proof of misappropriation of property was insufficient, standing alone, to prove embezzlement as the instruction was merely repetitious, in that the jury had already been instructed on the elements of embezzlement, including the fact that the jury had to find a wrongful and fraudulent conversion in addition to misappropriation. Wells v. Commonwealth, 60 Va. App. 111, 724 S.E.2d 225, 2012 Va. App. LEXIS 131 (2012).

Trial court did not err by refusing one of defendant's proffered jury instructions addressing the abandonment of property as the instruction was not supported by more than a scintilla of evidence. Jalloh v. Commonwealth,, 2014 Va. App. LEXIS 164 (May 6, 2014).

Sentence proper. - Defendant's 10-year sentence for felony embezzlement constituted half of the maximum punishment, was not in excess of the statutory maximum, and could not be reviewed on appeal since embezzlement could result in a larceny conviction under § 18.2-111 , and grand larceny had a maximum sentence under § 18.2-95 of 20 years in prison. Greene v. Commonwealth,, 2008 Va. App. LEXIS 319 (July 15, 2008).

Restitution. - Following defendant's conviction for embezzlement, a trial court abused its discretion by ordering restitution based solely on figures listed in a victim impact statement, without evidence that the amount of loss alleged was actually caused by defendant's crimes. Boley v. Commonwealth, No. 0033-12-2, 2013 Va. App. LEXIS 118 (Ct. of Appeals Apr. 16, 2013).

Double jeopardy. - Double jeopardy argument was rejected because convictions for obtaining money by false pretenses and embezzlement satisfied the Blockburger test since each offense required proof of an additional fact which the other did not. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Preemption by Copyright Act. - Insolvent LLC's embezzlement claim against a software company, which continued to provide services to the LLC's ex-employees, was preempted because the elements did not include an "extra element" that made the claim "qualitatively different" from one for copyright infringement; any additional element related to the scope, and not the nature, of the action. OpenRisk, LLC v. MicroStrategy Servs. Corp., 876 F.3d 518, 2017 U.S. App. LEXIS 22736 (4th Cir. 2017), cert. denied, 138 S. Ct. 1575, 200 L. Ed. 2d 747 (U.S. 2018).

III. EVIDENCE.

Question of intent is for jury. - S., the secretary of a building association, was indicted for the larceny of a check, the property of the association. The check was given to S. in payment of a debt due the association. It was made payable to S., as secretary, and also to bearer. S. cashed the check but did not return or account for the proceeds at the meetings of the association. It was held that it was S.'s duty, not to collect, but to turn the check over to the treasurer of the association, but if S. had accounted for the money, that fact would, of course, show that he had no intention to appropriate the check. S. not having done so, it was a question for the jury, whether he intended to embezzle the check. And to convict him, it was necessary that the jury should be satisfied that this intention existed before, or at the time the check passed into the possession of the bank. Shinn v. Commonwealth, 73 Va. (32 Gratt.) 899 (1879).

Expert testimony. - It was error to allow an expert witness to give his opinion that certain unrecorded receipts were used to replace funds converted by defendant to her own use, for this was tantamount to his expressing an opinion on the issue in the case. Webb v. Commonwealth, 204 Va. 24 , 129 S.E.2d 22 (1963).

Sufficient evidence for inference of wrongful intent. - Appellant's failure to return the computer to victim, his failure to pay her for the computer, his failure to contact her after the contractual sixty day term elapsed, and his failure to provide her with an address or telephone number where he could be reached constituted sufficient evidence from which the trial judge could infer that the appellant wrongfully intended to appropriate the computer to his own use or benefit. Jackson v. Commonwealth, No. 1552-95-2 (Ct. of Appeals Dec. 31, 1996).

There was sufficient evidence that defendants, who operated a restaurant through a limited liability company and failed to pay sales and meals taxes, had the intent to commit embezzlement. The taxes were collected but not remitted to tax authorities; defendants' inability to pay the taxes in a lump sum suggested that they no longer had the money to do so; and records suggested that tax funds had been spent on personal expenses. Neofotis v. Commonwealth,, 2006 Va. App. LEXIS 406 (Aug. 29, 2006).

Value of goods taken from a store was shown to be at least $200, so as to sufficiently prove that the taking was felonious, where the items taken on one day were valued at $142 and there were five other occasions when similar or greater quantities of items were taken from the store by the defendant. Bentley v. Commonwealth, No. 1569-97-2 (Ct. of Appeals May 5, 1998).

Evidence was sufficient to show intent to commit embezzlement where subsequent to his termination of employment, the defendant was asked to return tree climbing equipment on several occasions, the employer made several attempts to collect the equipment at the defendant's home, the defendant lied about the location of the equipment, and the defendant was persuaded to return the equipment only after he was in police custody. Magouirk v. Commonwealth, No. 2768-97-1 (Ct. of Appeals Nov. 24, 1998).

Evidence was sufficient to sustain defendant's conviction of felony embezzlement where $290.29 was missing from a store's receipts on days when she worked, a video camera recorded her stealing money from a cash register and placing it in her sock, and she confessed to taking "$200 or so." Miles v. Commonwealth, No. 2958-00-4, 2002 Va. App. LEXIS 147 (Ct. of Appeals Mar. 12, 2002).

Evidence sufficient to support conviction. - Defendant exercised dominion and control over plaintiff's car contrary to her express directions and the fact finder could have found beyond a reasonable doubt that he did so with the intention of obtaining either a financial benefit for himself or his employer by exacting from plaintiff towage and storage fees or a pecuniary advantage in regard to property damage that plaintiff had sustained; accordingly, the evidence was sufficient to support the embezzlement conviction. Scrivano v. Commonwealth, No. 0656-93-4 (Ct. of Appeals May 3, 1994).

Where defendant, who was president of the corporation, corrupted correct ledger entries to at once reduce by $5,000 monies previously received by the corporation from another and increase by a like sum funds she paid to the corporation in consideration for stock, defendant clearly converted corporate assets to her benefit. The creativity of her stratagem did not diminish her culpability. Carter v. Commonwealth, No. 1489-95-3 (Ct. of Appeals Dec. 31, 1996).

Circumstantial evidence was sufficient to support finding that defendant embezzled deposit money from his employer. Cassell v. Commonwealth, No. 1595-98-2 (Ct. of Appeals Sept. 28, 1999).

Evidence was sufficient to prove that defendant, as person in charge of ordering office supplies for her employer, wrongfully converted inkjet printer cartridges to her own use, and that value of cartridges wrongfully converted was greater than $200. Hillsman v. Commonwealth, No. 1658-98-4 (Ct. of Appeals Dec. 7, 1999).

There was sufficient evidence to support defendant's conviction for embezzlement as the air compressor that he sold from the garage he leased was personal property not real property; the air compressor's connection to the building was merely by wires and a hose, it was easily detached, and it was not essential to the purpose of the building, which was storage. McBride v. Commonwealth, No. 1947-02-4, 2003 Va. App. LEXIS 428 (Ct. of Appeals Aug. 5, 2003).

Evidence that defendant wrote 142 checks on a church's bank account over a 25-month period and used the money for various purposes, including as gifts to others, supported the trial court's judgment that he committed multiple, separate acts of embezzlement, and the trial court did not err when it allowed the Commonwealth to join distinct acts into five separate charges of embezzlement, each covering a period of four, five, or six months, and convicting defendant of all five charges. Bragg v. Commonwealth, 42 Va. App. 607, 593 S.E.2d 558, 2004 Va. App. LEXIS 103 (2004).

Evidence supported defendant's conviction for embezzlement on November 10, 2003, as defendant was short, no transactional errors explained the shortage, and defendant had exclusive access to her cash drawer; defendant had similar shortages in November and February, which reflected a pattern consistent with a January embezzlement that defendant acknowledged. Harris v. Commonwealth,, 2005 Va. App. LEXIS 375 (Oct. 4, 2005).

Conviction of embezzlement was supported by sufficient evidence including a videotape showing defendant, a sales clerk, undercharging a customer for a sales transaction, removing price tags from items during the transaction against store procedure, and removing sensor tags from the items before scanning the items into the register, also against store procedure. Maynor v. Commonwealth,, 2005 Va. App. LEXIS 424 (Oct. 25, 2005).

Trial court did not err in finding defendant guilty, following a bench trial, of computer fraud, computer trespass, embezzlement, and attempted extortion, as the evidence showed that defendant transferred computer files from his computer at work to a third-party server before he was terminated from his position as human resource director, that he used the removed material to threaten the company in an attempt to forgive a loan it had made to him, and that the company established the value of the material removed as required to support convictions on those offenses. DiMaio v. Commonwealth, 46 Va. App. 755, 621 S.E.2d 696, 2005 Va. App. LEXIS 456 (2005).

Convictions of computer fraud and larceny were supported by sufficient evidence, including testimony that the market value of personnel files taken by defendant exceeded $10,000, and unchallenged testimony that market value of form covenants not to compete taken by defendant was between $5,000 and $7,000. DiMaio v. Commonwealth, 272 Va. 504 , 636 S.E.2d 456, 2006 Va. LEXIS 110 (2006).

Evidence was sufficient to support defendant's conviction for general embezzlement under § 18.2-111 for not paying state withholding tax that defendant withheld from defendant's employees in defendant's bank account. Pursuant to § 58.1-474 , defendant was not merely a debtor of the Commonwealth when defendant withheld that money, but, instead, defendant held the property of another because that statute said that defendant held that money in trust for the Commonwealth. George v. Commonwealth, 51 Va. App. 137, 655 S.E.2d 43, 2008 Va. App. LEXIS 12 , aff'd, 276 Va. 767 , 667 S.E.2d 779, 2008 Va. LEXIS 125 (2008).

Evidence supported defendant's embezzlement conviction under § 18.2-111 as: (1) co-defendant and defendant informed a victim that they needed $2,295 to purchase construction materials for a project at the victim's home; (2) the victim gave them a $2,295 check with "Material Payment" on the memo line; (3) defendant cashed the check and failed to purchase the materials; (4) defendant allowed co-defendant to use $800 of the proceeds for van repairs; and (5) defendant failed to account for more than $300 of the check proceeds. Frye v. Commonwealth,, 2008 Va. App. LEXIS 380 (Aug. 12, 2008).

Defendant's evidentiary insufficiency challenge to his § 18.2-111 embezzlement convictions was properly rejected: (1) the Commonwealth of Virginia showed that defendant placed taxes withheld from his employees' wages in the bank account that he used for paying his personal and business expenses, that he failed to pay over the withheld taxes to the Commonwealth as required by § 58.1-472 , and that at times the balance in defendant's bank account was less than the amount of the withheld taxes; (2) defendant argued that § 18.2-111 required proof that he lawfully acquired possession of another's property and then wrongfully converted it to his own use, but that the funds at issue were his own funds and that he had merely a debtor-creditor relationship with the Commonwealth with regard to the withheld taxes; (3) § 58.1-474 was similar to 26 U.S.C.S. § 7501, which the U.S. Supreme Court had held created a statutory trust on behalf of the federal government and deprived employers of any equitable interest that they might claim in taxes that were withheld from their employees' salaries; (4) there was nothing that limited § 58.1-474 to civil matters or prevented the Commonwealth from relying on that statute to criminally prosecute an employer who failed to pay over the withheld taxes; and (5) because § 58.1-474 imposed a statutorily-created trust on the funds that defendant withheld from his employees' wages for state income tax liability purposes, and those funds were considered to be held in trust for the benefit of the Commonwealth and were not defendant's property, his receipt of the withheld taxes could be used to prove that he had received money for another, which was a required element of embezzlement under this section. George v. Commonwealth, 276 Va. 767 , 667 S.E.2d 779, 2008 Va. LEXIS 125 (2008).

Defendant's conviction of embezzlement in violation of § 18.2-111 was supported by the evidence, as a manager of the store where defendant worked testified that store video showed defendant print two money orders, grab them, and walk off. There was no customer at the cash register at the time. McDonald v. Commonwealth,, 2008 Va. App. LEXIS 532 (Dec. 9, 2008).

The appellate court found sufficient evidence to support the conclusion that the seller handed the truck over jointly to defendant and his wife, thereby delivering the truck to defendant for purposes of § 18.2-111 as there was credible evidence that the transaction was viewed as a joint "purchase" by defendant and his wife. Spain v. Commonwealth,, 2012 Va. App. LEXIS 54 (Feb. 28, 2012).

Evidence was sufficient to prove embezzlement as it showed that defendant admitted to stealing her employer's property when she marked down items for a customer without the employer's authorization and when she gave the same customer eleven shirts without any payment. While defendant contended that there was no evidence of fraudulent intent, she told her employer's loss prevention officer that she was stealing and that she knew it was wrong, and she also gave away shirts to the customer in addition to the unauthorized markdowns. Wells v. Commonwealth, 60 Va. App. 111, 724 S.E.2d 225, 2012 Va. App. LEXIS 131 (2012).

Defendant was properly convicted of embezzlement, because the evidence established the wrongful taking of Social Security Administration checks received by defendant for her employer in violation of § 18.2-111 . Leftwich v. Commonwealth, 61 Va. App. 422, 737 S.E.2d 42, 2013 Va. App. LEXIS 37 (2013).

Sufficient evidence supported defendant's embezzlement conviction because (1) money defendant received from defendant's employer's customers did not go into the cash register or the employer's bank account, (2) defendant issued handwritten, instead of cash register, receipts from a receipt book defendant had custody of, which disappeared, and (3) defendant did not share the duty of collecting funds with co-workers. Briggs v. Commonwealth,, 2014 Va. App. LEXIS 134 (Apr. 8, 2014).

There was sufficient evidence to support a conviction for embezzlement where defendant used her employment position to obtain money, and then used those funds to purchase expensive items, return them, and retain the refunds for herself; proof of ownership of the money was not required. Defendant wrongfully took and used monies from the patient fund, to which she had access by virtue of her employment, as part of her ongoing scheme to defraud. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Trial court did not err in convicting defendant of misdemeanor embezzlement because there was ample evidence that she committed the offenses; defendant processed fraudulent returns and was responsible for closing the registers, preparing the bank deposits, and taking the deposits from the store to the bank on the relevant nights, and thus, she knew the registers had to have overages but still managed to "balance" them and have that total match the bank deposits she was to make. Dickerson v. Commonwealth, No. 0821-17-2, 2018 Va. App. LEXIS 129 (May 8, 2018).

Evidence was sufficient to convict defendant of three counts of felony embezzlement because he embezzled money as a result of a series of individual impulses to steal rather than according to a single general impulse; he embezzled 20 times at sporadic intervals from six different cash registers over a 25-day period; and the Commonwealth was not required to prove that defendant acted with a distinct impulse to steal for each count of embezzlement charged, rather, the focus was on whether defendant had a separate impulse to steal each time he took money, and the evidence established that he embezzled according to a series of individual impulses. Kanu v. Commonwealth, No. 1729-19-4, 2020 Va. App. LEXIS 287 (Nov. 24, 2020).

Defendant's embezzlement conviction was supported by evidence that defendant was paid twice for the same periods or time periods that she did not work at all and that the payments were not loans, as claimed by defendant. Floyd v. Commonwealth, No. 1075-20-3, 2021 Va. App. LEXIS 157 (Aug. 17, 2021).

Evidence insufficient to support conviction. - Defendant bookkeeper could not be convicted where the only evidence of a shortage was the fact that the deposits and cash on hand over the period in question did not equal the cash receipts shown on the books. This could have resulted as easily from certain weaknesses in the system of internal control over funds as from any defalcation by defendant. Webb v. Commonwealth, 204 Va. 24 , 129 S.E.2d 22 (1963).

The evidence was insufficient as a matter of law to support a conviction for embezzlement where all that reasonably could be inferred from the evidence was that the defendant had the opportunity to commit the crime and that he fled at a time when wages were payable to him. Simmons v. Commonwealth, 219 Va. 181 , 247 S.E.2d 359 (1978).

The Commonwealth failed to produce sufficient evidence to establish the defendant's criminal intent and agency, where the defendant was a temporary employee who received the envelope containing the employer's funds on her first day on the job, she was given little direction as to what to do with it, and there was no evidence that the defendant knew that the envelope contained money, or that she attempted to hide it or exert control over its contents. Waymack v. Commonwealth, 4 Va. App. 547, 358 S.E.2d 765 (1987).

Where the evidence proved that defendant was not the only employee who had access to the money in the safe, that there were numerous internal discrepancies, and the evidence failed to exclude the reasonable hypothesis that the discrepancy at issue was caused by counting errors committed by the cashiers, proof of guilt was not established beyond a reasonable doubt. Tribuzi v. Commonwealth, 25 Va. App. 289, 487 S.E.2d 870 (1997).

There was insufficient evidence to support the conviction of an assistant manager of a restaurant for embezzlement of monies that she asserted she deposited in a bank's deposit box where: (1) A witness testified that the bank's deposit box had previously malfunctioned in such a way that a deposited bag could be removed, (2) There was no evidence that the defendant attempted to conceal her alleged criminal activity or that she possessed the criminal intent necessary to sustain her conviction, and (3) In her six years of employment with the victim, the defendant had been promoted from counter personnel to assistant manager. Pettway v. Commonwealth, No. 0559-97-2 (Ct. of Appeals June 16, 1998).

Defendant's conviction for embezzlement in violation of § 18.2-111 was supported by sufficient evidence where she worked as a convenience store cashier and was seen on the store's videotape performing a cash refund, although there was no customer present, her explanation that she was correcting an earlier error was not supported by the earlier journal entry, she had failed to follow the proper procedure, including attaching the receipt and getting a manager to approve the refund, and the cash drawer was short. Simerson v. Commonwealth, No. 0637-02-1, 2003 Va. App. LEXIS 145 (Ct. of Appeals Mar. 18, 2003).

Defendant gas station lessee's embezzlement conviction was reversed, as the Commonwealth failed to prove that the money he received from gasoline sales, which he failed to remit to the lessor, was the lessor's property, or that he intended to defraud the lessor. Dove v. Commonwealth, 41 Va. App. 571, 586 S.E.2d 890, 2003 Va. App. LEXIS 502 (2003).

Where a former airline employee obtained flight vouchers without first paying for reserved airline tickets by exploiting a loophole in the airline's reservation system, the evidence was insufficient to sustain two embezzlement convictions because there was no evidence that defendant was entrusted with the airline tickets by virtue of his employment. Brown v. Commonwealth, 56 Va. App. 178, 692 S.E.2d 271, 2010 Va. App. LEXIS 177 (2010).

Evidence was insufficient to support defendant's conviction for embezzlement because the vehicle defendant sold to the victim was not entrusted to her at the time that it was wrongfully appropriated; the vehicle was only officially registered in defendant's name for insurance reasons and was not entrusted to her for any purpose. Holt v. Commonwealth,, 2015 Va. App. LEXIS 238 (Aug. 4, 2015).

CIRCUIT COURT OPINIONS

As related to defamation claim. - Whether plaintiff stole prescription drug pads, overprescribed medication, overdosed patients, and committed prescription drug fraud were matters that were capable of being proven true or false, and if proven false at trial, such statements were defamatory per se, for they imputed unfitness, plus the statement that plaintiff stole prescription drug pads amounted to an accusation of embezzlement, a misdemeanor involving moral turpitude. Compassionate Care Pediatrics, LLC v. Children's Med. Ctr., Ltd., 100 Va. Cir. 6, 2018 Va. Cir. LEXIS 310 (Martinsville Sept. 6, 2018).

Probable cause. - Circuit court found that the directors of a non-stock corporation attempted to sell memberships on the corporation's board and the corporation itself when there was no evidence that either director possessed even implicit authorization to sell any membership to the corporation. Thus, the court found that there was cause to believe that the directors inferentially possessed an intent to defraud and probable cause to believe that the directors violated several Virginia penal statutes. Dogwood Valley Citizen's Ass'n v. Miller,, 2021 Va. Cir. LEXIS 95 (Greene County Apr. 23, 2021).

§ 18.2-111.1.

Repealed by Acts 2004, c. 459.

§ 18.2-111.2. Failure to pay withheld child support; embezzlement.

If any employer withholds money from the pay of his employee for the purpose of paying administrative or court-ordered child support on behalf of the employee and then wrongfully and fraudulently fails to make payment of the money withheld, the employer shall be guilty of embezzlement.

(1999, c. 56.)

§ 18.2-112. Embezzlement by officers, etc., of public or other funds; default in paying over funds evidence of guilt.

If any officer, agent or employee of the Commonwealth or of any city, town, county, or any other political subdivision, or the deputy of any such officer having custody of public funds, or other funds coming into his custody under his official capacity, knowingly misuse or misappropriate the same or knowingly dispose thereof otherwise than in accordance with law, he shall be guilty of a Class 4 felony; and any default of such officer, agent, employee or deputy in paying over any such funds to the proper authorities when required by law to do so shall be deemed prima facie evidence of his guilt.

(Code 1950, § 18.1-110; 1960, c. 358; 1973, c. 15; 1975, cc. 14, 15; 1979, c. 585.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 118; 5A M.J. Counties, § 43; 6B M.J. Embezzlement, §§ 2-4, 7-9, 11.

CASE NOTES

This section deals with public officials in possession of public funds and requires that they do not knowingly misuse or misappropriate such funds, or knowingly use them in a way not in accordance with the law, regardless of whether they were prompted by a criminal intent. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

Section does not create an express trust for 11 U.S.C.S. § 523(a)(4) purposes. A trust imposed ex maleficio is insufficient to give rise to the existence of a fiduciary relationship for the purposes of bankruptcy law. On the basis of these considerations, no fiduciary relationship exists between the Commonwealth and the debtors which would warrant nondischargeability in bankruptcy under 11 U.S.C.S. § 523(a)(4) as a defalcation in fiduciary duty. Virginia Comm'n of Game & Inland Fisheries v. Myers, 52 Bankr. 901 (Bankr. E.D. Va. 1985).

Section is directed against fraudulent and felonious misuse. - This section is directed against the fraudulent and felonious misuse and misappropriation of public funds by an officer of the state, and not against the mere failure to pay over such funds within the required time. Robinson v. Commonwealth, 104 Va. 888 , 52 S.E. 690 (1906).

This section emphasizes the conversion of property by someone in a position of trust who, by virtue of their position, exercises control over the property converted or has custody of the property. Ratliff v. Commonwealth, 20 Va. App. 43, 455 S.E.2d 259 (1995).

An essential element of this section is the custody of the funds that are misappropriated. Ratliff v. Commonwealth, 20 Va. App. 43, 455 S.E.2d 259 (1995).

"Custody." - If a person charged with an offense under this section does not physically possess the property, the element of "custody" requires proof that the person had the authority to dispose of or distribute the funds. Ratliff v. Commonwealth, 20 Va. App. 43, 455 S.E.2d 259 (1995).

Knowingly misusing funds is embezzlement. - If a person "knowingly" misuses or misappropriates money which has once come into his hands as treasurer, or knowingly disposes thereof otherwise than in accordance with law, he is guilty of the embezzlement thereof under this section. Aetna Cas. & Sur. Co. v. Board of Supvrs., 160 Va. 11 , 168 S.E. 617 (1933).

The essence of the crime is the scienter, the guilty knowledge of the defendant that the payments obtained by her for overtime were a misuse or misappropriation of public funds, or a disposition of them not in accordance with law. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

The proof required is that the defendant used or disposed of the public funds in her charge knowing that such use or disposition was a misuse or misappropriation of the funds or not in accordance with the law. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

Fraudulent intent is not necessary. - While the detention of public funds may be done with fraudulent intent, fraudulent intent is not a necessary element of the offense created by this section. If the forbidden act or acts are done "knowingly," a violation occurs. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

Money may be detained without being misappropriated. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

The detention of the money is one of the elements constituting the offense, but it does not constitute the offense itself. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

A peace bond is in the nature of a conditional fine. As such, and until the condition is satisfied and the payor becomes entitled to reimbursement, the cash is moneys belonging to the state and its embezzlement by a public officer is a violation of this section. Healy v. Commonwealth, 213 Va. 325 , 191 S.E.2d 736 (1972).

Words not imputing to officer larceny or embezzlement. - To publish of a chief of police that he "has within the last past twelve months collected certain fines of Officer P., which fines do not appear by the records of the police court to have been reported," does not impute to him the crime of larceny or embezzlement. Moss v. Harwood, 102 Va. 386 , 46 S.E. 385 (1904).

Not necessary to prove embezzlement of whole sum charged. - On a charge of embezzlement of a given sum it is not necessary to prove the embezzlement of the whole sum charged in the indictment. Robinson v. Commonwealth, 104 Va. 888 , 52 S.E. 690 (1906).

Indictment held sufficient. - An indictment which charges that a justice of the peace, by virtue of his office, had the custody of five dollars of the public funds of the state, which he was required to pay to the clerk of the circuit court of his county, and that he feloniously and knowingly did misuse and misappropriate, and feloniously and knowingly disposed of the same otherwise than by paying the same over to said clerk, in accordance with law, and concluding with a charge of larceny and embezzlement, is a sufficient indictment for a felony under this section. Robinson v. Commonwealth, 104 Va. 888 , 52 S.E. 690 (1906).

Evidence sufficient to support conviction. - Evidence was sufficient to support defendant's conviction for knowingly misappropriating funds that came into her custody and possession by virtue of her position as an employee of the city's school system, as it established that she received a check based on the community college's purchase of an ad for her school's football program and that she knowingly misappropriated the funds because the check was made payable to the city's high school, yet she endorsed the check with her name, and deposited the funds into her personal account at a credit union rather than give the check to the school bookkeeper as her duties required her to do. Gunn v. Commonwealth, 272 Va. 580 , 637 S.E.2d 324, 2006 Va. LEXIS 116 (2006).

Evidence held sufficient to support conviction of deputy treasurer for embezzlement of funds from county treasurer's office. Orr v. Commonwealth, 2 Va. App. 371, 344 S.E.2d 627 (1986).

Jury instruction. - Defendant's conviction was reversed for error in instructing the jury that they should find her guilty if she caused the overtime payments to be made "knowing that such expenditures of public funds were not authorized" by the town council or manager. Crider v. Commonwealth, 206 Va. 574 , 145 S.E.2d 222 (1965).

§ 18.2-112.1. Misuse of public assets; penalty.

  1. For purposes of this section, "public assets" means personal property belonging to or paid for by the Commonwealth, or any city, town, county, or any other political subdivision, or the labor of any person other than the accused that is paid for by the Commonwealth, or any city, town, county, or any other political subdivision.
  2. Any full-time officer, agent, or employee of the Commonwealth, or of any city, town, county, or any other political subdivision who, without lawful authorization, uses or permits the use of public assets for private or personal purposes unrelated to the duties and office of the accused or any other legitimate government interest when the value of such use exceeds $1,000 in any 12-month period, is guilty of a Class 4 felony.
  3. Any county, city, or town shall be permitted to adopt a local ordinance that provides that any non-full-time officer, agent, employee, or elected official of the county, city, or town who, without lawful authorization, uses or permits the use of public assets for private or personal purposes unrelated to the duties and office of the accused or any other legitimate government interest when the value of such use exceeds $1,000 in any 12-month period is guilty of a Class 1 misdemeanor.

    (2008, cc. 738, 755; 2014, c. 321.)

The 2014 amendments. - The 2014 amendment by c. 321 added subsection C.

§ 18.2-113. Fraudulent entries, etc., in accounts by officers or clerks of financial institutions, joint stock companies or corporations; penalty.

If any officer or clerk of any financial institution, joint stock company or corporation makes, alters or omits to make any entry in any account kept in or by such financial institution, company or corporation, with intent, in so doing, to conceal the true state of such account, or to defraud such financial institution, company or corporation, or to enable or assist any person to obtain money to which he was not entitled, such officer or clerk shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-111; 1960, c. 358; 1975, cc. 14, 15; 1996, c. 77; 2003, c. 740.)

The 1996 amendment substituted "savings institution" for "savings and loan association" and substituted "institution" for "association" preceding "or company."

The 2003 amendments. - The 2003 amendment by c. 740 substituted "any financial institution, joint stock company or corporation makes, alters or omits to make" for "any bank, savings institution or joint stock company make, alter or omit to make," "kept in or by such financial institution, company or corporation, with intent" for "kept in such bank, or by such company, with intent" and "such financial institution, company or corporation, or to enable" for "such bank, institution or company, or to enable."

Michie's Jurisprudence. - For related discussion, see 8B M.J. Falsifying accounts, §§ 2, 3.

CASE NOTES

This section is not directed against false entries, but against any entry made with intent to conceal, etc., so an indictment which charges that the accused made a false and fraudulent entry goes further than this section. But where such words are used they are not surplusage, and the Commonwealth is bound to prove a false and fraudulent entry. Mitchell v. Commonwealth, 141 Va. 541 , 127 S.E. 368 (1925).

§ 18.2-114.

Repealed by Acts 2004, c. 459.

§ 18.2-114.1. When collection of money by commissioner, etc., larceny.

If any special commissioner or receiver, appointed by any court to collect money, and required by law, or decree of the court, to give bond before collecting the same, shall collect such money, or any part thereof, without giving such bond, and fail properly to account for the same, he shall be deemed guilty of larceny of the money so collected and not so accounted for.

(1978, c. 718.)

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judicial Sales & Rentings, § 98; 15 M.J. Receivers, § 22.

§ 18.2-115. Fraudulent conversion or removal of property subject to lien or title to which is in another.

Whenever any person is in possession of any personal property, including motor vehicles or farm products, in any capacity, the title or ownership of which he has agreed in writing shall be or remain in another, or on which he has given a lien, and such person so in possession shall fraudulently sell, pledge, pawn or remove such property from the premises where it has been agreed that it shall remain, and refuse to disclose the location thereof, or otherwise dispose of the property or fraudulently remove the same from the Commonwealth, without the written consent of the owner or lienor or the person in whom the title is, or, if such writing be a deed of trust, without the written consent of the trustee or beneficiary in such deed of trust, he shall be deemed guilty of the larceny thereof.

In any prosecution hereunder, the fact that such person after demand therefor by the lienholder or person in whom the title or ownership of the property is, or his agent, shall fail or refuse to disclose to such claimant or his agent the location of the property, or to surrender the same, shall be prima facie evidence of the violation of the provisions of this section. In the case of farm products, failure to pay the proceeds of the sale of the farm products to the secured party, lienholder or person in whom the title or ownership of the property is, or his agent, within ten days after the sale or other disposition of the farm products unless otherwise agreed by the lender and borrower in the obligation of indebtedness, note or other evidence of the debt shall be prima facie evidence of a violation of the provisions of this section. The venue of prosecutions against persons fraudulently removing any such property, including motor vehicles, from the Commonwealth shall be the county or city in which such property or motor vehicle was purchased or in which the accused last had a legal residence.

This section shall not be construed to interfere with the rights of any innocent third party purchasing such property, unless such writing shall be docketed or recorded as provided by law.

(Code 1950, § 18.1-116; 1960, c. 358; 1975, cc. 14, 15; 1986, c. 484.)

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

Research References. - Virginia Forms (Matthew Bender). No. 8A-1019 Provision -- Place of Use; No. 8A-1106 Provision -- Payment of Proceeds of Sale by Consignee, et seq.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 130; 3C M.J. Commercial Law, § 99; 19 M.J. Venue, § 14.

CASE NOTES

Fraud contemplated by this section is an act by a debtor intended to deprive a secured creditor of his collateral by appropriating it to the debtor's own use. Bain v. Commonwealth, 215 Va. 89 , 205 S.E.2d 641 (1974).

The fraud contemplated is an act by a debtor intended to deprive a secured creditor of his collateral by appropriating it to the debtor's own use and is to be distinguished from the definition of fraud in civil cases which requires a misrepresentation of fact intended to induce another to part with something of value. Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff'd, 237 Va. 354 , 377 S.E.2d 405, cert. denied, 493 U.S. 845, 110 S. Ct. 137, 107 L. Ed. 2d 97 (1989).

Phrase "without the consent of the . . . lienor . . ." modifies the phrase "fraudulently remove the same from the state" as well as the phrase "sell, pledge, pawn . . . or otherwise dispose of the property." Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff'd, 237 Va. 354 , 377 S.E.2d 405, cert. denied, 493 U.S. 845, 110 S. Ct. 137, 107 L. Ed. 2d 97 (1989).

Fraud directed against lienor or title holder. - This section requires proof that fraudulent intent be directed against the lienor or person in whom the title is rather than against an innocent purchaser or subsequent creditor. Bain v. Commonwealth, 215 Va. 89 , 205 S.E.2d 641 (1974).

Section violated whether fraudulent intent formed within or outside state. - Where the secured property is disposed of without the consent of the lienor by the debtor appropriating it to his own use, a fraudulent disposal has occurred within the meaning of the statute, regardless of whether the fraudulent intent is formed within or outside the boundaries of Virginia. Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff'd, 237 Va. 354 , 377 S.E.2d 405, cert. denied, 493 U.S. 845, 110 S. Ct. 137, 107 L. Ed. 2d 97 (1989).

Proof that fraudulent intent occurred within state not required. - Nothing in the language of the statute requires proof that the fraudulent intent to dispose or the actual disposal of the secured property occurred within the boundaries of Virginia. Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff'd, 237 Va. 354 , 377 S.E.2d 405, cert. denied, 493 U.S. 845, 110 S. Ct. 137, 107 L. Ed. 2d 97 (1989).

Failure to return collateral upon demand by lienholder is prima facie evidence of violation of this section. Where such a failure occurs, even the existence of written permission to remove the collateral is immaterial under this section, as the creditor need not show the lack of such permission to make out a prima facie case. Lewis v. First Nat'l Bank, 645 F. Supp. 1499 (W.D. Va. 1986), aff'd, 818 F.2d 861 (4th Cir. 1987).

Debtor's sale of collateral. - Even though a bank's security interest was unrecorded and therefore unperfected as to third parties, the bank was entitled to rely upon and enforce its security agreement against defaulting debtor, and as debtor's subsequent sale deprived the bank of its right to sell the collateral upon default, the bank's security interest comes within the purview of this section. Bain v. Commonwealth, 215 Va. 89 , 205 S.E.2d 641 (1974).

Where the evidence proved that defendant sold the equipment in question in contravention of the lease and that he was aware that the lease terms required written consent before the equipment could be sold, this was sufficient to convict under this statute. Compton v. Commonwealth, 22 Va. App. 751, 473 S.E.2d 95 (1996).

Evidence that defendant removed property from Virginia in violation of a security agreement and that he transferred the property to a dealer in Pennsylvania in exchange for a credit on property he purchased from that dealer was sufficient to prove fraudulent conversion in violation of this section. Landes v. Commonwealth, 37 Va. App. 710, 561 S.E.2d 37, 2002 Va. App. LEXIS 180 (2002).

Failure to leave forwarding address or to contact creditor waived right to deny that demand made. - Even assuming that the debtor did not actually receive the demand for return of the collateral, her failure to leave a functional forwarding address or contact the creditor constituted a waiver of her right to deny that the demand was made. Lewis v. First Nat'l Bank, 645 F. Supp. 1499 (W.D. Va. 1986), aff'd, 818 F.2d 861 (4th Cir. 1987).

Proceedings under this section not extreme or outrageous where probable cause exists. - The initiation of criminal proceedings against someone under this section with probable cause is not extreme or outrageous as a matter of law. If it were, any prosecution under this section that was terminated would be grounds for a suit, and the statute would be essentially useless, as lienholders would fear being liable for infliction of emotional distress. Lewis v. First Nat'l Bank, 645 F. Supp. 1499 (W.D. Va. 1986), aff'd, 818 F.2d 861 (4th Cir. 1987).

Jurisdiction proper in county where lien created and failure to obtain consent to disposal occurred. - Jurisdiction was proper in Botetourt County, where the lien was created and the failure to obtain the bank's consent to the disposal of its collateral both occurred in Botetourt County and only the formation of the intent to deprive the bank of its collateral and the actual disposal of the tractor occurred outside of this state. The harm which this section is intended to prevent is the economic injury caused to the secured party by defendant's actions and the infringement of the lien created in Virginia. Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff'd, 237 Va. 354 , 377 S.E.2d 405, cert. denied, 493 U.S. 845, 110 S. Ct. 137, 107 L. Ed. 2d 97 (1989).

§ 18.2-115.1. Unlawful sublease of a motor vehicle; penalty.

  1. It shall be unlawful for any person, for profit in the course of business, who is not a party to a lease contract, conditional sales contract, or security agreement which transfers any right or interest in a motor vehicle, knowing that the motor vehicle is subject to a lease, security interest or lien, to:
    1. Obtain or exercise control over a motor vehicle and sell, transfer, assign, or lease the motor vehicle to another person without the prior written authorization of the secured creditor, lessor, or lienholder if he receives compensation or other consideration for the sale, transfer, assignment, or lease of the motor vehicle; or
    2. Assist, cause, or arrange the actual or purported sale, transfer, assignment, or lease of a motor vehicle to another person without the prior written authorization of the secured creditor, lessor, or lienholder if he receives compensation or other consideration for assisting, causing, or arranging the sale, transfer, assignment, or lease of the motor vehicle.
  2. A violation of this section is punishable as a Class 3 misdemeanor.
  3. This section shall not apply to any employee acting upon request of his employer.
  4. This section shall not apply if the entire indebtedness owed under or secured by the lease, conditional sales contract, or security agreement through the date of payment is paid in full and received by the lessor or secured party within thirty days after the sale, transfer, assignment, or lease of the motor vehicle.

    (1990, c. 844; 1993, c. 608.)

§ 18.2-116. Failure to pay for or return goods delivered for selection or approval.

If any person shall solicit and obtain from any merchant any goods, wares or merchandise for examination or approval, and shall thereafter, upon written demand, refuse or fail to return the same to such merchant in unused condition, or to pay for the same, such person so offending shall be deemed guilty of the larceny thereof. But the provisions of this section shall not apply unless such written demand be made within five days after delivery, and unless the goods, wares or merchandise shall have attached to them or to the package in which they are contained a label, card or tag containing the words, "Delivered for selection or approval."

(Code 1950, § 18.1-117; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-117. Failure of bailee to return animal, aircraft, vehicle or boat.

If any person comes into the possession as bailee of any animal, aircraft, vehicle, boat or vessel, and fail to return the same to the bailor, in accordance with the bailment agreement, he shall be deemed guilty of larceny thereof and receive the same punishment, according to the value of the thing stolen, prescribed for the punishment of the larceny of goods and chattels. The failure to return to the bailor such animal, aircraft, vehicle, boat or vessel, within five days from the time the bailee has agreed in writing to return the same shall be prima facie evidence of larceny by such bailee of such animal, aircraft, vehicle, boat or vessel.

(Code 1950, § 18.1-163; 1960, c. 358; 1975, cc. 14, 15.)

Research References. - Virginia Forms (Matthew Bender). No. 8A-1001 Contract Creating a Bailment.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 126; 2C M.J. Aviation, § 1; 12A M.J. Larceny, § 8; 12A M.J. Livery Stables, § 1; 18 M.J. Trespass, § 2.

CASE NOTES

Legislative intent. - The label affixed by the legislature to the crime defined in this section, larceny after bailment, clearly indicates an intent to create a new statutory crime, incorporating some elements of the existing crime of larceny, defined as it was at common law. United States v. Parker, 522 F.2d 801 (4th Cir. 1975).

Virginia has not enacted a statutory definition of larceny, looking instead to the common law. United States v. Parker, 522 F.2d 801 (4th Cir. 1975).

This section does not codify the common-law crime of larceny but rather creates a statutory offense for failing to return the property in accordance with the terms of the agreement. Ketchum v. Commonwealth, 12 Va. App. 258, 403 S.E.2d 382 (1991).

The failure of this section to require mens rea or scienter is not fatal to its constitutionality. - A claim that a statute on its face contains no requirement of mens rea or scienter is no ground for holding the statute unconstitutional, since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved. Maye v. Commonwealth, 213 Va. 48 , 189 S.E.2d 350 (1972).

Mens rea or scienter must be proven. - This section implicitly requires proof of an element of mens rea or scienter, even though the requirement does not appear in the statute. Molash v. Commonwealth, 3 Va. App. 243, 348 S.E.2d 868 (1986).

Proof of intent to permanently deprive owner of his or her property is not required to sustain a conviction under this section. Ketchum v. Commonwealth, 12 Va. App. 258, 403 S.E.2d 382 (1991).

Vagueness of section. - This section is not so vague as to deny to the average individual of ordinary intelligence fair notice that certain actions are proscribed. United States v. Parker, 522 F.2d 801 (4th Cir. 1975).

Elements of crime. - The first sentence of this section clearly sets forth two elements of the conduct prohibited thereunder: (1) the actor must be a bailee of an animal, aircraft, vehicle, boat or vessel; and (2) he must fail to return such possession in accordance with the terms of the bailment agreement. United States v. Parker, 522 F.2d 801 (4th Cir. 1975).

Elements of common-law larceny which are consistent with a taking by a bailee, such as the intent at the time of taking to permanently deprive another of his possession, would be incorporated in the crime, while elements not consistent therewith, such as a trespassory taking, would not be. United States v. Parker, 522 F.2d 801 (4th Cir. 1975).

The distinction between larceny after bailment and the common-law offense of larceny is that in the former it is not necessary to allege or prove that the original taking was trespassory. Maye v. Commonwealth, 213 Va. 48 , 189 S.E.2d 350 (1972).

The statutory crime of "larceny after bailment" does not require a trespassory taking of the personal property of another. United States v. Closkey, 411 F.2d 1212 (4th Cir. 1969).

Where there was no written agreement between bailors and bailees and the bailors of the property had taken possession of it within two days of its abandonment by the bailees, that portion of the statute establishing a prima facie case was not applicable. Molash v. Commonwealth, 3 Va. App. 243, 348 S.E.2d 868 (1986).

Intent. - Nowhere in this section is there an explicit requirement of criminal intent. United States v. Parker, 522 F.2d 801 (4th Cir. 1975).

Despite defendant's claims to the contrary, the circumstantial evidence, particularly defendant's conduct, established that he intended to permanently deprive victim of car. Yancey v. Commonwealth, No. 2647-01-2, 2002 Va. App. LEXIS 428 (Ct. of Appeals July 30, 2002).

Defendant convicted under improper statute. - Defendant's failure to return a lease vehicle was within the purview of § 18.2-117 , not § 18.2-118 , the statute under which he was convicted, and thus, defendant was convicted under the wrong statute. Since, based on the facts of the case, it was legally impossible for defendant to violate § 18.2-118 , a manifest injustice occurred. Masika v. Commonwealth, 63 Va. App. 330, 757 S.E.2d 571, 2014 Va. App. LEXIS 160 (2014).

Application of prima facie presumption held proper. - Trial court properly applied the prima facie presumption under § 18.2-117 that defendant had a fraudulent intent to commit larceny for failure to return a rental car to the rental car company because the evidence showed that the car was not recovered until more than five days after the date it should have been returned. Further, the defendant's evidence did not rebut the presumption because it failed to explain why he did not return the car between the date that it was due and the date that he was hospitalized, which was four days after the due date, and defendant provided no dates or documentation to verify that he had been hospitalized at another hospital due to a suicide attempt during the four-day period. Newport v. Commonwealth,, 2005 Va. App. LEXIS 152 (Apr. 19, 2005).

Fraudulent intent held not established. - Where defendants, who were long-distance truck drivers employed to haul freight, argued that they merely left the trailer at a truck stop, told its rightful possessor of its location, and went home to Minnesota, there was no evidence that excluded the hypothesis that defendants became disillusioned with their employment and merely left the trailer where it was when they decided to quit, and the testimony that they notified the lawful possessor of the trailer of its location when they quit, was not contradicted by any other witness, fraudulent intent on the part of the defendants was not established. Molash v. Commonwealth, 3 Va. App. 243, 348 S.E.2d 868 (1986).

Probable cause found. - There was probable cause for plaintiff's arrest, imprisonment, and subsequent prosecution for failure to return a rental vehicle, because plaintiff's failure to return his rental car within five days after the date set forth in his rental agreement was prima facie evidence of a violation under the terms of the statute. Curtis v. Devlin,, 2005 U.S. Dist. LEXIS 6703 (E.D. Va. Apr. 19, 2005).

Sufficiency of evidence. - Evidence was sufficient to find defendant guilty of violating § 18.2-117 where the car owner testified that defendant kept her car for more than a day longer than agreed upon. Since the owner's testimony was not inherently incredible, the trial court's finding that the car owner was more credible than defendant controlled. James v. State,, 2007 Va. App. LEXIS 449 (Dec. 18, 2007).

Sufficient evidence supported defendant's conviction of failing to return bailed property because (1) proof of intent to permanently deprive the owner was not required, and (2) defendant's required fraudulent intent was proved, as the statute said a failure to return the property within five days of a due date showed such intent prima facie, a trial court did not have to believe defendant's testimony that defendant thought a car defendant rented had been paid for, and a rational jury could infer such intent from defendant's failure to communicate with the rental car company after the due date and conclude defendant did not rebut the statutory inference of fraudulent intent. Reed v. Commonwealth, 62 Va. App. 270, 746 S.E.2d 81, 2013 Va. App. LEXIS 223 (2013).

§ 18.2-118. Fraudulent conversion or removal of leased personal property.

  1. Whenever any person is in possession or control of any personal property, by virtue of or subject to a written lease of such property, except property described in § 18.2-117 or in the Virginia Lease-Purchase Agreement Act (§ 59.1-207.17 et seq.), and such person so in possession or control shall, with intent to defraud, sell, secrete, or destroy the property, or dispose of the property for his own use, or fraudulently remove the same from the Commonwealth without the written consent of the lessor thereof, or fail to return such property to the lessor thereof within 30 days after expiration of the lease or rental period for such property stated in such written lease, he shall be deemed guilty of the larceny thereof.
  2. The fact that such person signs the lease or rental agreement with a name other than his own, or fails to return such property to the lessor thereof within 30 days after the giving of written notice to such person that the lease or rental period for such property has expired, shall be prima facie evidence of intent to defraud. For purposes of this section, notice mailed by certified mail and addressed to such person at the address of the lessee stated in the lease, shall be sufficient giving of written notice under this section.
  3. The venue of prosecution under this section shall be the county or city in which such property was leased or in which such accused person last had a legal residence.
  4. The court shall order a person found guilty of an offense under this section to make restitution as the court deems appropriate to the lessor. Such restitution may include (i) the cost of repairing such property; (ii) if the property is not returned or cannot reasonably be repaired, the actual value of such property; and (iii) any reasonable loss of revenue by the lessor resulting from the fraudulent conversion or removal of such property.

    (Code 1950, § 18.1-117.1; 1966, c. 474; 1975, cc. 14, 15; 1978, c. 675; 2013, c. 536; 2014, c. 56.)

The 2013 amendments. - The 2013 amendment by c. 536 substituted the subsection A through C designators for the former subsection (a) through (c) designators and substituted "30 days" for "ten days" in subsection B.

The 2014 amendments. - The 2014 amendment by c. 56 inserted "or in the Virginia Lease-Purchase Agreement Act ( § 59.1-207.17 et seq.)" in subsection A; and added subsection D.

Law review. - For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

CASE NOTES

Construction. - Because there was no ambiguity to resolve within the statute, lenity had no place in the court's analysis. Sharp v. Commonwealth,, 2015 Va. App. LEXIS 348 (Nov. 24, 2015).

Because defendant presented no evidence that the legislative amendment was intended to interpret or clarify the original act, the presumption that legislative amendments were presumed as intended to effect a change in the law remained unrebutted; the 2014 amendment effected a change, not a clarification, to the scope of the statute. Sharp v. Commonwealth,, 2015 Va. App. LEXIS 348 (Nov. 24, 2015).

Value not proven. - Defendant's conviction for grand larceny was improper because the Commonwealth failed to prove that the value of the jackhammer that defendant rented was at least $200. The only evidence of the jackhammer's value that the trial court found persuasive, which was its original purchase price and replacement cost, was insufficient to prove its worth. Byrum v. Commonwealth,, 2010 Va. App. LEXIS 211 (May 18, 2010).

Fraudulent intent. - "Ends of justice" exception in Va. Sup. Ct. R. 5A:18 did not apply to allow the appellate court to review defendant's contention that fraudulent intent under § 18.2-118 had not been proven because the Commonwealth was not entitled to the prima facie showing of "fraudulent intent." Defendant failed to raise this issue with the trial court, and the record did not contain evidence affirmatively proving that defendant had no intent to defraud; instead, the evidence clearly indicated that defendant leased a television set, that he did not pay for it, and that he failed to return it or contact the store to explain his failure. McDowell v. Commonwealth, 57 Va. App. 308, 701 S.E.2d 820, 2010 Va. App. LEXIS 453 (2010).

Trial court erred in convicting defendant of fraudulent conversion of leased personal property because, although defendant breached defendant's written lease agreement with a rental company, the evidence failed to prove beyond a reasonable doubt that defendant intended to defraud the company by failing to abide by the terms of the agreement. The evidence showed only that defendant failed to make rental payments or to return a leased television set to the rental company after defendant failed to make the lease payments required by the lease agreement. Bert v. Commonwealth,, 2011 Va. App. LEXIS 318 (Oct. 18, 2011).

Defendant was properly convicted of failing to return leased property because she possessed the requisite fraudulent intent to withhold the property; defendant was clearly aware of her obligations under the lease-purchase agreement, and despite her promises to the contrary, she made no effort to pay for the furniture or to return it to the store. Sharp v. Commonwealth,, 2015 Va. App. LEXIS 348 (Nov. 24, 2015).

Evidence was sufficient to convict defendant of fraudulently failing to return rental property because, based on the terms of the rental agreement, the demand letter, and the circumstantial evidence showing defendant's evasive and uncommunicative conduct, a reasonable factfinder could conclude that he had fraudulent intent in failing to return the victim's property within 30 days after expiration of the rental period. The express terms of the rental agreement required return of the equipment on September 18, 2018, defendant had rented the equipment with an incorrect name, address, and phone number, and the equipment was returned nearly a year later. Sarka v. Commonwealth,, 2021 Va. App. LEXIS 28 (Feb. 23, 2021).

Notice sufficient. - Notice requirement of subsection B of § 18.2-118 was satisfied by a store sending defendant a notice to his apartment that his failure to return rented property might result in prosecution. Adding the apartment number and the city to the address stated in the lease agreement did not violate the notice requirements as the address was even more accurate than the one in the agreement. McDowell v. Commonwealth, 57 Va. App. 308, 701 S.E.2d 820, 2010 Va. App. LEXIS 453 (2010).

Failure to return rental property conviction under § 18.2-118 was supported by sufficient evidence. While the date testified to by the store manager as the date that defendant rented the equipment was only a day before the sheriff recovered the property, the manager's testimony that defendant had the property for a couple of months and that substantial rent charges accrued as a result of defendant's failure to return the equipment supported the trial court's resolution of the conflict in the evidence. Commonwealth v. McNeal, 282 Va. 16 , 710 S.E.2d 733, 2011 Va. LEXIS 129 (2011).

Defendant convicted under improper statute. - Defendant's failure to return a lease vehicle was within the purview of § 18.2-117 , not § 18.2-118 , the statute under which he was convicted, and thus, defendant was convicted under the wrong statute. Since, based on the facts of the case, it was legally impossible for defendant to violate § 18.2-118 , a manifest injustice occurred. Masika v. Commonwealth, 63 Va. App. 330, 757 S.E.2d 571, 2014 Va. App. LEXIS 160 (2014).

Evidence sufficient. - Defendant's conviction for fraudulently converting rental property, in violation of § 18.2-118 , was supported by evidence that defendant entered into a rental agreement for a television, only made the initial payment, and falsely said the television was broken and that she had thrown it away, when the television had been pawned for $300. Haley v. Commonwealth, No. 1268-12-3, 2013 Va. App. LEXIS 182 (Ct. of Appeals June 11, 2013).

Lease-purchase agreement defendant signed constituted a lease under the statute, and thus, withholding personal property in violation of the terms of that agreement violated the statute. Sharp v. Commonwealth,, 2015 Va. App. LEXIS 348 (Nov. 24, 2015).

Trial court did not err in denying appellant's motion to strike the evidence as insufficient to establish fraudulent intent under § 18.2-118 where the evidence showed that a certified letter was sent to the address he listed on a lease agreement, appellant failed to make any payments beyond what was necessary to gain possession of the television, and appellant listed a wrong phone number and address on the rental form and failed to return the rented television within 30 days of the letter. Outsey v. Commonwealth,, 2015 Va. App. LEXIS 360 (Dec. 8, 2015).

Trespass conviction did not preclude burglary conviction. - Defendant's trespass conviction did not preclude the conviction for statutory burglary because the record supported the trial court's finding that he entered the apartment with the intent to commit another misdemeanor, destruction of property, in addition to trespass; the day after an angry outburst, defendant forced entry into the victim's apartment and damaged personal property inside. Green v. Commonwealth, 72 Va. App. 193, 843 S.E.2d 389, 2020 Va. App. LEXIS 174 (2020).

Article 5. Trespass to Realty.

§ 18.2-119. Trespass after having been forbidden to do so; penalties.

If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian, or the agent of any such person, or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by or at the direction of such persons or the agent of any such person or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8 , 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103 , and after having been served with such order, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of §§ 18.2-132 through 18.2-136 .

(Code 1950, § 18.1-173; 1960, c. 358; 1975, cc. 14, 15; 1982, c. 169; 1987, cc. 625, 705; 1991, c. 534; 1998, cc. 569, 684; 2011, c. 195.)

Cross references. - For provision authorizing the owner, lessee, custodian, or person lawfully in charge of property to designate the local law-enforcement agency as a person lawfully in charge of the property for the purpose of enforcing trespass violations, see § 15.2-1717.1 .

As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

The 1998 amendments. - The 1998 amendment by c. 569, in the first sentence, deleted "or § " following "16.1-278.15" and inserted "19.2-152.8, 19.2-152.9 , or § 19.2-152.10 ."

The 1998 amendment by c. 684, in the first sentence, inserted "16.1-253.4," deleted "or § " preceding "16.1-279.1, and inserted "19.2-152.8, 19.2-152.9 or § 19.2-152.10 ."

The 2011 amendments. - The 2011 amendment by c. 195 twice inserted "or the agent of any such person" and inserted "or at the direction of."

Law review. - For brief discussion of "sit-ins," see 47 Va. L. Rev. 1464 (1961). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 27 Property Actions. § 27.14 Trespass. Friend.

Virginia Forms (Matthew Bender). No. 9-219 Notice of Trespass.

Michie's Jurisprudence. - For related discussion, see 11B M.J. Labor, § 9; 18 M.J. Surface Transportation Systems, Streets, Highways, etc., § 2; 18 M.J. Trespass, §§ 1, 2, 27.

CASE NOTES

Section is constitutional. - There is nothing in this section when properly applied which infringes upon any privilege or right guaranteed by the federal Constitution. Hall v. Commonwealth, 188 Va. 72 , 49 S.E.2d 369 (1948), appeal dismissed, 335 U.S. 875, 69 S. Ct. 240, 93 L. Ed. 418 (1949).

The increased punishments provided by the 1958 and 1960 amendments to this section, and the addition of § 18.2-120 , may fairly be said to have been enacted with an eye to the "sit-in." The legislature's motive alone, however, could not invalidate the statute. Besides, the criminal elements of the present statutes are no more expansive than were those of the 1934 trespass statute. Henderson v. Trailway Bus Co., 194 F. Supp. 423 (E.D. Va. 1961), aff'd sub nom. Robinson v. Hunter, 374 U.S. 488, 83 S. Ct. 1875, 10 L. Ed. 2d 1044 (1963).

Defendant's conviction for violating the housing authority's trespass policy did not violate his right to freedom of intimate association, as his alleged right of intimate association did not permit him to commit intentional acts of criminal trespass on the housing authority's privately-owned property. Commonwealth v. Hicks, 267 Va. 573 , 596 S.E.2d 74, 2004 Va. LEXIS 75 (2004).

First Amendment right of association and right to due process not violated. - The issuance of trespass notices barring two defendants from coming onto the premises of a public housing complex and the subsequent prosecution of those defendants for trespassing on the premises did not violate the defendants' First Amendment right of association or their right to due process. Collins v. Commonwealth, 30 Va. App. 443, 517 S.E.2d 277 (1999).

Violation of Interstate Commerce Act. - Where a bus terminal and restaurant were operated as an integral part of an interstate bus company's transportation service for interstate passengers, a conviction under this section of a black patron who refused to leave the portion of the restaurant reserved for white patrons was reversed as a violation of the Interstate Commerce Act. Boynton v. Virginia, 364 U.S. 454, 81 S. Ct. 182, 5 L. Ed. 2d 206 (1960).

Housing Authority's trespass procedure not overbroad. - In reversing the Virginia Supreme Court, the United States Supreme Court held that the Richmond Redevelopment and Housing Authority's trespassing policy, which barred people with no "legitimate business or social purpose" from entering, was not overbroad. Virginia v. Hicks, 539 U.S. 113, 123 S. Ct. 2191, 156 L. Ed. 2d 148, 2003 U.S. LEXIS 4782 (2003), reversing Commonwealth v. Hicks, 264 Va. 48 , 563 S.E.2d 674 (2002).

Trial court's entry of trespass conviction against defendant was upheld, as defendant's argument that the trespass policy was vague, had to be rejected; defendant received a hand-delivered letter, which he signed and acknowledged, that directed him not to return to the housing authority's property and he had been convicted pursuant to that statute on two prior occasions for criminal trespass on the housing authority's property, which meant the statute and trespass policy were not vague. Commonwealth v. Hicks, 267 Va. 573 , 596 S.E.2d 74, 2004 Va. LEXIS 75 (2004).

Section protects property rights. - The only purpose of this section is to protect the rights of the owners or those in lawful control of private property. Hall v. Commonwealth, 188 Va. 72 , 49 S.E.2d 369 (1948); Price v. Commonwealth, 209 Va. 383 , 164 S.E.2d 676 (1968).

In Hall v. Commonwealth, 188 Va. 72 , 49 S.E.2d 369 (1948), the statement that the only purpose of this section is to protect the rights of the owners or those in lawful control of private property was made in the context of a controversy whether the trespass statute could be applied, consistently with First and Fourth Amendment guarantees, to the use of passageways in a privately owned apartment building and the case did not involve the applicability of the trespass statute to property owned by the Commonwealth. Johnson v. Commonwealth, 212 Va. 579 , 186 S.E.2d 53 (1972).

Trespass not lesser-included offense of statutory burglary. - Trespass in violation of this section is not a lesser-included offense of § 18.2-91 and a trial court lacks the authority to convict for trespass under an indictment charging breaking and entering even if the accused fails to object. Shifflett v. Commonwealth, No. 2702-99-2, 2000 Va. App. LEXIS 843 (Ct. of Appeals Dec. 28, 2000).

When defendant was indicted for burglary, in violation of § 18.2-89 , he could not validly be convicted of trespass, in violation of § 18.2-119 , as statutory trespass was not a lesser-included offense of common-law burglary, unless he acquiesced in such a conviction, and counsel's statements leading the trial court to believe it could convict defendant of trespass if it found the evidence insufficient to convict him of burglary, were such an acquiescence. Freeman v. Commonwealth, No. 0796-02-3, 2003 Va. App. LEXIS 331 (Ct. of Appeals June 10, 2003).

Conviction under City of Alexandria Code § 13-1-33(a) compared. - Despite defendant's claim that the trial court erred in admitting an improperly authenticated document purportedly authorizing the police to bar persons from the City of Alexandria Redevelopment Housing Authority property, given the overwhelming evidence of defendant's guilt, including his admission that he was barred from said property, but traversed it anyway in an attempt to flee police, his trespassing conviction under City of Alexandria, Va., Code § 13-1-33(a), which substantially tracked the language of § 18.2-119 , was upheld on appeal. Thus, any error committed by the trial court in admitting the authorization document into evidence did not substantially influence the court's verdict, and was therefore, harmless. Cheeks v. City of Alexandria,, 2007 Va. App. LEXIS 261 (June 26, 2007).

Willful trespass required. - As a penal statute, the Virginia criminal trespass statute has been uniformly construed to require a willful trespass. Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988).

On land under bona fide claim of right. - One cannot be convicted of trespass when one enters or stays upon the land under a bona fide claim of right. Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988).

A good faith belief that one has a right to be on the premises negates criminal intent. Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988).

A bona fide claim of right is a sincere, although perhaps mistaken, good faith belief that one has some legal right to be on the property. The claim need not be one of title or ownership, but it must rise to the level of authorization. Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988).

Defendant was entitled to a jury instruction on the claim of right defense to criminal trespass because he testified that he believed, based on information from the police officer who issued him the trespass notice, that his barment from the premises had lapsed, and two witnesses corroborated his account of the statements of the officer issuing the trespass notice. O'Banion v. Commonwealth, 30 Va. App. 709, 519 S.E.2d 817 (1999).

This section applies to publicly owned property other than thoroughfares. Johnson v. Commonwealth, 212 Va. 579 , 186 S.E.2d 53, cert. denied, 407 U.S. 925, 92 S. Ct. 2458, 32 L. Ed. 2d 812 (1972).

The "thoroughfares" to which the case of Johnson v. Commonwealth , 212 Va. 579 , 186 S.E.2d 53 (1972) reaffirms that this section does not apply, is limited to those ways or passages designated for general public access. Miller v. Commonwealth, 10 Va. App. 472, 393 S.E.2d 431 (1990).

Definition of "public thoroughfare." - Whether the particular means of ingress to and egress from the particular public building at issue was a way or passage designated for general public access was a question for the jury on the facts of this case; nevertheless, the trial court did not err in refusing to give defendant's proffered jury instruction regarding the definition of a public thoroughfare because it was not a proper statement of the law. Artis v. Commonwealth,, 2014 Va. App. LEXIS 323 (Sept. 23, 2014).

Alley was not "thoroughfare." - Alley located on Housing Authority property, which was government property and had been clearly marked to deter trespassing, as to which the Housing Authority had an express agreement with the police to enforce the policy that access to the alley be restricted and not open it to the general public, and which had been vacated by municipal ordinance, was not intended for public use and therefore was not a "thoroughfare." Thus, this section operated to bar defendant's use of the alley. Miller v. Commonwealth, 10 Va. App. 472, 393 S.E.2d 431 (1990).

Section applies to a building which is owned by the Commonwealth. Johnson v. Commonwealth, 212 Va. 579 , 186 S.E.2d 53, cert. denied, 407 U.S. 925, 92 S. Ct. 2458, 32 L. Ed. 2d 812 (1972).

This section applies only to places where a person goes "without authority of law," meaning property not at the time affected with a public interest. Racial segregation on property in private demesne has never in law been condemnable. Indeed, the occupant may lawfully forbid any and all persons, regardless of his reason or their race or religion to enter or remain upon any part of his premises which are not devoted to a public use. Assurance of this right is the entire and sole aid of this section. Henderson v. Trailway Bus Co., 194 F. Supp. 423 (E.D. Va. 1961), aff'd sub nom. Robinson v. Hunter, 374 U.S. 488, 83 S. Ct. 1875, 10 L. Ed. 2d 1044 (1963).

Authority to exclude. - Plain language of Va. Code Ann. § 15.2-1717.1 provides a method for granting authority to local law enforcement to exclude individuals from going or remaining upon property over which that local law-enforcement agency would not otherwise have control under Va. Code Ann. § 18.2-119 . Artis v. Commonwealth,, 2014 Va. App. LEXIS 323 (Sept. 23, 2014).

Trespass on Indian reservation. - Evidence supported defendant's conviction of trespassing on the Mattaponi Indian Tribe's reservation where the Mattaponi Tribal Council, at a regular tribal meeting, voted to bar defendant from the reservation, and the Supreme Court of Virginia had recognized that the Tribal Council was the governmental body of the sovereign Mattaponi Indian Tribe; Va. Acts 1894, c. 845, and its amended version, Acts 1896, c. 843, were not intended to provide the sole method by which the Mattaponi Indian Tribe could expel or forbid an individual from coming upon the reservation. Custalow v. Commonwealth, 43 Va. App. 71, 596 S.E.2d 95, 2004 Va. App. LEXIS 235 (2004).

Student protestors. - When actions of student protestors are measured against the standards of conduct immunized by the First Amendment and it is clear that their actions are not immunized since their conduct materially disrupted classwork, created substantial disorder and materially interfered with the rights of others, this section is properly invoked. Pleasants v. Commonwealth, 214 Va. 646 , 203 S.E.2d 114 (1974).

As the duly authorized agent of the school board, the principal is vested with the inherent power to revoke, for good cause, the right of any student to remain upon school property when that student, alone or in concert with others, disrupts regular school activities or the maintenance of good order and discipline, and the student thus has no "authority of law" to remain on school premises. Pleasants v. Commonwealth, 214 Va. 646 , 203 S.E.2d 114 (1974).

Necessity no defense to trespass on clinic to distribute anti-abortion literature. - Necessity is not a defense to a charge of trespassing on the premises of a women's medical clinic in order to give anti-abortion literature to patients considering an abortion since there were reasonable and legal alternatives to their violation of the law. Buckley v. City of Falls Church, 7 Va. App. 32, 371 S.E.2d 827 (1988).

The trial court did not err in finding that the defendant was not in the housing development under a legitimate claim of right; he did not live there, was not visiting a resident there, and had been forbidden by the "No Trespassing" signs from being there. Thus, the evidence was sufficient to support the trespass conviction. Boone v. Commonwealth, No. 2575-95-2, 1997 Va. App. LEXIS 56 (Ct. of Appeals Feb. 4, 1997).

Conviction of minister of Jehovah's Witnesses under this section for entering an apartment house and calling on the tenants contrary to a rule of the apartment house, after being informed of the rule and warned to desist, was affirmed in Hall v. Commonwealth, 188 Va. 72 , 49 S.E.2d 369 (1948), appeal dismissed, 335 U.S. 875, 69 S. Ct. 240, 93 L. Ed. 418 (1949).

"No trespassing" signs prohibt public from access. - Statute contains no language that can be interpreted as allowing individuals to ignore a posted "No Trespassing" sign and enter portions of another's property simply because those portions are accessible to the public and open to vehicular traffic; "No Trespassing" signs conspicuously posted at every entrance to a privately owned apartment complex can only be interpreted as explicitly prohibiting the public from accessing the entire complex, including the privately owned roads located therein. Kim v. Commonwealth, 293 Va. 304 , 797 S.E.2d 766 (2017).

Nothing in the statute indicates that a "No Trespassing" sign needs to be directed at a specific form of traffic in order to be effective; rather, the plain language of the statute dictates that a "No Trespassing" sign posted in a location where it may be reasonably seen prohibits any and all unauthorized entry onto the entirety of the premises. Kim v. Commonwealth, 293 Va. 304 , 797 S.E.2d 766 (2017).

Statute makes no distinction as to the manner in which a person "goes upon the lands, buildings or premises" of another; thus, a posted "No Trespassing" sign must be interpreted to prohibit any and all means by which a person may "go upon the lands, buildings or premises" of another. Kim v. Commonwealth, 293 Va. 304 , 797 S.E.2d 766 (2017).

Entering posted property. - Entering property of Dan River Mills where signs forbidding such entry were posted was a violation of this section. Hubbard v. Commonwealth, 207 Va. 673 , 152 S.E.2d 250 (1967).

Proof that authorized party posted "No Trespassing" sign required. - Evidence was insufficient to prove that defendant committed trespass in violation of § 18.2-119 because the Commonwealth was required to prove beyond a reasonable doubt that the property was posted by one of the enumerated parties having authority to do so, but the Commonwealth presented no evidence regarding who posted "no trespassing" signs on the property, and, therefore, the record contained no indication whether that person or persons had authority to post the property under § 18.2-119 ; the plain language of § 18.2-119 requires proof, as an element of the crime of trespass, that oral or written notice of the proscription against entry be given or a "no trespassing" sign be posted by the owner, lessee, custodian, or other person lawfully in charge of the property, or by the holder of an easement or other right-of-way who was authorized to post such a sign by the instrument creating that person's interest in the property, and proof of the existence of "no trespassing" signs on the property alone is insufficient to satisfy the elements of trespass set forth in § 18.2-119. Baker v. Commonwealth, 278 Va. 656 , 685 S.E.2d 661, 2009 Va. LEXIS 97 (2009).

Right of police officer to remain on premises. - The right of a police officer to remain in a poolroom should be distinguished from the right of an ordinary citizen to remain on premises after being asked to leave. Parker v. McCoy, 212 Va. 808 , 188 S.E.2d 222 (1972).

A police officer has a law-given right, rather than an owner-consensual right, in the line of his duty to enter a business establishment to observe at least what is not hidden from view in the establishment. And an officer has the same right to remain on the premises until he has discharged his duty, despite the owner's request that he leave. Parker v. McCoy, 212 Va. 808 , 188 S.E.2d 222 (1972).

Sufficiency of evidence. - The evidence was sufficient to support the defendant's conviction where the victim, his estranged girlfriend, testified that, when she failed to respond to the defendant knocking on her doors and window, the defendant entered her trailer without her permission; although the victim suffered from memory loss, paranoia, and bi-polar disorder due to an earlier car crash, her testimony to the relevant events did not seem inherently incredible and the trial court had been entitled to weigh these facts in determining the victim's credibility. Whitby v. Commonwealth, No. 1343-99-1, 2000 Va. App. LEXIS 551 (Ct. of Appeals July 25, 2000).

Where an officer observed appellant at a motel after visiting hours, sufficient evidence supported appellant's trespassing conviction because the fact finder could reasonably conclude that appellant was lying when appellant claimed not to have seen any of the signs prohibiting patrons from having visitors after 10:00 p.m. Yancey v. Commonwealth,, 2008 Va. App. LEXIS 29 (Jan. 15, 2008).

Defendant's conviction for trespassing was proper, as the evidence was found to be sufficient. The trial court, as the finder of fact, rejected defendant's argument that defendant entered a property owner's property in a good-faith attempt to visit defendant's children. Wyatt v. Commonwealth,, 2008 Va. App. LEXIS 203 (Apr. 29, 2008).

Defendant's conviction for trespassing under § 18.2-119 was appropriate, in part because he had informed the university registrar of his intention to withdraw from the university after completing his course work for the spring semester and he was aware that he was not permitted to occupy the apartment beyond May 31, 2009. However, he continued to occupy the apartment on June 1, 2009. Maciel v. Commonwealth, No. 2440-09-1, 2011 Va. App. LEXIS 9 (Jan. 11, 2011).

Where defendant was stopped outside a convenience store, the officer possessed a reasonable suspicion that defendant was trespassing because (1) the convenience store was in a high-crime area, (2) the particular location and manner in which defendant and another man were standing suggested that they may have been engaged in the specific, ongoing crime of trespassing, (3) defendant's "evasive behavior" upon seeing the officer's patrol car was a pertinent factor, and (4) defendant took a path that led defendant past the convenience store's front door but made no effort to enter. United States v. Bumpers, 705 F.3d 168, 2013 U.S. App. LEXIS 1075 (4th Cir. 2013).

In a trespass case, the evidence was sufficient to prove that an authorized person barred defendant from police headquarters property. Artis v. Commonwealth,, 2014 Va. App. LEXIS 323 (Sept. 23, 2014).

Intent required. - Although this section silent as to intent, the case law in Virginia has uniformly construed the statutory offense of criminal trespass to require a willful trespass and, as such, one who enters or stays upon another's land under a bona fide claim of right cannot be convicted of trespass. O'Banion v. Commonwealth, 33 Va. App. 47, 531 S.E.2d 599, 2000 Va. App. LEXIS 536 (2000), overruled in part by Harris v. Commonwealth, 274 Va. 409 , 650 S.E.2d 89 (2007), which held that a box cutter does not meet the definition of the item "razor" enumerated in § 18.2-308 A.

Defendant's argument that the housing authority's policy against criminal trespass was vague and therefore could not be applied to him, had to be rejected, as the Commonwealth had to prove that defendant meant to violate the statute because the statute had an intent requirement and it was able to do so. Commonwealth v. Hicks, 267 Va. 573 , 596 S.E.2d 74, 2004 Va. LEXIS 75 (2004).

Defendant lacked requisite intent. - Where the undisputed evidence established that defendant was on island under an agreement with construction company that in exchange for his services as night watchman, defendant could stay on the island and the construction company would build him a shelter, defendant established a bona fide claim of right as a matter of law, and because he acted on that good faith belief, he could not have had the requisite intent for a criminal trespass conviction. That his belief may have been wrong or that he could have been evicted in a civil action did not render his conduct criminal. Without the criminal intent he committed no criminal trespass. Reed v. Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988).

Police lacked probable cause to believe defendant was trespassing at a housing project. - Defendant's evasive answers to a police sergeant's questions inside a housing project tenant's apartment did not provide the police officers with probable cause to arrest defendant for trespassing because before questioning defendant, the police sergeant had resolved any doubt as to defendant's status as a trespasser. The tenant had already related that she knew defendant, had allowed appellant into her apartment, and had previously let him into her apartment to use her telephone; therefore, defendant was no longer a suspected trespasser. Parham v. Commonwealth,, 2005 Va. App. LEXIS 381 (Oct. 4, 2005).

Probable cause for arrest. - Evidence that no trespassing signs were posted in the area, that defendant failed to provide the name or address for the tenant he claimed to be visiting, that defendant was very nervous, and that the apartment complex had been having significant problems with trespassing, drugs, and violence provided probable cause to arrest defendant for trespassing. Commonwealth v. Brown,, 2016 Va. App. LEXIS 20 (Jan. 26, 2016).

Investigative stop of defendant. - Police officer, in light of the officer's training and experience, had reasonable suspicion to detain defendant briefly to investigate whether defendant was trespassing because the officer testified that defendant had walked past a large no-trespassing sign on motel property in a high crime area several times before the officer approached defendant, defendant admitted to the officer that defendant was not staying at the motel, and defendant fled when the officer got out of a police car to approach defendant on foot. Roberts v. Commonwealth, No. 1265-16-2, 2017 Va. App. LEXIS 319 (Dec. 12, 2017).

Search incident to lawful arrest. - Search of defendant which showed that defendant had a bag of marijuana in defendant's pants pocket was permissible as a search incident to a lawful arrest since defendant was forbidden to be on the property from which defendant had been removed shortly before police were informed that defendant was back on the property, and, thus, defendant was committing a trespass; accordingly, police officer could frisk defendant for weapons, especially since one officer noticed that defendant had a bulge in defendant's right front pocket and was entitled to pat defendant down for the officer's own personal safety. McCracken v. Commonwealth, 39 Va. App. 254, 572 S.E.2d 493, 2002 Va. App. LEXIS 696 (2002).

Upon supplying defendant's personal information (defendant's name, date of birth, and social security number) to the dispatcher and learning that defendant had been previously warned to stay off the property, the police officer possessed probable cause to believe that defendant was violating § 18.2-119 ; accordingly, the officer was justified in arresting defendant and in searching defendant incident to that arrest, and the trial court did not err in denying the motions to suppress and to strike the evidence. Wyatt v. Commonwealth, No. 2722-01-1, 2002 Va. App. LEXIS 781 (Ct. of Appeals Dec. 31, 2002).

Although defendant presented evidence that provided a defense to a charge of trespass under this section, the evidence did not defeat a police officer's belief of guilt; as a result, the trial court properly denied defendant's motion to suppress. McClam v. Commonwealth, No. 3349-02-2, 2004 Va. App. LEXIS 208 (Ct. of Appeals May 4, 2004).

When an officer "arrested" defendant for trespass, he did not use the correct procedure when he placed her in custody, rather than issuing her a summons, because trespass was a class 1 misdemeanor, but, if there was a statutory violation, it did not require that evidence seized from defendant in a search incident to her arrest be suppressed, because exclusion of evidence was not an available remedy for a statutory violation, where no constitutional violation occurred. Coppedge v. Commonwealth, No. 2920-03-1, 2005 Va. App. LEXIS 23 (Ct. of Appeals Jan. 18, 2005).

Police sergeant did not have probable cause to believe defendant was trespassing at a posted housing project complex even though he claimed defendant "darted" around the building and appeared to be in flight from the unmarked police car. Although the sergeant testified that after defendant saw the unmarked police vehicle, he "darted" to the rear of the building, there was no evidence of flight or "darting" in the record; furthermore, the sergeant did not see defendant outside the apartment; instead, his knowledge was limited to what the state trooper told him, and the trooper never indicated that defendant "darted." Parham v. Commonwealth,, 2005 Va. App. LEXIS 381 (Oct. 4, 2005).

Denial of defendant's motion to suppress was proper as defendant was arrested for trespassing under § 18.2-119 , and the Fourth Amendment's exclusionary rule did not require the exclusion of the evidence seized from defendant during a search incident to a valid arrest for a misdemeanor violation for which § 19.2-74 required release on a summons. Simmons v. Commonwealth,, 2008 Va. App. LEXIS 360 (July 29, 2008).

Evidence supported defendant's conviction of possession of cocaine with intent to distribute in violation of § 18.2-248 as defendant was aware of, had control of, and consciously possessed the cocaine found on the front passenger floorboard of a car defendant had driven on a suspended license, after defendant was arrested for trespassing under § 18.2-119 as: (1) the officers saw a clear plastic bag on the front passenger floorboard, which contained 41.1 grams of cocaine, worth about $4,100; (2) the packaging of the cocaine was consistent with "mid-level" distribution; (3) 10 grams of marijuana, $209 in cash, and a cell phone were discovered on defendant; (4) the cash was organized in a manner consistent with the sale of drugs; and (5) neither the registered owner nor any previous occupant would likely have left the cocaine sitting unsecured in the car. Simmons v. Commonwealth,, 2008 Va. App. LEXIS 360 (July 29, 2008).

Applied in Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045 (4th Cir. 1980); Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376 (1984); Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985); McAfee v. Deale, 20 F. Supp. 2d 943 (E.D. Va. 1998).

OPINIONS OF THE ATTORNEY GENERAL

Polling places on school property. - Because there is no conflict between this section and §§ 24.2-307 , 24.2-310 B, and 24.2-310.1 , requiring polling places to be located in public buildings such as public school buildings, an individual prohibited from entering school property may enter the portion of that property designated as a polling place solely for the purpose of casting his vote. See opinion of Attorney General to The Honorable James M. Shuler, Member, House of Delegates, 05-093 (2/8/06).

Migrant worker access to legal aid representatives. - Representatives of a legal aid organization may access and provide information about legal resources and services to migrant workers living in a migrant labor camp owned or controlled by the workers' employer, whether or not formally appointed or retained as counsel by any particular individual or group. Legal aid representatives who enter migrant labor camp property for such purposes do so under a bona fide claim of right, and one who enters another's property under a bona fide claim of right has not committed a willful trespass under § 18.2-119 . See opinion of Attorney General to The Honorable David L. Doughty, Jr., Sheriff, Northampton County, 18-044, 2019 Va. AG LEXIS 5 (2/22/19).

§ 18.2-119.1. Validity of signs forbidding trespass; penalty.

If any person knowingly and intentionally posts No Trespassing signs on the land of another without the permission of a person authorized to post such signs on that land, he shall be guilty of a Class 3 misdemeanor.

(1999, c. 274.)

§ 18.2-120. Instigating, etc., such trespass by others; preventing service to persons not forbidden to trespass.

If any person shall solicit, urge, encourage, exhort, instigate or procure another or others to go upon or remain upon the lands, buildings, or premises of another, or any part, portion or area thereof, knowing such other person or persons to have been forbidden, either orally or in writing, to do so by the owner, lessee, custodian or other person lawfully in charge thereof, or knowing such other person or persons to have been forbidden to do so by a sign or signs posted on such lands, buildings, premises or part, portion or area thereof at a place or places where it or they may reasonably be seen; or if any person shall, on such lands, buildings, premises or part, portion or area thereof prevent or seek to prevent the owner, lessee, custodian, person in charge or any of his employees from rendering service to any person or persons not so forbidden, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-173.1; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

CASE NOTES

This section applies only to places where a person goes "without authority of law," meaning property not at the time affected with a public interest. Racial segregation on property in private demesne has never in law been condemnable. Indeed, the occupant may lawfully forbid any and all persons regardless of his reason or their race or religion, to enter or remain upon any part of his premises which are not devoted to a public use. Assurance of this right is the entire and sole aim of this section. Henderson v. Trailway Bus Co., 194 F. Supp. 423 (E.D. Va. 1961), aff'd sub nom. Robinson v. Hunter, 374 U.S. 488, 83 S. Ct. 1875, 10 L. Ed. 2d 1044 (1963).

It was enacted with an eye to the "sit-in." - The increased punishments provided by the 1958 and 1960 amendments to § 18.2-119 , and the addition of this section, may fairly be said to have been enacted with an eye to the "sit-in." The legislature's motive alone however, could not invalidate the statute. Besides, the criminal elements of the present statutes are no more expansive than were those of the 1934 trespass statute. Henderson v. Trailway Bus Co., 194 F. Supp. 423 (E.D. Va. 1961), aff'd sub nom. Robinson v. Hunter, 374 U.S. 488, 83 S. Ct. 1875, 10 L. Ed. 2d 1044 (1963).

Applied in Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045 (4th Cir. 1980).

§ 18.2-121. Entering property of another for purpose of damaging it, etc.

  1. As used in this section, "disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.
  2. It is unlawful for any person to enter the land, dwelling, outhouse, or any other building of another for the purpose of damaging such property or any of the contents thereof or in any manner to interfere with the rights of the owner, user, or occupant thereof to use such property free from interference.

    Any person violating the provisions of this section is guilty of a Class 1 misdemeanor. However, if a person intentionally selects the property entered because of the race, religious conviction, color, gender, disability, gender identity, sexual orientation, or national origin of the owner, user, or occupant of the property, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months.

    (Code 1950, § 18.1-183; 1960, c. 358; 1975, cc. 14, 15; 1994, c. 658; 1997, c. 833; 2004, c. 461; 2020, cc. 746, 1171.)

Editor's note. - Acts 2020, cc. 746 and 1171, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 746, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law."

The 1997 amendment inserted "person shall be guilty of a Class 6 felony, and the" in the second sentence of the second paragraph.

The 2004 amendments. - The 2004 amendment by c. 461, in the last paragraph, in the last sentence, deleted "mandatory, minimum" following "shall include a," substituted "be a mandatory minimum term of confinement" for "not be suspended, in whole or in part," and made a minor stylistic change.

The 2020 amendments. - The 2020 amendments by cc. 746 and 1171 are identical, and added subsection A and the subsection B designation; in the last paragraph, inserted "gender, disability, gender identity, sexual orientation" and deleted "30 days of which shall be a mandatory minimum term of confinement" at the end; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 78; 18 M.J. Trespass, §§ 1, 27.

CASE NOTES

Implied invitation doctrine lacked merit. - Defendant's claim that he had an "implied invitation" to enter property lacked merit with respect to his conviction for entering property for purposes of damaging it or interfering with the owner's use thereof because that doctrine was afforded no protection with respect to the instant offense. Lux v. Commonwealth, No. 1528-12-2, 2013 Va. App. LEXIS 398 (Dec. 17, 2013).

This section is not a lesser included offense of statutory burglary. Crump v. Commonwealth, 13 Va. App. 286, 411 S.E.2d 238 (1991).

This section is not a lesser included offense of grand larceny. - Trial court erred by reducing the felony grand larceny charge to misdemeanor interference with the property rights of another, because the latter was not a lesser-included offense of grand larceny since a violation of the misdemeanor statute focused on interference while a violation of the grand larceny statute focused on good and chattels over $200. Jones v. Commonwealth, No. 0837-16-3, 2017 Va. App. LEXIS 244 (Oct. 3, 2017).

This section is not lesser included offense of § 18.2-90 or § 18.2-91 . - Section 18.2-90 , which identifies § 18.2-91 's prohibited acts, includes offenses against properties not specified in this section, i.e., ships, vessels, river craft. Thus, a violation of § 18.2-91 will not invariably and necessarily include a violation of this section and the misdemeanor is, consequently, not a lesser included offense of either § 18.2-90 or § 18.2-91. Crump v. Commonwealth, 13 Va. App. 286, 411 S.E.2d 238 (1991).

Evidence sufficient. - Defendant's conviction for entering property for purposes of damaging it or interfering with the owner's use thereof was supported by sufficient evidence because he persisted in contacting jurors from his son's trial despite having been ordered by the court and warned by a police officer to cease such activities. Lux v. Commonwealth, No. 1528-12-2, 2013 Va. App. LEXIS 398 (Dec. 17, 2013).

Conviction for unlawful entry upon the property of another was supported by evidence defendant entered unlit home where his child lived with her mother at 3:20 a.m. by forcing the air conditioner out of the bedroom window, knowing that the mother had terminated their relationship and banned him from the house. Jennings v. Commonwealth, No. 1625-15-1, 2016 Va. App. LEXIS 272 (Ct. of Appeals Oct. 18, 2016).

Review. - Because defendant did not argue, and neither party briefed the specific issues, the court of appeals decline to address his assignment of error as it was insufficiently preserved; neither party addressed whether defendant intended to commit any misdemeanor except assault and battery or trespass, and thus, it was unclear whether he would have fulfilled the requirements for the crime with which he was charged, burglary. Bethel v. Commonwealth, No. 1095-16-1, 2017 Va. App. LEXIS 120 (May 2, 2017).

Applied in Northern Va. Women's Medical Ctr. v. Balch, 617 F.2d 1045 (4th Cir. 1980).

§ 18.2-121.1. Permitting certain animals to run at large.

The owner or manager of any animal mentioned in § 55.1-2820 , who shall knowingly permit such animal to run at large in any county or portion thereof, under quarantine, shall be deemed to be guilty of a Class 4 misdemeanor.

(Code 1950, § 8-885; 1977, c. 624.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-2820" for "55-316."

§ 18.2-121.2. Trespass by spotlight on agricultural land.

If any person shall willfully use a spotlight or similar lighting apparatus to cast a light upon private property used for livestock or crops without the written permission of the person in legal possession of such property, he shall be guilty of a Class 3 misdemeanor.

The prohibition of this section shall not apply to light cast by (i) permanently installed outdoor lighting fixtures, (ii) headlamps on vehicles moving in normal travel on public or private roads, (iii) railroad locomotives or rolling stock being operated on the tracks or right-of-way of a railroad company, (iv) aircraft or watercraft, (v) apparatus used by employees of any public utility in maintaining the utility's lines and equipment, (vi) emergency medical services vehicles used by emergency medical services personnel or fire apparatus used by members of fire departments in the performance of their official duties, (vii) apparatus used by any law-enforcement officer in the performance of his official duties, or (viii) farm machinery or motor vehicles being used in normal farming operations.

(1981, c. 460; 2015, cc. 502, 503.)

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and in clause (vi), inserted "emergency medical services vehicles used by emergency medical services personnel or fire" and deleted "rescue squads or" preceding "fire departments."

§ 18.2-121.3. Trespass with an unmanned aircraft system; penalty.

  1. Any person who knowingly and intentionally causes an unmanned aircraft system to (i) enter the property of another and come within 50 feet of a dwelling house (a) to coerce, intimidate, or harass another person or (b) after having been given actual notice to desist, for any other reason, or (ii) take off or land in violation of current Federal Aviation Administration Special Security Instructions or UAS Security Sensitive Airspace Restrictions is guilty of a Class 1 misdemeanor.
  2. This section shall not apply to any person who causes an unmanned aircraft system to enter the property as set forth in subsection A if (i) consent is given to the entry by any person with legal authority to consent or by any person who is lawfully present on such property or (ii) such person is authorized by federal regulations to operate an unmanned aircraft system and is operating such system in an otherwise lawful manner and consistent with federal regulations.

    (2018, cc. 851, 852; 2019, c. 612.)

Editor's note. - Acts 2018, cc. 851 and 852, cl. 3 provides: "That the Secretary of Commerce and Trade, in consultation with the Virginia Economic Development Partnership, shall study the impact of this act on unmanned aircraft research, innovation, and economic development in Virginia and report to the Governor and General Assembly no later than November 1, 2019."

The 2019 amendments. - The 2019 amendment by c. 612, in subsection A, inserted the clause (i) designation and added clause (ii), and made related changes.

§ 18.2-122.

Repealed by Acts 1998, c. 6.

§ 18.2-123.

Repealed by Acts 2004, c. 459.

§ 18.2-124. Jurisdiction over offenses committed in Capitol Square.

The Circuit Court of the City of Richmond shall have jurisdiction to try cases of offenses committed in Capitol Square except as hereinafter provided. The district court of the City of Richmond shall have jurisdiction to try misdemeanor cases arising under § 18.2-122 , and all other offenses committed in the Capitol Square of which it would have jurisdiction if committed within the corporate limits and jurisdiction of the city; and the Capitol Police, or any member thereof, shall have the same authority to arrest and to swear out warrants for offenses committed on the Capitol Square as policemen of the City of Richmond have to arrest or to swear out warrants for offenses committed within the jurisdiction of the city.

(Code 1950, § 2.1-97; 1966, c. 677; 1975, cc. 14, 15; 2004, c. 459.)

Editor's note. - Section 18.2-122 , referred to above, was repealed by Acts 1998, c. 6.

The 2004 amendments. - The 2004 amendment by c. 459, in the second sentence, substituted "district court" for "District Court," inserted "misdemeanor" preceding "cases," and deleted "of misdemeanor" following "cases," " § " preceding "18.2-122," and "and 18.2-123 " preceding "and all other offenses."

§ 18.2-125. Trespass at night upon any cemetery.

If any person, without the consent of the owner, proprietor or custodian, go or enter in the nighttime, upon the premises, property, driveways or walks of any cemetery, either public or private, for any purpose other than to visit the burial lot or grave of some member of his family, he shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-181; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-126. Violation of sepulture; defilement of a dead human body; penalties.

  1. If a person unlawfully disinters or displaces a dead human body, or any part of a dead human body which has been deposited in any vault, grave or other burial place, he is guilty of a Class 4 felony.
  2. If a person willfully and intentionally physically defiles a dead human body he is guilty of a Class 6 felony. For the purposes of this section, the term "defile" shall not include any autopsy or the recovery of organs or tissues for transplantation, or any other lawful purpose.

    (Code 1950, § 18.1-243; 1960, c. 358; 1975, cc. 14, 15; 1995, c. 306.)

The 1995 amendment, in the first paragraph, inserted the A designation, substituted "disinters or displaces" for "disinter or displace", and substituted "is guilty" for "shall be guilty"; and added subsection B.

Michie's Jurisprudence. - For related discussion, see 3B M.J. Cemeteries, § 8; 5C M.J. Dead Bodies, §§ 1, 3.

CASE NOTES

Construction. - Legislative intent of § 18.2-126 is to protect the sanctity of both a burial place and a dead body, wherever situated, and that is not the same intent encompassed in § 18.2-48 ; the meaning of defile in subsection B of § 18.2-126 is not limited to the meaning of defile in § 18.2-48 . Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

Subsection B of § 18.2-126 excludes from the term defile any autopsy or recovery of organs or tissues for transplantation, or any other lawful purpose, which is consistent with the ordinary meaning of defile as disrespecting or desecrating a corpse and inconsistent with interpreting the term as only sexual molestation; the only logical conclusion from defendant's definition was that one performing an autopsy was exempt from prosecution even if he sexually molested the corpse, and sexual molestation is not a legitimate purpose. Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

Concealing a body under § 18.2-323.02 may occur without dishonoring or desecrating a corpse, the conduct addressed in subsection B of § 18.2-126 ; defendant attempted to prevent detection of the victim's death by telling her family that she would return, even though he knew that she was dead and he had left her body in a city park, plus defendant told police that he last saw her when she left the house to buy drugs, but he did not admit that she had died in his bedroom that night. Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

Meaning of defile in subsection B of § 18.2-126 is not limited to sexual molestation and includes any action that dishonors or desecrates a corpse by treating it in an offensive manner. Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

Acts showing disrespect for body. - Contrary to defendant's contention that his disposal of the victim's corpse was not a physical act within the ambit of the statute, his actions of concealing the body in bags and a rug and then dumping it in a filthy area of a park were physical acts that showed disrespect for the body. Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

Evidence sufficient. - Defendant dumped the victim's body in a garbage-strewn and filthy park, leaving it at the mercy of marauding animals that ultimately gnawed off part of her body; defendant purposely left her body in an area where harm to the sanctity of the body was foreseeable and ultimately caused such severe disfigurement that dental records were needed to identify the victim. Defendant's actions clearly showed disrespect for the corpse. Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

§ 18.2-127. Injuries to churches, church property, cemeteries, burial grounds, etc.; penalty.

  1. Any person who willfully or maliciously commits any of the following acts is guilty of a Class 1 misdemeanor:
    1. Destroys, removes, cuts, breaks, or injures any tree, shrub, or plant on any church property or within any cemetery or lot of any memorial or monumental association;
    2. Destroys, mutilates, injures, or removes and carries away any flowers, wreaths, vases, or other ornaments placed within any church or on church property, or placed upon or around any grave, tomb, monument, or lot in any cemetery, graveyard, or other place of burial; or
    3. Obstructs proper ingress to and egress from any church or any cemetery or lot belonging to any memorial or monumental association.
  2. Any person who maliciously places any dead animal within any church or on church property is guilty of a Class 1 misdemeanor.
  3. Any person who willfully or maliciously destroys, mutilates, defaces, injures, or removes any object or structure permanently attached or affixed within any church or on church property, any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery is guilty of a Class 6 felony. A person convicted under this section who is required to pay restitution by the court shall be required to pay restitution to the church, if the property damaged is property of the church, or to the owner of a cemetery, if the property damaged is located within such cemetery regardless of whether the property damaged is owned by the cemetery or by another person.
  4. This section shall not apply to any work which is done by the authorities of a church or congregation in the maintenance or improvement of any church property or any burial ground or cemetery belonging to it and under its management or control and which does not injure or result in the removal of a tomb, monument, gravestone, grave marker or vault. For purposes of this section, "church" shall mean any place of worship, and "church property" shall mean any educational building or community center owned or rented by a church.

    (Code 1950, § 18.1-244; 1960, c. 358; 1975, cc. 14, 15; 1982, c. 561; 1983, c. 579; 1990, c. 510; 2004, c. 203; 2020, c. 485.)

The 2004 amendments. - The 2004 amendment by c. 203 added the last sentence in subsection B.

The 2020 amendments. - The 2020 amendment by c. 485 inserted subsection B, and redesignated former subsections B and C as subsections C and D.

§ 18.2-128. Trespass upon church or school property.

  1. Any person who, without the consent of some person authorized to give such consent, goes or enters upon, in the nighttime, the premises or property of any church or upon any school property for any purpose other than to attend a meeting or service held or conducted in such church or school property, shall be guilty of a Class 3 misdemeanor.
  2. It shall be unlawful for any person, whether or not a church member or student, to enter upon or remain upon any church or school property in violation of (i) any direction to vacate the property by a person authorized to give such direction or (ii) any posted notice which contains such information, posted at a place where it reasonably may be seen. Each time such person enters upon or remains on the posted premises or after such direction that person refuses to vacate such property, it shall constitute a separate offense.

    A violation of this subsection shall be punishable as a Class 1 misdemeanor, except that any person, other than a parent, who violates this subsection on school property with the intent to abduct a student shall be guilty of a Class 6 felony.

  3. For purposes of this section: (i) "school property" includes a school bus as defined in § 46.2-100 and (ii) "church" means any place of worship and includes any educational building or community center owned or leased by a church. (Code 1950, § 18.1-182; 1960, c. 358; 1975, cc. 14, 15; 1988, c. 497; 1989, c. 680; 1993, c. 961; 1994, c. 326; 1995, cc. 493, 642; 1997, c. 779.)

The 1995 amendments. - The 1995 amendment by c. 493 added subsection D.

The 1995 amendment by c. 642 inserted "except that any person, other than a parent, who violates subsection B with the intent to abduct a student shall be guilty of a Class 6 felony" at the end of subsection C.

The 1997 amendment rewrote this section, which formerly read: "A. It shall be unlawful for any person, without the consent of some person authorized to give such consent, to go or enter upon, in the nighttime, the premises or property of any church or upon any school property for any purpose other than to attend a meeting or service held or conducted in such church or school property.

"B. It shall be unlawful for any person, whether or not a student, to enter upon or remain upon any school property in violation of (i) any direction to vacate the property by a person authorized to give such direction or (ii) any posted notice which contains such information, posted at a place where it reasonably may be seen. Each time such person enters upon or remains on the posted premises or after such direction that person refuses to vacate school property, it shall constitute a separate offense.

"C. Any person violating the provisions of (i) subsection A shall be guilty of a Class 3 misdemeanor and (ii) subsection B shall be guilty of a Class 1 misdemeanor, except that any person, other than a parent, who violates subsection B with the intent to abduct a student shall be guilty of a Class 6 felony.

"D. For purposes of this section, 'school property' includes a school bus as defined in § 46.2-100 ."

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Colleges and Universities, § 1; 16 M.J. Religious Societies, § 3; 18 M.J. Trespass, §§ 1, 27.

CASE NOTES

Good faith defense not shown. - The trial court did not err in rejecting the defendant's good faith defense based upon his asserted belief that he and other anti-abortion demonstrators were not on school property while they were on the sidewalk in front of the school where several authorized persons, including the school principal and the superintendent of the school district, told the demonstrators to leave, they refused to do so, and, upon learning from police officers that they could be arrested for failing to leave, the defendant responded, "then you'll have to arrest us." Reyes v. Commonwealth, No. 0480-98-3 (Ct. of Appeals Apr. 13, 1999).

§ 18.2-129.

Repealed by Acts 1989, c. 680.

Cross references. - As to trespass upon church or school property, see § 18.2-128 .

§ 18.2-130. Peeping or spying into dwelling or enclosure.

  1. It shall be unlawful for any person to enter upon the property of another and secretly or furtively peep, spy or attempt to peep or spy into or through a window, door or other aperture of any building, structure, or other enclosure of any nature occupied or intended for occupancy as a dwelling, whether or not such building, structure or enclosure is permanently situated or transportable and whether or not such occupancy is permanent or temporary, or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant's reasonable expectation of privacy.
  2. It shall be unlawful for any person to use a peephole or other aperture to secretly or furtively peep, spy or attempt to peep or spy into a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location or enclosure for the purpose of viewing any nonconsenting person who is totally nude, clad in undergarments, or in a state of undress exposing the genitals, pubic area, buttocks or female breast and the circumstances are such that the person would otherwise have a reasonable expectation of privacy.
  3. The provisions of this section shall not apply to a lawful criminal investigation or a correctional official or local or regional jail official conducting surveillance for security purposes or during an investigation of alleged misconduct involving a person committed to the Department of Corrections or to a local or regional jail.
  4. As used in this section, "peephole" means any hole, crack or other similar opening through which a person can see.
  5. A violation of this section is a Class 1 misdemeanor.

    (Code 1950, § 18.1-174; 1960, c. 358; 1975, cc. 14, 15; 1992, c. 520; 1999, c. 351; 2003, cc. 81, 87.)

The 1999 amendment added the subsection A designator, in subsection A, substituted "It shall be unlawful for any person to enter upon the property of another and secretly or furtively peep, spy or attempt" for "If any person enters upon the property of another and secretly or furtively peeps, spies or attempts" and deleted "such person shall be guilty of a Class 1 misdemeanor" following "permanent or temporary"; and added subsections B through E.

The 2003 amendments. - The 2003 amendments by cc. 81 and 87 are identical, and inserted "or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant's reasonable expectation of privacy" at the end of subsection A.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 2; 18 M.J. Trespass, § 27.

CASE NOTES

Prosecution not limited to those who are wholly hidden from view. Rather, it prohibits surreptitious peeping with the intent to invade the privacy of another. Copeland v. Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000); Morales v. Commonwealth, 31 Va. App. 541, 525 S.E.2d 23 (2000).

§ 18.2-130.1. Peeping or spying into dwelling or occupied building by electronic device; penalty.

It is unlawful for any person to knowingly and intentionally cause an electronic device to enter the property of another to secretly or furtively peep or spy or attempt to peep or spy into or through a window, door, or other aperture of any building, structure, or other enclosure occupied or intended for occupancy as a dwelling, whether or not such building, structure, or enclosure is permanently situated or transportable and whether or not such occupancy is permanent or temporary, or to do the same, without just cause, upon property owned by him and leased or rented to another under circumstances that would violate the occupant's reasonable expectation of privacy. A violation of this section is a Class 1 misdemeanor. The provisions of this section shall not apply to a lawful criminal investigation.

(2017, c. 502.)

§ 18.2-131. Trespass upon licensed shooting preserve.

It shall be unlawful for any person to trespass on a licensed shooting preserve. Any person convicted of such trespass shall be guilty of a Class 4 misdemeanor and shall be responsible for all damage. Owners or keepers of dogs trespassing on preserves shall be responsible for all damage done by such dogs.

(Code 1950, § 29-49; 1975, cc. 14, 15.)

Cross references. - For revocation of licenses and penalties if any person is found guilty of violating any of the hunting, trapping or inland fish laws or regulations, see § 29.1-338 .

§ 18.2-132. Trespass by hunters and fishers.

Any person who goes on the lands, waters, ponds, boats or blinds of another to hunt, fish or trap without the consent of the landowner or his agent shall be deemed guilty of a Class 3 misdemeanor.

(Code 1950, § 29-165; 1954, c. 155; 1962, c. 469; 1975, cc. 14, 15.)

Cross references. - For revocation of licenses and penalties if any person is found guilty of violating any of the hunting, trapping or inland fish laws or regulations, see § 29.1-338 .

Research References. - Virginia Forms (Matthew Bender). No. 16-583 License to Hunt on Property for a Specified Period.

CASE NOTES

Willful intent. - State is required to prove that a defendant had a willful intent to violate this section, the trespass by a hunter statute, as the general criminal trespass statute's requirement that the state prove willful intent means that this section, which is silent on the issue of intent, has the same willful intent requirement. Lawson v. Commonwealth, 35 Va. App. 610, 547 S.E.2d 513, 2001 Va. App. LEXIS 339 (2001).

As to private ownership of stream, see Boerner v. McCallister, 197 Va. 169 , 89 S.E.2d 23 (1955).

As to prosecution dependent upon right of riparian proprietor to prohibit hunting between high and low-water marks along part of his land, see Miller v. Commonwealth, 159 Va. 924 , 166 S.E. 557 (1932).

§ 18.2-132.1. Trespass by hunters using dogs; penalty.

Any person who intentionally releases hunting dogs on the lands of another which have been posted in accordance with the provisions of § 18.2-134.1 to hunt without the consent of the landowner or his agent is guilty of a Class 3 misdemeanor. A second or subsequent violation of this section within three years is a Class 1 misdemeanor and, upon conviction, the court shall revoke such person's hunting or trapping license for a period of one year. The fact that hunting dogs are present on the lands of another alone is not sufficient evidence to prove that the person acted intentionally.

(2016, c. 373.)

§ 18.2-133. Refusal of person on land, etc., of another to identify himself.

Any person who goes on the lands, waters, ponds, boats or blinds of another to hunt, fish, or trap and willfully refuses to identify himself when requested by the landowner or his agent so to do shall be deemed guilty of a Class 4 misdemeanor.

(Code 1950, § 29-165.1; 1954, c. 156; 1962, c. 469; 1975, cc. 14, 15.)

Cross references. - For revocation of licenses and penalties if any person is found guilty of violating any of the hunting, trapping or inland fish laws or regulations, see § 29.1-338 .

Research References. - Virginia Forms (Matthew Bender). No. 16-583 License to Hunt on Property for a Specified Period.

§ 18.2-134. Trespass on posted property.

Any person who goes on the lands, waters, ponds, boats or blinds of another, which have been posted in accordance with the provisions of § 18.2-134.1 , to hunt, fish or trap except with the written consent of or in the presence of the owner or his agent shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 29-166; 1954, c. 155; 1962, c. 469; 1975, cc. 14, 15; 1987, c. 603.)

Cross references. - As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

For revocation of licenses and penalties if any person is found guilty of violating any of the hunting, trapping or inland fish laws or regulations, see § 29.1-338 .

Research References. - Virginia Forms (Matthew Bender). No. 16-583 License to Hunt on Property for a Specified Period.

CIRCUIT COURT OPINIONS

"Lawful" hunting. - Commonwealth failed to prove that the hunting defendant interfered with was lawful, even though one hunter had permission to hunt on property owned by defendant's neighbor, because three others in the hunting party did not have permission, the first hunter had no authority to permit the other three to hunt on the neighbor's property, and, as such, the three hunters were not lawfully hunting when defendant discharged a weapon into the ground near his home. Commonwealth v. Smith, 85 Va. Cir. 327, 2012 Va. Cir. LEXIS 175 (Loudoun County Aug. 31, 2012).

§ 18.2-134.1. Method of posting lands.

  1. The owner or lessee of property described in § 18.2-134 may post property by (i) placing signs prohibiting hunting, fishing or trapping where they may reasonably be seen; or (ii) placing identifying paint marks on trees or posts at each road entrance and adjacent to public roadways and public waterways adjoining the property. Each paint mark shall be a vertical line of at least two inches in width and at least eight inches in length and the center of the mark shall be no less than three feet nor more than six feet from the ground or normal water surface. Such paint marks shall be readily visible to any person approaching the property.
  2. The type and color of the paint to be used for posting shall be prescribed by the Department of Wildlife Resources.

    (1987, c. 603; 2020, c. 958.)

The 2020 amendments. - The 2020 amendment by c. 958 substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries" in subsection B.

Research References. - Virginia Forms (Matthew Bender). No. 16-583 License to Hunt on Property for a Specified Period.

§ 18.2-135. Destruction of posted signs; posting land of another.

Any person who shall mutilate, destroy or take down any "posted," "no hunting" or similar sign or poster on the lands or waters of another, or who shall post such sign or poster on the lands or waters of another, without the consent of the landowner or his agent, shall be deemed guilty of a Class 3 misdemeanor and his hunting, fishing, and trapping license and privileges shall be revoked for a period of one to five years from the date of conviction.

(Code 1950, § 29-167; 1962, c. 469; 1975, cc. 14, 15; 2010, c. 183.)

Cross references. - For revocation of licenses and penalties if any person is found guilty of violating any of the hunting, trapping or inland fish laws or regulations, see § 29.1-338 .

The 2010 amendments. - The 2010 amendment by c. 183 substituted "fishing, and trapping license and privileges" for "license" and "of one to five years from the date of conviction" for "not exceeding the expiration date of such license."

Research References. - Virginia Forms (Matthew Bender). No. 16-583 License to Hunt on Property for a Specified Period.

§ 18.2-136. Right of certain hunters to go on lands of another; carrying firearms or bows and arrows prohibited.

Fox hunters and coon hunters, when the chase begins on other lands, may follow their dogs on prohibited lands, and hunters of all other game, when the chase begins on other lands, may go upon prohibited lands to retrieve their dogs, falcons, hawks, or owls but may not carry firearms or bows and arrows on their persons or hunt any game while thereon. The use of vehicles to retrieve dogs, falcons, hawks, or owls on prohibited lands shall be allowed only with the permission of the landowner or his agent. Any person who goes on prohibited lands to retrieve his dogs, falcons, hawks, or owls pursuant to this section and who willfully refuses to identify himself when requested by the landowner or his agent to do so is guilty of a Class 4 misdemeanor.

(Code 1950, § 29-168; 1964, c. 600; 1975, cc. 14, 15; 1988, c. 593; 1991, cc. 317, 327; 2007, cc. 145, 658; 2011, c. 191.)

The 2007 amendments. - The 2007 amendments by cc. 145 and 658 are identical, and added the last sentence.

The 2011 amendments. - The 2011 amendment by c. 191 inserted "falcons, hawks, or owls" three times.

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 1 Extra-Judicial Procedures. § 1.02 Self Help. Bryson.

Virginia Forms (Matthew Bender). No. 16-583 License to Hunt on Property for a Specified Period.

§ 18.2-136.1. Enforcement of §§ 18.2-131 through 18.2-135.

Conservation police officers, sheriffs and all other law-enforcement officers shall enforce the provisions of §§ 18.2-131 , 18.2-132 , 18.2-133 , 18.2-134 and 18.2-135 .

(1975, cc. 14, 15.)

Editor's note. - At the direction of the Virginia Code Commission, "Conservation police officers" was substituted for "Game wardens" to conform to the name change by Acts 2007, c. 87.

Article 6. Damage to Realty and Personalty Thereon.

§ 18.2-137. Injuring, etc., any property, monument, etc.

  1. If any person unlawfully destroys, defaces, damages, or removes without the intent to steal any property, real or personal, not his own, or breaks down, destroys, defaces, damages, or removes without the intent to steal, any monument or memorial for war veterans, not his own, described in § 15.2-1812 ; any monument erected to mark the site of any engagement fought during the Civil War, or any memorial to designate the boundaries of any city, town, tract of land, or any tree marked for that purpose, he shall be guilty of a Class 3 misdemeanor, provided that the court may, in its discretion, dismiss the charge if the locality or organization that owns or is responsible for maintaining the injured property, monument, or memorial files a written affidavit with the court stating it has received full payment for the injury.
  2. If any person who is not the owner of such property intentionally causes such injury, he is guilty of (i) a Class 1 misdemeanor if the value of or damage to the property, memorial, or monument is less than $1,000 or (ii) a Class 6 felony if the value of or damage to the property, memorial, or monument is $1,000 or more. The amount of loss caused by the destruction, defacing, damage, or removal of such property, memorial, or monument may be established by proof of the fair market cost of repair or fair market replacement value. Upon conviction, the court may order that the defendant pay restitution.

    (Code 1950, § 18.1-172; 1960, c. 358; 1975, cc. 14, 15, 598; 1990, c. 933; 1999, c. 625; 2020, cc. 1100, 1101.)

Editor's note. - The above section is § 18.2-137 as enacted by Acts 1975, c. 598. Pursuant to § 30-152, it has been substituted for § 18.2-137 as enacted by Acts 1975, cc. 14 and 15.

Acts 2020, cc. 1100 and 1101, cl. 3 provides: "That nothing in this act shall apply to a monument or memorial located on the property of a public institution of higher education within the City of Lexington."

Acts 2020, cc. 1100 and 1101, cl. 4 provides: "That the Board of Historic Resources shall promulgate regulations governing the manner in which any monument or memorial may be contextualized pursuant to the provisions of this act."

The 1999 amendment added subsection designations A and B; in subsection A, inserted "any monument or memorial for war veterans described in § 15.2-1812 " and added "a Class 3 misdemeanor; provided that the court may, in its discretion, dismiss the charge if the locality or organization responsible for maintaining the injured property, monument, or memorial files a written affidavit with the court stating it has received full payment for the injury"; and in subsection B, added "If any person intentionally causes such injury, he shall be guilty of," inserted "memorial" preceding "or monument" throughout, and added the last sentence.

The 2020 amendments. - The 2020 amendments by cc. 1100 and 1101 are identical, and in subsection A, substituted "not his own, described in § 15.2-1812 ; any monument erected to mark the site of any engagement fought during the Civil War, or any memorial to designate" for "described in § 15.2-1812 , any monument erected for the purpose of marking the site of any engagement fought during the War between the States, or for the purpose of designating" and inserted "that owns or is"; in the first sentence of subsection B, inserted "who is not the owner of such property"; and made stylistic changes.

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Boundaries, § 53; 12A M.J. Malicious Mischief, § 3; 13B Municipal Corporations, § 64; 18 M.J. Trespass, § 27.

CASE NOTES

One may be convicted of destruction of private property and burglary. - One may be convicted of destruction of private property in violation of this section, in addition to being convicted of burglary in violation of § 18.2-91 , as a result of causing damage to property when breaking and entering a building because each offense requires proof of a fact not required for the other. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

Prosecution for breaking and entering and destroying private property not barred by § 19.2-294 . - Section 19.2-294 , which bars a prosecution for a violation of one statute if a defendant has been convicted of violation of another statute for the same act, is inapplicable where the "same act" involved was the breaking of the doors of the places broken into. This act, although common to both the convictions of breaking and entering and the convictions for destroying private property, was a violation of this section, destroying private property, but was not a violation of § 18.2-91 , statutory burglary. Thus, the same act was a violation of only one of the two statutes, not both. Fitzgerald v. Commonwealth, 11 Va. App. 625, 401 S.E.2d 208 (1991).

Conviction for killing dogs. - Definition of destruction of personal property applied in prosecution for killing dogs and destroying hunting equipment, as dogs and cats are included in definition of personal property, under former § 3.1-796.127 [now § 3.2-6585], and dogs were rendered useless as a result of defendant's actions; defendant's conviction would thus be affirmed. Smith v. Commonwealth,, 2002 Va. App. LEXIS 400 (July 23, 2002).

Act done under bona fide claim of right. - A defendant cannot be convicted under this section where the act complained of was done under a bona fide claim of right. Wise v. Commonwealth, 98 Va. 837 , 36 S.E. 479 (1900).

Criminal responsibility attaches to lawful act done in a criminally negligent manner. - Criminal responsibility under this section attaches when property is damaged or destroyed during the commission of an unlawful act, which includes the performance of a lawful act in a criminally negligent manner. Crowder v. Commonwealth, 16 Va. App. 382, 429 S.E.2d 893 (1993).

Interpretation regarding negligence. - Subsection B of § 18.2-137 attaches criminal liability when a person performs a volitional act that damages the property of another and the person specifically intends to cause damage to the property by that act. Subsection B does not criminalize the mere performance of a volitional act conducted in a criminally negligent manner that happens to damage the property of another. Scott v. Commonwealth, 58 Va. App. 35, 707 S.E.2d 17, 2011 Va. App. LEXIS 104 (2011).

Valuation of property. - Trial court properly convicted defendant of leaving the scene of an accident because there was no principled reason why the formula adopted by the Supreme Court of Virginia in a civil context should not apply to a criminal prosecution when the amount of damage to a motor vehicle was an element of the offense, the property-destruction statute provided that the amount of loss to property could be established by proof of the fair market cost of repair or fair market replacement value, and the Commonwealth presented sufficient evidence to demonstrate that the reasonable cost of repairs to the damaged vehicle exceeded the $1,000 statutory threshold. Cocke v. Commonwealth, 68 Va. App. 11, 801 S.E.2d 427 (2017).

Commonwealth sufficiently established that the fair market replacement value of a grocery store scale defendant broke exceeded $1,000 for purposes of a felony destruction of personal property conviction because the term "replacement" contemplated the cost of obtaining a substitute item to take the place of the original, destroyed item; the inclusion of the term "replacement" in this statute allowed a specific inquiry into the value of the substitute item to establish the amount of loss; the grocery store purchased a scale for $4,090 to replace the broken scale; and the two models of scales - the replacement and the broken one - were virtually identical. Spratley v. Commonwealth, 69 Va. App. 314, 818 S.E.2d 823, 2018 Va. App. LEXIS 268 (2018).

Cost of repair cannot be established through victim's hearsay testimony as to estimate for repair. - In an action charging defendant with felony destruction of property, the victim's hearsay testimony as to the estimated cost of repairing the damage to the victim's truck did not suffice to establish the fair market cost of repairing the damage. Brown v. Commonwealth,, 2009 Va. App. LEXIS 30 (Jan. 27, 2009).

Hearsay testimony as to repair costs. - Defendant's conviction under this section was reversed as hearsay testimony of the repair costs for damage to the property was improperly admitted as the caretaker did not have personal knowledge of repair costs and testified to what the management company told him regarding the costs, and no exception to the hearsay rule applied; the exception to the hearsay rule in civil cases for affidavits estimating the cost of repairing the damage to motor vehicles would not be necessary if the Virginia legislature thought that an owner's testimony as to the value of property meant that the owner could testify to the estimated cost of repairs for property based upon third-party estimates. Gilliam v. Commonwealth, No. 1254-12-1, 2013 Va. App. LEXIS 354 (Dec. 3, 2013).

Replacement value. - Statute provides that the amount of loss caused by the destruction of property may be established by proof of the fair market replacement value, and the term replacement contemplates the cost of obtaining a substitute item to take the place of the original, destroyed item; in defendant's case, the Commonwealth was not required to present evidence of the age, depreciation, or original purchase price of the scale to establish its fair market replacement value. Spratley v. Commonwealth, 298 Va. 187 , 836 S.E.2d 385, 2019 Va. LEXIS 158 (2019).

Fair market replacement value established. - Defendant's destruction of property conviction was upheld; the circuit court's finding that the fair market replacement value of the scale was $1,000 or more had evidentiary support, as the owner purchased a new type of scale because the original scale was not longer being manufactured, and the new scale cost over $4,000, which exceeded the $1,000 threshold under the statute. Spratley v. Commonwealth, 298 Va. 187 , 836 S.E.2d 385, 2019 Va. LEXIS 158 (2019).

Local ordinance invalid. - Under § 15.2-1429 , no punishment for violation of an ordinance may exceed the penalties prescribed by general law for like offenses; Virginia Beach, Va., Code § 23-38, which punished destruction of property by fine of up to $2,500 and up to 12 months in jail, manifested a conflict with state law because the penalty that attached exceeded the penalty under the state code destruction of property statute, § 18.2-137 , a violation of which was punishable only by a fine not exceeding $500. Strout v. City of Va. Beach, 43 Va. App. 99, 596 S.E.2d 529, 2004 Va. App. LEXIS 240 (2004).

Defendant properly convicted of destroying wife's car. - Defendant was properly convicted of destroying and using without consent a car that was "not his own," in violation of §§ 18.2-137 and 18.2-102 , respectively, because his interest in his wife's car was an inchoate right that would vest only on entry of a decree of equitable distribution in a divorce proceeding. McDuffie v. Commonwealth, 49 Va. App. 170, 638 S.E.2d 139, 2006 Va. App. LEXIS 573 (2006).

Proof of intent required. - Trial court erred in holding that this statute criminalizing felony destruction of property was a general intent crime because it required that felony criminal destruction be done intentionally. Knott v. Commonwealth, No. 1016-18-4, 2020 Va. App. LEXIS 145 (May 12, 2020).

Evidence sufficient to support conviction under subsection A. - Defendant's conviction for property damage under subsection B of § 18.2-137 was inappropriate because the Commonwealth implausibly read subsection B to punish the lowest mens rea with relatively high penalties; subsection B of § 18.2-137 did not criminalize the mere performance of a volitional act conducted in a criminally negligent manner that happened to damage the property of another. However, because the trial court found as a matter of fact that defendant's behavior was criminally negligent, the appellate court remanded for re-sentencing on the lesser-included offense set forth in subsection A of § 18.2-137. Scott v. Commonwealth, 58 Va. App. 35, 707 S.E.2d 17, 2011 Va. App. LEXIS 104 (2011).

Trial court was not plainly wrong in finding that defendant caused an officer's watch to break because a rational factfinder could infer that defendant's resistance to the officers' efforts to bring him to the ground and place him in handcuffs was a proximate cause of the officer's watch breaking; the basic facts were that the officer's watch was intact prior to the struggle with defendant and that the officer's watch was broken and lying on the ground after the struggle with defendant. Hyman v. Commonwealth, No. 1275-11-1, 2012 Va. App. LEXIS 144 (Ct. of Appeals May 8, 2012).

Evidence sufficient to support conviction. - Evidence was sufficient to support a conviction for malicious destruction of property where: (1) the defendant was the victim's unfaithful lover whom she recently expelled from her apartment; (2) the defendant threatened the victim on previous occasions and intimated his desire for revenge; (3) the victim saw the defendant leave work during the time her apartment was entered and her property destroyed; and (4) property belonging to the victim was destroyed, while items belonging to the defendant were either missing or disturbed but not damaged. Johnson v. Commonwealth, No. 2498-97-4 (Ct. of Appeals Oct. 6, 1998).

The evidence was sufficient to support a finding that the defendant unlawfully damaged the Commonwealth's property in furtherance of his criminal purpose where the defendant, in an attempt to evade apprehension, ignored emergency lights and sirens of two law enforcement vehicles, together with on officer's entreaties to stop, fled along interstate highways at excessive speed, dangerously operated his truck and, in a continuing effort to escape capture, twice collided with the police vehicle operated by the trooper, intentionally driving forward on both occasions, aware that the trooper was ahead, slowing to effect a stop. Simmons v. Commonwealth, No. 1202-99-3, 2000 Va. App. LEXIS 563 (Ct. of Appeals Aug. 1, 2000).

Evidence that defendant and his friends gained unlawful access to a condominium, consumed liquor and food they found in the condominium, and caused $12,000 in damage before they left was sufficient to sustain defendant's conviction for felonious damage to property, in violation of § 18.2-137 . Cobble v. Commonwealth, No. 3257-02-3, 2003 Va. App. LEXIS 633 (Ct. of Appeals Dec. 9, 2003).

Evidence that: (1) defendant was stopped near a parked car that had a broken window and a screwdriver in plain view in the back seat; (2) he said the screwdriver was not his but his fingerprints might be on it; and (3) he later admitted using the screwdriver to break the car window to gain entry into the car, was sufficient to convict him of misdemeanor damage to property. Ridley v. Commonwealth,, 2006 Va. App. LEXIS 156 (Apr. 25, 2006).

Evidence was sufficient to support defendant's conviction for felony destruction of property in violation of § 18.2-137 , rather than misdemeanor destruction, as the crime was a general intent crime and the Commonwealth showed that defendant intended to damage property though defendant did not intend the consequence of damaging the property to be damage caused to a third person's property as a result of defendant chasing in defendant's vehicle another driver's vehicle, as well as the monetary amount of damage to the third person's property, necessary to prove felony destruction. Nunez v. Commonwealth,, 2007 Va. App. LEXIS 132 (2007).

Evidence that a vehicle owner saw defendant get into the owner's vehicle and drive away, a witness saw the vehicle pass by at a "high rate of speed," and seconds later, the vehicle collided with another vehicle, was sufficient to prove that defendant was driving the vehicle at the time of the accident. Davis v. Commonwealth,, 2009 Va. App. LEXIS 220 (May 12, 2009).

Defendant was properly convicted of misdemeanor destruction of property as a principal in the first degree, for driving a getaway car in which those who actually damaged a victim's mailbox tried to escape, because: (1) § 18.2-18 , concerning felony principals and accessories before the fact, did not abrogate the common-law rule that, in misdemeanors, all participants were principals; and (2) defendant admitted participating in this criminal episode. Wade v. Commonwealth, 56 Va. App. 689, 696 S.E.2d 258, 2010 Va. App. LEXIS 321 (2010).

Evidence that one set of victims testified that a nylon camouflaged holster found with defendant's wallet and belongings looked like one missing from their house, one of the firearms recovered from defendant's shed bore the serial number of a firearm missing from their home, and deer meat stolen from another victim and uniquely packaged was identified by another victim supported defendant's convictions for grand larceny, two counts of breaking and entering, two counts of larceny of a firearm, petit larceny, and destruction of property. Bowles v. Commonwealth,, 2010 Va. App. LEXIS 275 (July 13, 2010).

Where defendant drove his girlfriend's car at speeds of 77 to 107 miles per hour, 42 to 72 miles per hour over the posted speed limit of 35 miles per hour while driving in a populated area, and he moved out of the through lane of traffic and into the left turn lane, and drove his car into another vehicle causing the two vehicles to hit a third vehicle, there was sufficient evidence to convict him of felony destruction of property in violation of § 18.2-137 as a rational fact finder could infer that, when driving at such a high rate of speed in a left turn lane, where drivers exited the road to enter a shopping plaza, defendant intended to ram into other vehicles waiting to turn into the shopping plaza. Knight v. Commonwealth, 61 Va. App. 148, 733 S.E.2d 701, 2012 Va. App. LEXIS 363 (2012).

Evidence was sufficient to support defendant's conviction for destruction of property based on the co-conspirator's removal of security sensors from clothing he selected. Velez-Suarez v. Commonwealth, 64 Va. App. 269, 767 S.E.2d 715, 2015 Va. App. LEXIS 27 (2015).

Circuit court properly convicted him of felony destruction of property over $1,000 because a reasonable fact finder could find that defendant intended the immediate, direct, and necessary consequences of his actions where, after getting into a physical and heated argument with the mother of his child, defendant "yelled something," got into the driver's seat of the rental car, turned out of a driveway into oncoming traffic in a traffic circle, at a speed of 60-65 miles per hour in an unfamiliar area, and crossed over the median of a traffic circle, which caused the car to go airborne, hit an ambulance, and flip several times. Ruffin v. Commonwealth, No. 1815-15-2, 2016 Va. App. LEXIS 333 (Ct. of Appeals Dec. 6, 2016).

Evidence insufficient to support conviction. - Where defendant drove his truck on the complainant's property, shattering barley and leaving ruts in the ground, the trial court erred in convicting him of felony destruction of property without evidence that the property destroyed exceeded $1,000. The case was remanded for retrial of defendant for the lesser-included offense of misdemeanor destruction of property. Crowder v. Commonwealth, 41 Va. App. 658, 588 S.E.2d 384, 2003 Va. App. LEXIS 576 (2003).

Defendant's conviction for misdemeanor destruction of property in violation of subsection B of § 18.2-137 was reversed because pursuant to § 8.01-680 , the trial court was plainly wrong in finding that defendant had the specific intent to break an officer's watch; the record was devoid of any actions or statements by defendant before, during, or after the incident from which the trial court could have inferred his specific intent to damage the officer's watch. Hyman v. Commonwealth, No. 1275-11-1, 2012 Va. App. LEXIS 144 (Ct. of Appeals May 8, 2012).

Trespass conviction did not preclude burglary conviction. - Defendant's trespass conviction did not preclude the conviction for statutory burglary because the record supported the trial court's finding that he entered the apartment with the intent to commit another misdemeanor, destruction of property, in addition to trespass; the day after an angry outburst, defendant forced entry into the victim's apartment and damaged personal property inside. Green v. Commonwealth, 72 Va. App. 193, 843 S.E.2d 389, 2020 Va. App. LEXIS 174 (2020).

Failure to preserve issue for appeal. - In a prosecution for destroying property in violation of § 18.2-137 , defendant did not raise before the trial court his claims that the evidence was insufficient to establish the value of a car and his intent to destroy it. As the evidence was sufficient to establish his intent, and there was no evidence the car was worth less than $1,000, the appellate court declined to apply Va. Sup. Ct. R. 5A:18's "ends of justice" exception to the requirement that a timely objection had to be made to preserve a claim for appeal. McDuffie v. Commonwealth, 49 Va. App. 170, 638 S.E.2d 139, 2006 Va. App. LEXIS 573 (2006).

Reversal not required by omission of intent element from instruction. - Omission of the intent element from a finding instruction did not require reversal of defendant's conviction for damaging property under § 18.2-137 because defendant did not object to the finding instruction, the verdict form, or the sentencing instruction, and the verdict correctly included the intent element; the ends of justice exception to Va. Sup. Ct. R. 5A:18 did not apply because the evidence was overwhelming that defendant acted intentionally when he threw a brick through a window. Perry v. Commonwealth,, 2006 Va. App. LEXIS 270 (June 20, 2006).

Applied in Martin v. Taylor, 857 F.2d 958 (4th Cir. 1988); McCary v. Commonwealth, 36 Va. App. 27, 548 S.E.2d 239, 2001 Va. App. LEXIS 462 (2001); Wandemberg v. Commonwealth, 70 Va. App. 124, 825 S.E.2d 291, 2019 Va. App. LEXIS 71 (2019).

CIRCUIT COURT OPINIONS

Applicability. - Statues of General Robert E. Lee and General Thomas Jonathan Jackson were monuments or memorials to veterans of the Civil War, also known as the War Between the States, because they were both depicted in their Confederate uniforms, with accoutrements, and mounted on their horses that they rode in battle. Payne v. City of Charlottesville, 102 Va. Cir. 431, 2019 Va. Cir. LEXIS 210 (Charlottesville Apr. 25, 2019).

Indictment sufficient. - Accord and satisfaction provision of subsection A of § 18.2-137 did not require dismissal as the felony indictment was not defective, and no authority existed to resolve a felony criminal charge by accord and satisfaction. Commonwealth v. Foreman,, 2020 Va. Cir. LEXIS 510 (Roanoke Jan. 13, 2020).

Valuation of property. - "Market replacement value" is not the same thing as "market value," and they are distinct terms with different meanings; replacement value does not operate as a substitute for market value, and they are not equivalent concepts since replacement value is the amount it costs to replace an item and is different from fair market value, which is concerned with the actual value of old items, including the age and condition, while replacement value is merely the cost of replacing an item. Commonwealth v. Spratley, 96 Va. Cir. 348, 2017 Va. Cir. LEXIS 156 (Loudoun County Sept. 8, 2017).

No inferences need be drawn from replacement value to prove the amount of loss caused by a property's destruction, and the replacement value itself suffices to establish the $1,000 minimum for felony destruction of property; thus, in explicitly allowing proof of the "fair market replacement value" to be used to meet the $1,000 felony threshold, the legislature intends to expand the means by which the Commonwealth is able to establish the requisite value beyond the mere use of the market value. Commonwealth v. Spratley, 96 Va. Cir. 348, 2017 Va. Cir. LEXIS 156 (Loudoun County Sept. 8, 2017).

Evidence sufficient to support conviction. - Commonwealth's evidence was sufficient to support defendant's conviction of felony destruction of property because the circuit court could reasonably find that the fair market replacement value of a destroyed electronic grocery store scale was $4,090; the circuit court received evidence that the replacement scale was purchased at a cost of $4,090 and that the scale was virtually identical to the scale defendant destroyed with the exception of the manufacturer's name plate on it. Commonwealth v. Spratley, 96 Va. Cir. 348, 2017 Va. Cir. LEXIS 156 (Loudoun County Sept. 8, 2017).

OPINIONS OF THE ATTORNEY GENERAL

Applicability of § 15.2-1812 . - Section 15.2-1812 applies to monuments for any war or conflict, including an engagement in such war or conflict, or for war veterans, but not to memorials or markers erected to recognize the historical significance of buildings. See opinion of Attorney General to W. Clarke Whitfield, Jr., Esquire, Danville City Attorney, No. 15-050, 2015 Va. AG LEXIS 23 (8/6/15).

§ 18.2-138. Damaging public buildings, etc.; penalty.

Any person who willfully and maliciously (i) breaks any window or door of the Capitol, any courthouse, house of public worship, institution of higher education, school house, city or town hall, or other public building or library, (ii) damages or defaces the Capitol or any other public building or any statuary in the Capitol, on the Capitol Square, or in or on any other public buildings or public grounds, or (iii) destroys any property in any of such buildings shall be guilty of a Class 6 felony if damage to the property is $1,000 or more or a Class 1 misdemeanor if the damage is less than $1,000.

Any person who willfully and unlawfully damages or defaces any book, newspaper, magazine, pamphlet, map, picture, manuscript, or other property located in any library, reading room, museum, or other educational institution shall be guilty of a Class 6 felony if damage to the property is $1,000 or more or a Class 1 misdemeanor if the damage is less than $1,000.

(Code 1950, § 18.1-177; 1960, c. 358; 1975, cc. 14, 15; 1990, c. 454.)

Editor's note. - At the direction of the Virginia Code Commission, "institution of higher education" was substituted for "college" in the first paragraph to conform to Acts 2016, c. 588.

Law review. - For article, "Virginia Laws Affecting Churches," see 43 Va. L. Rev. 119 (1957).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Religious Societies, § 3.

§ 18.2-138.1.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions relating to willful and malicious damage to or defacement of public or private facilities, see § 15.2-1812.2 .

§ 18.2-139. Injuries to trees, fences or herbage on grounds of Capitol, or in any public square.

If any person:

  1. Cut down, pull up, girdle or otherwise injure or destroy any tree growing in the grounds of the Capitol, or in any public square or grounds, without the consent of the Governor, or of the circuit court of the county or city in which such grounds or square is situated; or
  2. Willfully and maliciously injure the fences or herbage of the Capitol grounds, or of any such square or grounds,

    he shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-180; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-140. Destruction of trees, shrubs, etc.

It shall be unlawful for any person to pick, pull, pull up, tear, tear up, dig, dig up, cut, break, injure, burn or destroy, in whole or in part, any tree, shrub, vine, plant, flower or turf found, growing or being upon the land of another, or upon any land reserved, set aside or maintained by the Commonwealth as a public park, or as a refuge or sanctuary for wild animals, birds or fish, or upon any land reserved, set aside or maintained as a public park by a park authority created under the provisions of § 15.2-5702 , without having previously obtained the permission in writing of such other or his agent or of the superintendent or custodian of such park, refuge or sanctuary so to do, unless the same be done under the personal direction of such owner, his agent, tenant or lessee or superintendent or custodian of such park, refuge or sanctuary.

Any person violating this section shall be guilty of a Class 3 misdemeanor; provided, however, that the approval of the owner, his agent, tenant or lessee, or the superintendent or custodian of such park or sanctuary afterwards given in writing or in open court shall be a bar to further prosecution or suit.

(Code 1950, § 18.1-178; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 757; 1998, c. 81.)

Cross references. - As to dumping trash on highways, rights of way or private property, see § 33.2-802 .

The 1998 amendment, in the first paragraph, inserted "or upon any land reserved, set aside or maintained as a public park by a park authority created under the provisions of § 15.2-5702 ."

§ 18.2-141. Cutting or destroying trees; carrying axe, saw, etc., while hunting.

It shall be unlawful for any person while hunting for game or wildlife on the property of another to carry any axe other than a belt axe with a handle less than twenty inches, saw or other tool or instrument customarily used for the purpose of cutting, felling, mutilating or destroying trees without obtaining prior permission of the landowner. Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

Conservation police officers, sheriffs and all law-enforcement officers shall enforce the provisions of this section.

(Code 1950, § 18.1-179; 1960, c. 358; 1975, cc. 14, 15.)

Editor's note. - At the direction of the Virginia Code Commission, "Conservation police officers" was substituted for "Game wardens" to conform to the name change made by Acts 2007, c. 87.

§ 18.2-142.

Repealed by Acts 1979, c. 252.

Cross references. - For present provisions making it unlawful to damage caves, see § 10.1-1000 et seq.

§ 18.2-143. Pulling down fences or leaving open gates.

If any person, without permission of the owner, pull down the fence of another and leave the same down, or, without permission, open and leave open the gate of another, or any gate across a public road established by order of court, or if any person other than the owner or owners of the lands through which a line of railroad runs open and leave open a gate at any public or private crossing of the right-of-way of a railroad, he shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-176; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fences, § 4; 15 M.J. Railroads, § 143; 18 M.J. Trespass, § 1.

Article 7. Damage to and Tampering With Property.

§ 18.2-144. Maiming, killing or poisoning animals, fowl, etc.

Except as otherwise provided for by law, if any person maliciously shoot, stab, wound or otherwise cause bodily injury to, or administer poison to or expose poison with intent that it be taken by, any horse, mule, pony, cattle, swine or other livestock of another, with intent to maim, disfigure, disable or kill the same, or if he do any of the foregoing acts to any animal of his own with intent to defraud any insurer thereof, he shall be guilty of a Class 5 felony. If any person do any of the foregoing acts to any fowl or to any companion animal with any of the aforesaid intents, he shall be guilty of a Class 1 misdemeanor, except that any second or subsequent offense shall be a Class 6 felony if the current offense or any previous offense resulted in the death of an animal or the euthanasia of an animal based on the recommendation of a licensed veterinarian upon determination that such euthanasia was necessary due to the condition of the animal, and such condition was a direct result of a violation of this section.

(Code 1950, § 18.1-159; 1960, c. 358; 1964, c. 400; 1975, cc. 14, 15; 1977, c. 598; 1978, c. 559; 1999, c. 620.)

Cross references. - As to larceny of dog, see § 18.2-97 .

As to comprehensive animal laws, see § 3.2-5900 et seq.

As to status of dogs as personal property, see § 3.2-6585.

The 1999 amendment deleted "And" from the beginning of the second sentence, and added "except that any second or subsequent offense shall be a Class 6 felony if the current offense or any previous offense resulted in the death of an animal or the euthanasia of an animal based on the recommendation of a licensed veterinarian upon determination that such euthanasia was necessary due to the condition of the animal, and such condition was a direct result of a violation of this section."

Michie's Jurisprudence. - For related discussion, see 1B M.J. Animals, §§ 4, 14, 15; 14B M.J. Poisons and Poisoning, § 1; 18 M.J. Trespass, § 1.

CASE NOTES

This section makes the offense consist of an act combined with a particular intent, and that intent cannot be presumed but must be proven. Thus an instruction to the effect that the law presumes a man to intend the natural and probable consequence of his act, and that if the accused struck a cow with a deadly weapon, the presumption of the law would be that he unlawfully intended to maim, disfigure and kill the cow, constituted error. Winckler v. Commonwealth, 155 Va. 1146 , 156 S.E. 364 (1931).

Wounding in self-defense. - In a trial under this section it appeared from the evidence that the accused wounded a cow in an attempt to save himself or his own cow when charged by it. Accused's narrative was uncontradicted and was corroborated by other testimony. It was held that, giving to the testimony of the Commonwealth all the probative value to which it was entitled, it was wholly insufficient to sustain the verdict of guilty. Winckler v. Commonwealth, 155 Va. 1146 , 156 S.E. 364 (1931).

Sufficiency of evidence. - Sufficient evidence permitted the jury to find beyond a reasonable doubt that defendant possessed a firearm and shot a dog where defendant admitted driving by the site of the shooting on the day of the shooting, one of two girls saw defendant shoot a firearm toward the barn where they were playing with the dog, the other saw him with a firearm right after the shooting, and the girls were certain defendant was the man they saw at the barn with the firearm. Ford v. Commonwealth, 48 Va. App. 262, 630 S.E.2d 332, 2006 Va. App. LEXIS 238 (2006).

Evidence that defendant got the knife for her fiance, who stabbed the pig over 31 times while defendant held it supported convictions for animal cruelty and malicious killing of the livestock of another. Sutter v. Commonwealth, No. 0977-17-2, 2018 Va. App. LEXIS 245 (Sept. 25, 2018).

§ 18.2-144.1. Prohibition against killing or injuring police animals; penalty.

It shall be unlawful for any person to maliciously shoot, stab, wound or otherwise cause bodily injury to, or administer poison to or expose poison with intent that it be taken by a dog, horse or other animal owned, used or trained by a law-enforcement agency, regional jail or the Department of Corrections while such animal is performing his lawful duties or is being kept in a kennel, pen or stable while off duty. A violation of this section shall be punishable as a Class 5 felony. The court shall order that the defendant pay restitution for the cost of any animal killed or rendered unable to perform its duties. Such cost shall include training expenses.

(1989, c. 558; 1998, c. 8.)

The 1998 amendment inserted "regional jail" in the first sentence.

§ 18.2-144.2. Prohibition against making a false representation of ownership of an animal to a public or private animal shelter; penalty.

  1. It shall be unlawful for any person to deliver or release any animal not owned by that person to a public or private animal shelter or humane society, as these terms are defined in § 3.2-6500, or to any other similar facility for animals, or any agent thereof, and to falsely represent to such facility or agent that such person is the owner of the animal.
  2. A violation of subsection A is a Class 1 misdemeanor.
  3. No public or private animal shelter, humane society or other similar facility for animals, or the directors or employees of any such business or facility, shall, in the absence of gross negligence, be civilly liable for accepting and disposing of any animal in good faith from a person who falsely claims to be the owner of the animal.

    (1994, c. 885; 2014, c. 148.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860, effective October 1, 2008.

The 2014 amendments. - The 2014 amendment by c. 148, in subsections A and C, substituted "public or private" for "pound"; and substituted "is" for "shall be punished as" in subsection B.

§ 18.2-145. Protection of homing pigeons.

It shall be unlawful for any person at any time or in any manner to hunt, pursue, take, capture, wound, maim, disfigure, or kill any homing pigeon of another person, or to make use of any pit or pitfall, scaffold, cage, snare, trap, net, baited hook or similar device or drug, poison chemical or explosive, for the purpose of injuring, capturing or killing any such homing pigeon, provided that any officer, employee or agent of a city or county acting pursuant to authority of an ordinance thereof may take, capture and kill pigeons in, on and about any building or structure devoted to business, commercial or industrial purposes when any pigeons are using such premises for roosting, resting or congregating thereon; all pigeons taken upon such premises shall be conclusively deemed not to be homing pigeons or the property of any person.

Any person violating any of the foregoing provisions shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-160; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 8.

§ 18.2-145.1. Damaging or destroying research farm product; penalty; restitution.

  1. Any person or entity that (i) maliciously damages or destroys any farm product, as defined in § 3.2-4709, and (ii) knows the product is grown for testing or research purposes in the context of product development in conjunction or coordination with a private research facility or a baccalaureate institution of higher education or any federal, state, or local government agency is guilty of a Class 1 misdemeanor if the value of the farm product was less than $1,000, or a Class 6 felony if the value of the farm product was $1,000 or more.
  2. The court shall order the defendant to make restitution in accordance with § 19.2-305.1 for the damage or destruction caused. For the purpose of awarding restitution under this section, the court shall determine the market value of the farm product prior to its damage or destruction and, in so doing, shall include the cost of: (i) production, (ii) research, (iii) testing, (iv) replacement, and (v) product development directly related to the product damaged or destroyed. (2001, cc. 547, 572; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860, effective October 1, 2008.

At the direction of the Virginia Code Commission, "baccalaureate institution of higher education" was substituted for "university" and a minor stylistic change was made in the first paragraph to conform to Acts 2016, c. 588.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in subsection A.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in subsection A.

§ 18.2-146. Breaking, injuring, defacing, destroying or preventing the operation of vehicle, aircraft or boat.

Any person who shall individually or in association with one or more others willfully break, injure, tamper with or remove any part or parts of any vehicle, aircraft, boat or vessel for the purpose of injuring, defacing or destroying said vehicle, aircraft, boat or vessel, or temporarily or permanently preventing its useful operation, or for any purpose against the will or without the consent of the owner of such vehicle, aircraft, boat or vessel, or who shall in any other manner willfully or maliciously interfere with or prevent the running or operation of such vehicle, aircraft, boat or vessel, shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-166; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to tampering with, etc., airplanes or markings of airports, landing fields or other aeronautical facilities, see § 5.1-16.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 126.3; 2C M.J. Aviation, § 1.

CASE NOTES

Willfulness does not require finding of intent and bad purpose. - The court of appeals rejected defendant's proffered instruction which would have required the jury to find both intent and bad purpose under the first element of willfulness; the particular bad purpose required under this section is specifically set forth as a separate element of the offense; an instruction requiring the jury to find bad purpose under the element of willfulness would have been redundant and not required by law. Benjamin v. Commonwealth, No. 1064-88-4 (Ct. of Appeals July 3, 1990).

Suppression of evidence. - Assuming that an investigator's actions violated §§ 18.2-146 and 19.2-249 , that violation did not entitle defendant to suppression of the evidence because the statutes did not provide for the remedy of exclusion. Hill v. Commonwealth, No. 1828-11-3, 2012 Va. App. LEXIS 318 (Ct. of Appeals Oct. 9, 2012).

§ 18.2-147. Entering or setting in motion, vehicle, aircraft, boat, locomotive or rolling stock of railroad; exceptions.

Any person who shall, without the consent of the owner or person in charge of a vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad, climb into or upon such vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad, with intent to commit any crime, malicious mischief, or injury thereto, or who, while a vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad is at rest and unattended, shall attempt to manipulate any of the levers and starting crank or other device, brakes or mechanism thereof or to set into motion such vehicle, aircraft, boat, vessel, locomotive or other rolling stock of a railroad, with the intent to commit any crime, malicious mischief, or injury thereto, shall be guilty of a Class 1 misdemeanor, except that the foregoing provision shall not apply when any such act is done in an emergency or in furtherance of public safety or by or under the direction of an officer in the regulation of traffic or performance of any other official duty.

(Code 1950, § 18.1-167; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-147.1. Breaking and entering into railroad cars, motortrucks, aircraft, etc., or pipeline systems.

Any person who breaks the seal or lock of any railroad car, vessel, aircraft, motortruck, wagon or other vehicle or of any pipeline system, containing shipments of freight or express or other property, or breaks and enters any such vehicle or pipeline system with the intent to commit larceny or any felony therein shall be guilty of a Class 4 felony; provided, however, that if such person is armed with a firearm at the time of such breaking and entering, he shall be guilty of a Class 3 felony.

(1979, c. 336.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, § 2.

CASE NOTES

Vehicle of commerce. - Where victim stored tires in the trailer and also transported the tires in the trailer for sale at flea markets, the tires were property which was the subject of transportation in a vehicle in commerce. Furthermore, the tires were cargo, chattels, or goods transported by victim and were analogous to freight. Hairston v. Commonwealth, 19 Va. App. 487, 452 S.E.2d 872 (1995).

From its very tenor this section is directed to cargo theft. The particular vehicle or pipeline system is required to contain, according to the crucial clause, "shipments of freight or express or other property." Martin v. Commonwealth, 224 Va. 298 , 295 S.E.2d 890 (1982).

Section may have been adopted from 18 U.S.C.S. § 2117. The purpose of the federal statute is to provide protection for interstate and foreign shipments while in transit. Martin v. Commonwealth, 224 Va. 298 , 295 S.E.2d 890 (1982).

Construction of "other property." - The term "other property" cannot be viewed in the abstract and construed broadly to mean "any property," whether or not a part of a "shipment." Under the rule of ejusdem generis, when a particular class of persons or things is enumerated in a statute and general words follow, the general words are to be restricted in their meaning to a sense analogous to the less general, particular words. Likewise, according to the maxim noscitur a sociis (associated words) when general and specific words are grouped, the general words are limited by the specific and will be construed to embrace only objects similar in nature to those things identified by the specific words. Martin v. Commonwealth, 224 Va. 298 , 295 S.E.2d 890 (1982).

While the meaning of "other property" does not encompass articles of personal property kept in private vehicles, "other property" does equate to shipments of things analogous to freight or express. Hairston v. Commonwealth, 19 Va. App. 487, 452 S.E.2d 872 (1995).

"Shipment" applies to the term "other property." Martin v. Commonwealth, 224 Va. 298 , 295 S.E.2d 890 (1982).

Section inapplicable to personal property kept in private automobile. - The statutory term "other property" is restricted in its meaning to "shipments" of things analogous to "freight" or "express." The meaning does not encompass articles of personal property kept in a private automobile for sentimental reasons. Martin v. Commonwealth, 224 Va. 298 , 295 S.E.2d 890 (1982).

§ 18.2-147.2. Devices for puncturing motor vehicle tires.

It shall be unlawful for any person to manufacture, distribute, have in his possession or place upon any highway or private property jackrocks which are primarily designed for the purpose of disabling motor vehicles by the puncturing of tires by anyone other than a law-enforcement officer. Any person convicted of unlawful manufacture, distribution, possession or use of such device shall be guilty of a Class 1 misdemeanor. A law-enforcement officer who is lawfully engaged in the discharge of his duties shall not be subject to the provisions of this section.

(1982, c. 253; 2007, c. 437.)

The 2007 amendments. - The 2007 amendment by c. 437 inserted "by anyone other than a law-enforcement officer" at the end of the first sentence and added the present last sentence.

§ 18.2-148. Bona fide repossession under lien.

The provisions of §§ 18.2-102 , 18.2-146 and 18.2-147 shall not apply to a bona fide repossession of a vehicle, aircraft, boat or vessel by the holder of a lien on such vehicle, aircraft, boat or vessel, or by the agents or employees of such lienholder.

(Code 1950, § 18.1-168; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 8.

§ 18.2-149. Injury to hired animal, aircraft, vehicle or boat.

If any person after having rented or leased from any other person an animal, aircraft, vehicle, boat or vessel shall willfully injure or damage the same, by hard or reckless driving or using, or by using the same in violation of any statute of this Commonwealth, or allow or permit any other person so to do, or hire the same to any other person without the consent of the bailor, such person shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-161; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to procuring an animal, aircraft, vehicle or boat mentioned in this section by fraud, or as to failure to pay rental for or damage to such animal, etc., see § 18.2-206 .

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 126.3; 2C M.J. Aviation, § 1; 12A M.J. Livery Stables, § 1.

§ 18.2-150. Willfully destroying vessel, etc.

If any person willfully scuttle, cast away or otherwise dispose of, or in any manner destroy, except as otherwise provided, a ship, vessel or other watercraft, with intent to injure or defraud any owner thereof or of any property on board the same, or any insurer of such ship, vessel or other watercraft, or any part thereof, or of any such property on board the same, if the same be of the value of $1,000 or more, he shall be guilty of a Class 4 felony, but if it be of less value than $1,000, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-170; 1960, c. 358; 1975, cc. 14, 15; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500 or more" for "$200" and "less value than $500" for "less value than $200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice.

§ 18.2-151. Opening or carrying away pumps, etc., used for dispensing gasoline, etc.

If any person, with intent to commit larceny therefrom, break and open, or open, or carry away, any pump, tank, or other similar equipment or container used for dispensing or storing kerosene, gasoline or motor oils, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-169; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-151.1. Injuring, destroying, removing, or tampering with firefighting equipment; penalty.

Any person who injures, destroys, removes, tampers with, or otherwise interferes with the operation of (i) any equipment or apparatus used for fighting fires or for protecting property or human life by a fire company or fire department, as those terms are defined in § 27-6.01 , or (ii) any emergency medical services vehicle, as defined in § 32.1-111.1 , intending to temporarily or permanently prevent the useful operation of such equipment or apparatus is guilty of a Class 1 misdemeanor.

(2016, c. 687.)

§ 18.2-152. Stealing from or tampering with parking meter, vending machine, pay telephone, etc.

Any person who enters, forces or attempts to force an entrance into, tampers with, or inserts any part of an instrument into any parking meter, vending machine, pay telephone, money changing machine, or any other device designed to receive money, with intent to steal therefrom, shall for the first conviction thereof be guilty of a Class 1 misdemeanor, and for any subsequent conviction of a violation thereof shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-125.1; 1968, c. 518; 1975, cc. 14, 15.)

Law review. - For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

Article 7.1. Computer Crimes.

§ 18.2-152.1. Short title.

This article shall be known and may be cited as the "Virginia Computer Crimes Act."

(1984, c. 751.)

Cross references. - As to the Attorney General's limited authority to institute or conduct criminal prosecutions under this article, see § 2.2-511 .

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

For an article, "Uniformity, Choice of Law and Software Sales," see 8 Geo. Mason L. Rev. 261 (1999).

For a note, "Computer Network Trespasses: Solving New Problems with Old Solutions," see 57 Wash. & Lee L. Rev. 209 (2000).

For 2000 survey of Virginia technology law, see 34 U. Rich. L. Rev. 1051. (2000).

For 2002 survey of Virginia technology law, see 37 U. Rich. L. Rev. 341 (2002).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 2.

Applied in DIRECTV, Inc. v. Amato, 269 F. Supp. 2d 688, 2003 U.S. Dist. LEXIS 12722 (E.D. Va. 2003); 21st Century Sys. v. Perot Sys. Gov't Servs., 284 Va. 32 , 726 S.E.2d 236, 2012 Va. LEXIS 139 (2012).

§ 18.2-152.2. Definitions; computer crimes.

For purposes of this article:

"Commercial electronic mail" means electronic mail, the primary purpose of which is the advertisement or promotion of a commercial product or service.

"Computer" means a device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions. Such term does not include simple calculators, automated typewriters, facsimile machines, or any other specialized computing devices that are preprogrammed to perform a narrow range of functions with minimal end-user or operator intervention and are dedicated to a specific task.

"Computer data" means any representation of information, knowledge, facts, concepts, or instructions which is being prepared or has been prepared and is intended to be processed, is being processed, or has been processed in a computer or computer network. "Computer data" may be in any form, whether readable only by a computer or only by a human or by either, including, but not limited to, computer printouts, magnetic storage media, punched cards, or stored internally in the memory of the computer.

"Computer network" means two or more computers connected by a network.

"Computer operation" means arithmetic, logical, monitoring, storage or retrieval functions and any combination thereof, and includes, but is not limited to, communication with, storage of data to, or retrieval of data from any device or human hand manipulation of electronic or magnetic impulses. A "computer operation" for a particular computer may also be any function for which that computer was generally designed.

"Computer program" means an ordered set of data representing coded instructions or statements that, when executed by a computer, causes the computer to perform one or more computer operations.

"Computer services" means computer time or services, including data processing services, Internet services, electronic mail services, electronic message services, or information or data stored in connection therewith.

"Computer software" means a set of computer programs, procedures and associated documentation concerned with computer data or with the operation of a computer, computer program, or computer network.

"Electronic mail service provider" (EMSP) means any person who (i) is an intermediary in sending or receiving electronic mail and (ii) provides to end-users of electronic mail services the ability to send or receive electronic mail.

"Financial instrument" includes, but is not limited to, any check, draft, warrant, money order, note, certificate of deposit, letter of credit, bill of exchange, credit or debit card, transaction authorization mechanism, marketable security, or any computerized representation thereof.

"Network" means any combination of digital transmission facilities and packet switches, routers, and similar equipment interconnected to enable the exchange of computer data.

"Owner" means an owner or lessee of a computer or a computer network or an owner, lessee, or licensee of computer data, computer programs or computer software.

"Person" shall include any individual, partnership, association, corporation or joint venture.

"Property" shall include:

  1. Real property;
  2. Computers and computer networks;
  3. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:
    1. Tangible or intangible;
    2. In a format readable by humans or by a computer;
    3. In transit between computers or within a computer network or between any devices which comprise a computer; or
    4. Located on any paper or in any device on which it is stored by a computer or by a human; and
  4. Computer services.

    "Spam" means unsolicited commercial electronic mail. Spam shall not include commercial electronic mail transmitted to a recipient with whom the sender has an existing business or personal relationship.

    A person "uses" a computer or computer network when he attempts to cause or causes a computer or computer network to perform or to stop performing computer operations.

    A person is "without authority" when he knows or reasonably should know that he has no right, agreement, or permission or acts in a manner knowingly exceeding such right, agreement, or permission.

    (1984, c. 751; 1999, cc. 886, 904, 905; 2000, c. 627; 2003, cc. 987, 1016; 2005, cc. 761, 812, 827; 2009, cc. 321, 376; 2010, c. 489.)

Cross references. - As to the authority for certain size cities to provide computer services, see § 15.2-2109 .

The 1999 amendments. - The 1999 amendments by cc. 886, 904 and 905, are identical, and in the paragraph defining "Computer services" substituted "means" for "includes," substituted "including" for "or," inserted "Internet services, electronic mail services, electronic message services," added the paragraph defining "Electronic mail service provider" and in the last paragraph, inserted the clause (i) designator, and added "or (ii) he uses a computer, a computer network, or the computer services of an electronic mail service provider to transmit unsolicited bulk electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider. Transmission of electronic mail from an organization to its members shall not be deemed to be unsolicited bulk electronic mail."

The 2000 amendments. - The 2000 amendment by c. 627 rewrote the paragraph defining "Computer network," which formerly read: " 'Computer network' means a set of related, remotely connected devices and any communications facilities including more than one computer with the capability to transmit data among them through the communications facilities," and added the paragraph defining "Network."

The 2003 amendments. - The 2003 amendments by cc. 987 and 1016 are identical, and rewrote the paragraphs beginning "A person 'uses' a computer" and "A person is 'without authority'" at the end of the section.

The 2005 amendments. - The 2005 amendments by cc. 761, 812, and 827 are nearly identical, and rewrote the definition of "computer"; in the next-to-last undesignated paragraph, deleted the paragraph designation of 1., deleted former paragraph 2. which read: "The withholding or denial of the use of a computer, computer network, computer program, computer data or computer software to another use; or", and deleted former paragraph 3. which read: "A person to put false information into a computer."; and rewrote the last undesignated paragraph.

The 2009 amendments. - The 2009 amendments by cc. 321 and 376 are virtually identical, and substituted "agreement, or permission or acts in a manner exceeding such right, agreement" for "or permission or knowingly acts in a manner exceeding such right" in the last paragraph. In addition, c. 321 inserted "knowingly" preceding "exceeding such right" in the last paragraph, which has been set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 489 inserted "commercial electronic mail" and "spam" definitions.

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

For a note, "Computer Network Trespasses: Solving New Problems with Old Solutions," see 57 Wash. & Lee L. Rev. 209 (2000).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 2 Jurisdiction. § 2.04 Jurisdiction Over Parties or Property: "Notice" or "Actual" Jurisdiction. Friend.

CASE NOTES

"Computer." - Circuit court properly convicted defendant of computer fraud because defendant's cellular telephone was a device that fell within the statutory definition of a computer where the evidence wholly supported the conclusion that the way in which defendant used his smart phone - accessing the Internet and using a mobile app to transfer money from his grandmother's bank account to his - rendered it a computer. Brewer v. Commonwealth, 71 Va. App. 585, 838 S.E.2d 557, 2020 Va. App. LEXIS 67 (2020).

Documents not "computer software." - Set of documents received by defendant was not a computer program, for it was not something that could be executed by a computer, causing the computer to perform a computer operation and although the documents described a computer program proposed to be created, they did not relate to a program in existence, and, thus, were not documentation associated with a set of computer programs or procedures; therefore, the set of documents obtained by the defendant was not, by definition, computer software and did not constitute property specified in the indictment to have been obtained from computer software company and thus the defendant's conviction of obtaining software by false pretenses cannot stand. O'Connor v. Commonwealth, 16 Va. App. 416, 430 S.E.2d 567 (1993).

CIRCUIT COURT OPINIONS

Use of Virginia computers for purposes of personal jurisdiction. - Union organizers who allegedly sent misleading e-mails to employees of an Internet service access provider were subject to personal jurisdiction under subdivision A 3 and subsection B of § 8.01-328.1 and subdivision 4 of § 18.2-152.2 because the organizers sent the allegedly tortious e-mail messages to Virginia computers over Virginia servers, thereby causing the Virginia computers and networks to perform functions for which they were generally designed. Aitken v. Communs. Workers of Am., 496 F. Supp. 2d 653, 2007 U.S. Dist. LEXIS 51434 (E.D. Va. 2007).

Use of computer "without authority." - To the extent defendant's demurrer asserted that no claim was stated because he had authority to use his employer's computer and to download data, the demurrer was overruled because defendant had no authority to use his employer's computers for purposes not authorized by his employer and inimical to his employer's best interest. McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 2003 Va. Cir. LEXIS 274 (Rockingham County 2003).

§ 18.2-152.3. Computer fraud; penalty.

Any person who uses a computer or computer network, without authority and:

  1. Obtains property or services by false pretenses;
  2. Embezzles or commits larceny; or
  3. Converts the property of another;

    is guilty of the crime of computer fraud.

    If the value of the property or services obtained is $1,000 or more, the crime of computer fraud shall be punishable as a Class 5 felony. Where the value of the property or services obtained is less than $1,000, the crime of computer fraud shall be punishable as a Class 1 misdemeanor.

    (1984, c. 751; 1985, c. 322; 2003, cc. 987, 1016; 2005, cc. 747, 761, 827, 837; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2003 amendments. - The 2003 amendments by cc. 987 and 1016 are identical, and substituted "is" for "shall be" in the language immediately following subdivision 3.

The 2005 amendments. - The 2005 amendments by cc. 747, 761, 827, and 837 are identical, and deleted "with the intent to" at the end of the first paragraph, substituted "Obtains" for "Obtain" in subdivision 1, "Embezzles or commits" for "Embezzle or commit" in subdivision 2, and "Converts" for "Convert" in subdivision 3.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in the last paragraph.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in the last paragraph.

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fraud and Deceit, § 30.

CASE NOTES

Proof. - The Virginia Computer Crimes Act does not require proof of elements beyond those necessary to prove copyright infringement of a computer program. Rosciszewski v. Arete Assocs., 1 F.3d 225 (4th Cir. 1993).

Unauthorized use of computer network. - The defendants violated the Computer Crimes Act by causing "aol.com" to appear in the electronic header information of e-mail messages which they sent to AOL members advertising pornographic web sites. Sending such messages through AOL's computer network was unauthorized, and the defendants intended to obtain services by false pretenses and to convert AOL's property in that, by using the false "aol.com" designation, the defendants illegally obtained the unauthorized service of AOL's mail delivery service and the defendants obtained free advertising from AOL because AOL, not the defendants, bore the cost of sending these messages. America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998).

Preemption. - Virginia Computer Crimes Act (VCCA) claims were dismissed because allegations of unauthorized copying of software under the Virginia Computer Crimes Act were preempted by the Copyright Act. SecureInfo Corp. v. Telos Corp., 387 F. Supp. 2d 593, 2005 U.S. Dist. LEXIS 21228 (E.D. Va. 2005).

Virginia Computer Crimes Act (VCCA), § 18.2-152.3 et seq., claim was preempted by the Copyright Act because it was difficult to see how any claim under the VCCA would have contained any elements making it qualitatively different from the Copyright Act claims because the complaint consistently alleged that each of the reports generated by a government relations and analysis firm's proprietary database bore a copyright notice, that the firm owned a copyright in the proprietary database in the organization of the information in a searchable format available in no other source, and that the firm owned copyrights in each of the bill summaries within the database that were original works of authorship. State Analysis, Inc. v. Am. Fin. Servs. Assoc., 621 F. Supp. 2d 309, 2009 U.S. Dist. LEXIS 27548 (E.D. Va. 2009).

At no point did the complaint plead specific facts giving rise to a plausible inference of larceny, false pretenses, embezzlement, or conversion, as required by the plain text of the Virginia Computer Crimes Act, § 18.2-152.3 et seq. In fact, the claim was reduced to nothing more than a copyright infringement allegation, dressed up in VCCA garb. Cvent, Inc. v. Eventbrite, Inc.,, 2010 U.S. Dist. LEXIS 96354 (E.D. Va. Sept. 14, 2010).

In a Copyright Act case in which plaintiff moved to remand the case back to state court, the federal district court had jurisdiction over two claims; plaintiff's claims under subdivision 3 of § 18.2-152.3 and subdivision A 6 of § 18.2-152.4 were preempted by the Copyright Act, while its claims under subdivision 1 of § 18.2-152.3 and § 18.2-154.15 were not. Maxient, LLC v. Symplicity Corp., 63 F. Supp. 3d 592, 2014 U.S. Dist. LEXIS 150542 (E.D. Va. 2014).

Evidence held sufficient. - Evidence was sufficient to support finding that police officer used computerized criminal information system, without authority, in order to help her brother retain stolen vehicle. Barnes v. Commonwealth, No. 2693-98-1 (Ct. of Appeals Mar. 21, 2000).

Website host demonstrated that a competitor and its employee obtained its property by false pretenses in violation of § 18.2-152.3 and subdivision A 6 of § 18.2-152.4 , where the website host traced alleged hacking attacks to the competitor and its employee, and it was highly likely that the competitor and its employee converted the website host's proprietary information for their own use. Physicians Interactive v. Lathian Sys.,, 2003 U.S. Dist. LEXIS 22868 (E.D. Va. Dec. 5, 2003).

Trial court did not err in finding defendant guilty, following a bench trial, of computer fraud, computer trespass, embezzlement, and attempted extortion, as the evidence showed that defendant transferred computer files from his computer at work to a third-party server before he was terminated from his position as human resource director, that he used the removed material to threaten the company in an attempt to forgive a loan it had made to him, and that the company established the value of the material removed as required to support convictions on those offenses. DiMaio v. Commonwealth, 46 Va. App. 755, 621 S.E.2d 696, 2005 Va. App. LEXIS 456 (2005).

Convictions of computer fraud and larceny were supported by sufficient evidence, including testimony that the market value of personnel files taken by defendant exceeded $10,000, and unchallenged testimony that market value of form covenants not to compete taken by defendant was between $5,000 and $7,000. DiMaio v. Commonwealth, 272 Va. 504 , 636 S.E.2d 456, 2006 Va. LEXIS 110 (2006).

Circuit court properly convicted defendant of computer fraud because defendant's cellular telephone was a device that fell within the statutory definition of a computer where the evidence wholly supported the conclusion that the way in which defendant used his smart phone - accessing the Internet and using a mobile app to transfer money from his grandmother's bank account to his - rendered it a computer. Brewer v. Commonwealth, 71 Va. App. 585, 838 S.E.2d 557, 2020 Va. App. LEXIS 67 (2020).

Evidence insufficient. - Defendants were properly granted summary judgment on plaintiff corporations' Virginia Computer Crimes Act claim because the corporations produced no factual evidence that defendant used a computer to withdraw funds he was not authorized to withdraw for an illegal or unauthorized purpose; defendant was authorized to access one of the corporation's bank accounts, and defendant's use of a computer was merely incidental to the withdrawal of the money. Othentec Ltd. v. Phelan, 526 F.3d 135, 2008 U.S. App. LEXIS 10233 (4th Cir. 2008).

CIRCUIT COURT OPINIONS

Unauthorized use of computer network. - Where defendant's demurrer asserted that no claim was stated because he had authority to use his employer's computer and to download data, the demurrer was overruled because defendant had no authority to use his employer's computers for purposes not authorized by his employer and inimical to his employer's best interest. McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 2003 Va. Cir. LEXIS 274 (Rockingham County 2003).

No violation found. - Plaintiff had not shown that his former partners violated the Virginia Computer Crimes Act. Denying plaintiff access to a computer network and transferring computer systems, software, and data did not constitute computer fraud, theft of computer services, or embezzlement; moreover, plaintiff had failed to prove damages resulting from any such violation. Greenfeld v. Stitely,, 2007 Va. Cir. LEXIS 7 (Fairfax County Jan. 5, 2007).

§ 18.2-152.3:1. Transmission of unsolicited commercial electronic mail (spam); penalty.

  1. Any person who:
    1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of spam through or into the computer network of an electronic mail service provider or its subscribers; or
    2. Knowingly sells, gives, or otherwise distributes or possesses with the intent to sell, give, or distribute software that (i) is primarily designed or produced for the purpose of facilitating or enabling the falsification of the transmission information or other routing information of spam; (ii) has only limited commercially significant purpose or use other than to facilitate or enable the falsification of the transmission information or other routing information of spam; or (iii) is marketed by that person acting alone or with another for use in facilitating or enabling the falsification of the transmission information or other routing information of spam is guilty of a Class 1 misdemeanor.
  2. Any person who commits a violation of subdivision A 1 when (i) the volume of spam transmitted exceeded 10,000 attempted recipients in any 24-hour time period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period or (ii) revenue generated from a specific transmission of spam exceeded $1,000 or the total revenue generated from all spam transmitted to any EMSP exceeded $50,000, is guilty of a Class 6 felony.
  3. Any person who knowingly hires, employs, uses, or permits any minor to assist in the transmission of spam in violation of subsection B is guilty of a Class 6 felony.

    (2003, cc. 987, 1016; 2010, c. 489.)

The 2010 amendments. - The 2010 amendment by c. 489 rewrote the section.

Law review. - For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 8B M.J. Fraud and Deceit, § 30; 10B M.J. Interstate Commerce, § 3.

CASE NOTES

Unconstitutionally overbroad. - Section 18.2-152.3:1 is unconstitutionally overbroad on its face because the statute prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution. Jaynes v. Commonwealth, 276 Va. 443 , 666 S.E.2d 303, 2008 Va. LEXIS 104 (2008), cert. denied, 129 S. Ct. 1670, 2009 U.S. LEXIS 2463, 173 L. Ed. 2d 1036 (U.S. 2009).

Statute violates protected right of anonymous speech. - By prohibiting false routing information in the dissemination of e-mails, § 18.2-152.3:1 infringes on the protected right to engage in anonymous speech. Jaynes v. Commonwealth, 276 Va. 443 , 666 S.E.2d 303, 2008 Va. LEXIS 104 (2008), cert. denied, 129 S. Ct. 1670, 2009 U.S. LEXIS 2463, 173 L. Ed. 2d 1036 (U.S. 2009).

Jurisdiction. - Because the use of the computer network of an e-mail service provider or its subscribers was an integral part of the crime charged and because the use of a provider's e-mail servers was the immediate result of defendant's acts, defendant was amenable to prosecution in Virginia for a violation of § 18.2-152.3:1 . Jaynes v. Commonwealth, 276 Va. 443 , 666 S.E.2d 303, 2008 Va. LEXIS 104 (2008), cert. denied, 129 S. Ct. 1670, 2009 U.S. LEXIS 2463, 173 L. Ed. 2d 1036 (U.S. 2009).

Preemption. - Insolvent LLC's computer fraud claims against a software company, which continued to provide services to the LLC's ex-employees, were preempted because they were not qualitatively different from copyright infringement claims; the statutory requirements of "use of a computer" or that the copying be done "without authority," did not qualitatively change the nature of the claim so that it is no longer preempted. OpenRisk, LLC v. MicroStrategy Servs. Corp., 876 F.3d 518, 2017 U.S. App. LEXIS 22736 (4th Cir. 2017), cert. denied, 138 S. Ct. 1575, 200 L. Ed. 2d 747 (U.S. 2018).

Not a trespass statute. - Section 18.2-152.3:1 does not prohibit the unauthorized use of privately owned e-mail servers; the statute only prohibits the intentional use of false routing information in connection with sending certain e-mail through such servers. Thus, even if an e-mail service provider specifically allowed persons using false Internet provider addresses and domain names to use its server, the sender could be prosecuted under § 18.2-152.3:1 although there was no unauthorized use or trespass; therefore, § 18.2-152.3:1 is not a trespass statute. Jaynes v. Commonwealth, 276 Va. 443 , 666 S.E.2d 303, 2008 Va. LEXIS 104 (2008), cert. denied, 129 S. Ct. 1670, 2009 U.S. LEXIS 2463, 173 L. Ed. 2d 1036 (U.S. 2009).

CIRCUIT COURT OPINIONS

Constitutionality of felony provisions. - Felony provisions of the statute governing the transmission of unsolicited bulk electronic mail (TUBES), satisfies constitutionally protected due process requirements in that the volume of the transmissions is clearly delineated, and thus, the public is on notice as to the precise limitations on their conduct. Where the terms used in TUBES are given their plain meaning and are harmonized with each other, a reasonable person is able to govern his or her conduct in a way to access the Internet for the purpose of transmitting electronic mail from anywhere in the world without fear of criminal prosecution in Virginia. Commonwealth v. Jaynes, 65 Va. Cir. 355, 2004 Va. Cir. LEXIS 272 (Loudoun County 2004).

Multiple-count indictments under statute governing the transmission of unsolicited bulk electronic mail were not subject to dismissal on the grounds that conviction on all the counts would violate defendants' constitutional rights protecting them from double jeopardy where the indictments charged distinct and separate times when the discrete acts of legislatively proscribed criminal conduct are alleged to have been committed. Commonwealth v. Jaynes, 65 Va. Cir. 355, 2004 Va. Cir. LEXIS 272 (Loudoun County 2004).

Statute governing the transmission of unsolicited bulk electronic mail does not violate the dormant commerce clause because Virginia has an interest in the protection of the property interests of its citizens and the requirement that intentionally disingenuous information be deleted from the routing process does not impose a weighty burden, if a burden at all, on any person or business choosing to send bulk electronic mail or on other states and the limitations that they choose to impose upon unsolicited bulk electronic mail transmissions. Commonwealth v. Jaynes, 65 Va. Cir. 355, 2004 Va. Cir. LEXIS 272 (Loudoun County 2004).

Constitutionality of misdemeanor provisions. - While the misdemeanor provisions of the statute governing the transmission of unsolicited bulk electronic mail, are constitutionally suspect both because of their failure to qualify by type or quantify by number the meaning of "bulk" electronic mail, since defendants had not been charged with the misdemeanor violations, judgment on the constitutionality of those provisions was reserved. Commonwealth v. Jaynes, 65 Va. Cir. 355, 2004 Va. Cir. LEXIS 272 (Loudoun County 2004).

Indictment sufficient without routing information. - Defendants who were charged with violations of § 18.2-152.3:1 were not entitled to a bill of particulars when the indictment sufficiently set forth where and when the offenses were allegedly committed. Routing information, names of electronic mail service providers and their subscribers, and the identity of the recepients, did not need to be provided when the act of transmission was the act that was circumscribed by the statute. Commonwealth v. Jaynes, 64 Va. Cir. 443, 2004 Va. Cir. LEXIS 155 (Loudoun County 2004).

Statute governing the transmission of unsolicited bulk electronic mail, which criminalizes the falsification or forging of transmission or other routing information, is not an unlawful content-based prior restraint on speech because, even assuming that TUBES implicates the First Amendment, the routing information affects only the manner and speed at which the mail is conveyed, not the content of the message, and limits only the use of false or forged transmission of routing information by senders of electronic mail, leaving open other channels of communication for those seeking to get their message to the public. Commonwealth v. Jaynes, 65 Va. Cir. 355, 2004 Va. Cir. LEXIS 272 (Loudoun County 2004).

§ 18.2-152.4. Computer trespass; penalty.

  1. It is unlawful for any person, with malicious intent, or through intentionally deceptive means and without authority, to:
    1. Temporarily or permanently remove, halt, or otherwise disable any computer data, computer programs or computer software from a computer or computer network;
    2. Cause a computer to malfunction, regardless of how long the malfunction persists;
    3. Alter, disable, or erase any computer data, computer programs or computer software;
    4. Effect the creation or alteration of a financial instrument or of an electronic transfer of funds;
    5. Use a computer or computer network to cause physical injury to the property of another;
    6. Use a computer or computer network to make or cause to be made an unauthorized copy, in any form, including, but not limited to, any printed or electronic form of computer data, computer programs or computer software residing in, communicated by, or produced by a computer or computer network;
    7. [Repealed.]
    8. Install or cause to be installed, or collect information through, computer software that records all or a majority of the keystrokes made on the computer of another; or
    9. Install or cause to be installed on the computer of another, computer software for the purpose of (i) taking control of that computer so that it can cause damage to another computer or (ii) disabling or disrupting the ability of the computer to share or transmit instructions or data to other computers or to any related computer equipment or devices, including but not limited to printers, scanners, or fax machines.
  2. Any person who violates this section is guilty of computer trespass, which is a Class 1 misdemeanor. Any person who violates this section for the purposes of affecting a computer that is exclusively for the use of, or exclusively used by or for, (i) the Commonwealth or any local government within the Commonwealth or any department or agency thereof or (ii) a provider of telephone, including wireless or voice over Internet protocol, oil, electric, gas, sewer, wastewater, or water service to the public is guilty of a Class 6 felony. If there is damage to the property of another valued at $1,000 or more caused by such person's act done with malicious intent in violation of this section, the offense is a Class 6 felony. If a person, with malicious intent, installs or causes to be installed computer software in violation of this section on more than five computers of another, the offense is a Class 6 felony. If a person violates subdivision A 8 with malicious intent, the offense is a Class 6 felony.
  3. Nothing in this section shall be construed to interfere with or prohibit terms or conditions in a contract or license related to computers, computer data, computer networks, computer operations, computer programs, computer services, or computer software or to create any liability by reason of terms or conditions adopted by, or technical measures implemented by, a Virginia-based electronic mail service provider to prevent the transmission of unsolicited electronic mail in violation of this article. Nothing in this section shall be construed to prohibit the monitoring of the location of a minor or a person with a disability or mental impairment as those terms are defined in § 51.5-40.1 or to prohibit the monitoring of the computer usage of, the otherwise lawful copying of data of, or the denial of computer or Internet access to a minor by a parent or legal guardian of the minor. Nothing in this section shall be construed to require notice to a computer user of the activities of a computer hardware or software provider, an interactive computer service, or a telecommunications or cable operator that a reasonable computer user should expect may occur in the context of a computer user's transaction or relationship with that entity or that are required or specifically authorized by law. (1984, c. 751; 1985, c. 322; 1990, c. 663; 1998, c. 892; 1999, cc. 886, 904, 905; 2002, c. 195; 2003, cc. 987, 1016; 2005, cc. 761, 812, 827; 2007, c. 483; 2017, c. 562; 2020, c. 821.)

Cross references. - As to transmission of unsolicited bulk electronic mail, see now § 18.2-152.3:1 .

Editor's note. - Acts 2020, c. 821, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendment added the subsection A designation; in present subsection A, substituted "A person shall be guilty of the crime of computer trespass if he" for "Any person who," in subdivision 1, inserted "halt, or otherwise disable any," divided former subdivision 6 into present subdivision 6 and the paragraph following subdivision 6; in present subdivision 6, deleted "shall be guilty of the crime of computer trespass, which," in the paragraph following subdivision 6, added "Computer trespass," substituted "Class 3" for "Class 1," deleted the second sentence which read: 'If such act is done maliciously and the value of the property damaged is $2,500 or more, the offense shall be punishable as a Class 6 felony"; added the last two sentences; and added subsection B.

The 1999 amendments. - The 1999 amendments by cc. 886, 904 and 905, are identical, and substituted "It shall be unlawful for any person to use" for "A person shall be guilty of the crime of computer trespass if he uses" in the introductory language, deleted "or" at the end of subdivision A 5, added "or" at the end of subdivision A 6, and added subdivision A 7; added subsection B; added the subsection C designator and substituted "Any person who violates this section shall be guilty of computer trespass, which offense" for "Computer trespass" in present subsection C, redesignated former subsection B as subsection D, and added "or to create any liability by reason of terms or conditions adopted by, or technical measures implemented by, a Virginia-based electronic mail service provider to prevent the transmission of unsolicited electronic mail in violation of this article."

The 2002 amendments. - The 2002 amendment by c. 195 added the last sentence of subsection D.

The 2003 amendments. - The 2003 amendments by cc. 987 and 1016 are identical, and inserted "or" at the end of subdivision A 5; deleted "or" at the end of subdivision A 6; deleted former subdivision A 7, which read: "Falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers"; deleted former subsection B, which read: "It shall be unlawful for any person knowingly to sell, give or otherwise distribute or possess with the intent to sell, give or distribute software which (i) is primarily designed or produced for the purpose of facilitating or enabling the falsification of electronic mail transmission information or other routing information; (ii) has only limited commercially significant purpose or use other than to facilitate or enable the falsification of electronic mail transmission information or other routing information; or (iii) is marketed by that person or another acting in concert with that person with that person's knowledge for use in facilitating or enabling the falsification of electronic mail transmission information or other routing information"; redesignated former subsections C and D as present subsections B and C; and in subsection B, substituted "Class 1" for "Class 3" in the first sentence, and deleted the former second sentence, which read: "If there is damage to the property of another valued at $2,500 or more caused by such person's reckless disregard for the consequences of his act in violation of this section, the offense shall be punished as a Class 1 misdemeanor."

The 2005 amendments. - The 2005 amendments by cc. 761, 812 and 827 are nearly identical, and substituted "with malicious intent" for "to use a computer or computer network without authority and, with the intent" in subsection A, inserted "disable" in subdivision A 3, added "Use a computer or computer network to" at the beginning of subdivisions A 5 and A 6, in subsection B, substituted "$1,000" for "$2,500" and deleted "malicious" preceding "act" and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 483 added subdivisions A 8 and A 9; and in subsection B, substituted "is guilty of computer trespass, which shall be" for "shall be guilty of computer trespass, which offense shall be punishable as" in the first sentence, deleted "punishable as" in the second sentence and added the last two sentences.

The 2017 amendments. - The 2017 amendment by c. 562 inserted the second sentence in subsection B.

The 2020 amendments. - The 2020 amendment by c. 821 inserted "or through intentionally deceptive means and without authority" in the introductory paragraph of subsection A; deleted "without the computer owner's authorization" following "computer of another" in subdivision A 8; in subsection B, inserted "done with malicious intent" in the third sentence and inserted "with malicious intent" in the fourth and last sentences; in subsection C, inserted "the location of a minor or a person with a disability or mental impairment as those terms are defined in § 51.5-40.1 or to prohibit the monitoring of the" in the second sentence and added the last sentence; and made stylistic changes.

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

For an article relating to all published Virginia criminal law decisions between July 1, 1997, and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For an article, "Technology and the Law," see 32 U. Rich. L. Rev. 1383 (1998).

For a note, "Computer Network Trespasses: Solving New Problems with Old Solutions," see 57 Wash. & Lee L. Rev. 209 (2000).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

Michie's Jurisprudence. - For related discussion, see 18 M.J. Trespass, § 1.

CASE NOTES

Evidence of violation. - Website host demonstrated that a competitor and its employee obtained its property by false pretenses in violation of § 18.2-152.3 and subdivision A 6 of § 18.2-152.4 , where the website host traced alleged hacking attacks to the competitor and its employee, and it was highly likely that the competitor and its employee converted the website host's proprietary information for their own use. Physicians Interactive v. Lathian Sys.,, 2003 U.S. Dist. LEXIS 22868 (E.D. Va. Dec. 5, 2003).

Trial court did not err in finding defendant guilty, following a bench trial, of computer fraud, computer trespass, embezzlement, and attempted extortion, as the evidence showed that defendant transferred computer files from his computer at work to a third-party server before he was terminated from his position as human resource director, that he used the removed material to threaten the company in an attempt to forgive a loan it had made to him, and that the company established the value of the material removed as required to support convictions on those offenses. DiMaio v. Commonwealth, 46 Va. App. 755, 621 S.E.2d 696, 2005 Va. App. LEXIS 456 (2005).

Preemption by the Copyright Act. - In a Copyright Act case in which plaintiff moved to remand the case back to state court, the federal district court had jurisdiction over two claims; plaintiff's claims under subdivision 3 of § 18.2-152.3 and subdivision A 6 of § 18.2-152.4 were preempted by the Copyright Act, while its claims under subdivision 1 of § 18.2-152.3 and § 18.2-154.15 were not. Maxient, LLC v. Symplicity Corp., 63 F. Supp. 3d 592, 2014 U.S. Dist. LEXIS 150542 (E.D. Va. 2014).

Insolvent LLC's computer fraud claims against a software company, which continued to provide services to the LLC's ex-employees, were preempted because they were not qualitatively different from copyright infringement claims; to the extent that the LLC's state claims turned on allegations that the software company made unauthorized copies of data, they were precisely equivalent to the Copyright Act's prohibition of unauthorized reproduction and dissemination, and hence preempted. OpenRisk, LLC v. MicroStrategy Servs. Corp., 876 F.3d 518, 2017 U.S. App. LEXIS 22736 (4th Cir. 2017), cert. denied, 138 S. Ct. 1575, 200 L. Ed. 2d 747 (U.S. 2018).

CIRCUIT COURT OPINIONS

Unauthorized use of computer network. - To the extent defendant's demurrer asserted that no claim was stated because he had authority to use his employer's computer and to download data, the demurrer was overruled because defendant had no authority to use his employer's computers for purposes not authorized by his employer and inimical to his employer's best interest. McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 2003 Va. Cir. LEXIS 274 (Rockingham County 2003).

§ 18.2-152.5. Computer invasion of privacy; penalties.

  1. A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3 , relating to any other person. "Examination" under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.
  2. The crime of computer invasion of privacy shall be punishable as a Class 1 misdemeanor.
  3. Any person who violates this section after having been previously convicted of a violation of this section or any substantially similar laws of any other state or of the United States is guilty of a Class 6 felony.
  4. Any person who violates this section and sells or distributes such information to another is guilty of a Class 6 felony.
  5. Any person who violates this section and uses such information in the commission of another crime is guilty of a Class 6 felony.
  6. This section shall not apply to any person collecting information that is reasonably needed to (i) protect the security of a computer, computer service, or computer business, or to facilitate diagnostics or repair in connection with such computer, computer service, or computer business or (ii) determine whether the computer user is licensed or authorized to use specific computer software or a specific computer service.

    (1984, c. 751; 1985, c. 398; 2001, c. 358; 2005, cc. 747, 761, 827, 837.)

The 2001 amendments. - The 2001 amendment by c. 358 substituted "Class 1" for "Class 3" in subsection B.

The 2005 amendments. - The 2005 amendments by cc. 747, 761, 827, and 837 are identical, and in subsection A, substituted "identifying" for "personal," and inserted "as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3 "; and added subsections C through F.

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

For article "Posthumous Privacy, Decedent Intent, and Post-Mortem Access to Digital Assets," see 24 Geo. Mason L. Rev. 183 (2016).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Right of Privacy, § 1.

CASE NOTES

Evidence sufficient. - The evidence was sufficient to support the defendant's conviction under this section where the defendant, a police dispatcher, used the Virginia Criminal Information Network to access criminal information regarding four individuals without authorization and without any request for the information. Plasters v. Commonwealth, No. 1870-99-3, 2000 Va. App. LEXIS 473 (Ct. of Appeals June 27, 2000).

Evidence that defendant, a state trooper, knew that she could only use the Virginia Criminal Information Network for law-enforcement purposes and understood that limitation, as evidenced by her use of a fictitious investigation to gain access to the criminal history of her supervisor, was sufficient to support defendant's conviction for computer invasion of privacy. Ramsey v. Commonwealth, 65 Va. App. 694, 780 S.E.2d 624, 2015 Va. App. LEXIS 395 (2015).

Civil recourse. - While § 182.-152.5 is a criminal statute, § 18.2-152.12 grants civil recourse to a party aggrieved under § 18.2-152.5 . Stultz v. Va. DMV, 185 F. Supp. 3d 890, 2015 U.S. Dist. LEXIS 102812 (W.D. Va. 2015).

CIRCUIT COURT OPINIONS

Discovery. - Virginia circuit courts may, pursuant to the powers governing discovery, grant "authority" for parties to access information otherwise protected by § 18.2-152.5 . However, Va. Sup. Ct. R. 4:9 limits inspection and copying to "designated" documents; it does not allow a party to access computer files carte blanche. Albertson v. Albertson, 73 Va. Cir. 94, 2007 Va. Cir. LEXIS 132 (Fairfax County 2007).

§ 18.2-152.5:1. Using a computer to gather identifying information; penalties.

  1. It is unlawful for any person, other than a law-enforcement officer, as defined in § 9.1-101 , and acting in the performance of his official duties, to use a computer to obtain, access, or record, through the use of material artifice, trickery or deception, any identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3 . Any person who violates this section is guilty of a Class 6 felony.
  2. Any person who violates this section and sells or distributes such information to another is guilty of a Class 5 felony.
  3. Any person who violates this section and uses such information in the commission of another crime is guilty of a Class 5 felony.

    (2005, cc. 747, 760, 761, 827, 837.)

§ 18.2-152.6. Theft of computer services; penalties.

Any person who willfully obtains computer services without authority is guilty of the crime of theft of computer services, which shall be punishable as a Class 1 misdemeanor. If the theft of computer services is valued at $2,500 or more, he is guilty of a Class 6 felony.

(1984, c. 751; 1985, c. 322; 2003, cc. 987, 1016; 2005, cc. 746, 761, 827.)

The 2003 amendments. - The 2003 amendments by cc. 987 and 1016 are identical, and added the last sentence.

The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and substituted "obtains" for "uses a computer or computer network, with intent to obtain" and "is" for "shall be" preceding "guilty of the crime of theft."

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 2.

CASE NOTES

Damages. - Summary judgment was granted against the company's counterclaims under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.S. § 1030(a)(5)(A)(iii) & (B)(i), and the Virginia Computer Crimes Act (VCCA), §§ 18.2-152.1 -18.2-152.16, based on the conclusion that the company failed to produce evidence that it suffered any actual or economic damages; however, the district court construed the economic damages provision too narrowly for the CFAA claim and the evidence of consequential damages presented by the company came within the any damages language of the VCCA. A.V. v. iParadigms, LLC, 562 F.3d 630, 2009 U.S. App. LEXIS 7892 (4th Cir. 2009).

§ 18.2-152.7. Personal trespass by computer; penalty.

  1. A person is guilty of the crime of personal trespass by computer when he uses a computer or computer network to cause physical injury to an individual.
  2. If committed maliciously, the crime of personal trespass by computer shall be punishable as a Class 3 felony. If such act is done unlawfully but not maliciously, the crime of personal trespass by computer shall be punishable as a Class 6 felony.

    (1984, c. 751; 1985, c. 322; 2003, cc. 987, 1016; 2005, cc. 746, 761, 827.)

The 2003 amendments. - The 2003 amendments by cc. 987 and 1016 are identical, and in the last sentence of subsection B, substituted "is done" for "be done," and "Class 6 felony" for "Class 1 misdemeanor."

The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and deleted "without authority and with the intent" preceding "to cause physical injury" in subsection A.

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

For a note, "Computer Network Trespasses: Solving New Problems with Old Solutions," see 57 Wash. & Lee L. Rev. 209 (2000).

Michie's Jurisprudence. - For related discussion, see 18 M.J. Trespass, § 1.

§ 18.2-152.7:1. Harassment by computer; penalty.

If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he is guilty of a Class 1 misdemeanor. A violation of this section may be prosecuted in the jurisdiction in which the communication was made or received or in the City of Richmond if venue cannot otherwise be established and the person subjected to the act is one of the following officials or employees of the Commonwealth and such official or employee was subjected to the act while engaged in the performance of his public duties or because of his position with the Commonwealth: the Governor, Governor-elect, Lieutenant Governor, Lieutenant Governor-elect, Attorney General, or Attorney General-elect, a member or employee of the General Assembly, a justice of the Supreme Court of Virginia, or a judge of the Court of Appeals of Virginia.

(2000, c. 849; 2020, c. 1002.)

The 2020 amendments. - The 2020 amendment by c. 1002 added the second sentence, and made a stylistic change.

Law review. - For a note, "Computer Network Trespasses: Solving New Problems with Old Solutions," see 57 Wash. & Lee L. Rev. 209 (2000).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

CASE NOTES

Employee failed to allege "intent to coerce, intimidate, or harass." - In granting a motion to dismiss a wrongful discharge claim in violation of public policy, the court found that an employee failed to state a claim for computer harassment; the employee had not alleged that her supervisor sent offensive e-mails with an intent "to coerce, intimidate, or harass" her, and moreover, there was no causal connection between the alleged conduct and her termination. Miller v. Wash. Workplace, Inc., 298 F. Supp. 2d 364 (E.D. Va. 2004).

References in an instant message were not obscene. - Defendant's conviction for harassment by computer in violation of § 18.2-152.7:1 was reversed, as defendant's use of "whore" and repeated use of "fuck you" in an instant message to the victim was insufficient to permit a reasonable trier of fact to conclude the references were obscene; the words were used as a method to show anger with the victim and to direct the victim away from defendant's roommate. Airhart v. Commonwealth,, 2007 Va. App. LEXIS 11 (Jan. 16, 2007).

Obscenity. - Court of appeals erred in affirming defendant's conviction for harassment by computer in violation § 18.2-152.7:1 because it should not have substituted a dictionary definition of "obscene" for that provided by the general assembly in § 18.2-372 ; the general assembly provided a definition of "obscene" in § 18.2-372 to comport with constitutional requirements, and there was no suggestion that the definition was constitutionally infirm. Barson v. Commonwealth, 284 Va. 67 , 726 S.E.2d 292, 2012 Va. LEXIS 121 (2012).

Search and seizure. - District court properly denied defendant's motion to suppress evidence of a DVD containing child pornography in his trial for possession of child pornography in violation of 18 U.S.C.S. §§ 2252A(a)(5)(B) and 2256(8)(A) because the computer files containing child pornography did not fall outside the scope of a search warrant for purposes of U.S. Const., Amend. IV; the images of child pornography contained on the DVD were sufficiently relevant to the crimes designated in the warrant to justify their seizure under the warrant, which authorized a search for instrumentalities of computer harassment under § 18.2-152.7:1 . United States v. Williams, 592 F.3d 511, 2010 U.S. App. LEXIS 1327 (4th Cir. 2010), cert. denied, 131 S. Ct. 595, 178 L. Ed. 2d 434, 2010 U.S. LEXIS 8864 (U.S. 2010).

Venue. - Commonwealth established venue in Virginia Beach under subdivisions 4 and 6 of § 19.2-249.2 during defendant's trial for harassment by computer in violation of § 18.2-152.7:1 because the evidence was sufficient to prove a strong presumption that the victim received the e-mails defendant sent her while she resided in Virginia Beach, on a computer located within Virginia Beach; the victim lived in Virginia Beach, and she testified that all the offensive e-mails were sent to her e-mail account in the City of Virginia Beach. Barson v. Commonwealth,, 2010 Va. App. LEXIS 427 (Nov. 2, 2010).

Defendant was properly convicted of computer harassment in violation of § 18.2-152.7:1 , as many of his e-mails to the victim expressed "an appeal to the prurient interest in sex," included "shameful" sexual suggestions that went "substantially beyond customary limits," as these terms were used in the obscenity statute, § 18.2-352, and many of them made obscene proposals and implicitly threatened "illegal or immoral" acts. Moter v. Commonwealth, 61 Va. App. 471, 737 S.E.2d 538, 2013 Va. App. LEXIS 54 (2013).

Evidence insufficient to support conviction. - Trial court erred in convicting defendant of harassment by computer in violation of § 18.2-152.7:1 because the evidence was insufficient to permit a reasonable trier of fact to conclude that the e-mails defendant sent were obscene under § 18.2-372 ; although the e-mails contained vulgar, offensive, and sexually explicit language, defendant's use of those words, considered as a whole and in the context of the marital discord and the angry, offensive tone and purpose of the e-mails, did not establish or support a factual or legal determination that he intended an appeal to the prurient interest in sex, but rather, the evidence showed that defendant wrote the e-mails solely to convey his anger and disgust and that he forwarded them to his family and friends to embarrass the victim. Barson v. Commonwealth,, 2010 Va. App. LEXIS 427 (Nov. 2, 2010).

Court of appeals erred in affirming defendant's conviction for harassment by computer in violation of § 18.2-152.7:1 because defendant's emails to his wife, as offensive, vulgar, and disgusting as their language could have been, did not meet the standard of obscenity provided by § 18.2-372 . Barson v. Commonwealth, 284 Va. 67 , 726 S.E.2d 292, 2012 Va. LEXIS 121 (2012).

CIRCUIT COURT OPINIONS

Evidence insufficient to support conviction. - Plaintiff's demurrer was sustained as to the defendant's claims for violation of the Virginia Computer Crimes Act since none of the defendant's allegations satisfied all three prongs of the statute where it appeared that the plaintiff texted the alleged statements, privately, to two of his friends, and the defendant did not allege that he intended for her to see them. Depp v. Heard,, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

§ 18.2-152.7:2. Using computer to commit a scheme involving false representations; penalty.

Any person who, without the intent to receive any direct or indirect benefit, maliciously sends an electronically transmitted communication containing a false representation intended to cause another person to spend money, and such false representation causes such person to spend money, is guilty of a Class 1 misdemeanor.

(2020, c. 1178.)

§ 18.2-152.8. Property capable of embezzlement.

For purposes of §§ 18.2-95 , 18.2-96 , 18.2-108 , and 18.2-111 , personal property subject to embezzlement, larceny, or receiving stolen goods shall include:

  1. Computers and computer networks;
  2. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:
    1. Tangible or intangible;
    2. In a format readable by humans or by a computer;
    3. In transit between computers or within a computer network or between any devices which comprise a computer; or
    4. Located on any paper or in any device on which it is stored by a computer or by a human; and
  3. Computer services.

    (1984, c. 751; 2005, cc. 746, 761, 827.)

The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and in the first paragraph, inserted " § 18.2-95 , 18.2-96 , 18.2-108 , and" and "larceny, or receiving stolen goods."

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

Michie's Jurisprudence. - For related discussion, see 6B M.J. Embezzlement, § 4; 8B M.J. False Pretenses and Cheats, § 4.

CASE NOTES

Computer data subject to larceny. - Felony enhancement of defendant's Computer Fraud and Abuse Act conviction based on conduct in furtherance of committing grand larceny under Virginia law did not violate due process because defendant could have been convicted under the Virginia grand larceny statute for accessing and downloading his former employer's proprietary information; intangible computer data may be subject to larceny. United States v. Steele, 595 Fed. Appx. 208, 2014 U.S. App. LEXIS 24441 (4th Cir. 2014).

§§ 18.2-152.9, 18.2-152.10.

Repealed by Acts 2005, cc. 746, 761, and 827, cl. 2.

Editor's note. - Former § 18.2-152.9 , pertaining to limitation of prosecution, derived from 1984, c. 751.

§ 18.2-152.11. Article not exclusive.

The provisions of this article shall not be construed to preclude the applicability of any other provision of the criminal law of this Commonwealth which presently applies or may in the future apply to any transaction or course of conduct which violates this article, unless such provision is clearly inconsistent with the terms of this article.

(1984, c. 751.)

§ 18.2-152.12. Civil relief; damages.

  1. Any person whose property or person is injured by reason of a violation of any provision of this article or by any act of computer trespass set forth in subdivisions A 1 through A 8 of § 18.2-152.4 regardless of whether such act is committed with malicious intent may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, "damages" shall include loss of profits.
  2. If the injury under this article arises from the transmission of spam in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider where the defendant has knowledge of the authority or policies of the EMSP or where the authority or policies of the EMSP are available on the electronic mail service provider's website, the injured person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of $10 for each and every spam message transmitted in violation of this article, or $25,000 per day. The injured person shall not have a cause of action against the electronic mail service provider that merely transmits the spam over its computer network. Transmission of electronic mail from an organization to its members shall not be deemed to be spam.
  3. If the injury under this article arises from the transmission of spam in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider where the defendant has knowledge of the authority or policies of the EMSP or where the authority or policies of the EMSP are available on the electronic mail service provider's website, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover $1 for each and every intended recipient of a spam message where the intended recipient is an end user of the EMSP or $25,000 for each day an attempt is made to transmit a spam message to an end user of the EMSP. In calculating the statutory damages under this provision, the court may adjust the amount awarded as necessary, but in doing so shall take into account the number of complaints to the EMSP generated by the defendant's messages, the defendant's degree of culpability, the defendant's prior history of such conduct, and the extent of economic gain resulting from the conduct. Transmission of electronic mail from an organization to its members shall not be deemed to be spam.
  4. At the request of any party to an action brought pursuant to this section, the court may, in its discretion, conduct all legal proceedings in such a way as to protect the secrecy and security of the computer, computer network, computer data, computer program and computer software involved in order to prevent possible recurrence of the same or a similar act by another person and to protect any trade secrets of any party and in such a way as to protect the privacy of nonparties who complain about violations of this section.
  5. The provisions of this article shall not be construed to limit any person's right to pursue any additional civil remedy otherwise allowed by law.
  6. A civil action under this section must be commenced before expiration of the time period prescribed in § 8.01-40.1 . In actions alleging injury arising from the transmission of spam, personal jurisdiction may be exercised pursuant to § 8.01-328.1 . (1984, c. 751; 1985, c. 92; 1999, cc. 886, 904, 905; 2003, cc. 987, 1016; 2005, cc. 746, 761, 827; 2010, cc. 489, 529.)

The 1999 amendments. - The 1999 amendments by cc. 886, 904 and 905, are identical, and inserted present subsections B and C; redesignated former subsections B, C, and D as subsections D, E, and F; and added the last sentence in subsection F.

The 2003 amendments. - The 2003 amendments by cc. 987 and 1016 are identical, and in subsection B, rewrote the first sentence, which formerly read: "If the injury arises from the transmission of unsolicited bulk electronic mail, the injured person, other than an electronic mail service provider, may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the lesser of ten dollars for each and every unsolicited bulk electronic mail message transmitted in violation of this article, or $25,000 per day," substituted "that merely" for "which merely" in the second sentence, and added the last sentence; rewrote subsection C, which formerly read: "If the injury arises from the transmission of unsolicited bulk electronic mail, an injured electronic mail service provider may also recover attorneys' fees and costs, and may elect, in lieu of actual damages, to recover the greater of ten dollars for each and every unsolicited bulk electronic mail message transmitted in violation of this article, or $25,000 per day"; and added "and in such a way as to protect the privacy of nonparties who complain about violations of this section" at the end of subsection D.

The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and inserted "or by any act of computer trespass set forth in subdivisions A 1 through A 6 of § 18.2-152.4 regardless of whether such act is committed with malicious intent" in subsection A.

The 2010 amendments. - The 2010 amendment by c. 489 substituted "spam" for "unsolicited bulk electonic mail" throughout the section.

The 2010 amendment by c. 529 substituted "A 8" for "A 6" in subsection A.

Law review. - For a note, "Allocating Discovery Costs in the Computer Age: Deciding Who Should Bear the Costs of Discovery of Electronically Stored Data," see 57 Wash. & Lee L. Rev. 257 (2000).

For a note, "Computer Network Trespasses: Solving New Problems with Old Solutions," see 57 Wash. & Lee L. Rev. 209 (2000).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 26 Tort Actions: Other Common-Law and Statutory Remedies. § 26.20 Civil Action for Computer Crimes. See also § 27.14 Trespass. Friend.

CASE NOTES

Evidence of actual damages. - Summary judgment was granted against the company's counterclaims under the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.S. § 1030(a)(5)(A)(iii) & (B)(i), and the Virginia Computer Crimes Act (VCCA), §§ 18.2-152.1 -18.2-152.16, based on the conclusion that the company failed to produce evidence that it suffered any actual or economic damages; however, the district court construed the economic damages provision too narrowly for the CFAA claim and the evidence of consequential damages presented by the company came within the any damages language of the VCCA. A.V. v. iParadigms, LLC, 562 F.3d 630, 2009 U.S. App. LEXIS 7892 (4th Cir. 2009).

No evidence of actual damages. - Insolvent LLC's computer fraud claims against a software company, which continued to provide services to the LLC's ex-employees, were preempted because they were not qualitatively different from copyright infringement claims; the LLC failed to come forward with the necessary evidence of injury as it proffered no evidence that it had any need or use for the data in question at the time it was deleted, or that its liquidation value would have been affected. OpenRisk, LLC v. MicroStrategy Servs. Corp., 876 F.3d 518, 2017 U.S. App. LEXIS 22736 (4th Cir. 2017), cert. denied, 138 S. Ct. 1575, 200 L. Ed. 2d 747 (U.S. 2018).

Unauthorized use of computer network. - It is the unauthorized use of a computer network that gives rise to liability under the Virginia Computer Crimes Act, § 18.2-152.1 et seq., not the authorized use of a computer network for the receipt of arguably illicit funds. Hackman v. Wilson (In re Hackman), 534 Bankr. 867, 2015 Bankr. LEXIS 2378 (Bankr. E.D. Va. 2015).

Pleadings sufficient. - District court erred in dismissing plaintiff's claim under Virginia Computer Crimes Act because doctrine of issue preclusion did not bar plaintiff's new complaint as reason for prior dismissal was unclear, and doctrine of mutuality precluded invocation of issue preclusion, and further, plaintiff had pleaded sufficient facts to make plausible his claim that he suffered consequential damages under Act. Hately v. Watts, 917 F.3d 770, 2019 U.S. App. LEXIS 6721 (4th Cir. 2019).

Civil recourse. - While § 182.-152.5 is a criminal statute, § 18.2-152.12 grants civil recourse to a party aggrieved under § 18.2-152.5 . Stultz v. Va. DMV, 185 F. Supp. 3d 890, 2015 U.S. Dist. LEXIS 102812 (W.D. Va. 2015).

CIRCUIT COURT OPINIONS

No violation. - Because a company failed to show an injury that resulted from a former employee's actions in inadvertently copying two documents while clearing out personal computer files, there was no violation of § 18.2-152.12 . Tryco, Inc. v. United States Med. Source, 80 Va. Cir. 619, 2010 Va. Cir. LEXIS 91 (Fairfax County Aug. 3, 2010).

Punitive damages not allowed. - Punitive damages are not permitted under the Virginia Computer Crimes Act. McGladrey & Pullen, L.L.P. v. Shrader, 62 Va. Cir. 401, 2003 Va. Cir. LEXIS 274 (Rockingham County 2003).

§ 18.2-152.13.

Repealed by Acts 2015, c. 709, cl. 2.

Editor's note. - Former § 18.2-152.13 , pertaining to severability, derived from 1984, c. 751.

§ 18.2-152.14. Computer as instrument of forgery.

The creation, alteration, or deletion of any computer data contained in any computer or computer network, which if done on a tangible document or instrument would constitute forgery under Article 1 (§ 18.2-168 et seq.) of Chapter 6 of this Title, will also be deemed to be forgery. The absence of a tangible writing directly created or altered by the offender shall not be a defense to any crime set forth in Article 1 (§ 18.2-168 et seq.) of Chapter 6 of this Title if a creation, alteration, or deletion of computer data was involved in lieu of a tangible document or instrument.

(1984, c. 751; 1985, c. 322.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forgery, § 9.

§ 18.2-152.15. Encryption used in criminal activity.

Any person who willfully uses encryption to further any criminal activity shall be guilty of an offense which is separate and distinct from the predicate criminal activity and punishable as a Class 1 misdemeanor.

"Encryption" means the enciphering of intelligible data into unintelligible form or the deciphering of unintelligible data into intelligible form.

(1999, c. 455.)

CASE NOTES

Preemption by the Copyright Act. - In a Copyright Act case in which plaintiff moved to remand the case back to state court, the federal district court had jurisdiction over two claims; plaintiff's claims under subdivision 3 of § 18.2-152.3 and subdivision A 6 of § 18.2-152.4 were preempted by the Copyright Act, while its claims under subdivision 1 of § 18.2-152.3 and § 18.2-152.15 were not. Maxient, LLC v. Symplicity Corp., 63 F. Supp. 3d 592, 2014 U.S. Dist. LEXIS 150542 (E.D. Va. 2014).

§ 18.2-152.16.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to forfeitures for computer crimes, see § 19.2-386.17 .

Article 7.2. Fraudulent Procurement, Sale, or Receipt of Telephone Records.

§ 18.2-152.17. Fraudulent procurement, sale, or receipt of telephone records.

  1. Whoever (i) knowingly procures, attempts to procure, solicits, or conspires with another to procure a telephone record by fraudulent means; (ii) knowingly sells, or attempts to sell, a telephone record without the authorization of the customer to whom the record pertains; or (iii) receives a telephone record knowing that such record has been obtained by fraudulent means is guilty of a Class 1 misdemeanor.
  2. As used in this section:

    "Procure" in regard to such a telephone record means to obtain by any means, whether electronically, in writing, or in oral form, with or without consideration.

    "Telecommunications carrier" means any person that provides commercial telephone services to a customer, irrespective of the communications technology used to provide such service, including, but not limited to, traditional wireline or cable telephone service; cellular, broadband PCS, or other wireless telephone service; microwave, satellite, or other terrestrial telephone service; and voice over Internet telephone service.

    "Telephone record" means information retained by a telecommunications carrier that relates to the telephone number dialed by the customer or the incoming number of a call directed to a customer, or other data related to such calls typically contained on a customer telephone bill such as the time the call started and ended, the duration of the call, the time of day the call was made, and any charges applied. For purposes of this section, any information collected and retained by customers utilizing Caller I.D., or other similar technology, does not constitute a telephone record.

  3. Nothing in this section shall be construed to prevent any action by a law-enforcement agency, or any officer or employee of such agency, from obtaining telephone records in connection with the performance of the official duties of the agency.
  4. Nothing in this section shall be construed to prohibit a telecommunications carrier from obtaining, using, disclosing, or permitting access to any telephone record, either directly or indirectly through its agents (i) in compliance with a subpoena or subpoena duces tecum or as otherwise authorized by law; (ii) with the lawful consent of the customer or subscriber; (iii) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service, or to protect users of those services and other carriers from fraudulent, abusive, or unlawful use of, subscription to, such services; (iv) to a governmental entity, if the telecommunications carrier reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information; or (v) to the National Center for Missing and Exploited Children, in connection with a report submitted thereto under the Victims of Child Abuse Act of 1990.
  5. Venue for the trial of any person charged with an offense under this section may be in the locality in which:
    1. Any act was performed in furtherance of any course of conduct in violation of this section;
    2. The accused has his principal place of business in the Commonwealth;
    3. Any accused had control or possession of any proceeds of the violation or of any books, records, documents, property, financial instrument, telephone record, or other material or objects that were used in furtherance of the violation;
    4. From which, to which, or through which any access to a telecommunication carrier was made whether by wires, electromagnetic waves, microwaves, optics or any other means of communication; or
    5. The accused resides, or resided at the time of the offense.

      (2006, c. 469.)

Article 8. Offenses Relating to Railroads and Other Utilities.

§ 18.2-153. Obstructing or injuring canal, railroad, power line, etc.

If any person maliciously obstruct, remove or injure any part of a canal, railroad or urban, suburban or interurban electric railway, or any lines of any electric power company, or any bridge or fixture thereof, or maliciously obstruct, tamper with, injure or remove any machinery, engine, car, trolley, supply or return wires or any other work thereof, or maliciously open, close, displace, tamper with or injure any switch, switch point, switch lever, signal lever or signal of any such company, whereby the life of any person on such canal, railroad, urban, suburban or interurban electric railway, is put in peril, he shall be guilty of a Class 4 felony; and, in the event of the death of any such person resulting from such malicious act, the person so offending shall be deemed guilty of murder, the degree to be determined by the jury or the court trying the case without a jury.

If any such act be committed unlawfully, but not maliciously, the person so offending shall be guilty of a Class 6 felony; and in the event of the death of any such person resulting from such unlawful act, the person so offending shall be deemed guilty of involuntary manslaughter.

(Code 1950, § 18.1-147; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Canals and Canal Companies, § 2; 13B M.J. Negligence, § 22; 15 M.J. Railroads, § 143.

§ 18.2-154. Shooting at or throwing missiles, etc., at train, car, vessel, etc.; penalty.

Any person who maliciously shoots at, or maliciously throws any missile at or against, any train or cars on any railroad or other transportation company or any vessel or other watercraft, or any motor vehicle or other vehicles when occupied by one or more persons, whereby the life of any person on such train, car, vessel, or other watercraft, or in such motor vehicle or other vehicle, may be put in peril, is guilty of a Class 4 felony. In the event of the death of any such person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate, and premeditated, he is guilty of murder in the first degree.

If any such act is committed unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony and, in the event of the death of any such person, resulting from such unlawful act, the person so offending is guilty of involuntary manslaughter.

If any person commits a violation of this section by maliciously or unlawfully shooting, with a firearm, at a conspicuously marked law-enforcement, fire, or emergency medical services vehicle, the sentence imposed shall include a mandatory minimum term of imprisonment of one year to be served consecutively with any other sentence.

(Code 1950, § 18.1-152; 1960, c. 358; 1975, cc. 14, 15; 1990, c. 426; 2004, c. 461; 2005, c. 143; 2013, cc. 761, 774; 2015, cc. 502, 503.)

The 2004 amendments. - The 2004 amendment by c. 461 deleted "which shall not be suspended in whole or in part" at the end of the last paragraph.

The 2005 amendments. - The 2005 amendment by c. 143 substituted "is" for "shall be," and "shall be deemed" in the first and second paragraphs, in the first paragraph, substituted "in the second degree" for "the degree to be determined by the jury or the court trying the case without a jury," and added the last sentence.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added "to be served consecutively with any other sentence" at the end of the third paragraph.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "emergency medical services vehicle" for "rescue squad vehicle, ambulance or any other emergency medical vehicle" in the third paragraph.

CASE NOTES

Construction. - Interpretation of § 18.2-279 applied in case law is binding on the Court of Appeals of Virginia with regard to the use of the word at in § 18.2-154 in the context of shoots at or shooting at. Jones v. Commonwealth, 68 Va. App. 304, 808 S.E.2d 220, 2017 Va. App. LEXIS 321 (Dec. 19, 2017), aff'd, 296 Va. 412 , 821 S.E.2d 540, 2018 Va. LEXIS 174 (2018).

Court of Appeals of Virginia holds that the prohibition of § 18.2-154 against shooting at a vehicle encompasses such a shooting when the shooter is also inside the vehicle when he or she shoots at it. Jones v. Commonwealth, 68 Va. App. 304, 808 S.E.2d 220, 2017 Va. App. LEXIS 321 (Dec. 19, 2017), aff'd, 296 Va. 412 , 821 S.E.2d 540, 2018 Va. LEXIS 174 (2018).

Interpreting § 18.2-154 to include firing shots while seated in a vehicle did not render § 18.2-286.1 , barring firing shots while seated in a motor vehicle, superfluous because (1) the existence of a similar but not identical statutes did not alter a court's duty to construe a statute according to the statute's plain language, (2) the statutes were textually and conceptually different, despite some overlap between the conduct the statutes barred, and the fact that separate statutes overlapped in the statutes' proscription of specific conduct did not detract from the statutes' independent enforcement except when double jeopardy concerns were implicated. Jones v. Commonwealth, 296 Va. 412 , 821 S.E.2d 540, 2018 Va. LEXIS 174 (2018).

Defendant was properly convicted of shooting at an occupied motor vehicle when defendant fired shots while seated in a vehicle because the statute had no requirement that a shooter who maliciously shoots at an occupied vehicle be positioned outside of the vehicle. Jones v. Commonwealth, 296 Va. 412 , 821 S.E.2d 540, 2018 Va. LEXIS 174 (2018).

This section was not unconstitutionally vague as applied to defendant convicted of second degree murder thereafter. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Court should have declined deciding whether portion of statute unconstitutionally vague. - The aspect of this section that would allegedly allow the judge or jury unfettered discretion to determine what constitutes first degree murder is severable from those provisions of the statute which define the offense of murder, which is deemed second degree. Thus, since defendant was not convicted of first degree murder, the court should have declined deciding whether that portion of the statute was unconstitutionally vague. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Legislative intent. - The legislature, when it enacted the predecessor to this section, clearly intended to make punishable as murder the killing of an occupant of a motor vehicle resulting from a malicious shooting into the vehicle whereby the life of any person in the vehicle is put in peril. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Predicate facts of an unlawful shooting at an occupied vehicle resulting in death would always constitute criminal negligence, and therefore, a person committing that offense is guilty of involuntary manslaughter; as the language of the statute is unambiguous, the courts are bound by the plain meaning of that language. Gregg v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447, 2017 Va. App. LEXIS 56 (2017).

Enactment of the statute did not make the punishment for involuntary manslaughter more severe, nor does it mitigate the punishment when the criminally negligent act leading to the death of an individual is shooting at an occupied vehicle; the statute simply creates a mechanism that permits the Commonwealth to substitute proof of distinct facts in place of criminal negligence. Gregg v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447, 2017 Va. App. LEXIS 56 (2017).

There is no evidence in the legislative history of the statute or case law that suggests the General Assembly intended to create an offense separate and distinct from common-law involuntary manslaughter, or to permit the Commonwealth to obtain multiple convictions and punishments under the statute and common law involuntary manslaughter for a single killing. Gregg v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447, 2017 Va. App. LEXIS 56 (2017).

Homicide under section is presumptively second degree murder. - In Virginia, every malicious killing is prima facie second degree murder, and the burden is on the commonwealth to elevate the grade of the offense to first degree. Accordingly, a homicide resulting from maliciously shooting into an occupied vehicle is presumptively second degree murder. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

To constitute murder under this section, the Commonwealth must prove beyond a reasonable doubt that the accused committed: (1) a malicious shooting, (2) at or against a motor vehicle, (3) when occupied by one or more persons, (4) whereby the life of any person in such motor vehicle may be put in peril, and (5) the death of any such person results therefrom. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Murder under section does not preclude conviction under § 18.2-53.1 . - Murder under this section accomplished by a "malicious shooting" does not preclude a conviction under § 18.2-53.1 for use of a firearm in the commission of murder. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Allegation of violation of section sufficient to charge offenses proscribed by reference. - Although original indictment did not contain a separate averment that felonious shooting caused the death of an occupant of a vehicle, the allegation, that defendant's acts violated this section, incorporated the offenses proscribed therein by reference and was sufficient to charge him with those offenses which are proscribed by that section of the criminal code, including murder. Thus because the original indictment was sufficient to have prosecuted defendant for murder, an amendment adding language that the shooting resulted in the death of an occupant of the vehicle did not change the nature of character of the acts which the indictment alleged that defendant had committed. Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990).

Assault not a lesser-included offense. - In a case in which defendant was convicted for unlawful shooting at an occupied vehicle, in violation of § 18.2-154 , he unsuccessfully argued that double jeopardy barred his conviction, because he was previously tried and convicted of assault, arising out of the same events and assault was a lesser-included offense of unlawful shooting at an occupied vehicle. The plain language of § 18.2-154 simply did not require the intent to inflict bodily injury on the part of the accused, and, since the intent requirement was an essential element required to prove assault, assault was not a lesser-included offense in unlawful shooting at an occupied vehicle. Armstead v. Commonwealth, 55 Va. App. 354, 685 S.E.2d 876, 2009 Va. App. LEXIS 563 (2009).

Multiple shots constitute multiple violations. - This statute does not proscribe a continuous course of conduct; rather, each offense is complete upon the firing of one shot when the life of another is endangered and a defendant who fires multiple shots at a motor vehicle may thus be convicted of multiple violations of the statute. Stephens v. Commonwealth, 35 Va. App. 141, 543 S.E.2d 609, 2001 Va. App. LEXIS 134 (2001), aff'd, 263 Va. 58 , 557 S.E.2d 227 (2002).

Double jeopardy violation. - Court of Appeals properly concluded that defendant could not be sentenced for both common-law involuntary manslaughter and statutory involuntary manslaughter because defendant was twice convicted and sentenced in the same trial of the same offense in violation of the Double Jeopardy Clause where the General Assembly did not draw a distinction between species of involuntary manslaughter in the statute, defendant's mental state and his acts were the same for both offenses, and there was one victim. Commonwealth v. Gregg, 295 Va. 293 , 811 S.E.2d 254, 2018 Va. LEXIS 34 (2018).

Evidence held sufficient. - Defendant's conviction of maliciously throwing a missile at an occupied motor vehicle in violation of § 18.2-154 was supported by sufficient evidence, where a bottle which defendant threw into the cab of a truck could have placed a person's life in peril, by causing the driver to lose control of the vehicle or to drive recklessly from the scene. Davis v. Commonwealth, No. 2480-01-2, 2003 Va. App. LEXIS 242 (Ct. of Appeals Apr. 22, 2003).

Evidence supported a defendant's conviction for deliberately throwing rocks with sufficient force to break a van's rear window and his conviction for intentional vandalism. Lamb v. Commonwealth, No. 1262-02-2, 2003 Va. App. LEXIS 252 (Ct. of Appeals Apr. 29, 2003).

Circuit court properly convicted defendant of attempted murder, shooting at an occupied vehicle, and use of a firearm in the commission of a felony because defendant was the only individual seen handling a firearm, threatened the victim, pointed his gun at the victim, and, after becoming momentarily distracted, fired it at the victim, and hit his truck, and a rational factfinder could find that defendant shot at the victim with malice. Logan v. Commonwealth, 67 Va. App. 747, 800 S.E.2d 202 (2017).

Circuit court properly convicted defendant of unlawfully shooting at an occupied vehicle because defendant failed to preserve his argument for appeal, where, while he argued at trial that knowledge that the vehicle was occupied was required to prove he maliciously shot at an occupied vehicle, neither defendant nor the trial court discussed whether knowledge that the vehicle was occupied was necessary to satisfy the general intent of the lesser-included offense of unlawfully shooting at an occupied vehicle. Bland v. Commonwealth, No. 1145-18-2, 2019 Va. App. LEXIS 208 (Sept. 24, 2019).

Evidence held insufficient. - Evidence was insufficient to convict defendant of maliciously shooting into an occupied vehicle in violation of § 18.2-154 because the trial court erred in rejecting defendant's self-defense claim as it applied to the initial aggressor and to the innocent bystander. Defendant acted in justifiable self-defense, had no obligation to retreat, and was permitted to repel the attack by reasonable force where the initial aggressor, who one month prior had shot and injured defendant, shot at or into defendant's vehicle and, therefore, defendant was not criminally responsible for the innocent bystander's ultimate injury, which occurred when defendant returned fire. Hill v. Commonwealth,, 2010 Va. App. LEXIS 219 (June 1, 2010).

Jury instructions. - Where no rational fact finder could find that a victim of an armed robbery did anything that could have provoked defendant to shoot the victim after the victim entered a vehicle, the trial court correctly ruled that the heat-of-passion instruction could not be given. Smith v. Commonwealth, No. 2992-02-3, 2004 Va. App. LEXIS 213 (Ct. of Appeals May 4, 2004).

Sentencing. - Defendant's prior Virginia conviction for throwing a missile at an occupied vehicle, in violation of § 18.2-154 , qualified as a categorical crime of violence such that his career offender designation was proper under U.S. Sentencing Guidelines Manual §§ 4B1.1, 4B1.2, despite error in using the modified categorical approach. United States v. Light,, 2012 U.S. App. LEXIS 24722 (4th Cir. Nov. 29, 2012).

Sentences for involuntary manslaughter. - Imposition of two ten-year sentences upon defendant for involuntary manslaughter in violation of the statute and for common-law involuntary manslaughter violated the double jeopardy prohibition against multiple punishments for the same offense because the statute did not require proof of a fact that was not required to prove the common law crime of involuntary manslaughter; therefore, the Commonwealth was free to instruct the jury on both crimes but could not seek sentences for both convictions. Gregg v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447, 2017 Va. App. LEXIS 56 (2017).

There is no clear legislative intent to allow convictions under both common law involuntary manslaughter and the statute; the statute is clear, however, that when a person unlawfully shoots at a vehicle, and the occupant is put in peril and death results, that person is guilty of involuntary manslaughter. Gregg v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447, 2017 Va. App. LEXIS 56 (2017).

Because the element of shooting at an occupied vehicle in the statute is simply the criminally negligent act which renders the accused guilty of involuntary manslaughter, the statute does not require proof of a fact that is not required to prove the common law crime of involuntary manslaughter. Gregg v. Commonwealth, 67 Va. App. 375, 796 S.E.2d 447, 2017 Va. App. LEXIS 56 (2017).

§ 18.2-155. Injuring, etc., signal used by railroad.

If any person maliciously injure, destroy, molest, or remove any switchlamp, flag or other signal used by any railroad, or any line, wire, post, lamp or any other structure or mechanism used in connection with any signal on a railroad, or destroys or in any manner interferes with the proper working of any signal on a railroad, whereby the life of any person is or may be put in peril he shall be guilty of a Class 4 felony; and in the event of the death of such person resulting from such malicious injuring, destroying or removing, the person so offending shall be deemed guilty of murder, the degree to be determined by the jury or the court trying the case without a jury. If such act be done unlawfully but not maliciously the offender shall be guilty of a Class 1 misdemeanor, provided that in the event of the death of any such person resulting from such unlawful injuring, destroying or removing, the person so offending shall be deemed guilty of involuntary manslaughter.

(Code 1950, § 18.1-153; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-156. Taking or removing waste or packing from journal boxes.

If any person shall willfully and maliciously take or remove the waste or packing from any journal box of any locomotive, engine, tender, carriage, coach, car, caboose or truck used or operated upon any railroad, whether the same be operated by steam or electricity, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-151; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-157. Injury to fences or cattle stops along line of railroad.

Any person who shall willfully or maliciously cut, break down, injure or destroy any fence erected along the line of any railroad for the purpose of fencing the track or depot grounds of such road, or shall break down, injure or destroy any cattle stop along the line of any railroad, shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-155; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-158. Driving, etc., animal on track to recover damages.

If any person, with a view to the recovery of damages against a railroad company, willfully ride, drive, or lead any animal, or otherwise contrive for any animal to go, on the railroad track of such company, and such animal is by reason thereof killed or injured, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-154; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to trespassing on railroad track generally, see § 18.2-159 .

§ 18.2-159. Trespassing on railroad track.

Any person who goes upon the track of a railroad other than to pass over such road at a public or private crossing, or who willfully rides, drives or leads any animal or contrives for any animal to go on such track except to cross as aforesaid, without the consent of the railroad company or person operating such road, shall be guilty of a Class 4 misdemeanor. A second violation of the provisions of this section occurring within two years of the first violation shall be punishable as a Class 3 misdemeanor. A third or subsequent violation of the provisions of this section occurring within two years of a second or a subsequent violation shall be punishable as a Class 1 misdemeanor. This section shall not apply to any section of track which has been legally abandoned pursuant to an order of a federal or state agency having jurisdiction over the track and is not being used for railroad service.

For purposes of this section, track shall mean the rail, ties, and ballast of the railroad.

(Code 1950, § 18.1-148; 1960, c. 358; 1975, cc. 14, 15; 1993, c. 845.)

Cross references. - As to driving animal on railroad track with intent to recover damages, see § 18.2-158 .

Michie's Jurisprudence. - For related discussion, see 1B M.J. Animals, § 17; 15 M.J. Railroads, §§ 57, 143; 18 M.J. Trespass, § 1.

CASE NOTES

Railroads are entitled to the exclusive use of their tracks, and it is a violation of this section for one to be on any track without the consent of the company. Ingle v. Clinchfield R.R., 169 Va. 131 , 192 S.E. 782 (1937).

Section does not affect liability of railroad to licensee. - In an action for death, it was contended that the decedent at the time of the accident could not be regarded as a licensee, because he was walking on the track, and this section makes it a misdemeanor for any person to be on a railroad track, except at a crossing, within 100 yards of a moving train. It was held that this section could not be given the effect contended for. To do so would deprive licensees of the protection which has always been accorded to them, there being many cases in which recoveries have been allowed to licensees who have been injured on the track while apparently violating this section. C & O Ry. v. Bullington's Adm'r, 135 Va. 307 , 16 S.E. 237 (1923).

§ 18.2-160. Trespassing on railroad trains.

If any person, not being a passenger or employee, shall be found trespassing upon any railroad car or train of any railroad in this Commonwealth, by riding on any car, or any part thereof, on its arrival, stay or departure at or from any station or depot of such railroad, or on the passage of any such car or train over any part of any such railroad, such person shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-150; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-160.1. Boarding or riding transportation district train without lawful payment of fare; penalty.

  1. It is unlawful for any person to board or ride a train operated by, or under contract with, a transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 when he fails or refuses to pay the posted fare published by the transportation district, or fails to properly validate a train ticket of the transportation district. A violation of this subsection continues from the point of boarding through termination of the train's scheduled trip. Any person who violates the provisions of this subsection is subject to a civil penalty of $100.
  2. It is unlawful for any person to board or ride a train operated by, or under contract with, a transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 with a validated ticket and to willfully use the ticket outside the designated zone of the paid ride. A violation of this subsection continues throughout the time that such ticket is used outside the designated zone of the paid ride. Any person who violates the provisions of this subsection is subject to a civil penalty of $100.
  3. It is unlawful for any person to board or ride a train operated by, or under contract with, a transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 when he uses a fraudulent or counterfeit ticket as a means to evade payment of the posted fare published by the transportation district. A violation of this subsection continues from the point of boarding through termination of the train's scheduled trip. A violation of this subsection is punishable as a Class 2 misdemeanor with a fine of not less than $500 for a first violation and with a fine of not less than $750 for a second or subsequent conviction when the second or subsequent conviction occurs more than 24 hours after but within 365 days of a prior violation.
  4. Any person who has been convicted of violating subsection C shall be civilly liable to the Commonwealth and the transportation district for all costs incurred in prosecuting such person. The costs shall be limited to actual expenses, including the base wage of one employee acting as a witness for the Commonwealth and suit costs, but the total costs recovered shall not exceed the maximum amount of the fine that may be imposed for the offense.

    (1988, c. 762; 1991, c. 241; 2009, c. 760; 2010, cc. 445, 837; 2012, c. 676.)

Editor's note. - References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

The 2009 amendments. - The 2009 amendment by c. 760 inserted the subsection A and B designations; in subsection A, in the first sentence, substituted "willfully and with intent to defraud (i) fails" for "has failed or refused" and added clauses (ii) through (iv) and substituted "is punishable as a Class 2 misdemeanor" for "shall be punishable by a fine of not less than $150 nor more than $250" in the next-to-last sentence; and in subsection B, in the first sentence, substituted "this section" for "the provisions of § 18.2-160.1 ," inserted "Commonwealth and the" preceding "transportation district" and deleted "under the provisions of § 18.2-160.1 " at the end and substituted "$500" for "$250" in the last sentence.

The 2010 amendments. - The 2010 amendments by cc. 445 and 837 are nearly identical, and designated the former second paragraph of subsection A as subsection D; added subsections B and C; and rewrote subsection A; and in subsection D, substituted "the maximum amount of the fine that may be imposed for the offense" for "$500." In addition, c. 837 substituted "subsection C" for "this section" in subsection D.

The 2012 amendments. - The 2012 amendment by c. 676 added "for a first violation and with a fine of not less than $750 for a second or subsequent conviction when the second or subsequent conviction occurs more than 24 hours after but within 365 days of a prior violation" at the end of the third sentence of subsection C.

§ 18.2-160.2. Trespassing on public transportation; penalty.

Any person who enters or remains upon or within a vehicle operated by a public transportation service without the permission of, or after having been forbidden to do so by, the owner, lessee, or authorized operator thereof is guilty of a Class 4 misdemeanor.

"Public transportation service" means passenger transportation service provided by bus, rail or other surface conveyance that provides transportation to the general public on a regular and continuing basis.

(2007, c. 461.)

§ 18.2-160.3. Fare enforcement inspectors; failure to produce proof of payment of fare; penalty.

  1. For the purposes of this section, "eligible entity" means any transit operation that is owned or operated directly or indirectly by a political subdivision of the Commonwealth or any governmental entity established by an interstate compact of which Virginia is a signatory.
  2. Any eligible entity that either directly or by contract operates any form of mass transit may appoint fare enforcement inspectors and establish the qualifications required for their appointment. Fare enforcement inspectors shall have the power to (i) request patrons at transit boarding locations or on transit vehicles to show proof of payment of the applicable fare; (ii) inspect the proof of payment for validity; (iii) issue a civil summons for violations authorized by this section; (iv) assist with crowd control while on a transit vehicle or at a transit boarding location; and (v) perform such other customer service and safety duties as may be assigned by the eligible entity. The powers of fare enforcement inspectors are limited to those powers enumerated in this section, and fare enforcement inspectors are not required to be law-enforcement officers. The powers of fare enforcement inspectors appointed pursuant to this section shall be exercisable anywhere in the Commonwealth where the appointing eligible entity operates transit service. Fare enforcement inspectors shall report to the department or agency designated by the appointing eligible entity.
  3. It shall be unlawful for any person to board or ride a transit operation operated by an eligible entity when he fails or refuses to pay the applicable fare or refuses to produce valid proof of payment of the fare upon request of a fare enforcement inspector. Any person who violates this section shall be liable for a civil penalty of not more than $100. Any person summoned for a violation may make an appearance in person or in writing by mail to the department of finance or the treasurer of the locality, or the designee of the department of finance or the treasurer, where the violation occurred as specified on the summons prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the violation charged. Such persons shall be informed of their right to stand trial and that a signature to an admission of liability will have the same force and effect as a judgment of court. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be brought by the eligible entity or the locality in which the violation occurred and tried as a civil case in the general district court in the same manner and with the same right of appeal as provided for by law. In any trial for a violation authorized by this section, it shall be the burden of the eligible entity or locality in which the violation occurred to show the liability of the violator by a preponderance of the evidence. The penalty for failure to pay the established fare on transit properties covered by another provision of law shall be governed by that provision and not by this section.
  4. The governing bodies of counties, cities, and towns may adopt ordinances not in conflict with the provisions of this section to appoint fare enforcement inspectors and prescribe their duties in such counties, cities, and towns.
  5. The penalty imposed by this section shall not apply to a law-enforcement officer while he is engaged in the performance of his official duties.

    (2014, cc. 281, 447; 2017, cc. 70, 548.)

The number of this section was assigned by the Virginia Code Commission, the number in the 2014 act having been § 33.1-223.2:30.

The 2017 amendments. - The 2017 amendments by cc. 70 and 548 are identical, and deleted "in Planning District 8" following "transit operation" in subsection A.

§ 18.2-161.

Repealed by Acts 2004, c. 459.

Editor's note. - Former § 18.2-161 , pertaining to trespassers jumping on or off railroad cars or trains, derived from Code 1950, § 18.1-149; 1960, c. 358; 1975, cc. 14, 15.

§ 18.2-162. Damage or trespass to public services or utilities.

Any person who shall intentionally destroy or damage any facility which is used to furnish oil, telegraph, telephone, electric, gas, sewer, wastewater or water service to the public, shall be guilty of a Class 4 felony, provided that in the event that the destruction or damage may be remedied or repaired for less than $1,000 such act shall constitute a Class 3 misdemeanor. On electric generating property marked with no trespassing signs, the security personnel of a utility may detain a trespasser for a period not to exceed one hour pending arrival of a law-enforcement officer.

Notwithstanding any other provisions of this title, any person who shall intentionally destroy or damage, or attempt to destroy or damage, any such facility, equipment or material connected therewith, the destruction or damage of which might, in any manner, threaten the release of radioactive materials or ionizing radiation beyond the areas in which they are normally used or contained, shall be guilty of a Class 4 felony, provided that in the event the destruction or damage results in the death of another due to exposure to radioactive materials or ionizing radiation, such person shall be guilty of a Class 2 felony; provided further, that in the event the destruction or damage results in injury to another, such person shall be guilty of a Class 3 felony.

(Code 1950, § 18.1-158; 1960, c. 358; 1964, c. 224; 1966, c. 446; 1975, cc. 14, 15; 1980, c. 548; 1981, c. 197; 1985, c. 299; 1992, c. 352; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and added "that" following "in the event" and substituted "less than $500" for "$200 or less" in the first paragraph.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "less than $1,000" for "less than $500" in the first paragraph.

Michie's Jurisprudence. - For related discussion, see 6B M.J. Electricity, § 18; 12A M.J. Larceny, § 8.

CIRCUIT COURT OPINIONS

Illegality defense to negligence based on statute. - Whether an injured excavator intentionally destroyed an underground power line was an issue properly left to the fact finder; therefore, the trial court did not grant summary judgment to a utility company that the excavator sued for negligence when the utility asserted the defense of illegality. Fulcher v. Va. Elec. & Power Co., 60 Va. Cir. 199, 2002 Va. Cir. LEXIS 267 (Norfolk 2002).

§ 18.2-162.1. Diverting wastewater line; diverting or wasting public water supply.

Any person who willfully and maliciously (i) diverts any public wastewater or sewer line or (ii) diverts or wastes any public water supply by tampering with any fire hydrant shall be guilty of a Class 2 misdemeanor.

(1980, c. 140; 1992, c. 352.)

§ 18.2-163. Tampering with metering device; diverting service; civil liability.

  1. Any person who (i) tampers with any metering device incident to the facilities set forth in § 18.2-162 , or otherwise intentionally prevents such a metering device from properly registering the degree, amount or quantity of service supplied, or (ii) diverts such service, except telephonic or electronic extension service not owned or controlled by any such company without authorization from the owner of the facility furnishing the service to the public, shall be guilty of a Class 1 misdemeanor.
  2. The presence of any metering device found to have been altered, tampered with, or bypassed in a manner that would cause the metering device to inaccurately measure and register the degree, amount or quantity of service supplied or which would cause the service to be diverted from the recording apparatus of the meter shall be prima facie evidence of intent to violate and of the violation of this section by the person to whose benefit it is that such service be unmetered, unregistered or diverted.
  3. The court may order restitution for the value of the services unlawfully used and for all costs.  Such costs shall be limited to actual expenses, including the base wages of employees acting as witnesses for the Commonwealth, and suit costs.  However, the total amount of allowable costs granted hereunder shall not exceed $250, excluding the value of the service.

    (Code 1950, § 18.1-158.1; 1966, c. 446; 1975, cc. 14, 15; 1976, c. 273; 1978, c. 813; 1992, c. 525.)

Cross references. - As to action for injunctive and equitable relief, and an award of damages, to a provider of services that have been tampered with, see § 8.01-44.7 .

Michie's Jurisprudence. - For related discussion, see 6B M.J. Electricity, § 18; 12A M.J. Larceny, § 8.

CASE NOTES

Meaning of "tamper," etc. - The language in this section providing that any person who tampers with any metering device or otherwise intentionally prevents such a device from properly registering the degree, amount or quantity of such service supplied would be guilty of a misdemeanor, means tampering with the metering device for a corrupt purpose of preventing its proper registration of the amount of the electrical service supplied. Cox v. Commonwealth, 220 Va. 22 , 255 S.E.2d 462 (1979).

Applicability in bankruptcy. - Where a power company alleged that a debtor had tampered with a meter and sought to have the resulting debt deemed nondischargeable under 11 U.S.C.S. § 523, the power company could not rely on the presumption in § 18.2-163 or its tariffs to establish that the debtor tampered with the meter or to establish he engaged in fraudulent or willful conduct. Liability under § 523 could not be established merely by a state statutory presumption. Power v. Robinson (In re Robinson), 340 Bankr. 316, 2006 Bankr. LEXIS 497 (Bankr. E.D. Va. 2006).

§ 18.2-164. Unlawful use of, or injury to, telephone and telegraph lines; copying or obstructing messages; penalty.

  1. If any person commits any of the following acts, he is guilty of a Class 2 misdemeanor:
    1. Maliciously injure, molest, cut down, or destroy any telephone or telegraph line, wire, cable, pole, tower, or the material or property belonging thereto;
    2. Maliciously cut, break, tap, or make any connection with any telephone or telegraph line, wire, cable, or instrument of any telegraph or telephone company which has legally acquired the right-of-way by purchase, condemnation, or otherwise;
    3. Maliciously copy in any unauthorized manner any message, either social, business, or otherwise, passing over any telephone or telegraph line, wire, cable, or wireless telephone transmission in the Commonwealth;
    4. Willfully or maliciously prevent, obstruct, or delay by any means or contrivance whatsoever the sending, conveyance, or delivery in the Commonwealth of any authorized communication by or through any telephone or telegraph line, wire, cable, or wireless transmission device under the control of any telephone or telegraph company doing business in the Commonwealth;
    5. Maliciously aid, agree with, employ, or conspire with any unauthorized person or persons unlawfully to do or cause to be done any of the acts hereinbefore mentioned.
  2. If any person, with the intent to prevent another person from summoning law-enforcement, fire, or rescue services:
    1. Commits any act set forth in subsection A; or
    2. Maliciously prevents or interferes with telephone or telegraph communication by disabling or destroying any device that enables such communication, whether wired or wireless, he is guilty of a Class 1 misdemeanor.

      (Code 1950, § 18.1-156; 1960, c. 358; 1975, cc. 14, 15; 2002, cc. 810, 818; 2006, c. 457.)

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and substituted "Class 2 misdemeanor" for "Class 3 misdemeanor" in subdivision 5.

The 2006 amendments. - The 2006 amendment by c. 457 added the subsection A designation and made related changes, substituted "If any person commits any of the following acts, he is guilty of a Class 2 misdemeanor" for "Any person who shall" at the beginning of subsection A; inserted "tower" in subdivision A 1; in subdivision A 3, inserted "or wireless telephone transmission" and substituted "the Commonwealth" for "this Commonwealth"; in subdivision A 4, twice substituted "the Commonwealth" for "this Commonwealth" and inserted "wireless transmission device"; deleted "shall be guilty of a Class 2 misdemeanor" at the end of subdivision A 5; and added subsection B.

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

CASE NOTES

Evidence insufficient. - As the evidence was insufficient to show that defendant destroyed or disabled a cell phone, defendant's conviction under subdivision B 2 of § 18.2-164 was improper; defendant did not disable or damage the victim's cell phone, and the Commonwealth only claimed that the victim was unable to use the cell phone. Alexander v. Commonwealth, No. 0126-12-4, 2013 Va. App. LEXIS 137 (Ct. of Appeals Apr. 30, 2013).

While the circuit court implicitly found that defendant disabled or destroyed the victim's cell phone in convicting defendant of interfering with a 911 phone call, it previously stated that it could not resolve an evidentiary dispute regarding who destroyed the victim's cell phone, defendant or the victim. Therefore, the court's factual conclusion that the evidence did not establish that defendant disabled or destroyed the victim's cell phone rendered the evidence legally insufficient to support defendant's conviction. Wandemberg v. Commonwealth, 70 Va. App. 124, 825 S.E.2d 291, 2019 Va. App. LEXIS 71 (2019).

CIRCUIT COURT OPINIONS

No evidence of obstruction or interference with private rights. - There were no grounds for removal of adjacent property owners' structures and relocation of the owners' pier so that it did not obstruct navigation or otherwise injure private rights of other persons because the evidence did not support that the pier constituted an obstruction or violation of private rights; there was no demonstration by any evidence that the owners' out pilings or the addition to their pier obstructed use of the neighbors' pier or interfered with private rights. Cooke v. Worsham, 97 Va. Cir. 384, 2013 Va. Cir. LEXIS 230 (Northumberland County Feb. 1, 2013).

§ 18.2-165. Unlawful use of, or injury to, television or radio signals and equipment.

Any person who shall willfully or maliciously break, injure or otherwise destroy or damage any of the posts, wires, towers or other materials or fixtures employed in the construction or use of any line of a television coaxial cable, or a microwave radio system, or willfully or maliciously interfere with such structure so erected, or in any way attempt to lead from its uses or make use of the electrical signal or any portion thereof properly belonging to or in use or in readiness to be made use of for the purpose of using said electrical signal from any television coaxial cable company or microwave system or owner of such property, shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-157; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-165.1. Tampering with or unlawful use of cable television service.

Any person who (i) shall knowingly obtain or attempt to obtain cable television service from another by means, artifice, trick, deception or device without the payment to the operator of such service of all lawful compensation for each type of service obtained; (ii) shall knowingly, and with intent to profit thereby from any consideration received or expected, assist or instruct any other person in obtaining or attempting to obtain any cable television service without the payment to the operator of said service of all lawful compensation; (iii) shall knowingly tamper or otherwise interfere with or connect to by any means whether mechanical, electrical, acoustical or other, any cables, wires, or other devices used for the distribution of cable television service without authority from the operator of such service; or (iv) shall knowingly sell, rent, lend, promote, offer or advertise for sale, rental or use any device of any description or any plan for making or assembling the same to any person, with knowledge that the person intends to use such device or plan to do any of the acts hereinbefore mentioned or if the device or plan was represented either directly or indirectly by the person distributing it as having the ability to facilitate the doing of any of the acts hereinbefore mentioned, shall be guilty of a Class 6 felony if convicted under clause (ii) or (iv) above and shall be guilty of a Class 1 misdemeanor if convicted under clause (i) or (iii) above.

As used herein, cable television service shall include any and all services provided by or through the facilities of any cable television system or closed circuit coaxial cable communications system or any microwave, satellite or similar transmission service used in connection with any cable television system or other similar closed circuit coaxial cable communications system.

In any prosecution under this section, the existence on property in the actual possession of the accused, of any connection, wire, conductor, or any device whatsoever, which permits the use of cable television service without the same being reported for payment to and specifically authorized by the operator of the cable television service shall be prima facie evidence of intent to violate and of the violation of this section by the accused.

Nothing contained in this section shall be construed so as to abrogate or interfere with any contract right or remedy of any person having a contract with the owner of a television coaxial cable, or a cablevision system, or a microwave radio system.

(1978, c. 712; 1979, c. 500; 1981, c. 197; 1991, c. 502.)

Law review. - For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

§ 18.2-165.2. Unlawful interference with emergency two-way radio communications; penalty.

  1. It shall be unlawful for any person to knowingly and willfully (i) interfere with the transmission of a radio communication, the purpose of which is to inform or to inquire about an emergency or (ii) transmit false information about an emergency.
  2. For the purposes of this section, "emergency" means a condition or circumstance in which an individual is or is reasonably believed by the person transmitting the communication to be in imminent danger of death or serious bodily harm or in which property is in imminent danger of damage or destruction.
  3. Any person who violates the provisions of this section shall be guilty of a Class 1 misdemeanor.

    (1985, c. 100.)

§ 18.2-166. Disclosing or inducing disclosure of certain information concerning customers of telephone companies.

Any person:

  1. Who is an employee of a telephone company, or an employee of a company which prints or otherwise handles lists of telephone customers for a telephone company and who discloses to another the names, addresses, or telephone numbers of any two or more customers of telephone service, knowing that such disclosure is without the consent of the telephone company furnishing said service; or
  2. Who knowingly induces such an employee to make such disclosure by giving, offering, or promising to such employee any gift, gratuity, or thing of value, or by doing or promising to do any act beneficial to such employee; or
  3. Who takes, copies, or compiles any list containing the aforesaid information knowing that such conduct is without the consent of the telephone company furnishing said service; or
  4. Who attempts, aids or abets another, or conspires with another, to commit any of the aforesaid acts,

    shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-417.1; 1968, c. 332; 1975, cc. 14, 15.)

§ 18.2-167. Selling or transferring certain telephonic instruments.

  1. It shall be unlawful for any person knowingly to make, sell, offer or advertise for sale, possess, or give or otherwise transfer to another any instrument, apparatus, equipment, or device or plans or instructions for making or assembling any instrument, apparatus, equipment or device which has been designed, adapted, used, or employed with the intent or for the purpose of (1) obtaining long distance toll telephone or telegraph service or the transmission of a long distance toll message, signal, or other communication by telephone or telegraph, or over telephone or telegraph facilities, without the payment of charges for any such long distance message, signal or other communication; or (2) concealing or assisting another to conceal from any supplier of telephone or telegraph service or from any person charged with the responsibility of enforcing this section, the existence or place of origin or of destination of any long distance toll message, signal, or other communication by telephone or telegraph, or over telephone or telegraph facilities. Persons violating any provision of this section shall be guilty of a Class 3 misdemeanor.
  2. Any such instrument, apparatus, equipment or device, or plans or instructions therefor, may be seized by court order or under a warrant; and, upon a final conviction of any person owning the seized materials, or having any ownership interest therein, for a violation of any provision of this section, the instrument, apparatus, equipment, device, or plans or instructions shall be ordered destroyed as contraband by the court in which the person is convicted.

    (Code 1950, § 18.1-238.3; 1966, c. 445; 1975, cc. 14, 15.)

§ 18.2-167.1. Interception or monitoring of customer telephone calls; penalty.

It shall be unlawful for any person, firm or corporation to intercept or monitor, or attempt to intercept or monitor, the transmission of a message, signal or other communication by telephone between an employee or other agent of such person, firm or corporation and a customer of such person, firm or corporation.

The provisions of this section shall not apply if the person, firm or corporation gives notice to such employee or agent that such monitoring may occur at any time during the course of such employment.

Any person, firm or corporation violating the provisions of this section shall be guilty of a Class 4 misdemeanor. The provisions of this section shall not apply to any wiretap or other interception of any communication authorized pursuant to Chapter 6 of Title 19.2 (§ 19.2-61 et seq.).

(1982, c. 380.)

Chapter 6. Crimes Involving Fraud.

Forgery.

Impersonation.

False Pretenses.

Bad Check Law.

False Representations to Obtain Property or Credit.

Offenses Involving Electronic Communication Devices.

Offenses Relating to Credit Cards.

Miscellaneous False and Fraudulent Acts.

Misrepresentations and Other Offenses Connected With Sales.

Virginia Comprehensive Money Laundering Act.

Cigarette Delivery Sale Requirements.

Article 1. Forgery.

§ 18.2-168. Forging public records, etc.

If any person forge a public record, or certificate, return, or attestation, of any public officer or public employee, in relation to any matter wherein such certificate, return, or attestation may be received as legal proof, or utter, or attempt to employ as true, such forged record, certificate, return, or attestation, knowing the same to be forged, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-92; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 146.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forgery, §§ 2, 3, 9, 24, 25.

CASE NOTES

Intent to defraud is an element of the offense of forgery of public documents. Campbell v. Commonwealth, 14 Va. App. 988, 421 S.E.2d 652 (1992), aff'd, 246 Va. 174 , 431 S.E.2d 648 (1993).

Offense is against public in general or government. - It is readily apparent that violation of any of the forgery statutes other than § 18.2-172 is an offense against the public in general or, as in this case, the government itself. Campbell v. Commonwealth, 13 Va. App. 33, 409 S.E.2d 21 (1991), modified on other grounds, 14 Va. App. 988, 421 S.E.2d 652 (1992), aff'd, 246 Va. 174 , 431 S.E.2d 648 (1993).

"Public record" means, but is not limited to, all written books, papers, letters, documents, photographs, tapes, microfiche, microfilm, photostats, sound recordings, maps, other documentary materials or information in any recording medium regardless of physical form or characteristics, including electronically recorded data, made or received in pursuance of law or in connection with the transaction of public business by any agency or employee of state government or its political subdivisions. Hall v. Commonwealth, No. 1265-99-2, 2000 Va. App. LEXIS 287 (Ct. of Appeals Apr. 18, 2000).

Section 18.2-168 plainly states that a person is guilty of forgery of a public document if he forges "a public record," not public records generally. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

A public record must be a written memorial, intended to serve as evidence of something written, said or done, made by a public officer authorized by law to make it, but that authority need not be derived from express statutory enactment. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865 (1874).

Includes record of transactions of public officer. - Whenever a written record of the transactions of a public officer, in his office, is a convenient and appropriate mode of discharging the duties of his office, it is not only his right but his duty to keep that written memorial, whether expressly required so to do or not; and when kept it becomes a public document, a public record, belonging to the office and not the officer. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865 (1874).

Such as warrant book of sinking fund. - The warrant book of the sinking fund, kept by the (then) second auditor in his office, of the transactions of the (then) commissioners of the sinking fund of the state, is such a public record that it may be the subject of forgery. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865 (1874).

The trial court correctly concluded that each praecipe was a forged public record, purportedly documenting the Commonwealth's motion to nolle prosequi a pending criminal prosecution, clearly the pursuit of "public business" by a "public officer;" thus defendant's actions involving the praecipes supported his convictions. Chellman v. Commonwealth, No. 1630-95-4, 1997 Va. App. LEXIS 157 (Ct. of Appeals Mar. 25, 1997).

A confirmation of insurance document was a public record for purposes of this section in that it was completed in part by a police officer, was used by the police and the DMV, as agents of the Commonwealth, to ascertain whether the vehicle was properly insured as required by state law and the officer kept a duplicate original for a governmental and public purpose. Hall v. Commonwealth, No. 1265-99-2, 2000 Va. App. LEXIS 287 (Ct. of Appeals Apr. 18, 2000).

Forgery during jail intake. - Where defendant, during initial intake following his arrest on criminal charges, forged fingerprint card and jail classification cards, and made statements prompted by deputy's questions, such questions were biographical in nature and part of routine booking procedure, and Miranda warnings were not required. Watts v. Commonwealth, 38 Va. App. 206, 562 S.E.2d 699, 2002 Va. App. LEXIS 250 (2002).

Jail intake records. - Court of appeals declined to apply the ends of justice exception to defendant's claim that certain documents were not public records within the meaning of § 18.2-168 because jail/annex property issued/returned sheets, police department advice of rights forms, advice of right form, and written statement to the police were all public records; those documents were made in connection with transaction of public business, admitting a prisoner to jail and investigating a crime, and were made by an authorized public officer to serve as evidence of things that were written, said or done, the receipt of defendant's personal property at the jail and the distribution of jail property to defendant in the context of the property records, or legal proof that defendant had been advised of his Miranda rights and had given a statement to the police. Word v. Commonwealth, No. 2660-07-3, 2009 Va. App. LEXIS 330 (Ct. of Appeals July 21, 2009).

Fingerprint card is clearly a public record. Greene v. Commonwealth, No. 1824-94-4 (Ct. of Appeals May 30, 1995).

Traffic summons was forged "public record." - Traffic summons before the court was clearly a forged "public record" which could "be received as legal proof," a writing expressly proscribed by this section. Blake v. Commonwealth, No. 2872-96-1 (Ct. of Appeals Jan. 20, 1998).

Traffic summons was a public record as it became the charging document on which a general district court tried an accused, under § 16.1-129, and if an accused willfully violated his written promise to appear in court, given when he signed the summons, he could be convicted for failure to appear under § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested, under § 19.2-74 A 3, and, given this statutory scheme, each signed summons clearly could constitute a separate offense under § 18.2-168 , regarding forgery of a public document. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

When defendant signed five separate summonses, issued at the same time, for five separate traffic infractions with his brother's name, the "single larceny doctrine" did not apply to make him guilty of only one forgery. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

Forged public documents: vehicle title and operator's license. - Evidence showed the defendant uttered a forged public document where he used faked names and records to obtain an operator's license and an application for a vehicle title and then injured an officer attempting to flee. Mohamed v. Commonwealth, No. 3439-01-1, 2003 Va. App. LEXIS 277 (Ct. of Appeals May 6, 2003).

Where evidence showed the defendant forged his brother's signature to prolong his deception of being the person whose license was given to an officer, or the person whose license was suspended was given notice, conviction for forgery was proper. Brown v. Commonwealth, No. 1189-02-2, 2003 Va. App. LEXIS 297 (Ct. of Appeals May 13, 2003).

Community service attendance sheet is public record. - Sufficient evidence supported defendant's convictions of forgery and uttering a public record, as the evidence in defendant's case showed that defendant added hours to a community service attendance sheet to show that defendant had performed all of defendant's court-ordered community service when in fact defendant had not done so; the attendance sheet qualified as a required public record to support defendant's conviction because the evidence showed that it was a document the probation officer collected pursuant to the duties that the county imposed upon her in supervising individuals on probation and the evidence also showed that defendant had added hours to it that defendant had not worked despite the fact that the sheet said not to write on it and that doing so would amount to forgery, a felony. Koch v. Commonwealth, No. 3078-05-4, 2007 Va. App. LEXIS 3 (Ct. of Appeals Jan. 9, 2007).

Juvenile and domestic relations district court guilty plea form not a public record. - Court of appeals invoked the ends of justice exception to defendant's claim that the trial court erred in convicting him of forging a juvenile and domestic relations district court guilty plea form because a miscarriage of justice took place, and defendant showed affirmative evidence in the record establishing that an element of the offense of forging a public document did not exist and that he did not commit the crime of forging a public record; the juvenile and domestic relations district court guilty plea form was not a public record because it was not prepared in connection with a legitimate legal proceeding, and that form was replaced with a general district court form before final judgment was entered in the general district court. Word v. Commonwealth, No. 2660-07-3, 2009 Va. App. LEXIS 330 (Ct. of Appeals July 21, 2009).

"Ends of justice" exception should have been invoked where erroneous jury instruction was so defective that it allowed the jury to convict defendant of forgery even if the jury concluded that defendant lacked an intent to defraud. Intent to defraud, however, is a necessary element of forgery. Campbell v. Commonwealth, 14 Va. App. 988, 421 S.E.2d 652 (1992), aff'd, 246 Va. 174 , 431 S.E.2d 648 (1993).

"To the prejudice of another" is not an element of the offense of forging a public document. The language "to the prejudice of another's right" appears only in § 18.2-172 and that statute expressly excludes this section, which criminalizes the forging of public documents; therefore, the legislature did not intend that the "prejudice to another's right" requirement be in any other sections. Campbell v. Commonwealth, 13 Va. App. 33, 409 S.E.2d 21 (1991), modified on other grounds, 14 Va. App. 988, 421 S.E.2d 652 (1992), aff'd, 246 Va. 174 , 431 S.E.2d 648 (1993).

Harm or prejudice to right of another person not element. - Harm or prejudice to the right of another person has never been and is not now an element of the crime of forgery of public records in this Commonwealth. Campbell v. Commonwealth, 246 Va. 174 , 431 S.E.2d 648 (1993).

Public officer or public employee. - Strictly for the purposes of this section, where a registered security officer is engaged in a duty specifically granted by statute, that officer is a "public officer or public employee." Coston v. Commonwealth, 29 Va. App. 350, 512 S.E.2d 158 (1999).

When defendant forged the summons issued by a registered security officer, it was as if defendant had forged a summons issued to him by a police officer, and the same criminal culpability resulted. Coston v. Commonwealth, 29 Va. App. 350, 512 S.E.2d 158 (1999).

Multiple prosecutions. - Analysis of the concept of "a public record" and a summons proved the legislature intended to allow multiple prosecutions for contemporaneous forgeries of such documents. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

Multiple convictions. - Language and structure of the Virginia Code proved the legislature intended to allow multiple convictions for forgery of public records. Hines v. Commonwealth, 39 Va. App. 752, 576 S.E.2d 781, 2003 Va. App. LEXIS 92 (2003).

Court of appeals declined to apply the ends of justice exception to defendant's claim that the trial court erred by convicting him of seven counts of forgery based upon multiple signatures on two documents in violation of § 18.2-168 because an allegation that defendant's guarantee against double jeopardy could have been violated was not enough to invoke the ends of justice exception to Va. Sup. Ct. R. 5A:18; each of the signatures documented a separate transaction, either the receipt or return of property, and, therefore, had a separate existence with separate consequences. Word v. Commonwealth, No. 2660-07-3, 2009 Va. App. LEXIS 330 (Ct. of Appeals July 21, 2009).

Uttering completed simultaneously with forgery. - Uttering does not require that a forged instrument be negotiated; uttering is completed simultaneously with a forgery where the forged signature on an electronic screen at the Virginia Department of Motor Vehicles is being employed as true in order to generate a false public record. Bennett v. Commonwealth, 48 Va. App. 354, 631 S.E.2d 332, 2006 Va. App. LEXIS 278 (2006).

Forgery and false pretenses. - Forgery and false pretences share a similarity of purpose and subject matter; although the elements of an obtaining property by false pretenses offense may be established with proof of a wide variety of misrepresentations and forgery offenses require the accused to create a false document and thereby misrepresent its genuineness, both offenses are premised on fraudulent representations made by the accused. Cummings v. Commonwealth, No. 1891-14-1, 2015 Va. App. LEXIS 325 (Nov. 10, 2015).

Character of offense not changed. - Circuit court did not err by allowing the Commonwealth to amend an indictment that charged defendant with the forgery of a public record to an indictment charging him with obtaining property by false pretenses because the amendment did not change the nature and character of the offense charged; the charges under both the original and amended indictment were based on the same conduct, defendant's misrepresentation on a building permit application. Cummings v. Commonwealth, No. 1891-14-1, 2015 Va. App. LEXIS 325 (Nov. 10, 2015).

Admission of evidence harmless error. - In defendant's forgery case, although the appellate court accepted the Commonwealth's concession of error concerning the admission of a witness' general habit testimony and assumed without deciding that it was error, it concluded that the error was harmless because the erroneously admitted testimony did not influence the verdict of the bench trial. Asinugo v. Commonwealth,, 2010 Va. App. LEXIS 280 (July 20, 2010).

Error in admitting evidence of pending charge of grand larceny. - The fact that defendant was originally charged with a grand larceny felony charge was not a material element in the offense of forging a public document; for the defendant's willfulness and his motive for forging Central Criminal Records Exchange (CCRE) form were not in issue at the trial, and even if the Commonwealth was entitled to demonstrate the defendant's willfulness or to show his motive in forging the CCRE form, the slight probative value of nature of the offense would not outweigh its prejudicial effect, and thus the trial court abused its discretion in admitting evidence of the pending charge of grand larceny. Tucker v. Commonwealth, 17 Va. App. 520, 438 S.E.2d 492 (1993).

Evidence of use of false or fictitious name. - Sufficient evidence did not support defendant's forgery of a public record convictions because the evidence did not show defendant completed Department of Motor Vehicles applications using a false or fictitious name, as, despite defendant's failure to change defendant's name in Virginia pursuant to statutory procedures, defendant testified defendant changed defendant's name in Panama and presented substantial supporting documentary evidence in the form of a United States passport in the name defendant used to complete the applications, and no evidence showed the passport was invalid. Thompson v. Commonwealth, No. 0262-18-2, 2019 Va. App. LEXIS 80 (Apr. 9, 2019).

Jury instructions proper. - Jury instructions, one of which created a permissible inference that defendant forged the documents defendant provided to an individual seeking to erase any record of a drunk driving conviction, based on the fact that defendant handed the documents to the individual, created a permissible inference, not a mandatory presumption. Ruiz v. Commonwealth, No. 1915-07-4, 2008 Va. App. LEXIS 566 (Ct. of Appeals Dec. 23, 2008).

Evidence was sufficient to prove defendant's false signature was a false writing with intent to defraud. - Evidence was sufficient to prove that defendant's signature as "Gray Shaw" on a fingerprint card after his arrest was a false writing made with intent to defraud in prosecution for forgery where the defendant was fingerprinted five times previously, he had reported and signed his name as "Dexter Reid," and although he reported his name as Gary Shaw during the arrest at issue, he himself misspelled "Gary" as "Gray" when signing the fingerprint card. Reid v. Commonwealth, 16 Va. App. 468, 431 S.E.2d 63 (1993).

Evidence sufficient to support conviction. - Defendant's conviction for uttering a forged public record was affirmed as defendant instituted the process that produced a fraudulent license when he stood for a photograph and signed a computer screen, even though he did not accept the fraudulent license; uttering was completed simultaneously with the forgery as the forged signature on the electronic screen was being employed as true in order to generate a false public record. Bennett v. Commonwealth, 48 Va. App. 354, 631 S.E.2d 332, 2006 Va. App. LEXIS 278 (2006).

Defendant's convictions on two counts of forging a public document and two counts of uttering a forged public document were upheld on appeal, given sufficient evidence that: (1) defendant caused a police officer to issue two forged summonses to him, by providing false information to the officer as he prepared the documents; and (2) defendant uttered them by knowingly allowing the officer to rely upon them in order to avoid further prosecution. Moreover, signing one's own name with the intent that the writing be received as written by another person, impersonating another in the signature of an instrument, or signing in such a way as to make the writing purport to be that of another, were all considered to be acts of forgery. Rodriquez v. Commonwealth, 50 Va. App. 667, 653 S.E.2d 296, 2007 Va. App. LEXIS 428 (2007).

Evidence supported the trial court's finding that defendant had the requisite intent to forge his signature because the Commonwealth presented evidence in support of its argument that defendant chose to use a certain name to conceal the criminal record existing under his actual name, and thus receive a lighter sentence, in the form of defendant's criminal record and his statement that he did not have any crimes against him under the other name. Word v. Commonwealth, No. 2660-07-3, 2009 Va. App. LEXIS 330 (Ct. of Appeals July 21, 2009).

Evidence was sufficient to support defendant's conviction for forging a public record, in violation of § 18.2-168 , where defendant disclosed an alias during a traffic stop, causing the arrest warrant to be prepared under that name, and then signed the fingerprint card using the alias, without providing his legally recognized name anywhere on the card, even though the card included a space for aliases. Asinugo v. Commonwealth,, 2010 Va. App. LEXIS 280 (July 20, 2010).

There was sufficient evidence to support defendant's conviction for forgery under § 18.2-168 because a subcontractor testified that he never gave defendant permission to use his contractor's number, and that evidence was supported by the fact that the subcontractor immediately had a building permit rescinded when he found out that his contractor's number was listed; defendant admitted that he filled out the permit, including the subcontractor's number, and submitted it to the secretary for the building inspection office. Williams v. Commonwealth, No. 0715-11-3, 2011 Va. App. LEXIS 367 (Nov. 29, 2011).

Record supported the reasonable conclusion that, through his actions, defendant asserted that his forged name was true and that the forged summonses issued during a routine traffic stop were good and valid and thus, the evidence was sufficient to support defendant's conviction for uttering a public record. Goodwin v. Commonwealth, 64 Va. App. 322, 767 S.E.2d 741, 2015 Va. App. LEXIS 29 (2015).

Conviction of defendant for uttering a forged public record was appropriate because an accord and satisfaction letter presented by defendant to the general district court in an earlier matter fell within the statutory definition of a public record. Moreover, the jury decided that the document was forged and that defendant knew it to be a forgery. Moreno v. Commonwealth, 65 Va. App. 121, 775 S.E.2d 422, 2015 Va. App. LEXIS 242 (2015).

Evidence insufficient to support conviction. - Because defendant's alleged conduct in making misrepresentations about defendant's real estate assets, to determine defendant's eligibility for indigent defense services, did not amount to a false making of the financial statements sufficient to alter their material nature - making them something other than what they purported to be - the trial court erred in overruling defendant's motion to strike forgery charges. Furthermore, there was no uttering because the document that was the basis of the charge was not a forgery. Henry v. Commonwealth, 63 Va. App. 30, 753 S.E.2d 868, 2014 Va. App. LEXIS 51 (Feb. 18, 2014).

Sufficient evidence did not support defendant's forgery of a public record conviction because misrepresentations in defendant's Department of Motor Vehicles applications regarding defendant's previous identity did not affect the genuineness or authenticity of the applications. Thompson v. Commonwealth, No. 0262-18-2, 2019 Va. App. LEXIS 80 (Apr. 9, 2019).

Aggravated felony under immigration law. - Petitioner was properly found ineligible for cancellation of removal because his conviction for forging public record under Virginia law was aggravated felony under Immigration and Nationality Act because Virginia forgery was categorical match with federal generic definition of forgery. Alvarez v. Lynch, 828 F.3d 288 (4th Cir. 2016).

Applied in Frontanilla v. Commonwealth, 38 Va. App. 220, 562 S.E.2d 706, 2002 Va. App. LEXIS 272 (2002).

CIRCUIT COURT OPINIONS

Signing summons with false name as new and distinct crime for purpose of exclusionary rule. - Although off-duty police officer violated the Fourth Amendment and Va. Const. Art. 1, § 8, in ordering defendant to stop, defendant committed a new and distinct crime while in custody in signing a uniform summons with a false name, thereby purging the taint of the initial police misconduct, and defendant's motion to suppress the summons and his statements to the officer was denied. Commonwealth v. Cooper, 56 Va. Cir. 501, 2001 Va. Cir. LEXIS 491 (Charlottesville 2001).

§ 18.2-169. Forging, or keeping an instrument for forging, a seal.

If any person forge, or keep or conceal any instrument for the purpose of forging, the seal of the Commonwealth, the seal of a court, or of any public office, or body politic or corporate in this Commonwealth, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-93; 1960, c. 358; 1975, cc. 14, 15.)

CIRCUIT COURT OPINIONS

Seal of the Commonwealth. - The image of the seal of the Commonwealth of Virginia on drivers' licenses was merely a representation of the seal of the Commonwealth, and did not constitute the actual seal of the Commonwealth as described in this section and defined by former §§ 7.1-26 and 7.1-27 [now §§ 1-500 and 1-501 ] so as to to support indictments for forgery stemming from defendants production of fake drivers' licenses. Commonwealth v. Bechtler, 56 Va. Cir. 186, 2001 Va. Cir. LEXIS 130 (Rockingham County 2001).

§ 18.2-170. Forging coin or bank notes.

If any person (1) forge any coin, note or bill current by law or usage in this Commonwealth or any note or bill of a banking company, (2) fraudulently make any base coin, or a note or bill purporting to be the note or bill of a banking company, when such company does not exist, or (3) utter, or attempt to employ as true, or sell, exchange, or deliver, or offer to sell, exchange, or deliver, or receive on sale, exchange, or delivery, with intent to utter or employ, or to have the same uttered or employed as true, any such false, forged, or base coin, note or bill, knowing it to be so, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-94; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For survey of Virginia law on evidence for the year 1978-1979, see 66 Va. L. Rev. 293 (1980).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counterfeiting, § 2; 8B M.J. Forgery §§ 2, 7, 25.

CASE NOTES

Constitutionality. - The difference in classification of the offense of forgery and uttering embodied in this section and § 18.2-172 is not arbitrary and unreasonable, because there are logical reasons for the distinction; thus, the sections are not unconstitutional. Tedder v. Cox, 317 F. Supp. 33 (W.D. Va. 1970).

Brightening base pieces is criminal. - One who brightens base pieces (which are brought to him ready formed, with the impression and appearance of dollars, except that they are of a dark color, like lead, and not then passable), by boiling them in a lye, and rubbing them with woolen cloth, and subjecting them to other processes, thereby rendering them by resemblance to real dollars more fit for circulation, is guilty of counterfeiting. Rasnick v. Commonwealth, 4 Va. (2 Va. Cas.) 356 (1823).

As is passing forged note of defunct bank. - It is felony to pass a counterfeit note of the bank of the United States, dated at a time when that bank was in existence, though, at the time of passing the note, the charter of the bank had expired. Buckland v. Commonwealth, 35 Va. (8 Leigh) 732 (1837).

But passing must be with guilty knowledge. - The passing of a counterfeit note may be of itself a perfectly innocent transaction; the guilt consists in passing it knowing it to be counterfeit. Finn v. Commonwealth, 26 Va. (5 Rand.) 701 (1827); Fitzgerald v. Commonwealth, 219 Va. 266 , 246 S.E.2d 899 (1978).

For a defendant to be convicted of uttering a counterfeit bill, the evidence must not only show that he passed counterfeit currency, it must also show that he knew it to be counterfeit at the time he passed it. Fitzgerald v. Commonwealth, 219 Va. 266 , 246 S.E.2d 899 (1978).

Time and place of passing and scienter sufficiently certain. - Where an indictment for passing a counterfeit note charges that the prisoner, on a particular day, at the county of M. and within the jurisdiction of the court, being possessed of the note, feloniously did pass the same, well knowing it to be counterfeit at the time he passed it, the time and place of passing the note and of the scienter are set forth with sufficient certainty. Buckland v. Commonwealth, 35 Va. (8 Leigh) 732 (1837).

Which must be proved. - In a prosecution for uttering counterfeit coin, the guilty knowledge of the prisoner that the coin was counterfeit is a fact to be proved. Wash v. Commonwealth, 57 Va. (16 Gratt.) 530 (1861).

Evidence that prisoner passed other counterfeit notes admissible to show scienter. - On the trial of an indictment for passing a counterfeit bank note or check, after evidence that the prisoner passed the note, and that it was counterfeit, evidence that the prisoner had in his possession and attempted to pass other counterfeit notes of the same kind to other persons, the day after he passed those in the indictment mentioned, is admissible to prove the scienter. Hendrick v. Commonwealth, 32 Va. (5 Leigh) 708 (1834). See Martin v. Commonwealth, 29 Va. (2 Leigh) 745 (1830).

Indictment valid which contains several charges in one count. - An indictment which charges a prisoner with the offenses of falsely making, forging and counterfeiting; of causing and procuring to be falsely made, forged and counterfeited, and of willingly acting and assisting in the said false making, forging and counterfeiting, is a good indictment, though all of these charges are contained in a single count. The words of the statute being pursued, and there being a general verdict of guilty, judgment ought not to be arrested on the ground that the offenses are distinct. Rasnick v. Commonwealth, 4 Va. (2 Va. Cas.) 356 (1823).

Or which does not state how accused caused note to be passed. - An indictment for causing and procuring a counterfeited bank note to be offered to be passed, without stating by whom or how the accused caused and procured it to be done, is sufficiently certain, and good. Brown v. Commonwealth, 29 Va. (2 Leigh) 769 (1839).

Or which does not state a later indorsement. - In setting out counterfeit bank note in haec verba, in an indictment for feloniously passing the same, an indorsement appearing to have been made on the note after it was passed is properly omitted and the omission is therefore no ground for the objection of variance. Buckland v. Commonwealth, 35 Va. (8 Leigh) 732 (1837).

Or that it was to the prejudice of another. - Upon an indictment of passing a counterfeit note of a bank, without alleging that the bank is a chartered bank, or that there is no such bank, and without alleging that the note was passed "to the prejudice of another's rights," or "for the prisoner's own benefit, or for the benefit of another," it was held that the offense so charged is a felony, and the indictment is good and sufficient. Murry v. Commonwealth, 32 Va. (5 Leigh) 720 (1835). See Commonwealth v. Ervin, 4 Va. (2 Va. Cas.) 337 (1823).

Or that injury was intended. - A charge that a forgery of bank notes was committed with intent to injure "divers good citizens of the Commonwealth, and others, to the jurors unknown," without setting out an intent to injure the president, directors of those banks, or of any particular person, or body politic, by name, is good after verdict. Commonwealth v. Ervin, 4 Va. (2 Va. Cas.) 337 (1823).

It is not necessary to produce the coin to convict one of passing a counterfeit coin. Kirk v. Commonwealth, 36 Va. (9 Leigh) 627 (1838).

Evidence of the passing of counterfeit notes by a confederate. - Upon the trial of an indictment for passing counterfeit bank notes, the prisoner appears clearly to have been confederated with another in passing counterfeit notes, and present when such notes were passed; the notes so passed may be produced in evidence against the prisoner. Martin v. Commonwealth, 29 Va. (2 Leigh) 745 (1830).

Evidence that a confederate, in the defendant's presence, passed counterfeit notes of the same description on other occasions is admissible against the defendant to prove scienter or guilty knowledge on his part. Fitzgerald v. Commonwealth, 219 Va. 266 , 246 S.E.2d 899 (1978).

Evidence sufficient to show knowledge. - Given defendant's conduct in repeatedly attempting to get counterfeit bills back from the cashier to whom he had given the bills, the physical appearance of the bills which immediately identified them to the cashier, the store manager, and the investigating officer as counterfeit, and defendant's inconsistent statements to the cashier and the officer as to how he obtained the bills, a rational fact finder could reasonably have inferred that defendant knew the bills were counterfeit when he passed them to the cashier. Pratt v. Commonwealth,, 2006 Va. App. LEXIS 595 (Dec. 28, 2006).

Evidence was sufficient to prove the intent necessary to support a conviction for uttering where the jury was permitted to infer defendant's guilty knowledge from his possession of forged traveler's checks, where defendant provided conflicting accounts as to how he obtained the checks, and after defendant obtained the checks, he immediately negotiated each check for an inexpensive item and a large amount of cash. Richardson v. Commonwealth,, 2010 Va. App. LEXIS 84 (Mar. 9, 2010).

Presumptive evidence that accused was the forger. - Upon the trial of an indictment for forging bank notes the fact, if proved, of the forged notes mentioned in the indictment, and other forged notes of like kind, and the plates, implements and materials for forging such notes being found in the prisoner's possession is prima facie or circumstantial presumptive evidence that the prisoner was the forger, proper to be given to the jury. Spencer v. Commonwealth, 29 Va. (2 Leigh) 751 (1830).

State court has jurisdiction when act also constitutes federal offense. - A state court has jurisdiction to punish the offense of attempting to pass a forged note purporting to be a note of one of the national banks of the United States, though the offense is contrary to a law of the Congress of the United States. Jet v. Commonwealth, 59 Va. (18 Gratt.) 933 (1867). See also Hendrick v. Commonwealth, 32 Va. (5 Leigh) 707 (1834).

§ 18.2-171. Making or having anything designed for forging any writing, etc.

If any person engrave, stamp, or cast, or otherwise make or mend, any plate, block, press, or other thing, adapted and designed for the forging and false making of any writing or other thing, the forging or false making whereof is punishable by this chapter, or if such person have in possession any such plate, block, press, or other thing, with intent to use, or cause or permit it to be used, in forging or false making any such writing or other thing, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-95; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counterfeiting, § 5; 8B M.J. Forgery, § 6.1.

CASE NOTES

"Adapted" and "designed" defined. - "Adapted" means "capable of being used; fit or suitable." "Designed" means "appropriate, fit, prepared, or suitable; also adapted, designated, or intended." Smith v. Commonwealth, 190 Va. 10 , 55 S.E.2d 427 (1949).

"Such person" in the second portion of this section refers to "any person" in the first portion thereof. Smith v. Commonwealth, 190 Va. 10 , 55 S.E.2d 427 (1949).

"Any such plate, block, press, or other thing," the possession of which is condemned by the second portion of the section, is such a device or instrumentality the making or mending of which is condemned by the first portion - that is, such as is "adapted and designed for the forging and false making of any writing." Smith v. Commonwealth, 190 Va. 10 , 55 S.E.2d 427 (1949).

This section condemns either the making or mending of, or the possession of, the instrumentality for an unlawful purpose. It is immaterial that it was originally planned, constructed and intended to be used for a lawful purpose. Smith v. Commonwealth, 190 Va. 10 , 55 S.E.2d 427 (1949).

What this section condemns is either the making or mending or the possession of the instrumentality for an evil or unlawful purpose. Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

Proof of intent by maker or mender not needed. - Proof of intent that it be used for forgery, on the part of one who makes or mends a check-writing machine, is not necessary to sustain a conviction of unlawful possession of the instrumentality in the hands of another. Smith v. Commonwealth, 190 Va. 10 , 55 S.E.2d 427 (1949).

Possession of rubber stamp for marking city tax paid on cigarette packages. - See Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

Indictment insufficient. - An indictment charging that the prisoner did knowingly have in his custody, without lawful authority or excuse, "one die or instrument" for the purpose of producing and impressing the stamp and similitude of the current silver coin called a half dollar (no further describing the die or instrument), is insufficient. Commonwealth v. Scott, 40 Va. (1 Rob.) 695 (1842).

Sufficiency of evidence. - When accused was arrested following his purchase of a check-writing machine, he had in his possession blank checks bearing a company's printed name and the forged signature of an official of the company. The Commonwealth proved that on the day before his arrest he had cashed a forged check of the company. It was held that this evidence was sufficient to sustain his conviction under the second portion of this section. Smith v. Commonwealth, 190 Va. 10 , 55 S.E.2d 427 (1949).

§ 18.2-172. Forging, uttering, etc., other writings.

If any person forge any writing, other than such as is mentioned in §§ 18.2-168 and 18.2-170 , to the prejudice of another's right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony. Any person who shall obtain, by any false pretense or token, the signature of another person, to any such writing, with intent to defraud any other person, shall be deemed guilty of the forgery thereof, and shall be subject to like punishment.

(Code 1950, § 18.1-96; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to obtaining a signature by false pretense, see § 18.2-178 .

As to substitute checks as evidence pursuant to the federal Check Clearing for the 21st Century Evidence Act, see § 8.01-391.1 .

As to evidence of forged instrument in prosecution for forgery, see § 19.2-224 .

Law review. - For survey of Virginia law on evidence for the year 1970-1971, see 57 Va. L. Rev. 1591 (1971).

Research References. - Virginia Forms (Matthew Bender). No. 9-507 Indictment - Forgery (Check); No. 9-512 Indictment - Uttering (Check).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counterfeiting, §§ 2, 4; 5B M.J. Criminal Procedure, §§ 3, 4; 8B M.J. Forgery, §§ 2, 7-10, 25.

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutionality. - The difference in classification of the offense of forgery and uttering embodied in § 18.2-170 and this section is not arbitrary and unreasonable, because there are logical reasons for the distinction; thus, the sections are not unconstitutional. Tedder v. Cox, 317 F. Supp. 33 (W.D. Va. 1970).

Violation of forgery statutes other than this section is offense against public or government. - It is readily apparent that violation of any of the forgery statutes other than this section is an offense against the public in general or the government itself. Campbell v. Commonwealth, 13 Va. App. 33, 409 S.E.2d 21 (1991), modified on other grounds, 14 Va. App. 988, 421 S.E.2d 652 (1992), aff'd, 246 Va. 174 , 431 S.E.2d 648 (1993).

The language "to the prejudice of another's right" appears only in this section and this statute expressly excludes § 18.2-168 , which criminalizes the forging of public documents; therefore, the legislature did not intend that the "prejudice to another's right" requirement be in any other sections. Campbell v. Commonwealth, 13 Va. App. 33, 409 S.E.2d 21 (1991), modified on other grounds, 14 Va. App. 988, 421 S.E.2d 652 (1992), aff'd, 246 Va. 174 , 431 S.E.2d 648 (1993).

Evidence held insufficient to prove venue. - Defendant's two grand larceny and two uttering a forged check convictions were reversed on appeal, as the trial court erred in finding the evidence insufficient to establish venue, no evidence was presented by the Commonwealth as to the location of the alleged crimes, and the Commonwealth failed to ask the court to take judicial notice of that location. Harris v. Commonwealth,, 2006 Va. App. LEXIS 493 (Oct. 31, 2006).

Evidence held sufficient to prove venue. - Trial court did not err in convicting defendant of forgery in violation of § 18.2-172 because venue was proper in Mecklenburg County, Virginia since the evidence established a strong presumption that defendant deposited or placed the forged instrument with another person or firm in Mecklenburg County pursuant to § 19.2-245.1 , and the record did not suggest the involvement of an alternate jurisdiction from which defendant could reasonably have perpetrated the forgery; the victim's attorney sent an unsigned note to defendant's residence in Mecklenburg County, and although the record was silent as to who received the note, the only logical inference flowing from the evidence was that defendant passed the instrument back to either the victim, who resided in Mecklenburg, or the attorney, whose principal place of business was also in Mecklenburg. Duckworth v. Commonwealth,, 2011 Va. App. LEXIS 60 (Feb. 22, 2011).

Applied in Timbers v. Commonwealth, 28 Va. App. 187, 503 S.E.2d 233 (1998); Dillard v. Commonwealth, 32 Va. App. 515, 529 S.E.2d 325, 2000 Va. App. LEXIS 399 (2000); Wadkins v. Arnold, 214 F.3d 535, 2000 U.S. App. LEXIS 12102 (4th Cir. 2000); Wadkins v. Arnold, 214 F.3d 535, 2000 U.S. App. LEXIS 12102 (4th Cir. 2000).

II. ELEMENTS OF FORGERY.
A. IN GENERAL.

"Forgery" defined. - Forgery is the making of a false writing which, if genuine, would be apparently of legal efficacy. Terry v. Commonwealth, 87 Va. 672 , 13 S.E. 104 (1891).

Forgery is the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability. Bullock v. Commonwealth, 205 Va. 558 , 138 S.E.2d 261 (1964); Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964); Moore v. Commonwealth, 207 Va. 838 , 153 S.E.2d 231 (1967); Fitzgerald v. Commonwealth, 227 Va. 171 , 313 S.E.2d 394 (1984).

Forgery is the fraudulent making or alteration of a writing to the prejudice of another man's right. Bullock v. Commonwealth, 205 Va. 558 , 138 S.E.2d 261 (1964).

Forgery is the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability. Gordon v. Commonwealth, No. 1717-88-1 (Ct. of Appeals Apr. 10, 1990).

While a person may adopt any name he may choose so long as it was done for an honest purpose, forgery is committed by signing an assumed name, or a fictitious name, for a dishonest purpose and with intent to defraud. Moore v. Commonwealth, 207 Va. 838 , 153 S.E.2d 231 (1967).

To sustain a forgery conviction, the Commonwealth had to prove that the accused falsely made or materially altered a writing, without the authority to do so, and did so to the prejudice of another's right. Manas v. Commonwealth, No. 2789-00-1, 2001 Va. App. LEXIS 524 (Ct. of Appeals Sept. 25, 2001).

Materiality. - A fact is material when it influences a person to enter into a contract, when it deceives him and induces him to act, or when without it, the transaction would not have occurred. Beiler v. Commonwealth, 243 Va. 291 , 415 S.E.2d 849 (1992).

It made no difference that appellant's alterations of the checks did not change the bank's contract with check writer. Appellant's fraudulent alterations were material because they induced the tellers to pay the larger amounts shown on the checks. Beiler v. Commonwealth, 243 Va. 291 , 415 S.E.2d 849 (1992).

Extent of defendant's participation. - It is immaterial whether the defendant actually cashed the checks, or whether they were forged by one person, endorsed by the defendant, and cashed by the forger or by a third person, where the defendant's participation in the concerted action, and his fraudulent intent, are sufficiently supported by the evidence. Fitzgerald v. Commonwealth, 227 Va. 171 , 313 S.E.2d 394 (1984).

Presence or absence at time of forgery. - One who procures the forgery of an instrument is an accessory before the fact if he was absent when the writing was forged, or a principal in the second degree if he was present. The distinction is of no consequence, because his guilt is the same, and he is subject to the same punishment, in either event. Fitzgerald v. Commonwealth, 227 Va. 171 , 313 S.E.2d 394 (1984).

Writings, invalid on their face, are not subjects of forgery. If intrinsic circumstances are essential to the efficacy of the instrument, they must be averred in the indictment. Terry v. Commonwealth, 87 Va. 672 , 13 S.E. 104 (1891).

But writing of questionable validity is. - A bail bond taken by a sheriff which has been altered in a material part may be the subject of a prosecution for forgery, although some doubts may be raised respecting the validity of the bond, arising from the recitals in the condition. Commonwealth v. Linton, 4 Va. (2 Va. Cas.) 476 (1825).

Writing must be to the prejudice of another. - This section predicates the offense of forgery only of such writings as are, or may be, to the prejudice of another. Terry v. Commonwealth, 87 Va. 672 , 13 S.E. 104 (1891).

Or have a possibility of being prejudicial. - An instrument is one of legal efficacy, within the rules relating to forgery, where by any possibility, it may operate to the injury of another. Gordon v. Commonwealth, 100 Va. 825 , 41 S.E. 746 (1902); Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

Proof of actual prejudice not necessary. - This section does not require that the Commonwealth prove beyond a reasonable doubt that someone, in fact, was prejudiced by appellant's conduct. Rather, a conviction may be sustained where the evidence shows the possibility that the forged instrument may operate to the prejudice of another's right. Mitchell v. Commonwealth, No. 2528-92-2 (Ct. of Appeals June 7, 1994).

This section does not require that the forged or altered document operate to the actual prejudice of one who does or could rely on the genuineness of the document itself, but rather only that the forged document had the potential to operate to the prejudice of another. Stevenson v. Commonwealth, 27 Va. App. 453, 499 S.E.2d 580 (1998).

When defendant was prosecuted for forgery for making false entries in a nursing home patient's record, the Commonwealth did not have to show that anyone was actually prejudiced because the statute only required proof that a forged instrument might operate to the prejudice of another's right. Beshah v. Commonwealth, 60 Va. App. 161, 725 S.E.2d 144, 2012 Va. App. LEXIS 142 (2012).

A city is a "person" whose rights may be prejudiced by a forgery. Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

The rights of a city were prejudiced by the use of a forged city cigarette tax stamp because it was thereby deprived of the tax payable to it on the cigarettes sold by defendant which bore the false stamp and potentially on the several thousand packages which defendant had imprinted with the false stamp preparatory to selling them. Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

Possibility of prejudice evident. - Appellant's signing of parolee's name on indigent legal aid form while under arrest created a possibility of prejudice to the parolee. If her parole officer had been informed that she had been arrested, the prejudice to the parolee would have been indisputable. Additionally, appellant's false execution of the form created the possibility of prejudice to the Commonwealth. Appellant created a possibility that the wrong person would be tried, convicted, and punished for her criminal offense. Mitchell v. Commonwealth, No. 2528-92-2 (Ct. of Appeals June 7, 1994).

When defendant was prosecuted for forgery for making false entries in a nursing home patient's record, there was sufficient evidence of possible prejudice to another's right because (1) the patient was exposed to actual and potential prejudice, (2) the nursing home faced sanctions, and (3) the falsified records could prejudice the Medicaid program. Beshah v. Commonwealth, 60 Va. App. 161, 725 S.E.2d 144, 2012 Va. App. LEXIS 142 (2012).

Intent to defraud. - Intent to defraud for the purposes of a forgery conviction under § 18.2-172 was demonstrated by the fact that defendant used her best friend's identifying information on a hospital discharge form to avoid arrest for a probation violation. Pullin v. Commonwealth, No. 2758-07-2, 2009 Va. App. LEXIS 139 (Ct. of Appeals Mar. 24, 2009).

Defendant was properly convicted of forgery for making false entries in a nursing home patient's record because, inter alia, defendant's intent to defraud was shown by (1) the number of false entries, (2) defendant's experience, training, and knowledge of the need for accurate records, (3) defendant's perjured testimony denying the entries were false, and (4) defendant's payment for work defendant did not do. Beshah v. Commonwealth, 60 Va. App. 161, 725 S.E.2d 144, 2012 Va. App. LEXIS 142 (2012).

Forgery and larceny. - One may be found guilty of forgery and of uttering a forged check, and of the larceny of the proceeds of the check. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

And one may attempt to employ as true a forged instrument, yet not be guilty of larceny if he obtained no money or property by his action. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

However, evidence necessary to establish forgery or uttering a forged instrument is not the same required to establish larceny. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

For case discussing the application of "Wharton's Rule" in forgery and conspiracy to commit a felony case, see Ramsey v. Commonwealth, 2 Va. App. 265, 343 S.E.2d 465 (1986).

B. PARTICULAR INSTRUMENTS.

Forgery of indorsement of note is an offense. - The making of a negotiable note, indorsing the name of a third person on the back thereof, and passing it to the payee constitutes the offense of forgery. Powell v. Commonwealth, 52 Va. (11 Gratt.) 822 (1854).

But forging power of attorney to recover money is not. - The forgery of a power of attorney to recover money for military services, is not a crime within an "act against forgery." Commonwealth v. Proctor, 3 Va. (1 Va. Cas.) 4 (1791).

Nor is forging of letter of introduction. - A letter of introduction was held not a writing in respect whereof forgery can be committed, either at common law or under the statute. Foulkes v. Commonwealth, 41 Va. (2 Rob.) 836 (1843).

Forgery of city cigarette tax stamps is an offense under this section. - Under a city ordinance which levied a tax on cigarettes to be paid by the wholesaler or dealer, each package sold had to be marked with a stamp or the printed mark of a meter machine. Defendant sold cigarettes through vending machines and to avoid paying the tax made and used a stamp with which he imitated the meter mark of a particular wholesaler. He was properly convicted under this section for possessing this stamp with intent to forge for forging the mark on cigarettes found in his home, and for forging and uttering cigarettes in his machines bearing this mark. Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

But city ordinance punishing as misdemeanor forgery of city tax stamps on cigarettes was invalid, since the crime of forgery was already controlled by a general state statute making it a felony. Hanbury v. Commonwealth, 203 Va. 182 , 122 S.E.2d 911 (1961).

Payroll check. - Because a payroll check that defendant cashed contained defendant's name, fraudulently written as the intended payee, defendant's handwritten endorsement, and a misspelled signature of the drawer's representative on the bottom left portion of the check's front, the check had apparent legal efficacy to find defendant guilty of forgery and uttering. Perry v. Commonwealth,, 2006 Va. App. LEXIS 426 (Sept. 19, 2006).

Hospital discharge form. - Defendant was properly convicted of forgery because a hospital discharge form defendant signed with her best friend's name had legal efficacy for the purposes of § 18.2-172 because the language of the form could have subjected the friend to financial liability for defendant's treatment. Pullin v. Commonwealth, No. 2758-07-2, 2009 Va. App. LEXIS 139 (Ct. of Appeals Mar. 24, 2009).

Medical clearance for light duty work form. - Evidence was sufficient to convict defendant of forgery and uttering because he deliberately falsified a medical clearance for light duty work form in order to obtain light-duty, sedentary, inside work, and he uttered the forged form when he presented it to his supervisor as good and valid. Lee v. Commonwealth,, 2010 Va. App. LEXIS 181 (May 4, 2010).

III. UTTERING.

"Uttering." - Uttering is an assertion by word or action that a writing known to be forged is good and valid. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964); Gordon v. Commonwealth, No. 1717-88-1 (Ct. of Appeals Apr. 10, 1990).

"Utter" is defined as to put or send, as a forged check, into circulation. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

Uttering of forged instrument separate offense from forgery. - The forging of an instrument and the uttering of such forged instrument are distinct and substantive offenses. Page v. Commonwealth, 36 Va. (9 Leigh) 683 (1839); Mowbray v. Commonwealth, 38 Va. (11 Leigh) 643 (1841); Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727 (1852); Johnson v. Commonwealth, 102 Va. 927 , 46 S.E. 789 (1904); Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

This section lists two offenses in the disjunctive: One, forgery and the other, uttering or attempting to employ as true a forged writing. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

What constitutes the offense. - Any assertion or declaration, by word or act, directly or indirectly, that the forged writing is good, with knowledge that it is forged, is an uttering or attempting to employ as true the said writing, provided that such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing. Chahoon v. Commonwealth, 61 Va. (20 Gratt.) 733 (1871); Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

Knowledge that writing is forged. - Evidence was sufficient to prove that defendant knew check was forged at the time she tendered it for payment, and her conviction for uttering was therefore affirmed. Hutchings v. Commonwealth, No. 2066-98-3 (Ct. of Appeals Nov. 9, 1999).

Evidence supported the trial court's finding that defendant uttered two checks knowing them to be forged when he cashed them; defendant's possession of the forged checks, which he submitted as payee, permitted the inference that he knew they were forged. Vernon v. Commonwealth,, 2006 Va. App. LEXIS 585 (Dec. 28, 2006).

Sufficient evidence was presented to support defendant's conviction for uttering in violation of § 18.2-172 because defendant endorsed a check knowing that he did not perform "housework" as noted in the memo section; therefore, defendant knew the check was forged and presented it to a bank with the intent to defraud. Massengale v. Commonwealth,, 2007 Va. App. LEXIS 84 (Mar. 13, 2007).

In a case in which defendant appealed his convictions for uttering a forged check in violation of § 18.2-172 and attempted grand larceny in violation of §§ 18.2-95 and 18.2-26 , he argued unsuccessfully that it would violate his due process rights under the Fourteenth Amendment to infer his guilty knowledge solely from the fact that he possessed the forged check. The evidence in the record rationally connected the permissive inference of guilty knowledge of the check's forgery to defendant's possession of the forged instrument, and his possession of the forged check, in conjunction with the other circumstantial evidence, allowed the inference that he knew the check was forged. Coles v. Commonwealth, No. 0624-08-2, 2009 Va. App. LEXIS 484 (Ct. of Appeals Oct. 27, 2009).

Accused must have himself uttered or assisted another. - To convict a prisoner of uttering, or attempting to employ as true, a forged writing, it must be shown that the accused himself uttered or attempted to employ as true the said forged writing, or was present at the time such forged writing was uttered or attempted to be employed as true by some other person, aiding and assisting such person to utter or employ the same as true. Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

Counsel recovering judgment on note he knows to be forged is uttering. - The bringing of a suit at law, as counsel, upon a forged note, and recovering judgment thereon with the knowledge that the note was a forgery, is held to be an attempt to employ the said note as true, and an uttering thereof, within the meaning of the statute. Chahoon v. Commonwealth, 61 Va. (20 Gratt.) 733 (1871); Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

Passing forged checks of bank with invalid charter an offense. - Upon an indictment for passing a counterfeit check or order of a branch of the bank of the United States, on the cashier of the bank, payable to T.R. or order, and indorsed by T.R. to bearer, it was held that whether the charter of the bank be constitutional or not, and whether the charter authorizes the issue of such checks or orders or not, the counterfeiting or passing counterfeits of such checks or orders, is felony. Hendrick v. Commonwealth, 32 Va. (5 Leigh) 707 (1834).

Evidence held sufficient. - Trial court did not abuse its discretion in denying defendant's motion for appointment of a handwriting expert in a case where defendant was accused of forging the checks of defendant's friend and presenting them at the friend's bank in order to obtain funds from the friend's checking account, as defendant did not show a particularized need for such testimony since the crime of uttering did not require direct proof that defendant personally forged or altered the checks. Dickenson v. Commonwealth, No. 1095-02-1, 2003 Va. App. LEXIS 228 (Ct. of Appeals Apr. 15, 2003).

Evidence was sufficient to convict defendant of three counts of uttering where two grocery store clerks identified photographs of defendant as the person who presented forged checks to them and the true owner of the checks testified that her checks were stolen when an unknown thief broke into her car. Shelton v. Commonwealth,, 2006 Va. App. LEXIS 610 (Nov. 16, 2006).

Because defendant took a check that was payable to her husband, endorsed his name to the check, and deposited it to her personal account without permission or pursuant to a good faith claim of right, she was properly convicted of grand larceny and uttering under §§ 18.2-98 and 18.2-172 . Kocher v. Commonwealth,, 2009 Va. App. LEXIS 115 (Mar. 17, 2009).

Evidence was sufficient to support defendant's four convictions for uttering as a principal in the second degree because all four checks were drafted by a close friend of defendant who forged her mother's signature on the checks; defendant was present when another individual cashed the first and the last fraudulent check; the two other fraudulent checks were made payable to defendant and each was signed with her name on the back; and the totality of the evidence supported the trial court's finding that defendant was aware that the checks were forged and aware that the other individual was fraudulently cashing them. Wilcox v. Commonwealth, No. 0853-19-1, 2020 Va. App. LEXIS 106 (Apr. 14, 2020).

IV. INDICTMENT.

Uttering and forging may be charged in separate counts. - Forging and uttering a forged paper knowing it to be forged, being separate and distinct offenses, may be charged in separate counts in the same indictment. Johnson v. Commonwealth, 102 Va. 927 , 46 S.E. 789 (1904).

Utterings and forging may be charged in separate counts of the same indictment. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

And accused may be found guilty of both forgery and uttering a forged instrument, if each offense is charged in a separate count in the same indictment. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

And punished for each offense separately. - A jury may find a prisoner guilty upon a count of uttering and a count of forging, and ascertain the punishment for each offense separately. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

A general description of the offense in the words of the statute is sufficient. Huffman v. Commonwealth, 27 Va. (6 Rand.) 685 (1828).

Indictment need not contain words "to the prejudice of another's right." - The words, "to the prejudice of another's right," in relation to forgeries, are descriptive not of the offense but of the writings of which forgery may be committed, and it is not therefore necessary that they shall be inserted in the indictment in describing the offense charged. Hendrick v. Commonwealth, 32 Va. (5 Leigh) 707 (1834); Murry v. Commonwealth, 32 Va. (5 Leigh) 720 (1835); Powell v. Commonwealth, 52 Va. (11 Gratt.) 822 (1854).

Nor set out indorsements on forged note. - An indictment for forgery charged that the forgery was of a negotiable note, and set it out in haec verba, without setting out the indorsements upon the back. On the trial when the note was offered in evidence, it was objected to on the ground of variance. It was held that it was not necessary to set out in the indictment the indorsements upon the note, or any other matter written upon the same paper, constituting no part of the note itself, and not entering into the essential description of that instrument. Perkins v. Commonwealth, 48 Va. (7 Gratt.) 651 (1851).

Nor that the persons accused procured to forge the instrument. - It is not necessary to set forth in the count the persons whom the prisoner procured to forge the instrument, or with whom he acted and assisted in the forgery. A general description, in the words of the statute, is sufficient. Huffman v. Commonwealth, 27 Va. (6 Rand.) 685 (1828).

Nor that forger of receipt was indebted. - On an indictment for forging a receipt, it is not necessary that it should be averred that the person charged with the offense is indebted to the individual against whom the receipt is forged in order to show that the latter stands in a situation to be defrauded by the former. The guilt or innocence of the accused is not dependent on the ultimate result of a settlement of accounts between the parties, nor can one be permitted to forge an acquittance to defeat even an unjust demand. Gordon v. Commonwealth, 100 Va. 825 , 41 S.E. 746 (1902).

Forgery of check and indorsement thereon may be charged in one count. - An indictment charging in one count the forgery of a check and of the indorsement thereon, is not liable to the objection of duplicity or misjoinder. Sprouse v. Commonwealth, 81 Va. 374 (1886).

Variance. - Where the indictment described in detail the note which it was alleged that defendant had forged and uttered, and the evidence showed that the instrument, when presented to the bank, was signed in blank, there was held to be no variance between the allegations and proof, since the signing of the forged names to the note and thereafter completing the instrument constituted a forgery and there was no variance as to the uttering of the forged instrument because the evidence showed that it was negotiated with, and accepted by, the bank after it had been completed. Bullock v. Commonwealth, 205 Va. 558 , 138 S.E.2d 261 (1964).

Accused may be acquitted because of variance. - The statute does not make a variance between the indictment and the forged paper immaterial. The accused must be acquitted on that ground, if no other. And if acquitted, the presumption, in the absence of evidence to the contrary, is that he was acquitted on that ground. Burress v. Commonwealth, 68 Va. (27 Gratt.) 934 (1876), overruled on another point, Keister's Ex'rs v. Philips' Ex'x, 124 Va. 585 , 98 S.E. 674 (1919).

Immaterial variance. - The difference between "account" as set out in the indictment and "acct" as written in a forged order, is not a material variance which will exclude the order as evidence. Burress v. Commonwealth, 68 Va. (27 Gratt.) 934 (1876), overruled on another point, Keister's Ex'rs v. Philips' Ex'x, 124 Va. 585 , 98 S.E. 674 (1919).

Description of instrument. - In a prosecution for forging, or attempting to employ as true any forged instrument, it is sufficient to describe the same in the indictment in such manner as would sustain an indictment for the larceny of such instrument. Coleman v. Commonwealth, 66 Va. (25 Gratt.) 865 (1874). See § 19.2-224 .

Incomplete recital of note. - An indictment charged the forgery of an indorsement on a negotiable note which was described as to the amount, date, to whom payable and when due, but the indictment did not state who was the maker of the note or where it was payable. It was held that it was a good indictment. Cocke v. Commonwealth, 54 Va. (13 Gratt.) 750 (1855).

Inaccurate recital. - The description of the writing in the indictment as the indorsement of a person whose name is forged will not vitiate the indictment though the simulated liability might not be that of a technical indorser, but of a different character. Powell v. Commonwealth, 52 Va. (11 Gratt.) 822 (1854).

Indictment charging as principal in second degree. - An indictment which charges that the prisoner caused and procured a certain instrument to be forged, and willingly assisted in the forgery, etc., is to be understood as charging that he caused it to be done in his presence, and that he aided, being present, in other words, as charging him as principal in the second degree, and not as accessory. Huffman v. Commonwealth, 27 Va. (6 Rand.) 685 (1828). See Rasnick v. Commonwealth, 4 Va. (2 Va. Cas.) 356 (1823).

Indictment held good after verdict. - To charge that the prisoners willingly acted and assisted in false making and forging, without setting out in particular any person who was assisted; to charge them with causing and procuring the forged notes to be passed, without setting out the persons whom the prisoners caused or procured to pass them, nor to whom; to charge them with passing them to W.S. with intent to defraud the said W.S. and others; also, to charge them with causing and procuring them to be passed or exchanged, was good after verdict. Commonwealth v. Ervin, 4 Va. (2 Va. Cas.) 337 (1823).

V. EVIDENCE.
A. PRESUMPTIONS AND BURDEN OF PROOF.

Every presumption is in favor of innocence. - It is a fundamental principle of law that fraud must be clearly alleged and proven. Every presumption is in favor of innocence and not of guilt. In the instant case it was alleged that a certain deed was a forgery, but there was no evidence to sustain the averment. Branham v. Clinchfield Coal Corp., 123 Va. 346 , 96 S.E. 761 (1918).

Failure of accused to produce evidence may be considered. - If the jury believe that it is in the power of the accused to produce evidence in elucidation of the subject matter of the charge against him, then his failure or neglect to produce such evidence may be considered by the jury, in connection with the other facts proved in the case. Chahoon v. Commonwealth, 61 Va. (20 Gratt.) 733 (1871).

Authority. - The prosecution must prove beyond reasonable doubt that defendant was not authorized to sign the name which he allegedly forged and this burden of proof was not sustained where witness whose name was signed would not testify that defendant was unauthorized. Lawson v. Commonwealth, 201 Va. 663 , 112 S.E.2d 899 (1960).

Presumption of authority. - Where one signs the name of another to a check it is presumed, in the absence of other evidence, that he or she has the authority to do so and the burden is on the Commonwealth not only to prove that the defendant signed another's name as maker of the check but the evidence must establish that this was done without authority. Bowman v. Commonwealth, 28 Va. App. 204, 503 S.E.2d 241 (1998).

The unexplained possession of a forged instrument by one who endeavors to obtain money thereon is prima facie evidence that such person forged the instrument, but such prima facie evidence may be rebutted by an explanation satisfactory to the jury as to how he came into possession of the instrument. Bullock v. Commonwealth, 205 Va. 558 , 138 S.E.2d 261 (1964); Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

It was held to be reversible error to instruct the jury that defendant's possession and uttering of the forged instrument raised a presumption that he forged it, which presumption would become conclusive unless defendant explained the possession or the forgery. Bullock v. Commonwealth, 205 Va. 558 , 138 S.E.2d 261 (1964); Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

Possession of a forged check by an accused, which he claims as a payee, is prima facie evidence that he either forged the instrument or procured it to be forged. Oliver v. Commonwealth, 35 Va. App. 286, 544 S.E.2d 870, 2001 Va. App. LEXIS 196 (2001).

Evidence failed to link defendant to checks upon which charges were based. - Charges that a defendant committed forgery and uttering by passing counterfeit checks were not sufficiently proved by evidence which failed to link him to the specific checks upon which the charges were based. Bell v. Commonwealth, No. 0139-01-2, 2002 Va. App. LEXIS 151 (Ct. of Appeals Mar. 12, 2002).

Evidence of intent to defraud drawee. - The fact that an instrument was forged, made payable to the defendant, and endorsed by him, is sufficient evidence of the defendant's intent to defraud the drawee. Fitzgerald v. Commonwealth, 227 Va. 171 , 313 S.E.2d 394 (1984).

Physician's alteration of test date held not forgery. - is prima facie evidence that he either forged the instrument or procured it to be forged. Such a prima facie showing of guilt does not rise to the level of a conclusive presumption, and it may be rebutted, but it will warrant submission of the issue of guilt of forgery to the jury, and will support a verdict of guilty if the jury so finds. Fitzgerald v. Commonwealth, 227 Va. 171 , 313 S.E.2d 394 (1984).

Where physician produced a forged writing by altering a date on patient's cardiac stress test report, but when he did so there was no possibility that the altered document did or could prejudice insurer's rights, as at that time surgery had already been completed and insurer acknowledged that its liability already existed at that time, physician was not guilty of the crime of forgery. Stevenson v. Commonwealth, 258 Va. 485 , 522 S.E.2d 368 (1999).

B. PROOF OF HANDWRITING.

Writings of accused and of person whose writing is allegedly forged are admissible. - On an indictment for forgery it is not error to admit in evidence other writings of the prisoner shown to be genuine, and of the person whose writing is alleged to have been forged also shown to be genuine, for the purpose of comparing by expert testimony the genuine handwritings with the handwriting of the paper alleged to have been forged. Nor is it error to admit in evidence enlarged photographs of these genuine writings for the purpose of facilitating comparison. Johnson v. Commonwealth, 102 Va. 927 , 46 S.E. 789 (1904).

Genuine specimens of handwriting admissible. - Genuine specimens of handwriting or the signature of the person whose handwriting is involved may be introduced, subject to proper control by the judge, and, without the testimony of experts, such specimens may be subjected to comparison with a disputed paper with the jury. Keister's Ex'rs v. Philips' Ex'x, 124 Va. 585 , 98 S.E. 674 (1919), which involved a prosecution under this section.

As is evidence of similar mistake in spelling by accused. - At the examination of the prisoner by the mayor, the prisoner reluctantly, at the mayor's request but without threat or promise to induce him to do so, wrote the name he was suspected of having forged; in doing so he made the same mistake in spelling the name as appeared on the forged instrument. This fact was properly admitted to the jury. Sprouse v. Commonwealth, 81 Va. 374 (1886).

Expert testimony not required. - Trial court did not abuse its discretion in denying defendant's motion for appointment of a handwriting expert in a case where defendant was accused of forging the checks of defendant's friend and presenting them at the friend's bank in order to obtain funds from the friend's checking account, as defendant did not show a particularized need for such testimony since the crime of forgery did not require direct proof that defendant personally forged or altered the checks. Dickenson v. Commonwealth, No. 1095-02-1, 2003 Va. App. LEXIS 228 (Ct. of Appeals Apr. 15, 2003).

Nonexpert testimony held admissible. - Upon a trial for forgery, to prove that the paper was forged a witness was introduced who said that he knew H., the party whose signature was in question and who was dead, about two years; was his tenant; had seen him write; thought he knew his handwriting tolerably well; but could not swear to a particular signature as his, without knowing the fact; thought he had a sufficient knowledge or recollection of his signature to enable him to give an opinion as to the genuineness of his signature, though he would not swear absolutely about it. The witness then said, "I think it is not his handwriting; but at the same time, I cannot say on oath positively it is not." This is admissible evidence. Chahoon v. Commonwealth, 61 Va. (20 Gratt.) 733 (1871).

Testimony held inadmissible. - A witness who states that he is perfectly familiar with the handwriting of the accused, and states the circumstances which made him so familiar with it, expresses the confident opinion from his knowledge of the accused's handwriting that he was incapable of writing the order. This opinion is incompetent testimony, and properly excluded. Burress v. Commonwealth, 68 Va. (27 Gratt.) 934 (1876), overruled on another point Keister's Ex'rs v. Philips' Ex'x, 124 Va. 585 , 98 S.E. 674 (1919).

C. DOCUMENTARY EVIDENCE.

Bank clerk's book entries competent to prove note was as described in indictment. - Upon a trial for the forgery of an indorsement on a note, the note having been deposited in bank for collection, the original entries in the book of the note clerk of the bank, proved by the clerk to have been made by him from the note, are competent evidence to prove that the note and indorsement thereon were as described in the indictment. Cocke v. Commonwealth, 54 Va. (13 Gratt.) 750 (1855).

Forged paper admissible although when passed it varied from description in indictment. - A forged paper was passed by a prisoner bearing date in 1828; immediately after, with the knowledge of the holder, the prisoner altered the date to 1827. The indictment set forth its tenor, and described it as dated in 1827. The paper is proper evidence to go to the jury in support of the indictment, notwithstanding the proof that it bore the date of 1828, when passed. Huffman v. Commonwealth, 27 Va. (6 Rand.) 685 (1828).

Records as evidence. - C. had forged a note and employed the prisoner, an attorney, to bring suit thereon, which he did and recovered judgment. In the prosecution of the attorney for uttering the forged note the records of the civil suit and the testimony of the clerks of the court are admissible evidence to show the complicity of the prisoner in the uttering of the forged paper. Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

An action at law was brought upon the note alleged to be forged, against the curator of H., and judgment rendered without any defense. A suit in equity was then brought to subject the real estate of H. to the payment of the judgment. There was a decree for sale, and sale, in both of which suits the prisoner was counsel for the estate, and he purchased a part of the property. The record of these cases, with the testimony of the clerks of the respective courts, were admissible evidence, with other evidence, to show the uttering of the forged paper and the complicity of the prisoner in the uttering of it. Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871).

Evidence was clearly sufficient to support defendant's forgery and uttering convictions where defendant conceded at oral argument that the evidence was sufficient to establish the crimes if certain bank affidavits were lawfully admitted and the affidavits in question were prepared solely for a fraud investigation by the bank and, thus, were admissible business records. Wooding v. Commonwealth,, 2010 Va. App. LEXIS 200 (May 18, 2010).

Harmless error. - Admission of affidavits, although in error, was held harmless. Hutt v. Commonwealth,, 2012 Va. App. LEXIS 228 (July 10, 2012).

D. BEST AND SECONDARY EVIDENCE.

Allegedly forged instrument is best evidence. - On a trial for forgery the instrument alleged to be forged is the best evidence of itself and its contents, and therefore its production can never be dispensed with unless unavoidable. Pendleton v. Commonwealth, 31 Va. (4 Leigh) 694 (1834).

Secondary evidence is admissible upon proof that original probably lost. - On the trial of an indictment for forgery of a check on a bank, if there be proof rendering it highly probable that the original paper has been lost or destroyed, though this was not done by the accused or by his procurement, secondary evidence of the contents, character and description of the paper, is admissible to sustain the prosecution. Pendleton v. Commonwealth, 31 Va. (4 Leigh) 694 (1834).

Or that accused will not produce it. - Upon a trial for the forgery of an indorsement on a note, the Commonwealth having proved that the note went into the prisoner's possession, and notice to the prisoner to produce it, may prove the note and the forgery in its absence. Cocke v. Commonwealth, 54 Va. (13 Gratt.) 750 (1855).

Foundation for admission of secondary evidence. - On a trial of indictment for forgery of a letter of credit with intent to defraud W. & W., the Commonwealth proved that a draft, presented by the prisoner to W. & W. at the same time with the letter of credit, had been filed, together with an indictment against the prisoner for forging the same, with the clerk of the court, who, on making search for the draft among the papers in his office, had been unable to find it. Thereupon the Commonwealth offered secondary evidence of the contents of the draft, no notice having been given to the prisoner before the jury was impanelled of any intention to offer such evidence. The foundation so laid for the admission of the secondary evidence is sufficient. Foulkes v. Commonwealth, 41 Va. (2 Rob.) 836 (1843).

Proof of nongenuineness of instrument. - Upon a trial for forgery of a written instrument, the Commonwealth may, without producing as a witness the party by whom the instrument purports to be signed, and without accounting for his absence, prove by the evidence of other witnesses that the instrument is not genuine; such evidence not being in its nature secondary to that of the party whose signature is in question. Foulkes v. Commonwealth, 41 Va. (2 Rob.) 836 (1843).

E. OTHER MATTERS.

Time of forgery of check. - On a charge of forgery by the addition of words to a check, the addition may be shown to have been made at any time after the delivery to the payee thereof. Gordon v. Commonwealth, 100 Va. 825 , 41 S.E. 746 (1902).

Pecuniary condition of person whose note is forged is admissible. - On a trial for the forgery of a note of a person who has since died, the Commonwealth may prove that such person was prompt in the payment of his debts, and that he owned large property - real and personal - and was doing a good business. Sands v. Commonwealth, 61 Va. (20 Gratt.) 800 (1871). See also Chahoon v. Commonwealth, 61 Va. (20 Gratt.) 733 (1871).

Refreshing witness's recollection. - Trial court did not err in allowing the Commonwealth to refresh a victim's recollection because the record established that the victim forgot some portion of the facts of the matter about which she was called to testify since the substance of the victim's testimony was that she could not remember whether she said something to defendant about a forged check; the victim examined the note provided to her by the Commonwealth, indicated it was in her handwriting, testified that the content of the note was "correct," and then relinquished the note before testifying more specifically about its content, and that testimony provided the needed foundation for allowing the victim to present her refreshed recollection regarding her conversation with defendant about the check. Bell v. Commonwealth, No. 0482-10-1,, 2010 Va. App. LEXIS 461 (Ct. of Appeals Nov. 30, 2010).

Evidence that accused had notes in certain county admissible to show forgery committed there. - Evidence that the prisoner had the notes in his possession in a certain county was proper evidence to go before the jury of the fact that he committed the forgery there. Spencer v. Commonwealth, 29 Va. (2 Leigh) 751 (1830).

Reversal where Commonwealth argued other offenses made charged offenses more punishable. - Defendant's convictions of one count of forgery and one count of uttering a check were reversed, where the Commonwealth was erroneously allowed to argue to the jury that other check cashing offenses committed by defendant rendered the charged offenses "more punishable." Tomlin v. Commonwealth, No. 0558-89-3 (Ct. of Appeals Sept. 25, 1990).

Forgery conviction vacated for lack of jurisdiction. - Because defendant's brother was the victim of forgery committed by defendant, the juvenile and domestic relations district court had exclusive, original jurisdiction to determine whether there was probable cause. Therefore, since defendant was never brought before a juvenile and domestic relations district court for the purpose of determining probable cause, or for any purpose, but rather was brought before the general district court which acted in the absence of jurisdiction and thus had no power to certify the case to the circuit court, the forgery conviction is vacated. Pope v. Commonwealth, 19 Va. App. 130, 449 S.E.2d 269 (1994).

Privileges. - Section 19.2-271.2 (ii) did not apply because defendant was indicted for uttering a check with insufficient funds, she was not charged with "forgery or uttering." Lindsey v. Commonwealth, No. 1494-06-2, 2007 Va. App. LEXIS 480 (Dec. 27, 2007).

Evidence of similar transactions. - In a prosecution under this section evidence as to similar transactions closely connected in time with the offense charged was admissible as tending to show a general scheme or guilty knowledge and intent. Sloan v. Commonwealth, 199 Va. 877 , 102 S.E.2d 278 (1958).

The admission of evidence of similar offenses committed by defendant was clearly admissible as tending to show a general scheme or guilty knowledge and fraudulent intent on the part of the defendant. Bullock v. Commonwealth, 205 Va. 558 , 138 S.E.2d 261 (1964).

Evidence showing or tending to show the guilt of an accused of offenses committed at other times is inadmissible when its purpose is to show the character of the accused or his disposition to commit an offense similar to that charged; but evidence of other offenses is admissible when used to show motive, intent, or guilty knowledge, or when it is connected with or leads up to the offense for which the accused is on trial. Harris v. Commonwealth, 211 Va. 742 , 180 S.E.2d 520 (1971).

When guilty knowledge is an essential element of an offense charged, evidence of acts committed by the accused and of his conduct at or about the time of the offense charged which tends to establish his knowledge is admissible, even though such evidence shows or tends to show an offense other than that charged, and this rule has been applied to offenses committed before and after the date of the offense for which the accused is on trial. Harris v. Commonwealth, 211 Va. 742 , 180 S.E.2d 520 (1971).

Evidence showing that both checks were forgeries; that the defendant falsely identified himself when the checks were presented; and that defendant's attempt to cash the second check occurred "shortly" after the first check was cashed, was clearly admissible as tending to show a general scheme or guilty knowledge and fraudulent intent on the part of the defendant. Harris v. Commonwealth, 211 Va. 742 , 180 S.E.2d 520 (1971).

Prior offense evidence was admissible in defendant's forgery and uttering prosecution because the evidence was not confusing or unfairly prejudicial, as (1) nothing showed irrelevant different check amounts confused the jury, (2) the court assessed probative value in light of possible prejudice and took precautions to minimize any improper impact, despite not giving a limiting instruction that was not requested, (3) defendant's admission to pleading guilty to the prior offenses mitigated prejudice, and (4) the jury could render the same decision without the evidence, and did not have to find defendant credible. Hairston v. Commonwealth, No. 0282-17-3, 2018 Va. App. LEXIS 93 (Apr. 10, 2018).

Prior offense evidence was admissible in defendant's forgery and uttering prosecution because from the evidence a jury could find defendant's knowledge of forged checks, intent to defraud, and common plan, as all incidents occurred within 90 minutes in the same area under the same procedure. Hairston v. Commonwealth, No. 0282-17-3, 2018 Va. App. LEXIS 93 (Apr. 10, 2018).

Evidence of aiding and abetting. - Viewing the totality of the circumstances, the trial judge could reasonably conclude that defendant lent her countenance and approval and, therefore, aided and abetted a common plan and scheme to commit forgery, uttering, and petit larceny, using counterfeit traveler's checks. Spruill v. Commonwealth, No. 3054-01-3, 2002 Va. App. LEXIS 705 (Ct. of Appeals Nov. 26, 2002).

Evidence sufficient to sustain conviction. - See United States v. Bullock, 402 F.2d 476 (4th Cir. 1968).

Evidence was sufficient to support defendant's conviction of uttering a forged instrument, despite defendant's claims that she did not know that a check which she claimed to have received at a yard sale and which she completed by adding her name and then cashed was stolen or forged, given the overall circumstances of the case; the finder of fact was not required to accept defendant's bizarre and self-serving claims of innocence. Gates v. Commonwealth, No. 2728-00-2, 2001 Va. App. LEXIS 645 (Ct. of Appeals Nov. 20, 2001).

Evidence was sufficient to sustain forgery convictions where fingerprint expert testified that defendant's latent fingerprints were on the forged documents, a handwriting expert testified that defendant wrote out certain printed information on the documents, and handwriting expert testified that there were indications that defendant wrote the work hours and forged the signature of the signing supervisor; these, along with inconsistent statements by defendant, were sufficient to prove beyond a reasonable doubt that defendant forged the time sheets. Barr v. Commonwealth, No. 1150-01-3, 2002 Va. App. LEXIS 218 (Ct. of Appeals Apr. 9, 2002).

Evidence proved beyond a reasonable doubt that defendant was the criminal agent of the charged offenses of forgery and uttering, in violation of § 18.2-172 , and grand larceny of the proceeds, in violation of § 18.2-95 , where only defendant had access to the victim's checkbook during the time the check was stolen, and defendant cashed the check. Clary v. Commonwealth, No. 3010-00-2, 2002 Va. App. LEXIS 324 (Ct. of Appeals May 28, 2002).

Defendant's convictions on two counts of forging a public document and two counts of uttering a forged public document were upheld on appeal, given sufficient evidence that: (1) defendant caused a police officer to issue two forged summonses to him, by providing false information to the officer as he prepared the documents; and (2) defendant uttered them by knowingly allowing the officer to rely upon them in order to avoid further prosecution. Moreover, signing one's own name with the intent that the writing be received as written by another person, impersonating another in the signature of an instrument, or signing in such a way as to make the writing purport to be that of another, were all considered to be acts of forgery. Rodriquez v. Commonwealth, 50 Va. App. 667, 653 S.E.2d 296, 2007 Va. App. LEXIS 428 (2007).

Because defendant acknowledged that the traveler's checks defendant executed "probably" belonged to someone else, it was immaterial whether defendant knew they were counterfeit or fake; accordingly, the evidence was sufficient to find defendant guilty of grand larceny and uttering a forged traveler's check in violation of §§ 18.2-95 and 18.2-172 . McQuinn v. Commonwealth,, 2009 Va. App. LEXIS 258 (June 9, 2009).

Evidence was sufficient to convict defendant of forgery and uttering because he deliberately falsified a medical clearance for light duty work form in order to obtain light-duty, sedentary, inside work, and he uttered the forged form when he presented it to his supervisor as good and valid. Lee v. Commonwealth,, 2010 Va. App. LEXIS 181 (May 4, 2010).

Evidence was sufficient to support defendant's conviction for attempting to obtain money by false pretenses and uttering a forged check drawn on the account of her employer in violation of §§ 18.2-178 and 18.2-172 because the only reasonable hypothesis flowing from the direct and circumstantial evidence was that defendant shared in an accomplice's intent to utter a forged check and to attempt to obtain money by false pretenses; defendant, who worked across the hall from the victim and had access to her office, admitted to the victim that she had possessed the check at issue, defendant accompanied the accomplice to a check cashing business and admitted knowing that the accomplice was there to cash a check, and defendant, the only one of the three people at the business that day who had a direct tie to the employer, remained in the car during the transaction, fabricated a reason to enter the business after police arrived and entered, and attempted to flee the scene alone after learning that the accomplice had been handcuffed. Bell v. Commonwealth, No. 0482-10-1,, 2010 Va. App. LEXIS 461 (Ct. of Appeals Nov. 30, 2010).

From the evidence, the trial court was entitled to find that defendant knew a check had been materially altered (and thus forged), that defendant nevertheless presented the check as good, and that defendant succeeded in cashing the check; thus, the evidence presented was sufficient to prove beyond a reasonable doubt that defendant was guilty of uttering and obtaining money by false pretenses. Walker v. Commonwealth,, 2014 Va. App. LEXIS 118 (Apr. 1, 2014).

Evidence was sufficient to support defendant's forgery conviction, given that the fact finder could have found that defendant was not authorized to have the check, he did not acquire it legitimately and he forged it, as the company check defendant possessed was pre-stamped with the owner's signature but otherwise blank, defendant solicited help to cash it, and the owner never authorized the check to be made out to a certain person. Moore v. Commonwealth,, 2014 Va. App. LEXIS 301 (Sept. 9, 2014).

Evidence supported the conclusion that defendant uttered a check he knew to be forged; there was sufficient evidence of forgery, and that another person rather than defendant cashed the check was no defense, because the crime was completed when defendant represented the check as valid for the purpose of obtaining the object mentioned in the writing. Moore v. Commonwealth,, 2014 Va. App. LEXIS 301 (Sept. 9, 2014).

Evidence was sufficient to sustain the forgery conviction where the loan documents were admitted into evidence, the jury had the opportunity to compare the handwriting of appellant's signature with the handwriting of the signatures at issue, and the jury apparently believed testimony that appellant did not have permission to sign the documents on the victim's behalf. Whitaker v. Commonwealth, No. 1686-18-1, 2019 Va. App. LEXIS 289 (Dec. 10, 2019).

Evidence insufficient to sustain conviction. - Where a former airline employee obtained flight vouchers without first paying for reserved airline tickets by exploiting a loophole in the airline's reservation system, the evidence was insufficient to sustain four uttering convictions because there was no evidence that the vouchers were forgeries. Brown v. Commonwealth, 56 Va. App. 178, 692 S.E.2d 271, 2010 Va. App. LEXIS 177 (2010).

CIRCUIT COURT OPINIONS

Legal authority of allegedly forged instrument. - Although defendant stole a check and filled it in, because defendant signed defendant's name on the signature line, the check did not constitute a forgery as it was not signed by the maker; therefore, the check could not be the subject of prosecution for forgery or uttering. Commonwealth v. Green, 70 Va. Cir. 452, 2004 Va. Cir. LEXIS 371 (Greensville County 2004).

§ 18.2-172.1. Falsifying or altering and fraudulently using transcripts or diplomas; penalty.

Any person who materially falsifies or alters a transcript or diploma from an institution of higher education and fraudulently uses the same for pecuniary gain or in furtherance of such person's education shall be guilty of a Class 3 misdemeanor.

(1983, c. 91.)

Editor's note. - At the direction of the Virginia Code Commission, "higher education" was substituted for "postsecondary education" in the text to conform to Acts 2016, c. 588.

§ 18.2-172.2. Maliciously affixing another's signature to writing; penalty.

Any person who maliciously affixes a facsimile or likeness of the signature of another person to any writing without the permission of that person and with the intent to create the false impression that the writing was signed by that person is guilty of a Class 1 misdemeanor.

(2008, c. 595.)

§ 18.2-173. Having in possession forged coin or bank notes.

If any person have in his possession forged bank notes or forged or base coin, such as are mentioned in § 18.2-170 , knowing the same to be forged or base, with the intent to utter or employ the same as true, or to sell, exchange, or deliver them, so as to enable any other person to utter or employ them as true, he shall, if the number of such notes or coins in his possession at the same time, be ten or more, be guilty of a Class 6 felony; and if the number be less than ten, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-97; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counterfeiting, §§ 2, 5.

CASE NOTES

Felonious possession of forged coin is a distinct offense. - The forging of a coin, and the felonious having in possession of such forged coin, are distinct and substantive offenses. Scott v. Commonwealth, 55 Va. (14 Gratt.) 687 (1858).

And a prisoner examined for forgery cannot be indicted under this section. - A prisoner is examined for forging and counterfeiting 24 pieces of silver coin, and is sent on to the circuit court for further trial. He cannot be indicted for feloniously having in his possession 10 or more pieces of coin, with intent to alter and employ the same as true. Scott v. Commonwealth, 55 Va. (14 Gratt.) 687 (1858).

Indictment for the felony must allege possession "at the same time." - An indictment under the statute, for feloniously having in his possession more than 10 pieces of forged or base coin, must allege that the prisoner had them in his possession at the same time; and the charge that on a certain day he had them in his possession is not sufficient. Scott v. Commonwealth, 55 Va. (14 Gratt.) 687 (1858).

Intent to utter. - Evidence that defendant possessed forged notes in a pool hall, where cash transactions are common, allowed the fact finder to draw the common sense conclusion that he possessed the counterfeit currency with the intent to utter it, rather than for some other purpose. Hawkins v. Commonwealth, No. 2098-12-1, 2013 Va. App. LEXIS 299 (Oct. 22, 2013).

Circumstances were sufficient to support an inference that defendant had the requisite intent to utter the counterfeit money in his possession, given that he was shown to possess counterfeit currency having a facial value of $ 360, he had taken the money to a pool hall, where cash transactions could be anticipated, and if he had any genuine currency with him, it was obviously segregated from the counterfeit bills he threw to the floor. Hawkins v. Commonwealth, 288 Va. 482 , 764 S.E.2d 81, 2014 Va. LEXIS 148 (2014).

Defendant claimed that if he brought counterfeit bills to the pool hall to pay gambling debts or buy drugs, he would have lacked the intent to employ them as true, but this was not a reasonable hypothesis of innocence that the evidence failed to exclude; when counterfeit currency was put into circulation, even if for an illegal purpose, someone would be defrauded by its use. Hawkins v. Commonwealth, 288 Va. 482 , 764 S.E.2d 81, 2014 Va. LEXIS 148 (2014).

Knowledge. - Circuit court could have drawn the inference that defendant knew the bills were counterfeit, given that he threw the bills on the floor and denied they were his. Hawkins v. Commonwealth, 288 Va. 482 , 764 S.E.2d 81, 2014 Va. LEXIS 148 (2014).

Sufficient circumstantial evidence supported conviction. - Sufficient circumstantial evidence that defendant knew that the currency was counterfeit supported defendant's § 18.2-173 conviction where: (1) defendant did not disclaim knowledge that the bills were counterfeit; (2) he admitted that he obtained the counterfeit currency from a friend; (3) he told a deputy that the $20 bills were the only counterfeit money he had; (4) he attempted to conceal his identity by giving the deputy false identification, which was evidence of guilty knowledge; and (5) the fraudulent nature of the bills was apparent to the deputy, who had no training in detecting counterfeit currency. Siharath v. Commonwealth, No. 1351-12-2, 2013 Va. App. LEXIS 122 (Ct. of Appeals Apr. 16, 2013).

Sufficient circumstantial evidence that defendant intended to utter or employ the counterfeit currency as true supported defendant's § 18.2-173 conviction where: (1) he segregated his counterfeit currency from his genuine currency, the purpose of which was to enable the possessor to readily distinguish it from the genuine currency; (2) defendant had been unemployed for two years with no readily identifiable source of income; (3) he was traveling to a location commonly known for gambling and recreational activities; and (4) it could reasonably be concluded that defendant was carrying the $200 in counterfeit currency to supplement his $130 in genuine currency to pay his trip expenses. Siharath v. Commonwealth, No. 1351-12-2, 2013 Va. App. LEXIS 122 (Ct. of Appeals Apr. 16, 2013).

Sufficiency of evidence. - Evidence was sufficient to convict defendant of possessing 10 or more forged bank notes while knowing they were forged, as it established that when he saw police officers, he pulled 18 counterfeit $20 bills from his pocket and threw them on the floor; this evidence proved he possessed the notes and allowed the fact finder to infer that he knew they were forged. Hawkins v. Commonwealth, No. 2098-12-1, 2013 Va. App. LEXIS 299 (Oct. 22, 2013).

Sergeant testified he watched while defendant removed his right hand from his pocket, that his hand held the money in question, and that he threw the money to the floor, and the trial court found the sergeant to be credible, and this alone was sufficient to support a finding that defendant possessed the bills, for purposes of his possession of counterfeit currency conviction. Hawkins v. Commonwealth, 288 Va. 482 , 764 S.E.2d 81, 2014 Va. LEXIS 148 (2014).

Article 2. Impersonation.

§ 18.2-174. Impersonating law-enforcement officer; penalty.

Any person who falsely assumes or exercises the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or any local, city, county, state, or federal law-enforcement officer, or who falsely assumes or pretends to be any such officer, is guilty of a Class 1 misdemeanor. A second or subsequent offense is punishable as a Class 6 felony.

(Code 1950, § 18.1-311; 1960, c. 358; 1975, cc. 14, 15; 2013, cc. 410, 431, 638.)

Editor's note. - Acts 2013, c. 431, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, c. 431, cl. 4 provides: "That the General Assembly determines that the requirements of the third enactment of this act have been met."

The 2013 amendments. - The 2013 amendments by cc. 410 and 638 are identical, and rewrote the section which read: "Any person who shall falsely assume or exercise the functions, powers, duties and privileges incident to the office of sheriff, police officer, marshal, or other peace officer, or who shall falsely assume or pretend to be any such officer, shall be deemed guilty of a Class 1 misdemeanor."

The 2013 amendment by c. 431 rewrote the section. The section has been set out in the form above at the direction of the Virginia Code Commission.

Law review. - For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974).

CASE NOTES

Constitutionality. - This section was not facially unconstitutional under the First Amendment because: (1) the Virginia impersonation statute had a plainly legitimate sweep where by protecting unsuspecting citizens from those who falsely pretend to be law-enforcement officers, the statute served the Commonwealth's critical interest in public safety, and the second clause prohibited dangerous conduct, such as pretending to be a law-enforcement officer in order to board an airplane, that might not fall under the first clause; and (2) defendant was right at the core of the Virginia impersonation statute's plainly legitimate sweep since there was no question that defendant tried to dodge a traffic ticket by falsely assuming or pretending to be a law-enforcement officer. United States v. Chappell, 691 F.3d 388, 2012 U.S. App. LEXIS 16990 (4th Cir. 2012), cert. denied, 133 S. Ct. 965, 2013 U.S. LEXIS 657, 184 L. Ed. 2d 748 (U.S. 2013).

Under the overbreadth analysis, a law that restricts speech may be invalidated only if its realistic unconstitutional applications are substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Neither condition is satisfied with respect to § 18.2-174 since the statute's legitimate sweep was considerable. United States v. Chappell, 691 F.3d 388, 2012 U.S. App. LEXIS 16990 (4th Cir. 2012), cert. denied, 133 S. Ct. 965, 2013 U.S. LEXIS 657, 184 L. Ed. 2d 748 (U.S. 2013).

Fugitive recovery agent exceeded authority. - Evidence was sufficient to convict a fugitive recovery agent in connection with his stop of a vehicle in which he thought a fugitive might be riding, as he exceeded the scope of the authority granted him under § 19.2-149 by: (1) wearing a misleading badge representing that he was part of a "special investigations unit" of a law-enforcement body; (2) stating that he was with a "violent crimes unit"; and (3) interrogating the woman he stopped about her possible drunk driving after he realized that the fugitive was not in the car. English v. Commonwealth, 43 Va. App. 370, 598 S.E.2d 322, 2004 Va. App. LEXIS 294 (2004).

In this 42 U.S.C.S. § 1983 action, defendant was denied summary judgment as to the Fourth Amendment claim because no prudent person in defendant's position could conclude, even on the basis of a reasonable mistake in interpreting or applying the law, that probable cause existed to arrest plaintiff for violating § 18.2-174 under the specific constellation of facts in this record. Merchant v. Fairfax County,, 2011 U.S. Dist. LEXIS 39862 (E.D. Va. 2011), aff'd, 677 F.3d 656, 2012 U.S. App. LEXIS 8469 (4th Cir. Va. 2012).

Probable cause. - Where an arrestee was arrested for impersonating a police officer under § 18.2-174 based on a conversation with an officer, the officer was properly denied summary judgment based on qualified immunity as to an unlawful seizure claim because there was a lack of probable cause since the arrestee accurately related to the officer that the arrestee was a deputy director of the county department of corrections and that the arrestee worked in public safety, the arrestee referred to the arrestee's county-issued vehicle as a "police car" by using air quotes, and the arrestee carried a lawfully-issued badge. Merchant v. Bauer, 677 F.3d 656, 2012 U.S. App. LEXIS 8469 (4th Cir. 2012), cert. denied, 133 S. Ct. 789, 184 L. Ed. 2d 582, 2012 U.S. LEXIS 9564 (U.S. 2012).

OPINIONS OF THE ATTORNEY GENERAL

Private militias. - A group of private militia members coming as a unit, heavily armed with assault-style weapons, dressed in fatigues and other military accessories, and acting in a coordinated fashion - patrolling a line of citizens waiting to engage with legislators and projecting authority to manage the crowd - can constitute a violation of impersonating law-enforcement officers. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 19-039, 2019 Va. AG LEXIS 17 (8/16/19).

Voter intimidation. - Where activity near polling places makes voters fear for their safety while waiting to cast their vote, or leads them to believe that they would be harmed for supporting a particular candidate, such activity may be considered harassment of a voter under state and federal law. See opinion of Attorney General to The Honorable Marcus B. Simon, Member, Virginia House of Delegates, 20-046, 2020 Va. AG LEXIS 31 (9/24/20).

§ 18.2-174.1. Impersonating certain public safety personnel; penalty.

Any person who willfully impersonates, with the intent to make another believe he is, an emergency medical services provider, firefighter, special forest warden designated pursuant to § 10.1-1135 , fire marshal, or fire chief is guilty of a Class 1 misdemeanor. A second or subsequent offense is punishable as a Class 6 felony.

(1993, c. 403; 2000, c. 962; 2002, c. 536; 2013, c. 431; 2015, cc. 502, 503.)

Editor's note. - Acts 2013, c. 431, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, c. 431, cl. 4 provides: "That the General Assembly determines that the requirements of the third enactment of this act have been met."

The 2000 amendments. - The 2000 amendment by c. 962 inserted "including any special forest warden designated pursuant to § 10.1-1135 ."

The 2002 amendments. - The 2002 amendment by c. 536 substituted "impersonates, with the intent to make another believe he is, a" for "impersonates any," "is guilty" for "shall be guilty," and "Class 1 misdemeanor" for "Class 3 misdemeanor."

The 2013 amendments. - The 2013 amendment by c. 431 deleted "including any" following "firefighter," and added the last sentence.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "an emergency medical services provider" for "a certified emergency medical services personnel."

§ 18.2-175. Unlawful wearing of officer's uniform or insignia; unlawful use of vehicle with word "police" shown thereon.

No person, not such an officer as is referred to in § 19.2-78 , shall wear any such uniform as is designated pursuant to the provisions of such section or wear an insignia or markings containing the Seal of the Commonwealth or the insignia of any such officer's uniform, nor shall any person not such an officer, or not authorized by such officer, or not authorized by the military police of the armed forces or of the National Guard, or not authorized by the military police of other governmental agencies, use or cause to be used on the public roads or highways of this Commonwealth, any motor vehicle bearing markings with the word "police" shown thereon. However, the prohibition against wearing an insignia or markings containing the Seal of the Commonwealth shall not apply to any certified firefighter or to any certified or licensed emergency medical personnel. Any violation of this section shall be a Class 1 misdemeanor.

(Code 1950, § 18.1-312; 1960, c. 358; 1966, c. 420; 1968, c. 675; 1975, cc. 14, 15; 1979, c. 704; 1991, c. 424.)

Cross references. - For provision prohibiting wearing of State Police officer's uniform by other person, see § 52-9.2 .

Law review. - For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

§ 18.2-176. Unauthorized wearing or displaying on motor vehicles of any button, insignia or emblem of certain associations or societies or of Southern Cross of Honor.

  1. No person shall wear the button or insignia of any order of police, trade union or veterans' organization or display upon a motor vehicle the insignia or emblem of any automobile club, medical society, order of police, trade union or veterans' organization or use such button, insignia or emblem to obtain aid or assistance unless entitled to wear, display or use the same under the constitution, bylaws, rules or regulations of the organization concerned.
  2. No person shall wear any Southern Cross of Honor when not entitled to do so by the regulations under which such Crosses of Honor are given.
  3. A violation of this section shall be a Class 3 misdemeanor.

    (Code 1950, § 18.1-410; 1960, c. 358; 1964, c. 124; 1975, cc. 14, 15.)

§ 18.2-177. Illegal use of insignia.

Any person who shall willfully wear, exhibit, display, print, or use, for any purpose, the badge, motto, button, decoration, charm, emblem, rosette, or other insignia of any such association or organization mentioned in § 2.2-411 , duly registered under Article 2 (§ 2.2-411 et seq.) of Chapter 4, Title 2.2, unless he shall be entitled to use and wear the same under the constitution and bylaws, rules and regulations of such association or organization, shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 2.1-80; 1966, c. 677; 1975, cc. 14, 15.)

§ 18.2-177.1. False representation of military status; penalty.

  1. It is unlawful for any person, with the intent to obtain any services, to falsely represent himself to be a member or veteran of the United States Armed Forces, Armed Forces Reserves, or National Guard by wearing the uniform or any medal or insignia authorized for use by the members or veterans of the United States Armed Forces, Armed Forces Reserves, or National Guard by federal or state law or regulation and obtain any services through such false representation.
  2. It is unlawful for any person, with the intent to obtain any services, to falsely represent himself as a recipient of any decoration or medal created by federal or state law or regulation to honor the members or veterans of the United States Armed Forces, Armed Forces Reserves, or National Guard and obtain any services through such false representation.
  3. A violation of this section is a Class 1 misdemeanor.
  4. The provisions of this section shall not preclude prosecution under any other statute.

    (2016, c. 236.)

Article 3. False Pretenses.

§ 18.2-178. Obtaining money or signature, etc., by false pretense.

  1. If any person obtain, by any false pretense or token, from any person, with intent to defraud, money, a gift certificate or other property that may be the subject of larceny, he shall be deemed guilty of larceny thereof; or if he obtain, by any false pretense or token, with such intent, the signature of any person to a writing, the false making whereof would be forgery, he shall be guilty of a Class 4 felony.
  2. Venue for the trial of any person charged with an offense under this section may be in the county or city in which (i) any act was performed in furtherance of the offense, or (ii) the person charged with the offense resided at the time of the offense.

    (Code 1950, § 18.1-118; 1960, c. 358; 1975, cc. 14, 15; 2001, c. 131; 2006, c. 321.)

Cross references. - As to right of accused in prosecution for larceny to demand statement in writing of what statute attorney for Commonwealth intends to rely on, see § 18.2-111 .

As to computer time, services, etc., as property subject to larceny, see § 18.2-152.1 et seq.

As to obtaining a signature by false pretense, see also § 18.2-172 .

Editor's note. - Acts 2001, c. 131, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

The 2001 amendments. - The 2001 amendment by c. 131 inserted "a gift certificate," and substituted "that" for "which."

The 2006 amendments. - The 2006 amendment by c. 321 inserted the subsection A designation and added subsection B.

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

For a note, "Pleading for Theft Consolidation in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-284 ," see 55 Wash. & Lee L. Rev. 249 (1998).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, §§ 1-3 ; 12A M.J. Larceny, §§ 2, 4, 19.

CASE NOTES

I. GENERAL CONSIDERATIONS.

In general. - Under Virginia law, embezzlement, false pretenses, and larceny are three separate offenses and there is not a general "theft" statute, as there is in most states, that encompasses both types of behavior, and § 18.2-95 defines grand larceny; § 18.2-111 defines embezzlement; and § 18.2-178 defines false pretenses. The Commonwealth of Virginia has always purported to treat the three basic theft crimes of larceny, embezzlement, and false pretenses as separate and distinct offenses, and maintains separate statutes for each crime. United States v. Good, 326 F.3d 589, 2003 U.S. App. LEXIS 7543 (4th Cir. Apr. 22, 2003).

Obtaining by false pretense may be shown under indictment for larceny. - It is the settled law of Virginia that upon an indictment simply charging larceny the state may show that the subject of the larceny was obtained by a false token or pretense. Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727 (1852); Leftwich v. Commonwealth, 61 Va. (20 Gratt.) 716 (1870); Anable v. Commonwealth, 65 Va. (24 Gratt.) 563 (1873); Fay v. Commonwealth, 69 Va. (28 Gratt.) 912 (1877); Trogdon v. Commonwealth, 72 Va. (31 Gratt.) 862 (1878); Lewis v. Commonwealth, 120 Va. 875 , 91 S.E. 174 (1917). See also Hoback v. Commonwealth, 69 Va. (28 Gratt.) 922 (1877); Anthony v. Commonwealth, 88 Va. 847 , 14 S.E. 834 (1892); Pitsnogle v. Commonwealth, 91 Va. 808 , 22 S.E. 351 (1895); Mangus v. McClelland, 93 Va. 786 , 22 S.E. 364 (1895).

Proof that the accused obtained money by false pretenses will sustain an indictment for larceny. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964); Bourgeois v. Commonwealth, 217 Va. 268 , 227 S.E.2d 714 (1976).

Every element of offense must be proved. - Although this section makes false pretenses equivalent to larceny, yet one cannot be found guilty under a simple count charging him with larceny any more than under one charging specifically the offense of obtaining money, etc., by false pretenses, if there is wanting in the proof any of those elements which constitute that offense. Anable v. Commonwealth, 65 Va. (24 Gratt.) 563 (1873). See also Fay v. Commonwealth, 69 Va. (28 Gratt.) 912 (1877); Trogdon v. Commonwealth, 72 Va. (31 Gratt.) 862 (1878).

Where the Commonwealth failed to prove larceny by false pretenses the conviction cannot be upheld on grounds that the evidence at trial was sufficient to sustain a conviction of the common-law crime of larceny by trick and that the jury instruction set forth all the elements of this crime. An accused is entitled to be clearly informed of the charge against him. The Commonwealth cannot retrospectively argue that defendant should be convicted of a crime for which he was not prosecuted, and on which the jury was not instructed. Baker v. Commonwealth, 225 Va. 192 , 300 S.E.2d 788 (1983).

Because salesperson knew that suit was stolen when defendant returned it for cash, evidence failed to prove that any store employee was induced by false pretenses to pay money. Gaines v. Commonwealth, No. 1354-98-4 (Ct. of Appeals July 6, 1999).

Elements of offense. - To constitute the statutory offense of obtaining money under false pretenses four things must occur: (1) There must be an intent to defraud. (2) There must be an actual fraud committed. (3) False pretenses must be used for the purpose of perpetrating the fraud. (4) The fraud must be accomplished by means of false pretenses made use of for the purpose; that is, they must be in some degree the cause, if not the controlling and decisive cause, which induced the owner to part with his property. Anable v. Commonwealth, 65 Va. (24 Gratt.) 563 (1873); Hubbard v. Commonwealth, 201 Va. 61 , 109 S.E.2d 100 (1959); Bourgeois v. Commonwealth, 217 Va. 268 , 227 S.E.2d 714 (1976); Riegert v. Commonwealth, 218 Va. 511 , 237 S.E.2d 803 (1977); Sult v. Commonwealth, 221 Va. 915 , 275 S.E.2d 608 (1981); Quidley v. Commonwealth, 221 Va. 963 , 275 S.E.2d 622 (1981); Millard v. Commonwealth, 34 Va. App. 202, 539 S.E.2d 84, 2000 Va. App. LEXIS 850 (2000).

Under the provisions of this section, for one to be guilty of the crime of larceny by false pretense, he must make a false representation of an existing fact with knowledge of its falsity and, on that basis, obtain from another person money or other property which may be the subject of larceny, with the intent to defraud. Lund v. Commonwealth, 217 Va. 688 , 232 S.E.2d 745 (1977).

Merely showing that the accused knowingly stated what was false is not sufficient; there must also be proof that his intent was to defraud. Riegert v. Commonwealth, 218 Va. 511 , 237 S.E.2d 803 (1977).

An essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant (or his nominee). The gravamen of the offense is the obtainment of ownership of property. Baker v. Commonwealth, 225 Va. 192 , 300 S.E.2d 788 (1983); Davies v. Commonwealth, 15 Va. App. 350, 423 S.E.2d 839 (1992).

The victim need only rely to some degree on the false pretense in order for the Commonwealth to satisfy the fourth prong of this test. Bestwick v. Commonwealth, No. 0954-98-4, 2000 Va. App. LEXIS 222 (Ct. of Appeals Mar. 28, 2000).

Grand larceny by false pretenses conviction was reversed, and the case was dismissed, where the state failed to present evidence that defendant acquired any type of ownership interest in the vehicle he allegedly stole, such as a promissory note, sales contract, or other document that would have evidenced some type of ownership transfer. Shropshire v. Commonwealth, 40 Va. App. 34, 577 S.E.2d 521, 2003 Va. App. LEXIS 122 (2003).

Motion by a volunteer fire department and its president was denied because the treasurer, who could only be terminated for good cause, had an established property interest in his continued employment, sufficiently alleged an ultra vires action, sufficiently alleged that the president made a defamatory statement even if the statement was initially subject to a qualified privilege, and the complaint supported a request for punitive damages. Charles v. Front Royal Volunteer Fire & Rescue Dep't, Inc.,, 2014 U.S. Dist. LEXIS 65366 (W.D. Va. May 13, 2014).

Commonwealth of Virginia failed to prove that defendant took property belonging to another because defendant acted on behalf of a company which defendant owned that owned and operated a cemetery when defendant requested that funds be disbursed from the company's preneed trust account and be deposited into the company's operating account. Thus, the legal ownership of the funds remained unchanged as the company was the legal owner of the funds. Crouch v. Commonwealth,, 2014 Va. App. LEXIS 209 (May 27, 2014).

Gravamen is that pretenses are false. - The gravamen of the offense is that the pretenses are false, and if the prisoner can show that the representations upon which he obtained the property from the owner are true, he cannot be convicted. Anable v. Commonwealth, 65 Va. (24 Gratt.) 563 (1873).

The gravamen of the offense is the obtainment of ownership of property, by false representations or pretenses. Quidley v. Commonwealth, 221 Va. 963 , 275 S.E.2d 622 (1981).

The false pretense must be a representation as to an existing fact or a past event. Bourgeois v. Commonwealth, 217 Va. 268 , 227 S.E.2d 714 (1976); Riegert v. Commonwealth, 218 Va. 511 , 237 S.E.2d 803 (1977); Watson v. Commonwealth, 4 Va. App. 450, 358 S.E.2d 735 (1987).

Intent must have existed when false pretenses were made. - Unless the selling of property was by false pretense, with intent to defraud the buyer, the case is not within this section. Therefore the fraudulent intent must have existed at the time the false pretenses by which the money was obtained were made. Fay v. Commonwealth, 69 Va. (28 Gratt.) 912 (1877).

The fraudulent intent must have existed at the time the false pretenses were made, by which the property was obtained. Riegert v. Commonwealth, 218 Va. 511 , 237 S.E.2d 803 (1977); Orr v. Commonwealth, 229 Va. 298 , 329 S.E.2d 30 (1985).

Merely showing that the accused knowingly stated what was false is not sufficient; there must also be proof that his intent was to defraud. Orr v. Commonwealth, 229 Va. 298 , 329 S.E.2d 30 (1985).

For more than a century, the law has required proof that the intent and the representation occur simultaneously; in a prosecution for larceny by false pretenses, the Commonwealth must prove the fraudulent intent existed at the time the false pretenses were made by which the property was obtained. A court's refusal of a proffered jury instruction to this effect was grounds for reversal. Lewis v. Commonwealth, 28 Va. App. 164, 503 S.E.2d 222 (1998).

Conduct of accused must be examined. - In order to determine whether the intent to defraud existed at the time the act was committed, the conduct and representations of the accused must be examined, since intent is a secret operation of the mind. Riegert v. Commonwealth, 218 Va. 511 , 237 S.E.2d 803 (1977); Orr v. Commonwealth, 229 Va. 298 , 329 S.E.2d 30 (1985).

Single larceny doctrine. - There is no manifest intent by the legislature in this section to abrogate the common-law doctrine of single larceny whereby a series of larcenous acts will be considered a single count of larceny if they are done pursuant to a single impulse and in execution of a general fraudulent scheme. The following factors must be considered when deciding whether the single larceny doctrine applies: (1) the location of the items taken; (2) the lapse of time between the takings; (3) the general and specific intent of the taker; (4) the number of owners of the items taken; and (5) whether intervening events occurred between the takings; the primary factor to be considered is the intent of the thief. Millard v. Commonwealth, 34 Va. App. 202, 539 S.E.2d 84, 2000 Va. App. LEXIS 850 (2000).

A defendant could only be properly convicted on one count of obtaining money by false pretenses where the evidence proved that the defendant had presented three checks to a bank teller in one transaction and that during that same transaction, the teller gave the defendant cash equaling the total of the face amount of the three checks. Millard v. Commonwealth, 34 Va. App. 202, 539 S.E.2d 84, 2000 Va. App. LEXIS 850 (2000).

Pretenses must have had decisive influence. - The false pretenses, either with or without other causes, must have had a decisive influence upon the mind of the owner, so that without their weight he would not have parted with his property. Fay v. Commonwealth, 69 Va. (28 Gratt.) 912 (1877).

The jury must believe from the evidence, beyond all reasonable doubt, that the alleged false pretenses were believed by the owner, that but for them he would not have parted with his goods, that is, that they had the prevailing and controlling influence in making the owner part with his property. Trogdon v. Commonwealth, 72 Va. (31 Gratt.) 862 (1878).

The victim of the fraudulent scheme need not be the person to whom the false pretense or misrepresentation is made. Mosteller v. Commonwealth, 222 Va. 143 , 279 S.E.2d 380 (1981).

Sufficient if victim eventually may suffer loss. - The crime is complete under this section when the fraud intended is consummated by obtaining the property sought by means of the false representations, and the offense is not purged by ultimate restoration or payment to the victim; thus, it is sufficient if the fraud of the accused has put the victim in such a position that he may eventually suffer loss. Quidley v. Commonwealth, 221 Va. 963 , 275 S.E.2d 622 (1981).

Ultimate victim not the intended victim no defense. - Where evidence established that defendant intentionally committed an actual fraud by use of false pretenses and obtained money thereby, the fact that the ultimate victim was not the one against whom the false pretenses were used was no defense. Grites v. Commonwealth, 9 Va. App. 51, 384 S.E.2d 328 (1989).

And ultimate financial gain or loss immaterial. - There is no requirement under this section that the intended victim suffer actual pecuniary loss; thus, the ultimate financial gain or loss to the victim is immaterial. Quidley v. Commonwealth, 221 Va. 963 , 275 S.E.2d 622 (1981).

Where defendant obtained ownership of goods from a company through use of fraudulent documents, the crime charged was complete at that instant since there was no guarantee that the bogus papers would pass unchallenged through normal business channels resulting in ultimate payment by the city from its Public Assistance Fund; thus, the company was placed by defendant's fraud in a position that it might suffer loss through refusal of the city to honor the company's request for payment of the goods it had delivered to defendant, and the fact that ultimately the company suffered no loss was irrelevant. Quidley v. Commonwealth, 221 Va. 963 , 275 S.E.2d 622 (1981).

When a defendant obtained money from a bank through use of a fraudulent withdrawal slip which purported to permit her to withdraw money from her grandfather's account, the crime charged was complete at that instant and the bank's later discovery of the forgery and its decision not to debit the grandfather's account did not establish a fatal variance between the terms of the indictment, which charged the defendant obtained her grandfather's money, and the evidence, which she argued proved she obtained a bank's money. Gardner v. Commonwealth, 32 Va. App. 595, 529 S.E.2d 820, 2000 Va. App. LEXIS 461 (2000).

Change in ownership and possession. - False pretenses involves a change in ownership as well as possession. Bray v. Commonwealth, 9 Va. App. 417, 388 S.E.2d 837 (1990).

An essential element of larceny by false pretenses is that both title to and possession of property must pass from the victim to the defendant (or his or her nominee); this element was not established where the defendant had both title to and possession of a vehicle prior to fraudulently obtaining a certificate of title that did not show the existence of the victim's lien on the vehicle. Bolden v. Commonwealth, 28 Va. App. 488, 507 S.E.2d 84 (1998).

Title to property must be obtained. - An essential element of larcency by false pretenses is that both title to and possession of property must pass from the victim to the defendant or his or her nominee; the gravamen of the offense is the obtainment of ownership of property. Lewis v. Commonwealth, 28 Va. App. 164, 503 S.E.2d 222 (1998).

Purchase of vehicle under conditional sales contract. - When a defendant, by false pretenses, obtains possession of a vehicle and a temporary certificate of ownership under a conditional sales contract pursuant to which the seller retains legal title as security and has the right to repossess the vehicle, the property interest conveyed by the delivery of possession and the completion of the temporary certificate of ownership is sufficient to support a conviction for larceny by false pretenses. Lewis v. Commonwealth, 28 Va. App. 164, 503 S.E.2d 222 (1998).

Worthless check for advance payment of first month's rent. - A person cannot be convicted of larceny by false pretenses for giving a worthless check for the advance payment of the first month's rent on residential real estate and, in return, receiving the key to the premises. Bray v. Commonwealth, 9 Va. App. 417, 388 S.E.2d 837 (1990).

Offense separate from uttering forged note. - Obtaining money by false pretense, which amounts to larceny under this section, is a separate and distinct offense from uttering a forged note for that amount. Bullock v. Commonwealth, 205 Va. 867 , 140 S.E.2d 821 (1965).

One may be found guilty of forgery and of uttering a forged check, and of the larceny of the proceeds of the check. Bateman v. Commonwealth, 205 Va. 595 , 139 S.E.2d 102 (1964).

Amendment of indictment did not change character of offense. - Circuit court did not err by allowing the Commonwealth to amend an indictment that charged defendant with the forgery of a public record to an indictment charging him with obtaining property by false pretenses because the amendment did not change the nature and character of the offense charged; the charges under both the original and amended indictment were based on the same conduct, defendant's misrepresentation on a building permit application. Cummings v. Commonwealth, No. 1891-14-1, 2015 Va. App. LEXIS 325 (Nov. 10, 2015).

Trial court did not err when it granted the Commonwealth's motion to amend four indictments from obtaining signatures by false pretenses to obtaining money by false pretenses because those amendments did not actually change the nature or character of the offenses. Under either theory of prosecution, the overt acts alleged were defendant's repeated false representations to her employer regarding her patient shopping activities. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Forgery and false pretenses. - Forgery and false pretences share a similarity of purpose and subject matter; although the elements of an obtaining property by false pretenses offense may be established with proof of a wide variety of misrepresentations and forgery offenses require the accused to create a false document and thereby misrepresent its genuineness, both offenses are premised on fraudulent representations made by the accused. Cummings v. Commonwealth, No. 1891-14-1, 2015 Va. App. LEXIS 325 (Nov. 10, 2015).

Penalty is the same as for larceny. - Obtaining money by false pretenses is made larceny by this section, and the penalty for the offense is the same as in other cases of larceny. Dull v. Commonwealth, 66 Va. (25 Gratt.) 965 (1875).

Obtaining check as larceny of money. - Where an indictment alleged the larceny of money by false pretenses, and the proof showed the larceny of a check afterwards cashed by the accused, in every real sense money was paid to the accused, and, therefore, the charge in the indictment was substantially proven. Lewis v. Commonwealth, 120 Va. 875 , 91 S.E. 174 (1917).

Obtaining check from bank by false representation to another. - Where defendant obtained a check from issuer under false pretenses, Commonwealth could charge defendant with obtaining money from bank under false pretenses despite the fact bank was not the one to whom the misrepresentation was made. Grites v. Commonwealth, 9 Va. App. 51, 384 S.E.2d 328 (1989).

False statements made in claiming witness' fees. - In a prosecution for petit larceny under this section, the Commonwealth contended that the accused had claimed and received a total mileage and attendance allowance, as a witness in a certain case, for a much longer trip than he had in fact made. It was held that the gravamen of the offense was that the representations made by the accused as to the distance he was compelled to travel were false and untrue. The evidence was held insufficient to warrant a conviction. Hagy v. Commonwealth, 168 Va. 663 , 190 S.E. 144 (1937).

Improperly inflating vendors' bids. - The enactment of §§ 59.1-68.6 et seq. and § 18.2-498.1 et seq. did not preclude the Commonwealth from obtaining a conviction under this section of a defendant alleged to have improperly inflated vendors' bids to the detriment of the Commonwealth, where the alleged acts took place prior to the enactment of the new statutes. Mosteller v. Commonwealth, 222 Va. 143 , 279 S.E.2d 380 (1981).

Impossibility defense. - Defendant's impossibility defense to attempted larceny by false pretenses failed because the ineptness of defendant's plan to have funds from a victim's bank account credited to defendant's overdue utility bill, while making the plan factually improbable, did not make the plan legally impossible. Abbitt v. Commonwealth,, 2014 Va. App. LEXIS 135 (Apr. 8, 2014).

Claim-of-right defense properly rejected. - Appellant's conviction of larceny by false pretenses, in violation of § 18.2-178 , was affirmed where the trial court properly rejected her claim-of-right defense based on its disbelief of her testimony, not because it misunderstood the law surrounding the defense. Groves v. Commonwealth, 50 Va. App. 57, 646 S.E.2d 28, 2007 Va. App. LEXIS 242 (2007).

Conspiracy to commit crime. - Because this case involved a single plan to commit multiple underlying instances of a single, non-capital crime, obtaining money by false pretenses, the common-law rule that the number of convictions depended upon the number of conspiratorial agreements applied. Smallwood v. Commonwealth, 72 Va. App. 119, 841 S.E.2d 881, 2020 Va. App. LEXIS 144 (2020).

Defendant and his co-conspirator targeted many people and the fact that the plan required multiple victims to work also suggested a single plan; as the circuit court found that there was only a single agreement, it should have only convicted defendant of one count of conspiracy to obtain money by false pretenses and sentenced him accordingly. Smallwood v. Commonwealth, 72 Va. App. 119, 841 S.E.2d 881, 2020 Va. App. LEXIS 144 (2020).

Refusing to instruct jury that it must find that defendant obtained title. - In prosecution for grand larceny by false pretenses, the trial court erred in refusing to instruct the jury that it must find that defendant obtained title to the property; although the trial court erred in instructing the jury regarding the elements of the offense, the error was harmless. Davies v. Commonwealth, 15 Va. App. 350, 423 S.E.2d 839 (1992).

Charge to jury. - When on an indictment for larceny the court charges the jury in the usual form, and on the trial it appears that the money charged to have been stolen was obtained by false pretenses, another charge by the court is neither necessary nor proper. Dull v. Commonwealth, 66 Va. (25 Gratt.) 965 (1875).

The court properly deleted a paragraph of the defendant's proposed instruction, which paragraph stated that the Commonwealth was required to prove that the defendant's false representations were used for the purpose of perpetrating the fraud, as the paragraph was duplicative of a paragraph which stated that the Commonwealth was required to prove that the representations were made with the intent to defraud. Kirk v. Commonwealth, No. 2735-97-4 (Ct. of Appeals Dec. 8, 1998).

Review. - Because the record failed to affirmatively prove that defendant did not make a false representation of an existing fact or past event and implied that she actually made such a statement, the court of appeals declined to apply the ends of justice exception to her argument concerning that issue, and therefore, did not consider her argument that the evidence was insufficient to prove that she used false pretenses to perpetrate the fraud at issue. Holt v. Commonwealth,, 2015 Va. App. LEXIS 238 (Aug. 4, 2015).

Court of appeals did not apply the ends of justice exception to address defendant's arguments concerning the sufficiency of the evidence supporting his conviction for obtaining property by false pretenses because no affirmative evidence established that defendant failed to receive copies of a building permit and its accompanying document; the evidence implied that defendant obtained title to the permit documents when he received possession of them from the city upon approval of his application. Cummings v. Commonwealth, No. 1891-14-1, 2015 Va. App. LEXIS 325 (Nov. 10, 2015).

Court of appeals did not consider defendant's argument that the evidence was insufficient to prove she used false pretenses because there was no affirmative evidence establishing her innocence or the lack of a criminal offense, and thus, the ends of justice exception did not apply; the Commonwealth's failure to present additional evidence concerning the specific false pretenses only demonstrated that a miscarriage of justice could have occurred, not that a miscarriage of justice did occur. Holt v. Commonwealth, 66 Va. App. 199, 783 S.E.2d 546 (2016).

Indictment. - Defendant's assertion that she was convicted for a greater crime than the one charged in the indictment was insufficient to demonstrate that the application of the ends of justice exception to a failure to object was necessary to avoid a grave injustice; while the indictments in question did not contain any allegations regarding the amount of money obtained by false pretenses, each indictment was labeled with the header "A FELONY." In addition, each false pretenses indictment alleged that defendant acted "unlawfully and feloniously." Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Double jeopardy. - Double jeopardy argument was rejected because convictions for obtaining money by false pretenses and embezzlement satisfied the Blockburger test since each offense required proof of an additional fact which the other did not. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Applied in Storey v. Patient First Corp., 207 F. Supp. 2d 431, 2002 U.S. Dist. LEXIS 10937 (E.D. Va. 2002); Burriesci v. Commonwealth, 59 Va. App. 50, 717 S.E.2d 140, 2011 Va. App. LEXIS 344 (2011).

II. EVIDENTIARY MATTERS.

Admissibility. - In breach of contract case in which an insurer moved for summary judgment, evidence was admissible of the insured's criminal conviction for attempting to obtain money under false pretense, in violation of §§ 18.2-26 and 18.2-178 , for filing a fraudulent insurance claim regarding the losses he sustained after his business caught fire; the element of fraudulent intent was necessarily proven by his criminal conviction for fraud. Miller v. Great Am. Ins. Co., 59 F. Supp. 3d 749 (E.D. Va. 2014).

Relinquishment of funds. - Although defendant argued that, because the victims loaned money expecting to receive repayment and an additional profit, defendant could not have gained title to the currency as larceny by false pretenses requires, the victims clearly relinquished the funds for defendant to use for his own benefit. Because defendant took both possession and ownership of the victims' funds, defendant committed larceny by false pretenses. Reid v. Commonwealth, 65 Va. App. 745, 781 S.E.2d 373, 2016 Va. App. LEXIS 23 (2016).

Refreshing witness's recollection. - Trial court did not err in allowing the Commonwealth to refresh a victim's recollection because the record established that the victim forgot some portion of the facts of the matter about which she was called to testify since the substance of the victim's testimony was that she could not remember whether she said something to defendant about a forged check; the victim examined the note provided to her by the Commonwealth, indicated it was in her handwriting, testified that the content of the note was "correct," and then relinquished the note before testifying more specifically about its content, and that testimony provided the needed foundation for allowing the victim to present her refreshed recollection regarding her conversation with defendant about the check. Bell v. Commonwealth, No. 0482-10-1,, 2010 Va. App. LEXIS 461 (Ct. of Appeals Nov. 30, 2010).

Evidence of the difference in value, if any, between services and goods provided and the amount paid for them, is not evidence of a false representation of a past or existing fact, nor does such evidence prove that any representation made was false or was of a past or present fact, as opposed to mere promises or statements of intention relating to future events. Watson v. Commonwealth, 4 Va. App. 450, 358 S.E.2d 735 (1987).

Circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the only method of proof. Parks v. Commonwealth, 221 Va. 492 , 270 S.E.2d 755 (1980), cert. denied, 450 U.S. 1029, 101 S. Ct. 1738, 68 L. Ed. 2d 224 (1981).

Harmless error in limiting cross-examination. - Defendant's convictions for obtaining $200 or more by false pretenses and giving material false testimony under oath were appropriate even though the trial court's limitation on cross-examination was erroneous because the error was harmless. The record contained extensive evidence impeaching defendant's testimony and establishing the falsified documentary evidence on other critical points and the attorney was not a witness to any of the evidence upon which the conviction for giving material false testimony was based. Lindsey v. Commonwealth,, 2011 Va. App. LEXIS 72 (Mar. 1, 2011).

Circumstantial evidence may prove intent. - Since direct proof of intent is often impossible, it can be shown by circumstantial evidence and the conduct or representation of the accused may thus be considered to determine whether the intent to defraud existed at the time the act was committed. Bestwick v. Commonwealth, No. 0954-98-4, 2000 Va. App. LEXIS 222 (Ct. of Appeals Mar. 28, 2000).

Circumstantial evidence held insufficient. - Circumstantial evidence that the defendant entertained an intent to defraud at the time of the act in question held insufficient to sustain the conviction. See Riegert v. Commonwealth, 218 Va. 511 , 237 S.E.2d 803 (1977).

False statements not proven. - Although defendant and his girlfriend told an acquaintance of their intent to sell "fake" ecstasy pills, the statements concerned future events and were not statements of false pretenses, and because any "false" statements to a police officer were made after the exchange, the Commonwealth failed to establish all the elements of the offense of obtaining money by false pretenses. Parker v. Commonwealth,, 2006 Va. App. LEXIS 12 (Jan. 10, 2006).

Defendant was properly not permitted to withdraw his no contest plea as he failed to proffer a reasonable defense to justify a trial as his claim that the lender's employee informed him that to get a second title loan he was to apply for a replacement title to serve as collateral was not credible because the manager testified that defendant would not have received the second loan had she known of the prior lien, and defendant's application for the replacement title stated that he sought a new title because he had lost the original; defendant presented the replacement title to the lender, thereby falsely indicating that there was no prior lien, to receive a second loan, which constituted a false pretense, even though the lender was able to place a lien on the replacement title. Shropshire v. Commonwealth,, 2015 Va. App. LEXIS 93 (Mar. 24, 2015).

Identical stories. - Defendant used identical stories to convince each victim to drive him around and lend him money. A rational trier of fact certainly could have found the evidence sufficient to show defendant employed false pretenses. Reid v. Commonwealth, 65 Va. App. 745, 781 S.E.2d 373, 2016 Va. App. LEXIS 23 (2016).

Intent to defraud. - Evidence, including a falsified contract and defendant's statements, supported a finding that defendant acted with the intent to defraud when he entered into the timber contract with the victim. Massey v. Commonwealth,, 2015 Va. App. LEXIS 91 (Mar. 24, 2015).

Evidence held sufficient to sustain conviction under this section, where defendant's representations that his business was in sound condition and that he had consummated necessary financial arrangements with a bank to ensure payment of his check were false. Hubbard v. Commonwealth, 201 Va. 61 , 109 S.E.2d 100 (1959).

There was sufficient evidence to support the defendant's conviction of obtaining money by false pretenses, where a check in the amount of $950 and in the victim's handwriting was dated and negotiated after the defendant was discharged from the defendant's employ, it was payable to a friend of the defendant's, and the notation on the check read "services rendered," but the friend testified that she performed no services for the victim. Watson v. Commonwealth, 4 Va. App. 450, 358 S.E.2d 735 (1987).

The misleading and false statements by appellant clearly showed his fraudulent intent. Moreover, the fact that appellant had similarly defrauded others also established his fraudulent intent. Therefore, the Commonwealth's evidence was sufficient to prove beyond a reasonable doubt that appellant made false representations and that he did so with the requisite fraudulent intent. Pope v. Commonwealth, No. 0692-96-1 (Ct. of Appeals Jan. 14, 1997).

Where defendent/appellant lied to plaintiff/appellee regarding materials in his possession to complete work under contract to construct a shed, trial court could properly infer not only that defendant intended to defraud his customer, but also that customer relied upon his false representations in paying him second installment of contract price. Bestwick v. Commonwealth, No. 0954-98-4 (Ct. of Appeals Mar. 28, 2000).

The evidence was sufficient to support the defendant's conviction for obtaining money by false pretenses where the defendant entered into a contract with the victim to build a hay barn and then lied to her about having obtained all of the materials to induce her to write a check for the second installment of the contract price. Bestwick v. Commonwealth, No. 0954-98-4, 2000 Va. App. LEXIS 222 (Ct. of Appeals Mar. 28, 2000).

Evidence which showed that defendant presented worthless checks for deposit in an account she had at a credit union, withdrew money from the account, and failed to pay a negative balance in the account was sufficient to sustain her conviction for grand larceny by false pretenses, and the trial court did not err when it rejected defendant's testimony that she was not the person who opened the account at the credit union and withdrew money from it. Johnson v. Commonwealth, No. 1764-03-4, 2004 Va. App. LEXIS 367 (Ct. of Appeals Aug. 3, 2004).

Evidence supported defendant's conviction for obtaining money in excess of $200 under false pretense under § 18.2-178 , where the first words defendant's girlfriend uttered to the undercover detective, "these are the pills" was a false pretense. The detective's statement that the detective gave the girlfriend the money because of the detective's "past experience" with the girlfriend did not necessarily preclude a finding that the detective's expectation of what the girlfriend would give the detective was induced by a false representation of past or present fact; the jury could reasonably have interpreted the detective's statement to mean that the detective had chosen to believe the representations that "these are the pills" and that the pills were "real" because the detective had found the girlfriend truthful in the past. Parker v. Commonwealth, 275 Va. 150 , 654 S.E.2d 580, 2008 Va. LEXIS 5 (2008).

Defendant's convictions for larceny by false pretenses and attempted larceny by false pretenses, in violation of §§ 18.2-178 and 18.2-26 were appropriate because defendant conceded that he received title to a wheelchair and the theft of that item alone was sufficient to support the allegations contained in the indictment. Additionally, defendant consistently made false representations regarding his disability and work capacity to whomever he needed to in order to gain financially. Brabson v. Commonwealth,, 2010 Va. App. LEXIS 80 (Mar. 2, 2010).

Evidence was sufficient to prove the intent necessary to support a conviction for obtaining money by false pretenses where the jury was permitted to infer defendant's guilty knowledge from his possession of forged traveler's checks, where defendant provided conflicting accounts as to how he obtained the checks, and where after defendant obtained the checks, he immediately negotiated each check for an inexpensive item and a large amount of cash. Richardson v. Commonwealth,, 2010 Va. App. LEXIS 84 (Mar. 9, 2010).

Defendant's conviction for obtaining money by false pretenses after exchanging an electronic video game system at a store was affirmed. Once the trial judge concluded that testimony that defendant did not know the property was stolen was not credible, nothing remained to refute the prosecution's evidence. Sweat v. Commonwealth,, 2010 Va. App. LEXIS 341 (Aug. 17, 2010).

Evidence was sufficient to support defendant's conviction for attempting to obtain money by false pretenses and uttering a forged check drawn on the account of her employer in violation of §§ 18.2-178 and 18.2-172 because the only reasonable hypothesis flowing from the direct and circumstantial evidence was that defendant shared in an accomplice's intent to utter a forged check and to attempt to obtain money by false pretenses; defendant, who worked across the hall from the victim and had access to her office, admitted to the victim that she had possessed the check at issue, defendant accompanied the accomplice to a check cashing business and admitted knowing that the accomplice was there to cash a check, and defendant, the only one of the three people at the business that day who had a direct tie to the employer, remained in the car during the transaction, fabricated a reason to enter the business after police arrived and entered, and attempted to flee the scene alone after learning that the accomplice had been handcuffed. Bell v. Commonwealth, No. 0482-10-1,, 2010 Va. App. LEXIS 461 (Ct. of Appeals Nov. 30, 2010).

Trial court did not err in finding the evidence was sufficient to convict defendant of obtaining the victim's money by false pretenses in violation of § 18.2-178 because defendant intentionally and fraudulently misled the victim to believe that the money she gave him was to purchase a trailer he owned; the victim relied on the false representation that defendant owned the trailer at the time she paid him for the purchase of the trailer, and defendant lacked the legal authority to transfer legal title of the trailer to the victim. Pettit v. Commonwealth,, 2011 Va. App. LEXIS 368 (Nov. 29, 2011).

As defendant falsely claimed to be a licensed attorney, he obtained money by false pretenses in violation of § 18.2-178 when he accepted legal fees from the victims. That they could have been represented at the proceedings by a lay advocate pursuant to subsection C of § 22.1-214 was irrelevant, as they did not seek to employ one, and defendant did not represent himself to them as such. Deiner v. Commonwealth,, 2012 Va. App. LEXIS 109 (Apr. 10, 2012).

Evidence that shortly after giving a check to the first victim and taking the merchandise from the store, defendant issued a stop payment on the check without explanation to the merchant and never returned the merchandise or responded to the merchant's attempt to communicate with her, and less than two months later, and while on bond for that incident, defendant repeated the same course of action at a second merchant was sufficient to support convicitons for obtaining money or property by false pretense. Austin v. Commonwealth, 60 Va. App. 60, 723 S.E.2d 633, 2012 Va. App. LEXIS 113 (2012).

Trial court did not err in finding that the evidence was sufficient to establish that defendant was guilty of obtaining money by false pretenses because as a result of defendant's false representation, the victim paid her on three separate occasions; the crime charged was complete when defendant obtained ownership of the money from the victim based on her false representation that she owned a home and could rent it out. Polk v. Commonwealth, No. 1091-12-1, 2013 Va. App. LEXIS 200 (Ct. of Appeals July 16, 2013).

From the evidence, the trial court was entitled to find that defendant knew a check had been materially altered (and thus forged), that defendant nevertheless presented the check as good, and that defendant succeeded in cashing the check; thus, the evidence presented was sufficient to prove beyond a reasonable doubt that defendant was guilty of uttering and obtaining money by false pretenses. Walker v. Commonwealth,, 2014 Va. App. LEXIS 118 (Apr. 1, 2014).

Evidence supported a finding that defendant obtained sufficient documentation of a transfer of title to the victim's timber rights to also obtain a contract with another individual, and as a result of the contract, defendant received some or all of the purchase price paid by the individual, who received the timber, such that the evidence proved a transfer of title and possession sufficient to support defendant's conviction. Massey v. Commonwealth,, 2015 Va. App. LEXIS 91 (Mar. 24, 2015).

Evidence that the vehicle in question had 105,333 miles almost a year before defendant presented the vehicle for service with an odometer reading of 47,751, and that such deception caused the dealership to provide defendant several thousand dollars in parts and several hundred dollars in labor was sufficient to support defendant's conviction for obtaining money or property by false pretenses. Diggs v. Commonwealth,, 2015 Va. App. LEXIS 175 (May 19, 2015).

Evidence was sufficient to support defendant's conviction for obtaining money by false pretenses because it established that defendant intended to defraud the victim when she agreed to sell the victim a vehicle and accepted payments from him for the purchase of the vehicle; the jury reasonably inferred that defendant never intended to sell the vehicle to the victim because she reclaimed both physical possession of and title to the vehicle within days of transferring ownership to him. Holt v. Commonwealth,, 2015 Va. App. LEXIS 238 (Aug. 4, 2015).

There was sufficient evidence to support a conviction for obtaining money by false pretenses because defendant, who did patient shopping and submitted photocopied receipts to her employer, retained the store refunds herself, creating a clear pattern of fraudulent conduct over a period of nearly twelve months that made it increasingly clear to the factfinder that she had an intent to defraud in each instance. Defendant made false representations to her employer in furtherance of her scheme to defraud. Tomlin v. Commonwealth, No. 1946-15-2, 2017 Va. App. LEXIS 79 (Mar. 14, 2017).

Evidence was sufficient to convict defendant of obtaining money by false pretenses because the complainant's testimony as to the circumstances surrounding the complainant's cashing of a check from the account of another person and subsequent withdrawal of funds from the complainant's own account, was not inherently incredible or so contrary to human experience as to render it unworthy of belief. Brooks v. Commonwealth, No. 1228-16-1, 2017 Va. App. LEXIS 342 (Dec. 27, 2017).

Evidence supported defendant's conviction for obtaining money by false pretense because no agency relationship existed between defendant and the victim in the victim buying a truck, in that defendant was employed as a salesman for a car dealership, so that the victim conveyed both title and possession of money for the purchase of a truck to defendant. Defendant, after inducing the victim to give defendant the money to buy the truck and leaving the victim, failed to return the money or to respond to the victim's inquiries. Brown v. Commonwealth, No. 1543-17-2, 2018 Va. App. LEXIS 349 (Dec. 18, 2018).

Evidence of defendant's identity was sufficient as a matter of law to convict him of statutory burglary, petit larceny, and obtaining money by false pretenses because the Commonwealth presented evidence from which the circuit court could infer that defendant was, in fact, the individual who sold a cell phone at a machine that gave people cash for their cell phones, which established a prima facie case that he was the individual who burglarized the victim's home and stole and sold her cell phone; and the circuit court could reasonably infer from the machine's report that an employee had an opportunity to view the individual at the machine and confirm that his appearance matched defendant's identification card. Wilson v. Commonwealth, No. 1887-18-1, 2019 Va. App. LEXIS 313 (Dec. 27, 2019).

Because some of the representations as to existing facts induced the complaining witnesses to part with their property, the evidence is sufficient to support defendant's conviction for false pretenses. Maad v. Commonwealth, No. 0162-20-4, 2021 Va. App. LEXIS 8 (Jan. 19, 2021).

Evidence was sufficient to prove that defendant obtained property by false pretense because the evidence showed that, when the party with whom defendant traded a motorcycle asked defendant if there had been any alterations to the motorcycle, defendant did not inform the party that the vehicle identification number (VIN) had been changed, which showed the requisite intent to defraud as the party could not legally operate a motorcycle that had a VIN changed without the permission of the Virginia Department of Motor Vehicles. Dixon v. Commonwealth, No. 1609-19-3, 2021 Va. App. LEXIS 38 (Mar. 9, 2021).

Fact that bank could have protected itself from loss was immaterial. - Evidence was sufficient that defendant obtained money by false pretenses even though the bank could have protected itself from loss by asserting its rights as a holder in due course; evidence was established that the bank suffered a loss, and whether the bank could have prevented its loss or anyone's loss was immaterial. Grites v. Commonwealth, 9 Va. App. 51, 384 S.E.2d 328 (1989).

Evidence was not sufficient to establish seller's intent to defraud buyers because evidence supported the hypothesis that seller intended to use buyers' money to obtain ownership of the property and to convey the ownership to the buyers; evidence was established that seller took proceeds of buyers' check and secured a cashier's check payable to the owner of the property; furthermore, there was no direct evidence that anyone told seller that buyers no longer desired to purchase the property or that a stop payment order had been placed on the check. Grites v. Commonwealth, 9 Va. App. 51, 384 S.E.2d 328 (1989).

Evidence insufficient to support conviction. - The evidence did not establish beyond a reasonable doubt that the alleged false pretenses induced the owner to part with his property. To the contrary, the alleged victim stated that the representations made were not a determining factor in his decision to make a contribution to defendant. A majority of the court having determined that the Commonwealth failed to establish one of the necessary elements of larceny by false pretenses, defendant's conviction was reversed and the case against him was dismissed. Wynne v. Commonwealth, 18 Va. App. 459, 445 S.E.2d 160 (1994).

Evidence that defendant wrote checks belonging to his deceased father to obtain goods from people who received the checks was sufficient to sustain defendant's convictions for obtaining goods by false pretenses, in violation of § 18.2-178 , and the trial court which convicted defendant did not err by admitting a National Crime Information Center printout over defendant's objection or by considering the printout as evidence that defendant had prior convictions for larceny to convict him of committing Class 6 felonies, pursuant to § 18.2-104 . Argenbright v. Commonwealth, No. 3282-02-3, 2003 Va. App. LEXIS 613 (Ct. of Appeals Nov. 25, 2003).

Evidence was insufficient to support the defendant's conviction where: (1) The defendant's wife told their landlord that she was receiving an inheritance and asked if she could deposit the funds in the landlord's savings account; (2) The landlord agreed and gave her the account number so that the funds could be wired directly to the account; (3) The defendant's wife later told the landlord, in the defendant's presence, that the funds had been wired and then asked for a check for $2,500 to pay medical bills; (4) The landlord gave a blank check to the defendant's wife, who gave it to the defendant, who filled it out in the presence of the landlord; and (5) The defendant and his wife shortly thereafter disappeared; the evidence did not show that the defendant knew that the wife's money was not wired to the landlord's account and, therefore, did not show guilty knowledge on his part. Lee v. Commonwealth, No. 0770-97-2 (Ct. of Appeals February 24, 1998).

Grand larceny by false pretenses conviction was reversed, and the case was dismissed, where the State failed to present evidence that defendant acquired any type of ownership interest in the vehicle he allegedly stole, such as a promissory note, sales contract, or other document that would have evidenced some type of ownership transfer. Shropshire v. Commonwealth, 40 Va. App. 34, 577 S.E.2d 521, 2003 Va. App. LEXIS 122 (2003).

Conviction for obtaining money by false pretenses was reversed because the evidence failed to prove that defendant knew at the time of the agreement to help the alleged victim obtain refinancing that defendant would be paid by an entity other than the alleged victim. Jackson v. Commonwealth,, 2006 Va. App. LEXIS 547 (Dec. 12, 2006).

Because the Commonwealth conceded that the evidence of an intent to defraud was insufficient to sustain defendant's conviction of obtaining goods by false pretenses in violation of § 43-13 , there had to be a concession that the evidence was insufficient to prove the conviction of conspiracy to commit a felony in violation of § 18.2-22 ; both required the intent to defraud, and the conspiracy alleged and tried was a conspiracy to violate § 18.2-178 , and not a conspiracy to violate § 43-13 . Hinote v. Commonwealth, No. 2570-10-2, 2011 Va. App. LEXIS 362 (Ct. of Appeals Nov. 22, 2011).

Defendant's conviction for obtaining goods by false pretenses, §§ 18.2-178 and 43-13 , was reversed because the Commonwealth properly conceded that the evidence did not show that defendant intended to defraud when obtaining building materials from a builders supply company; to prove larceny by false pretenses, the intent to defraud had to exist when the property was obtained, and that could not happen based on the inference upon which the Commonwealth relied. Hinote v. Commonwealth, No. 2570-10-2, 2011 Va. App. LEXIS 362 (Ct. of Appeals Nov. 22, 2011).

Variance between indictment and proof at trial as to ownership. - When the Commonwealth alleged in an indictment that the money obtained by the defendant was the property of a named individual, her grandfather, but the evidence showed the money was the property of the bank in which the grandfather maintained a savings account, it proved a different offense, resulting in a fatal variance and requiring that the defendant's conviction be reversed. Gardner v. Commonwealth, 262 Va. 18 , 546 S.E.2d 686, 2001 Va. LEXIS 80 (2001).

No variance between indictment and proof at trial. - In a prosecution for obtaining money by false pretenses, although the state lottery reimbursed merchants for money paid for winning tickets, as each of the two merchant victims sustained a loss of cash funds when they paid defendant for the stolen tickets, the cash paid from the merchants' till did not belong to state lottery officials even though it was contractually obligated to reimburse its agents when they paid winners. As a result, no variance existed between the warrants and the proof presented at trial. Francis v. Commonwealth,, 2008 Va. App. LEXIS 216 (May 6, 2008).

Trial court did not err in ruling that there was no fatal variance between the indictment and the proof at trial because defendant was informed of the nature and cause of accusation brought against her, obtaining property by false pretenses; the indictment did not describe, limit, or qualify the factual allegation to the exclusion of "money" from its scope because it utilized the word "property" in setting forth the nature and character of the offense charged. Polk v. Commonwealth, No. 1091-12-1, 2013 Va. App. LEXIS 200 (Ct. of Appeals July 16, 2013).

Trial court did not err in denying defendant's motion to strike the evidence when defendant asserted that a fatal variance existed between the indictment and the proof at trial - in that the indictment charged defendant with obtaining currency belonging to the complainant, while the evidence at trial showed that the currency belonged to the complainant's bank - because the money obtained by false pretense was the complainant's authorized withdrawal from the complainant's own account at the bank, which the complainant subsequently gave to defendant. Brooks v. Commonwealth, No. 1228-16-1, 2017 Va. App. LEXIS 342 (Dec. 27, 2017).

CIRCUIT COURT OPINIONS

Probable cause. - Circuit court found that the directors of a non-stock corporation attempted to sell memberships on the corporation's board and the corporation itself when there was no evidence that either director possessed even implicit authorization to sell any membership to the corporation. Thus, the court found that there was cause to believe that the directors inferentially possessed an intent to defraud and probable cause to believe that the directors violated several Virginia penal statutes. Dogwood Valley Citizen's Ass'n v. Miller,, 2021 Va. Cir. LEXIS 95 (Greene County Apr. 23, 2021).

§ 18.2-178.1. Financial exploitation of mentally incapacitated persons; penalty.

  1. It is unlawful for any person who knows or should know that another person suffers from mental incapacity to, through the use of that other person's mental incapacity, take, obtain, or convert money or other thing of value belonging to that other person with the intent to permanently deprive him thereof. Any person who violates this section shall be deemed guilty of larceny.
  2. Venue for the trial of an accused charged with a violation of this section shall be in any county or city in which (i) any act was performed in furtherance of the offense or (ii) the accused resided at the time of the offense.
  3. This section shall not apply to a transaction or disposition of money or other thing of value in which the accused acted for the benefit of the person with mental incapacity or made a good faith effort to assist such person with the management of his money or other thing of value.
  4. As used in this section, "mental incapacity" means that condition of a person existing at the time of the offense described in subsection A that prevents him from understanding the nature or consequences of the transaction or disposition of money or other thing of value involved in such offense.

    (2013, cc. 419, 452.)

Law review. - For annual survey article, see "Wills, Trusts, and Estates," 48 U. Rich. L. Rev. 189 (2013).

CASE NOTES

Evidence sufficient. - Evidence was sufficient to convict defendant of financial exploitation of a mentally incapacitated person as the Commonwealth failed to prove that the victim was mentally incapacitated because, in 2003, the victim sustained a brain injury from encephalitis, and both her physical and mental capabilities were affected; the victim required constant in-home care since 2004; the victim could not perform executive functions, such as reasoning, medication management, financial management, preparing meals for herself, and bathing herself; the victim's mental deficits specifically included difficulty making purchases on her own and poor short-term memory; and the victim's sister-in-law had the victim's power of attorney and managed her bank account. White v. Commonwealth, 68 Va. App. 241, 807 S.E.2d 242, 2017 Va. App. LEXIS 301 (2017).

§ 18.2-179. Unlawful operation of coin box telephone, parking meter, vending machine, etc.

Any person who shall operate, cause to be operated, or attempt to operate or cause to be operated any coin box telephone, parking meter, vending machine or other machine that operates on the coin-in-the-slot principle, whether of like kind or not, designed only to receive lawful coin of the United States of America, in connection with the use or enjoyment of telephone or telegraph service, parking privileges or any other service, or the sale of merchandise or other property, by means of a slug, or any false, counterfeit, mutilated, sweated or foreign coin, or by any means, method, trick or device whatsoever, not authorized by the owner, lessee or licensee of such coin box telephone, parking meter, vending machine or other machine; or who shall obtain or receive telephone or telegraph service, parking privileges, merchandise, or any other service or property from any such coin box telephone, parking meter, vending machine or other machines, designed only to receive lawful coin of the United States of America, without depositing in or surrendering to such coin box telephone, parking meter, vending machine, or other machine lawful coin of the United States of America to the amount required therefor by the owner, lessee or licensee of such coin box telephone, parking meter, vending machine or other machine, shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 28.1-124; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1972).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 8; 18 M.J. Telegraph and Telephone Companies, § 2.

CASE NOTES

Verbal deceit is not embraced by this section, because criminal statutes are to be narrowly construed, and are not to be read as encompassing every arguable interpretation of their language. United States v. Guyette, 382 F. Supp. 1266 (E.D. Va. 1974).

The enactment of former § 18.2-187 (see now § 18.2-187.1 ), which forbids obtaining phone services with an invalid credit card, is evidence that the General Assembly did not believe this section adequate to protect the phone company from verbal fraud. United States v. Guyette, 382 F. Supp. 1266 (E.D. Va. 1974).

This section forbids only "physical" or "mechanical" means, methods, and devices of defrauding those who own and operate pay telephones and other coin-operated machines, and not "verbal" fraud practiced upon a phone company by the artifice of giving the telephone operators false, invalid, or nonexistent credit card number. United States v. Guyette, 382 F. Supp. 1266 (E.D. Va. 1974).

Only owners of coin telephones can be verbally defrauded. - While the owners of all machines in the coin-in-the-slot category may be "mechanically" defrauded, only the owners of coin telephones can be "verbally" defrauded. United States v. Guyette, 382 F. Supp. 1266 (E.D. Va. 1974).

§ 18.2-180. Manufacture, etc., of slugs, etc., for such unlawful use.

Any person who, with intent to cheat or defraud the owner, lessee, licensee or other person entitled to the contents of any such coin box telephone, parking meter, vending machine or other machine operated on the coin-in-the-slot principle, designed only to receive lawful coin of the United States of America, in connection with the use of any such coin box telephone, parking meter, vending machine or other machine, or who, knowing or having reason to believe that the same is intended for such unlawful use, shall manufacture, sell, offer to sell, advertise for sale or give away any slug, device or substance whatsoever, intended or calculated to be placed or deposited in any such coin box telephone, parking meter, vending machine or other machine, shall be guilty of a Class 3 misdemeanor.

The manufacture, sale, offer for sale, advertisement for sale, giving away or possession of any such slug, device or substance whatsoever, intended or calculated to be placed or deposited in any such coin box telephone, parking meter, vending machine or other machine that operates on the coin-in-the-slot principle, shall be prima facie evidence of intent to cheat or defraud within the meaning of this section and § 18.2-179 .

(Code 1950, § 18.1-125; 1960, c. 358; 1975, cc. 14, 15.)

Article 4. Bad Check Law.

§ 18.2-181. Issuing bad checks, etc., larceny.

Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money, upon any bank, banking institution, trust company, or other depository, knowing, at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in, or credit with, such bank, banking institution, trust company, or other depository, for the payment of such check, draft or order, although no express representation is made in reference thereto, shall be guilty of larceny; and, if this check, draft, or order has a represented value of $1,000 or more, such person shall be guilty of a Class 6 felony. In cases in which such value is less than $1,000, the person shall be guilty of a Class 1 misdemeanor.

The word "credit" as used herein, shall be construed to mean any arrangement or understanding with the bank, trust company, or other depository for the payment of such check, draft or order.

Any person making, drawing, uttering or delivering any such check, draft or order in payment as a present consideration for goods or services for the purposes set out in this section shall be guilty as provided herein.

(Code 1950, § 6.1-115; 1966, c. 584; 1975, cc. 14, 15; 1978, c. 791; 1981, c. 230; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to issuance of bad check being prima facie evidence of intent and knowledge, see § 18.2-183 .

As to additional recovery in certain civil actions concerning checks, see § 8.01-27.1 .

As to recovery of costs in civil actions for bad checks, see § 17.1-626.1 .

As to admissible evidence regarding identity of party presenting bad check, draft or order, see § 19.2-270.3 .

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in the first paragraph.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in the first paragraph.

Law review. - For comment, "Right to Court-Appointed Counsel for Misdemeanants in Virginia," see 4 U. Rich. L. Rev. 306 (1970). For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970). For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 24 Contract Actions. § 24.07 Actions on Notes, Checks, Etc. Friend.

Virginia Forms (Matthew Bender). No. 9-406 Criminal Complaint (Bad Check), et seq; No. 16-207 Bad Checks.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89; 12A M.J. Larceny, § 2.

CASE NOTES

Object of section. - This section is specifically aimed at discouraging the giving of a bad check for a cash purchase when the drawer has, instead of the present means, only a vague intention to make the check good at some time in the future. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941); Rosser v. Commonwealth, 192 Va. 813 , 66 S.E.2d 851 (1951); Bagheri v. Commonwealth, 12 Va. App. 1071, 408 S.E.2d 259 (1991).

Burden of proof. - By issuing the check, the appellant impliedly represented that the account contained funds sufficient to honor the check; therefore, the burden of producing evidence that he expressly represented otherwise was with the appellant. Bolinsky v. Commonwealth, No. 2055-93-2 (Ct. of Appeals Feb. 14, 1995).

"Depository." - The "depository" language in this section refers to the institution upon which the funds are drawn, not the entity where the check is uttered. Warner v. Commonwealth, 30 Va. App. 141, 515 S.E.2d 803 (1999).

"Or." - The language "make or draw or utter or deliver" is in the disjunctive and there is nothing in the section to indicate that "or" should be read to mean "and." Thus, "or" is to be given its ordinary meaning. Patterson v. Commonwealth, 216 Va. 306 , 218 S.E.2d 435 (1975).

This section encompasses a worthless check given to obtain cash as well as the giving of bad checks for what purports to be a cash purchase. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

Elements differ from common-law larceny. - The elements of the offense under this section are materially different from those of common-law larceny. Payne v. Commonwealth, 222 Va. 485 , 281 S.E.2d 873 (1981).

Essential element. - False representation that a check is good is a necessary element of the offense at which the statute is directed. Hubbard v. Commonwealth, 201 Va. 61 , 109 S.E.2d 100 (1959).

An essential element of the bad check offense is that the drawer or utterer falsely represent that the check is good. Bolinsky v. Commonwealth, No. 2055-93-2 (Ct. of Appeals Feb. 14, 1995).

The gravamen of the offense is the fraudulent intent, and the lack of funds creates a prima facie but not a conclusive presumption of such intent. Turner v. Brenner, 138 Va. 232 , 121 S.E. 510 (1924); Rosser v. Commonwealth, 192 Va. 813 , 66 S.E.2d 851 (1951).

The gravamen of the offense denounced by this section is the intent to defraud. It is an indispensable element of the crime. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

The gravamen of the offense created by this statute is the intent to defraud. Huntt v. Commonwealth, 212 Va. 737 , 187 S.E.2d 183 (1972).

Under the bad check statute, the gravamen of the offense is the intent to defraud. It may be established by either direct or circumstantial evidence. Sylvestre v. Commonwealth, 10 Va. App. 253, 391 S.E.2d 336 (1990).

Intent to defraud is an indispensable element of the crime and the burden is upon the Commonwealth to prove its existence at the time of drawing or uttering the check. Huntt v. Commonwealth, 212 Va. 737 , 187 S.E.2d 183 (1972).

Fraudulent intent in the mind of the drawer at the time the checks were written and negotiated is the gravamen of the offense, and an indispensable element of the crime. Absent the statutory presumption it must be proved by the Commonwealth. Rinkov v. Commonwealth, 213 Va. 307 , 191 S.E.2d 731 (1972).

Under this section, the gravamen of the offense is the intent to defraud. Such intent is an essential element of the crime, and the burden is on the Commonwealth to prove that it existed at the time the checks were drawn or uttered. Patterson v. Commonwealth, 216 Va. 306 , 218 S.E.2d 435 (1975).

Under this section, the gravamen of the offense is the intent to defraud, and the offense is complete when, with the requisite intent, a person utters a check he knows to be worthless. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

And the crime is committed when the drawer utters the check. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941); Rosser v. Commonwealth, 192 Va. 813 , 66 S.E.2d 851 (1951).

Thus, payment is no bar to prosecution. - A prosecution might be carried on even if the drawer had made payment within the period specified in § 18.2-183 . Such payment would constitute no bar to prosecution; it would merely negative the presumption of fraudulent intent which would otherwise obtain. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

And drawer's subsequent acts are relevant only as to intent. - The acts of the drawer in his dealings with the holder after issuing the check are relevant only insofar as they tend to prove or disprove the actual commission of the crime on the date upon which the check was drawn. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

Since the crime, if any, is committed at the time the check is drawn, subsequent acts of the drawer are of evidential value only in helping to establish the operative fact of fraudulent intent. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

The intent to defraud under this section for making or passing a bad check must be based upon a false representation that the check as written and delivered is good. Thus, the bad check offense as defined by the statute has not been committed if the payee knows at the time that the check was made and delivered that it was not then good or collectible. Bolinsky v. Commonwealth, No. 2055-93-2 (Ct. of Appeals Feb. 14, 1995).

Express representation not necessary. - This section, in terms, dispenses with the proof of "express representation." Hubbard v. Commonwealth, 201 Va. 61 , 109 S.E.2d 100 (1959).

This section dispenses with proof of an extrinsic representation that check was good. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

And it need not be shown that the implied representation was relied upon or that anything was received in return for the check. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

To prove a bad-check offense, it need not be shown that anything was received in return for the check, for the offense is complete when, with the requisite intent, a person utters a check he knows to be worthless. Payne v. Commonwealth, 222 Va. 485 , 281 S.E.2d 873 (1981).

Sufficient evidence supported defendant's convictions for larceny by worthless check because (1) the statute was not limited to passing a worthless check as present consideration for goods and services, and (2) defendant presented worthless checks for payment with intent to defraud by knowing defendant's accounts had insufficient funds to cover the checks and that defendant needed a payee to extend credit to have sufficient funds to cover the checks, and the payee did not agree to accept the checks with an understanding the checks were not immediately available for deposit. McGinnis v. Commonwealth, 296 Va. 489 , 821 S.E.2d 700, 2018 Va. LEXIS 180 (Dec. 13, 2018).

Knowledge of payee that check not good. - Where, at the time a check is drawn or delivered, the payee understands that it is not then good or collectible, the offense prohibited by statutes of the character of this section has not been committed. Hubbard v. Commonwealth, 201 Va. 61 , 109 S.E.2d 100 (1959).

The view that this section is not violated where the payee accepts a check knowing that it is not then good, with an understanding that it will be paid at some later time, is based not upon a theory of contributory negligence but upon the rationale that the maker does not possess the necessary fraudulent intent when he utters the check under such circumstances. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

Purpose of paragraph referring to "present consideration." - The purpose of the 1978 amendment, which added the last paragraph referring to "present consideration," was simply to provide that bad checks given as a present consideration for intangible goods or services may, assuming all other provisions of the statute are met, constitute the crime of larceny. Sylvestre v. Commonwealth, 10 Va. App. 253, 391 S.E.2d 336 (1990).

The 1978 amendment, which added the last paragraph referring to "present consideration," did not make it the crime of larceny to give a bad check as payment for past debts or as gifts, nor did the amendment alter or limit the scope of the first paragraph as it existed prior to 1978. Sylvestre v. Commonwealth, 10 Va. App. 253, 391 S.E.2d 336 (1990).

This section does not "make it the crime of larceny to give a bad check as payment for past debts". Dagenhart v. Commonwealth, No. 2547-94-2 (Ct. of Appeals Dec. 29, 1995).

Evidence did not exclude hypothesis check given for past debt. - Proof that defendant passed a bad check to a grocery store, standing alone was not adequate to bring the case within the ambit of this section, where the evidence did not exclude the hypothesis that the check was given for a past debt. Sylvestre v. Commonwealth, 10 Va. App. 253, 391 S.E.2d 336 (1990).

Crime does not require anything received in return for check. - To prove a bad check offense, it is not necessary that anything be received in return for the check. The offense is complete when, with intent to defraud, a person makes or draws or utters a check he knows to be worthless. Bray v. Commonwealth, 9 Va. App. 417, 388 S.E.2d 837 (1990).

This section requires the Commonwealth to establish both intent to defraud and knowledge of insufficient funds in order to convict the defendant. Huntt v. Commonwealth, 212 Va. 737 , 187 S.E.2d 183 (1972).

Discovery by the payee that a check was worthless before the transaction was completed did not preclude a conviction under this section. United States v. Sparks, 560 F.2d 1173 (4th Cir. 1977); Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

Passing worthless check to one's own bank. - One can be convicted under Virginia's "Bad Check Law" of passing to his own bank a worthless check drawn on his account in that bank. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

A conviction is not precluded by a bank's failure to exercise "ordinary diligence" to ascertain from the "means available" the true status of a customer's account before cashing his worthless check. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

And refusal of bank to create overdraft no excuse. - The refusal of a bank to exercise the authority to charge a worthless check against a customer's account even though such charge would create an overdraft did not excuse the actions of a customer in presenting a worthless check, where those actions were otherwise criminally actionable under this section. Warren v. Commonwealth, 219 Va. 416 , 247 S.E.2d 692 (1978).

Worthless check in payment of security deposit. - A person can be convicted under the bad check law for passing a worthless check in payment of a security deposit upon the rental of real estate. Bray v. Commonwealth, 9 Va. App. 417, 388 S.E.2d 837 (1990).

Not similar to shoplifting offense. - Over defendant's objection, the district court assigned him a criminal history point for a 2005 sentence in a Virginia state court for shoplifting - or, more specifically, for altering a price tag on merchandise valued at less than $200 - and on appeal, defendant contended that he should not have received a criminal history point for his prior shoplifting sentence because the underlying offense was similar to the listed insufficient funds check offense and because his sentence did not include any term of probation or incarceration; however, the district court correctly determined that defendant's prior shoplifting offense was not similar to the listed insufficient funds check offense and properly assessed a single criminal history point for the shoplifting sentence. Under Virginia law, both shoplifting and insufficient funds check offenses could involve the acquisition of a store's merchandise without paying the full purchase price thereof but in a shoplifting offense, this was effectuated by concealing the merchandise or altering the merchandise's price tag and in an insufficient funds check offense the merchandise acquisition was carried out by issuing a bad check; because of these significant differences, the elements of the shoplifting offense and those of the insufficient funds check offense could not be deemed nearly corresponding or resembling in many respects. United States v. Osborne, 514 F.3d 377, 2008 U.S. App. LEXIS 1871 (4th Cir. 2008), cert. denied, 128 S. Ct. 2525, 2008 U.S. LEXIS 4438 (U.S. 2008).

Five-year statute of limitations applied. - Five-year statute of limitations for petit larceny applied to defendant's charge of uttering a bad check because uttering a bad check was a form of larceny. Foster v. Commonwealth, 44 Va. App. 574, 606 S.E.2d 518, 2004 Va. App. LEXIS 626 (2004), aff'd, - Va. - , 623 S.E.2d 902 (2006).

Larceny that was a misdemeanor was a petit larceny, there were no other possibilities for other larcenies within the context of § 18.2-181 . Since § 18.2-96 had no impact upon the foregoing analysis, the one year statute of limitations under § 19.2-8 , which applied to misdemeanors, did not apply to defendant's act of passing a bad check. Foster v. Commonwealth, 271 Va. 235 , 623 S.E.2d 902, 2006 Va. LEXIS 6 (2006).

Privileges. - Section 19.2-271.2 (ii) did not apply because defendant was indicted for uttering a check with insufficient funds, she was not charged with "forgery or uttering." Lindsey v. Commonwealth, No. 1494-06-2, 2007 Va. App. LEXIS 480 (Dec. 27, 2007).

Evidence of prior worthless checks held admissible. - Evidence of two prior worthless checks given by the defendant to the same payee was properly admitted in a prosecution under this section for the purpose of showing both intent and knowledge on the part of the defendant. United States v. Sparks, 560 F.2d 1173 (4th Cir. 1977).

Sufficiency of evidence. - While the opening of two checking accounts and the other circumstances shown by the evidence created a strong suspicion or probability of guilt, this is not sufficient, as the evidence must establish the guilt of the accused beyond a reasonable doubt. The guilt of a party is not proved merely because the facts are consistent with his guilt. They must be inconsistent with his innocence. Huntt v. Commonwealth, 212 Va. 737 , 187 S.E.2d 183 (1972).

Only reasonable hypothesis flowing from all the evidence was that, at time he delivered check in payment of automobile, defendant acted both with intent to defraud and knowledge that account contained insufficient funds. Schrieberg v. Commonwealth, No. 1192-98-2 (Ct. of Appeals Feb. 29, 2000).

In defendant's prosecution for uttering bad checks, the Commonwealth was entitled to the rebuttable presumption under § 18.2-183 , to the effect that the return of a check by a drawee bank because of lack of funds constituted prima facie evidence of intent to defraud unless the maker paid the holder the amount due within five days of receiving written notice of dishonor, because defendant did not pay the amount due to the store within five days of the store's giving notice; thus, the Commonwealth presented prima facie evidence of defendant's intent to defraud when she cashed the checks at the store. The trier of fact was entitled to discount defendant's explanations and conclude that she had failed to rebut the presumption. Charles v. Commonwealth,, 2011 Va. App. LEXIS 130 (Apr. 19, 2011).

Evidence showing intent to defraud. - See Kite v. United States, 216 F.2d 802 (4th Cir. 1954).

Conviction did not violate due process. - Defendant's conviction of larceny by altering a bad check was not so totally devoid of evidentiary support as to violate due process. Alley v. Paderick, 373 F. Supp. 920 (W.D. Va. 1974).

Violation of section on federal reservation. - See Kite v. United States, 216 F.2d 802 (4th Cir. 1954).

Applied in Edwards v. Commonwealth, 227 Va. 349 , 315 S.E.2d 239 (1984); Wileman v. Commonwealth, 24 Va. App. 642, 484 S.E.2d 621 (1997).

§ 18.2-181.1. Issuance of bad checks.

It shall be a Class 6 felony for any person, within a period of 90 days, to issue two or more checks, drafts or orders for the payment of money in violation of § 18.2-181 that have an aggregate represented value of $1,000 or more and that (i) are drawn upon the same account of any bank, banking institution, trust company or other depository and (ii) are made payable to the same person, firm or corporation.

(1988, c. 496; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "90" for "ninety" and "that" for "which," and "$500" for "$200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more."

CASE NOTES

Elements of offense. - In order to sustain a conviction, the Commonwealth must establish that: (1) the defendant wrote two or more checks on the same bank account; (2) the checks were written to the same person, firm or corporation; (3) he knew when he wrote the checks that he did not have sufficient funds in his account to cover their payment; (4) he wrote the checks with the intent to defraud; (5) the checks were written within a 90 day period; (6) the aggregate value of the checks written to each person, firm or corporation exceeded $200; and (7) the defendant received goods or services for each check. Burnett v. Commonwealth, No. 0111-98-3 (Ct. of Appeals Jan. 5, 1999).

Evidence sufficient to support conviction. - Evidence was sufficient to show that the defendant knew, when he wrote checks, that his account did not have sufficient funds and that he intended to defraud two merchants where the merchants wrote to him regarding returned checks and giving him five days to pay, and the defendant wrote the checks at issue after his account had been closed by his bank. Burnett v. Commonwealth, No. 0111-98-3 (Ct. of Appeals Jan. 5, 1999).

§ 18.2-182. Issuing bad checks on behalf of business firm or corporation in payment of wages; penalty.

Any person who shall make, draw, or utter, or deliver any check, draft, or order for the payment of money, upon any bank, banking institution, trust company or other depository on behalf of any business firm or corporation, for the purpose of paying wages to any employee of such firm or corporation, or for the purpose of paying for any labor performed by any person for such firm or corporation, knowing, at the time of such making, drawing, uttering or delivering, that the account upon which such check, draft or order is drawn has not sufficient funds, or credit with, such bank, banking institution, trust company or other depository, for the payment of such check, draft or order, although no express representation is made in reference thereto, shall be guilty of a Class 1 misdemeanor; except that if this check, draft, or order has a represented value of $1,000 or more, such person shall be guilty of a Class 6 felony.

The word "credit," as used herein, shall be construed to mean any arrangement or understanding with the bank, banking institution, trust company, or other depository for the payment of such check, draft or order.

In addition to the criminal penalty set forth herein, such person shall be personally liable in any civil action brought upon such check, draft or order.

(Code 1950, § 6.1-116; 1966, c. 584; 1975, cc. 14, 15; 2005, c. 598; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to admissible evidence regarding identity of party presenting bad check, draft or order, see § 19.2-270.3 .

The 2005 amendments. - The 2005 amendment by c. 598, added "except that if this check, draft, or order has a represented value of 200 or more, such person shall be guilty of a Class 6 felony" at the end of the first paragraph.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" in first paragraph.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more" in the first paragraph.

Research References. - Virginia Forms (Matthew Bender). No. 9-406 Criminal Complaint (Bad Check), et seq.

Applied in Edwards v. Commonwealth, 227 Va. 349 , 315 S.E.2d 239 (1984).

§ 18.2-182.1. Issuing bad checks in payment of taxes.

Any person who shall make, draw, utter, or deliver two or more checks, drafts, or orders within a period of ninety days which have an aggregate represented value of $1,000 or more, for the payment of money upon any bank, banking institution, trust company, or other depository on behalf of any taxpayer for the payment of any state tax under § 58.1-486 or § 58.1-637 , knowing, at the time of such making, drawing, uttering, or delivering, that the account upon which such check, draft, or order is drawn has not sufficient funds or credit with such bank, banking institution, trust company, or other depository for the payment of such check, draft, or order, although no express representation is made in reference thereto, shall be guilty of a Class 1 misdemeanor.

The word "credit," as used herein, means any arrangement or understanding with the bank, banking institution, trust company, or other depository for the payment of such check, draft, or order.

(1992, c. 763.)

§ 18.2-183. Issuance of bad check prima facie evidence of intent and knowledge; notice by certified or registered mail.

In any prosecution or action under the preceding sections, the making or drawing or uttering or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit shall be prima facie evidence of intent to defraud or of knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company or other depository unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with interest, and protest fees (if any), within five days after receiving written notice that such check, draft, or order has not been paid to the holder thereof. Notice mailed by certified or registered mail, evidenced by return receipt, to the last known address of the maker or drawer shall be deemed sufficient and equivalent to notice having been received by the maker or drawer.

If such check, draft or order shows on its face a printed or written address, home, office, or otherwise, of the maker or drawer, then the foregoing notice, when sent by certified or registered mail to such address, with or without return receipt requested, shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not.

When a check is drawn on a bank in which the maker or drawer has no account, it shall be presumed that such check was issued with intent to defraud, and the five-day notice set forth above shall not be required in such case.

(Code 1950, § 6.1-117; 1966, c. 584; 1975, cc. 14, 15.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89.

CASE NOTES

This section defines a mere rule of evidence upon which the Commonwealth may rely in facilitating proof of the fraudulent intent of the drawer. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941); Rinkov v. Commonwealth, 213 Va. 307 , 191 S.E.2d 731 (1972); Alley v. Paderick, 373 F. Supp. 920 (W.D. Va. 1974); Patterson v. Commonwealth, 216 Va. 306 , 218 S.E.2d 435 (1975); Bray v. Commonwealth, 9 Va. App. 417, 388 S.E.2d 837 (1990).

And need not be charged in indictment. - Accused assigned as error the failure of the indictment to contain an allegation as to the five days' notice, mentioned in this section. It was held that this section, dealing only with a rule of evidence, is not an element of the crime and need not be charged in the indictment. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

And the Commonwealth may prosecute even though no notice of dishonor was ever given, but in such event the Commonwealth would be required to prove affirmatively the existence of a fraudulent intent in the mind of the drawer. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941); Alley v. Paderick, 373 F. Supp. 920 (W.D. Va. 1974).

Where petitioner was not notified pursuant to the provisions of this section, it was inapplicable to his case, and consequently, the Commonwealth could not avail itself of the statutory presumption and had to affirmatively establish petitioner's fraudulent intent. Alley v. Paderick, 373 F. Supp. 920 (W.D. Va. 1974).

The presumption is rebuttable. - Under this section, if the holder gives written notice of dishonor to the drawer, and payment is not made within five days therefrom, a presumption arises that the drawer uttered the check with fraudulent intent, but this presumption may be rebutted. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

This section creates a rebuttable presumption of the necessary intent and knowledge if a dishonored check is not paid within five days after giving of the notice specified in the statute. Huntt v. Commonwealth, 212 Va. 737 , 187 S.E.2d 183 (1972).

In finding defendant guilty of presenting bad checks, the trial court properly relied on the statutory rebuttable presumption from which it could find, but was not required to find, that defendant had the intent to defraud when he presented the worthless checks for payment to the store owner and properly imposed on the Commonwealth the ultimate burden of persuasion. Cox v. Commonwealth,, 2011 Va. App. LEXIS 273 (Aug. 23, 2011).

And does not arise where payee given notice of lack of funds. - Where one gives a check without funds in the bank to cover it, but informs the payee of such conditions, even if he had fraudulent intent in such transaction, it is not within the terms of this section, and there should be no prima facie presumption of an attempt to defraud. Turner v. Brenner, 138 Va. 232 , 121 S.E. 510 (1924).

Proof of either actual receipt of notice or date payee sent notice not required. - The statute does not require the Commonwealth to establish either actual receipt of the notice or the date the payee sent the notice; rather, the statute only requires proof that the notice was sent by certified mail and that the accused failed to repay the amount due within five days. Motsinger v. Commonwealth, No. 1406-98-3 (Ct. of Appeals Apr. 13, 1999).

Presumption applies where bank account was closed. - When defendant drew checks on banks at which his accounts had been closed, the statutory presumption of fraudulent intent in § 18.2-183 applied to him, even though the statute only spoke of such a presumption existing when a check was drawn on a bank at which the drawer had no account. The fact that § 18.2-184 specifically mentioned closed accounts did not mean that the legislature, in failing to mention closed accounts in § 18.2-183 , did not mean for the presumption in § 18.2-183 to apply when a check was drawn on a bank at which the drawer's account was closed because when provisions in one act were omitted from another act on the same subject, the omitted provisions were applied where the purposes of the two acts were consistent. Sykes v. Commonwealth, 42 Va. App. 581, 593 S.E.2d 545, 2004 Va. App. LEXIS 98 (2004).

Language of § 18.2-200.1 plainly means that a request for a return of money advanced on a construction project is sufficient notice if sent by certified mail, return receipt requested, without proof of actual receipt, unlike the notices required by the bad check law, former § 6.1-117, now codified at § 18.2-183 , Virginia Tort Claims Act, § 8.01-195.1 et seq., the Virginia Habitual Offenders Act, former § 46.2-355, repealed in 1999, and the Virginia Interstate Agreement on Detainers, art. III(b), found in § 53.1-210 . Holsapple v. Commonwealth, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39 (2004).

Evidence sufficient to invoke presumption. - Where the Commonwealth introduced two returned checks stamped "insufficient funds" as well as bank statements indicating that the checks were both presented and returned on two separate occasions, and it was shown that the payee notified defendant by certified mail that the bank dishonored the checks and that the payee had demanded payment within five days but received none, the evidence was sufficient to invoke the rebuttable presumption of this section. Bagheri v. Commonwealth, 12 Va. App. 1071, 408 S.E.2d 259 (1991).

Where the defendant admitted that she wrote a check upon a bank, and the evidence showed that the check was returned with the stamp "account closed," the evidence was sufficient to invoke the presumption created by statute that the check was issued with intent to defraud. Bratton v. Commonwealth, No. 1003-97-3 (Ct. of Appeals June 9, 1998).

Where the defendant failed to pay the amount of a check within five days after being notified that the check was not paid by the bank, the evidence was sufficient to invoke the presumption created by this section that she knew she had insufficient funds in her account when she wrote the check. Bratton v. Commonwealth, No. 1003-97-3 (Ct. of Appeals June 9, 1998).

In defendant's prosecution for uttering bad checks, the Commonwealth was entitled to the rebuttable presumption under § 18.2-183 , to the effect that the return of a check by a drawee bank because of lack of funds constituted prima facie evidence of intent to defraud unless the maker paid the holder the amount due within five days of receiving written notice of dishonor, because defendant did not pay the amount due to the store within five days of the store's giving notice; thus, the Commonwealth presented prima facie evidence of defendant's intent to defraud when she cashed the checks at the store. The trier of fact was entitled to discount defendant's explanations and conclude that she had failed to rebut the presumption. Charles v. Commonwealth,, 2011 Va. App. LEXIS 130 (Apr. 19, 2011).

Defendant's failure to overcome the rebuttable presumption. - Trial court could properly find from the evidence of defendant's passing a check that was returned for insufficient funds and defendant's bank statements showing that his account was overdrawn that defendant failed to rebut the presumption arising under § 18.2-183 that he wrote the check with the intent to defraud the hardware seller, knowing he did not have sufficient funds in his account to pay the check. Hartman v. Commonwealth, No. 1161-02-3, 2004 Va. App. LEXIS 70 (Ct. of Appeals Feb. 10, 2004).

Evidence did not raise presumption of fraudulent intent. - Evidence showing that defendant had received actual notice by telephone that her check had been returned for insufficient funds and had agreed to repay the amount owed was nothing more than an acknowledgment that she was indebted to the payee, and did not raise a presumption of fraudulent intent. Sylvestre v. Commonwealth, 10 Va. App. 253, 391 S.E.2d 336 (1990).

Evidence insufficient to raise prima facie presumption. - Where there was no evidence before the trial court to show why payment on returned checks was refused and no evidence that defendant had no account with the drawee bank, the Commonwealth could not rely on this section for prima facie evidence of intent. Harrison v. Commonwealth, 211 Va. 8 , 174 S.E.2d 783 (1970).

What constitutes payment of "amount due thereon." - Payments totaling $22.00 on a check drawn in the amount of $588.80 did not constitute the payment of "the amount due thereon" within the meaning of this section. Cook v. Commonwealth, 178 Va. 251 , 16 S.E.2d 635 (1941).

Section may not be used to prove fraudulent intent in bankruptcy proceeding. - A bankruptcy court may not use this section, which makes the uttering of a check without sufficient funds prima facie evidence of intent to defraud, to infer the existence of fraudulent intent in bankruptcy. Bankruptcy law is distinct from criminal law and state statutes do not affect the burdens of proof the parties bear in dischargeability proceedings. In a bankruptcy court the creditor must prove by clear and convincing evidence the debtor intended to defraud that creditor in order for a debt based upon that transaction to be determined nondischargeable. Aircon Distribs., Inc. v. Holt, 24 Bankr. 696 (Bankr. E.D. Va. 1982).

The purpose of requiring the notice to be sent by registered or certified mail, and evidenced by a receipt, is to have not only evidence of the required mailing to the defendant, but also evidence that the notice was either received in person by the defendant (as would be shown by his signature on the return receipt), or that the letter did in fact reach the last known address of the defendant and was there accepted by someone at that address. Rinkov v. Commonwealth, 213 Va. 307 , 191 S.E.2d 731 (1972).

Evidence sufficient to support conviction. - Petit larceny conviction under § 18.2-183 was supported by evidence that payee attempted numerous times, by phone and mail, to contact defendant with no response and that defendant made no efforts to repay the bad check until after she was served with a warrant, more than four months after the bad check was written. Vance v. Commonwealth,, 2007 Va. App. LEXIS 87 (Mar. 13, 2007).

Where the record reflected that defendant gave the bad checks to his mother to cash at her place of employment; defendant left Virginia shortly after presenting the checks for payment, leaving no forwarding address; and the store owner sent defendant, by certified mail, two letters notifying defendant the check were not paid and defendant thereafter did not pay the amount due within five days, as required by § 18.2-183 , the evidence was sufficient to support defendant's conviction for presenting two or more bad checks in return for cash. Cox v. Commonwealth,, 2011 Va. App. LEXIS 273 (Aug. 23, 2011).

§ 18.2-184. Presumption as to notation attached to check, draft or order.

In any prosecution or action under the preceding sections, any notation attached to or stamped upon a check, draft or order which is refused by the drawee because of lack of funds or credit, bearing the terms "not sufficient funds," "uncollected funds," "account closed," or "no account in this name," or words of similar import, shall be prima facie evidence that such notation is true and correct.

(Code 1950, § 6.1-117.1; 1970, c. 695; 1974, c. 322; 1975, cc. 14, 15.)

Law review. - For survey of recent legislation on finance - Bad checks, see 5 U. Rich. L. Rev. 194 (1970).

CASE NOTES

Evidence sufficient to invoke presumption. - Where the defendant admitted that she wrote a check upon a bank, and the evidence showed that the check was returned with the stamp "account closed," the evidence was sufficient to invoke the presumption created by this section. Bratton v. Commonwealth, No. 1003-97-3 (Ct. of Appeals June 9, 1998).

When defendant drew checks on banks at which his accounts had been closed, the statutory presumption of fraudulent intent in § 18.2-183 applied to him, even though the statute only spoke of such a presumption existing when a check was drawn on a bank at which the drawer had no account. The fact that § 18.2-184 specifically mentioned closed accounts did not mean that the legislature, in failing to mention closed accounts in § 18.2-183 , did not mean for the presumption to apply when a check was drawn on a bank at which the drawer's account was closed because when provisions in one act were omitted from another act on the same subject, the omitted provisions were applied where the purposes of the two acts were consistent. Sykes v. Commonwealth, 42 Va. App. 581, 593 S.E.2d 545, 2004 Va. App. LEXIS 98 (2004).

§ 18.2-185. Evidence and presumptions in malicious prosecution actions after issuance of bad check.

In any civil action growing out of an arrest under § 18.2-181 or § 18.2-182 , no evidence of statements or representations as to the status of the check, draft, order or deposit involved, or of any collateral agreement with reference to the check, draft, or order, shall be admissible unless such statements, or representations, or collateral agreement, be written upon the instrument at the time it is given by the drawer.

If payment of any check, draft, or order for the payment of money be refused by the bank, banking institution, trust company or other depository upon which such instrument is drawn, and the person who drew or uttered such instrument be arrested or prosecuted under the provisions of § 18.2-181 or § 18.2-182 , for failure or refusal to pay such instrument, the one who arrested or caused such person to be arrested and prosecuted, or either, shall be conclusively deemed to have acted with reasonable or probable cause in any suit for damages that may be brought by the person who drew or uttered such instrument, if the one who arrested or caused such person to be arrested and prosecuted, or either, shall have, before doing so, presented or caused such instrument to be presented to the depository on which it was drawn where it was refused, and then waited five days after notice, as provided in § 18.2-183 , without the amount due under the provisions of such instrument being paid.

(Code 1950, § 6.1-118; 1966, c. 584; 1975, cc. 14, 15.)

Research References. - Virginia Forms (Matthew Bender). No. 1-704 Complaint for Malicious Prosecution.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89; 12A M.J. Larceny, § 2.

Article 5. False Representations to Obtain Property or Credit.

§ 18.2-186. False statements to obtain property or credit.

  1. A person shall be guilty of a Class 1 misdemeanor if he makes, causes to be made or conspires to make directly, indirectly or through an agency, any materially false statement in writing, knowing it to be false and intending that it be relied upon, concerning the financial condition or means or ability to pay of himself, or of any other person for whom he is acting, or any firm or corporation in which he is interested or for which he is acting, for the purpose of procuring, for his own benefit or for the benefit of such person, firm or corporation, the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the discount of an account receivable, or the making, acceptance, discount, sale or endorsement of a bill of exchange or promissory note.
  2. Any person who knows that a false statement has been made in writing concerning the financial condition or ability to pay of himself or of any person for whom he is acting, or any firm or corporation in which he is interested or for which he is acting and who, with intent to defraud, procures, upon the faith thereof, for his own benefit, or for the benefit of the person, firm or corporation in which he is interested or for which he is acting, any such delivery, payment, loan, credit, extension, discount making, acceptance, sale or endorsement, shall, if the value of the thing or the amount of the loan, credit or benefit obtained is $1,000 or more, be guilty of grand larceny or, if the value is less than $1,000, be guilty of petit larceny.
  3. Venue for the trial of any person charged with an offense under this section may be in the county or city in which (i) any act was performed in furtherance of the offense, or (ii) the person charged with the offense resided at the time of the offense.
  4. As used in this section, "in writing" shall include information transmitted by computer, facsimile, e-mail, Internet, or any other electronic medium, and shall not include information transmitted by any such medium by voice transmission.

    (Code 1950, § 18.1-119; 1960, c. 358; 1966, c. 247; 1975, cc. 14, 15; 1981, c. 197; 1991, c. 546; 2006, c. 321; 2007, c. 518; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2006 amendments. - The 2006 amendment by c. 321 added subsection C.

The 2007 amendments. - The 2007 amendment by c. 518, in subsection B, inserted "in which he is interested or for which he is acting" preceding "any such delivery," deleted "and fails to pay for such loan, credit or benefit so procured" following "sale or endorsement" and substituted "petit larceny" for "a Class 1 misdemeanor"; and added subsection D.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in subsection B.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in subsection B.

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 4; 8B M.J. Fraud & Deceit, § 71.

CASE NOTES

False writing supports conviction. - Where the indictment charged appellant with unlawfully and feloniously procuring property or credit of the value of $3500, knowing that such benefit was obtained on the basis of a false statement in writing from the Bank of Southside Virginia could support a conviction under this section. Mueller v. Commonwealth, 15 Va. App. 649, 426 S.E.2d 339 (1993).

Evidence sufficient. - Appellant applied for credit with a car dealership and supplied information supplied which was entirely fraudulent, consisting of false addresses, false telephone numbers, a non-existent insurance policy and a falsified identification card, and appellant signed a temporary registration certificate and took possession of the car, driving it off the lot. She failed to pay for the sale of the car or the extension of credit despite having acquired possession and title to the car. Accordingly, there was sufficient evidence of a failure to pay to sustain appellant's conviction under this section. Marsh v. Commonwealth, 32 Va. App. 669, 530 S.E.2d 425, 2000 Va. App. LEXIS 404 (2000).

§ 18.2-186.1.

Repealed by Acts 1981, c. 255.

Cross references. - For present provisions covering similar subject matter to the repealed section, see § 32.1-310 et seq.

§ 18.2-186.2. False statements or failure to disclose material facts in order to obtain aid or benefits under any local, state or federal housing assistance program.

Any person who (i) knowingly makes or causes to be made either directly or indirectly or through any agent or agency, any false statement in writing with the intent that it shall be relied upon, or fails to disclose any material fact concerning the financial means or ability to pay of himself or of any other person for whom he is acting, for the purpose of procuring aid and benefits available under any local, state or federally funded housing assistance program, or (ii) knowingly fails to disclose a change in circumstances in order to obtain or continue to receive under any such program aid or benefits to which he is not entitled or who knowingly aids and abets another person in the commission of any such act is guilty of a Class 1 misdemeanor.

(1980, c. 303.)

§ 18.2-186.3. Identity theft; penalty; restitution; victim assistance.

  1. It shall be unlawful for any person, without the authorization or permission of the person or persons who are the subjects of the identifying information, with the intent to defraud, for his own use or the use of a third person, to:
    1. Obtain, record, or access identifying information which is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;
    2. Obtain money, credit, loans, goods, or services through the use of identifying information of such other person;
    3. Obtain identification documents in such other person's name; or
    4. Obtain, record, or access identifying information while impersonating a law-enforcement officer or an official of the government of the Commonwealth.
  2. It shall be unlawful for any person without the authorization or permission of the person who is the subject of the identifying information, with the intent to sell or distribute the information to another to:
    1. Fraudulently obtain, record, or access identifying information that is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;
    2. Obtain money, credit, loans, goods, or services through the use of identifying information of such other person;
    3. Obtain identification documents in such other person's name; or
    4. Obtain, record, or access identifying information while impersonating a law-enforcement officer or an official of the Commonwealth.

      B1. It shall be unlawful for any person to use identification documents or identifying information of another person, whether that person is dead or alive, or of a false or fictitious person, to avoid summons, arrest, prosecution, or to impede a criminal investigation.

  3. As used in this section, "identifying information" shall include but not be limited to: (i) name; (ii) date of birth; (iii) social security number; (iv) driver's license number; (v) bank account numbers; (vi) credit or debit card numbers; (vii) personal identification numbers (PIN); (viii) electronic identification codes; (ix) automated or electronic signatures; (x) biometric data; (xi) fingerprints; (xii) passwords; or (xiii) any other numbers or information that can be used to access a person's financial resources, obtain identification, act as identification, or obtain money, credit, loans, goods, or services.
  4. Violations of this section shall be punishable as a Class 1 misdemeanor. Any violation resulting in financial loss of $1,000 or more shall be punishable as a Class 6 felony. Any second or subsequent conviction shall be punishable as a Class 6 felony. Any violation of subsection B where five or more persons' identifying information has been obtained, recorded, or accessed in the same transaction or occurrence shall be punishable as a Class 5 felony. Any violation of subsection B where 50 or more persons' identifying information has been obtained, recorded, or accessed in the same transaction or occurrence shall be punishable as a Class 4 felony. Any violation resulting in the arrest and detention of the person whose identification documents or identifying information were used to avoid summons, arrest, prosecution, or to impede a criminal investigation shall be punishable as a Class 5 felony. In any proceeding brought pursuant to this section, the crime shall be considered to have been committed in any locality where the person whose identifying information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in such locality.
  5. Upon conviction, in addition to any other punishment, a person found guilty of this offense shall be ordered by the court to make restitution as the court deems appropriate to any person whose identifying information was appropriated or to the estate of such person. Such restitution may include the person's or his estate's actual expenses associated with correcting inaccuracies or errors in his credit report or other identifying information.
  6. Upon the request of a person whose identifying information was appropriated, the Attorney General may provide assistance to the victim in obtaining information necessary to correct inaccuracies or errors in his credit report or other identifying information; however, no legal representation shall be afforded such person.

    (2000, c. 349; 2001, c. 423; 2003, cc. 847, 914, 918; 2004, c. 450; 2006, cc. 455, 496; 2007, c. 441; 2009, cc. 314, 380; 2013, cc. 420, 466; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to fraudulent notification of prizes and larceny of lottery tickets, see § 58.1-4018.1 .

The 2001 amendments. - The 2001 amendment by c. 423 added the last sentence in subsection E; and added subsection F.

The 2003 amendments. - The 2003 amendment by c. 847, in subsection B, inserted "person, whether that person is dead or alive," and in subsection E, inserted "or to his estate" and "or his estate's."

The 2003 amendments by cc. 914 and 918 are identical, and substituted "or persons who are the subjects" for "person who is the subject" in the introductory language of subsection A; deleted "or" at the end of subdivisions A 1 and A 2; inserted "or" at the end of subdivision A 3; added subdivision A 4; rewrote subsection B, which formerly read: "It shall be unlawful for any person to use identification documents or identifying information of another to avoid summons, arrest, prosecution, or to impede a criminal investigation;" and in subsection E, inserted "or to the estate of such person" at the end of the first sentence, and inserted "or his estate's" in the last sentence.

The 2004 amendments. - The 2004 amendment by c. 450 inserted subsection B1 designation at the beginning of the former last paragraph in subsection B and inserted "or of a false or fictitious person" near the middle in subsection B1.

The 2006 amendments. - The 2006 amendments by cc. 455 and 496 are identical, and added the fifth and sixth sentences in subsection D.

The 2007 amendments. - The 2007 amendment by c. 441 in subsection B1, transferred "whether that person is dead or alive," from its former placement following "or fictitious person."

The 2009 amendments. - The 2009 amendments by cc. 314 and 380 are identical, and inserted "money, credit, loans" in subdivisions A2 and B2 and subsection C.

The 2013 amendments. - The 2013 amendments by cc. 420 and 466, in subsection D, substituted "Class 5 felony" for "Class 6 felony" at the end of the fourth and sixth sentences, and "Class 4 felony" for "Class 5 felony" at the end of the fifth sentence.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500 or more" for "greater than $200" in subsection D.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000 or more" for "$500 or more" in the second sentence of subsection D.

Law review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Extortion, § 1; 8B M.J. Fraud & Deceit, § 71; 9B M.J. Indictments, Infotmations & Presentments, § 19.

CASE NOTES

Venue improper. - Based on the record, there was insufficient evidence to demonstrate a strong presumption that any part of obtaining, accessing or recording the female victim's identifying information with the intent to defraud occurred in Arlington County; there was no evidence showing where the laptop belonging to defendant was located when accessed, who accessed it, or who remagged the credit card numbers, specifically the female victim's number, onto the credit cards. The lack of such evidence made it impossible to sustain a strong presumption that any part of the crime of identity theft under § 18.2-186.3 occurred in Arlington County, and therefore, venue in that county was improper under § 18.2-198.1 . Gheorghiu v. Commonwealth, 280 Va. 678 , 701 S.E.2d 407, 2010 Va. LEXIS 268 (2010).

Venue not proven. - Commonwealth did not prove venue because (1) the evidence did not demonstrate clearly that the court took judicial notice that the crime occurred in the relevant venue, and (2) the evidence was insufficient to prove venue as a matter of law, since the Commonwealth solely relied on the fact that its only witness was employed by the city were the crime allegedly occurred, which was insufficient as a matter of law, and the officer never identified that city as the crime's location. Sharp v. Commonwealth,, 2016 Va. App. LEXIS 69 (Mar. 8, 2016).

Double jeopardy. - Although appellant accurately noted that he committed the respective crimes in a similar manner, this fact did not render the convictions improper; under the Blockburger test, offenses charged were examined in the abstract, without referring to the particular facts of the case under review. Viewed in the abstract, identity theft and credit card fraud were separate offenses punishable in a single criminal proceeding; accordingly, appellant's convictions for identity theft and for credit card fraud were proper and did not violate double jeopardy protections. Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50, 2009 Va. App. LEXIS 424 (2009), aff'd in part, rev'd in part, 280 Va. 678 , 701 S.E.2d 407 (2010).

Defendant was properly convicted of felony identity theft, second offense and falsely identifying himself to a law-enforcement officer because while the statutes were similar in nature, they did not violate defendant's double jeopardy rights inasmuch as one required the use of "identification documents or identifying information," such as name and date of birth, with the intent "to avoid summons, arrest, prosecution, or to impede a criminal investigation" and the other required only the intent to deceive a law-enforcement officer as to one's "real identity" after having been detained and asked to identify oneself. Garcia v. Commonwealth, No. 0831-17-2, 2018 Va. App. LEXIS 162 (June 19, 2018).

Attempting to "use" victim's identifying information to obtain money. - Trial court properly convicted defendant of attempted identity theft because she presented a check that bore the victim's name, account number, and a forged signature, without the account number, name, and forged signature, the check would not have been useful to obtain money, and when defendant presented the check to be cashed, she attempted to "use" the pieces of the victim's identifying information to obtain money, which was the plain, obvious, and rational meaning of the statute. Taylor v. Commonwealth, No. 1855-17-1, 2018 Va. App. LEXIS 333 (Dec. 4, 2018), aff'd, 837 S.E.2d 674, 2020 Va. LEXIS 4 (Va. 2020).

Sufficient evidence supported defendant's identity theft conviction because, when defendant tried to cash a stolen check using defendant's own identification, this was an unauthorized use of the victim's identifying information in the form of the victim's name and bank account number with an intent to defraud to obtain money, even though defendant did not attempt to represent defendant as the victim. Taylor v. Commonwealth, 298 Va. 336 , 837 S.E.2d 674, 2020 Va. LEXIS 4 (Feb. 6, 2020).

Giving false identity information during traffic stop. - After defendant gave an officer false identity information during a vehicle stop, the power to arrest defendant for providing false identity information under § 18.2-186.3 authorized the officer to search the vehicle because it was reasonable to believe that the vehicle might contain evidence of that crime, specifically defendant's true identity and driving status. Armstead v. Commonwealth, 56 Va. App. 569, 695 S.E.2d 561, 2010 Va. App. LEXIS 300 (2010).

Evidence of loss. - Because payments for correcting a credit report or other identifying information were subject to an award of restitution, such payments could be used to establish a financial loss resulting from the violation of this section, and thus, evidence that the victim paid, without reimbursement, money for credit monitoring was sufficient to support the factfinder's determination that defendant's illegal conduct resulted in a financial loss of greater than $200. Salazar v. Commonwealth, 66 Va. App. 569, 789 S.E.2d 779 (2016).

Sufficient evidence of intent. - Sufficient evidence showed defendant's intent to use a false name to avoid summons, arrest, or prosecution, or impede a criminal investigation, because defendant's past conduct with the same officer, use of the same false name, and prior conviction for the same crime showed defendant intended to impede a criminal investigation. Sharp v. Commonwealth,, 2016 Va. App. LEXIS 69 (Mar. 8, 2016).

Undisputed fact that defendant intentionally filled out and submitted a loan application using a social security number that was not his was sufficient to allow a reasonable factfinder to conclude, beyond a reasonable doubt, that defendant had the intent to defraud the lender when he used the victim's social security number on the loan application and thus, committed identity theft. Salazar v. Commonwealth, 66 Va. App. 569, 789 S.E.2d 779 (2016).

§ 18.2-186.3:1. Identity fraud; consumer reporting agencies; police reports.

  1. A consumer may report a case of identity theft to the law-enforcement agency in the jurisdiction where he resides. If a consumer, as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., submits to a consumer reporting agency, as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., a copy of a valid police report, the consumer reporting agency shall, within 30 days of receipt thereof, block the reporting of any information that the consumer alleges appears on his credit report, as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., as a result of a violation of § 18.2-186.3 . The consumer reporting agency shall promptly notify the furnisher of the information that a police report has been filed, that a block has been requested, and the effective date of the block.
  2. Consumer reporting agencies may decline to block or may rescind any block of consumer information if, in the exercise of good faith and reasonable judgment, the consumer reporting agency believes that: (i) the information was blocked due to a misrepresentation of a material fact by the consumer; (ii) the information was blocked due to fraud, in which the consumer participated, or of which the consumer had knowledge, and which may for purposes of this section be demonstrated by circumstantial evidence; (iii) the consumer agrees that portions of the blocked information or all of it were blocked in error; (iv) the consumer knowingly obtained or should have known that he obtained possession of goods, services, or moneys as a result of the blocked transaction or transactions; or (v) the consumer reporting agency, in the exercise of good faith and reasonable judgment, has substantial reason based on specific, verifiable facts to doubt the authenticity of the consumer's report of a violation of § 18.2-186.3 .
  3. If blocked information is unblocked pursuant to this section, the consumer shall be notified in the same manner as consumers are notified of the reinsertion of information pursuant to the Fair Credit Reporting Act at 15 U.S.C. § 1681i, as amended. The prior presence of the blocked information in the consumer reporting agency's file on the consumer is not evidence of whether the consumer knew or should have known that he obtained possession of any goods, services, or moneys.
  4. A consumer reporting agency shall accept the consumer's version of the disputed information and correct the disputed item when the consumer submits to the consumer reporting agency documentation obtained from the source of the item in dispute or from public records confirming that the report was inaccurate or incomplete, unless the consumer reporting agency, in the exercise of good faith and reasonable judgment, has substantial reason based on specific, verifiable facts to doubt the authenticity of the documentation submitted and notifies the consumer in writing of that decision, explaining its reasons for unblocking the information and setting forth the specific, verifiable facts on which the decision is based.
  5. A consumer reporting agency shall delete from a consumer credit report inquiries for credit reports based upon credit requests that the consumer reporting agency verifies were initiated as a result of a violation of § 18.2-186.3 .
  6. The provisions of this section do not apply to (i) a consumer reporting agency that acts as a reseller of credit information by assembling and merging information contained in the databases of other consumer reporting agencies, and that does not maintain a permanent database of credit information from which new consumer credit reports are produced, (ii) a check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers, or similar payment methods, or (iii) a demand deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, automatic teller machine abuse or similar negative information regarding a consumer to inquiring banks or other financial institutions for use only in reviewing a consumer request for a demand deposit account at the inquiring bank or financial institution.

    (2003, cc. 914, 918; 2006, c. 298.)

Cross references. - As to security freezes for protected consumers, see § 59.1-444.3

The 2006 amendments. - The 2006 amendment by c. 298 inserted the first sentence in subsection A.

§ 18.2-186.4. Use of a person's identity with the intent to coerce, intimidate, or harass; penalty.

It shall be unlawful for any person, with the intent to coerce, intimidate, or harass another person, to publish the person's name or photograph along with identifying information as defined in clauses (iii) through (ix), or clause (xii) of subsection C of § 18.2-186.3 , or identification of the person's primary residence address. Any person who violates this section is guilty of a Class 1 misdemeanor.

Any person who violates this section knowing or having reason to know that person is a law-enforcement officer, as defined in § 9.1-101 , is guilty of a Class 6 felony. The sentence shall include a mandatory minimum term of confinement of six months.

(2001, cc. 775, 782; 2007, c. 736; 2010, c. 767.)

The 2007 amendments. - The 2007 amendment by c. 736 inserted "including identification of the person's primary residence address" at the end of the first sentence in the first paragraph; and added the second paragraph.

The 2010 amendments. - The 2010 amendment by c. 767 substituted "or identification of the person's primary residence" for "including identification of the person's primary residence."

§ 18.2-186.4:1. Internet publication of personal information of certain public officials.

  1. The Commonwealth shall not publish on the Internet the personal information of any public official if a court has, pursuant to subsection B, ordered that the official's personal information is prohibited from publication and the official has made a demand in writing to the Commonwealth, accompanied by the order of the court, that the Commonwealth not publish such information.
  2. Any public official may petition a circuit court for an order prohibiting the publication on the Internet, by the Commonwealth, of the official's personal information. The petition shall set forth the specific reasons that the official seeks the order. The court shall issue such an order only if it finds that (i) there exists a threat to the official or a person who resides with him that would result from publication of the information or (ii) the official has demonstrated a reasonable fear of a risk to his safety or the safety of someone who resides with him that would result from publication of the information on the Internet.
  3. If the Commonwealth publishes the public official's personal information on the Internet prior to receipt of a written demand by the official under subsection A, it shall remove the information from publication on the Internet within 48 hours of receipt of the written demand.
  4. A written demand made by any public official pursuant to this section shall be effective for four years as follows:
    1. For a law-enforcement officer, if the officer remains continuously employed as a law-enforcement officer throughout the four-year period;
    2. For a federal or state judge or justice, if such public official continuously serves throughout the four-year period; and
    3. For an attorney for the Commonwealth, if such public official continuously serves throughout the four-year period.
  5. For purposes of this section: "Commonwealth" means any agency or political subdivision of the Commonwealth of Virginia. "Law-enforcement officer" means the same as that term is defined in § 9.1-101 , 5 U.S.C. § 8331(20), excluding officers whose duties relate to detention as defined in 5 U.S.C. § 8331(20), and any other federal officer or agent who is credentialed with the authority to enforce federal law. "Personal information" means home address, home telephone numbers, personal cell phone numbers, or personal email address. "Publication" and "publishes" means intentionally communicating personal information to, or otherwise making personal information available to, and accessible by, the general public through the Internet or other online service. "Public official" means any state or federal judge or justice, law-enforcement officer, or attorney for the Commonwealth.
  6. No provision of this section shall apply to lists of registered voters and persons who voted, voter registration records, or lists of absentee voters prepared or provided under Title 24.2.

    (2010, c. 767; 2012, c. 143; 2014, c. 170.)

The 2012 amendments. - The 2012 amendment by c. 143 rewrote the section.

The 2014 amendments. - The 2014 amendment by c. 170 added subdivision D 3; and in the definition of "Public official" deleted "and any" following "justice" and inserted "or attorney for the Commonwealth"; and made minor stylistic changes.

§ 18.2-186.5. Expungement of false identity information from police and court records; Identity Theft Passport.

  1. Any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification may file a petition with the court for relief pursuant to § 19.2-392.2 . A person who has petitioned the court pursuant to § 19.2-392.2 as a result of a violation of § 18.2-186.3 , may submit to the Attorney General a certified copy of a court order obtained pursuant to § 19.2-392.2 . Upon receipt by the Attorney General of a certified copy of the court order and upon request by such person, the Office of the Attorney General, in cooperation with the State Police, may issue an "Identity Theft Passport" stating that such an order has been submitted. The Office of the Attorney General shall provide access to identity theft information to (i) criminal justice agencies and (ii) individuals who have submitted a court order pursuant to this subsection.
  2. Any person whose name or other identification has been used without his consent or authorization by another person may file with the Attorney General a copy of a police report showing that he has reported to a law-enforcement agency that his name or other identification has been used without his consent or authorization by another person. Upon receipt by the Attorney General of a copy of the police report and upon request by such person, the Office of the Attorney General, in cooperation with the State Police, may issue an Identity Theft Passport stating that such a police report has been submitted. The Office of the Attorney General shall provide access to identity theft information to (i) criminal justice agencies and (ii) individuals who have submitted a copy of a police report pursuant to this subsection.
  3. When the Office of the Attorney General issues an Identity Theft Passport, it shall transmit a record of the issuance of the passport, and indicate under which subsection the passport was issued, to the Department of Motor Vehicles. The Department shall note on the individual's driver abstract that a court order was obtained pursuant to § 19.2-392.2 or a police report was filed and that an Identity Theft Passport has been issued. The provisions of § 2.2-3808 shall not apply to this section. (2003, cc. 914, 918; 2004, c. 450; 2006, c. 298; 2011, c. 619; 2018, c. 577.)

Cross references. - As to security freezes for protected consumers, see § 59.1-444.3 .

The 2004 amendments. - The 2004 amendment by c. 450 added the last two sentences in subsection A.

The 2006 amendments. - The 2006 amendment by c. 298, in the third sentence, inserted "Upon receipt by the Attorney General of a certified copy of the court order and upon request by such person" and substituted "may" for "shall," and in the fourth sentence, substituted "may" for "shall" and added the clause (i) and (ii) designators.

The 2011 amendments. - The 2011 amendment by c. 619 substituted "may issue" for "shall issue" in the third sentence and added the last sentence.

The 2018 amendments. - The 2018 amendment by c. 577, redesignated existing provisions as subsections A and C; added subsection B; and in subsection C, inserted "and indicate under which subsection the passport was issued" in the first sentence, and inserted "or a police report was filed" in the second sentence; and made a stylistic change.

§ 18.2-186.6. Breach of personal information notification.

  1. As used in this section:

    "Breach of the security of the system" means the unauthorized access and acquisition of unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained by an individual or entity as part of a database of personal information regarding multiple individuals and that causes, or the individual or entity reasonably believes has caused, or will cause, identity theft or other fraud to any resident of the Commonwealth. Good faith acquisition of personal information by an employee or agent of an individual or entity for the purposes of the individual or entity is not a breach of the security of the system, provided that the personal information is not used for a purpose other than a lawful purpose of the individual or entity or subject to further unauthorized disclosure.

    "Encrypted" means the transformation of data through the use of an algorithmic process into a form in which there is a low probability of assigning meaning without the use of a confidential process or key, or the securing of the information by another method that renders the data elements unreadable or unusable.

    "Entity" includes corporations, business trusts, estates, partnerships, limited partnerships, limited liability partnerships, limited liability companies, associations, organizations, joint ventures, governments, governmental subdivisions, agencies, or instrumentalities or any other legal entity, whether for profit or not for profit.

    "Financial institution" has the meaning given that term in 15 U.S.C. § 6809(3).

    "Individual" means a natural person.

    "Notice" means:

    1. Written notice to the last known postal address in the records of the individual or entity;
    2. Telephone notice;
    3. Electronic notice; or
    4. Substitute notice, if the individual or the entity required to provide notice demonstrates that the cost of providing notice will exceed $50,000, the affected class of Virginia residents to be notified exceeds 100,000 residents, or the individual or the entity does not have sufficient contact information or consent to provide notice as described in subdivisions 1, 2, or 3 of this definition. Substitute notice consists of all of the following:
      1. E-mail notice if the individual or the entity has e-mail addresses for the members of the affected class of residents;
      2. Conspicuous posting of the notice on the website of the individual or the entity if the individual or the entity maintains a website; and
      3. Notice to major statewide media.

        Notice required by this section shall not be considered a debt communication as defined by the Fair Debt Collection Practices Act in 15 U.S.C. § 1692a.

        Notice required by this section shall include a description of the following:

        1. The incident in general terms;
        2. The type of personal information that was subject to the unauthorized access and acquisition;
        3. The general acts of the individual or entity to protect the personal information from further unauthorized access;
        4. A telephone number that the person may call for further information and assistance, if one exists; and
        5. Advice that directs the person to remain vigilant by reviewing account statements and monitoring free credit reports.

          "Personal information" means the first name or first initial and last name in combination with and linked to any one or more of the following data elements that relate to a resident of the Commonwealth, when the data elements are neither encrypted nor redacted:

          1. Social security number;

          2. Driver's license number or state identification card number issued in lieu of a driver's license number;

          3. Financial account number, or credit card or debit card number, in combination with any required security code, access code, or password that would permit access to a resident's financial accounts;

          4. Passport number; or

    5. Military identification number.

      The term does not include information that is lawfully obtained from publicly available information, or from federal, state, or local government records lawfully made available to the general public.

      "Redact" means alteration or truncation of data such that no more than the following are accessible as part of the personal information:

      1. Five digits of a social security number; or

      2. The last four digits of a driver's license number, state identification card number, or account number.

  2. If unencrypted or unredacted personal information was or is reasonably believed to have been accessed and acquired by an unauthorized person and causes, or the individual or entity reasonably believes has caused or will cause, identity theft or another fraud to any resident of the Commonwealth, an individual or entity that owns or licenses computerized data that includes personal information shall disclose any breach of the security of the system following discovery or notification of the breach of the security of the system to the Office of the Attorney General and any affected resident of the Commonwealth without unreasonable delay. Notice required by this section may be reasonably delayed to allow the individual or entity to determine the scope of the breach of the security of the system and restore the reasonable integrity of the system. Notice required by this section may be delayed if, after the individual or entity notifies a law-enforcement agency, the law-enforcement agency determines and advises the individual or entity that the notice will impede a criminal or civil investigation, or homeland or national security. Notice shall be made without unreasonable delay after the law-enforcement agency determines that the notification will no longer impede the investigation or jeopardize national or homeland security.
  3. An individual or entity shall disclose the breach of the security of the system if encrypted information is accessed and acquired in an unencrypted form, or if the security breach involves a person with access to the encryption key and the individual or entity reasonably believes that such a breach has caused or will cause identity theft or other fraud to any resident of the Commonwealth.
  4. An individual or entity that maintains computerized data that includes personal information that the individual or entity does not own or license shall notify the owner or licensee of the information of any breach of the security of the system without unreasonable delay following discovery of the breach of the security of the system, if the personal information was accessed and acquired by an unauthorized person or the individual or entity reasonably believes the personal information was accessed and acquired by an unauthorized person.
  5. In the event an individual or entity provides notice to more than 1,000 persons at one time pursuant to this section, the individual or entity shall notify, without unreasonable delay, the Office of the Attorney General and all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis, as defined in 15 U.S.C. § 1681a (p), of the timing, distribution, and content of the notice.
  6. An entity that maintains its own notification procedures as part of an information privacy or security policy for the treatment of personal information that are consistent with the timing requirements of this section shall be deemed to be in compliance with the notification requirements of this section if it notifies residents of the Commonwealth in accordance with its procedures in the event of a breach of the security of the system.
  7. An entity that is subject to Title V of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) and maintains procedures for notification of a breach of the security of the system in accordance with the provision of that Act and any rules, regulations, or guidelines promulgated thereto shall be deemed to be in compliance with this section.
  8. An entity that complies with the notification requirements or procedures pursuant to the rules, regulations, procedures, or guidelines established by the entity's primary or functional state or federal regulator shall be in compliance with this section.
  9. Except as provided by subsections J and K, pursuant to the enforcement duties and powers of the Office of the Attorney General, the Attorney General may bring an action to address violations of this section. The Office of the Attorney General may impose a civil penalty not to exceed $150,000 per breach of the security of the system or a series of breaches of a similar nature that are discovered in a single investigation. Nothing in this section shall limit an individual from recovering direct economic damages from a violation of this section.
  10. A violation of this section by a state-chartered or licensed financial institution shall be enforceable exclusively by the financial institution's primary state regulator.
  11. Nothing in this section shall apply to an individual or entity regulated by the State Corporation Commission's Bureau of Insurance.
  12. The provisions of this section shall not apply to criminal intelligence systems subject to the restrictions of 28 C.F.R. Part 23 that are maintained by law-enforcement agencies of the Commonwealth and the organized Criminal Gang File of the Virginia Criminal Information Network (VCIN), established pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52.
  13. Notwithstanding any other provision of this section, any employer or payroll service provider that owns or licenses computerized data relating to income tax withheld pursuant to Article 16 (§ 58.1-460 et seq.) of Chapter 3 of Title 58.1 shall notify the Office of the Attorney General without unreasonable delay after the discovery or notification of unauthorized access and acquisition of unencrypted and unredacted computerized data containing a taxpayer identification number in combination with the income tax withheld for that taxpayer that compromises the confidentiality of such data and that creates a reasonable belief that an unencrypted and unredacted version of such information was accessed and acquired by an unauthorized person, and causes, or the employer or payroll provider reasonably believes has caused or will cause, identity theft or other fraud. With respect to employers, this subsection applies only to information regarding the employer's employees, and does not apply to information regarding the employer's customers or other non-employees. Such employer or payroll service provider shall provide the Office of the Attorney General with the name and federal employer identification number of the employer as defined in § 58.1-460 that may be affected by the compromise in confidentiality. Upon receipt of such notice, the Office of the Attorney General shall notify the Department of Taxation of the compromise in confidentiality. The notification required under this subsection that does not otherwise require notification under this section shall not be subject to any other notification, requirement, exemption, or penalty contained in this section. (2008, cc. 566, 801; 2017, cc. 419, 427; 2019, c. 484; 2020, c. 264.)

Cross references. - As to protection of students' personally identifiable information, see § 22.1-287.02.

Editor's note. - At the direction of the Virginia Code Commission, in subsection E, "15 U.S.C. § 1681a(p)" was substituted for "15 U.S.C. § 1681(a)(p)."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 282 X 1, effective for the biennium ending June 30, 2022, provides: "Notwithstanding any other provision of law, any employer or payroll service provider that owns or licenses computerized data relating to income tax withheld pursuant to Article 16 ( § 58.1-460 et seq.) of Chapter 3 of Title 58.1 shall notify the Office of the Attorney General without unreasonable delay after the discovery or notification of unauthorized access and acquisition of unencrypted and unredacted computerized data containing a taxpayer identification number in combination with the income tax withheld for that taxpayer that compromises the confidentiality of such data and that creates a reasonable belief that an unencrypted and unredacted version of such information was accessed and acquired by an unauthorized person, and causes, or the employer or payroll provider reasonably believes has caused or will cause, identity theft or other fraud. With respect to employers, this requirement applies only to information regarding the employer's employees, and does not apply to information regarding the employer's customers or other non-employees.

"Such employer or payroll service provider shall provide the Office of the Attorney General with the name and federal employer identification number of the employer as defined in § 58.1-460 that may be affected by the compromise in confidentiality. Upon receipt of such notice, the Office of the Attorney General shall notify the Department of Taxation of the compromise in confidentiality. The notification required under this provision that does not otherwise require notification under subsections A through L of § 18.2-186.6 , Code of Virginia, shall not be subject to any other notification, requirement, exemption, or penalty contained in that section."

The 2017 amendments. - The 2017 amendments by cc. 419 and 427 are identical, and added subsection M.

The 2019 amendments. - The 2019 amendment by c. 484, in subsection A, added subdivisions 4 and 5 in the definition for "Personal information" and made related changes.

The 2020 amendments. - The 2020 amendment by c. 264 rewrote subsection K, which read: "A violation of this section by an individual or entity regulated by the State Corporation Commission's Bureau of Insurance shall be enforced exclusively by the State Corporation Commission."

Law review. - See note, "Shifting Data Breach Liability: A Congressional Approach," see 57 Wm. & Mary L. Rev. 975 (2016).

§ 18.2-187.

Repealed by Acts 1978, c. 807.

Cross references. - For present section covering the subject matter of the repealed section, see § 18.2-187.1 .

§ 18.2-187.1. Obtaining or attempting to obtain oil, electric, gas, water, telephone, telegraph, cable television or electronic communication service without payment; penalty; civil liability.

  1. It shall be unlawful for any person knowingly, with the intent to defraud, to obtain or attempt to obtain, for himself or for another, oil, electric, gas, water, telephone, telegraph, cable television or electronic communication service by the use of any false information, or in any case where such service has been disconnected by the supplier and notice of disconnection has been given.
  2. It shall be unlawful for any person to obtain or attempt to obtain oil, electric, gas, water, telephone, telegraph, cable television or electronic communication service by the use of any scheme, device, means or method, or by a false application for service with intent to avoid payment of lawful charges therefor. B1. It shall be unlawful for any person to obtain, or attempt to obtain, electronic communication service as defined in § 18.2-190.1 by the use of an unlawful electronic communication device as defined in § 18.2-190.1 .
  3. The word "notice" as used in subsection A shall be notice given in writing to the person to whom the service was assigned. The sending of a notice in writing by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last known address, requiring delivery to the addressee only with return receipt requested, and the actual signing of the receipt for such mail by the addressee, shall be prima facie evidence that such notice was duly received.
  4. Any person who violates any provisions of this section, if the value of service, credit or benefit procured is $1,000 or more, shall be guilty of a Class 6 felony; or if the value is less than $1,000, shall be guilty of a Class 1 misdemeanor. In addition, the court may order restitution for the value of the services unlawfully used and for all costs. Such costs shall be limited to actual expenses, including the base wages of employees acting as witnesses for the Commonwealth, and suit costs. However, the total amount of allowable costs granted hereunder shall not exceed $250, excluding the value of the service.
  5. Any party providing oil, electric, gas, water, telephone, telegraph, cable television or electronic communication service who is aggrieved by a violation of this section may, in a civil proceeding in any court of competent jurisdiction, seek both injunctive and equitable relief, and an award of damages, including attorney fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500, whichever is greater, for each action.

    (1978, c. 807; 1981, c. 197; 1992, c. 525; 1993, c. 439; 2002, c. 671; 2003, c. 354; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Editor's note. - Acts 2002, c. 671, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendment by c. 671 inserted "telecommunication" in the catchline; deleted "or" following "cable television" and inserted "or telecommunication" following "cable television" in subsections A and B; in subsection C, deleted "hereof" following "subsection A" and substituted "such" for "said" following "signing of the receipt"; and added subsection E.

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecommunication" throughout the section.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in subsection D; substituted "attorney" for "attorney's" in subsection E.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in the first sentence of subsection D.

Law review. - For survey of Virginia administrative law for year 1977-1978, see 64 Va. L. Rev. 1365 (1978). For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

For article on developments in the field of Virginia public utility law from June 2002 through May 2003, see 38 U. Rich. L. Rev. 195 (2003).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, § 56; 18 M.J. Telegraph and Telephone Companies, § 2.

CASE NOTES

47 U.S.C.S. § 553 does not preempt this section. Carter v. Commonwealth, 25 Va. App. 721, 492 S.E.2d 480 (1997).

Aggregation of value allowed. - Although none of the individual calls appellant made were shown to have a value in excess of $200, aggregation of the value of individual calls made in violation of this section was permitted to prove that the unlawful conduct was a felony. The unlawful calls for which appellant was indicted all occurred within approximately one hour of one another and were in execution of a general fraudulent scheme. JHA v. Commonwealth, 18 Va. App. 349, 444 S.E.2d 258 (1994).

Value of services, not loss to phone company, controls. - Although appellant argued that the indictment alleged that the loss of the value of the calls, $300.85, was incurred by phone company, and therefore, because the evidence disclosed that phone company's loss was only a portion of the $300.85, appellant asserted that it had not been shown that phone company sustained a loss sufficient to prove the felony, the value of the service fraudulently obtained was proved to be $300.85, and the terms of its disposition by phone company, if collected, did not reduce the value of the service so obtained. JHA v. Commonwealth, 18 Va. App. 349, 444 S.E.2d 258 (1994).

Costs. - Under this section, the offense created is a species of larceny. As such, the value of service, credit or benefit procured is to be measured at the time the services were taken. Penley v. Commonwealth, 51 Va. App. 166, 655 S.E.2d 746, 2008 Va. App. LEXIS 31 (2008).

This section makes a distinction between "value of services received" and "costs," and the latter are only recoverable as restitution. Penley v. Commonwealth, 51 Va. App. 166, 655 S.E.2d 746, 2008 Va. App. LEXIS 31 (2008).

When defendant violated § 18.2-187.1 by using an illegal electrical meter, the value of the services he took was limited to the electrical current he used and did not include the costs incurred by the power company as a result of the theft. Thus, the trial court erred in considering the costs in determining that he obtained services worth more than $200; as the elements of a misdemeanor violation of § 18.2-187.1 , a lesser included offense, had been proven beyond a reasonable doubt, defendant was to be resentenced. Penley v. Commonwealth, 51 Va. App. 166, 655 S.E.2d 746, 2008 Va. App. LEXIS 31 (2008).

Notice of termination. - Evidence was sufficient to establish that defendant received the required written notice that defendant's utility service was to be disconnected, as required by subsection A of § 18.2-187.1 , because the electric company mailed four termination notices to defendant pursuant to subsection C of § 18.2-187.1 , and registered and certified mail was not a requirement, but merely created a rebuttable presumption. Lamb v. Commonwealth,, 2013 Va. App. LEXIS 40 (Feb. 5, 2013).

Evidence of past behavior and usage. - Defendant's conviction for felony obtaining or attempting to obtain utility service by fraud was proper because, based upon the evidence of his behavior and past usage of the utility, the jury reasonably inferred that he had diverted the gas to his residence in order to continue to use the gas as he had done in the past. Robinson v. Commonwealth,, 2011 Va. App. LEXIS 113 (Apr. 5, 2011).

Lack of standing. - Affiliate dealer was not an "aggrieved party" and therefore lacked standing to bring an anti-piracy claim against a telecommunications provider for failing to pay subscription fees owed to a satellite television system operator; it was the operator's service that was allegedly pirated, not the dealer's service. Sky Cable, LLC v. Coley,, 2013 U.S. Dist. LEXIS 97129 (W.D. Va. July 11, 2013).

Statute of limitations. - Statute of limitations applicable to a satellite television system operator's federal claim against a cable television provider and its owner for unauthorized distribution of programming was the two-year limitations period borrowed from Virginia's anti-piracy statute, which is parallel in form and substance to 47 U.S.C.S. § 605. Sky Cable, LLC v. Coley,, 2013 U.S. Dist. LEXIS 97129 (W.D. Va. July 11, 2013).

Evidence sufficient. - Evidence supported defendant's conviction of fraudulently obtaining electric service, as the circumstantial evidence established that defendant intentionally obtained electric service by altering an electric meter, allowing defendant to obtain free electricity after defendant's service was disconnected. Lamb v. Commonwealth,, 2013 Va. App. LEXIS 39 (Feb. 5, 2013).

Applied in Hall v. Commonwealth, 2 Va. App. 159, 342 S.E.2d 640 (1986).

§ 18.2-187.2. Audiovisual recording of motion pictures unlawful; penalty.

  1. It shall be unlawful for any person to operate an audiovisual recording function of a device in a commercial theater, excluding the lobby and other common areas, to record a motion picture or any portion thereof without the consent of the owner or lessee of the theater. Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor.
  2. The owner or lessee of a commercial theater where a motion picture is being exhibited, or his authorized agent or employee, who has probable cause to believe that a person has made a recording in violation of subsection A on the premises of the owner or lessee, may detain such person for a period not to exceed one hour pending arrival of a law-enforcement officer. Such owner, lessee, agent or employee shall not be held civilly liable for unlawful detention if such detention does not exceed one hour, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so arrested or detained, whether such arrest or detention takes place on the premises of the owner or lessee or after close pursuit from such premises, provided that, in causing the arrest or detention of such person, the owner, lessee, agent or employee had at the time of such arrest or detention probable cause to believe the person was making or had made an illegal recording in violation of subsection A.
  3. This section shall not apply to any lawfully authorized investigative, law-enforcement, protective, or intelligence gathering activity by an agent or employee of the Commonwealth or the federal government.
  4. The term "audiovisual recording function" means that component of an analog or digital photographic or video camera or other device developed with the capability to record or transmit a motion picture or any part thereof.

    (2004, c. 759.)

§ 18.2-188. Defrauding hotels, motels, campgrounds, boardinghouses, etc.

It shall be unlawful for any person, without paying therefor, and with the intent to cheat or defraud the owner or keeper to:

  1. Put up at a hotel, motel, campground or boardinghouse;
  2. Obtain food from a restaurant or other eating house;
  3. Gain entrance to an amusement park; or
  4. Without having an express agreement for credit, procure food, entertainment or accommodation from any hotel, motel, campground, boardinghouse, restaurant, eating house or amusement park.

    It shall be unlawful for any person, with intent to cheat or defraud the owner or keeper out of the pay therefor to obtain credit at a hotel, motel, campground, boardinghouse, restaurant or eating house for food, entertainment or accommodation by means of any false show of baggage or effects brought thereto.

    It shall be unlawful for any person, with intent to cheat or defraud, to obtain credit at a hotel, motel, campground, boardinghouse, restaurant, eating house or amusement park for food, entertainment or accommodation through any misrepresentation or false statement.

    It shall be unlawful for any person, with intent to cheat or defraud, to remove or cause to be removed any baggage or effects from a hotel, motel, campground, boardinghouse, restaurant or eating house while there is a lien existing thereon for the proper charges due from him for fare and board furnished.

    Any person who violates any provision of this section is, if the value of service, credit or benefit procured or obtained is $1,000 or more, guilty of a Class 5 felony or is, if the value is less than $1,000, guilty of a Class 1 misdemeanor.

    (Code 1950, § 18.1-120; 1960, c. 358; 1974, c. 615; 1975, cc. 14, 15; 1977, c. 178; 1981, c. 197; 1993, c. 575; 2018, cc. 764, 765; 2020, cc. 89, 401.)

Cross references. - As to lien of innkeepers, etc., see §§ 43-31 , 43-34 through 43-36 .

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "this section is" for "this section shall" and "$500 or more, guilty of a Class 5 felony or is, if the value is less than $500, guilty of" for "$200 or more, be guilty of a Class 5 felony; or if the value is less than $200" in the last paragraph.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in the last paragraph.

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 18 Enforcement of Judgments and Decrees. § 18.04 Equity. Bryson.

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 4; 9B M.J. Hotels, Inns and Restaurants, § 4.

CASE NOTES

Defrauding an innkeeper. - Evidence was sufficient to support defendant's conviction of defrauding an innkeeper because it established that because defendant failed to keep up with her payments in May and June 2017, she lost the preferred rate of $40 a day, and her daily room rate increased. Defendant made two payments for the room at the new rate, but she stopped paying for her room after July 4, 2017, and nevertheless remained there for an additional 22 days without paying anything for the room over that period of time or thereafter. Smith v. Commonwealth, 72 Va. App. 523, 850 S.E.2d 381, 2020 Va. App. LEXIS 294 (2020).

"Obtaining food." - To "obtain food" as used in subdivision 2 unambiguously refers to when the food is possessed with the intent to eat it, and the statute's equally plain language requires the intent to cheat or defraud the owner or keeper to obtain food from a restaurant or other eating house; thus, subdivision 2 required proof that defendant had the intent to cheat or defraud the hotel restaurant at the time she gained possession of the food. Caldwell v. Commonwealth, 298 Va. 517 , 840 S.E.2d 343, 2020 Va. LEXIS 36 (2020).

Defendant "obtained food," as that phrase was used in the statute, at the time she gained possession of a breakfast with the intent to eat it because defendant did not pay for the breakfast that she consumed at a hotel. Caldwell v. Commonwealth, 298 Va. 517 , 840 S.E.2d 343, 2020 Va. LEXIS 36 (2020).

Express agreement for credit. - Where an inn accepted the defendant's promissory note in satisfaction of the charges arising from accommodations procured by defendant, inarguably an express agreement for credit, the inn could not rely upon subsection 4 of § 18.2-188 when defendant subsequently defaulted. Louis v. Commonwealth, 40 Va. App. 228, 578 S.E.2d 820, 2003 Va. App. LEXIS 179 (2003).

Unlawful to fraudulently procure entertainment from restaurant. - Crime of defrauding restaurant was complete when defendant accepted benefits of band's entertainment, while concealing fact that he had stopped payment on check written to cover cost of band. Morton v. Commonwealth, No. 0864-98-4 (Ct. of Appeals July 20, 1999).

Trial court will not be disturbed unless plainly wrong. - Circuit court's finding of guilt and the judgment affirming that conviction, were contrary to the law and evidence and, therefore, plainly wrong because no rational trier of fact could have found the essential elements of defrauding a hotel restaurant beyond a reasonable doubt; the circuit court had reasonable doubt as to defendant's intent to defraud at the time she gained possession of the food because it found that maybe she did not understand that she could not just be invited by a guest. Caldwell v. Commonwealth, 298 Va. 517 , 840 S.E.2d 343, 2020 Va. LEXIS 36 (2020).

§ 18.2-188.1. Defrauding person having a lien on an animal; penalty.

It shall be unlawful to remove or cause any horse or other animal to be removed from the possession of the owner or keeper of a livery stable or other person having a lien on the horse or animal for keep, support and care pursuant to § 43-32 , with intent to defraud or cheat the lienholder. A violation of this section shall be punishable as a Class 2 misdemeanor.

(1990, c. 639.)

§ 18.2-189. Defrauding keeper of motor vehicles or watercraft.

A person shall be guilty of a Class 2 misdemeanor if he:

  1. Stores a motor vehicle, boat or other watercraft with any person, firm or corporation engaged in the business of conducting a garage, marina, watercraft dealership or other facility for the (i) storage of motor vehicles, boats or other watercraft, (ii) furnishing of supplies to motor vehicles, boats or other watercraft, or (iii) alteration or repair of motor vehicles, boats or other watercraft, and obtains storage, supplies, alterations or repairs for such motor vehicle, boat or other watercraft, without having an express agreement for credit, or procures storage, supplies, alterations or repairs on account of such motor vehicle, boat or other watercraft so stored, without paying therefor, and with the intent to cheat or defraud the owner or keeper of the garage, marina or boat repair facility; or
  2. With such intent, obtains credit at the garage, marina, watercraft dealership or boat repair facility for such storage, supplies, alterations or repairs through any misrepresentation or false statement; or
  3. With such intent, removes or causes to be removed any such motor vehicle, boat or other watercraft from any such garage, marina, watercraft dealership or boat repair facility while there is a lien existing thereon for the proper charges due from him for storage, supplies, alterations or repairs furnished thereon, in accordance with the provisions of § 43-32 , 43-33 , 46.2-644.01 , or § 46.2-644.02 . (Code 1950, § 18.1-121; 1960, c. 358; 1975, cc. 14, 15; 1978, c. 245; 1988, c. 414; 2009, c. 664.)

The 2009 amendments. - The 2009 amendment by c. 664, effective October 1, 2009, substituted "provisions of § 43-32 , 43-33 , 46.2-644.01 , or § 46.2-644.02 " for "provisions of § 43-32 , or § 43-33 " in subdivision 3.

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 9.

CASE NOTES

Towing services. - While this section does not mention either the term "tow truck" or the word "services," it is common knowledge that tow-truck services are necessary in many highway accidents and that often a damaged vehicle must be towed to a garage before it can be stored, supplied with parts, altered, or repaired. Hence, in many cases, towing services are essential to the practical operation of this section. It is fairly arguable that such services are implicitly included in the statute's provisions. DeChene v. Smallwood, 226 Va. 475 , 311 S.E.2d 749, cert. denied, 469 U.S. 857, 105 S. Ct. 184, 83 L. Ed. 2d 118 (1984).

§ 18.2-190. Fraudulent misrepresentation as to breed of bull or cattle.

Any person who, in the sale, gift or transfer, of any bull or cattle, knowingly shall make any false representation that such bull is registered, or entitled to registration, in some recognized standard and accredited herd of cattle, or three-quarters blood of such breed, or that such cattle are from such a herd or breed of cattle, shall be guilty of a Class 1 misdemeanor.

(Code 1950, §§ 18.1-185, 18.1-186; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fraud & Deceit, § 71.

Article 5.1. Offenses Involving Electronic Communication Devices.

§ 18.2-190.1. Definitions.

As used in this article, unless the context requires a different meaning:

"Electronic communication device" means (i) any type of instrument, device, machine, equipment or software that is capable of transmitting, acquiring, encrypting, decrypting or receiving any signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems or (ii) any part, accessory or component of such an instrument, device, machine, equipment or software, including, but not limited to, any computer circuit, computer chip, security module, smart card, electronic mechanism, or other component, accessory or part, that is capable of facilitating the transmission, acquisition, encryption, decryption or reception of signs, signals, writings, images, and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems.

"Electronic communication service" means any service provided for a charge or compensation to facilitate the lawful origination, transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature through the use of an electronic communication device as that term is defined in this section.

"Electronic communication service provider" means any person or entity providing any electronic communication service including (i) any person or entity owning or operating any cable television, satellite, Internet-based, telephone, wireless, microwave, fiber optic, data transmission or radio distribution network, system or facility; (ii) any person or entity that for a fee supplies equipment or services to an electronic communication service provider; and (iii) any person or entity providing an electronic communication service directly or indirectly using any of the systems, networks, or facilities described in clause (i).

"Equipment or materials used to manufacture an unlawful electronic communication device" means (i) a scanner capable of intercepting the electronic serial number or mobile identification number of a cellular or other wireless telephone; (ii) electronic software or hardware capable of altering or changing the factory-installed electronic serial number of a cellular or other wireless telephone or a computer containing such software; (iii) a list of cellular or other wireless telephone electronic serial numbers with their associated mobile identification numbers; or (iv) a part, accessory or component of an unlawful electronic communications device possessed or used in the manufacture of such device including any electronic serial number, computer software, mobile identification number, service access card, account number, or personal identification number used to acquire, receive, use, decrypt or transmit an electronic communication service without the actual consent or knowledge of the electronic communication service provider.

"Manufacture of an unlawful electronic communication device" means to make, produce or assemble an unlawful electronic communication device, or to modify, alter, program or reprogram an electronic communication device to be capable of performing any of the illegal functions of an unlawful electronic communication device as that term is defined in this section.

"Sell" means to sell, exchange, lease, give or dispose of to another or to offer or agree to do the same.

"Unlawful electronic communication device" means any electronic communication device that has been manufactured, designed, developed, altered, modified, programmed or reprogrammed, alone or in conjunction with another electronic communication device, so as to be capable of facilitating the disruption, acquisition, receipt, transmission, retransmission or decryption of an electronic communication service without the actual consent or knowledge of the electronic communication service provider. Such unlawful devices include, but are not limited to (i) any device, technology, product, service, equipment, computer software, or any component or part thereof, primarily distributed, sold, designed, assembled, developed, manufactured, modified, programmed, reprogrammed or used for the purpose of facilitating the unauthorized receipt of, transmission of, disruption of, decryption of, access to, or acquisition of any electronic communication service provided by any electronic communication service provider; and (ii) any type of instrument, device, machine, equipment, technology, or software that is primarily designed, assembled, manufactured, developed, sold, distributed, possessed, used or offered, promoted or advertised for the purpose of defeating or circumventing any technology, device or software, or any component or part thereof, used by the provider, owner or licensee of any electronic communication service or of any data, audio or video programs or transmissions, to protect any such electronic communication, data, audio or video services, programs or transmissions from unauthorized receipt, acquisition, access, decryption, disclosure, communication, transmission or retransmission.

(1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.)

Editor's note. - Acts 2002, c. 671, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1998 amendment added the paragraph defining "Equipment or materials used to manufacture an unlawful telecommunication device"; in the paragraph defining "Telecommunication service," inserted "or other wireless"; and in the paragraph defining "Telecommunication service provider," inserted "or other wireless."

The 2002 amendments. - The 2002 amendment by c. 671 rewrote the section.

The 2003 amendments. - The 2003 amendment by c. 354 inserted the definitions of "Electronic communication device," Electronic communication service" and "Electronic communication service provider"; throughout the section, substituted "electronic communication" for "telecommunication"; and deleted the definitions of "Telecommunication device," "Telecommunication service" and "Telecommunication service provider."

Law review. - For an article, "Technology and the Law," see 32 U. Rich. L. Rev. 1383 (1998).

For article on developments in the field of Virginia public utility law from June 2002 through May 2003, see 38 U. Rich. L. Rev. 195 (2003).

Michie's Jurisprudence. - For related discussion, see 18 M.J. Telegraph and Telephone Companies, § 2.

§ 18.2-190.2. Possession of an unlawful electronic communication device or equipment etc., used to manufacture such device; penalty.

A person who knowingly possesses (i) an unlawful electronic communication device or (ii) equipment or materials used to manufacture an unlawful electronic communication device as defined in § 18.2-190.1 with the intent to manufacture an unlawful electronic communication device shall be guilty of a Class 6 felony unless such possession is by an electronic communication equipment manufacturer while lawfully acting in that capacity, or a facilities-based electronic communication service provider licensed by the Federal Communications Commission or by a law-enforcement agency.

(1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.)

The 1998 amendment inserted the clause (i) designation, inserted the language beginning "or (ii) equipment" and ending "telecommunication device," substituted "Class 6 felony" for "Class 1 misdemeanor," added the language beginning "unless such possession," and deleted the former last sentence which read: "However, if a person knowingly possesses five or more unlawful telecommunication devices, he shall be guilty of a Class 6 felony."

The 2002 amendments. - The 2002 amendment by c. 671 inserted "penalty" in the section catchline; substituted "is" for "shall be" preceding "guilty of a Class 6"; and inserted "while lawfully acting in that capacity" preceding "or a facilities-based."

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecomunication" throughout the section and substituted "shall be guilty" for "is guilty."

Law review. - For an article, "Technology and the Law," see 32 U. Rich. L. Rev. 1383 (1998).

§ 18.2-190.3. Sale of an unlawful electronic communication device; penalty.

A person who (i) knowingly sells an unlawful electronic communication device or (ii) sells material, including hardware, data, computer software or other information or equipment, knowing, or having reason to know, that the purchaser or a third person intends to use such material in the manufacture of an unlawful electronic communication device, shall be guilty of a Class 6 felony.

(1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.)

The 1998 amendment combined this section into one sentence by deleting the language which read: "1 misdemeanor. However, if the offense involves the manufacture of five or more unlawful telecommunication devices, he shall be guilty of a Class."

The 2002 amendments. - The 2002 amendment by c. 671 added "penalty" at the end of the section catchline; substituted "(i) knowingly sells" for "sells (i)"; inserted "sells" following "(ii)"; inserted "or having reason to know" preceding "that the purchaser"; and substituted "is" for "shall be" preceding "guilty of a Class 6."

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecommunication" twice and made a stylistic change.

Law review. - For an article, "Technology and the Law," see 32 U. Rich. L. Rev. 1383 (1998).

§ 18.2-190.4. Manufacture of an unlawful electronic communication device; penalty.

A person who knowingly manufactures an unlawful electronic communication device shall be guilty of a Class 6 felony.

(1993, c. 439; 1998, c. 518; 2002, c. 671; 2003, c. 354.)

The 1998 amendment combined this section into one sentence by deleting the language following "guilty of a Class" which read: "1 misdemeanor. However, if the offense involves the manufacture of five or more unlawful telecommunication devices, he shall be guilty of a Class."

The 2002 amendments. - The 2002 amendment by c. 671 added "penalty" at the end of the section catchline; and inserted "knowingly" and substituted "is" for "shall be."

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecommunication" and "shall be guilty" for "is guilty."

Law review. - For an article, "Technology and the Law," see 32 U. Rich. L. Rev. 1383 (1998).

§ 18.2-190.5. Separate offenses; penalty.

For purposes of imposing criminal penalties for violations of §§ 18.2-190.3 and 18.2-190.4 , the commission of the prohibited activity regarding each unlawful electronic communication device shall be deemed a separate offense.

(2002, c. 671; 2003, c. 354.)

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecommunication."

§ 18.2-190.6. Restitution.

The court may, in addition to any other sentence authorized by law, require a person convicted of violating § 18.2-190.3 or § 18.2-190.4 to make restitution in the manner provided in § 19.2-305.1 .

(2002, c. 671.)

§ 18.2-190.7.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to forfeiture of unlawful electronic communication devices, see § 19.2-386.18 .

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecommunication."

§ 18.2-190.8. Civil relief; damages.

Any electronic communication service provider aggrieved by a violation of this article may seek both injunctive and equitable relief and an award of damages including attorney's fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500, whichever is greater, for each unlawful electronic communications device involved in the action. In any case in which the court finds that the violation was committed for purposes of commercial advantage or financial gain, the award shall be increased by an amount not to exceed three times the actual damages sustained or $1,500 for each unlawful electronic communications device involved, whichever is greater.

(2002, c. 671; 2003, c. 354.)

The 2003 amendments. - The 2003 amendment by c. 354 substituted "electronic communication" for "telecommuication" in three places.

Article 6. Offenses Relating to Credit Cards.

§ 18.2-191. Definitions.

The following words and phrases as used in this article, unless a different meaning is plainly required by the context, shall have the following meanings:

"Acquirer" means a business organization, financial institution or an agent of a business organization or financial institution that authorizes a merchant to accept payment by credit card or credit card number for money, goods, services or anything else of value.

"Cardholder" means the person or organization named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer.

"Credit card" means any instrument or device, whether known as a credit card, credit plate, payment device number, or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value on credit. For the purpose of this article, "credit card" shall also include a similar device, whether known as a debit card, or any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value by charging the account of the cardholder with a bank or any other person even though no credit is thereby extended.

"Expired credit card" means a credit card which is no longer valid because the term shown on it has elapsed.

"Issuer" means the business organization or financial institution or its duly authorized agent which issues a credit card.

"Payment device number" means any code, account number or other means of account access, other than a check, draft or similar paper instrument, that can be used to obtain money, goods, services or anything else of value, or to initiate a transfer of funds. "Payment device number" does not include an encoded or truncated credit card number or payment device number.

"Receives" or "receiving" means acquiring possession or control of the credit card number or payment device number or accepting the same as security for a loan.

"Revoked credit card" means a credit card which is no longer valid because permission to use it has been suspended or terminated by the issuer.

"Sales draft" means a paper or electronic form evidencing a purchase of goods, services or anything else of value from a merchant through the use of a credit card.

"Cash advance/withdrawal draft" means a paper form evidencing a cash advance or withdrawal from a bank or other financial institution through the use of a credit card.

(Code 1950, § 18.1-125.2; 1968, c. 480; 1975, cc. 14, 15; 1977, c. 103; 1980, c. 99; 1985, c. 266; 1991, c. 546; 2017, c. 41.)

The 2017 amendments. - The 2017 amendment by c. 41 inserted "or electronic" in the definition of "Sales draft."

Law review. - For survey of the Virginia law on contracts and sales for the year 1967-1968, see 54 Va. L. Rev. 1572 (1968).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1; 3C M.J. Commercial Law, § 94; 8B M.J. False Pretenses and Cheats, § 4; 8B M.J. Fraud and Deceit, § 71.

CASE NOTES

Meaning of "credit card." - When defendant used a credit card account access number that had been issued with another person's data, he employed a credit card issued to or for the benefit of someone else; a credit card is not just a ubiquitous plastic card but is any device that allows a cardholder to obtain anything of value on credit. Hill v. Commonwealth, No. 2030-00-1, 2002 Va. App. LEXIS 256 (Ct. of Appeals Apr. 30, 2002).

§ 18.2-192. Credit card theft.

  1. A person is guilty of credit card or credit card number theft when:
    1. He takes, obtains or withholds a credit card or credit card number from the person, possession, custody or control of another without the cardholder's consent or who, with knowledge that it has been so taken, obtained or withheld, receives the credit card or credit card number with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder; or
    2. He receives a credit card or credit card number that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use, to sell or to transfer the credit card or credit card number to a person other than the issuer or the cardholder; or
    3. He, not being the issuer, sells a credit card or credit card number or buys a credit card or credit card number from a person other than the issuer; or
    4. He, not being the issuer, during any twelve-month period, receives credit cards or credit card numbers issued in the names of two or more persons which he has reason to know were taken or retained under circumstances which constitute a violation of § 18.2-194 and subdivision (1) (c) of this section.
  2. Credit card or credit card number theft is grand larceny and is punishable as provided in § 18.2-95 . (Code 1950, § 18.1-125.3; 1968, c. 480; 1975, cc. 14, 15; 1976, c. 318; 1985, c. 266.)

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 94; 8B M.J. Fraud and Deceit, § 71; 12A M.J. Larceny, §§ 2, 8.

CASE NOTES

Jurisdiction. - All circuit courts in the Commonwealth possess subject matter jurisdiction over all felony prosecutions, including those for credit card theft; the circuit court clearly had subject matter jurisdiction to adjudicate the four counts of credit card theft against defendant and possessed the statutory authority to impose punishment for those crimes. Bryant v. Commonwealth, 70 Va. App. 697, 832 S.E.2d 48, 2019 Va. App. LEXIS 200 (2019).

There is no language in this section specifically creating prima facie evidence of credit card theft, although there is a provision that when a person, other than the cardholder or a person authorized by him, possesses two or more signed credit cards, such possession shall be prima facie evidence of credit card forgery. Cheatham v. Commonwealth, 215 Va. 286 , 208 S.E.2d 760 (1974), overruled in part by Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637 (2007).

If the General Assembly had intended to create prima facie evidence of withholding a credit card from mere possession of a recently stolen credit card, it would have included specific language to accomplish that purpose. Cheatham v. Commonwealth, 215 Va. 286 , 208 S.E.2d 760 (1974), overruled in part by Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637 (2007).

The word "withhold" must import something more than mere retention, for mere retention could be consistent with innocent intent. Cheatham v. Commonwealth, 215 Va. 286 , 208 S.E.2d 760 (1974), overruled in part by Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637 (2007).

The gravamen of this section is the taking of a single credit card, and the taking of each card constitutes a separate statutory offense for which the perpetrator may be separately convicted and punished. Johnson v. Commonwealth, No. 1665-88-1 (Ct. of Appeals Dec. 4, 1990).

And each card taken represents a separate offense. - Trial court properly refused to merge three indictments for larceny under the single larceny doctrine, since the taking of credit cards represented separate statutory offenses for each card defendant took. Scott v. Commonwealth, 36 Va. App. 276, 549 S.E.2d 624, 2001 Va. App. LEXIS 449 (2001).

The retention must be accompanied by an intent to deprive the owner of possession and to use the card, or to sell it, or to transfer it to a person other than the issuer or the cardholder. Cheatham v. Commonwealth, 215 Va. 286 , 208 S.E.2d 760 (1974), overruled in part by Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637 (2007).

The statute may be violated by proof that the accused was in receipt of the card knowing that it was taken from the possession, custody or control of the cardholder without her consent. In a prosecution under those circumstances, the Commonwealth does not have to prove that the accused was the thief; however, it does have to prove that he had knowing receipt of a card with intent to use, sell or transfer it. Lyne v. Commonwealth, No. 2428-94-2 (Ct. of Appeals Mar. 26, 1996).

The taking must be with the intent to use, sell, or transfer the card to a person other than the issuer or the cardholder. Darnell v. Commonwealth, 12 Va. App. 948, 408 S.E.2d 540 (1991).

Misuse of properly issued card not theft. - Defendant's misuse of university motor pool gasoline card issued to him by the university to put gas into his own vehicle did not constitute credit card theft for purposes of this section. Sykes v. Commonwealth, 27 Va. App. 77, 497 S.E.2d 511 (1998).

Presumption should not be extended. - The presumption of guilt from unexplained or falsely explained possession of recently stolen goods should not be extended to the "withholding" of a credit card, thus constituting statutory grand larceny. Cheatham v. Commonwealth, 215 Va. 286 , 208 S.E.2d 760 (1974), overruled in part by Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637 (2007).

A charge of mere possession of a stolen credit card is not sufficient to state the offense of credit card theft under subdivision (1) (a). Wilder v. Commonwealth, 217 Va. 145 , 225 S.E.2d 411 (1976) (decided under former § 18.1-125.3)

Taking proved. - The statute does not require the Commonwealth to prove that defendant received the credit card number directly from the cardholder. Nor does the statute exclude individuals who obtain credit card numbers from discarded receipts, via the telephone or the Internet, or any of the myriad ways in which credit card numbers can be fraudulently acquired without possession of the credit card or without the cardholder's consent. Therefore, where defendant acquired cardholder's credit card number without his consent, the taking element of this section was proved because defendant interfered with cardholder's right to determine who shall have the right to use his credit card number. Harrison v. Commonwealth, 32 Va. App. 525, 529 S.E.2d 330, 2000 Va. App. LEXIS 401 (2000).

Mere proof of possession of a recently stolen credit card is insufficient to support a conviction for credit card theft. Sandoval v. Commonwealth, 20 Va. App. 133, 455 S.E.2d 730 (1995).

Double jeopardy. - Although appellant accurately noted that he committed the respective crimes in a similar manner, this fact did not render the convictions improper; under the Blockburger test, offenses charged were examined in the abstract, without referring to the particular facts of the case under review. Viewed in the abstract, identity theft and credit card fraud were separate offenses punishable in a single criminal proceeding; accordingly, appellant's convictions for identity theft and for credit card fraud were proper and did not violate double jeopardy protections. Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50, 2009 Va. App. LEXIS 424 (2009), aff'd in part, rev'd in part, 280 Va. 678 , 701 S.E.2d 407 (2010).

Sufficiency of indictment. - Defendant's convictions for credit card theft in violation of § 18.2-192 were proper because she provided no case law or authority to support her contention that time was an element of the offense of credit card theft. As time was not an element of the offense, the Commonwealth was not required to prove the exact date of the offenses, as long as the evidence established beyond a reasonable doubt that the crimes occurred and defendant committed the crimes; there was sufficient evidence to show that defendant obtained the credit cards and received the credit cards and, therefore, the trial court did not err in finding the evidence sufficient to prove the offenses. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Venue. - Credit card theft, § 18.2-192 , and credit card fraud, § 18.2-195 , were different offenses; venue for prosecution of credit card theft was not established in the Circuit Court of the City of Alexandria because the crime was completed where the card was taken, which was outside of the city, regardless of the fact that defendant later used the credit card in Alexandria. Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637, 2007 Va. LEXIS 127 (2007).

Venue in Alexandria, Virginia, was established in defendant's trial for credit card theft and credit card fraud because defendant's fraudulent use of the stolen credit card at a hotel in Alexandria established an element of the crime, and raised a strong presumption that an act in furtherance of the crime occurred in Alexandria. Meeks v. Commonwealth,, 2006 Va. App. LEXIS 604 (May 10, 2006), rev'd, 274 Va. 798 , 651 S.E.2d 637 (2007).

Venue, under § 18.2-198.1 , was proper in Alexandria, Virginia because defendant committed credit card theft, in violation of subdivision (1)(a) of § 18.2-192 , by unlawfully taking a credit card from its rightful owner, defendant's former employer in Alexandria, with the intent to use the card when defendant was terminated, thereby completing the crime of credit card theft in Alexandria, even though defendant committed the crime of credit card fraud, in violation of § 18.2-195 , by using the card to make personal purchases in Maryland. Baldwin v. Commonwealth,, 2011 Va. App. LEXIS 348 (Nov. 15, 2011).

Circuit court did not err in concluding that venue was proper in that court to prosecute defendant for the credit card theft charge related to the unused credit card; defendant possessed four stolen credit cards and used three of them at an Arlington County store, he possessed all cards without the owner's permission, and he lied repeatedly to the police about his identity and how he came to possess the cards, showing he possessed the unused card with the requisite intent to use it in Arlington County. Bryant v. Commonwealth, 70 Va. App. 697, 832 S.E.2d 48, 2019 Va. App. LEXIS 200 (2019).

Prosecution under this section barred. - Subsequent prosecution under this section was barred, where defendant had been convicted of petit larceny, of a "pocketbook, containing U.S. currency, credit cards and misc. items," which constituted the same conduct to be alleged and proved as essential elements in the credit card theft prosecution. Darnell v. Commonwealth, 12 Va. App. 948, 408 S.E.2d 540 (1991).

Proof of intent. - Under subdivision (1) (a), the Commonwealth is required to prove "intent to use . . . or sell . . . or transfer" the card. Lyne v. Commonwealth, No. 2428-94-2 (Ct. of Appeals Mar. 26, 1996).

Evidence was sufficient to support trial court's conclusion that defendant held credit cards without owner's consent, and intended to use them. Lee v. Commonwealth, No. 1170-98-4 (Ct. of Appeals June 22, 1999).

Because the trial court, which concluded that an intent to use was an element of the "first prong" of subdivision 1 of § 18.2-192 and that the intent to use or sell was applicable only to the second prong, misinterpreted, by omission, the elements of the offense proscribed by § 18.2-192(1)(a), as the taking of a credit card had to be with the intent to use, sell, or transfer the card to a person other than the issuer or the cardholder, defendant's conviction was reversed. Lassiter v. Commonwealth,, 2006 Va. App. LEXIS 531 (Nov. 21, 2006).

Defendant was properly convicted of credit card theft because the statute encompassed two distinct offenses, the first prong of which was a general intent crime completed upon an unlawful taking, and did not require that the Commonwealth allege or prove the specific intent required to support a conviction under the second prong of the statute. Scott v. Commonwealth, 292 Va. 380 , 789 S.E.2d 608, 2016 Va. LEXIS 108 (2016).

Circuit court properly, via a jury verdict, convicted defendant of credit card theft because the constitutionality of the statutory prima facie provision did not affect the jury's verdict since the jury instruction did not provide that the offense required a showing that defendant acted with specific intent to use, sell, or transfer them once he received them, and defendant's challenge to the sufficiency of the evidence - that the owner's credit cards were unlawfully obtained by him or that he had the intent to use them - failed to establish that the evidence was insufficient to support the offense under the alternative basis contained in the instruction received by the jury relating to receiving the stolen credit cards. Benthall v. Commonwealth, No. 0929-19-4, 2020 Va. App. LEXIS 217 (July 28, 2020).

Business record exception. - Defendant's convictions for credit card theft in violation of § 18.2-192(1)(a) and credit card fraud were proper because the trial court did not err in admitting credit card statements under the business record exception to the hearsay rule. A financial investigator testified that in the course of doing business, the company maintained records in relation to the charges and payments on credit cards and that those records were made contemporaneously with the actions taken with regard to the credit accounts; according to the investigator, the statements were an accurate account of the credit card company's records at the time they were printed prior to trial. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Evidence held sufficient. - Evidence was clearly sufficient to prove beyond a reasonable doubt that defendant took the victim's credit card and also took money from her friend's cash box without permission. Warren v. Commonwealth, No. 1078-01-2, 2002 Va. App. LEXIS 275 (Ct. of Appeals May 7, 2002).

Evidence supported defendant's conviction of credit card theft in violation of subdivision (1) (a) of § 18.2-192 , as defendant's acts of: (1) entering the victim's jeep without knowing the victim or having the victim's permission; (2) ransacking the jeep; (3) taking the victim's credit card and money from the jeep; and (4) running away from a police officer who tried to question defendant, allowed the jury to infer that defendant stole the credit card with the intention of using, selling, or transferring it. Fisher v. Commonwealth, No. 2871-01-4 CHIEF, 2002 Va. App. LEXIS 639 (Ct. of Appeals Oct. 22, 2002).

Evidence proved that defendant retained the recently renewed credit cards after being expressly directed to cancel the account and then used the cards with the intent to use them for her personal benefit was sufficient to support convictions for embezzlement. Kingsley v. Commonwealth, No. 0587-03-2, 2004 Va. App. LEXIS 384 (Ct. of Appeals Aug. 10, 2004).

Despite defendant's claim that the Commonwealth failed to present sufficient evidence to prove that he had the requisite intent to use the credit cards at the time of the taking, his convictions on four counts of credit card theft were upheld on appeal, as: (1) the victim identified defendant as the perpetrator of the crimes; (2) some of the victim's stolen items were found in defendant's truck, including two of the four stolen credit cards; and (3) defendant's wife was in possession of the victim's jacket, wallet, and the other two stolen credit cards. Hence, the evidence and the inferences drawn from it were sufficient to allow the jury to conclude that defendant had the requisite intent to use the stolen credit cards. Anderson v. Commonwealth,, 2007 Va. App. LEXIS 215 (May 22, 2007).

Defendant's convictions for credit card theft in violation of § 18.2-192 and credit card fraud were proper because a credit card fraud investigator testified that the phone numbers used to activate credit cards were automatically recorded electronically, absent the involvement of any credit card employee and there was credible evidence to support the findings that the record was prepared, and regularly relied upon, in the credit card company's ordinary course of business. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Sufficient evidence showed defendant was the perpetrator of credit card theft, under § 18.2-192 , and credit card forgery, under § 18.2-193 , because the evidence showed: (1) the victim gave defendant a credit card but never got it back; (2) unauthorized charges subsequently appeared on the victim's bank statement; (3) a surveillance tape showed a young male with black, wide-framed glasses use the card; (4) a hat similar to one in the video was found in defendant's residence, as was an item bought with the card at that time; and (5) defendant's inconsistent statements while testifying allowed an inference that defendant lied to conceal guilt. Harrington v. Commonwealth, No. 0561-13-2, 2014 Va. App. LEXIS 14 (Jan. 21, 2014).

Evidence supported defendant's convictions because defendant, who worked for a car rental company, confessed in a written statement to police that defendant used a card scanning device to obtain the victim's credit card numbers, defendant's agent identification number appeared on the employer's rental paperwork of all of the victims, defendant was present at the rental car transactions with many of the victims, and the instances of fraud occurred within a few days of a victim's rental transaction. Anaman v. Commonwealth, 64 Va. App. 379, 768 S.E.2d 700, 2015 Va. App. LEXIS 61 (2015).

Testimony from defendant's brother which included descriptions of the victims' automobiles, the times of the offenses, the locations of thefts, and the use of the credit cards, corroborated by the victims' testimony and surveillance recordings was sufficient to support defendant's conviction for credit card thefts under § 18.2-192(1)(a). Ballard v. Commonwealth, No. 0760-15-1, 2016 Va. App. LEXIS 142 (Ct. of Appeals May 3, 2016).

Evidence was sufficient to convict defendant of credit card theft because the victim's credit card was used on the same day it was taken from the apartment, merely three to five hours after defendant was in the apartment; defendant and his co-worker were the only people in the apartment that day, and they used a key to enter and locked the door when they left; the co-worker's testimony established that defendant and co-defendant had a relationship; co-defendant used the victim's credit card at a store; and defendant was the only link between the apartment where the credit card was last seen and co-defendant who indisputably used the credit card. Boggs v. Commonwealth, No. 1602-15-1, 2017 Va. App. LEXIS 13 (Jan. 24, 2017).

Reversal of conviction of credit card theft. - Because the Commonwealth joined in the defendant's request for reversal of the conviction for credit card theft, the appellate court reversed and dismissed that count of the indictment without reaching the merits of that assignment of error. Issak v. Commonwealth, No. 1853-02-4, 2003 Va. App. LEXIS 346 (Ct. of Appeals June 17, 2003).

Inconsistent verdict. - Defendant's conviction of credit card fraud under § 18.2-195(1)(a) was reversed because it was inconsistent with his acquittal of credit card theft under § 18.2-192(a)(1), which was based on a trial court's finding in a bench trial that defndant did not withhold a company credit card with the intention of stealing it. Myatt v. Commonwealth,, 2010 Va. App. LEXIS 97 (Mar. 16, 2010).

Applied in Bunn v. Commonwealth, 21 Va. App. 593, 466 S.E.2d 744 (1996).

§ 18.2-193. Credit card forgery.

  1. A person is guilty of credit card forgery when:
    1. With intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value, or any other person, he falsely makes or falsely embosses a purported credit card or utters such a credit card; or
    2. He, not being the cardholder or a person authorized by him, with intent to defraud the issuer, or a person or organization providing money, goods, services or anything else of value, or any other person, signs a credit card; or
    3. He, not being the cardholder or a person authorized by him, with intent to defraud the issuer, or a person or organization providing money, goods, services or anything else of value, or any other person, forges a sales draft or cash advance/withdrawal draft, or uses a credit card number of a card of which he is not the cardholder, or utters, or attempts to employ as true, such forged draft knowing it to be forged.
  2. A person falsely makes a credit card when he makes or draws, in whole or in part, a device or instrument which purports to be the credit card of a named issuer but which is not such a credit card because the issuer did not authorize the making or drawing, or alters a credit card which was validly issued.
  3. A person falsely embosses a credit card when, without the authorization of the named issuer, he completes a credit card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder. Conviction of credit card forgery shall be punishable as a Class 5 felony.

    (Code 1950, § 18.1-125.4; 1968, c. 480; 1975, cc. 14, 15; 1980, c. 99; 1985, c. 266.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 94.

CASE NOTES

Testimony did not implicate ultimate issue of fact. - None of the elements of this section were testified to by witness. Witness simply testified that the person in the videotape appeared to be the defendant. He did not testify that defendant used the victim's credit card, had the intent to defraud, or to any other element of the offense. Accordingly, witness's testimony did not implicate an ultimate issue of fact and the trial court did not err by allowing his testimony. Rogers v. Commonwealth, No. 2269-96-1 (Ct. of Appeals Oct. 7, 1997).

Handwriting expert testimony not necessary. - It was not necessary that a handwriting expert testify concerning the writing on the Food Lion receipt in order for the jury to conclude defendant forged the document. From the evidence of the Food Lion tape showing the actual transaction made with the victim's stolen credit card, the jury could conclude beyond a reasonable doubt that defendant, with the intent to defraud the victim, forged a sales draft or used the victim's credit card number, or uttered as true the forged draft, knowing it to be forged, in violation of subdivision (1)(c). Sabur v. Commonwealth, No. 0880-99-2, 2000 Va. App. LEXIS 456 (Ct. of Appeals June 20, 2000).

Fatal variance. - In a prosecution of defendant for credit card forgery, a fatal variance existed between the indictment and the conduct for which the trial court convicted defendant. The trial court erred in ruling that the Commonwealth proved defendant guilty of credit card forgery, as there was no evidence that defendant either made or embossed a credit card, and the indictment failed to charge defendant with uttering. Arrate v. Commonwealth, No. 0518-18-2, 2019 Va. App. LEXIS 32 (Feb. 12, 2019).

Evidence held sufficient. - When defendant used a credit card account access number that had been issued with another person's data, supplied by defendant who was representing himself as that person, he employed a device issued to someone else; it was not necessary for that person to be aware that an application for credit had been made in his name. Hill v. Commonwealth, No. 2030-00-1, 2002 Va. App. LEXIS 256 (Ct. of Appeals Apr. 30, 2002).

Sufficient evidence showed defendant was the perpetrator of credit card theft, under § 18.2-192 , and credit card forgery, under § 18.2-193 , because the evidence showed: (1) the victim gave defendant a credit card but never got it back; (2) unauthorized charges subsequently appeared on the victim's bank statement; (3) a surveillance tape showed a young male with black, wide-framed glasses use the card; (4) a hat similar to one in the video was found in defendant's residence, as was an item bought with the card at that time; and (5) defendant's inconsistent statements while testifying allowed an inference that defendant lied to conceal guilt. Harrington v. Commonwealth, No. 0561-13-2, 2014 Va. App. LEXIS 14 (Jan. 21, 2014).

§ 18.2-194. Unauthorized possession of two or more signed credit cards or credit card numbers.

When a person, other than the cardholder or a person authorized by him, possesses two or more credit cards which are signed or two or more credit card numbers, such possession shall be prima facie evidence that said cards or credit card numbers were obtained in violation of § 18.2-192 .

(Code 1950, § 18.1-125.5; 1968, c. 480; 1975, cc. 14, 15; 1985, c. 266; 2005, c. 157.)

The 2005 amendments. - The 2005 amendment by c. 157 substituted " § 18.2-192 " for "subdivision (1) (b) of § 18.2-193 ."

CASE NOTES

Prima facie evidence. - Circuit court properly, via a jury verdict, convicted defendant of credit card theft because the constitutionality of the statutory prima facie provision did not affect the jury's verdict since the jury instruction did not provide that the offense required a showing that defendant acted with specific intent to use, sell, or transfer them once he received them, and defendant's challenge to the sufficiency of the evidence - that the owner's credit cards were unlawfully obtained by him or that he had the intent to use them - failed to establish that the evidence was insufficient to support the offense under the alternative basis contained in the instruction received by the jury relating to receiving the stolen credit cards. Benthall v. Commonwealth, No. 0929-19-4, 2020 Va. App. LEXIS 217 (July 28, 2020).

§ 18.2-195. Credit card fraud; conspiracy; penalties.

  1. A person is guilty of credit card fraud when, with intent to defraud any person, he:
    1. Uses for the purpose of obtaining money, goods, services or anything else of value a credit card or credit card number obtained or retained in violation of § 18.2-192 or a credit card or credit card number which he knows is expired or revoked;
    2. Obtains money, goods, services or anything else of value by representing (i) without the consent of the cardholder that he is the holder of a specified card or credit card number or (ii) that he is the holder of a card or credit card number and such card or credit card number has not in fact been issued;
    3. Obtains control over a credit card or credit card number as security for debt; or
    4. Obtains money from an issuer by use of an unmanned device of the issuer or through a person other than the issuer when he knows that such advance will exceed his available credit with the issuer and any available balances held by the issuer.
  2. A person who is authorized by an issuer to furnish money, goods, services or anything else of value upon presentation of a credit card or credit card number by the cardholder, or any agent or employee of such person, is guilty of a credit card fraud when, with intent to defraud the issuer or the cardholder, he:
    1. Furnishes money, goods, services or anything else of value upon presentation of a credit card or credit card number obtained or retained in violation of § 18.2-192 , or a credit card or credit card number which he knows is expired or revoked;
    2. Fails to furnish money, goods, services or anything else of value which he represents or causes to be represented in writing or by any other means to the issuer that he has furnished; or
    3. Remits to an issuer or acquirer a record of a credit card or credit card number transaction which is in excess of the monetary amount authorized by the cardholder.
  3. Conviction of credit card fraud is punishable as a Class 1 misdemeanor if the value of all money, goods, services and other things of value furnished in violation of this section, or if the difference between the value of all money, goods, services and anything else of value actually furnished and the value represented to the issuer to have been furnished in violation of this section, is less than $1,000 in any six-month period; conviction of credit card fraud is punishable as a Class 6 felony if such value is $1,000 or more in any six-month period.
  4. Any person who conspires, confederates or combines with another, (i) either within or without the Commonwealth to commit credit card fraud within the Commonwealth or (ii) within the Commonwealth to commit credit card fraud within or without the Commonwealth, is guilty of a Class 6 felony.

    (Code 1950, § 18.1-125.6; 1968, c. 480; 1975, cc. 14, 15; 1978, c. 364; 1980, c. 99; 1981, c. 197; 1985, c. 266; 1991, c. 546; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "is less than $500" for "does not exceed $200" and "is $500 or more" for "exceeds $200" in subdivision (3).

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in subdivision (3).

Law review. - For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

CASE NOTES

Not aggravated felony for purposes of immigration proceeding. - Virginia's credit card fraud offense did not substantially correspond to a theft offense under 8 U.S.C.S. § 1101(a)(43)(G); additionally, the indictment did not show that the alien was convicted of all the elements of a theft offense under § 1101(a)(43)(G) because: (1) she was not charged with taking goods without the consent of the merchant; and (2) it was not conclusive from the indictment that she actually obtained any property from the cardholder. Therefore, she was not convicted of an aggravated felony within the meaning of 8 U.S.C.S. § 1101(a)(43), and the order for her removal pursuant to 8 U.S.C.S. § 1227(a)(2)(A)(iii) was vacated. Soliman v. Gonzales, 419 F.3d 276, 2005 U.S. App. LEXIS 17989 (4th Cir. 2005).

Venue. - Credit card theft, § 18.2-192 , and credit card fraud, § 18.2-195 , were different offenses; venue for prosecution of credit card theft was not established in the Circuit Court of the City of Alexandria because the crime was completed where the card was taken, which was outside of the city, regardless of the fact that defendant later used the credit card in Alexandria. Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637, 2007 Va. LEXIS 127 (2007).

Venue in Alexandria, Virginia, was established in defendant's trial for credit card theft and credit card fraud because defendant's fraudulent use of the stolen credit card at a hotel in Alexandria established an element of the crime, and raised a strong presumption that an act in furtherance of the crime occurred in Alexandria. Meeks v. Commonwealth,, 2006 Va. App. LEXIS 604 (May 10, 2006), rev'd, 274 Va. 798 , 651 S.E.2d 637 (2007).

Defendant's possession of the male victim's credit card number was based on the fact that he had the number when he was arrested in Arlington County, and at that point, the credit card number had already been used to purchase a laptop computer in Fairfax and the crime of credit card fraud in violation of § 18.2-195 was complete. Therefore, possession of the credit card number in Arlington County subsequent to the commission of the crime could not further the crime, and the Court of Appeals' judgment sustaining the trial court's ruling that venue was proper in Arlington County under § 18.2-198.1 was erroneous and had to be set aside. Gheorghiu v. Commonwealth, 280 Va. 678 , 701 S.E.2d 407, 2010 Va. LEXIS 268 (2010).

Venue, under § 18.2-198.1 , was proper in Alexandria, Virginia because defendant committed credit card theft, in violation of subdivision (1)(a) of § 18.2-192 , by unlawfully taking a credit card from its rightful owner, defendant's former employer in Alexandria, with the intent to use the card when defendant was terminated, thereby completing the crime of credit card theft in Alexandria, even though defendant committed the crime of credit card fraud, in violation of § 18.2-195 , by using the card to make personal purchases in Maryland. Baldwin v. Commonwealth,, 2011 Va. App. LEXIS 348 (Nov. 15, 2011).

Business record exception. - Defendant's convictions for credit card theft and credit card fraud were proper because the trial court did not err in admitting credit card statements under the business record exception to the hearsay rule. A financial investigator testified that in the course of doing business, the company maintained records in relation to the charges and payments on credit cards and that those records were made contemporaneously with the actions taken with regard to the credit accounts; according to the investigator, the statements were an accurate account of the credit card company's records at the time they were printed prior to trial. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Evidence did not support a conviction for attempted credit card fraud where, although there was evidence that the defendant knew that his unemployed companion had a credit card he was attempting to use to make substantial purchases, there was no evidence that the defendant knew that the credit card did not belong to his companion. Poindexter v. Commonwealth, No. 0457-98-2 (Ct. of Appeals Apr. 27, 1999).

Evidence supported a conviction for credit card fraud. - Where defendant told store clerk that the credit card number was his and then testified at trial that his girlfriend gave him the number, defendant would have no reason to tell clerk the credit card number was his if he had not known the status of the number. And where defendant gave clerk a false address when he filled out the warranty card for his purchase, this evidence was sufficient for the trial judge to find beyond a reasonable doubt that defendant had the requisite intent to defraud. Harrison v. Commonwealth, 32 Va. App. 525, 529 S.E.2d 330, 2000 Va. App. LEXIS 401 (2000).

When defendant used a credit card account access number that had been issued with another person's data, supplied by defendant who was representing himself as that person, he employed a device issued to or for the benefit of someone else; it was not necessary for that person to be aware that an application for credit had been made in his name. Hill v. Commonwealth, No. 2030-00-1, 2002 Va. App. LEXIS 256 (Ct. of Appeals Apr. 30, 2002).

Defendant's convictions for credit card fraud, under § 18.2-195 , were affirmed because the evidence that defendant used ATM cards to make withdrawals from a bank account of his employer's company without permission and purchased personal items with the cash obtained from the withdrawals was sufficient to support the convictions. Abbett v. Commonwealth,, 2008 Va. App. LEXIS 115 (Mar. 11, 2008).

Evidence was sufficient to support a conviction for credit card fraud, although the cardholder, defendant's employer, had twice previously given defendant permission to possess and use the card, because defendant did not have permission to possess the card when he made four other separate and discrete purchases. Kovalaske v. Commonwealth, 56 Va. App. 224, 692 S.E.2d 641, 2010 Va. App. LEXIS 197 (2010).

Defendant's convictions for credit card theft and credit card fraud were proper because a credit card fraud investigator testified that the phone numbers used to activate credit cards were automatically recorded electronically, absent the involvement of any credit card employee and there was credible evidence to support the findings that the record was prepared, and regularly relied upon, in the credit card company's ordinary course of business. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Rational trier of fact could find defendant guilty of credit card fraud, as defendant denied taking a debit card, later admitted to taking the card, told the victim exactly where the once missing card was located, and stated to the victim that the victim's daughter had nothing to do with it. Bond v. Commonwealth,, 2014 Va. App. LEXIS 7 (Jan. 14, 2014).

Evidence that defendant used the identifying information of her former husband, without his knowledge or consent, to open a credit card in his name and authorize her as a user, and that defendant used the card to obtain over $400 in goods and services was sufficient to support defendant's conviction for credit card fraud. Darby v. Commonwealth,, 2014 Va. App. LEXIS 193 (May 20, 2014).

Evidence that defendant used the stolen credit cards to make purchases totaling $214.43, as sufficient to support his conviction for credit card fraud as a felony. Ballard v. Commonwealth, No. 0760-15-1, 2016 Va. App. LEXIS 142 (Ct. of Appeals May 3, 2016).

Evidence was sufficient to convict defendant of credit card fraud as her possession of the victim's debit card was not authorized as part of her employment because defendant's job required her to assist the victim with making purchases using the victim's debit card but that she was to put the card back into the victim's purse immediately upon the conclusion of each transaction; and there was no evidence in the record supporting defendant's hypothesis of innocence that the victim, who sustained a brain injury from encephalitis, consented to defendant's possession and use of the card at the ATMs. White v. Commonwealth, 68 Va. App. 241, 807 S.E.2d 242, 2017 Va. App. LEXIS 301 (2017).

Defendant's conviction for credit card fraud was supported by the evidence, which showed a variety of personal purchases made on the victim's credit card that a jury could rationally infer defendant did not have consent or permission to make and exceeded the scope of defendant's authority. Floyd v. Commonwealth, No. 1075-20-3, 2021 Va. App. LEXIS 157 (Aug. 17, 2021).

Evidence did not support a conviction for credit card fraud. - Defendant's conviction for credit card fraud, in violation of § 18.2-195 , was reversed because defendant had the cardholder's consent to possess the card when defendant engaged in the subject transactions, purchased personal items with the credit card; defendant worked as a subcontractor for the cardholder and was given the card for business purposes and thus, defendant lawfully held the card. Saponaro v. Commonwealth, 51 Va. App. 149, 655 S.E.2d 49, 2008 Va. App. LEXIS 11 (2008).

While defendant gave the victim's credit card to the friend in order to purchase certain items at a department store, there was no evidence that defendant used the card at a shoe store; consequently, the evidence was insufficient to establish the $200 threshold necessary to convict defendant of felony credit card fraud under subdivision 3 of § 18.2-195 . Thompson v. Commonwealth,, 2010 Va. App. LEXIS 392 (Oct. 5, 2010).

Inconsistent verdict. - Defendant's conviction of credit card fraud under § 18.2-195(1)(a) was reversed because it was inconsistent with his acquittal of credit card theft under § 18.2-192(a)(1), which was based on a trial court's finding in a bench trial that defndant did not withhold a company credit card with the intention of stealing it. Myatt v. Commonwealth,, 2010 Va. App. LEXIS 97 (Mar. 16, 2010).

§ 18.2-195.1. Credit card factoring.

  1. Any authorized person who presents to the issuer or acquirer for payment a credit card or credit card number transaction record of a sale which was not made by such person or his agent or employee, without the express authorization of the acquirer and with intent to defraud the issuer, acquirer or cardholder, is guilty of a Class 5 felony.  If such act is done without authorization of the acquirer but without intent to defraud, he shall be guilty of a Class 1 misdemeanor.
  2. Any person who, without the express authorization of the acquirer and with intent to defraud the issuer, acquirer or cardholder, employs or otherwise causes an authorized person to remit to an acquirer or issuer a credit card transaction record of sale that was not made by the authorized person is guilty of a Class 5 felony. If such act is done without the authorization of the acquirer but without intent to defraud, he shall be guilty of a Class 1 misdemeanor.
  3. As used in this section, "authorized person" means a person authorized by the acquirer to furnish money, goods, services or anything else of value upon presentation of a credit card or credit card number by a cardholder and includes an agent or employee of a person having such authority.

    (1991, c. 546.)

§ 18.2-195.2. Fraudulent application for credit card; penalties.

  1. A person shall be guilty of a Class 1 misdemeanor if he makes, causes to be made or conspires to make, directly, indirectly or through an agency, any materially false statement in writing concerning the financial condition or means or ability to pay of himself or of any other person for whom he is acting or any firm or corporation in which he is interested or for which he is acting, knowing the statement to be false and intending that it be relied upon for the purpose of procuring a credit card. However, if the statement is made in response to an unrequested written solicitation from the issuer or an agent of the issuer to apply for a credit card, he shall be guilty of a Class 4 misdemeanor.
  2. A person who knows that a false statement has been made in writing concerning the financial condition or ability to pay of himself or of any person for whom he is acting or any firm or corporation in which he is interested or for which he is acting and who with intent to defraud, procures a credit card, upon the faith of such false statement, for his own benefit, or for the benefit of the person, firm or corporation in which he is interested or for which he is acting, and obtains by use of the credit card, money, property, services or any thing of value, is guilty of grand larceny if the value of whatever is obtained is $1,000 or more or petit larceny if the value is less than $1,000.
  3. As used in this section, "in writing" shall include information transmitted by computer, facsimile, e-mail, Internet, or any other electronic medium, and shall not include information transmitted by any such medium by voice transmission.

    (1991, c. 546; 2007, c. 518; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2007 amendments. - The 2007 amendment by c. 518 rewrote subsection B; and added subsection C.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in subsection B.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in subsection B.

§ 18.2-196. Criminal possession of credit card forgery devices.

  1. A person is guilty of criminal possession of credit card forgery devices when:
    1. He is a person other than the cardholder and possesses two or more incomplete credit cards, with intent to complete them without the consent of the issuer; or
    2. He possesses, with knowledge of its character, machinery, plates or any other contrivance designed to reproduce instruments purporting to be credit cards of an issuer who has not consented to the preparation of such credit cards.
  2. A credit card is incomplete if part of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit card before it can be used by a cardholder, has not yet been stamped, embossed, imprinted or written upon.

    Conviction of criminal possession of credit card forgery devices is punishable as a Class 6 felony.

    (Code 1950, § 18.1-125.7; 1968, c. 480; 1975, cc. 14, 15.)

§ 18.2-196.1. Unlawful use of payment card scanning devices and re-encoders; penalty.

  1. Any person who with malicious intent uses a scanning device or a re-encoder on the payment card of another without the permission of the authorized payment card user is guilty of a Class 1 misdemeanor.
  2. Any person who violates this section and sells or distributes such information to another is guilty of a Class 6 felony.
  3. Any person who violates this section and uses such information in the commission of another crime is guilty of a Class 6 felony.
  4. For the purposes of this section:
    1. "Authorized payment card user" means any person with the authorization or permission to use any payment card to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant.
    2. "Merchant" means an owner or operator of any mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or operator who receives from an authorized payment card user or someone he believes to be an authorized payment card user, a payment card or information from a payment card, or what he believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing or receiving goods, services, money, or anything else of value from him.
    3. "Payment card" means a credit card, charge card, debit card, hotel key card, stored-value card, white plastic, or any other card containing encoded information that allows an authorized payment card user to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant.
    4. "Re-encoder" means an electronic device that transfers encoded information from the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment card.
    5. "Scanning device" means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, temporarily store, or permanently store encoded information on the magnetic strip or stripe of a payment card.

      (2005, c. 166.)

CASE NOTES

Sufficiency of the evidence. - Evidence supported defendant's convictions because defendant, who worked for a car rental company, confessed in a written statement to police that defendant used a card scanning device to obtain the victim's credit card numbers, defendant's agent identification number appeared on the employer's rental paperwork of all of the victims, defendant was present at the rental car transactions with many of the victims, and the instances of fraud occurred within a few days of a victim's rental transaction. Anaman v. Commonwealth, 64 Va. App. 379, 768 S.E.2d 700, 2015 Va. App. LEXIS 61 (2015).

§ 18.2-197. Criminally receiving goods and services fraudulently obtained.

A person is guilty of criminally receiving goods and services fraudulently obtained when he receives money, goods, services or anything else of value obtained in violation of subsection (1) of § 18.2-195 with the knowledge or belief that the same were obtained in violation of subsection (1) of § 18.2-195 . Conviction of criminal receipt of goods and services fraudulently obtained is punishable as a Class 1 misdemeanor if the value of all money, goods, services and anything else of value, obtained in violation of this section, is less than $1,000 in any six-month period; conviction of criminal receipt of goods and services fraudulently obtained is punishable as a Class 6 felony if such value is $1,000 or more in any six-month period.

(Code 1950, § 18.1-125.8; 1968, c. 480; 1975, cc. 14, 15; 1981, c. 197; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "is less than $500" for "does not exceed $200" and substituted "is $500 or more" for "exceeds $200."

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice.

§ 18.2-198. Obtaining airline, railroad, steamship, etc., ticket at discount price.

A person who obtains at a discount price a ticket issued by an airline, railroad, steamship or other transportation company from other than an apparent agent of such company which was acquired in violation of subsection (1) of § 18.2-195 without reasonable inquiry to ascertain that the person from whom it was obtained had a legal right to possess it shall be presumed to know that such ticket was acquired under circumstances constituting a violation of subsection (1) of § 18.2-195 .

(Code 1950, § 18.1-125.9; 1968, c. 480; 1975, cc. 14, 15.)

§ 18.2-198.1. Venue.

Notwithstanding the provisions of § 19.2-244 , a prosecution for a violation of this article may be had in any county or city in which (i) any act in furtherance of the crime was committed; (ii) an issuer or acquirer, or an agent of either, sustained a financial loss as a result of the offense; or (iii) the cardholder resides. A prosecution for a violation of § 18.2-192 may be had in any county or city where a credit card number is used, is attempted to be used, or is possessed with intent to violate § 18.2-193 , 18.2-195 , or 18.2-197 .

(1991, c. 546; 2008, c. 797; 2019, c. 177.)

The 2008 amendments. - The 2008 amendment by c. 797 added the last sentence.

The 2019 amendments. - The 2019 amendment by c. 177 inserted clause (iii) and made related changes.

CASE NOTES

Establishing venue for credit card theft and fraud. - Credit card theft, § 18.2-192 , and credit card fraud, § 18.2-195 , were different offenses; venue for prosecution of credit card theft was not established in the Circuit Court of the City of Alexandria because the crime was completed where the card was taken, which was outside the city, regardless of the fact that defendant later used the credit card in Alexandria. Meeks v. Commonwealth, 274 Va. 798 , 651 S.E.2d 637, 2007 Va. LEXIS 127 (2007).

Based on the record, there was insufficient evidence to demonstrate a strong presumption that any part of obtaining, accessing or recording the female victim's identifying information with the intent to defraud occurred in Arlington County; there was no evidence showing where the laptop belonging to defendant was located when accessed, who accessed it, or who remagged the credit card numbers, specifically the female victim's number, onto the credit cards. The lack of such evidence made it impossible to sustain a strong presumption that any part of the crime of identity theft under § 18.2-186.3 occurred in Arlington County, and therefore, venue in that county was improper under § 18.2-198.1 . Gheorghiu v. Commonwealth, 280 Va. 678 , 701 S.E.2d 407, 2010 Va. LEXIS 268 (2010).

Defendant's convictions for credit card theft and credit card fraud were proper because the trial court did not err in finding that an act in furtherance of the credit card fraud occurred in Loudoun County and holding that venue was appropriate in that jurisdiction. Defendant told a postal inspector that she obtained the credit cards, an investigator testified that the credit car was activated from defendant's Loudoun County home, and another investigator testified that the credit card statements were sent to defendant's Loudoun County home. Trang Chau v. Commonwealth,, 2011 Va. App. LEXIS 30 (Feb. 1, 2011).

Venue, under § 18.2-198.1 , was proper in Alexandria, Virginia because defendant committed credit card theft, in violation of subdivision (1)(a) of § 18.2-192 , by unlawfully taking a credit card from its rightful owner, defendant's former employer in Alexandria, with the intent to use the card when defendant was terminated, thereby completing the crime of credit card theft in Alexandria, even though defendant committed the crime of credit card fraud, in violation of § 18.2-195 , by using the card to make personal purchases in Maryland. Baldwin v. Commonwealth,, 2011 Va. App. LEXIS 348 (Nov. 15, 2011).

Circuit court did not err in concluding that venue was proper in that court to prosecute defendant for the credit card theft charge related to the unused credit card; defendant possessed four stolen credit cards and used three of them at an Arlington County store, he possessed all cards without the owner's permission, and he lied repeatedly to the police about his identity and how he came to possess the cards, showing he possessed the unused card with the requisite intent to use it in Arlington County. Bryant v. Commonwealth, 70 Va. App. 697, 832 S.E.2d 48, 2019 Va. App. LEXIS 200 (2019).

Venue improper. - Defendant's possession of the male victim's credit card number was based on the fact that he had the number when he was arrested in Arlington County, and at that point, the credit card number had already been used to purchase a laptop computer in Fairfax and the crime of credit card fraud in violation of § 18.2-195 was complete. Therefore, possession of the credit card number in Arlington County subsequent to the commission of the crime could not further the crime, and the Court of Appeals' judgment sustaining the trial court's ruling that venue was proper in Arlington County under § 18.2-198.1 was erroneous and had to be set aside. Gheorghiu v. Commonwealth, 280 Va. 678 , 701 S.E.2d 407, 2010 Va. LEXIS 268 (2010).

§ 18.2-199. Penalties for violation of article.

Persons violating any provision of this article for which no other specific punishment is provided for shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-125.10; 1968, c. 480; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 4; 8B M.J. Fraud and Deceit, § 71.

Article 7. Miscellaneous False and Fraudulent Acts.

§ 18.2-200. Failure to perform promise to deliver crop, etc., in return for advances.

If any person obtain from another an advance of money, merchandise or other thing, upon a promise in writing that he will send or deliver to such other person his crop or other property, and fraudulently fail or refuse to perform such promise, and also fail to make good such advance, he shall be deemed guilty of the larceny of such money, merchandise or other thing.

(Code 1950, § 18.1-113; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-200.1. Failure to perform promise for construction, etc., in return for advances.

If any person obtain from another an advance of money, merchandise or other thing, of value, with fraudulent intent, upon a promise to perform construction, removal, repair or improvement of any building or structure permanently annexed to real property, or any other improvements to such real property, including horticulture, nursery or forest products, and fail or refuse to perform such promise, and also fail to substantially make good such advance, he shall be deemed guilty of the larceny of such money, merchandise or other thing if he fails to return such advance within fifteen days of a request to do so sent by certified mail, return receipt requested, to his last known address or to the address listed in the contract.

(1980, c. 459; 1987, c. 358.)

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 3; 12A M.J. Larceny, § 2.

CASE NOTES

Elements of offense. - This section consists of the following five elements: (1) obtaining an advance of money from another person; (2) a fraudulent intent at the time the advance is obtained; (3) a promise to perform construction or improvement involving real property; (4) a failure to perform the promise; and (5) a failure to return the advance within fifteen days of a request to do so by certified mail to the defendant's last known address or his address listed in the contract. Raymer v. Commonwealth, No. 0586-99-2, 2000 Va. App. LEXIS 265 (Ct. of Appeals Apr. 11, 2000); Baugh v. Commonwealth, No. 0348-00-2, 2001 Va. App. LEXIS 589 (Ct. of Appeals Oct. 23, 2001).

Elements of offense. - When considering the requirement of the construction fraud statute to prove a victim demanded return of an advance, an unequivocal demand had to be proved because the textual simplicity of the statute's description of the required notice meant the notice could not include anything other than an unqualified demand. Bowman v. Commonwealth, 290 Va. 492 , 777 S.E.2d 851, 2015 Va. LEXIS 139 (2015).

Circuit court erred in convicting defendant of failure to perform a promise for construction in return for advances because the Commonwealth failed to prove proper notice under the statute where, while the homeowner sent a demand letter by certified mail and defendant received it, defendant was convicted of a "non-offense" inasmuch as the demand was not sent return receipt requested, defendant did not have the burden to explain how a return receipt request would provide different notice than the method employed by the homeowner. Johnson v. Commonwealth, No. 0751-16-2, 2017 Va. App. LEXIS 134 (May 23, 2017).

Fraud depends on circumstances. - Whether fraud actually existed will depend upon the circumstances of each case. Norman v. Commonwealth, 2 Va. App. 518, 346 S.E.2d 44 (1986).

And conduct and representations of defendant. - To determine whether or not there was fraudulent intent, the court will look to the conduct and representations of the defendant. Norman v. Commonwealth, 2 Va. App. 518, 346 S.E.2d 44 (1986).

Fraudulent intent. - A defendant's use of false statements is a significant factor that tends to prove fraudulent intent in construction fraud. Rader v. Commonwealth, 15 Va. App. 325, 423 S.E.2d 207 (1992).

Trial court did not err in admitting evidence that builder violated three building code provisions. Evidence of the violations was relevant and probative because it tended to show his state of mind in performing the contract and his intent to defraud. Rader v. Commonwealth, 15 Va. App. 325, 423 S.E.2d 207 (1992).

Construction fraud can occur despite the fact that a builder or contractor begins to perform on the contract. The relevant question is whether a builder or contractor, in accepting an advance based upon future work promised, had fraudulent intent not to perform or to perform only partially, not whether the contractor had performed work for which he was paid. Rader v. Commonwealth, 15 Va. App. 325, 423 S.E.2d 207 (1992).

The time for determining fraudulent intent is the time at which the defendant procures the advance, not at the time the parties enter into the contract. Rader v. Commonwealth, 15 Va. App. 325, 423 S.E.2d 207 (1992).

A trial judge could infer intent to defraud from the defendant's failure to do anything in furtherance of his promise to perform after he received payment and also could consider as evidence tending to prove intent to defraud, as well as from the defendant's pattern of conduct regarding the two victims, who were neighbors, and others. Raymer v. Commonwealth, No. 0586-99-2, 2000 Va. App. LEXIS 265 (Ct. of Appeals Apr. 11, 2000).

When a defendant is alleged to have failed to perform construction in return for an advance of money, whether a fraudulent intent existed at the time the advance was obtained depends upon the circumstances of the case; the defendant's conduct and representations must be examined in order to determine if a fraudulent intent existed at the time. A defendant's use of false statements is a significant factor that tends to prove fraudulent intent in construction fraud. Baugh v. Commonwealth, No. 0348-00-2, 2001 Va. App. LEXIS 589 (Ct. of Appeals Oct. 23, 2001).

In a construction fraud case under § 18.2-200.1 , the evidence was insufficient to support a finding that defendant obtained an advance of funds with fraudulent intent where defendant's false representation and his failure to timely complete the project were the sole factors indicative of a fraudulent intent. While defendant's performance and progress were below expectations, the evidence showed that defendant was working, albeit leisurely, towards completing the contract. Davis v. Commonwealth,, 2010 Va. App. LEXIS 287 (July 20, 2010).

Payment due at specified stage in project. - The fact that a payment is due at a specified stage in a project does not, without more, prove whether it is payment for work completed or an advance or draw for work to be done. Rader v. Commonwealth, 15 Va. App. 325, 423 S.E.2d 207 (1992).

Evidence probative of state of mind. - Investigator's testimony that he discussed with defendant, before the alleged construction fraud at issue occurred, his failure to return advances to several of his clients, was properly admitted as it was probative of defendant's state of mind and his intent to defraud the victims in the instant case. Mughrabi v. Commonwealth, 38 Va. App. 538, 567 S.E.2d 542, 2002 Va. App. LEXIS 446 (2002).

Evidence supported the jury's finding of fraudulent intent at the time contractor received an additional $400 for construction improvements job. Contractor's removal of equipment from the job site immediately after he obtained the $400, without performing any additional work, entitled the jury to infer that the intent not to do further work existed when appellant took the money. Fenlason v. Commonwealth, No. 1492-91-2 (Ct. of Appeals Jan. 12, 1993).

Promise to do something in the future is not the equivalent of "substantially making good such advance," even if the defendant had offered to repay the advance. Norman v. Commonwealth, 2 Va. App. 518, 346 S.E.2d 44 (1986).

Construction fraud can occur despite the fact that a builder begins work on contract; the relevant question is whether a builder or contractor obtained an advance based upon future work promised with a fraudulent intent not to perform or to perform only partially, not whether the contractor had performed work for which he was paid. Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210, 2002 Va. App. LEXIS 376 (2002), aff'd on rehearing, 39 Va. App. 522, 574 S.E.2d 756 (2003).

A septic system falls within the scope of this section since it is a tangible object (a "structure") permanently annexed to real property. Boothe v. Commonwealth, 4 Va. App. 484, 358 S.E.2d 740 (1987).

Proof of actual receipt of notice of demand to return payment was not needed. Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210, 2002 Va. App. LEXIS 376 (2002), aff'd on rehearing, 39 Va. App. 522, 574 S.E.2d 756 (2003).

Commonwealth did not have to prove that defendant received an actual notice from the victim requesting the return of funds that the victim advanced to defendant for construction that was never performed as § 18.2-200.1 only required that the victim send a request for return of the funds advanced via certified mail with a return receipt requested, and the evidence showed that the victim followed that requirement. Holsapple v. Commonwealth, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 (2003).

Commonwealth did not have to admit into evidence the return receipt of a request for return of money advanced to prove construction fraud under § 18.2-200.1 ; a request constituted sufficient notice if it was sent by certified mail, return receipt requested, without proof of actual receipt. Holsapple v. Commonwealth, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39 (2004).

Language of § 18.2-200.1 plainly means that a request for a return of money advanced on a construction project is sufficient notice if sent by certified mail, return receipt requested, without proof of actual receipt, unlike the notices required by the bad check law, former § 6.1-117, now codified at § 18.2-183 , Virginia Tort Claims Act, § 8.01-195.1 et seq., the Virginia Habitual Offenders Act, former § 46.2-355, repealed in 1999, and the Virginia Interstate Agreement on Detainers, art. III(b), found in § 53.1-210 . Holsapple v. Commonwealth, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39 (2004).

Producing receipts which show defendant expended more than he received. - Nothing in this section supports the argument that, so long as a defendant can produce receipts indicating that he expended more than the amount of money he received in advances, he cannot be prosecuted for fraud, even if he fraudulently obtained some advances. Jimenez v. Commonwealth, 10 Va. App. 277, 392 S.E.2d 827 (1990), reversed on other grounds, 241 Va. 244 , 402 S.E.2d 678 (1991).

A letter sent to the defendant by the victim met the requirements of the statute, notwithstanding that it did not cite the statute and that it demanded amounts in addition to an amount advanced for construction work, where the letter informed the defendant that his contract was canceled and expressly requested return of the advance. Sensabaugh v. Commonwealth, No. 2811-97-3 (Ct. of Appeals Feb. 9, 1999).

The victim's letter to defendant demanding return of the entire amount paid for the construction project, instead of just the advance which had not been applied to the project, which was sent by certified mail, return receipt requested, was a sufficient demand. Baugh v. Commonwealth, No. 0348-00-2, 2001 Va. App. LEXIS 589 (Ct. of Appeals Oct. 23, 2001).

Certified letters sent to last known address. - The requirement that the victim demand return of the amount paid was satisfied where the evidence proved that the two victims sent certified letters, with return receipts requested, to the defendant and that both victims used the address that appeared on the defendant's contract with one of the victims; the fact that one of the letters was returned unclaimed and that the defendant denied receiving the other did not preclude a conviction where no evidence tended to prove that the address used by the victims was not the defendant's last known address. Raymer v. Commonwealth, No. 0586-99-2, 2000 Va. App. LEXIS 265 (Ct. of Appeals Apr. 11, 2000).

Incorrect zip code. - Where the customer used the correct street address, city, and state and an incorrect zip code on the envelope, but used the proper zip code on the certified mail card, the legally required notice of the customer's claim was in invalidated. McCary v. Commonwealth, 42 Va. App. 119, 590 S.E.2d 110, 2003 Va. App. LEXIS 700 (2003).

Phone conversation failed to satisfy notice requirement. - Demand to builder by homeowner for the return of the advances by telephone only six days prior to builder's arrest did not waive the statutory requirement of a written notice by certified mail. The notice requirement of this section was a material element of the offense charged, and the omission of the element in the jury instruction, as well as the failure to produce evidence thereof, constituted reversible error. Jimenez v. Commonwealth, 241 Va. 244 , 402 S.E.2d 678 (1991).

Failure to assert error at trial court level. - Trial court held that appellant waived an assignment of error asserting that the trial court erred by not applying all of the necessary elements of § 18.2-200.1 when it found him guilty of construction fraud, because he never raised the issue in the trial court, thus, the issue was not preserved for review. Sexton v. Commonwealth, No. 0352-12-2, 2013 Va. App. LEXIS 119 (Ct. of Appeals Apr. 16, 2013).

Prosecution was not in bad faith although motive debt collection. - Criminal prosecution for larceny was not a bad faith prosecution even where the motive was debt collection. Starr v. Virginia, 147 Bankr. 380 (Bankr. E.D. Va. 1991).

Testimony of witnesses on defendant's business relationships with them properly admitted. - Where defendant objected to the Commonwealth's evidence concerning defendant's failure to complete improvements for witnesses, and where the Commonwealth argued that the two witnesses contracted with defendant contemporaneously with defendant's dealings with the church and that the witnesses would tend to prove that defendant's acceptance of advance money and failure to complete the work were not isolated events and indicated fraudulent intent, the trial judge did not err in ruling that the evidence tended to cast light on defendant's business practices and intent when accepting advances of money. Moreover, the testimony of the two homeowners was not rendered inadmissible merely because it proved conduct that did not rise to the level of criminal conduct. Gilyard v. Commonwealth, No. 1188-92-2 (Ct. of Appeals Dec. 28, 1993).

Sufficiency of evidence. - The circumstantial evidence of the defendant's fraudulent intent at the time he contracted to install a septic system and driveway was insufficient to sustain the conviction, where the Commonwealth did not establish that the defendant made any false statements to the other party inducing him to enter into the contract, the defendant actually began working on the property shortly after the modification to the contract was signed, the defendant's father was taken ill and died during this period, and the contract did not require that any funds be put into an escrow account. Boothe v. Commonwealth, 4 Va. App. 484, 358 S.E.2d 740 (1987).

Evidence was sufficient to support a conviction where the defendant requested money for a subsequent third draw representing that the advance was needed to get the finishing materials and to pay his workers, but within a week of receiving the third draw, the defendant and his workers packed their tools and left the job without completing work. Sensabaugh v. Commonwealth, No. 2811-97-3 (Ct. of Appeals Feb. 9, 1999).

Evidence was sufficient to prove defendant's intent to defraud, despite his explanations for his delays in performing the work (inclement weather and his heart attack), as he had a pattern of demanding advances for supplies he never purchased and he falsely told the victims that he had several crews working for him, and the jury had the right to disbelieve his exculpatory testimony. Mughrabi v. Commonwealth, 38 Va. App. 538, 567 S.E.2d 542, 2002 Va. App. LEXIS 446 (2002).

Evidence was sufficient to prove beyond a reasonable doubt that defendant violated § 18.2-200.1 as defendant's conduct and representations demonstrated that defendant obtained advanced funds from the victim and the victim's brother-in-law with the fraudulent intent not to complete the construction project for which they had advanced funds and at a time when defendant knew defendant would have to report to jail within a matter of days. Holsapple v. Commonwealth, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 (2003); Holsapple v. Commonwealth, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39 (2004).

Evidence that defendant made promises to modular home customers that he failed to fulfill, failed to obtain a contractor's license, failed to communicate with customers, and failed to inform customers of the company's financial difficulties was sufficient to prove that defendant obtained advances from customers with the requisite fraudulent intent. McCary v. Commonwealth, 42 Va. App. 119, 590 S.E.2d 110, 2003 Va. App. LEXIS 700 (2003).

Because defendant admitted to a construction contract, admitted to the terms of its rescission, including an agreement to return the money within a week, and admitted to never returning the money, the evidence was sufficient to establish defendant's guilt of contractor fraud under § 18.2-200.1 . Short v. Commonwealth,, 2005 Va. App. LEXIS 262 (July 5, 2005).

Homeowner's testimony that he gave defendant $1,500 after he reviewed defendant's written proposal to paint his house for $4,000, and that defendant did not paint the house and did not return the money for more than 30 days after he made a written demand for return of the money, was sufficient to sustain defendant's conviction for contractor fraud. Heywood v. Commonwealth,, 2006 Va. App. LEXIS 220 (May 23, 2006).

Sufficient evidence was presented in defendant's case from which the trial court could find defendant guilty of construction fraud in violation of § 18.2-200.1 . The evidence showed that: (1) defendant obtained an advance of money to perform residential siding work for the homeowners; (2) that the advance was obtained after defendant made a fraudulent promise to the homeowners that defendant would perform such work; and (3) that defendant neither kept defendant's promise nor returned the advance despite the homeowners' request by certified mail that defendant do so. Pitts v. Commonwealth,, 2008 Va. App. LEXIS 85 (Feb. 19, 2008).

Evidence was not sufficient to support appellant's conviction for construction fraud, in violation of § 18.2-200.1 , because although the combination of the circumstances did not excuse appellant from performing his contract, the record did not support the conclusion that he did not intend to complete the work when he accepted the advance; attempts were made, either by men who worked with appellant or by someone on appellant's behalf, to complete the work. Dyer v. Commonwealth,, 2010 Va. App. LEXIS 34 (Jan. 26, 2010).

Evidence that defendant took money in separate advances from the victim, defendant bought no materials, defendant hired no laborers, and defendant never climbed on the roof to nail down the first shingle was sufficient to support defendant's conviction for construction fraud. Dennos v. Commonwealth, 63 Va. App. 139, 754 S.E.2d 913, 2014 Va. App. LEXIS 72 (Mar. 11, 2014).

Defendant's construction fraud conviction was reversed because the evidence did not prove the victim made an unqualified demand for return of an advance, as (1) nothing showed the victim's first letter to the defendant was addressed to the defendant's last known address, (2) the victim's testimony that the victim was trying to get the victim's pool liner back so the victim could get the victim's pool fixed did not show the required unequivocal demand for return of the advance the victim paid, nor could such a demand be inferred beyond a reasonable doubt, and (3) the victim could not recall the contents of either letter the victim sent to the defendant. Bowman v. Commonwealth, 290 Va. 492 , 777 S.E.2d 851, 2015 Va. LEXIS 139 (2015).

Evidence that defendant deposited the victims' check, did not begin work on the roof or deliver any materials to the job site, and made false representations about the status of the deposit check months after he deposited it was sufficient to support defendant's conviction for construction fraud. Wood v. Commonwealth, No. 0060-16-1, 2016 Va. App. LEXIS 338 (Ct. of Appeals Dec. 13, 2016).

Insufficient evidence of fraudulent intent. - Conviction for construction fraud was not supported by sufficient evidence that defendant had fraudulently intended to induce homeowners to provide an advance of funds; he openly admitted that he was struggling financially, his wife was ill, and he was responsible for four children. His failure to perform the contract or return the advanced funds could have been due to poor management, financial distress or both. Phillips v. Commonwealth,, 2008 Va. App. LEXIS 46 (Jan. 29, 2008).

Evidence failed to show that defendant obtained a contract advance by promising to perform electrical work with fraudulent intent because defendant only failed to complete the contract work and there was no showing of any false statements to induce the victim to pay him the advance or other duplicitous conduct. Parrish v. Commonwealth,, 2010 Va. App. LEXIS 125 (Mar. 30, 2010).

Jury instructions. - Defendant's conviction for construction fraud, in violation of § 18.2-200.1 was overturned where one of the jury instructions erroneously suggested the weight that should have been given to specific evidence and impermissibly commented upon the evidence. The trial court was not entitled to emphasize such evidence to the jury for use in its decision on whether defendant acted with fraudulent intent. Keefer v. Commonwealth, 56 Va. App. 520, 694 S.E.2d 802, 2010 Va. App. LEXIS 272 (2010).

Applied in Klink v. Commonwealth, 12 Va. App. 815, 407 S.E.2d 5 (1991); Bottoms v. Commonwealth, 281 Va. 23 , 704 S.E.2d 406, 2011 Va. LEXIS 22 (2011); Smith v. Commonwealth, 59 Va. App. 710, 722 S.E.2d 310, 2012 Va. App. LEXIS 56 (2012).

§ 18.2-201. Advances secured by fraudulent promise to perform agricultural labor.

If any person enter into a contract of employment, oral or written, for the performance of personal service to be rendered within one year, in and about the cultivation of the soil, and, at any time during the pendency of such contract, thereby obtain from the landowner, or the person so engaged in the cultivation of the soil, advances of money or other thing of value under such contract, with intent to injure or defraud his employer, and fraudulently refuses or fails to perform such service or to refund such money or other thing of value so obtained, he shall be guilty of a Class 3 misdemeanor. But no prosecution hereunder shall be commenced more than sixty days after the breach of such contract.

(Code 1950, § 18.1-114; 1960, c. 358; 1975, cc. 14, 15.)

§§ 18.2-202, 18.2-203.

Repealed by Acts 2004, c. 459.

Editor's note. - Former § 18.2-202 , pertaining to false statements by purchaser of real property as to use for personal residence, derived from Code 1950, § 18.1-119.2; 1962, c. 593; 1975, cc. 14, 15. Former § 18.2-203, pertaining to false statement or willful overvaluation of property for purpose of influencing lending institution, derived from Code 1950, § 18.1-119.3; 1966, c. 223; 1975, cc. 14, 15.

§ 18.2-204. False statement for the purpose of defrauding industrial sick benefit company.

Any agent, physician or other person who shall knowingly or willfully make any false or fraudulent statement or representation of any material fact:

  1. In or with reference to any application for insurance in any industrial sick benefit company licensed, or which may be licensed, to do business in this Commonwealth,
  2. As to the death or disability of a policy or certificate holder in any such company,
  3. For the purpose of procuring or attempting to procure the payment of any false or fraudulent claim against any such company, or
  4. For the purpose of obtaining or attempting to obtain any money from or benefit in any such company,

    shall be guilty of a Class 3 misdemeanor.

    Any such person who shall willfully make a false statement of any material fact or thing in a sworn statement as to the death or disability of a policy or certificate holder in any such company for the purpose of procuring payment of a benefit named in the policy or certificate of such holder, shall be guilty of perjury, and shall be proceeded against and punished as provided by the statutes of this Commonwealth in relation to the crime of perjury.

    (Code 1950, § 18.1-122; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury," see 44 Wash. & Lee L. Rev. 1257 (1988).

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 4.

§ 18.2-204.1. Fraudulent use of birth certificates, etc.; penalty.

  1. Any person who obtains or possesses a fictitious birth certificate or the birth certificate of another for the purpose of establishing a false identity for himself is guilty of a Class 1 misdemeanor. Any person who manufactures, sells, or transfers a fictitious birth certificate or the birth certificate of another for the purpose of establishing a false identity for himself or for another person is guilty of a Class 6 felony.
  2. Except as provided in subsection A, any person who obtains, possesses, sells, or transfers any document for the purpose of establishing a false status, occupation, membership, license or identity for himself or any other person is guilty of a Class 1 misdemeanor.
  3. Any person who obtains, possesses, sells, or transfers such birth certificate or document with the intent that such certificate or document be used to purchase a firearm is guilty of a Class 6 felony.
  4. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies in the performance of their duties.
  5. The provisions of this section shall not preclude prosecution under any other statute.

    (1978, c. 615; 1979, c. 479; 1981, c. 593; 2003, cc. 889, 914, 918; 2006, c. 271; 2011, c. 401.)

The 2003 amendments. - The 2003 amendment by c. 889, in subsection A, deleted "or" preceding "possess" and inserted "sell, or transfer" thereafter; in subsection B, inserted "obtain"; and in subsection C, substituted "violates" for "shall violate."

The 2003 amendments by cc. 914 and 918 are identical, and in subsection A, deleted "or" preceding "possess" and inserted "sell or transfer" thereafter; and inserted "obtain" in subsection B.

The 2006 amendments. - The 2006 amendment by c. 271 added subsection E.

The 2011 amendments. - The 2011 amendment by c. 401 rewrote subsections A, B and C.

§ 18.2-204.2. Manufacture, sale, etc., or possession of fictitious, facsimile or simulated official license or identification; penalty.

  1. Except as provided in subsection D of § 18.2-204.1 , it shall be unlawful for any person to manufacture, advertise for sale, sell or possess any fictitious, facsimile or simulated driver's license issued by any state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or any foreign country or government; United States Armed Forces identification card; United States passport or foreign government visa; Virginia Department of Motor Vehicles special identification card; official identification issued by any other federal, state or foreign government agency; or official student identification card of an institution of higher education, or in any way reproduce any identification card or facsimile thereof in such a manner that it could be mistaken for a valid license or identification of any type specified in this subsection.
  2. Any person manufacturing, advertising for sale, selling or reproducing such card or facsimile thereof shall be guilty of a Class 1 misdemeanor.
  3. Any person possessing any such card or facsimile thereof shall be guilty of a Class 2 misdemeanor.
  4. The provisions of this section shall not preclude an election to prosecute under § 18.2-172 , except to prosecute for forgery or uttering of such license or identification card or facsimile thereof as proof of age. (1980, c. 281; 1989, c. 705; 1992, c. 531; 2006, cc. 445, 484; 2011, c. 401.)

Editor's note. - At the direction of the Virginia Code Commission, "student identification card of an institution of higher education" was substituted for "university or college student identification card" in subsection A to conform to Acts 2016, c. 588.

The 2006 amendments. - The 2006 amendments by cc. 445 and 484 are identical, and added subsection D.

The 2011 amendments. - The 2011 amendment by c. 401 added the exception at the beginning in subsection A and made a related change.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Identity, § 1; 9B M.J. Infants & Juveniles, § 81.

§ 18.2-204.3. Transfers for the sole or primary purpose of obtaining a lower unemployment tax rate; penalty.

  1. Any person who transfers or attempts to transfer any trade or business to another person, where the sole or primary purpose of the transfer is to obtain a lower unemployment tax rate, is guilty of a Class 1 misdemeanor.
  2. Any person who knowingly advises another person to transfer any trade or business to another person where the sole or primary purpose of the transfer is to obtain a lower unemployment tax rate, is guilty of a Class 1 misdemeanor.
  3. Any person who is found guilty of more than two such actions under subsections A or B is guilty of a Class 6 felony.
  4. It shall be the duty of the attorney for the Commonwealth to whom the Commission shall report, pursuant to subsection B of § 60.2-500 , any violation of this section, to determine whether to proceed with prosecution. (2005, cc. 47, 91.)

Effective date. - This section became effective March 20, 2005.

§ 18.2-205. False pretense in obtaining registration of cattle and other animals and giving false pedigree.

Every person who by any false pretense shall obtain from any club, association, society or company for improving the breed of cattle, horses, sheep, swine or other domestic animals the registration of any animal in the herd register or other register of any such club, association, society or company, or a transfer of any such registration, and every person who shall knowingly give a false pedigree of any animal shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-123; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. False Pretenses and Cheats, § 4.

§ 18.2-206. Procuring an animal, aircraft, vehicle or boat with intent to defraud.

If any person procure any such animal, aircraft, vehicle, boat or vessel mentioned in § 18.2-149 by fraud or by misrepresenting himself as some other person or with the intent to cheat or defraud such other person, he shall be guilty of a Class 1 misdemeanor. The failure to pay the rental for or damage to such animal, aircraft, vehicle, boat or vessel, or absconding without paying such rental or damage, shall be prima facie evidence of the intent to defraud at the time of renting or leasing such animal, aircraft, vehicle, boat or vessel.

(Code 1950, § 18.1-162; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 126; 2C M.J. Aviation, § 1; 12A M.J. Livery Stables, § 1; 18 M.J. Trespass, § 27.

CASE NOTES

Relationship to other law. - Crimes in which fraud was an ingredient had always been regarded as involving moral turpitude, and at a minimum, petitioner alien's conviction for violating § 18.2-206 by procuring a vehicle with intent to defraud qualified as a morally turpitudinous act. Kporlor v. Holder, 597 F.3d 222, 2010 U.S. App. LEXIS 4734 (4th Cir. 2010), cert. denied, 131 S. Ct. 503, 178 L. Ed. 2d 370, 2010 U.S. LEXIS 8464 (U.S. 2010).

§ 18.2-207. Making false entry, etc., in marriage register, etc.

If any clerk of a court, commissioner of the revenue, physician, surgeon, medical examiner or minister celebrating a marriage, or clerk or keeper of the records of any religious society, shall, in any book, register, record, certificate or copy which such person is by Title 20 (§ 20-13 et seq.) required to keep, make, or give, knowingly make any false, erroneous, or fraudulent entry, record, registration, or written statement, he shall, for every such offense, be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-98; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Falsifying accounts, § 2.

§ 18.2-208. Making false statement, etc., for marriage record, etc.

If any person, upon whose information or statement any record or registration may lawfully be made under Title 20 (§ 20-13 et seq.), knowingly give any false information, or make any false statement to be used for the purpose of making any such record or registration, he shall, for every such offense, be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-99; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Falsifying accounts, § 2.

§ 18.2-209. False publications.

Any person who knowingly and willfully states, delivers or transmits by any means whatever to any publisher, or employee of a publisher, of any newspaper, magazine, or other publication or to any owner, or employee of an owner, of any radio station, television station, news service or cable service, any false and untrue statement, knowing the same to be false or untrue, concerning any person or corporation, with intent that the same shall be published, broadcast or otherwise disseminated, shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-407; 1960, c. 358; 1975, cc. 14, 15; 1978, c. 359.)

Michie's Jurisprudence. - For related discussion, see 12A M.J. Libel and Slander, § 49; 13B M.J. Newspapers, § 6.

§ 18.2-209.1. Penalties for false certificate or failure to give bond.

  1. If any clerk make a certificate as to any bond of a special commissioner appointed under Article 11 (§ 8.01-96 et seq.) of Chapter 3 of Title 8.01, knowing it to be false, he shall be guilty of a Class 3 misdemeanor, and shall, upon conviction, be removed from his office.
  2. If any special commissioner appointed under Article 11 of Chapter 3 of Title 8.01 shall advertise property for sale or rent, and shall sell or rent the same before he shall have given bond as is required by § 8.01-99 , he shall be guilty of a Class 3 misdemeanor. (1978, c. 718.)

§ 18.2-209.2. Failure of clerk to give notice of appointment of special commissioner to collect purchase money or rent.

If any clerk fail to give notice as required by § 8.01-103 of a special commissioner, he shall be guilty of a Class 4 misdemeanor.

(1978, c. 718.)

§ 18.2-210. Stamping, etc., on newspapers, any word, etc., to cause belief it was done by publisher; circulating such newspapers.

No person, without first obtaining the consent of the publisher so to do, shall affix to, or place or insert in, or print, stamp or impress upon any newspaper or any part thereof, after the same shall have been issued for circulation by the publisher thereof, any word, figure, design, picture, emblem or advertisement with intent to cause, or which when so affixed, placed, inserted, printed, stamped or impressed may cause, the public to believe that such word, figure, design, picture, emblem or advertisement was affixed, placed, printed, inserted, stamped or impressed in and upon such newspaper by the publisher of the same as a part thereof.

No person shall knowingly circulate, distribute or sell, or cause to be circulated, distributed or sold, any newspaper upon which has been so affixed, placed, inserted, printed, stamped or impressed any word, figure, design, picture, emblem or advertisement in violation of the terms hereof.

Any person violating the provisions hereof shall be guilty of a Class 4 misdemeanor. Each violation shall constitute a separate offense.

(Code 1950, § 18.1-409; 1960, c. 358; 1964, c. 560; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 13B M.J. Newspapers, § 6.

§ 18.2-211.

Repealed by Acts 2004, c. 459.

Editor's note. - Former § 18.2-211 , pertaining to unlawful use of words "Official Tourist Information" or similar language, derived from Code 1950, § 18.1-408; 1960, c. 358; 1975, cc. 14, 15.

§ 18.2-212. Calling or summoning emergency medical services vehicle or firefighting apparatus without just cause; maliciously activating fire alarms; venue.

  1. Any person who without just cause therefor calls or summons, by telephone or otherwise, any emergency medical services vehicle or firefighting apparatus, or any person who maliciously activates a manual or automatic fire alarm in any building, regardless of whether an emergency medical services vehicle or fire apparatus responds or not, is guilty of a Class 1 misdemeanor.
  2. A violation of this section may be prosecuted either in the jurisdiction from which the call or summons was made or in the jurisdiction where the call or summons was received.

    (Code 1950, § 18.1-412; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 75; 1982, c. 502; 2015, cc. 502, 503; 2017, cc. 98, 519.)

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and in subsection A, substituted "emergency medical services vehicle or firefighting apparatus" for "ambulance, or fire-fighting apparatus," inserted "an emergency medical services vehicle or" following "whether" and substituted "is guilty" for "shall be deemed guilty."

The 2017 amendments. - The 2017 amendments by cc. 98 and 519 are identical, and deleted "used for public assembly or for other public use, including, but not limited to, schools, theaters, stores, office buildings, shopping centers and malls, coliseums, and arenas" following "any building" in subsection A.

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fires, § 14.

§ 18.2-212.1. Unlawful for person not blind or incapacitated to carry white, white tipped with red or metallic cane.

It is unlawful for any person, unless totally or partially blind or otherwise incapacitated, while on any public street or highway to carry in a raised or extended position a cane or walking stick which is metallic or white in color or white tipped with red. Any person violating any provisions of this section shall be guilty of a Class 4 misdemeanor.

(Code 1950, §§ 46.1-238, 46.1-239; 1958, c. 541; 1964, c. 20; 1975, cc. 14, 15.)

§ 18.2-213. Simulation of warrants, processes, writs and notices.

Any person who, for the purpose of collecting money, shall knowingly deliver, mail, send or otherwise use or cause to be used any paper or writing simulating or intended to simulate any warrant, process, writ, notice of execution lien or notice of motion for judgment shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-313; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 7 Commencement of Actions: Complaints, etc. § 7.01 Civil Actions Generally. Friend.

§ 18.2-213.1. Obtaining certification as small, women-owned, or minority-owned business by deception; penalty.

  1. Except as otherwise provided by § 18.2-498.3 , a person shall be guilty of a Class 1 misdemeanor if, in the course of business, he:
    1. Fraudulently obtains or retains certification as a small, women-owned, or minority-owned business;
    2. Willfully makes a false statement knowing it to be untrue, whether by affidavit, report or other representation, to an official or employee of a public body for the purpose of influencing the certification or denial of certification of any business entity as a small, women-owned, or minority-owned business;
    3. Willfully obstructs or impedes any agency official or employee who is investigating the qualifications of a business entity which has requested certification as a small, women-owned, or minority-owned business; or
    4. Fraudulently obtains public moneys reserved for or allocated or available to small, women-owned, or minority-owned businesses.
  2. For the purposes of this section, "minority-owned business," and "small business" and "women-owned business" shall have the same meaning as those terms are defined in § 2.2-1604 . (1987, c. 689; 1989, c. 570; 2006, cc. 831, 921; 2009, c. 869; 2013, c. 482; 2015, cc. 696, 697.)

Editor's note. - Acts 2013, c. 482, cl. 7 provides: "That the provisions of this act shall become effective on January 1, 2014."

The 2006 amendments. - The 2006 amendments by cc. 831 and 921 are identical, and substituted "small, women- or minority-owned business" for "minority" in subdivisions A 1 through A 4; and rewrote subsection B.

The 2009 amendments. - The 2009 amendment by c. 869 substituted "small, women-owned, or minority-owned" for "small, women- or minority-owned" wherever it appears, deleted "enterprise" following "business" at the end of subdivisions A 1 through A 4; and in subsection B, deleted "disadvantaged business enterprise" following "purposes of this section" and added the language beginning "and 'disadvantaged business' shall."

The 2013 amendments. - The 2013 amendment by c. 482, effective January 1, 2014, substituted "women-owned" for "women-" in subdivision A 4; and substituted " § 2.2-1604 " for " § 2.2-1401" in subsection B.

The 2015 amendments. - The 2015 amendments by cc. 696 and 697 are identical, and deleted "or disadvantaged business" at the end of subdivisions A 1 through 4, and deleted "and 'disadvantaged business' shall mean the same as that term is defined in § 2.2-2311 " at the end of subsection B.

§ 18.2-213.2. Filing false lien or encumbrance against another.

Any person who maliciously files a lien or encumbrance in a public record against the real or personal property of another knowing that such lien or encumbrance is false is guilty of a Class 5 felony. The court in its conviction order or in a separate order, shall direct the clerk of any jurisdiction in which a false lien or encumbrance has been filed to release from record such lien or encumbrance specifically described in the conviction order or separate order, including any notice or memorandum of lien. Such lien or encumbrance shall be deemed invalid and shall be treated as if it was never filed.

(2013, c. 454.)

Research References. - Virginia Forms (Matthew Bender). No. 6-504 Memorandum for Mechanic's Lien by General Contractor, et seq.

Article 8. Misrepresentations and Other Offenses Connected With Sales.

§ 18.2-214. Changing or removing, etc., trademarks, identification marks, etc.

Any person, firm, association or corporation who or which intentionally removes, defaces, alters, changes, destroys or obliterates in any manner or way or who causes to be removed, defaced, altered, changed, destroyed or obliterated in any manner or way any trademark, distinguishment or identification number, serial number or mark on or from any article or device, in order to secrete its identification with intent to defraud, shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 59.1-42 ; 1968, c. 439; 1975, cc. 14, 15.)

Cross references. - As to remedies for violations of this chapter, see § 59.1-68.2 et seq.

Law review. - For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.02 Items Included. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 29 Consumer Actions and Products Liability. § 29.03 Statutory Consumer Actions. Friend.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 2; 8B M.J. False Pretenses and Cheats, § 4.

§ 18.2-214.1. Penalties for failure to report removal or alteration of identification or serial number on business machines.

It shall be unlawful for any person, firm, association, or corporation regularly engaged in the business of repairing, selling, renting or leasing of business machines to fail to report any business machine which such person, firm, association, or corporation knows has an altered or removed identification or serial number. The report shall be made to the appropriate law-enforcement agency for the county, city, or town where such business machine is located.

For purposes of this section, the term "business machines" includes, but is not limited to, typewriters, adding machines, check-writing machines, cash registers, calculators, addressing machines, copying, and accounting equipment, and recording equipment.

Any person, firm, association, or corporation violating the provisions of this section shall be guilty of a Class 4 misdemeanor.

(1981, c. 186; 1982, c. 154.)

§ 18.2-215. Removal or alteration of identification numbers on household electrical appliances; possession of such appliances.

No person, firm, association or corporation, either individually or in association with one or more other persons, firms, associations or corporations shall remove, change or alter the serial number or other identification number stamped upon, cut into or attached as a permanent part of any household or electrical or electronic appliance where such number was stamped upon, cut into or attached to such appliance by the manufacturer thereof.

No person, firm, association or corporation shall knowingly have in his or its possession for the purpose of resale or keep in his possession for a period in excess of forty-eight hours without reporting such possession to the appropriate law-enforcement agency in his county, town or city a household or electrical or electronic appliance, with knowledge that the serial number or other identification number has been removed, changed or altered.

Any person, firm, association or corporation violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 59.1-43; 1968, c. 439; 1975, cc. 14, 15; 1976, c. 305.)

§ 18.2-216. Untrue, deceptive or misleading advertising, inducements, writings or documents.

  1. Any person, firm, corporation or association who, with intent to sell or in anywise dispose of merchandise, securities, service or anything offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, makes, publishes, disseminates, circulates or places before the public, or causes, directly or indirectly to be made, published, disseminated, circulated or placed before the public, in a newspaper or other publications, or in the form of a book, notice, handbill, poster, blueprint, map, bill, tag, label, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding merchandise, securities, service, land, lot or anything so offered to the public, which advertisement contains any promise, assertion, representation or statement of fact which is untrue, deceptive or misleading, or uses any other method, device or practice which is fraudulent, deceptive or misleading to induce the public to enter into any obligation, shall be guilty of a Class 1 misdemeanor.

    The actions prohibited in this section, shall be construed as including (i) the advertising in any manner by any person of any goods, wares or merchandise as a bankrupt stock, receiver's stock or trustee's stock, if such stock contains any goods, wares or merchandise put therein subsequent to the date of the purchase by such advertiser of such stock, and if such advertisement of any such stock fail to set forth the fact that such stock contains other goods, wares or merchandise put therein, subsequent to the date of the purchase by such advertiser of such stock in type as large as the type used in any other part of such advertisement, including the caption of the same, it shall be a violation of this section; and (ii) the use of any writing or document which appears to be, but is not in fact a negotiable check, negotiable draft or other negotiable instrument unless the writing clearly and conspicuously, in at least 14-point bold type, bears the phrase "THIS IS NOT A CHECK" printed on its face.

  2. An allegation made by a plaintiff in a civil pleading that a defendant real estate licensee has violated this section shall be stated with particularity.

    (Code 1950, § 59.1-44; 1968, c. 439; 1975, cc. 14, 15, 507; 2005, c. 150; 2014, cc. 650, 696.)

Editor's note. - The above section is § 59.1-44 as amended by Acts 1975, c. 507, except that "Class 1" has been inserted preceding "misdemeanor" at the end of the first sentence pursuant to Acts 1975, cc. 14 and 15. As required by Acts 1975, c. 589, cl. 2, the above text has been substituted for § 18.2-216 as enacted by Acts 1975, cc. 14 and 15.

The 2005 amendments. - The 2005 amendment by c. 150 divided the provisions of the former section into two paragraphs, deleted "The words 'untrue, deceptive and misleading,' as used" from the end of the first paragraph, added "The actions prohibited" at the beginning of the second paragraph, and substituted "unless the writing clearly and conspicuously, in at least 14-point bold type, bears the phrase 'THIS IS NOT A CHECK' printed on its face" for "notwithstanding the fact that its nonnegotiability is indicated on the writing or document" at the end of the second paragraph.

The 2014 amendments. - The 2014 amendments by cc. 650 and 696 are identical, and inserted the A designation; and added subsection B.

Law review. - For survey of Virginia commercial law for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975). For survey of Virginia commercial law for the year 1978-1979, see 66 Va. L. Rev. 217 (1980).

For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, § 5; 3C M.J. Commercial Law, §§ 34, 36; 17 M.J. Statutes, § 64.

CASE NOTES

This is a penal statute and must be construed strictly. Henry v. R.K. Chevrolet, Inc., 219 Va. 1011 , 254 S.E.2d 66 (1979).

Section applicable to non-oral advertisement only. - In enacting this section, the legislature was addressing itself solely to non-oral advertisement. Henry v. R.K. Chevrolet, Inc., 219 Va. 1011 , 254 S.E.2d 66 (1979).

The amendment to this section, adding the language "or uses any other method, device or practice which is fraudulent, deceptive or misleading to induce the public to enter into any obligation," was not intended to expand the statute to cover verbal practices. Henry v. R.K. Chevrolet, Inc., 219 Va. 1011 , 254 S.E.2d 66 (1979).

Resulting damages. - District court erred in granting summary judgment to plaintiff on a false advertising claim because, while a marketing brochure satisfied the statutory requirements of a false advertisement, under § 18.2-216 , because the brochure was an advertisement and it was, at a minimum, misleading or deceptive, the district court did not consider whether the brochure made plaintiff suffer loss. Persaud Cos. v. IBCS Group, Inc.,, 2011 U.S. App. LEXIS 8497 (4th Cir. Apr. 25, 2011).

Liability. - Where plaintiff asserted that two attorneys committed malpractice in the underlying case by failing to argue that no legally cognizable claim existed against him individually, since he was at all times acting as an employee or agent of the corporate defendant and the attorneys filed Fed. R. Civ. P. 12(b)(6) motion to dismiss, underlying case was filed pursuant to §§ 18.2-216 and 59.1-68.3 , and § 18.2-216 imposed individual liability. Golia v. Buoncristiani,, 2015 U.S. Dist. LEXIS 149860 (W.D. Va. Nov. 4, 2015).

Time limitations. - A cause of action for false advertising brought pursuant to § 59.1-68.3 and this section is subject to the limitation period prescribed in § 8.01-243 rather than the limitation period and accrual date for fraud set forth in §§ 8.01-243 (a) and 8.01-249 (1) , respectively. McMillion v. Dryvit Sys., 262 Va. 463 , 552 S.E.2d 364, 2001 Va. LEXIS 110 (2001).

Buyer of sellers' assets and trademark was precluded from claiming false advertising by the sellers under § 18.2-216 based on the sellers' use of the trademark in violation of the sale agreement, since the two-year limitations period for asserting the claims after the sellers began using the trademark expired, and the sellers' new line of products using the trademark within the limitations period was not shown to edge closer to the buyer in product similarity to warrant a new period of limitations. East West, LLC v. Rahman, 873 F. Supp. 2d 721, 2012 U.S. Dist. LEXIS 78205 (E.D. Va. 2012).

Adequate allegations of false advertising. - Plaintiff car dealership's former owner's claim under § 8.01-221 against defendants, a car manufacturer and its financing division, failed to state a claim as § 8.01-221 did not create a separate private action for the alleged Racketeer Influenced and Corrupt Organizations Act claims' predicate acts, and while § 59.1-68.3 provided private actions for false advertising under §§ 18.2-216 and 18.2-217 , there were no allegations on the nature of such advertising, and an executive's alleged false credentials in a resume was insufficient. Field v. GMAC LLC, 660 F. Supp. 2d 679, 2008 U.S. Dist. LEXIS 110164 (E.D. Va. 2008).

Applied in Koontz v. Jaffarian, 617 F. Supp. 1108 (E.D. Va. 1985); Maldonado v. Nutri/System, 776 F. Supp. 278 (E.D. Va. 1991); Parker-Smith v. Sto Corp., 262 Va. 432 , 551 S.E.2d 615, 2001 Va. LEXIS 87 (2001).

CIRCUIT COURT OPINIONS

A criminal conviction is not a prerequisite to recovery under §§ 18.2-216 and 59.1-68.3 . Va. Beach Rehab Specialists, Inc. v. Augustine Med., Inc., 58 Va. Cir. 379, 2002 Va. Cir. LEXIS 155 (Norfolk 2002).

Action barred by statute of limitations. - Count asserting that defendants violated Virginia's False Advertising Statute, § 18.2-216 , was barred by the statute of limitations of § 8.01-248 because more than two years had passed between the accrual of the cause of action and the filing of the motion for judgment. Fix v. Eakin/Youngtob Assocs., 61 Va. Cir. 604, 2002 Va. Cir. LEXIS 95 (Alexandria 2002).

Plaintiffs' claim that defendant violated § 18.2-216 was time-barred under § 8.01-248 , as plaintiffs "suffered loss" not when they discovered damages allegedly caused by defendant's defective insulation product, but either when that product was chosen by the builders or installed by the subcontractor, as plaintiffs did not receive the quality product and construction contemplated by the contractual relationship with the builder and subcontractor. Lesner Pointe Condo. Ass'n v. Harbour Point Bldg. Corp., 61 Va. Cir. 609, 2002 Va. Cir. LEXIS 424 (Virginia Beach 2002).

Action not barred by statute of limitations. - Limited liability company's plea in bar to buyers' false advertising claim was overruled because the § 8.01-248 two-year statute of limitations began to run on date the home sale went to settlement rather than the contract date, and the suit was thus timely; the buyers did not suffer a loss until they purchased the home, and the purchase was not complete until settlement. Brown v. Labelle, 84 Va. Cir. 258, 2012 Va. Cir. LEXIS 23 (Fairfax County Feb. 2, 2012).

Intent to sell. - Home buyers who contracted to have a home built failed to sufficiently state a cause of action for a violation of § 18.2-216 , where the home buyers failed to allege that the information concerning the home builder's expertise was published with the intent to sell or to induce the public to enter into an obligation. Weiss v. Cassidy Dev. Corp., 61 Va. Cir. 237, 2003 Va. Cir. LEXIS 22 (Fairfax County 2003).

Liablity of corporate agents. - In their suit against a corporation and its agents, as the plaintiffs did not establish that there was any other tort underlying the false advertising statute, § 18.2-216 , the agents could not be held individually liable on the basis of the statutory language alone. 313 Freemason v. Freemason Assocs., 59 Va. Cir. 407, 2002 Va. Cir. LEXIS 365 (Norfolk Aug. 30, 2002).

Adequate allegation of false advertising. - Home purchasers adequately stated a cause of action against the development corporation in that the home purchasers alleged that the development corporation published information regarding its homebuilding expertise with the intent to sell or to induce the public to enter into an obligation, and, thus, development corporation's demurrer as to the home purchasers' demurrer had to be overruled. Weiss v. Cassidy Dev. Corp., 63 Va. Cir. 76, 2003 Va. Cir. LEXIS 183 (Fairfax County 2003).

By providing buyers with literature to induce them to purchase one of its modular homes, and inducing them to contract with a builder, a manufacturer created a nexus between the buyers and builder; therefore, the buyers could bring a false advertising claim against the manufacturer under §§ 18.2-216 and 18.2-217 , even though it was not a party to the contract between the buyers and builder. Cash v. GWVA Corp., 74 Va. Cir. 243, 2007 Va. Cir. LEXIS 169 (Fairfax County 2007).

Inadequate allegation of false advertising. - Homeowners failed to state a claim for false advertisement where they did not allege that the contractor made any non-oral advisement to the public, as the written authority for work the homeowners received from the contractor was a written contract offer that the homeowners accepts. Jenkins Servs., LLC v. Martin, 95 Va. Cir. 5, 2016 Va. Cir. LEXIS 241 (Westmoreland County Feb. 5, 2016).

Allegations subject to proof at trial. - Demurrer was overruled because the allegations of the amended complaint that the clients suffered damages as a result of false advertising was subject to proof at trial. Foster v. Wintergreen Real Estate Co., 81 Va. Cir. 353, 2010 Va. Cir. LEXIS 252 (Nelson County Nov. 16, 2010).

False advertisement allegation insufficient to show statutory conspiracy. - Demurrer dismissing a statutory conspiracy claim against a real estate company and individual brokers was not reconsidered on the theory that § 18.2-216 false advertisement claims showed statutory conspiracy because (1) the claims only alleged false advertising, and (2) the company and the individual defendants were one entity. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

§ 18.2-216.1. Unauthorized use of name or picture of any person; punishment.

A person, firm, or corporation that knowingly uses for advertising purposes, or for the purpose of trade, the name, portrait, or picture of any person resident in the Commonwealth, without having first obtained the written consent of such person, or if dead, of his surviving consort, or if none, his next of kin, or, if a minor, of his or her parent or guardian, as well as that of such minor, shall be deemed guilty of a misdemeanor and be fined not less than $50 nor more than $1,000.

(Code 1950, § 8-650; 1977, c. 624.)

Cross references. - As to suit for injunction and damages for unauthorized use of the name or picture of any person, see § 8.01-40 .

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 26 Tort Actions: Other Common-Law and Statutory Remedies. § 26.14 Invasion of Privacy: Unauthorized Use of Name or Picture. Friend.

Virginia Forms (Matthew Bender). No. 1-1201 Complaint for Unauthorized Use of Name.

§ 18.2-217. Advertising merchandise, etc., for sale with intent not to sell at price or terms advertised; prima facie evidence of violation.

  1. Any person, firm, corporation or association who in any manner advertises or offers for sale to the public any merchandise, goods, commodity, service or thing with intent not to sell, or with intent not to sell at the price or upon the terms advertised or offered, shall be guilty of a Class 1 misdemeanor.
  2. In any prosecution or civil action under this section, the refusal by any person, firm, corporation or association or any employee, agent or servant thereof to sell, or the refusal to sell at the price or upon the terms advertised or offered, any merchandise, goods, commodity, service or thing advertised or offered for sale to the public, shall be prima facie evidence of a violation of this section; provided, that this subsection shall not apply when it is clearly stated in the advertisement or offer by which such merchandise, goods, commodity, service or thing is advertised or offered for sale to the public, that the advertiser or offeror has a limited quantity or amount of such merchandise, goods, commodity, service or thing for sale, and the advertiser or offeror at the time of such advertisement or offer did in fact have at least such quantity or amount for sale.

    (Code 1950, § 59.1-45; 1968, c. 439; 1972, c. 217; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, § 5.

CASE NOTES

Adequate allegations of false advertising. - Plaintiff car dealership's former owner's claim under § 8.01-221 against defendants, a car manufacturer and its financing division, failed to state a claim as § 8.01-221 did not create a separate private action for the alleged Racketeer Influenced and Corrupt Organizations Act claims' predicate acts, and while § 59.1-68.3 provided private actions for false advertising under §§ 18.2-216 and 18.2-217 , there were no allegations on the nature of such advertising, and an executive's alleged false credentials in a resume was insufficient. Field v. GMAC LLC, 660 F. Supp. 2d 679, 2008 U.S. Dist. LEXIS 110164 (E.D. Va. 2008).

CIRCUIT COURT OPINIONS

Adequate allegation of false advertising. - By providing buyers with literature to induce them to purchase one of its modular homes, and inducing them to contract with a builder, a manufacturer created a nexus between the buyers and builder; therefore, the buyers could bring a false advertising claim against the manufacturer under §§ 18.2-216 and 18.2-217 , even though it was not a party to the contract between the buyers and builder. Cash v. GWVA Corp., 74 Va. Cir. 243, 2007 Va. Cir. LEXIS 169 (Fairfax County 2007).

§ 18.2-218. Failure to indicate goods, etc., are "seconds," "irregulars," "secondhand," etc.

Any person, firm, corporation or association who in any manner knowingly advertises or offers for sale to the public any merchandise, goods, commodity or thing which is defective, blemished, secondhand or used, or which has been designated by the manufacturer thereof as "seconds," "irregulars," "imperfects," "not first class," or words of similar import without clearly and unequivocally indicating in the advertisement or offer of the merchandise, goods, commodity or thing or the articles, units or parts, thereof so advertised or offered for sale to the public is defective, blemished, secondhand or used or consists of "seconds," "irregulars," "imperfects" or "not first class," shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 59.1-46; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-219.

Repealed by Acts 1992, c. 768.

Cross references. - For present provisions relating to advertising former or comparative price of merchandise, etc., see § 59.1-207.40 et seq.

§ 18.2-220. Use of word "wholesale" or "wholesaler."

Any person, firm, corporation or association who in any manner in any advertisement or offer for sale to the public of any merchandise, goods, commodity or thing uses the words "wholesale" or "wholesaler" to represent or describe the nature of its business shall be guilty of a Class 1 misdemeanor, unless such person, firm, corporation or association is actually engaged in selling at wholesale the merchandise, goods, commodity or thing advertised or offered for sale.

(Code 1950, § 59.1-48; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-221. Advertising new or used automobiles or trucks.

Any person, firm, corporation or association engaged in selling new or used automobiles or trucks to the public shall be guilty of a Class 2 misdemeanor unless, in any printed advertisement or printed offer in which a price is stated, the following is included: (a) the make, year, and model of such automobile or truck; (b) if reference is made to items of optional equipment which are not included in the advertised price, the additional cost of each such items of optional equipment; and (c) if the manufacturer's suggested retail price is stated, whether such price is an F.O.B. factory or delivered price.

(Code 1950, § 59.1-49; 1968, c. 439; 1975, cc. 14, 15; 1985, c. 420.)

§ 18.2-222. Misrepresentation as to source of merchandise; penalty.

No person, firm, corporation or association selling or offering for sale any article or merchandise, shall in any manner represent, contrary to fact, that the article was made for, or acquired directly or indirectly from, the United States government or its military or naval forces or any agency of the United States government, or that it has been disposed of by the United States government.

Any person, firm, corporation or association violating any provision of this section shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 59.1-53; 1968, c. 439; 1975, cc. 14, 15; 1983, c. 290.)

§ 18.2-223. "Going out of business" sales; permit required.

It shall be unlawful for any person to advertise, or conduct, a sale for the purpose of discontinuing a retail business, or to modify the word "sale" in any advertisement with the words "going out of business" or any other words which tend to insinuate that the retail business is to be discontinued and the merchandise liquidated, unless such person obtains a permit to conduct such sale from the city, town or county, or from each city, town or county, wherein such sale is to be conducted.

A violation of the provisions of this section shall be punishable as a Class 1 misdemeanor.

(Code 1950, § 59.1-53.1; 1972, c. 399; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fraud and Deceit, § 2; 12A M.J. Licenses, § 23.

§ 18.2-224. "Going out of business" sales; counties, cities and towns to issue permits; inspections; application for permit; inventory required; commingling of other goods prohibited; duration; additional permits; inclusion of permit number and dates in advertisements; fee.

Every county, town and city shall issue permits to retail merchants for special sales as required by § 18.2-223 upon the application of such merchant and shall inspect the advertisement and conducting of such sale to insure that it is being advertised and conducted in conformity with the required permit.

All applications for special sale permits shall be accompanied by an inventory, including the kind and quantity of all goods which are to be offered for sale during the sale and only the goods specified in the inventory list may be advertised or sold during the sale period. Goods not included on the inventory of special sale goods shall not be commingled with or added to the special sale goods. Each county, city or town shall have the right to revoke a special sale permit upon proof that goods not appearing on the original inventory of special sale goods have been commingled with or added to the special sale goods.

Each special sale permit shall be valid for a period of no longer than sixty days, and any extension of that time shall constitute a new special sale and shall require an additional permit and inventory. A maximum of one permit beyond the initial sixty-day permit may be granted solely for the purpose of liquidating only those goods contained in the initial inventory list which remain unsold.

Any person who advertises such sale shall conspicuously include in the advertisement the permit number assigned for the sale by the city, town or county wherein the sale is to be conducted and the effective dates of the sale as authorized in the permit.

Each county, town and city is authorized to charge a fee for the issuance of special sale permits. Such fee shall not exceed sixty-five dollars for each permit.

(Code 1950, § 59.1-53.2; 1972, c. 399; 1975, cc. 14, 15; 1983, c. 445; 1988, c. 779; 1992, c. 562.)

Michie's Jurisprudence. - For related discussion, see 8B M.J. Fraud and Deceit, § 2; 12A M.J. Licenses, § 23.

§ 18.2-225. Misrepresentations as to agricultural products.

Misrepresentation by advertising in the press or by radio or by television, or misrepresentation by letter, statement, mark representing grade, quality or condition, label or otherwise in handling, selling, offering or exposing for sale any agricultural commodities is hereby prohibited.

Any person, firm, association or corporation who shall violate any of the provisions of this section shall be guilty of a Class 3 misdemeanor.

The Director of the Division of Marketing, with the approval of the Commissioner of Agriculture and Consumer Services, may, in his discretion, cause prosecutions for violations of this section to be instituted through the attorneys for the Commonwealth, or otherwise, in counties or cities of the Commonwealth where in his opinion violations of this section are found.

(Code 1950, § 59.1-54; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-226. Fraud and misrepresentation in sale of liquid fuels, lubricating oils and similar products.

It shall be unlawful for any person, firm, association or corporation, to store, sell, expose for sale or offer for sale any liquid fuels, lubricating oils or other similar products, in any manner whatsoever, so as to deceive or tend to deceive the purchaser as to the nature, quality and identity of the product so sold or offered for sale.

(Code 1950, § 59.1-55; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-227. Same; sale from pump indicating other brand.

It shall be unlawful for any person, firm, association or corporation to store, keep, expose for sale, offer for sale or sell, from any tank or container, or from any pump or other distributing device or equipment, any other liquid fuels, lubricating oils or other similar products than those indicated by the name, trade name, symbol, sign or other distinguishing mark or device of the manufacturer or distributor, appearing upon the tank, container, pump or other distributing equipment from which the same are sold, offered for sale or distributed.

(Code 1950, § 59.1-56; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-228. Same; imitating indicia of other brands.

It shall be unlawful, for any person, firm, association or corporation to disguise or camouflage his or their own equipment by imitating the design, symbol or trade name of the equipment under which recognized brands of liquid fuels, lubricating oils and similar products are generally marketed.

(Code 1950, § 59.1-57; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-229. Same; false trade name or mixing brands.

It shall be unlawful for any person, firm, association or corporation to expose for sale, offer for sale or sell, under any trademark or trade name in general use, any liquid fuels, lubricating oils or other like products, except those manufactured or distributed by the manufacturer or distributor marketing liquid fuels, lubricating oils or other like products under such trademark or trade name, or to substitute, mix or adulterate the liquid fuels, lubricating oils or other similar products sold, offered for sale or distributed under such trademark or trade name.

(Code 1950, § 59.1-58; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-230. Same; assisting in violation of §§ 18.2-226 through 18.2-229.

It shall be unlawful for any person, firm, association or corporation to aid or assist any other person, firm, association or corporation in the violation of the provisions of §§ 18.2-226 through 18.2-229 by depositing or delivering into any tank, receptacle or other container any other liquid fuels, lubricating oils or like products than those intended to be stored therein and distributed therefrom, as indicated by the name of the manufacturer or distributor or the trademark or trade name of the product displayed on the container itself, or on the pump or other distributing device used in connection therewith.

(Code 1950, § 59.1-59; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-231. Same; label required.

There shall be firmly attached to or painted at or near the point of outlet from which lubricating oil is drawn or poured out for sale or delivery a sign or label consisting of the word or words in letters not less than one inch in height comprising the brand or trade name of such lubricating oil. But if any lubricating oil shall have no brand or trade name, the above sign or label shall consist of the words "lubricating oil, no brand."

(Code 1950, § 59.1-60; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-232. Same; punishment for violation of §§ 18.2-226 through 18.2-231.

Any person, firm, association or corporation or any officer, agent or employee thereof who shall violate any provision of §§ 18.2-226 through 18.2-231 , shall be guilty of a Class 3 misdemeanor; and a second or any subsequent offense shall be punishable as a Class 1 misdemeanor.

(Code 1950, § 59.1-61; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-233. Sale of goods marked "sterling" and "sterling silver."

A person who makes or sells or offers to sell or dispose of or has in his possession with intent to sell or dispose of any article of merchandise marked, stamped or branded with the words "sterling" or "sterling silver," or encased or enclosed in any box, package, cover or wrapper, or other thing in or by which such article is packed, enclosed or otherwise prepared for sale or disposition, having thereon any engraving or printed label, stamp, imprint, mark or trademark indicating or denoting by such marking, stamping, branding, engraving or printing that such article is silver, sterling silver or solid silver, unless nine hundred and twenty-five one-thousandths part of the component parts of the metal of which such article is manufactured is pure silver, shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 59.1-62; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-234. Sale of goods marked "coin" and "coin silver."

A person who makes or sells or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, any article of merchandise marked, stamped or branded with words "coin" or "coin silver," or encased or enclosed in any box, package, cover, wrapper or other thing in or by which such article is packed, enclosed, or otherwise prepared for sale or disposition, having thereon any engraving or printed label, stamp, imprint, mark or trademark indicating or denoting by such marking, stamping, branding, engraving or printing that such article is coin or coin silver, unless nine hundred one-thousandths part of the component parts of the metal of which such article is manufactured is pure silver, shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 59.1-63; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-235. Regulating sale of merchandise made of gold.

Any person who marks or sells or offers to sell or dispose of or has in his possession with intent to sell or dispose of any article of merchandise made of gold of a less carat of fineness than is stamped or marked on it or of a less carat of fineness than is engraved, stamped or imprinted on the tag, card, box, label, package, wrapper, cover or other thing in or by which such article is packed, enclosed or otherwise prepared for sale or disposition shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 59.1-64; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-236.

Repealed by Acts 2006, cc. 392 and 485, cl. 2, effective July 1, 2006.

Cross references. - For current provisions as to penalties for improperly labeling food as kosher and halal, see § 3.2-5124.

§ 18.2-237. Buying, etc., certain secondhand materials; intent; possession.

If any person buy or receive secondhand grate baskets, keys, bells and bell fixtures, gas fixtures, water fixtures, water pipes, gas pipes, or any part of such fixtures or pipes with intent to defraud, he shall be guilty of a Class 2 misdemeanor. Possession of any such secondhand baskets, keys, bells and bell fixtures, water fixtures, gas fixtures, water pipes, gas pipes, or any part of such fixtures or pipes if bought or received from any other person than the manufacturer thereof or his authorized agent or the owner thereof shall be prima facie evidence of such intent.

(Code 1950, § 59.1-66; 1968, c. 439; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 15 M.J. Receiving Stolen Goods, § 1.

§ 18.2-238. Buying, etc., pig iron, etc., with intent to defraud; possession; evidence of intent.

If any person buy or receive pig iron or railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility iron, brass, copper, metal or any composition thereof with intent to defraud, he shall be guilty of a Class 6 felony. Possession of any pig iron or railroad, telephone, telegraph, coal mining, industrial, manufacturing or public utility iron, brass, copper, metal or any composition thereof, if bought or received from any other person than the manufacturer thereof or his authorized agent or of a regularly licensed dealer therein, shall be prima facie evidence of such intent.

(Code 1950, § 59.1-67; 1968, c. 439; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 15 M.J. Receiving Stolen Goods, § 2.

CASE NOTES

Buying or receiving rather than possession in manner forbidden must be proved. - In a prosecution under this section it is incumbent on the Commonwealth to prove, as an essential element of the offense, that the articles were bought or received in the manner forbidden by this section before any presumption will arise from the possession of such articles. The presumption declared to arise from possession is of the intent and not of the fact that the articles were bought or received. Goldman v. Commonwealth, 100 Va. 865 , 42 S.E. 923 (1902).

Dealer prosecuted for acts of subordinates. - A licensed junk dealer who receives recently stolen property, or who buys metal in violation of this section, may not escape just suspicion by merely showing that he was frank and concealed no fact within his personal knowledge, and that he did not personally receive the goods. If he closes his eyes to the criminal or suspicious acts of his subordinates and employees, and accepts the benefit of such services to him, while he may upon his trial secure an acquittal, he ought not to expect to escape prosecution. Virginia Ry. & Power Co. v. Klaff, 123 Va. 260 , 96 S.E. 244 (1918).

§ 18.2-239. Pyramid promotional schemes; misdemeanor; definitions; contracts void.

Every person who contrives, prepares, sets up, operates, advertises or promotes any pyramid promotional scheme shall be guilty of a Class 1 misdemeanor. For the purposes of this section:

  1. "Compensation" means the transfer of money or anything of value.

    "Compensation" does not mean payment based on sales of goods or services to persons who are not participants in the scheme and who are not purchasing in order to participate in the scheme;

  2. "Consideration" means the payment of cash or the purchase of goods, services, or intangible property;
  3. "Promotes" means inducing one or more other persons to become a participant; and
  4. "Pyramid promotional scheme" means any plan or operation by which a person gives consideration for the opportunity to receive compensation a majority of which is derived from the introduction of other persons into the plan or operation rather than from the sale or consumption of goods, services, or intangible property by a participant or other persons introduced into the plan or operation. All contracts and agreements, now existing or hereafter formed, whereof the whole or any part of the consideration is given for the right to participate in pyramid promotional scheme programs, are against public policy, void and unenforceable. Any violation of the provisions of this section shall constitute a prohibited practice under the provisions of § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.). (Code 1950, §§ 59.1-67.1, 59.1-67.2; 1970, c. 450; 1975, cc. 14, 15; 2008, cc. 791, 842.)

The 2008 amendments. - The 2008 amendments by cc. 791 and 842 are identical, and deleted former subdivision (a), which read: "'Pyramid promotional scheme' means any program utilizing a pyramid or chain process by which a participant gives a valuable consideration for the opportunity to receive compensation or things of value in return for inducing other persons to become participants in the program"; redesignated former subdivisions (b) and (c) as subdivisions (1) and (3), respectively; added the first sentence of subdivision (1); substituted "means" for "shall mean" in subdivision (3); added subdivision (4); added the last paragraph; and made minor stylistic changes.

Law review. - For survey of Virginia law on business associations for the year 1969-1970, see 56 Va. L. Rev. 1536 (1970). For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

CASE NOTES

"Compensation." - Where the evidence showed that the predominant theme of the songs, cheers, printed materials, and tape recordings used at defendants' seminar and workshop was that a new recruit could utilize the marketing phase of the program to recoup any investment he might make in the program, and recruits were told they could earn a large profit simply by inducing others to invest and participate in the program, both in promise and in performance, the commissions were "compensation" within the intendment of subdivision (a) [now subdivision (4)] of this section. Bell v. Commonwealth, 236 Va. 298 , 374 S.E.2d 13 (1988).

"Valuable consideration." - Although recruits were not required to pay defendant corporation their own money in order to acquire the opportunity to earn commissions, where they suffered a detriment in time and effort and conferred a benefit upon that corporation in the process of earning such opportunity, recruits were required to give "valuable consideration" within the meaning of subdivision (a) [now subdivision (4)] of this section. Bell v. Commonwealth, 236 Va. 298 , 374 S.E.2d 13 (1988).

"Pyramid sales scheme" does not indicate requirement of compensation flowing to intermediate participants. - Neither the dictionary definition nor the statutory definition of a "pyramid sales scheme" indicates that there must be a multi-layered vertical chain of compensation flowing to intermediate participants from the efforts of their recruits. Love v. Durastill of Richmond, Inc., 242 Va. 186 , 408 S.E.2d 892 (1991).

Company was a pyramid promotional scheme under this section where although a recruit was not required to pay company any of his own money in order to acquire the opportunity to earn commissions, he conferred a benefit, a valuable consideration, upon the company in the process of persuading others to make purchases. Bell v. Commonwealth, 236 Va. 298 , 374 S.E.2d 13 (1988).

Water purification system company's scheme was within the language of the statutory definition of a pyramid promotional scheme because it utilized a pyramid or chain process that placed the company at the apex of a pyramid resting upon a base of distributors who had been enticed into paying the company $5,000 for the ever-decreasing opportunity to recoup their investment by recruiting other distributors. Love v. Durastill of Richmond, Inc., 242 Va. 186 , 408 S.E.2d 892 (1991).

OPINIONS OF THE ATTORNEY GENERAL

Participation in "gifting program" is violation of statute. - Every person who participates in a "gifting program" by paying $2,000, with the expectation of advancing and ultimately receiving $16,000, is guilty of a Class 1 misdemeanor for operating a pyramid promotional scheme. See opinion of Attorney General to The Honorable William H. Fuller III, Commonwealth's Attorney for the City of Danville, 00-053, 2000 Va. AG LEXIS 49 (8/29/00).

§ 18.2-240. Same; injunction.

Any attorney for the Commonwealth may petition a court of competent jurisdiction to enjoin the further prosecution of any pyramid promotional scheme as defined in § 18.2-239 , and to appoint receivers to secure and distribute in an equitable manner any assets received by any participant as a result of such scheme, any such distribution to effect reimbursement, to the extent possible, for uncompensated payments made to become a participant in the scheme. The procedure in any such suit shall be similar to the procedure in other suits for equitable relief, except that no bond shall be required upon the granting of either a temporary or permanent injunction therein. Any person who organizes an endless chain scheme and, either directly or through an agent, promotes such scheme within the Commonwealth shall be deemed subject to the personal jurisdiction of such court of competent jurisdiction under §§ 8.01-328 through 8.01-330 , and shall be liable for reasonable costs and attorneys' fees in such suit.

(Code 1950, § 59.1-67.3; 1970, c. 450; 1975, cc. 14, 15.)

§ 18.2-241. Acceptance of promissory notes in payment for food sold at retail.

As used in this section, "food" includes food, groceries and beverages, for human consumption. "Retailer" means a person who sells food for consumption and not for resale.

It shall be unlawful for any retailer to accept, in payment for any food sold by him to a customer, a promissory note or notes for an amount in excess of twice the sales price of food delivered by him to the customer. As used in this section the word "delivered" means that actual physical delivery into the exclusive custody and control of the customer is made within seven days of the receipt of the note by the seller.

Any person who violates the provisions of this section shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 59.1-68; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-242. Use of games, lotteries, etc., for promoting sale of certain products.

  1. No retail establishment in this Commonwealth shall use any game, contest, lottery or other scheme or device, whereby a person or persons may receive gifts, prizes or gratuities as determined by chance for the purpose of promoting, furthering or advertising the sale of any product or products having both a federal and state excise tax placed upon it, and the fact that no purchase is required in order to participate in such game, contest, lottery or scheme shall not exclude such game, contest, lottery or scheme from the provisions of this section.
  2. Any person violating the provision of this section shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 59.1-68.01; 1970, c. 764; 1975, cc. 14, 15.)

Law review. - For survey of Virginia commercial law for the year 1969-1970, see 56 Va. L. Rev. 1387 (1970).

OPINIONS OF THE ATTORNEY GENERAL

The statute prohibits a cigarette manufacturer's sweepstakes promotion at a retail establishment. See opinion of Attorney General to The Honorable Thomas C. Wright, Jr., Member, House of Delegates, 02-006, 2002 Va. AG LEXIS 30 (3/7/02).

Manufacturer's sweepstakes. - There is no violation § 18.2-242 where a retailer does nothing to promote or otherwise make customers aware of a cigarette manufacturer's sweepstakes opportunity, and where the only way a customer likely learns of the sweepstakes in the retail store is by seeing it on the back of a pack of cigarettes after purchase, the retailer has not used the sweepstakes "for the purpose of promoting, furthering or advertising" the sale of the cigarettes. See opinion of Attorney General to The Honorable Janet D. Howell, Member, Senate of Virginia, 17-014, 2017 Va. AG LEXIS 18 (6/8/17).

§ 18.2-242.1. Certain referral transactions in connection with consumer sales or leases prohibited; effect of such transactions.

  1. For the purpose of this section, the term "consumer sale or lease of goods or services" means the sale or lease of goods or services which are purchased or leased by a natural person primarily for a personal, family or household purpose, and not for resale.
  2. With respect to a consumer sale or lease of goods or services, no seller or lessor shall give or offer to give a rebate or discount or otherwise pay or offer to pay value to the buyer or lessee as an inducement for the sale or lease in return for the buyer's giving to the seller or lessor the names of prospective buyers or lessees, or otherwise aiding the seller or lessor in entering into a transaction with another buyer or lessee, if the earning of the rebate, discount, or other value is contingent upon the occurrence of any sale, lease, appointment, demonstration, interview, conference, seminar, bailment, testimonial or endorsement subsequent to the time the buyer or lessee enters into the agreement of sale or lease.
  3. Agreements made in whole or in part pursuant to a referral transaction as above described shall be void and unenforceable by the seller or lessor. The buyer or lessee shall be entitled to retain the goods, services or money received pursuant to a referral transaction without obligation to make any further or future payments of any sort on the transaction total, or he shall be entitled to avoid the transaction and to recover from the seller or lessor any sums paid to the seller or lessor pursuant to the transaction.

    (Code 1950, § 59.1-68.02; 1975, c. 3; 1976, c. 641.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1975 act having been 59.1-68.02.

Law review. - For survey of Virginia commercial law for the year 1974-1975, see 61 Va. L. Rev. 1668 (1975).

§ 18.2-243. When issuer or distributor of advertisements not guilty of violation; inadvertent error.

A person, firm, corporation or association who or which, for compensation, issues or distributes any advertisement or offer, written, printed, oral or otherwise, in reliance upon the copy or information supplied him by the advertiser or offeror, shall not be deemed to have violated the provisions of this article, nor shall an inadvertent error on the part of any such person, firm, corporation or association be deemed a violation of such provisions.

(Code 1950, § 59.1-51; 1968, c. 439; 1975, cc. 14, 15.)

Law review. - For article, "Congressional Inquiry and the Federal Criminal Law," see 46 U. Rich. L. Rev. 457 (2012).

§ 18.2-244. Right to select clientele or customers not affected.

Nothing in this article shall be deemed to impair the right of any person, firm, corporation or association to select its clientele or customers.

(Code 1950, § 59.1-52; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-245. Enjoining violation of this article.

  1. Any person, firm, corporation or association who violates any one or more of the sections in this article, may be enjoined by any court of competent jurisdiction notwithstanding the existence of an adequate remedy at law. In any action under this section, it shall not be necessary that damages be alleged or proved.
  2. Actions for injunctive relief under this section may be brought by an attorney for the Commonwealth in the name of the Commonwealth of Virginia upon their own complaint or upon the complaint of any person, firm, corporation or association. The bringing of an action under this section shall not prevent the institution or continuation of criminal proceedings against the same defendant or defendants.

    (Code 1950, § 59.1-50; 1968, c. 439; 1975, cc. 14, 15.)

§ 18.2-246. Penalty in general for violations.

Unless otherwise provided, any person who shall violate any provision of any section in this article shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 59.1-68.1; 1968, c. 439; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 2; 8B M.J. False Pretenses and Cheats, § 4.

Article 9. Virginia Comprehensive Money Laundering Act.

§ 18.2-246.1. Title.

This article shall be known and may be cited as the "Virginia Comprehensive Money Laundering Act."

(1999, c. 348.)

§ 18.2-246.2. Definitions.

"Conduct" or "conducts" includes initiating, concluding, participating in, or assisting in a financial transaction.

"Financial transaction" means any purchase, sale, trade, loan, pledge, investment, gift, transfer, transmission, transportation, delivery, deposit, withdrawal, payment, transfer between accounts, exchange of currency, extension of credit, purchase or sale of monetary instruments, use of a safe-deposit box, or any other acquisition or disposition of monetary instruments by any means including the movement of funds by wire or other electronic means, which is knowingly designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the property involved in the transaction.

"Monetary instruments" means (i) coin or currency of the United States or of any other country, travelers' checks, personal checks, bank checks, cashier's checks, credit cards, debit cards, and money orders or (ii) securities or other negotiable instruments, in bearer form or otherwise.

"Person" includes any individual, partnership, association, corporation or joint venture.

"Proceeds" means property acquired or derived, directly or indirectly, from, produced through, realized through, or caused by an act or omission and includes property, real or personal, of any kind.

"Property" means anything of value, and includes any interest therein, including any benefit, privilege, claim or right with respect to anything of value, whether real or personal, tangible or intangible.

(1999, c. 348; 2003, cc. 541, 549.)

The 2003 amendments. - The 2003 amendments by cc. 541 and 549 are identical, and inserted "credit cards, debit cards" in the definition of "Monetary instruments"; and inserted the definition of "Person."

CIRCUIT COURT OPINIONS

"Financial transaction." - Circuit court found that the directors of a non-stock corporation attempted to sell memberships on the corporation's board and the corporation itself when there was no evidence that either director possessed even implicit authorization to sell any membership to the corporation. Thus, the court found that there was cause to believe that the directors inferentially possessed an intent to defraud and probable cause to believe that the directors violated several Virginia penal statutes. Dogwood Valley Citizen's Ass'n v. Miller,, 2021 Va. Cir. LEXIS 95 (Greene County Apr. 23, 2021).

§ 18.2-246.3. Money laundering; penalties.

  1. It shall be unlawful for any person knowingly to conduct a financial transaction where the person knows the property involved in the transaction represents the proceeds of an activity which is punishable as a felony under the laws of the Commonwealth, another state or territory of the United States, the District of Columbia, or the United States. A violation of this section is punishable by imprisonment of not more than forty years or a fine of not more than $500,000 or by both imprisonment and a fine.
  2. Any person who, for compensation, converts cash into negotiable instruments or electronic funds for another, knowing the cash is the proceeds of some form of activity which is punishable as a felony under the laws of the Commonwealth, another state or territory of the United States, the District of Columbia, or the United States, shall be guilty of a Class 1 misdemeanor. Any second or subsequent violation of this subsection shall be punishable as a Class 6 felony.

    (1999, c. 348.)

CIRCUIT COURT OPINIONS

Probable cause. - Circuit court found that the directors of a non-stock corporation attempted to sell memberships on the corporation's board and the corporation itself when there was no evidence that either director possessed even implicit authorization to sell any membership to the corporation. Thus, the court found that there was cause to believe that the directors inferentially possessed an intent to defraud and probable cause to believe that the directors violated several Virginia penal statutes. Dogwood Valley Citizen's Ass'n v. Miller,, 2021 Va. Cir. LEXIS 95 (Greene County Apr. 23, 2021).

§ 18.2-246.4.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to seizure of property used in connection with money laundering, see § 19.2-386.19 .

§ 18.2-246.5. Forfeiture of business license or registration upon conviction of sale or distribution of imitation controlled substance; money laundering.

Any person, firm or corporation holding a license or registration to operate any business as required by either state or local law shall forfeit such license or registration upon conviction of a violation of (i) § 18.2-248 relating to an imitation controlled substance or (ii) § 18.2-246.3 relating to money laundering. Upon a conviction under this section the attorney for the Commonwealth shall notify any appropriate agency.

(1999, c. 348.)

Article 10. Cigarette Delivery Sale Requirements.

§ 18.2-246.6. Definitions.

For purposes of this article:

"Adult" means a person who is at least the legal minimum purchasing age.

"Board" means the Board of Directors of the Virginia Alcoholic Beverage Control Authority.

"Consumer" means an individual who is not permitted as a wholesaler pursuant to § 58.1-1011 or who is not a retailer.

"Delivery sale" means any sale of cigarettes to a consumer in the Commonwealth regardless of whether the seller is located in the Commonwealth where either (i) the purchaser submits the order for such sale by means of a telephonic or other method of voice transmission, the mails or any other delivery service, or the Internet or other online service; or (ii) the cigarettes are delivered by use of the mails or a delivery service. A sale of cigarettes not for personal consumption to a person who is a wholesale dealer or retail dealer, as such terms are defined in § 58.1-1000 , shall not be a delivery sale. A delivery of cigarettes, not through the mail or by a common carrier, to a consumer performed by the owner, employee or other individual acting on behalf of a retailer authorized to sell such cigarettes shall not be a delivery sale.

"Delivery service" means any person who is engaged in the commercial delivery of letters, packages, or other containers.

"Legal minimum purchasing age" is the minimum age at which an individual may legally purchase cigarettes in the Commonwealth.

"Mails" or "mailing" means the shipment of cigarettes through the United States Postal Service.

"Shipping container" means a container in which cigarettes are shipped in connection with a delivery sale.

"Shipping documents" means bills of lading, airbills, or any other documents used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

(2003, c. 1010; 2005, c. 839; 2015, cc. 38, 730.)

Editor's note. - Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 15, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, deleted the definition for "person" which read: "'Person' means the same as that term is defined in § 1-13.19."

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical and substituted "Board of Directors of the Virginia Alcoholic Beverage Control Authority" for "Virginia Alcoholic Beverage Control Board" in the definition for "Board."

§ 18.2-246.7. Requirements for delivery sales.

  1. No person shall make a delivery sale of cigarettes to any individual who is under the legal minimum purchase age in the Commonwealth.
  2. Each person accepting a purchase order for a delivery sale shall comply with:
    1. The age verification requirements set forth in § 18.2-246.8 ;
    2. The disclosure requirements set forth in § 18.2-246.9 ;
    3. The shipping requirements set forth in § 18.2-246.10 ;
    4. The registration and reporting requirements set forth in § 18.2-246.11 ;
    5. The tax collection requirements set forth in § 18.2-246.12 ; and
    6. All other laws of the Commonwealth generally applicable to sales of cigarettes that occur entirely within the Commonwealth, including, but not limited to, those laws imposing: (i) excise taxes, (ii) sales taxes, and (iii) license and revenue-stamping requirements. (2003, c. 1010.)

§ 18.2-246.8. Age verification requirements.

  1. No person shall mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless prior to the first delivery sale to a consumer such person:
    1. Obtains from the prospective consumer a certification that includes (i) a reliable confirmation that the consumer is at least the legal minimum purchase age, and (ii) a statement signed by the prospective consumer in writing that certifies the prospective consumer's address and that the consumer is at least 21 years of age. Such statement shall also confirm (a) that the prospective consumer understands that signing another person's name to such certification is illegal, (b) that the sale of cigarettes to individuals under the legal minimum purchase age is illegal, and (c) that the purchase of cigarettes by individuals under the legal minimum purchase age is illegal under the laws of the Commonwealth;
    2. Makes a good faith effort to verify the information contained in the certification provided by the prospective consumer pursuant to subsection A against a commercially available database of valid, government-issued identification that contains the date of birth or age of the individual placing the order, or obtains a photocopy or other image of the valid, government-issued identification stating the date of birth or age of the individual placing the order;
    3. Provides to the prospective consumer, via e-mail or other means, a notice that meets the requirements of § 18.2-246.9 ; and
    4. Receives payment for the delivery sale from the prospective consumer by a credit or debit card that has been issued in such consumer's name or by a check drawn on the consumer's account.
  2. Persons accepting purchase orders made via the Internet for delivery sales may request that prospective consumers provide their e-mail addresses.

    (2003, c. 1010; 2019, cc. 90, 102.)

The 2019 amendments. - The 2019 amendments by cc. 90 and 102 are identical, and substituted "21 years" for "18 years" in clause (ii) of subdivision A 1.

§ 18.2-246.9. Disclosure requirements.

The notice required under subdivision A 3 of § 18.2-246.8 shall include:

  1. A prominent and clearly legible statement that cigarette sales to consumers below the legal minimum purchase age are illegal;
  2. A prominent and clearly legible statement that consists of one of the warnings set forth in section 4(a)(1) of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. § 1333(a)(1)) rotated on a quarterly basis;
  3. A prominent and clearly legible statement that sales of cigarettes are restricted to those consumers who provide verifiable proof of age in accordance with § 18.2-246.8 ; and
  4. A prominent and clearly legible statement that cigarette sales are subject to tax under § 58.1-1001 , and an explanation of how such tax has been, or is to be, paid with respect to such delivery sale. (2003, c. 1010.)

§ 18.2-246.10. Shipping requirements.

Each person who mails, ships, or otherwise delivers cigarettes in connection with a delivery sale:

  1. Shall include as part of the shipping documents a clear and conspicuous statement providing as follows: "Cigarettes: Virginia Law Prohibits Shipping to Individuals Under 21, and Requires the Payment of all Applicable Taxes";
  2. Shall use a method of mailing, shipping, or delivery that obligates the delivery service or any party making delivery to require (i) the consumer placing the purchase order for the delivery sale, or an adult of legal minimum purchase age, to sign to accept delivery of the shipping container, and (ii) proof, in the form of a valid, government-issued identification bearing a photograph of the individual who signs to accept delivery of the shipping container, demonstrating that he is either the addressee who is of legal minimum purchase age or another adult of legal minimum purchase age. However, proof of the legal minimum purchase age shall be required only if such individual appears to be under 27 years of age; and
  3. Shall provide to the delivery service retained for such delivery sale evidence of full compliance with § 18.2-246.12 . (2003, c. 1010; 2019, cc. 90, 102.)

The 2019 amendments. - The 2019 amendments by cc. 90 and 102 are identical, and substituted "Under 21" for "Under 18" in subdivision 1.

§ 18.2-246.11. Registration and reporting requirements.

  1. Prior to making delivery sales or mailing, shipping, or otherwise delivering cigarettes in connection with any such delivery sales, every person shall file with the Board and with the Attorney General a statement setting forth such person's name, trade name, and the address of such person's principal place of business and any other place of business.
  2. Not later than the tenth day of each calendar month, each person that has made a delivery sale or mailed, shipped, or otherwise delivered cigarettes in connection with any such delivery sale during the previous calendar month shall file with the Board and with the Attorney General a report in the format prescribed by the Board, which may include an electronic format, that provides for each and every such delivery sale:
    1. The name and address of the consumer to whom such delivery sale was made;
    2. The brand or brands of the cigarettes that were sold in such delivery sale; and
    3. The quantity of cigarettes that were sold in such delivery sale.
  3. Any person who satisfies the requirements of § 376 of Title 15 of the United States Code shall be deemed to satisfy the requirements of this section.
  4. For purposes of any penalty that may be imposed for a violation of this section, a failure to file a particular statement or report with both the Board and the Attorney General shall constitute a single violation.

    (2003, c. 1010; 2009, c. 847.)

The 2009 amendments. - The 2009 amendment by c. 847 added subsection D.

§ 18.2-246.12. Collection of taxes.

Each person accepting a purchase order for a delivery sale shall collect and remit to the Board all cigarette taxes imposed by the Commonwealth with respect to such delivery sale, except that such collection and remission shall not be required to the extent such person has obtained proof (in the form of the presence of applicable revenue stamps or otherwise) that such taxes already have been paid to the Commonwealth. In the event the Board finds that any tax imposed by the Commonwealth and administered by the Department of Taxation has not been collected and remitted, the Board shall provide the Department of Taxation with a notification of such sale which shall include:

  1. The name and address of the consumer to whom such sale was made;
  2. The name and address of the seller of the cigarettes;
  3. The brand or brands of the cigarettes that were sold in such sale; and
  4. The quantity of cigarettes that were sold in such sale.

    (2003, c. 1010.)

§ 18.2-246.13. Civil penalties; penalties.

  1. In addition to any criminal penalties for violations of this article and except for civil penalties otherwise provided in this article, a first violation of any provision of this article shall be punishable by a civil penalty of no more than $1,000. A second or subsequent violation of any provision of this article shall be punishable by a civil penalty of no more than $10,000.
  2. Any prospective consumer who knowingly submits a false certification under subdivision A 1 of § 18.2-246.8 shall be subject to a civil penalty of no more than $5,000 for each such offense.
  3. Any person failing to collect or remit to the Board or the Department of Taxation any tax required in connection with a delivery sale shall be assessed, in addition to any other applicable penalty, a civil penalty of no more than five times the retail value of the cigarettes involved.
  4. Any civil penalty collected under this article shall be paid to the general fund.
  5. Any person who fails to file the statement required by subsection A of § 18.2-246.11 and thereafter makes a delivery sale is guilty of a Class 1 misdemeanor and for any second or subsequent offense is guilty of a violation of § 18.2-498.3 .
  6. Any person who knowingly and with the intent to defraud, mislead, or deceive makes a statement filed as required by subsection A of § 18.2-246.11 which is false is guilty of a violation of § 18.2-498.3 . Each such filed statement containing one or more false statements shall constitute a separate offense.
  7. Any person who fails to make the report required by subsection B of § 18.2-246.11 is guilty of a Class 1 misdemeanor and for any second or subsequent offense is guilty of a violation of § 18.2-498.3 .
  8. Any person who knowingly and with the intent to defraud, mislead, or deceive makes a materially false statement in any report required by subsection B of § 18.2-246.11 is guilty of a violation of § 18.2-498.3 . Each such report containing one or more false statements constitutes a separate offense. (2003, c. 1010; 2004, c. 995; 2009, c. 847; 2013, c. 625.)

The 2004 amendments. - The 2004 amendment by c. 995 deleted former subsection E which pertained to the forfeiture and destruction of cigarettes sold in violation of this article.

The 2009 amendments. - The 2009 amendment by c. 847 added subsections E through H.

The 2013 amendments. - The 2013 amendment by c. 625 substituted "In addition to any criminal penalties for violations of this article and except for civil penalties otherwise provided in this article" for "Except as specifically provided in § 18.2-246.14 " in the first sentence of subsection A.

§ 18.2-246.14. Counterfeit cigarettes; penalty; civil penalty.

  1. It is unlawful to distribute or possess counterfeit cigarettes.
  2. Any person who knowingly distributes or possesses with the intent to distribute a total quantity of less than 10 cartons of counterfeit cigarettes is guilty of a Class 1 misdemeanor. Any person who is convicted of a second or subsequent offense involving a total quantity of less than 10 cartons of counterfeit cigarettes is guilty of a Class 6 felony, provided that the accused was at liberty as defined in § 53.1-151 between each conviction, and it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this subsection. Any person who knowingly distributes or possesses with the intent to distribute a total quantity of 10 or more cartons of counterfeit cigarettes is guilty of a Class 6 felony.
  3. Any person who knowingly violates subsection A with a total quantity of less than two cartons of cigarettes shall be punished by a civil penalty of no more than $1,000. Any person who knowingly violates subsection A shall, for a second or subsequent offense involving a total quantity of less than two cartons of cigarettes, be punished by a civil penalty of no more than $5,000 and, if applicable, the revocation by the Department of Taxation of his wholesale dealer license.
  4. Any person who knowingly violates subsection A with a total quantity of two or more cartons of cigarettes shall be punished by a civil penalty of no more than $2,000. Any person who knowingly violates subsection A shall, for a second or subsequent offense involving a total quantity of two or more cartons of cigarettes, be punished by a civil penalty of no more than $50,000 and, if applicable, the revocation by the Department of Taxation of his wholesale dealer license.

    For purposes of this section, counterfeit cigarettes shall include but not be limited to cigarettes that (i) have false manufacturing labels, (ii) are not manufactured by the manufacturer indicated on the container, or (iii) have affixed to the container a false tax stamp.

    (2003, c. 1010; 2004, c. 995; 2013, c. 625.)

The 2004 amendments. - The 2004 amendment by c. 995 deleted the former second and third sentence in subsection A which pertained to the the seizure, forfeiture and destruction of counterfeit cigarettes.

The 2013 amendments. - The 2013 amendment by c. 625 substituted "is unlawful to distribute" for "shall be unlawful to sell" in subsection A; inserted subsection B and redesignated the remaining subsections accordingly.

§ 18.2-246.15. Enforcement.

The Attorney General is authorized to enforce the provisions of this article. The Attorney General may assess the civil penalties authorized by this article, with the concurrence of the attorney for the Commonwealth pursuant to § 2.2-511 , may prosecute criminal violations under this article, and may bring an action in the appropriate court to collect assessed penalties or prevent or restrain violations of this article by any person, or any person controlling such person. The Board and the State Department of Taxation shall cooperate with the Attorney General in his enforcement efforts and provide to the Attorney General all information and documentation in their possession necessary for the Attorney General to accomplish such enforcement.

(2003, c. 1010; 2009, c. 847; 2013, c. 625.)

The 2009 amendments. - The 2009 amendment by c. 847, in the second sentence, inserted "assess the civil penalties ... under § 18.2-246.13 , and may" and substituted "to collect assessed penalties or" for "in the Commonwealth to" and added the last sentence.

The 2013 amendments. - The 2013 amendment by c. 625 substituted "this article" for " § 18.2-246.13 " in the second sentence.

Chapter 7. Crimes Involving Health and Safety.

Drugs.

Drug Paraphernalia.

Sale of Ephedrine or Related Compounds.

Dextromethorphan Distribution Act.

Driving Motor Vehicle, etc., While Intoxicated.

Transporting Dangerous Articles.

Transportation of Hazardous Materials.

Dangerous Use of Firearms or Other Weapons.

Uniform Machine Gun Act.

"Sawed-off" Shotgun and "Sawed-off" Rifle Act.

Concealed Weapons and Concealed Handgun Permits.

Other Illegal Weapons.

Miscellaneous Dangerous Conduct.

Article 1. Drugs.

§ 18.2-247. Use of terms "controlled substances," "marijuana," "Schedules I, II, III, IV, V, and VI," "imitation controlled substance" and "counterfeit controlled substance" in Title 18.2.

  1. Wherever the terms "controlled substances" and "Schedules I, II, III, IV, V, and VI" are used in Title 18.2, such terms refer to those terms as they are used or defined in the Drug Control Act (§ 54.1-3400 et seq.).
  2. The term "imitation controlled substance" when used in this article means (i) a counterfeit controlled substance or (ii) a pill, capsule, tablet, or substance in any form whatsoever which is not a controlled substance subject to abuse, and:
    1. Which by overall dosage unit appearance, including color, shape, size, marking and packaging or by representations made, would cause the likelihood that such a pill, capsule, tablet, or substance in any other form whatsoever will be mistaken for a controlled substance unless such substance was introduced into commerce prior to the initial introduction into commerce of the controlled substance which it is alleged to imitate; or
    2. Which by express or implied representations purports to act like a controlled substance as a stimulant or depressant of the central nervous system and which is not commonly used or recognized for use in that particular formulation for any purpose other than for such stimulant or depressant effect, unless marketed, promoted, or sold as permitted by the U.S. Food and Drug Administration.
  3. In determining whether a pill, capsule, tablet, or substance in any other form whatsoever, is an "imitation controlled substance," there shall be considered, in addition to all other relevant factors, comparisons with accepted methods of marketing for legitimate nonprescription drugs for medicinal purposes rather than for drug abuse or any similar nonmedicinal use, including consideration of the packaging of the drug and its appearance in overall finished dosage form, promotional materials or representations, oral or written, concerning the drug, and the methods of distribution of the drug and where and how it is sold to the public.
  4. The term "marijuana" when used in this article means any part of a plant of the genus Cannabis, whether growing or not, its seeds or resin; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, its resin, or any extract containing one or more cannabinoids. Marijuana does not include the mature stalks of such plant, fiber produced from such stalk, oil or cake made from the seed of such plant, unless such stalks, fiber, oil or cake is combined with other parts of plants of the genus Cannabis. Marijuana does not include (i) industrial hemp, as defined in § 3.2-4112, that is possessed by a person registered pursuant to subsection A of § 3.2-4115 or his agent; (ii) industrial hemp, as defined in § 3.2-4112, that is possessed by a person who holds a hemp producer license issued by the U.S. Department of Agriculture pursuant to 7 C.F.R. Part 990; or (iii) a hemp product, as defined in § 3.2-4112, containing a tetrahydrocannabinol concentration of no greater than 0.3 percent that is derived from industrial hemp, as defined in § 3.2-4112, that is grown, dealt, or processed in compliance with state or federal law.
  5. The term "counterfeit controlled substance" means a controlled substance that, without authorization, bears, is packaged in a container or wrapper that bears, or is otherwise labeled to bear, the trademark, trade name, or other identifying mark, imprint or device or any likeness thereof, of a drug manufacturer, processor, packer, or distributor other than the manufacturer, processor, packer, or distributor who did in fact so manufacture, process, pack or distribute such drug.
  6. The Department of Forensic Science shall determine the proper methods for detecting the concentration of delta-9-tetrahydrocannabinol (THC) in substances for the purposes of this title and §§ 54.1-3401 and 54.1-3446 . The testing methodology shall use post-decarboxylation testing or other equivalent method and shall consider the potential conversion of delta-9-tetrahydrocannibinol acid (THC-A) into THC. The test result shall include the total available THC derived from the sum of the THC and THC-A content. (1975, cc. 14, 15; 1979, c. 435; 1982, c. 462; 1984, c. 684; 1992, c. 756; 1999, cc. 661, 722; 2004, c. 688; 2019, cc. 653, 654; 2020, cc. 831, 1285, 1286; 2021, Sp. Sess. I, c. 110.)

Cross references. - As to lawful production of industrial hemp, see § 3.2-4113.

For Drug Dealer Liability Act, allowing parent or legal custodian to bring an action for damages incurred because of child's unlawful use of a controlled substance while under the age of 18, see § 8.01-227.4 et seq.

As to report of conviction of school employees convicted under Article 1 ( § 18.2-247 et seq.) of Chapter 7 of Title 18.2, see § 19.2-291.1 .

As to expulsion of students for certain drug offenses, see § 22.1-277.08.

As to immunity from prosecution under this section for certain FDA-approved substances, see § 54.1-3408.05 .

For definition of "barrier crime" as including a conviction of any felony violation relating to possession or distribution of drugs as set out in § 18.2-247 et seq., or an equivalent offense in another state, and prohibition against child welfare agencies and foster and adoptive homes approved by child-placing agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including possession or distribution of drugs as set out in § 18.2-247 et seq., or an equivalent offense in another state, see § 63.2-1726 .

The 1999 amendments. - The 1999 amendment by c. 661, in subsection A, deleted "marijuana" following "controlled substances," and substituted "( § 54.1-3400 et seq.)" for "Chapter 34 of Title 54.1"; and added subdivision D.

The 1999 amendment by c. 722 substituted "tablet, or substance in any other form whatsoever" for "or tablet" in subdivision B 1.

The 2004 amendments. - The 2004 amendment by c. 688 inserted "(i) a counterfeit controlled substance or (ii)" in subsection B; substituted "12" for "twelve" in subsection D; and added subsection E.

The 2019 amendments. - The 2019 amendments by cc. 653 and 654 are identical, effective March 21, 2019, and added the third sentence in subsection D.

The 2020 amendments. - The 2020 amendment by c. 831, effective April 7, 2020, in subsection D, substituted "delta-9-tetrahydrocannabinol" for "tetrahydrocannabinol" and added subsection F. Subsection D has been set out in the form above at the direction of the Virginia Code Commission.

The 2020 amendments by cc. 1285 and 1286 are identical, and in subsection D, in the first sentence added "or any extract containing one or more cannabinoids" and in the second sentence, deleted "any oily extract containing one or more cannabinoids unless such extract contains less than 12 percent of tetrahydrocannabinol by weight, or" preceding "the mature stalks"; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, inserted clause (ii) in subsection D and made a stylistic change.

Law review. - For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

Michie's Jurisprudence. - For related discussion, see 6B M.J. Drugs and Druggists, §§ 2, 5.

CASE NOTES

Meaning of "subject to abuse." - An imitation controlled substance, as defined by subsection B, must be one which has a disposition or tendency to be misused. Rhodes v. Commonwealth, 12 Va. App. 473, 404 S.E.2d 522 (1991).

Trial court properly convicted defendant of distributing an imitation controlled substance because the evidence was sufficient to establish that, while defendant distributed a controlled substance to a detective, it was a Schedule VI controlled substance, which was not "a controlled substance subject to abuse" as defined by the Drug Control Act, the substance, by appearance and packaging, would likely be mistaken for crack cocaine, and defendant implied that the substance was 40 dollars worth of cocaine. Powell v. Commonwealth, 289 Va. 20 , 766 S.E.2d 736, 2015 Va. LEXIS 1 (2015).

Imitation controlled substance. - Court did not err by finding sufficient evidence that defendant distributed an imitation controlled substance, because defendant's representations regarding the substance, together with the packaging of the substance in a plastic knotted baggie, made it likely that the substance would be mistaken for crack cocaine; not only was the appearance of the substance consistent with crack cocaine when it was wrapped in the plastic baggie, defendant implied it was crack cocaine. Powell v. Commonwealth, 62 Va. App. 579, 750 S.E.2d 229, 2013 Va. App. LEXIS 342 (2013).

Defendant was properly convicted of possession with intent to distribute an imitation Schedule I/II controlled substance because the crystal-like substance found in small individually wrapped baggies upon the passenger of the vehicle that defendant was operating, by appearance and packaging, would likely have been mistaken for MDMA, otherwise known as molly, and defendant and the passenger, together, procured and packaged the substance, Himalayan salts, to look like molly. Riddle v. Commonwealth, No. 1953-15-3, 2016 Va. App. LEXIS 314 (Ct. of Appeals Nov. 15, 2016).

Circuit court properly convicted defendant of possession with intent to distribute an imitation controlled substance because he possessed a substance that resembled heroin, was packaged to resemble heroin, and he arranged to sell it as heroin, the "introduction into commerce" exception was not applicable where specifically provided that the Commonwealth was not required to "negative any exception", and defendant failed to introduce any evidence of when any substance - imitation or illegal - was introduced into commerce. Taylor v. Commonwealth, No. 1197-19-3, 2020 Va. App. LEXIS 215 (July 28, 2020).

Effect of 1992 amendment. - The 1992 amendment to subsection B of this section removed the comma and the words "which is" preceding the words "subject to abuse." This amendment effectively deleted the entire subordinate clause. By deleting the comma and the subordinate clause, the legislature significantly changed not only the sentence's structure, but also its meaning. The legislature thereby substantively changed the definition of the statutory offense. Werres v. Commonwealth, 19 Va. App. 744, 454 S.E.2d 36 (1995).

By eliminating the subordinate clause and by leaving in its stead the phrase, "subject to abuse," so that the phrase now modifies a different clause, "which is not a controlled substance," the legislature eliminated the requirement that the imitation substance be one that is itself subject to abuse. Thus, the change effectively broadened the definition of an imitation controlled substance to include any pill, capsule, tablet, or substance in any form whatsoever that by express or implied representation is intended or appears to imitate a controlled substance, but which is not a "controlled substance subject to abuse." Werres v. Commonwealth, 19 Va. App. 744, 454 S.E.2d 36 (1995).

Following the 1992 amendment, subsection B of this section does not require that the Commonwealth prove the identity of the imitation controlled substance. Werres v. Commonwealth, 19 Va. App. 744, 454 S.E.2d 36 (1995).

Inference of distribution permitted. - By its nature, an imitation controlled substance has little or no use other than its commercial value in being misrepresented and sold as a controlled substance. A finder of fact may infer from evidence of a recent sale of a controlled substance, related by time and place to a similar substance still in the seller's possession, that the seller intended to distribute the substance he or she still possessed. Werres v. Commonwealth, 19 Va. App. 744, 454 S.E.2d 36 (1995).

Evidence insufficient to establish substance had disposition to being misused. - Where no evidence was introduced as to the nature of the substance which the defendant sold, and where it could have been sugar, flour, or some inert substance with no particular propensity for misuse, the evidence was insufficient to establish that the substance had a disposition or tendency to being misused; therefore, the Commonwealth failed to prove that the defendant distributed an imitation controlled substance as defined by subsection B. Rhodes v. Commonwealth, 12 Va. App. 473, 404 S.E.2d 522 (1991).

§ 18.2-248. Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance prohibited; penalties.

  1. Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance.
  2. In determining whether any person intends to manufacture, sell, give or distribute an imitation controlled substance, the court may consider, in addition to all other relevant evidence, whether any distribution or attempted distribution of such pill, capsule, tablet or substance in any other form whatsoever included an exchange of or a demand for money or other property as consideration, and, if so, whether the amount of such consideration was substantially greater than the reasonable value of such pill, capsule, tablet or substance in any other form whatsoever, considering the actual chemical composition of such pill, capsule, tablet or substance in any other form whatsoever and, where applicable, the price at which over-the-counter substances of like chemical composition sell.
  3. Except as provided in subsection C1, any person who violates this section with respect to a controlled substance classified in Schedule I or II shall upon conviction be imprisoned for not less than five nor more than 40 years and fined not more than $500,000. Upon a second conviction of such a violation, and it is alleged in the warrant, indictment, or information that the person has been before convicted of such an offense or of a substantially similar offense in any other jurisdiction, which offense would be a felony if committed in the Commonwealth, and such prior conviction occurred before the date of the offense alleged in the warrant, indictment, or information, any such person may, in the discretion of the court or jury imposing the sentence, be sentenced to imprisonment for life or for any period not less than five years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence, and he shall be fined not more than $500,000. When a person is convicted of a third or subsequent offense under this subsection and it is alleged in the warrant, indictment or information that he has been before convicted of two or more such offenses or of substantially similar offenses in any other jurisdiction which offenses would be felonies if committed in the Commonwealth and such prior convictions occurred before the date of the offense alleged in the warrant, indictment, or information, he shall be sentenced to imprisonment for life or for a period of not less than 10 years, 10 years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence, and he shall be fined not more than $500,000. Any person who manufactures, sells, gives, distributes or possesses with the intent to manufacture, sell, give, or distribute the following is guilty of a felony punishable by a fine of not more than $1 million and imprisonment for five years to life, five years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence:
    1. 100 grams or more of a mixture or substance containing a detectable amount of heroin;
    2. 500 grams or more of a mixture or substance containing a detectable amount of:
      1. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
      2. Cocaine, its salts, optical and geometric isomers, and salts of isomers;
      3. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
      4. Any compound, mixture, or preparation that contains any quantity of any of the substances referred to in subdivisions 2a through 2c;
    3. 250 grams or more of a mixture or substance described in subdivisions 2a through 2d that contain cocaine base; or
    4. 10 grams or more of methamphetamine, its salts, isomers, or salts of its isomers or 20 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers. The mandatory minimum term of imprisonment to be imposed for a violation of this subsection shall not be applicable if the court finds that:
      1. The person does not have a prior conviction for an offense listed in subsection C of § 17.1-805 ;
      2. The person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense or induce another participant in the offense to do so;
      3. The offense did not result in death or serious bodily injury to any person;
      4. The person was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise as defined in subsection I; and
      5. Not later than the time of the sentencing hearing, the person has truthfully provided to the Commonwealth all information and evidence the person has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the person has no relevant or useful other information to provide or that the Commonwealth already is aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. C1. Any person who violates this section with respect to the manufacturing of methamphetamine, its salts, isomers, or salts of its isomers or less than 200 grams of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers shall, upon conviction, be imprisoned for not less than 10 nor more than 40 years and fined not more than $500,000. Upon a second conviction of such a violation, any such person may, in the discretion of the court or jury imposing the sentence, be sentenced to imprisonment for life or for any period not less than 10 years, and be fined not more than $500,000. When a person is convicted of a third or subsequent offense under this subsection and it is alleged in the warrant, indictment, or information that he has been previously convicted of two or more such offenses or of substantially similar offenses in any other jurisdiction, which offenses would be felonies if committed in the Commonwealth and such prior convictions occurred before the date of the offense alleged in the warrant, indictment, or information, he shall be sentenced to imprisonment for life or for a period not less than 10 years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence and he shall be fined not more than $500,000. Upon conviction, in addition to any other punishment, a person found guilty of this offense shall be ordered by the court to make restitution, as the court deems appropriate, to any innocent property owner whose property is damaged, destroyed, or otherwise rendered unusable as a result of such methamphetamine production. This restitution shall include the person's or his estate's estimated or actual expenses associated with cleanup, removal, or repair of the affected property. If the property that is damaged, destroyed, or otherwise rendered unusable as a result of such methamphetamine production is property owned in whole or in part by the person convicted, the court shall order the person to pay to the Methamphetamine Cleanup Fund authorized in § 18.2-248.04 the reasonable estimated or actual expenses associated with cleanup, removal, or repair of the affected property or, if actual or estimated expenses cannot be determined, the sum of $10,000. The convicted person shall also pay the cost of certifying that any building that is cleaned up or repaired pursuant to this section is safe for human occupancy according to the guidelines established pursuant to § 32.1-11.7 .
  4. If such person proves that he gave, distributed or possessed with intent to give or distribute a controlled substance classified in Schedule I or II only as an accommodation to another individual who is not an inmate in a community correctional facility, local correctional facility or state correctional facility as defined in § 53.1-1 or in the custody of an employee thereof, and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class 5 felony.
  5. If the violation of the provisions of this article consists of the filling by a pharmacist of the prescription of a person authorized under this article to issue the same, which prescription has not been received in writing by the pharmacist prior to the filling thereof, and such written prescription is in fact received by the pharmacist within one week of the time of filling the same, or if such violation consists of a request by such authorized person for the filling by a pharmacist of a prescription which has not been received in writing by the pharmacist and such prescription is, in fact, written at the time of such request and delivered to the pharmacist within one week thereof, either such offense shall constitute a Class 4 misdemeanor. E1. Any person who violates this section with respect to a controlled substance classified in Schedule III except for an anabolic steroid classified in Schedule III, constituting a violation of § 18.2-248.5 , shall be guilty of a Class 5 felony. E2. Any person who violates this section with respect to a controlled substance classified in Schedule IV shall be guilty of a Class 6 felony. E3. Any person who proves that he gave, distributed or possessed with the intent to give or distribute a controlled substance classified in Schedule III or IV, except for an anabolic steroid classified in Schedule III, constituting a violation of § 18.2-248.5 , only as an accommodation to another individual who is not an inmate in a community correctional facility, local correctional facility or state correctional facility as defined in § 53.1-1 or in the custody of an employee thereof, and not with the intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, is guilty of a Class 1 misdemeanor.
  6. Any person who violates this section with respect to a controlled substance classified in Schedule V or Schedule VI or an imitation controlled substance which imitates a controlled substance classified in Schedule V or Schedule VI, shall be guilty of a Class 1 misdemeanor.
  7. Any person who violates this section with respect to an imitation controlled substance which imitates a controlled substance classified in Schedule I, II, III, or IV shall be guilty of a Class 6 felony. In any prosecution brought under this subsection, it is not a defense to a violation of this subsection that the defendant believed the imitation controlled substance to actually be a controlled substance.
  8. Any person who manufactures, sells, gives, distributes or possesses with the intent to manufacture, sell, give or distribute the following:
    1. 1.0 kilograms or more of a mixture or substance containing a detectable amount of heroin;
    2. 5.0 kilograms or more of a mixture or substance containing a detectable amount of:
      1. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
      2. Cocaine, its salts, optical and geometric isomers, and salts of isomers;
      3. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
      4. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c;
    3. 2.5 kilograms or more of a mixture or substance described in subdivision 2 which contains cocaine base;
    4. 100 kilograms or more of a mixture or substance containing a detectable amount of marijuana; or
    5. 100 grams or more of methamphetamine, its salts, isomers, or salts of its isomers or 200 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers shall be guilty of a felony punishable by a fine of not more than $1 million and imprisonment for 20 years to life, 20 years of which shall be a mandatory minimum sentence. Such mandatory minimum sentence shall not be applicable if the court finds that (i) the person does not have a prior conviction for an offense listed in subsection C of § 17.1-805 ; (ii) the person did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense or induce another participant in the offense to do so; (iii) the offense did not result in death or serious bodily injury to any person; (iv) the person was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise as defined in subsection I of this section; and (v) not later than the time of the sentencing hearing, the person has truthfully provided to the Commonwealth all information and evidence the person has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the person has no relevant or useful other information to provide or that the Commonwealth already is aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. H1. Any person who was the principal or one of several principal administrators, organizers or leaders of a continuing criminal enterprise shall be guilty of a felony if (i) the enterprise received at least $100,000 but less than $250,000 in gross receipts during any 12-month period of its existence from the manufacture, importation, or distribution of heroin or cocaine or ecgonine or methamphetamine or the derivatives, salts, isomers, or salts of isomers thereof or marijuana or (ii) the person engaged in the enterprise to manufacture, sell, give, distribute or possess with the intent to manufacture, sell, give or distribute the following during any 12-month period of its existence: 1. At least 1.0 kilograms but less than 5.0 kilograms of a mixture or substance containing a detectable amount of heroin; 2. At least 5.0 kilograms but less than 10 kilograms of a mixture or substance containing a detectable amount of:
      1. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
      2. Cocaine, its salts, optical and geometric isomers, and salts of isomers;
      3. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
      4. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c; 3. At least 2.5 kilograms but less than 5.0 kilograms of a mixture or substance described in subdivision 2 which contains cocaine base; 4. At least 100 kilograms but less than 250 kilograms of a mixture or substance containing a detectable amount of marijuana; or 5. At least 100 grams but less than 250 grams of methamphetamine, its salts, isomers, or salts of its isomers or at least 200 grams but less than 1.0 kilograms of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers. A conviction under this section shall be punishable by a fine of not more than $1 million and imprisonment for 20 years to life, 20 years of which shall be a mandatory minimum sentence. H2. Any person who was the principal or one of several principal administrators, organizers or leaders of a continuing criminal enterprise if (i) the enterprise received $250,000 or more in gross receipts during any 12-month period of its existence from the manufacture, importation, or distribution of heroin or cocaine or ecgonine or methamphetamine or the derivatives, salts, isomers, or salts of isomers thereof or marijuana or (ii) the person engaged in the enterprise to manufacture, sell, give, distribute or possess with the intent to manufacture, sell, give or distribute the following during any 12-month period of its existence:

        1. At least 5.0 kilograms of a mixture or substance containing a detectable amount of heroin;

        2. At least 10 kilograms of a mixture or substance containing a detectable amount of:

        a. Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;

        b. Cocaine, its salts, optical and geometric isomers, and salts of isomers;

        c. Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

        d. Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subdivisions a through c;

        3. At least 5.0 kilograms of a mixture or substance described in subdivision 2 which contains cocaine base;

        4. At least 250 kilograms of a mixture or substance containing a detectable amount of marijuana; or

        5. At least 250 grams of methamphetamine, its salts, isomers, or salts of its isomers or at least 1.0 kilograms of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers shall be guilty of a felony punishable by a fine of not more than $1 million and imprisonment for life, which shall be served with no suspension in whole or in part. Such punishment shall be made to run consecutively with any other sentence. However, the court may impose a mandatory minimum sentence of 40 years if the court finds that the defendant substantially cooperated with law-enforcement authorities.

  9. For purposes of this section, a person is engaged in a continuing criminal enterprise if (i) he violates any provision of this section, the punishment for which is a felony and either (ii) such violation is a part of a continuing series of violations of this section which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and from which such person obtains substantial income or resources or (iii) such violation is committed, with respect to methamphetamine or other controlled substance classified in Schedule I or II, for the benefit of, at the direction of, or in association with any criminal street gang as defined in § 18.2-46.1 .
  10. Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), any person who possesses any two or more different substances listed below with the intent to manufacture methamphetamine, methcathinone, or amphetamine is guilty of a Class 6 felony: liquefied ammonia gas, ammonium nitrate, ether, hypophosphorus acid solutions, hypophosphite salts, hydrochloric acid, iodine crystals or tincture of iodine, phenylacetone, phenylacetic acid, red phosphorus, methylamine, methyl formamide, lithium, sodium metal, sulfuric acid, sodium hydroxide, potassium dichromate, sodium dichromate, potassium permanganate, chromium trioxide, methylbenzene, methamphetamine precursor drugs, trichloroethane, or 2-propanone.
  11. The term "methamphetamine precursor drug," when used in this article, means a drug or product containing ephedrine, pseudoephedrine, or phenylpropanolamine or any of their salts, optical isomers, or salts of optical isomers.

    (Code 1950, § 54-524.101:1; 1972, c. 798; 1973, c. 479; 1974, c. 586; 1975, cc. 14, 15; 1976, c. 614; 1977, c. 409; 1978, cc. 177, 779; 1979, c. 435; 1982, cc. 276, 462; 1985, c. 569; 1986, c. 453; 1988, c. 355; 1990, c. 82; 1991, c. 13; 1992, cc. 685, 737, 756; 1995, c. 538; 1999, c. 722; 2000, cc. 1020, 1041; 2004, c. 461; 2005, cc. 174, 759, 796, 923, 941; 2006, cc. 697, 759; 2008, cc. 79, 618; 2009, c. 750; 2012, cc. 219, 710, 844; 2013, c. 426; 2014, c. 513.)

Cross references. - As to reimbursement for methamphetamine lab cleanup costs, see § 15.2-1716.2 .

As to accommodation possession or distributin, see § 18.2-248.1 .

For penalty for possession of a controlled substance classified in Schedule VI, see § 18.2-250 .

As to certification for use of cannabis oil to treat any diagnosed condition or disease determined by the practitioner to benefit from such use, see § 54.1-3408.3 .

Editor's note. - Acts 2009, c. 750, cl. 2, provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in the general appropriation act passed by the 2009 Regular Session of the General Assembly that becomes law; however no appropriation shall be necessary if the corrections impact cannot be determined." Pursuant to Acts 2009, c. 750, cl. 3, the corrections impact could not be determined.

At the direction of the Virginia Code Commission, substituted "liquefied" for "liquified" in subsection J.

The 1995 amendment substituted "five hundred thousand dollars" for "two million dollars" in clause (i) of subsection H.

The 1999 amendment, substituted "tablet or substance in any other form whatsoever" for "or tablet" in three places in subsection B.

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and added the second paragraph in subsection C; rewrote subsection H; added subsections H1 and H2; and deleted "subsection H of" preceding "this section" near the beginning of subsection I.

The 2004 amendments. - The 2004 amendment by c. 461, in subsection C, in the last paragraph, deleted "not to be suspended in whole or in part and" following "term of imprisonment" and inserted "he" near the end; deleted "which shall be served with no suspension in whole or in part" at the end of the first sentence in subdivision H 5 and in the last paragraph of subsection H1; substituted "mandatory minimum" for "mandatory, minimum" throughout; and made minor stylistic changes.

The 2005 amendments. - The 2005 amendment by c. 174 added subsections E1 to E3, in subsection F, deleted "III, IV or" following "Schedule" in two places and "except for an anabolic steroid classified in Schedule III constituting a violation of § 18.2-248.5 ," inserted "III or IV" in subsection G, and made minor stylistic changes.

The 2005 amendment by cc. 759 and 796 are identical, and added subsections J and K and made minor stylistic changes.

The 2005 amendment by cc. 923 and 941 are nearly identical, and added "Except as provided in subsection C1" at the beginning of subsection C, and added subsection C1. Chapter 941 also inserts clause (ii) in subsection I.

The 2006 amendments. - The 2006 amendments by cc. 697 and 759 are identical, and in subsection C, substituted "five years" for "three years" in the second paragraph, and added the third paragraph and associated subdivisions.

The 2008 amendments. - The 2008 amendments by cc. 79 and 618 are identical, and inserted "or Schedule VI" twice in subsection F; and inserted a comma following "III" in subsection G.

The 2009 amendments. - The 2009 amendment by c. 750, in subsection C, in the second sentence of the first paragraph, deleted "or subsequent" preceding "conviction of such a violation" and inserted "and it is alleged in the warrant, indictment, or information that the person has been before convicted of such an offense or of a substantially similar offense in any other jurisdiction, which offense would be a felony is committed in the Commonwealth, and such prior conviction occurred before the date of the offense alleged in the warrant, indictment, or information." See Editor's notes.

The 2012 amendments. - The 2012 amendment by c. 219, in subsection C1, substituted "shall include" for "may include" in the next-to-last sentence and added the last sentence.

The 2012 amendments by cc. 710 and 844 are identical, and in subsection C, substituted "five years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence, and he shall be fined not more than $500,000" for "five years, and be fined not more than $500,000" at the end of first paragraph, and substituted "10 years" for "five years" twice in the second paragraph.

The 2013 amendments. - The 2013 amendment by c. 426, in subsection J, inserted "ammonium nitrate" and deleted "metal" following "lithium."

The 2014 amendments. - The 2014 amendment by c. 513 in the second paragraph of subsection C1 added the last sentence.

Law review. - Robbs v. Commonwealth, 211 Va. 153 , 176 S.E.2d 429 (1970), dealing with possession of narcotic drugs and cited under repealed § 54-524.55 was commented on in 5 U. Rich. L. Rev. 430 (1971). For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972); for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973); for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976); for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978); for the year 1978-1979, see 66 Va. L. Rev. 241 (1980). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutionality. - See Wood v. Commonwealth, 213 Va. 363 , 192 S.E.2d 762 (1972).

This section and former § 54-524.101 compared. - The same criminal sanctions which were imposed by former § 54-524.101 were generally retained in this section. The General Assembly provided, however, for a reduced penalty in certain cases. Wood v. Commonwealth, 214 Va. 97 , 197 S.E.2d 200 (1973).

The legislative intent implicit in the statute is that the General Assembly established two clearly defined gradations of controlled drug distribution offenses. Gardner v. Commonwealth, 217 Va. 5 , 225 S.E.2d 354 (1976) (decided under former § 54-524.101:1).

This section is intended to curtail the sale of illicit drugs as a commercial enterprise. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Strict construction. - Because statute is penal in nature, it must be strictly construed, and any ambiguity or reasonable doubt as to its meaning must be resolved in defendant's favor. Mason v. Commonwealth, 16 Va. App. 260, 430 S.E.2d 543 (1993).

Relationship with the federal Armed Career Criminal Act. - Defendant contended that during sentencing the district court erred when it designated him an armed career criminal; however, a defendant convicted of violating 18 U.S.C.S. § 922(g)(1) qualified as an armed career criminal under 18 U.S.C.S. § 924(e) if he had three prior convictions for a serious drug offense and in 1983, defendant had three separate Virginia convictions for distribution of cocaine under § 18.2-248 - each of those convictions carried a maximum penalty of forty years' imprisonment, satisfying the statutory requirement under 18 U.S.C.S. § 924(e). Although defendant claimed the drug offenses should not have been considered due to their age, there was no temporal restriction on prior felonies for the purposes of the Armed Career Criminal Act. United States v. Boysaw,, 2006 U.S. App. LEXIS 22687 (4th Cir. Sept. 6, 2006).

Relationship with federal career offender enhancement. - District court properly applied career offender enhancement because defendant's Virginia convictions for possession with intent to distribute heroin fell within Guidelines' categorical definition of "controlled substance offense." United States v. Ward, 972 F.3d 364, 2020 U.S. App. LEXIS 26486 (4th Cir. 2020).

This section creates only a single offense, that being the unlawful manufacture, sale, transfer or distribution, or possession of certain controlled drugs. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided prior to 1979 amendment.

Subsection A "creates only a single offense . . . the illegal transfer of controlled drugs." Rush v. Commonwealth, No. 2058-94-2 (Ct. of Appeals Mar. 26, 1996).

Trial court erred in denying defendant's motion to consolidate or dismiss indictments charging him with three counts of possession with the intent to distribute a Schedule II controlled substance, oxycodone, because the Commonwealth failed to provide evidence that defendant possessed different demonstrated intents sufficient to support three separate charges of possession with the intent to distribute oxycodone. Lane v. Commonwealth, 51 Va. App. 565, 659 S.E.2d 553, 2008 Va. App. LEXIS 185 (2008).

Duplicitous indictments requires election of offense, not dismissal. - An indictment that tracks the language of subsection A charges a single offense that can be committed by several means. Even if the indictments were duplicitous, the appropriate remedy for a duplicitous indictment is to "force the government to elect the offense upon which it will proceed, . . . not require the dismissal of the indictment." Rush v. Commonwealth, No. 2058-94-2 (Ct. of Appeals Mar. 26, 1996).

Two separate offenses. - Defendant was not prosecuted twice for the same offense of distribution of cocaine in violation of § 18.2-248 because all parties were aware at all stages of the proceedings that there were two transactions that occurred on the same date, in different locations, at different times, involving different drugs, which in turn led to separate certificates of analysis. Because defendant's second trial involved separate acts, the Blockburger test was inapplicable. Lappegard v. Commonwealth, No. 2111-08-4, 2009 Va. App. LEXIS 379 (Ct. of Appeals Aug. 25, 2009).

Trial court did not err in refusing to merge the indictments for distribution of cocaine and distribution of heroin, because the record proved that defendant made two separate and distinct sales of different drugs on the same day. Gay v. Commonwealth,, 2010 Va. App. LEXIS 467 (Nov. 30, 2010).

Circuit court erred in granting defendant's motion to dismiss and in dismissing the charge (possession of a controlled substance with the intent to distribute, second offense) on double jeopardy grounds because defendant's possession of the drugs on his person and in his home constituted two separate and distinct acts in two different jurisdictions, and the city conviction required different evidence than the subsequent county prosecution. Commonwealth v. Ferguson, No. 1245-19-2, 2020 Va. App. LEXIS 15 (Jan. 14, 2020).

Double jeopardy violation. - Defendant's conviction and sentence for two counts of possession of oxycodone with intent to distribute violated the prohibition against double jeopardy because the evidence did not differentiate between the two bags of oxycodone by time, location, or intended purpose; as a result, the second offense did not occur, and defendant's conviction and sentence for the second count violated double jeopardy principles. Saunders v. Commonwealth, No. 1828-16-1, 2017 Va. App. LEXIS 273 (Oct. 31, 2017).

Although defendant's conviction and sentence violated double jeopardy principles, defendant would not be resentenced because he was not entitled to a new sentencing proceeding simply because the discretionary sentencing guidelines calculations that resulted from including two convictions for possession with the intent to distribute oxycodone would be different than the guidelines calculations resulting from the inclusion of only one such conviction. Saunders v. Commonwealth, No. 1828-16-1, 2017 Va. App. LEXIS 273 (Oct. 31, 2017).

Felony-murder based on underlying drug distribution. - Evidence was insufficient to sustain defendant's felony-murder conviction under § 18.2-33 where: (1) the underlying offense was the sale of ecstasy in violation of § 18.2-248 ; (2) the place element for felony-murder was missing because defendant sold the ecstasy to the victim in a store parking lot, and the drug transaction was completed; (3) the victim ingested the ecstasy over two hours after the drug buy, after she went to dinner, stopped at a gas station for cigarettes, and went to a friend's apartment; and (4) the place element for felony-murder was missing because the underlying felony took place in the store parking lot, and the victim did not ingest the ecstasy until she was at the apartment. Woodard v. Commonwealth, 61 Va. App. 567, 739 S.E.2d 220, 2013 Va. App. LEXIS 96 (2013), aff'd, 287 Va. 276 , 754 S.E.2d 309, 2014 Va. LEXIS 32 (Va. 2014).

Evidence of other crimes is properly received if it is relevant and probative of an issue on trial, such as an element of the offense charged or the required predicate for enhanced punishment; conviction of a prior like offense is an element of the charge as set forth in this indictment, and is also a necessary predicate to an enhanced penalty pursuant to this section. Berry v. Commonwealth, 22 Va. App. 209, 468 S.E.2d 685 (1996).

Forty years of good behavior not excessive punishment. - Sentence for violation of this section to a term of nine years in the penitentiary, of which four-and-one-half years were suspended conditioned on appellant's good behavior for 40 years, did not constitute excessive and unreasonable punishment. Worsham v. Commonwealth, No. 1944-93-2 (Ct. of Appeals March 14, 1995).

Life sentence not cruel and unusual punishment. - Sentence of life imprisonment for being the principal, or a principal administrator, organizer, or leader, of a continuing criminal enterprise engaged, during a one-year period, in the distribution of at least five kilograms of a mixture containing cocaine base, in violation of subsection H2 of § 18.2-248 , did not amount to cruel or unusual punishment under the Virginia Constitution or U.S. Const., Amend. VIII. Dunaway v. Commonwealth, 52 Va. App. 281, 663 S.E.2d 117, 2008 Va. App. LEXIS 326 (2008).

And accommodation provisions relate only to punishment. - The provisions of subsection A, dealing with the reduced penalty contingent upon proof of an accommodation gift, distribution or possession operates only to mitigate the degree of criminality or punishment, rather than to create two different substantive offenses. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided prior to 1979 amendment.

The clear intent of the legislature is to enhance punishment by proving that there has been a second conviction, or if more than a "second," then such "subsequent" convictions as there have been. Dotson v. Commonwealth, 18 Va. App. 465, 445 S.E.2d 492 (1994).

Defendant doesn't have to be convicted of first offense before committing second for enhancement. - This statute does not require that, in order for the enhanced penalty provision to obtain, the defendant must have been convicted of a first offense before committing the second offense. Able v. Commonwealth, 16 Va. App. 542, 431 S.E.2d 337 (1993).

There is no requirement in this section that the indictment must state that the offense charged is a second or subsequent offense to which the enhanced penalty provision may apply. Patterson v. Commonwealth, 17 Va. App. 644, 440 S.E.2d 412 (1994).

Amendment of indictment increasing amount of cocaine was permissible. - Amendment to an indictment, charging defendant with being the principal, or a principal administrator, organizer, or leader of a continuing criminal enterprise engaged, during a one-year period, in the distribution of at least five kilograms of a mixture containing cocaine base, which served only to change punishment by increasing amount of cocaine base possessed by defendant, and did not add a new charge or otherwise change the nature or character of the offense charged was permissible under § 19.2-231 . Dunaway v. Commonwealth, 52 Va. App. 281, 663 S.E.2d 117, 2008 Va. App. LEXIS 326 (2008).

Imposition of enhanced punishment held proper. - Court did not err by applying enhanced punishment provision to second offense although defendant had not been previously convicted when he committed or was tried for the second offense; an enhanced punishment may be applied where there are multiple convictions for separate offenses in a simultaneous prosecution. Mason v. Commonwealth, 16 Va. App. 260, 430 S.E.2d 543 (1993).

This section contains no provision that, in order for the enhanced penalty provision to obtain, the defendant must have been convicted of the first offense before committing the second offense. Jones v. Commonwealth, 21 Va. App. 435, 464 S.E.2d 558 (1995).

Because defendant previously violated the statute, albeit that defendant did so as an accommodation under the statute, a circuit court was correct in considering that prior conviction in sentencing defendant pursuant to the enhanced punishment provisions of the statute. Jones v. Commonwealth, 69 Va. App. 582, 822 S.E.2d 19, 2018 Va. App. LEXIS 355 (2018).

Although appellant was previously convicted as accommodation, court correct in allowing enhanced punishment. - Because appellant was convicted previously under this section, albeit as an accommodation under subsection C, the trial court was correct in allowing the enhanced punishment stated in the second sentence of subsection C. Miller v. Commonwealth, No. 1668-91-2 (Ct. of Appeals March 30, 1993).

Applicability of § 18.2-248.1 to offenses committed prior to effective date. - Penalties provided by § 18.2-248.1 could not be applied to offenses of distribution and sale of marijuana committed prior to the effective date of § 18.2-248.1 and prosecuted under this section, though trial and sentencing occurred after that date, absent election by the Commonwealth to proceed under § 18.2-248.1 and the defendants' consent to such an election. Ruplenas v. Commonwealth, 221 Va. 972 , 275 S.E.2d 628 (1981).

Legally authorized dealers are excepted from provisions of section. - Specifically excepted from the provisions of this section are those persons legally authorized under this chapter to deal in controlled drugs. Wood v. Commonwealth, 213 Va. 363 , 192 S.E.2d 762 (1972).

Users and addicts, if they have gained a familiarity or experience with a drug, may identify it. Hill v. Commonwealth, 8 Va. App. 60, 379 S.E.2d 134 (1989).

Possession is a lesser-included offense of distribution. - Proof of the elements of the offense of feloniously, knowingly, and intentionally distributing a controlled substance necessarily encompasses proof of the possession of that same controlled substance and, therefore, the offense of possessing a controlled substance is a lesser-included offense of distribution of a controlled substance. Austin v. Commonwealth, 33 Va. App. 124, 531 S.E.2d 637, 2000 Va. App. LEXIS 572 (2000).

Failure to give lesser included offense instruction held error. - While the jury could have concluded that the defendant tolerated the presence of the drugs in the apartment and thus constructively shared possession, the jury could also have had a reasonable doubt as to whether the defendant shared the intent to distribute. Therefore, the evidence supporting a theory of simple possession by the defendant was "more than a scintilla" and failure to grant the instruction on the lesser included offense was error. Harrison v. Commonwealth, 12 Va. App. 581, 405 S.E.2d 854 (1991).

Mitigation of punishment. - This section provides for the mitigation of punishment in those "instances" of drug distribution not by a dealer in drugs, but by an individual citizen motivated by a desire to accommodate a friend, without any intent to profit or to induce or to encourage the use of drugs. However, to benefit from this sentencing advantage, the statute, together with § 18.2-263 , places the burden of proving the existence of an accommodation distribution on the shoulders of the defendant, by a preponderance of the evidence. Winston v. Commonwealth, 16 Va. App. 901, 434 S.E.2d 4 (1993).

Trial court did not err in refusing to apply the mitigation of the accommodation defense under this section where the defendant admitted to police he sometimes made a small profit from the sale of drugs and also received drugs as consideration for his assistance in obtaining the drugs for others. Barlow v. Commonwealth, 26 Va. App. 421, 494 S.E.2d 901 (1998).

Court not required to follow jury's recommendation for leniency. - Under this section, the jury had no authority to recommend a sentence of less than five years. Thus, in imposing sentence on appellant, the trial court was not required to follow the jury's recommendation for leniency. Carcamo v. Commonwealth, No. 1554-95-4 (Ct. of Appeals Sept. 17, 1996).

Inconsistent verdicts. - In a case in which defendant appealed his conviction for possession with intent to distribute cocaine, second offense, the trial court did not render inconsistent verdicts. Any perceived inconsistency in the verdicts was explained on the record by the trial court articulating cogently and precisely why there was a sufficient nexus between defendant and the cocaine in the kitchen but not a sufficient nexus between defendant and the cocaine or firearms found in a bedroom. Taylor v. Commonwealth, No. 0687-17-1, 2018 Va. App. LEXIS 160 (June 12, 2018).

Challenge to indictment. - Circuit court did not err in denying defendant's motion to quash the indictment because, after the district court certified the reduced charge of simple possession of a controlled substance at the preliminary hearing, the Commonwealth of Virginia was not required to obtain an indictment from the grand jury on that charge. Furthermore, the district court's findings as to probable cause did not preclude the Commonwealth from obtaining an indictment on a charge of possession with intent to sell or distribute. Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016), cert. denied, 137 S. Ct. 509, 2016 U.S. LEXIS 7144, 196 L. Ed. 2d 417 (U.S. 2016).

Separate trial unwarranted. - Trial court did not err in not ordering a separate trial on charges of involuntary manslaughter and unlawful distribution of a controlled substance, in violation of § 18.2-248 , against a doctor, where the offenses were based on the same act or transactions, or on two or more acts or transactions that were connected or constitute parts of a common scheme or plan; moreover, defendant conceded that the evidence of the distribution was essential to the trial of the homicide charge. Jere v. Commonwealth, No. 2125-02-2, 2003 Va. App. LEXIS 465 (Ct. of Appeals Sept. 9, 2003).

Justice did not require separate trials on multiple charges of violating § 18.2-248 because (1) defendant's knowledge and intent were in issue, (2) evidence of each transaction helped show intent and the number of transactions helped show knowledge of the substance distributed, (3) the probative value of each sale outweighed potential prejudice, (4) efforts were made to ensure fairness and reduce added prejudice, and (4) much of the same evidence was admissible in separate trials, especially regarding an informant and a task force. Walker v. Commonwealth, No. 1051-13-2, 2014 Va. App. LEXIS 112 (Mar. 25, 2014).

It was not an abuse of discretion to deny defendant's motion to sever multiple charges of violating § 18.2-248 because the crimes (1) were part of a common plan to develop an ongoing buyer-seller relationship with an informant and (2) showed each crime's objective was to contribute to achieving a goal not obtainable by committing one crime. Walker v. Commonwealth, No. 1051-13-2, 2014 Va. App. LEXIS 112 (Mar. 25, 2014).

Venue. - Trial court did not err when it found that it had venue over the offense because the required strong presumption that the offense occurred in the city had been established; the trial court implicitly took judicial notice of the location of the street as being in the city as the Commonwealth had requested it to do in response to defendant's motion claiming that the city was not the proper venue. Williams v. Commonwealth, 63 Va. App. 458, 758 S.E.2d 553, 2014 Va. App. LEXIS 232 (2014).

Revocation of indefinitely suspended sentence. - Trial court had jurisdiction to revoke defendant's suspended sentence after he violated conditions of sentence and probation, and to resentence him to prison; under § 18.2-306 the court could revoke defendant's unspecified suspended sentence during the maximum prescribed sentence plus one year and trial court's action occurred well within the prescribed period. Baldwin v. Commonwealth, No. 2722-00-3, 2002 Va. App. LEXIS 283 (Ct. of Appeals May 7, 2002).

Based on the characteristics of the area and defendant's conduct, including defendant's unprovoked flight, a motion to suppress evidence of the cocaine found on defendant's person was properly denied because the police had a reasonable suspicion of criminal activity. Whitfield v. Commonwealth, 265 Va. 358 , 576 S.E.2d 463, 2003 Va. LEXIS 37 (2003).

Plea agreements and sentencing. - Because defendant never voiced any objection to the sentences imposed against him after entering guilty pleas to two indictments charging distribution of cocaine pursuant to a plea agreement, the trial court's denial of defendant's motion to modify the sentences was upheld on appeal. The appellate court found no abuse of discretion on the part of the trial court in failing to modify defendant's sentences since defendant responded to the trial court's questions regarding the plea agreement, found that it was voluntarily entered into, that defendant never voiced any objections, and because the sentences did not exceed the maximum allowable. Russell v. Commonwealth,, 2005 Va. App. LEXIS 263 (July 5, 2005).

Because defendant's conviction of possession of marijuana in a lockbox with the intent to distribute was not for the "same act or transaction" as his possession of marijuana in his pocket, his circuit court conviction of possession of marijuana with the intent to distribute did not violate double jeopardy principles; a mere overlap in proof between two prosecutions does not establish a double jeopardy violation. Peake v. Commonwealth, 46 Va. App. 35, 614 S.E.2d 672, 2005 Va. App. LEXIS 238 (2005).

Defendant's entry of guilty pleas to two counts of possession of oxycodone with intent to distribute did not constitute a waiver of his right to challenge a clear double jeopardy violation because the ends of justice exception applied. Saunders v. Commonwealth, No. 1828-16-1, 2017 Va. App. LEXIS 273 (Oct. 31, 2017).

Disposition upon guilty plea. - Circuit court, upon accepting defendant's guilty pleas of two counts of felony possession of a controlled substance with intent to distribute, and entering a written order, erred by finding that it lacked authority to grant defendant's request to withhold a finding of guilt and defer the entry judgment. The Supreme Court of Virginia held that the circuit court still retained inherent authority to withhold a finding of guilt and defer the disposition because it had not yet rendered a judgment. Starrs v. Commonwealth, 287 Va. 1 , 752 S.E.2d 812, 2014 Va. LEXIS 11 (2014).

Circuit court did not err by imposing mandatory minimum sentences, when defendant pleaded guilty to two counts of distribution of cocaine, because defendant did not satisfy the statutory requirement to have truthfully provided to the Commonwealth of Virginia all information and evidence defendant had concerning the offenses before commencement of the sentencing hearing. Sandidge v. Commonwealth, 67 Va. App. 150, 793 S.E.2d 836, 2016 Va. App. LEXIS 357 (2016).

Jury instructions. - Trial court erred by refusing to give defendant's proffered jury instructions on the simple narcotics transaction rule in conspiracy liability, even though the evidence, if viewed in the light most favorable to the Commonwealth, was legally sufficient to establish defendant's involvement in a criminal conspiracy, but whether a properly instructed jury would view the facts in that light was an open question since they were not instructed that the nature of the transaction and the degree of defendant's involvement in it might, though not necessarily would, make a difference in her criminal liability for conspiracy. Richard v. Commonwealth, 72 Va. App. 598, 851 S.E.2d 68, 2020 Va. App. LEXIS 295 (2020).

Mandatory minimum sentence. - Waiver of the mandatory minimum sentence is inapplicable under subsection C if an individual constructively possesses a firearm in connection with the offense. Stone v. Commonwealth, No. 0347-17-3, 2018 Va. App. LEXIS 78 (Mar. 27, 2018).

Trial court did not err in finding the mandatory minimum sentence waiver was inapplicable because defendant possessed a firearm in connection with his distribution of cocaine; the evidence supported the finding that defendant knew of the presence, nature, and character of the firearm found on his premises because he obtained it from a relative after a robbery, and his distribution of cocaine was another factor the trial court could have considered in concluding that he possessed the firearm. Stone v. Commonwealth, No. 0347-17-3, 2018 Va. App. LEXIS 78 (Mar. 27, 2018).

Trial court did not err in finding the mandatory minimum sentence waiver was inapplicable because defendant possessed a firearm in connection with his distribution of cocaine, second or subsequent offense, convictions; defendant exercised dominion and control over the premises where the firearm was found because he resided there, the firearm was specifically found in a bedroom containing items belonging to defendant, and his wife indicated that he had obtained the firearm. Stone v. Commonwealth, No. 0347-17-3, 2018 Va. App. LEXIS 78 (Mar. 27, 2018).

Defendant failed to carry his burden under subsection C of § 18.2-248 to prove by a preponderance of the evidence that he did not possess a firearm in connection with the four cocaine distribution offenses on which he challenged the circuit court's imposition of three-year mandatory minimum sentences. The circuit court did not err by imposing the three-year mandatory minimum sentences under subsection C of § 18.2-248 on defendant's second-offense cocaine distribution offenses at issue, after rejecting defendant's request for application of the safety valve provision as to his convictions on these offenses. Stone v. Commonwealth, 297 Va. 100 , 823 S.E.2d 241, 2019 Va. LEXIS 12 (Feb. 21, 2019).

Safety-valve provision of subsection C. - Trial court erred in determining that defendant's motion as untimely because disclosure was timely made to the Commonwealth; thus, the motion was timely and warranted consideration on the merits by the trial court for the completeness and truthfulness of the disclosure as well as any further disclosure made to before resentencing. Hall v. Commonwealth, 296 Va. 577 , 821 S.E.2d 921, 2018 Va. LEXIS 194 (Dec. 20, 2018).

"Not later than the time of the sentencing hearing" has the plain and definite meaning of up until, but not beyond, the commencement of the sentencing hearing. Hall v. Commonwealth, 296 Va. 577 , 821 S.E.2d 921, 2018 Va. LEXIS 194 (Dec. 20, 2018).

Issue of timeliness must first be treated as a separate and distinct inquiry from the merits inquiry, and the timeliness question is a simple, threshold issue: the defendant either made his or her disclosure "not later than the time of the sentencing hearing" or he or she did not; nonetheless, the risk of last-minute yet procedurally timely disclosure is not irrelevant to the merits where the burden of production and of persuasion lies with the defendant. Hall v. Commonwealth, 296 Va. 577 , 821 S.E.2d 921, 2018 Va. LEXIS 194 (Dec. 20, 2018).

Trial court is entitled to use its discretion in determining whether to allow the defendant to augment his or her filed disclosure through in-court testimony or through the granting of a continuance to allow the Commonwealth to investigate and verify that the information presented by the defendant is full and complete. Hall v. Commonwealth, 296 Va. 577 , 821 S.E.2d 921, 2018 Va. LEXIS 194 (Dec. 20, 2018).

While the timing of the disclosure may weigh into a trial court's consideration on the merits, the court may not bar a motion as untimely based on a last-minute disclosure when such disclosure was nonetheless timely made: that is, not later than the commencement of the sentencing hearing. Hall v. Commonwealth, 296 Va. 577 , 821 S.E.2d 921, 2018 Va. LEXIS 194 (Dec. 20, 2018).

Sentence reduction. - Trial court erred by dismissing the motions to reconsider defendant's sentence filed by the Commonwealth and defendant based on his substantial assistance in an unrelated murder investigation because § 19.2-303.01 authorized the trial court to reduce defendant's sentence below the mandatory minimum period of incarceration pusuant to subsection C of this section, as the plain language of § 19.2-303.01 indicated the General Assembly intended that the statute function without obstruction from other incongruous laws. Holloway v. Commonwealth, 72 Va. App. 370, 846 S.E.2d 19, 2020 Va. App. LEXIS 224 (2020).

Self-serving disclosures. - Defendant enters a last minute disclosure at his or her own risk: the trial court is within its discretion to disbelieve a self-serving disclosure if it appears incomplete or untruthful, and the court is entitled to consider the last-ditch nature of the effort or previous untruths into that calculus. Hall v. Commonwealth, 296 Va. 577 , 821 S.E.2d 921, 2018 Va. LEXIS 194 (Dec. 20, 2018).

Suspended sentence was legal. - Because defendant did not object to a sentence of 29 years, 11 months with a suspended sentence of 25 years, five months conditioned upon the completion of a transitional program, and because the sentence did not exceed the maximum sentence in § 18.2-248 , defendant's challenge to the sentencing order was barred by Va. Sup. Ct. R. 5A:18. Johnson v. Commonwealth,, 2007 Va. App. LEXIS 257 (July 3, 2007).

Argument on appeal barred. - Because defendant's brief did not provide a standard of review or any legal argument on the question of the sufficiency of the evidence, his claim that the evidence was insufficient to convict him was barred. Brown v. Commonwealth, 68 Va. App. 517, 810 S.E.2d 905, 2018 Va. App. LEXIS 66 (2018).

Applied in Rozier v. Commonwealth, 219 Va. 525 , 248 S.E.2d 789 (1978); Spear v. Commonwealth, 221 Va. 450 , 270 S.E.2d 737 (1980); Ketter v. Commonwealth, 222 Va. 134 , 278 S.E.2d 841 (1981); Hamby v. Commonwealth, 222 Va. 257 , 279 S.E.2d 163 (1981); Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224 (1984); Rider v. Commonwealth, 8 Va. App. 595, 383 S.E.2d 25 (1989); United States v. Smith, 727 F. Supp. 1023 (W.D. Va. 1990); Belcher v. Commonwealth, 17 Va. App. 44, 435 S.E.2d 160 (1993); Robinson v. Commonwealth, 19 Va. App. 642, 453 S.E.2d 916 (1995); White v. Commonwealth, 25 Va. App. 662, 492 S.E.2d 451 (1997); Booker v. Commonwealth, 276 Va. 37 , 661 S.E.2d 461, 2008 Va. LEXIS 84 (2008); Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011); Booker v. Commonwealth, 61 Va. App. 323, 734 S.E.2d 729, 2012 Va. App. LEXIS 407 (2012); Charles v. Commonwealth, 63 Va. App. 289, 756 S.E.2d 917, 2014 Va. App. LEXIS 151 (2014); Brown v. Commonwealth, 288 Va. 439 , 764 S.E.2d 58, 2014 Va. LEXIS 154 (Oct. 31, 2014); Williams v. Commonwealth, 289 Va. 326 , 771 S.E.2d 675, 2015 Va. LEXIS 44 (2015); Reed v. Commonwealth, No. 1305-15-4, 2016 Va. App. LEXIS 233 (Ct. of Appeals Aug. 30, 2016); Salahuddin v. Commonwealth, 67 Va. App. 190, 795 S.E.2d 472 (2017).

II. ELEMENTS.
A. POSSESSION.

"Possession." - In order to convict a defendant of "possession" of a narcotic drug, it generally is necessary to show that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Physical possession giving the defendant "immediate and exclusive control" is sufficient. However, the possession need not always be exclusive. The defendant may share it with one or more. The duration of the possession is immaterial and need not always be actual possession. The defendant may be shown to have had constructive possession by establishing that the drugs involved were subject to his dominion or control. Robbs v. Commonwealth, 211 Va. 153 , 176 S.E.2d 429 (1970).

To establish "possession" in a legal sense, it is not sufficient to simply show actual or constructive possession of the drug by the defendant. The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character. Burton v. Commonwealth, 215 Va. 711 , 213 S.E.2d 757 (1975).

To convict a defendant of illegal possession of drugs, the Commonwealth must prove that the defendant was aware of the presence and character of the drugs, and that he intentionally and consciously possessed them. Andrews v. Commonwealth, 216 Va. 179 , 217 S.E.2d 812 (1975).

Possession may be proved by evidence of acts and declarations of conduct of the accused from which the inference may be fairly drawn that he knew of the existence of narcotics at the place where they were found. Andrews v. Commonwealth, 216 Va. 179 , 217 S.E.2d 812 (1975).

Constructive possession may be established by a showing that an accused has dominion or control over the drugs. Andrews v. Commonwealth, 216 Va. 179 , 217 S.E.2d 812 (1975).

Possession of a controlled substance may be actual or constructive. Archer v. Commonwealth, 225 Va. 416 , 303 S.E.2d 863 (1983).

Where the defendant acted as an intermediary between the purchaser and another, who was holding the controlled substance at the defendant's request and the defendant knew of the presence and character of the drug and it was subject to his dominion and control, there was, therefore, ample proof that he was in constructive possession of it. Archer v. Commonwealth, 225 Va. 416 , 303 S.E.2d 863 (1983).

When one person is in actual possession of a drug, another may have simultaneous constructive possession. Archer v. Commonwealth, 225 Va. 416 , 303 S.E.2d 863 (1983).

Possession need not always be exclusive. The defendant may share it with one or more. Hunley v. Commonwealth, 30 Va. App. 556, 518 S.E.2d 347 (1999).

Duration of possession is immaterial. Hunley v. Commonwealth, 30 Va. App. 556, 518 S.E.2d 347 (1999).

In order to convict a person of illegal possession of an illicit drug, the commonwealth must prove beyond a reasonable doubt that the accused was aware of the presence and character of the drug and that the accused consciously possessed it. Jackson v. Commonwealth, No. 2823-99-4, 2000 Va. App. LEXIS 729 (Ct. of Appeals Nov. 14, 2000).

Imitation controlled substances. - Circuit court properly convicted defendant of possession with intent to distribute an imitation controlled substance because he possessed a substance that resembled heroin, was packaged to resemble heroin, and he arranged to sell it as heroin, the "introduction into commerce" exception was not applicable where specifically provided that the Commonwealth was not required to "negative any exception," and defendant failed to introduce any evidence of when any substance - imitation or illegal - was introduced into commerce. Taylor v. Commonwealth, No. 1197-19-3, 2020 Va. App. LEXIS 215 (July 28, 2020).

Possession of controlled drug gives rise to inference of defendant's knowledge of its character. Hunley v. Commonwealth, 30 Va. App. 556, 518 S.E.2d 347 (1999).

Fact finder was not required to accept defendant's theory that he was unaware of nature of substance in package; based on defendant's conduct, fact finder could reasonably infer that he knowingly and intentionally possessed cocaine. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000).

Proximity may tend to show knowledge. - Proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of property, the person necessarily knows of the presence, nature and character of the item that is found there. Young v. Commonwealth, No. 1228-00-2, 2001 Va. App. LEXIS 251 (Ct. of Appeals May 15, 2001).

Awareness of presence and character of substance. - Evidence that the defendant acted suspiciously after he exited a bus from New York, a known source for drugs, that he gave police officers inconsistent stories about the circumstances of his visit, that his behavior became more suspicious after he entered the taxi cab in which the drugs and a firearm were later found and that, after he got out of the cab at a motel and in response to an officer's request to search his bag, he remarked that "you can go ahead and search the bag, there's no drugs or anything in it," was sufficient for the fact finder to have reasonably inferred that the defendant knowingly and intentionally possessed the cocaine which he had concealed in the cab. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000), aff'd, 262 Va. 196 , 547 S.E.2d 899 (2001).

Where defendant's connection to the drugs was significantly greater than mere proximity, and details recounted by an officer permitted the trial court to draw the reasonable inference that defendant possessed the drugs found in the precise spot where the officer saw him reaching, and from which he quickly exited when he saw the officer, such evidence permitted the trial judge to conclude that defendant was aware of the drugs and exercised dominion and control over them. Walker v. Commonwealth, No. 1665-03-2, 2004 Va. App. LEXIS 474 (Ct. of Appeals Oct. 5, 2004).

Possession coextensive with § 18.2-250 possession. - Under the Virginia statutes, possession under this section must be coextensive with possession under § 18.2-250 . Such an interpretation is required as a matter of due process of law since, otherwise, a defendant could be subject to a presumption of possession based upon his occupancy of an apartment in a prosecution under this section, whereas such a presumption would be barred in a prosecution under the lesser offense of § 18.2-250 . Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Possession of a drug need not be exclusive, but may instead be joint. Archer v. Commonwealth, 225 Va. 416 , 303 S.E.2d 863 (1983).

Accommodation possession. - Court's refusal to grant accommodation instruction had no effect on verdict and was harmless error, where defendant was convicted of lesser offense of simple possession, which was less culpable than accommodation possession with intent to distribute, with a like penalty. Watford v. Commonwealth, No. 0569-99-1 (Ct. of Appeals Mar. 7, 2000).

Constructive possession may be established by circumstantial evidence provided such evidence excludes every reasonable hypothesis of innocence that flows from the evidence. Whether a hypothesis of innocence is reasonable is a question of fact. Johnson v. Commonwealth, No. 1487-99-3, 2000 Va. App. LEXIS 504 (Ct. of Appeals July 11, 2000).

To support a conviction based upon constructive possession, the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986); Brown v. Commonwealth, 5 Va. App. 489, 364 S.E.2d 773 (1988).

The Commonwealth stressed that defendant had initially denied ownership of the jacket and then admitted it when the officer found receipts bearing his name. The Commonwealth suggested to the jury that, because he denied ownership, defendant must have known that the cocaine was in the jacket. The Commonwealth was required to prove that defendant intentionally and consciously possessed the cocaine. Without the denial of ownership, the Commonwealth could not have implied that defendant consciously possessed it with knowledge of its nature and character. Admission of defendant's statements was therefore reversible error. Carroll v. Commonwealth, No. 2353-95-2 (Ct. of Appeals Feb. 25, 1997).

Constructive possession may be shown by defendant's acts, declarations or conduct which support the inference that the contraband was "subject to his dominion or control." Wilkins v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994).

Constructive possession must be shown by acts, statements, or conduct. - To support a conviction based upon constructive possession, the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control. Drew v. Commonwealth, 230 Va. 471 , 338 S.E.2d 844 (1986); Shurbaji v. Commonwealth, 18 Va. App. 415, 444 S.E.2d 549 (1994).

Constructive possession may be established when there are acts, statements or conduct of the accused or other facts or circumstances which tend to show that the accused was aware of both the presence and character of the substance and that it was subject to his dominion and control. Jackson v. Commonwealth, No. 2823-99-4, 2000 Va. App. LEXIS 729 (Ct. of Appeals Nov. 14, 2000).

The proximity of the dispenser containing bullets and cocaine to the handgun, combined with the correspondence of the bullets in the dispenser to the bullets in the handgun, gave rise to a reasonable inference that the two items were possessed in conjunction. Further, the relative privacy of the yard in which these items, and no others, were found supported the inference that the defendant dropped both items when running from the officer. Therefore, evidence was sufficient for conviction under this section and § 18.2-308.4 . Hunt v. Commonwealth, No. 0257-94-1 (Ct. of Appeals March 21, 1995).

The Commonwealth did not meet its burden to prove beyond a reasonable doubt that appellant was aware of the presence and character of the cocaine and was intentionally and consciously in physical or constructive possession of it; most notably, the Commonwealth failed to rule out the reasonable hypothesis that an unnamed person fleeing through the kitchen may have dropped the baggie(s) into the can on his way through the sliding door and onto the deck. Pemberton v. Commonwealth, 17 Va. App. 651, 440 S.E.2d 420 (1994).

Evidence that defendant "suspected" that drugs may have been inside the package failed to prove beyond a reasonable doubt that he intentionally and consciously possessed the drugs. Thus, the evidence was insufficient to support the conviction for attempted possession of cocaine with intent to distribute. Gaither v. Commonwealth, No. 0610-96-2 (Ct. of Appeals June 24, 1997).

Knowledge not inferred from having been seen with known cocaine supplier. - Defendant's knowledge of the cocaine could not be inferred from his having been seen with a known cocaine supplier shortly before his arrest, where the evidence proved only that defendant had some conversation with the supplier, but there was no evidence regarding what they discussed. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Defendant's awareness of cocaine could not be inferred from his failure to show surprise upon being arrested, even if the proposition that guilty knowledge may be inferred from a failure to show surprise at being arrested were to be accepted, where the only evidence regarding defendant's reaction to his arrest came from a police officer who testified that defendant was cooperative and made no attempt to escape. This testimony did not establish lack of surprise. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Mere proximity to a controlled substance is insufficient to establish possession, and furthermore, no presumption of possession arises from the ownership or occupancy of the premises where drugs are found. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Mere proximity of a defendant to packages of heroin was not sufficient to establish constructive possession, and the conviction of possession with intent to distribute could not be sustained. Wright v. Commonwealth, 217 Va. 669 , 232 S.E.2d 733 (1977).

Mere proximity to a controlled drug is not sufficient to establish dominion and control. Drew v. Commonwealth, 230 Va. 471 , 338 S.E.2d 844 (1986).

Based upon the appellant's admitted prior cocaine use and the location and visibility of the cocaine, the trial court could reasonably infer that the appellant was aware of the presence and character of the cocaine and his proximity to the drugs was sufficient to establish possession. Brown v. Commonwealth, 5 Va. App. 489, 364 S.E.2d 773 (1988).

While mere proximity to a controlled substance is insufficient to establish possession, it is a factor to consider when determining whether the accused constructively possessed drugs. Brown v. Commonwealth, 5 Va. App. 489, 364 S.E.2d 773 (1988).

The fact that a suspect's personal items are found in close proximity to contraband does not, in and of itself, establish ownership, knowledge or possession. Plunkett v. Commonwealth, Nos. 3002-99-3, 0257-00-3, 2000 Va. App. LEXIS 831 (Ct. of Appeals Dec. 19, 2000).

Defendant's mere proximity to cocaine found between sun visor and roof of car was not sufficient to prove constructive possession. Kindred v. Commonwealth, No. 1182-99-1 (Ct. of Appeals Mar. 7, 2000).

A person's proximity to a place where a controlled substance is present is insufficient to support a conviction, where the evidence does not prove that the person intentionally and knowingly possessed the controlled substance. Williams v. Commonwealth, No. 0289-00-1, 2001 Va. App. LEXIS 303 (Ct. of Appeals June 5, 2001).

Ownership of premises and proximity to contraband. - Proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of property, the person necessarily knows of the presence, nature and character of a substance that is found there. Johnson v. Commonwealth, No. 1487-99-3, 2000 Va. App. LEXIS 504 (Ct. of Appeals July 11, 2000).

Documents showing defendant claimed house as residence. - Several documents introduced to show that defendant claimed the house in which cocaine was found as his residence, though relevant, raised no presumption that he knowingly or intentionally possessed the controlled substance found there. Drew v. Commonwealth, 230 Va. 471 , 338 S.E.2d 844 (1986).

Ownership of premises relevant to dominion and control. - Ownership or occupancy of premises where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over the items on the premises in order to prove that the owner or occupant constructively possessed the contraband. Johnson v. Commonwealth, No. 1487-99-3, 2000 Va. App. LEXIS 504 (Ct. of Appeals July 11, 2000).

Occupancy of vehicle raises no presumption. - A person's occupancy of a vehicle in which a controlled substance is found raises no presumption that the person either knowingly or intentionally possessed the controlled substance. Williams v. Commonwealth, No. 0289-00-1, 2001 Va. App. LEXIS 303 (Ct. of Appeals June 5, 2001).

Ownership or occupancy alone is insufficient to prove knowing possession. - Ownership or occupancy of a vehicle or of premises where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle or on the premises in order to prove that the owner or occupant constructively possessed the contraband; however, ownership or occupancy alone is insufficient to prove knowing possession of drugs located on the premises or in a vehicle. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

Items in vehicle failed to establish link between defendant and marijuana. - Commonwealth's evidence failed to establish any link between defendant and the marijuana found in his vehicle, other than defendant's ownership of the vehicle. The nature of the other items found in the vehicle that were shown to belong to defendant, the handgun and cellular phone, did not tie him to the drugs or drug paraphernalia. Those are items frequently found in vehicles where the owner or occupant has no relation to drug trafficking. To the extent that receipt for a gun purchase, phone bill, defendant's wallet and driver's license in the vehicle could prove that defendant recently occupied the vehicle, the evidence did not support an inference that the drugs were in the vehicle at the time. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

Not separate drug offense for sentencing under 21 U.S.C.S. § 841(b)(1)(A). - Defendant's conviction for possession with intent to distribute cocaine was not a separate drug conviction from a federal conviction for possession with intent to distribute and distribution of cocaine for purposes of sentencing under 21 U.S.C.S. § 841(b)(1)(A) because both convictions arose from the same criminal episode and concurrent sentences were imposed for them. United States v. Gardner, 534 F. Supp. 2d 655, 2008 U.S. Dist. LEXIS 12034 (W.D. Va. 2008).

Not prior felony drug offense for purposes of sentencing under 21 U.S.C.S. § 841(b)(1)(A). - Defendant's conviction for possession with intent to distribute an imitation controlled substance under § 18.2-248 was not a felony drug conviction for purposes of sentencing under 21 U.S.C.S. § 841(b)(1)(A) because it was not within the listed felony drug offenses under 21 U.S.C.S. § 802(44), the Commonwealth was not required to prove a nexus between defendant and an actual controlled substance, and the act prohibited by § 18.2-248 was not prohibited by any federal statute. United States v. Gardner, 534 F. Supp. 2d 655, 2008 U.S. Dist. LEXIS 12034 (W.D. Va. 2008).

Possession of a modicum of an illegal drug is sufficient to sustain a conviction. Robbs v. Commonwealth, 211 Va. 153 , 176 S.E.2d 429 (1970).

The modicum of heroin in the bottom of the "bottle cap cooker," if possessed by the defendant, was sufficient to support her conviction. Robbs v. Commonwealth, 211 Va. 153 , 176 S.E.2d 429 (1970).

B. DISTRIBUTION.

Legislative intent. - While the legislature has seen fit to make distribution of cocaine as an accommodation punishable with less severity than distribution for profit, the gravamen of the offense is possession of the drug with the intent to distribute it to another. McCoy v. Commonwealth, 9 Va. App. 227, 385 S.E.2d 628 (1989).

The plain and obvious meaning of this section and § 18.2-248.01 is to prohibit the possession or transportation of illegal substances in Virginia by a person whose intent is to distribute them anywhere. Seke v. Commonwealth, 24 Va. App. 318, 482 S.E.2d 88 (1997).

The term "distribute" as used in former § 54-524.101 has been defined by the General Assembly so as to give it the broadest possible meaning and to proscribe acts which would not fall within the more limited terms of "sale," "barter," "gift" or "exchange" which appear in the federal and state statutes underpinning the "procuring agent" rule." Wood v. Commonwealth, 214 Va. 97 , 197 S.E.2d 200 (1973).

The conscious choice by the General Assembly of the word "distribute" and the broad definition given that word by it evinces a legislative intent to proscribe not only the illegal sale, barter, exchange or gift of controlled drugs but also any delivery or transfer, actual or constructive, of possession or title to such drugs from one person to another. Wood v. Commonwealth, 214 Va. 97 , 197 S.E.2d 200 (1973).

The term "profit" as used in subsection D is defined as a commercial transaction in which there is a consideration involved; it does not necessarily mean that a seller of drugs has to sell his drugs to a buyer at a price in excess of the amount the seller paid for the drugs. Booker v. Commonwealth, No. 0710-99-4, 2000 Va. App. LEXIS 352 (Ct. of Appeals May 9, 2000).

"Profit" is any consideration received or expected. - A person convicted of distributing a controlled substance is not entitled to the reduced penalty afforded by subsection A if the distribution was made "with intent to profit thereby." The profit contemplated by the statute is any consideration received or expected. Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

Statutory presumption as to distribution. - No statutory presumption was included in this section before the 1973 amendment that any distribution is for profit or to induce use, addiction or dependency. Jefferson v. Commonwealth, 214 Va. 432 , 201 S.E.2d 749 (1974).

Proof of intent essential to conviction. - In cases involving crimes which require an act coupled with a specific intent, such as this one, proof of intent is essential to conviction. While intent may be shown by circumstantial evidence, the existence of intent cannot be based upon speculation or surmise. Adkins v. Commonwealth, 217 Va. 437 , 229 S.E.2d 869 (1976) (decided under former § 54-524.101:1).

It is firmly established under Virginia law that the existence of intent cannot be based upon speculation or surmise; thus, assuming proof of possession by the defendant, it is necessary for the Commonwealth to introduce sufficient evidence showing the drugs seized were intended for distribution and were not for the defendant's personal use. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

In order for a defendant to be convicted of possession of a controlled substance with the intent to distribute, the Commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his intention to distribute that substance. Stanley v. Commonwealth, 12 Va. App. 867, 407 S.E.2d 13 (1991).

Intent must be proved by circumstances. - Intent is not susceptible of direct proof; it must be proved by circumstances. United States v. Childs, 463 F.2d 390 (4th Cir.), cert. denied, 409 U.S. 966, 93 S. Ct. 271, 34 L. Ed. 2d 232 (1972).

Because direct proof of intent is often impossible, it must be shown by circumstantial evidence which is consistent with guilt and inconsistent with and excludes every reasonable hypothesis of innocence. Wilkins v. Commonwealth, 18 Va. App. 293, 443 S.E.2d 440 (1994).

Intent necessarily must be proved by circumstances. Hunter v. Commonwealth, 213 Va. 569 , 193 S.E.2d 779 (1973).

Where crack cocaine was packaged in two plastic bags, and he possessed a large amount of cash and a loaded handgun, that along with the evidence that possession of 9.5 grams of cocaine was inconsistent with personal use, was sufficient proof that defendant was in possession of cocaine with the intent to distribute. Tinker v. Commonwealth, No. 1959-94-1 (Ct. of Appeals Oct. 31, 1995).

The intent of an accused to distribute drugs may be shown by circumstantial evidence; circumstances that shed light on the accused's specific intent regarding illegal drugs in the accused's possession include: (1) the quantity and method of packaging of the drugs possessed by the accused; (2) the presence or absence of an unusual amount of money suggesting profit from sales; and (3) the presence or absence of drug paraphernalia. Brooks v. Commonwealth, No. 0811-02-4, 2003 Va. App. LEXIS 118 (Ct. of Appeals Mar. 4, 2003).

Defendant's convictions for possession of both marijuana and cocaine with the intent to distribute were upheld, where the evidence showed that as a principal in the second degree, she allowed two known drug dealers to use her apartment to sell drugs, knew that drugs were kept in her house, and police observed hand-to-hand transactions from defendant's apartment over a two-month period of time. Edmonds v. Commonwealth, No. 2176-03-2, 2004 Va. App. LEXIS 468 (Ct. of Appeals Oct. 5, 2004).

Circumstantial evidence of intent to distribute prescription drugs. - Indicia of intent to distribute drugs must be contexualized to the specific drug at issue. For illegally distributed prescription drugs, the packaging factor takes into account the presence or absence of pharmacy pill bottles or other forms of pharmaceutical packaging. Sample v. Commonwealth, No. 2594-02-3, 2003 Va. App. LEXIS 627 (Ct. of Appeals Dec. 9, 2003).

Because direct evidence is often impossible to produce, intent may be shown by circumstantial evidence that is consistent with guilt, inconsistent with innocence, and excludes every reasonable hypothesis of innocence. Dunbar v. Commonwealth, 29 Va. App. 387, 512 S.E.2d 823 (1999).

Factors that may indicate the defendant intended to distribute the illegal drugs in his possession include the possession of a quantity of drugs greater than that ordinarily possessed for one's personal use, the method of packaging of the controlled substance, the quantity and denomination of the cash possessed, the absence of any paraphernalia suggestive of personal use, the presence of equipment related to drug distribution, and the presence of firearms. Thus, there was sufficient evidence to support defendant's conviction for distribution of cocaine under § 18.2-248 where defendant possessed, inter alia, 4.01 grams of powder cocaine packaged in seven plastic bag corners, a large amount of case, an electronic scale, and a large quantity of ammunition, and where there was no evidence in the record that defendant used cocaine or that he possessed it for his personal use. Emerson v. Commonwealth, 43 Va. App. 263, 597 S.E.2d 242, 2004 Va. App. LEXIS 274 (2004).

Provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt. - However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant. Emerson v. Commonwealth, 43 Va. App. 263, 597 S.E.2d 242, 2004 Va. App. LEXIS 274 (2004).

Absence of claim defendant used is evidence of the possession of drugs with intent to distribute. Askew v. Commonwealth, 40 Va. App. 104, 578 S.E.2d 58, 2003 Va. App. LEXIS 135 (2003).

No geographical limitation on intent element. - The phrase "intent . . . to distribute" in both this section § 18.2-248.01 contains no geographical limitation. The Commonwealth is not required to prove the place where a defendant intends to distribute illegal substances in order to obtain a conviction under either section of the Code of Virginia. Seke v. Commonwealth, 24 Va. App. 318, 482 S.E.2d 88 (1997).

Quantity alone is not determinative of intent to distribute, but rather is a circumstance to be considered together with other factors. Stanley v. Commonwealth, No. 0077-88-2 (Ct. of Appeals Sept. 25, 1990).

Quantity may be considered along with other circumstances to support an inference of intent to distribute, and quantity alone, under certain circumstances, may be sufficient to support an inference of intent to distribute. Adkins v. Commonwealth, 217 Va. 437 , 229 S.E.2d 869 (1976) (decided under former § 54-524.101:1).

The quantity of a controlled substance is a factor which may indicate the purpose for which it is possessed. Possession of a small quantity creates an inference that the drug is for personal use. Possession of a small quantity of a controlled substance, however, when considered with other circumstances, may be sufficient to establish an intent to distribute. The method of packaging of the controlled substance is such a circumstance. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Quantum of evidence necessary to prove an intent to distribute depends on the facts and circumstances of each case; in addition to evidence proving the quantity and type of drug possessed, the Commonwealth may introduce opinion testimony from law-enforcement officers familiar with the habits and propensities of local drug users as to what amounts are inconsistent with personal use. Askew v. Commonwealth, 40 Va. App. 104, 578 S.E.2d 58, 2003 Va. App. LEXIS 135 (2003).

Defendant's possession of a residue or trace amount of cocaine was sufficient to support his conviction of possession with intent to distribute. Stanley v. Commonwealth, No. 0077-88-2 (Ct. of Appeals Sept. 25, 1990).

Packaging as evidence of intent. - Relevant to an evaluation of intent is the manner in which the drugs were packaged when seized, and the finder of fact may consider evidence that the drugs were "packaged in distributable form." Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Even if substance is packaged for distribution, there must be additional evidence to preclude the inference that it was purchased in the packaged form for personal use rather than being held in that fashion for distribution. The additional evidence available to preclude such an inference [may be] the presence of a large, or bulk, quantity from which smaller packages may have been made up for distribution, or the presence of paraphernalia used in the packaging process. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Presence of unusual amount of money, suggesting profit from sales, is a circumstance that negates an inference of possession for personal use. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Belief that substance is a "real controlled substance," rather than "imitation controlled substance" no defense. - Evidence was sufficient to prove an intent to distribute an imitation controlled substance in violation of subsection G of § 18.2-248 because a detective's testimony dismantled defendant's hypothesis, and the sole defense theory of the case, that defendant believed he possessed real, not imitation, crack and had been "ripped off," and since defendant was not "ripped off," the only remaining reasonable hypothesis was that he possessed it to distribute; the detective stated that if defendant was an experienced user, he would have purchased crack in bulk, rather than in three packages because he would have been able to obtain more of the substance, but if defendant was an inexperienced user, he would not have purchased that quantity of crack since that's a lot more than a new cocaine user would attempt. Holloway v. Commonwealth, 57 Va. App. 658, 705 S.E.2d 510, 2011 Va. App. LEXIS 94 (2011).

Instruction on accommodation not warranted. - In a case where defendant was convicted by a jury of distribution of heroin, the trial court did not err in not giving a distribution-for-accommodation instruction to the jury because the evidence showed that defendant, at the very least, expected a 50% profit on the heroin she distributed to the buyer; and the buyer testified that defendant obtained drugs for him on multiple occasions over the course of a year or two; thus, the evidence showed a commercial transaction on which defendant made a profit, thereby precluding a distribution-for-accommodation instruction. Porter v. Commonwealth, 66 Va. App. 302, 785 S.E.2d 224 (2016).

In a case where defendant was convicted by a jury of distribution of heroin, defendant waived her appeal of the trial court's failure to give a distribution-for-accommodation instruction after she presented evidence at her sentencing hearing as she failed to reassert her request for the distribution-for-accommodation instruction after she presented additional evidence, which deprived the trial court of the opportunity to contemporaneously consider and rule on whether the instruction was appropriate. Porter v. Commonwealth, 66 Va. App. 302, 785 S.E.2d 224 (2016).

Accommodation defense only relevant to sentencing. - In a prosecution for distribution of cocaine, the trial court did not err by not allowing the jury to consider a juvenile's accommodation defense during the guilt phase of the trial; this defense was only relevant to sentencing, and the trial court, not the jury, determined sentence in a juvenile case. Foster v. Commonwealth, 38 Va. App. 549, 567 S.E.2d 547, 2002 Va. App. LEXIS 447 (2002).

Presumption against accommodation distribution after guilt established. - This section contains a presumption against an accommodation distribution to the extent that it is relevant to the determination of the proper degree of punishment, but only after guilt has been established. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided prior to 1979 amendment.

And presumption lasts until evidence makes case for jury. - The presumption created with regard to accommodation retains its effect until opposing evidence (whether from the Commonwealth or the defendant) is sufficient to make a case for the jury, that is, to convince the judge that a jury could reasonably find that the defendant was an accommodation distributor. This is the obvious standard to be applied for overcoming the statutory presumption that operates in favor of the Commonwealth in cases prosecuted under this section, and it is unnecessary for the standard to be spelled out in the statute. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided prior to 1979 amendment.

Burden on defendant to show accommodation. - The statutory scheme behind this section provides that once the guilt of the defendant has been established (a determination completely independent of the profit-accommodation distinction), a second determination of the proper punishment is to be made. This section and § 18.2-263 place the burden of proving the existence of an accommodation distribution (and the right to the lesser penalty) to the trier of fact on the shoulders of the defendant. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided prior to 1979 amendment.

This section and § 18.2-263 place the burden of proving the existence of an accommodation distribution (and the right to the lesser penalty) to the trier of fact on the shoulders of the defendant. In other words, the statute contains a presumption against an accommodation distribution to the extent that it is relevant to the determination of the proper degree of punishment, but only after guilt has been established. Ulmer v. Commonwealth, No. 0369-85 (Ct. of Appeals Aug. 26, 1986).

Defendant offered no evidence to suggest that he sold heroin on the day in question to a female customer as an accommodation; accordingly, having convicted defendant of selling heroin to the female customer as charged and described by the Commonwealth, the trial court did not err in concluding that defendant had not met his burden to establish that his involvement in the transaction constituted an accommodation under this section. McLean v. Commonwealth, No. 0552-19-4, 2020 Va. App. LEXIS 28 (Feb. 4, 2020).

By preponderance of evidence. - A defendant, charged with an unlawful sale of drugs, who defends on the ground that he distributed the drugs for accommodation only, is not required to establish such accommodation beyond a reasonable doubt, but only by a preponderance of the evidence. He is required to produce some evidence which satisfies the trier of the facts that his distribution was for accommodation. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided prior to 1979 amendment.

Subsection D establishes a presumption against an accommodation distribution and requires a defendant to prove accommodation by a preponderance of the evidence. Booker v. Commonwealth, No. 0710-99-4, 2000 Va. App. LEXIS 352 (Ct. of Appeals May 9, 2000).

Drug party held for purpose of profit rather than as accommodation. - Defendant was properly found to have distributed drugs with the intent to profit thereby rather than simply to accommodate friends, where the drug he supplied at a party was very high quality cocaine, the quality was sufficient to distribute among a number of users, and the paraphernalia he took as he fled from the police and "stuff" later retrieved from his home and buried in the woods were indicia of commercial traffic in drugs. Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

Where defendant expected to profit from an illegal drug transaction by sharing in the drugs, not even a scintilla of evidence established an accommodation pursuant to § 18.2-248 D; thus, the trial court properly refused defendant's proffered accommodation instruction. Walker v. Commonwealth, No. 2974-01-4, 2003 Va. App. LEXIS 110 (Ct. of Appeals Mar. 4, 2003).

Factual impossibility not a defense. - Where defendant had completed every act necessary for commission of the substantive crime, and the only reason the distribution was not a crime was a defect in the substance itself, which was unknown to defendant, the impossibility was clearly factual, not legal, and as such, could not be asserted as a defense to the attempted crime. Parham v. Commonwealth, 2 Va. App. 633, 347 S.E.2d 172 (1986).

Evidence sufficient to overcome defense of entrapment. - Defendant was properly convicted of three counts of possession of cocaine with intent to distribute, second or subsequent offense, because defendant was not entrapped by an undercover police officer into selling drugs to the officer in that defendant was predisposed to selling the drugs. Even when the officer asked defendant to sell to the officer, the officer's actions did not constitute entrapment, and while defendant may have expressed some hesitation before defendant sold cocaine to the officer, this did not equate with entrapment. Bowser v. Commonwealth,, 2014 Va. App. LEXIS 68 (Mar. 4, 2014).

Evidence of consummation of sale. - The finder of fact may rely upon facts, including possession of currency, from which an inference may reasonably be drawn that the defendant had consummated a sale of drugs. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Evidence of persons using drugs. - The finder of fact may consider whether the defendant personally used the drugs which he possessed, and if it is shown that the defendant was in exclusive possession, it may also be considered whether any persons accompanying the defendant when the seizure occurred were at that time using drugs of the type seized. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Insufficient evidence to establish substance as cocaine. - In a prosecution for distribution of cocaine the Commonwealth had no physical evidence of the substance procured from the defendant, and therefore was not able to conduct any laboratory analysis. Their only evidence concerning the nature of the substance consisted of the testimony of a witness who testified that she had given some stolen beer to defendant in exchange for crack cocaine. To establish that it was cocaine, the Commonwealth asked witness how long she had used cocaine, how often, the manner of use, what it looked like, and what effect it had on her. Then she was asked her opinion on what the substance was that she had traded for beer. This is insufficient to prove that the substance was in fact cocaine. Furthermore, no corroborating evidence was presented to support witness' opinion. Thus, the Commonwealth's evidence failed to prove a distribution of cocaine beyond a reasonable doubt. Turner v. Commonwealth, No. 2907-95-2 (Ct. of Appeals Nov. 26, 1996).

To obtain a conviction under this section, the commonwealth is required to prove that the defendant intentionally and consciously possessed the controlled substance, either actually or constructively, with knowledge of its nature and character, together with the intent to distribute it. Jackson v. Commonwealth, No. 0684-00-1, 2001 Va. App. LEXIS 21 (Ct. of Appeals Jan. 23, 2001).

The mere presence of drugs in a room appellant used is insufficient to support a conviction for possession with intent to distribute. Powell v. Commonwealth, No. 2202-93-4 (Ct. of Appeals April 11, 1995).

No retrial after successful challenge to sufficiency of evidence. - Where a petitioner challenged the sufficiency of the evidence used to convict him of possession of marijuana and LSD with intent to distribute, and where the district court upheld his challenge, the Commonwealth could not be permitted the option to retry the petitioner, for a retrial would be in violation of the double jeopardy clause. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Cognizable habeas corpus issue. - Where defendant claimed that his conviction for possession of cocaine with intent to distribute in violation of § 18.2-248 was invalid because the police executed an illegal "no knock" search, it was not cognizable in a habeas corpus proceeding because it had been decided by the trial court and on direct appeal; knocking and announcing police presence would have been dangerous or futile. Henry v. Warden, 265 Va. 246 , 576 S.E.2d 495, 2003 Va. LEXIS 31 (2003).

Indictment, which expressly charged possession with intent to distribute, also implicitly charged the lesser included offense of simple possession. Russell v. United States, 507 F.2d 1029 (4th Cir. 1974).

Nature of distribution is jury question. - It was peculiarly within the province of the jury to determine from the evidence whether distribution was made for profit or merely for accommodation. Brown v. Commonwealth, 215 Va. 753 , 213 S.E.2d 764 (1975).

Evidence sufficient to prove lesser-included offense of simple possession. - Cocaine residue in defendant's pocket, $115 in cash, and a cell phone were insufficient to prove he possessed cocaine with intent to distribute; thus, on appeal his conviction was reduced to the lesser-included offense of simple possession of cocaine. Claiborne v. Commonwealth, No. 0279-01-2, 2002 Va. App. LEXIS 112 (Ct. of Appeals Feb. 19, 2002).

No reasonable inference of guilt. - It cannot be reasonably inferred from the mere presence of the defendant at the street intersection and the intersection's reputation as a place for trafficking in drugs that he was engaged in the illegal activity of drug distribution over the period of time defendant was observed by the detectives. This unrelated evidence tended to show defendant's "guilt by association" and it was highly prejudicial to him. Smith v. Commonwealth, 217 Va. 336 , 228 S.E.2d 562 (1976).

The jury should not concern itself with background information on the prohibited substance, but should make an objective finding of guilt or innocence based on relevant evidence and punish the guilty within the limits fixed by statute. Smith v. Commonwealth, 223 Va. 721 , 292 S.E.2d 362 (1982).

To permit evidence respecting extreme horrors which may result from the use of illegal substances diverts the jury from its principal inquiry and injects an element of passion into the trial prejudicial to the accused. Smith v. Commonwealth, 223 Va. 721 , 292 S.E.2d 362 (1982).

A distribution for consideration precludes an accommodation instruction. See Booker v. Commonwealth, No. 0710-99-4, 2000 Va. App. LEXIS 352 (Ct. of Appeals May 9, 2000).

When accommodation instruction granted. - Where there is sufficient evidence to support a request instruction defining the offense of possession with intent to make an accommodation distribution, the request should be granted. Schindel v. Commonwealth, 219 Va. 814 , 252 S.E.2d 302 (1979).

An instruction on accommodation distribution was not warranted where, according to the defendant's evidence, she was merely present during a drug sale but neither participated in nor countenanced the sale, while, under the Commonwealth's version of the facts, she arranged the drug sale, actively participated in the transaction, and expected drugs in return for her participation. Mondido v. Commonwealth, No. 0035-97-2 (Ct. of Appeals July 28, 1998).

Defendant's convictions for two counts of distribution of cocaine, third offense, in violation of § 18.2-248 ; three counts of distribution of marijuana; two counts of conspiracy to distribute cocaine, third offense; three counts of conspiracy to distribute marijuana; one count of possession of cocaine with intent to distribute; and one count of possession of marijuana with intent to distribute were proper because the trial court did not err in not instructing the jury on the lesser punishment of distribution for accommodation under subsection D of § 18.2-248 . In each transaction, the agent was the buyer, and not the cousin, who had only arranged the meetings for the agent; additionally, the fact that defendant did not make any money on the transactions was not dispositive. Martin v. Commonwealth,, 2010 Va. App. LEXIS 205 (May 18, 2010).

Error in refusal of accommodation instruction. - Where jury could find on basis of evidence presented that defendant had no intent to share in the sale proceeds, did not participate in the sale transaction except to arrange it and that sale of drugs was prompted by undercover policeman and informant, the trial court committed reversible error in refusing the accommodation instruction based on the provisos of subsection A. Gardner v. Commonwealth, 217 Va. 5 , 225 S.E.2d 354 (1976) (decided under former § 54-524.101:1).

Accommodation defense was negated by evidence that the defendant stated that would be taken care for assisting an undercover officer in his purchase of cocaine, his ready availability and eagerness to procure cocaine for the undercover officer, his ongoing familiarity with the whereabouts and inventory of a dealer, and his detached relationship with the undercover officer. Ricks v. Commonwealth, No. 0432-98-1 (Ct. of Appeals Apr. 13, 1999).

Refusal of witness to reveal source of cocaine. - Where witness refused to reveal his source of cocaine in Florida, and his motive for refusing to answer was purportedly because of threats he had received against his family, but answered in detail every other question propounded to him by either the Commonwealth or the defendant and witness' source of cocaine was not relevant to the question of the defendant's guilt, and the defendant was given an opportunity on cross-examination and during closing argument to expose this infirmity, the trial court did not abuse its discretion in refusing to strike witness' direct testimony. Nichols v. Commonwealth, 6 Va. App. 426, 369 S.E.2d 218 (1988).

The trial court did not err in overruling defendant's motion for a mistrial, made when a prosecution witness testified that he had gone to the area where the drug transaction took place because it was known that drugs were sold there, where the trial court did make a factual inquiry to determine whether defendant's rights had been prejudiced, the trial judge asked each juror individually if he or she could disregard the prejudicial remark, and the record did not show that the jury failed to follow the cautionary instruction. Hines v. Commonwealth, No. 0092-86-2 (Ct. of Appeals Oct. 13, 1987).

Evidence sufficient to prove manufacture. - The defendant's statement to the police that "you don't have PCP," indicating some degree of familiarity with the chemical process, together with the other evidence, including the chemicals and paraphernalia found in the cabin with the defendant, was sufficient for the jury reasonably to have concluded that the defendant manufactured or participated in the manufacture of both PCC and PCP. McGee v. Commonwealth, 4 Va. App. 317, 357 S.E.2d 738 (1987).

Sentencing. - Defendant's sentence was proper in defendant's case where defendant pled guilty to three counts of distributing cocaine and received a 22-year sentence on each count, to be served concurrently; the range for one offense was five to 40 years, and, thus, defendant's sentence could properly be imposed if it was between 15 years and 120 years in prison. Jackson v. Commonwealth,, 2007 Va. App. LEXIS 233 (June 12, 2007).

III. EVIDENCE.
A. SEARCH AND SEIZURE.

Probable cause supported search warrant. - Probable cause supported search warrant, during which drugs and guns were found, where the informant was responsible for investigating embezzlements for defendant's employer and the investigating police officer corroborated the information; the search was also lawful under the good faith exception to the exclusionary rule as the police were executing an arrest warrant when they discovered marijuana on defendant's person and searched the residence with defendant's consent, discovering methamphetamine on top of a locked safe in defendant's bedroom, which also contained marijuana. Coffey v. Commonwealth, No. 2912-01-3, 2003 Va. App. LEXIS 32 (Ct. of Appeals Jan. 28, 2003).

Unlawful search and seizure. - Trial court erred in not suppressing evidence of heroin found in defendant's home pursuant to a search warrant obtained after police stopped defendant's car, as the stop of the automobile was conducted without reasonable suspicion, and was thus unlawful. Mozelle v. Commonwealth, No. 1734-00-1, 2001 Va. App. LEXIS 521 (Ct. of Appeals Sept. 25, 2001).

Combination of police interception of defendant's telephone call and their positioning police cruiser in front of his car constituted an illegal seizure of defendant; therefore, defendant's reluctant consent to a search of his vehicle was tainted and ineffective to justify the search. Bolden v. Commonwealth, 263 Va. 465 , 561 S.E.2d 701, 2002 Va. LEXIS 52 (2002).

Where police officer did a lawful pat down search of defendant for weapons incident to a search of another person's house, the officer did not then have probable cause to search defendant's pockets because the character of the plastic bag as contraband was not immediately apparent from the frisk. Murphy v. Commonwealth, 264 Va. 568 , 570 S.E.2d 836, 2002 Va. LEXIS 159 (2002).

Defendant's conviction for possession of a Schedule I controlled substance with intent to distribute pursuant to § 18.2-248 was reversed where the drugs subject to a motion to suppress would not inevitably have been discovered in the course of defendant's arrest; the police officer did not develop probable cause to search defendant's pocket and pants leg for weapons or drugs where no evidence indicated that the officer felt an object he could reasonably have believed was a weapon during the initial frisk. Shelton v. Commonwealth, No. 0153-02-2, 2002 Va. App. LEXIS 786 (Ct. of Appeals Dec. 31, 2002).

But where there was reasonable cause to believe that defendant was unlawfully in possession of illegal drugs or a concealed weapon, a limited pat-down search was warranted; the trial court did not err in denying defendant's motion to suppress. Pressley v. Commonwealth, No. 2710-01-2, 2003 Va. App. LEXIS 14 (Jan. 21, 2003).

Search incident to valid arrest. - In a prosecution for distribution of drugs, as defendant's bloodshot eyes, slurred speech, unsteadiness on his feet, and possession of an open can of beer gave an officer probable cause to arrest him for public drunkenness under § 18.2-388 , drugs found in a search of defendant's pockets were admissible as the fruits of a search incident to an arrest. Whether the officer exceeded the permissible scope of a weapons frisk, whether he believed he had probable cause to arrest defendant before the search, and the fact that he performed the search before the arrest were irrelevant. Commonwealth v. Lasley,, 2009 Va. App. LEXIS 10 (Jan. 13, 2009).

Trial court did not err by denying defendant's motion to suppress evidence found on defendant's person because the police had probable cause to arrest defendant, based upon information from a confidential reliable informant, and searched defendant incidental to a valid arrest when defendant arrived at the location where the informant said defendant would be dealing heroin. Frazier v. Commonwealth,, 2014 Va. App. LEXIS 268 (July 29, 2014).

Good faith exception. - Assuming arguendo that a search warrant was invalid, seized cocaine was admissible under the "good faith" exception to the exclusionary rule, as there was no evidence that the officers executing the warrant acted other than in good faith and with a reasonable belief that warrant was valid, and the search warrant affidavit contained some indicia of probable cause. White v. Commonwealth,, 2006 Va. App. LEXIS 95 (Mar. 21, 2006).

Good faith exception to exclusionary rule supported denial of motion to suppress. - Trial court did not err in denying defendant's motion to suppress evidence seized as a result of a search warrant, where despite the fact that the affidavit supporting the same failed to provide the issuing magistrate with a substantial basis for concluding that probable cause to search defendant's home existed, officers possessed an objectively reasonable belief in the existence of probable cause, namely, that the fruits of criminal activity would probably be found at defendant's residence, for the good faith exception to the exclusionary rule to apply. Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749, 2005 Va. App. LEXIS 88 (2005).

Search while being processed for detention. - Where appellant was subjected to a visual body cavity search while being processed for detention into a jail and defendant was convicted of drug possession, the search was reasonable because the jail had a responsibility to find and destroy drugs; regarding appellant's argument that there was no medically trained personnel present at the time of the search, appellant was not subject to the provisions of § 19.2-59.1 , because appellant had been charged with a felony. Winston v. Commonwealth, 51 Va. App. 74, 654 S.E.2d 340, 2007 Va. App. LEXIS 485 (2007).

In a case in which defendant appealed his conviction for possession of cocaine with intent to distribute, third offense, in violation of subsection C of § 18.2-248 , he argued unsuccessfully that the trial court erred in denying his motion to suppress evidence seized during what he asserted was a warrantless visual body cavity search. During the search incident to his arrest, defendant removed his outer clothes, remaining clothed only in his boxer shorts, and when the contraband was discovered, only the upper portion of his buttocks was visible to the officers. Woodson v. Commonwealth,, 2009 Va. App. LEXIS 451 (Oct. 6, 2009).

Police officer's safety and reasonable intrusion upon passenger. - When the state's interest in allowing police officers to take measures for their protection and safety is weighed against the de minimis intrusion on the passenger's personal liberty, the former prevails. Police officer acted reasonably when he requested the passenger exit the vehicle. Defendant was properly charged with possession of cocaine with intent to distribute. Bethea v. Commonwealth, 14 Va. App. 474, 419 S.E.2d 249 (1992).

Evidence found during a consensual encounter not suppressed. - Trial court did not err in denying defendant's motion to suppress evidence, as a police officer's questions to defendant after the officer told defendant he was free to leave involved a consensual encounter and meant that defendant was not seized in violation of his Fourth Amendment rights; thus, defendant's conviction for possession of cocaine with intent to distribute, based on defendant showing the officer an ashtray full of the remains of marijuana cigarettes, which led to the discovery of even more cocaine in defendant's car, was proper. Dickerson v. Commonwealth, 266 Va. 14 , 581 S.E.2d 195, 2003 Va. LEXIS 60 (2003).

Suppression of evidence. - Where heroin was found on a defendant during an improper warrantless search where an officer intruded on the defendant's personal liberty by handcuffing him while investigating a traffic violation, a motion to suppress should have been granted. Lawrence v. Commonwealth, 40 Va. App. 95, 578 S.E.2d 54, 2003 Va. App. LEXIS 136 (2003).

Trial court properly denied defendant's suppression motion as the cocaine was discovered during a proper search incident to a lawful arrest for a concealed weapon violation; it was legally irrelevant under the Fourth Amendment that the deputy chose not to charge defendant with the lesser concealed weapon violation of § 18.2-308 , upon discovering the suspected drugs during the search, enabling the deputy to charge defendant with possession of cocaine with intent to distribute under § 18.2-248 , and possession of a firearm while simultaneously possessing illegal drugs under subsection A of § 18.2-308 .4. Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448, 2003 Va. App. LEXIS 352 (2003).

Conversation which defendant had with a detective in the detective's car after defendant was stopped for traffic violations was consensual, and the appellate court found that trial court properly refused to suppress drugs and other evidence the detective found after defendant told him he could search his car and his apartment and upheld the trial court's judgment convicting defendant of possession of a controlled substance with intent to distribute, bribery, possession of a controlled substance while possessing a firearm, and possession of marijuana. Ouellette v. Commonwealth, No. 0776-03-2, 2004 Va. App. LEXIS 349 (Ct. of Appeals July 20, 2004).

Defendant's broad and unfocused questions to law-enforcement officers, and continuous insistence on desiring to talk to them about his passenger's involvement in suspicious activity, despite numerous warnings given to him regarding his rights under Miranda, established that police did not violate his right to counsel and right to remain silent; thus, the trial court properly denied suppression of the evidence seized and his statements, and his convictions for possession with intent to distribute and transporting more than one ounce of cocaine into the Commonwealth with the intent to distribute were affirmed. Medley v. Commonwealth, 44 Va. App. 19, 602 S.E.2d 411, 2004 Va. App. LEXIS 453 (2004).

Defendant's incriminating statements made after he received Miranda warnings were properly admitted, as said statements were not made as a result of an illegal arrest, but after a lawful detention by officers and an arrest based on probable cause of finding cocaine and a gun in the residence searched via a valid warrant; thus, defendant's suppression motion was properly denied, and his conviction was upheld. Whitaker v. Commonwealth, No. 3232-03-2, 2005 Va. App. LEXIS 34 (Ct. of Appeals Feb. 1, 2005).

Trial court did not err in denying defendant's motion to suppress, as the anticipatory warrant that was executed at his residence was valid; defendant was protected from an improper search and seizure due to fact that defendant inspected the package delivered to him, accepted it, and took it inside his house, thus lessening the possibility that the package, which contained drugs, was delivered to him as part of government misconduct. Ward v. Commonwealth, 47 Va. App. 733, 627 S.E.2d 520, 2006 Va. App. LEXIS 105 (2006).

Trial court erred in denying defendant's motion to suppress evidence obtained as a result of the lawful arrest of defendant on an outstanding warrant, as the search of defendant at a lockup violated defendant's Fourth Amendment rights in a case where defendant was later convicted of possession of cocaine with intent to distribute; contrary to the Commonwealth's argument, the search of defendant was not a less intrusive strip search, but was a more intrusive visual body cavity search where police officers had defendant bend over and spread defendant's buttock cheeks, and the search was unreasonable because police did not have a "clear indication" that evidence was located within defendant's body and the police officers did not show that they faced exigent circumstances that required such an invasive search be performed. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391, 2007 Va. App. LEXIS 194 (2007).

Trial court should have suppressed evidence obtained in violation of defendant's Fourth Amendment rights in a case where a police officer testified that the officer knew capsules that the officer felt in defendant's left front pants pocket contained heroin because the officer's training and experience told the officer that was how heroin was packaged. The officer also admitted at the suppression hearing that some over-the-counter medications were packaged in capsules and, thus, it was not immediately apparent to the officer when the officer felt the capsules that they contained evidence of a crime. Cost v. Commonwealth, 275 Va. 246 , 657 S.E.2d 505, 2008 Va. LEXIS 33 (2008).

Police officer was able to corroborate with his own observations a concerned citizen's claim that defendant was possibly dealing narcotics. Thus, it was constitutionally permissible for the officer to detain defendant while he investigated to either confirm or dispel his suspicion, and the trial court erred in granting defendant's motion to suppress the evidence the police found. Commonwealth v. Gaiters, No. 1832-15-2, 2016 Va. App. LEXIS 89 (Ct. of Appeals Mar. 22, 2016).

In a case in which defendant was charged with possession of cocaine with the intent to distribute, the appellate court concluded that the particular positioning of the sport utility vehicle (SUV) defendant was driving and another vehicle in a high crime area at night suggested that their occupants may have been engaged in criminal drug-related activity, and that suspicion was corroborated by evidence lawfully seized from defendant's person and his behavior following the traffic stop. Therefore, the trial court erred by suppressing the evidence obtained from the search of the SUV. Commonwealth v. Garrick, No. 0533-16-1, 2016 Va. App. LEXIS 241 (Ct. of Appeals Sept. 13, 2016).

Suppression motion properly denied. - Defendant's suppression motion was properly denied, and the Fourth Amendment was not violated, where: (1) a police officer had a reasonable, articulable suspicion that defendant was the man who was wanted on the capias as defendant's physical characteristics and clothing matched the description provided by dispatch, and defendant was near the address provided by dispatch in the backseat of a taxi matching the description provided by dispatch; (2) the officer was justified in detaining defendant further as he gave obviously false identifying information; and (3) when defendant struck the officer, he had probable cause for the arrest, which led to the search incident to a lawful arrest in which the drugs were discovered. Jackson v. Commonwealth, No. 0628-02-3, 2003 Va. App. LEXIS 340 (Ct. of Appeals June 17, 2003).

Trial court properly denied defendant's motion to suppress evidence seized from his person and to exclude statements made to the police before and after his arrest, because the conversation with defendant was consensual in that one of the officer's asked defendant for permission to speak to him. Subsequently, a warrant was found outstanding on defendant and the discovery of 58 baggies of crack cocaine on his person was made during the search incident to his arrest, which was lawful. Stith v. Commonwealth, No. 2394-03-2, 2005 Va. App. LEXIS 1 (Ct. of Appeals Jan. 11, 2005).

In a case in which defendant appealed his conviction for violating § 18.2-248 , he argued unsuccessfully that the trial court erred in denying his motion to suppress evidence of a crack cocaine cookie block found beneath his seat and his subsequent confession at the police precinct because the police lacked a reasonable, articulable suspicion to believe he was engaged in criminal activity rendering the evidence obtained as a result of that seizure inadmissible at trial. Defendant was a passenger in a car that matched a description of a car with expired Alabama license plates that had been reportedly driving recklessly up and down a block in a high-crime, high-drug area. Ward v. Commonwealth,, 2009 Va. App. LEXIS 585 (Dec. 29, 2009).

Police officers patrolling a high-crime area were justified in seizing defendant because they had articulable facts that gave rise to reasonable suspicion of criminal activity where, upon approach for investigative questioning regarding his presence in an area where he did not live, defendant fled, clutching his waistband. Accordingly, contraband which fell out of defendant's pocket during the seizure was properly admitted in defendant's trial for possession of a controlled substance with intent to distribute, second or subsequent offense, in violation of § 18.2-248 . Simmons v. Commonwealth,, 2010 Va. App. LEXIS 418 (Oct. 26, 2010).

Trial court did not err in denying defendant's motion to suppress evidence because police officers had a particularized and objective basis for suspecting that defendant was involved in criminal activity since defendant was loitering in a known open-air drug market and was talking to people whom a trained and experienced police officer knew to be drug dealers; defendant was observed waving at vehicles in the area of high drug activity, which the officer, who was an expert in street-level drug transactions, testified was behavior consistent with soliciting potential drug sales. Baker v. Commonwealth,, 2010 Va. App. LEXIS 444 (Nov. 9, 2010).

Police officers patrolling a high-crime area were justified in seizing defendant because they had articulable facts that gave rise to reasonable suspicion of criminal activity where, upon approach for investigative questioning regarding his presence in an area where he did not live, defendant fled, clutching his waistband. Accordingly, contraband which fell out of defendant's pocket during the seizure was properly admitted in defendant's trial for possession of a controlled substance with intent to distribute, second or subsequent offense, in violation of § 18.2-248 . Simmons v. Commonwealth,, 2010 Va. App. LEXIS 418 (Oct. 26, 2010).

Motion to suppress denied. - In the prosecution of possession of cocaine with intent to distribute, the trial court did not err in denying defendant's motion to suppress evidence seized from his person, because: (1) defendant's non-verbal response to an investigating officer intimated that defendant was inviting a pat-down frisk of his person, by automatically assuming the frisk position; and (2) defendant could not be heard to complain by his voluntary acts of submitting to a pat-down frisk, given that the encounter was brief and defendant was not boxed in; moreover, the record adequately reflected that it was immediately apparent to the officer from his initial pat-down that the flat oblong, odd shaped rock he felt in defendant's pant pocket was crack cocaine. Graham v. Commonwealth,, 2005 Va. App. LEXIS 287 (July 19, 2005).

In a prosecution for possession of heroin and cocaine with intent to distribute, as neither the driver of a rental vehicle nor defendant, a passenger, was a lessee or an authorized driver, and they offered no explanation of their connection to the named lessee, defendant had no expectation of privacy in the vehicle under the Fourth Amendment and thus lacked standing to challenge a traffic stop of the vehicle. Williams v. Commonwealth,, 2006 Va. App. LEXIS 268 (June 20, 2006).

In a case in which defendant appealed his conviction for violating §§ 18.2-248 and 18.2-250.1 , he argued unsuccessfully that the circuit court erred in denying his motion to suppress because he had been subjected to a strip search in violation of the Fourth Amendment. Defendant had not been subjected to a strip search, he was not naked at any time during his encounter with police, neither his genitals nor his buttocks were exposed, and, while a police officer saw defendant's underwear when he removed the marijuana and cocaine, his underwear was never removed. Bell v. Commonwealth,, 2009 Va. App. LEXIS 420 (Sept. 22, 2009).

Drugs found in vehicle recently occupied by defendant. - Following an interlocutory appeal by the Commonwealth pursuant to § 19.2-398 A 2, the appellate court determined that the trial court erred in granting defendant's motion to suppress drugs found in a vehicle recently occupied by defendant in relation to charges of possession of cocaine and heroin with intent to distribute, § 18.2-248 , because the automobile exception had no separate exigency requirement, and the search of the vehicle did not violate Virginia constitutional law prohibiting illegal searches and seizures. Commonwealth v. Rogers,, 2003 Va. App. LEXIS 85 (Feb. 25, 2003).

B. ADMISSION OF EVIDENCE.

Chain of custody established. - There was no error in admitting cocaine into evidence where, although undercover agent remembered receiving two pieces of cocaine from defendant and police detective documented that he received one piece, it was mere speculation that any tampering or substitution occurred, and totality of circumstances afforded reasonable assurance that admitted cocaine was obtained from defendant. Stevens v. Commonwealth, No. 1522-98-2 (Ct. of Appeals Jan. 27, 2000).

Trial court properly admitted into evidence two certificates of analysis as evidence of the chain of custody of the drugs seized during the drug sales under § 19.2-187.01 in defendant's trial for possession with intent to distribute under § 18.2-248 , and conspiring to distribute a controlled substance under § 18.2-256 where: (1) the initials on the postal receipts matched those on the Request for Laboratory Examination; (2) a police officer mailed the narcotics to the Virginia Division of Forensic Science, which verified its receipt by executing the Request for Laboratory Examination; (3) the receipt alone established prima facie evidence of the chain of custody; and (4) that the initials on the postal receipts were not consistent with the signatures on the two Requests for Laboratory Examination did not undermine the statutory inference under § 19.2-187.01 . Martin v. Commonwealth, No. 1221-02-2, 2003 Va. App. LEXIS 341 (Ct. of Appeals June 17, 2003).

Fact that a person who was in charge of a police department's forensic division testified that he received drugs which defendant allegedly sold to a state trooper from another person in the division, while a detective who received the drugs from the state trooper testified that he delivered the drugs directly to the person who was in charge of the forensic division, was not enough to break the chain of custody, and the trial court did not err when it found that the Commonwealth established a valid chain of custody. Smith v. Commonwealth, No. 2268-02-2, 2004 Va. App. LEXIS 66 (Ct. of Appeals Feb. 10, 2004).

In defendant's prosecution for possession of cocaine with the intent to distribute in violation of § 18.2-248 , defendant's motions to strike for a broken chain of custody and insufficiency of the evidence to establish the intent to distribute were properly denied because testimony of police officers and an evidence custodian plus the jury's observance of the cocaine, and the lack of drug paraphernalia found on defendant sufficiently proved that the seized substance was crack cocaine packaged for distribution. Hurt v. Commonwealth,, 2006 Va. App. LEXIS 507 (Nov. 7, 2006).

Court affirmed defendant's drug conviction under § 18.2-248 because defendant's objection to the chain of custody of evidence could not be sustained as the Commonwealth had established prima facie evidence that the Division of Forensic Science (DFS) properly had custody of the evidence under § 19.2-187.01 ; section 19.2-187.01 authorized the trial court to receive a certificate of analysis as evidence of the chain of custody of the material tested. When the Commonwealth presented a duly attested certificate of analysis, it established "prima facie evidence" that DFS had custody of the material described therein from the time such material was received by an authorized agent of such laboratory until such material was released. Mitchell v. Commonwealth,, 2006 Va. App. LEXIS 499 (Nov. 7, 2006).

Admissibility of laboratory report. - Where the defendant was seen taking money from another person, the defendant handed the other person a very small object from a container later found to hold heroin, the other person was placed under police surveillance and, after being stopped by the police, was seen to throw a foil packet from his car, these facts constituted circumstantial evidence linking the heroin observed in the defendant's possession to the foil recovered from the other person. Therefore, the laboratory analysis of the foil found in front of the vehicle was probative evidence of the defendant's intent to distribute, as well as his possession of, the heroin in question, and the trial court properly allowed the jury to consider the laboratory report and assign it whatever weight the jury deemed proper. Hines v. Commonwealth, No. 0092-86-2 (Ct. of Appeals Oct. 13, 1987).

Because defendant, charged with possession of cocaine with intent to distribute, in violation of § 18.2-248 , neglected to inform the Commonwealth of his desire to have the scientist who prepared the certificate of analysis present until the day of trial, defendant waived his Confrontation Clause rights. Thus, no error resulted in admitting the certificate of analysis without the scientist's testimony. McCray v. Commonwealth,, 2008 Va. App. LEXIS 36 (Jan. 22, 2008).

Admissibility of advertisement advocating marijuana legalization. - The trial court committed reversible error in admitting evidence, because it was irrelevant, that seven months after his arrest, the defendant placed a political advertisement in a local newspaper advocating legalization of marijuana. The "admissions" contained in the advertisement did not tend to prove that seven months earlier, the defendant grew marijuana. At most, the defendant's statement, "Pot smokers don't deserve to be in prison. How are we criminals?", admitted marijuana use, not that he might have grown or manufactured it. Further, the advertisement concerning "pot smokers" did not tend to prove knowledge and intent to grow and distribute marijuana. None of this evidence tended to prove that the defendant grew marijuana seven months before making the statement. Moore v. Commonwealth, No. 1649-93-3 (Ct. of Appeals May 9, 1995).

Tape recording admissible even if interpreted to prove guilt of other crimes. - Tape recording of a conversation between defendant and a police informant, made while the informant was making a controlled buy of cocaine from defendant, was admissible, even if interpreted to prove that defendant was guilty of other crimes, to show that he knew the substance he sold was in fact cocaine, a required element of the offense. Watkins v. Commonwealth, No. 0543-89-2 (Ct. of Appeals Oct. 23, 1990).

In a prosecution for distributing cocaine in violation of § 18.2-248 , evidence of "other crimes" was admissible under the theory that defendant had "opended the door" to evidence by testifying. She had testified that she did not know what crack was, and the evidence was highly relevant because it tended to establish that she was aware of the nature and character of cocaine at the time of the alleged distribution. McGowan v. Commonwealth, 48 Va. App. 333, 630 S.E.2d 758, 2006 Va. App. LEXIS 266 (2006) (rev'd, on grounds that the evidence was nevertheless unfairly prejudicial, McGowan v. Commonwealth, 274 Va. 689 , 652 S.E.2d 103 (2007)).

Defendant's nickname. - Any error in admitting evidence of defendant's association with the "Grim Reaper" nickname was harmless. Had the evidence of defendant's nickname been excluded, the verdict on the charge of heroin distribution would have been the same, given the overwhelming evidence of defendant's guilt. Neville v. Commonwealth, Nos. 1693-16-2, 0217-17-2, 2018 Va. App. LEXIS 26 (Feb. 6, 2018).

Other crimes evidence properly admitted. - In a prosecution for distributing cocaine in violation of § 18.2-248 , the trial court properly allowed other crimes evidence concerning defendant's possession of crack cocaine when she was arrested, because by testifying that she did not know what crack was, she opened the door to admission of this evidence in rebuttal, knowledge being an element of the offense. McGowan v. Commonwealth, 48 Va. App. 333, 630 S.E.2d 758, 2006 Va. App. LEXIS 266 (2006) (rev'd, on grounds that the evidence was nevertheless unfairly prejudicial, McGowan v. Commonwealth, 274 Va. 689 , 652 S.E.2d 103 (2007)).

Court concluded that "substantially similar offenses" were intended to be treated the same as qualifying convictions for offenses committed in the Commonwealth, and the Commonwealth established substantial similarity between this section and N.Y. Penal Law § 220.39(A). Mason v. Commonwealth, 64 Va. App. 599, 770 S.E.2d 224, 2015 Va. App. LEXIS 122 (2015).

Other crimes evidence not properly admitted. - Defendant's convictions under N.Y. Penal Law § 220.31, were not substantially similar to this section for purposes of establishing prior convictions, because the Commonwealth failed to show that the convictions related to a substance classified in Schedule I or II in Virginia, and thus, those convictions were not relevant for the purpose for which they were admitted. Mason v. Commonwealth, 64 Va. App. 599, 770 S.E.2d 224, 2015 Va. App. LEXIS 122 (2015).

Previous convictions. - In a case in which defendant appealed his conviction for possession of cocaine with intent to distribute, third offense, in violation of subsection C of § 18.2-248 , he argued unsuccessfully that the trial court erred in finding the evidence sufficient to prove that he had previously been convicted on two prior occasions of possession of controlled substances with intent to distribute. Despite his arguments to the contrary, the prior conviction orders established that he was the same person as was in those orders. Woodson v. Commonwealth,, 2009 Va. App. LEXIS 451 (Oct. 6, 2009).

Trial court did not abuse its discretion in admitting into evidence two prior conviction orders for drug related charges because, while one order noted that defendant had been sentenced under the accommodation provision and the other order contained a discrepancy that might have suggested defendant actually was convicted of simple possession, the orders were properly authenticated copies of court orders, were material and relevant to the question of whether or not defendant had two prior convictions, and had a tendency to prove that he had the requisite prior convictions. Covil v. Commonwealth, No. 2268-14-1, 2016 Va. App. LEXIS 169 (Ct. of Appeals May 17, 2016).

Prior bad acts allowed. - In a case in which a jury convicted defendant of possession with intent to distribute 10 grams or more of methamphetamine, the appellate court did not reach the issue as to whether the circuit court erred in admitting evidence of defendant's prior sales of methamphetamine because defendant testified to having previously sold drugs during his case-in-chief. By testifying that he had previously sold drugs, defendant waived his earlier objection to the admissibility of that evidence. Peaks v. Commonwealth, No. 0995-18-3, 2019 Va. App. LEXIS 224 (Ct. of Appeals Oct. 8, 2019).

Sufficient evidence of identity in prior convictions. - Virginia Criminal Information Network report on defendant that specifically stated that he used a specified alias was sufficient to establish an evidentiary link with a prior conviction involving a defendant with that alias and defendant. Joyce v. Commonwealth, 56 Va. App. 646, 696 S.E.2d 237, 2010 Va. App. LEXIS 325 (2010).

Presentence report. - In a case in which defendant appealed his sentence for violating 8 U.S.C.S. § 1326, he unsuccessfully argued that the presentence report (PSR) was absent any indication that any of his three prior Virginia drug convictions qualified under the U.S. Sentencing Guidelines as a drug trafficking offense. However, the indictments and the plea agreement for those convictions were attached to the PSR and those documents made clear that he was convicted under Va. Code Ann. § 18.2-248 (A) of two counts of distribution of methamphetamine and one count of distribution of cocaine, which constituted drug trafficking offenses for purposes of § 2L1.2(b)(1)(A)(i). United States v. Sandoval-Campos,, 2011 U.S. App. LEXIS 23357 (November 21, 2011).

Expert testimony. - Expert testimony, usually that of a police officer familiar with narcotics, is routinely offered to prove the significance of the weight and packaging of drugs regarding whether it is for personal use. Askew v. Commonwealth, 40 Va. App. 104, 578 S.E.2d 58, 2003 Va. App. LEXIS 135 (2003).

Impermissible expert testimony. - Trial court committed reversible error by allowing police detective who qualified as narcotics expert to express his opinion that a person who possessed 93 grams of cocaine was a person who sold cocaine. Such testimony, was an opinion upon an ultimate issue of fact and, therefore, invaded the province of the jury. Even though expert qualified his opinion by stating that the quantity of cocaine "would suggest" that defendant was a person who sold cocaine, expert clearly expressed an opinion upon an ultimate issue of fact. Llamera v. Commonwealth, 243 Va. 262 , 414 S.E.2d 597 (1992).

No Brady violation found. - In a case where the Commonwealth provided defendant with notice that it intended to offer each of the certificates of analysis into evidence specifying that the narcotics recovered in the three controlled purchases were cocaine, no Brady violation occurred based on the termination for cause of the forensic scientist that signed each certificate as the date of her termination letter was two months post trial, and the Commonwealth, could not have provided defendant the information prior to or during trial; her performance as a scientist or technician in other cases did not establish that defendant was innocent; and no reasonable doubt existed that the three certificates of analysis returned in defendant's case were accurate. Mercer v. Commonwealth, 66 Va. App. 139, 783 S.E.2d 56 (2016).

Defendant's statements. - In defendant's trial for possession of a controlled substance with intent to distribute, the trial court did not err in determining that defendant made a knowing, intelligent, and voluntary waiver of rights when defendant gave statements after an officer read the Miranda warnings to defendant at a hospital, but before defendant received treatment, where defendant's injuries did not affect the ability to make a voluntary waiver. Simmons v. Commonwealth,, 2010 Va. App. LEXIS 418 (Oct. 26, 2010).

Sufficient evidence supported defendant's conviction under § 18.2-248 given his statements to the police, a detective's testimony that he had observed the interaction between defendant and a driver of the SUV, illegal narcotics were subsequently found in the driver's SUV, and residue on a scale was confirmed to be cocaine upon forensic analysis. Arencibia v. Commonwealth, No. 0427-20-2, 2020 Va. App. LEXIS 313 (Dec. 22, 2020).

Testimony regarding charges that were nolle prosequied. - Defendant was not deprived of due process at sentencing where Commonwealth elicited testimony regarding charges that were nolle prosequied, because there was no evidence that the Commonwealth agreed not to elicit testimony regarding defendant's drug associations at sentencing, and the testimony regarding such "associations" was admissible under subsection C of § 19.2-299 . Sizer v. Commonwealth,, 2010 Va. App. LEXIS 337 (Aug. 17, 2010).

C. SUFFICIENCY OF EVIDENCE.
1. EVIDENCE OF POSSESSION.

Evidence of dominion and control. - When cocaine was found under the passenger seat in which defendant had been riding, and he acknowledged that it was within his dominion and control, sufficient circumstantial evidence showed he knew of its presence and character because: (1) it was found "just under" the front of defendant's seat; (2) defendant and the driver had borrowed the car earlier that morning to go "pick up something," and the car's owner said there were no drugs in it at that time; (3) defendant and the driver were the only people in the car when it was stopped for a traffic violation; (4) after the car was stopped, defendant, who had a significant amount of cash on his person, despite being unemployed and homeless, left it without explanation, and, when he obeyed an officer's order to return, he left the door open to provide a means of escape; and (5) an expert testified that the amount and denominations of money found on defendant were consistent with drug dealing. Coleman v. Commonwealth,, 2006 Va. App. LEXIS 111 (Mar. 28, 2006).

Combined evidence of defendant's possession of the key to the vehicle, the presence of defendant's fingerprint found on a tool to the drug trade in the glove box, the location of the scale and loaded gun next to the drugs, and the location of defendant's personal papers in the same compartment, supported the trial court's finding that defendant exercised dominion and control over the contraband items and was aware of their presence and character. Grimes v. Commonwealth,, 2010 Va. App. LEXIS 378 (Sept. 21, 2010).

Evidence was sufficient to support defendant's conviction for possession of cocaine with the intent to distribute because defendant made a false statement to a police officer during a traffic stop, packaged cocaine was found in the glove compartment of the car in which defendant was a passenger in the backseat, an officer testified that there was too much cocaine for personal use, and defendant possessed a large amount of currency folded by denominations. Williams v. Commonwealth, No. 0080-16-2, 2016 Va. App. LEXIS 349 (Ct. of Appeals Dec. 20, 2016).

Sufficient evidence of constructive possession. - Evidence supported the conclusion that defendant constructively possessed cocaine where defendant occupied both the house and, in particular, the lit bedroom where the cocaine was found in plain view; before the police entered her bedroom, the bedroom door was shut; when they entered, defendant was awake and approaching the door; the cocaine was three to four feet from her on the floor and in plain view; and no other person occupied her room or was present when the officers entered. These circumstances support the inference that defendant knew of the existence of the cocaine and had dominion and control over it. McNair v. Commonwealth, No. 2080-93-1, 1994 Va. App. LEXIS 675 (Ct. of Appeals Nov. 15, 1994).

Where defendant possessed car for whole day on day in which cocaine was found, he was arrested, he was wearing a beeper, he admitted to owning $2691 found in the car's trunk, and the bag of drugs in question was in plain view on the car's front seat, evidence was sufficient to sustain conviction for cocaine possession with intent to distribute. White v. Commonwealth, 24 Va. App. 446, 482 S.E.2d 876 (1997).

Evidence was sufficient to show that the defendant possessed methamphetamines where the drugs were found in a Marlboro cigarette package on the floor of the defendant's truck near where he had been sitting, and two passengers in the truck testified that they smoked other brands of cigarettes and that the defendant smoked Marlboros and had purchased some earlier in the evening. Summers v. Commonwealth, No. 0166-97-3 (Ct. of Appeals June 2, 1998).

Constructive possession by the defendant of cocaine found in a motel room was established where the defendant had been registered and was in occupancy of the room only briefly when the police arrived and discovered the illicit drugs and related paraphernalia already secreted in the bed, and the defendant raised the box springs and mattress together in an effort to divert police attention from drugs hidden between them. Boone v. Commonwealth, No. 1851-97-1 (Ct. of Appeals August 4, 1998).

Constructive possession by the defendant of cocaine found in a car was supported by his custody, control and use of the vehicle, while holding the only keys, together with his statements that he may have handled digital scales later found with the drugs in a locked area of the car. Boone v. Commonwealth, No. 1851-97-1 (Ct. of Appeals August 4, 1998).

Evidence was sufficient to support finding that defendant exercised dominion and control over drugs and firearm found hidden together near his feet, under box spring of bed. Mosley v. Commonwealth, No. 2477-98-3 (Ct. of Appeals Dec. 7, 1999).

The evidence was sufficient to support the defendant's conviction where the defendant was found in a room that he rented, in which illegal drugs were found in a pair of his shoes, the defendant acknowledged the shoes as his and was anxious to retrieve a pair of shoes before leaving the room, and the other individuals found in the room when the police arrived denied putting the cocaine in the shoes. Johnson v. Commonwealth, No. 1487-99-3, 2000 Va. App. LEXIS 504 (Ct. of Appeals July 11, 2000).

The Commonwealth established that a defendant constructively possessed cocaine and marijuana where the defendant testified that he knew what marijuana, cocaine and a gun looked like, that he sat on a couch with a handgun between himself and another individual, that he saw the drugs on a coffee table located directly in front of the couch and the marijuana on the side of the couch near him, and that he noticed the marijuana and gun as soon as he entered the living room and where the drugs and handgun were located within the immediate vicinity of appellant and, at one point, the other individual went to the door and talked to someone else, leaving the defendant alone with the drugs and handgun. In combination, these circumstances established the defendant's knowledge of the drugs and firearm and that they were subject to his dominion and control. Jackson v. Commonwealth, No. 0684-00-1, 2001 Va. App. LEXIS 21 (Ct. of Appeals Jan. 23, 2001).

The evidence was sufficient to support the defendant's conviction for possession of cocaine with the intent to distribute where the police, in executing a search warrant, found the defendant in a bedroom in which a quantity of cocaine was found, her husband was present in the room with her, the defendant and her husband were both dressed in clothing from which it could reasonably be inferred that they intended to sleep in the room and the defendant's food stamp papers were found in the room, along with a scale and a bag or purse containing $4,500. Morgan v. Commonwealth, No. 3009-99-2, 2001 Va. App. LEXIS 70 (Ct. of Appeals Feb. 20, 2001).

Where a defendant confessed to trading crack cocaine for a shotgun and making other cocaine sales during the several days immediately preceding his arrest, admitted assisting another occupant of the premises in a cocaine sale earlier that day, and admitted handling drug paraphernalia found scattered about the home, and where these statements and the defendant's continuing involvement with others in the distribution of cocaine from the premises were corroborated by the testimony of another occupant, such evidence clearly established that the defendant actually and constructively possessed cocaine. Young v. Commonwealth, No. 1228-00-2, 2001 Va. App. LEXIS 251 (Ct. of Appeals May 15, 2001).

The totality of the circumstances demonstrated that it was reasonable to conclude that a container holding rocks of crack cocaine came from the defendant's person where, before retracting his statement, the defendant had admitted that he knew about the drugs and there was simply no other plausible explanation to establish how the drugs came to rest behind the rear tire of a squad car and directly in front of the defendant's feet other than to conclude that the drugs came from the defendant's person. Jackson v. Commonwealth, No. 2823-99-4, 2000 Va. App. LEXIS 729 (Ct. of Appeals Nov. 14, 2000).

Evidence was sufficient to convict defendant of possession of cocaine with intent to distribute where: (1) the police found a large quantity of cocaine, marijuana, scales bearing a white residue, and one-inch plastic baggies in plain view in the same bedroom in which defendant told them they would find a firearm; and (2) the fact that police found cocaine on defendant's person and cocaine and marijuana in defendant's vehicle established a familiarity with those substances and indicated an awareness of the nature and character of the cocaine and marijuana in plain view in the bedroom. Pitchford v. Commonwealth, No. 1582-01-1, 2002 Va. App. LEXIS 565 (Ct. of Appeals Sept. 24, 2002).

Evidence was sufficient to prove possession of methamphetamine in that defendant was aware of both the presence of the drug and that it was subject to his dominion and control where: (1) defendant owned the house; (2) he kept a locked safe in the closet of his master bedroom; (3) he kept his guns in a gun cabinet and the keys to the cabinet in that room; (4) he knew the combination to the safe and opened it for the police; and (5) he told the police that he kept additional marijuana in the safe, and the police found marijuana inside the safe and on top of the safe, along with methamphetamine. Coffey v. Commonwealth, No. 2912-01-3, 2003 Va. App. LEXIS 32 (Ct. of Appeals Jan. 28, 2003).

Company that rented a van to defendant properly repossessed the van after it learned that defendant rented the van without a valid driver's license, police lawfully seized drugs and other items they found inside the van after one of the company's employees gave them consent to search, and the appellate court held that evidence found inside the van, including cocaine that was wrapped in a receipt pertaining to repair work on a car which a police officer saw defendant driving, was sufficient to sustain defendant's conviction for possession of cocaine with intent to distribute. Johnson v. Commonwealth, No. 0806-02-3, 2003 Va. App. LEXIS 453 (Ct. of Appeals Aug. 26, 2003).

Evidence that the gun and the cocaine were found in very close proximity to items that defendant admitted to having in his pockets when he entered the room and within arms reach of defendant, who was found hiding in a closet, was sufficient to support convictions for possession of cocaine and possession of firearm while in possession of cocaine. Kersey v. Commonwealth, No. 3354-02-2, 2004 Va. App. LEXIS 59 (Ct. of Appeals Feb. 10, 2004).

Defendants conviction for possession of cocaine with the intent to distribute was affirmed because the evidence that after the police stopped a vehicle for erratic driving they found that defendant had cocaine in his pants pocket and cocaine on the floorboard behind the passenger seat of the car in which defendant was riding, along with an officer's testimony that the amount of cocaine found was too much for defendant's personal use and that the cocaine was packaged to be distributed was sufficient to support the conviction. Copeland v. Commonwealth, 42 Va. App. 424, 592 S.E.2d 391, 2004 Va. App. LEXIS 62 (2004).

Evidence was sufficient to support defendant's conviction for possession of cocaine with intent to distribute, including: (1) photographs of the location of the handgun and the 98 individually packaged baggies of crack cocaine, immediately adjacent to where defendant was sitting; (2) the items seized by the officer upon defendant's arrest, including a cell phone and a large amount of cash in small denominations; (3) defendant's movement away from the cocaine and handgun when he saw the officer approach; and (4) the fact that there were three individuals sitting on the porch did not negate defendant's possession as possession could be shared. Peek v. Commonwealth, No. 0340-03-1, 2004 Va. App. LEXIS 193 (Ct. of Appeals Apr. 27, 2004).

Evidence supported a trial court's finding that defendant constructively possessed illegal drugs found in his home where 14 pills were found in a plastic vial in a candy box in the living room of defendant's home, various empty pill bottles, some of which contained Schedule III and IV drugs, were found in defendant's bedroom, one bottle bore the name of a different party and other bottles evidenced names that had been scratched off, a medication guide was also found in the bedroom, where defendant owned the home and lived there, where, although his elderly mother also resided in the home, she did not take pain medication, where $2,289 arranged sequentially in descending order of denominations was also found in the candy box containing the plastic vial of pills, where defendant was not employed, and where no explanation of the source of the funds was in evidence; convictions for possession of a Schedule II controlled substance and possession of a firearm while in possession of a Schedule II controlled substance were affirmed. Newsome v. Commonwealth, No. 1987-03-3, 2004 Va. App. LEXIS 456 (Ct. of Appeals Sept. 28, 2004).

Defendant's conviction for possession with the intent to distribute heroin was upheld on appeal where the evidence showed that the two heroine capsules were seized when the police came to defendant's home with a search warrant, and defendant showed the police where the drugs were on the mantel of his fireplace in his home. Gray v. Commonwealth, No. 0374-04-1, 2005 Va. App. LEXIS 52 (Ct. of Appeals Feb. 8, 2005).

Circumstantial evidence, consisting of: (1) defendant's possession of a small amount of crack cocaine on his person; and (2) the presence of 26.395 grams of crack cocaine having a street value of $2,850 inside the glove compartment of the vehicle defendant was driving, was sufficient to sustain his conviction for possession of cocaine with the intent to distribute, as the fact finder could infer, based on defendant's possession and the quantity found in the vehicle, that he was aware of the presence and character of the drugs found in the glove compartment; further, said evidence proved more than just mere proximity. Harsley v. Commonwealth,, 2006 Va. App. LEXIS 82 (Mar. 7, 2006).

Evidence that when police arrived at defendant's home, he left through a side door to the porch, and that police found cocaine hidden above a cabinet on the porch, along with defendant's prescription drugs, was sufficient to proved he constructively possessed the cocaine. White v. Commonwealth,, 2006 Va. App. LEXIS 95 (Mar. 21, 2006).

Evidence was sufficient to support defendant's conviction for possession with intent to distribute heroin; police located defendant in the specific place that a confidential and reliable informant said defendant would be, at the time the informant said he would be at that location, and the police found heroin in a baggie packaged in 16 individual capsules on the floorboard directly behind where defendant was seated in the police cruiser after he was placed there and police observed him make furtive movements after informing him that they knew that he had heroin concealed in the rear of his pants. Muhammad v. Commonwealth,, 2006 Va. App. LEXIS 109 (Mar. 28, 2006).

Defendant's conviction of possession of cocaine with intent to distribute was supported by sufficient evidence, as evidence that defendant was found near a table which contained drugs and packing equipment, and that defendant was in control of the home, provided a rational basis to conclude beyond a reasonable doubt that defendant was aware of the presence and character of the cocaine and that it was subject to his dominion and control. Stevenson v. Commonwealth,, 2006 Va. App. LEXIS 245 (May 30, 2006).

Evidence of constructive possession of cocaine was sufficient to support defendant's convictions of possession with intent to distribute cocaine and possession of a firearm while in possession of a controlled substance. Defendant went inside his bedroom when he saw police; a loaded firearm was within arm's reach when police entered the bedroom; cocaine was near defendant and in plain view; more cocaine was in a dresser drawer and drug packaging materials were on the dresser; bullets were on a windowsill; and some of defendant's belongings were in the bedroom. Cherry v. Commonwealth,, 2006 Va. App. LEXIS 358 (Aug. 8, 2006).

Where other facts provided evidence from which a fact finder could infer defendant's domination and control over the drugs that were found on the ground and where proximity was but one factor for the fact finder to consider, the evidence was sufficient to prove constructive possession. Sales v. Commonwealth,, 2008 Va. App. LEXIS 129 (Mar. 18, 2008).

There was sufficient circumstantial evidence of constructive possession to support a conviction for possession of cocaine with intent to distribute: (1) the area in which an officer saw defendant run was an alleyway, no more than 3 feet wide and there was no testimony that this was a high foot-traffic area or that people were gathered in the alleyway; (2) the officer saw defendant place his hands in his pockets, remove his sweatshirt, and then throw that on the ground; (3) the cocaine was found on the ground near the same sweatshirt; (4) evidence supported an inference that defendant reached into his pocket during a chase and threw the cocaine on the ground while running from the officer; and (5) defendant carried a large amount of cash in denominations consistent with drug distribution, and also admitted to ownership of the cocaine found on his person. Sales v. Commonwealth,, 2008 Va. App. LEXIS 129 (Mar. 18, 2008).

Where the evidence showed that defendant initially admitted owning a handgun found a few feet from where he was arrested, at most 10 feet from the handgun, under a bush, the police found a baggie of cocaine worth over $4,000 under the bush, an eyewitness saw defendant drop a dark, soft item during his flight, consistent with a bag of cocaine being discarded, and defendant admitted owning a digital scale that was found in his car and covered with cocaine residue, there was sufficient evidence to convict him of possession with intent to distribute. Sanders v. Commonwealth,, 2008 Va. App. LEXIS 320 (July 15, 2008).

Defendant's conviction for possession of cocaine with intent to distribute was supported by sufficient evidence to show defendant's constructive possession of cocaine as a passenger in a vehicle involved in a police chase. Evidence that defendant was near the cocaine, that defendant stated that defendant did not have anything to do with what was in the glove compartment where the cocaine was found, and of defendant fleeing when police found the incriminating evidence was sufficient to support defendant's conviction beyond a reasonable doubt. McMillan v. Commonwealth, 277 Va. 11 , 671 S.E.2d 396, 2009 Va. LEXIS 18 (2009).

Conviction of possession of cocaine with intent to distribute was proper because the evidence was sufficient to prove that defendant possessed the drugs found in his mother's residence under circumstances in which defendant had entered his mother's residence for a few minutes just prior to being stopped by the detectives, at the time he was detained, defendant had a digital scale with him, after obtaining consent to search the mother's residence, the detectives found cocaine in a back bedroom stored inside a locked footlocker, and defendant had the keys to the footlocker in his pocket; in addition, the footlocker contained various items belonging to defendant including his personal paperwork and mail and the box for the digital scale found with defendant. Moreover, the drugs recovered from defendant's shoe were packaged in a similar manner to the drugs found in the footlocker. Banks v. Commonwealth,, 2009 Va. App. LEXIS 147 (Mar. 31, 2009).

The proximity of the illegal drugs to defendant's credit cards, bank cards, social security card, clothing, and bed, coupled with her efforts to prevent police from entering her home, were sufficient evidence of acts, statements, or conduct tending to show that defendant was aware of both the presence and character of the substance and that it was subject to her dominion and control. Muwwakyl v. Commonwealth,, 2009 Va. App. LEXIS 237 (May 26, 2009).

Evidence supported defendant's § 18.2-248 conviction as: (1) a motel room was filled with a quantity of both powdered and crack cocaine, glasses, jars, and spoons used in mixing the cocaine, and papers on which the newly manufactured crack cocaine had been set out to dry in plain view; (2) a gym bag containing glasses and spoons of the kind used in the manufacture of crack cocaine and a manila envelope bearing defendant's name was also in the room; (3) defendant was only a few feet away from the contraband; and (4) defendant had to have walked into the motel room, past a large quantity of drugs and paraphernalia, to reach the bed in which defendant was sleeping. Adkins v. Commonwealth,, 2009 Va. App. LEXIS 336 (July 28, 2009).

Evidence was sufficient to prove possession where the totality of the circumstances established that defendant was aware of both the presence and character of cocaine and marijuana and that the drugs were subject to defendant's dominion and control where defendant was the operator of the vehicle and was sitting next to the console within arm's reach of where the drugs were found, the lid to the console was not shut securely, a passenger testified that the drugs did not belong to her and were already in the vehicle when she entered it, and the drugs found in the console were the same type of drugs that defendant sought in text messages sent a few weeks before the arrest. Hicks v. Commonwealth,, 2010 Va. App. LEXIS 188 (May 11, 2010).

Defendant was properly convicted of possession with intent to distribute an imitation Schedule I/II controlled substance because the crystal-like substance found in small individually wrapped baggies upon the passenger of the vehicle that defendant was operating, by appearance and packaging, would likely have been mistaken for MDMA, otherwise known as molly, and defendant and the passenger, together, procured and packaged the substance, Himalayan salts, to look like molly. Riddle v. Commonwealth, No. 1953-15-3, 2016 Va. App. LEXIS 314 (Ct. of Appeals Nov. 15, 2016).

Trial court was not plainly wrong and had evidence to support its determination that defendant constructively possessed cocaine. Thus, the evidence was sufficient to convict defendant of possession with intent to distribute cocaine, second offense. Taylor v. Commonwealth, No. 0687-17-1, 2018 Va. App. LEXIS 160 (June 12, 2018).

Evidence was sufficient to support defendant's conviction of possession of a Schedule I or II controlled substance with intent to distribute because, considering defendant's status as the driver of the car, his proximity to the drugs, his furtive movements toward the location where the drugs were found immediately upon the arrival of the police, and his attempt to vacate the car as quickly as he could when he saw them, a reasonable finder of fact could conclude beyond a reasonable doubt that defendant constructively possessed the cocaine. Bagley v. Commonwealth,, 2021 Va. App. LEXIS 27 (Feb. 23, 2021).

Proof that contraband found on premises insufficient to prove constructive possession. - Under this section, proof that contraband was found in premises owned or occupied by the defendant is insufficient, standing alone, to prove constructive possession. Such evidence is probative, but it is only a circumstance which may be considered along with the other evidence. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Insufficient evidence of constructive possession. - Evidence did not support finding that defendant constructively possessed contraband, even though it was found in a house which he occupied, where evidence did not show that the defendant was in the dwelling recently enough to permit a reasonable inference that he was aware of the presence of the contraband. No direct evidence placed the defendant in the house; while police found mail addressed to him on a dresser in a bedroom, the postmark on the mail was six days before the discovery of the contraband; and they also found evidence of at least one other person living in the house. Diggs v. Commonwealth, No. 0957-93-2, 1994 Va. App. LEXIS 622 (Ct. of Appeals Oct. 11, 1994).

Defendant's presence in house where she rented a room was insufficient to prove beyond a reasonable doubt that she possessed cocaine seized in house. Harris v. Commonwealth, No. 2840-97-1 (Ct. of Appeals June 22, 1999).

The evidence fell short of establishing that the defendant knew of the presence of drugs found under a crushed soda can in a gutter or that he exercised dominion and control over the drugs where the only evidence was the testimony of a police officer that he saw the defendant standing at the curb of the roadway, bent over at the waist, and that when the other returned to the area where the defendant had been standing, the officer found a bag containing heroin and cocaine under the soda can; the officer never saw the defendant put anything on the ground or put anything under the soda can and only saw the defendant's back and that he was bent over at the waist. Richards v. Commonwealth, No. 0823-00-1, 2001 Va. App. LEXIS 72 (Ct. of Appeals Feb. 20, 2001).

Evidence was insufficient to prove possession where drugs were found on rear floor of car occupied by four persons, and defendant made no furtive movements before or after stop or did anything else to incriminate himself. Tables v. Commonwealth, No. 1419-99-1, 2000 Va. App. LEXIS 149 (Ct. of Appeals Feb. 29, 2000).

The evidence was insufficient to establish beyond a reasonable doubt that defendant possessed cocaine with the intent to distribute where the defendant, while driving a relative's car, was stopped by a police officer who discovered a covered can under the driver's seat containing cocaine, but there was no evidence that the defendant had ever touched the can or been aware of its contents; although the defendant had a significant amount of cash on his person and seemed quite nervous, this was explained by the testimony of the defendant's aunt that she had given him the cash to purchase money orders for her and by the fact that the defendant was driving on a suspended license. Williams v. Commonwealth, No. 0289-00-1, 2001 Va. App. LEXIS 303 (Ct. of Appeals June 5, 2001).

Convictions for possession of cocaine with the intent to distribute, third or subsequent offense, and possession of marijuana were reversed because defendant's only proven connection to the drugs was defendant's proximity to them; no evidence proved that the officer or anyone else saw defendant with drugs or saw defendant place the drugs in the plywood. In addition, defendant's fingerprints were not on the bags recovered, which was relevant as the Commonwealth's theory was that defendant was holding the drugs down the front of defendant's pants in ungloved hands. Maxwell v. Commonwealth,, 2006 Va. App. LEXIS 518 (Nov. 21, 2006).

Although defendant's conduct may have been suspicious no one ever saw defendant with the cocaine at issue, defendant never made any incriminating statements concerning the cocaine, and the one fingerprint found on a plastic bag in a lumberyard to which defendant had run, was not defendant's fingerprint. As a result, the State did not prove that defendant was ever in such close proximity as would support a finding that defendant was aware of both the presence and character of the cocaine, and that the cocaine was subject to defendant's dominion and control such as would support a conviction pursuant to § 18.2-248 . Maxwell v. Commonwealth, 275 Va. 437 , 657 S.E.2d 499, 2008 Va. LEXIS 21 (2008).

Where Commonwealth's evidence demonstrated that defendant was nervous, told the driver to turn right, and was sitting in car that contained drugs that were not visible to anyone, the evidence was insufficient to support defendant's conviction for possession of heroin with intent to distribute under § 18.2-248 . Cross v. Commonwealth,, 2009 Va. App. LEXIS 236 (May 19, 2009).

Defendant's conviction for possession of ecstasy with intent to distribute, second or subsequent offense, was not supported by sufficient evidence where there was no evidence that defendant ever exercised dominion and control over the vehicle or the suitcase with the drugs, or that defendant had knowledge of the presence, nature, and character of the drugs such that defendant's occupancy of the vehicle could have supported the conclusion that defendant constructively possessed them. Merritt v. Commonwealth, 55 Va. App. 719, 689 S.E.2d 757, 2010 Va. App. LEXIS 81 (2010).

Evidence was insufficient to establish that defendant possessed cocaine with intent to distribute because the only evidence linking him to cocaine found in an apartment was his proximity to the apartment, which did not show that he was aware of the cocaine or that it was within his dominion and control. Mason v. Commonwealth,, 2010 Va. App. LEXIS 79 (Mar. 2, 2010).

Possession of cocaine insufficient to exclude hypothesis that purchase was for personal use. - Where evidence established that appellant possessed about six grams of crack cocaine with a street value of between $500 and $900 and that he had $232 on his person at the time of his arrest, and no evidence indicated whether these amounts of cocaine and cash were consistent with distribution or personal use, and where although a blue gym bag containing drug paraphernalia and razor blades was discovered on a bed in the motel room where appellant was arrested, no evidence established that these items belonged to appellant rather than to one of the room's other two occupants, based on these circumstances, the mere possession of the cocaine and cash by appellant was insufficient to exclude the reasonable hypothesis that appellant had purchased cocaine for personal use from one of the other occupants of the room prior to the officers' arrival. Wright v. Commonwealth, No 2528-96-3 (Ct. of Appeals Dec. 9, 1997).

Defendant's conviction for possession of an imitation controlled substance with the intent to distribute in violation of § 18.2-248 was reversed because the evidence did not preclude the reasonable hypothesis of possession for personal use. There was nothing in the record suggesting that defendant knew that the substance he possessed was not cocaine, and there was no proffer by the Commonwealth that the quantify of imitation substance, standing alone, was inconsistent with personal use. Holloway v. Commonwealth, 55 Va. App. 609, 687 S.E.2d 557, 2010 Va. App. LEXIS 32 (2010).

Contraband found in hotel room. - A defendant need not be found inside a hotel room in order to establish that he constructively possessed contraband found therein. However, something more than mere rental of the room must be shown. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Where the defendant paid for the motel room, and he was given the only key to the room, which was found in his pocket the following day when he was detained in the motel's parking lot, the cocaine found in the motel room was subject to the defendant's dominion and control, thus permitting a finding of constructive possession. Thorne v. Commonwealth, No. 1011-86-2 (Ct. of Appeals Sept. 30, 1987).

Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Suspicion, no matter how strong, is insufficient to sustain a criminal conviction. Thus, where, at most, the evidence created a suspicion that defendant was aware of the presence of the cocaine in the residence, the evidence was insufficient to support a conviction of possession of cocaine with intent to distribute. Torian v. Commonwealth, No. 1770-96-2 (Ct. of Appeals May 27, 1997).

Under the totality of the circumstances, defendant, who was convicted of possession of cocaine with intent to distribute under § 18.2-248 and possession of a firearm while in possession of drugs under § 18.2-308.4 , was not illegally seized under the Fourth Amendment as the police officer had a particularized and objective basis for suspecting that defendant was involved in criminal activity where: (1) defendant fled a consensual encounter with the officer; (2) the officer had a reasonable suspicion to detain defendant where he suspiciously, while in a high-crime area, leaned toward a car tire as the officer approached; (3) defendant could not provide an address in the housing area, which had been posted as a "no trespassing" area, without squinting at a building behind him and giving the officer that address; and (4) defendant's placement of his hands underneath him and his unusual movements after he fell suggested that he was attempting to remove something from his clothing. White v. Commonwealth, No. 2091-02-1, 2003 Va. App. LEXIS 367 (Ct. of Appeals June 24, 2003).

Evidence insufficient to prove possession. - Evidence was insufficient to establish that defendant jointly possessed the ecstasy found in the possession of a passenger in defendant's vehicle; the evidence did not establish either that defendant was aware of the character and presence of the ecstasy or that the ecstasy was under defendant's dominion and control. Even though defendant admitted that a roll of cash belonged to him, it was rolled sequentially according to denomination rather than in amounts corresponding to the price of an ecstasy pill; the evidence was all circumstantial and, at most, created mere suspicion. Jordan v. Commonwealth, 273 Va. 639 , 643 S.E.2d 166, 2007 Va. LEXIS 59 (2007).

Commonwealth failed to prove that defendant knowingly and intentionally possessed cocaine, but merely established that defendant was in close proximity to the drug. Therefore, the evidence was insufficient to prove possession with intent to distribute. Hypolite v. Commonwealth, No. 0692-18-1, 2019 Va. App. LEXIS 160 (July 16, 2019).

Commonwealth's evidence of knowing possession of a controlled substance consisted of testimony concerning defendant's movement as an officer approached, defendant's proximity to the drugs found underneath his seat, and his nervous demeanor. While these circumstances may give rise to a suspicion of guilt, they were insufficient to establish beyond a reasonable doubt that defendant knowingly and intentionally possessed cocaine. Hypolite v. Commonwealth, No. 0692-18-1, 2019 Va. App. LEXIS 160 (July 16, 2019).

Evidence proving aiding and abetting. - Conviction for possession of ecstasy, a Schedule I controlled substance, with intent to distribute was supported by evidence that defendant served as the "muscle" or "lookout" in a drug transportation scheme and thus, was aware of the presence and character of the ecstasy and that defendant aided and abetted his companions in their possession and intent to distribute the ecstasy. Merritt v. Commonwealth, 57 Va. App. 542, 704 S.E.2d 158, 2011 Va. App. LEXIS 25 (2011).

Defendant's statements to undercover officer prove intent to purchase and possess. - Defendant's statement to the undercover officer that he wanted to purchase "ready rock" and his statement after his arrest that he intended to purchase "crack" cocaine proved that he intended to purchase and possess cocaine. Grant v. Commonwealth, No. 1546-91-1 (Ct. of Appeals April 20, 1993).

Evidence was sufficient to support defendant's conviction for possession of cocaine with intent to distribute it, where a box containing 83.7 grams of cocaine was found on the front seat of a car driven by defendant and occupied by only one passenger, seated next to defendant. Aquila v. Commonwealth, No. 0748-88-2 (Ct. of Appeals Apr. 17, 1990).

Where defendant was the sole occupant of the vehicle in which the drugs were found, he had given his car keys to his girlfriend after seeing the police and when his girlfriend spoke with the police, he yelled to her, "don't give them the keys," his actions and the words directed to her bespoke a guilty knowledge that drugs were present in the vehicle's trunk; given that the car doors were unlocked and its windows were open, the keys were needed only if the police wanted to search the car's trunk and the fact finder could infer that he had given the girlfriend the keys to prevent the officers from obtaining access to the vehicle's trunk, knowing that he had placed illicit drugs there; these facts supported the trial court's finding that defendant knowingly and voluntarily possessed cocaine. Hardy v. Commonwealth, 17 Va. App. 677, 440 S.E.2d 434 (1994).

Where detective described the physical appearance of the item purchased by appellant, causing the detective to believe that, based on his experience, it was cocaine; a high price was paid in cash for the small amount of substance; the transaction between appellant and the seller, like the one between the detective and the seller, was carried on with secrecy or deviousness; and appellant referred to the substance by its street name, a "20," indicating a twenty dollar rock of crack cocaine, the fact finder could reasonably find beyond a reasonable doubt that appellant possessed cocaine. Thomas v. Commonwealth, No. 2352-92-4 (Ct. of Appeals June 14, 1994).

Where a plastic bag containing cocaine was clearly visible on the floor of the driver's side of a vehicle operated by defendant; defendant was alone in the car, provided police with a false Social Security number, and was in possession of $242 in cash; and defendant fled upon learning particulars of the informant's report and at the moment officer spotted the bag of cocaine and proceeded to investigate, conduct indicative of a guilty mind; there was sufficient evidence of knowing possession. Robertson v. Commonwealth, No. 1807-96-2 (Ct. of Appeals June 24, 1997).

Evidence was sufficient to support defendant's conviction for possession with the intent to distribute cocaine in violation of § 18.2-248 , where the drugs were found in plain view within defendant's reach, it was unlikely anyone other than defendant left $1,900 worth of cocaine on the back floor of the taxi defendant was riding in, and defendant made a furtive gesture when police stopped the taxi. Richardson v. Commonwealth, No. 2610-00-1, 2001 Va. App. LEXIS 625 (Ct. of Appeals Nov. 13, 2001).

Circumstances which tended to prove possession, including identification of the premises defendant lived in, linking defendant therein, as well as belongings found in the same safe in which cocaine was found, supported the conviction. Norrell v. Commonwealth, No. 0978-02-2, 2003 Va. App. LEXIS 233 (Ct. of Appeals Apr. 22, 2003).

Police detective's testimony that he saw defendant throw an object under a car and that he found a bag containing cocaine under the car 15 seconds later was sufficient to sustain defendant's conviction for possession of cocaine with intent to distribute, even though another detective testified that he did not see defendant make a throwing motion and that the bag of cocaine was found beside the car, not under it. Sawyer v. Commonwealth, No. 1917-03-1, 2004 Va. App. LEXIS 366 (Ct. of Appeals Aug. 3, 2004).

Defendant's conviction for possession of cocaine with intent to distribute was affirmed, as the evidence showed that he intentionally and consciously possessed the cocaine inside the package delivered to him, as he took that package into his home even after he returned misdirected mail to the delivery person and despite the fact that the package he took inside was not addressed to him. Ward v. Commonwealth, 47 Va. App. 733, 627 S.E.2d 520, 2006 Va. App. LEXIS 105 (2006).

Since defendant had not assigned error to the sufficiency of the evidence to support his conviction for possession of cocaine while possessing a firearm, he had conceded the factual finding that he was in actual or constructive possession of cocaine. Thus, defendant had waived his challenge to the sufficiency of evidence of possession of cocaine with regard to the charge of possession with intent to distribute cocaine. Wilson v. Commonwealth, 272 Va. 19 , 630 S.E.2d 326, 2006 Va. LEXIS 60 (2006).

Evidence was sufficient to convict defendant of possession of cocaine because defendant was the only occupant of his vehicle when an officer found a baggie of cocaine wedged between the door of the car and the window, and there was no evidence that someone other than defendant could have put the baggie there; the baggie was only slightly wedged between the window and the weather stripping, and it took almost no effort for the officer to pull the baggie out. Smith v. Commonwealth,, 2008 Va. App. LEXIS 164 (Apr. 8, 2008).

Evidence was sufficient to support defendant's convictions for possessing both marijuana and the cocaine found in a vehicle where the drugs were found in the front passenger compartment of the vehicle, which was occupied solely by defendant. While seated in the police vehicle, defendant emphatically shouted that everything in the vehicle belonged to him, as defendant's fiance came up on foot and claimed that the vehicle belonged to her. Even though defendant later denied the statements, the trial court was at liberty to judge defendant's credibility. Armstead v. Commonwealth, 56 Va. App. 569, 695 S.E.2d 561, 2010 Va. App. LEXIS 300 (2010).

Evidence was sufficient to support defendant's conviction for possession of cocaine with intent to distribute because: (1) when the police intercepted a package, which they suspected of containing contraband, at a FedEx distribution facility, a drug dog indicated the presence of illegal drugs in the package; (2) the police obtained a search warrant, opened the package, and discovered cocaine inside; (3) the police placed a small amount of the cocaine inside a new package and transferred the air bill that indicated the recipient and return addresses onto the new package; (4) a police officer disguised as a FedEx employee delivered the package to defendant's apartment; (5) defendant identified the recipient as defendant's cousin and accepted the package on behalf of the cousin; and (6) not long after, the police executed a search warrant and found defendant, the unopened package, and drug paraphernalia in the apartment. Thus, the evidence was sufficient to prove that defendant knew the unopened FedEx box contained cocaine, that defendant had arranged for a second person in another state to sell defendant cocaine, and that defendant was a principal in the second degree to the transportation of cocaine into the Commonwealth of Virginia. Clark v. Commonwealth,, 2011 Va. App. LEXIS 219 (July 5, 2011).

Defendant's conviction for possession of cocaine with intent to distribute was appropriate because the evidence was sufficient. The Commonwealth proved that a portion of the substance seized from the bedroom was cocaine, and the fact-finder was free to make the reasonable inference that the remaining untested portion of that solid, homogenous substance was also cocaine; that, along with defendant's possession of a digital scale, baggies, an "owe sheet" that matched names to amounts of money, and a detective's testimony that defendant's possession of the cocaine was inconsistent with personal use, was sufficient. Burrell v. Commonwealth, 58 Va. App. 417, 710 S.E.2d 509, 2011 Va. App. LEXIS 211 (2011).

Evidence that defendant was in actual possession of cocaine and that a plastic bag containing 11 knotted plastic bags with crack cocaine inside was observed in plain view on the floorboard of the vehicle, directly behind the driver's seat, was sufficient to show defendant's knowledge of the cocaine recovered. Willoughby v. Commonwealth,, 2012 Va. App. LEXIS 73 (Mar. 13, 2012).

Evidence sufficient. - There was sufficient evidence to support defendant's conviction for possession with intent to distribute heroin, as the evidence showed that defendant fled from an imminent canine sniff, defendant's passenger side window was up during the traffic stop but down after his flight, drugs were discovered by the road where defendant had driven and did not appear to have been there long given the lack of dust and dew, and a drug dog alerted to the car after the chase. Morris v. Commonwealth, No. 1144-15-1, 2016 Va. App. LEXIS 332 (Ct. of Appeals Dec. 6, 2016).

It was error to reverse defendant's conviction for possession of heroin with intent to distribute based on alleged error in denying defendant's motion to suppress because any error was harmless as a matter of law, since uncontested evidence demonstrated beyond a reasonable doubt that a rational juror would have found defendant guilty without the disputed evidence, as that evidence played a limited role at trial, and other evidence of defendant's guilt found during a personal search was overwhelming. Commonwealth v. White, 293 Va. 411 , 799 S.E.2d 494, 2017 Va. LEXIS 78 (2017).

2. EVIDENCE OF DISTRIBUTION.

Circumstances establishing intent to distribute in a narcotic prosecution may properly consist of the quantity of the product involved, the nature of its packaging, and other relevant facts. United States v. Childs, 463 F.2d 390 (4th Cir.), cert. denied, 409 U.S. 966, 93 S. Ct. 271, 34 L. Ed. 2d 232 (1972).

Quantity, when considered in context with other circumstances, is a circumstance which may have significant probative value. Indeed, quantity, when greater than the supply ordinarily possessed by a narcotics user for his personal use, is a circumstance which, standing alone, may be sufficient to support a finding of intent to distribute. Hunter v. Commonwealth, 213 Va. 569 , 193 S.E.2d 779 (1973); Adkins v. Commonwealth, 217 Va. 437 , 229 S.E.2d 869 (1976); Dutton v. Commonwealth, 220 Va. 762 , 263 S.E.2d 52 (1980).

Where in addition to defendant's possession of a quantity of drugs greater than the supply ordinarily possessed for one's personal use, no paraphernalia for personal use were found on defendant when he was arrested, and furthermore, defendant did not appear to be under the influence of narcotics, these facts tend to discount defendant's argument that he might merely have been a heavy user of cocaine. The finder of fact was entitled to consider whether a heavy user with a bag containing four ounces and another bag with only a residue of cocaine, would not show some sign of being under the influence of the drug. The absence of evidence of personal use is a circumstance supporting the inference that the possession is for distribution. Herndon v. Commonwealth, No. 0440-85 (Ct. of Appeals Apr. 21, 1987).

Where the arresting officer testified that, based on his training and experience, he believed that possession of 3.4 grams of cocaine was consistent with distribution, not personal use, and although on cross-examination he stated that it was conceivable that an individual with a serious addiction could consume around three grams of cocaine in two days, this was still sufficient to prove intent to distribute. Gregory v. Commonwealth, 22 Va. App. 100, 468 S.E.2d 117 (1996).

In proving intent, various types of circumstantial evidence may be appropriate, including evidence concerning the quantity of drugs and cash possessed, the method of packaging, whether the defendant himself used drugs and the absence of evidence suggestive of personal use. Jackson v. Commonwealth, No. 2823-99-4, 2000 Va. App. LEXIS 729 (Ct. of Appeals Nov. 14, 2000).

Circumstantial proof of a defendant's intent to distribute includes quantity of drugs discovered, packaging of drugs, and presence or absence of drug paraphernalia. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000).

Proof of the intent to distribute drugs may be established by circumstantial evidence, including the quantity of drugs and cash possessed and whether the accused is a drug user; large sums of money, particularly in small denominations, and the absence of drug paraphernalia supporting personal drug use, have been commonly accepted as factors indicating intent to distribute. Johnson v. Commonwealth, No. 1487-99-3, 2000 Va. App. LEXIS 504 (Ct. of Appeals July 11, 2000).

Factors which may be considered to determine intent to distribute include the quantity of drugs found, the presence of an unusual amount of money, the presence of drug paraphernalia consistent with involvement in the drug trade rather than personal use, such as a scale or a pager, and the presence of firearms, which are also recognized as tools of the drug trade, the possession of which are probative of intent to distribute. McCain v. Commonwealth, No. 2368-99-3, 2000 Va. App. LEXIS 512 (Ct. of Appeals July 18, 2000), aff'd, 261 Va. 483 , 545 S.E.2d 541, (2001).

Several factors may constitute probative evidence of intent to distribute a controlled substance, including the quantity of the drugs seized, the manner in which they were packaged and the presence of an unusual amount of cash, equipment related to drug distribution or firearms. McCain v. Commonwealth, 261 Va. 483 , 545 S.E.2d 541, 2001 Va. LEXIS 42 (2001).

In cases lacking direct evidence of drug distribution, intent to distribute must be shown by circumstantial evidence; among the circumstances that tend to prove an intent to distribute are: (1) the quantity of the drugs seized; (2) the manner in which they are packaged; (3) the presence of equipment related to drug distribution, including pagers and firearms; (4) the absence of paraphernalia suggestive of personal use; and (5) possession of a quantity greater than that ordinarily possessed for one's personal use. Askew v. Commonwealth, 40 Va. App. 104, 578 S.E.2d 58, 2003 Va. App. LEXIS 135 (2003).

Possession of a large sum of money, especially in small denominations, and the absence of any paraphernalia suggestive of personal use, are regularly recognized as factors indicating an intent to distribute. Ford v. Commonwealth, Nos. 0446-03-1, 0455-03-1, 2003 Va. App. LEXIS 651 (Ct. of Appeals Dec. 16, 2003).

Defendant's convictions for possession with an intent to distribute heroin within 1000 feet of a school were upheld, as the evidence sufficiently showed that defendant had actual possession of the plastic bag containing the 38 heroin capsules before giving them to his companion, who discarded them while being pursued by the police; moreover, the State properly posed a hypothetical to its expert, despite the fact that the expert's testimony tended to prove an ultimate fact in issue, where the hypothetical posed had some relationship to the evidence in the record. Lewis v. Va., No. 3111-03-1, 2004 Va. App. LEXIS 595 (Ct. of Appeals Dec. 7, 2004).

Sufficient evidence existed to support a defendant's convictions for possession of marijuana with intent to distribute and possession of cocaine with intent to distribute where the evidence showed that defendant was found in an apartment outfitted as a headquarters of a major drug operation, with a large amount of cash in his pocket, and a loaded weapon in his belt. Defendant's convictions were not based on his mere incidental presence in the apartment when the search warrant was executed and the drugs were found; rather, the evidence established him as an active drug dealer present at the headquarters of a major drug operation of which he was a part. Wilson v. Commonwealth, 46 Va. App. 408, 617 S.E.2d 431, 2005 Va. App. LEXIS 324 (2005), rev'd, remanded as to issue of recusal, 630 S.E.2d 326, 2006 Va. LEXIS 60 (2006).

Defendant's conviction for possessing cocaine with the intent to distribute was upheld on appeal, as the state presented sufficient circumstantial evidence of the element of intent through the expert testimony of a police detective, who testified as to the quantity of cocaine found, the characteristics of the same, and the significance of the absence of both cash and a smoking device on defendant's person. Thorogood v. Commonwealth,, 2007 Va. App. LEXIS 25 (Jan. 30, 2007).

Defendant's consent to a fiance's drug sales from their home, defendant's reliance on the income from the marijuana sales for defendant's livelihood, and defendant's reliance on the pinches from the methamphetamine to support defendant's drug habit provided other circumstances from which it could be inferred defendant assented to the possession of the methamphetamine and marijuana with intent to distribute under § 18.2-248 as an aider and abettor. Dunn v. Commonwealth, 52 Va. App. 611, 665 S.E.2d 868, 2008 Va. App. LEXIS 418 (2008).

There was sufficient circumstantial evidence to show that defendant intended to distribute methadone as the evidence showed that defendant possessed three disparate drugs, a factor leading to the conclusion that he was engaging in the business of drug distribution, and the quantity of heroin alone found in defendant's possession was inconsistent with personal use, as was the packaging of the methadone. While only one of the ten alleged methadone tablets was tested and found to contain methadone, the trial court was entitled to consider all the evidence and was not limited to relying on the number of methadone tablets in defendant's possession. Williams v. Commonwealth, 278 Va. 190 , 677 S.E.2d 280, 2009 Va. LEXIS 71 (2009).

Evidence supported defendant's conviction for attempt to manufacture, sell, give, distribute or attempt to possess with intent to manufacture, sell, give, or distribute a Schedule I or II controlled substance because it was reasonable to infer from the evidence that defendant specifically intended to possess cocaine and to distribute it to an informant and others who provided money to defendant. Officers found a white powdery substance that was used by drug dealers to cut cocaine, a handgun and ammunition, and digital scales. Folly v. Commonwealth,, 2014 Va. App. LEXIS 273 (Aug. 5, 2014).

Evidence indicating possession and intent to distribute. - Possession of significant sums of cash and drugs, items routinely classified as tools of the drug trade, the manner in which the drugs are packaged and testimony that the quantity and packaging of the drugs in question is consistent with dealing in the local drug trade are all significant factors when determining whether the evidence supports a finding of both possession and an intent to distribute. Wilson v. Commonwealth, No. 1072-00-1, 2001 Va. App. LEXIS 121 (Ct. of Appeals Mar. 13, 2001).

Based on the evidence of the amount of cocaine, the size of the unwrapped rock, the lack of a smoking device on defendant's person, and the absence of any signs of chronic drug use, the trial court did not err in convicting defendant of possession of cocaine with the intent to distribute under § 18.2-248 . Robinson v. Commonwealth,, 2009 Va. App. LEXIS 64 (Feb. 10, 2009).

Defendant's conviction for possession of cocaine with intent to distribute in violation of § 18.2-248 was proper because the evidence was sufficient. Verifying the quantity of the drugs, and the officer's testimony regarding the location of the drugs and lack of smoking or ingestion paraphernalia, combined with the detective's expert testimony regarding the typical operating procedures of drug dealers as opposed to drug users, the trial court did not err in rejecting defendant's hypothesis of innocence. Trimmer v. Commonwealth,, 2010 Va. App. LEXIS 189 (May 11, 2010).

Evidence was sufficient to support defendant's convictions for possession with the intent to distribute Methadone and Diazepamin and attempt to deliver to a prisoner a controlled substance in violation of §§ 18.2-248 and 18.2-474.1 because defendant knew of the procedures to turn in prescription medication at a jail annex, and not only did he fail to follow those procedures, but he also concealed the pills in his underwear and told a sergeant that he brought the pills into the jail to give to other inmates so his stay would "go a lot easier;" defendant took all the necessary steps to accomplish his objective of delivering drugs to others in the jail annex because in preparation for reporting to jail, he concealed drugs, for which he had no prescription, he entered the jail with those drugs, and he failed to report the drugs to jail personnel, and but for a strip search, he would have completed his crimes. Hounshell v. Commonwealth,, 2010 Va. App. LEXIS 443 (Nov. 9, 2010).

Evidence was sufficient to prove intent to distribute. - The manner in which cocaine was packaged, its location in more than one place in defendant's home, the presence of packaging paraphernalia and cocaine residue, and expert testimony explaining the uses of the paraphernalia, constituted sufficient evidence to establish defendant's intent to distribute cocaine. Early v. Commonwealth, 10 Va. App. 219, 391 S.E.2d 340 (1990).

Evidence was sufficient to show intent to distribute, where an informant purchased crack cocaine at the defendant's house with a marked bill and the defendant was found, on the next day, in possession of 15 rocks of crack cocaine, a significant amount of cash, and the marked bill, notwithstanding the defendant's assertion that the cocaine was for personal use, that he had just cashed a Social Security check, and that the marked bill was given to him by a friend for allowing the use of his apartment to entertain a guest. Jones v. Commonwealth, No. 0830-97-3 (Ct. of Appeals May 5, 1998).

Evidence was sufficient to establish the defendant's intent to distribute methamphetamines found in his truck where: (1) A passenger testified that the defendant had distributed methamphetamines to her and her sister earlier in the evening; (2) The drugs were in cut-corner baggies closed with twist ties; (3) Baggies with corners cut off, cut-corner baggies, and twist ties were found in the truck; and (4) An officer testified that, although the amount of drugs found was consistent with personal use, the presence of the baggies and twist ties was not, and that people that buy for personal use don't usually repackage their own supply. Summers v. Commonwealth, No. 0166-97-3 (Ct. of Appeals June 2, 1998).

Evidence was sufficient to establish the defendant's intent to distribute 13 grams of cocaine found on his person, notwithstanding fact that such amount was not inconsistent with personal use, where no paraphernalia connected with personal use was found. Faulk v. Commonwealth, No. 0154-97-1 (Ct. of Appeals June 9, 1998).

Evidence to the effect that the quantity of cocaine in defendant's possession (26.2 grams) was inconsistent with personal use, coupled with the fact that the drug was found together with a large sum of money (over $500) and electronic scales suitable for weighing like contraband in furtherance of distribution, was sufficient to support conviction for possession of cocaine with intent to distribute, despite defendant's attempt to offer explanations refuting intent. Barksdale v. Commonwealth, 31 Va. App. 205, 522 S.E.2d 388 (1999).

Although defendant contended the presence of drug paraphernalia was probative of his intent to personally use cocaine, and not to distribute, such evidence did not conclusively refute a finding of intent to distribute. Dunbar v. Commonwealth, 29 Va. App. 387, 512 S.E.2d 823 (1999).

Where defendant acted suspiciously as she and her companion disembarked the train from New York, a known source for drugs entering Richmond, and defendant consented to the search of both bags, the actions and statements of the two permitted an inference that their trip was a joint enterprise and that the defendant was worried that the police knew they were transporting drugs. Yancey v. Commonwealth, 30 Va. App. 510, 518 S.E.2d 325 (1999).

Where the defendant acted suspiciously as he and his companion disembarked a train from New York, a known source for drugs, walked very quickly from the train through the parking lot, and the defendant consented to a search of the bag which contained cocaine, the Commonwealth proved beyond a reasonable doubt that the defendant possessed the bag and knew the drugs were inside it. Hunley v. Commonwealth, 30 Va. App. 556, 518 S.E.2d 347 (1999).

Circumstantial evidence was sufficient to support a conviction for possession of cocaine with intent to distribute despite the fact that the defendant did not complete the transaction. Morse v. Commonwealth, No. 2395-97-2 (Ct. of Appeals Oct. 20, 1998).

Evidence established the defendant's intent to distribute where: (1) He possessed 7.5 grams of cocaine, an amount inconsistent with personal use, but had no paraphernalia to personally use the cocaine; and (2) Although unemployed, he carried $565 in two pants pockets and two pagers. Drummond v. Commonwealth, No. 3043-97-1 (Ct. of Appeals Jan. 26, 1999).

The evidence was sufficient to establish that the defendant possessed cocaine with the intent to distribute where the defendant had several smaller bags containing cocaine in another bag, had dropped a scale on the ground when he was stopped by the police, was carrying a pager and was carrying currency in small bills. Ingram v. Commonwealth, No. 2996-99-2, 2001 Va. App. LEXIS 15 (Ct. of Appeals Jan. 16, 2001).

The evidence was sufficient to establish that a defendant possessed rocks of crack cocaine with the intent to distribute where the defendant possessed a quantity of drugs that a police officer testified was inconsistent with personal use, the drugs were individually packaged, the defendant had five twenty-dollar bills on his person, the defendant told a police officer that he didn't do cocaine but admitted he smoked marijuana, which admission was supported by a marijuana pipe found on the defendant's person and, finally, the defendant effectively admitted to a police officer that he intended to sell the cocaine, even though the defendant later retracted this statement. Jackson v. Commonwealth, No. 2823-99-4, 2000 Va. App. LEXIS 729 (Ct. of Appeals Nov. 14, 2000).

Evidence was sufficient that defendant possessed cocaine with requisite intent to distribute, where he was apprehended with 2.3 grams of cocaine, a pager, $935 dollars grouped in nine $100 bundles, and a firearm, all circumstances inconsistent with personal use. Christian v. Commonwealth, No. 0558-98-1 (Ct. of Appeals Aug. 3, 1999).

The evidence was sufficient to establish that the defendant possessed cocaine with the intent to distribute where the defendant claimed he was not a drug user, yet was found in possession of over six grams of cocaine, and had a pager and $150, although he was unemployed. Johnson v. Commonwealth, No. 1487-99-3, 2000 Va. App. LEXIS 504 (Ct. of Appeals July 11, 2000).

The evidence was sufficient to establish that the defendant possessed cocaine with the intent to distribute where, of the approximately 60 grams of cocaine found on the defendant and in his car, 55 grams were packaged in two individually wrapped blocks in a single plastic bag, a relatively large amount of cash was found in the defendant's possession, and, at the time of his arrest, the defendant possessed digital scales, a semi-automatic handgun and a pager; there was also no evidence in the record that the defendant was a user of cocaine. McCain v. Commonwealth, 261 Va. 483 , 545 S.E.2d 541, 2001 Va. LEXIS 42 (2001).

Where defendant admitted to handing some marijuana to a passenger, the evidence permitted a finding that defendant intended to distribute the marijuana held in his hands. Brooks v. Commonwealth, No. 3399-01-3, 2002 Va. App. LEXIS 666 (Ct. of Appeals Nov. 5, 2002).

Evidence was sufficient to support defendant's conviction of possession of heroin with the intent to distribute where 1.89 grams of heroin was found in defendant's vehicle and $2,148 and a digital scale were found in defendant's residence; consideration of the entirety of the evidence supported the trial court's finding of guilt. Patterson v. Commonwealth, No. 3330-01-2, 2002 Va. App. LEXIS 714 (Ct. of Appeals Dec. 3, 2002).

There was sufficient evidence to convict defendant of possession with the intent to distribute cocaine where over six grams of cocaine as well as cash were found in defendant's pockets and a digital scale with a razor blade were found nearby and because the finder of fact chose not to believe defendant's testimony that the cocaine was for personal use. Gregory v. Commonwealth, No. 0441-02-1, 2003 Va. App. LEXIS 63 (Ct. of Appeals Feb. 11, 2003).

Evidence of the method of cutting and packaging of cocaine as $20 rocks, coupled with a quantity of cash and crumpled $20 bills and the absence of a smoking device or other evidence that defendant possessed the drugs for personal use, supported the finding that defendant possessed the cocaine with an intent to distribute it. Brooks v. Commonwealth, No. 0811-02-4, 2003 Va. App. LEXIS 118 (Ct. of Appeals Mar. 4, 2003).

Evidence was sufficient to support defendant's conviction for possession of cocaine with intent to distribute where: (1) a detective testified that 7.36 grams of cocaine was inconsistent with personal use; (2) the cocaine was packaged in seven packages, and had a street value of $700; (3) defendant carried $65 when he was arrested; (4) defendant carried a pager; and (5) defendant did not carry a device with which to consume crack cocaine, and although he testified at the trial, he never admitted to using crack cocaine, and denied possessing it. Askew v. Commonwealth, 40 Va. App. 104, 578 S.E.2d 58, 2003 Va. App. LEXIS 135 (2003).

Where an officer reasonably suspected a defendant was operating his vehicle in violation of the law and lawfully stopped him and the odor of marijuana and other observations gave probable cause for a search his conviction for possession of cocaine with the intent to distribute under § 18.2-248 was affirmed. Savage v. Commonwealth, No. 0799-02-1, 2003 Va. App. LEXIS 187 (Ct. of Appeals Apr. 1, 2003).

Police acted reasonably when they conducted a strip search of defendant who was arrested for failure to appear in court on a felony narcotics charge before they placed defendant in a detention facility, and the trial court's judgments denying defendant's motion to suppress 12 pieces of cocaine which police found in a plastic bag defendant had placed between his buttocks, and convicting defendant of possession of cocaine with the intent to distribute and obstruction of justice for fighting with police when they attempted to conduct their search, were upheld. Craddock v. Commonwealth, 40 Va. App. 539, 580 S.E.2d 454, 2003 Va. App. LEXIS 296 (2003).

Trial court did not err in convicting defendant of possessing cocaine with intent to distribute in violation of subsection A of § 18.2-248 because: (1) defendant constructively possessed the cocaine where defendant made a movement towards the center of the vehicle, and moments later, the officers discovered the narcotics there in plain view; and (2) the evidence was sufficient to prove defendant intended to distribute the drugs defendant possessed where defendant's bag contained 12 individually wrapped cocaine "rocks" commonly distributed in the retail drug trade, and an officer explained that such an amount was inconsistent with personal use. Spratley v. Commonwealth, No. 0533-02-2, 2003 Va. App. LEXIS 310 (Ct. of Appeals May 20, 2003).

Evidence was sufficient to support defendant's conviction of possession of cocaine with intent to distribute, in violation of § 18.2-248 , where: (1) defendant possessed nearly 10 times the amount a typical cocaine user would possess; (2) the cocaine was packaged in a manner typically used for distribution; (3) defendant had $140 in $20 bills on his person, and typical cocaine users paid with $20 bills; (4) defendant had no smoking device on his person, and the Commonwealth's expert testified that a typical cocaine user would have a pipe or papers on him to smoke the cocaine; and (5) the trial court was entitled to conclude that defendant had given false testimony regarding his intended use of the cocaine and that he had done so to conceal his guilt. Jackson v. Commonwealth, No. 0628-02-3, 2003 Va. App. LEXIS 340 (Ct. of Appeals June 17, 2003).

Where an officer saw defendant lean inside a vehicle, hand something to the driver and then place a plastic bag in the waistband of his shorts, the officer placed defendant under arrest. Defendant was properly convicted of possession of cocaine with intent to distribute and possession of heroin with intent to distribute, based on evidence of 55 capsules of heroin weighing approximately 3.9 grams and 3.8 grams of cocaine seized from his person during the arrest. Moody v. Commonwealth, No. 3183-02-1, 2003 Va. App. LEXIS 624 (Ct. of Appeals Dec. 9, 2003).

Circumstantial proof of a defendant's intent to distribute includes the quantity of the drugs discovered, the packaging of the drugs, and the presence or absence of drug paraphernalia. Sample v. Commonwealth, No. 2594-02-3, 2003 Va. App. LEXIS 627 (Ct. of Appeals Dec. 9, 2003).

Evidence was sufficient to support defendant's intent to distribute charge where: (1) a cigarette box in the car defendant was driving contained 24 individually packaged rocks of crack cocaine; (2) defendant did not possess drug paraphernalia; (3) defendant thanked the officer charging him with possession of cocaine for not charging him with possession with intent to distribute; and (4) an expert testified that the cocaine from the glove box was inconsistent with personal use. Williams v. Commonwealth, 42 Va. App. 723, 594 S.E.2d 305, 2004 Va. App. LEXIS 156 (2004).

Defendant's motion to strike the evidence was properly denied as the evidence was sufficient to support defendant's conviction of possession of heroin with the intent to distribute, second or subsequent offense and possession with the intent to distribute heroin within 1,000 feet of school property where: (1) defendant's claim that he could have been taking something out of the girl's pocket when the officer approached was rejected; (2) defendant's nervousness and heavy breathing allowed the reasonable inference that defendant knew that he possessed illegal drugs; (3) the Commonwealth's expert testified that the amount of heroin, the lack of devices to ingest the heroin, and defendant's unemployment, made his possession of 49 capsules, worth approximately $500, inconsistent with personal use; and (4) the quantity of heroin, alone, was sufficient to support the conviction. Walker v. Commonwealth, 42 Va. App. 782, 595 S.E.2d 30, 2004 Va. App. LEXIS 169 (2004).

Evidence was sufficient to prove defendant's possession of cocaine intent to distribute charge where: (1) defendant hurried inside upon seeing police officers arrive; (2) defendant was in the bathroom immediately before the cocaine was found in the toilet, and the officer following him heard him close the lid to the toilet; (3) defendant was present and in the immediate vicinity of the drugs that were found in plain view; (4) even though he denied ownership, defendant admitted that he knew there was cocaine in the toilet; and (5) other items indicative of distribution, including a clear plastic baggy, a cellular phone, $155, and flakes of marijuana, were found on defendant. Hicks v. Commonwealth, No. 0760-03-1, 2004 Va. App. LEXIS 161 (Ct. of Appeals Apr. 6, 2004).

Evidence was sufficient to show defendant's intent to distribute cocaine when (1) 3.6 grams of cocaine packaged in 48 separate baggies was found on defendant's person; (2) an officer qualified as an expert in the field of street-level narcotic sales testified this amount was inconsistent with personal use, as was the manner in which it was packaged; and (3) no paraphernalia for the ingestion of cocaine was found on defendant. Baker v. Commonwealth, No. 1311-03-2, 2004 Va. App. LEXIS 222 (Ct. of Appeals May 11, 2004).

Evidence was sufficient to support defendant's conviction for possession of cocaine with intent to distribute where: (1) the officer found eight, individually wrapped, aluminum packets of an off-white rock, found to be 1.284 grams of cocaine, in defendant's pants pocket; (2) the officer also recovered currency; (3) defendant waived his Miranda rights, and told the officer that he used cocaine in exchange for rides; (4) there was testimony as to how crack cocaine was packaged for sale, which was consistent with the way the cocaine was packaged; and (5) the amount of crack cocaine found on defendant was inconsistent with personal use. Muse v. Commonwealth, No. 1556-03-2, 2004 Va. App. LEXIS 290 (Ct. of Appeals June 22, 2004).

Circumstantial evidence of intent, including defendant's statement that the substance found on his person was not for his own use, that he believed that substance was cocaine, and his presence in an open air drug market prior to his apprehension and arrest, was sufficient to support his conviction for possessing an imitation controlled substance with the intent to distribute it. Spinner v. Commonwealth, No. 2548-03-3, 2004 Va. App. LEXIS 490 (Ct. of Appeals Oct. 12, 2004).

Where: (1) an informant arranged to buy cocaine from a person later identified as defendant at a specific time, date, and place; (2) defendant arrived in the precise manner expected; (3) defendant possessed a quantity of cocaine inconsistent with personal use, a large amount of cash, and a firearm; and (4) defendant was present precisely as arranged, ready, and able to sell cocaine, this evidence permitted the reasonable inference that the defendant was willing and intended to sell cocaine; thus, such evidence was sufficient to support a possession with intent to distribute cocaine conviction. McNeal v. Commonwealth, No. 0668-04-2, 2005 Va. App. LEXIS 128 (Ct. of Appeals Mar. 29, 2005).

Considering the quantity of the heroin and the manner of packaging when it was seized, which was backed by the testimony of a detective who qualified as an expert in heroin distribution, the trial court was entitled to conclude that the only reasonable hypothesis flowing from the evidence was that defendant intended to distribute the heroin found when police conducted a search of an apartment he was in. Fitzgerald v. Commonwealth,, 2005 Va. App. LEXIS 258 (July 5, 2005).

The cocaine was found in her mattress, there was also a large amount of cash in the mattress, there was no evidence of personal use by defendant, and defendant admitted to a detective that she had the cocaine for the purpose of distribution. McClain v. Commonwealth,, 2005 Va. App. LEXIS 453 (Nov. 15, 2005).

Because 12 "baggies" of cocaine, a revolver, and currency in small denominations were found on defendant, and because no personal smoking devise was found, the circumstantial evidence was sufficient to conclude that defendant possessed the cocaine with the intent to distribute it. Murray v. Commonwealth,, 2006 Va. App. LEXIS 52 (Feb. 7, 2006).

Conviction of possession of cocaine with intent to distribute was supported by sufficient evidence, including, inter alia, expert testimony that the amount of cocaine recovered from defendant, some seven grams with a street value of approximately $700, and "unsmokeable" in the form recovered, was inconsistent with personal use; further, no paraphernalia typically associated with personal drug use was recovered from defendant, and in addition, defendant possessed a firearm and two cellular phones, which the expert testified were considered "tools of the trade in narcotics." Cokley v. Commonwealth,, 2006 Va. App. LEXIS 116 (Mar. 28, 2006).

Evidence that 12 grams of cocaine seized from defendant's home had been cut into pieces for easy sale; that defendant had a firearm, a tool of the drug trade, in his bedroom; and that he had no devices that would indicate the drugs were for his personal consumption, was sufficient to show his intent to distribute. White v. Commonwealth,, 2006 Va. App. LEXIS 95 (Mar. 21, 2006).

Defendant's conviction of possession of drugs with intent to distribute was upheld on appeal as the Commonwealth presented sufficient evidence of the element of intent, including: (1) that the quantity of the drugs found near defendant was inconsistent with personal use; (2) that no drug-use paraphernalia was found; and (3) defendant's own testimony that he was not a user, which was corroborated by his brother. Harper v. Commonwealth, 49 Va. App. 517, 642 S.E.2d 779, 2007 Va. App. LEXIS 144 (2007).

Evidence that defendant had two-and-a-half grams of cocaine on defendant's person, consisting of one large piece and eight smaller individually wrapped pieces, a manner of packaging not consistent with personal use, was sufficient to support a conviction for possession of cocaine with the intent to distribute, in violation of § 18.2-248 . Watson v. Commonwealth,, 2007 Va. App. LEXIS 408 (Nov. 13, 2007).

Convictions for possession of cocaine with intent to distribute and possession of methadone with intent to distribute under § 18.2-248 were supported by a detective's testimony that the large amounts of drugs possessed by defendant were not consistent with personal use and the certificate of analysis that indicated the ten tablets, one of which was tested and found to be methadone, all appeared to be the same and had identical markings. Williams v. Commonwealth, 52 Va. App. 194, 662 S.E.2d 627, 2008 Va. App. LEXIS 301 (2008), aff'd, 677 S.E.2d 280, 2009 Va. LEXIS 71 (Va. 2009).

Evidence supported defendant's conviction of possession of cocaine with intent to distribute in violation of § 18.2-248 as defendant was aware of, had control of, and consciously possessed the cocaine found on the front passenger floorboard of a car defendant had driven on a suspended license, after defendant was arrested for trespassing under § 18.2-119 as: (1) the officers saw a clear plastic bag on the front passenger floorboard, which contained 41.1 grams of cocaine, worth about $4,100; (2) the packaging of the cocaine was consistent with "mid-level" distribution; (3) 10 grams of marijuana, $209 in cash, and a cell phone were discovered on defendant; (4) the cash was organized in a manner consistent with the sale of drugs; and (5) neither the registered owner nor any previous occupant would likely have left the cocaine sitting unsecured in the car. Simmons v. Commonwealth,, 2008 Va. App. LEXIS 360 (July 29, 2008).

Evidence that defendant possessed six clear, empty baggies that were cut up for distribution, that no rolling papers or smoking pipes typically found on a marijuana user were present, and that defendant possessed two cell phones, taken together, supported defendant's conviction for possession of marijuana with intent to distribute under § 18.2-248 . Boone v. Commonwealth,, 2008 Va. App. LEXIS 434 (Sept. 23, 2008).

The evidence was sufficient to support a conviction of possession with intent to distribute cocaine when a detective gave expert testimony that the over 20 grams of powdered cocaine found on defendant's person was inconsistent with personal use and that it had a street value of over $2,000. Aydlett v. Commonwealth,, 2008 Va. App. LEXIS 514 (Nov. 25, 2008).

Testimony by a police detective that 7.5 grams of cocaine in five bags recovered from defendant was inconsistent with personal use based on the amount in bags and fact that cocaine was packaged in plastic bag corners was sufficient to show that defendant possessed the cocaine with the intent to distribute and supported defendant's conviction for possession of cocaine with the intent to distribute in violation of § 18.2-248 . Wyatt v. Commonwealth,, 2009 Va. App. LEXIS 53 (Feb. 10, 2009).

Detective's expert testimony indicating that the amount of cocaine, 0.898 grams, was inconsistent with personal use; the lack of drug paraphernalia indicative of personal use; the fact that defendant did not appear to be under the influence of drugs at the time of defendant's arrest; and the fact that the drugs were individually packaged was sufficient to support a finding that defendant intended to distribute the cocaine rocks received by the detective. Kearney v. Commonwealth,, 2009 Va. App. LEXIS 56 (Feb. 10, 2009).

While the cocaine in defendant's possession was not packaged for distribution, the officer's testimony, as an expert, that the amount was inconsistent with personal use and that scales and packaging were found at defendant's residence, was sufficient to support defendant's conviction for possession with intent to distribute. Samy v. Commonwealth,, 2009 Va. App. LEXIS 194 (Apr. 28, 2009).

Evidence that defendant fled to the bathroom where the drugs were found upon seeing the officer enter the residence, that defendant stated that defendant did not smoke crack cocaine, and the testimony of a narcotics expert that the amount of cocaine founds was inconsistent with personal use, a fact supported by the absence of smoking devices, supported defendant's conviction for possession of cocaine with intent to distribute under § 18.2-248 . Phelps v. Commonwealth,, 2009 Va. App. LEXIS 320 (July 14, 2009).

Evidence that two clear plastic bags containing a total of fourteen heroin capsules was found in defendant's car, along with a detective's testimony that the amount of heroin and the packaging were inconsistent with personal use, was sufficient to support defendant's conviction for possession of heroin with intent to distribute in violation of § 18.2-248 . Brooks v. Commonwealth,, 2009 Va. App. LEXIS 311 (July 14, 2009).

In a case in which defendant appealed his conviction for possession of cocaine with intent to distribute, third offense, in violation of subsection C of § 18.2-248 , he argued unsuccessfully that the trial court erred in finding the evidence sufficient to prove he possessed cocaine with intent to distribute. Defendant conceded the evidence, if lawfully seized, was sufficient to prove he possessed cocaine, but contended the evidence failed to prove he intended to distribute that cocaine; an officer, who had witnessed several hundred drug transactions, observed defendant take an individually wrapped rock of suspected cocaine out of a bag and receive money in exchange for that item, and the officers later recovered that same bag, containing individually packaged cocaine, from defendant's person. Woodson v. Commonwealth,, 2009 Va. App. LEXIS 451 (Oct. 6, 2009).

In a case in which defendant appealed his conviction for possession of cocaine with intent to distribute in violation of § 18.2-248 , he argued unsuccessfully that the evidence was insufficient to support the conviction. Not only did defendant possess cocaine, he possessed multiple drugs that were packaged individually in baggie corners, making them easier, more profitable to sell, he was carrying a firearm, and he possessed no paraphernalia consistent with personal use of cocaine. Scott v. Commonwealth, 55 Va. App. 166, 684 S.E.2d 833, 2009 Va. App. LEXIS 513 (2009).

Evidence was sufficient to show that defendant possessed heroin and cocaine with intent to distribute because he had numerous individual packages containing either the drugs or drug residue, he had no individual use paraphernalia, and he had two cell phones and $61 in cash. Murphy v. Commonwealth,, 2010 Va. App. LEXIS 103 (Mar. 23, 2010).

Evidence was sufficient to prove an intent to distribute an imitation controlled substance in violation of subsection G of § 18.2-248 since the evidence did not support defendant's suggestion that he purchased three packages of crack cocaine because a bulk quantity was not available at the time; the absence of a smoking device was evidence of an intent to distribute, and it was reasonable for the fact finder to conclude that since one could not "smoke" an imitation drug, there was no need for defendant to possess a smoking device. Holloway v. Commonwealth, 57 Va. App. 658, 705 S.E.2d 510, 2011 Va. App. LEXIS 94 (2011).

Sufficient evidence supported defendant's conviction for possession with intent to distribute, as the evidence established a buyer gave defendant a $20 bill received from a detective, and in return defendant gave the buyer crack cocaine the buyer intended to transmit to the detective; when the police searched defendant's person, they recovered the $20 bill. Miles v. Commonwealth,, 2011 Va. App. LEXIS 283 (Sept. 20, 2011).

Evidence was sufficient for a rational fact finder to concluded that defendant and his passenger shared an intent to distribute the cocaine that was recovered, where defendant exercised dominion and control over the cocaine, yet no smoking or ingestion devices were found and defendant denied being a drug user, and the detective testified that the behavior of defendant and the passenger, driving to an apartment complex known for drug transactions where passenger went inside for a short period before returning and driving off, suggested their engagement in a drug transaction. Willoughby v. Commonwealth,, 2012 Va. App. LEXIS 73 (Mar. 13, 2012).

Record amply supported the circuit court's conclusion that the evidence was sufficient to prove intent to distribute because defendant confessed to a police officer that his plan was to sell cocaine to his co-workers; defendant was in possession of a small digital scale, and there was evidence that he possessed other drugs in addition to the cocaine. Johnson v. Commonwealth,, 2016 Va. App. LEXIS 7 (Jan. 12, 2016).

Evidence was sufficient to support defendant's convictions because a confidential informant arranged the purchase of an ounce of heroin from a person who could be found at a laundromat and who regularly drove a scooter and carried a firearm, and the trial court could reasonably conclude that defendant, who was found in the same location, carrying a firearm, and standing next to a scooter containing heroin, was the individual with whom the informant arranged the sale. Harris v. Commonwealth, No. 0717-15-2, 2016 Va. App. LEXIS 172 (Ct. of Appeals May 24, 2016).

Evidence was sufficient to convict defendant of possession of cocaine with the intent to distribute because, even considering only the amount of cocaine that was confirmed by forensic testing, defendant had at least five rocks of cocaine weighing over five grams collectively; based on those amounts and the detective's testimony, defendant had at least five times the amount of cocaine that a typical user would carry, and at least 50 dosage units; and the detective's expert opinion was that possession of approximately five plus grams of crack cocaine broken into individually wrapped baggies held by a defendant in his buttocks, as well as $600 in cash and no smoking device, was inconsistent with personal use. Cole v. Commonwealth, 294 Va. 342 , 806 S.E.2d 387 (2017), cert. denied, 139 S. Ct. 2025, 2019 U.S. LEXIS 3250, 204 L. Ed. 2d 228 (2019).

Given direct evidence of defendant's admission about selling drugs for pecuniary gain and the circumstantial evidence of the packaging of the drugs, the evidence was sufficient to establish that defendant intended to distribute the drugs. Johnson v. Commonwealth, No. 0899-18-1, 2019 Va. App. LEXIS 139 (June 11, 2019).

Testimony from a detective, testifying as an expert, that the quantity of drugs recovered was inconsistent with personal use was sufficient to support a finding that defendant possessed the drugs with an intent to distribute them. Patton v. Commonwealth, No. 1494-19-2, 2020 Va. App. LEXIS 189 (July 7, 2020).

Evidence was sufficient to support defendant's conviction of possession of methamphetamine with the intent to distribute because defendant was found in possession of approximately seven tenths of an ounce of methamphetamine and numerous clean, empty baggies, a deputy testified that usually empty plastic bags are common to resell or repackage drugs, defendant's home contained empty plastic bags and a quantity of a "fake meth" substance, and the deputy testified that such cutting agents would be used to make drugs go further. Bower v. Commonwealth, No. 0707-19-3, 2020 Va. App. LEXIS 171 (June 9, 2020).

Evidence sufficient to prove distribution. - See Hulett v. Commonwealth, No. 0328-98-4 (Ct. of Appeals Mar. 9, 1999).

Evidence was sufficient to establish that the defendant was distributing cocaine where: (1) the defendant and his companion repeatedly approached cars; (2) the defendant received money from the companion; (3) the defendant disappeared behind a dumpster in the vicinity of a hidden stash of cocaine, return to the waiting car and effect an exchange; and (4) he also opened the trunk of his wife's car, which was parked adjacent to the dumpster and contained substantial cash in denominations consistent with the sale of cocaine rocks like those found near the dumpster. Uzzle, Jr. v. Commonwealth, No. 0192-98-1 (Ct. of Appeals Apr. 13, 1999).

Defendant's conviction of distribution of cocaine in violation of § 18.2-248 was supported by sufficient evidence where defendant was present in an open air drug market engaging in several hand-to-hand transactions, defendant removed an off-white substance wrapped in plastic from his mouth, which a buyer retrieved, defendant's transaction with the buyer took less than a minute, defendant ran from an officer even before the officer announced the reason for his approach, and cocaine was found in the possession of the buyer. Brown v. Commonwealth, No. 3458-01-3, 2003 Va. App. LEXIS 18 (Jan. 21, 2003).

Evidence, although mostly circumstantial, supported the trial court's finding that a paid, confidential informant purchased cocaine from the defendant on each of the four occasions where the informant met the defendant for controlled buys of cocaine. Jackson v. Commonwealth, No. 0113-02-2, 2003 Va. App. LEXIS 41 (Ct. of Appeals Feb. 4, 2003).

Where a witness testified he purchased crack cocaine from the defendant, at the conclusion of the evidence the jury properly evaluated the testimony of the witnesses, including the defendant's alibi witnesses, and determined that the testimony of the Commonwealth's witnesses was more credible than the testimony of the alibi witnesses. Mander v. Commonwealth, No. 1310-02-1, 2003 Va. App. LEXIS 188 (Ct. of Appeals Apr. 1, 2003).

Conviction for distribution of cocaine was supported by sufficient evidence showing that, during the course of a controlled drug buy, an informant drove a seller to defendant's home, the seller took designated money from the informant, the seller entered the residence, and shortly thereafter, the seller returned with cocaine; additionally, the seller was seen talking to defendant inside the house, and defendant was found with the designated money, six $100 bills that had been marked beforehand by officers and given to the informant. The evidence also revealed that defendant had been involved in the sale of drugs on prior occasions, and had large sums of cash on him despite being unemployed for two years. Taylor v. Commonwealth,, 2007 Va. App. LEXIS 159 (Apr. 17, 2007).

Evidence supported a finding that defendant supplied the heroin sold to an officer as: (1) if the runner possessed heroin when the runner approached the officer, the runner would have immediately sold it to the officer, and there would have been no reason for the runner to interact with defendant; (2) there was a hand-to-hand transaction between the runner and defendant; and (3) the runner immediately went to the officer's car, and sold the officer the heroin. Peoples v. Commonwealth,, 2007 Va. App. LEXIS 403 (Nov. 6, 2007).

Defendant's convictions for possession of cocaine with intent to distribute, in violation of § 18.2-248 , was supported by sufficient evidence as the evidence showed that eleven small, plastic baggies containing crack cocaine were found on defendant. A rational fact finder could conclude that defendant possessed the crack cocaine with intent to distribute as, though defendant claimed that he intended only to smoke the drugs, he had no user paraphernalia and no lighter, match, or other igniter for burning the crack, and defendant could not recall the name of the dealer from whom he purchased the crack. Barnes v. Commonwealth,, 2009 Va. App. LEXIS 66 (Feb. 10, 2009).

Defendant's continued possession of imitation drugs after learning they were not real and having had opportunities to dispose of them supported the trial court's finding that defendant intended to distribute the imitation drugs and, therefore, the evidence was sufficient to support defendant's conviction for possession with intent to distribute. Boxley v. Commonwealth,, 2009 Va. App. LEXIS 99 (Mar. 10, 2009).

Defendant's convictions for distributing cocaine were proper because the evidence was sufficient. Defendant's admission that she sold cocaine in the county corroborated the informant purchaser's testimony and the jury was permitted to find the informant's testimony credible; that was a finding that the appellate court would not disturb on appeal. Terry v. Commonwealth,, 2010 Va. App. LEXIS 216 (May 25, 2010).

Evidence was sufficient to support defendant's conviction for distribution of cocaine because the jury saw fit to convict defendant based on a confidential informant's testimony; the informant testified that defendant sold him cocaine, and that testimony was corroborated by an audio recording and by the fact that the informant was searched by officers before and after the controlled buy. Dalton v. Commonwealth, 64 Va. App. 512, 769 S.E.2d 698, 2015 Va. App. LEXIS 97 (2015).

Evidence was sufficient to support defendant's conviction of drug distribution because a video showed him in possession of two plastic baggies with substances in them and two discolored cigarettes, the trial court accurately characterized what the informant ordered in his telephone conversation with defendant prior to the transaction as "essentially what he got" and then turned over to law enforcement, the investigators searched the informant before and after the transaction, and the meeting took place at a location selected by defendant. Bennett v. Commonwealth, 69 Va. App. 475, 820 S.E.2d 390, 2018 Va. App. LEXIS 323 (2018).

Evidence sufficient for distribution of imitation controlled substance. - Court did not err by finding sufficient evidence that defendant distributed an imitation controlled substance, because defendant's representations regarding the substance, together with the packaging of the substance in a plastic knotted baggie, made it likely that the substance would be mistaken for crack cocaine; not only was the appearance of the substance consistent with crack cocaine when it was wrapped in the plastic baggie, defendant implied it was crack cocaine. Powell v. Commonwealth, 62 Va. App. 579, 750 S.E.2d 229, 2013 Va. App. LEXIS 342 (2013).

Trial court properly convicted defendant of distributing an imitation controlled substance because the evidence was sufficient to establish that, while defendant distributed a controlled substance to a detective, it was a Schedule VI controlled substance, which was not "a controlled substance subject to abuse" as defined by the Drug Control Act, the substance, by appearance and packaging, would likely be mistaken for crack cocaine, and defendant implied that the substance was 40 dollars worth of cocaine. Powell v. Commonwealth, 289 Va. 20 , 766 S.E.2d 736, 2015 Va. LEXIS 1 (2015).

Sufficiency of the evidence. - Where the evidence reflected that defendant's accomplice was a minor and that the cocaine found in a vehicle was given to the driver by the accomplice, who received it from defendant, the evidence was sufficient to support defendant's convictions for possession and distribution of cocaine, in violation of §§ 18.2-248 , 18.2-255 , and 18.2-255 .2. Battle v. Commonwealth, No. 2934-02-1, 2004 Va. App. LEXIS 124 (Ct. of Appeals Mar. 23, 2004).

Because the record clearly established that the term "twenty" referred to cocaine and not marijuana, the trial judge correctly found that a police video and a police officer's testimony were sufficient to convict defendant of attempted distribution of cocaine under § 8.01-680 . Turner v. Commonwealth,, 2005 Va. App. LEXIS 368 (Sept. 27, 2005).

Given the three-minute time period between a police officer's observation of the hand-to-hand exchange of a heroin capsule between defendant and a man and the seizure of the capsule from the man, the trial court could have reasonably inferred that the capsule retrieved was the same capsule defendant handed to the man three minutes earlier. Wooden v. Commonwealth,, 2006 Va. App. LEXIS 47 (Feb. 7, 2006).

Evidence was sufficient to sustain a conviction for possession of heroin with intent to distribute where, during a transaction, the buyer gave money to defendant, and he asked "how many," and the co-conspirator returned from the tree and handed capsules containing a white substance to the buyer. After police confronted the buyer, he threw away five capsules containing heroin. Banks v. Commonwealth, No. 0960-05-1,, 2006 Va. App. LEXIS 60 (Ct. of Appeals Feb. 14, 2006).

Evidence that "dime" rock sold to defendant for $10 came out of a bag containing four other rocks of crack cocaine was sufficient to support defendant's conviction for possession of cocaine with intent to distribute. Bailey v. Commonwealth,, 2008 Va. App. LEXIS 7 (Jan. 8, 2008).

There was clear and convincing evidence that defendant was engaged in both the distribution of a controlled substance and possession with the intent to distribute a controlled substance where: (1) the drug transactions were directly observed by the police; (2) an officer observed defendant take the suspected heroin capsules out of the bag and receive money in exchange for those capsules; (3) an officer also observed defendant place the money in his pocket; (4) defendant fled when alerted by persons that police were in the area; (5) an officer observed defendant drop the bag and never lost sight of the bag until retrieved by another officer; (6) no one else came into that area until the bag was recovered; and (7) a laboratory analysis proved the capsules in the bag contained heroin. The evidence was sufficient to prove that defendant engaged in a drug transaction and was sufficient to support his conviction of distribution of or possession with intent to distribute a controlled substance. Parker v. Commonwealth,, 2008 Va. App. LEXIS 223 (May 6, 2008).

Evidence supported defendant's conviction of possession of cocaine with intent to distribute in violation of § 18.2-248 as defendant was the sole occupant of a car in which cocaine was found on the front passenger floorboard, and defendant did not tell the police that defendant was with anyone standing on the sidewalk, or that there had been passengers in the car; the cocaine was under defendant's dominion and control. Simmons v. Commonwealth,, 2008 Va. App. LEXIS 360 (July 29, 2008).

Where evidence showed that a paid confidential informant engaged in a series of "buy-walk" controlled purchases of illegal narcotics from defendant while outfitted with audio and video recording equipment that recorded the transactions was sufficient to sustain convictions for two counts of distribution of cocaine and two counts of distribution of heroin in violation of subsection C of § 18.2-248 . Gay v. Commonwealth,, 2010 Va. App. LEXIS 467 (Nov. 30, 2010).

Evidence was sufficient to convict appellant of possession of the cocaine with intent to distribute under § 18.2-248 as he possessed the keys to the gold car, which contained the cocaine, the gun and clothing similar to appellant's, from which it could be inferred that the contraband in the car was subject to his dominion and control. Womack v. Commonwealth,, 2013 Va. App. LEXIS 38 (Feb. 5, 2013).

Rational trier of fact could have found that defendant had knowledge of the illicit drugs because he was the registered owner of the vehicle and was the driver and sole occupant of the vehicle when an officer pulled him over; a conservative estimate of the drugs found in defendant's car was over a thousand dollars; and items found on defendant's person were consistent with the distribution of narcotics. Jefferson v. Commonwealth, No. 1421-19-2, 2020 Va. App. LEXIS 239 (Oct. 6, 2020).

Evidence sufficient to support conviction as principal administrator, organizer or leader of a continuing criminal enterprise. - Evidence was sufficient to support defendant's conviction under subsection H2 of § 18.2-248 ; there was testimony that the substance defendant possessed was bought and sold in countless transactions over the course of a year without complaint, supporting an inference that it was real crack; the testimony of witnesses as to the amount of crack purchased and sold by defendant was credible evidence that defendant possessed with intent to distribute as much as 13 kilograms of crack; and the evidence supported a finding that defendant organized, supervised, or managed five others, including a bodyguard and a chauffeur. Dunaway v. Commonwealth, 52 Va. App. 281, 663 S.E.2d 117, 2008 Va. App. LEXIS 326 (2008).

Evidence insufficient to exclude every reasonable hypothesis of innocence. - Evidence that cocaine was found in a gym bag that also contained various personal items belonging to the defendant simply did not exclude the very real possibility that someone other than the defendant used or had access to the gym bag and had left the drugs there unbeknownst to him. Plunkett v. Commonwealth, Nos. 3002-99-3, 0257-00-3, 2000 Va. App. LEXIS 831 (Ct. of Appeals Dec. 19, 2000).

There was insufficient evidence to support defendant's convictions for possession of cocaine and possession of cocaine with intent to distribute because the evidence that linked the passenger to the drugs and established his guilt did not also link defendant to the drugs and establish defendant's guilt. Defendant did not arouse suspicion when stopped, he was cooperative, he consented to both searches, and he had no drugs on his person or in his bedroom. No acts, statements, or conduct of defendant suggested that he knew the drugs were present or consciously exercised dominion and control over them. The evidence never placed defendant in the presence of drugs in plain view. It did not show any joint action or effort that permitted an inference of joint enterprise or possession. Silencieux v. Commonwealth, No. 2701-03-2, 2004 Va. App. LEXIS 355 (Ct. of Appeals July 20, 2004).

Evidence insufficient to prove intent to distribute. - In a prosecution of defendant for possession of LSD with intent to distribute, the evidence was insufficient to establish defendant's intent to distribute those drugs where there was no showing by the prosecution that the amount of LSD possessed was incompatible with the hypothesis that the defendant had it for his own use; that his party guests at the time of the raid had recently used LSD; or that any other person seen coming out of the defendant's apartment was found in possession of LSD. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

The Commonwealth failed to prove beyond a reasonable doubt intent to distribute, where the police found in a dresser drawer a bag which contained seven sandwich baggies, each containing ten baggie corners, for a total of seventy plastic corners containing a total of 4.2 ounces of marijuana, no unusual amounts of money or marijuana related paraphernalia were found during the search of the apartment or on the person of defendant upon her arrest, and an officer testified that the mode of packaging was as consistent with purchase as with distribution. Wells v. Commonwealth, 2 Va. App. 549, 347 S.E.2d 139 (1986).

Because the quantity of residue found in the defendant's possession was too small to be distributed, even assuming that the trier of fact could infer from the evidence introduced at trial that the defendant had in the past distributed cocaine, there was no basis on which the trier of fact could infer that the residue introduced at trial was part of that larger supply. Moreover, no evidence was presented as to when or where the supply had been either possessed or distributed. Thus, the Commonwealth failed to prove contemporaneous possession and intent to distribute. Stanley v. Commonwealth, 12 Va. App. 867, 407 S.E.2d 13 (1991).

Where evidence showed that the police found a film canister containing 8.17 grams of chunky cocaine in a duffle bag in the defendant's bedroom; that no paraphernalia was found; that no evidence indicated that the amount possessed was consistent with distribution or personal use; that neither a large sum of money nor packaging materials were seized; and that evidence of the defendant's intent was limited to the suspicions of those who lived in the same building, the evidence was insufficient to support a finding that the defendant possessed cocaine with the intent to distribute it. Taylor v. Commonwealth, No. 0610-93-2 (Ct. of Appeals Oct. 11, 1994).

The testimony of those living in the building with the defendant expressing suspicion about his activities amounted to no more than surmise or speculation, an inadequate basis for finding the defendant's intent to distribute cocaine beyond a reasonable doubt. Taylor v. Commonwealth, No. 0610-93-2 (Ct. of Appeals Oct. 11, 1994).

Although evidence established that defendant possessed cocaine, it failed to exclude all reasonable hypotheses of defendant's innocence on charge of distribution or intent to distribute. Ramsey v. Commonwealth, No. 2958-98-2 (Ct. of Appeals Oct. 19, 1999).

The evidence was insufficient to exclude every reasonable hypothesis except that of guilt where the evidence established only that the defendant possessed a small quantity of cocaine; no evidence proved that he owned or constructively possessed other items of contraband found by the police in executing a search warrant at the defendant's aunt's house. Leftwich v. Commonwealth, No. 2466-99-3, 2000 Va. App. LEXIS 761 (Ct. of Appeals Nov. 28, 2000).

Evidence was insufficient to support defendant's conviction for possession of cocaine with the intent to distribute; there was no evidence presented at defendant's bench trial that the cocaine residue that police found in a raid on the residence where defendant lived with other people was the remainder of a larger supply that was intended for distribution. Lunceford v. Commonwealth,, 2006 Va. App. LEXIS 98 (Mar. 21, 2006).

Evidence was insufficient to support defendant's conviction for possession with the intent to distribute cocaine, as a principal in the second degree, because, given that the principal in the first degree was unknown, and it was not proven that defendant had exclusive control and authority over the residence where the drugs were found, defendant resided with other people, the circumstantial evidence that was presented by the Commonwealth of Virginia failed to exclude all reasonable inferences inconsistent with defendant's guilt as a principal in the second degree. Brickhouse v. Commonwealth, 276 Va. 682 , 668 S.E.2d 160, 2008 Va. LEXIS 113 (2008).

Sufficient evidence of felony murder. - Commonwealth proved an unbroken chain of events leading from appellant's sale of the heroin to victim's death where evidence established that: (1) appellant sold the heroin to buyer at 9:00 p.m.; (2) appellant knew buyer was going to resell the heroin to victim and warned her of the strength of the drugs; (3) 30 to 45 minutes later, buyer sold the heroin to victim; (4) victim remained in her kitchen with the bag of heroin and cotton, which is used for injecting heroin; and (5) victim fell asleep on her sofa and died. Hillman v. Commonwealth, No. 2194-93-4 (Ct. of Appeals May 16, 1995).

Insufficient evidence of knowledge of intended illegal use. - Where no testimony was introduced to prove buyer's level of personal consumption, how often he consumed LSD, how powerful one LSD dose is, how long unused LSD can be stored before it loses its potency, or why his purchase of 2,000 hits differed from the quantities purchased earlier in the year-long series of transactions, without more compelling evidence in the record, expert testimony on these issues was necessary to establish that appellant knew or should have known that buyer was distributing LSD. Hudak v. Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994).

Evidence insufficient to prove possession. - In a prosecution of defendant for possession of LSD with the intent to distribute, the proof of the defendant's possession of the substance was defective since the prosecution established only that 31 tablets of LSD were found in an envelope behind a garbage can in the kitchen, there was no evidence that the defendant, by his statements or conduct during the search, indicated his awareness of the existence of the LSD at the place where it was found, and it was not in plain view; thus, the evidence was merely that LSD was found in the defendant's kitchen on the night of a party at his premises. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Evidence failed to sufficiently relate any cocaine to either defendant or the alleged offense, and therefore, the requisite corpus delicti of the crime was not proven; witness' testimony was simply insufficient to prove that defendant distributed cocaine to her. Hinton v. Commonwealth, 15 Va. App. 64, 421 S.E.2d 35 (1992).

3. EVIDENCE OF CONSPIRACY.

Accomplice testimony sufficiently corroborated to support conviction. - In a criminal prosecution for two counts of distribution of morphine and one count of conspiracy to distribute morphine, an accomplice's testimony was sufficiently corroborated by a police investigator and a confidential informant who taped a sales transaction. The court of appeals affirmed defendant's convictions. Johnson v. Commonwealth, 42 Va. App. 46, 590 S.E.2d 75, 2003 Va. App. LEXIS 673 (2003).

Insufficient evidence of conspiracy to distribute. - Neither the ongoing relationship between appellant and LSD buyer, nor the extension of credit from buyer to appellant, provided sufficient evidence with which the jury could have reasonably concluded that a conspiracy to distribute existed. The transactions between appellant and buyer simply lacked the essential element of an agreement between two parties to commit a subsequent distribution offense together. Hudak v. Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994).

Defendant's conviction for conspiracy to distribute a controlled substance was reversed, as the Commonwealth did not establish through sufficient corroborating evidence the corpus delicti; rather, the Commonwealth relied on mere conjecture and speculation that defendant was involved in an agreement with another person to distribute drugs. Corsaro v. Commonwealth,, 2006 Va. App. LEXIS 516 (Nov. 14, 2006).

Possession by more than one party. - Where the drugs at issue are possessed by more than one person, the commonwealth may not rely upon the quantity and packaging of drugs to establish a defendant's intent to distribute because one party in possession may intend to distribute the drugs while another person who constructively possesses the same substances because they are subject to his dominion and control may not share the intent to distribute the substances. Jackson v. Commonwealth, No. 0684-00-1, 2001 Va. App. LEXIS 21 (Ct. of Appeals Jan. 23, 2001).

Evidence held sufficient to establish conspiracy. - Where by selling cocaine to co-conspirator and receiving partial payment of less than agreed price, defendant retained interest in and maintained continuing participation in co-conspirator's venture, where by advancing cocaine on credit, and insuring that co-conspirator could perform his obligations, defendant actively became partner in venture and where evidence supported finding that defendant was drug dealer who agreed to credit arrangement with co-conspirator, another drug dealer, in hope of promoting future dealings, acts evinced agreement between and concert of action by parties sufficient to prove conspiracy beyond reasonable doubt. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Evidence held sufficient to support conviction of conspiracy to sell, give, or distribute cocaine in violation of this section and § 18.2-256 . Hodge v. Commonwealth, 7 Va. App. 351, 374 S.E.2d 76 (1988).

The Commonwealth's evidence was competent, not inherently incredible and sufficient to prove beyond a reasonable doubt that the defendant and a third party had a pre-offense agreement to distribute cocaine and engaged in a conspiracy to distribute cocaine, where the co-conspirator flagged down an unmarked police vehicle containing undercover officers, inquired as to the occupants' interest in purchasing drugs, told the driver to drive down the street to a known drug area, then instructed the driver to return to their original location and told the driver to pull up by the defendant and where, without prompting from the co-conspirator, the defendant walked over to the vehicle and asked the co-conspirator what the occupants of the vehicle wanted and the co-conspirator told the defendant the type and quantity of drug; unless there was a prearranged agreement to sell drugs, there was no reason for the defendant to approach the vehicle and to spontaneously ask the co-conspirator what the occupants wanted. Taylor v. Commonwealth, No. 1728-00-1, 2001 Va. App. LEXIS 310 (Ct. of Appeals June 5, 2001).

Defendant's convictions for conspiracy to distribute cocaine under §§ 18.2-248 and 18.2-256 were affirmed; the evidence established that defendant's associate and defendant conspired to distribute cocaine to an undercover police officer, and the jury could reasonably infer from a detective's testimony and use of the term "employ" that there was an agreement between the associate and defendant that the associate would provide certain services for defendant. Walker v. Commonwealth,, 2006 Va. App. LEXIS 491 (Oct. 31, 2006).

Sufficient evidence supported defendant's conviction for conspiracy to possess cocaine with intent to distribute, as the close timeframe and coordinated efforts of two individuals and defendant supported the reasonable inference that one of the individuals and defendant had a prearranged plan to sell cocaine; that individual's attempt to conceal the arrangement to sell cocaine undermined the individual's testimony that the individual was merely present during the transaction. Miles v. Commonwealth,, 2011 Va. App. LEXIS 283 (Sept. 20, 2011).

Circumstantial evidence supported defendant's convictions for conspiracy to distribute drugs in violation of §§ 18.2-256 and 18.2-248 because a reasonable fact-finder could conclude that defendant and her boyfriend agreed to meet an informant in order to sell him cocaine and that defendant's part in the conspiracy was neither innocent nor inadvertent; On two separate occasions defendant drove her boyfriend to the same parking lot, where the boyfriend made a quick transaction with the informant, who had purchased drugs from him in the past. Foster v. Commonwealth,, 2012 Va. App. LEXIS 310 (Oct. 2, 2012).

Trial court did not err in denying defendant's motion to strike the evidence and in convicting him of conspiracy to distribute drugs because, while defendant's friend told him to drive to a specific convenience store, he drove to the rear of the store where a police informant was sitting, he never put the vehicle in park and never took his foot off of the brake pedal, the informant approached defendant's side of the vehicle, defendant drove out of the parking lot immediately after the encounter, which lasted approximately 10 seconds, an "owe sheet" (record of drug transactions) was located in plain view on the center console in front of the gear shift, and defendant's self-serving statements were little more than lying to conceal his guilt. Livingston v. Commonwealth, No. 1933-14-1, 2016 Va. App. LEXIS 100 (Ct. of Appeals Mar. 29, 2016).

Trial court properly convicted defendant of possessing a controlled substance with the intent to distribute and conspiring to distribute a controlled substance because, while he stated that he had consumed all of the missing morphine (50 pills), neither defendant nor his brother appeared to be under the influence of any drugs, an expert established that such a consumption pattern was inconsistent with personal use, defendant's inconsistent stories of what had happened to the missing morphine were in direct conflict, defendant and his brother lied to the police about their activities, and a note in defendant's wallet and his brother's notebook indicated a familiarity with the illegal prescription drug trade. Cahoon v. Commonwealth, No. 0781-15-2, 2016 Va. App. LEXIS 95 (Ct. of Appeals Mar. 29, 2016).

Trial court did not err by denying defendant's motion to strike the charge of conspiracy to distribute a controlled substance because it could have concluded from the evidence that defendant and her acquaintance conspired to distribute methamphetamine in exchange for a car, as the acquaintance knew of defendant's intent to do so, defendant cooperate in the venture and expected to share in the proceeds by becoming a co-owner of the car until she could pay the acquaintance back, they developed a detailed plan that defendant would drive them to the predetermined location, hold the methamphetamine on her person, and if the acquaintance got robbed she would drive away but return later to pick him up. Richard v. Commonwealth, 72 Va. App. 598, 851 S.E.2d 68, 2020 Va. App. LEXIS 295 (2020).

Evidence of conspiracy held insufficient. - In prosecution for violation of this section and § 18.2-256 , sufficient evidence was not presented to establish prima facie case of conspiracy where Commonwealth introduced no evidence, direct or circumstantial, to prove existence of agreement between defendant and unidentified man apart from statements made by unidentified man, and where Commonwealth's independent evidence of conspiracy consisted merely of testimony that two men met on street corner for 15 to 20 seconds and their hands came together in air for 3 to 5 seconds. Poole v. Commonwealth, 7 Va. App. 510, 375 S.E.2d 371 (1988).

Evidence was insufficient to prove that defendant agreed to distribute cocaine with any other individual in a car with defendant because the evidence failed to demonstrate anything beyond the fact that defendant was the front seat passenger in a car containing cocaine and a gun in a glove box, packaged into small baggies indicating distribution, with another occupant having a substantial sum of cash in divided denominations. However, there was a lack of any evidence establishing an agreement between the occupants of the car. Carter v. Commonwealth, No. 1445-15-2, 2016 Va. App. LEXIS 193 (Ct. of Appeals July 12, 2016).

Evidence was sufficient to establish that defendant was principal in the second degree. - Evidence was sufficient to support defendant's conviction as a principal in the second degree in the distribution of cocaine, even though defendant was not actually present when the cocaine was transferred by another, and defendant was a couple hundred yards away, as actual presence at the scene of the commission of a crime was not required to convict an accused as a principal in the second degree, and defendant, in the instant case, was constructively present at the crime's commission and was aiding and abetting by helping in the commission of the crime, under § 18.2-18 . Paige v. Commonwealth, No. 1444-02-4, 2003 Va. App. LEXIS 492 (Ct. of Appeals Sept. 30, 2003).

Defendant's convictions for distribution of cocaine and conspiracy to distribute cocaine were affirmed because sufficient evidence, in the form of the intermediaries testimony and telephone logs, supported the jury's finding that defendant was guilty of distribution of cocaine and conspiracy to distribute cocaine through sales by the intermediaries to an undercover officer on defendant's behalf. Franco v. Commonwealth, No. 0222-03-4, 2004 Va. App. LEXIS 73 (Ct. of Appeals Feb. 10, 2004).

Possession and assisting a person to sell does not prove conspiracy. - While certain overt conduct may be sufficient to prove the existence of an agreement, simply proving the act of constructively possessing cocaine and assisting a person to sell it is not sufficient to establish a conspiracy. The evidence must show an agreement between the parties, and that is not shown by proving that one party decides or undertakes to assist the other. Woodley v. Commonwealth, No. 2122-93-2 (Ct. of Appeals Feb. 21, 1995).

Knowledge of nature of drug. - Defendant's conviction for possession of ecstasy with intent to distribute in violation of § 18.2-248 was affirmed because evidence of defendant's acts, statements, and conduct established his knowledge of the nature and character of the drug. Robinson v. Commonwealth,, 2010 Va. App. LEXIS 21 (Jan. 19, 2010).

CIRCUIT COURT OPINIONS

Entrapment. - Drug offense was conceived and planned by police, not defendant, and his initial reluctance to help the officer was overcome by his sympathy for the officer's situation; defendant was not predisposed to commit the offense of distribution of a schedule I or II controlled substance, entrapment was proven, and the charges were to be dismissed. Commonwealth v. Allen, 94 Va. Cir. 278, 2016 Va. Cir. LEXIS 132 (Norfolk Sept. 13, 2016).

Indictment found to be insufficient. - As the indictment alleged obstruction of witnesses related to charges under § 18.2-248 , but did not allege that the obstruction was done by threat of bodily harm or force, but was instead allegedly done by improper access to a Division of Motor Vehicles computer system, the indictment did not allege a violation of subsection C of § 18.2-460 and the court quashed the indictments in those cases, subject to amendment first if the Commonwealth so chose. In re Snow, 99 Va. Cir. 484, 2018 Va. Cir. LEXIS 142 (Orange County Aug. 28, 2018).

Motion to suppress evidence. - Police officer who saw defendant's vehicle weaving in traffic and make a right-hand turn without using a turn signal had reason to believe that defendant was driving under the influence, and the officer lawfully seized drugs which the officer saw in defendant's vehicle after the officer stopped defendant's vehicle. Commonwealth v. Brock,, 2002 Va. Cir. LEXIS 270 (Newport News July 22, 2002).

Because a reasonable person in defendant's position would have believed that after an officer's explanation regarding defendant's failure to possess a city and county tax sticker, and after defendant's registration and license were cleared the traffic stop was over and defendant was free to leave, defendant's consent to search thereafter was involuntary, warranting suppression of the marijuana and cocaine seized from his person. Commonwealth v. Cooper, 68 Va. Cir. 515, 2004 Va. Cir. LEXIS 367 (Charlottesville Dec. 6, 2004).

Granting of defendant's motion to suppress charges under § 18.2-248 was appropriate because the Commonwealth failed to prove that defendant's consent was voluntary. In view of a lieutenant's accusation that defendant was transporting illegal drugs in her vehicle, no reasonable person in defendant's position would have felt free to withhold consent. Commonwealth v. Johnston, 82 Va. Cir. 381, 2011 Va. Cir. LEXIS 196 (Martinsville Mar. 22, 2011).

Rejection of plea agreement. - Defendant's written plea agreement to a suspended $100 fine as the ultimate sentence for possession with intent to sell, give or distribute 50 pounds of marijuana and 400 cartridges of hashish oil was rejected because defendant's offenses were still considered serious drug charges in Virginia; neither the Commonwealth's attorney nor defense counsel advanced any argument as to how a suspended $100 fine for the serious charges of possession with intent to distribute would deter others from like criminality; and the sentencing guidelines for defendant called for a midrange of active incarceration of one year and seven months, with at least the remainder of the minimum statutory sentence of five years being suspended with a period of probation. Commonwealth v. Hartley,, 2020 Va. Cir. LEXIS 203 (Arlington County Sept. 8, 2020).

Imposition of enhanced punishment. - Enhanced punishment was properly applied for multiple convictions on separate offenses in a simultaneous prosecution, because by sufficiently establishing each offense, the Commonwealth necessarily proved the second or subsequent offense for purposes of subsection C of this section. Commonwealth v. Sanderson, 55 Va. Cir. 135, 2001 Va. Cir. LEXIS 255 (Norfolk 2001).

OPINIONS OF THE ATTORNEY GENERAL

Food stamp benefits. - The federal Personal Responsibility and Work Opportunity Reconciliation Act encompasses felony convictions for manufacturing controlled substances or for obtaining controlled substances by false pretenses; those persons with such convictions are disqualified from receiving food stamp benefits because § 63.2-505.2 does not exempt such convictions from the application of the federal law. See opinion of Attorney General to The Honorable Gerald E. Mabe, II, Commonwealth's Attorney, 11-112, 2012 Va. AG LEXIS 5 (1/27/12).

§ 18.2-248.01. Transporting controlled substances into the Commonwealth; penalty.

Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.) it is unlawful for any person to transport into the Commonwealth by any means with intent to sell or distribute one ounce or more of cocaine, coca leaves or any salt, compound, derivative or preparation thereof as described in Schedule II of the Drug Control Act or one ounce or more of any other Schedule I or II controlled substance or five or more pounds of marijuana. A violation of this section shall constitute a separate and distinct felony. Upon conviction, the person shall be sentenced to not less than five years nor more than 40 years imprisonment, three years of which shall be a mandatory minimum term of imprisonment, and a fine not to exceed $1,000,000. A second or subsequent conviction hereunder shall be punishable by a mandatory minimum term of imprisonment of 10 years, which shall be served consecutively with any other sentence.

(1992, c. 723; 2000, cc. 1020, 1041; 2004, c. 461.)

The 2000 amendments. - The 2000 amendment by c. 1041 rewrote the section.

The 2004 amendments. - The 2004 amendment by c. 461 twice substituted "mandatory minimum" for "minimum, mandatory," deleted "shall not be suspended in whole or in part and" preceding "shall be served," and made minor stylistic changes.

CASE NOTES

Constitutionality. - This section does not violate the Commerce Clause by prohibiting the transportation of certain controlled substances either into or through the Commonwealth. Seke v. Commonwealth, 24 Va. App. 318, 482 S.E.2d 88 (1997).

The plain and obvious meaning of § 18.2-248 and this section is to prohibit the possession or transportation of illegal substances in Virginia by a person whose intent is to distribute them anywhere. Seke v. Commonwealth, 24 Va. App. 318, 482 S.E.2d 88 (1997).

Venue. - Venue properly exists in each jurisdiction through which the statutory minimum quantity of a controlled substance was transported but not in those jurisdictions where less than the required amount was transported; venue was, accordingly, not appropriate in the city in which a package containing one gram of cocaine was delivered to the defendant where the package in question had contained a much larger quantity when it had been transported to another city but all but one gram had been removed prior to the controlled delivery to the defendant. Green v. Commonwealth, 32 Va. App. 438, 528 S.E.2d 187, 2000 Va. App. LEXIS 335 (2000).

No geographical limitation on intent element. - The phrase "intent . . . to distribute" in both § 18.2-248 and this section contains no geographical limitation. The Commonwealth is not required to prove the place where a defendant intends to distribute illegal substances in order to obtain a conviction under either section of the Code of Virginia. Seke v. Commonwealth, 24 Va. App. 318, 482 S.E.2d 88 (1997).

Virginia not required to be final destination. - The Commonwealth is not required to prove that a defendant's intended final destination is Virginia in order to obtain a conviction under this section. Instead, a violation of this section is proved when a person enters the Commonwealth while transporting any of the illegal substances set forth in this section. Seke v. Commonwealth, 24 Va. App. 318, 482 S.E.2d 88 (1997).

Defendant's convictions for transporting into the Commonwealth more than one ounce of heroin with intent to distribute and for conspiring to transport into the Commonwealth more than one ounce of heroin with intent to distribute, after heroin was found in a bag during a consensual search of the defendant's railroad sleeper car room and the defendant confessed to transporting the heroin for another person from Florida to New York, were affirmed as the trial court did not err in denying the defendant's motion to dismiss on the ground that he had already been prosecuted for the same conduct and acts in federal court, in denying defendant's motion to suppress on the grounds he was illegally seized in violation of his Fourth Amendment rights, and in denying defendant's motion to exclude evidence previously suppressed in federal court under the doctrines of res judicata and collateral estoppel. Londono v. Commonwealth, 40 Va. App. 377, 579 S.E.2d 641, 2003 Va. App. LEXIS 257 (2003).

Importation shown by circumstantial evidence. - Evidence was sufficient to support conviction for importing narcotics into Virginia with intent to distribute, in violation of § 18.2-248.01 , where defendant was driving and owned car in which the marijuana was found, as possession could be actual or constructive; when stopped by a trooper, defendant's vehicle was traveling southbound away from Maryland and toward Norfolk, Virginia, and defendant twice informed the trooper that defendant had just come from Maryland, which constituted circumstantial evidence relating to the entry of the marijuana into Virginia and defendant's role in that entry, and such evidence reasonably supported a determination that when defendant was stopped, defendant had just transported the drugs from Maryland into Virginia. Kelly v. Commonwealth, 41 Va. App. 250, 584 S.E.2d 444, 2003 Va. App. LEXIS 419 (2003).

Receiving a package through the mail was sufficient for conviction. - Motion to strike was properly denied because there was sufficient evidence to find that defendant participated as a principal in the second degree in transporting the drugs into the Commonwealth with intent to distribute. Defendant was constructively present at the crime's commission and he committed overt acts in furtherance of the offense because he received the package containing four pounds of marijuana from a mail box company. Washington v. Commonwealth, 43 Va. App. 291, 597 S.E.2d 256, 2004 Va. App. LEXIS 268 (2004).

Evidence was sufficient to prove defendant's connection with a package left on his front stoop such that when he began to open the package, his act of accepting delivery of the package was part of the parcel's transportation for purposes of sustaining his conviction for transporting more than five pounds of marijuana into the Commonwealth with intent to distribute in violation of § 18.2-248.01 . Ford v. Commonwealth, 55 Va. App. 598, 687 S.E.2d 551, 2010 Va. App. LEXIS 27 (2010).

Commonwealth not required to prove purity of substance. - The language of the statute mandates that the quantity of the mixture - the "compound" or "preparation" - rather than the purity of the cocaine in the mixture be used to determine the weight of the substance. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000), aff'd, 262 Va. 196 , 547 S.E.2d 899 (2001).

Proof of weight. - Commonwealth was not required to prove purity of controlled substance in order to establish its weight. Shackleford v. Commonwealth, 32 Va. App. 307, 528 S.E.2d 123, 2000 Va. App. LEXIS 233 (2000).

Quantity of mixture, not amount of pure cocaine, determines weight. - The plain terms of this section mandate that the quantity of the mixture - the "compound" or "preparation" - rather than the purity of the cocaine in the mixture be used to determine the weight of the substance transported into the Commonwealth. Shackleford v. Commonwealth, 262 Va. 196 , 547 S.E.2d 899, 2001 Va. LEXIS 78 (2001).

Possession not lesser included offense of transporting. - The offense of possessing a controlled substance is not a lesser included offense of transporting a controlled substance; a defendant may thus be convicted both of transporting marijuana under this section and of possessing marijuana under § 18.2-248 . Bolden v. Commonwealth, No. 1951-00-4, 2001 Va. App. LEXIS 269 (Ct. of Appeals May 22, 2001), rev'd on other grounds, 263 Va. 465 , 561 S.E.2d 701, 2002 Va. LEXIS 52 (2002).

Evidence sufficient. - Conviction for transporting ecstasy into the Commonwealth with intent to distribute was supported by evidence that defendant served as the "muscle" or "lookout" in a drug transportation scheme, that a drug notebook contained an entry associating defendant to a drug transaction by its designation, and by Western Union receipts for cash wired to defendant in New York, allowing a jury to infer that defendant was in New York to arrange for the purchase of the ecstasy for transportation to Virginia. Merritt v. Commonwealth, 57 Va. App. 542, 704 S.E.2d 158, 2011 Va. App. LEXIS 25 (2011).

Evidence was sufficient to support defendant's conviction for transporting one or more ounces of cocaine into the Commonwealth of Virginia because (1) when the police intercepted a package, which they suspected of containing contraband, at a FedEx distribution facility, a drug dog indicated the presence of illegal drugs in the package; (2) the police obtained a search warrant, opened the package, and discovered cocaine inside; (3) the police placed a small amount of the cocaine inside a new package and transferred the air bill that indicated the recipient and return addresses onto the new package; (4) a police officer disguised as a FedEx employee delivered the package to defendant's apartment; (5) defendant identified the recipient as defendant's cousin and accepted the package on behalf of the cousin; and (6) not long after, the police executed a search warrant and found defendant, the unopened package, and drug paraphernalia in the apartment. Thus, the evidence was sufficient to prove that defendant knew the unopened FedEx box contained cocaine, that defendant had arranged for a second person in another state to sell defendant cocaine, and that defendant was a principal in the second degree to the transportation of cocaine into the Commonwealth of Virginia. Clark v. Commonwealth,, 2011 Va. App. LEXIS 219 (July 5, 2011).

Conviction for transporting five or more pounds of marijuana into Virginia with intent to distribute was supported by evidence defendant had driven from Maryland into Virginia on the day he was stopped by the police; defendant rented a vehicle in Maryland following a trip to Boston, and was heading toward his home in Florida; defendant had proceeded south through the length of the Commonwealth and nearly reached the border with North Carolina; and the quantity of marijuana was found concealed in suitcases with routing tags indicating the bags had traveled to Boston. Jhurilal v. Commonwealth,, 2011 Va. App. LEXIS 302 (Oct. 4, 2011).

Insufficient evidence. - Defendant's conviction for transporting into the Commonwealth one ounce or more of a Schedule I or II controlled substance with the intent to distribute was not supported by sufficient evidence where any inference that defendant shared the criminal intent of his companions to import ecstasy into the Commonwealth was based upon sheer speculation and certainly did not rise to the level of proof beyond a reasonable doubt. Merritt v. Commonwealth, 55 Va. App. 719, 689 S.E.2d 757, 2010 Va. App. LEXIS 81 (2010).

§ 18.2-248.02. Allowing a minor or incapacitated person to be present during manufacture or attempted manufacture of methamphetamine prohibited; penalties.

Any person 18 years of age or older who knowingly allows (i) a minor under the age of 15, (ii) a minor 15 years of age or older with whom he maintains a custodial relationship, including but not limited to as a parent, step-parent, grandparent, step-grandparent, or who stands in loco parentis with respect to such minor, or (iii) a mentally incapacitated or physically helpless person of any age, to be present in the same dwelling, apartment as defined by § 55.1-2000 , unit of a hotel as defined in § 35.1-1 , garage, shed, or vehicle during the manufacture or attempted manufacture of methamphetamine as prohibited by subsection C1 of § 18.2-248 is guilty of a felony punishable by imprisonment for not less than 10 nor more than 40 years. This penalty shall be in addition to and served consecutively with any other sentence.

(2005, cc. 923, 941; 2013, c. 743.)

Editor's note. - Acts 2005, cc. 923 and 941, cl. 4, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2013, c. 743, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in a general appropriation act passed by the 2013 Session of the General Assembly, which becomes law."

Acts 2013, c. 743, cl. 4 provides: "That the General Assembly determines that the requirements of the third enactment of this act have been met."

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-2000" for "55-79.2."

The 2013 amendments. - The 2013 amendment by c. 743, in the first sentence, inserted "knowingly allows (i) a minor under the age of 15, (ii) a minor 15 years of age or older with whom he," deleted "over a child under the age of 18" following "custodial relationship," and substituted "such minor, or (iii) a mentally incapacitated or physically helpless person of any age, to be present" for "such child, and who knowingly allows that child to be present."

§ 18.2-248.03. Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute methamphetamine; penalty.

  1. Notwithstanding any other provision of law, any person who manufactures, sells, gives, distributes, or possesses with intent to manufacture, sell, give, or distribute 28 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers is guilty of a felony punishable by a fine of not more than $500,000 and imprisonment for not less than five nor more than 40 years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence.
  2. Notwithstanding any other provision of law, any person who manufactures, sells, gives, distributes, or possesses with intent to manufacture, sell, give, or distribute 227 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers is guilty of a felony punishable by a fine of not more than $1 million and imprisonment for not less than five years nor more than life, five years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence.

    (2008, cc. 858, 874.)

Cross references. - As to reimbursement for methamphetamine lab cleanup costs, see § 15.2-1716.2 .

CASE NOTES

Multiple counts. - As defendant's convictions of four counts of manufacturing methamphetamine were based on four separate and distinct acts, there was no double jeopardy violation. Ragan v. Commonwealth, No. 1429-12-3, 2013 Va. App. LEXIS 338 (Nov. 19, 2013).

Evidence sufficient. - Evidence was sufficient to convict defendant of four counts of manufacturing methamphetamine, as it established that on four separate occasions, using the "one-pot" method, she manufactured 28 grams or more of a substance containing a detectable amount of methamphetamine. Ragan v. Commonwealth, No. 1429-12-3, 2013 Va. App. LEXIS 338 (Nov. 19, 2013).

Rational fact finder could believe the incriminating interpretation of the evidence and that the Commonwealth met its burden because defendant's inculpatory statement was not the only evidence she participated in the manufacture of methamphetamine. Denson v. Commonwealth, No. 1971-16-3, 2018 Va. App. LEXIS 80 (Mar. 27, 2018).

Trial court did not err in denying defendant's motion to strike evidence of manufacturing methamphetamine on the ground of insufficient evidence she was responsible for the manufacture as an accessory before the fact because having found she lied about her knowledge of the "one-pot" reaction vessel for manufacturing methamphetamine, it could infer her involvement; a rational trier of fact could have found defendant aided and abetted an accomplice's manufacture by buying him pseudoephedrine. Denson v. Commonwealth, No. 1971-16-3, 2018 Va. App. LEXIS 80 (Mar. 27, 2018).

§ 18.2-248.04. Methamphetamine Cleanup Fund established.

There is hereby created in the state treasury a special nonreverting fund to be known as the Methamphetamine Cleanup Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All moneys assessed against a person convicted of manufacture of methamphetamine as methamphetamine cleanup funds pursuant to subsection C1 of § 18.2-248 shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used solely for the purposes of restoration to an environmentally sound state sites used for the criminal manufacture of methamphetamine. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by any agency of the Commonwealth, law-enforcement agency, or locality with the responsibility for and engaged in a specific methamphetamine site cleanup.

(2012, c. 219.)

§ 18.2-248.1. Penalties for sale, gift, distribution or possession with intent to sell, give or distribute marijuana.

Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), it is unlawful for any person to sell, give, distribute or possess with intent to sell, give, or distribute marijuana.

  1. Any person who violates this section with respect to:
    1. Not more than one ounce of marijuana is guilty of a Class 1 misdemeanor;
    2. More than one ounce but not more than five pounds of marijuana is guilty of a Class 5 felony;
    3. More than five pounds of marijuana is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years.

      There shall be a rebuttable presumption that a person who possesses no more than one ounce of marijuana possesses it for personal use.

      If such person proves that he gave, distributed, or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana, he is guilty of a Class 1 misdemeanor.

  2. Any person who gives, distributes, or possesses marijuana as an accommodation and not with intent to profit thereby, to an inmate of a state or local correctional facility, as defined in § 53.1-1 , or in the custody of an employee thereof is guilty of a Class 4 felony.
  3. Any person who manufactures marijuana, or possesses marijuana with the intent to manufacture such substance, not for his own use is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000.
  4. When a person is convicted of a third or subsequent felony offense under this section and it is alleged in the warrant, indictment or information that he has been before convicted of two or more felony offenses under this section or of substantially similar offenses in any other jurisdiction which offenses would be felonies if committed in the Commonwealth, and such prior convictions occurred before the date of the offense alleged in the warrant, indictment, or information, he shall be sentenced to imprisonment for life or for any period not less than five years, five years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence and he shall be fined not more than $500,000.

    (1979, c. 435; 1986, c. 467; 2000, cc. 819, 1020, 1041; 2004, c. 461; 2006, cc. 697, 759; 2020, cc. 1285, 1286.)

Cross references. - As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

As to certification for use of cannabis oil to treat any diagnosed condition or disease determined by the practitioner to benefit from such use, see § 54.1-3408.3 .

Editor's note. - Acts 2000, c. 819, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 2000 amendments. - The 2000 amendment by c. 819, in subsection (b), substituted "state or local correctional facility as defined in § 53.1-1 " for "penal institution as defined in § 53-19.18" and "Class 4" for "Class 5."

The 2000 amendments by cc. 1020 and 1041 are identical, and substituted "state or local correctional facility as defined in § 53.1-1 " for "penal institution as defined in § 53-19.18" in subdivision (b); and added subdivision (d).

The 2004 amendments. - The 2004 amendment by c. 461, in subdivision (d), substituted "mandatory minimum" for "minimum, mandatory," deleted "not to be suspended in whole or in part and" preceding "to be served," inserted "he" near the end, and made minor stylistic changes.

The 2006 amendments. - The 2006 amendments by cc. 697 and 759 are identical, and substituted "five years" for "three years" in subdivision (d).

The 2020 amendments. - The 2020 amendments by cc. 1285 and 1286 are identical, and substituted "( § 54.1-3400 et seq.)" for "Chapter 34 of Title 54.1" in the first paragraph; in subdivisions (a) (1) and (2), substituted "one ounce" for "one-half ounce"; inserted the next to last paragraph in subdivision (a); and made stylistic changes.

Law review. - For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

CASE NOTES

I. GENERAL CONSIDERATIONS.

Constitutionality. - Since there is no fundamental right to the private use, possession or trade in marijuana or cocaine, and since governments have the power to enact and enforce sumptuary laws in this area, § 18.2-248 , now amended and cited as this section and § 18.2-250 do not violate the Ninth and Tenth Amendments to the United States Constitution. Wolkind v. Selph, 495 F. Supp. 507 (E.D. Va. 1980), aff'd, 649 F.2d 865 (4th Cir. 1981).

Private possession of marijuana is not a fundamental constitutional right and the private possession of cocaine is not a fundamental constitutional right, accordingly, Virginia's statutory framework establishing criminal penalties for the possession with the intent to distribute marijuana and for the simple possession of cocaine need bear only a rational relationship to a legitimate interest of the Commonwealth. Wolkind v. Selph, 495 F. Supp. 507 (E.D. Va. 1980), aff'd, 649 F.2d 865 (4th Cir. 1981).

The statutory punishment for possession of marijuana with the intent to distribute is not irrational and does not violate the due process and equal protection provisions of the Fourteenth Amendment. Wolkind v. Selph, 495 F. Supp. 507 (E.D. Va. 1980), aff'd, 649 F.2d 865 (4th Cir. 1981).

Constitutionality of prior provision relating to accommodation distribution of marijuana. - The portion of § 18.2-248 , as it stood prior to the 1979 amendment and prior to the enactment of this section, which related to a penalty for giving, distributing or possessing marijuana as an accommodation was not in violation of the decision in Mullaney v. Wilbur , 421 U.S. 684, 95 S. Ct. 1881, 49 L. Ed. 2d 508 (1975), nor was it unconstitutionally vague or a violation of due process. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

Applicability to offenses committed prior to effective date. - Penalties provided by this section could not be applied to offenses of distribution and sale of marijuana committed prior to the effective date of this section and prosecuted under § 18.2-248 , though trial and sentencing occurred after that date, absent election by the Commonwealth to proceed under this section and the defendants' consent to such an election. Ruplenas v. Commonwealth, 221 Va. 972 , 275 S.E.2d 628 (1981).

Predecessor to section created single offense. - Section 18.2-248 A, as it stood prior to the 1979 amendment and prior to the enactment of this section, created only a single offense, that being the unlawful manufacture, sale, transfer, distribution or possession of certain controlled drugs. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

And accommodation provisions related only to punishment. - The provisions of § 18.2-248 A, as it stood prior to the 1979 amendment and the enactment of this section, which dealt with the reduced penalty contingent upon proof of an accommodation gift, distribution or possession of marijuana, operated only to mitigate the degree of criminality or punishment, rather than to create two different substantive offenses. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

Nature of illegal substance need not be proved by direct evidence. - The nature of an illegal substance transferred can be demonstrated by circumstantial evidence and the types of circumstantial evidence that may be considered include the following: Evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that the transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence. Bareford v. Commonwealth, No. 0564-00-2, 2001 Va. App. LEXIS 155 (Ct. of Appeals Mar. 27, 2001).

Defendant could be retried for same or greater offense upon vacation of conviction. - When the defendant appealed her misdemeanor possession conviction to the circuit court, as she had a right to do under § 16.1-132, her conviction was vacated; therefore, the defendant could be retried for the same or a greater offense without double jeopardy being violated. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

The acceptance of the guilty plea to misdemeanor possession did not constitute an inferential finding of not guilty of the greater charge of felony possession. Consequently, the defendant was not impliedly acquitted of felony possession, and she could be retried for felony possession unless some other double jeopardy principle barred reprosecution. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

"Manufacture" and "production" used synonymously. - With respect to violations of this section, the words manufacture and production are used synonymously. Manufacture, as defined by § 54.1-3401 , "means the production, preparation, propagation, compounding, conversion or processing of any item." Section 54.1-3401 states that " 'production' includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance or marijuana." By these definitions, the legislature has clearly expressed its intent that the term manufacturing includes the planting, cultivating, growing, or harvesting of marijuana. Although the definition of "manufacture" as used in the context of the manufacture of marijuana may not precisely comport with the present day lay meaning of the term, that does not give the appellate court license to find error in the trial court's instruction. The court's function is to interpret the legislature's meaning of words in statutes. King v. Commonwealth, 2 Va. App. 708, 347 S.E.2d 530 (1986).

Definition of "manufacture" in Drug Control Act still relevant. - The offense of manufacturing marijuana was once a part of the Drug Control Act, § 54-524.1 et seq. (see § 54.1-3400 et seq.). In 1975, marijuana related offenses were recodified in Title 18.2; however, the Drug Control Act's definition of "manufacture" continues to be relevant to marijuana-related offenses. King v. Commonwealth, 2 Va. App. 708, 347 S.E.2d 530 (1986).

Instruction as to definition of "manufacture" in § 54.1-3401 . - Although defendant was convicted of a violation of subdivision (c) of this section, and the term "manufacture" is not defined in that title, the court did not err in giving the jury the definition of "manufacture" contained in § 54.1-3401 of the Drug Control Act. King v. Commonwealth, 2 Va. App. 708, 347 S.E.2d 530 (1986).

Ownership, specific time of possession not mandated. - This section does not require that the accused have title to the contraband, only possession; also, the duration of the possession is immaterial. Kilfeather v. Commonwealth, No. 0494-90-2 (Ct. of Appeals June 16, 1992).

The possession need not be exclusive. Ekhart v. Commonwealth, 222 Va. 447 , 281 S.E.2d 853 (1981).

Possession need not be actual, exclusive, or lengthy in order to support a conviction; instead, this section criminalizes constructive or joint possession of illegal drugs of any duration. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

To convict a person of possession of illegal drugs the Commonwealth must prove that the defendant was aware of the presence and character of the drugs and that he intentionally and consciously possessed them. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Proof of constructive possession. - Constructive possession may be shown by establishing that the marijuana was known to and subject to the dominion and control of the accused. Eckhart v. Commonwealth, 222 Va. 447 , 281 S.E.2d 853 (1981).

Constructive possession of illegal drugs may be proven by evidence of acts, statements or conduct of the accused or other facts or circumstances which tend to show that the accused was aware of both the presence and character of the substance and that it was subject to his dominion and control. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Evidence was sufficient to support conviction for possession of marijuana with intent to distribute, in violation of § 18.2-248.1 , where defendant was driving and owned car in which the marijuana was found, as possession could be actual or constructive. Kelly v. Commonwealth, 41 Va. App. 250, 584 S.E.2d 444, 2003 Va. App. LEXIS 419 (2003).

Defendant's constructive possession of marijuana found in his residence was sufficiently shown by his request for money and guns, made after original charges were nolle prossed, which were taken out of a locked gun case in his home from where marijuana was also found, and a reasonable inference that flowed from this statement was that defendant claimed ownership of the same; further, the trial court was entitled to reject defendant's alternative theories as to the placement of the drugs in the home by his aunt's sister, out of her disdain for him. Cason v. Commonwealth, No. 1433-04-2, 2005 Va. App. LEXIS 137 (Ct. of Appeals Apr. 5, 2005).

Proximity insufficient to show possession. - Knowledge of the presence and character of the controlled substance may be shown by evidence of the acts, statements or conduct of the accused. Mere proximity to the controlled substance, however, is insufficient to establish possession. Eckhart v. Commonwealth, 222 Va. 447 , 281 S.E.2d 853 (1981).

Neither close proximity to illegal drugs nor occupancy of an automobile in which they are found, standing alone, is sufficient to prove possession of such drugs; however, both are factors that may be considered in determining whether possession occurred in a particular case. Wells v. Commonwealth, 32 Va. App. 775, 531 S.E.2d 16, 2000 Va. App. LEXIS 498 (2000).

Probative value of occupancy of residence where marijuana found. - While there is no presumption of knowing or intentional possession of the marijuana from a defendant's occupancy of a residence, her occupancy of the premises as a cotenant is a factor to be considered with other evidence in determining whether she had constructive possession. Eckhart v. Commonwealth, 222 Va. 447 , 281 S.E.2d 853 (1981).

Where marijuana was found in defendant's bedroom underneath his bed, and his fingerprints were found on two of the plastic bags containing the marijuana, the evidence was sufficient to convict defendant of possession of marijuana. Wright v. Commonwealth, 2 Va. App. 743, 348 S.E.2d 9 (1986).

Evidence that just prior to police entry, defendant was sitting in his kitchen where marijuana was located, in conjunction with defendant's admission that the drugs belonged to him, supported a finding that the marijuana was known to him and subject to his control. Hambury v. Commonwealth, 3 Va. App. 435, 350 S.E.2d 524 (1986).

Evidence proved that defendant conspired to purchase more than five pounds of marijuana where evidence showed that she joined with another defendant to pool their resources to purchase eleven pounds of marijuana, and that she was only to receive an amount less than the whole when they made the later division of the marijuana did not change the nature of the initial agreement to buy more than five pounds. Estrada v. Commonwealth, No. 1777-92-1 (Ct. of Appeals July 12, 1994).

Proof of agreement to distribute. - Where the indictment charged defendant with a conspiracy to distribute more than one-half ounce of marijuana, one of the felonies defined in this section, the Commonwealth was required to prove an agreement to distribute a proscribed substance and to prove both the identity and the quantity of the substance contemplated by the agreement. Graves v. Commonwealth, 234 Va. 578 , 363 S.E.2d 705 (1988).

Packaging of substance to be considered when evidence of intent to distribute is circumstantial. - The method of packaging of the controlled substance is a factor which may be considered in determining the purpose for which it is being held. Monroe v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).

Even if the substance is packaged for distribution, there must be additional evidence to preclude the inference that it was purchased in the packaged form for personal use rather than being held in that fashion for distribution. Monroe v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).

Presence of unusual amount of money, suggesting profit from sales, is a circumstance that negates an inference of possession for personal use. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Quantity possessed to be considered when evidence of intent to distribute is circumstantial. - When the proof of intent to distribute narcotics rests upon circumstantial evidence, the quantity which the defendant possesses is a circumstance to be considered. Indeed, quantity, alone, may be sufficient to establish such intent if it is greater than the supply ordinarily possessed for one's personal use. However, possession of a small quantity creates an inference that the drug was for the personal use of the defendant. Dukes v. Commonwealth, 227 Va. 119 , 313 S.E.2d 382 (1984).

The quantity of a controlled substance is a factor which may indicate the purpose for which it is possessed. Possession of a small quantity creates an inference that the drug is for personal use. On the other hand, possession of a quantity greater than that ordinarily possessed for one's personal use may be sufficient to establish an intent to distribute. Monroe v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).

Possession of a quantity greater than that ordinarily possessed for one's personal use may be sufficient to establish an intent to distribute it.But see Young v. Commonwealth, 275 Va. 587 , 659 S.E.2d 308, 2008 Va. LEXIS 54 (2008), which overruled the holding in Josephs to the extent that it can be read to mean that mere possession, without more, can prove guilty knowledge Josephs v. Commonwealth, 10 Va. App. 87, 390 S.E.2d 491 (1990).

The evidence of the presence of growing marijuana plants may have precluded an inference that the smaller bags of marijuana were purchased in that form for personal use rather than being held in that manner to facilitate distribution. The supervised growth of many marijuana plants indicates a continuing enterprise in the production and distribution of marijuana. Monroe v. Commonwealth, 4 Va. App. 154, 355 S.E.2d 336 (1987).

Permissible yield testimony. - Investigator's estimations of the potential yield of the immature plants and dose divisibility of that yield were permissible assertions based upon his knowledge in response to appropriate hypothetical questions. The weight and credence given to that testimony were matters for the jury to consider. Taylor v. Commonwealth, No. 0963-93-3 (Ct. of Appeals Feb. 7, 1995).

To convict defendant of possession with intent to distribute more than one-half ounce but less than five pounds of marijuana, Commonwealth had the burden of proving beyond a reasonable doubt that the plant material, exclusive of mature stalk and sterilized seeds, weighed more than one-half ounce. Hill v. Commonwealth, 17 Va. App. 480, 438 S.E.2d 296 (1993).

The intent to personally use a portion of the whole does not negate a person's intent to also distribute some of the drug. Thornton v. Commonwealth, No. 1882-93-2 (Ct. of Appeals March 21, 1995).

Sufficient proof of weight. - The evidence was sufficient to prove that the defendant possessed the requisite quantity of marijuana where two bags of marijuana weighing a combined one pound, six ounces, were found together and the defendant's fingerprints were found on the larger of the bags. Although the commonwealth never proved the weight of the bag that bore the defendant's fingerprints without the weight of the other bag, the trial judge was free to conclude that the defendant was in constructive possession of both bags. Cutler v. Commonwealth, No. 0194-00-1, 2001 Va. App. LEXIS 137 (Ct. of Appeals Mar. 20, 2001).

Weight, excluding certain stalks and seeds, determines offense grade. - Under this section, the weight of the proscribed marijuana, excluding mature stalks and sterilized seeds, determines the grade of the offense. Guzman v. Commonwealth, No. 1211-93-2, 1994 Va. App. LEXIS 357 (Ct. of Appeals June 7, 1994).

Evidence failed to prove, beyond a reasonable doubt, weight of marijuana or that it exceeded one-half ounce, where forensic chemist testified that he did not weigh leafy material separate from seeds and stems, and that he could not visually determine weight of seeds and stems at trial. Hinton v. Commonwealth, No. 1616-98-2 (Ct. of Appeals June 29, 1999).

Where expert testified that removal of seeds and stems from marijuana similar to that seized from defendant normally reduced its weight by one third, fact finder could permissibly infer that 9.59 ounces of marijuana, exclusive of seeds and mature stalks, exceeded one-half ounce. Newton v. Commonwealth, No. 1822-98-3, 1997 Va. App. LEXIS 619 (Ct. of Appeals Sept. 28, 1999).

Evidence was sufficient to convict for possession of more than one-half ounce but less than five pounds of marijuana because the definition of marijuana included mature stalks and seeds in determining the total weight of the substance. Brown v. Commonwealth, 56 Va. App. 8, 690 S.E.2d 301, 2010 Va. App. LEXIS 92 (2010).

Failure to prove weight warranted reversal of felony conviction. - The trial court erred in convicting appellant of the felony of possession of more than one-half ounce but less than five pounds of marijuana with intent to distribute since the Commonwealth failed to prove that the marijuana weighed more than one-half ounce absent the seeds and stems. At trial, the police officer who executed the search warrant testified that the bags contained leaves, stems or twigs, and seeds, but the officer stated that he did not instruct the division of forensic science laboratory to weigh only the leafy parts contained in the bags, nor did the laboratory personnel ever indicate to him that they weighed only the leafy parts of the plant material. Guzman v. Commonwealth, No. 1211-93-2, 1994 Va. App. LEXIS 357 (Ct. of Appeals June 7, 1994).

The commonwealth has the burden of proving beyond a reasonable doubt that the plant material, exclusive of mature stalk and sterilized seeds, weighs more than one-half ounce and that burden is not met when the quantity of material is of small weight and the trier of fact merely infers that the weight of the marijuana, less the stems, sterilized seeds and twigs, exceeds one-half ounce. Hughes v. Commonwealth, No. 2604-99-1, 2000 Va. App. LEXIS 817 (Ct. of Appeals Dec. 19, 2000).

When a trial judge decided by visual inspection the comparative weights of the contents of two bags of marijuana, which included seeds, stems and twigs, she did no more than draw a mere inference of the necessary facts and any such inference was purely speculative because no facts were proved that would have supported such an inference. Hughes v. Commonwealth, No. 2604-99-1, 2000 Va. App. LEXIS 817 (Ct. of Appeals Dec. 19, 2000).

Quantity and other circumstances may establish intent to distribute. - The quantity of a controlled substance is a factor which may indicate the purpose for which it is possessed. Possession of a small quantity creates an inference that the drug is for personal use. Possession of a small quantity of a controlled substance, however, when considered with other circumstances, may be sufficient to establish an intent to distribute. The method of packaging of the controlled substance is such a circumstance. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Circumstantial evidence used to convict defendant supported conviction for possession with intent to distribute marijuana where defendant had a pound of drugs and $3000 in cash; defendant's objection to probation was unpreserved and barred. Park v. Commonwealth, No. 2578-02-4, 2003 Va. App. LEXIS 620 (Ct. of Appeals Dec. 2, 2003).

Officer's testimony regarding intent held proper. - The officer's testimony that the amount of 6.88 ounces of marijuana was inconsistent with an individual's personal use, based on what a user would normally buy or use at one time, did not constitute an opinion of the ultimate issue of fact that the defendant had an intent to distribute the marijuana found in his house. Davis v. Commonwealth, 12 Va. App. 728, 406 S.E.2d 922 (1991).

Presumption against accommodation distribution after guilt established. - Section 18.2-248 , as it stood prior to the 1979 amendment and the enactment of this section, contained a presumption against an accommodation distribution to the extent that it is relevant to the determination of the proper degree of punishment, but only after guilt has been established. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

And presumption lasts until evidence makes case for jury. - The presumption created with regard to accommodation retains its effect until opposing evidence (whether from the Commonwealth or the defendant) is sufficient to make a case for the jury, that is, to convince the judge that a jury could reasonably find that the defendant was an accommodation distributor. This is the obvious standard to be applied for overcoming the statutory presumption that operated in favor of the Commonwealth in cases prosecuted under § 18.2-248 , as it stood prior to 1979 amendment and the enactment of this section, and it was unnecessary for the standard to be spelled out in the statute. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

Burden on defendant to show accommodation. - The statutory scheme behind § 18.2-248 as it stood prior to the 1979 amendment and the enactment of this section provided that once the guilt of the defendant has been established (a determination completely independent of the profit-accommodation distinction), a second determination of the proper punishment is to be made. That statute and § 18.2-263 placed the burden of proving the existence of an accommodation distribution (and the right to the lesser penalty) to the trier of fact on the shoulders of the defendant. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

Defendant not entitled to accommodation instruction. - Evidence, in trial of defendant for distributing more than one-half ounce but not more than five pounds of marijuana, failed to support an accommodation instruction where defendant admitted that she sold marijuana to detective but denied that she had profited from the sale - she testified that she had purchased the marijuana from "a friend" for $120 and had sold it to the detective for $120 - the fact that the defendant did not sell the drugs for more than she paid for them was of no consequence for the evidence clearly showed that the distribution was a commercial transaction where consideration was involved. Hudspith v. Commonwealth, 17 Va. App. 136, 435 S.E.2d 588 (1993).

Even assuming that the trial court's refusal to instruct the jury during the penalty phase of defendant's trial as to "accommodation conspiracy" on the charge against defendant of conspiracy to possess marijuana with intent to distribute was error, the error was harmless beyond a reasonable doubt; since the jury rejected an accommodation claim regarding the charge against defendant of possession of marijuana with intent to distribute, the appellate court could confidently conclude that the jury would have rejected an accommodation claim with regard to the "conspiracy to possess" charge as well. McPherson v. Commonwealth,, 2006 Va. App. LEXIS 88 (Mar. 14, 2006).

Defendant's convictions for two counts of distribution of cocaine, third offense; three counts of distribution of marijuana; two counts of conspiracy to distribute cocaine, third offense; three counts of conspiracy to distribute marijuana; one count of possession of cocaine with intent to distribute; and one count of possession of marijuana with intent to distribute were proper because the trial court did not err in not instructing the jury on the lesser punishment of distribution for accommodation. In each transaction, the agent was the buyer, and not the cousin, who had only arranged the meetings for the agent; additionally, the fact that defendant did not make any money on the transactions was not dispositive. Martin v. Commonwealth,, 2010 Va. App. LEXIS 205 (May 18, 2010).

Even if substance is packaged for distribution, there must be additional evidence to preclude the inference that it was purchased in the packaged form for personal use rather than being held in that fashion for distribution. The additional evidence available to preclude such an inference may be the presence of a large, or bulk, quantity from which smaller packages may have been made up for distribution, or the presence of paraphernalia used in the packaging process. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

By preponderance of evidence. - A defendant, charged with an unlawful sale of drugs, who defends on the ground that he distributed the drugs for accommodation only, is not required to establish such accommodation beyond a reasonable doubt, but only by a preponderance of the evidence. He is required to produce some evidence which satisfies the trier of the facts that his distribution was for accommodation. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978), decided under § 18.2-248 as it stood prior to the 1979 amendment and the enactment of this section.

Applied in Morton v. Commonwealth, 227 Va. 216 , 315 S.E.2d 224 (1984); Stamper v. Commonwealth, 228 Va. 707 , 324 S.E.2d 682 (1985); Arnold v. Commonwealth, 4 Va. App. 275, 356 S.E.2d 847 (1987); Barber v. Commonwealth, 5 Va. App. 172, 360 S.E.2d 888 (1987); Reynolds v. Commonwealth, 9 Va. App. 430, 388 S.E.2d 659 (1990); Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32; Cicilese v. Commonwealth,, 2015 Va. App. LEXIS 44 (Feb. 10, 2015); Rivera v. Commonwealth, 65 Va. App. 379, 778 S.E.2d 144, 2015 Va. App. LEXIS 315 (2015).

II. ILLUSTRATIVE CASES.

Evidence of prior bad acts. - Defendant's convictions for possession with intent to distribute marijuana under § 18.2-248.1 and conspiracy to distribute marijuana under §§ 18.2-256 and 18.2-248.1 were proper because the trial court did not abuse its discretion in admitting evidence of defendant's other bad acts as part of a common scheme or plan to support his current convictions. The evidence was relevant and admissible to show a course of conduct entered into by defendant to sell marijuana through his middleman and it proved that he committed similar acts with similar results. Pinnix v. Commonwealth,, 2011 Va. App. LEXIS 149 (May 3, 2011).

Suppression of evidence. - Defendant's motion to suppress was denied because the marijuana residue found during the justified pat-down search was a valid basis for arrest, as possession of less than one-half ounce of marijuana was a class one misdemeanor; therefore, the evidence seized as a result of the arrest was admissible. United States v. Akers,, 2005 U.S. Dist. LEXIS 19920 (W.D. Va. Sept. 13, 2005).

Considering the totality of circumstances, and the evidence and all reasonable inferences flowing from that evidence in defendant's favor because defendant prevailed on defendant's motion to suppress in the trial court, the seizure of marijuana from a knotted plastic baggie inside defendant's purse located in defendant's vehicle had to be suppressed. The evidence, used to charge defendant with possession of marijuana with the intent to distribute in violation of § 18.2-248.1 , did not establish probable cause to believe there was marijuana inside the baggie in the purse. Commonwealth v. Anderson,, 2008 Va. App. LEXIS 130 (Mar. 18, 2008).

As defendant appeared to shove something under the driver's seat after an officer activated his overhead lights, the office's search for weapons in the area of defendant's movement was objectively reasonable. And as the officer found a cooler from which emanated the odor of marijuana, he had both reasonable suspicion to look inside the cooler for a weapon and probable cause to check it for marijuana; therefore, the marijuana did not have to be suppressed. Johnson v. Commonwealth,, 2011 Va. App. LEXIS 173 (May 17, 2011).

In a prosecution of defendant for manufacturing marijuana, the evidence obtained pursuant to a search warrant was tainted by police officers' initial unlawful entry onto curtilage of defendant's property. The appellate court could not say the evidence would have ultimately or inevitably been obtained without the police misconduct. Carlson v. Commonwealth, 69 Va. App. 749, 823 S.E.2d 28, 2019 Va. App. LEXIS 36 (2019).

Certificates of analysis. - Where certificates of analysis pertaining to drugs and a firearm had been admissible at the time defendant was initially found guilty in a bench trial, since he had not availed himself of his right under former § 19.2-187.1 to call the scientists who prepared the certificates as witnesses, the trial court did not err in reopening the case to allow the scientists to testify and defendant to cross-examine them, because Confrontation Clause law had changed in the interim, and this procedure protected defendant's constitutional rights to confrontation and a fair trial. Morgan v. Commonwealth, 61 Va. App. 58, 733 S.E.2d 151, 2012 Va. App. LEXIS 336 (2012).

Effect of conviction on removal under immigration laws. - Alien's conviction for possession of marijuana with intent to sell, give or distribute under Virginia law was a controlled substance offense and did not include possession of marijuana for his own use, as the Virginia statute included elements that increased the severity of the offense beyond mere simple possession, and he was thus removable under immigration law. Cespedes v. Holder,, 2013 U.S. App. LEXIS 20741 (4th Cir. Oct. 11, 2013).

Sufficient evidence of constructive possession. - Because there was sufficient evidence of constructive possession of a firearm and a controlled substance, the circuit court did not err in denying defendant's motion to vacate for insufficient evidence; a reasonable fact-finder could find that defendant lived at the residence where the contraband was found because the police found mail addressed to him, he was the only person an investigator observed enter the residence with keys, and the police arrested him at the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Sufficient evidence of awareness and dominion. - Where evidence showed that the marijuana was being grown in an area accessible only from the backyard of the house where defendant was living by himself; that a watering hose ran from the house to the area of cultivation; and inside the house police found weighing scales and plastic baggies surrounded by marijuana debris, giving rise to the fair inference that marijuana was being weighed and packaged for distribution, evidence was sufficient to show that defendant was aware of the presence and character of the marijuana and exercised dominion and control over it. Taylor v. Commonwealth, No. 0963-93-3 (Ct. of Appeals Feb. 7, 1995).

Sufficient circumstantial evidence. - Where evidence was presented at trial from which it could be fairly deduced that the other persons living in the vicinity actually utilized their potential access to the marijuana plot, the jury did not err in finding the circumstantial evidence adduced by the Commonwealth sufficient for conviction. Taylor v. Commonwealth, No. 0963-93-3 (Ct. of Appeals Feb. 7, 1995).

The circumstantial evidence was sufficient to support the defendant's conviction where, from the evidence presented, the fact finder could have inferred beyond a reasonable doubt that the defendant was aware of the presence and character of marijuana contained inside a backpack in his vehicle and that it was subject to his dominion and control. Although there were other people in the vehicle with the defendant when the backpack containing the marijuana was thrown from the vehicle while the occupants were fleeing from the police, the defendant's fingerprints were on one of the two bags of marijuana in the backpack and his flight from and inconsistent statements to the police about that flight and the location of the vehicle provide the "other circumstances" which reasonably excluded innocence. Cutler v. Commonwealth, No. 0194-00-1, 2001 Va. App. LEXIS 137 (Ct. of Appeals Mar. 20, 2001).

Based on the totality of the circumstances, including a police surveillance and "buy money" on defendant's person, defendant was aware of the quantity of packaged marijuana and firearms and was in a position to exercise dominion and control over the marijuana. Collins v. Commonwealth, No. 1920-01-1, 2002 Va. App. LEXIS 429 (Ct. of Appeals July 30, 2002).

Defendant's conviction for manufacturing marijuana, pursuant to § 18.2-248.1 (c) , was upheld, where circumstances including the tremendous volume of production, the sophistication of the equipment and the operation, the elaborate security and monitoring system in place, and the presence of a a large, hidden, underground room, accessed through a closet in the den, which served as a main growing room helped to discount and disprove defendant's theory that he grew for his own personal use. Floyd v. Commonwealth,, 2003 Va. App. LEXIS 239 (Apr. 22, 2003).

Commonwealth's evidence was sufficient to support the trial court's rejection of defendant's theory that he possessed and manufactured marijuana for his personal use, and its conclusion that he intended to distribute the drugs because considered together, the quantity of marijuana found, the presence of digital scales, and officers' expert testimony that all the circumstances were very indicative of distribution, sufficiently supported defendant's convictions. Hawkins v. Commonwealth,, 2014 Va. App. LEXIS 189 (May 20, 2014).

Sufficient evidence of intent to distribute. - Considered together, the method of packaging (there were 26 bags of marijuana in defendant's residence) and the quantity of marijuana found (cumulatively, the marijuana weighed almost 2 1/2 ounces) proved an intent to distribute. Additionally, defendant's lack of credibility provided an additional ground upon which the trier of fact could infer his guilt. Therefore, the evidence sufficiently supported the trial court's finding that defendant intended to distribute the marijuana. Hansell v. Commonwealth, No. 1986-96-1 (Ct. of Appeals June 24, 1997).

Evidence was sufficient to show defendant's intent to distribute marijuana, where defendant was found in possession of .935 ounces of marijuana, the marijuana was in a plastic baggie inside a box with similar plastic baggies, and, although defendant stated that the marijuana was for personal use, no paraphernalia consistent with personal consumption was found. Ward v. Commonwealth, No. 1164-97-3 (Ct. of Appeals May 19, 1998).

Because a deputy's experience and an advanced narcotics course provided the knowledge needed to give an expert opinion on the packaging and distribution of marijuana, the evidence was sufficient to support defendant's conviction for possession with intent to distribute under § 18.2-248.1 . Brooks v. Commonwealth,, 2007 Va. App. LEXIS 237 (June 19, 2007).

There was sufficient evidence to support appellant's conviction for possession with the intent to distribute of more than one-half ounce but less than five pounds of marijuana where: (1) the expert witness considered the quantity of drugs in concluding appellant's possession of 1.59 ounces of marijuana was inconsistent with personal use; and (2) the expert testified that a typical marijuana user would carry less than one-half ounce. Cratch v. Commonwealth,, 2009 Va. App. LEXIS 433 (Sept. 29, 2009).

Based on the expert testimony and circumstantial evidence presented at trial, the trier of fact could reasonably conclude that defendant possessed the marijuana with the intent to distribute it; she was found in possession of marijuana, packaged in numerous small bags, and given that she lied and denied knowing the marijuana was in the car, even though the bags were in plain view and she tried to grab them when confronted by police, the trial court was entitled to take this into account in considering her denial that she intended to sell the marijuana. Wallace v. Commonwealth,, 2014 Va. App. LEXIS 269 (July 29, 2014).

Evidence was sufficient to convict defendant of possession of marijuana with the intent to distribute because the officer's testimony regarding the vacuum sealed bag, which contained almost three ounces of marijuana packed in three smaller bags that each held about an ounce of marijuana, established the large amount of marijuana defendant and the driver of the vehicle possessed and that the manner in which it was packaged was inconsistent with personal use; the officer did not locate any ingestion devices inside the vehicle; and defendant carried over $2000 in cash in his pocket, comprised mostly of $20 bills. Lewis v. Commonwealth, No. 0912-15-2, 2016 Va. App. LEXIS 255 (Ct. of Appeals Oct. 4, 2016).

Evidence did not prove defendant aware of drugs. - Defendant's conviction of possession of more than five pounds of marijuana with intent to distribute was reversed, where the evidence fell short of proving that she was aware of the drugs found in the parked automobile in which she was seated, or that the drugs were subject to her dominion and control. Winfield v. Commonwealth, No. 1373-88-2 (Ct. of Appeals Apr. 24, 1990).

Evidence insufficient to support conviction. - Where although 90 grams of marijuana was found in plastic bags, packaged for distribution, in defendants' car, there was no evidence to preclude the inference that the quantity seized was for defendants' personal use, the evidence was insufficient to support a conviction for possession of marijuana with intent to distribute. Dutton v. Commonwealth, 220 Va. 762 , 263 S.E.2d 52 (1980).

Where the Commonwealth failed to prove beyond a reasonable doubt that the defendant was in the garden area where young marijuana plants were found, and that defendant had seen the plants, or acknowledged their presence, the evidence did not establish that he was aware of the presence and character of the marijuana or that he intentionally and consciously possessed it or exercised dominion and control over it. Williams v. Commonwealth, No. 0550-90-2 (Ct. of Appeals June 11, 1991).

Where sergeant stated that he had not asked the state forensic laboratory to weigh the marijuana without the stems, seeds, or stalks and that he did not know if the marijuana had been weighed without that material, and where he further testified that it was the state lab's procedure to weigh marijuana with the seeds, stalks, and stems, the Commonwealth failed to prove that the marijuana was properly weighed or that, less the weight of the stems and sterilized seeds, it weighed more than one-half ounce. Rather, the testimony of the Commonwealth's witnesses permitted the reasonable inference that the marijuana was weighed with stems and seeds. Therefore, the evidence was not sufficient to prove that the marijuana weighed more than one-half ounce. Newton v. Commonwealth, No. 1708-96-3, 1997 Va. App. LEXIS 619 (Ct. of Appeals Oct. 7, 1997).

A defendant's conviction was reversed where the evidence established that the defendant had supplied marijuana to those present at a third party's house, individuals at the house wanting to smoke marijuana usually obtained the marijuana from a table and did not see who put it there, and no other witnesses were able to provide an affirmative link between the defendant and the marijuana taken from the table; because other witnesses admitted to providing marijuana for use at the house during that time, the evidence was insufficient to establish that the defendant distributed marijuana in the county where he was charged and tried. Bareford v. Commonwealth, No. 0564-00-2, 2001 Va. App. LEXIS 155 (Ct. of Appeals Mar. 27, 2001).

Commonwealth's circumstantial evidence failed to eliminate the reasonable hypothesis that someone other than defendant brought the pots of marijuana to the home on the day they were discovered; thus, the evidence was insufficient, as a matter of law, to prove that defendant manufactured the marijuana. Lowe v. Commonwealth, 36 Va. App. 163, 548 S.E.2d 904, 2001 Va. App. LEXIS 404 (2001).

Appellant's conviction for possession with intent to distribute marijuana was reversed because there was no evidence that the odor detected by the officers was coming from appellant's person, that appellant showed any physical signs of having recently used marijuana, or that appellant possessed any drugs on his person. Ervin v. Commonwealth,, 2010 Va. App. LEXIS 249 (June 22, 2010).

Defendant's conviction for possession of marijuana with the intent to distribute in violation of § 18.2-248.1 was reversed because the facts were insufficient to prove that defendant possessed the marijuana since the only facts were that defendant was the owner of the parked car and that he had custody of a set of keys to that car; there was no timeline for when defendant was last in the vehicle or if he was in fact the last person in the vehicle, although defendant had possession of the key to the vehicle, nothing indicated that he had possession of the only key, and defendant was cooperative in providing the key to the glove compartment upon request. Lewis v. Commonwealth,, 2011 Va. App. LEXIS 136 (Apr. 26, 2011).

Evidence was insufficient to convict defendant of possession of more than one-half ounce of marijuana with intent to sell; while the evidence established that eight plastic bags containing marijuana weighed 0.92 ounce, as the Commonwealth did not establish the weight of bags, it failed to prove that the marijuana alone weighed more than one-half ounce. Johnson v. Commonwealth,, 2011 Va. App. LEXIS 173 (May 17, 2011).

Evidence that defendant was in close proximity to two bags of marijuana that the trial court found to be a "significant amount" and was clearly visible to anyone in the car and was within arm's reach of the marijuana was sufficient to support defendant's conviction for possession with intent to distribute marijuana under § 18.2-248.1 . Ferebee v. Commonwealth,, 2012 Va. App. LEXIS 388 (Dec. 4, 2012).

Evidence was insufficient to support defendant's convictions for intent to distribute marijuana and possession of a Schedule IV controlled substance because, despite the presence of defendant's personal documents at the apartment, there was no testimony establishing defendant's presence at the apartment where the drugs were found. Defendant was not present at the apartment when the search warrant was executed, and there was no evidence that defendant constructively possessed the drugs by exercising dominion and control over the drugs. McLaurin v. Commonwealth, No. 1728-19-4, 2020 Va. App. LEXIS 265 (Nov. 4, 2020).

Sufficient evidence to support conviction. - Evidence was sufficient to sustain defendant's conviction for manufacturing marijuana not for his own use, in violation of subsection (c) of § 18.2-248.1 , where: (1) when video surveillance began, 11 well cared for marijuana plants were growing in a wooded area; (2) an expert testified that the recovered plants had a potential yield of six pounds of saleable marijuana, which was inconsistent with personal use; (3) defendant was the only person seen on the videotapes exercising dominion and control over the plants; (4) defendant's systematic removal of the more mature plants, mid-way through the growing season, was consistent with the manufacturing of marijuana; and (5) the fact that no lighting devices, packing materials, or distribution equipment were found did not discount the conclusion that the marijuana plants were being manufactured for distribution. Dolan v. Commonwealth,, 2002 Va. App. LEXIS 778 (Dec. 31, 2002).

Evidence that defendant was observed packaging marijuana from a large bag into many smaller one and that another man was also seek doing the same and then selling it to passersby was sufficient to support the trial court's determination of guilty beyond a reasonable doubt that defendant possessed marijuana with the intent to distribute it and conspired to do so. Williams v. Commonwealth, No. 1842-02-2, 2003 Va. App. LEXIS 699 (Ct. of Appeals Dec. 30, 2003).

Defendant's incriminating statements made after he received Miranda warnings were properly admitted, as said statements were not made as a result of an illegal arrest, but after a lawful detention by officers and an arrest based on probable cause of finding cocaine and a gun in the residence searched via a valid warrant; thus, defendant's suppression motion was properly denied, and his conviction was upheld. Whitaker v. Commonwealth, No. 3232-03-2, 2005 Va. App. LEXIS 34 (Ct. of Appeals Feb. 1, 2005).

Sufficient evidence existed to support defendant's conviction for possession with intent to distribute marijuana because while police found defendant in the kitchen and the marijuana, a bag of cocaine, and a gun were in plain view in the living room, defendant had to walk through the living room to reach the kitchen; therefore, it was reasonable to infer that defendant was aware of the presence and character of the drugs in the living room. Additionally, a scale, multiple baggies of marijuana, and cash all found in the kitchen cabinets and a large sum of cash and a gun found on defendant's person proved sufficient dominion and control over the illicit drugs to establish constructive possession. Wilson v. Commonwealth, 272 Va. 19 , 630 S.E.2d 326, 2006 Va. LEXIS 60 (2006).

Evidence that defendant owned the car where officers found a significant quantity of the drug, a key on defendant's key chain opened the closet in defendant's home where drugs were found, and packaging material and a scale were found in defendant's room was sufficient to support conviction for possession of marijuana. Richards v. Commonwealth,, 2007 Va. App. LEXIS 22 (Jan. 23, 2007).

There was no error in the trial court's conviction of defendant for possession of more than five pounds of marijuana with intent to distribute, as defendant admitted to a detective that defendant took possession of a package, which defendant knew contained marijuana, and that defendant intended to transfer the package and its contents to another. An expert witness testified that the amount of marijuana recovered from defendant's residence, almost nine pounds, was very inconsistent with personal use. Hargrove v. Commonwealth, 53 Va. App. 545, 673 S.E.2d 896, 2009 Va. App. LEXIS 123 (2009).

Ample evidence supported the trial court's finding that defendant intended to use the marijuana for purposes other than defendant's own use, including the discovery of electronic digital scales, hemostats, baggies, and individually packaged methamphetamine - items that were part of defendant's ongoing operations. Cooper v. Commonwealth, 54 Va. App. 558, 680 S.E.2d 361, 2009 Va. App. LEXIS 356 (2009).

Evidence, including that police found over $3,000 in varied denominations in defendant's care and on his person and that he was in possession of cocaine and marijuana without paraphernalia, was sufficient to overcome the presumption of personal use and was sufficient to convict him of possession of marijuana with intent to distribute, in violation of § 18.2-248.1 . Johnson v. Commonwealth,, 2010 Va. App. LEXIS 69 (Feb. 23, 2010).

Evidence was sufficient to prove possession where the totality of the circumstances established that defendant was aware of both the presence and character of cocaine and marijuana and that the drugs were subject to defendant's dominion and control where defendant was the operator of the vehicle and was sitting next to the console within arm's reach of where the drugs were found, the lid to the console was not shut securely, a passenger testified that the drugs did not belong to her and were already in the vehicle when she entered it, and the drugs found in the console were the same type of drugs that defendant sought in text messages sent a few weeks before the arrest. Hicks v. Commonwealth,, 2010 Va. App. LEXIS 188 (May 11, 2010).

Defendant's conviction for possession of marijuana with intent to distribute was appropriate because, at the traffic stop, defendant was in sole possession of the vehicle and possessed the key to the glove compartment, which contained marijuana valued at over $200. At that same time, the vehicle smelled strongly of the distinctive odor of marijuana, which the trial court found had been recently burnt; an expert further testified that the packaging of the marijuana was inconsistent with personal use. Ervin v. Commonwealth, 57 Va. App. 495, 704 S.E.2d 135, 2011 Va. App. LEXIS 24 (2011).

Trial court did not err when it determined that the evidence was sufficient to support defendant's conviction for possession of marijuana with intent to distribute because a police officer discovered the lunchbox in which marijuana was found near the center console of the vehicle, defendant admitted that he drove the vehicle "pretty much every day" even though it was not his, defendant was aware of the presence and the character of the marijuana, and he did not really argue that the evidence found in the lunchbox was only indicative of personal use of marijuana and not of possession with intent to distribute. Cousin v. Commonwealth,, 2015 Va. App. LEXIS 155 (May 5, 2015).

Evidence was sufficient to prove that defendant possessed marijuana with intent to distribute it because defendant constructively possessed the small packets of marijuana found in the kitchen of the house, which defendant owned and occupied, loaded firearms were found by defendant's bed in a bedroom and under the couch in the living room, and a large amount of cash was found in defendant's bedroom. Moreover, a police investigator testified that the presence of loaded firearms and large amounts of cash was consistent with drug distribution. Wiggins v. Commonwealth, No. 0632-15-2, 2016 Va. App. LEXIS 139 (Ct. of Appeals Apr. 26, 2016).

Fact-finder could find that defendant knew of the presence and character of drugs based on the location in which they were found because a digital scale, plastic bags, and packaging were found in plain view, and marijuana, cocaine, money, and more packaging were found in the first drawer of the dresser in the main bedroom of his residence; also, a confidential informant previously purchased marijuana from the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Rational trier of fact could have found that defendant had knowledge of the illicit drugs because he was the registered owner of the vehicle and was the driver and sole occupant of the vehicle when an officer pulled him over; a conservative estimate of the drugs found in defendant's car was over a thousand dollars; and items found on defendant's person were consistent with the distribution of narcotics. Jefferson v. Commonwealth, No. 1421-19-2, 2020 Va. App. LEXIS 239 (Oct. 6, 2020).

Sufficient evidence of more than personal use possession. - Evidence disclosed that the quantity of marijuana being manufactured was greater than that ordinarily possessed for one's personal use where it showed that the following items were discovered at defendant's house: 15 green marijuana plants, 14 growing inside appellant's residence, one growing outside; a 12-gauge shotgun; shotgun shells; .105 ounce of dried marijuana; a fluorescent light that is frequently used to assist in marijuana growth; and a copper smoking device. Bailey v. Commonwealth, No. 0886-93-4 (Ct. of Appeals Nov. 22, 1994).

Defendant held not entrapped by fear of reprisal if he did not complete sale. - In a prosecution for distribution of marijuana, the court could reasonably infer that the defendant continued in the transaction for personal benefit and not out of fear of reprisal, and therefore rejected his entrapment defense, where the defendant conceded that he was a willing participant in arranging the drug transaction and despite defendant's contention that the person for whom he procured the marijuana, an undercover officer, threatened reprisal. Schneider v. Commonwealth, 230 Va. 379 , 337 S.E.2d 735 (1985).

Improper admission of direct evidence of sale not harmless despite sufficiency of circumstantial evidence. - Where the Commonwealth presented sufficient circumstantial evidence on the element of intent from which the jury could have inferred an intent to distribute, but the only direct evidence of a sale was the inadmissible testimony of the detective who stated that the "search warrant [for defendant and defendant's car] was based on a controlled buy made by a confidential reliable informant," the error was not harmless beyond a reasonable doubt. Accordingly, the trial court erred in denying the motion for a mistrial and defendant was entitled to a new trial. Terry v. Commonwealth, 5 Va. App. 167, 360 S.E.2d 880 (1987).

Sentencing error. - Defendant's sentence on his conviction for possession of marijuana with intent to distribute was excessive and, thus, the sentence for that offense had to be corrected on remand of defendant's case to the trial court; a 15-year sentence was imposed for that offense, but since it was a Class 5 felony, the maximum punishment that could be imposed was 10 years. Lathram v. Commonwealth, No. 0155-05-4,, 2006 Va. App. LEXIS 168 (Ct. of Appeals May 2, 2006).

Dismissal of lesser-included offense not required upon vacation of felony conviction. - Dismissal of lesser-included offense of misdemeanor distribution was not required where the appellant was not acquitted of that charge for double jeopardy purposes by the trial court's post-trial ruling which set aside original guilty verdict because of trial error; jury's verdict of guilty on the felony charge established that sufficient evidence was presented at trial to sustain a verdict for misdemeanor distribution and the trial judge committed reversible error in not granting the initial motion to strike the felony charge and allowing the matter to be submitted to the jury only on the lesser-included charge. Therefore, jeopardy continues on the lesser-included charge until the matter is completed in a defect-free proceeding. Gorham v. Commonwealth, 15 Va. App. 673, 426 S.E.2d 493 (1993).

Convictions under this section not considered under enhancement provision of § 18.2-250.1 A. - The scheme of punishment under subsection A of § 18.2-250.1 does not envision that felony convictions under this section, which carries its own severe punishments, be considered under its enhancement provision. Pierce v. Commonwealth, 2 Va. App. 383, 345 S.E.2d 1 (1986).

Motion to suppress granted. - Trial court's denial of defendant's motion to suppress was error and, thus, the finding that defendant was guilty of possession of marijuana with intent to distribute had to be reversed; police did not have probable cause to seize CDs found in defendant's car, pursuant to §§ 59.1-41.5 and 59.1-41.4 , since the items they thought were bogus CDs could have been legitimate, homemade CDs, and, thus, since the search for more CDs in his car led to the discovery of marijuana, the motion to suppress the marijuana evidence should have been granted because the seizure of that evidence was not reasonable given the lack of probable cause to search. McLaughlin v. Commonwealth, 48 Va. App. 243, 629 S.E.2d 724, 2006 Va. App. LEXIS 218 (2006).

CIRCUIT COURT OPINIONS

Motion to suppress. - Defendant's motion to suppress, pursuant to § 19.2-266.2 , drugs found in defendant's pocket in relation to a charge of possession of marijuana with intent to distribute, § 18.2-248.1 , was denied; the circumstances provided an officer with an objective basis for suspecting that defendant was armed and dangerous, so a pat-down search of defendant was legal. Commonwealth v. St. Louis, 61 Va. Cir. 384, 2003 Va. Cir. LEXIS 151 (Charlottesville 2003).

Habeas corpus. - Petitioner inmate was granted a writ of habeas corpus vacating his state conviction for misdemeanor possession with intent to distribute marijuana in violation of § 18.2-248.1 , which was the sole basis of his incarceration in a federal jail, because the matter remained in actual controversy and was not moot since petitioner was restrained as the result of his Virginia conviction and had an extraordinary stake in the outcome of his petition; the order vacating petitioner's conviction would directly impact the duration of his current confinement because the Virginia conviction was the sole cause of petitioner's pending immigration proceedings under 8 U.S.C.S. § 1227(a)(2)(A)(iii). Ibrahim v. Superintendent, Rappahannock Reg'l Jail, 82 Va. Cir. 353, 2011 Va. Cir. LEXIS 81 (Fairfax County May 16, 2011).

Rejection of plea agreement. - Defendant's written plea agreement to a suspended $100 fine as the ultimate sentence for possession with intent to sell, give or distribute 50 pounds of marijuana and 400 cartridges of hashish oil was rejected because defendant's offenses were still considered serious drug charges in Virginia; neither the Commonwealth's attorney nor defense counsel advanced any argument as to how a suspended $100 fine for the serious charges of possession with intent to distribute would deter others from like criminality; and the sentencing guidelines for defendant called for a midrange of active incarceration of one year and seven months, with at least the remainder of the minimum statutory sentence of five years being suspended with a period of probation. Commonwealth v. Hartley,, 2020 Va. Cir. LEXIS 203 (Arlington County Sept. 8, 2020).

§ 18.2-248.1:1.

Repealed by Acts 2014, cc. 674 and 719, cl. 2.

Editor's note. - Former § 18.2-248.1:1 , pertaining to penalties for possession, sale, gift, or distribution of or possession with intent to sell, give, or distribute, and manufacturing of synthetic cannabinoids; derived from 2011, cc. 384, 410; 2012, cc. 762, 816; 2013, cc. 295, 785.

§ 18.2-248.2.

Repealed by Acts 1981, c. 598.

Cross references. - For present provisions concerning drug paraphernalia, see §§ 18.2-265.1 through 18.2-265.5 .

§ 18.2-248.3. Professional use of imitation controlled substances.

No civil or criminal liability shall be imposed by virtue of this article on any person licensed under the Drug Control Act, Chapter 34 of Title 54.1, who manufactures, sells, gives or distributes an imitation controlled substance for use as a placebo by a licensed practitioner in the course of professional practice or research.

(1982, c. 462.)

§ 18.2-248.4. Advertisement of imitation controlled substances prohibited; penalty.

It shall be a Class 1 misdemeanor for any person knowingly to sell or display for sale, or to distribute, whether or not any charge is made therefor, any book, pamphlet, handbill or other printed matter which he knows is intended to promote the distribution of an imitation controlled substance.

(1982, c. 462.)

§ 18.2-248.5. Illegal stimulants and steroids; penalty.

  1. Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), Chapter 34 of Title 54.1, it shall be unlawful for any person to knowingly manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute any anabolic steroid. A violation of subsection A shall be punishable by a term of imprisonment of not less than one year nor more than 10 years or, in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months or a fine of not more than $20,000, either or both. Any person violating the provisions of this subsection shall, upon conviction, be incarcerated for a mandatory minimum term of six months to be served consecutively with any other sentence.
  2. It shall be unlawful for any person to knowingly sell or otherwise distribute, without prescription, to a minor any pill, capsule or tablet containing any combination of caffeine and ephedrine sulfate.

    A violation of this subsection B shall be punishable as a Class 1 misdemeanor.

    (1984, c. 620; 1988, c. 428; 1989, c. 567; 2000, cc. 1020, 1041; 2004, c. 461.)

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and added the second sentence in the second paragraph of subsection A.

The 2004 amendments. - The 2004 amendment by c. 461, in subsection A, substituted "mandatory minimum" for "minimum, mandatory" and "to" for "which shall not be suspended in whole or in part and shall" and made minor stylistic changes.

§§ 18.2-248.6, 18.2-248.7.

Repealed by Acts 1999, c. 348, cl. 2.

§ 18.2-248.8.

Repealed by Acts 2012, cc. 160 and 252, cl. 2, effective January 1, 2013.

Cross references. - For current provisions related to penalty for sale of methamphetamine precursors ephedrine and pseudoephedrine, see § 18.2-265.7 .

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

Former § 18.2-248.8 , sale of the methamphetamine precursors ephedrine and pseudoephedrine; penalty, derived from Acts 2006, cc. 865, 893.

§ 18.2-249.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to seizure of property used in connection with or derived from illegal drug transactions, see § 19.2-386.22 .

§ 18.2-250. Possession of controlled substances unlawful.

  1. It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.). Upon the prosecution of a person for a violation of this section, ownership or occupancy of premises or vehicle upon or in which a controlled substance was found shall not create a presumption that such person either knowingly or intentionally possessed such controlled substance.
  2. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in § 53.1-1 , certified as handlers of dogs trained in the detection of controlled substances when possession of a controlled substance or substances is necessary in the performance of their duties. (Code 1950, § 54-524.101:2; 1972, c. 798; 1973, c. 64; 1975, cc. 14, 15; 1976, c. 614; 1978, cc. 151, 177, 179; 1979, c. 435; 1980, c. 285; 1991, c. 649; 1998, c. 116; 2014, cc. 674, 719.)
  1. Any person who violates this section with respect to any controlled substance classified in Schedule I or II of the Drug Control Act shall be guilty of a Class 5 felony, except that any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof who violates this section with respect to a cannabimimetic agent is guilty of a Class 1 misdemeanor.
  2. Any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof, who violates this section with respect to a controlled substance classified in Schedule III shall be guilty of a Class 1 misdemeanor. (b1) Violation of this section with respect to a controlled substance classified in Schedule IV shall be punishable as a Class 2 misdemeanor. (b2) Violation of this section with respect to a controlled substance classified in Schedule V shall be punishable as a Class 3 misdemeanor.
  3. Violation of this section with respect to a controlled substance classified in Schedule VI shall be punishable as a Class 4 misdemeanor.

Cross references. - As to penalty for sale, possession, etc., of controlled substance or marijuana by inmate in penal institution or in custody of employee thereof, see § 53.1-203 .

The 1998 amendment, in subsection A, in subdivision (a), substituted "Schedule" for "Schedules" and in subsection B, inserted "jail officers."

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical and, in subdivision A(a), inserted "except that any person other than an inmate of a penal institution as defined in § 53.1-1 or in the custody of an employee thereof who violates this section with respect to a cannabimimetic agent is guilty of a Class 1 misdemeanor" and made a minor stylistic change.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972); for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973); for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975); for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976); for the year 1976-1977, see 63 Va. L. Rev. 1396 (1977); for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutionality. - Since there is no fundamental right to the private use, possession or trade in marijuana or cocaine, and since governments have the power to enact and enforce sumptuary laws in this area, § 18.2-248 , now amended and cited as § 18.2-248 .1 and this section do not violate the Ninth and Tenth Amendments to the United States Constitution. Wolkind v. Selph, 495 F. Supp. 507 (E.D. Va. 1980), aff'd, 649 F.2d 865 (4th Cir. 1981).

Since the classification of cocaine as a narcotic drug passes constitutional muster under the rational basis test, the penalty imposed by this section for the possession of cocaine as a Schedule II drug is not irrational, arbitrary or unjust and does not deny equal protection of the laws. Wolkind v. Selph, 495 F. Supp. 507 (E.D. Va. 1980), aff'd, 649 F.2d 865 (4th Cir. 1981).

Private possession of marijuana is not a fundamental constitutional right and the private possession of cocaine is not a fundamental constitutional right; accordingly, Virginia's statutory framework establishing criminal penalties for the possession with the intent to distribute marijuana and for the simple possession of cocaine need bear only a rational relationship to a legitimate interest of the Commonwealth. Wolkind v. Selph, 495 F. Supp. 507 (E.D. Va. 1980), aff'd, 649 F.2d 865 (4th Cir. 1981).

Subjective intent to purchase. - Purchase of a noncontrolled substance that defendant subjectively believes to be a controlled substance can constitute an attempt to possess provided the government proves the defendant's subjective intent to purchase actual narcotics beyond a reasonable doubt. Smith v. Commonwealth, 16 Va. App. 626, 432 S.E.2d 1 (1993).

Venue proper. - Trial court did not err in finding that venue was proper in Franklin County, Virginia because the evidence was more than sufficient to meet the lesser standard required to establish venue in Franklin County since defendant, the heroin she purchased, and her car in which the heroin was stored were all in the County the day of her arrest; because defendant knew the heroin was in her car, the evidence was more than sufficient to prove she constructively possessed heroin in Franklin County. Buck v. Commonwealth, No. 1347-18-3, 2019 Va. App. LEXIS 153 (July 2, 2019).

Possession coextensive with § 18.2-248 possession. - Under the Virginia statutes, possession under this section is coextensive with possession under § 18.2-248 . Such an interpretation is required as a matter of due process of law since, otherwise, a defendant could be subject to a presumption of possession based upon occupancy of an apartment in a prosecution under the greater offense of § 18.2-248 , whereas such a presumption would be barred in a prosecution under this section. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Double jeopardy. - Two convictions for possession of drugs with intent to distribute within 1,000 feet of a school under § 18.2-255.2 did not violate the Double Jeopardy Clause under U.S. Const., Amend. V and Va. Const., Art. I, § 8 as marijuana and cocaine were treated in the Virginia Code as separate and discrete illegal substances under §§ 18.2-250 , 18.2-250.1 , and 54.1-3448 . Fullwood v. Commonwealth, 54 Va. App. 153, 676 S.E.2d 348, 2009 Va. App. LEXIS 224 (2009), aff'd, 279 Va. 531 , 689 S.E.2d 742, 2010 Va. LEXIS 39 (2010).

Possession is a lesser-included offense of distribution. - Proof of the elements of the offense of feloniously, knowingly, and intentionally distributing a controlled substance necessarily encompasses proof of the possession of that same controlled substance and, therefore, the offense of possessing a controlled substance is a lesser-included offense of distribution of a controlled substance. Austin v. Commonwealth, 33 Va. App. 124, 531 S.E.2d 637, 2000 Va. App. LEXIS 572 (2000).

Evidence was insufficient to support defendant's conviction for possession of cocaine with the intent to distribute pursuant to § 18.2-248 ; there was no evidence presented at defendant's bench trial that the cocaine residue that police found in a raid on the residence where defendant lived with other people was the remainder of a larger supply that was intended for distribution; accordingly, the judgment of conviction had to be reversed and the case had to be remanded to allow the trial court to enter an order finding defendant guilty of possession of cocaine. Lunceford v. Commonwealth,, 2006 Va. App. LEXIS 98 (Mar. 21, 2006).

Violation of this section is crime involving moral turpitude and oil company could reasonably terminate cocaine user's franchise. Portaluppi v. Shell Oil Co., 684 F. Supp. 900 (E.D. Va. 1988), aff'd, 869 F.2d 245 (4th Cir. 1989).

The jury should not concern itself with background information on the prohibited substance, but should make an objective finding of guilt or innocence based on relevant evidence and punish the guilty within the limits fixed by statute. Smith v. Commonwealth, 223 Va. 721 , 292 S.E.2d 362 (1982).

To permit evidence respecting extreme horrors which may result from the use of illegal substances diverts the jury from its principal inquiry and injects an element of passion into the trial prejudicial to the accused. Smith v. Commonwealth, 223 Va. 721 , 292 S.E.2d 362 (1982).

In determining whether a defendant constructively possessed drugs, defendant's proximity to the drugs and his occupancy of the vehicle must also be considered. Although mere proximity to the drugs is insufficient to establish possession, and occupancy of the vehicle does not give rise to a presumption of possession, § 18.2-250 , both are factors which may be considered in determining whether a defendant possessed drugs. Castaneda v. Commonwealth, 7 Va. App. 574, 376 S.E.2d 82 (1989).

Defendant's proximity to cocaine found on a kitchen counter in a home which was being searched, combined with evidence that nothing else was located on the counter and no one else was in close proximity of the same, provided sufficient evidence for the trial court to conclude that defendant was aware that drugs were present, and his proximity to the counter supported a finding that he exercised dominion and control over the cocaine. Dawson v. Commonwealth, No. 1687-02-1, 2003 Va. App. LEXIS 237 (Ct. of Appeals Apr. 22, 2003).

Ownership or occupancy may be considered in determining constructive possession. - Although the mere ownership or occupancy of premises in which an illegal drug is found does not create a presumption of conscious or intentional possession, such evidence is probative and may be considered in determining if defendant constructively possessed the offending substance. Allen v. Commonwealth, No. 1478-91-1 (Ct. of Appeals Nov. 10, 1992).

Occupancy of the premises on which drugs are found does not give rise to a presumption of possession; instead, it is only one factor to be considered along with other evidence in determining whether a defendant constructively possessed drugs. Tucker v. Commonwealth, 18 Va. App. 141, 442 S.E.2d 419 (1994).

Showing necessary for conviction. - In order to convict a defendant of "possession" of a narcotic drug, it generally is necessary to show that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977); Hairston v. Commonwealth, 5 Va. App. 183, 360 S.E.2d 893 (1987).

Physical possession giving the defendant immediate and exclusive control of a drug is sufficient to satisfy the requirements of this section. Hornbaker v. Commonwealth, No. 1332-88-4 (Ct. of Appeals March 27, 1990).

To convict an accused of possession of a particular unlawful substance, the Commonwealth must prove the accused was aware of the character of the particular substance at issue. Smith v. Commonwealth, 16 Va. App. 626, 432 S.E.2d 1 (1993).

In order to justify appellant's conviction under this section, the Commonwealth had to prove beyond a reasonable doubt that he possessed the cocaine, either actually or constructively, with an awareness of its presence and character. Tucker v. Commonwealth, 18 Va. App. 141, 442 S.E.2d 419 (1994).

To convict a person of possession of illegal drugs the Commonwealth must prove that the defendant was aware of the presence and character of the drugs and that the defendant intentionally and consciously possessed them; physical possession giving the defendant immediate and exclusive control is sufficient. Brooks v. Commonwealth, No. 0811-02-4, 2003 Va. App. LEXIS 118 (Ct. of Appeals Mar. 4, 2003).

What must be included. - Although in a circumstantial evidence case the Commonwealth must exclude every reasonable hypothesis of innocence, the Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the drugs or paraphernalia where they were found near an accused. Brinkley v. Commonwealth, No. 1895-96-1, 1997 Va. App. LEXIS 498 (Ct. of Appeals July 22, 1997).

Rejection of alternative hypothesis. - Trial court, by convicting defendant, necessarily found that his alternative hypothesis of innocence was not reasonable, which was not plainly wrong; in order to accept defendant's hypothesis, the trial court would have had to believe that the seller of the truck, who was known to be involved in the cocaine trade, not the methamphetamine trade, left $120 worth of methamphetamine in the truck, but a factfinder was permitted to infer that drugs were a commodity of significant value, unlikely to be abandoned or carelessly left in an area. Dugan v. Commonwealth,, 2015 Va. App. LEXIS 313 (Nov. 3, 2015).

Knowledge. - While knowledge is an essential ingredient in the crime of possession of narcotics, such knowledge may be proved by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of narcotics at the place where they were found. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977); Hairston v. Commonwealth, 5 Va. App. 183, 360 S.E.2d 893 (1987).

Knowledge may be proved by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that the accused knew of the existence of narcotics at the place where they were found. Therefore, where the evidence showed that defendant told the police that he was "an addict" and he directed their attention to the cocaine in his shirt pocket, from these acts and declarations, the jury could reasonably have found that defendant knew of the presence and character of the substance and that he was intentionally and consciously in possession of it. Woodson v. Commonwealth, 14 Va. App. 787, 421 S.E.2d 1 (1992), aff'd, 245 Va. 401 , 429 S.E.2d 27 (1993).

Police officer's observation of defendant tossing a small bottle in the air, placing it on a church windowsill, and then abandoning it, was insufficient to prove that defendant knew the bottle contained cocaine residue. Rather, it supported the conclusion that he attached no value or significance to the bottle. Whitehead v. Commonwealth, No. 0908-93-1, 1995 Va. App. LEXIS 191 (Ct. of Appeals Feb. 28, 1995).

Defendant's statement that he picked the bottle up thinking that it might contain cocaine, but discarded it when he perceived that it did not, failed to prove that he knew the bottle contained cocaine residue. His mere hope that it might did not rise to the level of knowledge that it did. Whitehead v. Commonwealth, No. 0908-93-1, 1995 Va. App. LEXIS 191 (Ct. of Appeals Feb. 28, 1995).

Knowledge of the presence and character of the controlled substance is required but such knowledge may be shown by evidence of the acts, statements or conduct of the accused. Harrison v. Commonwealth, No. 1973-99-1, 2000 Va. App. LEXIS 581 (Ct. of Appeals Aug. 8, 2000).

Because actual or constructive possession alone was not sufficient for a conviction under § 18.2-250 and the ambiguous circumstantial evidence concerning the appearance of a bottle and its contents was as consistent with a hypothesis of innocence as it was with that of guilt in regard to knowledge, it was insufficient to support the conviction. Young v. Commonwealth, 275 Va. 587 , 659 S.E.2d 308, 2008 Va. LEXIS 54 (2008).

The court overruled the holding in Josephs v. Commonwealth to the extent that it can be read to mean that mere possession, without more, can prove guilty knowledge. Young v. Commonwealth, 275 Va. 587 , 659 S.E.2d 308, 2008 Va. LEXIS 54 (2008).

To establish possession, the Commonwealth was required to show that defendant intentionally and consciously possessed cocaine with knowledge of its nature and character. Askew v. Commonwealth, No. 0866-88-1 (Ct. of Appeals Oct. 9, 1990).

Physical possession giving the defendant "immediate and exclusive control" is sufficient for conviction. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

Proof of close proximity is relevant fact. - Proof that a person is in close proximity to contraband is a relevant fact that, depending on the circumstances, may tend to show that, as an owner or occupant of property or of a vehicle, the person necessarily knows of the presence, nature and character of a substance that is found there. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

Mere proximity to a controlled substance is insufficient to establish possession, and, furthermore, no presumption of possession arises from the ownership or occupancy of the premises where drugs are found. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Mere proximity to a controlled drug is not sufficient to establish dominion and control. Drew v. Commonwealth, 230 Va. 471 , 338 S.E.2d 844 (1986).

Although proximity to drugs and the occupancy of a vehicle in which they are found are factors that may be considered in determining whether defendant possessed drugs, these factors, standing alone, do not give rise to a presumption of possession. Tomasinski v. Commonwealth, No. 1338-91-4 (Ct. of Appeals Oct. 13, 1992).

Evidence merely that accused was in the proximity of controlled substances was insufficient to prove that the accused was aware of the presence and character of a controlled substance. Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994).

Although mere proximity to drugs is insufficient to establish possession, it is a circumstance that may be probative in determining whether an accused possessed such drugs. Bright v. Commonwealth, No. 2794-99-1, 2000 Va. App. LEXIS 747 (Ct. of Appeals Nov. 21, 2000).

Ownership of a vehicle where drugs are found and mere proximity to the drugs, though factors which the fact finder may consider, are insufficient alone to prove possession. Scruggs v. Commonwealth, 19 Va. App. 58, 448 S.E.2d 663 (1994).

The duration of the possession is immaterial. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

Ownership or occupancy of the vehicle in which drugs are found is a circumstance probative of possession. Bright v. Commonwealth, No. 2794-99-1, 2000 Va. App. LEXIS 747 (Ct. of Appeals Nov. 21, 2000).

Possession need not always be exclusive. The defendant may share it with one or more. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

Or actual. - See Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

Possession of a controlled substance may be exclusive or joint, actual or constructive. Woodfin v. Commonwealth, 218 Va. 458 , 237 S.E.2d 777 (1977).

Possession of a controlled substance need not be exclusive and may be shared; moreover, possession of a controlled substance may be actual or constructive. McGee v. Commonwealth, 4 Va. App. 317, 357 S.E.2d 738 (1987).

Predicate conviction for 18 U.S.C.S. § 922(g)(1). - Dismissal of indictments for possession of a firearm after having been convicted of a crime punishable by more than one year of imprisonment in violation of 18 U.S.C.S. § 922(g)(1) was affirmed, where the predicate convictions were juvenile adjudications in Virginia state court; a juvenile adjudication was not a conviction under Virginia law, so such an adjudication could not serve as the underlying conviction. United States v. Walters, 359 F.3d 340, 2004 U.S. App. LEXIS 3021 (4th Cir. 2004).

Conviction following revocation of first-offender status was improper. - Circuit court should not have revoked defendant's first-offender status under § 18.2-251 and convicted her of possessing cocaine, in violation of § 18.2-250 , after her stated period of probation ended: (1) the circuit court's order imposing first-offender status explicitly stated that defendant's probation ended on December 21, 2005; (2) although the circuit court continued defendant's case after December 21, 2005, it did so only to ensure that defendant paid court costs, as required under the first-offender order; (3) the circuit court did not explicitly extend defendant's probation beyond December 21, 2005, and such an extension could not occur de facto; and (4) it would not be appropriate to assume that defendant was subject to a continuing, implicit condition of good behavior after her case was continued given that a good behavior condition had been explicitly imposed on her as part of her probation. White v. Commonwealth, 276 Va. 725 , 667 S.E.2d 564, 2008 Va. LEXIS 119 (2008).

Convictions under former § 54-524.76 and this section violated double jeopardy. - Where defendant was convicted under former § 54-524.76 of obtaining a drug by presenting a forged prescription, and for the same transaction was subsequently convicted under this section of possession of a controlled substance, his rights under the double jeopardy clause were violated, since the evidence necessarily used in the first prosecution would totally have sufficed to sustain the second conviction. Jordan v. Virginia, 653 F.2d 870 (4th Cir. 1980).

Simple possession of a controlled substance is a felony. - Enhancement of defendant's sentence pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C) was proper; while the Controlled Substances Act, 21 U.S.C.S. § 801 et seq., would not punish defendant's conduct as a felony, it did define it as a felony given the punishment it received under subsection A of § 18.2-250 . United States v. Wilson, 316 F.3d 506, 2003 U.S. App. LEXIS 616 (4th Cir. 2003), cert. denied, 538 U.S. 1025, 123 S. Ct. 1959, 155 L. Ed. 2d 871 (2003); overruled in part by Lopez v. Gonzales, 127 S. Ct. 625, 166 L. Ed. 2d 462 (U.S. 2006).

Defendant can be convicted of multiple counts of possession. - Subparts of subsection A establish a corresponding level of punishment for narcotics classified under Schedules III; therefore, based upon the plain language of the statute, a defendant can be convicted of multiple counts of possession under the statute if he or she knowingly and intentionally possesses more than one controlled substance, and given the General Assembly's considerable efforts to combat the problem of illegal drugs, this was certainly the legislature's intent. Howard v. Commonwealth, No. 0780-17-1, 2018 Va. App. LEXIS 151 (June 5, 2018).

General Assembly selected "a" controlled substance and "any" controlled substance as the statute's unit of prosecution; by doing so, the legislature selected a term that would permit a defendant to be charged for each controlled substance he possesses, and the courts must give effect to its apparent intent derived from the statute's plain language to punish defendants for each controlled substance that they possess. Howard v. Commonwealth, No. 0780-17-1, 2018 Va. App. LEXIS 151 (June 5, 2018).

Unit of prosecution for the statute, "a controlled substance" and "any controlled substance," indicates that a defendant can likewise receive multiple charges and convictions for possessing more than one controlled substance, even if those controlled substances are packaged in a single container or a single capsule. Howard v. Commonwealth, No. 0780-17-1, 2018 Va. App. LEXIS 151 (June 5, 2018).

Medical treatment defense. - Pursuant to the plain meaning of the phrase "obtains emergency medical attention for himself," a defendant is required to have actively planned and taken steps to actually gain medical treatment, and simply benefiting from such treatment while unconscious is not sufficient to bring a defendant within the ambit of the affirmative defense. Therefore, defendant did not benefit from the affirmative defense and was properly convicted of a drug offense when she was merely the recipient of medical attention and did not request it. Broadous v. Commonwealth, 67 Va. App. 265, 795 S.E.2d 904, 2017 Va. App. LEXIS 26 (2017).

Severance. - Trial court did not err in refusing to sever felon in possession of a firearm indictment from possession of cocaine and possession of firearm charges, as nothing in the record rebutted the presumption that the trial court considered only the evidence relevant to each offense when reaching its decision. Vanhook v. Commonwealth, 40 Va. App. 130, 578 S.E.2d 71, 2003 Va. App. LEXIS 149 (2003).

Suspended sentence. - Trial court did not err in revoking defendant's suspended sentence and re-suspending the suspended sentence for possession of cocaine because by committing new crimes, defendant violated the long established implicit condition of good behavior; committing new felonies qualified as "good cause" by any measure, and the trial court possessed the authority to revoke his previously suspended sentence for crimes committed during the period of suspension. Burnham v. Commonwealth, 298 Va. 109 , 833 S.E.2d 872, 2019 Va. LEXIS 139 (2019).

Revocation of deferred disposition. - Trial court did not abuse its discretion in finding that defendant violated the terms of the plea agreement, as well as its order, by failing to submit to two drug screens, and in convicting him for possession of methamphetamine after having deferred judgment on the charge pursuant to § 18.2-251 . Vogt v. Commonwealth,, 2012 Va. App. LEXIS 170 (May 22, 2012).

Applied in Lawson v. Commonwealth, 217 Va. 354 , 228 S.E.2d 685 (1976); Womack v. Commonwealth, 220 Va. 5 , 255 S.E.2d 351 (1979); Spear v. Commonwealth, 221 Va. 450 , 270 S.E.2d 737 (1980); Livingston v. Commonwealth, 21 Va. App. 621, 466 S.E.2d 757 (1996); Price v. Commonwealth, 24 Va. App. 496, 483 S.E.2d 496 (1997); Perry v. Commonwealth, 55 Va. App. 122, 684 S.E.2d 227, 2009 Va. App. LEXIS 490 (2009); Hicks v. Commonwealth, 281 Va. 353 , 706 S.E.2d 339, 2011 Va. LEXIS 44 (2011); Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011); Herrington v. Commonwealth, 291 Va. 181 , 781 S.E.2d 561, 2016 Va. LEXIS 10 (2016); Salahuddin v. Commonwealth, 67 Va. App. 190, 795 S.E.2d 472 (2017).

II. EVIDENCE.
A. ADMISSION OF EVIDENCE.

Certificate of analysis properly admitted. - On appeal from a conviction of possession of cocaine, the appeals court found that no error resulted from the trial court's admission of a certificate of analysis, as such was turned over to defendant's first counsel, but lost as a result of transferring defendant's case file to his second counsel, and absent evidence to the contrary, such did not impute fault to the Commonwealth. Hobson v. Commonwealth,, 2007 Va. App. LEXIS 388 (Oct. 23, 2007).

In a prosecution on a charge of possession of cocaine, the trial court properly admitted into evidence the certificate of analysis establishing that the substance defendant possessed was cocaine. While there was an inconsistency in the description of the evidence submitted for testing and the description in the certificate, all features on the request for examination form and the certificate matched, including the date of the offense, the identity of the suspect, the identity of the officer, the case numbers assigned, and the certified mail numbers; thus, the request for examination form and the certificate coincided to connect the data analyzed and subjected the certificate to the evidence retrieved by the officer. Herndon v. Commonwealth,, 2009 Va. App. LEXIS 242 (May 26, 2009), aff'd, 280 Va. 138 , 694 S.E.2d 618, 2010 Va. LEXIS 70 (2010).

Where Court of Appeals was unable to say what effect inadmissible evidence had on the fact finder's decision, despite independent evidence of the nature of the controlled substance, defendant's conviction would be reversed. Payne v. Commonwealth, No. 2870-95-4, 1997 Va. App. LEXIS 166 (Ct. of Appeals Mar. 25, 1997).

Admission of a toxicologist's testimony regarding the effects of a prohibited substance was error as the defendant was on trial solely for the illegal possession of such substances; however, reversal was not required where the testimony was not such as to excite the passions of the jury. Lane v. Commonwealth, 223 Va. 713 , 292 S.E.2d 358 (1982).

Involuntary consent. - When officer questioned defendant about suspected drug violations after learning that a traffic citation would not be issued, the officer effected a separate detention without reasonable articulable suspicion and defendant's consent to the search of his person was involuntary. Perry v. Commonwealth, No. 2466-00-2, 2002 Va. App. LEXIS 430 (Ct. of Appeals July 30, 2002).

Refusal to consent to search. - Evidence that defendant refused to consent to the search of his parked vehicle, assuming that the refusal was admissible evidence, did not tend to prove that defendant was exercising dominion and control over the vehicle with knowledge that it contained drugs. His refusal to consent to a search no more established the exercise of dominion and control over the contraband in the vehicle than did his ownership of the vehicle, which was insufficient to prove constructive possession. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

As police officer had no basis to suspect that defendant was engaged in criminal activity or that he was armed, when defendant withdrew his consent to be searched, the officer had no legal basis to continue the encounter. Ellison v. Commonwealth, No. 1619-01-2, 2002 Va. App. LEXIS 337 (Ct. of Appeals June 11, 2002).

Valid search incident to lawful arrest. - Even if the officers had initiated the trespass investigation as a pretext to allow them to further investigate whether the defendant was involved in drug activity, once the officers had probable cause to believe that the defendant was trespassing the legality of seizing and charging him with that offense satisfied the Fourth Amendment requirement that the seizure be reasonable. Thereafter, the officer had the right to search the defendant incident to the arrest and the cocaine found as a result of that search was legally seized. Accordingly, the trial court did not err by overruling the motion to suppress the cocaine. Boone v. Commonwealth, No. 2575-95-2, 1997 Va. App. LEXIS 56 (Ct. of Appeals Feb. 4, 1997).

The totality of circumstances, viewed objectively, was clearly sufficient to provide probable cause to believe that defendant possessed heroin, justifying an immediate warrantless arrest and related search. Jones v. Commonwealth, No. 1586-01-2, 2002 Va. App. LEXIS 355 (Ct. of Appeals June 18, 2002).

The trial court properly denied defendant's motion to suppress the cocaine seized from defendant's person, as a deputy, in conducting an investigatory stop of defendant on foot, observed that defendant smelled of alcohol, had a flushed face, and was unsteady on his feet, supplying the officer with probable cause to arrest defendant for public intoxication. Thus, given the validity of the stop, the trial court correctly denied defendant's suppression motion. Croson v. Commonwealth, No. 0935-06-2, 2007 Va. App. LEXIS 276 (July 24, 2007).

Defendant was properly convicted of possession of cocaine because trial court correctly denied defendant's motion to suppress a crack pipe a police officer seized from his person when the officer was conducting a reasonable search incident to arrest when he removed the crack pipe from defendant's pocket; because defendant refused to allow a police officer to conduct a pat-down search and struggled with the officer, the officer had probable cause to arrest defendant for obstruction of justice. Pettaway v. Commonwealth,, 2009 Va. App. LEXIS 178 (Apr. 21, 2009).

Court of appeals properly applied the right result for the wrong reason doctrine to deny defendant's motion to suppress and affirm his conviction because the facts in the record established that the police officer had probable cause to arrest defendant for possession of PCP in violation of § 18.2-250 before the pat-down search since the officer noted the smell of drugs in the vehicle, verified the existence of PCP in the vial thrown on the ground, and identified defendant's behavior as being consistent with that of an individual under the influence of PCP. At that point, based on his training and experience as a police officer, the officer had probable cause to believe that defendant possessed PCP; as a result, the subsequent search of defendant was a lawful search incident to arrest under the Fourth Amendment. Perry v. Commonwealth, 280 Va. 572 , 701 S.E.2d 431, 2010 Va. LEXIS 271 (2010).

Circuit court did not err in denying defendant's motion to suppress the seizure and search of a folded dollar bill defendant passed to a companion because the Fourth Amendment permitted a search of the bill incident to the arrests of defendant and the companion; the companion's act of handing the dollar bill to a police officer was more than acquiescence and amounted to consent to the officer's explicit request to seize the bill. Kersey v. Commonwealth, No. 1324-16-2, 2017 Va. App. LEXIS 220 (Aug. 29, 2017).

Probable cause to stop followed by consensual search established proper seizure. - Where § 46.2-1054 prohibits driving a vehicle "with any object . . . suspended from any part of the motor vehicle in such a manner as to obstruct the driver's clear view of the highway through the windshield," and police officer has the authority to detain a vehicle upon his belief that the vehicle is being operated in violation of the law, the trial judge did not err in finding that the trooper had authority to stop the vehicle and to issue a summons. Thus, defendants' Fourth Amendment rights were not violated by detaining them and their vehicle, and any illegal drugs then obtained from a consensual search were properly seized. Pegram v. Commonwealth, Nos. 1041-95-2, 1042-95-2, 1996 Va. App. LEXIS 611 (Ct. of Appeals Sept. 24, 1996).

Evidence sufficient for probable cause. - Facts and circumstances available to the officers when they arrested and searched defendant provided them with probable cause to believe defendant constructively possessed the cocaine found in the center console of the vehicle. Among other things, the vehicle's registered owner, the only other occupant of the car, admitted possessing the homemade smoking devices found in a purse in the car, but specifically denied knowing anything about the separate container in which the drugs were found; the officers were also armed with the additional knowledge that defendant had just engaged in suspicious behavior suggestive of a drug transaction with a person traveling in a rental vehicle, and they observed a large bulge in defendant's pants pocket that defendant admitted was a roll of cash. Dodd v. Commonwealth, 50 Va. App. 301, 649 S.E.2d 222, 2007 Va. App. LEXIS 316 (2007).

Where, based on observations and a woman's statement that defendant hit her, an officer had probable cause to arrest defendant for assault, and upon seeing white powder on defendant's face and in his nose, the officer had probable cause to arrest him for cocaine possession, the officer's actions in handcuffing defendant and placing him in the police car did not violate U.S. Const., Amend. IV. Davis v. Commonwealth,, 2010 Va. App. LEXIS 281 (July 20, 2010).

No probable cause to arrest. - Where an arrestee was arrested for conspiracy and possession with intent to distribute synthetic cannabinoids, an officer was properly denied summary judgment based on qualified immunity as to the arrestee's Fourth Amendment claim because the officer lacked probable cause to arrest the arrestee under Va. Code Ann. § 18.2-248.1:1 (F) since the officer failed to produce any evidence that the private compounder of the substances at issue had a specific intent to evade the criminal penalties for synthetic cannabinoids. Rogers v. Stem, 590 Fed. Appx. 201, 2014 U.S. App. LEXIS 21263 (4th Cir. Nov. 6, 2014).

Terry stop. - Defendant's suppression motion was improperly denied as police searched defendant for illegal substances, not for weapons, in Terry stop, and were not following leads prior to their misconduct, making the doctrine of inevitable discovery inapplicable; the white powder found on defendant during the search should have been suppressed. Jones v. Commonwealth, No. 1077-02-2, 2003 Va. App. LEXIS 189 (Ct. of Appeals Apr. 1, 2003).

Detention in police vehicle not an illegal seizure. - Officer's direction to defendant to have a seat in the vehicle was reasonable as her presence on the roadside, in the rain, endangered her and the officers; defendant's detention was reasonable and did not taint her consent to a purse search which revealed her illegal possession of cocaine. Austin v. Commonwealth, No. 0082-03-1, 2003 Va. App. LEXIS 587 (Ct. of Appeals Nov. 12, 2003).

Valid search under plain view doctrine. - Trial court erred in suppressing evidence pertaining to defendant's indictment for unlawful possession of controlled substances; as a police officer lawfully seized ammunition under a search warrant for a gun, the officer was in a lawful position to view the crack pipe and the bottles of prescription drugs, and therefore, lawfully seized the crack pipe and drugs under the plain view doctrine. Commonwealth v. Marek, No. 2123-02-4, 2003 Va. App. LEXIS 46 (Ct. of Appeals Feb. 5, 2003).

Because an informant's identification, coupled with the police officers' corroboration, provided probable cause to approach a vehicle, and because cocaine was in plain view on defendant's lap in the passenger seat, there was probable cause to arrest defendant for possession of cocaine; therefore, the trial court properly denied defendant's motion to suppress. Turner v. Commonwealth,, 2006 Va. App. LEXIS 314 (July 18, 2006).

Suppression motion properly denied. - Where a police officer acted appropriately in removing defendant from a car and restraining him after defendant failed to comply with an order to show defendant's hands, the discovery of the drugs resulted from that removal and restraint; accordingly, the trial court correctly denied defendant's motion to suppress and convicted defendant of possession of drugs under §§ 18.2-250 and 18.2-250.1 . Smith v. Commonwealth, No. 1947-03-1, 2004 Va. App. LEXIS 243 (Ct. of Appeals May 25, 2004).

In a case in which defendant had been convicted of violating §§ 18.2-250 , 18.2-308.2 , 18.2-308.4 , and subsection C of § 18.2-57 , he argued unsuccessfully that the Court of Appeals of Virginia erroneously upheld the circuit court's denial of his motion to suppress the evidence because his encounter with the police officers was not consensual, and the officers lacked any reasonable suspicion to believe that he was engaged in criminal activity. During the encounter, which lasted only two or three minutes, the police checked the "ban list" but did not engage in any show of force or use language indicating that defendant was required to remain at that location, the police did not tell him that he was required to stay, and defendant did not make any attempt to leave; instead, defendant remained in the area, standing about five feet away from the officers while his companion moved to sit on some nearby steps. Montague v. Commonwealth, 278 Va. 532 , 684 S.E.2d 583, 2009 Va. LEXIS 113 (2009), cert. denied, 130 S. Ct. 1537, 176 L. Ed. 2d 133, 2010 U.S. LEXIS 1456 (U.S. 2010).

Police officer's recovery of heroin from defendant did not occur during or as a direct result of any allegedly unlawful seizures, but instead the discovery of the heroin occurred during a search incident to the arrest of defendant for obstruction of justice. Therefore, the trial court did not err in denying defendant's motion to suppress. Boykins v. Commonwealth, No. 0972-15-1, 2016 Va. App. LEXIS 162 (Ct. of Appeals May 17, 2016).

In a possession of a Schedule II controlled substance case, defendant's motion to suppress was properly denied as the officer would have inevitably discovered the drugs because the officer responded to a 911 call reporting an altercation involving an individual armed with a knife outside of a home; when the officer arrived, defendant was holding a folding knife in his right hand with the blade open and extended; the brother told the officer that defendant had threatened to stab him and that he felt fear when defendant displayed the knife; the officer had probable cause to arrest defendant for assault; and a search of defendant's person incident to the arrest would have led to the discovery of the drugs found in defendant's pants pockets. Harris v. Commonwealth, No. 1149-16-2, 2017 Va. App. LEXIS 159 (July 5, 2017).

Entry of a knowing and voluntary, but non-conditional plea waived appeal from denial of motion to suppress. - Because defendant did not enter a conditional guilty plea pursuant to § 19.2-254 , to a charge of possession of Oxycodone, but he entered said plea voluntarily and intelligently, he waived his right to appeal from the judgment denying his motion to suppress the evidence seized against him. Hill v. Commonwealth, 47 Va. App. 667, 626 S.E.2d 459, 2006 Va. App. LEXIS 63 (2006).

B. EVIDENCE OF KNOWLEDGE.

When ownership of property sufficient to support possession inference. - In order for ownership or occupancy of property or of a vehicle to be sufficient to support the inference that the owner or occupant also possessed contraband that was located on the property or in the vehicle, the owner or occupant must be shown to have exercised dominion and control over the premises and to have known of the presence, nature, and character of the contraband at the time of such ownership or occupancy. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

Ownership or occupancy alone is insufficient to prove knowing possession. - Ownership or occupancy of a vehicle or of premises where illicit drugs are found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the vehicle or on the premises in order to prove that the owner or occupant constructively possessed the contraband; however, ownership or occupancy alone is insufficient to prove knowing possession of drugs located on the premises or in a vehicle. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

Items in vehicle failed to establish link between defendant and marijuana. - Commonwealth's evidence failed to establish any link between defendant and the marijuana found in his vehicle, other than defendant's ownership of the vehicle. The nature of the other items found in the vehicle that were shown to belong to defendant, the handgun and cellular phone, did not tie him to the drugs or drug paraphernalia. Those are items frequently found in vehicles where the owner or occupant has no relation to drug trafficking. To the extent that receipt for a gun purchase, phone bill, defendant's wallet and driver's license in the vehicle could prove that defendant recently occupied the vehicle, the evidence did not support an inference that the drugs were in the vehicle at the time. Burchette v. Commonwealth, 15 Va. App. 432, 425 S.E.2d 81 (1992).

Evidence was insufficient to prove beyond a reasonable doubt that defendant was aware of the presence and character of the cocaine where automobile was owned by the driver, no evidence established how long defendant had been in the automobile or that he was the person in the automobile when the police received the report, likewise, no evidence proved that the defendant saw the small pieces of cocaine among the other items on the accessory tray on the console or that he recognized the items to be cocaine, and the evidence also failed to prove that the defendant knew that the can with cocaine residue was under the seat where he sat. Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863 (1994).

Defendant's mere occupancy of a hotel room, standing alone, was insufficient to establish knowing and intentional possession of cocaine residue. Askew v. Commonwealth, No. 0866-88-1 (Ct. of Appeals Oct. 9, 1990).

Sufficiency of evidence of awareness of presence and character of drugs. - There was insufficient evidence that defendant was aware of the presence and character of the cocaine because the automobile where the cocaine was found was not registered to him, and despite the fact that he owned some of the other property found therein; furthermore, while defendant did not dispute that he exercised dominion and control over the vehicle in order to drive it, his proximity in the car to the cocaine was insufficient to support the conviction. Patterson v. Commonwealth,, 2006 Va. App. LEXIS 253 (June 6, 2006).

Despite the fact that the Commonwealth's attorney conceded at trial that the Commonwealth had not proved that defendant knowingly or intentionally possessed cocaine found in defendant's pocket, the evidence was sufficient to support defendant's conviction of possession of cocaine under circumstances in which, in his statement to the officer, defendant did not deny knowledge of the cocaine's presence in his pocket, but merely claimed the cocaine was not his and that his brother had put it there; the trial judge disbelieved this statement and disbelieved the testimony of defendant's brother. Castilloux v. Commonwealth,, 2007 Va. App. LEXIS 358 (Oct. 2, 2007).

Sufficient evidence supported a conviction for possession of a controlled substance under subsivision A(a) of § 18.2-250 , where defendant admitted to an officer that he thought the substance in a bag he found was drugs and that he might be able to sell it. This clearly showed that defendant was aware of the nature and character of the substance. Christian v. Commonwealth, 59 Va. App. 603, 721 S.E.2d 809, 2012 Va. App. LEXIS 47 (2012).

Evidence was sufficient to establish that defendant knowingly possessed oxycodone because the Commonwealth was not required to establish that he could specifically identify oxycodone as the narcotic contained in the pills in his possession; when defendant identified the pills by their brand name, Percocet, he demonstrated that he knew the nature and character of the substance. Johnson v. Commonwealth,, 2016 Va. App. LEXIS 7 (Jan. 12, 2016).

Defendant's convictions of possession of cocaine and marijuana were affirmed, as the evidence supported the trial court's conclusion that defendant was aware of the nature and character of the drugs in the vehicle; he was the driver and sole occupant of the vehicle, and when pursued by officers, he fled, leaving the trial court free to infer that he was fleeing because he knew the bag in the front seat contained drugs. Parker v. Commonwealth, No. 1488-17-1, 2018 Va. App. LEXIS 324 (Nov. 20, 2018).

Fact-finder could find that defendant knew of the presence and character of drugs based on the location in which they were found because a digital scale, plastic bags, and packaging were found in plain view, and marijuana, cocaine, money, and more packaging were found in the first drawer of the dresser in the main bedroom of his residence; also, a confidential informant previously purchased marijuana from the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Trial court erred in denying defendant's motion to strike the charge of possession of Oxycodone because there was insufficient evidence to support the court's finding that defendant was aware of the presence and character of the Oxycodone pill that was found in a balled up sheet of notebook paper in the console of the car which defendant was driving during a traffic stop. Yerling v. Commonwealth, No. 1705-18-1, 71 Va. App. 527, 838 S.E.2d 66, 2020 Va. App. LEXIS 44 (2020).

Evidence was sufficient to sustain a possession of a controlled substance conviction where appellant saw, touched, repackaged and carried a half pill of Adderall in a manner similar to street users, and his claim that he sought over the counter pain medication because of excruciating pain that limited him to being focused on laying back on the passenger seat of a car was belied by the fact that he neither took the medication nor sought to obtain a drink to assist him in taking the medication. Swinea v. Commonwealth, No. 0105-20-1, 2020 Va. App. LEXIS 314 (Dec. 22, 2020).

Evidence was sufficient to convict defendant of possession of a controlled substance as he had knowledge of the nature and character of the substance in his possession because defendant's mistaken identification of the substance as cocaine was not a defense under this statute; his mistaken identification of the substance as cocaine was evidence that he was aware that the substance in his possession was, in fact, a controlled substance; and he made statements to an officer regarding his drug use, from which the officer inferred that defendant claimed ownership of the narcotics and from which the trial court could have inferred the same. Powell v. Commonwealth, No. 0055-20-3, 2021 Va. App. LEXIS 58 (Apr. 13, 2021).

Knowledge of each controlled substance not necessary. - Given the General Assembly's intent in enacting the statute to combat the spread of illegal drugs and given the decisions of courts of appeals in sister states in similar cases, the Commonwealth is not required to prove that a defendant knows each controlled substance that a capsule contains in order to support convictions for both controlled substances contained in the capsule, as long as the defendant knows that the capsule contains at least one controlled substance. Howard v. Commonwealth, No. 0780-17-1, 2018 Va. App. LEXIS 151 (June 5, 2018).

While a defendant may be ignorant of the exact substance he or she possesses, his or her ignorance is not a defense where he or she had the general mens rea to possess a controlled substance; consequently, given the General Assembly's intent to combat the scourge of drugs, a defendant who had the general mens rea to possess a controlled substance, but actually possessed more than one controlled substance in the same container, is not entitled to a reversal of each conviction. Howard v. Commonwealth, No. 0780-17-1, 2018 Va. App. LEXIS 151 (June 5, 2018).

Insufficient evidence of knowledge. - There was insufficient evidence to support defendant's convictions for possession of cocaine and possession of cocaine with intent to distribute because the evidence that linked the passenger to the drugs and established his guilt did not also link defendant to the drugs and establish defendant's guilt. Defendant did not arouse suspicion when stopped, he was cooperative, he consented to both searches, and he had no drugs on his person or in his bedroom. No acts, statements, or conduct of defendant suggested that he knew the drugs were present or consciously exercised dominion and control over them. The evidence never placed defendant in the presence of drugs in plain view. It did not show any joint action or effort that permitted an inference of joint enterprise or possession. Silencieux v. Commonwealth, No. 2701-03-2, 2004 Va. App. LEXIS 355 (Ct. of Appeals July 20, 2004).

Evidence was insufficient to support defendant's convictions for felony possession of cocaine and misdemeanor possession of marijuana because although defendant was in close proximity to the drugs found under his car seat, the evidence did not establish that he was aware of their presence; defendant was a passenger in a car that was owned and driven by another individual, the cocaine and marijuana were hidden from his view, and there was no evidence that he could see the substances. Moore v. Commonwealth,, 2015 Va. App. LEXIS 344 (Nov. 24, 2015).

Sufficient evidence of knowledge of presence of contraband. - Where pipe was found under the driver's seat of the defendant's small car; when he was asked whether he knew what it was, he answered that it was a crack pipe, demonstrating that he was aware of the character of the contraband; and pipe's location - immediately under the driver's seat, uncovered, in a very clean car - combined with the defendant's statement at trial that he had done drugs with the passenger in the past, evidence supported the trial judge's conclusion that the defendant knew of the presence of the contraband. Brinkley v. Commonwealth, No. 1895-96-1, 1997 Va. App. LEXIS 498 (Ct. of Appeals July 22, 1997).

Evidence was sufficient to support a conviction for possession of cocaine where the defendant admitted that he owned and smoked marijuana in a pipe seized by the police from his person, notwithstanding his statement that the only drug he was aware of in the pipe was marijuana. Sellick v. Commonwealth, No. 2702-97-3, 1998 Va. App. LEXIS 621 (Ct. of Appeals Dec. 8, 1998).

Evidence that the drugs were found in a vehicle owned and occupied by defendant, that the officer retrieved the drugs from right on top of a console located next to defendant's seat and within defendant's reach, and that 10 syringes were found beneath defendant's seat, permitted an inference that defendant had knowledge of the presence of the drugs. The trial judge was entitled to infer that defendant's explanation was an effort to conceal guilt. Throckmorton v. Commonwealth,, 2007 Va. App. LEXIS 196 (May 15, 2007).

Presence of white powder on a dollar bill in defendant's pocket, which was clearly visible and of sufficient size to be sampled, supported the finding that defendant knowingly possessed heroin in violation of § 18.5-250. Jordan v. Commonwealth, No. 1155-06-1, 2007 Va. App. LEXIS 259 (Ct. of Appeals June 26, 2007).

Defendant's conviction for possession of heroin under § 18.2-250 was supported by the evidence since defendant did not raise below an alternate hypothesis that someone put a heroin capsule in defendant's hand while defendant was unconscious; the hypothesis of innocence relied solely on the "imagination of defense counsel" rather than any specific evidentiary support. Spivey v. Commonwealth,, 2007 Va. App. LEXIS 467 (Dec. 27, 2007).

Sufficient evidence supported defendant's conviction for possession of cocaine and, thus, the revocation of a previously suspended sentence, where a rock of crack cocaine was found in a pocket of pants that defendant was wearing. The jury was entitled to reject the testimony of two witnesses claiming that defendant was wearing a pair of borrowed pants. Horne v. Commonwealth,, 2010 Va. App. LEXIS 220 (June 1, 2010).

Evidence was sufficient to support defendant's conviction for possession of a controlled substance, in violation of § 18.2-250 , because the plain language of § 18.2-250 required defendant to now that the substance he possessed was in fact a controlled substance, but did not require defendant to know precisely what controlled substance it was. Sierra v. Commonwealth, 59 Va. App. 770, 722 S.E.2d 656, 2012 Va. App. LEXIS 74 (2012).

Evidence was sufficient to demonstrate that defendant was aware of the contraband's presence and knowingly possessed it, for purposes of his conviction; he was the sole occupant of the truck, which was purchased for him, it was highly unlikely that defendant never decided to look under the conspicuous towel wrapped around the shifter of his truck, and great weight was given to the conclusions of the investigator and the trial court that a towel's appearance was unusual and intended to hide the contraband. Dugan v. Commonwealth,, 2015 Va. App. LEXIS 313 (Nov. 3, 2015).

Evidence was sufficient to convict defendant of felony possession of oxycodone because it was undisputed that defendant possessed oxycodone on his person; and defendant knew he was in possession of a controlled substance as the seven pink pills were packaged inside a plastic baggie and stuffed inside a pill bottle that did not have a label and such packaging would make it obvious to an observer that the pills had not been packaged by a pharmacist pursuant to a prescription or doctor's order, and a visual examination of the physical characteristics of the pills, including shape, color and manufacturer's markings was consistent with the pharmaceutical preparation of oxycodone. Stallings v. Commonwealth,, 2015 Va. App. LEXIS 323 (Nov. 10, 2015).

Defendant was properly convicted for both possession of heroin and possession of fentanyl because the evidence was sufficient for a rational factfinder to conclude he was aware of a capsule's presence and knew it contained at least one controlled substance; since the evidence showed defendant knowingly and intentionally possessed the capsule with the general mens rea it contained at least one illegal controlled substance, he was criminally liable for whatever controlled substances it contained. Howard v. Commonwealth, No. 0780-17-1, 2018 Va. App. LEXIS 151 (June 5, 2018).

Rational trier of fact could have found that defendant had knowledge of the illicit drugs because he was the registered owner of the vehicle and was the driver and sole occupant of the vehicle when an officer pulled him over; a conservative estimate of the drugs found in defendant's car was over a thousand dollars; and items found on defendant's person were consistent with the distribution of narcotics. Jefferson v. Commonwealth, No. 1421-19-2, 2020 Va. App. LEXIS 239 (Oct. 6, 2020).

Knowledge not inferred from having been seen with known cocaine supplier. - Defendant's knowledge of the cocaine could not be inferred from his having been seen with a known cocaine supplier shortly before his arrest, where the evidence proved only that defendant had some conversation with the supplier, but there was no evidence regarding what they discussed. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Defendant's awareness of the cocaine could not be inferred from his failure to show surprise upon being arrested, even if the proposition that guilty knowledge may be inferred from a failure to show surprise at being arrested were to be accepted, where the only evidence regarding defendant's reaction to his arrest came from a police officer who testified that defendant was cooperative and made no attempt to escape. This testimony did not establish lack of surprise. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

C. EVIDENCE OF CONSTRUCTIVE POSSESSION GENERALLY.

Circumstantial evidence of possession. - Possession may be proved by evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of narcotics at the place where they were found. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Circumstantial evidence of possession is sufficient to establish possession, provided it excludes every reasonable hypothesis of innocence. However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant. Whether a hypothesis of innocence is reasonable is a question of fact, and a finding by the trial court is binding on appeal unless plainly wrong. Holland v. Commonwealth, No. 0664-96-1, 1997 Va. App. LEXIS 93 (Ct. of Appeals Feb. 25, 1997).

Circumstantial evidence is sufficient to support a conviction as long as it excludes every reasonable hypothesis of innocence. Tucker v. Commonwealth, 18 Va. App. 141, 442 S.E.2d 419 (1994).

That one is merely present at the scene of a crime or in the company of a person engaging in criminal activity is not, by itself sufficient to establish probable cause. Seemingly innocent activity, though not conclusive of probable cause, may provide the basis for a showing of probable cause when considered in the context of all the surrounding circumstances. Taylor v. Waters, 81 F.3d 429 (4th Cir. 1996).

The Commonwealth need not affirmatively disprove all theories which might negate the conclusion that the defendant possessed a controlled substance, but the conviction will be sustained if the evidence excludes every reasonable hypothesis of innocence. Harrison v. Commonwealth, No. 1973-99-1, 2000 Va. App. LEXIS 581 (Ct. of Appeals Aug. 8, 2000).

Where the evidence showed that defendant was in a high drug area, defendant was sitting on a bag of cocaine, no one else was sitting near defendant, and defendant would have noticed the bag due to a large knot, there was sufficient circumstantial evidence to support the conviction; the reasonable-hypothesis rule did not impose a higher burden of proof on the Commonwealth. Haskins v. Commonwealth, 44 Va. App. 1, 602 S.E.2d 402, 2004 Va. App. LEXIS 438 (2004).

To support a conviction based upon constructive possession, the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

How constructive possession may be shown. - Constructive possession may be shown by evidence establishing that the contraband was subject to defendant's dominion or control. Woodfin v. Commonwealth, 218 Va. 458 , 237 S.E.2d 777 (1977).

The defendant may be shown to have had constructive possession by establishing that the drugs involved were subject to his dominion or control. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

Constructive possession may be shown by establishing that the contraband was known and subject to the dominion and control of the accused. Harrison v. Commonwealth, No. 1973-99-1, 2000 Va. App. LEXIS 581 (Ct. of Appeals Aug. 8, 2000).

Insufficient evidence of constructive possession. - Evidence did not support finding that defendant constructively possessed contraband, even though it was found in a house which he occupied, where evidence did not show that the defendant was in the dwelling recently enough to permit a reasonable inference that he was aware of the presence of the contraband. No direct evidence placed the defendant in the house; while police found mail addressed to him on a dresser in a bedroom, the postmark on the mail was six days before the discovery of the contraband; and they also found evidence of at least one other person living in the house. Diggs v. Commonwealth, No. 0957-93-2, 1994 Va. App. LEXIS 622 (Ct. of Appeals Oct. 11, 1994).

Under this section, proof that contraband was found in premises owned or occupied by the defendant is insufficient, standing alone, to prove constructive possession. Such evidence is probative, but it is only a circumstance which may be considered along with the other evidence. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986); Wynn v. Commonwealth, 5 Va. App. 283, 362 S.E.2d 193 (1987).

Defendant was found showering in a bath accessed by a hallway in the apartment, and the evidence established only that he entered the living room and bathroom. No drugs or firearms were found on or near his person, and he engaged in no conduct suggestive of an awareness that contraband was present on the premises. No evidence proved that he had an ownership or possessory interest in the apartment. Thus, save defendant's presence, the proximity of his property to contraband, and a key to the apartment on his key ring, nothing in the record related him to the offenses. While highly suspicious, these circumstances are insufficient to prove, to the exclusion of every reasonable hypothesis of innocence, that the drugs and weapons were subject to defendant's dominion and control. Boley v. Commonwealth, No. 1943-95-1, 1996 Va. App. LEXIS 521 (Ct. of Appeals July 23, 1996).

Evidence was insufficient to prove possession where drugs were found on rear floor of car occupied by four persons, and defendant made no furtive movements before or after stop or did anything else to incriminate himself. Tables v. Commonwealth, No. 1419-99-1, 2000 Va. App. LEXIS 149 (Ct. of Appeals Feb. 29, 2000).

Officer's observation of passenger's movement during traffic stop raised only a suspicion that his movement bore a connection to cocaine found in vehicle, and passenger's warning to other occupant not to "tell a lie" likewise established no inference connecting passenger to cocaine. McCray v. Commonwealth, No. 0200-99-2, 2000 Va. App. LEXIS 208 (Ct. of Appeals Mar. 21, 2000).

The evidence failed to establish that the defendant had the requisite knowledge of the presence and character of the offending contents of a bag found on the floor of the vehicle she was operating where the vehicle was owned by a third party, no evidence established the duration of the defendant's possession or familiarity with the vehicle, the bag containing drug paraphernalia and attendant residue, although in plain view on the floorboard, was opaque and closed, its contents hidden from casual observation and, apart from the defendant's nervousness, a response consistent with anxiety attributable to her suspended license, the record revealed no furtive movements, statements or other circumstances suggestive of an awareness that the bag contained contraband. Wallman v. Commonwealth, No. 0169-99-1, 2000 Va. App. LEXIS 314 (Ct. of Appeals May 2, 2000).

Even if it was assumed that the Commonwealth's suggestion that the defendant's appearance at a residence where narcotic sales were suspected to occur and his possession of stolen property were factors that indicated he was a drug user, the Commonwealth failed to establish that the defendant ever used the coffee straw containing heroin residue, that was found in the vehicle he was driving, to consume heroin or was aware that it had been used by anyone else for such a purpose; the evidence when viewed in the light most favorable to the Commonwealth, established nothing more than mere proximity to the coffee straw containing heroin residue and fell short of removing every reasonable hypothesis consistent with innocence. Harrison v. Commonwealth, No. 1973-99-1, 2000 Va. App. LEXIS 581 (Ct. of Appeals Aug. 8, 2000).

There was insufficient evidence that defendant, a front-seat passenger in a car where a bag of cocaine was found in between the driver's seat and the passenger's seat, possessed the cocaine. Defendant had not tried to hide the bag as an officer approached the car and had not exhibited any other signs of guilty knowledge; there was no evidence regarding how long he had been in the car; and although the officer could see the bag with the illumination he provided, there was no evidence that the bag would have been visible in the darkness of the passenger compartment without such additional lighting. Coward v. Commonwealth, 48 Va. App. 653, 633 S.E.2d 752, 2006 Va. App. LEXIS 397 (2006).

Evidence was insufficient to support defendant's possession of cocaine conviction under § 18.2-250 as the Commonwealth proved only that defendant was within mere proximity to the cocaine found on the ground; neither officer saw defendant make a throwing motion prior to being handcuffed and neither officer heard anything land on the ground. Davis v. Commonwealth,, 2009 Va. App. LEXIS 57 (Feb. 10, 2009).

Evidence was insufficient to establish defendant's constructive possession of cocaine because, while the circumstantial evidence may have been sufficient to raise a suspicion of guilt, it did not support a conclusion beyond a reasonable doubt by a rational trier of fact, that cocaine found in the bedroom of the home of defendant's uncle was subject to defendant's dominion and control. The evidence consisted of defendant's repeated references to the bedroom as defendant's bedroom and subsequent denial that defendant was living at the house when the police told defendant that drugs were found in the room, along with defendant's personal effects and a police detective's business card, which had been given to defendant two days previously, that were found in the room. Cordon v. Commonwealth, 280 Va. 691 , 701 S.E.2d 803, 2010 Va. LEXIS 275 (2010).

Defendant's conviction for possession of marijuana with the intent to distribute in violation of § 18.2-248.1 was reversed because the facts were insufficient to prove that defendant possessed the marijuana since the only facts were that defendant was the owner of the parked car and that he had custody of a set of keys to that car; there was no timeline for when defendant was last in the vehicle or if he was in fact the last person in the vehicle, although defendant had possession of the key to the vehicle, nothing indicated that he had possession of the only key, and defendant was cooperative in providing the key to the glove compartment upon request. Lewis v. Commonwealth,, 2011 Va. App. LEXIS 136 (Apr. 26, 2011).

Evidence was insufficient to support defendant's convictions for intent to distribute marijuana and possession of a Schedule IV controlled substance because, despite the presence of defendant's personal documents at the apartment, there was no testimony establishing defendant's presence at the apartment where the drugs were found. Defendant was not present at the apartment when the search warrant was executed, and there was no evidence that defendant constructively possessed the drugs by exercising dominion and control over the drugs. McLaurin v. Commonwealth, No. 1728-19-4, 2020 Va. App. LEXIS 265 (Nov. 4, 2020).

Sufficient evidence of constructive possession. - Evidence supported the conclusion that defendant constructively possessed cocaine where defendant occupied both the house and, in particular, the lit bedroom where the cocaine was found in plain view; before the police entered her bedroom, the bedroom door was shut; when they entered, defendant was awake and approaching the door; the cocaine was three to four feet from her on the floor and in plain view; and no other person occupied her room or was present when the officers entered. These circumstances support the inference that defendant knew of the existence of the cocaine and had dominion and control over it. McNair v. Commonwealth, No. 2080-93-1, 1994 Va. App. LEXIS 675 (Ct. of Appeals Nov. 15, 1994).

Evidence that defendant was present where drugs were found in plain view, circumstances suggesting that he could have easily exercised dominion and control over those drugs, and the circumstances not suggesting that the drugs were presently or had recently been in the exclusive possession of one of the other persons in the room, was sufficient to prove constructive possession. Thrasher v. Commonwealth, No. 1773-92-3, 1994 Va. App. LEXIS 283 (Ct. of Appeals May 10, 1994).

Here, the evidence disclosed that appellant was more than in "mere proximity" to the cocaine. He was present at the table to smoke cocaine. The pipe containing cocaine residue necessary to complete that intent was within an arm's length of his reach. The chunks of cocaine on the table were in plain view. Therefore, the trial court could reasonably infer that the cocaine was jointly possessed by the four men seated at the table and that it was possessed for their exclusive use. Henry v. Commonwealth, No. 1205-95-3, 1996 Va. App. LEXIS 352 (Ct. of Appeals May 14, 1996).

Evidence was sufficient to establish constructive possession of an antenna section containing cocaine residue where: (1) defendant was the sole occupant of vehicle approached by officer; (2) when the officer approached, defendant immediately exited the vehicle; (3) the antenna section, with visible residue, together with the cigarette lighter, were found in plain view on the driver's floorboard; and (4) defendant gave inconsistent statements about his ownership of the vehicle, the time he had control of the car and its contents, and his reason for being stopped. Jones v. Commonwealth, No. 1398-97-1, 1998 Va. App. LEXIS 174 (Ct. of Appeals March 24, 1998).

Evidence was sufficient to show constructive possession of cocaine found in an automobile where, upon seeing police officers, the defendant reached toward the center console and made a "pushing" action at the point where the cocaine was found, and papers found in the glove box supported the finding that the automobile was in the defendant's possession and under his control. Thomas v. Commonwealth, No. 2561-97-1, 1998 Va. App. LEXIS 607 (Ct. of Appeals Dec. 1, 1998).

Evidence was sufficient to prove constructive possession of cocaine where the police found a rock of unwrapped cocaine lying in plain view on the headboard of the defendant's bed while executing a search warrant in the apartment; the defendant kept his personal property in the room where police found the drugs, readily identified the hidden location of a gun, evidencing his familiarity with the room and its contents, and there was no evidence that anyone other than the defendant had been in the bedroom prior to the discovery of drugs within it. Wyche v. Commonwealth, No. 2729-97-1, 1999 Va. App. LEXIS 55 (Ct. of Appeals Jan. 26, 1999).

Evidence was sufficient to establish constructive possession of cocaine where: (1) an officer stopped the defendant in a car registered in his name; (2) at the time of the stop, the defendant was the sole occupant of his vehicle, which contained a multitude of papers bearing his name; (3) after observing the defendant "digging through" the bags and papers in the rear seat, ostensibly in response to the officer's request for his driver's license and registration, the officer asked the defendant to step out of the car; (4) upon searching the car, the officer found two cans containing cocaine residue hidden from plain view in separate places within the passenger compartment, which cans were noticeably modified for the purpose of using them as a smoking device; and (5) the defendant admitted that he knew of their presence. Clark v. Commonwealth, No. 0918-98-1, 1999 Va. App. LEXIS 237 (Ct. of Appeals Apr. 27, 1999).

Evidence was sufficient to prove that defendant constructively possessed cocaine found in vehicle in his shoe. Roundy v. Commonwealth, No. 2695-98-1, 1999 Va. App. LEXIS 682 (Ct. of Appeals Dec. 21, 1999).

Evidence was sufficient to find defendant in constructive possession of the cocaine where an object fell from defendant's pocket as his hand was withdrawn from the pocket; defendant disobeyed the officer's direction to remove his hands from his pockets; and a pipe, which contained cocaine, was found exactly where the object had fallen, where defendant's foot had been. Gunn v. Commonwealth, No. 1788-99-3, 2000 Va. App. LEXIS 441 (Ct. of Appeals June 13, 2000).

The evidence sufficiently supported defendant's conviction for possession of heroin in light of the fact that the defendant resided in a home where the heroin was found, the defendant was an admitted heroin user, heroin residue and other drug paraphernalia were found in plain view in the kitchen, a room of common access and use within the home, and the defendant was found in a room near the kitchen; the trial judge could find beyond a reasonable doubt from the totality of these circumstances that the defendant knew of the presence and character of the heroin and that he intentionally and consciously had constructive possession of it. Gray v. Commonwealth, No. 0669-00-2, 2001 Va. App. LEXIS 227 (Ct. of Appeals May 1, 2001).

The evidence was sufficient to support defendant's conviction where the Commonwealth proved that the defendant was the sole person in the room at the time a police officer arrived, that the defendant had been sleeping in the room, that the drugs were found in the bathroom on top of the toilet seat and that the drug paraphernalia was in the plain view of someone standing at or near the doorway to the room; viewed in the light most favorable to the Commonwealth, this evidence supported the reasonable inference that the defendant was aware of the presence and character of the paraphernalia and contraband. Devaul v. Commonwealth, No. 1345-00-1, 2001 Va. App. LEXIS 306 (Ct. of Appeals June 5, 2001).

Totality of the evidence sufficiently proved that defendant constructively possessed the contraband, which was in plain sight and within defendant's reach in a place where defendant's personal belongings were also found. Harris v. Commonwealth, No. 2183-01-1, 2002 Va. App. LEXIS 432 (Ct. of Appeals July 30, 2002).

Evidence was sufficient to sustain defendant's conviction of possession of cocaine where the totality of the evidence supported a finding that defendant knew of the presence and character of cocaine that was found in a suitcase in a residence, and intentionally and consciously had constructive possession of it given that defendant's wallet was found with drug paraphernalia in the bedroom where the suitcase was found; the suitcase contained men's clothing, including the pair of men's socks in which the cocaine was hidden; no men other than defendant were observed in the house; and defendant had told the police officer who found the suitcase that he wanted to retrieve his suitcase from the house. Mabry v. Commonwealth, No. 1069-01-2, 2002 Va. App. LEXIS 630 (Ct. of Appeals Oct. 22, 2002).

Evidence that defendant owned scales on which cocaine residue was found and that defendant had two rifles in a trailer where the scales were found was sufficient to sustain defendant's convictions for possession of cocaine, in violation of § 18.2-250 , and simultaneous possession of cocaine and firearms, in violation of subsection A of § 18.2-308.4 . Chism v. Commonwealth, No. 2892-01-2, 2002 Va. App. LEXIS 745 (Ct. of Appeals Dec. 17, 2002).

Evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove that the defendant exercised at least joint constructive possession over cocaine residue found on a spoon in the defendant's boots. Graves v. Commonwealth, No. 3348-01-1, 2003 Va. App. LEXIS 10 (Ct. of Appeals Jan. 14, 2003).

Evidence was sufficient to supporting conviction for possession of cocaine, in violation of § 18.2-250 , where the trial court could have reasonably concluded that defendant was aware of the presence and character of the drugs found in the console and that he exercised dominion and control over them. Gillard v. Commonwealth, No. 0037-02-2, 2003 Va. App. LEXIS 437 (Ct. of Appeals Aug. 19, 2003).

Where defendant recently possessed a vehicle, knew of the presence and character the items hidden therein, and the items were subject to defendant's dominion and control, the evidence was sufficient to prove defendant's constructive possession of the cocaine and marijuana found in the vehicle. White v. Commonwealth, No. 0591-03-2, 2003 Va. App. LEXIS 539 (Ct. of Appeals Oct. 28, 2003).

Evidence that defendant had possession of a car for two months before police found cocaine in the car, that he was the only occupant of the car at the time the cocaine was discovered, and that the cocaine was in plain view on the driver's side of the car was sufficient to sustain a jury's verdict that defendant knowingly possessed cocaine. Hogston v. Commonwealth, No. 3232-02-3, 2003 Va. App. LEXIS 611 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to support defendant's conviction for possession of cocaine, as a reasonable inference could be drawn that cocaine found in several packets near him following his arrest was his since the homeowner of the home he ran into testified that no such drugs were present when she left her home shortly before defendant's arrest and the police arrested defendant because a reliable, confidential informant provided a tip to the police that defendant was in possession of cocaine. Payne v. Commonwealth, No. 3339-02-3, 2003 Va. App. LEXIS 616 (Ct. of Appeals Dec. 2, 2003).

Evidence that six to seven persons knocked on the door at various times, that on each of those occasions defendant answered the door, that defendant and the person who had knocked on the door then walked to the back of the house, in close proximity to where the cocaine was ultimately found, where they stayed for a brief time, before returning to the front of the house, where the person who had knocked on the door left, was sufficient to support defendant's conviction for possession of cocaine with intent to distribute. Brock v. Commonwealth, No. 0271-04-1, 2004 Va. App. LEXIS 617 (Ct. of Appeals Dec. 14, 2004).

Finding of constructive possession was not plainly wrong or without evidence to support it where: (1) defendant resided in the trailer where the contraband was found, and was inside the trailer when the officers executed the search warrant; (2) when the officers arrived to execute the warrant, they heard defendant announce the presence of the police, which was followed by an attempt to destroy the drugs; (3) the trial court reasonably inferred that defendant's notice of the presence of the police was notice to the others to dispose of the drugs before the officers entered the trailer; and (4) officers found cocaine on the bathroom floor and in the toilet, and cocaine paraphernalia in the rear bedroom and hallway. Ruffin v. Commonwealth, No. 0081-04-2, 2005 Va. App. LEXIS 111 (Ct. of Appeals Mar. 22, 2005).

In defendant's prosecution for possession of cocaine, the evidence established that defendant was aware of the presence of cocaine found in her motel room and that the substance was subject to her dominion and control since the cocaine was found in a motel room registered to defendant and was specifically found in a box among items belonging to defendant. Defendant also admitted to having been caught with cocaine in the past, thus confirming her familiarity with the character of the substance. Scott v. Commonwealth,, 2006 Va. App. LEXIS 85 (Mar. 7, 2006).

Evidence was sufficient to support defendant's conviction for possession of cocaine, in violation of § 18.2-250 , because: (1) defendant told a police officer that he had smoked crack and that his DNA would be found on one of the two crack pipes that the officer found on the ground near a car; (2) at trial, the Commonwealth presented a certificate of analysis, which proved that the pipes contained cocaine residue; and (3) the presence of cocaine residue on the pipes sufficiently corroborated defendant's confession that he had smoked cocaine from one of the pipes earlier that evening. Wood v. Commonwealth,, 2007 Va. App. LEXIS 236 (June 19, 2007).

Defendant's conviction for possession of cocaine with intent to distribute was supported by sufficient evidence and was not plainly wrong under § 8.01-680 as defendant's flight from police, the discovery of the cocaine in the exact area where he had fled, and an incriminating statement were sufficient to establish constructive possession; further, the quantity of cocaine found was inconsistent with personal use. Smith v. Commonwealth,, 2007 Va. App. LEXIS 457 (Dec. 18, 2007).

Evidence was sufficient to convict defendant of possession of cocaine because defendant was the only occupant of his vehicle when an officer found a baggie of cocaine wedged between the door of the car and the window, and there was no evidence that someone other than defendant could have put the baggie there; the baggie was only slightly wedged between the window and the weather stripping, and it took almost no effort for the officer to pull the baggie out. Smith v. Commonwealth,, 2008 Va. App. LEXIS 164 (Apr. 8, 2008).

Appellant's conviction for possession of cocaine was upheld because an officer found cocaine in the exact location in a couch where appellant, moments earlier, had inserted a hand; also, it could be reasonably concluded from the evidence that appellant knew the nature and character of the cocaine that appellant attempted to conceal in the corner of the couch. Whitaker v. Commonwealth,, 2008 Va. App. LEXIS 288 (June 17, 2008).

As the evidence, which consisted of testimony by another occupant of a car in which defendant was a passenger, established that defendant exercised dominion and control over a pipe containing cocaine residue that was found in a car, even if her possession of it was not always exclusive, which was not required, the evidence was sufficient to support defendant's conviction under § 18.2-250 . Haskins v. Commonwealth,, 2008 Va. App. LEXIS 531 (Dec. 9, 2008).

From defendant's statement and the contents of a hand-rolled cigarette, the fact finder could reasonably conclude defendant knew a cigarette that defendant hand rolled contained cocaine; moreover, when officers approached defendant as defendant smoked this cigarette, defendant fled. This evidence enabled the fact finder to conclude that defendant was aware of the illegal nature and character of the substance, and, therefore, the evidence was sufficient to support defendant's conviction for possession of cocaine. Boxley v. Commonwealth,, 2009 Va. App. LEXIS 99 (Mar. 10, 2009).

Sufficient evidence existed to convict defendant of felony possession of cocaine in violation of § 18.2-250 because constructive possession of the cocaine was demonstrated by the facts that defendant was the sole occupant of the vehicle in which a glass smoking device with cocaine residue was found in plain view, defendant admitted to possession of the vehicle for 30 minutes, and the glass stem of the smoking device was still warm to the touch. Etheridge v. Commonwealth,, 2009 Va. App. LEXIS 134 (Mar. 24, 2009).

Evidence was sufficient to prove defendant's constructive possession of cocaine found in his bedroom, as it established that he was the sole resident of his home; that he controlled access to the residence; and that his companion, who had been in the bedroom, did not use drugs. Little v. Commonwealth,, 2009 Va. App. LEXIS 315 (July 14, 2009).

Evidence was sufficient to prove that defendant constructively possessed cocaine and a firearm simultaneously, in violation of §§ 18.2-250 and 18.2-308.4 , although defendant denied knowing about the cocaine, because defendant admitted seeing the firearm on the floor of a car and placing it under a seat, and the cocaine was found next to the firearm. The fact finder could have found it unreasonable to believe that defendant knew of the presence of the firearm, but did not know of the cocaine next to it. Wilson v. Commonwealth,, 2010 Va. App. LEXIS 38 (Feb. 2, 2010).

Evidence was sufficient to show that defendant constructively possessed cocaine with intent to distribute because cocaine was found on the person of a passenger, who had been in defendant's car immediately prior to the arrest, defendant had a large amount of cash, and a duffle bag in the back seat of the car contained drug paraphernalia, including a scale with cocaine residue. Colbert v. Commonwealth,, 2010 Va. App. LEXIS 45 (Feb. 9, 2010).

Because there was sufficient evidence of constructive possession of a firearm and a controlled substance, the circuit court did not err in denying defendant's motion to vacate for insufficient evidence; a reasonable fact-finder could find that defendant lived at the residence where the contraband was found because the police found mail addressed to him, he was the only person an investigator observed enter the residence with keys, and the police arrested him at the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Defendant's conviction for possession of methadone, a Schedule II controlled substance was appropriate because the evidence established that defendant constructively possessed the methadone found in his car. He admitted that he knew the bottle in his car contained methadone and he acknowledged that he had recently driven his car alone from his friend's house when the police officer discovered the methadone; that activity demonstrated that the substance was subject to his dominion and control. Thornton v. Commonwealth,, 2011 Va. App. LEXIS 375 (Nov. 29, 2011).

Contraband found in hotel room. - A defendant need not be found inside a hotel room in order to establish that he constructively possessed contraband found therein. However, something more than mere rental of the room must be shown. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Occupancy of room where drugs are found. - While the defendant's occupancy of a room where drugs are found does not create a presumption that he either knowingly or intentionally possessed the drug, it is a circumstance which could be considered by the court, along with the other evidence, in determining his guilt or innocence. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

Where the defendant was found inside the cabin ten feet from a container of PCP treated parsley flakes, four jars containing PCP residue, and various other chemicals and paraphernalia, including buckets, plastic bags, bongs and two triple beam balance scales, and the defendant's statements to the police indicated his awareness of the presence of the chemicals as well as their criminal import, there was sufficient circumstantial evidence for the jury to conclude that the PCP found in the cabin was within the defendant's constructive possession. McGee v. Commonwealth, 4 Va. App. 317, 357 S.E.2d 738 (1987).

Evidence was insufficient to prove that the defendant either actually or constructively possessed cocaine found in a $50 bill on a chest of drawers in his mother's house since, although circumstantial evidence presented by the Commonwealth raised a suspicion that he placed the bill containing the cocaine on the chest of drawers along with a pile of change, keys, and papers after he arrived at his mother's house and before he went to sleep, the evidence failed to exclude the reasonable hypothesis that his brother placed the cocaine on the chest of drawers and that he had no knowledge of the cocaine's presence when it was discovered by a detective. Thomas v. Commonwealth, No. 1618-97-2 (Ct. of Appeals June 16, 1998).

Evidence was sufficient to support defendant's convictions for possession of cocaine and possession of a firearm while in possession of cocaine as the evidence showed that defendant constructively possessed the cocaine found in the driver's side cup holder because there was more than mere proximity to support the fact finder's conclusion that defendant knowingly possessed the cocaine as he testified regarding the contents of the cup holder, which demonstrated that he exercised dominion and control over the cup holder and its contents, including the cocaine, whether exclusively of the passenger or in conjunction with him. Brown v. Commonwealth,, 2015 Va. App. LEXIS 162 (May 12, 2015).

Cocaine in automobile insufficient to prove constructive possession. - Proof that cocaine was found in an automobile owned and occupied by defendant is insufficient, standing alone, to prove constructive possession. Nonnemacker v. Commonwealth, No. 0367-88-2 (Ct. of Appeals Sept. 11, 1990).

Failing to prove exclusive access to the automobile and failing to account for all those who may possibly have had access to the location in the car where the drugs were found, the Commonwealth could not rely on an inference from these circumstances that the defendant knew of the presence of the drugs. Brown v. Commonwealth, No. 0627-89-2 (Ct. of Appeals Aug. 13, 1991).

Although the defendant was in close proximity to the drugs found on the seat of the pickup truck he was operating and was clearly the sole occupant of the truck, which had been assigned to him by his employer, the evidence established no more than a mere suspicion that the defendant possessed the drugs where, while the drugs were in "plain view" to a police officer, who was trained in the recognition of drugs, the drugs were described as "crumbs" and the larger piece was described as being about the size of a piece of rice, there was no evidence the defendant ever saw the cocaine, knew it was present or exercised dominion and control over it, there was no evidence that the defendant was nervous, fidgety or made furtive gestures, the defendant made no statements indicating he was aware of the presence and character of the drugs, there was no evidence the defendant engaged in any illegal drug activity while in the area in which he was stopped, it was unknown whether the defendant only drove the truck to and from work or also during the workday and it was also unknown how many times the defendant actually had possession of the truck within the three weeks it had been assigned to him. Bright v. Commonwealth, No. 2794-99-1, 2000 Va. App. LEXIS 747 (Ct. of Appeals Nov. 21, 2000).

Cocaine found in police cruiser supported conviction. - Where the evidence showed that the officer conducted a thorough search of his police cruiser at the beginning of his shift, that no one but appellant was placed in the back of the cruiser that day, and that when appellant shifted his body so that the officer could handcuff him, the drugs were immediately found on the floorboard of the cruiser, evidence was sufficient to sustain the conviction. Williams v. Commonwealth, No. 1655-91-1 (Ct. of Appeals Jan. 19, 1993).

Where officer's inspection of the police vehicle immediately prior to his encounter with defendant disclosed no contraband, and only defendant and Jarrett were thereafter inside the car, and the offending drugs were discovered hidden in the area occupied by defendant, from such evidence, the jury could conclude that defendant removed the cocaine from his person and placed it beneath the seat cushion, attempting to conceal the drugs from the arresting officer. Martin v. Commonwealth, No. 2861-95-1 (Ct. of Appeals Sept. 24, 1996).

Absence of evidence as "other evidence" of possession. - Proof that LSD was found in premises or a vehicle owned or occupied by the defendant was insufficient, standing alone, to prove constructive possession. Such evidence was probative, but it was only a circumstance to be considered along with the other evidence. The "other evidence" was, in fact, an absence of evidence, where the Commonwealth relied on there being no evidence that anyone else had possessions in the house. This merely tended to reinforce the conclusion that the defendant and his wife were the sole residents of the premises; it did not foreclose the possibility that the LSD was owned and hidden by another. Powers v. Commonwealth, 227 Va. 474 , 316 S.E.2d 739 (1984).

Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction. Behrens v. Commonwealth, 3 Va. App. 131, 348 S.E.2d 430 (1986).

Although evidence was suspicious, or may even have made it probable that defendant knew of the presence of the cocaine, such circumstantial evidence was not sufficient to support a criminal conviction for possession of the cocaine. Nelson v. Commonwealth, 17 Va. App. 708, 440 S.E.2d 627 (1994).

Suspicious circumstances, including proximity to a controlled drug, are insufficient to support a conviction. However, while mere proximity to the drugs is insufficient to establish possession, and occupancy of the premises does not give rise to a presumption of possession, both are factors which may be considered in determining whether a defendant possessed drugs. Boley v. Commonwealth, No. 1943-95-1, 1996 Va. App. LEXIS 521 (Ct. of Appeals July 23, 1996).

Documents showing defendant claimed house as residence. - Several documents introduced to show that defendant claimed the house in which cocaine was found as his residence, though relevant, raised no presumption that he knowingly or intentionally possessed the controlled substance found there. Drew v. Commonwealth, 230 Va. 471 , 338 S.E.2d 844 (1986).

Failure to instruct on lesser-included offense held error. - While the jury could have concluded that the defendant tolerated the presence of the drugs in the apartment and thus constructively shared possession, the jury could also have had a reasonable doubt as to whether the defendant shared the intent to distribute. Therefore, the evidence supporting a theory of simple possession by the defendant was "more than a scintilla" and failure to grant the instruction on the lesser included offense was error. Harrison v. Commonwealth, 12 Va. App. 581, 405 S.E.2d 854 (1991).

The evidence was sufficient. - There was ample evidence upon which the trial court could base the determination that the defendant was knowingly in possession of phencyclidine (PCP) where the defendant was in exclusive possession of the drug at the time that he was stopped and his actions in resisting the police officers were inconsistent with the actions of a person merely in possession of innocuous plant material. Hornbaker v. Commonwealth, No. 1332-88-4 (Ct. of Appeals March 27, 1990).

Where there was evidence of ownership of the vehicle by appellant in which the drugs were found and other uncontradicted evidence, viewed in its totality, fairly inferred that appellant knew of the existence of the drugs at the place where they were found and in the absence of contrary evidence, appellant's possession of the car keys was significant evidence from which, when considered with the other evidence, it could be inferred that the drugs were subject to his dominion and control, no other hypotheses could be reasonably inferred from the record, evidence was sufficient to prove appellant unlawfully possessed cocaine. Jetter v. Commonwealth, 17 Va. App. 745, 440 S.E.2d 633 (1994).

Evidence supported the defendant's conviction for possession of cocaine found in a vehicle where: (1) the defendant was the sole occupant of the vehicle and the only evidence to the contrary came from his own incredible statements; (2) cocaine and drug paraphernalia were found in plain sight and within inches of the defendant's seat; and (3) the defendant testified that he cleaned the car earlier in the evening. Graves v. Commonwealth, No. 2046-97-3 (Ct. of Appeals Jan. 12, 1999).

See Jones v. Commonwealth, No. 2670-97-2 (Ct. of Appeals Feb. 16, 1999).

Evidence was sufficient to prove that defendant had actual possession of cocaine and had thrown it on ground during chase by police through vacant lot. McHerrin v. Commonwealth, No. 0217-99-1 (Ct. of Appeals Mar. 14, 2000).

Direct and circumstantial evidence supported a finding that defendant had actual possession of cocaine a police officer retrieved from the ground when the officer testified, and a videotape confirmed, that defendant appeared nervous while he waited at the rear of the car, and the videotape showed defendant making a throwing motion before placing both hands on the rear of the car. Brooks v. Commonwealth, No. 0811-02-4, 2003 Va. App. LEXIS 118 (Ct. of Appeals Mar. 4, 2003).

Where the "totality" of the evidence showed that defendant was aware of the presence and character of the contraband, which was subject to his dominion and control, the evidence was sufficient to convict defendant of possession. Fawehimni v. Commonwealth, No. 0389-02-4, 2003 Va. App. LEXIS 125 (Ct. of Appeals Mar. 11, 2003).

Circumstantial evidence, including the fact that defendant was the only person in the home and the proximity of the clothes to defendant, clearly supported the trial court's finding that the clothing contained drugs and belonged to defendant, and that defendant knew the nature and character of the drugs. Adkins v. Commonwealth, No. 3267-01-3, 2002 Va. App. LEXIS 646 (Ct. of Appeals Oct. 29, 2002).

Defendant's flight from traffic checkpoint, defendant's presence on the side of the road next to the car defendant had been driving, and defendant's presence near heroin found in credit card receipt with numbers matching the numbers of a credit card in defendant's name were sufficient to support defendant's conviction for heroin possession as all of the evidence could lead the trial court to conclude that defendant possessed heroin but threw it to the ground to avoid detection. Blowe v. Commonwealth, No. 2201-01-2, 2002 Va. App. LEXIS 708 (Ct. of Appeals Nov. 26, 2002).

Evidence was sufficient to support defendant's conviction for possession of cocaine, where defendant was found in a closet with the cocaine; the totality of the circumstances was sufficient to support the trial court's finding that defendant exercised sufficient dominion and control over the cocaine to constitute joint constructive possession, and the fact that the evidence proved co-defendant likely possessed the same cocaine that was found in the closet did not preclude defendant from also possessing the drug. Hunter v. Commonwealth, No. 1483-01-3, 2002 Va. App. LEXIS 581 (Ct. of Appeals Oct. 1, 2002).

Evidence was sufficient to support possession of cocaine conviction under § 18.2-250 , where cocaine pipe was found between defendant's seat and the seat belt harness in plain view and in close proximity to defendant, and was within the area of defendant's immediate control. Ausby v. Commonwealth, No. 2541-01-1, 2002 Va. App. LEXIS 611 (Ct. of Appeals Oct. 8, 2002).

Evidence was sufficient to support defendant's conviction for possession of cocaine where: (1) a deputy sheriff found a spoon in defendant's pocket coated with a powdery cocaine residue, (2) the cocaine on the spoon was "crystallized" and clearly visible, (3) when the deputy seized the spoon, defendant "just sort of hung his head," and (4) the evidence that defendant had a spoon coated in cocaine and that he "hung his head" when the deputy found the spoon was sufficient for the jury to find that defendant had knowledge of the substance on the spoon. Day v. Commonwealth, No. 0193-03-2, 2004 Va. App. LEXIS 50 (Ct. of Appeals Feb. 3, 2004).

Where defendant admitted that he packed the tin box and placed it in his duffle bag, facts corroborated by the presence of his personal belongings inside the bag, it was rational for the fact finder to conclude, beyond reasonable doubt, that the drug paraphernalia found in the tin box likewise belonged to defendant and thus, to support convictions for possession of cocaine and heroin. Porter v. Commonwealth, No. 0419-04-2, 2005 Va. App. LEXIS 62 (Ct. of Appeals Feb. 15, 2005).

Evidence was sufficient to support defendant's conviction for possession of heroin, as the evidence showed that at the time of defendant's arrest, police recovered two plastic bags defendant had concealed in his underwear that contained less than a gram of heroin; accordingly, the evidence showed that defendant knowingly possessed heroin. Fraierson v. Commonwealth, No. 1147-04-2, 2005 Va. App. LEXIS 135 (Ct. of Appeals Mar. 29, 2005).

As the fact finder could infer that both defendant and defendant's passenger possessed a modified pill bottle knowing it contained cocaine residue, or at the very least, defendant knew the passenger had brought or placed the smoking device in the car, evidence was sufficient to convict defendant of possessing cocaine. Furthermore, the fact that the smoking device was in the automobile, which defendant claimed defendant drove frequently, and the fact that it was near defendant in the front seat further supported the inference that defendant possessed the device and knew it contained cocaine. McCollum v. Commonwealth,, 2006 Va. App. LEXIS 240 (May 30, 2006).

Evidence that defendant fled toward the fence when defendant saw the police, made a pushing or throwing motion over the fence, and immediately thereafter, the police found marijuana and cocaine on the other side of the fence in the line of defendant's arm motion was sufficient to support conclusion defendant possessed the marijuana and cocaine. Debroux v. Commonwealth,, 2007 Va. App. LEXIS 40 (Feb. 6, 2007).

Evidence that the drugs were in a clear plastic bag located beside defendant's seat and that the officer who stopped defendant found defendant more nervous than a normal person during a traffic stop, talking rapidly, not completing sentences, and being on verge of whole body shaking, was sufficient to support defendant's conviction for cocaine possession under subsection A of § 18.2-250 . Burton v. Commonwealth,, 2007 Va. App. LEXIS 222 (May 29, 2007).

Trial court did not err in convicting defendant of possession of the cocaine found in defendant's wallet at an airport, as all portions of the airport in which a person would lose a wallet were in Loudoun County, and defendant conceded that the contents of a bag of cocaine were defendant's. Hockensmith v. Commonwealth,, 2008 Va. App. LEXIS 500 (Nov. 12, 2008).

Because of defendant's proximity to the drugs, defendant's occupancy of a vehicle, defendant's possession of the cocaine found on defendant's person, and defendant's participation in driving the vehicle on a trip over a known drug trafficking route, there was sufficient evidence to convict defendant of possession of cocaine with the intent to distribute under § 18.2-250 . Green v. Commonwealth,, 2009 Va. App. LEXIS 127 (Mar. 24, 2009).

The evidence was insufficient to establish that the cocaine was subject to defendant's dominion or control or to show that defendant was aware of the presence and character of the particular substance where the evidence showed that defendant was present in the apartment in which the substance was found on several occasions, once during the week preceding the search, but there was utterly no evidence that he spent the night there or ever entered the bedroom where the cocaine was found. Woodfin v. Commonwealth, 218 Va. 458 , 237 S.E.2d 777 (1977).

Evidence showing that the defendant had rented the hotel room, that he had deposited some of his personal effects there, and that, when questioned by the police, he had given a false identity, created a strong suspicion of guilt but fell short of showing beyond a reasonable doubt that the drugs found in the hotel room were ever actually or constructively possessed by the defendant with an awareness of their character. Clodfelter v. Commonwealth, 218 Va. 619 , 238 S.E.2d 820 (1977).

While the evidence proved that the defendant was in proximity to the drugs and, thus, created a suspicion of guilt, it fell far short of proving beyond a reasonable doubt that she constructively possessed the drugs found in codefendant's tractor-trailer or on codefendant's person. Harris v. Commonwealth, 13 Va. App. 593, 413 S.E.2d 354 (1992).

Where record disclosed no statements or conduct which established that defendant was consciously involved in the accused criminal activity and the only substantive evidence of defendant's dominion and control over the heroin and related paraphernalia was his presence in his vehicle, which had also been occupied by another adult passenger, such evidence, while suspicious, was insufficient to support his conviction for possession of heroin. Smith v. Commonwealth, No. 0339-91-4 (Ct. of Appeals July 28, 1992).

Evidence that the defendant was not present when police searched the trailer where he and another man lived and found cocaine residue in a baggie discarded in a trash can in the defendant's bedroom; that later, in response to a police officer's question, the defendant admitted that everything in his bedroom belonged to him except the dresser and the carpet; and that while the record reflected that the defendant was aware that the police were investigating a cocaine-related offense, but did not reveal that the defendant knew that the residue had been found in his room when he responded to the question, was not sufficient to support a conviction for possession of cocaine. Morris v. Commonwealth, No. 0765-93-2 (Ct. of Appeals Oct. 11, 1994).

The Commonwealth presented no evidence that narcotics were actually present, that the observed behavior was consistent with a narcotics transaction, or that any of the participants were connected in any way with narcotics. The testifying officer gave no objective reason why her observations led her to the conclusion that a sale of narcotics had occurred. Based on the record, the trial judge was not plainly wrong in his ruling, and the order of suppression was affirmed. Commonwealth v. Mays, No. 2790-95-3 (Ct. of Appeals April 30, 1996).

The evidence did not support the defendant's conviction for possession of cocaine based on a test tube of crack cocaine found in his home where: He reported a robbery in the home, police found the test tube on the floor of a bedroom that was in disarray while searching for evidence relating to the robbery, defendant denied knowledge of the test tube, no other drug paraphernalia was found in the house, and no evidence other than its location tied it to the defendant; the circumstantial evidence did not exclude the reasonable hypothesis that the robbers left the test tube behind. McNair v. Commonwealth, 31 Va. App. 76, 521 S.E.2d 303 (1999).

Evidence was insufficient to establish that appellant possessed or knowingly exercised dominion and control over cocaine found in the glove box of a vehicle where it was shown only that he occupied the vehicle and was in proximity to the cocaine, but he engaged in no furtive behavior and made no statements tending to show he was aware that cocaine was present anywhere in the car. Delnor Jose Banks v. Commonwealth, No. 1405-98-2, 1999 Va. App. LEXIS 244 (Ct. of Appeals Apr. 27, 1999).

The evidence that the defendant possessed a small piece of cocaine found in the console of the car in which he was a passenger was insufficient to support a conviction under this section where the cocaine was not in plain view and no evidence was presented that the defendant put the cocaine in the console or was aware of its presence; although the arresting officer saw the defendant's upper body moving after she stopped the driver, that observation raised only a suspicion that his movement bore a connection to the cocaine and the suspicion that the defendant may have been the guilty agent is never enough to sustain a conviction. McCray v. Commonwealth, No. 0200-99-2, 2000 Va. App. LEXIS 208 (Ct. of Appeals Mar. 21, 2000).

Evidence was insufficient to support possession of cocaine conviction, as the Commonwealth failed to present any evidence of acts, statements, or conduct that tended to show defendant was aware of the presence of cocaine in a brown bottle found on the floor of defendant's car. Jordan v. Commonwealth, No. 3084-01-1, 2002 Va. App. LEXIS 612 (Ct. of Appeals Oct. 8, 2002).

Appellant's conviction for possession with intent to distribute marijuana was reversed because there was no evidence that the odor detected by the officers was coming from appellant's person, that appellant showed any physical signs of having recently used marijuana, or that appellant possessed any drugs on his person. Ervin v. Commonwealth,, 2010 Va. App. LEXIS 249 (June 22, 2010).

CIRCUIT COURT OPINIONS

Amendment to § 18.2-251.03 regarding overdoses. - This section, regarding arrest and prosecution when experiencing or reporting overdoses, was amended in 2020 to change an affirmative defense to a bar to arrest and prosecution; this in no way changes the penalty structure for felonious possession of a schedule I or II substance when an individual experiences an overdose. The amendments were matters of procedure and the post-2020 statute governed defendant's case, and his motion to dismiss was granted. Commonwealth v. Allen,, 2021 Va. Cir. LEXIS 134 (Culpeper June 10, 2021).

Mere proximity to a controlled substance is insufficient to establish possession, where drugs found in a vehicle driven by defendant were packaged differently than those found on defendant and a passenger had equal access to the drugs. Commonwealth v. Baker, 62 Va. Cir. 278, 2003 Va. Cir. LEXIS 294 (Norfolk 2003).

Possession illegal. - Although the estranged husband, a licensed psychiatrist, did not obtain the Fentanyl patches, on which decedent wife overdosed, legally because the estranged husband removed them from the apartment of his mother, who had a legal prescription for them, the "criminal act" exclusion of the insurance policy covering his practice did not protect the insurer from liability after decedent's estate obtained a medical malpractice judgment against him; the relevant professional liability policy that covered his practice required that the criminal act directly cause the relevant harm and it was not his illegal possession of the patches that caused her to die, but, instead, it was his breach of the standard of care in failing to write a proper prescription, failing to perform a physical exam on her, failing to give proper warnings to her, and failing to do a follow-up exam on her that caused her death. Estate of Feury v. Princeton Ins. Co., 68 Va. Cir. 330, 2005 Va. Cir. LEXIS 84 (Fredericksburg 2005).

Motion to suppress allowed. - As an officer did not and could not arrest defendant for the misdemeanor offense of possession of marijuana based on the marijuana found in defendant's car pursuant to a consent search, and as defendant withdrew his consent to a search of his person (including his wallet) before the officer found any incriminating evidence, the officer's search of defendant's wallet violated defendant's rights under U.S. Const., Amend. IV, and the methampetamine tablets found in the wallet were suppressed. Commonwealth v. Johnson, 84 Va. Cir. 518, 2012 Va. Cir. LEXIS 108 (Augusta County June 15, 2012).

Certificate of analysis properly admitted. - Chemists' method for identifying cathinone, a controlled substance, using a gas chromatograph equipped with a mass spectrometer and a flame ionization detector, was sufficiently reliable to warrant admission of the test results at trial, notwithstanding defendant's suggestion that computer-assisted technology was superior to graphic comparison. Defendant's motion to exclude the chemists' certificate of analysis was denied. Commonwealth v. Isse, 80 Va. Cir. 493, 2010 Va. Cir. LEXIS 87 (Fairfax June 29, 2010).

Evidence was insufficient. - Despite defendant's admission that everything in his bedroom was his, where illegal drugs were found in said room and in other room of the house, and because others lived in the home with defendant, there were just not enough facts, statements, or conduct that tended to show defendant was aware of both the presence and the character of the drugs found and that such were subject to his dominion and control. Commonwealth v. Carter, 66 Va. Cir. 8, 2004 Va. Cir. LEXIS 264 (Nelson County 2004).

Court found defendant not guilty of felony possession of the cocaine residue on a scale because defendant possessed the scale at night and testified that he was holding it for another person; and the white substance on the scale would not have been explicitly visible at night. Commonwealth v. Bailey, 101 Va. Cir. 195, 2019 Va. Cir. LEXIS 25 (Orange County Feb. 12, 2019).

Motion to dismiss denied. - Because the question of whether or not defendant attempted to possess cocaine could only be determined from all of the evidence presented at a trial, defendant's pretrial motion to dismiss was denied. Commonwealth v. Sheely, 68 Va. Cir. 245, 2005 Va. Cir. LEXIS 252 (Salem July 8, 2005).

OPINIONS OF THE ATTORNEY GENERAL

Food stamp benefits. - The federal Personal Responsibility and Work Opportunity Reconciliation Act encompasses felony convictions for manufacturing controlled substances or for obtaining controlled substances by false pretenses; those persons with such convictions are disqualified from receiving food stamp benefits because § 63.2-505.2 does not exempt such convictions from the application of the federal law. See opinion of Attorney General to The Honorable Gerald E. Mabe, II, Commonwealth's Attorney, 11-112, 2012 Va. AG LEXIS 5 (1/27/12).

§ 18.2-250.1.

Repealed by Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 3, effective July 1, 2021.

Editor's note. - Former § 18.2-250.1 , pertaining to possession of marijuana unlawful, derived from 1979, c. 435; 1991, c. 649; 1998, c. 116; 2015, cc. 7, 8; 2017, c. 613; 2018, cc. 246, 809; 2019, c. 690; 2020, cc. 764, 1285, 1286; 2020, Sp. Sess. I, cc. 3, 45, 51.

Acts 2021, Sp. Sess. I, cc. 227 and 228 also amended this section, effective July 1, 2021, but the amendment was applied to § 46.2-341.20:7 at the direction of the Virginia Code Commission.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

§ 18.2-251. Persons charged with first offense may be placed on probation; conditions; substance abuse screening, assessment treatment and education programs or services; drug tests; costs and fees; violations; discharge.

Whenever any person who has not previously been convicted of any criminal offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, or pleads guilty to or enters a plea of not guilty to possession of a controlled substance under § 18.2-250 , the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. If the court defers further proceedings, at that time the court shall determine whether the clerk of court has been provided with the fingerprint identification information or fingerprints of the person, taken by a law-enforcement officer pursuant to § 19.2-390 , and, if not, shall order that the fingerprints and photograph of the person be taken by a law-enforcement officer.

As a term or condition, the court shall require the accused to undergo a substance abuse assessment pursuant to § 18.2-251.01 or 19.2-299.2 , as appropriate, and enter treatment and/or education program or services, if available, such as, in the opinion of the court, may be best suited to the needs of the accused based upon consideration of the substance abuse assessment. The program or services may be located in the judicial district in which the charge is brought or in any other judicial district as the court may provide. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, by a similar program which is made available through the Department of Corrections, (ii) a local community-based probation services agency established pursuant to § 9.1-174 , or (iii) an ASAP program certified by the Commission on VASAP.

The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment, based upon the accused's ability to pay unless the person is determined by the court to be indigent.

As a condition of probation, the court shall require the accused (a) to successfully complete treatment or education program or services, (b) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug and alcohol free, (c) to make reasonable efforts to secure and maintain employment, and (d) to comply with a plan of at least 100 hours of community service for a felony and up to 24 hours of community service for a misdemeanor. Such testing shall be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency.

Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, and upon determining that the clerk of court has been provided with the fingerprint identification information or fingerprints of such person, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings.

Notwithstanding any other provision of this section, whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of § 22.1-315. The provisions of this paragraph shall not be applicable to any offense for which a juvenile has had his license suspended or denied pursuant to § 16.1-278.9 for the same offense.

(Code 1950, § 54-524.101:3; 1972, c. 798; 1975, cc. 14, 15; 1976, c. 181; 1979, c. 435; 1983, c. 513; 1991, c. 482; 1992, cc. 58, 833; 1993, c. 410; 1997, c. 380; 1998, cc. 688, 783, 840; 2000, cc. 1020, 1041; 2001, cc. 430, 450, 827; 2007, c. 133; 2009, cc. 813, 840; 2011, cc. 384, 410; 2014, cc. 674, 719; 2017, cc. 695, 703; 2019, cc. 782, 783; 2020, cc. 740, 741, 1285, 1286.)

Cross references. - As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

Editor's note. - Acts 2017, cc. 695 and 703, cl. 2 provides: "That the provisions of this act are contingent upon receipt by the Virginia Department of Transportation of written assurance from the Federal Highway Administration of the U.S. Department of Transportation that Virginia will not lose any federal funds as a result of the implementation of this act." On November 20, 2017, the Department of Motor Vehicles was directed to implement cl. 2, which shall have been in effect since July 1, 2017.

As introduced in HB 2051/SB 1091, amendments by Acts 2017, cc. 695 and 703, were in response to the U.S. Supreme Court decision in Birchfield v. North Dakota , 136 S. Ct. 2160 (2016).

Acts 2020, cc. 740 and 741, cl. 3 provides: "That the Governor shall provide the necessary certifications required pursuant to 23 U.S.C. § 159(a)(3)(B) by September 21, 2020."

The 1997 amendment, in the second paragraph, substituted "the court shall require the accused to be evaluated and enter a treatment and/or education program" for "the court may require the accused to enter a screening, evaluation and education program" in the first sentence, and in the third sentence, substituted "The court shall require" for "The court may require," inserted "all or part of," and substituted "screening, evaluation, testing, and treatment, based upon the accused's ability to pay unless the person is determined by the court to be indigent" for "screening and evaluation"; and in the third paragraph, substituted "personnel of any program to which the person is referred or by the supervising agency" for "personnel of any screening, evaluation and education program to which the person is referred" in the second sentence, and deleted the former third sentence, which read: "The cost of such testing may be charged to the person in addition to the fee for the education program."

The 1998 amendments. - The 1998 amendment by c. 688, in the second paragraph, in the next-to-last sentence, inserted "or by an ASAP program certified by the Commission on VASAP."

The 1998 amendments by cc. 783 and 840 are identical, and in the second paragraph, in the last sentence, inserted "or by a similar program which is made available through the Department of Corrections," in the fourth paragraph, added clause (i) and added the clause (ii) designation.

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and in the first sentence of the second paragraph, substituted "undergo a substance abuse assessment pursuant to § 18.2-251.01 " for "be evaluated," and added "based upon consideration of the substance abuse assessment" at the end of the sentence; in the third sentence of the second paragraph, deleted "certified or" preceding "licensed," inserted the language beginning "if the court" and ending " § 53.1-180 ," and deleted "by" preceding "an ASAP"; substituted "assessment" for "evaluation" in the third paragraph; in the fourth paragraph, deleted "and" preceding "or," deleted "and" at the end of clause (i), inserted "and alcohol" following "drug" twice in clause (ii), added clauses (iii) and (iv), and rewrote the last sentence in the paragraph, which formerly read: "Such testing may be conducted by personnel of any program to which the person is referred or by the supervising agency."

The 2001 amendments. - The 2001 amendments by cc. 430 and 450 are identical, and inserted "22.1-315" in the first sentence of the last paragraph.

The 2001 amendment by c. 827 inserted "or § 19.2-299.2 , as appropriate," following "pursuant to § 18.2-251.01 " in the first sentence of the second paragraph; in the third sentence of the second paragraph inserted "(i)" preceding "a program licensed by the department," deleted "if the court imposes a sentence of one year or more, or if the court imposes a sentence of twelve months or less, by a similar program available through a local or regional jail" following "Department of Corrections" and inserted "(ii)" thereafter, and inserted "(iii)" preceding "an ASAP program"; and inserted "hours of community service for a felony and up to twenty-four" and "for a misdemeanor" in clause (iv) of the first sentence of the fourth paragraph.

The 2007 amendments. - The 2007 amendment by c. 133 inserted "or services" in two places in the second paragraph and once in the fourth paragraph; in the second paragraph, substituted "The" for "This" in the second sentence and "local community-based probation services agency" for "community-based corrections program" in clause (ii) of the last sentence; and in the fourth paragraph, in the first sentence, deleted "the" following "successfully complete" in clause (i) and made a minor stylistic change in clause (iv).

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and in the second paragraph, deleted the § symbol preceding "19.2-299.2" in the first sentence, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in clause (i) of the third sentence.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, and effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" and "or to possession of synthetic cannabinoids under subsection B of § 18.2-248.1:1 " in the first paragraph.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "synthetic cannabinoids" following "marijuana" and "or to possession of synthetic cannabinoids under subsection B of § 18.2-248.1:1 " following " § 18.2-250.1 " in the first paragraph.

The 2017 amendments. - The 2017 amendments by cc. 695 and 703 are identical, and in the fourth paragraph, redesignated clauses (i) through (iv) as clauses (a) through (d) in the first sentence, and inserted the second sentence; and inserted the second sentence in the last paragraph. For contingent effective date, see Editor's note.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and in the first paragraph, added the second sentence; deleted the former fifth paragraph, which read: "The court shall, unless done at arrest, order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting"; in the current fifth paragraph, inserted "and upon determining that the clerk of court has been provided with the fingerprint identification information or fingerprints of such person"; and made stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 740 and 741 are identical, and in the fourth paragraph, deleted the former second sentence, which read: "In addition to any community service required by the court pursuant to clause (d), if the court does not suspend or revoke the accused's license as a term or condition of probation for a violation of § 18.2-250.1 , the court shall require the accused to comply with a plan of 50 hours of community service"; and in the last paragraph, in the first sentence, substituted " § 22.1-315" for " §§ 18.2-259.1 , 22.1-315, and 46.2-390.1 , and the driver's license forfeiture provisions of those sections shall be imposed" and deleted the former second sentence, which read: "However, if the court places an individual on probation upon terms and conditions for a violation of § 18.2-250.1 , such action shall not be treated as a conviction for purposes of § 18.2-259.1 or 46.2-390.1 , provided that a court (1) may suspend or revoke an individual's driver's license as a term or condition of probation and (2) shall suspend or revoke an individual's driver's license as a term or condition of probation for a period of six months if the violation of § 18.2-250.1 was committed while such person was in operation of a motor vehicle."

The 2020 amendments by cc. 1285 and 1286 are identical, and in the first sentence, substituted "criminal offense" for "offense" and deleted "or to possession of marijuana under § 18.2-250.1 " following " § 18.2-250 "; in the fourth paragraph, deleted the former second sentence; in the last paragraph, deleted the former second sentence; and made a related change.

Law review. - For survey of Virginia law on criminal law for the year 1971-9172, 1971-1972, 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For note, "New Theories of Guilt on Appeal in Virginia Criminal Cases," see 50 Wm. and Mary L. Rev. 2177 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 9-2606 Order of Probation for First Time Conviction of Drug Offense.

CASE NOTES

Construction. - Statute gives a judge discretion to place a defendant on probation subject to terms and conditions and to enter an adjudication of guilt upon violation of a term or condition; thus, by the plain language of the statute, a judge may impose terms and conditions in addition to those set forth in the statute. Smallwood v. Commonwealth, No. 0844-19-4, 2020 Va. App. LEXIS 146 (May 12, 2020).

Plain language of statute provides that a trial court may grant a deferred disposition when it has found the facts sufficient to find a defendant guilty but has not entered a judgment of guilt; it very clearly does not permit a trial court to grant a deferred disposition after a trial court has entered a judgment of guilt. Sullivan v. Commonwealth, No. 1039-19-4, 2020 Va. App. LEXIS 250 (Oct. 20, 2020).

Trial court properly ruled that defendant's prior receipt of a deferred disposition for a charge of marijuana possession barred the court from granting his subsequent request for a deferred disposition on the methamphetamine charge because the record supported the trial court's conclusion that when defendant entered his guilty plea in 2020, he had already received a deferred disposition for a criminal offense as statutorily permitted by § 18.2-251 and was not entitled to another one. Christie v. Commonwealth, No. 1048-20-3, 2021 Va. App. LEXIS 125 (July 20, 2021).

Construction with federal law. - Alien's Virginia deferred adjudication proceedings constituted a "conviction" of a controlled substance offense for purposes of 8 U.S.C.S. § 1101, rendering the alien ineligible for cancellation of removal; there was no requirement under § 1101 that a finding of guilt and punishment be entered simultaneously, and the alien's guilty plea remained in effect when he was placed on probation. Jaquez v. Sessions, 859 F.3d 258, 2017 U.S. App. LEXIS 10199 (4th Cir. 2017).

Authority of trial court. - Written conviction order for defendant had already been entered in November 2018, and thus when defense counsel requested a deferred disposition from the trial court for the first time in January 2019, the trial court no longer had the authority to grant a deferred disposition under the statute; therefore, the trial court did not err in declining to grant defendant a deferred disposition. Sullivan v. Commonwealth, No. 1039-19-4, 2020 Va. App. LEXIS 250 (Oct. 20, 2020).

Revocation of deferred disposition. - Because the appellate court affirmed defendant's underlying convictions, the trial court was undoubtedly justified in revoking the deferred disposition of a cocaine possession charge and entering "an adjudication of guilt" under § 18.2-251 ; this conclusion mooted defendant's complaint about the trial court's failure to take the deferred disposition under advisement. Whitfield v. Commonwealth, 57 Va. App. 396, 702 S.E.2d 590, 2010 Va. App. LEXIS 502 (2010).

Continuance denied. - Defendant's request for a continuance during the judicial emergency resulting from the COVID-19 pandemic was properly denied because the COVID-19 crisis had minimal, if any, impact on defendant's noncompliance with her deferral or probation requirements; she provided no evidence that she notified the Virginia Alcohol Safety Action Program (VASAP) about her health issues either before or after her surgery; months before the surgery, she had already been dropped from her intensive education group for excessive absences, had missed two orientations for the community service work, and had failed to pay the VASAP program fees; and she failed to pay the court costs - a requirement that was not affected by a closure of VASAP. Barrow v. Commonwealth, 73 Va. App. 149, 857 S.E.2d 152, 2021 Va. App. LEXIS 71 (2021).

First-offender status properly denied by trial court. - Trial court did not make an arbitrary decision and abuse its discretion in denying defendant first-offender status where defendant did not have a regular address, had a prior criminal record of two assault convictions and numerous traffic-related offenses, was suffering from depression and post-traumatic stress syndrome, and had demonstrated an uncooperative attitude by being reluctant to provide the medical release forms that would have enabled the court to obtain information about his drug use and treatment. Montalvo v. Commonwealth, 27 Va. App. 95, 497 S.E.2d 519 (1998).

Refusing appellant's request for first offender status under § 18.2-251 was neither arbitrary nor a failure to exercise conscientious judgment where, inter alia, he previously had been granted a deferred disposition/first offender status for a domestic assault and battery charge, but failed to meet the terms and conditions imposed. Swinea v. Commonwealth, No. 0105-20-1, 2020 Va. App. LEXIS 314 (Dec. 22, 2020).

Probation is a disposition intended to "reform" the offender, appropriate in "mitigating circumstances" or to promote the "public interest." It provides an "opportunity" for an accused to "repent and reform," which may be withdrawn for "unreasonable cause," determined in the sound discretion of the trial court. Connelly v. Commonwealth, 14 Va. App. 888, 420 S.E.2d 244 (1992).

Charge dismissed under this section is not "otherwise dismissed" for purpose of expungement statute. - Section 19.2-392.2 applies to innocent persons, not to those who are guilty. Under this section, probation and ultimate dismissal is conditioned on a plea of guilty or a finding of guilt. One who is "guilty" cannot occupy the status of "innocent" so as to qualify under the expungement statute as a person whose charge has been "otherwise dismissed." Gregg v. Commonwealth, 227 Va. 504 , 316 S.E.2d 741 (1984).

Because defendant's possession charge was not "otherwise dismissed" within the meaning of the expungement statute, subsection A of § 19.2-392.2 , as the trial court had to find defendant guilty before disposing of her case pursuant to the first offender statute, defendant was not entitled to have the charge expunged from her record. Commonwealth v. Dotson, 276 Va. 278 , 661 S.E.2d 473, 2008 Va. LEXIS 80 (2008).

Trial court bound by plea agreement. - Where a plea agreement, which the trial court accepted, explicitly referred to this section and required dismissal of the charge after one year if defendant committed no further violations of law, and defendant committed no further violations, the trial court was bound to enforce the plea agreement, to discharge defendant and to dismiss the charge against him. Calvillo v. Commonwealth, 19 Va. App. 433, 452 S.E.2d 363 (1994).

Condition of good behavior implicit. - Although a court might appropriately conclude that a good behavior condition is implicit when first-offender status is imposed under § 18.2-251 , just as that condition is implicit when a sentence is suspended, there is no need to rely on such an implicit condition when an order imposing first-offender status specifically imposes good behavior as a condition of the defendant's probation. In such a case, whether defendant's first-offender status is properly revoked depends on whether the defendant has violated the explicit terms of the order imposing the first-offender status, not on whether the defendant has violated an implicit good behavior condition. White v. Commonwealth, 276 Va. 725 , 667 S.E.2d 564, 2008 Va. LEXIS 119 (2008).

Costs as condition. - Defendant's argument that the trial court erred in convicting him for failure of a condition, the payment of costs not set forth in § 18.2-251 was without merit because it was a term and condition authorized by § 18.2-251 and mandated by § 19.2-303.4 ; defendant knew he had one year to complete the condition of court costs payment in order to avoid the consequence provided in § 18.2-251 . Smallwood v. Commonwealth, No. 0844-19-4, 2020 Va. App. LEXIS 146 (May 12, 2020).

First offender status was improperly revoked. - Circuit court should not have revoked defendant's first-offender status under § 18.2-251 and convicted her of possessing cocaine, in violation of § 18.2-250 , after her stated period of probation ended: (1) the circuit court's order imposing first-offender status explicitly stated that defendant's probation ended on December 21, 2005; (2) although the circuit court continued defendant's case after December 21, 2005, it did so only to ensure that defendant paid court costs, as required under the first-offender order; (3) the circuit court did not explicitly extend defendant's probation beyond December 21, 2005, and such an extension could not occur de facto; and (4) it would not be appropriate to assume that defendant was subject to a continuing, implicit condition of good behavior after her case was continued given that a good behavior condition had been explicitly imposed on her as part of her probation. White v. Commonwealth, 276 Va. 725 , 667 S.E.2d 564, 2008 Va. LEXIS 119 (2008).

Between the time when defendant pleaded guilty of possessing a controlled drug in violation of § 18.2-250 and the time of defendant's sentencing hearing, defendant was convicted of possession of marijuana which rendered defendant ineligible for a deferred disposition under § 18.2-251 . Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011).

Trial court did not abuse its discretion in finding that defendant violated the terms of the plea agreement, as well as its order, by failing to submit to two drug screens, and in convicting him for possession of methamphetamine after having deferred judgment on the charge pursuant to § 18.2-251 . Vogt v. Commonwealth,, 2012 Va. App. LEXIS 170 (May 22, 2012).

At the time defendant entered into a plea agreement with the Commonwealth for a deferred disposition, he had been arrested for, and was awaiting trial on, unrelated charges and thus, he had reason to know that his performance under the agreement, which required completion of an alcohol safety action program, could be inhibited depending on the outcome of his unrelated charges and thus, the trial court did not abuse its discretion by finding defendant guilty under this section. Stump v. Commonwealth,, 2015 Va. App. LEXIS 94 (Mar. 24, 2015).

Preservation for review. - Trial court properly denied defendant's request for a deferred disposition because defendant only assigned error to the trial court's holding that it could not defer the judgment, but did not challenge the trial court's alternative holding that it would not defer the case even if it could, and the appellate court had to affirm the judgment of the trial court. Cortez v. Commonwealth, No. 0873-18-4, 2019 Va. App. LEXIS 148 (June 25, 2019).

CIRCUIT COURT OPINIONS

Defendant was not a convicted felon under statute. - Defendant's motion to strike the State's evidence as to count 2 of the indictment charging possession of a firearm by a convicted felon, in violation of § 18.2-308.2 , was granted, as he was not a convicted felon, pursuant to § 18.2-251 on the date said charge was alleged in the information; moreover, the fact that he might have later been found to have violated his probation had no retroactive effect since a conviction occurred only after the court conducted a hearing, received evidence of a violation, and then entered a final appealable judgment of conviction. Commonwealth v. Cross, 71 Va. Cir. 272, 2006 Va. Cir. LEXIS 120 (Portsmouth 2006).

Compliance not excused. - Defendant's motion to dismiss was denied because he completed 60 of his 100 assigned hours of community service, manifesting an intent to comply with the prescribed plan, but did not place before the circuit court sufficient facts from which to conclude that compliance was reasonably infeasible or that undue prejudice would result from an extension of probation; Virginia Probation had not specifically stated there was a reasonable inability for him to complete his hours of community service. Commonwealth v. Wallace, 105 Va. Cir. 192, 2020 Va. Cir. LEXIS 79 (Fairfax County June 5, 2020).

Discretion to excuse completion. - Statutory scheme affords the court the discretion to dismiss the case where (a) the court determines that the defendant has complied with the plan of at least 100 hours, (b) due to no fault of his or her own or his or her immigration status, the defendant has been unable to complete those hours, (c) it is not reasonably feasible to comply with the community service requirement, and (d) an extension of the duration of probation to complete said hours would result in undue prejudice. Commonwealth v. Wallace, 105 Va. Cir. 192, 2020 Va. Cir. LEXIS 79 (Fairfax County June 5, 2020).

Fact that the statute requires defendants to comply with a plan of 100 hours of community service rather than to complete 100 hours of community service suggests that the General Assembly intended to clothe the courts with some discretion to excuse completion of the hours when there has been good faith compliance or attempted compliance with the plan, but unforeseen circumstances intervene to prevent completion. Commonwealth v. Wallace, 105 Va. Cir. 192, 2020 Va. Cir. LEXIS 79 (Fairfax County June 5, 2020).

Although a trial court has the authority to revoke the suspension of a sentence to effectuate a condition of the suspension that has, through no fault of the defendant, become impossible to fulfill, it does not have authority to find a defendant in violation of probation or revoke the suspension of a sentence without finding the defendant has some culpability with respect to a violated condition; the trial court may not hold a defendant strictly liable for failure to comply with the conditions. Commonwealth v. Wallace, 105 Va. Cir. 192, 2020 Va. Cir. LEXIS 79 (Fairfax County June 5, 2020).

In order to ensure the principle that good conduct on a defendant's part will expedite his or her complete restoration to society is carried out, the court could find the defendant has satisfied his or her obligation under the deferred finding disposition order. Commonwealth v. Wallace, 105 Va. Cir. 192, 2020 Va. Cir. LEXIS 79 (Fairfax County June 5, 2020).

§ 18.2-251.01. Substance abuse screening and assessment for felony convictions.

  1. When a person is convicted of a felony, except a Class 1 felony, committed on or after January 1, 2000, he shall be required to undergo a substance abuse screening and, if the screening indicates a substance abuse or dependence problem, an assessment by a certified substance abuse counselor as defined in § 54.1-3500 employed by the Department of Corrections or by an agency employee under the supervision of such counselor. If the person is determined to have a substance abuse problem, the court shall require him to enter treatment and/or education program or services, if available, which, in the opinion of the court, is best suited to the needs of the person. The program or services may be located in the judicial district in which the conviction was had or in any other judicial district as the court may provide. The treatment and/or education program or services shall be licensed by the Department of Behavioral Health and Developmental Services or shall be a similar program or services which are made available through the Department of Corrections if the court imposes a sentence of one year or more or, if the court imposes a sentence of 12 months or less, by a similar program or services available through a local or regional jail, a local community-based probation services agency established pursuant to § 9.1-174 , or an ASAP program certified by the Commission on VASAP. The services agency or program may require the person entering such program or services under the provisions of this section to pay a fee for the education and treatment component, or both, based upon the defendant's ability to pay.
  2. As a condition of any suspended sentence and probation, the court shall order the person to undergo periodic testing and treatment for substance abuse, if available, as the court deems appropriate based upon consideration of the substance abuse assessment.

    (1998, cc. 783, 840; 1999, cc. 891, 913; 2000, cc. 1020, 1041; 2007, c. 133; 2009, cc. 813, 840; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendments by cc. 891 and 913 are identical, and in subsection A, substituted "January 1, 2000, he shall be required to undergo a substance abuse screening and, if the screening indicates a substance abuse or dependence problem, an assessment by a certified substance abuse counselor as defined in § 54.1-3500 employed by the Department of Corrections or by an agency employee under the direct supervision of such counselor" for "July 1, 1999, he shall be required, as a part of any presentence investigation conducted pursuant to subsection D of § 19.2-299 , to undergo a substance abuse screening and assessment by a certified substance abuse counselor as defined in § 54.1-3500 employed by the Department of Corrections," and substituted "or treatment, excluding the costs of the screening and assessment" for "including the costs of the screening, assessment and treatment."

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and deleted "direct" preceding "supervision" near the end of the first sentence in subsection A; in the fourth sentence of subsection A, deleted "certified or" preceding "licensed" near the beginning of the sentence, and added the language following "Corrections" through the end of the sentence; at the end of the last sentence in the subsection, substituted the language beginning "a fee for" for the former language, which read: "all or part of the costs of the program or treatment, excluding the costs of the screening and assessment, based upon the person's ability to pay."

The 2007 amendments. - The 2007 amendment by c. 133, in subsection A, inserted "or services" in six places, substituted "The" for "This" in the third sentence, in the fourth sentence, substituted "which are made" for "which is made" and "local community-based probation services agency" for "community-based corrections program" and inserted "services agency or" near the beginning of the last sentence and made a minor stylistic change.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the fourth sentence of subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "except a Class 1 felony" for "not a capital offense" in the first sentence of subsection A.

Research References. - Virginia Forms (Matthew Bender). No. 9-2537 Order Regarding Substance Abuse Screening - Circuit Court.

§ 18.2-251.02. Drug Offender Assessment and Treatment Fund.

There is hereby established in the state treasury the Drug Offender Assessment and Treatment Fund, which shall consist of moneys received from fees imposed on certain drug offense convictions pursuant to § 16.1-69.48:3 and subdivisions A 10 and 11 of § 17.1-275 . All interest derived from the deposit and investment of moneys in the Fund shall be credited to the Fund. Any moneys not appropriated by the General Assembly shall remain in the Drug Offender Assessment and Treatment Fund and shall not be transferred or revert to the general fund at the end of any fiscal year. All moneys in the Fund shall be subject to annual appropriation by the General Assembly to the Department of Corrections, the Department of Juvenile Justice, and the Commission on VASAP to implement and operate the offender substance abuse screening and assessment program; the Department of Criminal Justice Services for the support of community-based probation and local pretrial services agencies; and the Office of the Executive Secretary of the Supreme Court of Virginia for the support of drug treatment court programs.

(1998, cc. 783, 840; 2003, c. 606; 2004, c. 1004; 2020, cc. 1285, 1286; 2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2003 amendments. - The 2003 amendment by c. 606 inserted "the Department of Criminal Justice Services for the support of community-based probation and local pretrial services agencies" in the last sentence.

The 2004 amendments. - The 2004 amendment by c. 1004 substituted "Drug Offender Assessment and Treatment Fund" for "Drug Offender Assessment Fund" twice and "Office of the Executive Secretary of the Supreme Court of Virginia for the support of drug treatment court programs" for "Commission on VASAP to implement and operate the offender substance abuse screening and assessment program" and inserted "and the Commission on VASAP to implement and operate the offender substance abuse screening and assessment program."

The 2020 amendments. - The 2020 amendments by cc. 1285 and 1286 are identical, and in the first sentence, inserted the clause (i) designation, added clause (ii), and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 1, effective July 1, 2021, are identical, and deleted "and (ii) civil penalties imposed for violations of § 18.2-250.1 " at the end of the first sentence and made a stylistic change.

§ 18.2-251.03. Arrest and prosecution when experiencing or reporting overdoses.

  1. For purposes of this section, "overdose" means a life-threatening condition resulting from the consumption or use of a controlled substance, alcohol, or any combination of such substances.
  2. No individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol pursuant to § 4.1-305 , unlawful purchase, possession, or consumption of marijuana pursuant to § 4.1-1105.1 , possession of a controlled substance pursuant to § 18.2-250 , intoxication in public pursuant to § 18.2-388 , or possession of controlled paraphernalia pursuant to § 54.1-3466 if:
    1. Such individual (i) in good faith, seeks or obtains emergency medical attention (a) for himself, if he is experiencing an overdose, or (b) for another individual, if such other individual is experiencing an overdose; (ii) is experiencing an overdose and another individual, in good faith, seeks or obtains emergency medical attention for such individual, by contemporaneously reporting such overdose to a firefighter, as defined in § 65.2-102 , emergency medical services personnel, as defined in § 32.1-111.1 , a law-enforcement officer, as defined in § 9.1-101 , or an emergency 911 system; or (iii) in good faith, renders emergency care or assistance, including cardiopulmonary resuscitation (CPR) or the administration of naloxone or other opioid antagonist for overdose reversal, to an individual experiencing an overdose while another individual seeks or obtains emergency medical attention in accordance with this subdivision;
    2. Such individual remains at the scene of the overdose or at any alternative location to which he or the person requiring emergency medical attention has been transported until a law-enforcement officer responds to the report of an overdose. If no law-enforcement officer is present at the scene of the overdose or at the alternative location, then such individual shall cooperate with law enforcement as otherwise set forth herein;
    3. Such individual identifies himself to the law-enforcement officer who responds to the report of the overdose; and
    4. The evidence for the prosecution of an offense enumerated in this subsection was obtained as a result of the individual seeking or obtaining emergency medical attention or rendering emergency care or assistance.
  3. The provisions of this section shall not apply to any person who seeks or obtains emergency medical attention for himself or another individual, to a person experiencing an overdose when another individual seeks or obtains emergency medical attention for him, or to a person who renders emergency care or assistance to an individual experiencing an overdose while another person seeks or obtains emergency medical attention during the execution of a search warrant or during the conduct of a lawful search or a lawful arrest.
  4. This section does not establish protection from arrest or prosecution for any individual or offense other than those listed in subsection B.
  5. No law-enforcement officer acting in good faith shall be found liable for false arrest if it is later determined that the person arrested was immune from prosecution under this section.

    (2015, cc. 418, 436; 2019, c. 626; 2020, c. 1016; 2021 Sp. Sess. I, cc. 29, 550, 551.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2019 amendments. - The 2019 amendment by c. 626 deleted former subdivision B 4, which read: "If requested by a law-enforcement officer, such individual substantially cooperates in any investigation of any criminal offense reasonably related to the controlled substance, alcohol, or combination of such substances that resulted in the overdose"; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 1016 substituted "No individual shall be subject to arrest or prosecution" for "It shall be an affirmative defense to prosecution of an individual" in the introductory paragraph of B; in subdivision B 1, inserted the clause (i), (a), and (b) designations and inserted "or (ii) is experiencing an overdose and another individual, in good faith, seeks or obtains emergency medical attention for such individual"; rewrote subsection C, which formerly read: "No individual may assert the affirmative defense provided for in this section if the person sought or obtained emergency medical attention for himself or another individual during the execution of a search warrant or during the conduct of a lawful search or a lawful arrest"; substituted "protection from arrest or prosecution" for "an affirmative defense" in subsection D; and added subsection E.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 29, effective July 1, 2021, added clause B 1 (iii); added "or rendering emergency care or assistance" at the end in subdivision B 4; inserted "or to a person who renders emergency care or assistance to an individual experiencing an overdose while another person seeks or obtains emergency medical attention" in subsection C; and made stylistic changes.

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subsection B in the introductory language, inserted "unlawful purchase, possession, or consumption of marijuana pursuant to § 4.1-1105.1 " and deleted "possession of marijuana pursuant to § 18.2-250.1 " preceding "intoxication in public."

CASE NOTES

Passive receipt of medical attention. - Pursuant to the plain meaning of the phrase "obtains emergency medical attention for himself," a defendant is required to have actively planned and taken steps to actually gain medical treatment, and simply benefiting from such treatment while unconscious is not sufficient to bring a defendant within the ambit of the affirmative defense. Therefore, defendant did not benefit from the affirmative defense and was properly convicted of a drug offense when she was merely the recipient of medical attention and did not request it. Broadous v. Commonwealth, 67 Va. App. 265, 795 S.E.2d 904, 2017 Va. App. LEXIS 26 (2017).

CIRCUIT COURT OPINIONS

Applicability. - Defendant was not entitled to preclude prosecution when defendant suffered an overdose as a result of ingesting a controlled substance because defendant was transported to a hospital when found unconscious in a hotel room and left the hospital against medical advice. Defendant did not remain at the scene for the purpose of identifying defendant to law enforcement as defendant was unconscious when the first officer arrived and left the hospital before a second officer arrived and later found defendant walking along a road. Commonwealth v. Glascock,, 2021 Va. Cir. LEXIS 163 (Culpeper July 30, 2021).

Amendment. - Although defendant's alleged offense took place before statutory amendment went into effect, and defendant was not arrested or charged until the indictment after the enactment of the amended statute, the amended version of the statute applied in defendant's case because the proceedings were governed by the procedural laws in effect at the time of the proceeding and the amendments to the statute were procedural and not substantive. Commonwealth v. Weatherholtz,, 2020 Va. Cir. LEXIS 202 (Frederick County Oct. 2, 2020).

This section, regarding arrest and prosecution when experiencing or reporting overdoses, was amended in 2020 to change an affirmative defense to a bar to arrest and prosecution; this in no way changes the penalty structure for felonious possession of a schedule I or II substance when an individual experiences an overdose. The amendments were matters of procedure and the post-2020 statute governed defendant's case, and his motion to dismiss was granted. Commonwealth v. Allen,, 2021 Va. Cir. LEXIS 134 (Culpeper June 10, 2021).

§ 18.2-251.1. Possession or distribution of marijuana for medical purposes permitted.

  1. No person shall be prosecuted under § 18.2-250 or § 18.2-250.1 for the possession of marijuana or tetrahydrocannabinol when that possession occurs pursuant to a valid prescription issued by a medical doctor in the course of his professional practice for treatment of cancer or glaucoma.
  2. No medical doctor shall be prosecuted under § 18.2-248 or § 18.2-248.1 for dispensing or distributing marijuana or tetrahydrocannabinol for medical purposes when such action occurs in the course of his professional practice for treatment of cancer or glaucoma.
  3. No pharmacist shall be prosecuted under §§ 18.2-248 to 18.2-248.1 for dispensing or distributing marijuana or tetrahydrocannabinol to any person who holds a valid prescription of a medical doctor for such substance issued in the course of such doctor's professional practice for treatment of cancer or glaucoma. (1979, c. 435.)

CASE NOTES

Necessity defense. - In restricting the legitimate medicinal uses of marijuana to cases involving cancer and glaucoma, the legislature evinced its intent to circumscribe the value judgment an individual can make with respect to its use for treating other conditions and, to that extent, abrogated the common-law defense of necessity. Murphy v. Commonwealth, 31 Va. App. 70, 521 S.E.2d 301 (1999).

§ 18.2-251.1:1. Possession or distribution of cannabis oil; public schools.

No school nurse employed by a local school board, person employed by a local health department who is assigned to the public school pursuant to an agreement between the local health department and the school board, or other person employed by or contracted with a local school board to deliver health-related services shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-248 , 18.2-248 .1, 18.2-250 , or 18.2-255 for the possession or distribution of cannabis oil for storing, dispensing, or administering cannabis oil, in accordance with a policy adopted by the local school board, to a student who has been issued a valid written certification for the use of cannabis oil in accordance with subsection B of § 54.1-3408.3 .

(2019, cc. 573, 574; 2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - Acts 2019, cc. 573 and 574, cl. 2 provides: "That the Department of Health Professions, in coordination with the Department of Education, shall develop and make available to school boards a standardized form that is to be completed by a practitioner who issues a written certification and a pharmaceutical processor that dispenses the cannabidiol oil or THC-A oil to a student. A completed form shall identify the student; specify the dosage of the cannabidiol oil or THC-A oil, the frequency in which it is to be administered, and any other circumstances that may warrant its use; and provide other relevant information."

At the direction of the Virginia Code Commission, "cannabis oil" was substituted for "cannabidiol oil or THC-A oil" throughout the section to conform to the amendment of § 54.1-3408.3 by Acts 2020, c. 1278.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1 or" and deleted "18.2-250.1" following "18.2-250."

§ 18.2-251.1:2. Possession or distribution of cannabis oil; nursing homes and certified nursing facilities; hospice and hospice facilities; assisted living facilities.

No person employed by a nursing home, hospice, hospice facility, or assisted living facility and authorized to possess, distribute, or administer medications to patients or residents shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-248 , 18.2-248 .1, or 18.2-250 for the possession or distribution of cannabis oil for the purposes of storing, dispensing, or administering cannabis oil to a patient or resident who has been issued a valid written certification for the use of cannabis oil in accordance with subsection B of § 54.1-3408.3 and has registered with the Board of Pharmacy.

(2020, c. 846; 2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - At the direction of the Virginia Code Commission, "cannabis oil" was substituted for "cannabidiol oil or THC-A oil" throughout the section to conform to the amendment of § 54.1-3408.3 by Acts 2020, c. 1278.

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1 or" and deleted "18.2-250.1" following "18.2-250"; and made a stylistic change.

§ 18.2-251.1:3. Possession or distribution of cannabis oil, or industrial hemp; laboratories; Department of Agriculture and Consumer Services employees.

  1. No person employed by an analytical laboratory to retrieve, deliver, or possess cannabis oil or industrial hemp samples from a permitted pharmaceutical processor, a registered industrial hemp grower, a federally licensed hemp producer, or a registered industrial hemp processor for the purpose of performing required testing shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-248 , 18.2-248 .1, 18.2-250 , or 18.2-255 for the possession or distribution of cannabis oil or industrial hemp or for storing cannabis oil or industrial hemp for testing purposes in accordance with regulations promulgated by the Board of Pharmacy and the Board of Agriculture and Consumer Services.
  2. No employee of the Department of Agriculture and Consumer Services shall be prosecuted under § 18.2-247 , 18.2-248 , 18.2-248.01 , 18.2-248 .1, or 18.2-250 for the possession or distribution of industrial hemp when possession of industrial hemp is necessary in the performance of his duties. (2020, c. 941, § 18.2-251.1:2 ; 2021, Sp. Sess. I, cc. 110, 550, 551.)

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 18.2-251.1:2 .

Editor's note. - At the direction of the Virginia Code Commission, "cannabis oil" was substituted for "cannabidiol oil, THC-A oil" throughout the section to conform to the amendment of § 54.1-3408.3 by Acts 2020, c. 1278.

At the direction of the Virginia Code Commission, "or issued a summons or judgment under § 18.2-250.1 ” was deleted from subsection B as added by Acts 2021, Sp. Sess. I, c. 110, to conform to Acts 2021, Sp. Sess. I, cc. 550 and 551, which repealed § 18.2-250.1 .

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

Effective date. - Acts 2020, c. 941, became effective April 9, 2020, by emergency clause.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 110, effective March 12, 2021, designated the existing provisions as subsection A; in subsection A, substituted "registered" for "licensed" twice amd inserted "a federally licensed hemp producer"; added subsection B; and made stylistic changes.

The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2 effective July 1, 2021, are identical, and inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1 or" and deleted "18.2-250.1" following "18.2-250."

§ 18.2-251.2. Possession and distribution of flunitrazepam; enhanced penalty.

Notwithstanding the provisions of §§ 54.1-3446 and 54.1-3452 , the drug flunitrazepam shall be deemed to be listed on Schedule I for the purposes of penalties for violations of the Drug Control Act (§ 54.1-3400 et seq.). Any person knowingly manufacturing, selling, giving, distributing or possessing the drug flunitrazepam shall be punished under the penalties prescribed for such violations in accordance with §§ 18.2-248 and 18.2-250 .

(1997, c. 595.)

§ 18.2-251.3. Possession and distribution of gamma-butyrolactone; 1, 4-butanediol; enhanced penalty.

Any person who knowingly manufactures, sells, gives, distributes or possesses with the intent to distribute the substances gamma-butyrolactone; or 1, 4-butanediol, when intended for human consumption shall be guilty of a Class 3 felony.

(2000, c. 348.)

Law review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

§ 18.2-251.4. Defeating drug and alcohol screening tests; penalty.

  1. It is unlawful for a person to:
    1. Sell, give away, distribute, transport or market human urine in the Commonwealth with the intent of using the urine to defeat a drug or alcohol screening test;
    2. Attempt to defeat a drug or alcohol screening test by the substitution of a sample;
    3. Adulterate a urine or other bodily fluid sample with the intent to defraud a drug or alcohol screening test.
  2. A violation of this section is a Class 1 misdemeanor.

    (2001, c. 379.)

§ 18.2-252. Suspended sentence conditioned upon substance abuse screening, assessment, testing, and treatment or education.

The trial judge or court trying the case of any person found guilty of a criminal violation of any law concerning the use, in any manner, of drugs, controlled substances, narcotics, marijuana, noxious chemical substances and like substances shall condition any suspended sentence by first requiring such person to agree to undergo a substance abuse screening pursuant to § 18.2-251.01 and to submit to such periodic substance abuse testing, to include alcohol testing, as may be directed by the court. Such testing shall be conducted by the supervising probation agency or by personnel of any program or agency approved by the supervising probation agency. The cost of such testing ordered by the court shall be paid by the Commonwealth and taxed as a part of the costs of such proceedings. The judge or court shall order the person, as a condition of any suspended sentence, to undergo such treatment or education for substance abuse, if available, as the judge or court deems appropriate based upon consideration of the substance abuse assessment. The treatment or education shall be provided by a program or agency licensed by the Department of Behavioral Health and Developmental Services, by a similar program or services available through the Department of Corrections if the court imposes a sentence of one year or more or, if the court imposes a sentence of 12 months or less, by a similar program or services available through a local or regional jail, a local community-based probation services agency established pursuant to § 9.1-174 , or an ASAP program certified by the Commission on VASAP.

(Code 1950, § 54-524.101:4; 1973, c. 473; 1975, cc. 14, 15; 1979, c. 435; 1998, cc. 783, 840; 2000, cc. 1020, 1041; 2007, c. 133; 2009, cc. 813, 840; 2020, cc. 1285, 1286.)

The 1998 amendments. - by cc. 783 and 840, effective July 1, 1999, are identical, and in the first sentence, deleted "Notwithstanding any other provision of law to the contrary" preceding "The trial judge," and in the third sentence, inserted "ordered by the court in addition to any screening and assessment ordered pursuant to § 18.2-251.01 ."

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and rewrote the section.

The 2007 amendments. - The 2007 amendment by c. 133, in the last sentence, inserted "or agency" preceding "licensed" and "or services" following "similar program" in two places and substituted "local community-based probation services agency" for "community-based corrections program" and made a minor stylistic change.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the fifth sentence.

The 2020 amendments. - The 2020 amendments by cc. 1285 and 1286 are identical, and substituted "a criminal violation of any law" for "violating any law" in the first sentence, and deleted "criminal" preceding "proceedings" in the third sentence.

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§§ 18.2-253 through 18.2-253.2.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to seizure and custody of controlled substances, see §§ 19.2-386.23 through 19.2-386.25 .

§ 18.2-254. Commitment of convicted person for treatment for substance abuse.

  1. Whenever any person who has not previously been convicted of any criminal offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, stimulant, depressant, or hallucinogenic drugs or has not previously had a proceeding against him for violation of such an offense dismissed as provided in § 18.2-251 is found guilty of violating any law concerning the use, in any manner, of drugs, controlled substances, narcotics, marijuana, noxious chemical substances, and like substances, the judge or court shall require such person to undergo a substance abuse screening pursuant to § 18.2-251.01 and to submit to such periodic substance abuse testing, to include alcohol testing, as may be directed by the court. The cost of such testing ordered by the court shall be paid by the Commonwealth and taxed as a part of the costs of the criminal proceedings. The judge or court shall also order the person to undergo such treatment or education for substance abuse, if available, as the judge or court deems appropriate based upon consideration of the substance abuse assessment. The treatment or education shall be provided by a program or agency licensed by the Department of Behavioral Health and Developmental Services or by a similar program or services available through the Department of Corrections if the court imposes a sentence of one year or more or, if the court imposes a sentence of 12 months or less, by a similar program or services available through a local or regional jail, a local community-based probation services agency established pursuant to § 9.1-174 , or an ASAP program certified by the Commission on VASAP.
  2. The court trying the case of any person alleged to have committed any criminal offense designated by this article or by the Drug Control Act (§ 54.1-3400 et seq.) or in any other criminal case in which the commission of the offense was motivated by or closely related to the use of drugs and determined by the court, pursuant to a substance abuse screening and assessment, to be in need of treatment for the use of drugs may commit, based upon a consideration of the substance abuse assessment, such person, upon his conviction, to any facility for the treatment of persons with substance abuse, licensed by the Department of Behavioral Health and Developmental Services, if space is available in such facility, for a period of time not in excess of the maximum term of imprisonment specified as the penalty for conviction of such offense or, if sentence was determined by a jury, not in excess of the term of imprisonment as set by such jury. Confinement under such commitment shall be, in all regards, treated as confinement in a penal institution and the person so committed may be convicted of escape if he leaves the place of commitment without authority. A charge of escape may be prosecuted in either the jurisdiction where the treatment facility is located or the jurisdiction where the person was sentenced to commitment. The court may revoke such commitment at any time and transfer the person to an appropriate state or local correctional facility. Upon presentation of a certified statement from the director of the treatment facility to the effect that the confined person has successfully responded to treatment, the court may release such confined person prior to the termination of the period of time for which such person was confined and may suspend the remainder of the term upon such conditions as the court may prescribe.
  3. The court trying a case in which commission of the criminal offense was related to the defendant's habitual abuse of alcohol and in which the court determines, pursuant to a substance abuse screening and assessment, that such defendant is in need of treatment, may commit, based upon a consideration of the substance abuse assessment, such person, upon his conviction, to any facility for the treatment of persons with substance abuse licensed by the Department of Behavioral Health and Developmental Services, if space is available in such facility, for a period of time not in excess of the maximum term of imprisonment specified as the penalty for conviction. Confinement under such commitment shall be, in all regards, treated as confinement in a penal institution and the person so committed may be convicted of escape if he leaves the place of commitment without authority. The court may revoke such commitment at any time and transfer the person to an appropriate state or local correctional facility. Upon presentation of a certified statement from the director of the treatment facility to the effect that the confined person has successfully responded to treatment, the court may release such confined person prior to the termination of the period of time for which such person was confined and may suspend the remainder of the term upon such conditions as the court may prescribe.

    (Code 1950, § 54-524.102; 1972, c. 758; 1974, c. 447; 1975, cc. 14, 15; 1978, c. 640; 1979, cc. 413, 435; 1992, c. 852; 1998, c. 724; 2000, cc. 1020, 1041; 2004, c. 130; 2005, c. 716; 2007, c. 133; 2009, cc. 813, 840; 2020, cc. 1285, 1286.)

The 1998 amendment, in subsection B, in the first sentence, substituted "37.1-1" for "37.1-217."

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and added present subsection A; redesignated former subsections A and B as present subsections B and C; in the first sentence of present subsection B, inserted "pursuant to a substance abuse screening and assessment"; inserted "based upon a consideration of the substance abuse assessment," deleted "and with his consent and the consent of the receiving institution" following "his conviction," deleted "or supervised" following "licensed," and substituted "Department of Mental Health, Mental Retardation and Substance Abuse Services" for "State Mental Health, Mental Retardation and Substance Abuse Services Board"; and in present subsection C, inserted "pursuant to a substance abuse screening and assessment," inserted "based upon a consideration of the substance abuse assessment," deleted "and with his consent and the consent of the receiving institution," following "his conviction," deleted "or supervised" following "licensed," and substituted "Department of Mental Health, Mental Retardation and Substance Abuse Services" for "State Mental Health, Mental Retardation and Substance Abuse Services Board."

The 2004 amendments. - The 2004 amendment by c. 130 substituted "12" for "twelve" in the last sentence of subsection A; and inserted the present third sentence in subsection B.

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, substituted "with substance abuse" for "for the intemperate use of narcotic or other controlled substances" in subsection B; in subsection C, deleted "an alcoholic as defined in § 37.1-1 and" preceding "in need of treatment," and substituted "persons with substance abuse" for "alcoholics"; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 133, in subsection A, in the last sentence, inserted "or agency" preceding "licensed" and "or services" following "similar program" in two places and substituted "local community-based probation services agency" for "community-based corrections program."

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the fourth sentence of subsection A, and in the first sentences of subsections B and C.

The 2020 amendments. - The 2020 amendments by cc. 1285 and 1286 are identical, and substituted "criminal offense" for "offense" in the first sentence of subsections A, B, and C.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972); for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978); for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

Applied in Ziats v. Commonwealth, 42 Va. App. 133, 590 S.E.2d 117, 2003 Va. App. LEXIS 701 (2003).

§ 18.2-254.1. Drug Treatment Court Act.

  1. This section shall be known and may be cited as the "Drug Treatment Court Act."
  2. The General Assembly recognizes that there is a critical need in the Commonwealth for effective treatment programs that reduce the incidence of drug use, drug addiction, family separation due to parental substance abuse, and drug-related crimes. It is the intent of the General Assembly by this section to enhance public safety by facilitating the creation of drug treatment courts as means by which to accomplish this purpose.
  3. The goals of drug treatment courts include: (i) reducing drug addiction and drug dependency among offenders; (ii) reducing recidivism; (iii) reducing drug-related court workloads; (iv) increasing personal, familial and societal accountability among offenders; and, (v) promoting effective planning and use of resources among the criminal justice system and community agencies.
  4. Drug treatment courts are specialized court dockets within the existing structure of Virginia's court system offering judicial monitoring of intensive treatment and strict supervision of addicts in drug and drug-related cases. Local officials must complete a recognized planning process before establishing a drug treatment court program.
  5. Administrative oversight for implementation of the Drug Treatment Court Act shall be conducted by the Supreme Court of Virginia. The Supreme Court of Virginia shall be responsible for (i) providing oversight for the distribution of funds for drug treatment courts; (ii) providing technical assistance to drug treatment courts; (iii) providing training for judges who preside over drug treatment courts; (iv) providing training to the providers of administrative, case management, and treatment services to drug treatment courts; and (v) monitoring the completion of evaluations of the effectiveness and efficiency of drug treatment courts in the Commonwealth.
  6. A state drug treatment court advisory committee shall be established to (i) evaluate and recommend standards for the planning and implementation of drug treatment courts; (ii) assist in the evaluation of their effectiveness and efficiency; and (iii) encourage and enhance cooperation among agencies that participate in their planning and implementation. The committee shall be chaired by the Chief Justice of the Supreme Court of Virginia or his designee and shall include a member of the Judicial Conference of Virginia who presides over a drug treatment court; a district court judge; the Executive Secretary or his designee; the directors of the following executive branch agencies: Department of Corrections, Department of Criminal Justice Services, Department of Juvenile Justice, Department of Behavioral Health and Developmental Services, Department of Social Services; a representative of the following entities: a local community-based probation and pretrial services agency, the Commonwealth's Attorney's Association, the Virginia Indigent Defense Commission, the Circuit Court Clerk's Association, the Virginia Sheriff's Association, the Virginia Association of Chiefs of Police, the Commission on VASAP, and two representatives designated by the Virginia Drug Court Association.
  7. Each jurisdiction or combination of jurisdictions that intend to establish a drug treatment court or continue the operation of an existing one shall establish a local drug treatment court advisory committee. Jurisdictions that establish separate adult and juvenile drug treatment courts may establish an advisory committee for each such court. Each advisory committee shall ensure quality, efficiency, and fairness in the planning, implementation, and operation of the drug treatment court or courts that serve the jurisdiction or combination of jurisdictions. Advisory committee membership shall include, but shall not be limited to the following people or their designees: (i) the drug treatment court judge; (ii) the attorney for the Commonwealth, or, where applicable, the city or county attorney who has responsibility for the prosecution of misdemeanor offenses; (iii) the public defender or a member of the local criminal defense bar in jurisdictions in which there is no public defender; (iv) the clerk of the court in which the drug treatment court is located; (v) a representative of the Virginia Department of Corrections, or the Department of Juvenile Justice, or both, from the local office which serves the jurisdiction or combination of jurisdictions; (vi) a representative of a local community-based probation and pretrial services agency; (vii) a local law-enforcement officer; (viii) a representative of the Department of Behavioral Health and Developmental Services or a representative of local drug treatment providers; (ix) the drug court administrator; (x) a representative of the Department of Social Services; (xi) county administrator or city manager; and (xii) any other people selected by the drug treatment court advisory committee.
  8. Each local drug treatment court advisory committee shall establish criteria for the eligibility and participation of offenders who have been determined to be addicted to or dependent upon drugs. Subject to the provisions of this section, neither the establishment of a drug treatment court nor anything herein shall be construed as limiting the discretion of the attorney for the Commonwealth to prosecute any criminal case arising therein which he deems advisable to prosecute, except to the extent the participating attorney for the Commonwealth agrees to do so. As defined in § 17.1-805 or 19.2-297.1 , adult offenders who have been convicted of a violent criminal offense within the preceding 10 years, or juvenile offenders who previously have been adjudicated not innocent of any such offense within the preceding 10 years, shall not be eligible for participation in any drug treatment court established or continued in operation pursuant to this section.
  9. Each drug treatment court advisory committee shall establish policies and procedures for the operation of the court to attain the following goals: (i) effective integration of drug and alcohol treatment services with criminal justice system case processing; (ii) enhanced public safety through intensive offender supervision and drug treatment; (iii) prompt identification and placement of eligible participants; (iv) efficient access to a continuum of alcohol, drug, and related treatment and rehabilitation services; (v) verified participant abstinence through frequent alcohol and other drug testing; (vi) prompt response to participants' noncompliance with program requirements through a coordinated strategy; (vii) ongoing judicial interaction with each drug court participant; (viii) ongoing monitoring and evaluation of program effectiveness and efficiency; (ix) ongoing interdisciplinary education and training in support of program effectiveness and efficiency; and (x) ongoing collaboration among drug treatment courts, public agencies, and community-based organizations to enhance program effectiveness and efficiency.
  10. Participation by an offender in a drug treatment court shall be voluntary and made pursuant only to a written agreement entered into by and between the offender and the Commonwealth with the concurrence of the court.
  11. Nothing in this section shall preclude the establishment of substance abuse treatment programs and services pursuant to the deferred judgment provisions of § 18.2-251 .
  12. Each offender shall contribute to the cost of the substance abuse treatment he receives while participating in a drug treatment court pursuant to guidelines developed by the drug treatment court advisory committee.
  13. Nothing contained in this section shall confer a right or an expectation of a right to treatment for an offender or be construed as requiring a local drug treatment court advisory committee to accept for participation every offender.
  14. The Office of the Executive Secretary shall, with the assistance of the state drug treatment court advisory committee, develop a statewide evaluation model and conduct ongoing evaluations of the effectiveness and efficiency of all local drug treatment courts. A report of these evaluations shall be submitted to the General Assembly by December 1 of each year. Each local drug treatment court advisory committee shall submit evaluative reports to the Office of the Executive Secretary as requested.
  15. Notwithstanding any other provision of this section, no drug treatment court shall be established subsequent to March 1, 2004, unless the jurisdiction or jurisdictions intending or proposing to establish such court have been specifically granted permission under the Code of Virginia to establish such court. The provisions of this subsection shall not apply to any drug treatment court established on or before March 1, 2004, and operational as of July 1, 2004.
  16. Subject to the requirements and conditions established by the state Drug Treatment Court Advisory Committee, there shall be established a drug treatment court in the following jurisdictions: the City of Chesapeake and the City of Newport News.
  17. Subject to the requirements and conditions established by the state Drug Treatment Court Advisory Committee, there shall be established a drug treatment court in the Juvenile and Domestic Relations District Court for the County of Franklin, provided that such court is funded solely through local sources.
  18. Subject to the requirements and conditions established by the state Drug Treatment Court Advisory Committee, there shall be established a drug treatment court in the City of Bristol and the County of Tazewell, provided that the court is funded within existing state and local appropriations.

    (2004, c. 1004; 2005, cc. 519, 602; 2006, cc. 175, 341; 2007, c. 133; 2009, cc. 205, 281, 294, 813, 840; 2010, c. 258.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 39 H 1, effective for the biennium ending June 30, 2022, provides: "No state funds used to support the operation of drug court programs shall be provided to programs that serve first-time substance abuse offenders only or do not include probation violators. This restriction shall not apply to juvenile drug court programs."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 39 H 2, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of subsection O. of § 18.2-254.1 , Code of Virginia, any locality is authorized to establish a drug treatment court supported by existing state resources and by federal or local resources that may be available. This authorization is subject to the requirements and conditions regarding the establishment and operation of a local drug treatment court advisory committee as provided by § 18.2-254.1 and the requirements and conditions established by the state Drug Treatment Court Advisory Committee. Any drug court treatment program established after July 1, 2012, shall limit participation in the program to offenders who have been determined, through the use of a nationally recognized, validated assessment tool, to be addicted to or dependent on drugs. However, no such drug court treatment program shall limit its participation to first-time substance abuse offenders only; nor shall it exclude probation violators from participation."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 39 H 3, effective for the biennium ending June 30, 2022, provides: "The evaluation of drug treatment court programs required by § 18.2-254.1 shall include the collection of data needed for outcome measures, including recidivism. Drug treatment court programs shall provide to the Office of the Executive Secretary of the Supreme Court the information needed to conduct such an evaluation."

The 2005 amendments. - The 2005 amendments by cc. 519 and 602 are identical, and added subsection P and made a minor stylistic change.

The 2006 amendments. - The 2006 amendments by cc. 175 and 341 are identical, and in subsection P, substituted "jurisdictions" for "jurisdiction" and added "and the City of Newport News."

The 2007 amendments. - The 2007 amendment by c. 133 substituted "a local community-based probation and pretrial services agency" for "community corrections/pretrial services programs" in the last sentence of subsection F; substituted "a local community-based probation and pretrial services agency" for "community corrections/pretrial services" in clause (vi) of the last sentence in subsection G; and inserted "and services" following "programs" in subsection K.

The 2009 amendments. - The 2009 amendments by cc. 205 and 281 are identical, and added subsection Q.

The 2009 amendment by c. 294 added subsection Q, which was subsequently redesignated as subsection R by the Virginia Code Commission.

The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the second sentence of subsection F, and in clause (viii) of subsection G.

The 2010 amendments. - The 2010 amendment by c. 258 inserted "City of Bristol and the" in subsection R.

Law review. - For essay, "The Chesterfield/Colonial Heights Drug Court: A Partnership Between the Criminal Justice System and the Treatment Community," see 43 U. Rich. L. Rev. 5 (2008).

CASE NOTES

Failure to comply with conditions of suspended sentence. - Circuit court properly revoked defendant's suspended sentence because he received his due process rights to notice and a hearing regarding his termination from a drug treatment court program; defendant exercised the opportunity to present evidence, he admitted receiving written notice that the Commonwealth sought to revoke his suspended sentence for "using drugs," and the record contained a transcript of the drug court termination hearing, which showed defendant was present with counsel. Washington v. Commonwealth, No. 0710-16-1, 2017 Va. App. LEXIS 288 (Nov. 14, 2017).

Failure to raise issue at trial barred consideration on appeal. - Trial court did not err in failing to reverse defendant's termination from a drug court program because defendant's contention that the termination violated defendant's due process rights under the Fourteenth Amendment was procedurally barred by Va. Sup. Ct. R. 5A:18 where the trial court did not have the opportunity to address that contention. Harris v. Commonwealth,, 2009 Va. App. LEXIS 90 (Mar. 10, 2009).

§ 18.2-254.2. Specialty dockets; report.

  1. The Office of the Executive Secretary of the Supreme Court shall develop a statewide evaluation model and conduct ongoing evaluations of the effectiveness and efficiency of all local specialty dockets established in accordance with the Rules of Supreme Court of Virginia. Each local specialty docket shall submit evaluative reports to the Office of the Executive Secretary as requested. The Office of the Executive Secretary of the Supreme Court of Virginia shall submit a report of such evaluations to the General Assembly by December 1 of each year.
  2. Any veterans docket authorized and established as a local specialty docket in accordance with the Rules of Supreme Court of Virginia shall be deemed a "Veterans Treatment Court Program," as that term is used under federal law or by any other entity, for the purposes of applying for, qualifying for, or receiving any federal grants, other federal money, or money from any other entity designated to assist or fund such state programs.

    (2019, cc. 13, 51; 2020, c. 603.)

Cross references. - For Rule of Virginia Supreme Court as to Specialty dockets, see Rule 1:25.

The 2020 amendments. - The 2020 amendment by c. 603, effective April 2, 2020, added subsection B and designated the preceding paragraph as subsection A.

§ 18.2-254.3. Behavioral Health Docket Act.

  1. This section shall be known and may be cited as the "Behavioral Health Docket Act."
  2. The General Assembly recognizes the critical need to promote public safety and reduce recidivism by addressing co-occurring behavioral health issues, such as mental illness and substance abuse, related to persons in the criminal justice system. It is the intention of the General Assembly to enhance public safety by facilitating the creation of behavioral health dockets to accomplish this purpose.
  3. The goals of behavioral health dockets shall include (i) reducing recidivism; (ii) increasing personal, familial, and societal accountability among offenders through ongoing judicial intervention; (iii) addressing mental illness and substance abuse that contribute to criminal behavior and recidivism; and (iv) promoting effective planning and use of resources within the criminal justice system and community agencies. Behavioral health dockets promote outcomes that will benefit not only the offender but society as well.
  4. Behavioral health dockets are specialized criminal court dockets within the existing structure of Virginia's court system that enable the judiciary to manage its workload more efficiently. Under the leadership and regular interaction of presiding judges, and through voluntary offender participation, behavioral health dockets shall address offenders with mental health conditions and drug addictions that contribute to criminal behavior. Behavioral health dockets shall employ evidence-based practices to diagnose behavioral health illness and provide treatment, enhance public safety, reduce recidivism, ensure offender accountability, and promote offender rehabilitation in the community. Local officials shall complete a planning process recognized by the state behavioral health docket advisory committee before establishing a behavioral health docket program.
  5. Administrative oversight of implementation of the Behavioral Health Docket Act shall be conducted by the Supreme Court of Virginia. The Supreme Court of Virginia shall be responsible for (i) providing oversight of the distribution of funds for behavioral health dockets; (ii) providing technical assistance to behavioral health dockets; (iii) providing training to judges who preside over behavioral health dockets; (iv) providing training to the providers of administrative, case management, and treatment services to behavioral health dockets; and (v) monitoring the completion of evaluations of the effectiveness and efficiency of behavioral health dockets in the Commonwealth.
  6. A state behavioral health docket advisory committee shall be established in the judicial branch. The committee shall be chaired by the Chief Justice of the Supreme Court of Virginia, who shall appoint a vice-chair to act in his absence. The membership of the committee shall include a behavioral health circuit court judge, a behavioral health general district court judge, a behavioral health juvenile and domestic relations district court judge, the Executive Secretary of the Supreme Court or his designee, the Governor or his designee, and a representative from each of the following entities: the Commonwealth's Attorneys' Services Council, the Virginia Court Clerks' Association, the Virginia Indigent Defense Commission, the Department of Behavioral Health and Developmental Services, the Virginia Organization of Consumers Asserting Leadership, a community services board or behavioral health authority, and a local community-based probation and pretrial services agency.
  7. Each jurisdiction or combination of jurisdictions that intend to establish a behavioral health docket or continue the operation of an existing behavioral health docket shall establish a local behavioral health docket advisory committee. Jurisdictions that establish separate adult and juvenile behavioral health dockets may establish an advisory committee for each such docket. Each local behavioral health docket advisory committee shall ensure quality, efficiency, and fairness in the planning, implementation, and operation of the behavioral health dockets that serve the jurisdiction or combination of jurisdictions. Advisory committee membership may include, but shall not be limited to, the following persons or their designees: (i) the behavioral health docket judge; (ii) the attorney for the Commonwealth or, where applicable, the city or county attorney who has responsibility for the prosecution of misdemeanor offenses; (iii) the public defender or a member of the local criminal defense bar in jurisdictions in which there is no public defender; (iv) the clerk of the court in which the behavioral health docket is located; (v) a representative of the Virginia Department of Corrections or the Department of Juvenile Justice, or both, from the local office that serves the jurisdiction or combination of jurisdictions; (vi) a representative of a local community-based probation and pretrial services agency; (vii) a local law-enforcement officer; (viii) a representative of the Department of Behavioral Health and Developmental Services or a representative of local treatment providers, or both; (ix) a representative of the local community services board or behavioral health authority; (x) the behavioral health docket administrator; (xi) a public health official; (xii) the county administrator or city manager; (xiii) a certified peer recovery specialist; and (xiv) any other persons selected by the local behavioral health docket advisory committee.
  8. Each local behavioral health docket advisory committee shall establish criteria for the eligibility and participation of offenders who have been determined to have problems with drug addiction, mental illness, or related issues. The committee shall ensure the use of a comprehensive, valid, and reliable screening instrument to assess whether the individual is a candidate for a behavioral health docket. Once an individual is identified as a candidate appropriate for a behavioral health court docket, a full diagnosis and treatment plan shall be prepared by qualified professionals.

    Subject to the provisions of this section, neither the establishment of a behavioral health docket nor anything in this section shall be construed as limiting the discretion of the attorney for the Commonwealth to prosecute any criminal case arising therein that he deems advisable to prosecute, except to the extent that the participating attorney for the Commonwealth agrees to do so.

  9. Each local behavioral health docket advisory committee shall establish policies and procedures for the operation of the docket to attain the following goals: (i) effective integration of appropriate treatment services with criminal justice system case processing; (ii) enhanced public safety through intensive offender supervision and treatment; (iii) prompt identification and placement of eligible participants; (iv) efficient access to a continuum of related treatment and rehabilitation services; (v) verified participant abstinence through frequent alcohol and other drug testing and mental health status assessments, where applicable; (vi) prompt response to participants' noncompliance with program requirements through a coordinated strategy; (vii) ongoing judicial interaction with each behavioral health docket participant; (viii) ongoing monitoring and evaluation of program effectiveness and efficiency; (ix) ongoing interdisciplinary education and training in support of program effectiveness and efficiency; and (x) ongoing collaboration among behavioral health dockets, public agencies, and community-based organizations to enhance program effectiveness and efficiency.
  10. If there is cause for concern that a defendant was experiencing a crisis related to a mental health or substance abuse disorder then his case will be referred, if such referral is appropriate, to a behavioral health docket to determine eligibility for participation. Participation by an offender in a behavioral health docket shall be voluntary and made pursuant only to a written agreement entered into by and between the offender and the Commonwealth with the concurrence of the court. If an offender determined to be eligible to participate in a behavioral health docket resides in a locality other than that in which the behavioral health docket is located, or such offender desires to move to a locality other than that in which the behavioral health docket is located, and the court determines it is practicable and appropriate, the supervision of such offender may be transferred to a supervising agency in the new locality. If the receiving agency accepts the transfer, it shall confirm in writing that it can and will comply with all of the conditions of supervision of the behavioral health docket, including the frequency of in-person and other contact with the offender and updates from the offender's treatment providers. If the receiving agency cannot comply with the conditions of supervision, the agency shall deny the transfer in writing and the sending agency shall notify the court. Where supervision is transferred, the sending agency shall be responsible for providing reports on an offender's conduct, treatment, and compliance with the conditions of supervision to the court.
  11. An offender may be required to contribute to the cost of the treatment he receives while participating in a behavioral health docket pursuant to guidelines developed by the local behavioral health docket advisory committee.
  12. Nothing contained in this section shall confer a right or an expectation of a right to treatment for an offender or be construed as requiring a local behavioral health docket advisory committee to accept for participation every offender.
  13. The Office of the Executive Secretary shall, with the assistance of the state behavioral health docket advisory committee, develop a statewide evaluation model and conduct ongoing evaluations of the effectiveness and efficiency of all behavioral health dockets. The Executive Secretary shall submit an annual report of these evaluations to the General Assembly by December 1 of each year. The annual report shall be submitted as a report document as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly's website. Each local behavioral health docket advisory committee shall submit evaluative reports, as provided by the Behavioral/Mental Health Docket Advisory Committee, to the Office of the Executive Secretary as requested.

    (2020, c. 1096; 2021, Sp. Sess. I, c. 191.)

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 191, effective July 1, 2021, added the last four sentences in subsection J.

§ 18.2-255. Distribution of certain drugs to persons under 18 prohibited; penalty.

  1. Except as authorized in the Drug Control Act, Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1, it shall be unlawful for any person who is at least 18 years of age to knowingly or intentionally (i) distribute any drug classified in Schedule I, II, III or IV or marijuana to any person under 18 years of age who is at least three years his junior or (ii) cause any person under 18 years of age to assist in such distribution of any drug classified in Schedule I, II, III or IV or marijuana. Any person violating this provision shall upon conviction be imprisoned in a state correctional facility for a period not less than 10 nor more than 50 years, and fined not more than $100,000. Five years of the sentence imposed for a conviction under this section involving a Schedule I or II controlled substance or one ounce or more of marijuana shall be a mandatory minimum sentence. Two years of the sentence imposed for a conviction under this section involving less than one ounce of marijuana shall be a mandatory minimum sentence.
  2. It shall be unlawful for any person who is at least 18 years of age to knowingly or intentionally (i) distribute any imitation controlled substance to a person under 18 years of age who is at least three years his junior or (ii) cause any person under 18 years of age to assist in such distribution of any imitation controlled substance. Any person violating this provision shall be guilty of a Class 6 felony.

    (Code 1950, § 54-524.103; 1970, c. 650; 1972, c. 798; 1975, cc. 14, 15; 1976, c. 614; 1979, c. 435; 1982, c. 462; 1990, cc. 720, 864, 866; 1992, cc. 708, 724; 2000, cc. 1020, 1041; 2004, c. 461; 2011, cc. 384, 410; 2014, cc. 674, 719.)

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and in the first sentence of subsection A, inserted "( § 54.1-3400 et seq.)" following "Chapter 34," and deleted "who is at least three years his junior" preceding "to assist" in clause (ii); and in subsection B, deleted "who is at least three years his junior" preceding "to assist" in clause (ii) of the first sentence.

The 2004 amendments. - The 2004 amendment by c. 461, throughout the section, substituted "18" for "eighteen"; and in subsection A, in the second sentence, substituted "10" for "ten" and "50" for "fifty," in the next-to-last and last sentences, deleted "shall not be suspended, in whole or in part" following "sentence imposed" and added "shall be a mandatory minimum sentence" at the end and inserted "under this section" near the middle of the last sentence.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and in subsection A, substituted "marijuana or synthetic cannabinoids" for "or, marijuana" in clauses (i) and (ii) of the first sentence, and inserted "synthetic cannabinoids or involving" in the last sentence.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and in subsection A, deleted "synthetic cannabinoids" following "marijuana" twice in the first sentence, deleted "involving synthetic cannabinoids" following "under this section" in the last sentence, and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 6B M.J. Drugs & Duggists, § 5; 9B M.J. Infants & Juveniles, § 90.

CASE NOTES

Authenticated court order reliable evidence of juvenile status. - The recommended and customary practice of circuit courts in determining and recording in the authenticated conviction order a criminal defendant's age or date of birth gives the recorded fact sufficient reliability and trustworthiness to render the order competent to prove accomplice's age in prosecution under this section. Parker v. Commonwealth, No. 0406-93-1 (Ct. of Appeals Aug. 16, 1994).

No requirement that defendant know age of drug purchaser. - Trial court was correct in refusing to grant defendant's motion to strike the charge of knowing or intentional distribution of cocaine to persons under 18 years of age even though defendant did not have actual knowledge of drug purchaser's age; the Commonwealth was required to prove that the defendant knowingly or intentionally distributed a controlled drug, and the statute does not require proof that the defendant knew the age of his drug purchaser. Pannell v. Commonwealth, 9 Va. App. 170, 384 S.E.2d 344 (1989).

Proof of age of purchaser. - The trial court did not err in allowing the Commonwealth to prove the age of the juvenile to whom the defendant sold cocaine by means of his driving record, and it was not necessary to call the juvenile in order to establish his age. Hurley v. Commonwealth, No. 2794-97-3 (Ct. of Appeals Mar. 2, 1999).

"Distribute." - Defendant was guilty of distributing controlled substance to a minor because he accomplished an actual transfer of drug to her, and fact that minor possessed drug for only a brief period of time did not undermine or diminish fact that she actually possessed it. Morris v. Commonwealth, No. 1141-98-4, 1999 Va. App. LEXIS 629 (Ct. of Appeals Nov. 9, 1999).

Attempt to distribute marijuana. - Where evidence showed: (1) discussions were held on three separate occasions between defendant/seller and juvenile/purchaser regarding when and how much marijuana could be obtained; (2) parties met at a prearranged location for transfer of marijuana; (3) defendant/seller had some marijuana on hand; (4) but a misunderstanding regarding the amount of drugs to be sold prevented consummation of the sale, evidence was sufficient to prove that defendant intended and attempted to distribute marijuana to juvenile for further distribution. Wescoat v. Commonwealth, No. 1256-98-2 (Ct. of Appeals Feb. 15, 2000).

Parent giving prescription drug to child. - Parent's conviction for giving a controlled substance that had been prescribed for her to her minor children was upheld where the defendant told a detective that she gave the medication to her children in orange juice, described the specific amount she gave to each child and said that she knew that the dosage she gave the children would not harm them but would make them drowsy, and where the corroborating testimony of the children was that the defendant gave them pills mixed with orange juice and one child stated that she had told him that the drug would make him sleepy and take things off his mind. Moellar v. Commonwealth, No. 2896-99-1, 2000 Va. App. LEXIS 685 (Ct. of Appeals Oct. 3, 2000).

Venue. - Because causing a juvenile to assist in the distribution of marijuana in violation of clause (ii) of subsection A of § 18.2-255 was a continuing offense, venue was proper in the county where the juvenile sold the marijuana pursuant to § 19.2-244 . Kelso v. Commonwealth, 57 Va. App. 30, 698 S.E.2d 263, 2010 Va. App. LEXIS 350 (2010), aff'd, 282 Va. 134 , 710 S.E.2d 470, 2011 Va. LEXIS 128 (2011).

Venue over charges for three counts of causing a juvenile to assist in the distribution of marijuana to a third party, in violation of clause (ii) of subsection A of § 18.2-255 , was proper in Hanover County where the nature of the crime was not that of a continuing crime, but one in which different elements of a single crime occur in different jurisdictions, and the record clearly showed that the juvenile distributed the marijuana he received from defendant to a third party in Hanover County. Kelso v. Commonwealth, 282 Va. 134 , 710 S.E.2d 470, 2011 Va. LEXIS 128 (2011).

Hearsay testimony as to defendant's age was harmless. - Defendant's challenge to an arresting officer's hearsay testimony as to defendant's age for purposes of this section was harmless as defense counsel conceded that defendant identified his date of birth during the preliminary proceedings; further, defendant's presence during the trial afforded the trial court an opportunity to determine defendant's approximate age. Eley v. Va., No. 1776-03-1, 2004 Va. App. LEXIS 532 (Ct. of Appeals Nov. 9, 2004).

Juvenile court petition was properly admitted as evidence of a minor's age for purposes of a § 18.2-255 conviction as the legislature had determined that official records were admissible as prima facie evidence if properly authenticated; defendant did not challenge the authenticity of the petition or contend that it was not an official or judicial record. Eley v. Va., No. 1776-03-1, 2004 Va. App. LEXIS 532 (Ct. of Appeals Nov. 9, 2004).

Sufficiency of the evidence. - Where the evidence reflected that defendant's accomplice was a minor and that the cocaine found in a vehicle was given to the driver by the accomplice, who received it from defendant, the evidence was sufficient to support defendant's convictions for possession and distribution of cocaine. Battle v. Commonwealth, No. 2934-02-1, 2004 Va. App. LEXIS 124 (Ct. of Appeals Mar. 23, 2004).

There was sufficient evidence to sustain defendant's convictions for violating § 18.2-255 for knowingly giving defendant's daughter and her friend morphine and another drug. Symptoms experienced by the daughter and her friend were consistent with the side effects often experienced after taking those drugs, according to a toxicologist. Wiley v. Commonwealth,, 2008 Va. App. LEXIS 106 (Mar. 4, 2008).

§ 18.2-255.1. Distribution, sale or display of printed material advertising instruments for use in administering marijuana or controlled substances to minors; penalty.

It shall be a Class 1 misdemeanor for any person knowingly to sell, distribute, or display for sale to a minor any book, pamphlet, periodical or other printed matter which he knows advertises for sale any instrument, device, article, or contrivance for advertised use in unlawfully ingesting, smoking, administering, preparing or growing marijuana or a controlled substance.

(1980, c. 737; 2011, cc. 384, 410; 2014, cc. 674, 719.)

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids."

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "synthetic cannabinoids" following "marijuana."

Law review. - For note on the policing of head shops, see Wash. & Lee L. Rev. 183 (1981).

§ 18.2-255.2. Prohibiting the sale or manufacture of drugs on or near certain properties; penalty.

  1. It shall be unlawful for any person to manufacture, sell or distribute or possess with intent to sell, give or distribute any controlled substance, imitation controlled substance, or marijuana while:
    1. Upon the property, including buildings and grounds, of any public or private elementary or secondary school, any institution of higher education, or any clearly marked licensed child day center as defined in § 22.1-289.02;
    2. Upon public property or any property open to public use within 1,000 feet of the property described in subdivision 1;
    3. On any school bus as defined in § 46.2-100 ;
    4. Upon a designated school bus stop, or upon either public property or any property open to public use which is within 1,000 feet of such school bus stop, during the time when school children are waiting to be picked up and transported to or are being dropped off from school or a school-sponsored activity;
    5. Upon the property, including buildings and grounds, of any publicly owned or publicly operated recreation or community center facility or any public library; or
    6. Upon the property of any state facility as defined in § 37.2-100 or upon public property or property open to public use within 1,000 feet of such an institution. It is a violation of the provisions of this section if the person possessed the controlled substance, imitation controlled substance, or marijuana on the property described in subdivisions 1 through 6, regardless of where the person intended to sell, give or distribute the controlled substance, imitation controlled substance, or marijuana. Nothing in this section shall prohibit the authorized distribution of controlled substances.
  2. Violation of this section shall constitute a separate and distinct felony. Any person violating the provisions of this section shall, upon conviction, be imprisoned for a term of not less than one year nor more than five years and fined not more than $100,000. A second or subsequent conviction hereunder for an offense involving a controlled substance classified in Schedule I, II, or III of the Drug Control Act (§ 54.1-3400 et seq.) or more than one-half ounce of marijuana shall be punished by a mandatory minimum term of imprisonment of one year to be served consecutively with any other sentence. However, if such person proves that he sold such controlled substance or marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the controlled substance or marijuana to use or become addicted to or dependent upon such controlled substance or marijuana, he is guilty of a Class 1 misdemeanor.
  3. If a person commits an act violating the provisions of this section, and the same act also violates another provision of law that provides for penalties greater than those provided for by this section, then nothing in this section shall prohibit or bar any prosecution or proceeding under that other provision of law or the imposition of any penalties provided for thereby.

    (1982, c. 594; 1989, cc. 619, 682, 709; 1990, cc. 617, 622; 1991, c. 268; 1991, 1st Sp. Sess., c. 14; 1993, cc. 30, 708, 729; 1999, c. 873; 2000, cc. 1020, 1041; 2003, cc. 80, 91; 2004, c. 461; 2005, c. 716; 2006, c. 325; 2011, cc. 384, 410; 2014, cc. 674, 719; 2020, cc. 860, 861.)

Editor's note. - At the direction of the Virginia Code Commission, "elementary or secondary school, any institution of higher education" was substituted for "elementary, secondary, or post secondary school, or any public or private two-year or four-year institution of higher education" in subdivision 1 to conform to Acts 2016, c. 588.

Acts 2020, cc. 860 and 861, cl. 3 provides: "That the provisions of the first and second enactments of this act shall become effective on July 1, 2021, except that § 22.1-289.04 of the Code of Virginia, as created by this act, shall become effective in due course."

The 1999 amendment, in subsection A, deleted "at any time" following "substance or marijuana," added clause (iv), and redesignated former clauses (iv) and (v) as clauses (v) and (vi), respectively.

The 2000 amendments. - The 2000 amendments by cc. 1020 and 1041 are identical, and in the first sentence of subsection A, inserted "designated" preceding "school" near the beginning of clause (iv); and added the present third sentence in subsection B.

The 2003 amendments. - The 2003 amendments by cc. 80 and 91 are virtually identical, and inserted the next-to-last sentence in subsection A.

The 2004 amendments. - The 2004 amendment by c. 461, in subsection B, in the next-to-last sentence, substituted "mandatory minimum" for "minimum, mandatory" and "to" for "which shall not be suspended in whole or in part and shall."

The 2005 amendments. - The 2005 amendment by c. 716, effective October 1, 2005, in subsection A, substituted "facility" for "hospital" and "37.2-100" for "37.1-1."

The 2006 amendments. - The 2006 amendment by c. 325, in subsection A, inserted "any clearly marked licensed child day center as defined in § 63.2-100 " at the end of clause (i) and substituted "the property described in clause (i)" for "such school property" at the end of clause (ii).

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and in subsection A, substituted "marijuana or synthetic cannabinoids" for "or, marijuana" in the introductory language, redesignated former clauses (i) to (vi) as subdivisions 1 to 6, made related changes, and twice substituted "marijuana, or synthetic cannabinoids" for "or, marijuana" in the last sentence; in subsection B, inserted "synthetic cannabinoids" four times; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" throughout the section; deleted "or synthetic cannabinoids" following "( § 54.1-3400 et seq.)" in subsection B and substituted "is" for "shall be" near the end of the subsection; and made stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 860 and 861, effective July 1, 2021, are identical, and substituted " § 22.1-289.02" for " § 63.2-100 " in subdivision A 1.

Law review. - For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit & Convict, § 2; 6B M.J. Drugs & Druggists, § 5.

CASE NOTES

Intent requirement defined. - This section does not state that it prohibits possession of a controlled substance while upon school property, or within 1,000 feet thereof, with the intent to sell, give, or distribute the substance elsewhere. Toliver v. Commonwealth, 38 Va. App. 27, 561 S.E.2d 743, 2002 Va. App. LEXIS 191 (2002).

Defendant's conviction of possession of a controlled substance with the intent to distribute within 1,000 feet of school property, this section was not supported by sufficient evidence, because the statute did not prohibit possession on school property with intent to distribute elsewhere, and the Commonwealth failed to present any evidence indicating that defendant intended to distribute drugs on or within 1,000 feet of school property, as defendant only came within the specified distance of the school while being chased by police. Toliver v. Commonwealth, 38 Va. App. 27, 561 S.E.2d 743, 2002 Va. App. LEXIS 191 (2002).

"Property." - This section does not limit the word "property" to the term "campus"; therefore, arrest for possession of marijuana which took place within 1,000 feet of Hampton University property fell under this section. Hughes v. Commonwealth, 33 Va. App. 405, 533 S.E.2d 649, 2000 Va. App. LEXIS 648 (2000).

"Public property." - A public thoroughfare is "public property" under subdivision A(ii) of this section. Hughes v. Commonwealth, 33 Va. App. 405, 533 S.E.2d 649, 2000 Va. App. LEXIS 648 (2000).

"Property open to public use." - Given plain meaning and legislative intent of statute, "property open to public use" is not limited to property owned by or associated with state or local government; therefore trial court properly convicted defendant who sold cocaine to undercover agent in convenience store parking lot within 1,000 feet of a school. Smith v. Commonwealth, 26 Va. App. 620, 496 S.E.2d 117 (1998).

Although persons on private property owned by a housing authority could be cited for trespassing, that did not negate an officer's unequivocal testimony that the property was open to public use, as contemplated by § 18.2-255.2 , to those who followed the authority's rules. The high drug area was not inaccessible to the public and participants had full access, and it was irrelevant whether children were likely to congregate there. Parker v. Commonwealth,, 2008 Va. App. LEXIS 223 (May 6, 2008).

Meaning of the phrase "property open to public use" in § 18.2-255.2 has never been interpreted by an appellate court, most likely due to the relatively clear import of its language. Parker v. Commonwealth,, 2008 Va. App. LEXIS 223 (May 6, 2008).

Defendant's convictions of one count of possessing marijuana and one count of possessing cocaine with intent to distribute within 1,000 feet of a school while upon public property or property open to public use in violation of § 18.2-255.2 were affirmed because the parking lot where defendant possessed the drugs was property open to the public. The parking lot was readily accessible to members of the public and there was no evidence of any posted restrictions on accessing the parking lot. Fullwood v. Commonwealth, 279 Va. 531 , 689 S.E.2d 742, 2010 Va. LEXIS 39 (2010).

Circuit court properly convicted defendant of distributing a controlled substance within 1,000 feet of school property because, although the picnic table from which defendant sold drugs to a confidential informant appeared to be on private property and a "no trespassing" sign was posted at a motel's night check-in window, the table was approximately 100 yards away from a school and was "open to public use" where the public was not expressly prohibited from using the table, the table was readily accessible to the public, and the public would not reasonably anticipate being challenged regarding their use of the table, for any purpose, legal or illegal, and the table was not blocked, closed, or in any way inaccessible to the public. Shelley v. Commonwealth, No. 2019-15-3, 2016 Va. App. LEXIS 329 (Ct. of Appeals Dec. 6, 2016).

Section creates separate and distinct felony with additional punishment. - This section creates no presumptions, but rather, creates a separate and distinct felony, with additional punishment. Commonwealth v. Burns, 240 Va. 171 , 395 S.E.2d 456 (1990).

Due process does not bar application when school not in session. - Due process does not bar the application of this section to a sale of cocaine made within the prescribed distance when school is not in session and no children are present. Commonwealth v. Burns, 240 Va. 171 , 395 S.E.2d 456 (1990).

Legislative finding that threat present whether or not school in session. - Implicit in the General Assembly's enactment of this section is the legislative finding that the threat of harm to children is present whether or not school is in session, school-related activities are being held, or children are present when drug transactions take place within 1,000 feet of a school. By its finding, the General Assembly has settled once and for all that such drug transactions do cause harm to children, whether or not children are present when the transactions take place. Commonwealth v. Burns, 240 Va. 171 , 395 S.E.2d 456 (1990).

There was no merit to defendant's argument that, since he was in a moving vehicle and his arrest occurred after eleven o'clock at night, he did not violate intent of statute prohibiting possession of cocaine with intent to distribute within 1,000 feet of a school. Williams v. Commonwealth, No. 1156-98-1 (Ct. of Appeals Sept. 21, 1999).

Double jeopardy. - Two convictions for possession of drugs with intent to distribute within 1,000 feet of a school under § 18.2-255.2 did not violate the Double Jeopardy Clause under U.S. Const., Amend. V and Va. Const., Art. I, § 8 as marijuana and cocaine were treated in the Virginia Code as separate and discrete illegal substances under §§ 18.2-250 , 18.2-250.1 , and 54.1-3448 . Fullwood v. Commonwealth, 54 Va. App. 153, 676 S.E.2d 348, 2009 Va. App. LEXIS 224 (2009), aff'd, 279 Va. 531 , 689 S.E.2d 742, 2010 Va. LEXIS 39 (2010).

Defendant's convictions of one count of possessing marijuana and one count of possessing cocaine with intent to distribute within 1,000 feet of a school while upon public property or property open to public use in violation of § 18.2-255.2 did not violate his rights against double jeopardy because there was one transaction involving marijuana in defendant's encounter in the parking lot with a driver of the pickup truck and a second transaction involving cocaine in defendant's meeting in the parking lot with the driver wearing a Hoyas jacket. Fullwood v. Commonwealth, 279 Va. 531 , 689 S.E.2d 742, 2010 Va. LEXIS 39 (2010).

Evidence sufficient to support conviction. - Defendant's motion to strike the evidence was properly denied as the evidence was sufficient to support defendant's conviction of possession of heroin with the intent to distribute, second or subsequent offense, in violation of § 18.2-248 , and possession with the intent to distribute heroin within 1,000 feet of school property, where: (1) defendant's claim that he could have been taking something out of the girl's pocket when the officer approached was rejected; (2) defendant's nervousness and heavy breathing allowed the reasonable inference that defendant knew he possessed illegal drugs; (3) the Commonwealth's expert testified that the amount of heroin, the lack of devices to ingest the heroin, and defendant's unemployment, made his possession of 49 capsules, worth approximately $500, inconsistent with personal use; and (4) the quantity of heroin, alone, was sufficient to support the conviction. Walker v. Commonwealth, 42 Va. App. 782, 595 S.E.2d 30, 2004 Va. App. LEXIS 169 (2004).

Evidence supported a finding that defendant supplied the heroin sold to an officer as: (1) if the runner possessed heroin when the runner approached the officer, the runner would have immediately sold it to the officer, and there would have been no reason for the runner to interact with defendant; (2) there was a hand-to-hand transaction between the runner and defendant; and (3) the runner immediately went to the officer's car, and sold the officer the heroin. Peoples v. Commonwealth,, 2007 Va. App. LEXIS 403 (Nov. 6, 2007).

Testimony by a police detective that 7.5 grams of cocaine in five bags recovered from defendant was inconsistent with personal use based on the amount in bags and fact that cocaine was packaged in plastic bag corners was sufficient to show that defendant possessed the cocaine with the intent to distribute and supported defendant's conviction for possession of cocaine with the intent to distribute on public property within 1,000 feet of a day care center in violation of § 18.2-255.2 . Wyatt v. Commonwealth,, 2009 Va. App. LEXIS 53 (Feb. 10, 2009).

Defendant's convictions for possession of cocaine with intent to distribute near school property, in violation of § 18.2-255.2 , was supported by sufficient evidence as the evidence showed that eleven small, plastic baggies containing crack cocaine were found on defendant. A rational fact finder could conclude that defendant possessed the crack cocaine with intent to distribute as, though defendant claimed that he intended only to smoke the drugs, he had no user paraphernalia and no lighter, match, or other igniter for burning the crack, and defendant could not recall the name of the dealer from whom he purchased the crack. Barnes v. Commonwealth,, 2009 Va. App. LEXIS 66 (Feb. 10, 2009).

Evidence supported defendant's § 18.2-255.2 conviction as: (1) a motel room was filled with a quantity of both powdered and crack cocaine, glasses, jars, and spoons used in mixing the cocaine, and papers on which the newly manufactured crack cocaine had been set out to dry in plain view; (2) a gym bag containing glasses and spoons of the kind used in the manufacture of crack cocaine and a manila envelope bearing defendant's name was also in the room; (3) defendant was only a few feet away from the contraband; and (4) defendant had to have walked into the motel room, past a large quantity of drugs and paraphernalia, to reach the bed in which defendant was sleeping. Adkins v. Commonwealth,, 2009 Va. App. LEXIS 336 (July 28, 2009).

Defendant's conviction for possession with intent to distribute heroin within 1,000 feet of school property was not reversed when officers used an aerial photograph when testifying that the place where defendant was observed distributing heroin was within 1,000 feet of school property because, if markings on the photograph showing the limits of school property were hearsay, the admission of the testimony of an officer who did not rely on a means other than the markings to establish that defendant was within 1,000 feet of school property was harmless error, as the testimony was cumulative of the testimony of another officer who did rely on other means. Bynum v. Commonwealth, 57 Va. App. 487, 704 S.E.2d 131, 2011 Va. App. LEXIS 16 (2011).

Defendant's conviction for possession with intent to distribute heroin within 1,000 feet of school property was not reversed when officers used an aerial photograph when testifying that the place where defendant was observed distributing heroin was within 1,000 feet of school property because, if markings on the photograph showing the limits of school property were hearsay, the officers did not rely on the markings, as an officer testified that the officer was able to testify as to the distance between the school boundary and the point where defendant was observed with heroin without relying on the markings. Bynum v. Commonwealth, 57 Va. App. 487, 704 S.E.2d 131, 2011 Va. App. LEXIS 16 (2011).

Defendant's conviction for possession with intent to distribute heroin within 1,000 feet of school property was not reversed when officers used an aerial photograph when testifying that the place where defendant was observed distributing heroin was within 1,000 feet of school property because the photograph was not hearsay as there was no out-of-court declarant, as an aerial photograph of a geographic area was not the repetition of prior recorded human input or observation, nor was the photograph the recordation or compilation of another human being's assertions or a communication of input from another person but was simply a technological reproduction of an existing reality, so the photograph's reliability did not depend on an out-of-court declarant's veracity or perceptive abilities, and a witness using the photograph was not "reading" the "assertions" of an out-of-court declarant. Bynum v. Commonwealth, 57 Va. App. 487, 704 S.E.2d 131, 2011 Va. App. LEXIS 16 (2011).

Sufficiency of the evidence. - Where the evidence reflected that defendant's accomplice was a minor and that the cocaine found in a vehicle was given to the driver by the accomplice, who received it from defendant, the evidence was sufficient to support defendant's convictions for possession and distribution of cocaine. Battle v. Commonwealth, No. 2934-02-1, 2004 Va. App. LEXIS 124 (Ct. of Appeals Mar. 23, 2004).

Applied in Copeland v. Commonwealth, 42 Va. App. 424, 592 S.E.2d 391, 2004 Va. App. LEXIS 62 (2004).

CIRCUIT COURT OPINIONS

"Property open to public use." - While possession of drugs inside a house is illegal, the interior of the house, although it may be located within 1,000 feet of school property, is not what is meant by "property open to public use;" therefore, the there was insufficient to convict defendant of a second firearm charge and the possession of drugs with intent to distribute within 1,000 feet of a school. Commonwealth v. Capers, 57 Va. Cir. 79, 2001 Va. Cir. LEXIS 521 (Norfolk 2001).

§ 18.2-256. Conspiracy.

Any person who conspires to commit any offense defined in this article or in the Drug Control Act (§ 54.1-3400 et seq.) is punishable by imprisonment or fine or both which may not be less than the minimum punishment nor exceed the maximum punishment prescribed for the offense, the commission of which was the object of the conspiracy.

(Code 1950, § 54-524.104; 1970, c. 650; 1972, c. 798; 1975, cc. 14, 15; 1978, c. 130.)

Cross references. - As to exception of offenses defined in this chapter from the provisions of the general statute governing conspiracy to commit felony, see § 18.2-22 (d) .

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

CASE NOTES

A single agreement can form the basis for multiple violations of this section. Otherwise, criminals would be encouraged to plot a number of drug-related crimes simultaneously, because only one conspiracy would exist. This could not have been the intention of the General Assembly. Wooten v. Commonwealth, 235 Va. 89 , 368 S.E.2d 693 (1988).

Proof. - Existence of conspiracy to distribute between seller and buyer, has been proved if, evidence demonstrates: (1) that seller knows buyer's intended illegal use; and (2) that by the sale the seller intends to further, promote and cooperate in venture. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Second element of conspiracy to distribute must be proved since not every instance of sale of restricted goods, harmful as are opiates, in which seller knows buyer intends to use them unlawfully, will support charge of conspiracy, and proof of second element establishes necessary preconcert and connivance which places conduct beyond aiding and abetting. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Defendant need only know essential nature of conspiracy. - Where defendant knew that coconspirator was planning to go into Virginia to sell narcotics and that sale would enable coconspirator to return following night and pay amount advanced on credit evidence for conspiracy to distribute cocaine did not need to show defendant knew entire scope or details of plan of distribution; evidence needed only to show that he knew of essential nature of scheme. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

No need to prove sustained course of conduct in conspiracy. - Where case involved conspiracy to distribute cocaine, although evidence did not establish that there was "regular, sustained and prolonged" course of conduct between defendant and coconspirator, such course of conduct did not need to be proved, since commodity was per se unlawful. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Conspiring with police officer and officer's informant. - An accused may not be convicted under this section for conspiring to distribute cocaine with a police officer and the officer's confidential informant. Fortune v. Commonwealth, 12 Va. App. 643, 406 S.E.2d 47 (1991).

Conspiring with informant who was agent of police. - The evidence was insufficient to prove the existence of a conspiracy between appellant and A. During both transactions for which appellant with charged with conspiracy, A was working as a confidential informant - an agent of the police. Because A was not a "bona fide co-conspirator," there could be no "meeting of the minds" as a matter of law between him and appellant to distribute heroin to detective. Levi v. Commonwealth, No. 2640-96-2 (Ct. of Appeals Sept. 16, 1997).

Evidence of acts of co-conspirators. - Where the Commonwealth's evidence established a prima facie case of conspiracy, the trial court did not err in admitting evidence of acts of co-conspirators in furtherance of that conspiracy. Barber v. Commonwealth, 5 Va. App. 172, 360 S.E.2d 888 (1987).

Evidence of another conspiracy was properly admitted to prove defendant's intent and to show that both conspiracies were part of a common scheme or plan. Barber v. Commonwealth, 5 Va. App. 172, 360 S.E.2d 888 (1987).

Evidence that defendants constructively possessed cocaine was probative of the object of the conspiracy. Hodge v. Commonwealth, 7 Va. App. 351, 374 S.E.2d 76 (1988).

Acts in furtherance of conspiracy held shown. - Where each transaction involved defendant, alleged co-conspirator, and others and occurred at approximately the same time, and resulted in the commingling of the two loads of marijuana, the nature and scope of the activities set forth in the indictment involved the identical offenses of possession and distribution of marijuana, a pattern of mutual cooperation took place among the various parties, and both transactions involved an agreement between defendant and alleged co-conspirator in which alleged co-conspirator agreed to store marijuana for defendant until defendant distributed it, the evidence was sufficient as a matter of law to establish that the activities relating to the marijuana obtained from another alleged co-conspirator's residence were acts in furtherance of a single conspiracy. Barber v. Commonwealth, 5 Va. App. 172, 360 S.E.2d 888 (1987).

All drug conspiracies not same. - The legislature, in enacting this section, determined that all drug conspiracies are not the same. Conspiracies to commit more serious drug offenses are to be punished more severely. Wooten v. Commonwealth, 235 Va. 89 , 368 S.E.2d 693 (1988).

In order to convict defendant of conspiring to distribute a controlled drug, the Commonwealth had to prove beyond a reasonable doubt that an agreement existed between the two men by some concerted action to distribute the drugs. Reed v. Commonwealth, 213 Va. 593 , 194 S.E.2d 746 (1973). See Johnson v. Commonwealth, 42 Va. App. 46, 590 S.E.2d 75, 2003 Va. App. LEXIS 673 (2003).

Chain of custody established. - Trial court properly admitted into evidence two certificates of analysis as evidence of the chain of custody of the drugs seized during the drug sales under § 19.2-187.01 in defendant's trial for possession with intent to distribute under § 18.2-248 , and conspiring to distribute a controlled substance under § 18.2-256 where: (1) the initials on the postal receipts matched those on the Request for Laboratory Examination; (2) a police officer mailed the narcotics to the Virginia Division of Forensic Science, which verified its receipt by executing the Request for Laboratory Examination; (3) the receipt alone established prima facie evidence of the chain of custody; and (4) that the initials on the postal receipts were not consistent with the signatures on the two Requests for Laboratory Examination did not undermine the statutory inference under § 19.2-187.01 . Martin v. Commonwealth, No. 1221-02-2, 2003 Va. App. LEXIS 341 (Ct. of Appeals June 17, 2003).

Evidence of prior bad acts. - Defendant's convictions for possession with intent to distribute marijuana under § 18.2-248.1 and conspiracy to distribute marijuana under §§ 18.2-256 and 18.2-248.1 were proper because the trial court did not abuse its discretion in admitting evidence of defendant's other bad acts as part of a common scheme or plan to support his current convictions. The evidence was relevant and admissible to show a course of conduct entered into by defendant to sell marijuana through his middleman and it proved that he committed similar acts with similar results. Pinnix v. Commonwealth,, 2011 Va. App. LEXIS 149 (May 3, 2011).

Proof of agreement to distribute. - Where the indictment charged defendant with a conspiracy to distribute more than one-half ounce of marijuana, one of the felonies defined in § 18.2-248.1 , the Commonwealth was required to prove an agreement to distribute a proscribed substance and to prove both the identity and the quantity of the substance contemplated by the agreement. Graves v. Commonwealth, 234 Va. 578 , 363 S.E.2d 705 (1988).

Accomplice testimony was sufficiently corroborated to support conviction. - An accomplice's testimony was sufficiently corroborated by a police investigator and a confidential informant who taped a sales transaction. Johnson v. Commonwealth, 42 Va. App. 46, 590 S.E.2d 75, 2003 Va. App. LEXIS 673 (2003).

Evidence held sufficient to support conviction of conspiracy to sell, give, or distribute cocaine in violation of § 18.2-248 and this section. Hodge v. Commonwealth, 7 Va. App. 351, 374 S.E.2d 76 (1988); Gonzales-Loya v. Commonwealth, No. 1670-99-4, 2000 Va. App. LEXIS 458 (Ct. of Appeals June 20, 2000).

Both parts of the Zuniga test (see Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988)) for determining the presence of a conspiracy in a sale of a controlled substance were met where from the two statements the defendant made during the transaction concerning his knowledge of what partner intended to do with the marijuana and his expectation of sharing in the profits of partner's sale of the marijuana. Edwards v. Commonwealth, 18 Va. App. 45, 441 S.E.2d 351 (1994).

Evidence was sufficient to support defendant's conviction of aiding and abetting prescription fraud in violation of § 18.2-258.1 where: (1) defendant's girlfriend falsely told the pharmacist that she had not had received the pain medication, including a Schedule II controlled substance under § 54.1-3448 , and the pharmacist relied on the misrepresentation when she refilled them, which constituted prescription fraud under clauses (i) and (iii) of subsection A of § 18.2-258.1 ; (2) defendant was present at the time, and incited, encouraged, advised, or assisted in the crime; (3) defendant was with his girlfriend on both occasions that the prescriptions were filled, stood silently beside her when she lied about having not received them, and injected himself into the conversation, in a belligerent and distracting manner, when the pharmacist attempted to find out the truth; and (4) defendant said nothing when they were given a second set of medications, which they used to "get high" as soon as they got home. Comeau v. Commonwealth, No. 1290-02-2, 2003 Va. App. LEXIS 342 (Ct. of Appeals June 17, 2003).

Defendant's convictions for distribution of cocaine and conspiracy to distribute cocaine were affirmed because sufficient evidence, in the form of the intermediaries testimony and telephone logs, supported the jury's finding that defendant was guilty of distribution of cocaine and conspiracy to distribute cocaine through sales by the intermediaries to an undercover officer on defendant's behalf. Franco v. Commonwealth, No. 0222-03-4, 2004 Va. App. LEXIS 73 (Ct. of Appeals Feb. 10, 2004).

Defendant's convictions for conspiracy to distribute cocaine under §§ 18.2-248 and 18.2-256 were affirmed; the evidence established that defendant's associate and defendant conspired to distribute cocaine to an undercover police officer, and the jury could reasonably infer from a detective's testimony and use of the term "employ" that there was an agreement between the associate and defendant that the associate would provide certain services for defendant. Walker v. Commonwealth,, 2006 Va. App. LEXIS 491 (Oct. 31, 2006).

Evidence was sufficient to support defendant's conviction for conspiring to distribute methamphetamine in violation of § 18.2-256 . Circumstantial evidence in the case showed that: (1) defendant knew that an acquaintance had placed drugs in a manila envelope at defendant's house because defendant promised to safeguard the contents, methamphetamine, with defendant's life; (2) defendant knew that the acquaintance intended to distribute the methamphetamine in the envelope given the markings the acquaintance made on the envelope; and (3) defendant acted in concert with the acquaintance to aid in the methamphetamine distribution. Brown v. Commonwealth,, 2008 Va. App. LEXIS 121 (Mar. 11, 2008).

Conviction for conspiracy to possess ecstasy with intent to distribute was supported by evidence that defendant served as the "muscle" or "lookout" in a drug transportation scheme, that defendant arrived at the bus depot to meet a bus from New York for the purpose of providing security as the drugs were removed from a bus and carried to a vehicle, there were numerous phone calls between defendant and two others involved, and defendant received money via wire while in New York days before the transaction. Merritt v. Commonwealth, 57 Va. App. 542, 704 S.E.2d 158, 2011 Va. App. LEXIS 25 (2011).

Circumstantial evidence supported defendant's convictions for conspiracy to distribute drugs in violation of §§ 18.2-256 and 18.2-248 because a reasonable fact-finder could conclude that defendant and her boyfriend agreed to meet an informant in order to sell him cocaine and that defendant's part in the conspiracy was neither innocent nor inadvertent; On two separate occasions defendant drove her boyfriend to the same parking lot, where the boyfriend made a quick transaction with the informant, who had purchased drugs from him in the past. Foster v. Commonwealth,, 2012 Va. App. LEXIS 310 (Oct. 2, 2012).

Trial court did not err in denying defendant's motion to strike the evidence and in convicting him of conspiracy to distribute drugs because, while defendant's friend told him to drive to a specific convenience store, he drove to the rear of the store where a police informant was sitting, he never put the vehicle in park and never took his foot off of the brake pedal, the informant approached defendant's side of the vehicle, defendant drove out of the parking lot immediately after the encounter, which lasted approximately 10 seconds, an "owe sheet" (record of drug transactions) was located in plain view on the center console in front of the gear shift, and defendant's self-serving statements were little more than lying to conceal his guilt. Livingston v. Commonwealth, No. 1933-14-1, 2016 Va. App. LEXIS 100 (Ct. of Appeals Mar. 29, 2016).

Trial court properly convicted defendant of possessing a controlled substance with the intent to distribute and conspiring to distribute a controlled substance because, while he stated that he had consumed all of the missing morphine (50 pills), neither defendant nor his brother appeared to be under the influence of any drugs, an expert established that such a consumption pattern was inconsistent with personal use, defendant's inconsistent stories of what had happened to the missing morphine were in direct conflict, defendant and his brother lied to the police about their activities, and a note in defendant's wallet and his brother's notebook indicated a familiarity with the illegal prescription drug trade. Cahoon v. Commonwealth, No. 0781-15-2, 2016 Va. App. LEXIS 95 (Ct. of Appeals Mar. 29, 2016).

Trial court did not err by denying defendant's motion to strike the charge of conspiracy to distribute a controlled substance because it could have concluded from the evidence that defendant and her acquaintance conspired to distribute methamphetamine in exchange for a car, as the acquaintance knew of defendant's intent to do so, defendant cooperate in the venture and expected to share in the proceeds by becoming a co-owner of the car until she could pay the acquaintance back, they developed a detailed plan that defendant would drive them to the predetermined location, hold the methamphetamine on her person, and if the acquaintance got robbed she would drive away but return later to pick him up. Richard v. Commonwealth, 72 Va. App. 598, 851 S.E.2d 68, 2020 Va. App. LEXIS 295 (2020).

Evidence of conspiracy held insufficient. - In prosecution for violation of § 18.2-248 and this section sufficient evidence was not presented to establish prima facie case of conspiracy where Commonwealth introduced no evidence, direct or circumstantial, to prove existence of agreement between defendant and unidentified man apart from statements made by unidentified man, and where Commonwealth's independent evidence of conspiracy consisted merely of testimony that two men met on street corner for 15 to 20 seconds and their hands came together in air for three to five seconds. Poole v. Commonwealth, 7 Va. App. 510, 375 S.E.2d 371 (1988).

Evidence was insufficient to prove that defendant conspired to distribute cocaine where the evidence established only that he knew that others were selling out of his house, but failed to establish his prior agreement to participate in the offense; although defendant may have aided and abetted the distribution of cocaine, the evidence fell short of establishing the concert of action necessary for conspiracy. Yates, Jr. v. Commonwealth, No. 1962-97-2 (Ct. of Appeals June 30, 1998).

Defendant's conviction for conspiracy to distribute ecstasy was not supported by sufficient evidence where any inference that defendant shared the criminal intent of his companions to import ecstasy into the Commonwealth was based upon sheer speculation and certainly did not rise to the level of proof beyond a reasonable doubt. Merritt v. Commonwealth, 55 Va. App. 719, 689 S.E.2d 757, 2010 Va. App. LEXIS 81 (2010).

Evidence was insufficient to support defendant's conviction for conspiracy to distribute marijuana because the evidence did not establish that defendant, who received a package of marijuana that was shipped from California to defendant's house, conspired to distribute marijuana with any other individual, including the individual who shipped the marijuana, individuals who were listed in owe sheets found at defendant's house, or defendant's parent or any other individual that lived in the house. Cicilese v. Commonwealth,, 2015 Va. App. LEXIS 44 (Feb. 10, 2015).

Evidence was not sufficient to support defendant's conviction for conspiracy to possess cocaine with the intent to distribute when packages of cocaine were found during a traffic stop in the glove compartment of the car in which defendant was a passenger in the backseat because there was no reason to find beyond a reasonable doubt that any of the occupants of the car were acting together to attain the ultimate goal of distributing the cocaine. Williams v. Commonwealth, No. 0080-16-2, 2016 Va. App. LEXIS 349 (Ct. of Appeals Dec. 20, 2016).

Evidence insufficient to support multiple counts. - Defendant was improperly convicted of four, instead of only one, count of conspiracy to manufacture methamphetamine, because the prosecution relied on the existence of a single agreement to support four convictions for conspiring to manufacture the same drug. Ragan v. Commonwealth, No. 1429-12-3, 2013 Va. App. LEXIS 338 (Nov. 19, 2013).

Insufficient evidence of conspiracy to distribute. - Neither the ongoing relationship between appellant and LSD buyer, nor the extension of credit from buyer to appellant, provided sufficient evidence with which the jury could have reasonably concluded that a conspiracy to distribute existed. The transactions between appellant and buyer simply lacked the essential element of an agreement between two parties to commit a subsequent distribution offense together. Hudak v. Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994).

Where evidence merely showed that appellant agreed to pick up the package at the bus station, that he picked up the package, that he suspected drugs, and that the package contained a large quantity of cocaine; no evidence proved that he agreed to distribute cocaine or that he was aware of the nature of the contents of the package; and no evidence proved that he had opened that package or any other package; the evidence was insufficient to support the conviction for conspiracy to distribute cocaine. Gaither v. Commonwealth, No. 0610-96-2 (Ct. of Appeals June 24, 1997).

Proof that defendant and another person sold drugs from the same house, standing alone, did not constitute a conspiracy, because evidence of a distribution offense absent an agreement could not suffice to support a conspiracy conviction. Harris v. Commonwealth, No. 2840-97-1 (Ct. of Appeals June 22, 1999).

Evidence was insufficient to support defendant's conviction for conspiracy to distribute cocaine because (1) when the police intercepted a package, which they suspected of containing contraband, at a FedEx distribution facility, a drug dog indicated the presence of illegal drugs in the package; (2) the police obtained a search warrant, opened the package, and discovered cocaine inside; (3) the police placed a small amount of the cocaine inside a new package and transferred the air bill that indicated the recipient and return addresses onto the new package; (4) a police officer disguised as a FedEx employee delivered the package to defendant's apartment; (5) defendant identified the recipient as defendant's cousin and accepted the package on behalf of the cousin; and (6) not long after, the police executed a search warrant and found defendant, the unopened package, and drug paraphernalia in the apartment. Thus, the evidence was insufficient to prove that defendant conspired with a second person to distribute cocaine because the evidence failed to demonstrate anything beyond a mere sale of drugs, which was legally insufficient to support the charge. Clark v. Commonwealth,, 2011 Va. App. LEXIS 219 (July 5, 2011).

Evidence was insufficient to prove that defendant agreed to distribute cocaine with any other individual in a car with defendant because the evidence failed to demonstrate anything beyond the fact that defendant was the front seat passenger in a car containing cocaine and a gun in a glove box, packaged into small baggies indicating distribution, with another occupant having a substantial sum of cash in divided denominations. However, there was a lack of any evidence establishing an agreement between the occupants of the car. Carter v. Commonwealth, No. 1445-15-2, 2016 Va. App. LEXIS 193 (Ct. of Appeals July 12, 2016).

Insufficient evidence of knowledge of intended illegal use. - Where no testimony was introduced to prove buyer's level of personal consumption, how often he consumed LSD, how powerful one LSD dose is, how long unused LSD can be stored before it loses its potency, or why his purchase of 2,000 hits differed from the quantities purchased earlier in the year-long series of transactions, without more compelling evidence in the record, expert testimony on these issues was necessary to establish that appellant knew or should have known that buyer was distributing LSD. Hudak v. Commonwealth, 19 Va. App. 260, 450 S.E.2d 769 (1994).

Evidence of assistance insufficient to establish conspiracy. - While certain overt conduct may be sufficient to prove the existence of an agreement, simply proving the act of constructively possessing cocaine and assisting a person to sell it is not sufficient to establish a conspiracy. The evidence must show an agreement between the parties, and that is not shown by proving that one party decides or undertakes to assist the other. Woodley v. Commonwealth, No. 2122-93-2 (Ct. of Appeals Feb. 21, 1995).

Defendant not entitled to accommodation instruction. - Even assuming that the trial court's refusal to instruct the jury during the penalty phase of defendant's trial as to "accommodation conspiracy" on the charge against defendant of conspiracy to possess marijuana with intent to distribute was error, the error was harmless beyond a reasonable doubt; since the jury rejected an accommodation claim regarding the charge against defendant of possession of marijuana with intent to distribute, the appellate court could confidently conclude that the jury would have rejected an accommodation claim with regard to the "conspiracy to possess" charge as well. McPherson v. Commonwealth,, 2006 Va. App. LEXIS 88 (Mar. 14, 2006).

Defendant's convictions for two counts of distribution of cocaine, third offense; three counts of distribution of marijuana; two counts of conspiracy to distribute cocaine, third offense; three counts of conspiracy to distribute marijuana; one count of possession of cocaine with intent to distribute; and one count of possession of marijuana with intent to distribute were proper because the trial court did not err in not instructing the jury on the lesser punishment of distribution for accommodation. In each transaction, the agent was the buyer, and not the cousin, who had only arranged the meetings for the agent; additionally, the fact that defendant did not make any money on the transactions was not dispositive. Martin v. Commonwealth,, 2010 Va. App. LEXIS 205 (May 18, 2010).

Applied in Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32 (2003); Rivera v. Commonwealth, 65 Va. App. 379, 778 S.E.2d 144, 2015 Va. App. LEXIS 315 (2015).

§ 18.2-257. Attempts.

  1. Any person who attempts to commit any offense defined in this article or in the Drug Control Act (§ 54.1-3400 et seq.) which is a felony shall be imprisoned for not less than one nor more than ten years; provided, however, that any person convicted of attempting to commit a felony for which a lesser punishment may be imposed may be punished according to such lesser penalty.
  2. Any person who attempts to commit any offense defined in this article or in the Drug Control Act which is a misdemeanor shall be guilty of a Class 2 misdemeanor; provided, however, that any person convicted of attempting to commit a misdemeanor for which a lesser punishment may be imposed may be punished according to such lesser penalty.

    (Code 1950, § 54-524.104:1; 1972, c. 798; 1973, c. 447; 1975, cc. 14, 15; 1979, c. 435.)

CASE NOTES

Proof. - In a prosecution for an attempt to commit a crime, the Commonwealth must prove the accused had a specific intent to commit that crime. Smith v. Commonwealth, 16 Va. App. 626, 432 S.E.2d 1 (1993).

Purchase of a noncontrolled substance that defendant subjectively believes to be a controlled substance can constitute an attempt to possess provided the government proves the defendant's subjective intent to purchase actual narcotics beyond a reasonable doubt. Smith v. Commonwealth, 16 Va. App. 626, 432 S.E.2d 1 (1993).

Second element of conspiracy to distribute must be proved since not every instance of sale of restricted goods, harmful as are opiates, in which seller knows buyer intends to use them unlawfully, will support charge of conspiracy, and proof of second element establishes necessary preconcert and connivance which places conduct beyond aiding and abetting. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Defendant need only know essential nature of conspiracy. - Where defendant knew that coconspirator was planning to go into Virginia to sell narcotics and that sale would enable coconspirator to return following night and pay amount advanced on credit evidence for conspiracy to distribute cocaine did not need to show defendant knew entire scope or details of plan of distribution; evidence needed only to show that he knew of essential nature of scheme. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

No need to prove sustained course of conduct in conspiracy. - Where case involved conspiracy to distribute cocaine, although evidence did not establish that there was "regular, sustained and prolonged" course of conduct between defendant and coconspirator, such course of conduct did not need to be proved, since commodity was per se unlawful. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Factual impossibility not a defense. - Where defendant had completed every act necessary for commission of the substantive crime, and the only reason the distribution was not a crime was a defect in the substance itself, which was unknown to defendant, the impossibility was clearly factual, not legal, and as such, could not be asserted as a defense to the attempted crime. Parham v. Commonwealth, 2 Va. App. 633, 347 S.E.2d 172 (1986).

No error in amendment which substituted this section for § 18.2-26 . - Where prior to trial, the trial court granted the Commonwealth's motion to amend second count of indictment, and where the nature of the amendment changed the attempt statute on which the Commonwealth was relying from § 18.2-26 , the general attempt statute, to this section, which covers attempts to violate the Drug Control Act, the trial court did not err in granting the Commonwealth's motion to amend the indictment against defendant. The amendment did not change the "nature or character of the offense charged"; it merely substituted reference to this section, the specific provision covering attempts to commit drug offenses, for § 18.2-26, the general provision covering attempts to commit general, non-capital felonies. Robinson v. Commonwealth, No. 1840-90-1 (Ct. of Appeals July 21, 1992).

Evidence held sufficient to prove second element. - Evidence demonstrated that by sale defendant intended to further, promote and cooperate in coconspirator's venture, where defendant had stake in venture because, by extending credit, defendant stood to make profits which came from encouragement of coconspirator's illicit operations. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Where by selling cocaine to coconspirator and receiving partial payment of less than agreed price, defendant retained interest in and maintained continuing participation in coconspirator's venture, where by advancing cocaine on credit and insuring that coconspirator could perform his obligations, defendant actively became partner in venture, and where evidence supported finding that defendant was drug dealer who agreed to credit arrangement with coconspirator, another drug dealer, in hope of promoting future dealings, acts evinced agreement between and concert of action by parties sufficient to prove conspiracy beyond reasonable doubt. Zuniga v. Commonwealth, 7 Va. App. 523, 375 S.E.2d 381 (1988).

Sufficiency of the evidence. - Because the record clearly established that the term "twenty" referred to cocaine and not marijuana, the trial judge correctly found that a police video and a police officer's testimony were sufficient to convict defendant of attempted distribution of cocaine. Turner v. Commonwealth,, 2005 Va. App. LEXIS 368 (Sept. 27, 2005).

Evidence supported defendant's conviction for attempt to manufacture, sell, give, distribute or attempt to possess with intent to manufacture, sell, give, or distribute a Schedule I or II controlled substance because it was reasonable to infer from the evidence that defendant specifically intended to possess cocaine and to distribute it to an informant and others who provided money to defendant. Folly v. Commonwealth,, 2014 Va. App. LEXIS 273 (Aug. 5, 2014).

Illegal search. - Defendant's suppression motion was improperly denied as police searched defendant for illegal substances, not for weapons, in Terry stop, and were not following leads prior to their misconduct, making the doctrine of inevitable discovery inapplicable; the white powder found on defendant during the search should have been suppressed. Jones v. Commonwealth, No. 1077-02-2, 2003 Va. App. LEXIS 189 (Ct. of Appeals Apr. 1, 2003).

§ 18.2-258. Certain premises deemed common nuisance; penalty.

Any office, store, shop, restaurant, dance hall, theater, poolroom, clubhouse, storehouse, warehouse, dwelling house, apartment, building of any kind, vehicle, vessel, boat, or aircraft, which with the knowledge of the owner, lessor, agent of any such lessor, manager, chief executive officer, operator, or tenant thereof, is frequented by persons under the influence of illegally obtained controlled substances or marijuana, as defined in § 54.1-3401 , or for the purpose of illegally obtaining possession of, manufacturing or distributing controlled substances or marijuana, or is used for the illegal possession, manufacture or distribution of controlled substances or marijuana shall be deemed a common nuisance. Any such owner, lessor, agent of any such lessor, manager, chief executive officer, operator, or tenant who knowingly permits, establishes, keeps or maintains such a common nuisance is guilty of a Class 1 misdemeanor and, for a second or subsequent offense, a Class 6 felony.

(Code 1950, § 54-524.104:2; 1972, c. 736; 1973, c. 400; 1975, cc. 14, 15; 1979, c. 435; 1990, c. 948; 1992, cc. 248, 538; 2004, c. 462; 2011, cc. 384, 410; 2014, cc. 674, 719.)

The 2004 amendments. - The 2004 amendment by c. 462, in the first paragraph, deleted the A designation at the beginning and the former last sentence, concerning the closing of the property unless a security bond is paid; and deleted subsections B and C, concerning penalties and the requirement that the owner knew of the unlawful use and knew that he had a right to repossess because of the unlawful use.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" three times and made related changes.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following " § 54.1-3401 ," following "marijuana" twice, and made stylistic changes.

CASE NOTES

Use of premises for possession and distribution of marijuana. - This section very clearly requires: (1) That the owner of the premises have knowledge that it is being frequented for the purpose of the illegal possession and distribution of marijuana and (2) That the owner knowingly permit, keep or maintain the nuisance. Peace v. Commonwealth, No. 2651-99-2, 2000 Va. App. LEXIS 725 (Ct. of Appeals Nov. 14, 2000).

Insufficient evidence that activity "permitted" by defendant. - The mother of a 15 year-old son did not "establish," "keep," or "maintain" the family home for the purpose of allowing the son and his friends to smoke marijuana in the garage. By knowing about the illegal activity and allowing it to continue the defendant did not "permit" the activity in that the evidence showed no affirmative act or decided assent and very clearly indicated that the defendant became upset and discouraged the activity when she was confronted with it. Peace v. Commonwealth, No. 2651-99-2, 2000 Va. App. LEXIS 725 (Ct. of Appeals Nov. 14, 2000).

§ 18.2-258.01. Enjoining nuisances involving illegal drug transactions.

The attorney for the Commonwealth, or any citizen of the county, city, or town, where such a nuisance as is described in § 18.2-258 exists, may, in addition to the remedies given in and punishment imposed by this chapter, maintain a suit in equity in the name of the Commonwealth to enjoin the same; provided, however, the attorney for the Commonwealth shall not be required to prosecute any suit brought by a citizen under this section. In every case where the bill charges, on the knowledge or belief of complainant, and is sworn to by two witnesses, that a nuisance exists as described in § 18.2-258 , a temporary injunction may be granted as soon as the bill is presented to the court provided reasonable notice has been given. The injunction shall enjoin and restrain any owners, tenants, their agents, employees, and any other person from contributing to or maintaining the nuisance and may impose such other requirements as the court deems appropriate. If, after hearing, the court finds that the material allegations of the bill are true, although the premises complained of may not then be unlawfully used, it shall continue the injunction against such persons or premises for such period of time as it deems appropriate, with the right to dissolve the injunction upon a proper showing by the owner of the premises.

(1990, c. 948.)

§ 18.2-258.02. Maintaining a fortified drug house; penalty.

Any office, store, shop, restaurant, dance hall, theater, poolroom, clubhouse, storehouse, warehouse, dwelling house, apartment or building or structure of any kind which is (i) substantially altered from its original status by means of reinforcement with the intent to impede, deter or delay lawful entry by a law-enforcement officer into such structure, (ii) being used for the purpose of manufacturing or distributing controlled substances or marijuana, and (iii) the object of a valid search warrant, shall be considered a fortified drug house. Any person who maintains or operates a fortified drug house is guilty of a Class 5 felony.

(1996, c. 913; 2011, cc. 384, 410; 2014, cc. 674, 719.)

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" in clause (ii), and made a related change.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" and made a stylistic change.

Law review. - For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Michie's Jurisprudence. - For related discussion, see 6B M.J. Drugs and Druggists, § 5.

CASE NOTES

Substantially altered from its original status. - Supreme Court of Virginia does not set forth an all-encompassing definition of the phrase "substantially altered from its original status" as set forth in § 18.2-258.02 , but, instead, recognizes that each case will turn upon its own peculiar facts. Jones v. Commonwealth, 276 Va. 121 , 661 S.E.2d 412, 2008 Va. LEXIS 63 (2008).

Insufficient evidence that structure was substantially altered from its original status. - Evidence was not sufficient to sustain defendant's conviction for maintaining or operating a fortified drug house in violation of § 18.2-258.02 where although the use of a stove and a 2x4 board wedged between a door and stairway, and a screwdriver inserted into the door's latch impeded the police, that use did not substantially alter the structure from its original status. Jones v. Commonwealth, 276 Va. 121 , 661 S.E.2d 412, 2008 Va. LEXIS 63 (2008).

§ 18.2-258.1. Obtaining drugs, procuring administration of controlled substances, etc., by fraud, deceit or forgery.

  1. It shall be unlawful for any person to obtain or attempt to obtain any drug or procure or attempt to procure the administration of any controlled substance or marijuana: (i) by fraud, deceit, misrepresentation, embezzlement, or subterfuge; (ii) by the forgery or alteration of a prescription or of any written order; (iii) by the concealment of a material fact; or (iv) by the use of a false name or the giving of a false address.
  2. It shall be unlawful for any person to furnish false or fraudulent information in or omit any information from, or willfully make a false statement in, any prescription, order, report, record, or other document required by Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1.
  3. It shall be unlawful for any person to use in the course of the manufacture or distribution of a controlled substance or marijuana a license number which is fictitious, revoked, suspended, or issued to another person.
  4. It shall be unlawful for any person, for the purpose of obtaining any controlled substance or marijuana to falsely assume the title of, or represent himself to be, a manufacturer, wholesaler, pharmacist, physician, dentist, veterinarian or other authorized person.
  5. It shall be unlawful for any person to make or utter any false or forged prescription or false or forged written order.
  6. It shall be unlawful for any person to affix any false or forged label to a package or receptacle containing any controlled substance.
  7. This section shall not apply to officers and employees of the United States, of this Commonwealth or of a political subdivision of this Commonwealth acting in the course of their employment, who obtain such drugs for investigative, research or analytical purposes, or to the agents or duly authorized representatives of any pharmaceutical manufacturer who obtain such drugs for investigative, research or analytical purposes and who are acting in the course of their employment; provided that such manufacturer is licensed under the provisions of the Federal Food, Drug and Cosmetic Act; and provided further, that such pharmaceutical manufacturer, its agents and duly authorized representatives file with the Board such information as the Board may deem appropriate.
  8. Except as otherwise provided in this subsection, any person who shall violate any provision herein shall be guilty of a Class 6 felony.

    Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed, or reduced as provided in this section, pleads guilty to or enters a plea of not guilty to the court for violating this section, upon such plea if the facts found by the court would justify a finding of guilt, the court may place him on probation upon terms and conditions.

    As a term or condition, the court shall require the accused to be evaluated and enter a treatment and/or education program, if available, such as, in the opinion of the court, may be best suited to the needs of the accused. This program may be located in the judicial circuit in which the charge is brought or in any other judicial circuit as the court may provide. The services shall be provided by a program certified or licensed by the Department of Behavioral Health and Developmental Services. The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, evaluation, testing and education, based upon the person's ability to pay unless the person is determined by the court to be indigent.

    As a condition of supervised probation, the court shall require the accused to remain drug free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug free. Such testing may be conducted by the personnel of any screening, evaluation, and education program to which the person is referred or by the supervising agency.

    Unless the accused was fingerprinted at the time of arrest, the court shall order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting.

    Upon violation of a term or condition, the court may enter an adjudication of guilt upon the felony and proceed as otherwise provided. Upon fulfillment of the terms and conditions of probation, the court shall find the defendant guilty of a Class 1 misdemeanor.

    (1977, c. 558; 1979, c. 435; 1992, c. 76; 1997, c. 542; 2009, cc. 813, 840; 2011, cc. 384, 410; 2014, cc. 674, 719.)

The 1997 amendment inserted "Except as otherwise provided in this subsection" at the beginning of subsection H and added the following five paragraphs.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in the third sentence of the third paragraph of subsection H.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" in subsection A, subsection C, and subsection D, and made related changes.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in subsections A, C, and D; and made stylistic changes.

Law review. - For note on criminal procedure and preventing multiple punishments, see 38 Wash. & Lee L. Rev. 598 (1981).

Michie's Jurisprudence. - For related discussion, see 6B M.J. Drugs and Druggists, § 5.

CASE NOTES

Constitutionality. - A statute passes constitutional muster if it specifies with reasonable certainty and definiteness the conduct which is commanded or prohibited, so that a person of ordinary intelligence may know what is thereby required of him. This section passes this test; it tells any person of ordinary intelligence not to use a false name when he obtains or attempts to obtain drugs. McCutcheon v. Commonwealth, 224 Va. 30 , 294 S.E.2d 808 (1982).

Purpose of clause (iv) of subsection A of this section is not to protect physicians and pharmacists from fraud or deceit in their issuance and filling of prescriptions, although this protection may be an incidental result of the statute's enforcement. Rather, the statute's purpose is to aid in curbing the excessive use of drugs and the obtaining of drugs unlawfully. McCutcheon v. Commonwealth, 224 Va. 30 , 294 S.E.2d 808 (1982).

The language of this section does not exempt pharmacists from the class of persons covered, and there is no reason to read such limitation into the statute's plain language. Hill v. Commonwealth, No. 2345-93-3 (Ct. of Appeals July 5, 1995).

Emphasis is on motivation for using false name. - The emphasis should be placed where it was intended, that is, upon the motivation of the person using a false name, and the inquiry should be whether the motivation is culpable or innocent. McCutcheon v. Commonwealth, 224 Va. 30 , 294 S.E.2d 808 (1982).

Not motivation of physician or pharmacist to write or fill prescription. - Legislative intent would be subverted by requiring the Commonwealth to prove that a prescription would not have been written or filled but for the use of a false name. The adoption of this requirement would render clause (iv) of subsection A of this section virtually inoperative against a person with a seemingly legitimate complaint who is wont to use a different name in any number of physician's office or pharmacies in an effort to obtain a supply of drugs. Such a person is an obvious target of the statute's focus. Application of a "but for" rule, however, would place the statute's emphasis upon a physician's or pharmacist's motivation to write or fill a prescription. Where the doctor's motivation is to heal the sick, the user of a false name would go unpunished. McCutcheon v. Commonwealth, 224 Va. 30 , 294 S.E.2d 808 (1982).

It was unnecessary for the Commonwealth to produce drug analysis reports to prove that the substances appellant obtained were actually Cephalexin and Lomotil. Circumstantial evidence is sufficient to allow the fact finder to infer the nature of the substance in question. In this case, proof of the substances was provided by appellant, a pharmacist himself, who, during testimony, identified the Cephalexin and Lomotil by name and admitted to obtaining the drugs to treat certain illnesses. Hill v. Commonwealth, No. 2345-93-3 (Ct. of Appeals July 5, 1995).

Construction with the Drug Control Act. - Provisions of the Drug Control Act, such as §§ 54.1-3404 , 54.1-3405 , and 54.1-3406 indicate that the General Assembly has established a system of record-keeping designed to reflect the identity of all persons to whom controlled drugs are sold, administered, or dispensed. These records, the Act states, shall be complete and accurate and, as the Act permits, their contents may be divulged for law-enforcement purposes. In determining legislative intent, clause (iv) of subsection A of this section and the Act should be read together. This reading reveals the intent to ensure the accuracy and completeness of drug-control records and to aid their law-enforcement role by penalizing the use of a false name in obtaining or attempting to obtain a controlled drug. McCutcheon v. Commonwealth, 224 Va. 30 , 294 S.E.2d 808 (1982).

Use of false name is prima facie violation. - When the Commonwealth shows that the accused has used a false name in obtaining or attempting to obtain a drug, a prima facie violation is established. The burden then shifts to the accused to go forward with evidence showing that his motivation to use a false name was innocent. McCutcheon v. Commonwealth, 224 Va. 30 , 294 S.E.2d 808 (1982); Pancoast v. Commonwealth, 2 Va. App. 28, 340 S.E.2d 833 (1986).

Extent of control. - While appellant exercised some form of legal control over pharmacy's stock of drugs by nature of his employment, this control did not extend to appropriating specific drugs for his own personal use in violation of state law. Hill v. Commonwealth, No. 2345-93-3 (Ct. of Appeals July 5, 1995).

The fact that defendant did not obtain any drugs for herself and that she apparently was not present when the prescription was filled does not vitiate the felonious intent established by the Commonwealth. At most, such evidence relates to whether she was a principal in the second degree or an accessory before the fact. However, principals in the second degree and accessories before the fact are held accountable to the same extent as principals in the first degree. Pancoast v. Commonwealth, 2 Va. App. 28, 340 S.E.2d 833 (1986).

Jury may infer intent. - Where appellant admitted that he dispensed Cephalexin and Lomotil without permission from authorized medical personnel; that he increased the dosage of the Cephalexin and used a nurse's name without her consent to obtain a refill; that he increased the amount of refills allowed; that he never contacted the original prescribing doctors to notify them of his actions; and that he used another physician to "cover" the prescriptions that he filled, despite the fact that appellant testified that none of his actions were committed with the intent to defraud, misrepresent, deceive, or use subterfuge, it was within the jury's province to draw reasonable inferences from the proven facts. Hill v. Commonwealth, No. 2345-93-3 (Ct. of Appeals July 5, 1995).

Admissability of evidence. - In a case in which defendant was convicted of attempting to fraudulently obtain a controlled substance, in violation of clause (i) of subsection A of § 18.2-258.1 , she unsuccessfully challenged the trial court's admission of a nurse practitioner's testimony as expert testimony. Given the narrow scope of the nurse practitioner's testimony, the evidence before the court sufficiently established his expert qualifications, and there was no merit in defendant's suggestion that the Commonwealth did not lay a proper foundation to render his opinion admissible. Quesenberry v. Commonwealth,, 2009 Va. App. LEXIS 546 (Dec. 8, 2009).

Sufficiency of evidence. - Fact that defendant delivered forged prescription to pharmacy to be filled, and completed patient profile on his girlfriend's behalf, using same name that appeared on prescription, supported finding that he intended to obtain a drug by fraud, in violation of this section. Maxey v. Commonwealth, No. 1856-98-3 (Ct. of Appeals June 29, 1999).

Conviction for obtaining a drug or controlled substance by fraud was upheld where defendant's contention that she never received certain prescriptions filled the day before, where the log indicated receipt of refills of those same prescriptions and established that defendant acted with the requisite intent to obtain the refills by fraud, deceit, misrepresentation or subterfuge. Nuzzo v. Elder, No. 1394-02-2, 2003 Va. App. LEXIS 517 (Ct. of Appeals Oct. 14, 2003).

The evidence demonstrated that the prescription defendant presented to the pharmacy was altered after doctor wrote it and before pharmacy technician received it. Weis v. Commonwealth, No. 1481-02-2, 2003 Va. App. LEXIS 518 (Ct. of Appeals Oct. 14, 2003).

Sufficient evidence to convict a defendant of prescription fraud included the testimony of a pharmacist, a detective, a friend who recanted her alibi testimony, and defendant. Dasey v. Commonwealth,, 2005 Va. App. LEXIS 454 (Nov. 15, 2005).

In a case in which defendant was convicted of attempting to fraudulently obtain a controlled substance, in violation of clause (i) of subsection A of § 18.2-258.1 , and she framed her attack on the sufficiency of the evidence upon the assumption that the trial court erred in allowing a nurse practitioner to offer his dissimilar-donors opinion as to two urine samples, since the appellate court rejected her challenge to the admission of the nurse practitioner's testimony, her sufficiency of the evidence challenge failed. Quesenberry v. Commonwealth,, 2009 Va. App. LEXIS 546 (Dec. 8, 2009).

Defendant's conviction for attempt to commit prescription fraud was appropriate because the evidence was sufficient; the doctor that allegedly wrote the prescription had terminated his medical practice in May of 2008 and the prescription was purportedly written on August 14, 2008; the doctor's longtime employee also identified the prescription as fraudulent. Tiggs v. Commonwealth,, 2011 Va. App. LEXIS 365 (Nov. 29, 2011).

Insufficient evidence. - Evidence did not support obtaining a prescription drug by fraud where it was not proven that the defendant knew or should have known that a doctor had not prescribed the drug and that he had not simply helped a bad friend by picking up a prescription. Mulligan v. Commonwealth, No. 2905-01-1, 2002 Va. App. LEXIS 704 (Ct. of Appeals Nov. 26, 2002).

Defendant could not rely on defense of duress, where she relented and wrote the prescription after being constantly harassed by her husband, for whom she was obtaining the drugs. While she may have been in great need of sleep, there was nothing in the record to indicate that she was in fear of imminent death or serious bodily harm, or that she had no alternative other than to commit an illegal act. Pancoast v. Commonwealth, 2 Va. App. 28, 340 S.E.2d 833 (1986).

Examining the plain meaning of subsection E, the term "prescription" refers to "an order for drugs or medical supplies." Thomas v. Commonwealth, No. 0671-95-2 (Ct. of Appeals Mar. 26, 1996).

Deferred disposition not permitted. - Trial court properly convicted defendant of obtaining morphine by fraud, deceit, embezzlement, or subterfuge because the court's authority to grant the requested relief ceased when it made its oral finding of guilt, and the language of the subject statute made it clear that a deferred disposition was not permitted when the court had taken the additional step of actually pronouncing judgment and finding the defendant guilty. Vandyke v. Commonwealth, 71 Va. App. 723, 840 S.E.2d 8, 2020 Va. App. LEXIS 84 (2020).

Convictions under former § 54-524.76 and § 18.2-250 violated double jeopardy. - Where defendant was convicted under former § 54-524.76 of obtaining a drug by presenting a forged prescription, and for the same transaction was subsequently convicted under § 18.2-250 of possession of a controlled substance, his rights under the double jeopardy clause were violated, since the evidence necessarily used in first prosecution would totally have sufficed to sustain the second conviction. Jordan v. Virginia, 653 F.2d 870 (4th Cir. 1980).

Applied in Williams v. Commonwealth, 14 Va. App. 666, 418 S.E.2d 346 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting by pharmacists. - A pharmacist may provide to law-enforcement officials the fingerprint of any customer suspected of prescription fraud. See opinion of Attorney General to The Honorable K. Mike Fleenor Jr., Commonwealth's Attorney for Pulaski County, 01-086, 2002 Va. AG LEXIS 11 (1/11/02).

Food stamp benefits. - The federal Personal Responsibility and Work Opportunity Reconciliation Act encompasses felony convictions for manufacturing controlled substances or for obtaining controlled substances by false pretenses; those persons with such convictions are disqualified from receiving food stamp benefits because § 63.2-505.2 does not exempt such convictions from the application of the federal law. See opinion of Attorney General to The Honorable Gerald E. Mabe, II, Commonwealth's Attorney, 11-112, 2012 Va. AG LEXIS 5 (1/27/12).

§ 18.2-258.2. Assisting individuals in unlawfully procuring prescription drugs; penalty.

Unless otherwise specifically authorized by law, any person who, for compensation, knowingly assists another in unlawfully procuring prescription drugs from a pharmacy or other source he knows is not licensed, registered or permitted by the licensing authority of the Commonwealth, any other state or territory of the United States, or the United States, is guilty of a Class 1 misdemeanor and, upon a second or subsequent conviction, a Class 6 felony.

(2004, c. 620.)

§ 18.2-259. Penalties to be in addition to civil or administrative sanctions.

Any penalty imposed for violation of this article or of the Drug Control Act (§ 54.1-3400 et seq.) shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law.

(Code 1950, § 54-524.105; 1970, c. 650; 1975, cc. 14, 15.)

§ 18.2-259.1.

Repealed by Acts 2020, cc. 740 and 741, cl. 2.

Editor's note. - Former § 18.2-259.1 , pertaining to forfeiture of driver's license for violations of this article, derived from 1992, cc. 58, 833; 1993, c. 920; 1994, cc. 403, 545; 1999, c. 45; 2000, c. 325; 2001, cc. 645, 779; 2017, cc. 695, 703; 2019, cc. 68, 76.

§ 18.2-260. Prescribing, dispensing, etc., drug except as authorized in article and Drug Control Act; violations for which no penalty provided.

It shall be unlawful for any person to prescribe, administer or dispense any drug except as authorized in the Drug Control Act (§ 54.1-3400 et seq.) or in this article. Any person who violates any provision of the Drug Control Act or of this article, for which no penalty is elsewhere specified in this article or in Article 7 (§ 54.1-3466 et seq.) of the Drug Control Act, shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 54-524.106; 1970, c. 650; 1973, c. 548; 1975, cc. 14, 15.)

§ 18.2-260.1. Falsifying patient records.

Any person who, with the intent to defraud, falsifies any patient record shall be guilty of a Class 1 misdemeanor.

(1997, c. 619; 2011, c. 204.)

Cross references. - As to limitation of prosecutions, see § 19.2-8 .

The 2011 amendments. - The 2011 amendment by c. 204 substituted "with the intent to defraud" for "fraudulently" and "Class 1 misdemeanor" for "Class 3 misdemeanor."

Michie's Jurisprudence. - For related discussion, see 14B M.J. Physicians and Surgeons, §§ 2, 5.

Applied in Storey v. Patient First Corp., 207 F. Supp. 2d 431, 2002 U.S. Dist. LEXIS 10937 (E.D. Va. 2002).

§ 18.2-261. Monetary penalty.

Any person licensed by the State Board of Pharmacy who violates any of the provisions of the Drug Control Act (§ 54.1-3400 et seq.) or of this article, and who is not criminally prosecuted, shall be subject to the monetary penalty provided in this section. If, by a majority vote, the Board shall determine that the respondent is guilty of the violation complained of, the Board shall proceed to determine the amount of the monetary penalty for such violation, which shall not exceed the sum of $1,000 for each violation. Such penalty may be sued for and recovered in the name of the Commonwealth.

(Code 1950, § 54-524.107; 1970, c. 650; 1975, cc. 14, 15; 1980, c. 678.)

§ 18.2-262. Witnesses not excused from testifying or producing evidence because of self-incrimination.

No person shall be excused from testifying or from producing books, papers, correspondence, memoranda or other records for the Commonwealth as to any offense alleged to have been committed by another under this article or under the Drug Control Act (§ 54.1-3400 et seq.) by reason of his testimony or other evidence tending to incriminate himself, but the testimony given and evidence so produced by such person on behalf of the Commonwealth when called for by the trial judge or court trying the case, or by the attorney for the Commonwealth, or when summoned by the Commonwealth and sworn as a witness by the court or the clerk and sent before the grand jury, shall be in no case used against him nor shall he be prosecuted as to the offense as to which he testifies. Any person who refuses to testify or produce books, papers, correspondence, memoranda or other records, shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 54-524.107:1; 1971, Ex. Sess., c. 170; 1975, cc. 14, 15; 1984, c. 667.)

Law review. - For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Research References. - Virginia Forms (Matthew Bender). No. 9-2304 Immunity Agreement, et seq.

Michie's Jurisprudence. - For related discussion, see 6B M.J. Drugs and Druggists, § 5; 20 M.J. Witnesses, § 81.

CASE NOTES

This section does not extend transactional immunity to nondrug offenses. since, while the statute extends use immunity to all prosecutions against a witness, this section provides transactional immunity only "as to the offense as to which he testifies" and the word "offense" as used in this context does not refer to any offense to which he may have at any time testified; it refers only to the offense or offenses for which he was compelled to testify under the terms of the statute. Caldwell v. Commonwealth, 8 Va. App. 86, 379 S.E.2d 368 (1989).

The transactional immunity from prosecution provided for in this section does not extend to nondrug related offenses about which a person may not be compelled to testify. Caldwell v. Commonwealth, 8 Va. App. 86, 379 S.E.2d 368 (1989).

The statute applies only to crimes involving illegal drugs and, therefore, did not apply in a robbery prosecution. Walton v. Commonwealth, No. 2471-97-1 (Ct. of Appeals Mar. 30, 1999); Saab v. Commonwealth, No. 2472-97-1 (Ct. of Appeals Mar. 30, 1999).

Transactional immunity waived. - Trial court did not err in denying defendant's motion to dismiss charges of possession with intent to distribute more than five pounds of marijuana and transporting more than five pounds of marijuana into the Commonwealth because defendant implicitly waived any transactional immunity he could have had under § 18.2-262 by agreeing to voluntarily testify for the Commonwealth; a waiver of the statutory right need not be a "knowing and intelligent" express waiver, but instead, a waiver of the provisions of this statute may be made implicitly. Murphy v. Commonwealth, 51 Va. App. 535, 659 S.E.2d 538, 2008 Va. App. LEXIS 180 (2008), aff'd, 277 Va. 221 , 672 S.E.2d 884, 2009 Va. LEXIS 38 (2009).

Controlling effect of § 19.2-215.1 et seq. - In order to give full force and effect both to § 19.2-215.1 et seq., addressing the narrow, specific exemption for multi-jurisdictional grand juries, and to this section, addressing grand juries generally, the later enacted statutory scheme ( § 19.2-215.1 et seq.) is construed to control testimony before multi-jurisdictional grand juries. Tharpe v. Commonwealth, 18 Va. App. 37, 441 S.E.2d 228 (1994).

The word "offense" refers to the earlier language in this section describing the offense for which a defendant was compelled to testify and this includes "any offense alleged to have been committed by another under this article or under the Drug Control Act ( §§ 54.1-3400 et seq.)" but it is illogical to conclude that the General Assembly intended to provide immunity for any crime about which a person may at any time testify even if he was not compelled to do so. Caldwell v. Commonwealth, 8 Va. App. 86, 379 S.E.2d 368 (1989).

The only offenses for which defendant was entitled to be immune from prosecution were the two drug offenses for which her friend was being prosecuted when defendant testified since these two offenses were the only ones alleged to have been committed by another and for which defendant's testimony was for the Commonwealth. Dunmyer v. Commonwealth, No. 0091-89-4 (Ct. of Appeals Mar. 13, 1990).

Only compelled testimony afforded immunity. - Immunity protections of § 18.2-262 apply only to witnesses whose testimony is compelled. Murphy v. Commonwealth, 277 Va. 221 , 672 S.E.2d 884, 2009 Va. LEXIS 38 (2009).

As defendant's testimony at co-defendant's preliminary hearing was voluntarily given in return for the prosecution's agreement to dismiss one of two pending charges, the transactional immunity provisions of § 18.2-2 62 did not entitle him to dismissal of another charge to which he had agreed to plead guilty. Murphy v. Commonwealth, 277 Va. 221 , 672 S.E.2d 884, 2009 Va. LEXIS 38 (2009).

Applied in Thornton v. Commonwealth, 22 Va. App. 2, 467 S.E.2d 820 (1996); Newton v. Commonwealth, 29 Va. App. 433, 512 S.E.2d 846.

§ 18.2-263. Unnecessary to negative exception, etc.; burden of proof of exception, etc.

In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this article or of the Drug Control Act (§ 54.1-3400 et seq.), it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this article or in the Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant.

(Code 1950, § 54-524.108; 1970, c. 650; 1975, cc. 14, 15.)

Law review. - For survey of Virginia law on evidence for the year 1971-1972, see 58 Va. L. Rev. 1268 (1972).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 6B Drugs and Druggists, § 5.

CASE NOTES

Burden of proving accommodation. - Section 18.2-248 and this section place the burden of proving the existence of an accommodation distribution (and the right to the lesser penalty) to the trier of fact on the shoulders of the defendant. In other words, the statute contains a presumption against an accommodation distribution to the extent that it is relevant to the determination of the proper degree of punishment, but only after guilt has been established. Ulmer v. Commonwealth, No. 0369-85 (Ct. of Appeals Aug. 26, 1986).

Section relieves Commonwealth of impossible burden. - This section takes note of the fact that a defendant is the person with the greatest knowledge and easiest access to evidence to show, for example, that his sale or distribution of a controlled substance was one of accommodation and not a commercial transaction, and therefore relieves the Commonwealth of what would amount to an impossible burden of affirmatively negating every exception, excuse, proviso or exemption claimed by a defendant. Stillwell v. Commonwealth, 219 Va. 214 , 247 S.E.2d 360 (1978).

Circuit court properly convicted defendant of possession with intent to distribute an imitation controlled substance because he possessed a substance that resembled heroin, was packaged to resemble heroin, and he arranged to sell it as heroin, the "introduction into commerce" exception was not applicable where specifically provided that the Commonwealth was not required to "negative any exception", and defendant failed to introduce any evidence of when any substance - imitation or illegal - was introduced into commerce. Taylor v. Commonwealth, No. 1197-19-3, 2020 Va. App. LEXIS 215 (July 28, 2020).

Presumption against accommodation continues until there is proof by a preponderance of the evidence that the transaction was an accommodation distribution. Ulmer v. Commonwealth, No. 0369-85 (Ct. of Appeals Aug. 26, 1986).

Failure to meet burden of proof for accommodation instruction. - Defendant's convictions for two counts of distribution of cocaine, third offense; three counts of distribution of marijuana; two counts of conspiracy to distribute cocaine, third offense; three counts of conspiracy to distribute marijuana; one count of possession of cocaine with intent to distribute; and one count of possession of marijuana with intent to distribute were proper because the trial court did not err in not instructing the jury on the lesser punishment of distribution for accommodation. In each transaction, the agent was the buyer, and not the cousin, who had only arranged the meetings for the agent; additionally, the fact that defendant did not make any money on the transactions was not dispositive. Martin v. Commonwealth,, 2010 Va. App. LEXIS 205 (May 18, 2010).

Burden of proof of any exception, excuse, proviso, or exemption on defendant. - This section did not impermissibly shift the burden of proof to defendant, as the presence of a valid prescription was an affirmative defense, peculiarly within knowledge of defendant, for which defendant had the burden of going forward with supporting evidence. Williams v. Commonwealth, 57 Va. App. 341, 702 S.E.2d 260, 2010 Va. App. LEXIS 481 (2010).

No exemption. - Where the defendant made no claim that he possessed a drug of unknown properties, or that it was a legal drug, or that he came into possession of it in a legal manner, he did not have any burden to prove that his possession, sale, or dispensing was lawful as an exemption to this chapter. He was under no burden to prove anything, and he could rely on his plea of not guilty. Walker v. Commonwealth, 212 Va. 289 , 183 S.E.2d 739 (1971).

Where the defendant made no claim that he possessed a drug of unknown properties, or that it was a legal drug, or that he came into possession of it in a legal manner, but rather he denied that he possessed or sold any drug, there was no "exception, excuse, proviso or exemption" involved in the case, and no occasion for any resort by the Commonwealth to the provisions of this section. Walker v. Commonwealth, 212 Va. 289 , 183 S.E.2d 739 (1971).

Applied in Heacock v. Commonwealth, 228 Va. 397 , 323 S.E.2d 90 (1984).

§ 18.2-264. Inhaling drugs or other noxious chemical substances or causing, etc., others to do so.

  1. It is unlawful, except under the direction of a practitioner as defined in § 54.1-3401 , for any person deliberately to smell or inhale any drugs or any other noxious chemical substances with the intent to become intoxicated, inebriated, excited, or stupefied or to dull the brain or nervous system. Any person violating the provisions of this subsection is guilty of a Class 1 misdemeanor.
  2. It is unlawful for any person, other than one duly licensed, deliberately to cause, invite, or induce any person to smell or inhale any drugs or any other noxious chemical substances with the intent to intoxicate, inebriate, excite, stupefy, or dull the brain or nervous system of such person.

    Any person violating the provisions of this subsection is guilty of a Class 2 misdemeanor.

  3. For the purposes of this section, "noxious chemical substances" includes fingernail polish and model airplane glue and chemicals containing any ketones, aldehydes, organic acetates, ether, chlorinated hydrocarbons or vapors, fluorinated hydrocarbons or vapors, or hydrogenated fluorocarbons.

    (Code 1950, § 18.1-70.1; 1968, c. 391; 1969, Ex. Sess., c. 19; 1973, c. 27; 1975, cc. 14, 15; 1993, c. 416; 2019, c. 6.)

The 2019 amendments. - The 2019 amendment by c. 6 substituted "is" for "shall be" throughout; in subsection A, deleted "including but not limited to fingernail polish or model airplane glue, containing any ketones, aldehydes, organic acetates, ether, chlorinated hydrocarbons or vapors" preceding "with the intent" and inserted "or" preceding "stupefied"; in subsection B, substituted "chemical substances" for "substances or chemicals containing any ketone, aldehydes, organic acetates, ether, chlorinated hydrocarbons or vapors"; added subsection C; and made stylistic changes.

Law review. - For comment on state's power to require an individual to protect himself, see 26 Wash. & Lee L. Rev. 112 (1969).

§ 18.2-264.01.

Repealed by Acts 2002, c. 831, cl. 2, effective July 1, 2003.

§ 18.2-264.1.

Repealed by Acts 1994, c. 432.

§ 18.2-265.

Repealed by Acts 1979, c. 638.

Article 1.1. Drug Paraphernalia.

§ 18.2-265.1. Definition.

As used in this article, the term "drug paraphernalia" means all equipment, products, and materials of any kind which are either designed for use or which are intended by the person charged with violating § 18.2-265.3 for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, strength testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body marijuana or a controlled substance. It includes, but is not limited to:

  1. Kits intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of marijuana or any species of plant which is a controlled substance or from which a controlled substance can be derived;
  2. Kits intended for use or designed for use in manufacturing, compounding, converting, producing, processing, or preparing marijuana or controlled substances;
  3. Isomerization devices intended for use or designed for use in increasing the potency of marijuana or any species of plant which is a controlled substance;
  4. Testing equipment intended for use or designed for use in identifying or in analyzing the strength or effectiveness of marijuana or controlled substances, other than narcotic testing products used to determine whether a controlled substance contains fentanyl or a fentanyl analog;
  5. Scales and balances intended for use or designed for use in weighing or measuring marijuana or controlled substances;
  6. Diluents and adulterants, such as quinine hydrochloride, mannitol, or mannite, intended for use or designed for use in cutting controlled substances;
  7. Separation gins and sifters intended for use or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;
  8. Blenders, bowls, containers, spoons, and mixing devices intended for use or designed for use in compounding controlled substances;
  9. Capsules, balloons, envelopes, and other containers intended for use or designed for use in packaging small quantities of marijuana or controlled substances;
  10. Containers and other objects intended for use or designed for use in storing or concealing marijuana or controlled substances;
  11. Hypodermic syringes, needles, and other objects intended for use or designed for use in parenterally injecting controlled substances into the human body;
  12. Objects intended for use or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, such as:
    1. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;
    2. Water pipes;
    3. Carburetion tubes and devices;
    4. Smoking and carburetion masks;
    5. Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, that has become too small or too short to be held in the hand;
    6. Miniature cocaine spoons, and cocaine vials;
    7. Chamber pipes;
    8. Carburetor pipes;
    9. Electric pipes;
    10. Air-driven pipes;
    11. Chillums;
    12. Bongs;
    13. Ice pipes or chillers.

      (1981, c. 598; 1983, c. 535; 2019, c. 215.)

The 2019 amendments. - The 2019 amendment by c. 215 inserted "other than narcotic testing products used to determine whether a controlled substance contains fentanyl or a fentanyl analog" in subdivision 4.

Law review. - For note on Virginia's drug paraphernalia law, see 16 U. Rich. L. Rev. 161 (1982).

Michie's Jurisprudence. - For related discussion, see 6B M.J. Drugs and Druggists, §§ 2, 5.

CASE NOTES

Sale of items that are drug paraphernalia per se. - The General Assembly intended the objects listed in subdivision 12 to be drug paraphernalia per se. Under circumstances where items sold are listed in that section, the trial court need not consider the factors set forth in § 18.2-265.2 to determine whether a defendant was selling drug paraphernalia. Other items that are sometimes labeled drug paraphernalia have multiple uses, some legal and some illegal. When the Commonwealth's case is based on the sale of such items, a trial court may consider the factors in § 18.2-265.2 to determine whether the ambiguous object is drug paraphernalia. Morrison v. Commonwealth, 37 Va. App. 273, 557 S.E.2d 724, 2002 Va. App. LEXIS 1 (2002).

§ 18.2-265.2. Evidence to be considered in cases under this article.

In determining whether an object is drug paraphernalia, the court may consider, in addition to all other relevant evidence, the following:

  1. Constitutionally admissible statements by the accused concerning the use of the object;
  2. The proximity of the object to marijuana or controlled substances, which proximity is actually known to the accused;
  3. Instructions, oral or written, provided with the object concerning its use;
  4. Descriptive materials accompanying the object which explain or depict its use;
  5. National and local advertising within the actual knowledge of the accused concerning its use;
  6. The manner in which the object is displayed for sale;
  7. Whether the accused is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;
  8. Evidence of the ratio of sales of the objects defined in § 18.2-265.1 to the total sales of the business enterprise;
  9. The existence and scope of legitimate uses for the object in the community;
  10. Expert testimony concerning its use or the purpose for which it was designed;
  11. Relevant evidence of the intent of the accused to deliver it to persons who he knows, or should reasonably know, intend to use the object with an illegal drug. The innocence of an owner, or of anyone in control of the object, as to a direct violation of this article shall not prevent a finding that the object is intended for use or designed for use as drug paraphernalia.

    (1981, c. 598; 1983, c. 535.)

Law review. - For note on Virginia's drug paraphernalia law, see 16 U. Rich. L. Rev. 161 (1982).

CASE NOTES

Sale of items that are drug paraphernalia per se. - The General Assembly intended the objects listed in subdivision 12 of § 18.2-265.1 . to be drug paraphernalia per se. Under circumstances where items sold are listed in that section, the trial court need not consider the factors set forth in this section to determine whether a defendant was selling drug paraphernalia. Other items that are sometimes labeled drug paraphernalia have multiple uses, some legal and some illegal. When the Commonwealth's case is based on the sale of such items, a trial court may consider the factors in § 18.2-265.2 to determine whether the ambiguous object is drug paraphernalia. Morrison v. Commonwealth, 37 Va. App. 273, 557 S.E.2d 724, 2002 Va. App. LEXIS 1 (2002).

§ 18.2-265.3. Penalties for sale, etc., of drug paraphernalia.

  1. Any person who sells or possesses with intent to sell drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it is either designed for use or intended by such person for use to illegally plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body marijuana or a controlled substance, shall be guilty of a Class 1 misdemeanor.
  2. Any person eighteen years of age or older who violates subsection A hereof by selling drug paraphernalia to a minor who is at least three years junior to the accused in age shall be guilty of a Class 6 felony.
  3. Any person eighteen years of age or older who distributes drug paraphernalia to a minor shall be guilty of a Class 1 misdemeanor.

    (1981, c. 598; 1983, c. 535; 1984, c. 31.)

Law review. - For note on Virginia's drug paraphernalia law, see 16 U. Rich. L. Rev. 161 (1982).

CASE NOTES

Constitutionality. - This section was constitutional as applied to defendant's conduct, because there was ample evidence in the record that defendant possessed drug paraphernalia with the intent to sell to nonprescription holders, conduct that was clearly prohibited by the statute, and defendant's repeated insistence that he intended to sell items in his store only for tobacco use demonstrated that he was aware that selling them for marijuana consumption was illegal. Chianelli v. Commonwealth, 64 Va. App. 632, 770 S.E.2d 778, 2015 Va. App. LEXIS 139 (2015).

Scienter requirement. - The scienter requirement for a conviction for selling drug paraphernalia is either actual knowledge or constructive knowledge (under circumstances where one reasonably should know) that the item is either designed for use or intended by the accused for use to illegally ingest, inhale, or otherwise introduce into the human body marijuana or a controlled substance. Morrison v. Commonwealth, 37 Va. App. 273, 557 S.E.2d 724, 2002 Va. App. LEXIS 1 (2002).

For a conviction for selling drug paraphernalia, the Commonwealth need prove only that defendant was aware when he sold the items, or possessed them with the intent to sell, that buyers in general are likely to use the items with illegal drugs, not that a particular buyer intended to use the items in this fashion. Morrison v. Commonwealth, 37 Va. App. 273, 557 S.E.2d 724, 2002 Va. App. LEXIS 1 (2002).

Sale of paraphernalia per se. - Once the evidence proves a defendant offered any of the per se paraphernalia items for sale, the Commonwealth has made a prima facie case the defendant sold drug paraphernalia. Morrison v. Commonwealth, 37 Va. App. 273, 557 S.E.2d 724, 2002 Va. App. LEXIS 1 (2002).

Quantity and other circumstances may establish intent to distribute. - The quantity of a controlled substance is a factor which may indicate the purpose for which it is possessed. Possession of a small quantity creates an inference that the drug is for personal use. Possession of a small quantity of a controlled substance, however, when considered with other circumstances, may be sufficient to establish an intent to distribute. The method of packaging of the controlled substance is such a circumstance. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Even if substance is packaged for distribution, there must be additional evidence to preclude the inference that it was purchased in the packaged form for personal use rather than being held in that fashion for distribution. The additional evidence available to preclude such an inference [may be] the presence of a large, or bulk, quantity from which smaller packages may have been made up for distribution, or the presence of paraphernalia used in the packaging process. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

Presence of unusual amount of money, suggesting profit from sales, is a circumstance that negates an inference of possession for personal use. Servis v. Commonwealth, 6 Va. App. 507, 371 S.E.2d 156 (1988).

CIRCUIT COURT OPINIONS

Evidence sufficient for probable cause. - Because the officer possessed a reasonable articulable suspicion that justified a pat-down search of defendant, and because defendant stated that the item discovered in his pocket during the pat-down search was a scale, there was probable cause to arrest defendant for violations of the law relating to drug paraphernalia. Commonwealth v. Bailey, 101 Va. Cir. 195, 2019 Va. Cir. LEXIS 25 (Orange County Feb. 12, 2019).

§ 18.2-265.4.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to seizure and forfeiture of drug paraphernalia, see § 19.2-386.26 .

§ 18.2-265.5. Advertisement of drug paraphernalia prohibited; penalty.

It shall be unlawful for any person to place in any newspaper, magazine, handbill or other publication any advertisement, knowing or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended by such person for use as drug paraphernalia. A violation of this section shall be punishable as a Class 1 misdemeanor.

(1983, c. 535.)

Article 1.2. Sale of Ephedrine or Related Compounds.

§ 18.2-265.6. Definitions.

As used in this article, unless the context requires a different meaning:

"Department" means the Department of State Police.

"Ephedrine or related compounds" means ephedrine and pseudoephedrine base or their salts, isomers, or salts of isomers.

"Pharmacy" means any establishment or institution from which drugs, medicines, or medicinal chemicals are dispensed or offered for sale or on which a sign is displayed bearing the words "apothecary," "druggist," "drugs," "drug store," "drug sundries," "medicine store," "pharmacist," "pharmacy," or "prescriptions filled" or any similar words intended to indicate that the practice of pharmacy is being conducted pursuant to a license issued under Chapter 33 (§ 54.1-3300 et seq.) of Title 54.1.

"Retail distributor" means an entity licensed to conduct business in the Commonwealth that offers for sale to the public at a retail outlet any nonprescription compound, mixture, or preparation containing ephedrine or related compounds.

"System" or "electronic system" means a real-time electronic recordkeeping and monitoring system for the sale of ephedrine or related compounds.

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.7. Sale of the methamphetamine precursors ephedrine or related compounds; penalty.

  1. The sale of any product containing ephedrine or related compounds sold by a pharmacy or retail distributor shall be limited to no more than 3.6 grams per day and 9 grams per 30-day period per individual customer. The limits shall apply to the total amount of base ephedrine or related compounds contained in the products and not to the overall weight of the products.
  2. Ephedrine or related compounds shall only be displayed for sale behind a store counter that is not accessible to consumers or in a locked case that requires assistance by a store employee for customer access.
  3. Any person purchasing, receiving, or otherwise acquiring ephedrine or related compounds shall, prior to taking possession, present photo identification issued by a government or an educational institution.
  4. The pharmacy or retail distributor shall maintain a written log or electronic system with the purchaser's name and address, birth date, and signature; the product name and quantity sold; and the date and time of the transaction. Unless exempt under subsection B of § 18.2-265.8 or § 18.2-265.11 , the pharmacy or retail distributor shall use the electronic recordkeeping and monitoring system to report all nonprescription sales of any product containing ephedrine or related compounds.
  5. The purchaser shall sign the record acknowledging an understanding of the applicable sales limit and that providing false statements or misrepresentations may subject the purchaser to criminal penalties under § 1001 of Title 18 of the United States Code.
  6. The pharmacy or retail distributor shall maintain records of all sales required to be entered into the electronic system or written log for a period of two years from the date of the last entry.
  7. The provisions of this article do not apply to sales of ephedrine or related compounds pursuant to a valid prescription.
  8. Any person who willfully violates this section is guilty of a Class 1 misdemeanor.

    (2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.8. Real-time electronic recording of sales of ephedrine or related compounds; memorandum of understanding.

  1. The Department shall enter into a memorandum of understanding with an appropriate entity to establish the Commonwealth's participation in a real-time electronic recordkeeping and monitoring system for the sale of ephedrine or related compounds. The memorandum of understanding shall include the following:
    1. A real-time electronic recordkeeping and monitoring system shall be provided at no charge to the Commonwealth or to participating pharmacies and retail distributors and shall be approved by the Department.
    2. The system shall provide, at no charge to participating pharmacies and retail distributors, appropriate training, 24-hour online support, and a toll-free telephone help line that is staffed 24 hours a day.
    3. The system shall be able to communicate in real time with similar systems operated in other states and the District of Columbia and similar systems containing information submitted by more than one state.
    4. The system shall comply with information exchange standards adopted by the National Information Exchange Model.
    5. The system shall include a stop sales alert, which shall be a notification that completion of the sale would result in the seller or purchaser violating the quantity limits set forth in § 18.2-265.7 , with an override function that may be used by a pharmacy or retail distributor under the circumstances set forth in § 18.2-265.9 and shall record each instance in which the override function is utilized.
    6. The system shall provide for the recording of the following:
      1. The date and time of the transaction;
      2. The name, address, date of birth, and photo identification number of the purchaser; the type of identification; and the government or educational institution of issuance;
      3. The number of packages purchased; the total number of grams of ephedrine or related compounds per package; and the name of the compound, mixture, or preparation containing ephedrine or related compounds; and
      4. The signature of the purchaser or unique number connecting the transaction to a paper signature maintained at the retail premises.
    7. The system shall ensure that submitted data is retained within the system for at least two years from the date of submission.
  2. The Department shall provide a process for a pharmacy or retail distributor to apply for, obtain, and periodically renew an exemption from the requirement to report transactions to the electronic system if the pharmacy or retail distributor lacks broadband access or maintains a sales volume of less than 72 grams of ephedrine or related compounds in a 30-day period.
  3. The Superintendent of State Police shall promulgate regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) for the implementation of this section. Regulations adopted under this section shall be deemed a customary police function for purposes of subdivision B 6 of § 2.2-4002 . (2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.9. Stop sales alerts; interruption of electronic system.

  1. A pharmacy or retail distributor shall not complete the sale if the system generates a stop sales alert unless the individual distributing the ephedrine or related compound has a reasonable fear of imminent bodily harm if the sale is not completed.
  2. In the event of a mechanical or electronic interruption of the system, the pharmacy or retail establishment shall maintain a written log of sales of ephedrine or related compounds until the system is restored. The information written in the log shall be transmitted to the system as soon as practicable after the system is restored.

    (2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.10. Exemption from participation in electronic system; requirement to maintain log.

Any pharmacy or retail distributor that has been granted an exemption from participation in the system pursuant to subsection B of § 18.2-265.8 shall forward to the Department every seven days by fax or electronic means a legible copy of the log required by § 18.2-265.7 .

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.11. Exemption from participation in electronic system and maintenance of a written log.

  1. The following entities shall not be required to participate in the electronic system and shall not be required to maintain a written log:
    1. Licensed manufacturers that manufacture and lawfully distribute products in the channels of commerce.
    2. Wholesalers that lawfully distribute products in the channels of commerce.
    3. Inpatient pharmacies of health care facilities licensed in the Commonwealth.
    4. Licensed long-term health care facilities.
    5. Government-operated health care clinics or departments or centers.
    6. Physicians who dispense drugs pursuant to § 54.1-3304 .
    7. Pharmacies located in correctional facilities.
    8. Government-operated or industry-operated medical facilities serving the employees of the Commonwealth or local or federal government.
  2. Purchases of ephedrine or related compounds pursuant to a valid prescription are not required to be reported to the system or entered into a written log.
  3. The sale of a single package containing no more than 60 milligrams of ephedrine or related compounds to an individual is not required to be reported to the system or entered into a log provided it is an isolated sale.

    (2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.12. Authority to access data, records, and reports.

The Department or other law-enforcement agency of the Commonwealth or any federal agency conducting a criminal investigation involving the manufacture of methamphetamine consistent with state or federal law may access data, records, and reports regarding the sale of ephedrine or related compounds. In addition, such information may be accessed if relevant to proceedings in any court, investigatory grand jury, or special grand jury that has been impaneled in accordance with the provisions of Chapter 13 (§ 19.2-191 et seq.) of Title 19.2.

The Superintendent of State Police shall promulgate regulations, pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), for the implementation of this section. Regulations adopted under this section shall be deemed a customary police function for purposes of subdivision B 6 of § 2.2-4002 .

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.13. Confidentiality of data in possession of Department.

All data, records, and reports related to the sale of ephedrine or related compounds to retail customers and any abstracts of such data, records, and reports that are in the possession of the Department pursuant to this article shall be confidential and exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) and the Government Data Collection and Dissemination Practices Act (§ 2.2-3800 et seq.).

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.14. Prohibition on disclosure of information by entity operating the system.

The entity operating the system pursuant to the memorandum of understanding with the Department shall not use or disclose the information collected on behalf of the Department from a pharmacy or retail distributor for any purpose other than (i) to ensure compliance with this article or the federal Combat Methamphetamine Epidemic Act of 2005, (ii) to comply with the United States government or a political subdivision thereof for law-enforcement purposes pursuant to state or federal law, or (iii) to facilitate a product recall necessary to protect public health and safety.

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.15. Prohibition on disclosure of information by pharmacy or retail distributor; civil immunity.

A pharmacy or retail distributor that sells any product containing ephedrine or related compounds shall not use or disclose the information in the system or a written log for any purpose other than (i) to ensure compliance with this article or the federal Combat Methamphetamine Epidemic Act of 2005, (ii) to comply with the United States government or a political subdivision thereof for law-enforcement purposes pursuant to state or federal law, or (iii) to facilitate a product recall necessary to protect public health and safety. A pharmacy or retail distributor shall report information in the written log or electronic system to law-enforcement personnel upon request, and any pharmacy or retail distributor that in good faith releases such information to federal, state, or local law-enforcement officers, or to any person acting on behalf of such officers, shall be immune from civil liability for the release unless the release constitutes gross negligence or intentional, wanton, or willful misconduct.

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.16. Compliance with statutory provisions; civil immunity.

Absent gross negligence, recklessness, or willful misconduct, any pharmacy or retail distributor utilizing the system or written log in compliance with this article shall be immune from civil liability as a result of actions or omissions in carrying out such statutory duties.

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.17. Exemption of information systems from provisions related to the Virginia Information Technologies Agency.

The provisions of Chapter 20.1 (§ 2.2-2005 et seq.) of Title 2.2 shall not apply to this article.

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

§ 18.2-265.18. Failure to report certain sales; penalty.

Any person subject to the recordkeeping and reporting requirements set forth in this article that willfully fails to report nonprescription sales of ephedrine or related compounds is guilty of a Class 1 misdemeanor.

(2012, cc. 160, 252.)

Editor's note. - Acts 2012, cc. 160 and 252, cl. 3 provides: "That the provisions of this act shall become effective on January 1, 2013."

Article 1.3. Dextromethorphan Distribution Act.

§ 18.2-265.19. Definitions.

As used in this article, unless the context requires a different meaning:

"Dextromethorphan" means the dextrorotatory isomer of 3-methoxy-N-methylmorphinan and its salts.

"Pharmacy" means any establishment or institution from which drugs, medicines, or medicinal chemicals are dispensed or offered for sale or on which a sign is displayed bearing the words "apothecary," "druggist," "drugs," "drug store," "drug sundries," "medicine store," "pharmacist," "pharmacy," "prescriptions filled," or any similar words intended to indicate that the practice of pharmacy is being conducted pursuant to a license issued under Chapter 33 (§ 54.1-3300 et seq.) of Title 54.1.

"Retail distributor" means an entity licensed to conduct business in the Commonwealth that offers for sale to the public at a retail outlet any nonprescription compound, mixture, or preparation containing dextromethorphan.

"Unfinished dextromethorphan" means dextromethorphan in the form of a "bulk drug substance" as defined in § 54.1-3401 .

(2014, cc. 101, 362.)

Editor's note. - Acts 2014, cc. 101 and 362, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2015."

§ 18.2-265.20. Sale or distribution of dextromethorphan to minors; purchase by minors; civil penalty.

  1. It is unlawful for any pharmacy or retail distributor knowingly or intentionally to sell or distribute any product containing dextromethorphan to a minor.
  2. A pharmacy or retail distributor, or its employee or agent, shall not sell or distribute a product containing dextromethorphan unless the purchaser presents a federal, state, or local government-issued document that contains a photograph and the birth date of the purchaser that shows that the purchaser is at least 18 years of age or unless from the purchaser's outward appearance the pharmacy or retail distributor would reasonably presume the purchaser to be 25 years of age or older.
  3. It is unlawful for any minor knowingly or intentionally to purchase any product containing dextromethorphan.
  4. Any pharmacy or retail distributor, or its employee or agent, that violates subsection A or any minor who violates subsection C is subject to a civil penalty of $25. Any pharmacy or retail distributor, or its employee or agent, that violates subsection B shall receive a notice of noncompliance and, upon any subsequent violation of subsection B, shall be subject to a civil penalty of $25. Such penalty shall be collected by the attorney for the Commonwealth for the locality where the violation occurred, and the proceeds shall be deposited into the Literary Fund.
  5. The provisions of this section shall not apply if the product was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.). (2014, cc. 101, 362.)

Editor's note. - Acts 2014, cc. 101 and 362, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2015."

§ 18.2-265.21. Possession or distribution of unfinished dextromethorphan; penalty.

Any person who distributes or possesses with the intent to distribute unfinished dextromethorphan who is not registered under § 510 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321 et seq.) or otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.) to distribute or possess unfinished dextromethorphan is guilty of a Class 1 misdemeanor. This section does not apply to a common carrier that receives or possesses unfinished dextromethorphan for the purpose of distributing such unfinished dextromethorphan between persons registered under § 510 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321 et seq.) or otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.) to distribute or possess unfinished dextromethorphan.

(2014, cc. 101, 362.)

Editor's note. - Acts 2014, cc. 101 and 362, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2015."

Article 2. Driving Motor Vehicle, etc., While Intoxicated.

§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).

For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.

(Code 1950, § 18.1-54; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 637; 1984, c. 666; 1986, c. 635; 1987, c. 661; 1992, c. 830; 1994, cc. 359, 363; 1996, c. 439; 2005, cc. 616, 845.)

Cross references. - For authorization for locality to provide by ordinance for reimbursement of certain expenses incurred in responding to DUI and other traffic incidents related to violation of §§ 18.2-51.4 , 18.2-266 , 29.1-738 , 46.2-852 et seq., 46.2-300 et seq., and 46.2-894 , see § 15.2-1716 .

As to presumption of no bail for illegal aliens charged with certain crimes, see § 19.2-120.1 .

As to admissibility of written results of blood alcohol tests conducted in the regular course of providing emergency medical treatment, see § 19.2-187.02 .

As to dismissal of one of dual charges for driving while intoxicated and reckless driving upon conviction of other charge, see § 19.2-294.1 .

As to sealing criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction by petition, see § 19.2-392.12 .

As to revocation of license upon fourth conviction, see § 46.2-394 .

As to incorporation of provisions of this article in local ordinances, see § 46.2-1313 .

As to mandatory background screenings for TNC partners to provide updated information to transportation network companies, see § 46.2-2099.49 .

Editor's note. - Acts 2002, c. 811, cl. 2, provides: "That a court shall not transmit to the Department of Motor Vehicles (i) an order of conviction or abstract of conviction for a second violation of § 18.2-266 or a substantially similar local ordinance, as described in subsection B of § 18.2-271 , unless the defendant was tried and convicted on a process alleging such a second offense, nor (ii) an order of conviction or abstract of conviction for a third or subsequent violation of § 18.2-266 or substantially similar local ordinance, as described in subsection C of § 18.2-271 , unless the defendant was tried and convicted on a process alleging such a third or subsequent offense. However, when such conviction is upon a process other than as described in subsection B or C of § 18.2-271, the court shall transmit such order or abstract as an initial violation. Upon receipt of a conviction of a second offense transmitted pursuant to subsection B of § 18.2-271, the Commissioner of Motor Vehicles shall revoke the driver's license of an individual in accordance with subsection A of § 46.2-391 . Upon receipt of a conviction of a third or subsequent offense transmitted pursuant to subsection C of § 18.2-271, the Commissioner shall revoke the driver's license of an individual in accordance with subsection B of § 46.2-391 .

"The Commissioner shall not revoke the driver's license of an individual under subsections A or B of § 46.2-391 if the court fails to comply with the requirements set forth in the above paragraph."

Acts 2004, c. 937, cl. 2, provides: "That the Department of Motor Vehicles shall determine the impact on its recordkeeping system if the penalties currently applicable to a third conviction of § 18.2-266 were applicable without regard to the time period in which the offenses were committed."

The 1996 amendment added the second sentence in the first paragraph.

The 2005 amendments. - The 2005 amendment by c. 616 inserted clause (v) in the first sentence of the first paragraph, and made related changes.

The 2005 amendment by c. 845, substituted "article" for "section" in the second paragraph.

Law review. - For survey of Virginia criminal law for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For note discussing the defendant's right to independent analysis of the breathalyzer ampoule, see 21 Wm. & Mary L. Rev. 219 (1979). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

For 1991 survey on criminal law and procedure, see 25 U. Rich. L. Rev. 731 (1991).

For note, "Drunk Driving, Administrative License Suspension, and Double Jeopardy in Virginia", see 4 Geo. Mason L. Rev. 521 (1996).

For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 37 Appeals to the Supreme Court of Virginia. § 37.10 Procedure for Filing Appeal Direct From a Trial Court. Friend.

Virginia Forms (Matthew Bender). No. 1-205 Complaint -- Drunk Driving. No. 9-514 Indictment (DUI).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 11, 47, 112, 118, 122; 5A M.J. Courts, § 58; 5C M.J. Damages, § 65; 9B M.J. Infants and Juveniles, § 89; 18 M.J. Surface Transportation Systems, Streets, Highways, Etc., § 2.

CASE NOTES

I. GENERAL CONSIDERATION.

Constitutionality. - This section does not offend the due process clause as it does not establish a mandatory presumption but allows only a permissive inference that the fact finder is free to reject. The trial court properly treated § 18.2-266 as a permissive inference, explicitly stating so. Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523, 2007 Va. App. LEXIS 171 (2007).

Construction. - In construing this section and §§ 18.2-270 through 18.2-273 consideration must be given to the words used, their relation to the subject matter in which they are used, the purposes for which the statute was intended, and the mischief sought to be suppressed. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

To determine the proper interpretation of this section, the court must focus on the specific language used in this section, and the appropriate evidentiary weight of the results of the subsequently administered blood alcohol test. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

Construction with other law. - Reckless driving and speeding are separate and distinct offenses; nothing in the language of § 19.2-294.1 precludes the Commonwealth or a locality from convicting a person for both DUI and speeding. White v. Commonwealth, 26 Va. App. 410, 494 S.E.2d 896 (1998).

A conviction under § 18.2-36.1 requires proof both that the accused violated clauses (ii), (iii), or (iv) of this section and that such misconduct caused the death of another, elements not necessary to common-law involuntary manslaughter. Section 18.2-36.1 C expressly provides that the provisions of § 18.2-36.1 shall not preclude prosecution under any other homicide statute. Stover v. Commonwealth, 31 Va. App. 225, 522 S.E.2d 397 (1999), upholding defendant's conviction under § 18.2-36 for involuntary manslaughter.

Definitions in § 46.2-100 do not control Title 18.2, and therefore, the definition of operator pursuant to § 46.2-100 was inapplicable where defendant was convicted of driving a motor vehicle while under the influence of alcohol. Reynolds v. City of Va. Beach, 31 Va. App. 629, 525 S.E.2d 65 (2000).

The Virginia legislature intended to permit the imposition of multiple punishments for involuntary manslaughter while driving under the influence, under § 18.2-36.1 , and driving under the influence, under clauses (ii), (iii) or (iv) of this section upon convictions obtained in a single trial. Goodman v. Commonwealth, 37 Va. App. 374, 558 S.E.2d 555, 2002 Va. App. LEXIS 45 (2002).

Trial court did not err in denying defendant's motion to strike, which alleged that he could not have been prosecuted for felony child abuse for transporting his son while driving under the influence, since § 18.2-270 simply provides an additional penalty for driving under the influence while transporting a person 17 years of age or younger and does not include within its parameters the elements of the child abuse and neglect offense; furthermore, this section did not require proof of those elements for a conviction of DUI. Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27, 2004 Va. App. LEXIS 168 (2004).

Section 19.2-294.1 required the dismissal of defendant's indictment for felony driving under the influence, fourth offense, in violation of §§ 18.2-266 and 18.2-270 because defendant had been previously convicted of reckless driving in the general district court arising out of the same act or acts that were the basis of the felony indictment for driving under the influence. Lawson v. Commonwealth, 61 Va. App. 292, 734 S.E.2d 714, 2012 Va. App. LEXIS 402 (2012).

Assimilative Crimes Act. - Virginia offense of driving while intoxicated is assimilated as federal law in certain federal enclaves within the Commonwealth, including Fort Eustis, 18 U.S.C.S. § 7, pursuant to the Assimilative Crimes Act (ACA), 18 U.S.C.S. § 13. United States v. Clark, 361 F. Supp. 2d 502, 2005 U.S. Dist. LEXIS 4230 (E.D. Va. 2005).

Defendant's sentence of 27 months imprisonment for drunk driving and for driving with a suspended license fell below the midpoint of the range prescribed by § 18.2-266 and subdivision C 1 of § 18.2-270 , and because the sentence fell within the state-prescribed range, it was consonant with the Assimilative Crimes Act's "like punishment" requirement. United States v. Finley, 531 F.3d 288, 2008 U.S. App. LEXIS 13762 (4th Cir. 2008).

This section defines a single offense, commonly referred to as DUI, and the clauses merely set forth the means by which the offense of driving under the influence may be proved. Graham v. Commonwealth, No. 2292-91-3 (Ct. of Appeals June 22, 1993).

The gravamen of the offense is driving while under the influence of alcohol, and the Commonwealth must establish both essential facts beyond a reasonable doubt to carry the burden of proof. Clemmer v. Commonwealth, 208 Va. 661 , 159 S.E.2d 664 (1968).

The issue under clause (i) of this section is not whether a driver was in fact under the influence of alcohol to a degree that his ability to drive safely was affected; rather, the issue is whether at the time he was driving his blood alcohol concentration was at least .10 (now .08) percent. Lemond v. Commonwealth, 19 Va. App. 687, 454 S.E.2d 31 (1995).

Clause (i), the per se statute. - The presumptions contained in § 18.2-269 are not applicable to an offense under clause (i) as a result of the 1986 amendment to this code section and thus, the inquiry under this section is not whether a driver was in fact "under the influence of alcohol" to a degree that his ability to drive safely was affected; rather, the issue is whether at the time he was driving his blood alcohol concentration was at least .10 (now .08) percent as measured by a subsequently administered chemical test pursuant to former § 18.2-268 (now § 18.2-268.1 et seq.) and it is for this reason that clause (i) has come to be known as the "per se" statute. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

While the clause (i) proscribes no time limit within which the chemical test must be administered after driving, it is axiomatic that there can be no prosecution under this section without the existence of a chemical test obtained under the provisions of § 18.2-268 (B). Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

City ordinance successfully incorporated clause (i). - City ordinance successfully incorporated this section by reference; the words in the city ordinance adopting provisions of the statute "pertaining to driving motor vehicles while intoxicated" are words of description and do not act to exclude clause (i) from incorporation. Reardon v. City of Manassas, 11 Va. App. 244, 397 S.E.2d 544 (1990).

Ordinance against driving under influence of alcohol paralleled and substantially conformed to state statute and thus conviction under ordinance could be considered in determining whether defendant was habitual offender. Although ordinance adopted prior version of statute and did not provide for incorporation of future amendments, and statute was amended, adding a per se offense of operating a vehicle with a blood alcohol level of 0.15 percent or more, the ordinance nonetheless met the requirement that it parallel and substantially conform to this section. West v. Commonwealth, 14 Va. App. 350, 416 S.E.2d 50 (1992).

This section and the "implied consent" statute are separate. - Former "implied consent" statute § 18.2-268 (now § 18.2-268.2 et seq.) and the drunken driving statute (this section) are not intricately related, but rather completely separate offenses with separate penalties. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

The defendant's contention at the trial that this section and former § 18.2-268 (now § 18.2-268.1 et seq.) should be read together by virtue of the decision of Russell v. Hammond, 200 Va. 600 , 106 S.E.2d 626 (1959) has no merit. This section is a separate statute and is not cited in Russell v. Hammond as being read together with the blood test statutes. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

Collateral estoppel. - Defendant's prior conviction was not subject to a collateral attack during the proceeding in the general district court because from the face of the prior warrant/conviction order, defendant appeared in court, where he was represented by counsel, and was convicted of driving while under the influence, and defendant did not challenge that conviction by way of direct appeal or other post-conviction proceeding. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

One committing a homicide while violating this section may be convicted of involuntary manslaughter. Massie v. Commonwealth, 177 Va. 883 , 15 S.E.2d 30 (1941).

Right to jury trial. - Article I, § 8, of the Virginia Constitution and Rule 3A:13(a) guaranteed defendant a right to a jury in the trial court on both charges of driving under the influence and driving on a revoked operator's license. McCormick v. City of Virginia Beach, 5 Va. App. 369, 363 S.E.2d 124 (1987).

For a discussion of the applicability of Miranda warnings to motor vehicle offenses, see Clay v. Riddle, 541 F.2d 456 (4th Cir. 1976). See also Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).

Indictment. - Court of appeals considered the indictment charging a violation of clause (ii), driving while such person was under the influence of alcohol, and did not consider whether defendant violated the "per se" provisions of clause (i) because the Commonwealth limited the indictment with the "while under the influence of alcohol or other self-administered intoxicants, and or drugs" language. Taylor v. Commonwealth, No. 0719-18-2, 70 Va. App. 182, 826 S.E.2d 332, 2019 Va. App. LEXIS 89 (Apr. 16, 2019).

Warrant invalid where based on county code provision containing obsolete statutory reference. - Driving under the influence of alcohol was not an offense at common law. It exists solely as a creature of statute. Therefore, a warrant stating that the defendant did unlawfully in violation of the county code operate a motor vehicle while under the influence of alcohol or other self-administered drug or intoxicants had no effect, where it cited a county code provision which was invalid because it referred to former § 18.1-54 et seq., rather than the current driving under the influence law, § 18.2-266 et seq. This was not altered by the fact that the wording on the warrant described a violation of § 18.2-266 et seq., since defendant was not charged with violating a provision of the Virginia Code. The existence of a state statute defining the same crime does not form a basis for conviction where a defendant has not been so charged. Mitchell v. County of Hanover, 1 Va. App. 486, 340 S.E.2d 173 (1986).

Sufficiency of warrant. - Warrant charging defendant with driving under the influence of alcohol, second offense was valid and lawful when stated in the disjunctive form because § 18.2-266 defined a single offense of driving under the influence and its subsections merely set forth the means by which the offense could be proven. Additionally, the warrant described the nature and character of the offense it charged, and, thus, put defendant on notice. Robbins v. Commonwealth,, 2014 Va. App. LEXIS 173 (May 13, 2014).

State court criminal DUI proceedings barred a hearing in federal district court of claims against officer for violation of petitioner's fourth, fifth, and fourteenth amendment rights during the course of his arrest and for violation of 42 U.S.C.S. § 1983 for alleged unconstitutional application of state statutory scheme for DUI offenses. Grochowski v. Virginia, 741 F. Supp. 1230 (W.D. Va. 1990), aff'd sub nom. Grochowski v. Dewitt-Rickards, 928 F.2d 399 (4th Cir.), cert. denied, 502 U.S. 859, 112 S. Ct. 176, 116 L. Ed. 2d 139 (1991).

Applied in Davis v. Commonwealth, 219 Va. 808 , 252 S.E.2d 299 (1979); Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E.2d 895 (1987); Rosenbaum v. Commonwealth, 12 Va. App. 61, 402 S.E.2d 498 (1991); Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991); Nash v. Commonwealth, 12 Va. App. 550, 404 S.E.2d 743 (1991); Sos v. Commonwealth, 14 Va. App. 862, 419 S.E.2d 426 (1992); Wallace v. Commonwealth, 32 Va. App. 497, 528 S.E.2d 739, 2000 Va. App. LEXIS 387 (2000); Woods v. Mendez, 265 Va. 68 , 574 S.E.2d 263, 2003 Va. LEXIS 18 (2003); Smith v. Commonwealth, 44 Va. App. 189, 604 S.E.2d 108, 2004 Va. App. LEXIS 509 (2004); United States v. Montigue, 357 F. Supp. 2d 939, 2005 U.S. Dist. LEXIS 2450 (E.D. Va. 2005); Thomas v. Commonwealth, 59 Va. App. 496, 720 S.E.2d 157, 2012 Va. App. LEXIS 14 (2012); Simmons v. Commonwealth, 63 Va. App. 69, 754 S.E.2d 545, 2014 Va. App. LEXIS 52 (2014); Croft v. Commonwealth,, 2015 Va. App. LEXIS 205 (June 30, 2015).

II. ELEMENTS.
A. DRIVE OR OPERATE.

Driving an automobile means putting it in motion. Gallagher v. Commonwealth, 205 Va. 666 , 139 S.E.2d 37 (1964).

But the word "operate" is not limited to moving the vehicle from one place to another. Gallagher v. Commonwealth, 205 Va. 666 , 139 S.E.2d 37 (1964); Lyons v. City of Petersburg, 221 Va. 10 , 266 S.E.2d 880 (1980).

The meaning of the word "operate" as used in this section is not limited to the movement of the vehicle. Nicolls v. Commonwealth, 212 Va. 257 , 184 S.E.2d 9 (1971).

The word "operate" is not defined in this section, but the word "operator" is defined, in part, in § 46.1-1 (17) (see now § 46.2-100 ) as "every person who drives or is in actual physical control of a motor vehicle," and this definition is approved for the purpose of determining whether one "operates" a motor vehicle within the meaning of this section. Nicolls v. Commonwealth, 212 Va. 257 , 184 S.E.2d 9 (1971); Lyons v. City of Petersburg, 221 Va. 10 , 266 S.E.2d 880 (1980).

The language of this section is to be construed to mean that a vehicle need not be functional in the sense of being able to move from place to place in order to be "operated." Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473, 2000 Va. App. LEXIS 295 (2000).

It is the commonality of the underlying offending conduct, the continuous, uninterrupted operation of a motor vehicle, that invokes the preclusive effect of this section. Harris v. City of Va. Beach, 19 Va. App. 214, 450 S.E.2d 401 (1994).

"Operating" inoperable vehicle. - The contention that a defendant cannot be convicted of operating an inoperable vehicle is without merit, since a motor vehicle is defined in § 46.1-1 (15) (see now § 46.2-100 ) as "every vehicle as herein defined which is self-propelled or designed for self-propulsion." Nicolls v. Commonwealth, 212 Va. 257 , 184 S.E.2d 9 (1971).

Where defendant was arrested after the officer found him sitting at the steering wheel of his car, which was stuck in a ditch, with the motor running and the right rear wheel spinning, it was held that he was operating the vehicle and that his conviction was proper under this section, for it prohibits operation as well as driving of a vehicle while intoxicated. Gallagher v. Commonwealth, 205 Va. 666 , 139 S.E.2d 37 (1964).

No bright line rule for "operating" or "driving." - Neither the court of appeals nor the state supreme court has fashioned a bright line rule that a vehicle's motor must be running or its ignition switch must be in the "on" position for a defendant to be convicted of driving or operating a motor vehicle while intoxicated in violation of this section. Propst v. Commonwealth, 24 Va. App. 791, 485 S.E.2d 657 (1997).

Breath test certificate was irrelevant to prove driving and was improperly admitted. - Where the statement of facts stated that appellant was drinking "during the stop," because the evidence did not exclude the reasonable hypothesis that appellant was drinking after the driving and operation of the vehicle, the breath certificate was irrelevant to prove appellant's driving or operating the car and should not have been admitted. Foster v. Commonwealth, No. 1593-91-2 (Ct. of Appeals March 16, 1993).

Circumstances sufficient to show that drunken driver was "operating" his truck. - Evidence was sufficient to prove that defendant convicted of second offense of driving motor vehicle while under the influence of alcohol was "operating" his truck when approached by police officer: truck's engine was running and its headlights and taillights were illuminated; defendant, though standing on the road, was bending his body into the interior space of the truck; and defendant admitted that he had just left his house to ride around the block and was going straight home. Leake v. Commonwealth, 27 Va. App. 101, 497 S.E.2d 522 (1998).

Evidence sufficient to prove defendant "operated" vehicle. - The evidence was sufficient to prove that the defendant was "operating" the vehicle where the police officer who was dispatched to the scene of an accident found the defendant alone in the vehicle with his legs pinned under the steering wheel and dashboard, the defendant was conscious but was unable to move because he was trapped inside the car, and the car was in gear and the key was in the ignition. Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473, 2000 Va. App. LEXIS 295 (2000).

The evidence, although circumstantial, was sufficient to prove that the defendant was the driver of the car where, immediately after a witness heard the squealing of the tires and a loud boom, she observed the defendant lying on the ground on the driver's side of the car and the other occupant climb from the front passenger side of the vehicle and exit from the driver's side door, when a second witness arrived at the scene he observed the defendant sitting in the driver's seat with his legs out the side door, the defendant sustained injuries to the left side of his body, which were consistent with the damage to only the driver's side of the car, while the other occupant did not sustain any injuries and, finally, the vehicle was registered in the name of the defendant's father. McCain v. Commonwealth, No. 1789-99-3, 2000 Va. App. LEXIS 345 (Ct. of Appeals May 9, 2000).

Even though defendant's car did not start when defendant turned the key in the ignition, the evidence was sufficient to prove that defendant "operated" a motor vehicle within the meaning of § 18.2-266 because, by operating the car's ignition switch, defendant manipulated the mechanical or electrical equipment of the car and engaged the machinery of the car that, alone or in sequence, would activate the car's motive power. Floyd v. Commonwealth, No. 0568-01-2, 2002 Va. App. LEXIS 440 (Ct. of Appeals July 30, 2002).

Even though defendant's attempt to start defendant's disabled vehicle was in response to a request by a state trooper who did not know at the time that defendant was intoxicated, the fact that defendant was responding to the trooper's request did not render the evidence insufficient to prove that defendant "operated" the car within the meaning of § 18.2-266 because defendant, knowing of defendant's own intoxication, could and should have declined the trooper's request. Floyd v. Commonwealth, No. 0568-01-2, 2002 Va. App. LEXIS 440 (Ct. of Appeals July 30, 2002).

Defendant who was intoxicated when he grabbed the steering wheel of a vehicle his sister was driving, and caused his sister to lose control of the vehicle, was properly convicted of driving under the influence of alcohol (second or subsequent offense), in violation of §§ 18.2-266 and 18.2-270 B, and operating a vehicle as an habitual offender, in violation of § 46.2-357. Dugger v. Commonwealth, 40 Va. App. 586, 580 S.E.2d 477, 2003 Va. App. LEXIS 305 (2003).

Sufficient evidence established that defendant was the operator of a car where he was still in the driver's seat with the key in the ignition when an officer arrived on the scene, and defendant admitted that he was the driver; no Miranda warnings were required during the Terry stop. Pruitt v. Commonwealth,, 2008 Va. App. LEXIS 57 (Feb. 5, 2008).

Even though defendant was found unconscious in a parked vehicle, the evidence was sufficient to convict him of operating a vehicle while intoxicated because the key was in the vehicle's ignition, it was turned so that the vehicle's electrical system would work, and the vehicle's radio was on. Nelson v. Commonwealth,, 2010 Va. App. LEXIS 42 (2010), aff'd, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

In a prosecution on a charge of driving while intoxicated under § 18.2-266 , the evidence showed that defendant "operated" his vehicle. Defendant was found inside the vehicle, and the key was in the "on" or "accessory" position, although the motor was not running; defendant's action in turning on the radio by placing the key in the "on" position of the ignition constituted manipulating the vehicle's electrical equipment. Nelson v. Commonwealth, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

Since defendant was seated behind the steering wheel and the key was in the ignition switch, the evidence was sufficient to concluded that defendant was an operator of the vehicle. Sarafin v. Commonwealth, 288 Va. 320 , 764 S.E.2d 71, 2014 Va. LEXIS 156 (2014).

Defendant was properly convicted of driving while intoxicated and driving after being declared a habitual offender because a rational trier of fact could have found that he was driving; when the EMTs arrived on the scene defendant was the only person found in the overturned SUV and he was trapped with his leg wrapped around the steering column so that his body was hanging on the driver's side. Wilson v. Commonwealth,, 2015 Va. App. LEXIS 308 (Nov. 3, 2015).

Evidence was sufficient to prove defendant was operating a vehicle because he was sitting in the driver's seat with the key in the ignition; defendant did not present any appreciable difference between the definition of "operating" a vehicle while impaired due to drug use as opposed to alcohol consumption. Wadford v. Commonwealth, No. 1641-16-1, 2017 Va. App. LEXIS 267 (Oct. 31, 2017).

Because time is not an element of a charge of driving under the influence, the Commonwealth was not required to prove the exact date of defendant's arrest in order to convict him of the same. Raikes v. Commonwealth,, 2007 Va. App. LEXIS 386 (Oct. 23, 2007).

Prosecution in federal court for driving while intoxicated on federal land. - The Assimilative Crimes Act of 1948, 18 U.S.C.S. § 13, makes applicable to a prosecution in a federal court for driving while intoxicated on a federal parkway within the territorial limits of Virginia the Virginia statute which prohibits one from driving an automobile while under the influence of alcohol and the Virginia statute ( § 18.2-270 ) which prescribes penalties for the offense. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958), commented on in 16 Wash. & Lee L. Rev. 62 (1959).

In a prosecution under the Assimilative Crimes Act for drunken driving on a military post in Virginia, the magistrate need not consider both the Virginia statutes, this section and former § 18.2-268 (now § 18.2-268.1 et seq.) together, but may consider this section as a separate offense and disregard any evidence as to blood tests with respect to a drunken driving charge. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

Special assessment inapplicable to offense committed on federal enclave. - As drunken driving offenses are excepted from Virginia's "additional cost" provision in § 19.2-368.18 , no punishment exists in state law similar to the federal assessments in the Assimilative Crimes Act, 18 U.S.C.S. § 13, and for that reason the special assessment cannot apply to drunken driving offenses committed in Virginia on a federal enclave. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986).

Applicability to driving on private roads. - In Valentine v. County of Brunswick, 202 Va. 696 , 119 S.E.2d 486 (1961), it was held that a county ordinance similar to this section applied to driving on private roads as well as public highways.

Because this section contains no "on a highway" requirement for the operation of motor vehicles, operation of the vehicle occurred even though defendant was on private property. Sarafin v. Commonwealth, 288 Va. 320 , 764 S.E.2d 71, 2014 Va. LEXIS 156 (2014).

Public ownership of the property upon which the vehicle is driven or operated is not an element the Commonwealth must prove in a prosecution for driving in violation of this section. Mitchell v. Commonwealth, 26 Va. App. 27, 492 S.E.2d 839 (1997).

Violation may occur in parking lot. - This statute does not specify that the driving or operating that it criminalizes must occur on a public highway; thus defendant could properly be convicted of drunk driving for such conduct in a parking lot. Gray v. Commonwealth, 23 Va. App. 351, 477 S.E.2d 301 (1996).

Fact that defendant operated vehicle while trying to extricate it from a ditch, off the traveled portion of the public highway, was of no importance. Reynolds v. City of Va. Beach, 31 Va. App. 629, 525 S.E.2d 65 (2000).

Defendant did not drive or operate car since key in ignition did not engage car. - Because the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the car, the defendant did not "drive or operate" the car within the meaning of the statutes that were incorporated by reference in a city ordinance. Stevenson v. City of Falls Church, 243 Va. 434 , 416 S.E.2d 435 (1992).

No error in refusing proffered jury instruction. - Trial court did not err in refusing defendant's proffered jury instruction defining "operating a motor vehicle" because the instruction was not an accurate statement of the law when it was not necessary that the jury find that defendant acted with the purpose of putting a car in motion to find that he operated a car within the meaning of § 18.2-266 . The instruction the trial court granted fully and fairly covered the principles of law relevant to the question of whether he operated the car in which he was found. Ngomondjami v. Commonwealth, 54 Va. App. 310, 678 S.E.2d 281, 2009 Va. App. LEXIS 296 (2009).

Trial court properly refused defendant's proffered jury instructions because they were not an accurate statement of the law, as nothing in the plain language of this section required that the vehicle be located on a public highway in order to constitute a violation of that statute. Sarafin v. Commonwealth, 62 Va. App. 385, 748 S.E.2d 641, 2013 Va. App. LEXIS 271 (2013).

B. NEGLIGENCE AND CAUSATION.

Violation of section as negligence. - If defendant was driving his car while under the influence of intoxicants, he violated this section and that was negligence. Yet it was not his intoxication but his negligence that had to be the proximate cause of the mishap before there could be a finding against him because of his conduct in that respect. Bogstad v. Hope, 199 Va. 453 , 100 S.E.2d 745 (1957).

There can be no conviction unless there is evidence tending to establish the agency responsible for the erratic behavior of the accused. Miller v. Commonwealth, 214 Va. 689 , 204 S.E.2d 268 (1974).

Intoxication is relevant to determination of degree of defendant's negligence whether ordinary, gross or wanton. It may serve to elevate the defendant's conduct to the level of negligence so gross, wanton and culpable as to show a reckless disregard of human life, a requisite element for a conviction of involuntary manslaughter. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

The degree of intoxication is a circumstance relevant to a determination of the question whether, in light of all other circumstances, the act of driving an automobile was such an improper performance of a lawful act as to constitute negligence so gross and culpable as to indicate a callous disregard to human life. Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975).

Where driver was driving a car and he admitted on the scene that he had been drinking before getting behind the wheel that night, and defendant said that he could smell alcohol on plaintiff, probable cause existed to arrest driver for DUI. Cooper v. City of Va. Beach, 817 F. Supp. 1310 (E.D. Va. 1993).

Criminal negligence. - Even when the evidence shows a level of intoxication lower than that necessary to a conviction for violation of this section, such evidence is germane to the question of criminal negligence. Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975).

Evidence was sufficient to convict defendant of involuntary manslaughter, felonious child abuse or neglect involving the reckless endangerment of a child, and felonious child abuse involving serious injury to a child as the evidence proved that defendant was criminally negligent because he drove recklessly after recently ingesting marijuana with the knowledge that his minor passengers were not properly restrained by seat belts or appropriate devices; and he possessed the knowledge and consciousness of risk that could establish reckless disregard as he wore his own seat belt. Turner v. Commonwealth, No. 0067-16-1, 2017 Va. App. LEXIS 4 (Ct. of Appeals Jan. 10, 2017).

Conduct rather than degree of intoxication determines malice. - The defendant's degree of intoxication, however great, neither enhances nor impairs the set of facts relied upon to establish implied malice. In making the determination whether malice exists, the fact finder must be guided by the quality of the defendant's conduct, its likelihood of causing death or great bodily harm, and whether it was volitional or inadvertent; not by the defendant's blood-alcohol level. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

C. UNDER THE INFLUENCE.
1. UNDER THE INFLUENCE OF ALCOHOL.

The burden is on the Commonwealth to prove that the defendant was under the influence of intoxicants, not on the defendant to prove that he was not. The Commonwealth's evidence must exclude every reasonable hypothesis of innocence. Until that is done the defendant is not required to explain or to offer evidence of his innocence. Clemmer v. Commonwealth, 208 Va. 661 , 159 S.E.2d 664 (1968).

In order to convict the defendant, it is necessary that the Commonwealth establish two things: (1) that the defendant was operating or driving a motor vehicle, and (2) that he was under the influence of intoxicants at the time he was driving or operating it. Nicolls v. Commonwealth, 212 Va. 257 , 184 S.E.2d 9 (1971).

The Commonwealth bears the burden of proving that the accused was driving under the influence of alcohol or other self-administered intoxicant. Miller v. Commonwealth, 214 Va. 689 , 204 S.E.2d 268 (1974).

Consumption of alcohol after driving. - Where there is evidence that alcohol has been consumed after driving the chemical test cannot accurately reflect the blood alcohol concentration at the time of driving since the chemical test simply cannot distinguish between two sources of alcohol, and where no alcohol is consumed between the time of driving and the time the chemical test is administered, the test results can reflect only that alcohol consumed before or during driving, and clause (i) is applicable only in these latter circumstances. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

Where the issue of whether defendant drank after an accident was disputed, and the trial court ruled that the credible evidence was insufficient to prove as a matter of law that the defendant drank after the accident, its submission of the issue to the jury was proper, as the jury was entitled to discredit defendant's evidence; when it did so, the Commonwealth could rely on the presumption that defendant was under the influence at the time of the accident. Acheson v. Commonwealth, No. 1706-03-4, 2004 Va. App. LEXIS 566 (Ct. of Appeals Nov. 16, 2004).

The prescribed measurement is an evidentiary fact which creates a rebuttable presumption that the measurement accurately reflects the blood alcohol concentration at the time of driving. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

Presumption of blood alcohol concentration at time of driving. - Where it is undisputed that appellant's blood alcohol concentration at the time of testing registered at 0.17 percent, there is a presumption that appellant's blood alcohol concentration was also 0.17 percent at the time of driving. Kehl v. Commonwealth, 15 Va. App. 602, 426 S.E.2d 127 (1993).

The prescribed measurement is an evidentiary fact which creates a rebuttable presumption. - Results of a chemical test showing that blood alcohol concentration was .10 (now .08) percent or more creates a rebuttable presumption that the measurement accurately reflects the blood alcohol concentration at the time of driving. Nelson v. Commonwealth, 16 Va. App. 266, 430 S.E.2d 553 (1993).

Being "under the influence of alcohol" is established when any person has consumed enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation. Moore v. Commonwealth, No. 0264-99-4, 2000 Va. App. LEXIS 538 (Ct. of Appeals July 25, 2000).

Test is as to whether defendant was under influence of intoxicants. - Under this section the burden is not upon the Commonwealth to prove that, while he was driving an automobile, accused was under the influence of intoxicants to such an extent that his ability to drive with safety to himself and others was thereby materially impaired. The test to be applied, in a prosecution under this section, is not merely the ability of the driver to operate the automobile with safety to himself and others, but whether or not he was under the influence of intoxicants at the time he was driving or running an automobile. Owens v. Commonwealth, 147 Va. 624 , 136 S.E. 765 (1927).

Question for jury. - In a prosecution for operating a motor vehicle while under the influence of intoxicants, there was evidence for the State that the defendant was intoxicated. The evidence given by the defendant and his witnesses was to the effect that he was not intoxicated. The resulting conflict in the evidence was for the jury to settle. Rodgers v. Commonwealth, 197 Va. 527 , 90 S.E.2d 257 (1955).

Improper jury instruction. - Jury instruction, that evidence was present of the amount of alcohol in blood of defendant at time of the accident, was factually incorrect and contrary to unrefuted, expert testimony that the test measures the amount of alcohol in the blood at the time of the test; thus, reversible error occurred. Taylor v. Commonwealth, 12 Va. App. 419, 404 S.E.2d 78 (1991).

2. NARCOTICS OR DRUGS.

Narcotic not self-administered. - Trial and appellate courts should not have found that defendant violated § 18.2-266 , driving under the influence of a narcotic drug, after defendant drove defendant's vehicle into a telephone pole following defendant's release from a hospital where defendant had been treated for severe pain; pursuant to the plain language of that statute, the narcotic had to be self-administered and no dispute existed but that the narcotics that influenced the accident were administered by medical personnel at the hospital. Jackson v. Commonwealth, 274 Va. 630 , 652 S.E.2d 111, 2007 Va. LEXIS 128 (2007).

Drugs were self-administered. - Although defendant contended that the drugs found in defendant's blood were not self-administered, the evidence was sufficient to find that defendant self-administered the drugs as required to prove a violation of driving while intoxicated, regardless of the procedure used to ingest the methadone taken by defendant at a treatment clinic before an auto accident involving defendant. Lambert v. Commonwealth, 70 Va. App. 54, 824 S.E.2d 18, 2019 Va. App. LEXIS 55 (2019), aff'd, 840 S.E.2d 326, 2020 Va. LEXIS 37 (2020).

Under the influence of drugs. - Reading §§ 18.2-51.4 and 18.2-266 (iii) together, their plain meaning is that a person violates § 18.2-51.4 when he or she recklessly causes serious bodily injury to another person resulting in permanent and significant physical impairment to that person while operating a vehicle under the influence of any narcotic drug which impairs the driver's ability to operate a motor vehicle in violation of § 18.2-266 (iii). Ratliff v. Commonwealth, 53 Va. App. 443, 672 S.E.2d 913, 2009 Va. App. LEXIS 83 (2009).

Defendant was properly convicted of recklessly causing serious and permanent bodily injury to another person while driving under the influence of narcotic drugs, as she admitted having controlled substances in her system, and § 18.2-51.4 did not apply only to those who operated a vehicle under the influence of alcohol. Ratliff v. Commonwealth, 53 Va. App. 443, 672 S.E.2d 913, 2009 Va. App. LEXIS 83 (2009).

Driving under the influence of any drug that impairs ability to drive prohibited. - Conviction of driving under the influence, § 18.2-266 , was supported by sufficient evidence under circumstances in which defendant drove while under the influence of a drug administered to him at a hospital by a nurse because the statute prohibited driving while under the influence of any drug that impaired the ability to drive. Jackson v. Commonwealth,, 2006 Va. App. LEXIS 603 (Dec. 22, 2006), rev'd on grounds that drug must be self-administered, 274 Va. 630 , 652 S.E.2d 111 (2007).

Involuntary unconsciousness defense properly rejected. - Trial court properly convicted a defendant of driving while intoxicated and did not err by rejecting his involuntary unconsciousness defense since the trial court made no factual finding that he was sleepwalking at the time of the accident due to taking prescription medication. Contrary to the defendant's contention on appeal, the trial court found that proof beyond a reasonable doubt existed that the defendant was driving under the influence based on having a blood alcohol level greater than .15, but less than .20, thus, there was a sufficient independent basis to find that he was intoxicated while driving to defeat his involuntary unconsciousness defense claim. Bradley v. Commonwealth,, 2009 Va. App. LEXIS 347 (Aug. 4, 2009).

III. EVIDENCE.
A. ADMISSIBILITY, BURDEN OF PROOF, PRESUMPTIONS.

Admission of hearsay. - Pursuant to the same-evidence principle, appellant's failure to object to the admission of the recording of his questioning and arrest, as well as his decision to cross-examine the officer about some of the contents of that recording, resulted in a waiver of his right to object on appeal to the admission of the officer's later hearsay testimony on the same subjects. Obando v. Commonwealth, No. 1190-18-4, 2019 Va. App. LEXIS 309 (Dec. 27, 2019).

Rebuttable presumption. - Where the presence of an open container of alcohol and defendant's appearance gave rise to a rebuttable presumption under § 18.2-323.1 that defendant consumed alcohol while driving, the fact that an officer did not perceive defendant to be drunk or driving under the influence did not negate the presumption because a driver did not have to be intoxicated to the extent necessary to support a conviction under § 18.2-266 in order to be found guilty of drinking while operating a motor vehicle in violation of § 18.2-323.1 . United States v. Washington, 439 F. Supp. 2d 589, 2006 U.S. Dist. LEXIS 52064 (E.D. Va. 2006), aff'd, 2009 U.S. App. LEXIS 16364 (4th Cir. Va. 2009).

Doctor's testimony was not sufficient to rebut presumption. - Doctor's testimony that it was just as likely that appellant's blood alcohol concentration at the time of driving exceeded 0.17 as it was that his blood alcohol concentration was below 0.17 percent, and that his feeling was that appellant's blood alcohol concentration was below a .10 but that his stronger feeling was that he did not think anybody can say what it was, was not sufficient to rebut the presumption that appellant's blood alcohol concentration at the time of the breathalyzer test was the same as it was at the time of the offense, one hour and 28 minutes earlier. Kehl v. Commonwealth, 15 Va. App. 602, 426 S.E.2d 127 (1993).

No presumption of intoxication where certificate inadmissible. - Where the certificate of analysis of the breath test is inadmissible, the Commonwealth is not entitled to a rebuttable presumption that defendant was intoxicated at the time of the alleged offense (where his blood-alcohol content was greater than 0.10%). Such defendant's guilt or innocence must therefore be determined from the other evidence of his condition at the time of the alleged offense. Overbee v. Commonwealth, 227 Va. 238 , 315 S.E.2d 242 (1984).

Presumption not applied. - Trial court did not err in convicting defendant of driving under the influence of alcohol in violation of § 18.2-266 because the trial court considered the totality of the evidence and did not apply any statutory presumption set forth in § 18.2-269 to defendant's blood alcohol test result shown on the certificate of analysis; the trial court emphasized its reliance on the photographs of the accident taken at the scene and the circumstantial evidence, in particular but not limited to, defendant's admission that he had consumed four twenty-two ounce beers before the accident. Bilger v. Commonwealth,, 2011 Va. App. LEXIS 371 (Nov. 29, 2011).

Probable cause to arrest. - Suppression was not warranted as to felony drug offenses because an officer had probable cause to arrest defendant for driving under the influence based on, inter alia, her slurred speech, watery eyes, driving without lights, odor of alcohol, and admission to drinking alcohol. Therefore, the officer was justified in conducting a search incident to arrest. Gunnell v. Commonwealth,, 2014 Va. App. LEXIS 97 (Mar. 18, 2014).

Validity of arrest. - Officer had probable cause to arrest defendant for driving under the influence of alcohol, because a reasonable person could have properly inferred from the totality of the circumstances that defendant had drunk enough alcohol, at the time of the accident, to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior, since: (1) the officer knew that defendant had been in a bar until nearly closing time; (2) the officer knew that defendant struck the victim while driving his motorcycle; (3) the officer observed at the hospital that defendant had a quite strong odor of alcohol about his person; and (4) the officer saw that, although defendant's only apparent injuries were scrapes and bruises, defendant's speech was slurred.See note following. Bristol v. Commonwealth, 47 Va. App. 584, 625 S.E.2d 676, 2006 Va. App. LEXIS 53 (2006), reversed, remanded, 272 Va. 568 , 636 S.E.2d 460 (2006), as to validity of arrest.

Because defendant was not validly arrested within three hours of the offenses, as required by subsection A of § 18.2-268.2 , and an officer's act of telling defendant that he was under arrest and advising him of the implied consent law was insufficient to satisfy the restraint requirement to assert his lawful authority to arrest defendant, defendant did not impliedly consent to have his blood drawn; thus, the certificate of analysis containing defendant's blood test results was inadmissible. Bristol v. Commonwealth, 272 Va. 568 , 636 S.E.2d 460, 2006 Va. LEXIS 115 (2006).

Validity of amended warrant. - Because a warrant provided defendant with notice of the nature and character of the offense with which defendant was charged, and because §§ 16.1-137 and 19.2-226 authorized the trial court to amend the warrant to delete reference to a city code, which was mere surplusage, the trial court properly denied defendant's motion to dismiss, and found defendant guilty of a second offense of driving under the influence under § 18.2-266 . Dennis v. Commonwealth,, 2008 Va. App. LEXIS 530 (Dec. 9, 2008).

Certificate not admissible where arrest took place after blood test. - Trial court erred in admitting a certificate of analysis at defendant's trial pursuant to § 18.2-268.2 , because the purported arrest for driving under the influence took place after the blood test was administered. Sprouse v. Commonwealth, 53 Va. App. 488, 673 S.E.2d 481, 2009 Va. App. LEXIS 109 (2009).

Certificate inadmissible where arrest not timely made. - Where there is no evidence that defendant was arrested within two hours of the alleged offense, the certificate showing the alcohol content of defendant's blood is inadmissible. Overbee v. Commonwealth, 227 Va. 238 , 315 S.E.2d 242 (1984).

Sobriety checkpoint. - The seizure of defendant upon the initial stop at a license and sobriety checkpoint in question was constitutionally valid, where uniformed police officers, wearing reflector vests, were assigned to the scene, the area and the warning sign were well-lighted, there were two marked police vehicles present with red lights flashing, the geography of the site permitted adequate space for the momentary initial detention to check licenses and to afford space for vehicles, whose operators required further evaluation, to pull aside, the officers at the checkpoint had no discretion regarding which vehicles to stop and every southbound vehicle was halted, if congestion occurred, vehicles were permitted to move through the checkpoint until the congestion cleared, and the police endeavored to detain a motorist no more than 30 seconds for the license check. Balancing the state's strong interest in protecting the public from the grave risk presented by drunk drivers, against the minimal inconvenience caused motorists approaching the roadblock, the action of the police was not an impermissible infringement upon defendant's reasonable expectation of privacy. Lowe v. Commonwealth, 230 Va. 346 , 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S. Ct. 1464, 89 L. Ed. 2d 720 (1986).

Admission of refusal to perform test did not violate constitutions. - Neither the Fifth Amendment nor Va. Const., Art. I, § 8 were violated by the admission in evidence of defendant's refusal to take a field sobriety test. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991).

But inferring an admission did violate Constitutions. - In a prosecution for driving under the influence in violation of § 18.2-266 as assimilated under 18 U.S.C.S. §§ 7 and 13, the trial court violated defendant's Fifth Amendment right against self-incrimination by inferring an admission of culpability from defendant's silence when defendant was advised of Virginia's implied consent statute, § 18.2-268.2 ; however, the error was harmless because sufficient independent evidence established defendant's identity as the driver of the vehicle involved in the accident in question. United States v. Hagedorn,, 2002 U.S. App. LEXIS 25762 (4th Cir. Dec. 16, 2002).

In prosecution for driving under the influence on a military base in violation of § 18.2-266 , as assimilated under 18 U.S.C.S. §§ 7, 13, the appellate court determined that the district court violated defendant's Fifth Amendment right against self-incrimination by inferring an admission that defendant was the driver of the vehicle by remaining silent in the face of being advised of Virginia's implied consent statute applicable to drivers under § 18.2-268.2 , and defendant's silence under such circumstances did not constitute an admission of culpability; however, the error was harmless because unrelated evidence established defendant's identity as the driver. United States v. Hagedorn,, 2003 U.S. App. LEXIS 1805 (4th Cir. Feb. 3, 2003).

Physical performance during field sobriety tests not protected by Fifth Amendment. - Trial court did not err in denying defendant's motion to suppress testimony regarding his field sobriety tests because an officer's failure to read defendant his Miranda warnings prior to administering the tests did not require the suppression of the results since defendant's physical performance during the tests was not protected by the Fifth Amendment; neither the physical components of the field sobriety tests nor defendant's inability to perform them constituted a testimonial communication because none of the three tests compelled defendant to reveal his knowledge, thoughts, or beliefs, but rather, they only required him to exhibit certain physical characteristics. Gibson v. Commonwealth, 57 Va. App. 772, 706 S.E.2d 541, 2011 Va. App. LEXIS 95 (2011).

Checkpoint constitutionality. - Field officer's control over the timing of a checkpoint did not constitute unbridled discretion sufficient to render the checkpoint unconstitutional; although the field officer was allowed to designate the timing of the traffic checking detail, he had no discretion to decide the location of the assigned roadblock, and he was required to obtain approval from a supervisor before he began stopping vehicles. Crouch v. Commonwealth, 26 Va. App. 214, 494 S.E.2d 144 (1997).

Field officer's limited authority to determine the specific time of a sobriety checkpoint roadblock during a particular workweek did not constitute unbridled discretion sufficient to render the checkpoint unconstitutional. Crouch v. Commonwealth, 26 Va. App. 214, 494 S.E.2d 144 (1997).

Investigative stop of vehicle. - Denial of defendant's motion to suppress evidence from a traffic stop was appropriate because a state trooper had a reasonable, articulable suspicion that defendant committed a traffic offense, leaving a lane of travel, as the trooper testified that defendant's vehicle twice crossed the white fog line on a roadway in the early morning hours and drove on the grass shoulder and a video recording from the trooper's police car indicated that defendant's vehicle veered to the right and went off the roadway, necessarily crossing the fog line. Slentz v. Commonwealth, No. 2102-16-1, 2017 Va. App. LEXIS 317 (Dec. 12, 2017).

Search and seizure. - Where an officer arrested defendant for driving under the influence of alcohol, suppression of evidence seized during an inventory search was not warranted, because the officer stopped defendant based upon the officer's observation of defendant's drifting as well as defendant's texting while driving, and the magistrate judge found the officer's specific, articulable observations to be credible. United States v. Wingle,, 2014 U.S. App. LEXIS 6596 (4th Cir. Apr. 10, 2014).

Adequate foundation for blood test results. - Defendant's conviction for DUI, third offense, was appropriate because the admitted blood test did not lack an adequate foundation, defendant admitted to an officer that she had consumed alcohol on the night of the incident, and open containers were found in her car. The hospital's record keeper testified that a member of the hospital's trauma team drew blood from defendant, that defendant received a patient record number, and that the number was a unique number that stayed with the patient throughout his or her stay; defendant's patient record number matched the patient trauma number that a member of the fire department testified that he recorded when defendant arrived at the hospital; and a forensic toxicologist provided detailed testimony about the procedure for drawing blood in a hospital setting. Barlow v. Commonwealth,, 2011 Va. App. LEXIS 112 (Apr. 5, 2011).

Admission of certificate into evidence does not implicate right to confrontation. - Trial court, in defendant's driving while intoxicated case did not err in admitting into evidence a certificate of blood alcohol analysis based on the result, contained in a certificate of analysis, from a breath test; the breath test result contained in the certificate of analysis was not hearsay evidence, pursuant to § 18.2-268.9 , and, therefore the admission into evidence of that result did not implicate defendant's constitutional right to confrontation.substituted op., on reh'g., 48 Va. App. 58, 628 S.E.2d 74 (2006) (wherein the court held that error was harmless while declining to address the constitutional issue). Luginbyhl v. Commonwealth, 46 Va. App. 460, 618 S.E.2d 347, 2005 Va. App. LEXIS 329 (2005).

Defendant waived her Sixth Amendment rights to confrontation by failing to avail herself of her statutory right under § 19.2-187.1 to subpoena the operator of a breath test in her driving under the influence trial under § 18.2-266 . Thus, it was proper to admit the certificate of the blood alcohol analysis without live testimony of the operator pursuant to §§ 18.2-268.9 and 19.2-187 . McKeel v. Commonwealth,, 2006 Va. App. LEXIS 575 (Dec. 19, 2006).

Trial court did not err in admitting a certificate of blood alcohol analysis into evidence because the statements in the certificate did not implicate the Confrontation Clause; the breath test result was not a statement made by a witness, a state trooper's testimony in the attestation clause of the certificate merely stated the trooper's opinion that he complied with approved methods in conducting the breath test, and the maintenance log for the breathalyzer was essentially a business record. Wimbish v. Commonwealth, 51 Va. App. 474, 658 S.E.2d 715, 2008 Va. App. LEXIS 168 (2008).

Defendant was properly convicted of driving while intoxicated because the trial court did not violate defendant's constitutional right to confrontation when it admitted his blood alcohol breath analysis into evidence in accordance with the terms of § 19.2-187 ; because defendant did not subpoena the booking tech who administered the blood alcohol breath analysis, he waived his opportunity to cross-examine potential witnesses. Ki-Ho Min v. Commonwealth,, 2008 Va. App. LEXIS 144 (Mar. 25, 2008).

Admission of certificate violated Confrontation Clause. - Trial court erred in admitting into evidence a certificate of blood alcohol analysis because the attestation clause included in the certificate was testimonial in nature, and its admission, over the objection of defendant, constituted a violation of the Confrontation Clause when the facts establishing the validity and admissibility of the breath test result had to be proved by live, in-court testimony; while there is no constitutional requirement that the factual predicates in § 18.2-268.9 be established prior to the admission of the results of the test, once the General Assembly conditions the validity and admissibility of the breath-test results on the proof of those facts, the Commonwealth must prove those facts through live, in-court testimony and not by affidavit. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

Admission of certificate an error. - Officer made an invalid warrantless arrest for a misdemeanor not committed in his presence as the single-vehicle accident occurred on or beside a private road in a gated, guarded residential complex; thus, the exceptions to the warrant requirement in § 19.2-81 did not apply. Therefore, the implied consent law did not apply to permit the certificate of analysis of defendant's breath test to be admitted into evidence. Roseborough v. Commonwealth, 281 Va. 233 , 704 S.E.2d 414, 2011 Va. LEXIS 13 (2011).

Admission of certificate not harmless error. - Trial court's error in admitting into evidence a certificate of blood alcohol analysis was not harmless beyond a reasonable doubt because in order to convict defendant of a per se violation under clause (i) of § 18.2-266 or invoke the presumption of intoxication afforded by subdivision A 3 of § 18.2-269 the trial court had to rely on the facts recited in the attestation clause in order to conclude that the test was conducted in accordance with the relevant statutes; the only evidence that the breath test was administered either as provided by Title 18.2, Chapter Seven, Article Two of the Virginia Code or in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 , as required by § 18.2-269 , was in the attestation clause on the certificate of analysis, and because the use of the attestation clause in the case violated the Confrontation Clause, it could not be used to prove that the breath test was administered in accordance with the relevant statutes. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

No Brady violation. - Trial court did not err by refusing to dismiss a driving under the influence of alcohol charge against defendant because assuming, without deciding, that repair records and testing logs for two Intoxilyzers were exculpatory evidence, there was no Brady violation when defendant was able to utilize that evidence at trial. Newman v. Commonwealth,, 2009 Va. App. LEXIS 360 (Aug. 11, 2009).

Breath test certificate filed prior to trial. - Defendant was properly convicted of driving under the influence, as the Commonwealth proved that the breath test certificate was filed seven days prior to trial with the clerk of the trial court as required by § 19.2-187 . Cephas v. Commonwealth, No. 3359-01-4, 2003 Va. App. LEXIS 114 (Ct. of Appeals Mar. 4, 2003).

Certificate not provided. - As defendant's request to the Commonwealth for a copy of the analysis of his breath alcohol content was in proper form, but the certificate was not provided as required by § 19.2-187 , his conviction of driving under the influence was reversed; and since the trial court expressly ruled that the remaining evidence was by itself insufficient to convict, the warrant was dismissed. Dotson v. Commonwealth, No. 1416-02-2, 2003 Va. App. LEXIS 282 (Ct. of Appeals May 6, 2003).

Certificate of blood withdrawal. - In a DWI trial, the Commonwealth was permitted to introduce evidence of a certificate of analysis of a blood vial drawn shortly after defendant's arrest, even though the certificate of blood withdrawal had become detached from the vial. Defendant was convicted based on evidence that the blood in the vial had a blood alcohol content of 0.14% by weight by volume. Williams v. Commonwealth, No. 2451-02-4, 2003 Va. App. LEXIS 597 (Ct. of Appeals Nov. 18, 2003).

Preliminary breath test results properly admitted at suppression hearing. - Where an officer read defendant an "implied consent card" and told him he was not required to take the preliminary breath test (PBT), that it was strictly "for the benefit of probable cause," and that the result of the PBT "could not be used against him in court," the advisement, though inartful, was sufficient to allow admission of the result at a suppression hearing to establish probable cause to arrest. Neatrour v. Commonwealth, No. 2090-03-4, 2004 Va. App. LEXIS 462 (Ct. of Appeals Sept. 28, 2004).

Admission of Department of Motor Vehicle record at sentencing phase proper. - Trial court did not err by admitting defendant's Department of Motor Vehicle (DMV) record into evidence at the sentencing phase of his trial for driving under the influence of alcohol (DUI) in violation of § 18.2-266 because when the jury found defendant guilty of DUI, § 46.2-943 authorized the admission of his DMV record into evidence during the sentencing phase as evidence of his prior traffic record; a DMV record is admissible evidence of a defendant's prior traffic record. Ngomondjami v. Commonwealth, 54 Va. App. 310, 678 S.E.2d 281, 2009 Va. App. LEXIS 296 (2009).

Admission of prior conviction order harmless error. - Assuming the trial court erred in admitting a prior conviction order that was signed digitally and was not a properly certified copy, any error was harmless because admitting the digitally signed conviction order had but very slight effect on the final decision; the trial court could have found that defendant had been convicted for driving while intoxicated on two other occasions by simply considering his DMV transcript that listed his convictions. Williams v. Commonwealth, No. 0219-14-1, 2015 Va. App. LEXIS 236 (Aug. 4, 2015).

Harmless error in admission of evidence. - In a case in which a jury convicted defendant of DUI, third conviction within ten years, the appellate court assumed, without deciding, that the evidence of HGN testing was scientific, yet lacked sufficient foundational evidence of reliability, and was unfairly prejudicial compared to its probative value. Any error in its admission, however, was harmless in light of the overwhelming evidence of defendant's guilt. Goldberg v. Commonwealth, No. 0007-19-1, 2019 Va. App. LEXIS 270 (Ct. of Appeals Nov. 19, 2019).

Burden of proof. - Under § 18.2-268.9 , the Commonwealth is not required to introduce evidence showing the Virginia Department of Forensic Science's compliance with subdivision B 3 of § 9.1-1101 before a certificate of blood alcohol analysis becomes admissible; rather, the substantial compliance provisions of § 18.2-268.11 indicate that the defendant has the burden of producing evidence showing noncompliance with procedural requirements like that contained in subdivision B 3 of § 9.1-1101 . Fitzgerald v. Commonwealth, 61 Va. App. 279, 734 S.E.2d 708, 2012 Va. App. LEXIS 398 (2012).

B. SCIENTIFIC TESTS.

Blood test results not required. - State's failure to comply with the implied consent law procedural requirements did not forbid a prosecution for aggravated manslaughter, blood test results were not required for a conviction under either § 18.2-266 or 18.2-36.1 . Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

No automatic right to blood test. - It does not appear that a person arrested for driving under the influence has the automatic right to a blood test. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

Former § 18.2-268 (now § 18.2-268.1 et seq.) did not entitle one charged with a violation of this section to an automatic blood test. United States v. Fletcher, 344 F. Supp. 332 (E.D. Va. 1972).

No right to alcohol tests where original arrest was for public drunkeness. - Where defendant was arrested for public drunkenness, but an off-duty officer from another county who had observed his driving later swore out a criminal complaint and persuaded a magistrate to issue a warrant against defendant for driving under the influence, defendant had not been entitled to blood or breath tests under § 18.2-268.2 . Wilson v. Commonwealth, 45 Va. App. 193, 609 S.E.2d 612, 2005 Va. App. LEXIS 84 (2005).

Effect of refusal to take blood test. - The concept of the law is that a driver, if arrested under this section, may be asked to consent to taking the blood test and for an unreasonable refusal, the penalty of a suspended license would be imposed. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

Imposition of criminal penalties for refusal to take a breath test did not transform the refusal into testimonial evidence; admission of defendant's statement of refusal to take a breath test was proper. The refusal constituted the crime, not the statement in response to an officer's question, and admission of the statement did not violate the Fifth Amendment. Acuna v. Commonwealth,, 2006 Va. App. LEXIS 306 (July 11, 2006).

Blood sample from unconscious defendant. - Implied consent law did not require an officer to obtain a blood sample from an unconscious defendant in order to be able to prosecute him for driving under the influence. Oliver v. Commonwealth, 40 Va. App. 20, 577 S.E.2d 514, 2003 Va. App. LEXIS 98 (2003).

While the taking of a blood sample from an unconscious defendant alleged to have been driving under the influence was permitted, it was not mandatory in order to prosecute defendant for driving under the influence. Oliver v. Commonwealth, 40 Va. App. 20, 577 S.E.2d 514, 2003 Va. App. LEXIS 98 (2003).

Test must relate to alcohol consumption before or during act of driving. - Because the evil which this section is intended to prohibit is driving with a specified blood alcohol concentration and because the language employed in the statute refers to driving while having a specified blood alcohol concentration, the after-administered blood alcohol concentration test results must be related to the consumption of alcohol before or during the act of driving. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

Test results presumptive. - Because the blood alcohol concentration reflected by the chemical test necessarily resulted from alcohol consumed prior to or during driving, the test results are presumptive evidence of the blood alcohol concentration at the time of driving and as such, the accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989).

Trial court did not err in treating defendant's California driving under the influence conviction as a predicate offense for a recidivism enhancement to her Virginia DUI punishment under subdivision B 3 of § 18.2-270 because the California's DUI statute was substantially similar to § 18.2-266 where in neither statute were the blood alcohol concentration presumptions mandatory or conclusive. Taylor v. Commonwealth,, 2010 Va. App. LEXIS 96 (Mar. 16, 2010).

Chemical analysis of blood alcohol content as evidence. - There is no reason why the results of a chemical analysis of blood alcohol content should not be admissible if based upon a foundation which tends to ensure the reliability of the test equipment and procedures, the integrity of the chain of custody of the blood specimen, and the technical competence of the person who performed the analysis. Whether the foundation is sufficient is a question within the sound discretion of the trial judge. If the judge finds the foundation sufficient, the credibility of the witnesses and the weight to be accorded the evidence are matters within the province of the jury. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Upon a conviction under § 18.2-266 where proof of a defendant's blood alcohol level is by a valid chemical breath or blood test, § 18.2-270 applies; to hold otherwise would defeat the purpose of § 18.2-270 . Thus, the enhanced penalty provided for in § 18.2-270 A for defendants with breath alcohol readings in excess of 0.15 applied to defendant's sentence for driving while intoxicated in violation of § 18.2-266 . United States v. Barber, 360 F. Supp. 2d 784, 2005 U.S. Dist. LEXIS 4640 (E.D. Va. 2005).

Defendant's conviction of driving while intoxicated was affirmed because the certificate of blood alcohol analysis was admissible under § 18.2-268.9 regardless of any alleged error in admitting the certificate of instrument accuracy, and, correspondingly, any error in admitting the certificate of instrument accuracy was harmless. Fitzgerald v. Commonwealth, 61 Va. App. 279, 734 S.E.2d 708, 2012 Va. App. LEXIS 398 (2012).

It was not error to deny defendant's motion to suppress an analysis of defendant's blood because officers had probable cause to believe defendant violated § 18.2-266 , so any incoherence of defendant did not abrogate defendant's implied consent to such an analysis. Martini v. Commonwealth, No. 0392-15-4, 2016 Va. App. LEXIS 67 (Mar. 8, 2016).

Defendant may contest reliability of blood alcohol concentration test. - Defendant who was convicted of operating a motor vehicle while having a blood alcohol concentration of .10 (now .08) percent may contest reliability of a blood alcohol concentration test results by proving in an appropriate case that the margin of error of a particular device was in excess of the margin deemed scientifically acceptable; however, merely proving the margin of error in a particular breathalyzer test, without more, does not as a matter of law, negate its reliability. Nelson v. Commonwealth, 16 Va. App. 266, 430 S.E.2d 553 (1993).

Requirements in order to implicate §§ 18.2-268.2 through 18.2-268.8 . - Sections 18.2-268.2 through 18.2-268.8 provide the procedural requirements for taking, handling, identifying and disposing of blood samples under Virginia's implied consent law. To implicate the statutes the driver must have operated a motor vehicle upon a public highway in this Commonwealth and have been arrested for a violation of this section (or a similar ordinance) within two hours of the alleged offense of driving under the influence of alcohol. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Applicability of testing requirements. - While the statutory requirements of § 18.2-268 (see now § 18.2-268.1 et seq.) are to be strictly applied, they apply only to DUI prosecutions under this section, and not to an involuntary manslaughter prosecution under § 18.2-36 . Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Need for cleansing procedures to comply with statute. - Because the driving under the influence (DUI) statutes specify the means for cleansing the puncture area, failure to comply with the statutory requirement would necessitate that the prosecution be dismissed. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Calibration after administration of test. - Trial court did not err in admitting breath test certificate in prosecution for driving under the influence, where calibration of breath test machine was conducted before the breath test was administered and not afterwards as required by former 1 VAC § 30-50-90 (presently 6 VAC § 20-190-110(3)); regulation was procedural, not substantive, and subtantial rather than strict compliance with its provisions was all that was necessary for the test result certificate to be admissible. Hegedus v. Commonwealth, No. 2732-00-3, 2001 Va. App. LEXIS 598 (Ct. of Appeals Oct. 30, 2001).

Procedural violation did not result in suppression. - Results of defendant's field sobriety tests and the field breathalyzer test could not be suppressed because the officer had no right to administer them since he stopped defendant outside his jurisdiction since this section did not provide for a suppression remedy for a procedural violation, and § 18.2-268.11 stated that a violation of the procedural steps of §§ 18.2-268.2 through 18.2-268.9 went to the weight of the evidence; the remedy for a procedural violation was a full and fair opportunity for both sides to attempt to prove or disprove any prejudicial effect of the violation. Ford v. Commonwealth, No. 1629-12-2, 2013 Va. App. LEXIS 367 (Dec. 10, 2013).

When breathalyzer not prerequisite to warrant. - Where an officer has probable cause to obtain an arrest warrant for driving under the influence, there is no legal requirement that the officer administer a breathalyzer test before obtaining the arrest warrant. Leonard v. County of Spotsylvania, No. 2089-96-2 (Ct. of Appeals June 3, 1997).

A chemical analysis of one's blood provides a scientifically accurate method of determining whether a person is intoxicated, removes the question from the field of speculation, and supplies the best evidence for that determination. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Chemical analysis relevant to degree of intoxication. - Proof by chemical analysis of the percentage of alcohol in the blood is relevant to a determination of the degree of intoxication. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Error to admit blood test results where failure to follow statutory mandates. - Where the government has failed in its responsibilities to follow the statutory mandates in the taking, handling, identification and disposition of blood samples under the statutory scheme, it is error to admit at trial the results of tests concerning such blood samples. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Although a nurse and police officer committed technical violations of former § 18.2-268.6 when they packaged a sample of defendant's blood for transportation to a laboratory, the violations were trivial and the trial court did not err by finding that there was substantial compliance with the statute and admitting the results of the blood test into evidence. Jones v. Commonwealth, No. 2967-02-2, 2004 Va. App. LEXIS 64 (Ct. of Appeals Feb. 10, 2004).

Waiver of right to separate sample where accused voluntarily interrupts procedure. - The government's failure to comply strictly with the statutory mandate to provide the accused with a sample of blood for independent testing resulted from the voluntary act of the accused in interrupting the completion of the blood removal process; where an accused voluntarily interrupts the blood removal procedure before the physician, nurse or technician completes that procedure, the accused, by his conduct, shall be deemed to have waived his right to an independent analysis of a separate sample as provided by §§ 18.2-268.6 and 18.2-268.7 . Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992) (decided prior to 2003 amendments to §§ 18.2-268.6 and 18.2-268.7 .)

Where defendant disrupted blood removal procedure, no error in admitting one sample. - Defendant's voluntary act in disrupting the blood removal procedure constituted a waiver of his right to a separate sample for independent testing. Thus, it was not error for the trial court to admit the results of the blood test analyzed from the one sample sent to the state laboratory by the arresting officer. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Where defendant disrupted breathalyzer test, sufficient evidence supported the trial court's finding that defendant deliberately refused to cooperate in giving a breath sample where defendant, who had two prior DUI convictions, barely blew into the breathalyzer machine during a first attempt, resulting in the apparatus not being activated, and failed a second time to blow as instructed after the arresting officer informed defendant that defendant was not performing the test properly and gave defendant another chance; defendant did not give a medical reason for not giving a valid breath sample and it was reasonable for the officer to conclude from defendant's conduct during the two attempts that defendant was not cooperating and that defendant would continue such non-cooperation if further tests were attempted. Lee Banks Walker v. Commonwealth, No. 0349-02-1, 2003 Va. App. LEXIS 246 (Ct. of Appeals Apr. 22, 2003).

Physical inability to take breath test. - Trial court erred in convicting defendant of driving under the influence in violation of § 18.2-266 because the trial court failed to rule on whether defendant was physically unable to take the breath test required by § 18.2-268.2 , and it did not resolve the conflict in the testimony; defendant testified he suffered from acid reflux, causing him to burp involuntarily, and if believed, defendant could not comply with the twenty-minute observation period, but an officer testified that he spoke with defendant for approximately thirty minutes at the scene and heard no burping, nor did he hear burping from the time of arrest until defendant was taken to jail. Packard v. Commonwealth,, 2011 Va. App. LEXIS 107 (Mar. 29, 2011).

Breath test properly performed although clerical mistake in certificate. - While the certificate of blood alcohol analysis indicated an alcohol content of ".10% grams per 210 liters of breath," deputy testified that he mistakenly included the percent sign on the certificate, that it was a clerical mistake, and that appellant's true "reading from the machine was .10" grams per 210 liters of breath. The evidence established that deputy properly performed the breath test, and the actual result comported with the statutory requirements. Murray v. Commonwealth, No. 2142-96-4 (Ct. of Appeals Nov. 4, 1997).

Absence of evidence establishing when breath test was administered went to the weight of the evidence and was a factor, as was other evidence, for jury to consider. Killingsworth v. Commonwealth, No. 2447-98-3 (Ct. of Appeals Nov. 9, 1999).

Certificate of analysis properly admitted. - Trial court did not err by admitting the certificate of analysis into evidence because the evidence established that the breath test was administered in compliance with the twenty-minute observation period required by § 18.2-268.9 ; the attestation clause that was part of the certificate of analysis admitted into evidence stated that appellant's breath test "was conducted in accordance with Department of Forensic Science specifications, one of which provided for the twenty-minute period of observation, and the testimony of the person who administered the breath test established that a police officer observed defendant for the required twenty minutes prior to the attempted test on the first Intoxilyzer before she was immediately moved to the second Intoxilyzer only a few feet away. Newman v. Commonwealth,, 2009 Va. App. LEXIS 360 (Aug. 11, 2009).

Any error by a trial court in admitting a certificate of analysis into evidence was harmless because the evidence without the certificate was sufficient to prove that defendant was driving under the influence of drugs. Hicks v. Commonwealth, No. 1093-16-3, 2017 Va. App. LEXIS 221 (Aug. 29, 2017).

Motion to suppress denied. - Trial court did not err in denying defendant's motion to suppress the blood sample obtained by a trooper following his arrest for driving under the influence because the trooper acted in good faith reliance on established law in obtaining the sample; the trooper was following the law as it existed at the time of the arrest because the law was that defendant had, by driving on the highway, impliedly consented to provide a blood or breath sample after being arrested for driving while intoxicated. Taylor v. Commonwealth, No. 0719-18-2, 70 Va. App. 182, 826 S.E.2d 332, 2019 Va. App. LEXIS 89 (Apr. 16, 2019).

C. OTHER EVIDENCE OF INTOXICATION.

Other evidence of intoxication. - Where the Commonwealth offers no chemical test results of an accused's blood or breath, the issue becomes whether the accused is under the influence, which has to be determined from all of the evidence of his condition at the time of the alleged offense. Moore v. Commonwealth, No. 0264-99-4, 2000 Va. App. LEXIS 538 (Ct. of Appeals July 25, 2000).

Detention by off-duty officer from another jurisdiction. - Off-duty officer from another county who briefly detained but did not arrest defendant for driving under the influence had not acted improperly under color of office but only did what a citizen could have done. Assuming arguendo that administering field sobriety tests implicated the "color of office" doctrine, as defendant refused to submit to the tests, there was nothing to suppress. Wilson v. Commonwealth, 45 Va. App. 193, 609 S.E.2d 612, 2005 Va. App. LEXIS 84 (2005).

Officer's question necessarily attendant to legitimate police procedure. - Trial court did not err in denying defendant's motion to suppress testimony regarding his field sobriety tests because the arresting officer's question about whether defendant had any physical problems, and defendant's response thereto, were necessarily attendant to a legitimate police procedure, administering the field sobriety tests, and the question was designed to assure the validity of the tests and not to elicit, nor did it elicit, an incriminating response; the "physical problems" question was sufficiently analogous to asking whether defendant understood the officer's instructions as to how each test was to be performed, and both questions were clearly meant to assure the validity of the test and not to elicit an incriminatory response. Gibson v. Commonwealth, 57 Va. App. 772, 706 S.E.2d 541, 2011 Va. App. LEXIS 95 (2011).

Evidence was sufficient to prove that defendant was intoxicated at the time of the accident, although the officer did not conclude that defendant was intoxicated until some 55 to 85 minutes after the accident had occurred, where defendant told officer that he had consumed six to eight beers that day and he stated that he had not had anything alcoholic to drink since the accident. Wheeling v. City of Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986).

Where defendant told the arresting officer, at the time of his arrest, that he had consumed six to eight beers that day and stated that he had not had anything alcoholic to drink since the accident, but at trial he testified that he drank a half pint of whiskey following the accident and further testified that he did not remember telling the arresting officer that he had not had anything alcoholic to drink since the accident, the jury was entitled to assess the credibility of these conflicting statements and testimony in arriving at its verdict. Wheeling v. City of Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986).

Despite defendant's contention that the Commonwealth failed to comply with the procedural requirements of a DUI charge, where given defendant's admission to being intoxicated and his statements asking what he had hit, even without a blood test, the jury properly convicted defendant on all other evidence showing he was intoxicated. Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

Where results of defendant's breath test were properly admitted, and an officer testified as to defendant's conduct at the scene leading to his arrest, the evidence was sufficient to support a finding defendant was intoxicated at the time of the accident and, thus, operated his vehicle while intoxicated. Pruitt v. Commonwealth,, 2008 Va. App. LEXIS 57 (Feb. 5, 2008).

Other evidence of intoxication. - Even if admission of blood test results in a case was error because defendant was not arrested within three hours and, thus, defendant did not give implied consent to such a test, defendant could still be convicted of driving under the influence as a fourth or subsequent offense, in violation of § 18.2-266 . Admission of such evidence was harmless where other compelling evidence was admitted of defendant driving while intoxicated. Lyle v. Commonwealth,, 2008 Va. App. LEXIS 205 (Apr. 29, 2008).

Repeated weaving within lane created reasonable suspicion. - Officer who had experience with intoxicated drivers had a reasonable and articulable suspicion to stop defendant's vehicle and investigate further, where the officer observed defendant's vehicle for 25 seconds weaving repeatedly within its lane between five and ten times over a distance of one-half mile. Neal v. Commonwealth, 27 Va. App. 233, 498 S.E.2d 422 (1998).

Evidence was sufficient to prove that defendant's intoxication caused erratic driving observed by police officer. - Although defendant claimed that an anxiety attack caused the erratic driving observed by a police officer, the trial court was not required to accept defendant's explanation, especially since there was credible evidence that defendant was intoxicated at the time. Cousins v. Commonwealth, No. 2140-02-2, 2003 Va. App. LEXIS 354 (Ct. of Appeals June 24, 2003).

Trial court's verdict was reasonable under § 8.01-680 and the evidence was sufficient to support defendant's driving under influence conviction under § 18.2-266 where: (1) defendant admitted consuming vodka that afternoon; (2) he had a half-empty bottle of vodka under the driver's seat of his wrecked car, and he attempted to get rid of the bottle before the police discovered it; (3) he attempted to flee from the scene of the accident; (4) he smelled of alcohol; and (5) he had no disabling medical condition. Rorech v. Commonwealth, No. 1085-02-4, 2003 Va. App. LEXIS 388 (Ct. of Appeals July 8, 2003).

Harmless error in admission of evidence that defendant was offered breath tests. - Although, pursuant to § 18.2-267 , the trial court erred in a DUI trial in allowing testimony that defendant was offered breath tests following a traffic stop, that evidence was harmless because there was overwhelming evidence that defendant drove while intoxicated; under § 4.1-100 , "intoxicated" meant a condition in which a person had drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior. The evidence at trial proved that defendant drove his car at a reckless speed and that, when stopped, he had an odor of alcohol about his breath, red and glassy eyes, and slurred speech, and performed poorly on field sobriety tests. Reid v. Commonwealth, No. 2162-08-1, 2009 Va. App. LEXIS 308 (July 14, 2009).

D. SUFFICIENCY OF EVIDENCE.

The evidence was sufficient to support defendant's conviction, etc. of driving under influence of intoxicants where defendant admitted having had two drinks, drove his car onto the shoulder of the road and again into the center lane, veered across the road when the trooper signalled him to stop then back again into a telephone pole, was unsteady on his feet when arrested and proposed to the officer that the charge be fixed. Doughty v. Commonwealth, 204 Va. 240 , 129 S.E.2d 664 (1963).

Conviction was supported by the evidence where it was proved defendant drove his vehicle into the rear of a bus stopped for a red light, gave no explanation for the occurrence, denied he was driving his vehicle and made conflicting statements as to who was driving, had a strong odor of alcohol on his breath, and could not satisfactorily complete certain coordination tests administered by police at the scene. Holt v. City of Richmond, 204 Va. 364 , 131 S.E.2d 394 (1963), cert. denied, 376 U.S. 917, 84 S. Ct. 672, 11 L. Ed. 2d 613 (1964).

Evidence of defendant's consumption of alcohol prior to operating his car, the manner in which he operated his car, his inability to recite accurately the alphabet, and his conduct during the testing procedure all combined to establish beyond a reasonable doubt his guilt. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Where defendant, the sole occupant of the locked vehicle stopped in the middle of the road, was asleep, slumped across the front seat with his head on the passenger side and his lower torso in the seat behind the steering wheel and although the motor was not running and the vehicle's lights were off, the key was in the ignition, turned to the on position, and the transmission mechanism was in drive, the evidence was sufficient to prove that defendant operated a motor vehicle while under the influence of alcohol. Rivers v. Commonwealth, No. 1222-92-1 (Ct. of Appeals May 24, 1994).

A defendant's admission that he consumed several alcoholic beverages, together with the testimony of the arresting officer regarding the defendant's appearance and lack of coordination, was sufficient to support a conviction for driving under the influence of alcohol. Lemond v. Commonwealth, 19 Va. App. 687, 454 S.E.2d 31 (1995).

Evidence was sufficient to prove beyond a reasonable doubt that defendant was intoxicated where he stopped his vehicle in the travel lane of a public road in the middle of the night and got out to clean it; staggered as he walked; had an odor of alcohol about him; slurred his speech; failed a sobriety test; and admitted earlier alcohol consumption. Leake v. Commonwealth, 27 Va. App. 101, 497 S.E.2d 522 (1998).

Evidence was sufficient to support defendant's conviction of driving under the influence of alcohol (DUI), third or subsequent offense, in violation of §§ 18.2-266 , 18.2-270 , where defendant was stopped after a police officer saw defendant's vehicle weaving on the road; defendant had two prior DUI convictions; defendant admitted that defendant had consumed alcohol two hours before the stop; and defendant had a strong odor of alcohol, gave incoherent responses, was unsteady, and failed three field sobriety tests. Lee Banks Walker v. Commonwealth, No. 0349-02-1, 2003 Va. App. LEXIS 246 (Ct. of Appeals Apr. 22, 2003).

Where the form provided defendant listed only one approved laboratory where defendant could have second vial of blood tested, trial court properly refused to dismiss driving under the influence charges because a deputy's observations of defendant's movements would have supported a conviction even without blood tests. Cutright v. Commonwealth, 43 Va. App. 593, 601 S.E.2d 1, 2004 Va. App. LEXIS 398 (2004).

Sufficient evidence, including defendant's extreme intoxication that could be detected by an officer; his admissions; and act of driving while ignoring traffic signals and running a red light, striking a vehicle without slowing down or braking and questioning what he hit, even absent admission of a hospital toxicology report, supported his aggravated involuntary manslaughter conviction. Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

Defendant's aggravated involuntary manslaughter conviction was upheld on appeal, as the trial court did not err by: (1) failing to foreclose prosecution of the aggravated involuntary manslaughter charge on the ground that the Commonwealth did not comply with the procedural requirements of a driving under the influence charge; (2) failing to exclude a hospital toxicology report based on insufficient proof of reliability; (3) failing to instruct the jury on criminal negligence; and (4) finding the evidence sufficient to prove he was guilty of aggravated involuntary manslaughter, as (a) evidence of defendant's intoxication was overwhelming without the need for blood test results, given defendant's admissions and eyewitness testimony about strong odor of alcohol on his person; (b) the State's failure to substantially comply with the procedural requirements for testing blood and breath samples under the implied consent law did not apply to a prosecution under § 18.2-36.1 or 18.2-266 ; (c) trial court did not abuse its discretion in refusing to admit one instruction on grounds that it might have confused the jury, and two other instructions, as redundant; and (d) along with defendant's intoxication, the combination of defendant's act of ignoring traffic signals and running a red light and the lack of skid marks showing no evidence of him braking or attempting to slow down, provided sufficient evidence to establish his gross, wanton, and culpable conduct. Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

Because a witness saw defendant spinning a truck around a pasture in an effort to get onto a road and defendant, who was later found on foot, admitted ownership of the truck and that defendant was intoxicated, the evidence was sufficient to convict defendant of driving while intoxicated. Pickard v. Commonwealth,, 2005 Va. App. LEXIS 195 (May 17, 2005).

In a DWI case, even if the admission of a written breath test analysis result and the accompanying certificate violated the Confrontation Clause because the evidence was "testimonial," the error was harmless. The other evidence, including defendant's statement that he was drunk and that he was an alcoholic, his glassy, bloodshot eyes, his smell of alcohol, his admission that he had had six to eight drinks of vodka, and his failure of field sobriety tests, proved guilt beyond a reasonable doubt without the test result. Luginbyhl v. Commonwealth, 48 Va. App. 58, 628 S.E.2d 74, 2006 Va. App. LEXIS 170 (2006).

Where defendant's vehicle struck a barricade near a military base's gate, defendant's convictions for operating a motor vehicle on a military reservation while impaired by an intoxicant and operating a motor vehicle as an habitual offender while impaired by an intoxicant were upheld because substantial evidence supported the finding that defendant was intoxicated since it was clear that defendant's alcohol consumption so affected defendant's manner, disposition, speech, muscular movement, general appearance or behavior as to be apparent to observation. United States v. Scott, 188 Fed. Appx. 213, 2006 U.S. App. LEXIS 16899 (4th Cir. 2006).

Defendant's challenge to the sufficiency of the evidence to support a conviction under § 18.2-266 (i), failed because, inter alia, the jury could have discounted the Commonwealth's evidence of a .20 blood alcohol concentration (BAC), while also discounting the toxicologist's low-ball BAC as naively reliant on defendant's self-serving claim that defendant had no more than five beers that night; further, evidence of defendant's erratic driving, the smell of alcohol on defendant's breath, defendant's glassy eyes, defendant's slurred speech, and defendant's failure of three field sobriety tests eliminated any challenge to the sufficiency of the evidence. Morin v. Commonwealth,, 2007 Va. App. LEXIS 346 (Sept. 18, 2007).

Trial court did not err in finding defendant guilty of driving under the influence of alcohol, second offense within ten years, in violation of clause (ii) of § 18.2-266 because a rational trier of fact could have found that defendant was operating her vehicle while under the influence of alcohol; defendant admitted to a police officer that she had been drinking alcohol, and she failed to perform her field sobriety tests correctly. Brown v. Commonwealth,, 2008 Va. App. LEXIS 158 (Apr. 8, 2008).

Evidence in the record supported the trial court's finding that defendant was guilty of driving under the influence of alcohol because the trial court did not arbitrarily reject evidence that defendant's breath test result was elevated as a result of her earlier use of spackle, paint, and cleaner and by the deployment of her airbag after her collision; the trial court was free to accept or reject all or part of defendant's testimony regarding her use of specific painting and spackle products. Newman v. Commonwealth,, 2009 Va. App. LEXIS 360 (Aug. 11, 2009).

Evidence was sufficient to prove defendant was under the influence of alcohol pursuant to clause (ii) of § 18.2-266 because the trial court was entitled to reject defendant's statements concerning a physical disability regarding his legs, and defendant performed three additional field sobriety tests that did not involve use of his legs, failing all three. Newcomb v. Commonwealth,, 2009 Va. App. LEXIS 422 (Sept. 22, 2009).

Evidence was sufficient to support defendant's DUI conviction where defendant ingested unprescribed narcotic pills prior to driving, drove well below the posted speed limit and swerved twice between the traffic lane and the shoulder, pulled over into a residential driveway and overshot the driveway leaving the vehicle teetering on three wheels, appeared intoxicated, confused, disoriented, and unsteady on her feet, and failed two field sobriety tests. Taylor v. Commonwealth,, 2010 Va. App. LEXIS 96 (Mar. 16, 2010).

While it was undisputed that defendant did not put the vehicle in motion so as to drive it, defendant's conviction for driving or operating a vehicle under the influence of alcohol was supported by evidence that defendant seized actual control of the vehicle when defendant switched seats with another individual in an effort to represent herself as the operator of the vehicle. Rix v. Commonwealth, 56 Va. App. 749, 697 S.E.2d 33, 2010 Va. App. LEXIS 332 (2010).

Appellant's conviction for operating a motor vehicle while under the influence of alcohol, a second or subsequent offense, was affirmed where: (1) the police found appellant alone, heavily intoxicated, behind the wheel of his own car minutes after a report that the car was traveling in the wrong lane of traffic; and (2) appellant admitted he was traveling to Crewe, and he further stated he pulled off the road because the lights from oncoming traffic frightened him. Thompson v. Commonwealth,, 2010 Va. App. LEXIS 265 (July 6, 2010).

Defendant's conviction for driving under influence under § 18.2-266 was supported by the reporting witness' testimony that the witness saw people exit the car fight after hearing a "loud bang," shortly thereafter the witness found defendant lying in the front seat of the vehicle, and defendant attempted to leave scene of the accident. Shorter v. Commonwealth,, 2010 Va. App. LEXIS 327 (Aug. 10, 2010).

Conviction for driving while under influence of drugs under § 18.2-266 was upheld, as defendant failed to prove the affirmative defense of involuntary intoxication where the evidence showed that defendant drove around two vehicles before hitting a third, defendant successfully pulled over and stopped his car after striking the vehicle, defendant used a cell phone while in his car roadside, and defendant was able to communicate with the investigating officer and, albeit unsuccessfully, attempt to perform field sobriety tests. Shortt v. Commonwealth,, 2010 Va. App. LEXIS 442 (Nov. 9, 2010).

Totality of the evidence supported the trial court's finding that defendant was under the influence of alcohol in violation of § 18.2-266 when he overturned his vehicle because a deputy testified that when he arrived at the scene of the accident he detected a strong odor of alcohol emanating from defendant, defendant admitted that he had consumed four twenty-two ounce beers before the accident, and a blood sample taken shortly after the accident revealed alcohol in defendant's blood; the trial court was entitled to evaluate and either accept or reject defendant's assertion that placing chewing tobacco in his mouth and catching his flip-flop on the accelerator caused him to overturn his vehicle. Bilger v. Commonwealth,, 2011 Va. App. LEXIS 371 (Nov. 29, 2011).

Evidence that showed beyond a reasonable doubt that defendant was drunk, that he was seated behind the steering wheel of his vehicle on a public street, and that the key was in the ignition switch of the car was sufficient to support defendant's conviction for driving or operating a motor vehicle while under the influence of alcohol under § 18.2-266 . Enriquez v. Commonwealth, 283 Va. 511 , 722 S.E.2d 252, 2012 Va. LEXIS 49 (2012), cert. denied, 133 S. Ct. 428, 2012 U.S. LEXIS 8068, 184 L. Ed. 2d 258 (U.S. 2012).

Evidence was sufficient to find defendant guilty of driving under the influence as it showed that defendant had a blood alcohol content level of 0.23 per 210 liters of breath according to a breathalyzer test taken shortly after defendant was apprehended, which was 15 minutes after an officer saw defendant flee the scene of a DUI checkpoint. Defendant did not object to the admission of the blood alcohol content certificate, and the Commonwealth's own evidence did not rebut the permissible inference. Simmons v. Commonwealth,, 2012 Va. App. LEXIS 204 (June 19, 2012).

Evidence that defendant was seated behind the steering wheel of his motor vehicle, that he was intoxicated, and that the key was in the ignition switch of the vehicle in the auxiliary position was sufficient to convict defendant of operating a motor vehicle while under the influence of alcohol. Sarafin v. Commonwealth, 62 Va. App. 385, 748 S.E.2d 641, 2013 Va. App. LEXIS 271 (2013).

Evidence was sufficient to establish that defendant's blood alcohol level was 0.08 percent at the time when defendant was driving because, even if the Commonwealth of Virginia could not pinpoint defendant's precise blood alcohol content at the time, the jury could have concluded that defendant's actual blood alcohol content at the time when defendant was driving would have been higher than the 0.08 percent level at which defendant tested several hours later. Harris v. Commonwealth,, 2014 Va. App. LEXIS 108 (Mar. 25, 2014).

Rational trier of fact could have found that defendant was operating his vehicle while under the influence of alcohol, given his suspicious driving behavior, his admission that he had two shots of liquor prior to driving, the strong odor of alcohol, and his failure to perform well on sobriety tests, and the finding that he was guilty was not plainly wrong. Oliver v. Commonwealth,, 2015 Va. App. LEXIS 75 (Mar. 10, 2015).

Evidence supported defendant's conviction for driving while intoxicated because (1) defendant did not challenge that the evidence showed that defendant was intoxicated; and (2) although no witness actually saw defendant drive the car defendant was found beside it in a private driveway that was accessible from a public roadway, defendant's statements regarding whether or not defendant hit something with the car as defendant attempted to change the tires on the car was sufficient to conclude that defendant had driven the car on a public roadway. Ramos v. Commonwealth,, 2015 Va. App. LEXIS 270 (Sept. 22, 2015).

Sufficient evidence supported defendant's conviction for driving under the influence because evidence of defendant's unsteady gait, slurred and nonsensical speech, and apparent consumption of a large amount of prescription medication showed defendant was under an intoxicant's influence. Martini v. Commonwealth, No. 0392-15-4, 2016 Va. App. LEXIS 67 (Mar. 8, 2016).

Evidence was sufficient to conclude that defendant was guilty of driving while under the influence because defendant's own statements established that he had consumed alcohol the evening before driving, and upon arrival at the parking facility for his condominium, defendant exhibited signs of intoxication and had an odor of alcohol about him; the circumstances, taken together, sufficiently supported the factfinder's conclusion that defendant had driven his car while drunk. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Stipulation that defendant's blood-alcohol concentration at the time of the accident was above 0.08 and the trial court's finding that he had control momentarily enough to have fought for the wheel was sufficient to convict defendant of DUI. Synan v. Commonwealth, 67 Va. App. 173, 795 S.E.2d 464 (2017).

Sufficient evidence supported defendant's conviction for driving while under the influence of drugs because defendant, after defendant was arrested and Miranda rights were read to defendant following an auto accident admitted that defendant took narcotic drugs before the crash and the narcotic drugs were found in defendant's system in a blood test. Moreover, a state trooper testified that defendant was unsteady, had glassy eyes and slurred speech, and failed field sobriety tests. Hicks v. Commonwealth, No. 1093-16-3, 2017 Va. App. LEXIS 221 (Aug. 29, 2017).

Evidence was sufficient to support defendant's conviction for driving while intoxicated, third or subsequent offense within ten years because defendant was drinking alcoholic beverages while driving, and he failed to notice or deliberately disregarded traffic signs at an intersection where he made an illegal right turn; a strong odor of alcohol emanated from defendant, his speech was slurred, he was uncooperative with an officer's attempts to conduct a field sobriety test, and he fled from the officer. Hedgpeth v. Commonwealth, No. 0107-17-1, 2017 Va. App. LEXIS 341 (Dec. 27, 2017).

Evidence was sufficient to support defendant's conviction for driving under the influence under either the per se intoxication or the actual impairment theory of guilt because a test of defendant's blood that was taken shortly after defendant was driving a car indicated that defendant's blood alcohol concentration was greater than the legal limit, while a police officer testified that defendant drove erratically, nearly striking a construction barrel, and had a moderate smell of alcohol on defendant's breath. Aloudah v. Commonwealth, No. 0328-17-4, 2018 Va. App. LEXIS 37 (Feb. 13, 2018).

Evidence supported defendant's conviction for driving under the influence of self-administered intoxicants at the time of a collision because defendant admitted to a state trooper at the accident scene that defendant had just received a dose of methadone at a treatment clinic, while a doctor testified that the level of methadone in defendant's blood was significant and that the drug could have caused depressant effects that impaired the ability to drive. There also was a lack of evidence that defendant consumed anything after the accident. Lambert v. Commonwealth, 70 Va. App. 54, 824 S.E.2d 18, 2019 Va. App. LEXIS 55 (2019), aff'd, 840 S.E.2d 326, 2020 Va. LEXIS 37 (2020).

Evidence supported defendant's driving while intoxicated conviction because the evidence was sufficient that defendant had, prior to an auto accident, self-administered drugs that impaired defendant's ability to drive safely as defendant admitted to a state trooper at the accident scene that defendant had just come back from a local methadone treatment center where defendant received a treatment of methadone and a blood analysis confirmed the presence of methadone and drugs commonly known as Valium and Xanax in defendant's blood. Lambert v. Commonwealth, 298 Va. 510 , 840 S.E.2d 326, 2020 Va. LEXIS 37 (2020).

Evidence held insufficient to support conviction of driving under the influence of intoxicants. Fowlkes v. Commonwealth, 194 Va. 676 , 74 S.E.2d 683 (1953).

Evidence establishing that defendant was intoxicated fifty-five minutes after being involved in an accident was not sufficient to support a jury finding that he was intoxicated at the time of the accident. Coffey v. Commonwealth, 202 Va. 185 , 116 S.E.2d 257 (1960).

The manner in which the accident occurred, the appearance and behavior of defendant, and his bizarre conduct generally, constituted sufficient evidence to engender a probability of guilt. However, the evidence failed to establish that the drinking of alcohol or the self-administering of drugs caused this conduct, and, in its absence, the court of appeals was unable to conclude that beyond a reasonable doubt defendant operated his automobile under the influence of alcohol or some self-administered drug. Clemmer v. Commonwealth, 208 Va. 661 , 159 S.E.2d 664 (1968).

The evidence was not such that one could infer from it a tacit admission by defendant that he had been drinking, or was under the influence of alcohol. Clemmer v. Commonwealth, 208 Va. 661 , 159 S.E.2d 664 (1968).

Trial court did not err in finding the essential elements of driving under the influence, third offense, beyond a reasonable doubt because defendant's blood alcohol content was 0.128 percent; thus, the trial court could infer that defendant was under the influence of alcohol intoxicants at the time of the offense. Taylor v. Commonwealth, No. 0719-18-2, 70 Va. App. 182, 826 S.E.2d 332, 2019 Va. App. LEXIS 89 (Apr. 16, 2019).

Probable cause for arrest found. - Trial court's entry of an order granting defendant's motion to suppress was reversed as the police had probable cause to arrest defendant for driving under the influence, making the search incident to a lawful arrest constitutional, where: (1) defendant failed to stop at an intersection controlled by a stop sign and did not signal a turn; (2) the officer smelled alcohol as defendant rolled down his window and defendant denied consuming any alcohol; (3) his movements were slow, his speech was somewhat slurred, and his eyes were glassy and bloodshot; (4) defendant successfully completed the counting field sobriety test; and (5) defendant did not follow the officer's instructions on the alphabet sobriety test, and put his foot down and used his arms to maintain balance on the stork stand sobriety test. Commonwealth v. Elliott, No. 1000-03-2, 2003 Va. App. LEXIS 467 (Ct. of Appeals Sept. 4, 2003).

Trial court did not err in denying defendant's motion to suppress because defendant's Fourth Amendment rights were not violated where a police officer had probable cause to stop and arrest him for driving under the influence after removing him from his vehicle when, in addition to defendant's physical appearance and refusal to take a breathalyzer test, defendant drove his vehicle partially up on to the curb of a heavily populated sidewalk in an area where bars had just closed, refused to cooperate with the officer's requests, leaned towards the center console of the vehicle, and admitted to consuming alcohol that evening. Osman v. Commonwealth,, 2015 Va. App. LEXIS 379 (Dec. 15, 2015).

IV. PUNISHMENT.
A. CONVICTIONS, SENTENCING, ETC.

Degree of intoxication relevant to punishment. - The defendant's degree of intoxication is relevant to a determination of the appropriate quantum of punishment. Voluntary intoxication, in the case of a driver, is an aggravating factor properly considered for this purpose. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Intoxication relevant as aggravating factor bearing on culpability of conduct. - The same reckless driving is more dangerous at the hands of a drunken driver than it would be if he were sober, and his conduct is therefore more culpable. Intoxication, therefore, is relevant as an aggravating factor, increasing with its degree, bearing upon the relative culpability of the defendant's conduct, even though it is irrelevant to the determination of malice. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Degree of intoxication is aggravating factor when death is proximate result. - When death is the proximate result of criminal negligence in the operation of a motor vehicle, the degree of a driver's intoxication is relevant as an aggravating factor, tending to show the relative dangerousness of his conduct. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Sentence found to be reasonable. - District court's 15-month sentence imposed upon defendant's guilty plea to driving under the influence (third offense), a violation of 18 U.S.C.S. § 13, assimilating §§ 18.2-266 and 18.2-270 , and driving on a suspended driver's license (third offense), a violation of 18 U.S.C.S. §§ 7, 13, assimilating § 46.2-301 , was proper because (1) the sentence was not plainly unreasonable under 18 U.S.C.S. § 3742(e) given the district court's consideration of defendant's three drunk driving convictions in a short time frame; (2) the district court also considered the provisions under 18 U.S.C.S. § 3553 in imposing sentence; and (3) allowing the 15-month sentence to run consecutive to the sentence he was serving for violating his probation was not plain error under U.S. Sentencing Guidelines Manual. United States v. Floresdelgado,, 2005 U.S. App. LEXIS 6121 (4th Cir. Apr. 13, 2005).

Discretion to impose fine. - Jury had the discretion under subsection C of § 18.2-270 to fine defendant $2,500 for his fourth offense under this section. By setting a mandatory minimum fine of $1,000, § 18.2-270 C gave a jury the discretion to impose a larger fine, and as the more specific statute, it controlled over § 18.2-10 , which applied to Class 6 felonies in general. Neria v. Commonwealth, No. 3088-07-4,, 2009 Va. App. LEXIS 136 (Ct. of Appeals Mar. 24, 2009).

Prohibition on driving as a condition of probation. - There was no statutory conflict between defendant's status as a licensed driver and a condition of probation that prohibited him from actually driving. The condition of probation did not affect defendant's license to drive but rather only required him to refrain from doing so while on probation as a measure of protection to the public that otherwise could only be achieved through defendant's incarceration. Garibaldi v. Commonwealth, 71 Va. App. 64, 833 S.E.2d 915, 2019 Va. App. LEXIS 243 (2019).

Double jeopardy established. - Although a circuit court had discretion under § 16.1-137 to amend a defective warrant, defendant's double jeopardy rights were violated when the circuit court, in an appeal de novo under § 16.1-136, improperly amended the warrant to charge driving under the influence (DUI) second offense under § 18.2-266 after defendant had been acquitted of that charge by a district court, which had then convicted defendant of a lesser offense of DUI first offense. Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771, 2007 Va. App. LEXIS 78 (2007).

Although a circuit court had discretion under § 16.1-137 to amend a defective warrant, defendant's double jeopardy rights were violated when the circuit court, in an appeal de novo under § 16.1-136, improperly amended the warrant to charge driving under the influence (DUI) second offense under § 18.2-266 after defendant had been acquitted of that charge by a district court, which had then convicted defendant of a lesser offense of DUI first offense. Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771, 2007 Va. App. LEXIS 78 (2007).

Multiple convictions arising out of same act not barred. - Section 19.2-294 does not bar multiple convictions arising out of the same act if they are prosecuted simultaneously. Thus where warrants for involuntary manslaughter and driving while under the influence of alcohol were issued at the same time, although the charges were heard at different times in different courts, because the charges were initiated simultaneously, the proceedings were concurrent, not successive, and thus, both convictions were permitted under § 19.2-294 . Doss v. Commonwealth, No. 2003-93-3, 1995 Va. App. LEXIS 425 (May 9, 1995).

Although defendant had already been convicted of driving under the influence under § 18.2-266 from the same incident, his conviction for eluding a police officer under subsection B of § 46.2-817 was not barred by § 19.2-294 because the specific acts serving as basis for prosecution of the offenses were separate and distinct in that the same evidence would not produce a conviction for both offenses. Wolford v. Commonwealth,, 2006 Va. App. LEXIS 513 (Nov. 14, 2006).

Person acquitted under section could be prosecuted for involuntary manslaughter. - The doctrine of collateral estoppel may not bar the prosecution for involuntary manslaughter of a person previously acquitted of driving under the influence of intoxicants, since the issue of intoxication is not necessarily dispositive of the crime of involuntary manslaughter. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

But evidence of intoxication would be barred. - Although the defendant could be tried for involuntary manslaughter, even though he previously had been acquitted of driving under the influence of intoxicants based upon failure of the Commonwealth to prove legal intoxication, since the issue of intoxication is not necessarily dispositive of the crime of involuntary manslaughter, the Commonwealth should have been barred, under the doctrine of collateral estoppel, from introducing in the manslaughter trial evidence to show that the defendant was intoxicated while operating the motor vehicle. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

Though consumption of alcohol could be shown. - If the Commonwealth elected to try a defendant who previously had been acquitted of the offense under this section for involuntary manslaughter, the Commonwealth would not be estopped from introducing evidence to show that the defendant consumed alcohol shortly before the accident in question, since the quantity of alcohol consumed by an automobile driver, even though not enough to cause legal intoxication, may be sufficient to impair his capacity to perceive the dangers with the clarity, make decisions with the prudence, and operate the vehicle with the skill and caution required by law. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979).

Denial of bifurcation not error. - Where defendant was charged with operating a motor vehicle while intoxicated, the fourth offense in 10 years, the trial court did not abuse its discretion in denying a motion to bifurcate the guilt phase of the trial from the evidence of recidivism because any potential prejudice was resolved by a limiting instruction. Nelson v. Commonwealth,, 2010 Va. App. LEXIS 42 (2010), aff'd, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

Where defendant was charged with operating a motor vehicle while intoxicated, the fourth offense in 10 years, the trial court did not abuse its discretion in denying a motion to bifurcate the guilt phase of the trial from the evidence of recidivism because any potential prejudice was resolved by a limiting instruction. Nelson v. Commonwealth,, 2010 Va. App. LEXIS 42 (2010), aff'd, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

Reversal of subsequent conviction necessitated. - Where defendant was charged and convicted of both § 19.2-294.1 offenses, driving under the influence (DUI) and reckless driving, and the evidence was undisputed that the alleged misconduct was intimately related in time and distance, arising from and connected by one continuous, uninterrupted operation of defendant's motor vehicle, under such circumstances, the legislature clearly intended that a conviction of one offense result in a dismissal of the other. Accordingly, defendant's subsequent conviction for DUI should have been reversed. Harris v. City of Va. Beach, 19 Va. App. 214, 450 S.E.2d 401 (1994).

Confusing instruction properly refused. - It was not error to refuse an instruction that defendant might be thought guilty of reckless driving yet not be guilty of driving while drunk. This would have been confusing to the jury, directing their attention to an offense with which defendant was not charged. Mawyer v. Commonwealth, 203 Va. 898 , 128 S.E.2d 433 (1962).

No error in denying motion for mistrial based on attorney's statements. - Trial court did not err in denying defendant's motion for a mistrial based on improper statements made by the Commonwealth's attorney. The factual basis for the argument arose when the Commonwealth's attorney referred to defendant as an "alcoholic" during the cross-examination of one of defendant's witnesses and referred to defendant's "ability to throw back quite a few [alcoholic drinks] at a time" during the cross-examination of another defense witness. These statements were clearly improper. However, it is just as clear that the trial court sustained defendant's objections, gave no consideration to the objectionable statements, and "[tried] the case just on the evidence that [came] before [it] and nothing else." Accordingly, no prejudice resulted. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Claim not raised in petition for appeal. - Defendant's contention that she could not be convicted of both a DUI second offense and a DUI third offense in one proceeding was barred both by her failure to object contemporaneously to that procedure at trial, as required by Va. Sup. Ct. R. 5A:18, and by her failure to assign error to that procedure in her petition for appeal, as required by Va. Sup. Ct. R. 5A:12(c)(1). Staiger v. Commonwealth, No. 0652-15-2, 2017 Va. App. LEXIS 2 (Ct. of Appeals Jan. 10, 2017).

B. HABITUAL OFFENDER RULES.

Evidence of prior conviction. - In convicting defendant of driving under the influence, the trial court did not err in admitting evidence of prior DUI conviction, as the arrest warrant constituted an official document, and the trial court properly consulted the warrant as evidence of the ordinance under which defendant was previously convicted in taking judicial notice of its provisions. Webb v. Commonwealth, No. 2749-01-2, 2003 Va. App. LEXIS 138 (Ct. of Appeals Mar. 18, 2003).

Extent of out-of-state conviction conformance necessary. - In order to adjudicate a defendant an habitual offender based upon a conviction from another state, only that prohibition of the other state's law under which the person was convicted must substantially conform to this section. Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995).

It is not required that another state's law regarding driving while under the influence of intoxicants or drugs conform in every respect to this section in order for an out-of-state conviction to be used as a predicate offense; only that portion of the other state's law under which the person was convicted must substantially conform. Commonwealth v. Lowe, 31 Va. App. 806, 525 S.E.2d 636 (2000).

Where defendant's charging documents and records of conviction referred to Md. Code Ann., Transp. § 21-902(a), the record did not give rise to a reasonable inference that the statutes on which defendant's prior convictions were based substantially conformed to this section, and on the contrary, the record left open the possibility that defendant was convicted under Md. Code Ann., Transp. § 21-902(a), which was not substantially similar to § 18.2-266 , the appellate court found that the district court abused its discretion in accepting defendant's guilty plea to fourth offense DWI. United States v. Thomas, 367 F.3d 194, 2004 U.S. App. LEXIS 8734 (4th Cir. 2004).

Predicate conviction. - A conviction under clause (i) of this section is a predicate conviction to a finding of habitual offender status under former § 46.2-351 . Flaherty v. Commonwealth, 14 Va. App. 148, 415 S.E.2d 867 (1992).

Where an enhanced driving under the influence (DUI) punishment was statutorily activated by a conviction or an offense within 10 years pursuant to former § 18.2-270 , defendant could be convicted of a third offense DUI in violation of § 18.2-266 even though a trial was pending on a second offense. Williams v. Commonwealth, 265 Va. 268 , 576 S.E.2d 468, 2003 Va. LEXIS 22 (2003).

Trial court erred by imposing an enhanced sentence, pursuant to subsection C of § 18.2-270 , against a defendant based upon his prior conviction for DWI under 36 C.F.R. § 4.23(a)(2) where said regulation was not substantially similar to a conviction under § 18.2-266 , as a conviction under federal law did not translate into a conviction under the state law. Corey v. Commonwealth, No. 0421-02-4, 2003 Va. App. LEXIS 582 (Ct. of Appeals Nov. 12, 2003).

In a case of driving under the influence (DUI), third or subsequent offense within a five-year period, the doctrine of collateral estoppel did not apply to preclude the Commonwealth from using defendant's 2010 DUI conviction as a predicate offense under the penalty provisions for DUI because defendant was not seeking to preclude the Commonwealth from relitigating a factual finding made in the 2012 proceeding, but was attempting to bind it to an evidentiary ruling that his 2010 DUI conviction could not be used to support DUI, second offense, as he was not advised of his constitutional rights prior to pleading guilty; and the 2010 DUI conviction remained a valid and existing conviction for sentencing enhancement purposes. Commonwealth v. Leonard, 294 Va. 233 , 805 S.E.2d 245, 2017 Va. LEXIS 148 (2017).

Evidence of prior driving under the influence (DUI) convictions does not constitute the "traffic record" as contemplated by § 46.2-943 where the offense charged under this section is a subsequent offense of DUI punishable under § 18.2-270 . Proof of such charge requires proof of the prior DUI convictions, and a trial court, therefore, does not err in admitting evidence of a defendant's prior DUI convictions independent of his prior traffic record during the guilt stage of the trial. Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990).

In a DUI second offense trial, the burden is on the Commonwealth to prove the prior conviction beyond a reasonable doubt. McBride v. Commonwealth, 24 Va. App. 30, 480 S.E.2d 126 (1997).

Because the Commonwealth offered no evidence to rebut the presumption that defendant was not found guilty of violating this section in the prior proceeding, the trial court's conclusion that he had a prior conviction lacked evidence to support it. McBride v. Commonwealth, 24 Va. App. 30, 480 S.E.2d 126 (1997).

To be considered under Habitual Offender Statute, conviction in another state must be based on conduct which violates this section. - If a conviction in another state is based on conduct which is not a violation of this section, then to consider it under former § 46.2-351 would, without authority, expand the scope of the convictions which could be considered beyond that which the General Assembly specifically authorized. Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991).

To allow a conviction in another state to be the basis for a finding that a person is an habitual offender would expand former § 46.2-351 beyond its stated limits if the conviction in the other state was based on an act which would not be a violation of this section. Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991).

Another state's law permitting a conviction for an act not constituting an offense under this section is not substantially conforming under former § 46.2-351 . Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991).

Notice of charges. - Defendant's argument that, despite his failure to give proper notice of his challenge to the constitutionality of a local DUI code section, the trial court should have considered the challenge in the "interests of justice" failed; notwithstanding the validity of any provision of the local code, each warrant, the one charging the instant DUI offense, and the one charging the underlying 1998 prior DUI offense, described the offense charged and cited both the state code section, § 18.2-266 , and the local code section, Newport News, Va., City Code § 26-72. Accordingly, in each instance, defendant was properly informed of the nature and character of the charge against him and he was in fact, convicted and sentenced for DUI in violation of § 18.2-266 , the state statute, which he did not challenge. Artis v. Commonwealth,, 2008 Va. App. LEXIS 502 (Nov. 12, 2008).

Lack of conviction for second offense not impediment to charge third offense. - Terms of subdivision C 1 of § 18.2-270 are clear and unambiguous: to receive the enhanced punishment, a person must have been convicted of three violations of § 18.2-266 that occurred within a ten-year period; there is no mention of driving while under the influence, second offense, in either subdivision C 1 of § 18.2-270 or in this section, and thus, such a charge is not a predicate for imposition of the enhanced penalties found in subdivision C 1 of § 18.2-270. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Conviction for third offense upheld. - Defendant who had one conviction for driving under the influence (DUI) and was awaiting trial on a second DUI charge when he was arrested and charged with a third DUI was properly convicted of felony DUI for the third incident, pursuant to §§ 18.2-266 and 18.2-270 , once he was also convicted of the second DUI charge. Williams v. Commonwealth, 38 Va. App. 414, 565 S.E.2d 328, 2002 Va. App. LEXIS 369 (2002), aff'd, 265 Va. 268 , 576 S.E.2d 468 (2003).

Trial court properly sentenced because defendant had two prior driving under the influence convictions in the preceding ten years; a conviction order established that defendant pleaded guilty to a charge of DUI in violation of § 18.2-266 , the sentence imposed in the prior case was consistent with a violation of § 18.2-266 , and the DMV transcript also stated that the conviction was for a violation of § 18.2-266. Parsons v. Commonwealth, No. 0269-15-1, 2016 Va. App. LEXIS 118 (Ct. of Appeals Apr. 12, 2016).

Lack of a conviction for driving while under the influence, second offense, was not an impediment to charging defendant with DUI, third offense, because the express text of subdivision C 1 of § 18.2-270 did not require that a person have been charged and convicted of DUI, second offense, before he or she could receive the enhanced punishments provided for in subdivision C 1 of § 18.2-270 . Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Evidence of prior conviction allowed. - Trial court properly rejected an attempt defendant made during his trial on a charge that he drove under the influence a third or subsequent time within 10 years, to suppress two prior DUI convictions, because his argument that his earlier convictions were obtained in violation of his right to effective assistance of counsel did not rise to the level of a constitutional violation that negated those convictions, and they were not subject to collateral attack. Vester v. Commonwealth, 42 Va. App. 592, 593 S.E.2d 551, 2004 Va. App. LEXIS 99 (2004).

Under § 46.2-384 , a Department of Motor Vehicles transcript, certified pursuant to § 46.2-215 , was prima facie evidence of the facts stated therein and was therefore sufficient to prove defendant's prior DUI offenses and support his conviction under §§ 18.2-266 and 18.2-270 . Mitchem v. Commonwealth,, 2010 Va. App. LEXIS 18 (Jan. 12, 2010).

Convictions did not violate double jeopardy clause. - Convictions for driving under the influence, this section, and driving after having been declared an habitual offender, § 46.2-357, did not violate the double jeopardy clause because the charges at issue required proof of a fact the other did not. Dowless v. Commonwealth, No. 0687-91-1 (Ct. of Appeals Feb. 2, 1993).

Conviction after suspension of driving privilege did not violate double jeopardy. - Defendant's conviction for driving under the influence after the suspension of her driving privileges pursuant to § 46.2-391.2 did not violate her double jeopardy rights because, notwithstanding any incidental punitive effect it may have had, the 60-day administrative suspension was a civil sanction and, thus, did not offend double jeopardy protections. Depsky v. Commonwealth, 50 Va. App. 454, 650 S.E.2d 867, 2007 Va. App. LEXIS 372 (2007).

Determination of whether foreign state law "substantially conforms" to Virginia law. - In determining whether North Carolina DUI law under which appellant was twice convicted "substantially conforms" to Virginia's DUI law, courts look to the elements of the two statutes rather than to the offender's conduct; mere fact that both provisions are loosely referred to as per se statutes is insufficient to show substantial conformity in using out of state convictions for habitual offender adjudication in Virginia. Commonwealth v. Ayers, 17 Va. App. 401, 437 S.E.2d 580 (1993).

Permissible use of out-of-state predicate conviction. - Notwithstanding the fact that there are substantial differences between West Virginia Code § 17C-5-2 and this section, because the prohibition of West Virginia law under which appellant was convicted substantially conformed to this section, it could be used as a predicate offense for appellant's adjudication as an habitual offender pursuant to § 46.2-351 et seq. Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995).

Trial judge could have concluded that the conviction in West Virginia was based on conduct which is also a violation of this section, and thus to consider it under former § 46.2-351 would not expand the scope of the convictions which could be considered in making his ruling. Honaker v. Commonwealth, 19 Va. App. 682, 454 S.E.2d 29 (1995).

Under the Driver License Compact, which has been codified in identical form in Virginia and Maryland, any conviction reported from Maryland to the Virginia Department of Motor Vehicles must, of necessity, be limited to motor vehicle use while intoxicated and, therefore, the Maryland statutes governing the offense of driving while intoxicated substantially conform to Virginia law and a defendant's conviction in Maryland may be considered as a predicate offense for purposes of Virginia's habitual offender law. Commonwealth v. Lowe, 31 Va. App. 806, 525 S.E.2d 636 (2000).

Defendant was properly convicted of driving under the influence, fourth or subsequent offense within 10 years because, while two of defendant's five prior convictions in California under Cal. Veh. Code § 23152 were not substantially similar to the Virginia statute, admission and consideration of them was, nevertheless, harmless error where the remaining two California convictions were admissible as substantially similar, and defendant's prior Virginia conviction clearly qualified as a predicate offense. Clementi v. Commonwealth,, 2015 Va. App. LEXIS 78 (Mar. 17, 2015).

Virginia per se provisions and the Florida per se provisions are also substantially similar because the prosecution bears the burden of proving the requisite blood-alcohol concentration at the time of driving or controlling a vehicle; viewed together, both per se provisions are operationally identical because both set forth an offense requiring the prosecution to prove the same elements: the defendant was driving, operating, or controlling a vehicle and had an unlawful blood-alcohol content. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Impairment provisions of both the Florida and Virginia driving under the influence statutory schemes are substantially similar because both States' presumptions of impairment based on chemical test results only apply to the impairment provisions of either state's respective driving under the influence statute, and both presumptions are rebuttable. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Impairment provisions of the Virginia and Florida driving under the influence statutes are substantially similar because both impairment statutory schemes are functionally identical, and neither requires proof of a specific blood-alcohol level; both schemes allow the prosecution to prove its case without resort to chemical testing by proving impairment beyond a reasonable doubt based on all of the evidence of the accused's condition at the time of the alleged offense. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Trial court properly admitted defendant's Florida driving under the influence (DUI) convictions because the Virginia and Florida DUI statutory schemes were substantially similar; defendant's conduct that was sufficient to sustain two Florida DUI convictions would have supported convictions under Virginia DUI laws, regardless of whether the prosecution used an impairment or per se theory. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Impermissible Use of California Conviction. - One could be convicted under the California driving under the influence statute while driving a moped on private property, whereas in Virginia that same conduct is not prohibited under the statute, and thus defendant had proven dissimilarity between the statutes. Patterson v. Commonwealth, No. 0821-16-1, 2017 Va. App. LEXIS 180 (July 25, 2017).

California driving under the influence statute was not shown to be substantially similar to the Virginia statute because the California statute permits a conviction for conduct that would not result in a conviction under the Virginia statute, and the California conviction order did not establish what conduct led to defendant's prior convictions; the California conviction was not substantially similar to the Virginia conviction and the trial court erred in admitting the California conviction for the purpose of proving a prior offense. Patterson v. Commonwealth, No. 0821-16-1, 2017 Va. App. LEXIS 180 (July 25, 2017).

Record indicating convictions for drunk driving satisfied requirements of habitual offender statute. - Where the defendant claimed that the record indicating "drunk driving" was insufficient to satisfy the requirement of former § 46.2-351 in that it failed to establish that the conviction was for a violation of this section or a local ordinance conforming to the provision of this section, the DMV record and abstract of conviction showing the defendant had been convicted of "drunk driving" or "driving while intoxicated" satisfied the requirement of § 46.2-351 . Danielson v. Commonwealth, No. 0951-89-2 (Ct. of Appeals Dec. 26, 1990).

Effect on renewal of driver license. - Driver was ineligible for a driver's license due to the similarity of the driver's convictions in other states to Virginia statutes prohibiting driving while intoxicated and after forfeiture of a license because (1) a dissimilar Georgia punishment did not make that state's statute dissimilar for such purposes, and (2) a Florida release letter did not show the driver had no predicate Florida conviction and suspension, as the letter did not mention a Tennessee conviction and subsequent Florida revocation, and the letter was sent in error as one of the driver's two National Driver Registry profiles listed the driver as ineligible. Dorman v. Commonwealth, No. 0170-19-2, 2019 Va. App. LEXIS 209 (Sept. 24, 2019).

CIRCUIT COURT OPINIONS

Constitutionality. - Because defendant started the engine of a vehicle while intoxicated, defendant's behavior fell well within the well-established definition of "operate"; in addition, because § 18.2-266 did not contain a mens rea requirement, defendant lacked standing to complain that the statute was unconstitutionally vague under the Fifth and Fourteenth Amendments. Commonwealth v. McConnell, 68 Va. Cir. 471, 2005 Va. Cir. LEXIS 194 (Charlottesville Sept. 29, 2005).

Presumptions of §§ 18.2-266 and 18.2-269 are permissive inferences because they do not remove the element of alcohol content from the case and do not shift the burden of persuasion to the defendant; thus, they do not violate due process or the right to confrontation. Furthermore, § 18.2-270 , which relies on a violation of § 18.2-266 , is not unconstitutional, as the burden of persuasion is with the Commonwealth at all times. Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

Construction. - Court denied defendant's motion to declare certain parts of § 18.2-269 unconstitutional because the Virginia General Assembly was well within its authority to find that a blood alcohol level of 0.08 and above created a permissive inference that an individual was "under the influence of alcohol" as that term was used in clause (ii) of § 18.2-266 . Commonwealth v. Pattarasok, 69 Va. Cir. 423, 2006 Va. Cir. LEXIS 15 (Fairfax County 2006).

Only if § 18.2-269 could reasonably be read to provide a permissible inference could it satisfy due process requirements; the circuit court found that due process required that § 18.2-269 be treated as creating a permissible inference, rather than as a mandatory rebuttable presumption, and, so construed, the statute was constitutional, both facially and as applied to defendants. Commonwealth v. Padilla, 69 Va. Cir. 409, 2006 Va. Cir. LEXIS 16 (Fairfax County 2006), aff'd, Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523, 2007 Va. App. LEXIS 171 (2007).

In a driving under the influence of alcohol violation, the circuit court found that § 18.2-269 would violate due process if interpreted as shifting the burden to defendants to rebut an element of the offense that the fact finder would otherwise be required to conclude; when the charge was driving under the influence of alcohol, a mandatory rebuttable presumption that required the fact finder upon the presentation of a certain blood alcohol level to conclude that defendants were under the influence of alcohol, unless rebutted by them, would adversely affect their right to trial by jury and their right to remain silent, and it would diminish the requirement of the state to prove defendants' guilt beyond a reasonable doubt. Commonwealth v. Padilla, 69 Va. Cir. 409, 2006 Va. Cir. LEXIS 16 (Fairfax County 2006), aff'd, Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523, 2007 Va. App. LEXIS 171 (2007).

Revocation of a driver's driving privilege was not a manifest injustice after he was convicted of two violations of § 18.2-266 , arising from two separate incidents, and a violation of 36 C.F.R. § 4.23(a)(2), arising from a third incident, all occurring within 10 years, because 36 C.F.R. § 4.23(a)(2) was substantially similar to § 18.2-266 . Sayler v. Commonwealth, 71 Va. Cir. 258, 2006 Va. Cir. LEXIS 117 (Albemarle County 2006).

Operating on a highway is not an element of a violation of Virginia's driving under the influence statute. The DUI statute does not require operation on a highway, except for mopeds. The refusal statute makes operation on a highway a prerequisite of implied consent. Commonwealth v. Taylor,, 2019 Va. Cir. LEXIS 201 (Greene County May 29, 2019).

Validity of arrest. - Defendant was arrested for a violation of the DWI statute even though the arresting officer did not use particular words in effectuating the arrest because the officer had probable cause to arrest, the officer made a valid arrest of defendant within three hours of the alleged offense, and the implied consent law patently did not impose any obligation on the arresting officer to use specific words in making an arrest. Commonwealth v. Walsh, 86 Va. Cir. 532, 2013 Va. Cir. LEXIS 109 (Martinsville July 30, 2013).

Deputy had probable cause to believe defendant committed the offense of driving under the influence of alcohol because assuming the statue required physical impairment, the deputy observed signs of physical impairment in defendant; in light of the evidence of defendant's alcohol consumption and its discernable effect on his physical state, his refusal to perform field sobriety tests was circumstantial evidence showing he was aware his consumption of alcohol would affect his ability to perform. Commonwealth v. Aragon,, 2021 Va. Cir. LEXIS 124 (Loudoun County Apr. 28, 2021).

Officer must be present. - Sections 18.2-266 , 19.2-81 and 46.2-100 , read together, require that an individual drive or operate or be in actual physical control of a motor vehicle in the presence of the arresting officer for an arrest to be valid. Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).

Defendant's admissions. - Denial of defendant's motion to suppress was proper because there was evidence to support the finding of probable cause to believe that evidence of a crime would be found in his vehicle. In part, he admitted that he had, prior to the accident, ingested an intoxicant and indicated that some of the intoxicating substance was in his vehicle. The trooper had ample probable cause to arrest defendant for, at a minimum, driving a motor vehicle while impaired. Commonwealth v. Vance, 85 Va. Cir. 173, 2012 Va. Cir. LEXIS 167 (Augusta County Aug. 9, 2012).

Sobriety checkpoint. - Field officer's broad and unchecked discretion under the Albemarle County, Va., Police Dep't Gen. Ord. No. 4-6, Subject: Traffic/Sobriety Checkpoints (Sept. 28, 2001) runs afoul of the Fourth Amendment; therefore, a court granted a motion to suppress evidence in a driving under the influence case. Commonwealth v. Pearson, 64 Va. Cir. 488, 2004 Va. Cir. LEXIS 173 (Albemarle County 2004).

Suppression of evidence from investigatory stop. - Defendant's motion to suppress the evidence obtained after an investigatory stop should have been granted since defendant's vehicle was not making erratic movements; rather, the movements constituted an isolated instance of mild weaving. Commonwealth v. Webb, 56 Va. Cir. 419, 2001 Va. Cir. LEXIS 481 (Danville 2001).

Rebuttable presumption does not violate due process. - Rebuttable presumptions in §§ 18.2-266(i) and 18.2-269 did not violate defendant's due process rights, because the court was required to analyze the rebuttable presumptions as permissive inferences, as to which defendant had no standing to make a facial constitutional challenge. Commonwealth v. Draper, 72 Va. Cir. 111, 2006 Va. Cir. LEXIS 315 (Martinsville 2006).

Double jeopardy. - Where defendant was convicted of driving under the influence (DUI) and operating a motor vehicle after having been adjudicated a habitual offender and while under the influence of alcohol, defendant's plea in bar asserting double jeopardy was overruled, as the punishment for the habitual offender offense could be enhanced, and defendant could be punished for both the habitual offender offense and the DUI. Commonwealth v. Lloyd, 61 Va. Cir. 114, 2003 Va. Cir. LEXIS 4 (Warren County 2003).

Defenses. - Circuit Court of Wise County, Virginia, finds that the common-law defense of duress has not been abrogated by the General Assembly in § 18.2-266 . Virginia courts have not abrogated the availability of defenses to § 18.2-266 ; rather the courts have specifically held that affirmative defenses, such as duress, are available under the common law. Commonwealth v. Belcher, 98 Va. Cir. 281, 98 Va. Cir. 281, 2018 Va. Cir. LEXIS 51 (Wise County Apr. 2, 2018).

Defense of duress was applicable to defendant's DUI charge where his unrefuted testimony established that he was actively being beaten by multiple attackers, he tried in vain to run away, he sought safety behind the locked doors of his vehicle, and he drove off when the attackers breached the window and attempted to pull him out. Commonwealth v. Belcher, 98 Va. Cir. 281, 98 Va. Cir. 281, 2018 Va. Cir. LEXIS 51 (Wise County Apr. 2, 2018).

Administrative license suspension did not bar prosecution. - Sixty-day administrative license suspension requirement in § 46.2-391.2 is civil, and not criminal, like its seven-day counterpart, and a subsequent driving under the influence (DUI) prosecution thus does not violate double jeopardy or § 19.2-294 . Accordingly, such a suspension did not bar a DUI prosecution under § 18.2-266 . Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

Out-of-state convictions. - In a case in which a driver's Virginia driver's license was revoked due to a driving while intoxicated (DWI) conviction in Arkansas, and the driver, pursuant to § 46.2-410.1 , sought judicial review of that revocation, arguing that there was a manifest injustice because the Commissioner of Motor Vehicles made an error in law as Arkansas DWI law, Ark. Code Ann. § 5-65-103, was not substantially parallel and substantially conforming to the Virginia DWI statute, § 18.2-266 , that argument failed. The Arkansas DWI statute was substantially parallel and substantially conforming to the Virginia DWI statute because under both code sections, the ultimate fact that the government had to prove in order to obtain a conviction for DWI was that the alcohol content at the time of the driving was 0.08 percent or more. Hunt v. Commonwealth,, 2009 Va. Cir. LEXIS 44 (Fairfax June 15, 2009).

For purposes of § 46.2-389 , requiring revocation of driving privileges upon a conviction of driving while intoxicated, N.J. Stat. Ann. § 39:4-50 and this section were not substantially parallel and substantially conforming to each other because, under the New Jersey statute, a blood alcohol concentration of 0.08 or more supported a conclusive presumption of guilt, while under this section, a blood alcohol concentration of 0.08 merely gave rise to a rebuttable presumption that a person was under the influence of alcohol. Doe v. Commonwealth, 85 Va. Cir. 419, 2012 Va. Cir. LEXIS 151 (Richmond Oct. 9, 2012).

Federal conviction. - Virginia Department of Motor Vehicles properly suspended petitioner's license after he pled guilty to violating 36 C.F.R. § 4.23(a)(1), the federal driving under the influence (DUI) statute, as it substantially paralleled and conformed to the Virginia DUI statute, § 18.2-266 ; that § 4.23(a)(1) criminalized driving a moped off a public highway while intoxicated, when § 18.2-266 did not, did not defeat § 18.2-266's substantial conformity with the federal DUI statute. Robertshaw v. Commonwealth, 86 Va. Cir. 426, 2013 Va. Cir. LEXIS 34 (Fairfax County Apr. 24, 2013).

Evidence excluded. - Certificate of blood alcohol analysis was ordered excluded as evidence in defendant's driving under the influence case, where the breath testing operator reversed the sequence of machine testing procedures required by 1 VAC § 30-50-90(c) and it was clear that substantial compliance with the procedures, established to insure the accuracy of the breath test equipment, did not occur. Commonwealth v. Lizazu-Arias, 57 Va. Cir. 478, 2000 Va. Cir. LEXIS 512 (Fairfax County Oct. 23, 2000).

In a prosecution for driving while intoxicated, results of a blood test should not be admitted where evidence rebutted a presumption that a parking lot was a public highway; the lot was clearly designed to facilitate entrance to and egress from a store, ample signage made clear that the owners of the parking lot offered it to patrons alone, the owners exercised their right to revoke permission to park on the lot, the lot was accessible 24 hours a day and the store was open for business commensurately. Evidence did not lead to a conclusion that the owners of the roadway could not or would not close their doors and bar the public from vehicular traffic at will. Commonwealth v. Wood, 73 Va. Cir. 333, 2007 Va. Cir. LEXIS 215 (Charlottesville May 9, 2007).

"Operator." - Defendant operated a motor vehicle while intoxicated because defendant sat in the driver's seat of defendant's automobile when admittedly intoxicated, put the key in the ignition, and rotated the key, thereby illuminating the car's headlights without starting the vehicle's engine. Commonwealth v. Reid, 99 Va. Cir. 362, 2018 Va. Cir. LEXIS 124 (Norfolk July 17, 2018).

Sufficiency of evidence. - Even though defendant was not on a public highway when approached by a police officer, the implied consent statute was inappropriately applied, defendant was not obliged to submit to a breath test, and the results of that test were inadmissible against him, there was sufficient evidence to find defendant guilty of driving while intoxicated, given the totality of the circumstances; defendant was passed out in the driver's seat of a car while it was running, he failed the field sobriety tests, and he had a strong odor of alcohol that was detected by the officer. Commonwealth v. Wood, 73 Va. Cir. 333, 2007 Va. Cir. LEXIS 215 (Charlottesville May 9, 2007).

Defendant was not entitled to an acquittal because the evidence was sufficient to find that he had sufficient physical control of a vehicle to be convicted of driving while intoxicated where a police officer encountered him in the driver's seat of the vehicle, which was backed into a handicapped parking spot in the parking lot of a restaurant, defendant appeared to be asleep, the engine of the vehicle was shut off, some internal lights were on, and set of keys, including an electric vehicle key fob were in his hand, and there was no evidentiary requirement that the prosecution prove that the key fob found in defendant's hand actually belonged to the vehicle. Commonwealth v. Lopez, 90 Va. Cir. 413, 2015 Va. Cir. LEXIS 111 (Fairfax County July 22, 2015).

License suspension for second offense held improper. - Defendant who was not charged with second offense DUI could not have his license suspended as a second offender, and commissioner's order of suspension was manifestly unjust and improperly conflicted with the order of trial court, as defendant had not been adjudged to be a second offender. Richardson v. Commonwealth,, 2002 Va. Cir. LEXIS 63 (Roanoke Apr. 16, 2002).

OPINIONS OF THE ATTORNEY GENERAL

There is no statutory time limit within which a magistrate must grant bond for an intoxicated person charged with a misdemeanor offense, such as driving under the influence or public intoxication. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 04-49 (7/15/04).

Authority of Commissioner of the Department of Motor Vehicles. - The Commissioner of the Department of Motor Vehicles is both authorized and mandated to impose an ignition interlock system upon an individual seeking reinstatement of a driver's license after the three-year license revocation period resulting from a conviction for driving under the influence, second or subsequent offense, when the convicting court fails to order the installation of such system. See opinion of Attorney General to The Honorable Joseph P. Johnson, Jr., Member, House of Delegates, 10-018, 2010 Va. AG LEXIS 17 (4/20/10).

§ 18.2-266.1. Persons under age 21 driving after illegally consuming alcohol; penalty.

  1. It shall be unlawful for any person under the age of 21 to operate any motor vehicle after illegally consuming alcohol. Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath as indicated by a chemical test administered as provided in this article shall be in violation of this section.
  2. A violation of this section is a Class 1 misdemeanor. Punishment shall include (i) forfeiture of such person's license to operate a motor vehicle for a period of one year from the date of conviction and (ii) a mandatory minimum fine of $500 or performance of a mandatory minimum of 50 hours of community service. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2 . The penalties and license forfeiture provisions set forth in §§ 16.1-278.9, 18.2-270 and 18.2-271 shall not apply to a violation of this section. Any person convicted of a violation of this section shall be eligible to attend an Alcohol Safety Action Program under the provisions of § 18.2-271.1 and may, in the discretion of the court, be issued a restricted license during the term of license suspension.
  3. Notwithstanding §§ 16.1-278.8 and 16.1-278.9, upon adjudicating a juvenile delinquent based upon a violation of this section, the juvenile and domestic relations district court shall order disposition as provided in subsection B.

    (1994, cc. 359, 363; 1995, c. 31; 2003, c. 605; 2008, c. 729; 2009, c. 660; 2011, cc. 134, 683.)

Cross references. - As to mandatory background screenings for TNC partners to provide updated information to transportation network companies, see § 46.2-2099.49 .

Editor's note. - Acts 2008, c. 729, which rewrote the first sentence and added the second sentence in subsection B, expired July 1, 2010, pursuant to Acts 2008, c. 729, cl. 2.

Acts 2008, c. 729, cl. 3, provides: "That the Department of Criminal Justice Services shall submit to the Chairmen of the House and Senate Committees for Courts of Justice an interim report not later than January 15, 2009, and a final report not later than November 1, 2009, on the number of detentions pursuant to § 18.2-266.1 of the Code of Virginia that are in violation of the federal Juvenile Justice and Delinquency Prevention Act."

Acts 2009, c. 660 substituted "shall include" for "shall be" in the first sentence of subsection B as amended by Acts 2008, c. 729, which expired July 1, 2010. Therefore, the amendments by Acts 2009, c. 660 are no longer reflected in this section.

The 1995 amendment, in the third sentence of subsection B, substituted "may, in the discretion of the court" for "shall" and "issued" for "eligible for."

The 2003 amendments. - The 2003 amendment by c. 605 substituted "21" for "twenty-one" in subsection A; and inserted the second sentence in subsection B.

The 2008 amendments. - The 2008 amendment by c. 729 rewrote the first sentence in subsection B, which read: "A violation of this section shall be punishable by forfeiture of such person's license to operate a motor vehicle for a period of six months from the date of conviction and by a fine of not more than $500" and added the second sentence.

The 2009 amendments. - The 2009 amendment by c. 660 substituted "shall include" for "shall be" in the first sentence in subsection B.

The 2011 amendments. - The 2011 amendments by cc. 134 and 683 are identical, and rewrote the first sentence in subsection B, which read: "A violation of this section shall be punishable by forfeiture of such person's license to operate a motor vehicle for a period of six months from the date of conviction and by a fine of not more than $500."

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Construction of subsection A. - The offense defined by the first sentence of subsection A is proved if the Commonwealth proves that a person under the age of twenty-one years operates a motor vehicle after consuming alcohol, in any amount, and that the consumption was illegal. The second sentence provides for the establishment of a prima facie case upon proof that a person under twenty-one years of age operates a motor vehicle while having the prescribed level of blood alcohol concentration, casting upon the accused against whom such a prima facie case is established the burden of going forward with evidence raising a reasonable doubt as to the illegality of his alcohol consumption. Mejia v. Commonwealth, 23 Va. App. 173, 474 S.E.2d 866 (1996).

This section creates a rebuttable presumption that a defendant's blood alcohol content while driving was the same as indicated by the results of a subsequently administered test. Charles v. Commonwealth, 23 Va. App. 161, 474 S.E.2d 860 (1996).

Evidence defendant may present. - In cases involving prosecutions under this section, a defendant may introduce evidence to show that, despite his blood alcohol concentration of at least 0.10 percent on a subsequently administered test, his blood alcohol concentration at the time of driving was less than 0.10 percent. However, evidence tending to prove that the defendant was not under the influence, such as adequate performance on field sobriety tests, is irrelevant and inadmissible. Charles v. Commonwealth, 23 Va. App. 161, 474 S.E.2d 860 (1996).

§ 18.2-267. Preliminary analysis of breath to determine alcoholic content of blood.

  1. Any person who is suspected of a violation of § 18.2-266 , 18.2-266 .1, subsection B of § 18.2-272 , or a similar ordinance shall be entitled, if such equipment is available, to have his breath analyzed to determine the probable alcoholic content of his blood. The person shall also be entitled, upon request, to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. His breath may be analyzed by any police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department in the normal discharge of his duties.
  2. The Department of Forensic Science shall determine the proper method and equipment to be used in analyzing breath samples taken pursuant to this section and shall advise the respective police and sheriff's departments of the same.
  3. Any person who has been stopped by a police officer of the Commonwealth, or of any county, city or town, or by any member of a sheriff's department and is suspected by such officer to be guilty of an offense listed in subsection A, shall have the right to refuse to permit his breath to be so analyzed, and his failure to permit such analysis shall not be evidence in any prosecution for an offense listed in subsection A.
  4. Whenever the breath sample analysis indicates that alcohol is present in the person's blood, the officer may charge the person with a violation of an offense listed in subsection A. The person so charged shall then be subject to the provisions of §§ 18.2-268.1 through 18.2-268.12 , or of a similar ordinance.
  5. The results of the breath analysis shall not be admitted into evidence in any prosecution for an offense listed in subsection A, the purpose of this section being to permit a preliminary analysis of the alcoholic content of the blood of a person suspected of having committed an offense listed in subsection A.
  6. Police officers or members of any sheriff's department shall, upon stopping any person suspected of having committed an offense listed in subsection A, advise the person of his rights under the provisions of this section.
  7. Nothing in this section shall be construed as limiting the provisions of §§ 18.2-268.1 through 18.2-268.12 . (Code 1950, § 18.1-54.1; 1970, c. 511; 1975, cc. 14, 15; 1979, c. 717; 1985, cc. 355, 609; 1990, c. 825; 1992, c. 830; 1994, cc. 359, 363; 1996, cc. 154, 952; 2004, c. 1013; 2005, cc. 757, 840, 868, 881.)

Cross references. - As to provisions relating to the transfer of duties from Division of Forensic Science in Department of Criminal Justice Services to Department of Forensic Science, see Editor's notes under § 9.1-1100 .

The 1996 amendments. - The 1996 amendments by cc. 154 and 952 are identical, and substituted "Department of Criminal Justice Services" for "Department of General Services" near the beginning of subsection B.

The 2004 amendments. - The 2004 amendment by c. 1013 substituted " §§ 18.2-266 , 18.2-266 .1 or § 18.2-272 " for " § 18.2-266 or § 18.2-266.1 " throughout the section.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and substituted "subsection B of § 18.2-272 , or a similar ordinance" for "or § 18.2-272 " in subsection A, substituted "an offense listed in subsection A" for "a violation of §§ 18.2-266 , 18.2-266 .1, or § 18.2-272" in subsection C, substituted "for an offense listed in subsection A" for "under §§ 18.2-266, 18.2-266.1 , or § 18.2-272," in subsections C and E, in subsection D, substituted "an offense listed in subsection A" for " §§ 18.2-266, 18.2-266.1 , or § 18.2-272, or a similar ordinance of the county, city or town where the arrest is made," deleted "of a county, city or town" at the end, substituted "committed an offense listed in subsection A" for "violated the provisions of §§ 18.2-266, 18.2-266.1, or § 18.2-272" in subsections E and F and made a minor stylistic change.

The 2005 amendments by cc. 868 and 881 are identical, and deleted "Criminal Justice Services, Division of" preceding "Forensic Science" in subsection B; and made minor stylistic changes.

Law review. - For comment on the admissibility of documentary evidence and the right to confrontation, see 12 Wm. & Mary L. Rev. 440 (1970). For survey of recent legislation on criminal law - breath test to determine alcoholic content of blood, see 5 U. Rich. L. Rev. 189 (1970). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Admission of taking of alcosensor test, without admission of results of test. - It was not error for the court to permit the introduction of evidence that the defendant was offered and agreed to take an alcosensor test, that the arresting officer saw the results of the test, and that the results formed a part of his basis for arresting the defendant, where the actual results of the test were not admitted into evidence. Crewey v. Commonwealth, No. 1288-97-3 (Ct. of Appeals Dec. 22, 1998).

Results of preliminary breath test inadmissible in prosecution under § 18.2-36.1 . - By express wording of statute, a prosecution for violation of § 18.2-36.1 was necessarily a "prosecution under § 18.2-266 ," and thus this section applied to bar results of preliminary breath test in prosecution under § 18.2-36.1 . Hall v. Commonwealth, No. 1280-98-4, 1999 Va. App. LEXIS 543 (Ct. of Appeals Sept. 28, 1999).

Preliminary breath test admissible. - Trial court did not err in admitting the result of defendant's preliminary breath test at a suppression hearing because a police officer performed the preliminary breath test in the normal discharge of the officer's duties using the proper method and equipment. The officer used a preliminary breath testing device approved for use by the Virginia Department of Forensic Science, learned to operate the preliminary breath testing device during field training, and administered the test to defendant in accordance with the officer's training. Aloudah v. Commonwealth, No. 0328-17-4, 2018 Va. App. LEXIS 37 (Feb. 13, 2018).

Admission of refusal to perform test did not violate constitutions. - Neither the Fifth Amendment nor Va. Const., Art. I, § 8 were violated by the admission in evidence of defendant's refusal to take a field sobriety test. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991).

Evidence of refusal, to show defendant believed he might fail, violates constitution. - Evidence of a refusal to submit to field sobriety tests, when used by the finder of fact as evidence that the accused refused to submit to the test because he believed he might fail, violates the accused's right, under Article I, § 8 of the Constitution of Virginia, not to "be compelled. . .to give evidence against himself." Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990).

Defendant who refused to give proper breath sample was not entitled to dismissal based on lack of breath analysis. - Sufficient evidence supported the trial court's finding that defendant deliberately refused to cooperate in giving a breath sample where defendant, who had two prior DUI convictions, barely blew into the breathalyzer machine during a first attempt, resulting in the apparatus not being activated, and failed a second time to blow as instructed after the arresting officer informed defendant that defendant was not performing the test properly and gave defendant another chance; defendant did not give a medical reason for not giving a valid breath sample and it was reasonable for the officer to conclude from defendant's conduct during the two attempts that defendant was not cooperating and that defendant would continue such non-cooperation if further tests were attempted. Lee Banks Walker v. Commonwealth, No. 0349-02-1, 2003 Va. App. LEXIS 246 (Ct. of Appeals Apr. 22, 2003).

Failure to offer test does not result in constitutional prejudice. - A defendant may not claim that he or she was constitutionally prejudiced by not having a preliminary breath test administered in that he or she was denied evidence that may have tended to corroborate the defendant's testimony contesting the breathalyzer result; this section expressly provides that the results of such a test are not admissible in any prosecution but are intended instead to resolve disputes at the scene regarding probable cause to arrest. Jones v. Town of Marion, 28 Va. App. 791, 508 S.E.2d 921 (1999), aff'd, 259 Va. 7 , 524 S.E.2d 866 (2000).

The purpose of this section is to permit a preliminary analysis of the alcohol content of the blood of a person suspected of driving while intoxicated and to authorize the officer to charge an accused who tests positive, but not to allow the test results to be admitted as evidence of guilt. Stacy v. Commonwealth, 22 Va. App. 417, 470 S.E.2d 584 (1996).

This section provides a mechanism to resolve a potential on-the-scene dispute between the police and the accused concerning the alcoholic content of the blood of the accused. Jones v. Town of Marion, 28 Va. App. 791, 508 S.E.2d 921 (1999), aff'd, 259 Va. 7 , 524 S.E.2d 866 (2000).

Failure to comply with subsection F of this section does not render breath test results obtained pursuant to former § 18.2-268 (now § 18.2-268.1 et seq.) inadmissible. Wohlford v. Commonwealth, 3 Va. App. 467, 351 S.E.2d 47 (1986).

Advisement held sufficient. - Where an officer read defendant an "implied consent card" and told him he was not required to take the preliminary breath test (PBT), that it was strictly "for the benefit of probable cause," and that the result of the PBT "could not be used against him in court," the advisement, though inartful, was sufficient to allow admission of the result at a suppression hearing to establish probable cause to arrest. Neatrour v. Commonwealth, No. 2090-03-4, 2004 Va. App. LEXIS 462 (Ct. of Appeals Sept. 28, 2004).

Defendant opened door for admission of alka-sensor results. - Although alka-sensor results are otherwise inadmissible, defendant opened the door for such admission by testifying that he had performed "fine" on the field test, thereby urging the court to find that he had acted reasonably. Nichols v. Commonwealth, No. 0006-88-3 (Ct. of Appeals May 2, 1989).

Limitation on use. - The results of the preliminary breath test may be admitted into evidence at a pretrial probable cause or suppression hearing, but the results shall not be admitted into evidence in any prosecution which determines guilt or innocence. Woolridge v. Commonwealth, 29 Va. App. 339, 512 S.E.2d 153 (1999).

Use in suppression hearing proper. - "Prosecution" as it is used in this section does not include a pretrial suppression hearing to determine the legality of the arrest; "prosecution" is limited to the proceedings devoted to determining the guilt or innocence of a person charged with a crime. Stacy v. Commonwealth, 22 Va. App. 417, 470 S.E.2d 584 (1996).

Alka-sensor test inadmissible to show reasonable refusal of former § 18.2-268 (now § 18.2-268.1 et seq.) tests. - Result of a preliminary alka-sensor test which allegedly read .00 and which was taken pursuant to this section was not admissible to show whether driver reasonably refused to submit to a blood or breath test as required by former § 18.2-268 (now § 18.2-268.1 et seq). Northup v. Commonwealth, No. 0290-89-2 (Ct. of Appeals Sept. 11, 1990).

Test results inadmissible in aggravated manslaughter prosecution. - Since § 18.2-36.1 , relating to causing the death of another while intoxicated, expressly references a violation of § 18.2-266 as the predicate for the prosecution of aggravated manslaughter, and since this section bars the admission of preliminary breath analysis results in a prosecution under § 18.2-266 , so also is the admission of such results barred in a prosecution for aggravated manslaughter. Hall v. Commonwealth, 32 Va. App. 616, 529 S.E.2d 829, 2000 Va. App. LEXIS 466 (2000).

Failure to offer preliminary test did not invalidate arrest. - Where the record established that the arresting officer had probable cause to arrest the defendant for driving while intoxicated based on the fact that the defendant had been driving erratically, smelled strongly of alcohol, would have fallen had the officer not caught him as he got out of his van and was unable to stand, the fact that the officer had not offered the defendant a preliminary breath test because he believed the defendant was incapable of performing any sobriety test did not invalidate the defendant's arrest. Jones v. Town of Marion, 28 Va. App. 791, 508 S.E.2d 921 (1999), aff'd, 259 Va. 7 , 524 S.E.2d 866 (2000).

Harmless error in admission of evidence that defendant was offered breath tests. - Although, pursuant to § 18.2-267 , the trial court erred in a DUI trial in allowing testimony that defendant was offered breath tests following a traffic stop, that evidence was harmless because there was overwhelming evidence that defendant drove while intoxicated; under § 4.1-100 , "intoxicated" meant a condition in which a person had drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior. The evidence at trial proved that defendant drove his car at a reckless speed and that, when stopped, he had an odor of alcohol about his breath, red and glassy eyes, and slurred speech, and performed poorly on field sobriety tests. Reid v. Commonwealth, No. 2162-08-1, 2009 Va. App. LEXIS 308 (July 14, 2009).

Applied in Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004); Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005).

CIRCUIT COURT OPINIONS

Violation of subsection F. - Results of a preliminary breath test would not be excluded from the determination of probable cause because despite the lack of probable cause without the preliminary breath test results, a police officer's failure to comply with subsection F did not invalidate defendant's arrest. Commonwealth v. Stewart, 91 Va. Cir. 164, 2015 Va. Cir. LEXIS 161 (Fairfax County Sept. 16, 2015).

Violation of subsection F does not require the suppression or exclusion of evidence obtained under the statute, including the results of a preliminary breath test; absent a constitutional violation, the remedy for a statutory violation must be enumerated by statute and not by judicial decree, and no remedy exists for a stand-alone violation of the statute. Commonwealth v. Stewart, 91 Va. Cir. 164, 2015 Va. Cir. LEXIS 161 (Fairfax County Sept. 16, 2015).

Administration of preliminary breath test reasonable under Fourth Amendment. - Because the actions of a police officer in administering a preliminary breath test were reasonable under the Fourth Amendment, the preliminary breath test results would not be excluded from the probable cause determination; nothing in the encounter between the officer and defendant suggested that defendant's consent to the test was given involuntarily. Commonwealth v. Stewart, 91 Va. Cir. 164, 2015 Va. Cir. LEXIS 161 (Fairfax County Sept. 16, 2015).

OPINIONS OF THE ATTORNEY GENERAL

Preliminary breath tests may be admissible. - The results of the preliminary breath tests (Alco-Sensor or like device) may be admissible for the offenses of underage possession of alcohol, possession or consumption of alcoholic beverages by an interdicted person, and public intoxication at the discretion of the trial judge and subject to the proper foundation. See opinion of Attorney General to the Honorable La Bravia J. Jenkins, Commonwealth's Attorney, City of Fredericksburg, 12-111, 2013 Va. AG LEXIS 34 (6/7/13).

§ 18.2-268.

Repealed by Acts 1992, c. 830.

Cross references. - For present provisions relating to chemical testing to determine alcohol or drug content of blood, see § 18.2-268.1 et seq.

Editor's note. - The repealed section was amended by Acts 1992, c. 561.

Acts 1992, c. 830, cl. 3 provides: "That whenever any of the conditions, requirements, provisions, or contents of § 18.2-268 or § 46.2-341.26 of the Code of Virginia, as such sections existed before July 1, 1992, are revised and renumbered, all references to such former sections, conditions, requirements, provisions, contents, or portions thereof shall apply to the renumbered section."

Acts 1992, c. 830, cl. 4 provides: "That references to actions taken pursuant to or offenses under any of the new sections shall be read to include actions taken or offenses under the corresponding provisions of old § 18.2-268 or § 46.2-341.26 ."

§ 18.2-268.1. Chemical testing to determine alcohol or drug content of blood; definitions.

As used in §§ 18.2-268.2 through 18.2-268.12 , unless the context clearly indicates otherwise:

The phrase "alcohol or drug" means alcohol, a drug or drugs, or any combination of alcohol and a drug or drugs.

The phrase "blood or breath" means either or both.

"Chief police officer" means the sheriff in any county not having a chief of police, the chief of police of any county having a chief of police, the chief of police of the city, or the sergeant or chief of police of the town in which the charge will be heard, or their authorized representatives.

"Department" means the Department of Forensic Science.

"Director" means the Director of the Department of Forensic Science.

"License" means any driver's license as defined in § 18.2-6 .

"Ordinance" means a county, city or town ordinance.

(1992, c. 830; 2005, cc. 868, 881; 2020, cc. 1227, 1246.)

Cross references. - As to a law-enforcement officer's right to require that his blood or urine specimen be sent to a laboratory of their choice for independent testing to determine blood or alcohol content, see § 9.1-501 .

Editor's note. - Acts 1992, c. 830, cl. 3 provides: "That whenever any of the conditions, requirements, provisions, or contents of § 18.2-268 or § 46.2-341.26 of the Code of Virginia, as such sections existed before July 1, 1992, are revised and renumbered, all references to such former sections, conditions, requirements, provisions, contents, or portions thereof shall apply to the renumbered section."

Acts 1992, c. 830, cl. 4 provides: "That references to actions taken pursuant to or offenses under any of the new sections shall be read to include actions taken or offenses under the corresponding provisions of old § 18.2-268 or § 46.2-341.26 ."

Acts 2020, cc. 1227 and 1246, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2020, cc. 1227 and 1246, cl. 4 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and inserted the definition of "Department"; substituted "Department" for "Division" in the definition of "Director"; and deleted the definition of "Division."

The 2020 amendments. - The 2020 amendments by cc. 1227 and 1246, effective January 1, 2021, are identical, and substituted "as defined in § 18.2-6 " for "temporary driver's license, or instruction permit authorizing the operation of a motor vehicle upon the highways" in the definition for "License."

CASE NOTES

Section that is specific governs over one that covers subject in a general way. - When one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails; this Code section is more specific than § 19.2-187.01 statute and directly applies to blood alcohol test results, and thus this section is applicable to the facts of this case. Hilberath v. Commonwealth, No. 0351-92-4 (Ct. of Appeals Mar. 8, 1994).

CIRCUIT COURT OPINIONS

Refusal to submit to test when not legally under arrest. - Court found the driving under the influence (DUI) defendant was improperly charged with refusing to submit to a breath or blood test since the defendant was not legally under arrest for DUI, as the defendant's arrest was in violation of § 19.2-81 ; therefore, when the defendant was read his implied consent rights, requiring him to have been lawfully arrested in order to be subject to the mandate to submit, the defendant's refusal to submit did not constitute a violation of the statute, and his refusal to submit was not admissible since the test itself, even if he had consented to the test, was inadmissible. Commonwealth v. Coakley, 56 Va. Cir. 99, 2001 Va. Cir. LEXIS 446 (Norfolk 2001).

§ 18.2-268.2. Implied consent to post-arrest testing to determine drug or alcohol content of blood.

  1. Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100 , in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266 , 18.2-266 .1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense.
  2. Any person so arrested for a violation of clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance shall submit to a breath test. If the breath test is unavailable or the person is physically unable to submit to the breath test, a blood test shall be given. The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
  3. A person, after having been arrested for a violation of clause (iii), (iv), or (v) of § 18.2-266 or § 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, may be required to submit to a blood test to determine the drug or both drug and alcohol content of his blood. When a person, after having been arrested for a violation of § 18.2-266 (i) or (ii) or both, submits to a breath test in accordance with subsection B or refuses to take or is incapable of taking such a breath test, he may be required to submit to tests to determine the drug or both drug and alcohol content of his blood if the law-enforcement officer has reasonable cause to believe the person was driving under the influence of any drug or combination of drugs, or the combined influence of alcohol and drugs. (1992, c. 830; 1993, c. 746; 1994, cc. 359, 363; 1995, c. 23; 2002, c. 748; 2004, c. 1013; 2005, cc. 616, 757, 840.)

Editor's note. - Acts 1994, cc. 359 and 363, which amended this section, in cl. 2 provide that "the provisions of this act contained in §§ 18.2-268.2 through 18.2-268.5 , 18.2-271 , 18.2-271 .1 and 46.2-391.2 through 46.2-391.5 shall become effective January 1, 1995, except to the extent that the amendments merely reflect the enactment by this act of § 18.2-266.1 ."

The 1995 amendment, effective February 23, 1995, inserted "or § 18.2-266 .1" following " § 18.2-266 " near the end of subsection A.

The 2002 amendments. - The 2002 amendment by c. 748 substituted "three hours" for "two hours" in subsection A.

The 2004 amendments. - The 2004 amendment by c. 1013 substituted " §§ 18.2-266 , 18.2-266 .1 or § 18.2-272 " for " § 18.2-266 or § 18.2-266.1 " in subsection A; substituted "clause (i) or (ii) of § 18.2-266 or both, § 18.2-266.1 or § 18.2-272 " for " § 18.2-266 (i) or (ii) or both, or § 18.2-266.1 " in subsection B; and substituted "clause (iii) or (iv) of § 18.2-266 or § 18.2-266.1 or § 18.2-272" for " § 18.2-266 (iii) or (iv) or § 18.2-266.1" in subsection C.

The 2005 amendments. - The 2005 amendment by c. 616 inserted "or (v)" in subsection C and made a related change and minor stylistic changes.

The 2005 amendments by cc. 757 and 840 are identical, and inserted "subsection B of" preceding " § 18.2-272 " in subsections A, B and C, deleted "of this section" preceding "or refuses" in subsection C and made minor stylistic changes.

Law review. - For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Research References. - Virginia Forms (Matthew Bender). No. 9-2804 Motion for Transmission of Blood Sample.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 11, 118; 4C M.J. Constitutional Law, § 93; 18 M.J. Surface Transportation Systems; Streets, Highways, Etc., § 2.

CASE NOTES

I. GENERAL CONSIDERATION.

Construction with other law. - Even if the state's failure to comply with the implied consent law procedural requirements did not forbid a prosecution for aggravated manslaughter, blood test results were not required for a conviction under either § 18.2-266 or 18.2-36.1 . Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

In its 1995 revision, legislature eliminated driver's option to elect which test to take and mandated that a driver accused of DUI shall submit to a breath test. Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999).

Limitation on blood test availability. - Only when a breath test is unavailable or the accused is physically unable to take one, is a blood test to be given. Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999).

Trial court did not err in admitting the certificate of analysis generated from defendant's blood test after the police officer who arrested defendant for driving under the influence of alcohol, second offense, had defendant take a blood test because the officer determined defendant was physically unable to take the breath test as a result of his having recently eaten chili which was giving him indigestion; the evidence supported the officer's determination that the blood test had to be taken due to defendant's inability to take the breath test. Pearson v. Commonwealth, 43 Va. App. 317, 597 S.E.2d 269, 2004 Va. App. LEXIS 272 (2004).

No mandatory duty on arresting officer to obtain blood test. - Trial court did not improperly refuse to dismiss defendant's driving under the influence charge because of the arresting officer's failure to obtain a blood test because nothing in the implied consent statute imposed a mandatory duty on the arresting officer to obtain blood testing for drivers, like defendant, suspected of being under the influence of drugs. Taylor v. Commonwealth,, 2010 Va. App. LEXIS 96 (Mar. 16, 2010).

This section protects one who has the odor of alcohol on his breath but has not been drinking to excess, and one whose conduct may create the appearance of intoxication when he is suffering from some physical condition over which he has no control. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Requirements in order to implicate this section through § 18.2-268.8 . - This section through § 18.2-268.8 provide the procedural requirements for taking, handling, identifying and disposing of blood samples under Virginia's implied consent law. To implicate the statutes the driver must have operated a motor vehicle upon a public highway in this Commonwealth and have been arrested for a violation of § 18.2-266 (or a similar ordinance) within two hours of the alleged offense of driving under the influence of alcohol. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Because defendant was not validly arrested within three hours of the offenses, as required by subsection A of § 18.2-268.2 , and an officer's act of telling defendant that he was under arrest and advising him of the implied consent law was insufficient to satisfy the restraint requirement to assert his lawful authority to arrest defendant, defendant did not impliedly consent to have his blood drawn; thus, the certificate of analysis containing defendant's blood test results was inadmissible. Bristol v. Commonwealth, 272 Va. 568 , 636 S.E.2d 460, 2006 Va. LEXIS 115 (2006).

Criminal and civil actions independent. - Operation of a motor vehicle while under the influence of alcohol or drugs may give rise to two separate and distinct proceedings - one a criminal action for DUI and the other a civil, administrative proceeding on the refusal charge. "Each action proceeds independently of the other and the outcome of one is of no consequence to the other." Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

The measurement of a blood alcohol test creates a rebuttable presumption that the measurement accurately reflects the blood alcohol concentration at the time of driving. The defendant is entitled to challenge this presumption through evidence calling into question the accuracy of the test results. Terpstra v. Commonwealth, No. 0716-95-4 (Ct. of Appeals April 9, 1996).

II. ELEMENTS.
A. ARREST.

Lawful arrest required to imply consent. - For an arrestee to be deemed to have given implied consent under this section, the arrest must have been lawful; if the arrest was not lawful, consent for blood alcohol testing is not implied, and the results of any such test are not admissible for the purpose of providing a rebuttable presumption of intoxication. Smith v. Commonwealth, 32 Va. App. 228, 527 S.E.2d 456, 2000 Va. App. LEXIS 281 (2000).

Arrest followed by a release on a summons. - In a trial on the offense of driving under the influence, the circuit court properly admitted results of a blood test from a sample collected while defendant was in the hospital. Subsection B of § 19.2-73 authorized issuance of a summons, and an arrest followed by a release on a summons satisfied the requirement of "constraining" the arrestee's liberty under the implied consent statutes. Reading §§ 19.2-73 and 19.2-74 in pari materia with the implied consent statute, an arrest followed by a release on summons satisfies the requirement of "constraining" the arrestee's personal liberty, for purposes of implicating the statutory duty to provide a blood or breath sample. Young v. Commonwealth, 57 Va. App. 731, 706 S.E.2d 53, 2011 Va. App. LEXIS 77 (2011).

Failure to make valid arrest within two hours. - Where the accident happened and the offense occurred just before 3:00 p.m., and an invalid arrest was made at 4:35 p.m., but the accused was not properly arrested until 6:15 p.m., since the arrest was untimely, the defendant is not deemed to have consented to the testing of his breath under the "implied consent" law. Thomas v. Town of Marion, 226 Va. 251 , 308 S.E.2d 120 (1983) (decided under former § 18.2-268 ).

Because police failed to arrest appellant for driving under the influence of alcohol within two hours of the accident, the certificate of analysis was inadmissible at trial. Castillo v. Commonwealth, 21 Va. App. 482, 465 S.E.2d 146 (1995) (decided under former § 18.2-268 ).

Operation of vehicle three hours preceding defendant's arrest. - Evidence was sufficient to show that defendant operated on a public roadway the car defendant was found standing beside sometime in the three hours immediately preceding defendant's arrest for driving while intoxicated as defendant was found beside the car in a private driveway that was accessible from a public roadway, the hood of the car was warm from the engine running, and defendant made statements regarding whether or not defendant hit something with the car as defendant attempted to change the tires on the car. Ramos v. Commonwealth,, 2015 Va. App. LEXIS 270 (Sept. 22, 2015).

Valid arrest found. - Court found that defendant was arrested for purposes of this section, even though the officer issued the summons for DUI after defendant had been transported to the hospital and more than three hours after the alleged offense; the certificate of analysis containing the results of the blood test were therefore admissible against him at trial. Varner v. Commonwealth, No. 2354-03-1, 2004 Va. App. LEXIS 609 (Ct. of Appeals Dec. 14, 2004).

Valid arrest not found. - Officer made an invalid warrantless arrest for a misdemeanor not committed in his presence as the single-vehicle accident occurred on or beside a private road in a gated, guarded residential complex; thus, the exceptions to the warrant requirement in § 19.2-81 did not apply. Therefore, the implied consent law did not apply to permit the certificate of analysis of defendant's breath test to be admitted into evidence. Roseborough v. Commonwealth, 281 Va. 233 , 704 S.E.2d 414, 2011 Va. LEXIS 13 (2011).

Probable cause for arrest found. - Deputy had sufficient probable cause to justify arresting defendant for unreasonable refusal to provide a breath sample based on the smell of alcohol on defendant, defendant's red and glassy eyes, the fact that defendant was argumentative, and the fact that defendant refused to perform field sobriety tests. Jones v. Commonwealth, 51 Va. App. 730, 660 S.E.2d 343, 2008 Va. App. LEXIS 213 (2008), aff'd in part and vacated in part, 279 Va. 52 , 688 S.E.2d 269, 2010 Va. LEXIS 20 (Va. 2010), concluding that refusal to perform field sobriety tests is not evidence of "consciousness of guilt".

Where the defendant's warrantless arrest was unlawful, he was not bound under this section to submit to a breathalyzer test; therefore the result of the breathalyzer test administered to the defendant should not have been admitted in evidence at his trial. Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987) (decided under former § 18.2-268 ).

Refusal to submit to test can factor into probable cause. - Defendant's conviction for unreasonably refusing to submit to a blood or breath test after being arrested for driving under the influence of alcohol in violation of § 18.2-268.2 was affirmed because his refusal to submit could be considered in a police officer's assessment of probable cause to arrest him. Jones v. Commonwealth, 279 Va. 52 , 688 S.E.2d 269, 2010 Va. LEXIS 20 (2010).

B. HIGHWAY.

Road was "highway" as defined in § 46.2-100 . - Where evidence proved that appellant drove into a ditch alongside a parking lot, and where evidence demonstrated that road upon which appellant traveled when deputy approached him was open for use by the public, and it provided unrestricted vehicular access to a store and campground from a thoroughfare, the road was a "highway" as defined in § 46.2-100 , and Virginia's implied consent statute applied to appellant when he drove upon it. Murray v. Commonwealth, No. 2142-96-4 (Ct. of Appeals Nov. 4, 1997).

Law applies to any place in § 46.2-100 's definition of "highway." - The implied consent law applies to any way or place encompassed within the two-prong definition of "highway" contained in § 46.2-100 . Mitchell v. Commonwealth, 26 Va. App. 27, 492 S.E.2d 839 (1997).

Parking lot not a "highway." - Parking lot of apartment complex was not a "highway" for purposes of implied consent statute. White v. City of Lynchburg, No. 0591-99-3 (Ct. of Appeals Feb. 15, 2000).

Since this section is restricted by its terms to a "highway," a defendant's contention that the section afforded him the right to a breathalyzer test failed where the defendant was stopped in a restaurant parking lot, which was not considered a highway. Edwards v. City of Virginia Beach, No. 2751-00-1, 2001 Va. App. LEXIS 522 (Ct. of Appeals Sept. 25, 2001).

Road not "highway." - Implied consent statute had no applicability, and defendant was not required to submit a breath sample, because the road where an officer found defendant in a parked vehicle could not meet the statutory definition of highway; the presence of "No Trespassing" signs at every vehicular entry point to the apartment complex where the road was located established that the road was not open to the use of the public, and thus, defendant rebutted the presumption that the road a highway. Kim v. Commonwealth, 293 Va. 304 , 797 S.E.2d 766 (2017).

Law applied to roads of mobile home complex. - Where no evidence in the record proved that the streets in the mobile home complex were restricted exclusively to the private use of the mobile home dwellers or those persons who visited them, and indeed, the evidence proved that the roads in the mobile home complex were open to the unrestricted use of the public, the implied consent law applied to defendant when he operated his vehicle on the roads of the mobile home complex. Mitchell v. Commonwealth, 26 Va. App. 27, 492 S.E.2d 839 (1997).

C. IMPLIED CONSENT.

Purpose. - The purpose of the implied consent law requiring the test to be taken is to determine the concentration of alcohol in a driver's blood or breath sample, and thereby determine the driver's state of intoxication or sobriety and whether defendant was sober or intoxicated, in fact. Quinn v. Commonwealth, 9 Va. App. 321, 388 S.E.2d 268 (1990) (decided under former § 18.2-268 ).

Under the implied consent law, any person who operates a motor vehicle upon a highway in the Commonwealth is deemed, as a condition of such operation, to have consented to have samples of blood, breath, or both, taken for a chemical test to determine alcohol content of the person's blood, if that person is arrested for DUI in violation of the applicable statutes or of a similar local ordinance. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Implied consent not part of penalty. - The implied consent of one who operates a vehicle on the public highways of Virginia to take a blood test, in event he be charged with drunk driving, is not a part of the penalty or punishment inflicted for drunk driving. It is a measure flowing from the police power of the state designed to protect other users of state highways. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

Implied consent law did not require an officer to obtain a blood sample from an unconscious defendant in order to be able to prosecute him for driving under the influence. Oliver v. Commonwealth, 40 Va. App. 20, 577 S.E.2d 514, 2003 Va. App. LEXIS 98 (2003).

Section not construed to alter or expand federal implied consent statute. - This section should not be relied upon by federal district court to alter or expand 18 U.S.C.S. § 3117, the federal implied consent statute. United States v. Jerge, 738 F. Supp. 181 (E.D. Va. 1990) (decided under former § 18.2-268 ).

Consent not qualified or conditional. - The consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, "is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test." The mere fact that under the statute "an accused is afforded an opportunity to establish the reasonableness of his refusal does not operate to dilute the consent previously given, or convert that consent into a qualified or conditional one." Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Where an arresting officer has probable cause to believe an incoherent or unconscious driver has violated § 18.2-266 , prohibiting driving under the influence of alcohol, the implied consent law, this section, operates to permit the taking and testing of blood from that driver and that incoherence or unconsciousness does not constitute a refusal, reasonable or unreasonable, because consent is continuing. Goodman v. Commonwealth, 37 Va. App. 374, 558 S.E.2d 555, 2002 Va. App. LEXIS 45 (2002).

Accused's silence was not an admission of guilt. - In a prosecution for driving under the influence in violation of § 18.2-266 , as assimilated under 18 U.S.C.S. §§ 7 and 13, the trial court violated defendant's Fifth Amendment right against self-incrimination by inferring an admission of culpability from defendant's silence when defendant was advised of Virginia's implied consent statute, § 18.2-268.2 ; as defendant's consent to a breath test demonstrated, defendant's silence did not constitute a refusal to taking a blood or breath test. United States v. Hagedorn,, 2002 U.S. App. LEXIS 25762 (4th Cir. Dec. 16, 2002).

In prosecution for driving under the influence on a military base in violation of § 18.2-266 , as assimilated under 18 U.S.C.S. §§ 7, 13, the appellate court determined that the district court violated defendant's Fifth Amendment right against self-incrimination by inferring an admission that defendant was the driver of the vehicle by remaining silent in the face of being advised of Virginia's implied consent statute applicable to drivers under § 18.2-268.2 , and defendant's silence under such circumstances did not constitute an admission of culpability; however, the error was harmless because unrelated evidence established defendant's identity as the driver. United States v. Hagedorn,, 2003 U.S. App. LEXIS 1805 (4th Cir. Feb. 3, 2003).

A warrantless search of a blood sample for alcohol level analysis will be upheld only if: (1) the process is a reasonable one which is performed in a reasonable manner; (2) there was in advance a clear indication that in fact the evidence sought will be found; and (3) there were exigent circumstances, such as a need to take the test before the percentage of alcohol in the blood diminished. Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1 (1994). But see Bristol v. Commonwealth, 272 Va. 568 , 636 S.E.2d 460 (2006), which overruled the Tipton court as to the existence of exigent circumstances.

The defendant may not unilaterally abrogate the agreement or withdraw that consent by refusing the test unless there is a reasonable basis for the refusal. A fear of being "framed" is not such a basis; it is not "reasonable" in the sense that evidence of endangerment of the health of the accused by withdrawal of blood furnishes a "reasonable" basis for refusal. That type of evidence should have been offered in the trial of the DUI charge because it may relate to the question whether the police officer's stop of the accused was lawful; certainly such evidence is not probative in the trial of the refusal charge. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

III. RIGHTS OF ACCUSED.

Accused holds the option to take blood or breath test. - When the legislature enacted this statute, it granted to the accused, not the Commonwealth, the option to take a blood or breath test. That election, whether based on the accused's perception of the reliability of these tests or their invasive nature, is one that this court must honor. Breeden v. Commonwealth, 15 Va. App. 148, 421 S.E.2d 674 (1992) (decided under former § 18.2-268 ).

Driver has right to receive benefits of test. - Once the Commonwealth has elected to have a driver take a blood or breath test pursuant to this statute, the driver has a right to receive the benefits of the test. Breeden v. Commonwealth, 15 Va. App. 148, 421 S.E.2d 674 (1992) (decided under former § 18.2-268 ).

Does not give the operator of a motor vehicle the right to request a breathalyzer or blood test. - Plaintiff failed to state a due process claim against defendant police officer because § 18.2-268.2 did not, as plaintiff alleged, give the operator of a motor vehicle the right to request a breathalyzer or blood test. Edwards v. Oberndorf, 309 F. Supp. 2d 780, 2003 U.S. Dist. LEXIS 26012 (E.D. Va. 2003).

Police may offer blood test rather than breath test. - Because the officer who stopped defendant's vehicle after observing defendant drive erratically did not smell alcohol on defendant and believed that defendant was driving under the influence of either drugs or a combination of drugs and alcohol, the officer's decision to offer a blood test rather than a breath test was appropriate. Patterson v. Commonwealth, 62 Va. App. 488, 749 S.E.2d 538, 2013 Va. App. LEXIS 313 (Nov. 5, 2013).

Defendant arrested for public drunkenness but later charged with driving under the influence not entitled to blood or breath tests. - Where defendant was originally arrested for public drunkenness, but an off-duty officer from another county who had observed his driving later swore out a criminal complaint and persuaded a magistrate to issue a warrant against defendant for driving under the influence, defendant had not been entitled to blood or breath tests under § 18.2-268.2 . Wilson v. Commonwealth, 45 Va. App. 193, 609 S.E.2d 612, 2005 Va. App. LEXIS 84 (2005).

Agreement to take test does not mean belief in one's innocence. - Upon being arrested for DUI, one is required either to take the blood or breath test or suffer additional consequences, thus, the agreement to take the blood or breath test, as opposed to suffering the consequences of taking neither, does not carry with it the same indicia of belief in one's innocence as does the willingness to take a voluntary field sobriety test. Hammond v. Commonwealth, 17 Va. App. 565, 439 S.E.2d 877 (1994).

A driver's subjective belief that he was not under the influence of alcohol is not a reasonable basis for refusing the test, nor is the fact that he could and did operate his vehicle in a proficient manner. Thus, evidence of his state of sobriety or proficiency in operating the vehicle is not admissible in a case involving refusal to take a blood or breath test. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Scope of accused's right to view results. - The term "process of analysis" does not enlarge the scope of what the accused is entitled to review under this section; the accused is not entitled to view the results obtained from each breath sample, but only the results printed out by the equipment used to perform the breath test. Rasmussen v. Commonwealth, 31 Va. App. 233, 522 S.E.2d 401 (1999).

Nothing in this section or in § 18.2-268.9 indicates any intention on the part of the legislature to give an accused the right to immediately view results of a breath test other than those actually printed out by the equipment used to conduct the test. Rasmussen v. Commonwealth, 31 Va. App. 233, 522 S.E.2d 401 (1999).

Where an accused is afforded the opportunity to view the print-out of the blood-alcohol reading taken by the breathalyzer machine, the requirements of this section and § 18.2-268.9 have been met. Carey v. Commonwealth, No. 1888-98-4, 2000 Va. App. LEXIS 303 (Ct. of Appeals Apr. 25, 2000).

Where defendant only saw certificate with printout of lower of two blood alcohol readings, the only evidence not made immediately available to him was evidence of an inculpatory nature; as he was afforded the opportunity to view the print-out of the blood-alcohol reading taken by the breathalyzer machine, the requirements of this section and § 18.2-268.9 were met. Kauffman v. Commonwealth, No. 1725-98-2, 2000 Va. App. LEXIS 452 (Ct. of Appeals June 20, 2000).

Scope of accused's right to a copy of results. - The plain language of subsection B provides that an individual who is given a breath test is entitled to a printout of the result only if the machine automatically produces a printout. Where no printout is produced, there is no copy to give the test taker. Wing v. Commonwealth, No. 1760-03-4, 2004 Va. App. LEXIS 368 (Ct. of Appeals Aug. 3, 2004).

Waiver of right to separate sample where accused voluntarily interrupts procedure. - The government's failure to comply strictly with the statutory mandate to provide the accused with a sample of blood for independent testing resulted from the voluntary act of the accused in interrupting the completion of the blood removal process; where an accused voluntarily interrupts the blood removal procedure before the physician, nurse or technician completes that procedure, the accused, by his conduct, shall be deemed to have waived his right to an independent analysis of a separate sample as provided by §§ 18.2-268.6 and 18.2-268.7 . Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992) (decided prior to 2003 amendments to §§ 18.2-268.6 and 18.2-268.7 .)

Where defendant disrupted blood removal procedure, no error in admitting one sample. - Defendant's voluntary act in disrupting the blood removal procedure constituted a waiver of his right to a separate sample for independent testing. Thus, it was not error for the trial court to admit the results of the blood test analyzed from the one sample sent to the state laboratory by the arresting officer. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Credibility issues. - The factual determinations involved in evaluating a witness' credibility are necessary predicates to a legal ruling on the admissibility of that witness' testimony and, as such, are questions for the trial judge and not the jury. Bennett v. Commonwealth, 31 Va. App. 30, 520 S.E.2d 845 (1999).

Error to admit blood test results where failure to follow statutory mandates. - Where the government has failed in its responsibilities to follow the statutory mandates in the taking, handling, identification and disposition of blood samples under the statutory scheme, it is error to admit at trial the results of tests concerning such blood samples. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Absence of independent laboratory test. - Where attorney for the Commonwealth made no attempt to explain the absence of the independent laboratory test results, merely stating that he "didn't have anything to do with it. It's up to the defendant," the trial judge erred by admitting the Commonwealth's certificate of analysis without an explanation for the absence of the results. The Commonwealth receives the vial that is to be mailed to the independent laboratory, is responsible for mailing it, and for receiving and filing the test results. Taffe v. Commonwealth, No. 1938-93-3 (Ct. of Appeals March 14, 1995).

No right to consult counsel. - For the Supreme Court to uphold the contention of defendant that his right to consult counsel before refusing or taking the blood test is a constitutional right, would virtually nullify the implied consent law. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

The blood test prescribed by this section is a part of a civil and administrative proceeding and defendant had no right to condition his taking the test upon his ability first to consult with counsel. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

A person charged with operating a motor vehicle while under the influence of intoxicants does not have a constitutional right to consult an attorney before deciding whether to take a blood test. Coleman v. Commonwealth, 212 Va. 684 , 187 S.E.2d 172 (1972) (decided under former § 18.2-268 ).

Denial of the right to consult with counsel before an accused decides whether to take a blood test does not impair an accused's right to a trial "by the law of the land" guaranteed by Art. I, § 8, of the State Constitution. Law v. City of Danville, 212 Va. 702 , 187 S.E.2d 197 (1972) (decided under former § 18.2-268 ).

Because a proceeding relative to refusal to take a blood test is civil in nature, a person arrested for driving under the influence does not have a constitutional right to consult with counsel before deciding whether to submit to the test. Bailey v. Commonwealth, 215 Va. 130 , 207 S.E.2d 828 (1974) (decided under former § 18.2-268 ).

A person's unwillingness to take the test without prior consultation with counsel does not constitute a reasonable basis for the refusal. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Because defendant's unwillingness to submit to a breath test without access to counsel amounted to an unreasonable refusal under subsection A of § 18.2-268.3 , the trial court properly instructed the jury on said issue. Thus, defendant's conviction of unreasonably refusing to submit to a breath test, after having been convicted of two predicate offenses within ten years, in violation of § 18.2-268.3 , was upheld on appeal. Brothers v. Commonwealth, 50 Va. App. 468, 650 S.E.2d 874, 2007 Va. App. LEXIS 370 (2007).

IV. EVIDENCE.

No error in admission of certificate of analysis. - Based on a deputy's observations of defendant as she sat in her car in her driveway and her admission that she had consumed alcohol and then had driven her car and picked her daughter up from school, the trial court could reasonably have found that defendant pulled into her driveway after driving on a public highway, while under the influence of alcohol, with minors in the vehicle, and did so within one hour of her arrest; thus, the evidentiary requirements of the implied consent statute were satisfied and the trial court did not err in admitting a certificate of analysis. Easton v. Commonwealth,, 2005 Va. App. LEXIS 248 (June 28, 2005).

There was sufficient evidence that the three-hour testing requirement of the implied consent statute was satisfied where: (1) an officer first received a call at 6:20 a.m. and reported to the accident scene at a busy intersection by 6:26 a.m.; (2) when the officer arrived, defendant was still inside his vehicle, seated behind the steering wheel, with the keys in the ignition; and (3) it was reasonable for the trial court to conclude that the accident had occurred shortly prior to the call. Since defendant's arrest at 6:35 a.m. was well within three hours of the time the evidence established that the accident happened (and thus the time he committed the offense of driving while intoxicated), the trial court did not abuse its discretion in admitting the certificate of analysis of his breathalyzer test. Pruitt v. Commonwealth,, 2008 Va. App. LEXIS 57 (Feb. 5, 2008).

Even assuming, without deciding, that the officer did not have the statutory authority to arrest defendant for driving while intoxicated, it was not error for the trial court to admit the certificate of analysis into evidence, because the implied consent statute was not used to obtain the breath sample where defendant expressly volunteered to provide the sample before the officer mentioned the implied consent statute to defendant. Roseborough v. Commonwealth, 53 Va. App. 451, 672 S.E.2d 917, 2009 Va. App. LEXIS 84 (2009).

Procedural violation did not result in suppression. - Results of defendant's field sobriety tests and the field breathalyzer test could not be suppressed because the officer had no right to administer them since he stopped defendant outside his jurisdiction since § 18.2-266 did not provide for a suppression remedy for a procedural violation, and § 18.2-268.11 stated that a violation of the procedural steps of this section through § 18.2-268.9 went to the weight of the evidence; the remedy for a procedural violation was a full and fair opportunity for both sides to attempt to prove or disprove any prejudicial effect of the violation. Ford v. Commonwealth, No. 1629-12-2, 2013 Va. App. LEXIS 367 (Dec. 10, 2013).

Certificate not admissable where arrest took place after blood test. - Trial court erred in admitting a certificate of analysis at defendant's trial pursuant to § 18.2-268.2 , because the purported arrest for driving under the influence took place after the blood test was administered. Sprouse v. Commonwealth, 53 Va. App. 488, 673 S.E.2d 481, 2009 Va. App. LEXIS 109 (2009).

Test results admissible even though original DUI charge was dismissed. - Defendant's argument that the results of a breath test defendant took within two hours of the time defendant was arrested and charged by police with misdemeanor driving under the influence (DUI) could not be used at defendant's trial for felony DUI because defendant's original arrest was vacated when the Commonwealth moved successfully to nolle prosequi the misdemeanor charge so it could seek a felony indictment was without merit. Williams v. Commonwealth, 38 Va. App. 414, 565 S.E.2d 328, 2002 Va. App. LEXIS 369 (2002), aff'd, 265 Va. 268 , 576 S.E.2d 468 (2003).

Blood alcohol tests properly admitted. - In a prosecution for aggravated involuntary manslaughter, the trial court did not commit reversible error in allowing into evidence the results of a blood alcohol content test performed on a blood sample taken from a defendant in violation of his Fourth, Fifth, and Fourteenth Amendment rights, as: (1) a test conducted by hospital personnel had been independently performed and the written report thereof was admissible under § 19.2-187.02 ; (2) defendant consented to a second blood test administered by a deputy sheriff under the implied consent law; (3) evidence of defendant's intoxication was overwhelming despite testing over three times the legal limit; and (4) it was unreasonable to believe that the jury would have rejected the hospital-administered test and accepted, instead, the implied consent law test. Stevens v. Commonwealth, 272 Va. 481 , 634 S.E.2d 305, 2006 Va. LEXIS 87 (2006), cert. denied, 549 U.S. 1350, 127 S. Ct. 2053, 167 L. Ed. 2d 784, 2007 U.S. LEXIS 4119 (U.S. 2007).

It was not error to deny defendant's motion to suppress an analysis of defendant's blood because officers had probable cause to believe defendant violated § 18.2-266 , so any incoherence of defendant did not abrogate defendant's implied consent to such an analysis. Martini v. Commonwealth, No. 0392-15-4, 2016 Va. App. LEXIS 67 (Mar. 8, 2016).

Trial court did not err in denying defendant's motion to suppress the blood sample obtained by a trooper following his arrest for driving under the influence because the trooper acted in good faith reliance on established law in obtaining the sample; the trooper was following the law as it existed at the time of the arrest because the law was that defendant had, by driving on the highway, impliedly consented to provide a blood or breath sample after being arrested for driving while intoxicated. Taylor v. Commonwealth, No. 0719-18-2, 70 Va. App. 182, 826 S.E.2d 332, 2019 Va. App. LEXIS 89 (Apr. 16, 2019).

Evidence of the blood drawn taken at a hospital after defendant was informed of Virginia's implied consent law was admissible because defendant's consent to the blood draw was not unconstitutional under U.S. Const. amend. IV. A police officer's use of the word "charge" when describing the possible consequences defendant would face if defendant refused the blood draw pursuant to the implied consent law did not place an unconstitutional condition upon defendant. Johnson v. Commonwealth, No. 1591-18-1, 2020 Va. App. LEXIS 41 (Feb. 18, 2020).

Harmless error. - Even if a trial court errs in admitting an analysis of the blood test results where defendant was not arrested within three hours of driving under the influence and, thus, did not give implied consent pursuant to subsection A of § 18.2-268.2 to have blood drawn, the error in admitting such evidence may be harmless. Admission of such evidence is harmless where there is other, compelling evidence that defendant was operating a vehicle while intoxicated. Lyle v. Commonwealth,, 2008 Va. App. LEXIS 205 (Apr. 29, 2008).

Sufficient evidence of refusal to take breath test. - Evidence was sufficient to prove defendant's refusal to take a breath test in violation of § 18.2-268.3 because the only reasonable hypothesis flowing from the evidence was that defendant intentionally failed to give adequate effort to produce a test result determined by the machine to be valid and, thus, that he unreasonably refused to have a sample of his breath taken for the purpose of having its alcohol content analyzed; § 18.2-268.3 contemplates the cooperation reasonably necessary to generate a result deemed valid by the testing equipment and its licensed operator. Chisman v. Commonwealth,, 2011 Va. App. LEXIS 189 (May 31, 2011).

Applied in Weaver v. Commonwealth, 29 Va. App. 487, 513 S.E.2d 423 (1999); Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004); Rowley v. Commonwealth, 48 Va. App. 181, 629 S.E.2d 188, 2006 Va. App. LEXIS 167 (2006).

V. UNAVAILABILITY OF TEST OR INABILITY TO TAKE TEST.

Commonwealth must establish valid reason for lack of availability of test. - Once a driver elects to take either the blood test or the breath test, if the election is not honored because of unavailability, the Commonwealth must establish a valid reason for the lack of availability of a test. Mason v. Commonwealth, 15 Va. App. 583, 425 S.E.2d 544 (1993).

Reasonable basis for unavailability of test. - Where the officer was the only state police officer in the county that night and was under orders not to leave the jurisdiction of the county, the trial court did not err in finding that the Commonwealth established a reasonable basis for the unavailability of the blood test. Mason v. Commonwealth, 15 Va. App. 583, 425 S.E.2d 544 (1993).

Because defendant was lawfully arrested for driving under the influence and a breath test was unavailable, as defendant was taken by ambulance to a hospital for treatment of an injury, rather than to a jail where a breath-testing instrument was located, the implied consent statute justified a blood test at the hospital. As such, the trial court did not err in denying defendant's motion to suppress the result of the test because the test did not violate defendant's rights under U.S. Const. amend. IV. Aloudah v. Commonwealth, No. 0328-17-4, 2018 Va. App. LEXIS 37 (Feb. 13, 2018).

Burden of proving physical inability to take breath test is on the accused driver. Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999).

Where the arresting police officer contended that defendant refused to take a breath test, under subsection B of § 18.2-268.2 , by refusing to properly blow into the machine, and defendant contended that defendant was physically unable to do so, due to a medical condition involving defendant's lungs, the burden rested upon defendant to present evidence that defendant was physically unable to take the test, and physical inability was a condition precedent to any finding that the Commonwealth was required to offer a blood test; defendant's conviction for refusing to submit to a breath test, in violation of § 18.2-268.3 , was affirmed. Hudson v. Commonwealth, 266 Va. 371 , 585 S.E.2d 583, 2003 Va. LEXIS 84 (2003).

Inability to take breath test question of law. - The question of whether a person suspected of driving under the influence was physically unable to take a breath test and, therefore, was entitled to a blood test is a question of law to be resolved by the trial court even where the resolution of this matter requires the court to decide issues of credibility. Bennett v. Commonwealth, 33 Va. App. 335, 533 S.E.2d 22, 2000 Va. App. LEXIS 645 (2000).

Trial court erred in failing to rule on whether defendant was physically unable to take the breath test required by § 18.2-268.2 because the evidence of defendant's condition was conflicting since defendant testified he suffered from acid reflux, causing him to burp involuntarily, and if believed, defendant could not comply with the twenty-minute observation period, but an officer testified that he spoke with defendant for approximately thirty minutes at the scene and heard no burping, nor did he hear burping from the time of arrest until defendant was taken to jail; the trial court did not resolve the conflict in testimony and made no finding, that defendant failed to prove he was physically unable to take the breath test, and such a ruling would be inconsistent with the trial court's finding that defendant was not entitled to a breath or blood test. Packard v. Commonwealth,, 2011 Va. App. LEXIS 107 (Mar. 29, 2011).

Evidence of inability to take breath test. - Evidence of defendant's inability to perform the breath test was appropriately before the jury to explain why a blood test was performed. Wolfe v. Commonwealth, No. 0058-16-4, 67 Va. App. 97, 793 S.E.2d 811, 2016 Va. App. LEXIS 337 (Ct. of Appeals Dec. 13, 2016).

After an accused presents evidence of his physical inability, the Commonwealth is entitled to present evidence in rebuttal, after which it rests upon the trial court to determine whether the accused satisfied his or her burden. Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999).

Defendant's need to use an inhaler. - Where an officer only had to provide a blood test if he chose to compel submission to chemical testing and a breath test was unavailable or an arrestee was physically unable to submit to the breath test, an asthmatic defendant, who used her inhaler while being transported to a detention center and after her arrival there, had no statutory right to require the officer to give her a breath test under subsection B of § 18.2-268.2 . Brown-Fitzgerald v. Commonwealth, 51 Va. App. 232, 656 S.E.2d 422, 2008 Va. App. LEXIS 53 (2008).

When refusal charge to be dismissed. - Numerous, often competing considerations must be taken into account in scheduling work shifts in a law-enforcement agency. However, if these considerations are allowed to take precedence so as to subvert the availability of either test authorized by subsection B of this section, any refusal charge resulting from the application of such procedures must be dismissed. Commonwealth v. Gray, 248 Va. 633 , 449 S.E.2d 807 (1994) (decision prior to 1994 amendment).

Reasonable explanation of breath test unavailability found. - Where there was no basis for concluding that the sheriff's procedures were applied in an arbitrary or capricious manner on the date of defendant's arrest, or that the breath test was available on the date, the Commonwealth met its burden of establishing a reasonable explanation as to why the breath test was unavailable. Commonwealth v. Gray, 248 Va. 633 , 449 S.E.2d 807 (1994) (decision prior to 1994 amendment).

When the breathalyzer machine at the county jail malfunctioned it became "unavailable" within the meaning of this section and the commonwealth was not required to search surrounding areas for an otherwise available machine before requesting the defendant submit to a blood test. Herring v. Commonwealth, 28 Va. App. 588, 507 S.E.2d 638 (1998).

Denial of right to blood test warranted dismissal. - Defendant's right to a blood test was denied when she was refused such a test without a showing that it was unavailable. The charge of driving while under the influence of alcohol should have been dismissed because the denial of defendant's right to a blood test deprived her of an opportunity to prove her innocence. A driver cannot be convicted of unreasonably refusing to take a blood or breath test "without an adequate explanation from the government as to why one of the tests was unavailable." Breeden v. Commonwealth, 15 Va. App. 148, 421 S.E.2d 674 (1992) (decided under former § 18.2-268 ).

If chosen test unavailable, available test must be taken. - Although this section permits the accused to elect between a breath or blood test, if the chosen test is unavailable, then the available test must be taken. United States v. Jerge, 738 F. Supp. 181 (E.D. Va. 1990) (decided under former § 18.2-268 ).

Burden of explaining why defendant deprived of choice of tests. - If the Commonwealth or locality deprives a defendant of the choice of tests provided by this statute, it has the burden of explaining why. Driver v. Commonwealth, 6 Va. App. 583, 371 S.E.2d 27 (1988) (decided under former § 18.2-268 ).

Once a driver elects to take either the blood test or the breath test, if the election is not honored because of unavailability, the Commonwealth must establish a valid reason for the lack of availability of the test; here, a valid reason was provided when three attempts to take blood from the defendant were unsuccessful. Walker v. City of Lynchburg, 22 Va. App. 197, 468 S.E.2d 164 (1996).

Record must disclose reasons for unavailability of test. - This section contemplates the existence of both a blood and breath test, and when one of the tests is unavailable, the record must contain evidence disclosing the reasons for its unavailability. Driver v. Commonwealth, 6 Va. App. 583, 371 S.E.2d 27 (1988) (decided under former § 18.2-268 ).

When the evidence establishes that either the blood test or the breath test is unavailable, a defendant cannot be convicted of "unreasonably" refusing to submit to testing without an adequate explanation from the government as to why that test was unavailable. Driver v. Commonwealth, 6 Va. App. 583, 371 S.E.2d 27 (1988) (decided under former § 18.2-268 ).

Admissibility of physical inability to take test. - Evidence of physical inability to take breath test is admissible in a prosecution for DUI. Whereas evidence unique to a refusal charge has historically been precluded at a DUI trial, and vice versa, the changes in this section require a different evidentiary result. Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999).

Evidence of unavailability of blood test held insufficient. - Where no reason was given in the record for why the two people certified to take blood were not available, there was insufficient evidence to establish that the blood test was not available to the defendant and thus, that his refusal to take the breath test was unreasonable. Driver v. Commonwealth, 6 Va. App. 583, 371 S.E.2d 27 (1988) (decided under former § 18.2-268 ).

The defendant's need to use nitroglycerin for his heart condition during the 20 minute waiting period did not meet the "physical inability" requirement necessitating the use of a blood test. St. Clair v. City of Lynchburg, No. 1649-97-3 (Ct. of Appeals Nov. 24, 1998).

Issue preserved for appeal. - Defendant preserved the issue of whether the trial court erred in not making a factual determination of whether he was physically unable to perform the breathalyzer test required by § 18.2-268.2 because the trial court never ruled on defendant alleged inability since the trial court thought it did not need to do so when it concluded defendant was not entitled to either a breath test or a blood test; the issue of whether defendant was physically able to take the breath test was squarely before the trial court. Packard v. Commonwealth,, 2011 Va. App. LEXIS 107 (Mar. 29, 2011).

CIRCUIT COURT OPINIONS

Refusal to take breath test was not unavailability. - Commonwealth violated the implied consent law because defendant's refusal to take a breath test did not constitute unavailability thereby entitling the officer to compel submission to a blood test; the officer's actions in compelling submission to a blood test did not substantially comply with the implied consent law. Commonwealth v. Walsh, 86 Va. Cir. 532, 2013 Va. Cir. LEXIS 109 (Martinsville July 30, 2013).

Lawful arrest required to imply consent. - As defendant's arrest for driving under the influence was made by an officer who did not have the statutory authority to make an arrest outside of a university's jurisdiction, the arrest was not a lawful arrest sufficient to implement the implied consent law. Defendant's motion to suppress a certificate of the breath test analysis therefore had to be granted. Commonwealth v. Thompson, 69 Va. Cir. 283, 2005 Va. Cir. LEXIS 321 (Charlottesville 2005).

Arrest for purpose of administering blood test. - Defendant was arrested for purposes of administration of a blood alcohol test because he was taken to a hospital after a vehicular collision, and he was not free to leave the hospital of his own accord, but rather, he remained under uninterrupted police supervision until he was discharged from the hospital. Commonwealth v. Isaac, 81 Va. Cir. 508, 2009 Va. Cir. LEXIS 196 (Fairfax County Dec. 31, 2009).

Parking lot not a "highway." - Implied consent law did not apply and defendant should not have been forced to take a breath test where defendant's car was parked in a marked parking space outside a store in a shopping center parking lot; signs were posted at the entrance to the lot indicating that the lot was to be used for customers when shopping and was not open to off-site, commuter, or overnight parking; the signs prohibited loitering, soliciting and handbilling; and an officer noticed that the car was running and the driver's side door was open, but defendant appeared to be passed out in the driver's seat. Commonwealth v. Wood, 73 Va. Cir. 333, 2007 Va. Cir. LEXIS 215 (Charlottesville May 9, 2007).

Valid arrest found. - Defendant was arrested for a violation of the DWI statute even though the arresting officer did not use particular words in effectuating the arrest because the officer had probable cause to arrest, the officer made a valid arrest of defendant within three hours of the alleged offense, and the implied consent law patently did not impose any obligation on the arresting officer to use specific words in making an arrest. Commonwealth v. Walsh, 86 Va. Cir. 532, 2013 Va. Cir. LEXIS 109 (Martinsville July 30, 2013).

Townhome complex where defendant was arrested was a highway for the purposes of the implied consent law because a discrete restriction that only prohibited vehicles intending to use the complex to park in the townhome community for the convenient access of an adjacent ballfield, while at the same time allowing for access by every other member of the public for any other purpose (including travel on the road) illustrated a broad degree of openness for public use. Commonwealth v. Aragon,, 2021 Va. Cir. LEXIS 124 (Loudoun County Apr. 28, 2021).

Refusal to consent. - There was a recognized exception to the warrant requirement pursuant to subsection A of § 18.2-268.2 , which was implied consent. Because consent was applicable, there was no Fourth Amendment violation and thus it was lawful to charge defendant with a crime under § 18.2-268.3 for refusing to provide a breach sample. Commonwealth v. Hyatt, 87 Va. Cir. 398, 2014 Va. Cir. LEXIS 33 (Hanover County Feb. 11, 2014).

OPINIONS OF THE ATTORNEY GENERAL

Proper procedure for officers obtaining blood samples. - Implied consent to a blood test is triggered by a valid arrest. If a common-law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to subsection B of § 19.2-73 , because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test may be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test). See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, No. 14-022, 2014 Va. AG LEXIS 66 (12/19/14).

§ 18.2-268.3. Refusal of tests; penalties; procedures.

  1. It is unlawful for a person who is arrested for a violation of § 18.2-266 or 18.2-266 .1 or subsection B of § 18.2-272 or of a similar ordinance to unreasonably refuse to have samples of his breath taken for chemical tests to determine the alcohol content of his blood as required by § 18.2-268.2 , and any person who so unreasonably refuses is guilty of a violation of this subsection, which is punishable as follows:
    1. A first violation is a civil offense. For a first offense, the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2 .
    2. If a person is found to have violated this subsection and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, he is guilty of a Class 1 misdemeanor. A conviction under this subdivision shall of itself operate to deprive the person of the privilege to drive for a period of three years from the date of the judgment of conviction. This revocation period is in addition to the suspension period provided under § 46.2-391.2 .
  2. It is unlawful for a person who is arrested for a violation of § 18.2-266 or 18.2-266 .1 or subsection B of § 18.2-272 or of a similar ordinance to unreasonably refuse to have samples of his blood taken for chemical tests to determine the alcohol or drug content of his blood as required by § 18.2-268.2 and any person who so unreasonably refuses is guilty of a violation of this subsection, which is a civil offense and is punishable as follows:
    1. For a first offense, the court shall suspend the defendant's privilege to drive for a period of one year. This suspension period is in addition to the suspension period provided under § 46.2-391.2 .
    2. If a person is found to have violated this subsection and within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of any offense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents, such violation shall of itself operate to deprive the person of the privilege to drive for a period of three years from the date of the judgment. This revocation period is in addition to the suspension period provided under § 46.2-391.2 .
  3. When a person is arrested for a violation of § 18.2-51.4 , 18.2-266 , or 18.2-266 .1 or subsection B of § 18.2-272 or of a similar ordinance and such person refuses to permit blood or breath or both blood and breath samples to be taken for testing as required by § 18.2-268.2 , the arresting officer shall advise the person, from a form provided by the Office of the Executive Secretary of the Supreme Court (i) that a person who operates a motor vehicle upon a highway in the Commonwealth is deemed thereby, as a condition of such operation, to have consented to have samples of his blood and breath taken for chemical tests to determine the alcohol or drug content of his blood, (ii) that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, (iii) that the unreasonable refusal to do so constitutes grounds for the revocation of the privilege of operating a motor vehicle upon the highways of the Commonwealth, (iv) of the civil penalties for unreasonable refusal to have blood or breath or both blood and breath samples taken, and (v) of the criminal penalty for unreasonable refusal to have breath samples taken within 10 years of a prior conviction for driving while intoxicated or unreasonable refusal, which is a Class 1 misdemeanor. The form from which the arresting officer shall advise the person arrested shall contain a brief statement of the law requiring the taking of blood or breath samples, a statement that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial, and the penalties for refusal. The Office of the Executive Secretary of the Supreme Court shall make the form available on the Internet and the form shall be considered an official publication of the Commonwealth for the purposes of § 8.01-388 .
  4. The arresting officer shall, under oath before the magistrate, execute the form and certify (i) that the defendant has refused to permit blood or breath or both blood and breath samples to be taken for testing; (ii) that the officer has read the portion of the form described in subsection C to the arrested person; (iii) that the arrested person, after having had the portion of the form described in subsection C read to him, has refused to permit such sample or samples to be taken; and (iv) how many, if any, violations of this section, § 18.2-266 , or any offense described in subsection E of § 18.2-270 the arrested person has been convicted of within the last 10 years. Such sworn certification shall constitute probable cause for the magistrate to issue a warrant or summons charging the person with unreasonable refusal. The magistrate shall attach the executed and sworn advisement form to the warrant or summons. The warrant or summons for a first offense under subsection A or any offense under subsection B shall be executed in the same manner as a criminal warrant or summons. If the person arrested has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer may read the advisement form to the person at the medical facility, and issue, on the premises of the medical facility, a summons for a violation of this section in lieu of securing a warrant or summons from the magistrate. The magistrate or arresting officer, as the case may be, shall forward the executed advisement form and warrant or summons to the appropriate court.
  5. A defendant who is found guilty of a first offense and whose license is suspended pursuant to subdivision A 1 or B 1 may petition the court 30 days after the date of conviction for a restricted license and the court may, for good cause shown, provide that the defendant is issued a restricted license during the remaining period of suspension, or any portion thereof, for any of the purposes set forth in subsection E of § 18.2-271.1 . No restricted license issued pursuant to this subsection shall permit any person to operate a commercial motor vehicle as defined in the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.). If the court grants such petition and issues the defendant a restricted license, the court shall order (i) that reinstatement of the defendant's license to drive be conditioned upon (a) the installation of an ignition interlock system on each motor vehicle, as defined in § 46.2-100 , owned by or registered to the person, in whole or in part, for a period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements and (b) the requirement that such person not operate any motor vehicle that is not equipped with such a system for the period of time that the interlock restriction is in effect and (ii) that, as a condition of probation or otherwise, the defendant enter into and successfully complete an alcohol safety action program in the judicial district in which such charge is brought or in any other judicial district upon such terms and conditions as the court may set forth. However, upon motion of a person convicted of any such offense following an assessment of the person conducted by an alcohol safety action program, the court, for good cause, may decline to order participation in such a program if the assessment conducted by the alcohol safety action program indicates that intervention is not appropriate for such person. In no event shall such persons be permitted to enter any such program that is not certified as meeting minimum standards and criteria established by the Commission on the Virginia Alcohol Safety Action Program (VASAP) pursuant to this section and to § 18.2-271.2 . The court shall require the person entering such program under the provisions of this section to pay a fee of no less than $250 but no more than $300. A reasonable portion of such fee, as may be determined by the Commission on VASAP, but not to exceed 10 percent, shall be forwarded monthly to be deposited with the State Treasurer for expenditure by the Commission on VASAP, and the balance shall be held in a separate fund for local administration of driver alcohol rehabilitation programs. Upon a positive finding that the defendant is indigent, the court may reduce or waive the fee. In addition to the costs of the proceeding, fees as may reasonably be required of defendants referred for intervention under any such program may be charged. If the court grants a restricted license to any person pursuant to this section, the court shall order such person to surrender his driver's license to be disposed of in accordance with the provisions of § 46.2-398 and shall forward to the Commissioner of the Department of Motor Vehicles a copy of its order entered pursuant to this subsection. This order shall specifically enumerate the restrictions imposed and contain such information regarding the person to whom such a permit is issued as is reasonably necessary to identify such person. The court shall also provide a copy of its order to such person who may operate a motor vehicle on the order until receipt from the Commissioner of the Department of Motor Vehicles of a restricted license, but only if the order provides for a restricted license for that period. A copy of the order and, after receipt thereof, the restricted license shall be carried at all times by such person while operating a motor vehicle. The period of time during which the person is prohibited from operating a motor vehicle that is not equipped with an ignition interlock system shall be calculated from the date the person is issued a restricted license by the court; however, such period of time shall be tolled upon the expiration of the restricted license issued by the court until such time as the person is issued a restricted license by the Department of Motor Vehicles. Any person who operates a motor vehicle in violation of any restrictions imposed pursuant to this section shall be guilty of a violation of § 18.2-272 . The provisions of subsection F of § 18.2-271.1 shall apply to this subsection mutatis mutandis, except as herein provided.
  6. Notwithstanding any other provisions of this section or of § 18.2-271.1 , nothing in this section shall permit the court to suspend, reduce, limit, or otherwise modify any disqualification from operating a commercial motor vehicle imposed under the provisions of the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.). (1992, c. 830; 1994, cc. 359, 363; 1997, c. 691; 2001, cc. 654, 779; 2004, cc. 985, 1013, 1022; 2004, Sp. Sess. I, c. 2; 2005, cc. 757, 840; 2009, c. 239; 2017, c. 623; 2020, c. 341.)

Cross references. - As to mandatory background screenings for TNC partners to provide updated information to transportation network companies, see § 46.2-2099.49 .

Editor's note. - Acts 1994, cc. 359 and 363, cls. 2, provide that "the provisions of this act contained in §§ 18.2-268.2 through 18.2-268.5 , 18.2-271 , 18.2-271 .1 and 46.2-391.2 through 46.2-391.5 shall become effective January 1, 1995, except to the extent that the amendments merely reflect the enactment by this act of § 18.2-266.1 ."

The 1997 amendment inserted " §§ 18.2-51.4 " following "arrested for a violation of" in the first sentence of subsection A.

The 2001 amendments. - The 2001 amendment by c. 654, in subsection A, inserted "(i)" in two places, inserted "(ii) a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial," inserted "(iii)" in two places, and inserted "(ii) that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial"; inserted "that a finding of unreasonable refusal to consent may be admitted as evidence at a criminal trial" in the first sentence of subsection B; and deleted "but subsequent to the defendant's criminal trial for driving under the influence of intoxicants" at the end of subsection D.

The 2001 amendment by c. 779, in subsection A, inserted the present second sentence, and inserted "or by the arresting officer at a medical facility" following "magistrate" in the present third sentence; in subsection B, inserted "or arresting officer at a medical facility" following "magistrate" twice in the second sentence, substituted "subsection A" for " § 18.2-268.2 " at the end of the third sentence, added "or summonses" at the end of the fourth sentence, and added the fifth sentence; in subsection C, inserted "or arresting officer at a medical facility," "or summons from the arresting officer" and "or by the arresting officer" in the second sentence; and in subsection E inserted "or arresting officer at a medical facility" following "magistrate" in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 985, in subsection A, added clauses (iv) and (v) near the end of the first sentence and substituted "penalties" for "penalty" in clause (iii) of the last sentence; in subsection B, substituted "penalties" for "penalty" in the first sentence, deleted "in all cases" at the end of the second sentence, deleted the third sentence, and inserted "for a first offense under this section" near the beginning of the next-to-last sentence; and made related and minor stylistic changes.

The 2004 amendment by c. 1013 substituted "18.2-266.1 or § 18.2-272 " for " § 18.2-266.1 " in subsection A, "the Commonwealth" for "this Commonwealth" twice in subsection A and once in subsection B, "penalties" for "penalty" in subsections A and B, added clause (iv) and clause designation (v) and inserted "the criminal penalty for unreasonable refusal within 10 years of any two prior convictions for driving while intoxicated or unreasonable refusal is a Class 1 misdemeanor" in subsection A and made related changes, and inserted "for a first offense under this section" in subsection B.

The 2004 amendment by c. 1022, in subsection A, substituted "When a person is arrested" for "If a person, after having been arrested" and inserted "shall advise the person, from a form described in subsection B" near the beginning, and deleted "the arresting officer shall take the person before a committing magistrate" at the end, of the first sentence, and deleted the former second and third sentences; in subsection B, inserted "from which the arresting officer shall advise the person arrested shall be provided by the Office of the Executive Secretary of the Supreme Court and" near the beginning, and substituted "and an acknowledgement of the arresting officer that he has read the form to the defendant and a line for the signature of the arresting officer" for "and lines for the signature of the person from whom the blood or breath sample is sought, the date, and the signature of a witness to the signing" at the end, of the first sentence; deleted the former second sentence; inserted the present second and fourth sentences; added "and shall attach the executed advisement form to the warrant or summons" at the end of the present third sentence; deleted the former second sentence of subsection C; and deleted former subsections D and E.

The 2004 amendment by Sp. Sess. I, c. 2, effective July 1, 2004, added the present first sentence in subsection C.

The section above is set out as directed by the Virginia Code Commission.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and rewrote the section.

The 2009 amendments. - The 2009 amendment by c. 239 added the last sentence in subsection B.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, rewrote the section.

The 2020 amendments. - The 2020 amendment by c. 341 added subsections E and F.

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For comment, "Texting While Driving," see 29 Geo. Mason U. Civ. Rts. L.J. 301 (2019).

Research References. - Virginia Forms (Matthew Bender). No. 9-2805 Certificate of Refusal -- Breath Test, et seq.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 18 M.J. Surface Transportation Systems; Streets, Highways, Etc., § 2.

CASE NOTES

Constitutionality. - Defendant's conviction for unlawfully refusing to provide a breath sample after being arrested for driving under the influence of alcohol was affirmed as § 18.2-268.3 did not compel testimonial evidence in breach of the Fifth Amendment or authorize an unlawful search or seizure in violation of the Fourth Amendment. Rowley v. Commonwealth, 48 Va. App. 181, 629 S.E.2d 188, 2006 Va. App. LEXIS 167 (2006).

As defendant failed to offer an objectively reasonable basis for refusing to provide a breath sample, he failed to establish that this section was unconstitutional as applied to him and he lacked standing to challenge the constitutionality of the statute. Shin v. Commonwealth, 294 Va. 517 , 808 S.E.2d 401 (2017).

"Trial." - As used in this section, "trial" refers to the hearing of the evidence on the charge. Farren v. Commonwealth, 30 Va. App. 234, 516 S.E.2d 253 (1999).

An accused may not pick and choose the specific sample he wants withdrawn; he or she either consents or refuses. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Admission of refusal to perform test did not violate constitutions. - Neither the Fifth Amendment nor Va. Const., Art. I, § 8 were violated by the admission in evidence of defendant's refusal to take a field sobriety test. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991) (decided under former § 18.2-268 ).

Evidence of refusal, to show defendant believed he might fail, violates constitution. - Evidence of a refusal to submit to field sobriety tests, when used by the finder of fact as evidence that the accused refused to submit to the test because he believed he might fail, violates the accused's right, under Va. Const., Art. I, § 8, not to "be compelled . . . to give evidence against himself." Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990) (decided under former § 18.2-268 ).

Blood test as Fourth Amendment search. - A blood test administered to defendant driver two hours after automobile accident was a search within the meaning of the Fourth Amendment. Tipton v. Commonwealth, 18 Va. App. 370, 444 S.E.2d 1 (1994) But see Bristol v. Commonwealth, 272 Va. 568 , 636 S.E.2d 460 (2006), which overruled the Tipton court as to the existence of exigent circumstances.

Taking of blood sample from unconscious defendant. - While the taking of a blood sample from an unconscious defendant alleged to have been driving under the influence was permitted, it was not mandatory in order to prosecute defendant for driving under the influence. Oliver v. Commonwealth, 40 Va. App. 20, 577 S.E.2d 514, 2003 Va. App. LEXIS 98 (2003).

Consent not qualified or conditional. - The consent to submit to a blood or breath test, granted when a person operates a motor vehicle upon the highways, "is not a qualified consent and it is not a conditional consent, and therefore there can be no qualified refusal or conditional refusal to take the test." The mere fact that under the statute "an accused is afforded an opportunity to establish the reasonableness of his refusal does not operate to dilute the consent previously given, or convert that consent into a qualified or conditional one." Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

The fact that under this section an accused is afforded an opportunity to establish the reasonableness of his refusal to consent to the taking of a sample of his blood or breath does not operate to dilute the consent previously given, under the implied consent law in § 18.2-268.2 , or convert that consent into a qualified or conditional one, so the fact that an accused is unconscious at the time of an incident is not a refusal to take the test. Goodman v. Commonwealth, 37 Va. App. 374, 558 S.E.2d 555, 2002 Va. App. LEXIS 45 (2002).

Because defendant's unwillingness to submit to a breath test without access to counsel amounted to an unreasonable refusal under subsection A of § 18.2-268.3 , the trial court properly instructed the jury on said issue. Thus, defendant's conviction of unreasonably refusing to submit to a breath test, after having been convicted of two predicate offenses within ten years, in violation of § 18.2-268.3 , was upheld on appeal. Brothers v. Commonwealth, 50 Va. App. 468, 650 S.E.2d 874, 2007 Va. App. LEXIS 370 (2007).

The concept of the law is that a driver, if arrested under the drunk driving statute ( § 18.2-266 ), may be asked to consent to taking the test and for an unreasonable refusal, the penalty of a suspended license would be imposed. United States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970) (decided under former § 18.2-268 ).

The fact that under the Virginia statute an accused is afforded an opportunity to establish the reasonableness of his refusal does not operate to dilute the consent previously given, or convert that consent into a qualified or conditional one. The statute does excuse from taking the test one whose refusal is reasonable. An illustration is where a person's health would be endangered by the withdrawal of blood. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

When the evidence establishes that either the blood test or the breath test is unavailable, a defendant cannot be convicted of "unreasonably" refusing to submit to testing without an adequate explanation from the government as to why that test was unavailable. Driver v. Commonwealth, 6 Va. App. 583, 371 S.E.2d 27 (1988) (decided under former § 18.2-268 ).

The court of appeals does not have jurisdiction over an appeal from a conviction of refusal to take a blood or breath test. Thomas v. Commonwealth, 22 Va. App. 735, 473 S.E.2d 87 (1996), rev'd on other grounds, on reh'g, en banc, 24 Va. App. 49, 480 S.E.2d 135 (1997).

Construction of license suspension with other punishments. - The one year license suspension pursuant to this section for refusing a blood/breath test is no part of the punishment for drunk driving nor is it added punishment for the offense committed; it is a measure flowing from the police power of the state designed to protect other users of the state highways. Brame v. Commonwealth, 252 Va. 122 , 476 S.E.2d 177 (1996).

Defendant's administrative license suspension was not a criminal proceeding, and hence, could not serve as a bar to a proceeding under this section for refusing to submit to a blood or breath test. Brame v. Commonwealth, 252 Va. 122 , 476 S.E.2d 177 (1996).

A person arrested must be advised by the arresting officer of the implied consent condition and that "the unreasonable refusal" to submit to a test constitutes grounds for revocation of driving privileges. If the person refuses to permit the testing, the person shall be taken before a magistrate, who must advise the person again of the implied consent law's requirements. If the person declares the refusal in writing on a prescribed form, or refuses to so declare, then no samples shall be taken. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Evidence of unavailability of blood test held insufficient. - Where no reason was given in the record for why the two people certified to take blood were not available, there was insufficient evidence to establish that the blood test was not available to the defendant and thus, that his refusal to take the breath test was unreasonable. Driver v. Commonwealth, 6 Va. App. 583, 371 S.E.2d 27 (1988) (decided under former § 18.2-268 ).

Unlawful refusal charges are administrative and civil in nature, and therefore, the Commonwealth can appeal from a finding of not guilty in a prosecution for unreasonably refusing to submit to a blood or breath alcohol test. Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991) (decided under former § 18.2-268 ).

There must be some reasonable factual basis for refusal to take the blood test, for example, endangerment of the health of the accused by the withdrawal of blood. Bailey v. Commonwealth, 215 Va. 130 , 207 S.E.2d 828 (1974) (decided under former § 18.2-268 ).

Defendant required to present evidence of claimed physical inability to take breath test. - Where the arresting police officer contended that defendant refused to take a breath test by refusing to properly blow into the machine, and defendant contended that defendant was physically unable to do so, due to a medical condition involving defendant's lungs, the burden rested upon defendant to present evidence that defendant was physically unable to take the test, and physical inability was a condition precedent to any finding that the Commonwealth was required to offer a blood test. Hudson v. Commonwealth, 266 Va. 371 , 585 S.E.2d 583, 2003 Va. LEXIS 84 (2003).

Elements of unreasonable refusal offense. - Shrader form was not required in order for the Commonwealth to establish a prima facie case of unreasonable refusal against defendant as subsection A of § 18.2-268.3 did not incorporate the procedural requirements set forth in subsections B and C of § 18.2-268.3 , and thus, while those subsections provided significant procedural safeguards to defendant, they were not elements of the unreasonable refusal offense. D'Amico v. Commonwealth, 287 Va. 284 , 754 S.E.2d 291, 2014 Va. LEXIS 26 (Feb. 27, 2014).

Adequate reason for refusal. - Whether defendant's reason for refusing the test was adequate, depended, not upon his subjective reason, but rather upon whether his explanation for refusing the test constituted a legally cognizable reason for doing so and that determination depended largely upon the purpose of the test and defendant's explanation was material, and thus admissible. Quinn v. Commonwealth, 9 Va. App. 321, 388 S.E.2d 268 (1990) (decided under former § 18.2-268 ).

Sufficient evidence of refusal to take breath test. - Evidence was sufficient to prove defendant's refusal to take a breath test in violation of § 18.2-268.3 because the only reasonable hypothesis flowing from the evidence was that defendant intentionally failed to give adequate effort to produce a test result determined by the machine to be valid and, thus, that he unreasonably refused to have a sample of his breath taken for the purpose of having its alcohol content analyzed; § 18.2-268.3 contemplates the cooperation reasonably necessary to generate a result deemed valid by the testing equipment and its licensed operator. Chisman v. Commonwealth,, 2011 Va. App. LEXIS 189 (May 31, 2011).

Evidence was sufficient to show that defendant operated on a public roadway the car defendant was found standing beside sometime in the three hours immediately preceding defendant's arrest for driving while intoxicated as defendant was found beside the car in a private driveway that was accessible from a public roadway, the hood of the car was warm from the engine running, and defendant made statements regarding whether or not defendant hit something with the car as defendant attempted to change the tires on the car. Ramos v. Commonwealth,, 2015 Va. App. LEXIS 270 (Sept. 22, 2015).

Trial court to determine "reasonableness." - At trial of the refusal charge, the declaration of refusal or the magistrate's certificate is prima facie evidence that the defendant refused to submit to the testing. "However, this shall not prohibit the defendant from introducing on his behalf evidence of the basis for his refusal. The court shall determine the reasonableness of such refusal." Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

It is not reasonable to refuse a blood analysis solely because counsel advises not to take the test. Bailey v. Commonwealth, 215 Va. 130 , 207 S.E.2d 828 (1974) (decided under former § 18.2-268 ).

Nor due to lack of consultation with counsel. - An unwillingness to take the blood test without prior consultation with counsel is not a reasonable refusal. Coleman v. Commonwealth, 212 Va. 684 , 187 S.E.2d 172 (1972); Bailey v. Commonwealth, 215 Va. 130 , 207 S.E.2d 828 (1974) (decided under former § 18.2-268 ).

Nor belief that test is unwarranted. - It is not reasonable to refuse to take a blood or breath test which is designed for the very purpose of determining a driver's state of sobriety, and which the driver is deemed to have impliedly consented to take, on the ground that the driver believes that the test is unwarranted. Quinn v. Commonwealth, 9 Va. App. 321, 388 S.E.2d 268 (1990) (decided under former § 18.2-268 ).

A driver's subjective belief that he was not under the influence of alcohol is not a reasonable basis for refusing the test, nor is the fact that he could and did operate his vehicle in a proficient manner. Thus, evidence of his state of sobriety or proficiency in operating the vehicle is not admissible in a case involving refusal to take a blood or breath test. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

The defendant may not unilaterally abrogate the agreement or withdraw that consent by refusing the test unless there is a reasonable basis for the refusal. A fear of being "framed" is not such a basis; it is not "reasonable" in the sense that evidence of endangerment of the health of the accused by withdrawal of blood furnishes a "reasonable" basis for refusal. That type of evidence should have been offered in the trial of the DUI charge because it may relate to the question whether the police officer's stop of the accused was lawful; certainly such evidence is not probative in the trial of the refusal charge. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Refusal based on reluctance to sign document implying agency. - A defendant's refusal, following an automobile accident, to sign the consent form required by a hospital before administration of a blood test did not constitute a refusal to submit to the blood test within the contemplation of subsection (c) (now this section) of this section, where his refusal was based upon his reluctance to sign his name to a printed document whose contents implied that he had been the driver of the automobile, and not upon his unwillingness to submit to a blood test. Simon v. Commonwealth, 220 Va. 412 , 258 S.E.2d 567 (1979) (decided under former § 18.2-268 ).

Alka-sensor test inadmissible to show reasonable refusal of section's tests. - Result of a preliminary alka-sensor test which allegedly read .00 and which was taken pursuant to § 18.2-267 was not admissible to show whether driver reasonably refused to submit to a blood or breath test as required by this section. Northup v. Commonwealth, No. 0290-89-2 (Ct. of Appeals Sept. 11, 1990) (decided under former § 18.2-268 ).

No right to consult counsel. - For the Supreme Court to uphold the contention of defendant that his right to consult counsel before refusing or taking the blood test is a constitutional right, would virtually nullify the implied consent law. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

The blood test prescribed by this section is a part of a civil and administrative proceeding and defendant had no right to condition his taking the test upon his ability first to consult with counsel. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

A person charged with operating a motor vehicle while under the influence of intoxicants does not have a constitutional right to consult an attorney before deciding whether to take a blood test. Coleman v. Commonwealth, 212 Va. 684 , 187 S.E.2d 172 (1972) (decided under former § 18.2-268 ).

Denial of the right to consult with counsel before an accused decides whether to take a blood test does not impair an accused's right to a trial "by the law of the land" guaranteed by Art. I, § 8, of the State Constitution. Law v. City of Danville, 212 Va. 702 , 187 S.E.2d 197 (1972) (decided under former § 18.2-268 ).

Because a proceeding relative to refusal to take a blood test is civil in nature, a person arrested for driving under the influence does not have a constitutional right to consult with counsel before deciding whether to submit to the test. Bailey v. Commonwealth, 215 Va. 130 , 207 S.E.2d 828 (1974) (decided under former § 18.2-268 ).

Although an action brought by the Commonwealth for refusal to submit to a blood or a breath test is a civil proceeding, the Commonwealth is required to prove its case beyond a reasonable doubt. Cash v. Commonwealth, 5 Va. App. 506, 364 S.E.2d 769 (1988) (decided under former § 18.2-268 ).

A person's unwillingness to take the test without prior consultation with counsel does not constitute a reasonable basis for the refusal. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Circuit court properly found defendant guilty of unreasonable refusal where the relevant, undisputed evidence was that he had been arrested for driving under the influence of alcohol in violation of § 18.2-266 and refused to submit to a breath test until he had spoken with his attorney. D'Amico v. Commonwealth, 287 Va. 284 , 754 S.E.2d 291, 2014 Va. LEXIS 26 (Feb. 27, 2014).

Officer not required to advise defendant of consequences where he has agreed to test. - An officer was not required to advise the defendant of the consequences of his refusal to take a breath test where, after being advised that drivers on Virginia highways are required to take a breath test, the defendant agreed to take such a test. Whibley v. Commonwealth, No. 1515-97-4 (Ct. of Appeals Oct. 27, 1998).

Certificate of committing justice that defendant refused to submit to test. - Under subsection (m) (now subsection E), the certificate of the committing justice is made "prima facie evidence that the defendant refused to submit to the taking of a sample of his blood to determine the alcoholic content thereof." Lacking a certificate, the Commonwealth is not entitled to the benefit of subsection (m) (now subsection E) of the statute; it may, however, prove the refusal by other evidence. Boggs v. Commonwealth, 212 Va. 658 , 187 S.E.2d 204 (1972) (decided under former § 18.2-268 ).

Upon refusal, the magistrate shall certify to such fact and that the person was advised of the law's requirements, and shall charge the person with a violation of § 18.2-268.2 for refusing the test. Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Jurisdiction where offense occurred, not where refusal was executed, had authority to prosecute. - Jurisdiction in which the driving offense occurred had authority to prosecute individual for refusal to give a breath or blood sample even though the declaration of refusal was executed before a magistrate in another jurisdiction; the requirement that the declaration be before a magistrate is a procedural, not a substantive, requirement of the implied consent statute; the magistrate only verifies the arrested individual's initial refusal to the arresting officer, and refusal is deemed under the implied consent statute to have occurred where the act of driving occurred. Robertie v. City of Fairfax, 10 Va. App. 400, 392 S.E.2d 503 (1990) (decided under former § 18.2-268 ).

This section does not require that different judge hear unreasonable refusal charge, nor does it suggest that knowledge of that charge mandates recusal. Farren v. Commonwealth, 30 Va. App. 234, 516 S.E.2d 253 (1999).

Although unreasonable refusal charge must be tried subsequent to trial of a related charge of driving under the influence, it does not follow that the two charges were tried together in violation of the statutory mandate if arraignment was held on the refusal charge before the trial court heard any evidence on the charge of driving under the influence. The hearing of the evidence must be what is subsequent to the hearing of the evidence on the first charge. Farren v. Commonwealth, 30 Va. App. 234, 516 S.E.2d 253 (1999).

The warrant referred to by this section is obviously not a criminal warrant. It is in the nature of a writ or precept from a competent authority in pursuance of law, directing the doing of an act, and addressed to the officer or person competent to do the act. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

This section directs that the warrant "be executed" in the same manner as a criminal warrant. This is to prescribe an appropriate method of serving notice on the accused. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969) (decided under former § 18.2-268 ).

Prosecution by Commonwealth Attorney. - Trial court properly denied defendant's motion to remove the Commonwealth of Virginia Attorney from the trial of defendant's case for refusal of a breath test, in violation of § 18.2-268.3 , because, despite the fact that first-offense refusal cases under § 18.2-268.3 were civil in nature, the Commonwealth and Assistant Commonwealth Attorneys were vested with the authority to prosecute them under § 18.2-268.4 in that the Virginia Legislature in subsection B directed that the procedure for appeal and trial under the code section was to be the same as provided by law for misdemeanors. Under subsection B of § 15.2-1627 , misdemeanors were prosecuted by Commonwealth Attorneys and their assistants. Kozmina v. Commonwealth, 281 Va. 347 , 706 S.E.2d 860, 2011 Va. LEXIS 53 (2011).

Criminal and civil actions independent. - Operation of a motor vehicle while under the influence of alcohol or drugs may give rise to two separate and distinct proceedings - one a criminal action for DUI and the other a civil, administrative proceeding on the refusal charge. "Each action proceeds independently of the other and the outcome of one is of no consequence to the other." Cash v. Commonwealth, 251 Va. 46 , 466 S.E.2d 736 (1996).

Offense may not be prosecuted under federal Assimilative Crimes Act. - The offense of refusing to take a breathalyzer test may not be prosecuted under the federal Assimilative Crimes Act, since the proceeding under this section to suspend a driver's license for his refusal to submit to a test is administrative and civil, not criminal, in nature. United States v. Rowe, 599 F.2d 1319 (4th Cir. 1979) (decided under former § 18.2-268 ).

Defendant's statement admissible. - Trial court did not err in admitting into evidence defendant's statement that he flipped his vehicle because the statement was voluntary as it was not responsive to any question propounded by the state trooper, and its admissibility was not barred by the Fifth Amendment; the trooper was reading the informed consent form, as he was required by law to do, when defendant blurted out the statement. Wilson v. Commonwealth,, 2015 Va. App. LEXIS 308 (Nov. 3, 2015).

Motion to suppress denied. - Trial court did not err in denying defendant's motion to suppress the blood sample obtained by a trooper following his arrest for driving under the influence because the trooper acted in good faith reliance on established law in obtaining the sample; the trooper was following the law as it existed at the time of the arrest because the law was that defendant had, by driving on the highway, impliedly consented to provide a blood or breath sample after being arrested for driving while intoxicated. Taylor v. Commonwealth, No. 0719-18-2, 70 Va. App. 182, 826 S.E.2d 332, 2019 Va. App. LEXIS 89 (Apr. 16, 2019).

Evidence of the blood drawn taken at a hospital after defendant was informed of Virginia's implied consent law was admissible because defendant's consent to the blood draw was not unconstitutional under U.S. Const. amend. IV. A police officer's use of the word "charge" when describing the possible consequences defendant would face if defendant refused the blood draw pursuant to the implied consent law did not place an unconstitutional condition upon defendant. Johnson v. Commonwealth, No. 1591-18-1, 2020 Va. App. LEXIS 41 (Feb. 18, 2020).

Applied in Lamay v. Commonwealth, 29 Va. App. 461, 513 S.E.2d 411 (1999); Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

CIRCUIT COURT OPINIONS

Constitutionality. - Civil penalty provisions of Virginia's unreasonable refusal statute, § 18.2-268.3 , were valid and enforceable where federal case law specifically held that warrantless breath tests incident to arrests for drunk driving were constitutional under the Fourth Amendment, and the criminal offense provisions were severable from the civil penalty provisions. Commonwealth v. Shin, 94 Va. Cir. 290, 2016 Va. Cir. LEXIS 224 (Fairfax County Sept. 20, 2016), aff'd, 294 Va. 517 , 808 S.E.2d 401 (2017).

This section's requirement to consent to a breath test as condition of driving a motor vehicle did not violate the unconstitutional conditions doctrine given the constitutionality of warrantless breath tests. Commonwealth v. Shin, 94 Va. Cir. 290, 2016 Va. Cir. LEXIS 224 (Fairfax County Sept. 20, 2016), aff'd, 294 Va. 517 , 808 S.E.2d 401 (2017).

There was no constitutional violation for an imperfect advisement of rights made in good faith by the officer who was then complying with the law as understood by law enforcement. Commonwealth v. Shin, 94 Va. Cir. 290, 2016 Va. Cir. LEXIS 224 (Fairfax County Sept. 20, 2016), aff'd, 294 Va. 517 , 808 S.E.2d 401 (2017).

Exception to warrant requirement. - There was a recognized exception to the warrant requirement pursuant to subsection A of § 18.2-268.2 , which was implied consent. Because consent was applicable, there was no Fourth Amendment violation and thus it was lawful to charge defendant with a crime under § 18.2-268.3 for refusing to provide a breach sample. Commonwealth v. Hyatt, 87 Va. Cir. 398, 2014 Va. Cir. LEXIS 33 (Hanover County Feb. 11, 2014).

OPINIONS OF THE ATTORNEY GENERAL

Proper procedure for officers obtaining blood samples. - Implied consent to a blood test is triggered by a valid arrest. If a common-law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to subsection B of § 19.2-73 , because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test may be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test). See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, No. 14-022, 2014 Va. AG LEXIS 66 (12/19/14).

§ 18.2-268.4. Trial and appeal for refusal.

  1. Venue for the trial of the warrant or summons shall lie in the court of the county or city in which the offense of driving under the influence of intoxicants or other offense listed in subsection A or B of § 18.2-268.3 is to be tried.
  2. The procedure for appeal and trial of any civil offense of § 18.2-268.3 shall be the same as provided by law for misdemeanors; if requested by either party on appeal to the circuit court, trial by jury shall be as provided in Article 4 (§ 19.2-260 et seq.) of Chapter 15 of Title 19.2, and the Commonwealth shall be required to prove its case beyond a reasonable doubt.
  3. If the defendant pleads guilty to a violation of § 18.2-266 or 18.2-266.1 or subsection B of § 18.2-272 or of a similar ordinance, the court may dismiss the warrant or summons. The court shall dispose of the defendant's license in accordance with the provisions of § 46.2-398 ; however, the defendant's license shall not be returned during any period of suspension imposed under § 46.2-391.2 . (1992, c. 830; 1994, cc. 151, 359, 363; 2004, cc. 985, 1013; 2005, cc. 757, 840, 943; 2017, c. 623.)

The 2004 amendments. - The 2004 amendments by cc. 985 and 1013 are identical, and inserted the A designation at the beginning of the first paragraph and inserted "of a first offense of § 18.2-268.3 " near the beginning; redesignated the former first sentence in the next-to-last paragraph as the second paragraph in subsection A; added subsection B and redesignated the former next-to-last sentence in the next-to-last paragraph as the last sentence in subsection B; added subsection C; redesignated the former last sentence in the next-to-last paragraph as the first paragraph of subsection D and deleted "However" at the beginning and deleted "However" at the beginning of the last sentence in the second paragraph of subsection D.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and added subsection A; deleted former subsections B and C relating to persons convicted of a violation committed within 10 years of a prior offense and redesignated subsections accordingly.

The 2005 amendment by c. 943 substituted "dispose of the defendant's license in accordance with the provisions of § 46.2-398 " for "forward the defendant's license to the Commissioner of the Department of Motor Vehicles of Virginia as in other cases of similar nature for suspension of license. If the defendant appeals his conviction, the court shall return the license to him upon his appeal being perfected" in the last paragraph of subsection C, and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection B, substituted "any civil" for "a first"; and made stylistic changes in subsection C.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 9-2805 Certificate of Refusal -- Breath Test, et seq.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Defendant's substantive right of appeal regulated by § 8.01-670 . - Although subsection V (now the first paragraph of this section) regulates the procedure on appeal, a defendant's substantive right of appeal is regulated by § 8.01-670 , which authorizes an appeal to the Supreme Court by any person aggrieved by a final judgment in any other civil case. Thus, the Supreme Court had jurisdiction in a refusal to submit to a blood or breath alcohol test case. Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991) (decided under former § 18.2-268 ).

Trial court did not err in holding that neither res judicata nor collateral estoppel bars a court from suspending a person's operator's license for one year for his refusal to take a blood or breath alcohol test when he has already suffered a seven-day administrative suspension for the same refusal. Simmons v. Commonwealth, 252 Va. 118 , 475 S.E.2d 806 (1996).

Unlawful refusal charges are administrative and civil in nature, and therefore, the Commonwealth can appeal from a finding of not guilty in a prosecution for unreasonably refusing to submit to a blood or breath alcohol test. Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991) (decided under former § 18.2-268 ).

Entitled to new trial in circuit court. - By incorporating the "procedure for appeal" set forth in § 16.1-136 into this section, the General Assembly has declared that a person convicted in a court not of record of unreasonable refusal is entitled, on appeal, to a new trial by jury in the circuit court. Eames v. Town of Rocky Mount, 217 Va. 16 , 225 S.E.2d 197 (1976) (decided under former § 18.2-268 ).

Prosecution by Commonwealth Attorney. - Trial court properly denied defendant's motion to remove the Commonwealth of Virginia's Attorney from the trial of defendant's case for refusal of a breath test, in violation of § 18.2-268.3 , because, despite the fact that first-offense refusal cases under § 18.2-268.3 were civil in nature, the Commonwealth and Assistant Commonwealth Attorneys were vested with the authority to prosecute them under § 18.2-268.4 in that the Virginia Legislature in subsection B directed that the procedure for appeal and trial under the code section was to be the same as provided by law for misdemeanors. Under subsection B of § 15.2-1627 , misdemeanors were prosecuted by Commonwealth Attorneys and their assistants. Kozmina v. Commonwealth, 281 Va. 347 , 706 S.E.2d 860, 2011 Va. LEXIS 53 (2011).

Venue proper. - Circuit court had venue to try defendant's drunk driving cases because, while the offense did not occur within 300 yards of a city or county boundaries, venue was clearly allowed in the city where it was undisputed that the offense occurred within one mile of the city boundary, and venue for a trial for a refusal to submit charge was in the court in which the driving under the influence charge was tried. Bista v. Commonwealth, No. 0432-15-1, 2015 Va. App. LEXIS 380 (Dec. 15, 2015).

Applied in Frouz v. Commonwealth, 296 Va. 391 , 821 S.E.2d 324, 2018 Va. LEXIS 175 (2018).

§ 18.2-268.5. Qualifications and liability of persons authorized to take blood sample; procedure for taking samples.

For purposes of this article, only a physician, registered nurse, licensed practical nurse, phlebotomist, graduate laboratory technician or a technician or nurse designated by order of a circuit court acting upon the recommendation of a licensed physician, using soap and water, polyvinylpyrrolidone iodine, pvp iodine, povidone iodine or benzalkonium chloride to cleanse the part of the body from which the blood is taken and using instruments sterilized by the accepted steam sterilizer or some other sterilizer which will not affect the accuracy of the test, or using chemically clean sterile disposable syringes, shall withdraw blood for the purpose of determining its alcohol or drug or both alcohol and drug content. It is a Class 3 misdemeanor to reuse single-use-only needles or syringes. No civil liability shall attach to any person authorized to withdraw blood as a result of the act of withdrawing blood as provided in this section from any person submitting thereto, provided the blood was withdrawn according to recognized medical procedures. However, the person shall not be relieved from liability for negligence in the withdrawing of any blood sample.

No person arrested for a violation of § 18.2-266 , 18.2-266 .1, or subsection B of § 18.2-272 , or a similar ordinance shall be required to execute in favor of any person or corporation a waiver or release of liability in connection with the withdrawal of blood and as a condition precedent to the withdrawal of blood as provided for in this section.

(1992, c. 830; 1994, cc. 359, 363; 2004, cc. 150, 440, 1013; 2005, cc. 757, 840.)

The 2004 amendments. - The 2004 amendment by c. 150 inserted "iodine, pvp iodine, povidone" preceding "iodine or benzalkonium chloride" in the first sentence of the first paragraph.

The 2004 amendment by c. 440, in the first paragraph, in the first sentence, deleted "professional" following "registered" and inserted "licensed practical nurse, phlebotomist" near the beginning.

The 2004 amendment by c. 1013 substituted " §§ 18.2-266 , 18.2-266 .1 or § 18.2-272 " for " § 18.2-266 or § 18.2-266.1 " in the last paragraph.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and inserted "subsection B of" in the last paragraph and made a minor stylistic change.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

"Designated by order of a circuit court." - Trial court did not err in admitting the results of defendant's blood draw into evidence because, while the registered nurse who drew his blood after he was arrested was not designated by order of the trial court to withdraw blood, the plain language of the statute and the last antecedent doctrine provided that only "a technician or nurse" had to be designated by order of a circuit court to draw blood for use in the prosecution of a DUI offense, the qualifying phrase "designated by order of a circuit court," only applied to the last antecedent clause, "a technician or nurse," and under defendant's suggested interpretation, every "technician or nurse" would have to be designated by a circuit court's order. Haley v. Commonwealth, No. 1951-15-3, 2016 Va. App. LEXIS 300 (Ct. of Appeals Nov. 8, 2016).

Licensed registered nurse authorized to withdraw blood. - Trial court did not err by admitting into evidence the certificate of analysis of defendant's blood, because this section authorized the licensed registered nurse, by virtue of the nurses's licensure, to withdraw blood for purposes of establishing the blood alcohol content of a person suspected of driving while under the influence. Coffman v. Commonwealth, 67 Va. App. 163, 795 S.E.2d 178, 2017 Va. App. LEXIS 1 (Jan. 10, 2017).

Applicability of testing requirements. - While the statutory requirements of § 18.2-268 (see now § 18.2-268.1 et seq.) are to be strictly applied, they apply only to DUI prosecutions under § 18.2-266 , and not to an involuntary manslaughter prosecution under § 18.2-36 . Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Where blood tests were performed by medical personnel in a hospital emergency room, and the toxicology report was shown to be a business record, recorded in the regular course of hospital business, contemporaneously made, and authenticated by its authorized custodian, such acted as sufficient foundation for the admissibility of the hospital blood test as a business record; further, blood tests performed by medical personnel in a hospital emergency room are not subject to the requirements of § 18.2-268.5 . Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

Admission of hospital toxicology report held proper. - Blood tests performed by medical personnel in a hospital emergency room are not subject to the requirements of this section; further, the statute applies only to blood drawn under the implied consent law. Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005), aff'd, 272 Va. 481 , 634 S.E.2d 305 (2006).

Need for cleansing to comply with statute. - Because the driving under the influence (DUI) statutes specify the means for cleansing the puncture area, failure to comply with the statutory requirement would necessitate that the prosecution be dismissed. Taylor v. Commonwealth, No. 1977-94-4 (Ct. of Appeals July 18, 1995).

Language in order specifying laboratory technician's place of employment was surplusage. - Where record proved that order appointing person who withdrew blood was entered by the circuit court, that this person was a laboratory technician, that the laboratory technician was recommended by a licensed physician, and that the order authorized the laboratory technician to withdraw blood pursuant to former § 18.2-268 F, the language in the order specifying laboratory technician's place of employment was not statutorily required and had no substantive bearing on the technician's qualifications. The specification of technician's place of employment was surplusage and did not limit his authority. Duggan v. Commonwealth, No. 1258-91-4 (Ct. of Appeals Feb. 23, 1993) (decided under former § 18.2-268 (F)).

An accused may not pick and choose the specific sample he wants withdrawn; he or she either consents or refuses. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Relevant questions going to weight of certificate as evidence. - The questions as to the qualification of the person taking the sample, the possibility of contamination from the fact that the defendant's arm was wiped with alcohol before the needle was inserted into his vein and the effect, if any, of the presence of a white powder, described as an anti-coagulant, in the vial, are all relevant. Such questions, however, go to the weight of the evidence rather than to the initial admissibility of the certificate. If the proof established a material failure to follow the procedure required by statute, it may be that the certificate should be stricken from the record, but the proof here established no such failure. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958) (decided under former § 18.2-268 ).

Failure to comply with blood-taking procedure goes to weight of evidence. - The question of how blood is taken is procedural, and a failure to comply with the directed procedures goes to the weight of the evidence and is to be considered with all the evidence in the case, with the right to the defendant to show noncompliance and resulting prejudice. Shumate v. Commonwealth, 207 Va. 877 , 153 S.E.2d 257 (1967) (decided under former § 18.2-268 ).

Where the statute requires that when the Commonwealth draws blood for the purposes of an alcohol or drug test, the part of the body from which the blood is taken must be cleaned with "soap and water, polyvinylpyrrolidone iodine or benzalkonium chloride," but the record stated that "benadine" was used to clean appellant's arm, and nothing in the record supported the argument that using "benadine" substantially complied with the statute, then a finding of substantial compliance could not be supported. Hudson v. Commonwealth, 21 Va. App. 184, 462 S.E.2d 913 (1995).

Given substantial compliance by Commonwealth with procedures for blood extraction, absence of evidence establishing whether a solution was used to prepare defendant's arm goes to the weight of the evidence, not to its admissibility; therefore, trial judge did not abuse his discretion by admitting in evidence certificate of blood analysis showing defendant to have been intoxicated, there being no evidence in the record to prove that nurse's failure to cleanse defendant's arm caused a contamination which affected the accuracy of the test. Snider v. Commonwealth, 26 Va. App. 729, 496 S.E.2d 665 (1998).

Reasonable proof that the instrument was properly sterilized is essential in establishing the reliability of the test itself. Brush v. Commonwealth, 205 Va. 312 , 136 S.E.2d 864 (1964) (decided under former § 18.2-268 ).

In the absence of proof showing that the instrument used to withdraw defendant's blood was sterilized pursuant to the requirements of this section, the Commonwealth has not met the burden imposed upon it, and the certificates setting forth the alcoholic content of defendant's blood are not admissible. Brush v. Commonwealth, 205 Va. 312 , 136 S.E.2d 864 (1964) (decided under former § 18.2-268 ).

§ 18.2-268.6. Transmission of blood samples.

The blood sample withdrawn pursuant to § 18.2-268.5 shall be placed in vials provided or approved by the Department of Forensic Science. The vials shall be sealed by the person taking the sample or at his direction. The person who seals the vials shall complete the prenumbered certificate of blood withdrawal forms and attach one form to each vial. The completed withdrawal certificate for each vial shall show the name of the accused, the name of the person taking the blood sample, the date and time the blood sample was taken and information identifying the arresting or accompanying officer. The vials shall be placed in a container provided by the Department, and the container shall be sealed to prevent tampering with the vials. The arresting or accompanying officer shall take possession of the container as soon as the vials are placed in the container and sealed, and shall promptly transport or mail the container to the Department.

(1992, c. 830; 2001, c. 561; 2003, cc. 933, 936; 2005, cc. 868, 881.)

Cross references. - As to the powers and duties of the Department of Criminal Justice Services and the Criminal Justice Services Board, see § 9.1-102 .

The 2001 amendments. - The 2001 amendment by c. 561 deleted "however, an analysis of the second blood sample to determine the presence of a drug or drugs shall not be performed unless an analysis of the first blood sample by the Division has indicated the presence of such drug or drugs" at the end of the third paragraph.

The 2003 amendments. - The 2003 amendments by cc. 933 and 936 are identical, and rewrote the section.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" throughout the section.

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Applicability. - Destruction of DNA evidence did not warrant dismissal of the indictment against defendant, as defendant was not entitled to an independent DNA analysis pursuant to this section, as this section particularly applies to DUI cases; furthermore, the record contained no evidence of bad faith by the police, and defendant failed to show that the evidence would have been exculpatory. Hayden v. Commonwealth, No. 1042-05-2,, 2006 Va. App. LEXIS 275 (Ct. of Appeals June 27, 2006).

Merely showing form to an accused at the time a blood sample is taken is insufficient to comply with the requirement of this section that the independent analysis designation form be given to the accused. Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994).

Non-compliance with form delivery requirement negates possibility of substantial compliance. - Assuming without deciding that the delivery of the independent analysis designation form is a step relating to taking, handling, identifying, and disposing of blood samples, the failure to comply with that requirement of the statute negates the possibility of substantial compliance. Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994).

Waiver of right to separate sample where accused voluntarily interrupts procedure. - The government's failure to comply strictly with the statutory mandate to provide the accused with a sample of blood for independent testing resulted from the voluntary act of the accused in interrupting the completion of the blood removal process; where an accused voluntarily interrupts the blood removal procedure before the physician, nurse or technician completes that procedure, the accused, by his conduct, shall be deemed to have waived his right to an independent analysis of a separate sample as provided by this section and § 18.2-268.7 . Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Where defendant disrupted blood removal procedure, no error in admitting one sample. - Defendant's voluntary act in disrupting the blood removal procedure constituted a waiver of his right to a separate sample for independent testing. Thus, it was not error for the trial court to admit the results of the blood test analyzed from the one sample sent to the state laboratory by the arresting officer. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Relevant questions going to weight of certificate as evidence. - The questions as to the qualification of the person taking the sample, the possibility of contamination from the fact that the defendant's arm was wiped with alcohol before the needle was inserted into his vein and the effect, if any, of the presence of a white powder, described as an anti-coagulant, in the vial, are all relevant. Such questions, however, go to the weight of the evidence rather than to the initial admissibility of the certificate. If the proof established a material failure to follow the procedure required by statute, it may be that the certificate should be stricken from the record, but the proof here established no such failure. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958) (decided under former § 18.2-268 ).

Attachment of certificate is not essential to validity of proceeding. - In a DWI trial, the Commonwealth was permitted to introduce evidence of a certificate of analysis of a blood vial drawn shortly after defendant's arrest, even though the certificate of blood withdrawal had become detached from the vial. These facts otherwise established substantial compliance with the procedures governing the taking and handling of defendant's blood. Williams v. Commonwealth, No. 2451-02-4, 2003 Va. App. LEXIS 597 (Ct. of Appeals Nov. 18, 2003).

Failure to comply with blood-taking procedure goes to weight of evidence. - The question of how blood is taken is procedural, and a failure to comply with the directed procedures goes to the weight of the evidence and is to be considered with all the evidence in the case, with the right to the defendant to show noncompliance and resulting prejudice. Shumate v. Commonwealth, 207 Va. 877 , 153 S.E.2d 257 (1967); (decided under former § 18.2-268 ).

Unexplained loss of blood vial sent to the independent laboratory of appellant's own choosing required dismissal of his driving under the influence conviction. Smith v. Commonwealth, No. 0868-93-2 (Ct. of Appeals Aug. 30, 1994).

The Commonwealth failed to prove that it substantially complied with the requirements of this section where the trooper gave appellant an out-of-date list of laboratories that included laboratories that were no longer approved by the Division of Forensic Science, appellant selected from the list a facility that was no longer a laboratory approved by the division, the hospital returned the container to the court, unopened and untested, with the notation: "Refused," the Commonwealth took no further action to have the sample tested and in addition, trooper testified that he thought the list used was last corrected in 1989, over two years prior to the date of arrest. Shoemaker v. Commonwealth, 18 Va. App. 61, 441 S.E.2d 354 (1994).

The trial court's attempt to fashion a remedy for the Commonwealth's failure to update the approved list of laboratories by refusing to admit the Commonwealth's test results, and proceeding to try the case based only on the arresting officer's testimony was inadequate because the independent test results could have been exculpatory. Shoemaker v. Commonwealth, 18 Va. App. 61, 441 S.E.2d 354 (1994).

Guilty pleas. - Court of Appeals of Virginia refused to hear defendant's appeal from a circuit court's judgment denying her motion to dismiss a charge of driving under the influence of alcohol (DUI), based on a claim that the Commonwealth failed to comply with § 18.2-268.6 when it submitted a sample of her blood for testing, because defendant pled guilty to DUI after her motion was denied. Conrad v. Commonwealth, No. 3076-02-3, 2003 Va. App. LEXIS 608 (Ct. of Appeals Nov. 25, 2003).

Substantial compliance with statutory requirements. - Where certificate of analysis produced by laboratory indicated that the laboratory had been unable to test the blood sample contained in the box because the vial when received was smashed and blood had leaked out, where Commonwealth produced uncontradicted evidence that vials were in good condition when received by officer, and where boxes containing the vials were maintained in a refrigerator by property clerk for police department, and the boxes remained sealed and were not leaking when property clerk mailed them to the respective laboratories, the Commonwealth's evidence demonstrated that it substantially complied with the statutory procedures relating to the taking and handling of blood samples, and sufficiently explained the unavailability of the independent blood test. Amaya-Portillo v. Commonwealth, No. 2559-96-4 (Ct. of Appeals Dec. 9, 1997).

Although a nurse and police officer committed technical violations of former § 18.2-268.6 when they packaged a sample of defendant's blood for transportation to a laboratory, the violations were trivial and the trial court did not err by finding that there was substantial compliance with the statute and admitting the results of the blood test into evidence. Jones v. Commonwealth, No. 2967-02-2, 2004 Va. App. LEXIS 64 (Ct. of Appeals Feb. 10, 2004) (applying former version of § 18.2-268.6 )

As defendant received independent blood alcohol content testing, which produced the same results as the Commonwealth's lab, and there was no evidence suggests that these results were invalid or that additional testing elsewhere might have produced different findings, the trial court properly refused to dismiss driving under the influence charges simply because the form provided defendant listed only one independent lab. Cutright v. Commonwealth, 43 Va. App. 593, 601 S.E.2d 1, 2004 Va. App. LEXIS 398 (2004) (applying former version of § 18.2-268.6 )

Insufficient compliance with statutory requirements. - Officer's action of showing the independent analysis designation form to defendant and then returning the form to the arrest file was insufficient to comply substantially with the requirements of this section. Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994).

Evidence introduced at the suppression hearing showed that the officer merely showed defendant the form stating that defendant could use a procedure outlined on the form for having an independent chemical analysis performed, and had defendant read and sign the form, which defendant then returned to the officer; the officer's failure to give defendant a copy of the form, as required by § 18.2-268.6 , meant the officer did not substantially comply with that statutory provision and meant the motion to suppress should have been granted. Ingram v. Commonwealth, No. 2015-02-3, 2003 Va. App. LEXIS 479 (Ct. of Appeals Sept. 16, 2003).

Blood alcohol tests properly admitted. - In a prosecution for aggravated involuntary manslaughter, the trial court did not commit reversible error in allowing into evidence the results of a blood alcohol content test performed on a blood sample taken from a defendant in violation of his Fourth, Fifth, and Fourteenth Amendment rights, as: (1) a test conducted by hospital personnel had been independently performed and the written report thereof was admissible under § 19.2-187.02 ; (2) defendant consented to a second blood test administered by a deputy sheriff under the implied consent law; (3) evidence of defendant's intoxication was overwhelming despite testing over three times the legal limit; and (4) it was unreasonable to believe that the jury would have rejected the hospital-administered test and accepted, instead, the implied consent law test. Stevens v. Commonwealth, 272 Va. 481 , 634 S.E.2d 305, 2006 Va. LEXIS 87 (2006), cert. denied, 549 U.S. 1350, 127 S. Ct. 2053, 167 L. Ed. 2d 784, 2007 U.S. LEXIS 4119 (U.S. 2007).

Applied in Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004); Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005).

§ 18.2-268.7. Transmission of blood test samples; use as evidence.

  1. Upon receipt of a blood sample forwarded to the Department for analysis pursuant to § 18.2-268.6 , the Department shall have it examined for its alcohol or drug or both alcohol and drug content and the Director shall execute a certificate of analysis indicating the name of the accused; the date, time and by whom the blood sample was received and examined; a statement that the seal on the vial had not been broken or otherwise tampered with; a statement that the container and vial were provided or approved by the Department and that the vial was one to which the completed withdrawal certificate was attached; and a statement of the sample's alcohol or drug or both alcohol and drug content. The Director shall remove the withdrawal certificate from the vial and either (i) attach it to the certificate of analysis and state in the certificate of analysis that it was so removed and attached or (ii) electronically scan it into the Department's Laboratory Information Management System and place the original withdrawal certificate in its case-specific file. The certificate of analysis and the withdrawal certificate shall be returned or electronically transmitted to the clerk of the court in which the charge will be heard.
  2. After completion of the analysis, the Department shall preserve the remainder of the blood until at least 90 days have lapsed. The accused may, at any time prior to the expiration of such 90-day period, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. On motion of the accused, the report of analysis prepared for the remaining blood sample shall be admissible in evidence, provided that the report is duly attested by a person performing such analysis and the independent laboratory that performed the analysis is accredited or certified to conduct forensic blood alcohol/drug testing by one or more of the following: College of American Pathologists (CAP); U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA); American Board of Forensic Toxicology (ABFT); or an accrediting body that requires conformance to forensic-specific requirements and that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement with a scope of accreditation that covers the testing being performed. If no notice of a motion to transmit the remainder of the blood sample is received prior to the expiration of the 90-day period, the Department shall destroy the remainder of the blood sample unless the Commonwealth has filed a written request with the Department to return the remainder of the blood sample to the investigating law-enforcement agency. In such case, the Department shall return the remainder of the blood sample, if not sent to an independent laboratory, to the investigating law-enforcement agency.
  3. When a blood sample taken in accordance with the provisions of §§ 18.2-268.2 through 18.2-268.6 is forwarded for analysis to the Department, a report of the test results shall be filed in that office. Upon proper identification of the certificate of withdrawal, the certificate of analysis, with the withdrawal certificate attached, shall, when attested by the Director, be admissible in any court as evidence of the facts therein stated and of the results of such analysis (i) in any criminal proceeding, provided the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1 , or (ii) in any civil proceeding. Upon request of the person whose blood was analyzed, the test results shall be made available to him. The Director may delegate or assign these duties to an employee of the Department. (1992, c. 830; 1993, c. 688; 1994, cc. 337, 359, 363; 2003, cc. 933, 936; 2005, cc. 868, 881; 2009, Sp. Sess. I, cc. 1, 4; 2014, c. 328; 2017, c. 623; 2019, c. 474.)

The 2003 amendments. - The 2003 amendments by cc. 933 and 936 are identical, and rewrote the section.

The 2005 amendments. - The 2005 amendments by cc. 868 and 881 are identical, and in subsection A, substituted "Department" for "Division" five times, and "Department" for "Division of Forensic Science" two times; in subsection B, substituted "Department" for "Division" and "Department" for "Division of Forensic Science" in the last paragraph.

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and added the subsection B designator to the former second paragraph of subsection A; redesignated former subsection B as subsection C, and rewrote the second sentence thereof.

The 2014 amendments. - The 2014 amendment by c. 328, in subsection A, inserted "and either (i)," "or (ii) electronically scan it into the Department's Laboratory Information Management System and place the original withdrawal certificate in its case-specific file," and "or electronically transmitted," substituted "and" for "with" after "certificate of analysis," and made a minor stylistic change; and in subsection B inserted "at least."

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, rewrote subsection B which formerly read: "After completion of the analysis, the Department shall preserve the remainder of the blood until at least 90 days have lapsed from the date the blood was drawn. During this 90-day period, the accused may, by motion filed before the court in which the charge will be heard, with notice to the Department, request an order directing the Department to transmit the remainder of the blood sample to an independent laboratory retained by the accused for analysis. The Department shall destroy the remainder of the blood sample if no notice of a motion to transmit the remaining blood sample is received during the 90-day period"; transferred last sentence from subsection C to B.

The 2019 amendments. - The 2019 amendment by c. 474, in subsection B, deleted "bodies: American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB)" preceding "College of," and inserted "or an accrediting body that requires conformance to forensic-specific requirements and that is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement with a scope of accreditation that covers the testing being performed" and made related changes.

Research References. - Virginia Forms (Matthew Bender). No. 9-2804 Motion for Transmission of Blood Sample.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Error to admit blood test results where failure to follow statutory mandates. - Where the government has failed in its responsibilities to follow the statutory mandates in the taking, handling, identification and disposition of blood samples under the statutory scheme, it is error to admit at trial the results of tests concerning such blood samples. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Unavailability of independent test results. - When an accused asks that his blood sample be sent to an independent laboratory for testing and an independent analysis is not available at trial, the Commonwealth has the burden to explain the absence of independent test results and show that it substantially complied with the steps relating to the taking, handling, identification, and disposition of defendant's blood and/or breath samples. The Commonwealth must prove that the unavailability of the independent test results is not due to unreasonable conduct by the Commonwealth or its agents. Kemp v. Commonwealth, 16 Va. App. 360, 429 S.E.2d 875 (1993).

Subsection M, regarding the availability of results to the person tested, is mandatory. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991); (decided under former § 18.2-268 ).

Subsection Z (see now § 18.2-268 .11) does not deal with or address the handling of test results, and it does not relieve the Commonwealth of its responsibility under subsection M to provide an accused with the test results when they have been requested. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991)(decided under former § 18.2-268 ).

Test results presumptive. - Because the blood alcohol concentration reflected by the chemical test necessarily resulted from alcohol consumed prior to or during driving, the test results are presumptive evidence of the blood alcohol concentration at the time of driving and as such, the accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989); (decided under former § 18.2-268 ).

Commonwealth's failure to produce test results. - When the accused requests the Commonwealth's results, and the Commonwealth does not possess and/or cannot produce the results, the Commonwealth must explain the absence of test results. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991); (decided under former § 18.2-268 ).

Absence of proof that no test results were obtained. - Since the test results are "but auxiliary proof" and are not a necessary prerequisite to a conviction, a prosecution should not fail merely because the accused makes a formal request for the results and they are either unavailable or inadmissible. When, however, a sample has been taken for testing, the Commonwealth is required to adhere to those statutory procedures designed to yield test results. In the absence of proof explaining that no results were obtained, trial courts must presume that test results were obtained and can be made available. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991); (decided under former § 18.2-268 ).

Because Fifth Amendment is limited in application. - The Fifth Amendment to the federal Constitution, even if applicable to the states, is limited to oral testimony and does not preclude the use of one's body or secretions therefrom or proof of the results of their chemical analyses. Walton v. City of Roanoke, 204 Va. 678 , 133 S.E.2d 315 (1963); (decided under former § 18.2-268 ).

Admission of the certificate does not deprive defendant of his right of confrontation by witnesses. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958) (decided under former § 18.2-268 ).

And is admissible in federal court. - In a federal court, the certificate would be admissible under the provisions of 28 U.S.C.S. § 1732, as a writing made, pursuant to statutory requirement, in the regular performance of the official duty of the Chief Medical Examiner of Virginia (now the Director of the Division of Forensic Science). Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958) (decided under former § 18.2-268 ).

Certificate self-authenticating. - The General Assembly intended to spare the Commonwealth the prosecutorial and financial burdens of calling two public officers to testify in every drunk driving case involving breathalyzer test evidence. When the certificate contains what this section requires, this section makes the certificate self-authenticating for purposes of admissibility, and once the certificate is admitted, this section makes it evidence of the alcoholic content of the blood to be considered with all other evidence in the case. Stroupe v. Commonwealth, 215 Va. 243 , 207 S.E.2d 894 (1974); (decided under former § 18.2-268 ).

But the certificate is not conclusive evidence of the statutory regularity of the test. Stroupe v. Commonwealth, 215 Va. 243 , 207 S.E.2d 894 (1974); (decided under former § 18.2-268 ).

Procedural violations did not require suppression of blood test results. - Where the form provided defendant listed only one approved laboratory where defendant could have the second vial of blood tested, as defendant did receive independent blood alcohol content testing, the trial court was not obliged to suppress the blood test results. The legislative remedy for a procedural violation of the driving under the influence statutes was not suppression of the evidence, but a full and fair opportunity for both sides to prove or disprove any prejudicial effect of the violation. Cutright v. Commonwealth, 43 Va. App. 593, 601 S.E.2d 1, 2004 Va. App. LEXIS 398 (2004).

Admissibility of certificate of blood analysis governed by § 19.2-187 . - The admissibility of a certificate of blood analysis prepared pursuant to this section is governed by the requirements of § 19.2-187 . Basfield v. Commonwealth, No. 0291-89-2 (Ct. of Appeals Oct. 2, 1990) Basfield v. Commonwealth, 11 Va. App. 122, 398 S.E.2d 80 (1990); (decided under former § 18.2-268 ).

Attachment of certificate is not essential to validity of proceeding. - A statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute; use of the word "shall" is not a sufficient legislative declaration making attachment of the certificate essential to the validity of the proceeding. Commonwealth v. Rafferty, 241 Va. 319 , 402 S.E.2d 17 (1991); (decided under former § 18.2-268 ).

In a DWI trial, the Commonwealth was permitted to introduce evidence of a certificate of analysis of a blood vial drawn shortly after defendant's arrest, even though the certificate of blood withdrawal had become detached from the vial. These facts otherwise established substantial compliance with the procedures governing the taking and handling of defendant's blood. Williams v. Commonwealth, No. 2451-02-4, 2003 Va. App. LEXIS 597 (Ct. of Appeals Nov. 18, 2003).

Relevant questions going to weight of certificate as evidence. - The questions as to the qualification of the person taking the sample, the possibility of contamination from the fact that the defendant's arm was wiped with alcohol before the needle was inserted into his vein and the effect, if any, of the presence of a white powder, described as an anti-coagulant, in the vial, are all relevant. Such questions, however, go to the weight of the evidence rather than to the initial admissibility of the certificate. If the proof established a material failure to follow the procedure required by statute, it may be that the certificate should be stricken from the record, but the proof here established no such failure. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958) (decided under former § 18.2-268 ).

Failure to comply with blood-taking procedure goes to weight of evidence. - The question of how blood is taken is procedural, and a failure to comply with the directed procedures goes to the weight of the evidence and is to be considered with all the evidence in the case, with the right to the defendant to show noncompliance and resulting prejudice. Shumate v. Commonwealth, 207 Va. 877 , 153 S.E.2d 257 (1967); (decided under former § 18.2-268 ).

With respect to regularity of the test, the defendant has the right to prove noncompliance with test procedures, but such proof would not defeat admissibility of the certificate but only affect its weight as evidence of the alcoholic content of his blood. Stroupe v. Commonwealth, 215 Va. 243 , 207 S.E.2d 894 (1974); (decided under former § 18.2-268 ).

Failure to make valid arrest within two hours. - Where the accident happened and the offense occurred just before 3:00 p.m., and an invalid arrest was made at 4:35 p.m., but the accused was not properly arrested until 6:15 p.m., since the arrest was untimely, the defendant is not deemed to have consented to the testing of his breath under the "implied consent" law. Thomas v. Town of Marion, 226 Va. 251 , 308 S.E.2d 120 (1983); (decided under former § 18.2-268 ).

Certificate inadmissible where arrest not timely made. - Where there is no evidence that defendant was arrested within two hours of the alleged offense, the certificate showing the alcohol content of defendant's blood is inadmissible. Overbee v. Commonwealth, 227 Va. 238 , 315 S.E.2d 242 (1984); (decided under former § 18.2-268 ).

Certificate of blood alcohol analysis erroneously admitted. - Drunk driving defendant's certificate of blood alcohol analysis was erroneously admitted into evidence where the certificate stated that the container into which the vial of defendant's blood was placed was not sealed, even though the certificate indicated that the seal on the vial itself had not been broken or tampered with. Williams v. Commonwealth, 10 Va. App. 636, 394 S.E.2d 728 (1990); (decided under former § 18.2-268 ).

Admission of certificate harmless error. - Any error by a trial court in admitting a certificate of analysis into evidence was harmless because the evidence without the certificate was sufficient to prove that defendant was driving under the influence of drugs. Hicks v. Commonwealth, No. 1093-16-3, 2017 Va. App. LEXIS 221 (Aug. 29, 2017).

Applied in Durrette v. County of Spotsylvania, 22 Va. App. 122, 468 S.E.2d 128 (1996); In re Brown, 295 Va. 202 , 810 S.E.2d 444, 2018 Va. LEXIS 26 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Certificate of analysis of the defendant's blood alcohol level is the proper evidence in a prosecution for driving while intoxicated. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates 08-065 (9/22/08).

Proper procedure for officers obtaining blood samples. - Implied consent to a blood test is triggered by a valid arrest. If a common-law arrest is not feasible because a defendant is in a medical facility, the arrest may be made by the issuance of a summons pursuant to subsection B of § 19.2-73 , because that summons is deemed an arrest document. If a summons is issued, it must be based on probable cause, and it must be issued before obtaining the blood draw. The suspect should be advised of the requirements of the implied consent law, after which the blood test may be administered. The arresting officer should remain with the suspect until after the blood is drawn and then release him on the previously issued summons. If the suspect objects to the blood test, he should be charged with a violation of § 18.2-268.3 (refusal to take a blood or breath test). See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, No. 14-022, 2014 Va. AG LEXIS 66 (12/19/14).

§ 18.2-268.8. Fees.

Payment for withdrawing blood shall not exceed $25, which shall be paid out of the appropriation for criminal charges. If the person whose blood sample was withdrawn is subsequently convicted for a violation of § 18.2-266 , 18.2-266 .1, or subsection B of § 18.2-272 or of a similar ordinance, or is placed under the purview of a probational, educational, or rehabilitational program as set forth in § 18.2-271.1 , the amount charged by the person withdrawing the sample shall be taxed as part of the costs of the criminal case and shall be paid into the general fund of the state treasury.

If the person whose blood sample was withdrawn is subsequently convicted for violation of § 18.2-266 , 18.2-266 .1, or subsection B of § 18.2-272 or a similar ordinance, a fee of $25 for testing the first blood sample by the Department shall be taxed as part of the costs of the criminal case and shall be paid into the general fund of the state treasury.

(1992, c. 830; 1994, cc. 359, 363; 2001, c. 561; 2003, cc. 933, 936; 2004, c. 1013; 2005, cc. 757, 840, 868, 881.)

The 2001 amendments. - The 2001 amendment by c. 561 substituted "not to exceed the amount established on the Division's fee schedule and" for "of no more than twenty-five dollars, which" in the first sentence of the second paragraph.

The 2003 amendments. - The 2003 amendments by cc. 933 and 936 are identical, and substituted "$25" for "twenty-five dollars" in two places, deleted the former second paragraph, which read: "Approved laboratories determining the alcohol content of the second blood sample shall be allowed a fee not to exceed the amount established on the Division's fee schedule and shall be paid out of the appropriation for criminal charges. Payment for determining the presence of a drug or drugs in the second sample may not exceed the amount established on the Division's fee schedule and shall be paid out of the appropriation for criminal charges"; and deleted "(i) the fee paid by the Commonwealth to the laboratory for testing the second blood sample and (ii)" following "ordinance" in the third paragraph.

The 2004 amendments. - The 2004 amendment by c. 1013 substituted " §§ 18.2-266 , 18.2-266 .1 or § 18.2-272 " for " § 18.2-266 or § 18.2-266.1 " in the second sentence of the first paragraph and in the last paragraph.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and inserted "subsection B of" in both paragraphs and made minor stylistic changes.

The 2005 amendments by cc. 868 and 881 are identical, and substituted "Department" for "Division" in the last paragraph; and made minor stylistic changes.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

§ 18.2-268.9. Assurance of breath-test validity; use of breath-test results as evidence.

  1. To be capable of being considered valid as evidence in a prosecution under § 18.2-266 or 18.2-266.1 or subsection B of § 18.2-272 or a similar ordinance, chemical analysis of a person's breath shall be performed by an individual possessing a valid license to conduct such tests, with a type of equipment and in accordance with methods approved by the Department.
  2. The Department shall establish a training program for all individuals who are to administer the breath tests. Upon a person's successful completion of the training program, the Department may license him to conduct breath-test analyses. Such license shall identify the specific types of breath test equipment upon which the individual has successfully completed training. Any individual conducting a breath test under the provisions of § 18.2-268.2 shall issue a certificate which will indicate that the test was conducted in accordance with the Department's specifications, the name of the accused, that prior to administration of the test the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample's alcohol content, and the name of the person who examined the sample. This certificate, when attested by the individual conducting the breath test on equipment maintained by the Department, shall be admissible in any court as evidence of the facts therein stated and of the results of such analysis (i) in any criminal proceeding, provided that the requirements of subsection A of § 19.2-187.1 have been satisfied and the accused has not objected to the admission of the certificate pursuant to subsection B of § 19.2-187.1 , or (ii) in any civil proceeding. Any such certificate of analysis purporting to be signed by a person authorized by the Department shall be admissible in evidence without proof of seal or signature of the person whose name is signed to it. A copy of the certificate shall be promptly delivered to the accused. Copies of Department records relating to any breath test conducted pursuant to this section shall be admissible provided such copies are authenticated as true copies either by the custodian thereof or by the person to whom the custodian reports. Any person qualified to conduct a breath test as provided by this section may administer the breath test or analyze the results. (1992, c. 830; 1994, cc. 359, 363; 1996, cc. 154, 952; 1997, c. 256; 1999, c. 273; 2004, c. 1013; 2005, cc. 757, 840, 868, 881; 2006, c. 101; 2009, Sp. Sess. I, cc. 1, 4; 2017, c. 623.)

Cross references. - As to the authority of the Department of Criminal Justice Services to adopt regulations for the administration of this section, see § 9.1-102 .

The 1996 amendments. - The 1996 amendments by cc. 154 and 952 are identical, and substituted "Department of Criminal Justice Services" for "Department of General Services" near the end of the first sentence of the first paragraph.

The 1997 amendment substituted "under § 18.2-266 , § 18.2-266 .1, or a similar ordinance" for "under § 18.2-266 or § 18.2-266.1 " in the first sentence of the first paragraph.

The 1999 amendment deleted the former second sentence in the second paragraph, which read: "The program shall include at least forty hours of instruction in the operation of the breath test equipment and the administration of such tests," and added the final sentence of the second paragraph.

The 2004 amendments. - The 2004 amendment by c. 1013 substituted " §§ 18.2-266 , 18.2-266.1 or § 18.2-272 " for " §§ 18.2-266 , 18.2-266.1 " in the first sentence of the first paragraph.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and inserted "subsection B of" in the first undesignated paragraph, substituted "administer the breath test and" for "make the breath test or" in the last paragraph and made a minor stylistic change.

The 2005 amendments by cc. 868 and 881 are identical, and deleted "of Criminal Justice Services, Division of Forensic Science" at the end of the first sentence of the first paragraph; substituted "Department" for "Division" in the first through third paragraphs, and "Department's" for "Division's" in the third paragraph; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 101 added the last sentence of the second paragraph.

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and added the subsection designators; deleted the former second sentence of subsection A, which read: "The Department shall test the accuracy of the breath-testing equipment at least once every six months."; and in the first paragraph of subsection B, deleted "the equipment on which the breath test was conducted has been tested within the past six months and has been found to be accurate" following "Department's specifications" in the fourth sentence and rewrote the fifth sentence.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection A, inserted "or" following " § 18.2-266 "; in subsection B, substituted "Any person" for "The officer making the arrest, or anyone with him at the time of the arrest, or anyone participating in the arrest of the accused, if otherwise" and "a breath" for "such"; and made stylistic changes.

Law review. - For an article, "Criminal Law and Procedure," see 31 U. Rich. L. Rev. 1015 (1997).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For essay, "The Confrontation Clause and the High Stakes of the Court's Consideration of Briscoe v. Virginia," see 95 Va. L. Rev. In Brief 97 (2010).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 7B M.J. Evidence, § 86.

CASE NOTES

Because Fifth Amendment is limited in application. - The Fifth Amendment to the federal Constitution, even if applicable to the states, is limited to oral testimony and does not preclude the use of one's body or secretions therefrom or proof of the results of their chemical analyses. Walton v. City of Roanoke, 204 Va. 678 , 133 S.E.2d 315 (1963); (decided under former § 18.2-268 ).

Requirement as to time of test is procedural. - The requirement in subsection (r1) of § 18.2-268 (now § 18.2-268.9 ) of the time of the test on a certificate, as subsection (s) (now § 18.2-268 .11) makes clear, is procedural in nature. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986); (decided under former § 18.2-268).

This section does not require proof of the accuracy of an individual test as a prerequisite to admissibility of the resulting certificate. Woolridge v. Commonwealth, 29 Va. App. 339, 512 S.E.2d 153 (1999).

Instruction on particular type of equipment not required. - This section requires that the person conducting the test have received forty hours of training in general and does not mandate that the instruction have been given with respect to the particular make or model of breath analyzer used in the defendant's case. Reynolds v. Commonwealth, 30 Va. App. 153, 515 S.E.2d 808 (1999).

Failure to comply with storage requirements of machine. - Failure to comply with the required procedure for storing a breath analysis machine did not, by itself, require suppression of defendant's breath test results, where no evidence established that the police failed to comply with any of the regulations governing the "taking, handling, identification, and disposition of breath samples" other than the improper placement of the breath analysis machine, where the machine had a self-correcting mechanism, where there was no allegation that the machine was tampered with or that the results were incorrect, and defendant failed to show that the failure to comply with the storage methods prejudiced his rights. Henry v. Commonwealth, 44 Va. App. 702, 607 S.E.2d 140, 2005 Va. App. LEXIS 6 (2005).

Officer's training found sufficient. - Officer who received 40 hours of training on Breathalyzer 900-A, and an additional eight hours on Intoxilyzer 5000, met requirements of this section. Castro v. Commonwealth, No. 0216-99-4 (Ct. of Appeals Jan. 11, 2000).

Sufficient evidence of time notation. - Although the certificate that the deputy sheriff gave to defendant did not specify the time defendant took the test, the deputy sheriff testified as to the time and the events that occurred during and after the test. His testimony proved that the notes he made contemporaneously with the test contained the time the breath sample was taken. This evidence proved substantial compliance with the requirements of this section. Price v. Commonwealth, No. 0460-95-2 (Ct. of Appeals May 28, 1996).

Permissible analysis tool. - The Intoximeter 3000 performs a chemical analysis of a breath sample within the meaning of this section, and the trial judge did not err in denying appellant's motion to suppress the results of the test. Lemond v. Commonwealth, 19 Va. App. 687, 454 S.E.2d 31 (1995).

Intoxilyzer reliable. - Trial court did not arbitrarily accept the result of an unreliable Intoxilyzer because the breath test was conducted on an Intoxilyzer certified to be accurate pursuant to § 18.2-268.9 , and attested as being operated in accordance with Department of Forensic Science specifications; therefore, the Intoxilyzer used to test the alcohol content of defendant breath was reliable. Newman v. Commonwealth,, 2009 Va. App. LEXIS 360 (Aug. 11, 2009).

Breath analysis properly admitted where omission as to time of test later corrected. - Certificate of defendant's breath alcohol analysis was properly admitted where it was regular in all respects except that the time of the test had been omitted, when defendant was given a copy, but this omission was subsequently corrected. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986); (decided under former § 18.2-268 ).

Physical inability to take breath test. - Trial court erred in convicting defendant of driving under the influence in violation of § 18.2-266 because the trial court failed to rule on whether defendant was physically unable to take the breath test required by § 18.2-268.2 , and it did not resolve the conflict in the testimony; defendant testified he suffered from acid reflux, causing him to burp involuntarily, and if believed, defendant could not comply with the twenty-minute observation period, but an officer testified that he spoke with defendant for approximately thirty minutes at the scene and heard no burping, nor did he hear burping from the time of arrest until defendant was taken to jail. Packard v. Commonwealth,, 2011 Va. App. LEXIS 107 (Mar. 29, 2011).

Where the defendant's warrantless arrest was unlawful, he was not bound under this section to submit to a breathalyzer test; therefore the result of the breathalyzer test administered to the defendant should not have been admitted in evidence at his trial. Durant v. City of Suffolk, 4 Va. App. 445, 358 S.E.2d 732 (1987); (decided under former § 18.2-268 ).

Scope of accused's right to view results. - Nothing in this section or in § 18.2-268.2 indicates any intention on the part of the legislature to give an accused the right to immediately view results of a breath test other than those actually printed out by the equipment used to conduct the test. Rasmussen v. Commonwealth, 31 Va. App. 233, 522 S.E.2d 401 (1999).

Where an accused is afforded the opportunity to view the print-out of the blood-alcohol reading taken by the breathalyzer machine, the requirements of this section and § 18.2-268.2 have been met. Carey v. Commonwealth, No. 1888-98-4, 2000 Va. App. LEXIS 303 (Ct. of Appeals Apr. 25, 2000).

Where defendant only saw certificate with printout of lower of two blood alcohol readings, the only evidence not made immediately available to him was evidence of an inculpatory nature; as he was afforded the opportunity to view the print-out of the blood-alcohol reading taken by the breathalyzer machine, the requirements of this section and § 18.2-268.2 were met. Kauffman v. Commonwealth, No. 1725-98-2, 2000 Va. App. LEXIS 452 (Ct. of Appeals June 20, 2000).

Opportunity to view read out from breathalyzer machine satisfies requirements. - Giving defendant an opportunity to view the print out of the blood-alcohol reading taken by the breathalyzer machine satisfied the requirements of this section; moreover, the appeals court agreed with the trial judge that since the breath test procedure did not contemplate defendant having his breath sample analyzed by an independent party, then the fact that he was shown the result, but not actually given a paper copy of the result, could hardly have had any effect on his substantive rights at trial. Shelton v. Commonwealth, 45 Va. App. 175, 609 S.E.2d 89, 2005 Va. App. LEXIS 78 (2005).

Guilt or innocence determined from all evidence of defendant's condition. - The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Result of breath analysis is but auxiliary proof which may tend to corroborate evidence of objective symptoms. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Error to admit certificate indicating that license is invalid. - This section requires the test to be administered by an operator with a valid license. The qualification of the operator is a matter of substance, not procedure, and is not waived by subsection (s) of § 18.2-268 (now § 18.2-268 .11). A court, therefore, is in error in admitting the certificate into evidence where it indicates that the license is invalid. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268).

Qualifications of person conducting test. - Officer who was licensed to conduct tests on Intoxilyzer 5000, who had completed forty hours of training on Breathalyzer 900A, and who had later completed an eight-hour course on the Intoxilyzer 5000, met requirements of this section. Killingsworth v. Commonwealth, No. 2447-98-3 (Ct. of Appeals Nov. 9, 1999).

Other evidence may render erroneous admission of certificate harmless. - Where the testimony at the trial clearly showed that there was no room for reasonable doubt about defendant's actual condition at the time of his arrest, and the evidence of his guilt was clear and compelling, the erroneous ruling of the trial court in admitting a certificate which showed that the operator's license was invalid was harmless. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Procedural violation did not result in suppression. - Results of defendant's field sobriety tests and the field breathalyzer test could not be suppressed because the officer had no right to administer them since he stopped defendant outside his jurisdiction since § 18.2-266 did not provide for a suppression remedy for a procedural violation, and § 18.2-268.11 stated that a violation of the procedural steps of § 18.2-268.2 through this section went to the weight of the evidence; the remedy for a procedural violation was a full and fair opportunity for both sides to attempt to prove or disprove any prejudicial effect of the violation. Ford v. Commonwealth, No. 1629-12-2, 2013 Va. App. LEXIS 367 (Dec. 10, 2013).

Admission of certificate not error. - Officer's personal knowledge of the required test for accuracy affected, if anything, the weight of the certificate of breath analysis as evidence, not its admissibility. Thus, admission of the certificate was not error, even though officer had no personal knowledge of the breath analysis machine's performance testing. Anderson v. Commonwealth, 25 Va. App. 26, 486 S.E.2d 115 (1997).

Trial court did not err in admitting results of breathalyzer test into evidence, despite defendant's having chewed cigarette tobacco between time of his arrest and time of analysis; evidence permitted a finding that any alcohol in defendant's mouth did not skew test results, and therefore that test substantially complied with statutory requirements for its admission. Pollard v. Commonwealth, No. 2638-98-2 (Ct. of Appeals Sept. 21, 1999).

The admission of a certificate of breath analysis was not error where the test used complied with the procedures in 1 VAC 30-50-90(A) (now 6 VAC 20-190-110(3)(A)) but not with 1 VAC 30-50-90(C) (now 6 VAC 20-190-110(3)(C)), because the procedure used substantially complied with the breath-test methods approved by the Virginia Department of Criminal Justice Services, Division of Forensic Science. Rollins v. Commonwealth, 37 Va. App. 73, 554 S.E.2d 99, 2001 Va. App. LEXIS 593 (2001).

Officer who arrested defendant for driving under the influence of alcohol, second offense, properly determined that defendant was physically unable to complete a breath test due to defendant's recent ingestion of chili, which was giving defendant indigestion at the time of the breath test, and, thus, the certificate of analysis from the blood test that the officer had defendant take was admissible, as no showing was made that the officer violated Virginia's implied consent law. Pearson v. Commonwealth, 43 Va. App. 317, 597 S.E.2d 269, 2004 Va. App. LEXIS 272 (2004).

Trial court did not err when it found that a police officer substantially complied with the requirements of this section when she administered a breath test to defendant who was coughing, and that expert testimony which defendant offered did not rebut the presumption created by § 18.2-269 that defendant was under the influence of alcohol, and the appellate court affirmed the trial court's judgment admitting the results of the test and using them to convict defendant of driving under the influence of alcohol. Wing v. Commonwealth, No. 1760-03-4, 2004 Va. App. LEXIS 368 (Ct. of Appeals Aug. 3, 2004).

Trial court, in defendant's driving while intoxicated case, did not err in admitting into evidence a certificate of blood alcohol analysis based on the result, contained in a certificate of analysis, from a breath test; the breath test result contained in the certificate of analysis was not hearsay evidence and therefore the admission into evidence of that result did not implicate defendant's constitutional right to confrontation.substituted op., on reh'g, 48 Va. App. 58, 628 S.E.2d 74 (2006) (wherein the court held the error was harmless while declining to address the constitutional issue) Luginbyhl v. Commonwealth, 46 Va. App. 460, 618 S.E.2d 347, 2005 Va. App. LEXIS 329 (2005).

Defendant waived her Sixth Amendment rights to confrontation by failing to avail herself of her statutory right under § 19.2-187.1 to subpoena the operator of a breath test in her driving under the influence trial under § 18.2-266 . Thus, it was proper to admit the certificate of the blood alcohol analysis without live testimony of the operator pursuant to §§ 18.2-268.9 and 19.2-187 . McKeel v. Commonwealth,, 2006 Va. App. LEXIS 575 (Dec. 19, 2006).

Trial court's error in admitting into evidence a certificate of blood alcohol analysis was not harmless beyond a reasonable doubt because in order to convict defendant of a per se violation under clause (i) of § 18.2-266 or invoke the presumption of intoxication afforded by subdivision A 3 of § 18.2-269 the trial court had to rely on the facts recited in the attestation clause in order to conclude that the test was conducted in accordance with the relevant statutes; the only evidence that the breath test was administered either as provided by Title 18.2, Chapter Seven, Article Two of the Virginia Code or in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 , as required by § 18.2-269 , was in the attestation clause on the certificate of analysis, and because the use of the attestation clause in the case violated the Confrontation Clause, it could not be used to prove that the breath test was administered in accordance with the relevant statutes. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

Trial court did not err by admitting the certificate of analysis into evidence because the evidence established that the breath test was administered in compliance with the twenty-minute observation period required by § 18.2-268.9 ; the attestation clause that was part of the certificate of analysis admitted into evidence stated that appellant's breath test "was conducted in accordance with Department of Forensic Science specifications, one of which provided for the twenty-minute period of observation, and the testimony of the person who administered the breath test established that a police officer observed defendant for the required twenty minutes prior to the attempted test on the first Intoxilyzer before she was immediately moved to the second Intoxilyzer only a few feet away. Newman v. Commonwealth,, 2009 Va. App. LEXIS 360 (Aug. 11, 2009).

Defendant's conviction of driving while intoxicated was affirmed because the certificate of blood alcohol analysis was admissible under § 18.2-268.9 regardless of any alleged error in admitting the certificate of instrument accuracy, and, correspondingly, any error in admitting the certificate of instrument accuracy was harmless. Fitzgerald v. Commonwealth, 61 Va. App. 279, 734 S.E.2d 708, 2012 Va. App. LEXIS 398 (2012).

Admission of breath test analysis harmless error. - In a DWI case, even if the admission of a written breath test analysis result and the accompanying certificate violated the Confrontation Clause because the evidence was "testimonial," the error was harmless. The other evidence, including defendant's statement that he was drunk and that he was an alcoholic, his glassy, bloodshot eyes, his smell of alcohol, his admission that he had had six to eight drinks of vodka, and his failure of field sobriety tests, proved guilt beyond a reasonable doubt without the test result. Luginbyhl v. Commonwealth, 48 Va. App. 58, 628 S.E.2d 74, 2006 Va. App. LEXIS 170 (2006).

Admission of certificate violated Confrontation Clause. - Trial court erred in admitting into evidence a certificate of blood alcohol analysis because the attestation clause included in the certificate was testimonial in nature, and its admission, over the objection of defendant, constituted a violation of the Confrontation Clause when the facts establishing the validity and admissibility of the breath-test result had to be proved by live, in-court testimony; while there is no constitutional requirement that the factual predicates in § 18.2-268.9 be established prior to the admission of the results of the test, once the General Assembly conditions the validity and admissibility of the breath-test results on the proof of those facts, the Commonwealth must prove those facts through live, in-court testimony and not by affidavit. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

Burden of proof. - Under § 18.2-268.9 , the Commonwealth is not required to introduce evidence showing the Virginia Department of Forensic Science's compliance with subdivision B 3 of § 9.1-1101 before a certificate of blood alcohol analysis becomes admissible; rather, the substantial compliance provisions of § 18.2-268.11 indicate that the defendant has the burden of producing evidence showing noncompliance with procedural requirements like that contained in subdivision B 3 of § 9.1-1101 . Fitzgerald v. Commonwealth, 61 Va. App. 279, 734 S.E.2d 708, 2012 Va. App. LEXIS 398 (2012).

Applied in Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

CIRCUIT COURT OPINIONS

Admission of certificate of blood alcohol analysis did not violate right of confrontation. - Admission of the certificate of blood alcohol analysis did not violate defendant's right of confrontation because the attestation clause of the certificate of blood alcohol analysis was non-testimonial hearsay and the statements of the breath test operator in the attestation clause did not accuse defendant of any wrongdoing but simply laid the foundation for the admission of the certificate under the statute. Commonwealth v. Draper, 72 Va. Cir. 111, 2006 Va. Cir. LEXIS 315 (Martinsville 2006).

Compliance with regulatory procedure for validating. - Court denied the defendant's motion to dismiss the driving under the influence charges against him because under § 18.2-268.9 and 1 VAC 30-50-90(C), the officer was required to, and did, follow Commonwealth-approved guidelines in The Virginia Register of Regulations, Vol. 16, Issue 11, p. 1505, to administer the new breath test (the Intoxilyzer Model 5000) based upon its operating manual, rather than 1 VAC 30-50-90(C)'s unmodified provisions governing the old breath test (the Smith & Wesson 900A). Commonwealth v. Fox, 68 Va. Cir. 489, 2001 Va. Cir. LEXIS 532 (Amherst County 2001).

OPINIONS OF THE ATTORNEY GENERAL

Compliance with regulatory procedure for validating breath test device. - A person holding a valid license from the Division of Forensic Science to perform a breath test need only comply substantially with the regulatory procedure for validating a breath test device prior to conducting a test to determine the alcohol or drug content of a person's blood. See opinion of Attorney General to The Honorable George W. Grayson, Member, House of Delegates, 00-100 (1/12/01).

Certificate of analysis of the defendant's blood alcohol level is the proper evidence in a prosecution for driving while intoxicated. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates 08-065 (9/22/08).

§ 18.2-268.10. Evidence of violation of driving under the influence offenses.

  1. In any trial for a violation of § 18.2-266 , 18.2-266 .1, or subsection B of § 18.2-272 or a similar ordinance, the admission of the blood or breath test results shall not limit the introduction of any other relevant evidence bearing upon any question at issue before the court, and the court shall, regardless of the result of any blood or breath tests, consider other relevant admissible evidence of the condition of the accused. If the test results indicate the presence of any drug other than alcohol, the test results shall be admissible, except in a prosecution under clause (v) of § 18.2-266, only if other competent evidence has been presented to relate the presence of the drug or drugs to the impairment of the accused's ability to drive or operate any motor vehicle, engine or train safely.
  2. The failure of an accused to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood is not evidence and shall not be subject to comment by the Commonwealth at the trial of the case, except in rebuttal or pursuant to subsection C; nor shall the fact that a blood or breath test had been offered the accused be evidence or the subject of comment by the Commonwealth, except in rebuttal or pursuant to subsection C.
  3. Evidence of a finding against the defendant under § 18.2-268.3 for his unreasonable refusal to permit a blood or breath sample to be taken to determine the alcohol or drug content of his blood shall be admissible into evidence, upon the motion of the Commonwealth or the defendant, for the sole purpose of explaining the absence at trial of a chemical test of such sample. When admitted pursuant to this subsection such evidence shall not be considered evidence of the accused's guilt.
  4. The court or jury trying the case involving a violation of clause (ii), (iii) or (iv) of § 18.2-266 or § 18.2-266.1 , or a similar ordinance shall determine the innocence or guilt of the defendant from all the evidence concerning his condition at the time of the alleged offense. (1992, c. 830; 1994, cc. 359, 363; 2001, c. 654; 2004, c. 1013; 2005, cc. 616, 757, 840.)

The 2001 amendments. - The 2001 amendment by c. 654 added the subsection A designator to the first paragraph, added the subsection B designator to the second paragraph, and in subsection B inserted "or pursuant to subsection C" in two places, added subsection C, and added the subsection D designator to the last paragraph.

The 2004 amendments. - The 2004 amendment by c. 1013 substituted " §§ 18.2-266 , 18.2-266 .1 or § 18.2-272 " for " § 18.2-266 or § 18.2-266.1 " in subsection A; and substituted " § 18.2-266 or § 18.2-266.1 or § 18.2-272 " for " § 18.2-266 or § 18.2-266.1 " in subsection D.

The 2005 amendments. - The 2005 amendment by c. 616 inserted "except in a prosecution under clause (v) of § 18.2-266 " in subsection A and made minor stylistic changes.

The 2005 amendments by cc. 757 and 840 are identical, and inserted "subsection B of" in subsection A, substituted "a similar ordinance" for " § 18.2-272 " in subsection D and made a minor stylistic change.

Law review. - For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 118, 122; 7B M.J. Evidence, § 49.

CASE NOTES

Determination of guilt or innocence of accused. - The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a blood analysis. Thurston v. City of Lynchburg, 15 Va. App. 475, 424 S.E.2d 701 (1992).

Refusal to permit blood or breath test immaterial. - This section makes evidence of an accused's refusal to permit a blood or breath sample to be taken immaterial, or not a proper issue, in a driving under the influence prosecution, except where a defendant raises the issue, in which case evidence of a refusal to take a test becomes material for rebuttal, but evidence of the refusal must be relevant to the material issue raised by the defendant's evidence. Calhoun v. Commonwealth, 35 Va. App. 506, 546 S.E.2d 239, 2001 Va. App. LEXIS 279 (2001).

And refusal to take test is not probative except in rebuttal. - A defendant's refusal to take a blood or breath test has no probative value as to guilt or innocence and is not relevant or material, except in rebuttal when the defendant raises an issue pertaining to the offer of, or failure to take, the test. Calhoun v. Commonwealth, 35 Va. App. 506, 546 S.E.2d 239, 2001 Va. App. LEXIS 279 (2001).

Evidence of refusal held not admissible in rebuttal. - Evidence that a defendant refused to take a blood or breath test did not disprove or contradict his testimony that he was not intoxicated, nor did it prove he consumed a greater amount of alcohol than he had admitted, and accordingly, evidence of such refusal was not relevant to the material issues raised by his testimony; only evidence bearing on the facts asserted in the defendant's testimony, such as evidence of his performance on field sobriety tests or the arresting officer's common observations of the defendant's speech and physical appearance, would be admissible as tending to rebut or disprove the defendant's testimony. Calhoun v. Commonwealth, 35 Va. App. 506, 546 S.E.2d 239, 2001 Va. App. LEXIS 279 (2001).

Commonwealth cannot comment on accused's failure to take blood or breath test. - This section only prohibits the Commonwealth, not the accused, from commenting on the failure of the accused to take a blood or breath test, except in rebuttal; furthermore, this section does not prohibit the accused from offering evidence of the willingness to take a blood or breath test. Hammond v. Commonwealth, 17 Va. App. 565, 439 S.E.2d 877 (1994).

Comment on absence of chemical test results permitted. - A prosecutor's comment that there would be no testimony of any chemical test was an accurate and valid statement to prospective jurors advising them that chemical tests and the statutory rebuttable presumption of intoxication were not going to be used to prove that the defendant was under the influence of alcohol; the trial court properly denied the defendant's motion for a mistrial because the prosecutor made no reference whatsoever to the defendant's refusal to submit to the chemical test as an explanation for the need to resort to other evidence. Moore v. Commonwealth, No. 0264-99-4, 2000 Va. App. LEXIS 538 (Ct. of Appeals July 25, 2000).

Evidence of willingness to take blood or breath test must be relevant. - This section does not prohibit the accused from offering evidence of the willingness to take a blood or breath test. However, notwithstanding the court's interpretation of this section, the evidence offered by the accused surrounding the administration of the breath or blood test must be relevant in order to be admissible. Hammond v. Commonwealth, 16 Va. App. 347, 429 S.E.2d 631 (1993), aff'd upon reh'g en banc, 17 Va. App. 565, 439 S.E.2d 877 (1994).

Refusal of alkasensor test inadmissible in manslaughter trial. - Where a defendant is charged with aggravated involuntary manslaughter and it is alleged as an element of that charge that the defendant was driving while intoxicated, the trial on the manslaughter charge would also be trial of a charge under § 18.2-266 (ii) and, therefore, evidence that the defendant refused an alkasensor test would be inadmissible under this section. Maddox v. Commonwealth, No. 1129-99-4, 2000 Va. App. LEXIS 575 (Ct. of Appeals Aug. 1, 2000).

Admission of refusal to perform test did not violate constitutions. - Neither the Fifth Amendment nor Va. Const., Art. I, § 8 were violated by the admission in evidence of defendant's refusal to take a field sobriety test. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991); (decided under former § 18.2-168 ).

Evidence of refusal, to show defendant believed he might fail, violates constitution. - Evidence of a refusal to submit to field sobriety tests, when used by the finder of fact as evidence that the accused refused to submit to the test because he believed he might fail, violates the accused's right, under Va. Const., Art. I, § 8, not to "be compelled . . . to give evidence against himself." Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990); (decided under former § 18.2-168 ).

Test results presumptive. - Because the blood alcohol concentration reflected by the chemical test necessarily resulted from alcohol consumed prior to or during driving, the test results are presumptive evidence of the blood alcohol concentration at the time of driving and as such, the accused may challenge the test results by competent evidence, such as, for example, that he had not consumed enough alcohol in the relevant time to reach the level indicated by the chemical test results. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989); (decided under former § 18.2-168 ).

Consumption of alcohol after driving. - Where there is evidence that alcohol has been consumed after driving the chemical test cannot accurately reflect the blood alcohol concentration at the time of driving since the chemical test simply cannot distinguish between two sources of alcohol and where no alcohol is consumed between the time of driving and the time the chemical test is administered the test results can reflect only that alcohol consumed before or during driving and § 18.2-266 (i) is applicable only in these latter circumstances. Davis v. Commonwealth, 8 Va. App. 291, 381 S.E.2d 11 (1989); (decided under former § 18.2-168 ).

Chemical analysis of blood alcohol content as evidence. - There is no reason why the results of a chemical analysis of blood alcohol content should not be admissible if based upon a foundation which tends to ensure the reliability of the test equipment and procedures, the integrity of the chain of custody of the blood specimen, and the technical competence of the person who performed the analysis. Whether the foundation is sufficient is a question within the sound discretion of the trial judge. If the judge finds the foundation sufficient, the credibility of the witnesses and the weight to be accorded the evidence are matters within the province of the jury. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984); (decided under former § 18.2-268 ).

Evidence of results of hospital test of blood alcohol content, competent because supported by a proper foundation, constituted "other relevant evidence" within the intendment of this section and was properly admitted as proof of drunken driving. However, this evidence, though probative, raised no legal presumption of intoxication, where it was not conducted in accordance with the provisions of this section. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984); (decided under former § 18.2-268 ).

Guilt or innocence determined from all evidence of defendant's condition. - The statutory mandate is that the guilt or innocence of the accused be determined from all the evidence of his condition at the time of the alleged offense, with or without a breath analysis. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Any error caused in a bench trial by the admission of evidence of defendant's evasive behavior concerning the taking of a breathalyzer test, and the prosecutor's comment thereon, was harmless, where other evidence of defendant's inebriated condition was overwhelming. Foster v. Commonwealth, No. 1964-00-1, 2001 Va. App. LEXIS 378 (Ct. of Appeals June 26, 2001).

Evidence sufficient to support conviction. - Evidence was sufficient to conclude that defendant was guilty of driving while under the influence because defendant's own statements established that he had consumed alcohol the evening before driving, and upon arrival at the parking facility for his condominium, defendant exhibited signs of intoxication and had an odor of alcohol about him; the circumstances, taken together, sufficiently supported the factfinder's conclusion that defendant had driven his car while drunk. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Result of breath analysis is but auxiliary proof which may tend to corroborate evidence of objective symptoms. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Other evidence may render erroneous admission of certificate harmless. - Where the testimony at the trial clearly showed that there was no room for reasonable doubt about defendant's actual condition at the time of his arrest, and the evidence of his guilt was clear and compelling, the erroneous ruling of the trial court in admitting a certificate which showed that the operator's license was invalid was harmless. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Harmless error in admission of evidence that defendant was offered breath tests. - Although the trial court erred in a DUI trial in allowing testimony that defendant was offered breath tests following a traffic stop, that evidence was harmless because there was overwhelming evidence that defendant drove while intoxicated; under § 4.1-100 , "intoxicated" meant a condition in which a person had drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior. The evidence at trial proved that defendant drove his car at a reckless speed and that, when stopped, he had an odor of alcohol about his breath, red and glassy eyes, and slurred speech, and performed poorly on field sobriety tests. Reid v. Commonwealth, No. 2162-08-1, 2009 Va. App. LEXIS 308 (July 14, 2009).

§ 18.2-268.11. Substantial compliance.

The steps set forth in §§ 18.2-268.2 through 18.2-268.9 relating to taking, handling, identifying, and disposing of blood or breath samples are procedural and not substantive. Substantial compliance shall be sufficient. Failure to comply with any steps or portions thereof shall not of itself be grounds for finding the defendant not guilty, but shall go to the weight of the evidence and shall be considered with all the evidence in the case; however, the defendant shall have the right to introduce evidence on his own behalf to show noncompliance with the aforesaid procedures or any part thereof, and that as a result his rights were prejudiced.

(1992, c. 830; 2003, cc. 933, 936.)

The 2003 amendments. - The 2003 amendments by cc. 933 and 936 are identical, and deleted "or a variance in the results of the two blood tests" following "thereof" in the third sentence.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Construction with § 18.2-268.9 . - This section applies to the provisions of § 18.2-268.9 . Joseph v. Commonwealth, No. 0607-95-3 (Ct. of Appeals Dec. 10, 1996).

Unavailability of independent test results forecloses prosecution. - When an accused asks that his blood sample be sent to an independent laboratory for testing and an independent analysis is not available at trial, the Commonwealth has the burden to explain the absence of independent test results and show that it substantially complied with the steps relating to the taking, handling, identification, and disposition of defendant's blood sample, and when the Commonwealth cannot prove that it substantially complied with the statutory procedures referred to in this section the Commonwealth is foreclosed from prosecution. Gray v. Commonwealth, No. 1972-91-2 (Ct. of Appeals July 27, 1993).

Subsection Z (now § 18.2-268 .11) does not deal with or address the handling of test results, and it does not relieve the Commonwealth of its responsibility under subsection M to provide an accused with the test results when they have been requested. Wendel v. Commonwealth, 12 Va. App. 958, 407 S.E.2d 690 (1991); (decided under former § 18.2-268 ).

Non-compliance with form delivery requirement negates possibility of substantial compliance. - Assuming without deciding that the delivery of the independent analysis designation form is a step relating to taking, handling, identifying, and disposing of blood samples, the failure to comply with that requirement of the statute negates the possibility of substantial compliance. Artis v. City of Suffolk, 19 Va. App. 168, 450 S.E.2d 165 (1994).

Failure to comply with blood-taking procedure goes to weight of evidence. - The question of how blood is taken is procedural, and a failure to comply with the directed procedures goes to the weight of the evidence and is to be considered with all the evidence in the case, with the right to the defendant to show noncompliance and resulting prejudice. Shumate v. Commonwealth, 207 Va. 877 , 153 S.E.2d 257 (1967); (decided under former § 18.2-268 ).

With respect to regularity of the test, the defendant has the right to prove noncompliance with test procedures, but such proof would not defeat admissibility of the certificate but only affect its weight as evidence of the alcoholic content of his blood. Stroupe v. Commonwealth, 215 Va. 243 , 207 S.E.2d 894 (1974); (decided under former § 18.2-268 ).

Where the statute requires that when the Commonwealth draws blood for the purposes of an alcohol or drug test, the part of the body from which the blood is taken must be cleaned with "soap and water, polyvinylpyrrolidone iodine or benzalkonium chloride," but the record stated that "benadine" was used to clean appellant's arm, and nothing in the record supported the argument that using "benadine" substantially complied with the statute, then a finding of substantial compliance could not be supported. Hudson v. Commonwealth, 21 Va. App. 184, 462 S.E.2d 913 (1995).

Failure to introduce evidence of test equipment calibration. - Lack of statutorily mandated evidence of test equipment calibration affected integrity of result, and was a matter of substance. Brown v. Commonwealth, No. 0787-98-4 (Ct. of Appeals July 6, 1999).

But this section does not change the ultimate burden of proof in a prosecution under this section. Shumate v. Commonwealth, 207 Va. 877 , 153 S.E.2d 243 (1967); (decided under former § 18.2-268 ).

Procedural violation did not result in suppression. - Results of defendant's field sobriety tests and the field breathalyzer test could not be suppressed because the officer had no right to administer them since he stopped defendant outside his jurisdiction since § 18.2-266 did not provide for a suppression remedy for a procedural violation, and this section stated that a violation of the procedural steps of §§ 18.2-268.2 through 18.2-268.9 went to the weight of the evidence; the remedy for a procedural violation was a full and fair opportunity for both sides to attempt to prove or disprove any prejudicial effect of the violation. Ford v. Commonwealth, No. 1629-12-2, 2013 Va. App. LEXIS 367 (Dec. 10, 2013).

Requirement as to time of test is procedural. - The requirement in subsection (r1) of § 18.2-268 (now § 18.2-268.9 ) of the time of the test on a certificate, as subsection (s) (now § 18.2-268 .11) of this section makes clear, is procedural in nature. United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986); (decided under former § 18.2-268).

Error to admit certificate indicating that license is invalid. - This section requires the test to be administered by an operator with a valid license. The qualification of the operator is a matter of substance, not procedure, and is not waived by former § 18.2-268 . A court, therefore, is in error in admitting the certificate into evidence where it indicates that the license is invalid. Brooks v. City of Newport News, 224 Va. 311 , 295 S.E.2d 801 (1982); (decided under former § 18.2-268 ).

Chemical analysis properly admitted. - Defendant's conviction of driving while intoxicated was affirmed because the certificate of blood alcohol analysis was admissible under § 18.2-268.9 regardless of any alleged error in admitting the certificate of instrument accuracy, and, correspondingly, any error in admitting the certificate of instrument accuracy was harmless. Fitzgerald v. Commonwealth, 61 Va. App. 279, 734 S.E.2d 708, 2012 Va. App. LEXIS 398 (2012).

Burden of proof. - Under § 18.2-268.9 , the Commonwealth is not required to introduce evidence showing the Virginia Department of Forensic Science's compliance with subdivision B 3 of § 9.1-1101 before a certificate of blood alcohol analysis becomes admissible; rather, the substantial compliance provisions of § 18.2-268.11 indicate that the defendant has the burden of producing evidence showing noncompliance with procedural requirements like that contained in subdivision B 3 of § 9.1-1101 . Fitzgerald v. Commonwealth, 61 Va. App. 279, 734 S.E.2d 708, 2012 Va. App. LEXIS 398 (2012).

Substantial compliance with statutory requirements shown. - Where certificate of analysis produced by laboratory indicated that the laboratory had been unable to test the blood sample contained in the box because the vial when received was smashed and blood had leaked out, where Commonwealth produced uncontradicted evidence that vials were in good condition when received by officer, and where boxes containing the vials were maintained in a refrigerator by property clerk for police department, and the boxes remained sealed and were not leaking when property clerk mailed them to the respective laboratories, the Commonwealth's evidence demonstrated that it substantially complied with the statutory procedures relating to the taking and handling of blood samples, and sufficiently explained the unavailability of the independent blood test. Amaya-Portillo v. Commonwealth, No. 2559-96-4 (Ct. of Appeals Dec. 9, 1997).

The court properly found that the procedures used by a police officer in administering a breathalyzer test substantially complied with the applicable statutes and regulations, notwithstanding that the officer did not wait 20 minutes after the defendant ingested two prescription nitroglycerin tablets before administering the test, where an expert testified that the nitroglycerin probably would not technically invalidate the breathalyzer test. St. Clair v. City of Lynchburg, No. 1649-97-3 (Ct. of Appeals Nov. 24, 1998).

Trial court did not err in admitting results of breathalyzer test into evidence, despite defendant's having chewed cigarette tobacco between time of his arrest and time of analysis; evidence permitted a finding that any alcohol in defendant's mouth did not skew test results, and therefore that test substantially complied with statutory requirements for its admission. Pollard v. Commonwealth, No. 2638-98-2 (Ct. of Appeals Sept. 21, 1999).

In a DWI trial, the Commonwealth was permitted to introduce evidence of a certificate of analysis of a blood vial drawn shortly after defendant's arrest, even though the certificate of blood withdrawal had become detached from the vial. These facts otherwise established substantial compliance with the procedures governing the taking and handling of defendant's blood. Williams v. Commonwealth, No. 2451-02-4, 2003 Va. App. LEXIS 597 (Ct. of Appeals Nov. 18, 2003).

Although a nurse and police officer committed technical violations of former § 18.2-268.6 when they packaged a sample of defendant's blood for transportation to a laboratory, the violations were trivial and the trial court did not err by finding that there was substantial compliance with the statute and admitting the results of the blood test into evidence. Jones v. Commonwealth, No. 2967-02-2, 2004 Va. App. LEXIS 64 (Ct. of Appeals Feb. 10, 2004).

Officer who arrested defendant for driving under the influence of alcohol, second offense, properly determined that defendant was physically unable to complete a breath test due to defendant's recent ingestion of chili, which was giving defendant indigestion at the time of the breath test, and, thus, the certificate of analysis from the blood test that the officer had defendant take was admissible, as no showing was made that the officer violated Virginia's implied consent law. Pearson v. Commonwealth, 43 Va. App. 317, 597 S.E.2d 269, 2004 Va. App. LEXIS 272 (2004).

Trial court did not err when it found that a police officer substantially complied with the requirements of § 18.2-268.9 when she administered a breath test to defendant who was coughing and that expert testimony which defendant offered did not rebut the presumption created by § 18.2-269 that defendant was under the influence of alcohol, and the appellate court affirmed the trial court's judgment admitting the results of the test and using them to convict defendant of driving under the influence of alcohol. Wing v. Commonwealth, No. 1760-03-4, 2004 Va. App. LEXIS 368 (Ct. of Appeals Aug. 3, 2004).

Where the form provided listed only one approved laboratory for independent testing, as defendant did receive independent blood alcohol content testing, the trial court was not obliged to suppress the blood test results. The legislative remedy for a procedural violation of the driving under the influence statutes was not suppression of the evidence, but a full and fair opportunity for both sides to prove or disprove any prejudicial effect of the violation. Cutright v. Commonwealth, 43 Va. App. 593, 601 S.E.2d 1, 2004 Va. App. LEXIS 398 (2004).

Failure to comply with the required procedure for storing a breath analysis machine did not, by itself, require suppression of defendant's breath test results, where no evidence established that the police failed to comply with any of the regulations governing the "taking, handling, identification, and disposition of breath samples" other than the improper placement of the breath analysis machine, where the machine had a self-correcting mechanism, where there was no allegation that the machine was tampered with or that the results were incorrect, and defendant failed to show that the failure to comply with the storage methods prejudiced his rights. Henry v. Commonwealth, 44 Va. App. 702, 607 S.E.2d 140, 2005 Va. App. LEXIS 6 (2005).

Giving defendant an opportunity to view the print out of the blood-alcohol reading taken by the breathalyzer machine satisfied the requirements of § 18.2-268.9 ; moreover, the appeals court agreed with the trial judge that since the breath test procedure did not contemplate defendant having his breath sample analyzed by an independent party, then the fact that he was shown the result, but not actually given a paper copy of the result, could hardly have had any effect on his substantive rights at trial. Shelton v. Commonwealth, 45 Va. App. 175, 609 S.E.2d 89, 2005 Va. App. LEXIS 78 (2005).

Applied in Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

CIRCUIT COURT OPINIONS

Substantial compliance with statutory requirements not shown. - Commonwealth violated the implied consent law because defendant's refusal to take a breath test did not constitute unavailability thereby entitling the officer to compel submission to a blood test, the officer's actions in compelling submission to a blood test did not substantially comply with the implied consent law. Commonwealth v. Walsh, 86 Va. Cir. 532, 2013 Va. Cir. LEXIS 109 (Martinsville July 30, 2013).

§ 18.2-268.12. Ordinances.

The governing bodies of counties, cities and towns are authorized to adopt ordinances paralleling the provisions of §§ 18.2-268.1 through 18.2-268.11 .

(1992, c. 830.)

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

Applied in Stevens v. Commonwealth, 44 Va. App. 122, 603 S.E.2d 642, 2004 Va. App. LEXIS 496 (2004).

§ 18.2-269. Presumptions from alcohol or drug content of blood.

  1. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii), or (iv) of § 18.2-266 or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused's blood or breath to determine the alcohol or drug content of his blood (i) in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 or (ii) performed by the Department of Forensic Science in accordance with the provisions of §§ 18.2-268.5 , 18.2-268.6 , and 18.2-268.7 on the suspect's whole blood drawn pursuant to a search warrant shall give rise to the following rebuttable presumptions:
    1. If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused's blood or 0.05 grams or less per 210 liters of the accused's breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
    2. If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused's blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused's breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
    3. If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused's blood or 0.08 grams or more per 210 liters of the accused's breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or
    4. If there was at that time an amount of the following substances at a level that is equal to or greater than: (i) 0.02 milligrams of cocaine per liter of blood, (ii) 0.1 milligrams of methamphetamine per liter of blood, (iii) 0.01 milligrams of phencyclidine per liter of blood, or (iv) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.
  2. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of § 46.2-341.24 . (Code 1950, § 18.1-57; 1960, c. 358; 1964, c. 240; 1966, c. 636; 1972, c. 757; 1973, c. 459; 1975, cc. 14, 15; 1977, c. 638; 1983, c. 504; 1986, c. 635; 1989, cc. 554, 574, 705; 1992, c. 830; 1994, cc. 359, 363; 2005, c. 616; 2017, c. 623.)

The 2005 amendments. - The 2005 amendment by c. 616, in subsection A, inserted "clause (ii), (iii) or (iv) of" preceding " § 18.2-266 ," "or drugs" preceding "in the blood," "or drug" preceding "content," deleted "(ii)" preceding "or any similar ordinance," and added subdivision A 4; and made a related change.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, added clause (ii) in subsection A; and made minor stylistic changes.

Law review. - For note on the Virginia blood test statute discussing statistical methods of evaluating blood samples, see 56 Va. L. Rev. 349 (1970). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on evidence for the year 1972-1973, see 59 Va. L. Rev. 1526 (1973). For survey of Virginia law on evidence for the year 1973-1974, see 60 Va. L. Rev. 1543 (1974). For note discussing the defendant's right to independent analysis of the breathalyzer ampoule, see 21 Wm. & Mary L. Rev. 219 (1979). For note, "The Constitutionality of Sobriety Checkpoints," see 43 Wash. & Lee L. Rev. 1469 (1986).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Constitutionality. - Consideration by the jury of the statutory presumptions created by this section does not deprive the defendant of any protected right. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958).

This section did not create a mandatory presumption, but allowed a permissive inference that the fact finder was free to reject; § 18.2-269 simply shifted the burden of producing evidence, while the burden of proof remained with the Commonwealth. The trial court analyzed the statute as a permissive inference, noting that it must be read to contain permissive inferences in order to satisfy due process requirements. Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523, 2007 Va. App. LEXIS 171 (2007).

Trial court did not err in refusing to declare §§ 18.2-269 and 18.2-270 unconstitutional in a case where defendant was charged with and later convicted of driving under the influence of alcohol; there did not exist an evidentiary presumption relieving the Commonwealth of the burden of proof beyond a reasonable doubt in those two statutes, as § 18.2-269 did not have a mandatory presumption but a rebuttable presumption and § 18.2-270 had no presumption at all. Lawrence v. Commonwealth, No. 0658-06-4, 2007 Va. App. LEXIS 150 (Apr. 10, 2007).

Defendant's challenge to the constitutionality of the "rebuttable presumptions" employed by § 18.2-269 failed because the jury was not instructed on them and the presumptions clearly did not apply to the per se violations defendant claimed to have been convicted under. Morin v. Commonwealth,, 2007 Va. App. LEXIS 346 (Sept. 18, 2007).

Presumptions inapplicable where defendant refuses tests. - The presumptions established by this section apply only when a blood or breath test is administered; this section does not apply where the defendant refused to take either a blood or breath test and no test was given under the implied consent law. Groggins v. Commonwealth, 34 Va. App. 19, 537 S.E.2d 605, 2000 Va. App. LEXIS 764 (2000).

Evidence of results of hospital test of blood alcohol content, competent because supported by a proper foundation, constituted "other relevant evidence" within the intendment of former § 18.2-268 (now § 18.2-268 .1 et seq.) and was properly admitted as proof of drunken driving. However, this evidence, though probative, raised no legal presumption of intoxication, where it was not conducted in accordance with the provisions of former § 18.2-268. Essex v. Commonwealth, 228 Va. 273 , 322 S.E.2d 216 (1984).

Expert testimony. - Trial court did not err in allowing blood alcohol test results into evidence, where exigent circumstances justified warrantless arrest and search of defendant, and Commonwealth relied on expert opinion to explain significance of defendant's blood alcohol level and did not rely on statutory presumption contained in this section. Felts v. Commonwealth, No. 1997-98-3 (Ct. of Appeals Oct. 5, 1999).

Trial court did not err when it found that a police officer substantially complied with the requirements of § 18.2-268.9 when she administered a breath test to defendant who was coughing, and that expert testimony that defendant offered did not rebut the presumption created by § 18.2-269 that defendant was under the influence of alcohol, and the appellate court affirmed the trial court's judgment admitting the results of the test and using them to convict defendant of driving under the influence of alcohol. Wing v. Commonwealth, No. 1760-03-4, 2004 Va. App. LEXIS 368 (Ct. of Appeals Aug. 3, 2004).

Evidence was sufficient to show that defendant was under the influence of alcohol where she had five or six alcohol beverages about five hours before the accident, a witness saw defendant's vehicle swerve just before she hit the victim, the officers smelled alcohol on defendant after the accident, she failed two field sobriety tests, and an expert testified that her BAC at the time of the accident was between 0.10 and 0.13. Auman v. Commonwealth,, 2014 Va. App. LEXIS 347 (Oct. 21, 2014).

Presumption that accused under the influence of alcohol. - Evidence was sufficient to establish that defendant's blood alcohol level was 0.08 percent at the time when defendant was driving because, even if the Commonwealth of Virginia could not pinpoint defendant's precise blood alcohol content at the time, the jury could have concluded that defendant's actual blood alcohol content at the time when defendant was driving would have been higher than the 0.08 percent level at which defendant tested several hours later. Harris v. Commonwealth,, 2014 Va. App. LEXIS 108 (Mar. 25, 2014).

North Carolina statute not substantially similar to this section. - Under subdivision A (3) of this section, an accused may present evidence to rebut the presumption, and if such evidence creates a reasonable doubt as to his guilt, the fact finder must acquit. In North Carolina, however, mere proof that an accused's blood alcohol is 0.10 percent is conclusive as to guilt. With such a fundamental difference, the North Carolina statute ( § 20-138.1 of the General Statutes of North Carolina) is not substantially similar within the meaning of § 18.2-270 . Shinault v. Commonwealth, 228 Va. 269 , 321 S.E.2d 652 (1984).

Certificates allowed for presumption supporting conviction. - Evidence, viewed in the light most favorable to the Commonwealth, was sufficient to show that defendant was under the influence of alcohol at the time he crashed his vehicle into the back end of a pickup truck and caused the death of its driver; the trial court had several certificates of analysis indicating defendant was driving with a blood-alcohol level of over .08 grams, which permitted the trial court to presume that defendant was under the influence of alcohol intoxicants at the time of the alleged offense, and other evidence in the form of eyewitness testimony also supported that conviction. West v. Commonwealth, 43 Va. App. 327, 597 S.E.2d 274, 2004 Va. App. LEXIS 276 (2004).

Trial court did not err in denying defendant's motion to exclude from evidence a blood alcohol content certificate showing his state of intoxication because defendant introduced substantially similar evidence during his case in chief, thereby waiving his objection and rendering harmless any alleged error; defendant's evidence, a 0.14 percent blood alcohol content certificate of analysis, dealt with the same subject as, and was sufficiently similar to, the Commonwealth's 0.16 percent blood alcohol content certificate, and both established blood alcohol content levels in excess of 0.08 percent, thereby triggering the inference of subdivision A 3 of § 18.2-269 that defendant was under the influence of alcohol intoxicants at the time of the alleged offense. Isaac v. Commonwealth, 58 Va. App. 255, 708 S.E.2d 435, 2011 Va. App. LEXIS 164 (2011).

Trial court did not err in finding the essential elements of driving under the influence, third offense, beyond a reasonable doubt because defendant's blood alcohol content was 0.128 percent; thus, the trial court could infer that defendant was under the influence of alcohol intoxicants at the time of the offense. Taylor v. Commonwealth, No. 0719-18-2, 70 Va. App. 182, 826 S.E.2d 332, 2019 Va. App. LEXIS 89 (Apr. 16, 2019).

Certificate inadmissible where arrest not timely made. - Where there is no evidence that defendant was arrested within two hours of the alleged offense, the certificate showing the alcohol content of defendant's blood is inadmissible. Overbee v. Commonwealth, 227 Va. 238 , 315 S.E.2d 242 (1984).

Because defendant was not validly arrested within three hours of the offenses, as required by subsection A of § 18.2-268.2 , and an officer's act of telling defendant that he was under arrest and advising him of the implied consent law was insufficient to satisfy the restraint requirement to assert his lawful authority to arrest defendant, defendant did not impliedly consent to have his blood drawn; thus, the certificate of analysis containing defendant's blood test results was inadmissible. Bristol v. Commonwealth, 272 Va. 568 , 636 S.E.2d 460, 2006 Va. LEXIS 115 (2006).

No presumption of intoxication where certificate inadmissible. - Where the certificate of analysis of the breath test is inadmissible, the Commonwealth is not entitled to a rebuttable presumption that defendant was intoxicated at the time of the alleged offense (where his blood-alcohol content was greater than 0.10%). Such defendant's guilt or innocence must therefore be determined from the other evidence of his condition at the time of the alleged offense. Overbee v. Commonwealth, 227 Va. 238 , 315 S.E.2d 242 (1984).

Where defendant's breath certificate of analysis showed unexplained results of ".10 percent" grams per 210 liters, without evidence explaining the error, the trial judge could not assume that "%" was simply inserted by error and that the correct measurement for alcohol content was .10 grams per 210 liters of the accused's breath, the statutory presumption of intoxication under this section. Van Lear v. Commonwealth, No. 1924-94-3 (Ct. of Appeals Feb. 20, 1996).

The presumption created by this section is rebuttable. It neither restricts the defendant in the presentation of his defense nor deprives him of the presumptions of innocence. Since wide experience has demonstrated the close connection between the presumed fact and the alcoholic content of the blood, there is no constitutional objection to the jury's consideration, with all of the other evidence, of the statutory presumption. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958).

Presumption not applied. - Trial court did not err in convicting defendant of driving under the influence of alcohol in violation of § 18.2-266 because the trial court considered the totality of the evidence and did not apply any statutory presumption set forth in § 18.2-269 to defendant's blood alcohol test result shown on the certificate of analysis; the trial court emphasized its reliance on the photographs of the accident taken at the scene and the circumstantial evidence, in particular but not limited to, defendant's admission that he had consumed four twenty-two ounce beers before the accident. Bilger v. Commonwealth,, 2011 Va. App. LEXIS 371 (Nov. 29, 2011).

Where the appellate court was unable to determine whether the trial court applied this section's rebuttable presumption of intoxication to prove appellant's intoxication, since the Commonwealth presented other independent evidence of appellant's intoxication but where the trial court wrongly admitted the certificate after ruling that the Commonwealth had complied with the implied consent law, and subsequent to the certificate's admission, the Commonwealth failed to offer evidence on the significance of the test results in the certificate, reversal was required. Castillo v. Commonwealth, 21 Va. App. 482, 465 S.E.2d 146 (1995).

Admission of certificate not harmless error. - Trial court's error in admitting into evidence a certificate of blood alcohol analysis was not harmless beyond a reasonable doubt because in order to convict defendant of a per se violation under clause (i) of § 18.2-266 or invoke the presumption of intoxication afforded by subdivision A 3 of § 18.2-269 the trial court had to rely on the facts recited in the attestation clause in order to conclude that the test was conducted in accordance with the relevant statutes; the only evidence that the breath test was administered either as provided by Title 18.2, Chapter Seven, Article Two of the Virginia Code or in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 , as required by § 18.2-269 , was in the attestation clause on the certificate of analysis, and because the use of the attestation clause in the case violated the Confrontation Clause, it could not be used to prove that the breath test was administered in accordance with the relevant statutes. Grant v. Commonwealth, 54 Va. App. 714, 682 S.E.2d 84, 2009 Va. App. LEXIS 390 (2009).

Relevance. - Once the prosecution introduced evidence of defendant's preliminary breath test level in a reckless driving case under § 46.2-852 , the blood alcohol presumptions found in § 18.2-269 became relevant, and defendant was entitled to a jury instruction on the statutory presumptions. Burnside v. Commonwealth, No. 0660-12-4, 2013 Va. App. LEXIS 152 (Ct. of Appeals May 14, 2013).

Applied in United States v. Robertson, 638 F. Supp. 1202 (E.D. Va. 1986); Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754, 2005 Va. App. LEXIS 407 (2005); Stevens v. Commonwealth, 272 Va. 481 , 634 S.E.2d 305, 2006 Va. LEXIS 87 (2006).

CIRCUIT COURT OPINIONS

Constitutionality. - Court denied defendant's motion to declare certain parts of § 18.2-269 unconstitutional because the Virginia General Assembly was well within its authority to find that a blood alcohol level of 0.08 and above created a permissive inference that an individual was "under the influence of alcohol" as that term was used in § 18.2-266 . Commonwealth v. Pattarasok, 69 Va. Cir. 423, 2006 Va. Cir. LEXIS 15 (Fairfax County 2006).

Court denied defendant's motion to declare certain parts of § 18.2-269 unconstitutional because its rebuttable presumptions were to be given permissive or burden-of-production shifting effect only. Commonwealth v. Pattarasok, 69 Va. Cir. 423, 2006 Va. Cir. LEXIS 15 (Fairfax County 2006).

Only if this section could reasonably be read to provide a permissible inference could it satisfy due process requirements; the circuit court found that due process required that § 18.2-269 be treated as creating a permissible inference, rather than as a mandatory rebuttable presumption, and, so construed, the statute was constitutional, both facially and as applied to defendants. Commonwealth v. Padilla, 69 Va. Cir. 409, 2006 Va. Cir. LEXIS 16 (Fairfax County 2006), aff'd, Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523, 2007 Va. App. LEXIS 171 (2007).

In a driving under the influence of alcohol in violation of § 18.2-266 , the circuit court found that this section would violate due process if interpreted as shifting the burden to defendants to rebut an element of the offense that the fact finder would otherwise be required to conclude; when the charge was driving under the influence of alcohol, a mandatory rebuttable presumption that required the fact finder upon the presentation of a certain blood alcohol level to conclude that defendants were under the influence of alcohol, unless rebutted by them, would adversely affect their right to trial by jury and their right to remain silent, and it would diminish the requirement of the state to prove defendants' guilt beyond a reasonable doubt. Only if § 18.2-269 could reasonably be read to provide a permissible inference could it satisfy due process requirements; the circuit court found that due process required that § 18.2-269 be treated as creating a permissible inference, rather than as a mandatory rebuttable presumption, and, so construed, the statute was constitutional, both facially and as applied to defendants. Commonwealth v. Padilla, 69 Va. Cir. 409, 2006 Va. Cir. LEXIS 16 (Fairfax County 2006), aff'd, Yap v. Commonwealth, 49 Va. App. 622, 643 S.E.2d 523, 2007 Va. App. LEXIS 171 (2007).

Presumptions of §§ 18.2-266 and 18.2-269 are permissive inferences because they do not remove the element of alcohol content from the case and do not shift the burden of persuasion to the defendant; thus, they do not violate due process or the right to confrontation. Furthermore, § 18.2-270 , which relies on a violation of § 18.2-266 , is not unconstitutional, as the burden of persuasion is with the Commonwealth at all times. Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

Rebuttable presumption does not violate due process. - Rebuttable presumptions in §§ 18.2-266(i) and 18.2-269 did not violate defendant's due process rights, because the court was required to analyze the rebuttable presumptions as permissive inferences, as to which defendant had no standing to make a facial constitutional challenge. Commonwealth v. Draper, 72 Va. Cir. 111, 2006 Va. Cir. LEXIS 315 (Martinsville 2006).

§ 18.2-270. Penalty for driving while intoxicated; subsequent offense; prior conviction.

  1. Except as otherwise provided herein, any person violating any provision of § 18.2-266 shall be guilty of a Class 1 misdemeanor with a mandatory minimum fine of $250. If the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of five days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 10 days.
    1. Any person convicted of a second offense committed within less than five years after a prior offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence. B. 1.  Any person convicted of a second offense committed within less than five years after a prior offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month nor more than one year. Twenty days of such confinement shall be a mandatory minimum sentence.
    2. Any person convicted of a second offense committed within a period of five to 10 years of a prior offense under § 18.2-266 shall upon conviction of the second offense be punished by a mandatory minimum fine of $500 and by confinement in jail for not less than one month. Ten days of such confinement shall be a mandatory minimum sentence.
    3. Upon conviction of a second offense within 10 years of a prior offense, if the person's blood alcohol level as indicated by the chemical test administered as provided in this article or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results (i) was at least 0.15, but not more than 0.20, he shall be confined in jail for an additional mandatory minimum period of 10 days or, (ii) if the level was more than 0.20, for an additional mandatory minimum period of 20 days. In addition, such person shall be fined a mandatory minimum fine of $500.
    1. Any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000. C. 1.  Any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall upon conviction of the third offense be guilty of a Class 6 felony. The sentence of any person convicted of three offenses of § 18.2-266 committed within a 10-year period shall include a mandatory minimum sentence of 90 days, unless the three offenses were committed within a five-year period, in which case the sentence shall include a mandatory minimum sentence of confinement for six months. In addition, such person shall be fined a mandatory minimum fine of $1,000.
    2. A person who has been convicted of § 18.2-36.1 , 18.2-36.2 , 18.2-51.4 , 18.2-51.5 , or a felony violation of § 18.2-266 shall upon conviction of a subsequent violation of § 18.2-266 be guilty of a Class 6 felony. The punishment of any person convicted of such a subsequent violation of § 18.2-266 shall include a mandatory minimum term of imprisonment of one year and a mandatory minimum fine of $1,000.
    3. The punishment of any person convicted of a fourth or subsequent offense of § 18.2-266 committed within a 10-year period shall, upon conviction, include a mandatory minimum term of imprisonment of one year. In addition, such person shall be fined a mandatory minimum fine of $1,000.
    4. The vehicle solely owned and operated by the accused during the commission of a felony violation of § 18.2-266 shall be subject to seizure and forfeiture. After an arrest for a felony violation of § 18.2-266, the Commonwealth may file an information in accordance with § 19.2-386.34 .
  2. In addition to the penalty otherwise authorized by this section or § 16.1-278.9, any person convicted of a violation of § 18.2-266 committed while transporting a person 17 years of age or younger shall be (i) fined an additional minimum of $500 and not more than $1,000 and (ii) sentenced to a mandatory minimum period of confinement of five days.
  3. For the purpose of determining the number of offenses committed by, and the punishment appropriate for, a person under this section, an adult conviction of any person, or finding of guilty in the case of a juvenile, under the following shall be considered a conviction of § 18.2-266 : (i) the provisions of § 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii) the provisions of §§ 18.2-51.4 , 18.2-266 , former § 18.1-54 (formerly § 18-75), the ordinance of any county, city or town in this Commonwealth or the laws of any other state or of the United States substantially similar to the provisions of § 18.2-51.4 , or § 18.2-266, or (iii) the provisions of subsection A of § 46.2-341.24 or the substantially similar laws of any other state or of the United States.
  4. Mandatory minimum punishments imposed pursuant to this section shall be cumulative, and mandatory minimum terms of confinement shall be served consecutively. However, in no case shall punishment imposed hereunder exceed the applicable statutory maximum Class 1 misdemeanor term of confinement or fine upon conviction of a first or second offense, or Class 6 felony term of confinement or fine upon conviction of a third or subsequent offense.

    (Code 1950, § 18.1-58; 1960, c. 358; 1962, c. 302; 1975, cc. 14, 15; 1982, c. 301; 1983, c. 504; 1989, c. 705; 1991, cc. 370, 710; 1992, c. 891; 1993, c. 972; 1997, c. 691; 1999, cc. 743, 945, 949, 987; 2000, cc. 784, 956, 958, 980, 982; 2002, c. 759; 2003, cc. 573, 591; 2004, cc. 461, 937, 946, 950, 957, 958, 962; 2006, cc. 82, 314; 2009, c. 229; 2012, cc. 283, 756; 2013, cc. 415, 655; 2014, c. 707.)

Cross references. - As to application of this section in federal court, see note to § 18.2-266 .

Editor's note. - Acts 2000, cc. 956 and 982, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $ 0 in FY 2010."

Acts 2004, c. 937, cl. 2, provides: "That the Department of Motor Vehicles shall determine the impact on its recordkeeping system if the penalties currently applicable to a third conviction of § 18.2-266 were applicable without regard to the time period in which the offenses were committed."

The 1997 amendment, in the last paragraph, in clause (i), inserted " § 18.2-51.4 " following "the provisions of" and inserted " § 18.2-51.4 , and" following "the provisions of."

The 1999 amendments. - The 1999 amendment by c. 743, in the second paragraph, deleted "offense" following "convicted of a third" in the fourth sentence, and added the last sentence, and substituted "$500 and not more than $1000" for "$100 and not more than $500" in the third paragraph.

The 1999 amendments by cc. 945 and 987 are identical, and added "Except as otherwise provided herein" at the beginning of the first paragraph, and substituted "or subsequent offense committed within ten years of an offense under § 18.2-266 shall be guilty of a Class 6 felony. Upon conviction for a fourth or subsequent offense within ten years, the sentence shall include a mandatory, minimum term of imprisonment of one year, none of which may be suspended in whole or in part" for "offense or subsequent offense committed within ten years of an offense under § 18.2-266 shall be punishable by a fine of not less than $500 nor more than $2,500 and by confinement in jail for not less than two months nor more than one year. Thirty days of such confinement shall be a mandatory, minimum sentence not subject to suspension by the court if the third or subsequent offense occurs within less than five years. Ten days of such confinement shall be a mandatory, minimum sentence not subject to suspension by the court if the third or subsequent offense occurs within a period of five to ten years of a first offense" at the end of the second paragraph.

The 1999 amendment by c. 949, in the last paragraph, inserted "of any person," inserted "the provision of § 18.2-36.1 or the substantially similar laws of any other state or of the United States, (ii)," and substituted "(iii)" for "(ii)."

The 2000 amendments. - The 2000 amendment by c. 784 redesignated the former first paragraph as subsection A and added the second and third sentences thereof; redesignated the former first and second sentences of the former second paragraph as subdivision B 1; redesignated the former third sentence of the former second paragraph as subdivision B 2; added subdivision B 3; redesignated the former fourth, fifth, and sixth sentences of the former second paragraph as present subsection C; and redesignated the former third and fourth paragraphs as present subsections D and E.

The 2000 amendments by cc. 956 and 982 are identical, and in the first sentence of present subsection C, substituted "three or more offenses of § 18.2-266 " for "a third or subsequent offense" and inserted "a" and "year" and substituted "period" for "years of an offense under § 18.2-266 ," and in present subsection E, substituted "an adult" for "a."

The 2002 amendments. - The 2002 amendment by c. 759 substituted "mandatory, minimum period" for "minimum, mandatory period" throughout subsection A and subdivision B3; in subdivisions B 1 and B2, substituted "upon conviction of the second offense be punished" for "be punishable" and deleted "nor more than $2,500" following "$200"; deleted "nor more than one year" at the end of subdivision B 2; and in subsection C, inserted "upon conviction of the third offense" in the first and second sentences, and in the third sentence, substituted "The punishment of any person convicted of" for "Upon conviction for," substituted "committed within a ten-year" for "within ten years" following "offense," and inserted "upon conviction" following "shall."

The 2003 amendments. - The 2003 amendment by c. 573 substituted "10" for "ten" throughout the section; added the last sentence in subsection A; substituted "mandatory, minimum fine of $500" for "fine of not less than $200" in subdivisions B 1 and 2; added the last sentence in subdivision B 3; in subsection C, three times inserted "In addition, such person shall be fined a mandatory, minimum fine of $1,000," and substituted "30" for "thirty"; and in subsection D, substituted "17" for "seventeen," and "a mandatory, minimum period of confinement of five days" for "perform forty hours of community service in a program benefiting children or, for a subsequent offense, eighty hours of community service in such a program."

The 2003 amendment by c. 591 substituted "10" for "ten" throughout the section; added the last sentence in subsection A; substituted "mandatory, minimum fine of $500, which shall not be suspended by the court" for "fine of not less than $200" in subdivisions B 1 and 2; in subdivision B 3, substituted "20" for "twenty," and added the last sentence; in subsection C, three times inserted "In addition, such person shall be fined a mandatory, minimum fine of $1,000, which shall not be suspended by the court" and substituted "30" for "thirty;" and substituted "17" for "seventeen" in subsection D.

The 2004 amendments. - The 2004 amendment by c. 461, deleted the former next-to-last sentence, which read: "The additional mandatory, minimum period of confinement shall not be suspended by the court" in subsection A and in subdivision B 3; throughout the section, deleted "which shall not be suspended by the court"; deleted "not subject to suspension by the court" at the end of the last sentence in subdivision B 1; substituted "mandatory minimum" for "minimum, mandatory" in the first sentence of subdivision B 3; in subsection C, deleted "that shall not be subject to suspension by the court" at the end of the first sentence and in the third sentence and "none of which may be suspended in whole or in part" at the end of the fifth sentence; and made minor stylistic changes.

The 2004 amendment by c. 937, throughout, substituted "0.15" for "0.20" and "0.20" for "0.25"; added the last sentence in subdivision B 2; substituted "mandatory minimum" for "minimum, mandatory" in the first sentence of subdivision B 3; in subsection C [now C 1], divided the former first sentence into the present first and second sentences by substituting the language "The sentence of any person convicted ... in which case the sentence" for "and the sentence" and substituted "six months" for "10 days" in the present second sentence, deleted the former third and fourth sentences, and inserted "under § 18.2-266 " in the present fourth sentence; in subsection E, substituted "conviction of § 18.2-266 " for "prior conviction" and " § 18.2-51.4 or § 18.2-266" for " §§ 18.2-51.4 , and 18.2-266 through 18.2-269 "; and made minor stylistic changes.

The 2004 amendment by c. 946, in subsection A, added "with a mandatory minimum fine of $250" at the end of the first sentence, deleted the comma between "mandatory" and "minimum" in three places and deleted the former last sentence, which read: "In addition, such person shall be fined a mandatory, minimum fine of $250, which shall not be suspended by the court."

The 2004 amendment by c. 950 substituted "0.15" for "0.20" and "0.20" for "0.25" in two places in subdivisions B 1 and B 3; throughout the section, deleted the comma between "mandatory" and "minimum"; and substituted "10" for "ten" in subdivision B 2.

The 2004 amendment by c. 957 substituted "mandatory minimum" for "minimum, mandatory" in the first sentence of subdivision B 3; throughout, deleted the comma between "mandatory" and "minimum"; and in subsection C, deleted "or more" following "three" in the first sentence and substituted "six months" for "30 days" in the third sentence.

The 2004 amendment by c. 958, throughout the section, deleted the comma between "mandatory" and "minimum"; substituted "10" for "ten" in subdivision B 2; substituted "mandatory minimum" for "minimum, mandatory" in the first sentence of subdivision B 3; and in subsection C, redesignated the former three paragraphs as present subdivisions C 1 through C 3 and added subdivision C 4 and the next-to-last and last paragraphs.

The 2004 amendment by c. 962 substituted "Twenty" for "Five" in the last sentence of subdivision B 1; in subdivision B 2, substituted "10" for "ten" in the first sentence and added the last sentence; throughout, deleted the comma between "mandatory" and "minimum"; substituted "mandatory minimum" for "minimum, mandatory" in the first sentence of subdivision B 3; in subsection C, divided the former first sentence into the first and second sentences by substituting "The sentence" for "and the sentence," in the present second sentence, inserted the language "of any person convicted ... in which case the sentence" and substituted "six months" for "10 days," deleted the former third and fourth sentences and inserted "of § 18.2-266 " in the present fourth sentence; and in subsection E, substituted "conviction of § 18.2-266 " for "prior conviction" and " § 18.2-51.4 , or § 18.2-266" for " §§ 18.2-51.4 , and 18.2-266 through 18.2-269 ."

The 2006 amendments. - The 2006 amendment by c. 82 substituted "prior" for "first" in subdivisions B 1 through B 3.

The 2006 amendment by c. 314 inserted "determining the number of offenses committed by, and the punishment appropriate for, a person under" near the beginning of subsection E; and added subsection F.

The 2009 amendments. - The 2009 amendment by c. 229, in subsection A and in subdivision B 3, inserted "or by any other scientifically reliable chemical test performed on whole blood under circumstances reliably establishing the identity of the person who is the source of the blood and the accuracy of the results" and inserted the clauses (i) and (ii) designations.

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and rewrote subdivision C 3 by substituting " § 19.2-386.34 " for " § 19.2-386.1 " at the end of the second sentence and deleting the remainder of the paragraph and the former two paragraphs following.

The 2013 amendments. - The 2013 amendments by cc. 415 and 655 are identical, and added subdivision C 2 and redesignated former subdivisions C 2 and C 3 as subdivisions C 3 and C 4.

The 2014 amendments. - The 2014 amendment by c. 707 deleted the last sentence in subdivision C 3, which read "Unless otherwise modified by the court, the defendant shall remain on probation and under the terms of any suspended sentence for the same period as his operator's license was suspended, not to exceed three years."

Law review. - For note on the Virginia blood test statute discussing statistical methods of evaluating blood samples, see 56 Va. L. Rev. 349 (1970). For comment on 1982 amendments to Virginia's driving while intoxicated laws, see 17 U. Rich. L. Rev. 189 (1982).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 5B M.J. Criminal Procedure, §§ 3, 86; 5C M.J. Damages, § 65; 9B Infants and Juveniles, § 89.

CASE NOTES

Constitutionality. - Trial court did not err in refusing to declare §§ 18.2-269 and 18.2-270 unconstitutional in a case where defendant was charged with and later convicted of driving under the influence of alcohol; there did not exist an evidentiary presumption relieving the Commonwealth of the burden of proof beyond a reasonable doubt in those two statutes, as § 18.2-269 did not have a mandatory presumption but a rebuttable presumption and § 18.2-270 had no presumption at all. Lawrence v. Commonwealth, No. 0658-06-4, 2007 Va. App. LEXIS 150 (Apr. 10, 2007).

Trial court properly sentenced defendant to a mandatory term of ten days in jail for driving a motor vehicle while intoxicated in violation of § 18.2-266 because § 18.2-270 was constitutional and did not contain an unconstitutional mandatory presumption; sentencing pursuant to § 18.2-270 does not require proof of the accused's blood alcohol level at the time of the offense but simply mandates a minimum sentence if the accused has been convicted of driving while intoxicated and his blood alcohol level, as indicated by the chemical test, exceeded the threshold level. Wimbish v. Commonwealth, 51 Va. App. 474, 658 S.E.2d 715, 2008 Va. App. LEXIS 168 (2008).

The purpose of this statute is to enable the court or jury to impose a heavier punishment when the accused is tried for and convicted of an offense charged as a second or subsequent offense. To effect this purpose, the prior offense must be charged and proven by the Commonwealth. Meredith v. Commonwealth, No. 1117-93-3 (Ct. of Appeals Jan. 10, 1995).

Trial court or jury has discretion to set amount of fine. - Subsection C of § 18.2-270 sets a mandatory minimum fine of $1,000. The plain, obvious, and rational meaning of "mandatory minimum fine of $1,000" is that the trial court or jury has the discretion to impose a pecuniary punishment greater than $1,000, and nothing in the statute supports a different conclusion. Neria v. Commonwealth, No. 3088-07-4,, 2009 Va. App. LEXIS 136 (Ct. of Appeals Mar. 24, 2009).

Jury had the discretion under subsection C of § 18.2-270 to fine defendant $2,500 for his fourth offense under § 18.2-266 . By setting a mandatory minimum fine of $1,000, subsection C gave a jury the discretion to impose a larger fine, and as the more specific statute, it controlled over § 18.2-10 , which applied to Class 6 felonies in general. Neria v. Commonwealth, No. 3088-07-4,, 2009 Va. App. LEXIS 136 (Ct. of Appeals Mar. 24, 2009).

Specific fine provisions prevail over general provisions. - Fine provisions of subsection C of § 18.2-270 and subdivision (f) of § 18.2-10 directly conflict with each other. Because the provisions cannot be harmonized, the more specific statute, subsection C of § 18.2-270 , prevails. Neria v. Commonwealth, No. 3088-07-4,, 2009 Va. App. LEXIS 136 (Ct. of Appeals Mar. 24, 2009).

The provisions of this section are dependent upon the nature of the charge contained in the warrant or indictment, and deal with the punishment to be fixed by the court or jury. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

And to impose the heavier punishment prior offense must be charged. - The purpose of this section is to enable the court or jury to impose a heavier punishment when the accused is tried for and convicted of an offense charged as a second or subsequent offense. To effect this purpose, the prior offense must be charged and proven. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

For the heavier punishment to be imposed by jury or a court trying a case without a jury, the prior offenses must be charged and proven. Calfee v. Commonwealth, 215 Va. 253 , 208 S.E.2d 740 (1974).

Trial court's judgment of conviction was reversed and defendant's case was remanded to the trial court for resentencing in a case where defendant had been convicted of a third DWI within a 10-year period and had been sentenced in accordance with the enhanced punishment provisions of § 18.2-270 ; the Commonwealth did not prove that defendant had been previously convicted of a second offense of driving while intoxicated within a five-year period, as the evidence at most disclosed that defendant had been arraigned in the earlier proceeding and found guilty of "DWI, 2nd offense," and not the second offense of driving while intoxicated within a five-year period that would be needed to enhance the punishment in the current case. Stewart v. Commonwealth,, 2007 Va. App. LEXIS 104 (Mar. 20, 2007).

Defendant was entitled to a writ of actual innocence because no rational fact finder could find proof of defendant's guilt of driving under the influence third beyond a reasonable doubt where his conviction for second offense DUI was ultimately dismissed before going to trial and could not serve as a predicate offense, and the record thus revealed one, not two, prior convictions. Conley v. Commonwealth, No. 0575-10-1, 2011 Va. App. LEXIS 416 (June 15, 2011).

Applicability of mandatory incarceration periods. - Upon a conviction under § 18.2-266 where proof of a defendant's blood alcohol level is by a valid chemical breath or blood test, § 18.2-270 applies; to hold otherwise would defeat the purpose of § 18.2-270 . Thus, the enhanced penalty provided for in § 18.2-270(A) for defendants with breath alcohol readings in excess of 0.15 applied to defendant's sentence for driving while intoxicated in violation of § 18.2-266 . United States v. Barber, 360 F. Supp. 2d 784, 2005 U.S. Dist. LEXIS 4640 (E.D. Va. 2005).

County ordinance held invalid. - County ordinance which provided for a lesser punishment than that provided by general law was invalid. Commonwealth v. Holtz, 12 Va. App. 1151, 408 S.E.2d 561 (1991).

County ordinance held valid. - In adopting by reference all provisions of state statute prohibiting driving while under the influence, the county effectively adopted the same penalty provided in the state statute, and the county ordinance was valid. Commonwealth v. Howell, 20 Va. App. 732, 460 S.E.2d 614 (1995).

Judicial notice of city ordinances. - Defendant's assertion that subsection C of § 18.2-270 was void for vagueness, failed because the disputed levels of punishment for driving while intoxicated were clearly proscribed by the statute. Cubitt v. Commonwealth, No. 3462-01-1, 2002 Va. App. LEXIS 747 (Ct. of Appeals Dec. 17, 2002).

Sufficiency of reference to subsequent offense. - The charge of "SUBSEQUENT OFFENSE" DUI in violation of § 18.2-266 and the pretrial notice from the commonwealth's attorney that the prosecution was for third offense were sufficient to notify a defendant that the charge against him was for a third offense or subsequent offense. Thieman v. Commonwealth, No. 1404-99-3, 2000 Va. App. LEXIS 713 (Ct. of Appeals Nov. 7, 2000).

The purposes of an allegation in a warrant or indictment that an accused has been previously convicted of a similar offense are to put him on notice that proof of his prior conviction will be introduced in evidence and to permit the imposition of a heavier punishment if the second or subsequent offense is proved. Calfee v. Commonwealth, 215 Va. 253 , 208 S.E.2d 740 (1974).

Conviction under statute which might not result in conviction under this section not "substantially conforming." - If a person may be convicted of an offense under another jurisdiction's statute for conduct which might not result in a conviction under this section, the statutes are not "substantially conforming." Cox v. Commonwealth, 13 Va. App. 328, 411 S.E.2d 444 (1991).

Assimilation of sentencing ranges under the Assimilative Crimes Act. - District court applied federal sentencing policy and law in imposing a home detention as defendant's sentence for driving while his blood alcohol was in excess of 0.08 grams per 210 liters of breath on a military base, but § 18.2-270 was assimilated under the Assimilative Crimes Act, 18 U.S.C.S. § 13 and dictated the minimum and maximum statutory terms of confinement. United States v. Montigue, 357 F. Supp. 2d 939, 2005 U.S. Dist. LEXIS 2450 (E.D. Va. 2005).

Defendant's sentence of 27 months imprisonment for drunk driving and for driving with a suspended license fell below the midpoint of the range prescribed by § 18.2-266 and subdivision C 1 of § 18.2-270 , and because the sentence fell within the state-prescribed range, it was consonant with the Assimilative Crimes Act's "like punishment" requirement. United States v. Finley, 531 F.3d 288, 2008 U.S. App. LEXIS 13762 (4th Cir. 2008).

Magistrate was bound by the mandatory minimum sentence. - In the context of the Assimilated Crimes Act, 18 U.S.C.S. § 13, defendant did not point to a single federal policy that Virginia's driving while intoxicated offense and its associated penalties conflicted with and as there was no justification for casting aside the mandatory minimum sentence prescribed by Virginia law, defendant was subject to the mandatory minimum sentence of twenty days imprisonment. United States v. Clark, 361 F. Supp. 2d 502, 2005 U.S. Dist. LEXIS 4230 (E.D. Va. 2005).

Defendant argued that, even if federal courts were bound by the mandatory minimum penalty, the sentence imposed by the magistrate judge was a lawful substitute for imprisonment under the Schedule of Substitute Punishments contained in U.S. Sentencing Guidelines Manual § 5C1.1(e); defendant's contention that confinement to the enclave qualified as home confinement was rejected as confinement to the enclave was not confinement at all; when a person was free to go where he pleased, he was not detained. United States v. Clark, 361 F. Supp. 2d 502, 2005 U.S. Dist. LEXIS 4230 (E.D. Va. 2005).

Jury instructions omitting minimum fine did not require new sentencing proceeding. - Although a jury instruction erroneously left out the mandatory minimum fine of $1,000 under subsection C of § 18.2-270 , defendant, who was fined $2,500, was not entitled to a new sentencing proceeding. The punishment fit within the statutory requirements of subsection C, which required a fine of at least $1,000, and did not prejudice defendant. Neria v. Commonwealth, No. 3088-07-4,, 2009 Va. App. LEXIS 136 (Ct. of Appeals Mar. 24, 2009).

Burden of proving conviction under substantially similar law. - The Commonwealth bears the burden of proving that an out-of-state conviction was obtained under laws substantially similar to those of the Commonwealth. Shinault v. Commonwealth, 228 Va. 269 , 321 S.E.2d 652 (1984).

Substantially similar law proven. - Trial court did not err in treating defendant's California driving under the influence conviction as a predicate offense for a recidivism enhancement to her Virginia DUI punishment under subdivision B 3 of § 18.2-270 because the California's DUI statute was substantially similar to § 18.2-266 where in neither statute were the blood alcohol concentration presumptions mandatory or conclusive. Taylor v. Commonwealth,, 2010 Va. App. LEXIS 96 (Mar. 16, 2010).

Defendant was properly convicted of driving under the influence, fourth or subsequent offense within 10 years because, while two of defendant's five prior convictions in California under Cal. Veh. Code § 23152 were not substantially similar to the Virginia statute, admission and consideration of them was, nevertheless, harmless error where the remaining two California convictions were admissible as substantially similar, and defendant's prior Virginia conviction clearly qualified as a predicate offense. Clementi v. Commonwealth,, 2015 Va. App. LEXIS 78 (Mar. 17, 2015).

Virginia per se provisions and the Florida per se provisions are also substantially similar because the prosecution bears the burden of proving the requisite blood-alcohol concentration at the time of driving or controlling a vehicle; viewed together, both per se provisions are operationally identical because both set forth an offense requiring the prosecution to prove the same elements: the defendant was driving, operating, or controlling a vehicle and had an unlawful blood-alcohol content. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Impairment provisions of both the Florida and Virginia driving under the influence statutory schemes are substantially similar because both States' presumptions of impairment based on chemical test results only apply to the impairment provisions of either state's respective driving under the influence statute, and both presumptions are rebuttable. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Impairment provisions of the Virginia and Florida driving under the influence statutes are substantially similar because both impairment statutory schemes are functionally identical, and neither requires proof of a specific blood-alcohol level; both schemes allow the prosecution to prove its case without resort to chemical testing by proving impairment beyond a reasonable doubt based on all of the evidence of the accused's condition at the time of the alleged offense. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

Trial court properly admitted defendant's Florida driving under the influence (DUI) convictions because the Virginia and Florida DUI statutory schemes were substantially similar; defendant's conduct that was sufficient to sustain two Florida DUI convictions would have supported convictions under Virginia DUI laws, regardless of whether the prosecution used an impairment or per se theory. Beckham v. Commonwealth, 67 Va. App. 654, 799 S.E.2d 689 (2017).

North Carolina statute not substantially similar to § 18.2-269 A 3. - Under subdivision A 3 of § 18.2-269 of the Code of Virginia, an accused may present evidence to rebut the presumption, and if such evidence creates a reasonable doubt as to his guilt, the fact finder must acquit. In North Carolina, however, mere proof that an accused's blood alcohol is 0.10 percent is conclusive as to guilt. With such a fundamental difference, the North Carolina statute ( § 20-138.1 of the General Statutes of North Carolina) is not substantially similar within the meaning of this section. Shinault v. Commonwealth, 228 Va. 269 , 321 S.E.2d 652 (1984).

Insufficient showing of similarity of foreign law. - Where defendant was convicted for a second and subsequent offense of driving under the influence of intoxicants, a prior conviction for drunk driving in North Carolina which was shown on a certified transcript of the defendant's driving record prepared by the Virginia Division of Motor Vehicles (now Department of Motor Vehicles) was insufficient to carry the Commonwealth's burden of proving substantial similarity and to shift to the defendant the burden of going forward with the evidence of dissimilarity. Rufty v. Commonwealth, 221 Va. 836 , 275 S.E.2d 584 (1981).

Trial court erred by imposing an enhanced sentence, pursuant to subsection C of § 18.2-270 , against a defendant based upon his prior conviction for DWI under 36 C.F.R. § 4.23(a)(2) where said regulation was not substantially similar to a conviction under § 18.2-266 , as a conviction under federal law did not translate into a conviction under the state law. Corey v. Commonwealth, No. 0421-02-4, 2003 Va. App. LEXIS 582 (Ct. of Appeals Nov. 12, 2003).

California driving under the influence statute was not shown to be substantially similar to the Virginia statute because the California statute permits a conviction for conduct that would not result in a conviction under the Virginia statute, and the California conviction order did not establish what conduct led to defendant's prior convictions; the California conviction was not substantially similar to the Virginia conviction and the trial court erred in admitting the California conviction for the purpose of proving a prior offense. Patterson v. Commonwealth, No. 0821-16-1, 2017 Va. App. LEXIS 180 (July 25, 2017).

In a DUI second offense trial, the burden is on the Commonwealth to prove the prior conviction beyond a reasonable doubt. McBride v. Commonwealth, 24 Va. App. 30, 480 S.E.2d 126 (1997).

Prior conviction could be used where Commonwealth presented proof of representation by appointed counsel. - Defendant's second conviction for driving under the influence of alcohol was properly considered in applying the enhanced sentencing provisions of subdivision C 1 because the Commonwealth, in addition to relying on the presumption of regularity of court proceedings, presented evidence that the court had appointed counsel to represent defendant at the second prosecution and introduced a time sheet signed by appointed counsel, requesting compensation for in-court and out-of-court services rendered during counsel's representation of defendant. Tweedy v. Commonwealth,, 2009 Va. App. LEXIS 192 (Apr. 28, 2009).

Lack of conviction for second offense not impediment to charge third offense. - Terms of subdivision C 1 are clear and unambiguous: to receive the enhanced punishment, a person must have been convicted of three violations of § 18.2-266 that occurred within a ten-year period; there is no mention of driving while under the influence, second offense, in either subdivision C 1 or in § 18.2-266 , and thus, such a charge is not a predicate for imposition of the enhanced penalties found in subdivision C 1. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Nothing in subsection B or anywhere else in the statute suggests that the prior imposition of punishment under subsection B is required before a defendant can be punished under subdivision C 1; although that may be the "normal" progression of events, subdivision C 1 only requires that there have been two previous convictions for DUI in violation of § 18.2-266 , and if the General Assembly had intended to adopt appellant's position, it would have done so expressly. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Prior conviction arose out of same act or acts. - Section 19.2-294.1 required the dismissal of defendant's indictment for felony driving under the influence, fourth offense, in violation of §§ 18.2-266 and 18.2-270 because defendant had been previously convicted of reckless driving in the general district court arising out of the same act or acts that were the basis of the felony indictment for driving under the influence. Lawson v. Commonwealth, 61 Va. App. 292, 734 S.E.2d 714, 2012 Va. App. LEXIS 402 (2012).

Conviction of third offense upheld. - Defendant who had one conviction for driving under the influence (DUI) and was awaiting trial on a second DUI charge when he was arrested and charged with a third DUI was properly convicted of felony DUI for the third incident, pursuant to §§ 18.2-266 and 18.2-270 , after he was also convicted of the second DUI charge. Williams v. Commonwealth, 38 Va. App. 414, 565 S.E.2d 328, 2002 Va. App. LEXIS 369 (2002), aff'd, 265 Va. 268 , 576 S.E.2d 468 (2003).

Where an enhanced driving under the influence (DUI) punishment was statutorily activated by a conviction or an offense within 10 years pursuant to § 18.2-270 , defendant could be convicted of a third offense DUI in violation of § 18.2-266 even though a trial was pending on a second offense. Williams v. Commonwealth, 265 Va. 268 , 576 S.E.2d 468, 2003 Va. LEXIS 22 (2003).

Trial court did not err in relying on defendant's two prior convictions for driving under the influence of alcohol to find defendant guilty of defendant's third DUI offense because defendant did not overcome the presumed validity of the two prior DUI convictions that served as predicates for the third offense DUI conviction in that defendant's only argument was limited to the fact a blank on the form conviction orders was unchecked. Greco v. Commonwealth, No. 2121-12-1, 2014 Va. App. LEXIS 125 (Apr. 1, 2014).

Trial court properly sentenced because defendant had two prior driving under the influence convictions in the preceding ten years; a conviction order established that defendant pleaded guilty to a charge of DUI in violation of § 18.2-266 , the sentence imposed in the prior case was consistent with a violation of § 18.2-266 , and the DMV transcript also stated that the conviction was for a violation of § 18.2-266. Parsons v. Commonwealth, No. 0269-15-1, 2016 Va. App. LEXIS 118 (Ct. of Appeals Apr. 12, 2016).

Lack of a conviction for driving while under the influence, second offense, was not an impediment to charging defendant with DUI, third offense, because the express text of subdivision C 1 did not require that a person have been charged and convicted of DUI, second offense, before he or she could receive the enhanced punishments provided for in subdivision C 1. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

Transporting child under the age of 17. - Trial court did not err in denying defendant's motion to strike, which alleged that he could not have been prosecuted for felony child abuse under subsection B of § 18.2-371.1 , based on the act of transporting his son while driving under the influence, as this section simply provides an additional penalty for driving under the influence while transporting a person 17 years of age or younger and does not include within its parameters the elements of the child abuse and neglect offense. Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27, 2004 Va. App. LEXIS 168 (2004).

Jury instructions necessary before prior conviction admissible. - A previous conviction of a similar offense is admissible when the jury is told that such evidence is admitted only for the purpose of fixing the quantum of punishment if the accused is found guilty and is not to be considered by them as evidence of guilt in the second or subsequent offense for which he is on trial. Calfee v. Commonwealth, 215 Va. 253 , 208 S.E.2d 740 (1974).

Where a final order sentenced accused to thirty days instead of one month as stated in the verdict and presumably prescribed, in accordance with this section, by the town ordinance under which he was prosecuted, the judgment should be made to accord with the verdict in all necessary particulars on a retrial. Dickerson v. Town of Christiansburg, 201 Va. 342 , 111 S.E.2d 292 (1959).

Evidence of prior conviction properly admitted. - Where the trial court instructed the jury that although the defendant had been previously convicted of a similar offense they should not consider this in determining his guilt or innocence of the charge they were then trying, and they were further instructed that in the event they found the defendant guilty as charged in the warrant they could consider the prior conviction in determining the quantum of his punishment, the trial court did not err in admitting evidence of defendant's prior conviction. Calfee v. Commonwealth, 215 Va. 253 , 208 S.E.2d 740 (1974).

Because defendant offered no evidence rebutting the presumption of regularity attaching to previous conviction for driving under the influence of alcohol, and because evidence supported finding that defendant was represented by counsel in previous trial, the trial court did not err in admitting evidence of prior conviction to enhance penalties against defendant under "third offense" provision for DUI. Samuels v. Commonwealth, 27 Va. App. 119, 497 S.E.2d 873 (1998).

In convicting defendant of driving under the influence (DUI), the trial court did not err in admitting evidence of prior DUI conviction, as the arrest warrant constituted an official document, and the trial court properly consulted the warrant as evidence of the ordinance under which defendant was previously convicted in taking judicial notice of its provisions. Webb v. Commonwealth, No. 2749-01-2, 2003 Va. App. LEXIS 138 (Ct. of Appeals Mar. 18, 2003).

Trial court properly rejected an attempt defendant made during his trial on a charge that he drove under the influence a third or subsequent time within 10 years, to suppress two prior DUI convictions, because his argument that his earlier convictions were obtained in violation of his right to effective assistance of counsel did not rise to the level of a constitutional violation that negated those convictions, and they were not subject to collateral attack. Vester v. Commonwealth, 42 Va. App. 592, 593 S.E.2d 551, 2004 Va. App. LEXIS 99 (2004).

Under § 46.2-384 , a Department of Motor Vehicles transcript, certified pursuant to § 46.2-215 , was prima facie evidence of the facts stated therein and was therefore sufficient to prove defendant's prior DUI offenses and support his conviction under §§ 18.2-266 and 18.2-270 . Mitchem v. Commonwealth,, 2010 Va. App. LEXIS 18 (Jan. 12, 2010).

Harmless error in admission of evidence. - In a case in which a jury convicted defendant of DUI, third conviction within ten years, the appellate court assumed, without deciding, that the evidence of HGN testing was scientific, yet lacked sufficient foundational evidence of reliability, and was unfairly prejudicial compared to its probative value. Any error in its admission, however, was harmless in light of the overwhelming evidence of defendant's guilt. Goldberg v. Commonwealth, No. 0007-19-1, 2019 Va. App. LEXIS 270 (Ct. of Appeals Nov. 19, 2019).

Prior convictions could not be used absent proof of representation or waiver thereof. - Where the Commonwealth failed to prove defendant was represented by counsel in either of the prior misdemeanor DUI convictions, and failed to prove he waived his right to counsel, the two prior uncounseled misdemeanor convictions, although valid convictions since no jail time was imposed, could not be used under an enhanced penalty statute such as this section. The Commonwealth could not rely on these prior uncounseled convictions to enhance the punishment, causing defendant to be imprisoned for his third DUI conviction even though he was represented by counsel on the third offense. Sargent v. Commonwealth, 5 Va. App. 143, 360 S.E.2d 895 (1987).

Record of prior misdemeanor conviction silent on incarceration or representation. - The record of a prior misdemeanor conviction, silent with respect to related incarceration or representation of the accused by counsel, is entitled to a presumption of regularity on collateral attack in a recidivist proceeding and may provide sufficient evidence to support the imposition of enhanced punishment for a second offense DUI within five years. Nicely v. Commonwealth, 25 Va. App. 579, 490 S.E.2d 281 (1997).

Evidence of prior driving under the influence (DUI) convictions does not constitute the "traffic record" as contemplated by § 46.2-943 where the offense charged under § 18.2-266 is a subsequent offense of DUI punishable under this section. Proof of such charge requires proof of the prior DUI convictions, and a trial court, therefore, does not err in admitting evidence of a defendant's prior DUI convictions independent of his prior traffic record during the guilt stage of the trial. Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990).

Since evidence of prior driving under the influence of alcohol (DUI) convictions does not constitute the "traffic record" as contemplated by § 46.2-943 where the offense charged under § 18.2-266 is a subsequent offense of DUI punishable under this section, and since proof of such charge requires proof of prior DUI convictions, the trial court did not err in admitting evidence of defendant's prior DUI convictions independent of his prior traffic record during the guilt stage of the trial. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991).

Collateral estoppel. - In light of the Commonwealth's stipulation that defendant correctly summarized the general district court's rationale for reducing the charge, defendant was entitled to rely on the general district court's ruling that a prior conviction was invalid and required acquittal of driving while under the influence, second offense, for the purposes of collateral estoppel; therefore, the Commonwealth could not use the prior conviction as a predicate offense for the enhanced penalty provisions. Leonard v. Commonwealth, 66 Va. App. 270, 784 S.E.2d 315 (2016), rev'd, 2017 Va. LEXIS 148 (Va. 2017).

In a case of driving under the influence (DUI), third or subsequent offense within a five-year period, the doctrine of collateral estoppel did not apply to preclude the Commonwealth from using defendant's 2010 DUI conviction as a predicate offense under the penalty provisions for DUI because defendant was not seeking to preclude the Commonwealth from relitigating a factual finding made in the 2012 proceeding, but was attempting to bind it to an evidentiary ruling that his 2010 DUI conviction could not be used to support DUI, second offense, as he was not advised of his constitutional rights prior to pleading guilty; and the 2010 DUI conviction remained a valid and existing conviction for sentencing enhancement purposes. Commonwealth v. Leonard, 294 Va. 233 , 805 S.E.2d 245, 2017 Va. LEXIS 148 (2017).

Evidence sufficient to prove defendant "operated" vehicle. - Defendant, who was intoxicated when he grabbed the steering wheel of a vehicle his sister was driving and caused his sister to lose control of the vehicle, was properly convicted of driving under the influence of alcohol (second or subsequent offense), in violation of § 18.2-266 and subsection B of § 18.2-270 , and operating a vehicle as an habitual offender, in violation of § 46.2-357. Dugger v. Commonwealth, 40 Va. App. 586, 580 S.E.2d 477, 2003 Va. App. LEXIS 305 (2003).

Even though defendant was found unconscious in a parked vehicle, the evidence was sufficient to convict him of operating a vehicle while intoxicated because the key was in the vehicle's ignition, it was turned so that the vehicle's electrical system would work, and the vehicle's radio was on. Nelson v. Commonwealth,, 2010 Va. App. LEXIS 42 (2010), aff'd, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

In a prosecution on a charge of driving while intoxicated under § 18.2-266 , the evidence showed that defendant "operated" his vehicle. Defendant was found inside the vehicle, and the key was in the "on" or "accessory" position, although the motor was not running; defendant's action in turning on the radio by placing the key in the "on" position of the ignition constituted manipulating the vehicle's electrical equipment. Nelson v. Commonwealth, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

Search and seizure. - Where an officer arrested defendant for driving under the influence of alcohol, suppression of evidence seized during an inventory search was not warranted, because the officer stopped defendant based upon the officer's observation of defendant's drifting as well as defendant's texting while driving, and the magistrate judge found the officer's specific, articulable observations to be credible. United States v. Wingle,, 2014 U.S. App. LEXIS 6596 (4th Cir. Apr. 10, 2014).

Sentence found to be reasonable. - District court's 15-month sentence imposed upon defendant's guilty plea to driving under the influence (third offense), a violation of 18 U.S.C.S. § 13, assimilating § 18.2-266 and subdivision B 3 of § 18.2-270 , and driving on a suspended driver's license (third offense), a violation of 18 U.S.C.S. §§ 7, 13, assimilating § 46.2-301 , was proper because (1) the sentence was not plainly unreasonable under 18 U.S.C.S. § 3742(e) given the district court's consideration of defendant's three drunk driving convictions in short time frame; (2) the district court also considered the provisions under 18 U.S.C.S. § 3553 in imposing sentence; and (3) allowing the 15-month sentence to run consecutive to the sentence he was serving for violating his probation was not plain error under U.S. Sentencing Guidelines Manual § 5G1.3, cmt., application n. 3(C). United States v. Floresdelgado,, 2005 U.S. App. LEXIS 6121 (4th Cir. Apr. 13, 2005).

Electronic home monitoring not available for mandatory minimum sentence. - Defendant was not entitled to serve a 90-day mandatory minimum sentence on electronic home monitoring, pursuant to § 53.1-131.2 , upon conviction of driving under the influence, third offense, because the mandatory minimum could not have been served on probation or suspended and, thus, electronic home monitoring was not available. McNeil v. Commonwealth, No. 2602-08-1, 2009 Va. App. LEXIS 427 (Sept. 29, 2009).

Denial of bifurcation not error - Where defendant was charged with operating a motor vehicle while intoxicated, the fourth offense in 10 years, the trial court did not abuse its discretion in denying a motion to bifurcate the guilt phase of the trial from the evidence of recidivism because any potential prejudice was resolved by a limiting instruction. Nelson v. Commonwealth,, 2010 Va. App. LEXIS 42 (2010), aff'd, 281 Va. 212 , 707 S.E.2d 815, 2011 Va. LEXIS 27 (2011).

Applied in Nash v. Commonwealth, 12 Va. App. 550, 404 S.E.2d 743 (1991); Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582 (1995); Barrett v. Commonwealth, 250 Va. 243 , 462 S.E.2d 109 (1995); Conkling v. Commonwealth, 45 Va. App. 518, 612 S.E.2d 235 (2005); Roseborough v. Commonwealth, 281 Va. 233 , 704 S.E.2d 414, 2011 Va. LEXIS 13 (2011).

CIRCUIT COURT OPINIONS

Constitutionality. - Presumptions of §§ 18.2-266 and 18.2-269 are permissive inferences because they do not remove the element of alcohol content from the case and do not shift the burden of persuasion to the defendant; thus, they do not violate due process or the right to confrontation. Furthermore, § 18.2-270 , which relies on a violation of § 18.2-266 , is not unconstitutional, as the burden of persuasion is with the Commonwealth at all times. Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

Test results. - Though alka-sensor test results were not excluded from consideration, where a defendant had no evidence showing the reliability of the 0.19 alka-sensor test that rebutted the 0.20 breathalyzer test which was confirmed, the defendant was sentenced accordingly. Commonwealth v. Pettey, 56 Va. Cir. 265, 2001 Va. Cir. LEXIS 456 (Charlottesville 2001).

§ 18.2-270.01. Multiple offenders; payment to Trauma Center Fund.

  1. The court shall order any person convicted of a violation of §§ 18.2-36.1 , 18.2-51.4 , 18.2-266 , 18.2-266 .1 or § 46.2-341.24 who has been convicted previously of one or more violations of any of those sections or any ordinance, any law of another state, or any law of the United States substantially similar to the provisions of those sections within 10 years of the date of the current offense to pay $50 to the Trauma Center Fund for the purpose of defraying the costs of providing emergency medical care to victims of automobile accidents attributable to alcohol or drug use.
  2. There is hereby established in the state treasury a special nonreverting fund to be known as the Trauma Center Fund. The Fund shall consist of any moneys paid into it by virtue of operation of subsection A hereof and any moneys appropriated thereto by the General Assembly and designated for the Fund. Any moneys deposited to or remaining in the Fund during or at the end of each fiscal year or biennium, including interest thereon, shall not revert to the general fund but shall remain in the Fund and be available for allocation in ensuing fiscal years. The Department of Health shall award and administer grants from the Trauma Center Fund to appropriate trauma centers based on the cost to provide emergency medical care to victims of automobile accidents. The Department of Health shall develop, on or before October 1, 2004, written criteria for the awarding of such grants that shall be evaluated and, if necessary, revised on an annual basis.

    (2004, c. 999.)

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Acts 2010, c. 874, as amended by Acts 2011, c. 890, § 3-6.03, is consistent with Article IV, § 12 of the Constitution of Virginia. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 11-049, 2011 Va. AG LEXIS 28 (5/13/11).

§ 18.2-270.1. Ignition interlock systems; penalty.

  1. For purposes of this section and § 18.2-270.2 : "Commission" means the Commission on VASAP. "Department" means the Department of Motor Vehicles. "Ignition interlock system" means a device that (i) connects a motor vehicle ignition system to an analyzer that measures a driver's blood alcohol content; (ii) prevents a motor vehicle ignition from starting if a driver's blood alcohol content exceeds 0.02 percent; and (iii) is equipped with the ability to perform a rolling retest and to electronically log the blood alcohol content during ignition, attempted ignition, and rolling retest. "Remote alcohol monitoring device" means an unsupervised mobile testing device with the ability to confirm the location and presence of alcohol in a person and that is capable of scheduled, random, and on-demand tests that provide immediate, or as-requested, results. A testing device may be worn or used by persons ordered by the court to provide measurements of the presence of alcohol in their blood. "Rolling retest" means a test of the vehicle operator's blood alcohol content required at random intervals during operation of the vehicle, which triggers the sounding of the horn and flashing of lights if (i) the test indicates that the operator has a blood alcohol content which exceeds 0.02 percent or (ii) the operator fails to take the test.
  2. In addition to any penalty provided by law for a conviction under § 18.2-51.4 or clauses (i), (ii), or (iv) of § 18.2-266 or a substantially similar ordinance of any county, city, or town, any court of proper jurisdiction shall, as a condition of a restricted license, prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for any period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements. In addition to any penalty provided by law for a conviction under clauses (iii) or (v) of § 18.2-266 or a substantially similar ordinance of any county, city, or town, any court of proper jurisdiction may, for a first offense, as a condition of a restricted license, prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for any period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of the interlock requirements. The court shall, as a condition of a restricted license for a conviction under § 18.2-51.4 , a second or subsequent offense of § 18.2-266 or a substantially similar ordinance of any county, city, or town, or as a condition of license restoration pursuant to subsection C of § 18.2-271.1 or § 46.2-391 , require that such a system be installed on each motor vehicle, as defined in § 46.2-100 , owned by or registered to the offender, in whole or in part, for any period of time not less than six consecutive months without alcohol-related violations of the interlock requirements. Such condition shall be in addition to any purposes for which a restricted license may be issued pursuant to § 18.2-271.1 . Whenever an ignition interlock system is required, the court may order the installation of an ignition interlock system to commence immediately upon conviction. A fee of $20 to cover court and administrative costs related to the ignition interlock system shall be paid by any such offender to the clerk of the court. The court shall require the offender to install an electronic log device with the ignition interlock system on a vehicle designated by the court to measure the blood alcohol content at each attempted ignition and random rolling retest during operation of the vehicle. The offender shall be enrolled in and supervised by an alcohol safety action program pursuant to § 18.2-271.1 and to conditions established by regulation under § 18.2-270.2 by the Commission during the period for which the court has ordered installation of the ignition interlock system. The offender shall be further required to provide to such program, at least quarterly during the period of court ordered ignition interlock installation, a printout from such electronic log indicating the offender's blood alcohol content during such ignitions, attempted ignitions, and rolling retests, and showing attempts to circumvent or tamper with the equipment. The period of time during which the offender (i) is prohibited from operating a motor vehicle that is not equipped with an ignition interlock system or (ii) is required to have an ignition interlock system installed on each motor vehicle owned by or registered to the offender, in whole or in part, shall be calculated from the date the offender is issued a restricted license by the court; however, such period of time shall be tolled upon the expiration of the restricted license issued by the court until such time as the person is issued a restricted license by the Department.
  3. However, upon motion of an offender, if (i) a conviction was under § 18.2-266 or a substantially similar ordinance of any county, city, or town; (ii) the conviction was for a first offense; (iii) the offender was an adult at the time of the offense; and (iv) the offender's blood alcohol content was less than 0.15, the only restriction of a restricted license that the court shall impose is to prohibit the offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for not less than 12 consecutive months without alcohol-related violations of the interlock requirements.
  4. In any case in which the court requires the installation of an ignition interlock system, the court shall order the offender not to operate any motor vehicle that is not equipped with such a system for the period of time that the interlock restriction is in effect. The clerk of the court shall file with the Department of Motor Vehicles a copy of the order, which shall become a part of the offender's operator's license record maintained by the Department. The Department shall issue to the offender for the period during which the interlock restriction is imposed a restricted license which shall appropriately set forth the restrictions required by the court under this subsection and any other restrictions imposed upon the offender's driving privilege, and shall also set forth any exception granted by the court under subsection I.
  5. The court may, upon motion of an offender who is ineligible to receive a restricted license in accordance with subsection C, order that the offender (i) use a remote alcohol monitoring device for a period of time coextensive with the period of time of the prohibition imposed under subsection B and (ii) refrain from alcohol consumption during such period of time. Additionally, upon such motion and pursuant to § 18.2-271.1 , the court may issue a restricted license to operate a motor vehicle for any purpose to a person who is prohibited from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system when such person is ordered to use a remote alcohol monitoring device pursuant to this subsection and has a functioning, certified ignition interlock system installed on each motor vehicle, as defined in § 46.2-100 , owned by or registered to the offender, in whole or in part. A fee of $20 to cover court and administrative costs related to the remote alcohol monitoring device shall be paid by any such offender to the clerk of the court. The offender shall be enrolled in and supervised by an alcohol safety action program pursuant to § 18.2-271.1 and shall comply with all conditions established by regulation under § 18.2-270.2 by the Commission during the period for which the court has ordered the use of a remote alcohol monitoring device. The offender shall be further required to provide to such program, at least quarterly during the period of time the offender is ordered to use a remote alcohol monitoring device, a copy of the data from such device indicating the offender's blood alcohol content and showing attempts to circumvent or tamper with the device. The period of time during which the offender is required to use a remote alcohol monitoring device shall be calculated from the date the offender is issued a restricted license by the court; however, such period of time shall be tolled upon the expiration of the restricted license issued by the court until such time as the person is issued a restricted license by the Department.
  6. The offender shall be ordered to provide the appropriate ASAP program, within 30 days of the effective date of the order of court, proof of the installation of the ignition interlock system, and, if applicable, proof that the offender is using a remote alcohol monitoring device. The Program shall require the offender to have the system and device monitored and calibrated for proper operation at least every 30 days by an entity approved by the Commission under the provisions of § 18.2-270.2 and to demonstrate proof thereof. The offender shall pay the cost of leasing or buying and monitoring and maintaining the ignition interlock system and the remote alcohol monitoring device. Absent good cause shown, the court may revoke the offender's driving privilege for failing to (i) timely install such system or use such device or (ii) have the system or device properly monitored and calibrated.
  7. No person shall start or attempt to start a motor vehicle equipped with an ignition interlock system for the purpose of providing an operable motor vehicle to a person who is prohibited under this section from operating a motor vehicle that is not equipped with an ignition interlock system. No person shall tamper with, or in any way attempt to circumvent the operation of, an ignition interlock system that has been installed in the motor vehicle of a person under this section. Except as authorized in subsection I, no person shall knowingly furnish a motor vehicle not equipped with a functioning ignition interlock system to any person prohibited under subsection B from operating any motor vehicle that is not equipped with such system. A violation of this subsection is punishable as a Class 1 misdemeanor. The venue for the prosecution of a violation of this subsection shall be where the offense occurred or the jurisdiction in which the order entered pursuant to subsection B was entered.
  8. No person shall tamper with, or in any way attempt to circumvent the operation of, a remote alcohol monitoring device that an offender is ordered to use under this section. A violation of this subsection is punishable as a Class 1 misdemeanor. Any person who violates this subsection shall have his restricted license issued pursuant to subsection E, as it shall become effective on July 1, 2021, revoked. The court may, in its discretion and for good cause shown, provide that such person be issued a restricted permit to operate a motor vehicle in accordance with the terms of a restricted license issued pursuant to subsection E of § 18.2-271.1 .
  9. Any person prohibited from operating a motor vehicle under subsection B may, solely in the course of his employment, operate a motor vehicle that is owned or provided by his employer without installation of an ignition interlock system, if the court expressly permits such operation as a condition of a restricted license at the request of the employer; such person shall not be permitted to operate any other vehicle without a functioning ignition interlock system and, in no event, shall such person be permitted to operate a school bus, school vehicle, or a commercial motor vehicle as defined in § 46.2-341.4 . This subsection shall not apply if such employer is an entity wholly or partially owned or controlled by the person otherwise prohibited from operating a vehicle without an ignition interlock system.
  10. The Commission shall promulgate such regulations and forms as are necessary to implement the procedures outlined in this section.

    (1995, c. 486; 1996, c. 841; 1997, c. 691; 1998, cc. 783, 840; 1999, c. 734; 2000, cc. 958, 980; 2004, c. 961; 2007, c. 686; 2008, c. 862; 2012, cc. 141, 570; 2014, c. 707; 2017, c. 499; 2020, cc. 129, 530, 1007.)

Editor's note. - Acts 2000, cc. 958 and 980, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

Acts 2008, c. 862, cl. 3, provides: "That no general fund appropriations shall be used by any agency or program to cover the costs of leasing, buying, monitoring, maintaining, or installing ignition interlock systems on vehicles owned or operated by persons found by the court to be indigent."

Acts 2020, c. 1007, cl. 2 provides: "That the provisions of subsection E of § 18.2-270.1 of the Code of Virginia, as amended and reenacted by this act, shall become effective on July 1, 2021."

Acts 2020, c. 1007, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1996 amendment deleted "of two to ten minutes" following "required at random intervals" near the beginning of the paragraph defining "Rolling retest" and added the present second sentence in subsection B.

The 1997 amendment inserted " § 18.2-51.4 or" following "subsequent offense under" in the first sentence of subsection B.

The 1998 amendments. - The 1998 amendments by cc. 783 and 840 are identical, in subsection B, in the first sentence, inserted "or, in accordance with § 19.2-299.2 , shall."

The 1999 amendment, in subsection B, deleted "or subsequent" following "of a first," and substituted "for a second or subsequent offense" for "in accordance with § 19.2-299.2 ."

The 2000 amendments. - The 2000 amendments by cc. 958 and 980, effective October 1, 2000, are identical, and in subsection B, deleted "other" and inserted "or as a condition of license restoration under subsection C of § 18.2-271.1 or § 46.2-391 " and language beginning "not less than" and ending "for such period of time" in the first sentence, and substituted "court ordered ignition interlock installation" for "license restriction" in the last sentence; in subsection C, substituted "the" for "a specified" and "that installation is ordered" for "not to exceed the period of license suspension and restriction" in the first sentence, and in the last sentence, inserted "and any other restrictions imposed upon the offender's driving privilege"; in subsection D, substituted "driving privilege" for "restricted license"; and in the next-to-last sentence of subsection F, inserted language beginning "at the request" and ending " § 46.2-341.4 ."

The 2004 amendments. - The 2004 amendment by c. 961, in subsection B, substituted "provided by law for a conviction under § 18.2-51.4 or § 18.2-266 or a substantially similar ordinance of any county, city or town, any court of proper jurisdiction (i) may, for a first offense, (ii) shall, for a second or subsequent offense and (iii) shall, for an offense where an offender's blood alcohol content equals or exceeds 0.15 percent" for "provided by law for conviction of a first offense under § 18.2-51.4 or § 18.2-266 or a substantially similar ordinance of any county, city or town, any court of proper jurisdiction may, or, for a second or subsequent offense shall, as a condition of a restricted license or" in the first sentence and substituted "$20" for "twenty dollars" in the fourth sentence; and substituted "30" for "thirty" in the first and second sentences of subsection D.

The 2007 amendments. - The 2007 amendment by c. 686 substituted "0.02" for "0.025" in the definitions for "Ignition interlock system" and "Rolling retest"; and inserted "consecutive" and "without alcohol-related violations of the interlock requirements" in the first sentence of subsection B.

The 2008 amendments. - The 2008 amendment by c. 862, effective October, 1, 2008, inserted "school bus, school vehicle, or a" preceding "commerical motor vehicle" in the first sentence in subsection F.

The 2012 amendments. - The 2012 amendments by cc. 141 and 570 are identical, and in subsection B, divided the former first sentence into the present first and second sentences by substituting "The court shall, for a conviction under § 18.2-51.4 , a second or subsequent offense of § 18.2-266 or a substantially similar ordinance of any county, city or town, or as a condition of license restoration pursuant to subsection C of § 18.2-271.1 or § 46.2-391 " for "and shall" and substituted "shall, as a condition of a restricted license" for "(i) may, for a first offense, (ii) shall, for a second or subsequent offense and, (iii) shall, for an offense where an offender's blood alcohol content equals or exceeds 0.15 persent, as a condition of a restricted license or as a condition of license restoration under subsection C of § 18.2-271.1 or 46.2-391 " near the beginning of the first sentence; and in subsection C, in the first sentence, substituted "shall order" for "shall direct," "that" for "which," and "the interlock restriction is in effect" for "installation is ordered" and "period during which the interlock restriction is imposed" for "installation period required by the court" in the last sentence.

The 2014 amendments. - The 2014 amendment by c. 707, in subsection E, substituted "F" for "G."

The 2017 amendments. - The 2017 amendment by c. 499 added the last sentence in subsection B; substituted "such person shall not be permitted to operate any other vehicle without a functioning ignition interlock system and, in no event, shall such person be permitted to operate" for "but such person may not operate" in subsection F; and made a minor stylistic change.

The 2020 amendments. - The 2020 amendment by c. 129 added the last sentence in subsection E [now subsection G].

The 2020 amendment by c. 530, in subsection B, substituted " § 18.2-51.4 or clauses (i), (ii), or (iv) of § 18.2-266 " for " § 18.2-51.4 or 18.2-266 " in the first sentence and inserted the second sentence.

The 2020 amendment by c. 1007 inserted the definition for "Remote alcohol monitoring device" in subsection A; in subsection B, in the third sentence, inserted "as a condition of a restricted license" near the beginning and substituted "any period of time not less than six consecutive months without alcohol-related violations of the interlock requirements" for "such period of time" at the end, and added "Whenever an ignition interlock system is required" at the beginning of the fifth sentence; inserted subsection C, subsection E, which is effective July 1, 2021, and subsection H, and redesignated the remaining subsections accordingly; in present subsection F, added "and, if applicable, proof that the offender is using a remote alcohol monitoring device" in the first sentence, inserted "and device" in the second sentence, added "and the remote alcohol monitoring device" in the third sentence, and in the last sentence, inserted "or use such device" in clause (i) and "or device" in clause (ii); updated internal references; and made stylistic changes. For effective date of subsection E, see Editor's note.

Research References. - Virginia Forms (Matthew Bender). No. 9-2813 Restricted License Condition -- Ignition Interlock Order (Spanish).

CASE NOTES

Engaging ignition interlock system constituted operation of motor vehicle. - Defendant violated a condition of probation that required that defendant be free from alcohol while operating a motor vehicle, by committing three ignition interlock violations; "operating" a motor vehicle included engaging the ignition interlock system. Gravely v. Commonwealth, No. 0430-02-3, 2003 Va. App. LEXIS 19 (Jan. 21, 2003).

OPINIONS OF THE ATTORNEY GENERAL

Authority of Commissioner of the Department of Motor Vehicles. - The Commissioner of the Department of Motor Vehicles is both authorized and mandated to impose an ignition interlock system upon an individual seeking reinstatement of a driver's license after the three-year license revocation period resulting from a conviction for driving under the influence, second or subsequent offense, when the convicting court fails to order the installation of such system. See opinion of Attorney General to The Honorable Joseph P. Johnson, Jr., Member, House of Delegates, 10-018, 2010 Va. AG LEXIS 17 (4/20/10).

§ 18.2-270.2. Ignition interlock system and remote alcohol monitoring device; certification by Commission on VASAP; regulations; sale or lease; monitoring use; reports.

  1. The Executive Director of the Commission on VASAP or his designee shall, pursuant to approval by the Commission, certify ignition interlock systems for use in the Commonwealth and adopt regulations and forms for the installation, maintenance and certification of such ignition interlock systems.

    The regulations adopted shall include requirements that ignition interlock systems:

    1. Do not impede the safe operation of the vehicle;
    2. Minimize opportunities to be bypassed, circumvented or tampered with, and provide evidence thereof;
    3. Correlate accurately with established measures of blood alcohol content and be calibrated according to the manufacturer's specifications;
    4. Work accurately and reliably in an unsupervised environment;
    5. Have the capability to provide an accurate written measure of blood alcohol content for each ignition, attempted ignition, and rolling retest, and record each attempt to circumvent or tamper with the equipment;
    6. Minimize inconvenience to other users;
    7. Be manufactured or distributed by an entity responsible for installation, user training, service, and maintenance, and meet the safety and operational requirements promulgated by the National Highway Transportation Safety Administration;
    8. Operate reliably over the range of motor vehicle environments or motor vehicle manufacturing standards;
    9. Be manufactured by an entity which is adequately insured against liability, in an amount established by the Commission, including product liability and installation and maintenance errors;
    10. Provide for an electronic log of the driver's experience with the system with an information management system capable of electronically delivering information to the agency supervising the interlock user within 24 hours of the collection of such information from the datalogger; and
    11. Provide for a rolling retest of the operator's blood alcohol content.
  2. The Executive Director of the Commission on VASAP or his designee shall, pursuant to approval by the Commission, certify remote alcohol monitoring devices for use in the Commonwealth and adopt regulations and forms for the installation, maintenance, and certification of such remote alcohol monitoring devices.
  3. Such regulations shall also provide for the establishment of a fund, using a percentage of fees received by the manufacturer or distributor providing ignition interlock services or remote alcohol monitoring devices, to afford persons found by the court to be indigent all or part of the costs of an ignition interlock system or remote alcohol monitoring device.
  4. The Commission shall design and adopt a warning label to be affixed to an ignition interlock system or remote alcohol monitoring device upon installation. The warning label shall state that a person tampering with or attempting to circumvent the ignition interlock system or remote alcohol monitoring device is guilty of a Class 1 misdemeanor and, upon conviction, shall be subject to a fine or incarceration or both.
  5. The Commission shall publish a list of certified ignition interlock systems and remote alcohol monitoring devices and shall ensure that such systems and devices are available throughout the Commonwealth. The local alcohol safety action program shall make the list available to eligible offenders, who shall have the responsibility and authority to choose which certified ignition interlock company and certified remote alcohol monitoring company will supply the offender's equipment. A manufacturer or distributor of an ignition interlock system or a remote alcohol monitoring device that seeks to sell or lease the ignition interlock system or remote alcohol monitoring device to persons subject to the provisions of § 18.2-270.1 shall pay the reasonable costs of obtaining the required certification, as set forth by the Commission.
  6. A person may not sell or lease or offer to sell or lease an ignition interlock system or a remote alcohol monitoring device to any person subject to the provisions of § 18.2-270.1 unless:
    1. The system or device has been certified by the Commission; and
    2. The warning label adopted by the Commission is affixed to the system.
  7. A manufacturer or distributor of an ignition interlock system or remote alcohol monitoring device shall provide such services as may be required at no cost to the Commonwealth. Such services shall include a toll free, 24-hour telephone number for the users of ignition interlock systems or remote alcohol monitoring devices.

    (1995, c. 486; 2000, cc. 341, 362; 2020, c. 1007.)

Editor's note. - Acts 2020, c. 1007, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendments by cc. 341 and 362 are identical, and inserted the present second sentence in the last paragraph of subsection A.

The 2020 amendments. - The 2020 amendment by c. 1007 inserted subsection B, designated the last three paragraphs of subsection A as subsections C through E, and redesignated former subsections B and C as subsections F and G; inserted "or remote alcohol monitoring devices" and similar language throughout subsections C through G; inserted "and certified remote alcohol monitoring company" in the second sentence of subsection E; and made stylistic changes.

Research References. - Virginia Forms (Matthew Bender). No. 9-2813 Restricted License Condition -- Ignition Interlock Order (Spanish).

OPINIONS OF THE ATTORNEY GENERAL

Regulations to govern the certification of ignition interlock systems must be adopted by the Commission on the Virginia Alcohol Safety Action Program. Any regulatory scheme must allow for multiple vendors of ignition interlock systems if in fact their systems meet such certification requirements. See opinion of Attorney General to The Honorable H. Morgan Griffith, Member, House of Delegates, 08-026 (5/5/08).

Authority of Commissioner of the Department of Motor Vehicles. - The Commissioner of the Department of Motor Vehicles is both authorized and mandated to impose an ignition interlock system upon an individual seeking reinstatement of a driver's license after the three-year license revocation period resulting from a conviction for driving under the influence, second or subsequent offense, when the convicting court fails to order the installation of such system. See opinion of Attorney General to The Honorable Joseph P. Johnson, Jr., Member, House of Delegates, 10-018, 2010 Va. AG LEXIS 17 (4/20/10).

§ 18.2-271. Forfeiture of driver's license for driving while intoxicated.

  1. Except as provided in § 18.2-271.1 , the judgment of conviction if for a first offense under § 18.2-266 or for a similar offense under any county, city, or town ordinance, or for a first offense under subsection A of § 46.2-341.24 , shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth for a period of one year from the date of such judgment. This suspension period shall be in addition to the suspension period provided under § 46.2-391.2 .
  2. If a person (i) is tried on a process alleging a second offense of violating § 18.2-266 or subsection A of § 46.2-341.24 , or any substantially similar local ordinance, or law of any other jurisdiction, within ten years of a first offense for which the person was convicted, or found guilty in the case of a juvenile, under § 18.2-266 or subsection A of § 46.2-341.24 or any valid local ordinance or any law of any other jurisdiction substantially similar to § 18.2-266 or subsection A of § 46.2-341.24 and (ii) is convicted thereof, such conviction shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth for a period of three years from the date of the judgment of conviction and such person shall have his license revoked as provided in subsection A of § 46.2-391 . The court trying such case shall order the surrender of the person's driver's license, to be disposed of in accordance with § 46.2-398 , and shall notify such person that his license has been revoked for a period of three years and that the penalty for violating that revocation is as set out in § 46.2-391 . This suspension period shall be in addition to the suspension period provided under § 46.2-391.2 . Any period of license suspension or revocation imposed pursuant to this section, in any case, shall run consecutively with any period of suspension for failure to permit a blood or breath sample to be taken as required by §§ 18.2-268.1 through 18.2-268.12 or §§ 46.2-341.26:1 through 46.2-341.26:11 or any period of suspension for a previous violation of § 18.2-266 , 18.2-266.1 , or 46.2-341.24 .
  3. If a person (i) is tried on a process alleging (a) a felony conviction of § 18.2-266 or (b) a third or subsequent offense of violating § 18.2-266 or subsection A of § 46.2-341.24 , or any substantially similar local ordinance, or law of any other jurisdiction, within 10 years of two other offenses for which the person was convicted, or found not innocent in the case of a juvenile, under § 18.2-266 or subsection A of § 46.2-341.24 or any valid local ordinance or any law of any other jurisdiction substantially similar to § 18.2-266 or subsection A of § 46.2-341.24 and (ii) is convicted thereof, such conviction shall of itself operate to deprive the person so convicted of the privilege to drive or operate any motor vehicle, engine or train in the Commonwealth and such person shall not be eligible for participation in a program pursuant to § 18.2-271.1 and shall, upon such conviction, have his license revoked as provided in subsection B of § 46.2-391 . The court trying such case shall order the surrender of the person's driver's license, to be disposed of in accordance with § 46.2-398 , and shall notify such person that his license has been revoked indefinitely and that the penalty for violating that revocation is as set out in § 46.2-391 .
  4. Notwithstanding any other provision of this section, the period of license revocation or suspension shall not begin to expire until the person convicted has surrendered his license to the court or to the Department of Motor Vehicles.
  5. The provisions of this section shall not apply to, and shall have no effect upon, any disqualification from operating a commercial motor vehicle imposed under the provisions of the Commercial Driver's License Act (§ 46.2-341.1 et seq.). (Code 1950, § 18.1-59; 1960, c. 358; 1962, c. 625; 1964, c. 240; 1972, c. 757; 1975, cc. 14, 15; 1982, c. 301; 1983, c. 504; 1984, cc. 623, 673; 1989, c. 705; 1990, c. 949; 1992, cc. 722, 830, 891; 1994, cc. 359, 363; 2000, cc. 956, 982; 2001, c. 739; 2002, c. 873; 2010, c. 521; 2013, cc. 415, 655.)

Cross references. - For authority of court to suspend the driver's license of an individual upon the conviction of a traffic offense that causes the death of a person under certain circumstances, and where appropriate to issue a restricted license for the purposes set forth in § 18.2-271.1 E, see § 46.2-396.1 .

Editor's note. - Acts 2002, c. 811, cl. 2, provides: "That a court shall not transmit to the Department of Motor Vehicles (i) an order of conviction or abstract of conviction for a second violation of § 18.2-266 or a substantially similar local ordinance, as described in subsection B of § 18.2-271 , unless the defendant was tried and convicted on a process alleging such a second offense, nor (ii) an order of conviction or abstract of conviction for a third or subsequent violation of § 18.2-266 or substantially similar local ordinance, as described in subsection C of § 18.2-271 , unless the defendant was tried and convicted on a process alleging such a third or subsequent offense. However, when such conviction is upon a process other than as described in subsection B or C of § 18.2-271, the court shall transmit such order or abstract as an initial violation. Upon receipt of a conviction of a second offense transmitted pursuant to subsection B of § 18.2-271, the Commissioner of Motor Vehicles shall revoke the driver's license of an individual in accordance with subsection A of § 46.2-391 . Upon receipt of a conviction of a third or subsequent offense transmitted pursuant to subsection C of § 18.2-271, the Commissioner shall revoke the driver's license of an individual in accordance with subsection B of § 46.2-391 .

"The Commissioner shall not revoke the driver's license of an individual under subsections A or B of § 46.2-391 if the court fails to comply with the requirements set forth in the above paragraph."

The 2000 amendments. - The 2000 amendments by cc. 956 and 982 are identical, and rewrote subsections B and C.

The 2001 amendments. - The 2001 amendment by c. 739, in subsection B, substituted "If a person (i) is tried on a process alleging a second offense" for "Any adult convicted, or any juvenile found guilty," deleted "two or more times in any combination within ten years shall, upon the second conviction, have his driver's license revoked as provided in subsection A of § 46.2-391 " following "any other jurisdiction," and inserted the language beginning "of a first offense for" and ending "as set out in § 46.2-391 "; in subsection C, substituted "If a person (i) is tried on a process alleging a third or subsequent offense" for "Any adult convicted, or any juvenile found guilty," deleted "three or more times in any combination" following "any other jurisdiction," inserted the language beginning "of two other offenses" and ending "and such person," substituted "upon such" for "upon the third," and inserted "and that the penalty for violating that revocation is as set out in § 46.2-391."

The 2002 amendments. - The 2002 amendment by c. 873 inserted "within ten years" in clause (i) of subsection B; and substituted "innocent" for "guilty" in clause (i) of subsection C.

The 2010 amendments. - The 2010 amendment by c. 521 inserted "or any period of suspension for a previous violation of § 18.2-266 , 18.2-266 .1, or 46.2-341.24 " at the end of subsection B.

The 2013 amendments. - The 2013 amendments by cc. 415 and 655 are identical, and inserted "(a) a felony conviction of § 18.2-266 or (b)" near the beginning of subsection C, and made a minor stylistic change.

Law review. - For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For comment on 1982 amendments to Virginia's driving while intoxicated laws, see 17 U. Rich. L. Rev. 189 (1982).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118; 5B M.J. Criminal Procedure, § 75.

CASE NOTES

Purpose. - The purpose of this section is to deprive the convicted person of the right to secure a permit to operate a vehicle for a specified time after he has been convicted once or more than once. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

The purpose of §§ 18.2-266 and 18.2-270 through 18.2-273 is not only to punish drunken drivers, but to prevent such drivers from using the highways to the hazard of other citizens. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

Provisions self-executing. - The provisions of this section become effective only after judgments of conviction, and then are self-executing. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

Procedure after ordering suspension of license. - While a court suspends a driver's license under the provisions of § 18.2-271 , the court must follow the procedure mandated in § 46.2-398 after ordering the suspension of the license. Corbin v. Commonwealth, 44 Va. App. 196, 604 S.E.2d 111, 2004 Va. App. LEXIS 516 (2004).

The loss of the right to operate a vehicle is no part of the judgment of conviction, or the punishment fixed by the court or jury, and no action or order of the court or other officer is required to put it into effect. It is not dependent upon evidence necessary to convict. Evidence of conviction alone is essential. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

Prohibition on driving as a condition of probation. - There was no statutory conflict between defendant's status as a licensed driver and a condition of probation that prohibited him from actually driving. The condition of probation did not affect defendant's license to drive but rather only required him to refrain from doing so while on probation as a measure of protection to the public that otherwise could only be achieved through defendant's incarceration. Garibaldi v. Commonwealth, 71 Va. App. 64, 833 S.E.2d 915, 2019 Va. App. LEXIS 243 (2019).

Arrest beyond suspension period. - Defendant was improperly convicted under § 18.2-272 because the period of suspension authorized by § 18.2-271 was for one year from the date of defendant's conviction for driving while intoxicated and defendant's arrest years later was well beyond the expiration of the suspension period imposed by § 18.2-271 . Croft v. Commonwealth,, 2015 Va. App. LEXIS 205 (June 30, 2015).

No equal protection violation. - Prohibition against granting defendant, who was found guilty of driving while his blood alcohol concentration was in excess of .10, a restricted driving permit to operate a commercial motor vehicle, as defined in the Virginia Commercial Driver's License Act, during his employment hours did not deny him equal protection of the laws although other persons may be permitted to drive noncommercial motor vehicles during the hours of such person's employment if the operation of a motor vehicle is a necessary incident of such employment, even if defendant was similarly situated to a person who drives as a part of his or her employment but does not hold a commercial driver's license. Lockett v. Commonwealth, 17 Va. App. 488, 438 S.E.2d 497 (1993).

"Subsequent offense" need not have been tried as a "second offense." - This section makes a conviction under § 18.2-266 following a conviction for the former violation of a similar act a "subsequent offense," whether or not it was tried as a "second offense." Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

Error in imposing penalty for second offense DUI when conviction was first offense DUI. - Trial court erred when it imposed the penalty for second offense driving under the influence of alcohol (DUI) when, although he was charged with second offense, his conviction was for first offense DUI. Snead v. County of Chesterfield, No. 0865-90-2 (Ct. of Appeals June 4, 1991).

Correction of sentence after grant of appeal. - Where an appeal from conviction for driving under the influence was granted in part to consider the legality of the court's sentence, it was proper for the circuit court subsequent to granting of an appeal, to correct the sentence to conform with this section by entering an order nunc pro tunc changing the license revocation period from 12 to six months. Wheeling v. City of Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986).

Sufficient evidence for conviction. - Defendant's conviction for driving on a revoked operator's license was upheld where: (1) there was no evidence that the general district court did not forward notice of the conviction to the Department of Motor Vehicles (DMV) or that the DMV did not revoke defendant's driver's license; (2) defendant pled guilty to two prior convictions under § 18.2-266 and signed a DC-210 form that gave him notice that he was unable to operate a motor vehicle for three years and listed the possible penalties for driving after the conviction; and (3) it was undisputed that defendant knew he was forbidden to drive. Smith v. Commonwealth, 44 Va. App. 189, 604 S.E.2d 108, 2004 Va. App. LEXIS 509 (2004).

Applied in Wheeling v. City of Roanoke, 2 Va. App. 42, 341 S.E.2d 389 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Calculation of 20-year period for revocation of driver's license upon second conviction. - The 10-year period specified in subsection B for revocation of a driver's license upon a second conviction of driving under the influence of alcohol or drugs is calculated from the first to the second conviction, in the case of an adult, or between two findings of guilt, in the case of a juvenile. See opinion of Attorney General to The Honorable Harry J. Parrish, Member, House of Delegates, 00-102 (1/16/01).

§ 18.2-271.1. Probation, education, and rehabilitation of person charged or convicted; person convicted under law of another state or federal law.

  1. Any person convicted of a first or second offense of § 18.2-266 , or any ordinance of a county, city, or town similar to the provisions thereof, or provisions of subsection A of § 46.2-341.24 , shall be required by court order, as a condition of probation or otherwise, to enter into and successfully complete an alcohol safety action program in the judicial district in which such charge is brought or in any other judicial district upon such terms and conditions as the court may set forth. However, upon motion of a person convicted of any such offense following an assessment of the person conducted by an alcohol safety action program, the court, for good cause, may decline to order participation in such a program if the assessment by the alcohol safety action program indicates that intervention is not appropriate for such person. In no event shall such persons be permitted to enter any such program which is not certified as meeting minimum standards and criteria established by the Commission on the Virginia Alcohol Safety Action Program (VASAP) pursuant to this section and to § 18.2-271.2 . However, any person charged with a violation of a first or second offense of § 18.2-266 , or any ordinance of a county, city, or town similar to the provisions thereof, or provisions of subsection A of § 46.2-341.24 , may, at any time prior to trial, enter into an alcohol safety action program in the judicial district in which such charge is brought or in any other judicial district. Any person who enters into such program prior to trial may pre-qualify with the program to have an ignition interlock system installed on any motor vehicle owned or operated by him. However, no ignition interlock company shall install an ignition interlock system on any such vehicle until a court issues to the person a restricted license with the ignition interlock restriction.
  2. The court shall require the person entering such program under the provisions of this section to pay a fee of no less than $250 but no more than $300. A reasonable portion of such fee, as may be determined by the Commission on VASAP, but not to exceed 10 percent, shall be forwarded monthly to be deposited with the State Treasurer for expenditure by the Commission on VASAP, and the balance shall be held in a separate fund for local administration of driver alcohol rehabilitation programs. Upon a positive finding that the defendant is indigent, the court may reduce or waive the fee. In addition to the costs of the proceeding, fees as may reasonably be required of defendants referred for intervention under any such program may be charged.
  3. Upon conviction of a violation of § 18.2-266 or any ordinance of a county, city or town similar to the provisions thereof, or subsection A of § 46.2-341.24 , the court shall impose the sentence authorized by § 18.2-270 or 46.2-341.28 and the license revocation as authorized by § 18.2-271 . In addition, if the conviction was for a second offense committed within less than 10 years after a first such offense, the court shall order that restoration of the person's license to drive be conditioned upon the installation of an ignition interlock system on each motor vehicle, as defined in § 46.2-100 , owned by or registered to the person, in whole or in part, for a period of six months beginning at the end of the three year license revocation, unless such a system has already been installed for six months prior to that time pursuant to a restricted license order under subsection E. Upon a finding that a person so convicted is required to participate in the program described herein, the court shall enter the conviction on the warrant, and shall note that the person so convicted has been referred to such program. The court may then proceed to issue an order in accordance with subsection E, if the court finds that the person so convicted is eligible for a restricted license. If the court finds good cause for a person not to participate in such program or subsequently that such person has violated, without good cause, any of the conditions set forth by the court in entering the program, the court shall dispose of the case as if no program had been entered, in which event the revocation provisions of § 46.2-389 and subsection A of § 46.2-391 shall be applicable to the conviction. The court shall, upon final disposition of the case, send a copy of its order to the Commissioner of the Department of Motor Vehicles. If such order provides for the issuance of a restricted license, the Commissioner of the Department of Motor Vehicles, upon receipt thereof, shall issue a restricted license. The period of time during which the person (i) is prohibited from operating a motor vehicle that is not equipped with an ignition interlock system, (ii) is required to have an ignition interlock system installed on each motor vehicle owned by or registered to the person, in whole or in part, or (iii) is required to use a remote alcohol monitoring device shall be calculated from the date the person is issued a restricted license by the court; however, such period of time shall be tolled upon the expiration of the restricted license issued by the court until such time as the person is issued a restricted license by the Department of Motor Vehicles. Appeals from any such disposition shall be allowed as provided by law. The time within which an appeal may be taken shall be calculated from the date of the final disposition of the case or any motion for rehearing, whichever is later.
  4. Any person who has been convicted under the law of another state or the United States of an offense substantially similar to the provisions of § 18.2-266 or subsection A of § 46.2-341.24 , and whose privilege to operate a motor vehicle in this Commonwealth is subject to revocation under the provisions of § 46.2-389 and subsection A of § 46.2-391 , may petition the general district court of the county or city in which he resides that he be given probation and assigned to a program as provided in subsection A and that, upon entry into such program, he be issued an order in accordance with subsection E. If the court finds that such person would have qualified therefor if he had been convicted in this Commonwealth of a violation of § 18.2-266 or subsection A of § 46.2-341.24 , the court may grant the petition and may issue an order in accordance with subsection E as to the period of license suspension or revocation imposed pursuant to § 46.2-389 or subsection A of § 46.2-391 . The court (i) shall, as a condition of a restricted license, prohibit such person from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for a period of time not to exceed the period of license suspension and restriction, not less than six consecutive months without alcohol-related violations of interlock requirements, and (ii) may, upon request of such person and as a condition of a restricted license, require such person to use a remote alcohol monitoring device in accordance with the provisions of subsection E of § 18.2-270.1 . Such order shall be conditioned upon the successful completion of a program by the petitioner. If the court subsequently finds that such person has violated any of the conditions set forth by the court, the court shall dispose of the case as if no program had been entered and shall notify the Commissioner, who shall revoke the person's license in accordance with the provisions of § 46.2-389 or subsection A of § 46.2-391. A copy of the order granting the petition or subsequently revoking or suspending such person's license to operate a motor vehicle shall be forthwith sent to the Commissioner of the Department of Motor Vehicles. The period of time during which the person (a) is prohibited from operating a motor vehicle that is not equipped with an ignition interlock system or (b) is required to use a remote alcohol monitoring device shall be calculated from the date the person is issued a restricted license by the court; however, such period of time shall be tolled upon the expiration of the restricted license issued by the court until such time as the person is issued a restricted license by the Department of Motor Vehicles. No period of license suspension or revocation shall be imposed pursuant to this subsection which, when considered together with any period of license suspension or revocation previously imposed for the same offense under the law of another state or the United States, results in such person's license being suspended for a period in excess of the maximum periods specified in this subsection.
  5. Except as otherwise provided herein, if a person enters a certified program pursuant to this section, and such person's license to operate a motor vehicle, engine, or train in the Commonwealth has been suspended or revoked, or a person's license to operate a motor vehicle, engine, or train in the Commonwealth has been suspended or revoked pursuant to former § 18.2-259.1 or 46.2-390.1 , the court may, in its discretion and for good cause shown, provide that such person be issued a restricted permit to operate a motor vehicle for any of the following purposes: (i) travel to and from his place of employment; (ii) travel to and from an alcohol rehabilitation or safety action program; (iii) travel during the hours of such person's employment if the operation of a motor vehicle is a necessary incident of such employment; (iv) travel to and from school if such person is a student, upon proper written verification to the court that such person is enrolled in a continuing program of education; (v) travel for health care services, including medically necessary transportation of an elderly parent or, as designated by the court, any person residing in the person's household with a serious medical problem upon written verification of need by a licensed health professional; (vi) travel necessary to transport a minor child under the care of such person to and from school, day care, and facilities housing medical service providers; (vii) travel to and from court-ordered visitation with a child of such person; (viii) travel to a screening, evaluation, and education program entered pursuant to § 18.2-251 or subsection H of § 18.2-258.1 ; (ix) travel to and from court appearances in which he is a subpoenaed witness or a party and appointments with his probation officer and to and from any programs required by the court or as a condition of probation; (x) travel to and from a place of religious worship one day per week at a specified time and place; (xi) travel to and from appointments approved by the Division of Child Support Enforcement of the Department of Social Services as a requirement of participation in an administrative or court-ordered intensive case monitoring program for child support for which the participant maintains written proof of the appointment, including written proof of the date and time of the appointment, on his person; (xii) travel to and from jail to serve a sentence when such person has been convicted and sentenced to confinement in jail and pursuant to § 53.1-131.1 the time to be served is on weekends or nonconsecutive days; (xiii) travel to and from the facility that installed or monitors the ignition interlock in the person's vehicle; (xiv) travel to and from a job interview for which he maintains on his person written proof from the prospective employer of the date, time, and location of the job interview; or (xv) travel to and from the offices of the Virginia Employment Commission for the purpose of seeking employment. However, (a) any such person who is eligible to receive a restricted license as provided in subsection C of § 18.2-270.1 or (b) any such person ordered to use a remote alcohol monitoring device pursuant to subsection E of § 18.2-270.1 who has a functioning, certified ignition interlock system as required by law may be issued a restricted permit to operate a motor vehicle for any lawful purpose. No restricted license issued pursuant to this subsection shall permit any person to operate a commercial motor vehicle as defined in the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.). The court shall order the surrender of such person's license to operate a motor vehicle to be disposed of in accordance with the provisions of § 46.2-398 and shall forward to the Commissioner of the Department of Motor Vehicles a copy of its order entered pursuant to this subsection, which shall specifically enumerate the restrictions imposed and contain such information regarding the person to whom such a permit is issued as is reasonably necessary to identify such person. The court shall also provide a copy of its order to the person so convicted who may operate a motor vehicle on the order until receipt from the Commissioner of the Department of Motor Vehicles of a restricted license, if the order provides for a restricted license for that time period. A copy of such order and, after receipt thereof, the restricted license shall be carried at all times while operating a motor vehicle. Any person who operates a motor vehicle in violation of any restrictions imposed pursuant to this section is guilty of a violation of § 18.2-272 . Such restricted license shall be conditioned upon enrollment within 15 days in, and successful completion of, a program as described in subsection A. No restricted license shall be issued during the first four months of a revocation imposed pursuant to subsection B of § 18.2-271 or subsection A of § 46.2-391 for a second offense of the type described therein committed within 10 years of a first such offense. No restricted license shall be issued during the first year of a revocation imposed pursuant to subsection B of § 18.2-271 or subsection A of § 46.2-391 for a second offense of the type described therein committed within five years of a first such offense. No restricted license shall be issued during any revocation period imposed pursuant to subsection C of § 18.2-271 or subsection B of § 46.2-391 . Notwithstanding the provisions of § 46.2-411 , the fee charged pursuant to § 46.2-411 for reinstatement of the driver's license of any person whose privilege or license has been suspended or revoked as a result of a violation of § 18.2-266 , subsection A of § 46.2-341.24 or of any ordinance of a county, city, or town, or of any federal law or the laws of any other state similar to the provisions of § 18.2-266 or subsection A of § 46.2-341.24 shall be $105. Forty dollars of such reinstatement fee shall be retained by the Department of Motor Vehicles as provided in § 46.2-411 , $40 shall be transferred to the Commission on VASAP, and $25 shall be transferred to the Commonwealth Neurotrauma Initiative Trust Fund. Any person who is otherwise eligible to receive a restricted license issued in accordance with this subsection or as otherwise provided by law shall not be required to pay in full his fines and costs, as defined in § 19.2-354.1 , before being issued such restricted license.
  6. The court shall have jurisdiction over any person entering such program under any provision of this section until such time as the case has been disposed of by either successful completion of the program, or revocation due to ineligibility or violation of a condition or conditions imposed by the court, whichever shall first occur. Revocation proceedings shall be commenced by notice to show cause why the court should not revoke the privilege afforded by this section. Such notice shall be made by first-class mail to the last known address of such person, and shall direct such person to appear before the court in response thereto on a date contained in such notice, which shall not be less than 10 days from the date of mailing of the notice. Failure to appear in response to such notice shall of itself be grounds for revocation of such privilege. Notice of revocation under this subsection shall be sent forthwith to the Commissioner of the Department of Motor Vehicles.
  7. For the purposes of this section, any court which has convicted a person of a violation of § 18.2-266 , subsection A of § 46.2-341.24 or any ordinance of a county, city or town similar to the provisions of § 18.2-266 shall have continuing jurisdiction over such person during any period of license revocation related to that conviction, for the limited purposes of (i) referring such person to a certified alcohol safety action program, (ii) providing for a restricted permit for such person in accordance with the provisions of subsection E, and (iii) imposing terms, conditions and limitations for actions taken pursuant to clauses (i) and (ii), whether or not it took either such action at the time of the conviction. This continuing jurisdiction is subject to the limitations of subsection E that provide that no restricted license shall be issued during a revocation imposed pursuant to subsection C of § 18.2-271 or subsection B of § 46.2-391 or during the first four months or first year, whichever is applicable, of the revocation imposed pursuant to subsection B of § 18.2-271 or subsection A of § 46.2-391 . The provisions of this subsection shall apply to a person convicted of a violation of § 18.2-266, subsection A of § 46.2-341.24 or any ordinance of a county, city or town similar to the provisions of § 18.2-266 on, after and at any time prior to July 1, 2003.
  8. The State Treasurer, the Commission on VASAP or any city or county is authorized to accept any gifts or bequests of money or property, and any grant, loan, service, payment or property from any source, including the federal government, for the purpose of driver alcohol education. Any such gifts, bequests, grants, loans or payments shall be deposited in the separate fund provided in subsection B.
  9. The Commission on VASAP, or any county, city, town, or any combination thereof may establish and, if established, shall operate, in accordance with the standards and criteria required by this subsection, alcohol safety action programs in connection with highway safety. Each such program shall operate under the direction of a local independent policy board chosen in accordance with procedures approved and promulgated by the Commission on VASAP. Local sitting or retired district court judges who regularly hear or heard cases involving driving under the influence and are familiar with their local alcohol safety action programs may serve on such boards. The Commission on VASAP shall establish minimum standards and criteria for the implementation and operation of such programs and shall establish procedures to certify all such programs to ensure that they meet the minimum standards and criteria stipulated by the Commission. The Commission shall also establish criteria for the administration of such programs for public information activities, for accounting procedures, for the auditing requirements of such programs and for the allocation of funds. Funds paid to the Commonwealth hereunder shall be utilized in the discretion of the Commission on VASAP to offset the costs of state programs and local programs run in conjunction with any county, city or town and costs incurred by the Commission. The Commission shall submit an annual report as to actions taken at the close of each calendar year to the Governor and the General Assembly.
  10. Notwithstanding any other provisions of this section or of § 18.2-271 , nothing in this section shall permit the court to suspend, reduce, limit, or otherwise modify any disqualification from operating a commercial motor vehicle imposed under the provisions of the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.). (1975, c. 601; 1976, cc. 612, 691; 1977, c. 240; 1978, c. 352; 1979, c. 353; 1980, c. 589; 1981, c. 195; 1982, c. 301; 1983, c. 504; 1984, c. 778; 1986, cc. 552, 590; 1987, cc. 465, 663; 1988, cc. 781, 858, 859, 888; 1989, c. 705; 1990, c. 949; 1991, cc. 131, 491; 1992, c. 559; 1993, cc. 527, 919; 1994, cc. 359, 363, 870; 1996, c. 984; 1997, cc. 472, 508; 1998, c. 703; 1999, c. 743; 2000, cc. 958, 970, 980; 2001, cc. 182, 645, 779; 2002, c. 806; 2003, c. 290; 2004, c. 720; 2007, cc. 194, 553; 2009, c. 295; 2010, cc. 446, 682; 2011, c. 592; 2012, cc. 141, 570; 2014, c. 707; 2015, cc. 506, 729; 2017, cc. 499, 701; 2020, c. 1007; 2021, Sp. Sess. I, cc. 336, 376.)

Cross references. - As to issuance of restricted licenses in cases where court has suspended a minor's driver's license for unexcused absences from school, see § 46.2-334.001 .

Editor's note. - Acts 2000, cc. 958 and 980, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010.

Acts 2020, c. 1007, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1289, Item 436 S, as added by Acts 2020, Sp. Sess. I, c. 56, and as amended by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of subsection E. of § 18.2-271.1 of the Code of Virginia, if a person's license to operate a motor vehicle, engine, or train in the Commonwealth has been suspended or revoked pursuant to former § 18.2-259.1 or 46.2-390.1 , a court may, in its discretion and for good cause shown, issue a restricted permit to operate a motor vehicle for any purpose set forth in subsection E. of § 18.2-271.1 . No restricted license issued pursuant to this paragraph shall permit any person to operate a commercial motor vehicle as defined in the Virginia Commercial Driver's License Act ( § 46.2-341.1 et seq.). The court shall forward to the Commissioner of the Department of Motor Vehicles a copy of its order entered pursuant to this paragraph, which shall specifically enumerate the restrictions imposed and contain such information regarding the person to whom such a permit is issued as is reasonably necessary to identify such person. The court shall also provide a copy of its order to the person so convicted who may operate a motor vehicle on the order until receipt from the Commissioner of the Department of Motor Vehicles of a restricted license, if the order provides for a restricted license for that time period. A copy of such order and, after receipt thereof, the restricted license shall be carried at all times by such person while operating a motor vehicle. Any person who operates a motor vehicle in violation of any restrictions imposed pursuant to this paragraph is guilty of a violation of § 46.2-301 ."

The 1996 amendment rewrote subsection A which formerly read: "Any person convicted of a violation of § 18.2-266 (i), (ii), (iii) or (iv), or any ordinance of a county, city, or town similar to the provisions thereof, or provisions of subsection A of § 46.2-341.24 , or any second offense thereunder, may, with leave of court or upon court order, enter into an alcohol safety action program in the judicial district in which such charge is brought or in any other judicial district upon such terms and conditions as the court may set forth. In no event shall such persons be permitted to enter any such program which is not certified as meeting minimum standards and criteria established by the Commission on the Virginia Alcohol Safety Action Program (VASAP) pursuant to subsection H of this section and to § 18.2-271.2 . In the determination of the eligibility of such person to enter such a program, the court shall consider his prior record of participation in any other alcohol rehabilitation program. If such person has never entered into an alcohol safety action program, in keeping with the procedures provided for in this section, and upon motion of the accused or his counsel, the court shall give mature consideration to the needs of such person in determining whether he shall be allowed to enter such program."

The 1997 amendments. - The 1997 amendments by cc. 472 and 508 are identical, and added the second sentence in subsection A.

The 1998 amendment, in subsection E, in the next-to-last sentence, substituted "$105" for "seventy-five dollars," and in the last sentence, substituted "forty" for "and thirty-five" and added the language beginning "and twenty-five dollars."

The 1999 amendment, in subsection A, in the first sentence, inserted "or second," deleted "or upon conviction of a second offense thereunder, may" preceding "be required by," substituted "any such" for "a first" in the second sentence, and deleted the former last two sentences which read: "In the determination of the eligibility of such person convicted of a second offense to enter such a program, the court shall consider his prior record of participation in any other alcohol rehabilitation program. If such person has never entered into an alcohol safety action program, in keeping with the procedures provided for in this section, and upon motion of the accused or his counsel, the court shall give mature consideration to the needs of such person in determining whether he shall be allowed to enter such program"; in subsection C, substituted " § 18.2-271 " for " §§ 18.2-270 and 18.2-271 " in the first sentence, substituted "required to participate" for "eligible for participation" in the second sentence, and substituted "good cause for a person not to participate in" for "that a person is not eligible for" in the fourth sentence; and deleted "or" preceding "(v)," and inserted "or (vi) travel necessary to transport a minor child under the care of such person to and from school, day care, and facilities housing medical service providers" in subsection E.

The 2000 amendments. - The 2000 amendment by c. 970 added the last sentence of subsection A.

The 2000 amendments by cc. 958 and 980, effective October 1, 2000, are identical, and inserted the language beginning "if the assessment by" and ending "for such person" in the next-to-last sentence of subsection A, added the second sentence of subsection C, and inserted the ninth sentence of subsection E, beginning "No restricted license shall be issued during the first year."

The 2000 amendment by c. 970 added the last sentence of subsection A.

The 2001 amendments. - The 2001 amendment by c. 182 substituted "intervention" for "treatment" in subsection A, in the second sentence.

The 2001 amendment by c. 645, in subsection E, in the first sentence, deleted "or all" preceding "of the following purposes," substituted "or safety action program" for "program entered pursuant to this subsection" at the end of clause (ii), in clause (v), substituted "travel for health care services, including medically necessary transportation of an elderly parent with a serious medical problem" for "such other medically necessary travel as the court deems necessary and proper," and deleted "or" at the end thereof, and added clauses (vii) and (viii).

The 2001 amendment by c. 779 made the same changes as c. 645, except c. 779 did not add present clause (vii).

The 2002 amendments. - The 2002 amendment by c. 806 inserted present subsection G and redesignated former subsections G through I as present subsections H through J.

The 2003 amendments. - The 2003 amendment by c. 290 substituted "10" for "ten" in subsection B; substituted "10" for "ten," "$40" for "forty dollars," and "$25" for "twenty-five dollars" in subsection E; substituted "10" for "ten" in subsection F; and in subsection G, in the first sentence, substituted "related to" for "resulting from," deleted "and" preceding "(ii)," and inserted "and (iii) imposing terms, conditions and limitations for actions taken pursuant to clauses (i) and (ii)," and added the last sentence.

The 2004 amendments. - The 2004 amendment by c. 720, in subsection E, added clause (ix) at the end of the first sentence, substituted "15" for "fifteen" in the seventh sentence and made related changes.

The 2007 amendments. - The 2007 amendments by cc. 194 and 553 are nearly identical, and inserted "or, any person residing in the person's household" following "elderly parent" in clause (v) of subsection E. Acts 2007, c. 553 also inserted "as designated by the court" in clause (v).

The section has been set out in the form above at the direction of the Virginia Code Commission.

The 2009 amendments. - The 2009 amendment by c. 295 substituted "ten years" for "five years" in the second sentence of subsection C.

The 2010 amendments. - The 2010 amendment by c. 446 added clause (x) in subsection E.

The 2010 amendment by c. 682 added another clause (x) in subsection E, which was subsequently redesignated as clause (xi) at the direction of the Virginia Code Commission.

The 2011 amendments. - The 2011 amendment by c. 592 added clause (xii) in the first sentence in subsection E and made minor stylistic changes.

The 2012 amendments. - The 2012 amendments by cc. 141 and 570 are identical, and added the last two sentences in subsection A; and in subsection E, inserted clause (xiii) and made related changes.

The 2014 amendments. - The 2014 amendment by c. 707 deleted "(i), (ii), (iii), or (iv)" twice following " § 18.2-266 " and "subsection H of" following "(VASAP) pursuant to" in subsection A.

The 2015 amendments. - The 2015 amendment by c. 506 substituted "an administrative or court-ordered" for "a court-ordered" in clause (xi) of subsection E.

The 2015 amendment by c. 729, effective April 15, 2015, in subsection D, substituted "under the law of another state or the United States of an offense" for "in another state of the violation of a law of such state" in the first sentence and added the third sentence in the first paragraph; and substituted "under the law of another state or the United States" for "in any state" in the second paragraph.

The 2017 amendments. - The 2017 amendment by c. 499 inserted the eighth sentence in subsection C; added the last sentence in the first paragraph of subsection D; and made minor stylistic changes.

The 2017 amendment by c. 701 inserted clause (xiv) in subsection E and made related changes.

The 2020 amendments. - The 2020 amendment by c. 1007, in subsection C, inserted "or (iii) is required to use a remote alcohol monitoring device" in the eighth sentence; in the first paragraph of subsection D, added clause (ii) in the third sentence, and inserted "or (b) is required to use a remote alcohol monitoring device" in the last sentence; in subsection E, added clause (xv) at the end of the first sentence and inserted the second sentence; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 336, effective July 1, 2021, added the last sentence in subsection E.

The 2021 amendment by Sp. Sess. I, c. 376, effective July 1, 2021, deleted "as it shall become effective on July 1, 2021" following " § 18.2-270.1 " in subsection D in the introductory language; and, in subsection E, substituted "if" for "whenever" and inserted "or a person's license to operate a motor vehicle, engine, or train in the Commonwealth has been suspended or revoked pursuant to former § 18.2-259.1 or 46.2-390.1 " in the first sentence; and deleted "as it shall become effective on July 1, 2021" following "subsection E of § 18.2-270.1 " in the second sentence.

Law review. - For comment on 1982 amendments to Virginia's driving while intoxicated laws, see 17 U. Rich. L. Rev. 189 (1982).

Research References. - Virginia Forms (Matthew Bender). No. 9-2915 Petition for Restricted Driver's License - Unauthorized Driving.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 11, 118.

CASE NOTES

Section does not limit referral to those not previously referred. - The first sentence of subsection A defines the eligibility for a referral. The second sentence merely requires that special consideration be given in the case of one who has not been referred previously. The statute does not limit eligibility for a VASAP referral to those who have not previously been so referred. Turner v. Commonwealth, 13 Va. App. 29, 408 S.E.2d 586 (1991).

Recognition of the right of municipalities to deal with the subject. - This section clearly recognizes the power, which theretofore existed in the municipalities, to adopt ordinances declaring the offense of driving vehicles or conveyances, while intoxicated, as an offense against the municipality. Shaw v. City of Norfolk, 167 Va. 346 , 189 S.E. 335 (1937).

Discretion in assignments to alcohol programs. - The language "the court shall give mature consideration to the needs of such person in determining whether he be allowed to enter such program" imposes upon a court in a drunk-driving case the duty to give "good faith consideration" to a motion to assign the accused to an alcohol program authorized by this section. Midkiff v. Commonwealth, 223 Va. 1 , 286 S.E.2d 150 (1982); Blevins v. Town of Marion, 226 Va. 200 , 308 S.E.2d 105 (1983).

The ultimate decision whether to admit a person to a program rests in the trial court's discretion, but that discretion may only be exercised after the court gives "mature consideration to the needs of such person." Blevins v. Town of Marion, 226 Va. 200 , 308 S.E.2d 105 (1983).

This section did not require the trial court to grant defendants' motions for VASAP referral. Whether to grant either motion lay within the sound discretion of the trial court. Turner v. Commonwealth, 13 Va. App. 29, 408 S.E.2d 586 (1991).

No equal protection violation. - Prohibition against granting defendant, who was found guilty of driving while his blood alcohol concentration was in excess of .10, a restricted driving permit to operate a commercial motor vehicle, as defined in the Virginia Commercial Driver's License Act, during his employment hours did not deny him equal protection of the laws although other persons may be permitted to drive noncommercial motor vehicles during the hours of such person's employment if the operation of a motor vehicle is a necessary incident of such employment, even if defendant was similarly situated to a person who drives as a part of his or her employment but does not hold a commercial driver's license. Lockett v. Commonwealth, 17 Va. App. 488, 438 S.E.2d 497 (1993).

Notice for show cause summons. - Court did not abuse its discretion by revoking three months of defendant's suspended sentence for driving under the influence because the court began the revocation proceedings by issuing a show cause summons that it mailed by first-class mail to defendant's last known address; such actions followed the exact procedure mandated by this section. Whitt v. Commonwealth, No. 0600-04-3, 2005 Va. App. LEXIS 40 (Ct. of Appeals Feb. 1, 2005).

Drinking problem not prerequisite for VASAP program. - Nothing in this section supports the view expressed by the trial judge that the VASAP program is only for people who have a drinking problem. This section is not limited to people who have a drinking problem; thus, the trial judge abused his discretion when using that view of the statute as a disqualifying factor for admission. Taylor v. Commonwealth, 12 Va. App. 419, 404 S.E.2d 78 (1991).

Ambit of the alcohol rehabilitation statute is not limited to those who plead guilty. It requires the court to give good faith consideration to a motion to be admitted to an alcohol rehabilitation program made by any convicted defendant who is a first or second offender and who has not previously entered a similar program. Blevins v. Town of Marion, 226 Va. 200 , 308 S.E.2d 105 (1983).

Record disclosed no indication that the trial court gave good faith consideration to defendant's motion for admission to an alcohol rehabilitation program, where the court's remarks indicated that it deemed the defendant to be an unsuitable candidate and denied his motion upon the sole ground that he had availed himself of his constitutional right to stand upon a plea of not guilty, thus putting the prosecution to its proof. Blevins v. Town of Marion, 226 Va. 200 , 308 S.E.2d 105 (1983).

Trial court should have conditioned issuance of restricted license upon enrollment in, and successful completion of, a certified Virginia Alcohol Safety Action Program (VASAP), although defendant had previously completed a VASAP program. Commonwealth v. Meadows, 17 Va. App. 624, 440 S.E.2d 154 (1994).

Effect on driving privileges. - Defendant asserted that the government's evidence constructively amended the indictment, resulting in a fatal variance; however, defendant's contention that because he received a restricted license, his license was no longer suspended, lacked merit. Even though the license was restricted, he was suspended with the restrictions and the government's evidence that defendant had a restricted license did not amount to a fatal variance from the offense charged in the indictment. United States v. Arias,, 2007 U.S. App. LEXIS 711 (4th Cir. Jan. 12, 2007).

OPINIONS OF THE ATTORNEY GENERAL

No authority to issue restricted operator's permit two and one-half years after conviction. - A general district court had no statutory authority to issue a restricted operator's permit to an individual whose conviction of a second offense of driving while intoxicated occurred two and one-half years earlier. See opinion of Attorney General to The Honorable Timothy S. Fisher, Judge, Seventh Judicial District of Virginia, 01-031 (12/28/01).

Authority of Commissioner of the Department of Motor Vehicles. - The Commissioner of the Department of Motor Vehicles is both authorized and mandated to impose an ignition interlock system upon an individual seeking reinstatement of a driver's license after the three-year license revocation period resulting from a conviction for driving under the influence, second or subsequent offense, when the convicting court fails to order the installation of such system. See opinion of Attorney General to The Honorable Joseph P. Johnson, Jr., Member, House of Delegates, 10-018, 2010 Va. AG LEXIS 17 (4/20/10).

§ 18.2-271.2. Commission on VASAP; purpose; membership; terms; meetings; staffing; compensation and expenses; chairman's executive summary.

  1. There is hereby established in the legislative branch of state government the Commission on the Virginia Alcohol Safety Action Program (VASAP). The Commission shall administer and supervise the state system of local alcohol and safety action programs, develop and maintain operation and performance standards for local alcohol and safety action programs, and allocate funding to such programs. The Commission shall have a total membership of 15 members that shall consist of six legislative members and nine nonlegislative citizen members. Members shall be appointed as follows: four current or former members of the House Committee for Courts of Justice, to be appointed by the Speaker of the House of Delegates; two members of the Senate Committee on the Judiciary, to be appointed by the Senate Committee on Rules; three sitting or retired judges, one each from the circuit, general district and juvenile and domestic relations district courts, who regularly hear or heard cases involving driving under the influence and are familiar with their local alcohol safety action programs, to be appointed by the Chairman of the Committee on District Courts; one director of a local alcohol safety action program to be appointed by the Speaker of the House of Delegates upon consideration of the recommendations of the legislative members of the Commission; one director of a local alcohol safety action program to be appointed by the Senate Committee on Rules upon consideration of the recommendations of the legislative members of the Commission; one representative from the law-enforcement profession, to be appointed by the Speaker of the House and one nonlegislative citizen at large, to be appointed by the Senate Committee on Rules; one representative from the Virginia Department of Motor Vehicles whose duties are substantially related to matters to be addressed by the Commission to be appointed by the Commissioner of the Department of Motor Vehicles, and one representative from the Department of Behavioral Health and Developmental Services whose duties also substantially involve such matters, to be appointed by the Commissioner of Behavioral Health and Developmental Services. Legislative members shall serve terms coincident with their terms of office. In accordance with the staggered terms previously established, nonlegislative citizen members shall serve two-year terms. All members may be reappointed. Appointments to fill vacancies, other than by expiration of a term, shall be made for the unexpired terms. Any appointment to fill a vacancy shall be made in the same manner as the original appointment.
  2. The Commission shall meet at least four times each year at such places as it may from time to time designate. A majority of the members shall constitute a quorum. The Commission shall elect a chairman and vice-chairman from among its membership.

    The Commission shall be empowered to establish and ensure the maintenance of minimum standards and criteria for program operations and performance, accounting, auditing, public information and administrative procedures for the various local alcohol safety action programs and shall be responsible for overseeing the administration of the statewide VASAP system. Such programs shall be certified by the Commission in accordance with procedures set forth in the Commission on VASAP Certification Manual. The Commission shall also oversee program plans, operations and performance and a system for allocating funds to cover deficits that may occur in the budgets of local programs.

  3. The Commission shall appoint and employ and, at its pleasure, remove an executive director and such other persons as it may deem necessary, and determine their duties and fix their salaries or compensation.
  4. The Commission shall appoint a Virginia Alcohol Safety Action Program Advisory Board to make recommendations to the Commission regarding its duties and administrative functions. The membership of such Board shall be appointed in the discretion of the Commission and include personnel from (i) local safety action programs, (ii) the State Board of Behavioral Health and Developmental Services, community services boards, or behavioral health authorities and (iii) other community mental health services organizations. An assistant attorney general who provides counsel in matters relating to driving under the influence shall also be appointed to the Board.
  5. Legislative members of the Commission shall receive compensation as provided in § 30-19.12. Funding for the costs of compensation of legislative members shall be provided by the Commission. All members shall be reimbursed for all reasonable and necessary expenses as provided in §§ 2.2-2813 and 2.2-2825 to be paid out of that portion of moneys paid in VASAP defendant entry fees which is forwarded to the Virginia Alcohol Safety Action Program.
  6. The chairman of the Commission shall submit to the Governor and the General Assembly an annual executive summary of the interim activity and work of the Commission no later than the first day of each regular session of the General Assembly. The executive summary shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly's website.

    (1986, c. 580; 1988, cc. 781, 859, 888; 1990, cc. 1, 317; 1992, c. 560; 1993, c. 757; 2003, c. 885; 2005, c. 758; 2009, cc. 813, 840; 2018, c. 576.)

Cross references. - As to the certification of criminal justice agencies under this section see, § 9.1-101 .

Editor's note. - Acts 2018, c. 576, cl. 2 provides: "That this act shall not be construed to affect existing appointments of directors of local alcohol safety action programs to the Commission on the Virginia Alcohol Safety Action Program (Commission) for which the terms have not expired. However, any new appointments made after the effective date of this act [July 1, 2018] shall be made in accordance with the provisions of this act, provided that the first vacancy of a Commission seat that was held by a director of a local alcohol safety action program immediately prior to the vacancy shall be filled by appointment made by the Speaker of the House of Delegates."

The Virginia Code Commission authorized the substitution of "Senate Committee on the Judiciary" for "Senate Committee for Courts of Justice" in subsection A. March 10, 2021.

The 2003 amendments. - The 2003 amendment by c. 885 rewrote subsection A; in the first paragraph of subsection B, substituted "at least four times" for "quarterly" in the first sentence and added the second sentence; in the second paragraph of subsection B, substituted "ensure" for "assure" in the first sentence and "that" for "which" in the last sentence; rewrote subsection E; and added subsection F.

The 2005 amendments. - The 2005 amendment by c. 758, in subsection A, substituted "have a total membership of 15 members that shall consist of six" for "consist of 15 members that include" in the third sentence, deleted "in accordance with the principles of proportional representation contained in the Rules of the House of Delegates," and substituted "Rules" for "Privileges and Elections" twice in the fourth sentence and made a minor stylistic change.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Behavioral Health and Developmental" for "Mental Health, Mental Retardation and Substance Abuse" and "Commissioner of Behavorial Health and Developmental Services" for "Commissioner of the Department of Mental Health, Mental Retardation, and Substance Abuse Services" in subsection A; and rewrote clause (ii) of subsection D, which read "state or local boards of mental health and mental retardation."

The 2018 amendments. - The 2018 amendment by c. 576 substituted "one director of a local alcohol safety action program to be appointed by the Speaker of the House of Delegates upon consideration of the recommendations of the legislative members of the Commission; one director of a local alcohol safety action program to be appointed by the Senate Committee on Rules upon consideration of the recommendations of the legislative members of the Commission" for "two directors of local alcohol safety action programs, to be appointed by the legislative members of the Commission" in subsection A.

§ 18.2-271.3.

Repealed by Acts 1999, c. 734.

§ 18.2-271.4. Oath of office.

Every case manager, and any other employee who is designated by the director of any VASAP-certified local alcohol safety action program operated pursuant to this article to provide probation and related services, shall take an oath of office as prescribed in § 49-1 , by a person authorized to administer oaths pursuant to § 49-3 , before entering the duties of his office.

(2001, cc. 380, 396.)

§ 18.2-271.5. Restricted permits to operate a motor vehicle; ignition interlock systems.

Notwithstanding any other provision of law, in any criminal case for any violation of Article 7 ( § 46.2-852 et seq.) of Chapter 8 of Title 46.2 where a defendant's license to operate a motor vehicle, engine, or train in the Commonwealth is subject to revocation or suspension and the court orders a defendant, as a condition of probation or otherwise, to enter into and successfully complete an alcohol safety action program in the judicial district in which such charge is brought or in any other judicial district upon such terms and conditions as the court may set forth, the court may, in its discretion and for good cause shown, issue the defendant a restricted license to operate a motor vehicle in accordance with the provisions of subsection E of § 18.2-271.1 where the only restriction of such restricted license that the court shall impose is to prohibit the defendant from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for a period of not less than six consecutive months without alcohol-related violations of the interlock requirements.

In no event shall a defendant be permitted to enter any such alcohol safety action program that is not certified as meeting minimum standards and criteria established by the Commission on the Virginia Alcohol Safety Action Program (VASAP) pursuant to § 18.2-271.2 .

No restricted license issued pursuant to this section shall permit any person to operate a commercial motor vehicle as defined in the Virginia Commercial Driver's License Act (§ 46.2-341.1 et seq.).

The provisions of subsections E and F of § 18.2-271.1 shall apply to this section mutatis mutandis, except as herein provided.

(2021, Sp. Sess. I, c. 279.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 279, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Effective date. - This section is effective July 1, 2021.

§ 18.2-272. Driving after forfeiture of license.

  1. Any person who drives or operates any motor vehicle  on any highway, as defined in § 46.2-100 , in the Commonwealth, or any engine or train in the Commonwealth, during the time for which he was deprived of the right to do so (i) upon conviction of a violation of § 18.2-268.3 or 46.2-341.26:3 or of an offense set forth in subsection E of § 18.2-270 , (ii) by § 18.2-271 or 46.2-391.2 , (iii) after his license has been revoked pursuant to § 46.2-389 or 46.2-391 , or (iv) in violation of the terms of a restricted license issued pursuant to subsection E of § 18.2-271.1 , subsection C of § 18.2-270 .1, or subsection E of § 18.2-270.1 , as it shall become effective on July 1, 2021, is guilty of a Class 1 misdemeanor except as otherwise provided in § 46.2-391 , and is subject to administrative revocation of his driver's license pursuant to §§ 46.2-389 and 46.2-391. Any person convicted of three violations of this section committed within a 10-year period is guilty of a Class 6 felony. Nothing in this section or § 18.2-266 , 18.2-270, or 18.2-271 shall be construed as conflicting with or repealing any ordinance or resolution of any county, city, or town that restricts still further the right of such persons to drive or operate any such vehicle or conveyance.
  2. Regardless of compliance with any other restrictions on his privilege to drive or operate a motor vehicle, it shall be a violation of this section for any person whose privilege to drive or operate a motor vehicle has been restricted, suspended or revoked because of a violation of § 18.2-36.1 , 18.2-51.4 , 18.2-266 , 18.2-268.3 , 46.2-341.24 , or 46.2-341.26:3 or a similar ordinance or law of another state or the United States to drive or operate a motor vehicle  on any highway, as defined in § 46.2-100 , in the Commonwealth while he has a blood alcohol content of 0.02 percent or more. Any person suspected of a violation of this subsection shall be entitled to a preliminary breath test in accordance with the provisions of § 18.2-267 , shall be deemed to have given his implied consent to have samples of his blood, breath or both taken for analysis pursuant to the provisions of § 18.2-268.2 , and, when charged with a violation of this subsection, shall be subject to the provisions of §§ 18.2-268.1 through 18.2-268.12 .
  3. Any person who drives or operates a motor vehicle on any highway, as defined in § 46.2-100 , in the Commonwealth without a certified ignition interlock system as required by § 46.2-391.01 is guilty of a Class 1 misdemeanor and is subject to administrative revocation of his driver's license pursuant to §§ 46.2-389 and 46.2-391 .
  4. Any person who drives or operates a motor vehicle who has tampered with, or in any way attempted to circumvent the operation of, a remote alcohol monitoring device that an offender is ordered to use under § 18.2-270.1 is not guilty of a violation of this section but is guilty of a violation of subsection H of § 18.2-270.1 . (Code 1950, § 18.1-60; 1960, c. 358; 1975, cc. 14, 15; 1988, c. 859; 1991, c. 64; 2004, cc. 948, 1013; 2005, cc. 757, 840; 2006, c. 390; 2007, c. 258; 2009, cc. 71, 255; 2017, c. 623; 2020, cc. 1007, 1019.)

Cross references. - As to mandatory background screenings for TNC partners to provide updated information to transportation network companies, see § 46.2-2099.49 .

Editor's note. - Acts 2006, c. 390, which amended subsection A, in cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation of general funds effectuating the purposes of this act is included in the general appropriations act passed by the 2006 Session of the General Assembly, which becomes law." The funding was provided in the 2006 appropriation act. See Acts 2006, Sp. Sess. I, c. 3, Item 387 F.

Acts 2020, c. 1007, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 948 rewrote the first paragraph.

The 2004 amendment by c. 1013 inserted the subsection A designation at the beginning of the first paragraph and rewrote the first paragraph in subsection A; and added subsection B. Subsection A has been set out in the form above at the direction of the Virginia Code Commission.

The 2005 amendments. - The 2005 amendments by cc. 757 and 840 are identical, and substituted "because of a violation of § 18.2-36.1 , 18.2-51.4 , 18.2-266 , 18.2-268.3 , 46.2-341.24 , or a similar ordinance or law of another state or the United States to drive or operate a motor vehicle" for "by application of the provisions of the Code set forth in subsection A to do so" in the first paragraph of subsection B and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 390 added the last sentence to the first paragraph of subsection A. For contingent effective date, see Editor's note.

The 2007 amendments. - The 2007 amendment by c. 258 substituted "three violations of this section committed within a 10-year period is" for "a third offense in 10 years of a violation of this section shall be" in the last sentence in subection A.

The 2009 amendments. - The 2009 amendments by cc. 71 and 255 are identical, and added subsection C.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsections A, and B, inserted "or 46.2-341.26:3 " and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 1007 inserted "subsection C of § 18.2-270.1 , or subsection E of § 18.2-270.1 , as it shall become effective on July 1, 2021" in clause (iv) of subsection A; and added subsection D.

The 2020 amendment by c. 1019 inserted "on any highway, as defined in § 46.2-100 , in the Commonwealth" in the first paragraph of subsections A and B, and in subsection C; in the second paragraph of subsection A, substituted "county, city, or town that" for "city, town or county which"; and made stylistic changes.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

CASE NOTES

Right to jury trial. - Virginia Const., Art. I, § 8, and Rule 3A:13(a) guaranteed defendant a right to a jury in the trial court on both charges of driving under the influence and driving on a revoked operator's license. McCormick v. City of Virginia Beach, 5 Va. App. 369, 363 S.E.2d 124 (1987).

Effect on driving privileges. - Defendant asserted that the government's evidence constructively amended the indictment resulting in a fatal variance; however, defendant's contention that because he received a restricted license, his license was no longer suspended, lacked merit. Even though the license was restricted, he was suspended with the restrictions and the government's evidence that defendant had a restricted license did not amount to a fatal variance from the offense charged in the indictment. United States v. Arias,, 2007 U.S. App. LEXIS 711 (4th Cir. Jan. 12, 2007).

Driver was ineligible for a driver's license due to the similarity of the driver's convictions in other states to Virginia statutes prohibiting driving while intoxicated and after forfeiture of a license because (1) a dissimilar Georgia punishment did not make that state's statute dissimilar for such purposes, and (2) a Florida release letter did not show the driver had no predicate Florida conviction and suspension, as the letter did not mention a Tennessee conviction and subsequent Florida revocation, and the letter was sent in error as one of the driver's two National Driver Registry profiles listed the driver as ineligible. Dorman v. Commonwealth, No. 0170-19-2, 2019 Va. App. LEXIS 209 (Sept. 24, 2019).

Arrest beyond the suspension period. - Defendant was improperly convicted under § 18.2-272 because the period of suspension authorized by § 18.2-271 was for one year from the date of defendant's conviction for driving while intoxicated and defendant's arrest years later was well beyond the expiration of the suspension period imposed by § 18.2-271 . Croft v. Commonwealth,, 2015 Va. App. LEXIS 205 (June 30, 2015).

Sufficiency of evidence. - Defendant's statement that he did not have a driver's license, coupled with his presence at his previous trials for driving on a suspended license, bolstered the Department of Motor Vehicles' transcript's record of notice, on which there was a clear reference that notice of suspension or revocation was received; the finding that defendant had received notice was not plainly wrong, and his conviction for driving during the time for which he was deprived of the right to do so, third or subsequent offense was affirmed. Peters v. Commonwealth, 66 Va. App. 743, 791 S.E.2d 764 (2016).

Evidence supported a finding that following defendant's actual notice of her second license violation she knew her driving privileges remained revoked and that her license was in fact revoked at the time of the stop, supporting her conviction for driving after forfeiture of her license, a third such offense within ten years. Yoder v. Commonwealth, No. 1023-17-3, 2018 Va. App. LEXIS 347 (Dec. 11, 2018).

Third or subsequent offense. - Defendant's prior convictions, including that for a misdemeanor, supported the decision that the instant offense was a third or subsequent offense. Yoder v. Commonwealth, No. 1023-17-3, 2018 Va. App. LEXIS 347 (Dec. 11, 2018).

Punishment provisions of this section are superseded by provisions directly related to cases involving habitual offenders - the provisions contained in § 46.2-357 under which appellant was charged. Travis v. Commonwealth, 20 Va. App. 410, 457 S.E.2d 420 (1995).

CIRCUIT COURT OPINIONS

Moped. - A "moped" is not a "motor vehicle" under § 8.2-272. Archer v. Fink, 57 Va. Cir. 354, 2002 Va. Cir. LEXIS 215 (Charlottesville 2002).

Administrative suspension of license. - Because a trial court's criminal order was not in conflict with the legislatively imposed civil suspension of driver's privilege to drive, the administrative suspension of the driver's privilege to drive was not overturned. Huff v. DMV, 58 Va. Cir. 517, 2002 Va. Cir. LEXIS 171 (Danville 2002).

Dismissal. - Because the Commonwealth Attorney elected not to prosecute defendant for driving without an ignition interlock system, the court granted defendant's motion to dismiss because it was the duty of the Commonwealth Attorney to appear in court on behalf of the Commonwealth in a criminal case, the Commonwealth Attorney plainly had the discretion under subsection B of § 15.2-1627 not to prosecute, neither a law-enforcement officer nor a crime victim had authority to assume the duties of the Commonwealth Attorney, and the court could not adjudicate the case in the Commonwealth Attorney's absence under Va. Const. art. 1, § 5 and Va. Const. art. 3, § 1. Commonwealth v. Sangha,, 2021 Va. Cir. LEXIS 55 (Fairfax County Mar. 29, 2021).

OPINIONS OF THE ATTORNEY GENERAL

When vehicle may be impounded. - Because the offense of driving during a suspension period may be considered a violation of either § 46.2-301 or § 18.2-272 , the vehicle being driven by an individual who commits such offense should be impounded pursuant to the former statute, without regard to whether the individual was arrested and charged under either statute. See opinion of Attorney General to The Honorable Norman deV. Morrison, Judge, Clarke County General District Court, 02-007 (4/29/02).

Arrest warrant is not sufficient for impoundment of vehicle. - An arrest warrant issued to a driver for violation of this section is not sufficient under § 46.2-301.1 for the administrative impoundment of the driver's vehicle. See opinion of Attorney General to The Honorable Archer L. Yeatts III, Chief Judge, Henrico County General District Court, 99-085 (3/10/00).

§ 18.2-273. Report of conviction to Department of Motor Vehicles.

The clerk of every court of record and the judge of every court not of record shall, within thirty days after final conviction of any person in his court under the provisions of this article, report the fact thereof and the name, post-office address and street address of such person, together with the license plate number on the vehicle operated by such person to the Commissioner of the Department of Motor Vehicles who shall preserve a record thereof in his office.

(Code 1950, § 18.1-61; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

The Commissioner of the Division of Motor Vehicles (now Department of Motor Vehicles) has no power to hear evidence to fix the measure of guilt, nor has he the right to disregard a judgment of conviction. Commonwealth v. Ellett, 174 Va. 403 , 4 S.E.2d 762 (1939).

Applied in Smith v. Commonwealth, 44 Va. App. 189, 604 S.E.2d 108, 2004 Va. App. LEXIS 509 (2004).

Article 3. Transporting Dangerous Articles.

§§ 18.2-274 through 18.2-278.

Repealed by Acts 1980, c. 759.

Cross references. - For present provisions as to transportation of hazardous materials, see § 10.1-1450 et seq.

Article 3.1. Transportation of Hazardous Materials.

§§ 18.2-278.1 through 18.2-278.7.

Repealed by Acts 1986, c. 492.

Cross references. - As to the transportation of hazardous materials, see now § 10.1-1450 et seq.

Editor's note. - Acts 1986, c. 492 purported to repeal Article 3.1 of Chapter 7 of this title, "consisting of §§ 18.2-278.2 through 18.2-278.7." Since, however, this article also contained § 18.2-278.1 , and since the language contained within this section is incorporated in § 10.1-1400 , it appears that this section was also intended to have been repealed by Acts 1986, c. 492.

Article 4. Dangerous Use of Firearms or Other Weapons.

§ 18.2-279. Discharging firearms or missiles within or at building or dwelling house; penalty.

If any person maliciously discharges a firearm within any building when occupied by one or more persons in such a manner as to endanger the life or lives of such person or persons, or maliciously shoots at, or maliciously throws any missile at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril, the person so offending is guilty of a Class 4 felony. In the event of the death of any person, resulting from such malicious shooting or throwing, the person so offending is guilty of murder in the second degree. However, if the homicide is willful, deliberate and premeditated, he is guilty of murder in the first degree.

If any such act be done unlawfully, but not maliciously, the person so offending is guilty of a Class 6 felony; and, in the event of the death of any person resulting from such unlawful shooting or throwing, the person so offending is guilty of involuntary manslaughter. If any person willfully discharges a firearm within or shoots at any school building whether occupied or not, he is guilty of a Class 4 felony.

(Code 1950, §§ 18.1-66, 18.1-152; 1960, c. 358; 1975, cc. 14, 15; 1992, c. 738; 2005, c. 143.)

The 2005 amendments. - The 2005 amendment by c. 143 substituted "is" for "shall be" in both paragraphs, in the first paragraph, substituted "in the second degree" for "the degree to be determined by the jury or the court trying the case without a jury" and added the last sentence.

Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 9.

CASE NOTES

Offense is a general intent offense. - The offense as defined by the statute is not a specific intent crime; rather, it is a general intent offense. Fleming v. Commonwealth, 13 Va. App. 349, 412 S.E.2d 180 (1991).

A violation of the statute may be established upon proof that a person unlawfully discharged a firearm at or in the direction of an occupied dwelling if the person knew or should have known that the dwelling was in the line of fire, even if the person did not specifically intend to shoot at or into the dwelling. Fleming v. Commonwealth, 13 Va. App. 349, 412 S.E.2d 180 (1991).

All that is required of the Commonwealth to prove a violation of this section is that it prove beyond a reasonable doubt that the principal in the first degree intended to shoot at or toward an occupied dwelling. Fleming v. Commonwealth, 13 Va. App. 349, 412 S.E.2d 180 (1991).

Prosecution, to support a conviction for the lesser included offense of unlawfully discharging a firearm at or against an occupied building, in violation of § 18.2-279 , was not required to prove that defendant had the specific intent to fire at or against a convenience store that was behind the person at whom defendant was shooting. Ellis v. Commonwealth, 281 Va. 499 , 706 S.E.2d 849, 2011 Va. LEXIS 46 (2011).

Commonwealth relieved of burden of proving endangerment. - The language of this statute is a legislative declaration that human lives may be endangered when a deadly weapon is maliciously discharged at or against a building occupied by people and that such conduct is felonious. This legislative determination relieves the Commonwealth of the burden of proving that human life was, in fact, endangered. Dowdy v. Commonwealth, 220 Va. 114 , 255 S.E.2d 506 (1979).

At or toward occupied dwelling. - In construing the plain meaning of the second prong of § 18.2-279 , regarding maliciously shooting at a dwelling house, the word "at" had a common and easily understood meaning and was defined as a function word used to indicate that toward which an action is directed, so all that was required of the Commonwealth to prove a violation of § 18.2-279 was that it prove beyond a reasonable doubt that the principal in the first degree intended to shoot at or toward an occupied dwelling. King v. Commonwealth, 40 Va. App. 193, 578 S.E.2d 803, 2003 Va. App. LEXIS 61 (2003).

No limitation on locale of shots. - Section 18.2-279 , prohibiting the discharge of a firearm within or at an occupied dwelling, did not specify where the shooter had to be located in relation to the occupied dwelling, and there was no legislative directive implicating such a limitation, thus, when read together, the first prong of the statute dealt with the locale of the shot, (i.e., "within the building"), and the second prong concerned the destination of the shot, (i.e., "at the building") and did not specify the locale of the shooter. King v. Commonwealth, 40 Va. App. 193, 578 S.E.2d 803, 2003 Va. App. LEXIS 61 (2003).

Unit of prosecution. - Unit of prosecution under this section is each separate act of shooting. Thus, where the evidence established that defendant fired multiple shots into two separate rooms at a motel and the occupants of both rooms were both put in peril by defendant's actions, defendant committed two offenses of shooting at an occupied building. Tate v. Commonwealth, No. 0549-18-1, 2019 Va. App. LEXIS 90 (Apr. 16, 2019).

No mens rea required. - Court of Appeals properly affirmed defendant's conviction for discharging a firearm within an occupied building because her proposed additional jury instruction placing the burden upon the Commonwealth to prove that the discharge of the firearm was not accidental was properly refused as an incorrect statement of the law inasmuch as the General Assembly determined that such conduct was unlawful even if done accidentally or unintentionally. Bryant v. Commonwealth, 295 Va. 302 , 811 S.E.2d 250, 2018 Va. LEXIS 32 (2018).

Failure to instruct on essential elements. - In prosecution under this section, it was reversible error on the part of the trial court to fail to instruct the jury on the essential elements of the offense. Dowdy v. Commonwealth, 220 Va. 114 , 255 S.E.2d 506 (1979).

Evidence of shooting similar to shooting charged. - While acquittal of a charge of a similar crime on the same night may lessen its probative value, it does not make it inadmissible and evidence of a shooting similar to shooting defendant was charged with had probative value. Tomlinson v. Commonwealth, 8 Va. App. 218, 380 S.E.2d 26 (1989).

The throwing of a bottle from close range with sufficient force to break the storm door and to injure homeowner is sufficient to support a finding that lives were "put in peril" within the meaning of this section. Waller v. Commonwealth, No. 1696-89-3 (Ct. of Appeals Nov. 20, 1990).

No probable cause to enter without a warrant. - When police received a call that someone had been shooting a weapon on a certain street, and, when they contacted the person who made the call, that person pointed out defendant, who was not engaged in any criminal behavior, they did not have probable cause allowing them to enter defendant's back yard without a warrant, because the call did not state or reasonably imply that a weapon had been fired "within" or "at" an occupied dwelling, so a person of reasonable caution was not warranted in believing that an offense had been or was being committed. Quente v. Commonwealth, No. 1517-03-1, 2004 Va. App. LEXIS 212 (Ct. of Appeals May 4, 2004).

Evidence sufficient to show lives endangered. - Evidence that defendant shot a gun into the ceiling of a hospital while in close proximity to seventy-five persons and that there was a possibility that the bullet might have ricocheted, was sufficient to prove the firearm was discharged in such a manner as to endanger lives. Strickland v. Commonwealth, 16 Va. App. 180, 428 S.E.2d 507 (1993).

Evidence was sufficient to establish that the defendant discharged a firearm in a manner that endangered the lives of those in a store, notwithstanding that the shells which he fired from a shotgun had no pellets or other shot, where a detective testified that the weapon discharged a wad that would enter a person standing nearby "just like a bullet." Browder v. Commonwealth, No. 1499-97-2 (Ct. of Appeals Dec. 22, 1998).

Evidence that defendant fired weapon inside house showed that defendant endangered spouse's life, as defendant fired the weapon in the bedroom and the spouse was sitting in the nearby living room, close enough to be endangered had the ammunition deflected. Kirby v. Commonwealth, 264 Va. 440 , 570 S.E.2d 832, 2002 Va. LEXIS 164 (2002).

Evidence was sufficient to prove beyond a reasonable doubt that defendant committed the offense of shooting into an occupied dwelling in violation of § 18.2-279 , where: (1) in addition to blood evidence, primer residue from a gunshot was found on defendant's hand; (2) defendant's own written statement placed him at the scene; (3) a letter from defendant was intercepted, which indicated that a witness had seen defendant on the back porch during the shooting, and suggested testimony to explain the events; and (4) although the shootings might not have been part of the original plan, since defendant participated in the planned enterprise, he could be held accountable for the incidental crimes. Paxton v. Commonwealth, No. 3063-01-2, 2002 Va. App. LEXIS 785 (Ct. of Appeals Dec. 31, 2002).

When defendant was indicted for shooting at or against an occupied building or dwelling house, putting the lives of the occupants in peril, proof that he fired a weapon from inside the building at a fleeing victim did not fatally vary from the indictment as defendant fired "at" a part of the building, and the portion of the statute referenced in defendant's indictment did not specify where the shooter had to be located in reference to the building. King v. Commonwealth, 40 Va. App. 193, 578 S.E.2d 803, 2003 Va. App. LEXIS 61 (2003).

Defendant was properly convicted of both murder and malicious discharge of a firearm, where there was testimony that another person was about three to four feet from the murder victim at the time of the killing, and the other person was knocked back and could not hear; defendant clearly endangered this other person, and the crime took place within a dwelling. Proctor v. Commonwealth, 40 Va. App. 233, 578 S.E.2d 822, 2003 Va. App. LEXIS 182 (2003).

In a case in which defendant appealed his conviction for discharging a firearm within an occupied building, in violation of § 18.2-279 , he argued unsuccessfully that the evidence was insufficient to support his conviction. The testimony of two witnesses was sufficient to support the conviction; one witnessed the event and was in the house when it occurred, and the other witness, a police investigator, testified that defendant admitted firing the weapon. Berger v. Commonwealth,, 2006 Va. App. LEXIS 609 (Nov. 17, 2006).

Evidence sufficient to support conviction. - Evidence was sufficient to support defendant's convictions for robbery, shooting within an occupied dwelling, using a firearm in the commission of a felony, armed burglary, and malicious wounding, because ample evidence supported a finding that defendant was a perpetrator in a home invasion: three of the victims identified defendant at trial, and a co-defendant testified that defendant said he intended to rob the home, that he entered the home wearing a bullet-proof vest and armed with a handgun, and that he later told the co-defendant that he had struck one of the victim's in the head. Trial court did not abuse discretion in ruling on misidentification of accomplices by witnesses. Streater v. Commonwealth,, 2009 Va. App. LEXIS 504 (Nov. 10, 2009).

Prosecution's case was legally sufficient and the trial court, as the fact finder, could reasonably have inferred from the character of the neighborhood, the presence of others in the vicinity, and the density of the surrounding development, that defendant knew or should of known that an occupied building was in defendant's line of fire when defendant unlawfully discharged a weapon toward the victim. Ellis v. Commonwealth, 281 Va. 499 , 706 S.E.2d 849, 2011 Va. LEXIS 46 (2011).

Evidence was sufficient to support defendant's conviction for unlawfully throwing or shooting a missile into an occupied dwelling because the complainants satisfied the statutory peril requirement by testifying that defendant, after arguing with one of the complainants and donning combat gear, began firing ball bearings with a slingshot at the complainant's home and the ball bearings pierced the siding of the home. Kim v. Commonwealth,, 2014 Va. App. LEXIS 145 (Apr. 22, 2014).

Defendant, who was despondent and expressed a desire to die, admitted putting a bullet hole in the wall of his home and asserted the right to shoot the walls in his house if he wanted to. The trial court was not plainly wrong when it found that the shooting was intentional and such finding was supported by the evidence. Chambers v. Commonwealth, No. 0786-15-3, 2016 Va. App. LEXIS 143 (Ct. of Appeals May 3, 2016).

Sufficient evidence supported defendant's conviction for unlawfully discharging a firearm within an occupied dwelling because (1) the Commonwealth only had to show the discharge of the firearm may have put a victim's life in peril, and (2) the Commonwealth made this showing through evidence that the victim was in very close proximity to defendant when defendant fired a weapon inside a residence, creating the possibility that a bullet could have ricocheted, and that defendant was irrational and angry, and defendant's intoxicated state at the time defendant fired the weapon could be considered. Holsinger v. Commonwealth,, 2017 Va. App. LEXIS 71 (Mar. 14, 2017).

As the evidence supported the factual finding that defendant acted wantonly or willfully and in reckless or indifferent disregard of the safety of the other individuals at the hotel, when she fired the gun into the floor of the hotel room knowing the building was occupied, it was sufficient to prove the criminal negligence necessary to sustain defendant's conviction for the unlawful discharge of a firearm in an occupied building. Bryant v. Commonwealth, 67 Va. App. 569, 798 S.E.2d 459 (2017).

Sufficient evidence supported defendant's conviction for throwing a missile at an occupied building because (1) the evidence showed defendant's act of throwing a rock through a victim's window may have put the victim's life in peril and did actually put the victim's life in peril, (2) the victim's testimony was not inherently incredible, as neighbors' failure to intervene did not require this conclusion, photographs corroborated the testimony, and the fact police did not take the photographs was immaterial, (3) the victim's daughters' testimony was materially consistent, and (4) the jury was free to disregard defendant's version, which defendant's witness contradicted. Clark v. Commonwealth, No. 0980-17-1, 2018 Va. App. LEXIS 204 (July 24, 2018).

Because defendant remained in custody during his participation in the home incarceration program, the trial court did not err in convicting him for felony escaping from custody when he cut off his GPS ankle monitor and absconded. King v. Commonwealth,, 2021 Va. App. LEXIS 114 (July 13, 2021).

Suspended sentence and post-release supervision properly imposed. - Defendant's sentence to three years of incarceration plus an additional six months, suspended upon a condition of six months of post-release supervision, for unlawfully throwing a missile at or against an occupied building pursuant to § 18.2-279 , was not in error on the ground that it exceeded the jury's recommendation of three years; subsection A of § 19.2-295.2 permits a trial court to impose a suspended term of incarceration and post-release supervision when a jury's sentence includes an active term of incarceration, and the trial court did not make additional fact findings in imposing the sentence beyond those found by the jury. Perry v. Commonwealth,, 2006 Va. App. LEXIS 270 (June 20, 2006).

Sentence upheld. - Trial court did not abuse its discretion following defendant's guilty pleas to voluntary manslaughter, shooting in the commission of a felony, and two counts of unlawfully discharging a firearm in an occupied building in imposing a fifteen-year sentence with five years suspended, which did not exceed the statutory maximum, because the proffer contained facts from which the court could have found that defendant exhibited both premeditation and malice in getting a gun and returning to twice shoot defendant's spouse during a dispute in their home. Spradling v. Commonwealth, No. 2082-15-4, 2016 Va. App. LEXIS 313 (Ct. of Appeals Nov. 15, 2016).

Failure to present argument barred decision on appeal. - In a case in which defendant argued on appeal that he lacked the mens rea to violate § 18.2-279 , he had not presented that argument to the trial court, and he did not argue that the appellate court should invoke the good cause or to meet the ends of justice exceptions, the appellate court would not consider that argument. Berger v. Commonwealth,, 2006 Va. App. LEXIS 609 (Nov. 17, 2006).

Applied in Parnell v. Commonwealth, 15 Va. App. 342, 423 S.E.2d 834 (1992); King v. Commonwealth, 264 Va. 576 , 570 S.E.2d 863, 2002 Va. LEXIS 168 (2002); Armstead v. Commonwealth, 55 Va. App. 354, 685 S.E.2d 876, 2009 Va. App. LEXIS 563 (2009).

§ 18.2-280. Willfully discharging firearms in public places.

  1. If any person willfully discharges or causes to be discharged any firearm in any street in a city or town, or in any place of public business or place of public gathering, and such conduct results in bodily injury to another person, he shall be guilty of a Class 6 felony. If such conduct does not result in bodily injury to another person, he shall be guilty of a Class 1 misdemeanor.
  2. If any person willfully discharges or causes to be discharged any firearm upon the buildings and grounds of any public, private or religious elementary, middle or high school, he shall be guilty of a Class 4 felony, unless he is engaged in a program or curriculum sponsored by or conducted with permission of a public, private or religious school.
  3. If any person willfully discharges or causes to be discharged any firearm upon any public property within 1,000 feet of the property line of any public, private or religious elementary, middle or high school property he shall be guilty of a Class 4 felony, unless he is engaged in lawful hunting.
  4. This section shall not apply to any law-enforcement officer in the performance of his official duties nor to any other person whose said willful act is otherwise justifiable or excusable at law in the protection of his life or property, or is otherwise specifically authorized by law.
  5. Nothing in this statute shall preclude the Commonwealth from electing to prosecute under any other applicable provision of law instead of this section.

    (Code 1950, § 18.1-69; 1960, c. 358; 1975, cc. 14, 15; 1992, c. 735; 1999, c. 996; 2001, c. 712; 2005, c. 928.)

Editor's note. - Acts 2001, c. 712, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined."

The 1999 amendment inserted "and such conduct results in bodily injury to another person, he shall be guilty of a Class 6 felony. If such conduct does not result in bodily injury to another person" in subsection A; and added subsection D.

The 2001 amendments. - The 2001 amendment by c. 712, in subsection B, inserted "the buildings and grounds of," deleted "including the buildings and grounds or upon public property within 1,000 feet of such school property" following "high school," and inserted "unless he is engaged in a program or curriculum sponsored by or conducted with permission of a public, private or parochial school" at the end; added present subsection C, and redesignated former subsections C and D as present subsections D and E; and deleted the last sentence of present subsection D, which formerly read: "In addition, subsection B shall not apply to any otherwise lawful discharge while actually engaged in lawful hunting, a program or curriculum sponsored by or conducted with permission of the school or while in or on an established shooting range."

The 2005 amendments. - The 2005 amendment by c. 928 substituted "religious" for "parochial" twice in subsection B and in subsection C.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

CASE NOTES

Construction. - Subsection A of § 18.2-280 , unlike § 18.2-282 , the gravamen of 18.2-280 is not narrowly limited to the effect of the discharge on an observer, but rather, it also includes the physical danger the discharge of a firearm in such a place would pose to the general public; it is axiomatic that an object with the mere appearance of a firearm cannot be discharged, and including such objects in the definition would impermissibly expand the statute. Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Sections 18.2-280 and 18.2-282 are contained in Article 4 of Chapter 7 of Title 18.2 of the Code entitled "Dangerous Use Of Firearms and Other Weapons," the definition of "firearm" in Subsection C of § 18.2-282 serves the intended purpose of § 18.2-280 , and this definition also serves the interest of giving consistent meaning to the language used by the General Assembly in similar statutes; therefore the definition of firearm in Subsection C of § 18.2-282 is the appropriate definition of "firearm" for § 18.2-280 . Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Definition of "school property" in subsection C. - Evidence that defendant discharged a firearm within 1,000 feet of the property line of "school property" was sufficient to support defendant's conviction under subsection C of this section, because there was nothing in subsection C that distinguished between schools that lease facilities and those that did not, or limited its application to schools that were in session or occupied. King v. Commonwealth, 53 Va. App. 257, 670 S.E.2d 767, 2009 Va. App. LEXIS 1 (2009).

Public property. - Proof that a defendant fired a firearm from property owned by the government is required under subsection C of § 18.2-280 . Cuffee v. Commonwealth, 61 Va. App. 353, 735 S.E.2d 693, 2013 Va. App. LEXIS 7 (2013).

Testimony that defendant shot from the rear of a vehicle parked on a street supported the trial court's conclusion that defendant shot from the street, which was public property; therefore, defendant's conviction under subsection C of § 18.2-280 was proper. Cuffee v. Commonwealth, 61 Va. App. 353, 735 S.E.2d 693, 2013 Va. App. LEXIS 7 (2013).

Relationship with other law. - District court did not clearly err in enhancing defendant's sentence on the ground that he possessed the firearm in connection with another felony offense; the testimonial and forensic evidence supported the finding that defendant fired the series of shots outside a nightclub, wounding a witness, which constituted a felony under Virginia law. United States v. Wallace,, 2012 U.S. App. LEXIS 10423 (4th Cir. May 22, 2012), cert. denied, 133 S. Ct. 452, 2012 U.S. LEXIS 7834, 184 L. Ed. 2d 277 (U.S. 2012).

Plain language of § 18.2-280 , as supported by later acts of Virginia's legislature and by decisions of its appellate courts, prohibited conduct involving the use of "any firearm," including antique firearms, and thus petitioner was not required to identify a prosecution under the Virginia statute involving an antique firearm to defend against removal. Because the conduct punishable under § 18.2-280 was broader than the conduct encompassed by the federal definition of a "firearm offense" that applied to the INA removal statute, petitioner's conviction under the Virginia statute was not a basis for his removal. Gordon v. Barr, 965 F.3d 252, 2020 U.S. App. LEXIS 21188 (4th Cir. 2020).

Election of which offense to prosecute. - Trial court erred in convicting defendant of both use of a firearm in the commission of a felony and discharge of a firearm in a public place because, while the jury was properly instructed and the evidence was sufficient to convict defendant, the trial court erred in not requiring the Commonwealth to elect which offense it would prosecute where the second statute gave the Commonwealth a choice as to which offense to prosecute. Green v. Commonwealth, No. 0344-17-1, 2018 Va. App. LEXIS 36 (Feb. 13, 2018).

Sufficient evidence. - Evidence was sufficient to support defendant's convictions for discharging a firearm in public, brandishing a firearm, and possession of a firearm by a convicted felon because he discharged a firearm multiple times in a public place; there was no need to determine make, model, and caliber when the law required a weapon designed to expel single or multiple projectiles, and defendant showed that capability in front of multiple witnesses, one of whom was an experienced law-enforcement officer. Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Applied in United States v. Smith, 727 F. Supp. 1023 (W.D. Va. 1990); Ellis v. Commonwealth, 281 Va. 499 , 706 S.E.2d 849, 2011 Va. LEXIS 46 (2011).

§ 18.2-281. Setting spring gun or other deadly weapon.

It shall be unlawful for any person to set or fix in any manner any firearm or other deadly weapon so that it may be discharged or activated by a person coming in contact therewith or with any string, wire, spring, or any other contrivance attached thereto or designed to activate such weapon remotely. Any person violating this section shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-69.1; 1966, c. 422; 1975, cc. 14, 15.)

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

  1. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.
  2. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
  3. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.

    (Code 1950, § 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)

The 2003 amendments. - The 2003 amendment by c. 976, in subsection A, substituted "or any air or gas operated weapon" for "as hereinafter described" following "brandish any firearm," deleted "to a firearm" following "appearance," and inserted "or any air or gas operated weapon" preceding "in a public place"; substituted "or air or gas operated weapon, or object that was similar in appearance" for "or object which was similar in appearance to a firearm" in subsection B; and substituted "means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material" for "shall mean any weapon in which ammunition may be used or discharged by explosion or pneumatic pressure" in subsection C.

The 2005 amendments. - The 2005 amendment by c. 928 substituted "religious" for "parochial" in the last sentence of subsection A.

Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 9.

CASE NOTES

Elements of offense. - There are two elements of the offense: (1) pointing or brandishing a firearm; and (2) doing so in such a manner as to reasonably induce fear in the mind of a victim. Kelsoe v. Commonwealth, 226 Va. 197 , 308 S.E.2d 104 (1983).

Gravamen of offense is inducement of fear. - In this section, the General Assembly clearly proscribed an offense against the person. The gravamen of the offense is the inducement of fear in another. Kelsoe v. Commonwealth, 226 Va. 197 , 308 S.E.2d 104 (1983).

Defining "firearm." - Whether the term "firearm" when used in a statute without being defined is to be given its traditional meaning or a more expansive meaning depends upon the purpose and policy underlying the particular statute. When the statute is designed not only to deter physical harm, a more expansive definition of "firearm" is required in order to effectuate that purpose. On the other hand, when a statute is designed only to proscribe the act of possessing a firearm or the conduct of a felon in order to reduce a real threat of harm to the public, a narrower, more traditional definition of "firearm" is required. Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), overruled in part, Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641 (2001).

Sections 18.2-280 and 18.2-282 are contained in Article 4 of Chapter 7 of Title 18.2 of the Code entitled "Dangerous Use Of Firearms and Other Weapons," the definition of "firearm" in subsection C of § 18.2-282 serves the intended purpose of § 18.2-280 , and this definition also serves the interest of giving consistent meaning to the language used by the General Assembly in similar statutes; therefore the definition of firearm in subsection C of § 18.2-282 is the appropriate definition of "firearm" for § 18.2-280 . Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Where there is no evidence that fear by victim was intended or resulted, this section is not applicable. Bailey v. Commonwealth, 5 Va. App. 331, 362 S.E.2d 750 (1987).

Multiple punishment for pointing firearm at several people is not double jeopardy. - Where defendant pointed the pistol toward three men and each was afraid and backed away from the defendant, imposition of three punishments did not constitute double jeopardy. Kelsoe v. Commonwealth, 226 Va. 197 , 308 S.E.2d 104 (1983).

Conviction for brandishing a firearm and assault did not violate double jeopardy. - Because defendant's commission of an assault and the brandishing of a firearm were two distinct and separate acts, separated in time and space, and each conviction was sustained by different evidence, his double jeopardy rights were not violated. Jackson v. Commonwealth,, 2008 Va. App. LEXIS 251 (May 27, 2008).

Privilege to protect property is defense to section. - The trial judge erred in not permitting defendant, charged under this section, from asserting the defense of privilege to protect property from an armed trespasser. Diffendal v. Commonwealth, 8 Va. App. 417, 382 S.E.2d 24 (1989).

Brandishing shotgun disproportionate force where cable workers unarmed. - The brandishing of the shotgun by defendant was disproportionate to any threat posed by the unarmed cable workers, irrespective of the legality of the cable company's conduct. Pike v. Commonwealth, 24 Va. App. 373, 482 S.E.2d 839 (1997).

Inadvertent sighting insufficient. - The elements of this section are not proved beyond a reasonable doubt when the evidence merely proved that a person holding a firearm was inadvertently seen by another. Thus, the evidence did not prove beyond a reasonable doubt that defendant held the gun in such a manner as to reasonably induce fear in the mind of another. Crewe v. Commonwealth, No. 2709-95-2 (Ct. of Appeals Oct. 29, 1996).

Sufficient evidence of brandishing. - Where record disclosed that defendant's sister excitedly called upon defendant to "give her the gun," prompting him to rush toward the residence, armed with a .44 or .45 caliber pistol; a "clicking sound" was heard as defendant loaded a "clip" of ammunition into the weapon, and he yelled "I'll F[ ] all you M[ ] F[ ]ers up."; defendant entered the home, waving the gun about and pointing it at people inside, and demanded, "Who in the f[ ] hit my sister?"; and four persons present during the offenses identified the weapon as a "gray gun," with a long barrel; the jury properly concluded that the defendant possessed an actual firearm and brandished it at those present in the residence. Britt v. Commonwealth, No. 0679-96-1 (Ct. of Appeals Apr. 15, 1997).

Defendant's conviction of brandishing a firearm was supported by sufficient evidence, as defendant's act of showing the victim a flare gun in defendant's waistband constituted brandishing, and the action induced fear in the victim. Morris v. Commonwealth, 269 Va. 127 , 607 S.E.2d 110, 2005 Va. LEXIS 3 (2005).

Evidence was sufficient to prove that defendant violated subsection A of § 18.2-282 as to the owner of a house because the owner's request of defendant to put his gun away was sufficient evidence of the owner's requisite apprehension of bodily harm; the owner's apprehension was further confirmed by her testimony that defendant was only deterred from brandishing his gun by the threat of police intervention. Huffman v. Commonwealth, 51 Va. App. 469, 658 S.E.2d 713, 2008 Va. App. LEXIS 165 (2008).

Sufficient evidence supported defendant's conviction for brandishing a firearm because the trial court's finding that he did not act in self-defense was not plainly wrong, as (1) neither victim displayed or threatened to use a firearm or other weapon on the date of the crime, (2) a statement of facts indicated the victims were not armed, (3) there was no evidence that the victims' shouts at defendant evidenced an intent to inflict bodily harm on defendant, (4) while defendant fled when the victims arrived at the crime's location, the fact-finder could conclude that defendant did not prove defendant reasonably apprehended a danger to defendant, (5) while a victim had held defendant at gunpoint two years earlier, which would have supported a finding that defendant could reasonably have feared for defendant's safety when the victims confronted defendant at the time of the crime, the trier of fact could conclude defendant did not prove defendant harbored such fear on that date. Swilling v. Commonwealth,, 2011 Va. App. LEXIS 169 (May 17, 2011).

Evidence supported defendant's conviction for brandishing a firearm because he pointed an object at multiple individuals in a manner intended to induce fear based upon its appearance as a weapon capable of firing one or more times, and his actions were legally sufficient to establish the requisite elements of brandishing a firearm; the fact that he also actually fired the gun several times merely confirms and corroborates witnesses' testimony that the gun was what it appeared to be, a firearm. Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Evidence was sufficient to support defendant's convictions for discharging a firearm in public, brandishing a firearm, and possession of a firearm by a convicted felon because he discharged a firearm multiple times in a public place; there was no need to determine make, model, and caliber when the law required a weapon designed to expel single or multiple projectiles, and defendant showed that capability in front of multiple witnesses, one of whom was an experienced law-enforcement officer. Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Privilege to protect property no defense. - A deadly weapon may not be brandished solely in defense of personal property. Commonwealth v. Alexander, 260 Va. 238 , 531 S.E.2d 567 (2000).

A defendant was properly convicted of brandishing a firearm where he had retrieved a rifle from his house and pointed it at an agent who had been sent by a lienholder to repossess the defendant's motor vehicle; the defendant's threat to use deadly force constituted assault and as such, was an illegal response to a threat to property. Commonwealth v. Alexander, 260 Va. 238 , 531 S.E.2d 567 (2000).

Defendant's motion to suppress was denied where the officers had sufficient probable cause to arrest defendant on the charge of brandishing a firearm once they had: (i) arrived at the mall parking lot in response to a reported brandishing incident; (ii) been directed to the purported suspect by the victim of the offense, who remained present at the scene, still on the telephone with the 911 emergency operator; (iii) corroborated the detailed description of the suspect and vehicle that had been provided earlier by the victim in the course of the 911 telephone call; and (iv) observed defendant engaging in evasive and agitated behavior at the scene, i.e., attempting to drive his vehicle out of the parking lot upon spotting the officers, moving his arms and hands about in an animated manner and repeatedly reaching for the driver's side rear door once standing outside the vehicle. United States v. Beckham, 325 F. Supp. 2d 678, 2004 U.S. Dist. LEXIS 13848 (E.D. Va. 2004).

Elements of offense in relation to federal RICO indictment. - Defendants sought dismissal of counts under 18 U.S.C.S. §§ 1959 and 924(c), of the indictment on the ground that the elements of Virginia's malicious or unlawful wounding statute, § 18.2-51 , and brandishing statute, § 18.2-282 , the state laws that the charged assaults allegedly violated, did not match - element-by-element - with the elements of assault with a dangerous weapon under federal law, but, the elements of malicious or unlawful wounding under Virginia law were adequately similar to those of assault with a dangerous weapon and aggravated assault as generically defined, the indictment charging assault with a dangerous weapon was sufficient, and the motion to dismiss was denied. United States v. Cuong Gia Le, 316 F. Supp. 2d 355, 2004 U.S. Dist. LEXIS 7786 (E.D. Va. 2004).

Not a lesser included offense. - Brandishing a firearm is not a lesser included offense of robbery given that robbery did not require the use of a firearm, and brandishing did not require the taking of property; thus, it was clear that robbery could be committed without brandishing and brandishing could be committed without the taking of property. Morris v. Commonwealth, 45 Va. App. 181, 609 S.E.2d 92, 2005 Va. App. LEXIS 79 (2005).

Brandishing not lesser-included offense of use of firearm in commission of felony. - Word "threaten" means to utter threats against, promise punishment, reprisal, or other distress to, whereas the word "induce" means to move and lead, to bring in, or to bring on or bring about: effect, cause; thus, in cases involving the threatening display of a firearm under § 18.2-53.1 , the defendant must display his or her firearm to promise punishment, reprisal or other distress to the victim, whereas in cases involving brandishing under § 18.2-282 , the defendant must merely brandish or display a firearm in such a manner as to reasonably bring about or cause fear in the mind of the victim, and while the concepts are concededly similar, they are not the same. Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

It is possible to brandish a firearm during a violation for § 18.2-53.1 because brandishing often does occur when one uses or displays a firearm in the commission of a felony; nevertheless, the prosecution is not required to prove a criminal defendant actually brandished his or her firearm in order to obtain a conviction under § 18.2-53.1 because § 18.2-53.1 is written in the disjunctive, prohibiting either the actual use of a firearm, or the display of a firearm in a threatening manner, and thus, the Commonwealth can obtain a conviction under § 18.2-53.1 if it proves the defendant "used or attempted to use" his or her firearm, even in the absence of evidence that the defendant brandished it, but the prosecution is not required to prove the defendant displayed his or her firearm in a threatening manner to obtain a conviction for brandishing a firearm under § 18.2-282 . Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Because it is possible to commit a violation of § 18.2-53.1 without brandishing a firearm, and because one can brandish a firearm without also committing a violation of § 18.2-53.1 , the act of brandishing is not a lesser-included offense of use of a firearm in the commission of a felony; viewed in the abstract, these code sections each require proof of a fact that the other does not because the offense of using a firearm in the commission of a felony requires proof that the defendant either used or attempted to use a firearm or that he or she displayed a firearm in a threatening manner during the commission or attempt to commit one of the felonies enumerated in the statute, and thus, in such cases, the Commonwealth must prove that the defendant used or threateningly displayed the firearm expressly to assist him or her in attempting or completing a specified underlying criminal act, but, in a prosecution for the act of brandishing, the Commonwealth must merely prove that the defendant pointed, held or brandished a firearm in a manner that reasonably induced fear in the mind of some nearby person. Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Trial court erred in convicting defendant of brandishing a firearm in violation of § 18.2-282 as a lesser-included offense of use of a firearm in the commission of a felony, § 18.2-53.1 , because brandishing under § 18.2-282 was not a lesser-included offense of use of a firearm in the commission of a felony under § 18.2-53.1 ; the Commonwealth can obtain a conviction for use of a firearm during the commission of a felony without proof that the defendant brandished the firearm, and a conviction for brandishing without also proving use of the firearm in the commission of a felony, and although the evidence presented to prove the former offense may, overlap with the evidence used to prove the latter, the Commonwealth must submit proof of completely different elements for a finding of guilt as to each separate offense, and thus, these offenses are different for purposes of Blockburger . Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (2011).

Severance not required. - Trial court did not abuse its discretion when it declined to sever the charges of possession of a firearm by a felon, in violation of § 18.2-308.2 , from the charges of carrying a concealed weapon and felony brandishing of a firearm, because the brandishment charges required the Commonwealth to also show a prior felony conviction, and defendant was thus not prejudiced by the introduction of the prior convictions at trial. Ellis v. Commonwealth,, 2006 Va. App. LEXIS 235 (Apr. 18, 2006).

Jury instructions. - Because the jury instructions on concert of action fully and fairly covered the principle of law, and because defendant acted with an accomplice pursuant to a scheme that involved robbing the victim with a gun, defendant was accountable for the victim's death; consequently, defendant was properly convicted of first-degree murder and use of a firearm during the commission of a felony. Baker v. Commonwealth,, 2010 Va. App. LEXIS 507 (Mar. 31, 2010).

Applied in Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206, 2003 Va. App. LEXIS 37 (2003); Myers v. Shaver, 245 F. Supp. 2d 805, 2003 U.S. Dist. LEXIS 2547 (W.D. Va. 2003).

CIRCUIT COURT OPINIONS

No evidence of fear. - In an action involving an eye injury sustained when a BB pellet was fired from a car, demurrers to two negligence per se counts were sustained because there was no allegation that the BB gun was brandished or held in a manner to reasonably induce fear in the mind of anyone, as required to sustain a cause of action under § 18.2-282 . Selph v. Elbourn, 79 Va. Cir. 536, 2009 Va. Cir. LEXIS 139 (Lancaster County Nov. 25, 2009).

OPINIONS OF THE ATTORNEY GENERAL

Voter intimidation. - Where activity near polling places makes voters fear for their safety while waiting to cast their vote, or leads them to believe that they would be harmed for supporting a particular candidate, such activity may be considered harassment of a voter under state and federal law. See opinion of Attorney General to The Honorable Marcus B. Simon, Member, Virginia House of Delegates, 20-046, 2020 Va. AG LEXIS 31 (9/24/20).

§ 18.2-282.1. Brandishing a machete or other bladed weapon with intent to intimidate; penalty.

It shall be unlawful for any person to point, hold, or brandish a machete or any weapon, with an exposed blade 12 inches or longer, with the intent of intimidating any person or group of persons and in a manner that reasonably demonstrates that intent. This section shall not apply to any person engaged in excusable or justifiable self-defense. A person who violates this section is guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private, or religious elementary, middle, or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he is guilty of a Class 6 felony.

(2006, cc. 844, 895.)

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

§ 18.2-283. Carrying dangerous weapon to place of religious worship.

If any person carry any gun, pistol, bowie knife, dagger or other dangerous weapon, without good and sufficient reason, to a place of worship while a meeting for religious purposes is being held at such place he shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-241; 1960, c. 358; 1962, c. 411; 1975, cc. 14, 15.)

Applied in Cabral v. Commonwealth, 69 Va. App. 67, 815 S.E.2d 805, 2018 Va. App. LEXIS 190 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Personal protection constitutes a good and sufficient reason. - Carrying a weapon for personal protection constitutes a good and sufficient reason under § 18.2-283 to carry a weapon into a place of worship while a meeting for religious purposes is being held there, but places of worship can restrict or ban firearms from their premises. See opinion of Attorney General to The Honorable Mark L. Cole, Member, House of Delegates, 11-043, 2011 Va. AG LEXIS 23 (4/8/11).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 4.1.

§ 18.2-283.1. Carrying weapon into courthouse.

It is unlawful for any person to possess in or transport into any courthouse in this Commonwealth any (i) gun or other weapon designed or intended to propel a missile or projectile of any kind; (ii) frame, receiver, muffler, silencer, missile, projectile, or ammunition designed for use with a dangerous weapon; or (iii) other dangerous weapon, including explosives, stun weapons as defined in § 18.2-308 .1, and those weapons specified in subsection A of § 18.2-308 . Any such weapon shall be subject to seizure by a law-enforcement officer. A violation of this section is punishable as a Class 1 misdemeanor.

The provisions of this section shall not apply to any police officer, sheriff, law-enforcement agent or official, conservation police officer, conservator of the peace, magistrate, court officer, judge, city or county treasurer, or commissioner or deputy commissioner of the Virginia Workers' Compensation Commission while in the conduct of such person's official duties.

(1988, c. 615; 2004, c. 995; 2007, cc. 87, 519; 2012, c. 295; 2017, c. 761.)

The 2004 amendments. - The 2004 amendment by c. 995 deleted "and upon the person's conviction, the weapon seized shall be forfeited to the Commonwealth and disposed of as provided in subsection A of § 18.2-308 " at the end of the first paragraph.

The 2007 amendments. - The 2007 amendment by c. 87 substituted "conservation police officer" for "game warden" in the second paragraph.

The 2007 amendment by c. 519 substituted "stun weapons as defined in § 18.2-308.1 " for "tasers, stun weapons" in clause (iii) of the first paragraph.

The 2012 amendments. - The 2012 amendment by c. 295, in the last paragraph, inserted "or city or county treasurer" and made a related change.

The 2017 amendments. - The 2017 amendment by c. 761, in the first paragraph, substituted "It is unlawful" for "It shall be unlawful" at the beginning, substituted "or" for "and" at the end of clause (ii), deleted "any" at the beginning of clause (iii); in the second paragraph, inserted "or commissioner or deputy commissioner of the Virginia Workers' Compensation Commission"; and made minor stylistic changes.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, §§ 2, 4.1.

OPINIONS OF THE ATTORNEY GENERAL

Carrying weapon in court building. - It is legally permissible to prohibit weapons in all parts of a courthouse, including those areas occupied by constitutional officers and county employees. See opinion of Attorney General to The Honorable Robert P. Mosier, Fauquier County Sheriff, 16-053, 2016 Va. AG LEXIS 32 (12/9/16).

Voter intimidation. - Where activity near polling places makes voters fear for their safety while waiting to cast their vote, or leads them to believe that they would be harmed for supporting a particular candidate, such activity may be considered harassment of a voter under state and federal law. See opinion of Attorney General to The Honorable Marcus B. Simon, Member, Virginia House of Delegates, 20-046, 2020 Va. AG LEXIS 31 (9/24/20).

§ 18.2-283.2. Carrying a firearm or explosive material within Capitol Square and the surrounding area, into a building owned or leased by the Commonwealth, etc.; penalty.

  1. For the purposes of this section, "Capitol Square and the surrounding area" means (i) the grounds, land, real property, and improvements in the City of Richmond bounded by Bank, Governor, Broad, and Ninth Streets, and the sidewalks of Bank Street extending from 50 feet west of the Pocahontas Building entrance to 50 feet east of the entrance of the Capitol of Virginia.
  2. It is unlawful for any person to carry any firearm as defined in § 18.2-308.2:2 or explosive material as defined in § 18.2-308.2 within (i) the Capitol of Virginia; (ii) Capitol Square and the surrounding area; (iii) any building owned or leased by the Commonwealth or any agency thereof; or (iv) any office where employees of the Commonwealth or any agency thereof are regularly present for the purpose of performing their official duties.
  3. A violation of this section is punishable as a Class 1 misdemeanor. Any firearm or explosive material carried in violation of this section shall be subject to seizure by a law-enforcement officer and forfeited to the Commonwealth and disposed of as provided in § 19.2-386.28 .
  4. The provisions of this section shall not apply to the following while acting in the conduct of such person's official duties: (i) any law-enforcement officer as defined in § 9.1-101 ; (ii) any authorized security personnel; (iii) any active military personnel; (iv) any fire marshal appointed pursuant to § 27-30 when such fire marshal has police powers provided by § 27-34.2:1 ; or (v) any member of a cadet corps who is recognized by a public institution of higher education while such member is participating in an official ceremonial event for the Commonwealth.
  5. The provisions of clauses (iii) and (iv) of subsection B shall not apply to (i) any retired law-enforcement officer qualified pursuant to subsection C of § 18.2-308.016 who is visiting a gun range owned or leased by the Commonwealth; (ii) any of the following employees authorized to carry a firearm while acting in the conduct of such employee's official duties: (a) a bail bondsman as defined in § 9.1-185 , (b) an employee of the Department of Corrections or a state juvenile correctional facility, (c) an employee of the Department of Conservation and Recreation, or (d) an employee of the Department of Wildlife Resources; (iii) any individual carrying a weapon into a courthouse who is exempt under § 18.2-283.1 ; (iv) any property owned or operated by a public institution of higher education; (v) any state park; or (vi) any magistrate acting in the conduct of the magistrate's official duties.
  6. Notice of the provisions of this section shall be posted conspicuously along the boundary of Capitol Square and the surrounding area and at the public entrance of each location listed in subsection B, and no person shall be convicted of an offense under subsection B if such notice is not posted at such public entrance, unless such person had actual notice of the prohibitions in subsection B.

    (2021, Sp. Sess. I, cc. 527, 548.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 527 and 548, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Effective date. - This section is effective July 1, 2021.

§ 18.2-284. Selling or giving toy firearms.

No person shall sell, barter, exchange, furnish, or dispose of by purchase, gift or in any other manner any toy gun, pistol, rifle or other toy firearm, if the same shall, by action of an explosion of a combustible material, discharge blank or ball charges. Any person violating the provisions of this section shall be guilty of a Class 4 misdemeanor. Each sale of any of the articles hereinbefore specified to any person shall constitute a separate offense.

Nothing in this section shall be construed as preventing the sale of what are commonly known as cap pistols.

(Code 1950, § 18.1-347; 1960, c. 348; 1975, cc. 14, 15; 2003, c. 976.)

The 2003 amendments. - The 2003 amendment by c. 976 substituted "action of an explosion of a combustible material" for "means of powder or other explosive" in the first paragraph.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 12.

CASE NOTES

Defining "firearm." - Whether the term "firearm" when used in a statute without being defined is to be given its traditional meaning or a more expansive meaning depends upon the purpose and policy underlying the particular statute. When the statute is designed not only to deter physical harm, a more expansive definition of "firearm" is required in order to effectuate that purpose. On the other hand, when a statute is designed only to proscribe the act of possessing a firearm or the conduct of a felon in order to reduce a real threat of harm to the public, a narrower, more traditional definition of "firearm" is required. Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), overruled in part, Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641 (2001).

§ 18.2-285. Hunting with firearms while under influence of intoxicant or narcotic drug; penalty.

It shall be unlawful for any person to hunt wildlife with a firearm, bow and arrow, slingbow, arrowgun, or crossbow in the Commonwealth while he is (i) under the influence of alcohol; (ii) under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree that impairs his ability to hunt with a firearm, bow and arrow, slingbow, arrowgun, or crossbow safely; or (iii) under the combined influence of alcohol and any drug or drugs to a degree that impairs his ability to hunt with a firearm, bow and arrow, slingbow, arrowgun, or crossbow safely. Any person who violates the provisions of this section is guilty of a Class 1 misdemeanor. Conservation police officers, sheriffs, and all other law-enforcement officers shall enforce the provisions of this section.

(Code 1950, § 29-140.1; 1952, c. 96; 1962, c. 469; 1975, cc. 14, 15; 1999, c. 543; 2005, c. 507; 2017, c. 530; 2018, cc. 557, 558.)

Editor's note. - At the direction of the Virginia Code Commission, "Conservation police officers" was substituted for "Game wardens" in the last sentence, to conform to the name change by Acts 2007, c. 87.

The 1999 amendment substituted "Class 2" for "Class 3."

The 2005 amendments. - The 2005 amendment by c. 507 rewrote the section.

The 2017 amendments. - The 2017 amendment by c. 530 inserted "slingbow" three times and deleted "of Virginia" following "Commonwealth."

The 2018 amendments. - The 2018 amendments by cc. 557 and 558 are identical, and inserted "arrowgun" three times.

Applied in Fredericksburg Constr. Co. v. J.W. Wyne Excavating, Inc., 260 Va. 137 , 530 S.E.2d 148, 2000 Va. LEXIS 106 (2000).

§ 18.2-286. Shooting in or across road or in street.

If any person discharges a firearm, crossbow, slingbow, arrowgun, or bow and arrow in or across any road, or within the right-of-way thereof, or in a street of any city or town, he shall, for each offense, be guilty of a Class 4 misdemeanor.

The provisions of this section shall not apply to firing ranges or shooting matches maintained, and supervised or approved, by law-enforcement officers and military personnel in performance of their lawful duties.

(Code 1950, § 33.1-349; 1970, c. 322; 1975, cc. 14, 15; 1993, c. 322; 1994, c. 18; 2017, c. 530; 2018, cc. 557, 558.)

The 2017 amendments. - The 2017 amendment by c. 530 inserted "slingbow" in the first sentence.

The 2018 amendments. - The 2018 amendments by cc. 557 and 558 are identical, and inserted "arrowgun" in the first paragraph.

OPINIONS OF THE ATTORNEY GENERAL

Forfeiture of weapons. - With very rare possible exceptions, subsection A of § 29.1-521.2 establishes the procedure to be used in forfeiting a firearm used by a person convicted of violating this section. The court convicting the violator has the discretion to declare a forfeiture of the firearm used in the crime. See opinion of Attorney General to The Honorable Phillip C. Steele, Commonwealth's Attorney for Giles County, 05-047 (8/19/05).

The Commonwealth's attorney of the county or city wherein the forfeiture of a firearm was incurred must file an information to enforce that forfeiture in the circuit court of his county or city. See opinion of Attorney General to The Honorable Phillip C. Steele, Commonwealth's Attorney for Giles County, 05-047 (8/19/05).

§ 18.2-286.1. Shooting from vehicles so as to endanger persons; penalty.

Any person who, while in or on a motor vehicle, intentionally discharges a firearm so as to create the risk of injury or death to another person or thereby cause another person to have a reasonable apprehension of injury or death shall be guilty of a Class 5 felony. Nothing in this section shall apply to a law-enforcement officer in the performance of his duties.

(1990, c. 951.)

Cross references. - For definition of "barrier crime" as including a conviction of drive by shooting as set out in § 18.2-286.1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

CASE NOTES

Construction. - Interpreting § 18.2-154 to include firing shots while seated in a vehicle did not render § 18.2-286.1 , barring firing shots while seated in a motor vehicle, superfluous because (1) the existence of a similar but not identical statutes did not alter a court's duty to construe a statute according to the statute's plain language, (2) the statutes were textually and conceptually different, despite some overlap between the conduct the statutes barred, and the fact that separate statutes overlapped in the statutes' proscription of specific conduct did not detract from the statutes' independent enforcement except when double jeopardy concerns were implicated. Jones v. Commonwealth, 296 Va. 412 , 821 S.E.2d 540, 2018 Va. LEXIS 174 (2018).

Multiple shots constitute multiple violations. - This statute does not proscribe a continuous course of conduct; rather, each offense is complete upon the firing of one shot when the life of another is endangered and a defendant who fires multiple shots from one motor vehicle may thus be convicted of multiple violations of the statute. Stephens v. Commonwealth, 35 Va. App. 141, 543 S.E.2d 609, 2001 Va. App. LEXIS 134 (2001), aff'd, 263 Va. 58 , 557 S.E.2d 227 (2002).

Lack of jurisdiction. - In a case in which defendant appealed his conviction for violating §§ 18.2-51 , 18.2-53.1 , and 18.2-286.1 , he argued that evidence of other crimes was inadmissible. The appellate court lacked jurisdiction to consider his argument as it was not presented in the assignment of error on his brief, as required by Va. Sup. Ct. R. 5A:12(c)(1), and was not included as part of the assignment of error on which the appeal was granted at the petition stage. Wyche v. Commonwealth,, 2012 Va. App. LEXIS 227 (July 10, 2012).

Evidence insufficient. - The evidence was held insufficient to sustain the convictions under this statute. Morris v. Commonwealth, 21 Va. App. 306, 464 S.E.2d 169 (1995).

§ 18.2-287.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions authorizing counties to regulate carrying of loaded firearms on public highways, see § 15.2-1209.1 .

§ 18.2-287.01. Carrying weapon in air carrier airport terminal.

It shall be unlawful for any person to possess or transport into any air carrier airport terminal in the Commonwealth any (i) gun or other weapon designed or intended to propel a missile or projectile of any kind, (ii) frame, receiver, muffler, silencer, missile, projectile or ammunition designed for use with a dangerous weapon, and (iii) any other dangerous weapon, including explosives, stun weapons as defined in § 18.2-308 .1, and those weapons specified in subsection A of § 18.2-308 . Any such weapon shall be subject to seizure by a law-enforcement officer. A violation of this section is punishable as a Class 1 misdemeanor. Any weapon possessed or transported in violation of this section shall be forfeited to the Commonwealth and disposed of as provided in § 19.2-386.28 .

The provisions of this section shall not apply to any police officer, sheriff, law-enforcement agent or official, conservation police officer, conservator of the peace employed by the air carrier airport, or retired law-enforcement officer qualified pursuant to subsection C of § 18.2-308.016 , nor shall the provisions of this section apply to any passenger of an airline who, to the extent otherwise permitted by law, transports a lawful firearm, weapon, or ammunition into or out of an air carrier airport terminal for the sole purposes, respectively, of (i) presenting such firearm, weapon, or ammunition to U.S. Customs agents in advance of an international flight, in order to comply with federal law, (ii) checking such firearm, weapon, or ammunition with his luggage, or (iii) retrieving such firearm, weapon, or ammunition from the baggage claim area.

Any other statute, rule, regulation, or ordinance specifically addressing the possession or transportation of weapons in any airport in the Commonwealth shall be invalid, and this section shall control.

(2004, c. 894; 2007, cc. 87, 519; 2013, c. 746; 2016, c. 257.)

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

The 2007 amendments. - The 2007 amendment by c. 87 substituted "conservation police officer" for "game warden" near the beginning of the second paragraph.

The 2007 amendment by c. 519 substituted "stun weapons as defined in § 18.2-308.1 " for "tasers, stun weapons" in clause (iii) of the first sentence in the first paragraph.

The 2013 amendments. - The 2013 amendment by c. 746 substituted " § 19.2-386.28 " for "subsection A of § 18.2-308 " at the end of the first paragraph.

The 2016 amendments. - The 2016 amendment by c. 257 inserted "or retired law-enforcement officer qualified pursuant to subsection C of § 18.2-308.016 " and made a related change in the second paragraph.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

§ 18.2-287.1.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions concerning regulation of transportation of loaded rifle or shotgun, see § 15.2-915.2 .

§ 18.2-287.2. Wearing of body armor while committing a crime; penalty.

Any person who, while committing a crime of violence as defined in § 18.2-288 (2) or a felony violation of § 18.2-248 or subdivision (a) 2 or 3 of § 18.2-248.1 , has in his possession a firearm or knife and is wearing body armor designed to diminish the effect of the impact of a bullet or projectile shall be guilty of a Class 4 felony.

(1990, c. 936; 1997, c. 311.)

The 1997 amendment substituted "defined" for "described" and inserted "or a felony violation of § 18.2-248 or subdivisions (a) 2 or 3 of § 18.2-248.1 " preceding "has in his possession a firearm."

CASE NOTES

Sufficient evidence. - Sufficient evidence supported defendant's conviction for wearing body armor while committing a crime, as a police officer testified without objection that defendant was wearing a bulletproof vest, and defendant stated that the vest was body armor. Jones v. Commonwealth, No. 1201-08-1,, 2009 Va. App. LEXIS 44 (Ct. of Appeals Feb. 3, 2009), aff'd, 279 Va. 295 , 687 S.E.2d 738 (2010).

Not only was there no dispute that defendant was wearing a bulletproof vest when he committed statutory burglary, but the finder of fact was entitled to rely on the uncontested and uncontradicted testimony in determining whether defendant violated § 18.2-287.2 . Jones v. Commonwealth, 279 Va. 295 , 687 S.E.2d 738, 2010 Va. LEXIS 4 (2010).

§ 18.2-287.3.

Repealed by Acts 1993, cc. 467, 494.

Cross references. - As to present provisions relating to possession or transportation of certain firearms by persons under the age of eighteen, see § 18.2-308.7 .

§ 18.2-287.4. Carrying loaded firearms in public areas prohibited; penalty.

It shall be unlawful for any person to carry a loaded (a) semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine that will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered on or about his person on any public street, road, alley, sidewalk, public right-of-way, or in any public park or any other place of whatever nature that is open to the public in the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William.

The provisions of this section shall not apply to law-enforcement officers, licensed security guards, military personnel in the performance of their lawful duties, or any person having a valid concealed handgun permit or to any person actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

The exemptions set forth in §§ 18.2-308 and 18.2-308.016 shall apply, mutatis mutandis, to the provisions of this section.

(1991, c. 570; 1992, c. 790; 2003, c. 976; 2004, c. 995; 2005, c. 160; 2007, c. 813; 2016, c. 257.)

Editor's note. - Acts 2007, c. 813, cl. 2, provides: "That the provisions of this act shall not affect the powers of any locality with respect to any ordinance, resolution or bylaw validly adopted and not repealed or rescinded prior to July 1, 2007."

The 2003 amendments. - The 2003 amendment by c. 976 rewrote clause (i) in the second paragraph, which formerly read: "semi-automatic center-fire rifle or pistol which expels a projectile by action of an explosion and is equipped at the time of the offense with a magazine which will hold more than twenty rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or."

The 2004 amendments. - The 2004 amendment by c. 995 deleted the next-to-last paragraph, which formerly read: "Any firearm carried in violation of this section may be forfeited to the Commonwealth pursuant to the provisions of § 18.2-308 ."

The 2005 amendments. - The 2005 amendment by c. 160 inserted clause (a), substituted "(b) shotgun with a magazine that will hold more than seven rounds of the longest ammunition for which it is chambered" for "firearm" near the beginning of the first paragraph, substituted "concealed handgun permit" for "permit to carry such firearm" in the second paragraph, and deleted the former third paragraph defining "firearm."

The 2007 amendments. - The 2007 amendment by c. 813, substituted "the Cities of Alexandria, Chesapeake, Fairfax, Falls Church, Newport News, Norfolk, Richmond, or Virginia Beach or in the Counties of Arlington, Fairfax, Henrico, Loudoun, or Prince William" for "(i) in any city with a population of 160,000 or more or (ii) in any county having an urban county executive form of government or any county or city surrounded thereby or adjacent thereto or in any county having a county manager form of government" in the first paragraph.

The 2016 amendments. - The 2016 amendment by c. 257 substituted " §§ " for " § " and inserted "and 18.2-308.016 " in the last paragraph.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 4.1.

CASE NOTES

Defining "firearm." - Whether the term "firearm" when used in a statute without being defined is to be given its traditional meaning or a more expansive meaning depends upon the purpose and policy underlying the particular statute. When the statute is designed not only to deter physical harm, a more expansive definition of "firearm" is required in order to effectuate that purpose. On the other hand, when a statute is designed only to proscribe the act of possessing a firearm or the conduct of a felon in order to reduce a real threat of harm to the public, a narrower, more traditional definition of "firearm" is required. Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), overruled in part, Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641 (2001).

Firearm carried in "personal, private motor vehicle." - Defendant was properly convicted of carrying a loaded firearm equipped with a high-capacity magazine in public because the exemption for a firearm carried in a personal, private motor vehicle did not apply; because defendant knew that the truck in which he secured the firearm was stolen, it was not "a personal, private motor vehicle" within the meaning of the exemption. Eley v. Commonwealth, 70 Va. App. 158, 826 S.E.2d 321, 2019 Va. App. LEXIS 92 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Local resolutions to opt out of gun safety laws have no legal effect. - Localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact. See opinion of Attorney General to The Honorable Jerrauld C. Jones, Member, Virginia House of Delegates, 19-059, 2019 Va. AG LEXIS 38 (12/20/19).

Carrying concealed handguns in state parks with permit. - The Department of Conservation and Recreation does not have the authority to issue regulations prohibiting, within state parks, the carrying of concealed handguns by valid permit holders. See opinion of Attorney General to The Honorable Richard H. Black, Member, House of Delegates, 02-074 (9/9/02).

Carrying and possession of firearms within state parks. - The Department of Conservation and Recreation does not have the authority to prohibit the carrying and possession of firearms within state parks beyond that currently prohibited by law. See opinion of Attorney General to The Honorable Ken T. Cuccinelli, II, Member, Senate of Virginia, 08-043 (9/26/08).

§ 18.2-287.5. Reporting lost or stolen firearms; civil penalty.

  1. If a firearm is lost or stolen from a person who lawfully possessed it, then such person shall report the loss or theft to any local law-enforcement agency or the Department of State Police within 48 hours after such person discovers the loss or theft or is informed by a person with personal knowledge of the loss or theft. The law-enforcement agency shall enter such report information into the National Crime Information Center maintained by the Federal Bureau of Investigation. The provisions of this subsection shall not apply to the loss or theft of an antique firearm as defined in § 18.2-308.2:2 .
  2. A violation of this section is punishable by a civil penalty of not more than $250. The attorney for the county, city, or town in which an alleged violation of this section has occurred is authorized to enforce the provisions of this section and may bring an action to recover the civil penalty, which shall be paid into the local treasury.
  3. No person who, in good faith, reports a lost or stolen firearm shall be held criminally or civilly liable for any damages from acts or omissions resulting from the loss or theft. This subsection shall not apply to any person who makes a report in violation of § 18.2-461 . (2020, c. 743.)

Article 5. Uniform Machine Gun Act.

§ 18.2-288. Definitions.

When used in this article:

  1. "Machine gun" applies to any weapon which shoots or is designed to shoot automatically more than one shot, without manual reloading, by a single function of the trigger.
  2. "Crime of violence" applies to and includes any of the following crimes or an attempt to commit any of the same, namely, murder, manslaughter, kidnapping, rape, mayhem, assault with intent to maim, disable, disfigure or kill, robbery, burglary, housebreaking, breaking and entering and larceny.
  3. "Person" applies to and includes firm, partnership, association or corporation.

    (Code 1950, § 18.1-258; 1960, c. 358; 1975, cc. 14, 15.)

Uniform law cross references. - For other signatory state provisions, see:

Arkansas: A.C.A. §§ 5-73-201 to 5-73-211.

Maryland: Md. Ann. Code, CR §§ 4-401 et seq.

Montana: Mont. Ann. Code, § 45-8-301 et seq.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary & Housebreaking, § 2; 20 M.J. Weapons, §§ 4.1, 9.

OPINIONS OF THE ATTORNEY GENERAL

Nonexempt persons. - The Uniform Machine Gun Act does not prevent the discharge or firing of a machine gun by a nonexempt person. See opinion of Attorney General to Colonel W. Gerald Massengill, Superintendent, Department of State Police, 02-056 (7/30/02).

A nonexempt person may transport a machine gun away from his registered bona fide permanent residence or business address. See opinion of Attorney General to Colonel W. Gerald Massengill, Superintendent, Department of State Police, 02-056 (7/30/02).

A trust is not a "person." - A trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly. See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, 13-083, 2013 Va. AG LEXIS 92 (11/27/13).

§ 18.2-289. Use of machine gun for crime of violence.

Possession or use of a machine gun in the perpetration or attempted perpetration of a crime of violence is hereby declared to be a Class 2 felony.

(Code 1950, § 18.1-259; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - For definition of "barrier crime" as including a conviction of use of a machine gun in a crime of violence as set out in § 18.2-289 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

§ 18.2-290. Use of machine gun for aggressive purpose.

Unlawful possession or use of a machine gun for an offensive or aggressive purpose is hereby declared to be a Class 4 felony.

(Code 1950, § 18.1-260; 1960, c. 358; 1968, c. 229; 1975, cc. 14, 15.)

Cross references. - For definition of "barrier crime" as including a conviction of aggressive use of a machine gun as set out in § 18.2-290 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

CASE NOTES

Sufficient evidence of knowledge. - Evidence was sufficient to support defendant's convictions of possession of a firearm after having been convicted of a felony and possession of a machine gun for an aggressive purpose because it showed that defendant was in the driver's seat of the vehicle, he was the only person in the vehicle, after he got out of the vehicle and closed the door he was resistant to opening the door again, the officer testified that while standing outside the vehicle he could see an extended magazine containing ammunition sticking out from under the driver's seat, and when the officer went to retrieve the magazine he found a weapon directly beside the magazine under the driver's seat. Easterling v. Commonwealth, No. 1444-19-3, 2020 Va. App. LEXIS 222 (Aug. 4, 2020).

§ 18.2-291. What constitutes aggressive purpose.

Possession or use of a machine gun shall be presumed to be for an offensive or aggressive purpose:

  1. When the machine gun is on premises not owned or rented for bona fide permanent residence or business occupancy by the person in whose possession the machine gun may be found;
  2. When the machine gun is in the possession of, or used by, a person who has been convicted of a crime of violence in any court of record, state or federal, of the United States of America, its territories or insular possessions;
  3. When the machine gun has not been registered as required in § 18.2-295 ; or
  4. When empty or loaded shells which have been or are susceptible of use in the machine gun are found in the immediate vicinity thereof.

    (Code 1950, § 18.1-261; 1960, c. 358; 1975, cc. 14, 15.)

OPINIONS OF THE ATTORNEY GENERAL

Individual may display historic machine guns at the Virginia War Memorial without violating the Uniform Machine Gun Act, provided that the machine guns are registered pursuant to the Act and federal law and are not used for offensive or aggressive purposes. See opinion of Attorney General to The Honorable Frank D. Hargrove Sr., Member, House of Delegates, 04-065 (10/7/04).

§ 18.2-292. Presence prima facie evidence of use.

The presence of a machine gun in any room, boat or vehicle shall be prima facie evidence of the possession or use of the machine gun by each person occupying the room, boat, or vehicle where the weapon is found.

(Code 1950, § 18.1-262; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-293. What article does not apply to.

The provisions of this article shall not be applicable to:

  1. The manufacture for, and sale of, machine guns to the armed forces or law-enforcement officers of the United States or of any state or of any political subdivision thereof, or the transportation required for that purpose; and
  2. Machine guns and automatic arms issued to the national guard of Virginia by the United States or such arms used by the United States army or navy or in the hands of troops of the national guards of other states or territories of the United States passing through Virginia, or such arms as may be provided for the officers of the State Police or officers of penal institutions.

    (Code 1950, § 18.1-263; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-293.1. What article does not prohibit.

Nothing contained in this article shall prohibit or interfere with:

  1. The possession of a machine gun for scientific purposes, or the possession of a machine gun not usable as a weapon and possessed as a curiosity, ornament, or keepsake; and
  2. The possession of a machine gun for a purpose manifestly not aggressive or offensive. Provided, however, that possession of such machine guns shall be subject to the provisions of § 18.2-295 . (Code 1950, § 18.1-263; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-294. Manufacturer's and dealer's register; inspection of stock.

Every manufacturer or dealer shall keep a register of all machine guns manufactured or handled by him. This register shall show the model and serial number, date of manufacture, sale, loan, gift, delivery or receipt of every machine gun, the name, address, and occupation of the person to whom the machine gun was sold, loaned, given or delivered, or from whom it was received. Upon demand every manufacturer or dealer shall permit any marshal, sheriff or police officer to inspect his entire stock of machine guns, parts, and supplies therefor, and shall produce the register, herein required, for inspection. A violation of any provisions of this section shall be punishable as a Class 3 misdemeanor.

(Code 1950, § 18.1-264; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-295. Registration of machine guns.

Every machine gun in this Commonwealth shall be registered with the Department of State Police within twenty-four hours after its acquisition or, in the case of semi-automatic weapons which are converted, modified or otherwise altered to become machine guns, within twenty-four hours of the conversion, modification or alteration. Blanks for registration shall be prepared by the Superintendent of State Police, and furnished upon application. To comply with this section the application as filed shall be notarized and shall show the model and serial number of the gun, the name, address and occupation of the person in possession, and from whom and the purpose for which, the gun was acquired or altered. The Superintendent of State Police shall upon registration required in this section forthwith furnish the registrant with a certificate of registration, which shall be valid as long as the registrant remains the same. Certificates of registration shall be retained by the registrant and produced by him upon demand by any peace officer. Failure to keep or produce such certificate for inspection shall be a Class 3 misdemeanor, and any peace officer, may without warrant, seize the machine gun and apply for its confiscation as provided in § 18.2-296 . Upon transferring a registered machine gun, the transferor shall forthwith notify the Superintendent in writing, setting forth the date of transfer and name and address of the transferee. Failure to give the required notification shall constitute a Class 3 misdemeanor. Registration data shall not be subject to inspection by the public.

(Code 1950, § 18.1-265; 1960, c. 358; 1972, c. 199; 1975, cc. 14, 15; 1978, c. 618; 1988, c. 460.)

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

OPINIONS OF THE ATTORNEY GENERAL

A trust is not a "person." - A trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly. See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, 13-083, 2013 Va. AG LEXIS 92 (11/27/13).

§ 18.2-296. Search warrants for machine guns.

Warrant to search any house or place and seize any machine gun possessed in violation of this article may issue in the same manner and under the same restrictions as provided by law for stolen property, and any court of record, upon application of the attorney for the Commonwealth, a police officer or conservator of the peace, may order any machine gun, thus or otherwise legally seized, to be confiscated and either destroyed or delivered to a peace officer of the Commonwealth or a political subdivision thereof.

(Code 1950, § 18.1-266; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-297. How article construed.

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

(Code 1950, § 18.1-267; 1960, c. 358; 1975, cc. 14, 15.)

OPINIONS OF THE ATTORNEY GENERAL

A trust is not a "person." - A trust may not register a machine gun pursuant to the Uniform Machine Gun Act as enacted by the Virginia General Assembly. See opinion of Attorney General to Colonel W.S. Flaherty, Superintendent, Department of State Police, 13-083, 2013 Va. AG LEXIS 92 (11/27/13).

§ 18.2-298. Short title of article.

This article may be cited as the "Uniform Machine Gun Act."

(Code 1950, § 18.1-268; 1960, c. 358; 1975, cc. 14, 15.)

Article 6. "Sawed-off" Shotgun and "Sawed-off" Rifle Act.

§ 18.2-299. Definitions.

When used in this article:

"Sawed-off shotgun" means any weapon, loaded or unloaded, originally designed as a shoulder weapon, utilizing a self-contained cartridge from which a number of ball shot pellets or projectiles may be fired simultaneously from a smooth or rifled bore by a single function of the firing device and which has a barrel length of less than 18 inches for smooth bore weapons and 16 inches for rifled weapons. Weapons of less than .225 caliber shall not be included.

"Sawed-off rifle" means a rifle of any caliber, loaded or unloaded, which expels a projectile by action of an explosion of a combustible material and is designed as a shoulder weapon with a barrel or barrels length of less than 16 inches or which has been modified to an overall length of less than 26 inches.

"Crime of violence" applies to and includes any of the following crimes or an attempt to commit any of the same, namely, murder, manslaughter, kidnapping, rape, mayhem, assault with intent to maim, disable, disfigure or kill, robbery, burglary, housebreaking, breaking and entering and larceny.

"Person" applies to and includes firm, partnership, association or corporation.

(Code 1950, § 18.1-268.1; 1968, c. 661; 1975, cc. 14, 15; 1992, c. 580; 2004, c. 930.)

The 2004 amendments. - The 2004 amendment by c. 930, in the paragraph defining "Sawed-off shotgun," in the first sentence, substituted "means" for "applies to," "18" for "eighteen" and "16" for "sixteen"; and in the paragraph defining "Sawed-off rifle," inserted "of a combustible material" and substituted "16" for "sixteen" and "26" for "twenty-six."

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, §§ 4.1, 9.

CASE NOTES

Commonwealth must prove defendant used "sawed-off shotgun" in commission of crime. - Trial judge committed reversible error by giving an instruction to the jury which read: "Under the law, the weapon in this case was a sawed-off shotgun" since the Commonwealth must prove beyond a reasonable doubt that the defendant used a sawed-off shotgun in the commission of the crime of murder or manslaughter. Bruce v. Commonwealth, 9 Va. App. 298, 387 S.E.2d 279 (1990).

Jury must decide whether gun is a "sawed-off shotgun." - Whether the weapon met the statutory definition of a "sawed-off shotgun" was a factual issue for the jury to decide. Bruce v. Commonwealth, 9 Va. App. 298, 387 S.E.2d 279 (1990).

Jury properly used their reason, common sense, knowledge, experience, and examination of the gun at issue to determine whether it met the statutory definition of "sawed-off shotgun" under § 18.2-299 because the gun was admitted into evidence and the trial court properly instructed the jury on the definition. Person v. Commonwealth, 60 Va. App. 549, 729 S.E.2d 782, 2012 Va. App. LEXIS 255 (2012).

Evidence was sufficient to prove that "sawed-off shotgun" was used in commission of offense. - Evidence proved that appellant was one of two men who chased victim and fired upon him with the intent to kill, and while appellant and his coconspirators actually intended to kill the victim's son, appellant mistakenly believed that the victim was in fact his son during the pursuit, and accordingly, when the two men fired upon the victim with the intent to kill his son, their murderous intent was transferred to the killing of the victim, and evidence supported the conclusion that the sawed-off shotgun was used in the commission of this offense for the victim testified that he observed appellant "cocking something" as appellant exited car and began to run towards him. Henderson v. Commonwealth, 17 Va. App. 444, 438 S.E.2d 292 (1993).

Effect of absence of firing pin. - Possession of a weapon that would have become a completely operable sawed-off shotgun after a moment's delay to insert a firing pin satisfies the statutory definition of "sawed-off" shotgun. The absence of a firing pin in such a weapon does not exempt it from prohibition. Rogers v. Commonwealth, 14 Va. App. 774, 418 S.E.2d 727 (1992).

The absence of a firing pin in a weapon does not exempt it from the definition of "any weapon . . . from which a number of ball shot pellets or projectiles may be fired" as provided in the definition of "sawed-off shotgun." Robinson v. Commonwealth, No. 0934-91-2 (Ct. of Appeals Oct. 6, 1992).

Caliber requirement is an element of the crime. - In prosecutions for possession of a sawed-off shotgun, the Commonwealth must prove that the subject weapon falls within the statutory definition, including the requirement that it be not less than a specified caliber; the statutory requirement relating to the weapon's caliber defines an element of the crime and not an affirmative defense. Dillard v. Commonwealth, 28 Va. App. 340, 504 S.E.2d 411 (1998).

Evidence sufficient for conviction. - Evidence was sufficient to convict defendant of possession of a sawed-off shotgun because the firearm found in defendant's vehicle met the statutory definition of a sawed-off shotgun as a photograph of the firearm found in defendant's car and the actual firearm were submitted into evidence; the evidence showed that the butt of the firearm had been cut and modified from a shoulder-fired weapon to a pistol grip; and the barrel had been shorted and was 14.75 inches in length. Cox v. Commonwealth,, 2014 Va. App. LEXIS 399 (Dec. 9, 2014).

Applied in Taylor v. Commonwealth, 10 Va. App. 260, 391 S.E.2d 592 (1990).

§ 18.2-300. Possession or use of "sawed-off" shotgun or rifle.

  1. Possession or use of a "sawed-off" shotgun or "sawed-off" rifle in the perpetration or attempted perpetration of a crime of violence is a Class 2 felony.
  2. Possession or use of a "sawed-off" shotgun or "sawed-off" rifle for any other purpose, except as permitted by this article and official use by those persons permitted possession by § 18.2-303 , is a Class 4 felony. (Code 1950, § 18.1-268.2; 1968, c. 661; 1975, cc. 14, 15; 1978, c. 710; 1992, c. 580.)

Cross references. - For definition of "barrier crime" as including a conviction of use of a sawed-off shotgun in a crime of violence as set out in subsection A of § 18.2-300 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

CASE NOTES

Actual knowledge of the weapon's specific physical characteristics is not required. Rather, sufficient intent is established if the defendant is shown to have possessed an item which he knew to be a firearm within the general meaning of the term. It is the dangerous character of the object that obviates proof of scienter. Pierce v. Commonwealth, No. 1622-88-4 (Ct. of Appeals Apr. 10, 1990).

Defendant's conviction for use of a sawed-off shotgun during the commission of rape was not error even though he was acquitted of the underlying rape charge. Finney v. Commonwealth, No. 1089-87-3 (Ct. of Appeals Apr. 25, 1989).

Evidence was sufficient for jury to have found that a sawed-off shotgun was used by appellant in the attempted murder of victim where appellant and his companions discussed all of the plans for the killing in appellant's home, the sawed-off shotgun that was to be used to shoot intended victim was obtained from a room in appellant's home, there was no evidence that any other weapon was discussed, available or used in the subsequent attempted murder of victim, and in addition, appellant and coconspirator purchased ammunition for the shotgun, and coconspirator placed the weapon under the hood of the Chevrolet before the vehicle left for intended victim's neighborhood, appellant chased victim, mistaking him for intended victim, and that during chase two shots was fired, and only weapon recovered was sawed-off shotgun obtained from appellant's home, and further the only ammunition recovered were shotgun shells. Henderson v. Commonwealth, 17 Va. App. 444, 438 S.E.2d 292 (1993).

Commonwealth must prove defendant used "sawed-off shotgun" in commission of crime. - Trial judge committed reversible error by giving an instruction to the jury which read: "Under the law, the weapon in this case was a sawed-off shotgun" since the Commonwealth must prove beyond a reasonable doubt that the defendant used a sawed-off shotgun in the commission of the crime of murder or manslaughter. Bruce v. Commonwealth, 9 Va. App. 298, 387 S.E.2d 279 (1990).

Jury must decide whether gun is a "sawed-off shotgun." - Whether the weapon met the statutory definition of a "sawed-off shotgun" was a factual issue for the jury to decide. Bruce v. Commonwealth, 9 Va. App. 298, 387 S.E.2d 279 (1990).

Caliber requirement is an element of the crime. - In prosecutions for possession of a sawed-off shotgun, the Commonwealth must prove that the subject weapon falls within the statutory definition, including the requirement that it be not less than a specified caliber; the statutory requirement relating to the weapon's caliber defines an element of the crime and not an affirmative defense. Dillard v. Commonwealth, 28 Va. App. 340, 504 S.E.2d 411 (1998).

Evidence sufficient for conviction. - Evidence was sufficient to convict defendant of possession of a sawed-off shotgun because the firearm found in defendant's vehicle met the statutory definition of a sawed-off shotgun as a photograph of the firearm found in defendant's car and the actual firearm were submitted into evidence; the evidence showed that the butt of the firearm had been cut and modified from a shoulder-fired weapon to a pistol grip; and the barrel had been shorted and was 14.75 inches in length. Cox v. Commonwealth,, 2014 Va. App. LEXIS 399 (Dec. 9, 2014).

Applied in Turner v. Commonwealth, 221 Va. 513 , 273 S.E.2d 36 (1980); Hall v. Commonwealth, 8 Va. App. 350, 381 S.E.2d 512 (1989); Taylor v. Commonwealth, 10 Va. App. 260, 391 S.E.2d 592 (1990).

§§ 18.2-301, 18.2-302.

Repealed by Acts 1978, c. 710.

§ 18.2-303. What article does not apply to.

The provisions of this article shall not be applicable to:

  1. The manufacture for, and sale of, "sawed-off" shotguns or "sawed-off" rifles to the armed forces or law-enforcement officers of the United States or of any state or of any political subdivision thereof, or the transportation required for that purpose; and
  2. "Sawed-off" shotguns, "sawed-off" rifles and automatic arms issued to the National Guard of Virginia by the United States or such arms used by the United States Army or Navy or in the hands of troops of the national guards of other states or territories of the United States passing through Virginia, or such arms as may be provided for the officers of the State Police or officers of penal institutions.

    (Code 1950, § 18.1-268.5; 1968, c. 661; 1975, cc. 14, 15; 1992, c. 580.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§ 18.2-303.1. What article does not prohibit.

Nothing contained in this article shall prohibit or interfere with the possession of a "sawed-off" shotgun or "sawed-off" rifle for scientific purposes, the possession of a "sawed-off" shotgun or "sawed-off" rifle possessed in compliance with federal law or the possession of a "sawed-off" shotgun or "sawed-off" rifle not usable as a firing weapon and possessed as a curiosity, ornament, or keepsake.

(Code 1950, § 18.1-268.5; 1968, c. 661; 1975, cc. 14, 15; 1976, c. 351; 1992, c. 580; 1993, c. 449.)

CASE NOTES

The only exceptions to the proscription of civilian possession of sawed-off shotguns are the defenses set forth in this section. In order for a defendant to rely on these defenses, he must prove either that he possessed the shotgun for scientific purposes, or that the shotgun was both unusable and possessed as a curiosity, ornament, or keepsake. The conjunctive language of the second exception means that a weapon merely unusable as a firing weapon does not fall within the provisions of this section. Rogers v. Commonwealth, 14 Va. App. 774, 418 S.E.2d 727 (1992).

§ 18.2-304. Manufacturer's and dealer's register; inspection of stock.

Every manufacturer or dealer shall keep a register of all "sawed-off" shotguns and "sawed-off" rifles manufactured or handled by him. This register shall show the model and serial number, date of manufacture, sale, loan, gift, delivery or receipt of every "sawed-off" shotgun and "sawed-off" rifle, the name, address, and occupation of the person to whom the "sawed-off" shotgun or "sawed-off" rifle was sold, loaned, given or delivered, or from whom it was received. Upon demand every manufacturer or dealer shall permit any marshal, sheriff or police officer to inspect his entire stock of "sawed-off" shotguns and "sawed-off" rifles, and "sawed-off" shotgun or "sawed-off" rifle barrels, and shall produce the register, herein required, for inspection. A violation of any provision of this section shall be punishable as a Class 3 misdemeanor.

(Code 1950, § 18.1-268.6; 1968, c. 661; 1975, cc. 14, 15; 1992, c. 580.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§ 18.2-305.

Repealed by Acts 1976, c. 351.

§ 18.2-306. Search warrants for "sawed-off" shotguns and rifles; confiscation and destruction.

Warrant to search any house or place and seize any "sawed-off" shotgun or "sawed-off" rifle possessed in violation of this article may issue in the same manner and under the same restrictions as provided by law for stolen property, and any court of record, upon application of the attorney for the Commonwealth, a police officer or conservator of the peace, may order any "sawed-off" shotgun or "sawed-off" rifle thus or otherwise legally seized, to be confiscated and either destroyed or delivered to a peace officer of the Commonwealth or a political subdivision thereof.

(Code 1950, § 18.1-268.8; 1968, c. 661; 1975, cc. 14, 15; 1992, c. 580.)

§ 18.2-307. Short title of article.

This article may be cited as the "Sawed-Off Shotgun and Sawed-Off Rifle Act."

(Code 1950, § 18.1-268.9; 1968, c. 661; 1975, cc. 14, 15; 1992, c. 580.)

Article 6.1. Concealed Weapons and Concealed Handgun Permits.

§ 18.2-307.1. Definitions.

As used in this article, unless the context requires a different meaning:

"Ballistic knife" means any knife with a detachable blade that is propelled by a spring-operated mechanism.

"Handgun" means any pistol or revolver or other firearm, except a machine gun, originally designed, made, and intended to fire a projectile by means of an explosion of a combustible material from one or more barrels when held in one hand.

"Law-enforcement officer" means those individuals defined as a law-enforcement officer in § 9.1-101 , law-enforcement agents of the armed forces of the United States and the Naval Criminal Investigative Service, and federal agents who are otherwise authorized to carry weapons by federal law. "Law-enforcement officer" also means any sworn full-time law-enforcement officer employed by a law-enforcement agency of the United States or any state or political subdivision thereof, whose duties are substantially similar to those set forth in § 9.1-101 .

"Lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

"Personal knowledge" means knowledge of a fact that a person has himself gained through his own senses, or knowledge that was gained by a law-enforcement officer or prosecutor through the performance of his official duties.

"Spring stick" means a spring-loaded metal stick activated by pushing a button that rapidly and forcefully telescopes the weapon to several times its original length.

(2013, c. 746.)

Editor's note. - Acts 2013, c. 746, which recodified former § 18.2-308 as Article 6.1 ( § 18.2-307.1 et seq.), in cl. 2 provides: "That the provisions of this act are declaratory of existing law."

§ 18.2-308. Carrying concealed weapons; exceptions; penalty.

  1. If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by action of an explosion of any combustible material; (ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, sling bow, spring stick, metal knucks, or blackjack; (iii) any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain; (iv) any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart; or (v) any weapon of like kind as those enumerated in this subsection, he is guilty of a Class 1 misdemeanor. A second violation of this section or a conviction under this section subsequent to any conviction under any substantially similar ordinance of any county, city, or town shall be punishable as a Class 6 felony, and a third or subsequent such violation shall be punishable as a Class 5 felony. For the purpose of this section, a weapon shall be deemed to be hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon's true nature. It shall be an affirmative defense to a violation of clause (i) regarding a handgun, that a person had been issued, at the time of the offense, a valid concealed handgun permit.
  2. This section shall not apply to any person while in his own place of abode or the curtilage thereof.
  3. Except as provided in subsection A of § 18.2-308.012 , this section shall not apply to:
    1. Any person while in his own place of business;
    2. Any law-enforcement officer, or retired law-enforcement officer pursuant to § 18.2-308.016 , wherever such law-enforcement officer may travel in the Commonwealth;
    3. Any person who is at, or going to or from, an established shooting range, provided that the weapons are unloaded and securely wrapped while being transported;
    4. Any regularly enrolled member of a weapons collecting organization who is at, or going to or from, a bona fide weapons exhibition, provided that the weapons are unloaded and securely wrapped while being transported;
    5. Any person carrying such weapons between his place of abode and a place of purchase or repair, provided the weapons are unloaded and securely wrapped while being transported;
    6. Any person actually engaged in lawful hunting, as authorized by the Board of Wildlife Resources, under inclement weather conditions necessitating temporary protection of his firearm from those conditions, provided that possession of a handgun while engaged in lawful hunting shall not be construed as hunting with a handgun if the person hunting is carrying a valid concealed handgun permit;
    7. Any attorney for the Commonwealth or assistant attorney for the Commonwealth, wherever such attorney may travel in the Commonwealth;
    8. Any person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel;
    9. Any enrolled participant of a firearms training course who is at, or going to or from, a training location, provided that the weapons are unloaded and securely wrapped while being transported; and
    10. Any judge or justice of the Commonwealth, wherever such judge or justice may travel in the Commonwealth.
  4. This section shall also not apply to any of the following individuals while in the discharge of their official duties, or while in transit to or from such duties:
    1. Carriers of the United States mail;
    2. Officers or guards of any state correctional institution;
    3. Conservators of the peace, except that a judge or justice of the Commonwealth, an attorney for the Commonwealth, or an assistant attorney for the Commonwealth may carry a concealed handgun pursuant to subdivisions C 7 and 10. However, the following conservators of the peace shall not be permitted to carry a concealed handgun without obtaining a permit as provided in this article: (i) notaries public; (ii) registrars; (iii) drivers, operators, or other persons in charge of any motor vehicle carrier of passengers for hire; or (iv) commissioners in chancery; and
    4. Noncustodial employees of the Department of Corrections designated to carry weapons by the Director of the Department of Corrections pursuant to § 53.1-29 . (Code 1950, § 18.1-269; 1960, c. 358; 1964, c. 130; 1975, cc. 14, 15, 594; 1976, c. 302; 1978, c. 715; 1979, c. 642; 1980, c. 238; 1981, c. 376; 1982, cc. 71, 553; 1983, c. 529; 1984, cc. 360, 720; 1985, c. 427; 1986, cc. 57, 451, 625, 641; 1987, cc. 592, 707; 1988, cc. 359, 793; 1989, cc. 538, 542; 1990, cc. 640, 648, 825; 1991, c. 637; 1992, cc. 510, 705; 1993, cc. 748, 861; 1994, cc. 375, 697; 1995, c. 829; 1997, cc. 916, 921, 922; 1998, cc. 662, 670, 846, 847; 1999, cc. 628, 666, 679; 2001, cc. 25, 384, 657; 2002, cc. 699, 728, 826; 2004, cc. 355, 423, 462, 876, 885, 900, 901, 903, 905, 926, 995, 1012; 2005, cc. 344, 420, 424, 441, 839; 2006, c. 886; 2007, cc. 87, 272, 408, 455; 2008, cc. 69, 75, 80, 309, 464, 742; 2009, cc. 235, 779, 780; 2010, cc. 387, 433, 576, 586, 602, 677, 700, 709, 740, 741, 754, 841, 863; 2011, cc. 231, 234, 384, 410; 2012, cc. 132, 175, 291, 557, 776; 2013, cc. 559, 746; 2014, cc. 45, 225, 450; 2015, cc. 38, 221, 730; 2016, cc. 257, 589, 672; 2020, cc. 142, 958.)

Cross references. - As to carrying weapon to place of religious worship or on Sunday, see § 18.2-283 .

As to prohibiting possession of blackjacks, brass knuckles, etc., see § 18.2-311 .

As to carrying weapons by penitentiary guards and officials, see § 53.1-29 .

Editor's note. - Acts 2006, c. 886, cl. 2, provides: "That the provisions of this act creating subdivisions D1 and J5, amending subsection I, and amending subsection D, eliminating the five-year permit and subsection H referencing expiration of such a permit shall not become effective unless an appropriation of funds effectuating the purposes of these provisions is included in the general appropriations act for the period of July 1, 2006, through June 30, 2008, passed during the 2007 Session of the General Assembly, which become law; if such funds are appropriated, then such provisions of this act shall become effective on July 1, 2007." The appropriation of funds was not included in the general appropriations act passed during the 2007 session. The section is set out above without the above referenced amendments made by Acts 2006, c. 886.

Acts 2013, c. 746, which recodified former § 18.2-308 as Article 6.1 ( § 18.2-307.1 et seq.) in cl. 2 provides: "That the provisions of this act are declaratory of existing law." Acts 2013, cc. 135, 559, and 659 also amended this section. Pursuant to § 30-152 those amendments have been given effect in §§ 18.2-308.02 and 18.2-308.03 .

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 4, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

Acts 2016, c. 41, cl. 1 provides: "Any conservation police officer who (i) has at least 20 years of service as a conservation police officer, (ii) was a full-time sworn conservation police officer immediately prior to January 1, 2016, and (iii) was transitioned to a civilian position on January 1, 2016, by the Department of Game and Inland Fisheries shall be considered a retired law-enforcement officer for the purposes of §§ 9.1-1000 , 18.2-308 , 18.2-308 .03, and 59.1-148.3 ."

Acts 2016, c. 257 recodified former subdivisions C 7, 7a and 8 of this section as § 18.2-308.016 . Acts 2016, cc. 209 and 421 also amended subdivisions C 7, 7a and 8. Pursuant to § 30-152 those amendments have been given effect in § 18.2-308.016 as directed by the Virginia Code Commission.

Acts 2020, c. 142, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1995 amendment rewrote the section.

The 1997 amendments. - The 1997 amendment by c. 916, in subsection A, deleted "or" preceding clauses (ii), (iii) and (iv), and inserted "or" preceding "blackjack" in clause (ii); in subdivision B 8, inserted "and any local law-enforcement officer retired from a police department or sheriff's office within the Commonwealth (i) with a service-related disability or (ii)" preceding "following at least" and substituted "chief law-enforcement officer of the agency from which the officer retired" for "Superintendent of State Police"; deleted "except that any permit issued prior to July 1, 1996, shall be issued within ninety days of receipt of the completed application" following "applicant is disqualified" in the second sentence in subsection D; and substituted "however" for "provided" in subdivision J 2.

The 1997 amendment by c. 921, effective January 1, 1998, in subdivision E 3, inserted "former" preceding " § 37.1-134.1," and inserted "or § 37.1-134.16" preceding "less than five."

The 1997 amendment by c. 922 rewrote the section.

The 1998 amendments. - The 1998 amendment by c. 662, in subsection B, in subdivision 8, added the present next-to-last and last sentences; in subsection D, in the second sentence, substituted "15.2-915" for "15.1-29.15."

The 1998 amendment by c. 670, in subsection B, in subdivision 8, in clause (ii), inserted the language beginning "with any such" and ending "of such agencies," and inserted "last such"; and in subsection D, in the second sentence, substituted " § 15.2-915 " for " § 15.1-29.15."

The 1998 amendment by c. 846 substituted "handgun" for "weapon" throughout this section; in subsection B, in subdivision 8, in the first sentence, deleted "and" following "State Police," inserted the language beginning "and any special agent" and ending "Control Board," in clause (ii), inserted the language beginning "with any such" and ending "any combination thereof," and added the language beginning "or, in the case of," added the second sentence, and added the second paragraph; in subsection D, in the second sentence, substituted " § 15.2-915 " for " § 15.1-29.15," and inserted the present next-to-last sentence; in subsection H, in the first sentence, deleted "social security number" following "gender"; in subsection J1, in the first sentence, added the language beginning "and upon such conviction," and added the second sentence; in subsection J2, added "or by the court which issued the permit"; in subsection J3, inserted the language beginning "sworn law-enforcement officer" and ending "restaurant or club or any"; added subsection J4; and in subsection K, in the first sentence, in clause (iii), inserted "Immigration and Naturalization Service."

The 1998 amendment by c. 847, in subsection D, in the second sentence, substituted " § 15.2-915 " for " § 15.1-29.15"; and in subsection E, added subdivisions 19 and 20.

The 1999 amendments. - The 1999 amendments by cc. 628 and 666 are identical, and inserted "Customs Service, Department of State Diplomatic Security Service" in subsection K; and substituted "17.1-410" for "17-116.07" in subsection L.

The 1999 amendment by c. 679 rewrote the introductory language of subsection B, which formerly read: "This section shall not apply to," relocated former subdivision B 1 as part of the introductory language of subsection B, added present subdivision B 1, and added the third sentence of subdivision B 8; in subdivision G 5, inserted "current," and added "or proof of an honorable discharge from any branch of the armed services"; substituted "shall specify only the following information" for "shall specify the" in subsection H; in subsection I, divided the former third sentence into the present third and fourth sentences by substituting "the clerk shall provide the person with notice, in writing, of his right to an ore tenus hearing. Upon" for "of the application and," and substituted "twenty-one" for "ten" in the present fourth sentence, and inserted "and the rules of evidence shall apply" in the fifth sentence; rewrote subsection J1, which read: "Any person permitted to carry a concealed handgun under this section, who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place, shall be guilty of a Class 1 misdemeanor, and upon such conviction that court shall revoke the person's permit for a concealed handgun and promptly notify the issuing circuit court. A person convicted of a violation of this subsection shall be ineligible to apply for a concealed handgun permit for a period of five years"; in subsection L, in the first sentence, deleted "within thirty days of the final decision" following "of this section, may," deleted "or any judge thereof" following "Court of Appeals," added the present second sentence, and substituted " § 17.1-410 B" for § 17-116.07 B" in the present third sentence.

The 2001 amendments. - The 2001 amendment by c. 25 substituted "either the sheriff or police department" for "the law enforcement authorities" in subsection D.

The 2001 amendment by c. 384, in subsection D, added the sixth sentence, inserted "or, in the case of scanned fingerprints, destroy the electronic record" at the end of the seventh sentence, added "if any" at the end of the eighth sentence, and added the tenth sentence.

The 2001 amendment by c. 657 inserted "by action of an explosion of any combustible material" in clause (i) of subsection A; substituted "and received by the clerk of court before or concomitant with the conduct of a state or national criminal history records check" for "the clerk of court" in subsection D; in subsection G, inserted "but no applicant shall be required to submit to any additional demonstration of competence" at the end of the introductory language, deleted "or" at the end of subdivision 7, added subdivision 8, and redesignated former subdivision 8 as present subdivision 9; inserted "and surrender it" in subsection J; inserted "of a combustible material" in the paragraph defining "Handgun" in subsection M; in subsection P, substituted "adequate to prevent possession of a permit by persons who would be denied a permit in the Commonwealth under this section" for "and (iii) a state meeting the requirements and qualifications of this section grants the same privilege to residents of the Commonwealth who have valid concealed handgun permits in their possession while carrying concealed weapons in that state," and substituted "determine whether" for "determine which."

The 2002 amendments. - The 2002 amendment by c. 699, in subsection K, substituted "Commonwealth, after completing fifteen years of" for "Commonwealth of Virginia, after completing twenty years' service," deleted "or" preceding clause (iii), rewrote clause (iii), which formerly read: "to any person who has retired after completing twenty years' service or after reaching age fifty-five from service as a law-enforcement officer with the United States Federal Bureau of Investigation, Bureau of Alcohol, Tobacco and Firearms, Secret Service Agency, Drug Enforcement Administration, Immigration and Naturalization Service, Customs Service, Department of State Diplomatic Security Service or Naval Criminal Investigative Service," and added clauses (iv) through (vi).

The 2002 amendment by c. 728 inserted "or if he is a member of the United States armed forces, the county or city in which he is domiciled" in the first sentence of subsection D.

The 2002 amendment by c. 826 inserted "the State Corporation Commission or" and "the State Corporation Commission or the" in subdivision B 8; substituted "that" for "which" in the second sentence in subsection D; and inserted present subsection Q and redesignated former subsection Q as present subsection R.

The 2004 amendments. - The 2004 amendment by c. 355 added the last sentence in subsection D; substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in clause (iii) in the first sentence of subsection K; and made minor stylistic changes.

The 2004 amendment by c. 423 inserted "machete" in clause (ii) in the first sentence of subsection A; substituted "United States Citizenship and Immigration Services" for Immigration and Naturalization Service" in clause (iii) in the first sentence of subsection K; and made minor stylistic changes.

The 2004 amendment by c. 462 deleted the former second sentence in subsection D, which read: "Notwithstanding § 15.2-915 , a county or city may enact an ordinance that requires any applicant for a concealed handgun permit to submit to fingerprinting for the purpose of obtaining the applicant's state or national criminal history record"; substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in clause (iii) of the first sentence in subsection K; and made minor stylistic changes.

The 2004 amendment by c. 876, in subdivision B 8 [now B 7], in the first sentence, inserted "other than an officer or agent terminated for cause," deleted "other than a person terminated for cause" at the end of clause (ii), and added clause (iii); in subsection K, in the first sentence, substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" and inserted "U.S. Marshals Service"; and made minor stylistic changes.

The 2004 amendment by c. 885 substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the first sentence of subsection K; inserted subsection R; redesignated former subsection R as subsection S; and made minor stylistic changes.

The 2004 amendment by c. 900 substituted "shall" for "may further" in the introductory paragraph of subsection G; substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the first sentence of subsection K; in subsection P, in the first sentence, substituted "authorize the holder of such permit or license who is 21 years of age or older to carry a concealed handgun" for "be valid," inserted "except for the age of the holder of the permit or license and the type of weapon authorized to be carried" at the beginning of clause (ii), and added the last sentence; inserted subsection P1; substituted "subtract" for "delete" in the last sentence of subsection R [now subsection S]; and made minor stylistic changes.

The 2004 amendment by c. 901 substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the first sentence of subsection K; in subsection P, in the first sentence, substituted "authorize the holder of such permit or license who is 21 years of age or older to carry a concealed handgun" for "be valid" and inserted "except for the age of the holder of the permit or license and the type of weapon authorized to be carried" at the beginning of clause (ii) and "or license"; substituted "subtract" for "delete" in the last sentence of subsection R [now S]; and made minor stylistic changes.

The 2004 amendment by c. 903, in subsection D, inserted the present fourth, fifteenth, and sixteenth sentences and "after a five-year permit has been issued" in the last sentence; in subsection K, substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the first sentence and inserted "or the copy of the permit ... pursuant to subsection D" in the next-to-last sentence; and made minor stylistic changes.

The 2004 amendment by c. 905 inserted the second sentence in subsection D; substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the first sentence of subsection K; and made minor stylistic changes.

The 2004 amendment by c. 926 rewrote subdivision B 2; deleted former subdivision B 6, which read: "Campus police officers appointed pursuant to Chapter 17 ( § 23-232 et seq.) of Title 23"; in subdivision B 8 [now B 7], in the first sentence, inserted the language "and any Virginia Marine ... Resources Commission" and "other than an officer or agent terminated for cause" and substituted "or (iii) who has reached 55 years of age" for "other than a person terminated for cause"; in subsection C, deleted former subdivisions C 6 and C 7, which read: "6. Law enforcement agents of the Armed Forces of the United States and federal agents who are otherwise authorized to carry weapons by federal law while engaged in the performance of their duties" and "7. Law enforcement agents of the United States Naval Criminal Investigative Service; and"; inserted the present thirteenth sentence in subsection D; in subsection K, in the first sentence, substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" and inserted "U.S. Marshals Service"; added the definition of "Law-enforcement officer" in subsection M; inserted subsection R; redesignated former subsection R as subsection S; in subsection S, twice substituted "that" for "which" in the first sentence and "subtract" for "delete" in the last sentence; and made minor stylistic changes.

The 2004 amendment by c. 995 deleted the next-to-last sentence in subsection A which pertained to the reuse of forfeited firearms by police officers; substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in subsection K; and made minor stylistic changes.

The 2004 amendment by c. 1012 rewrote subdivision B 2; deleted former subdivision B 6, which formerly read: "Campus police officers appointed pursuant to Chapter 17 ( § 23-232 et seq.) of Title 23"; redesignated former subdivisions B 7 and B 8 as subdivisions B 6 and B 7; inserted "provided that possession of a handgun while engaged in lawful hunting shall not be construed as hunting with a handgun if the person hunting is carrying a valid concealed handgun permit" in subdivision B 6; in subdivision B 7, deleted "and" following "office within the Commonwealth," inserted "other than an officer or agent terminated for cause, any game warden retired from the Department of Game and Inland Fisheries, and any Virginia Marine Police officer retired from the Law Enforcement Division of the Virginia Marine Resources Commission"; in subdivision B 7 clause (ii), deleted "other than a person termintated for cause," added clause designation (iii) and "who has reached 55 years of age" at the beginning of clause (iii), and made a related change; deleted subdivisions C 6 and C 7, which formerly read: "6. Law-enforcement agents of the Armed Forces of the United States and federal agents who are otherwise authorized to carry weapons by federal law while engaged in the performance of their duties; 7. Law-enforcement agents of the United States Naval Criminal Investigative Service; and"; redesignated former subdivision C 8 as subdivision C 6 and made a related change; added the second, fifth, fifteenth, seventeenth through nineteenth, and twenty-first sentences in subsection D; substituted "and misdemeanors set forth in Title 46.2" for "or reckless driving" in subdivision E 7; substituted "the" for "this" in subdivision G 6; substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in subsection K; inserted the next-to-last sentence in subsection H; in subsection K, inserted "or the Department of Game and Inland Fisheries" in the first sentence and "or the copy of the permit application certified by the clerk as a de facto permit pursuant to subsection D" in the next-to-last sentence; added the definition of "Law-enforcement officer" in subsection M; in subsection P, inserted "or concealed weapon," "and (ii) except for the age of the holder of the permit or license and the type of weapon authorized to be carried," and "or license" and substituted "shall authorize the holder of the permit or license who is 21 years of age or older to carry a concelaed handgun" for "shall be valid"; inserted subsection R; redesignated former subsection R as subsection S; in subsection S, twice substituted "that" for "which" and "subtract" for "delete"; and made minor stylistic changes throughout.

The 2005 amendments. - The 2005 amendments by cc. 344 and 420 are identical, and in the first sentence of subsection K, inserted "as a special agent with the Alcoholic Beverage Control Board or" at the beginning of clause (ii), deleted "or" following "Department of State Police" and "with" following "Department of Game and Inland Fisheries"; and made minor stylistic changes.

The 2005 amendment by c. 424 inserted "auxiliary police officer or animal control officer" in subdivision B 7 and made minor stylistic changes.

The 2005 amendment by c. 441 rewrote subdivision E 13; and made minor stylistic changes.

The 2005 amendment by c. 839, effective October 1, 2005, substituted "the Commonwealth" for "this Commonwealth" in subdivision P1 6; repealed former subsection S which read: "The provisions of this statute or the application thereof to any person or circumstances that are held invalid shall not affect the validity of other provisions or applications of this statute that can be given effect without the invalid provisions or applications. This subsection is to reiterate § 1-17.1 and is not meant to add or subtract from that provision."

The 2007 amendments. - The 2007 amendment by c. 87 substituted "conservation police officer" for "game warden" in the first sentence of subdivision B 7.

The 2007 amendment by c. 272 inserted the present seventh sentence in subsection D.

The 2007 amendment by c. 408 added the third paragraph in subdivision B 7.

The 2007 amendment by c. 455 deleted "and" at the end of subdivision B 6; substituted "; and" for the period at the end of subdivision B 7; and added subdivision B 8.

The 2008 amendments. - The 2008 amendment by c. 69 inserted the present second sentence of subsection I, and added subsection K1.

The 2008 amendment by c. 75 inserted "any officer retired from the Division of Capitol Police" near the beginning of the first sentence of the first paragraph of subdivision B 7.

The 2008 amendment by c. 80, in subdivision B 7, inserted "or (iv) who is on long-term leave from such law-enforcement agency or board due to a service-related injury" and "or the agency that employs the officer" and made a related change in the first sentence, and added the present fourth through sixth sentences.

The 2008 amendment by c. 309 added "nor shall any proof of demonstrated competence expire" to the end of the introductory paragraph in subsection G.

The 2008 amendment by c. 464 added subdivision B 9; inserted "an attorney for the Commonwealth or assistant attorney for the Commonwealth may carry a concealed handgun pursuant to subdivision B 9. However" in subdivision C 4; and made minor stylistic changes.

The 2008 amendment by c. 742 added the last sentence in subsection J; and rewrote subsection J4, which read: "Any individual for whom it would be unlawful to purchase, possess or transport a firearm under § 18.2-308.1:2 or 18.2-308.1:3 , who holds a concealed handgun permit, may have the permit suspended by the court that issued the permit during the period of incompetency, incapacity or disability."

The 2009 amendments. - The 2009 amendment by c. 235 added the last two sentences in subsection K.

The 2009 amendment by c. 779 inserted "or any retired law-enforcement officer ... required by such statute" in subsection J3.

The 2009 amendment by c. 780 inserted "including an electronic, video, or on-line course" in subdivisions G 7 and P1 7.

The 2010 amendments. - The 2010 amendment by c. 387 inserted "or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories" in subdivision E 9.

The 2010 amendment by c. 433 added the last sentence of subdivision B 7.

The 2010 amendment by c. 576, in subsection D, inserted the present fifteenth through seventeenth paragraphs and the nineteenth paragraph; and in subsection H, in the first sentence, inserted "or of the clerk of court who has been authorized to issue such permits pursuant to subsection D" and made a related change.

The 2010 amendments by cc. 586 and 741, are identical, and in subsection I, in the first sentence, inserted "and upon receipt by the circuit court of criminal history record information as provided in subsection D" following "subsection D" and substituted "it is found that the applicant is subject to any of the disqualifications set forth in subsection E" for "there is good cause shown for refusing to reissue a permit" and added the present second and third sentences.

The 2010 amendments by cc. 602 and 709, are identical, and rewrote subsection J3.

The 2010 amendments by cc. 677 and 700 are identical, and inserted the nineteenth through twenty-second sentences in subsection D.

The 2010 amendments by cc. 740 and 841 are identical, and added subdivision B 10 and made a related change.

The 2010 amendment by c. 754 added subdivision K (vi) and made a related change.

The 2010 amendment by c. 863 inserted the subdivision B 7a designation and therein added the first paragraph; and in the following two paragraphs (the former last two paragraphs in subdivision B 7), twice inserted "subdivision 7 or" and inserted "or resigned" throughout.

The 2011 amendments. - The 2011 amendment by c. 231, in subsection D, substituted "the clerk shall certify on the application that the 45-day period has expired, and mail or send via electronic mail a copy of the certified application to the applicant within five business days of the expiration of the 45-day period" for "the clerk shall certify on the application that the 45-day period has expired, and send a copy of the certified application to the applicant" near the end.

The 2011 amendment by c. 234 added subsection K2.

The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" in subdivision E 8, subdivision E 19, subdivision E 20, and made a minor stylistic change.

The 2012 amendments. - The 2012 amendment by c. 132 added the last sentence in subsection A; and in subsection H, substituted "photo identification" for "photo-identification" in the third sentence and added the last four sentences.

The 2012 amendments by cc. 175 and 557 are identical, and deleted the former sixth through thirteenth sentences of subsection D relating to fingerprinting.

The 2012 amendment by c. 291, in subsection B, substituted "person" for "regularly enrolled member of a target shooting organization" in subdivision B 3, added subdivision B 11, and made related changes; in subsection D, inserted the fourth sentence and "via United States mail" in the seventh sentence; added "including, if applicable, any reason under subsection E which is the basis of the denial" at the end of the fifth sentence in subsection I; in subsection K, substituted "receives the application" for "accepts the application" in the sixth sentence and "received by the court" for "accepted by the court" in the ninth sentence; and substituted "receives the information" for "accepts the information" in the last sentence of subsection K1.

The 2012 amendment by c. 776 inserted "any campus police officers appointed under Chapter 17 ( § 23-232 et seq.) of Title 23 retired from a campus police department" in subdivision A 7; deleted "campus police officers appointed pursuant to Chapter 17 ( § 23-232 et seq.) of Title 23" in the definition of "law-enforcement officer" in subsection M.

The 2013 amendments. - The 2013 amendment by c. 559 substituted "armed forces" for "Armed Forces" throughout the section; in subdivision C 7, deleted "and" following "Marine Resources Commission," inserted "and any retired investigator of the security division of the State Lottery Department" in the first sentence, and made minor stylistic changes.

The 2013 amendment by c. 746 redesignated most of the former provisions of subsection B as C; redesignated former subsection C as subsection D; deleted former subsections D through S and transferred provisions to § 18.2-307.1 et seq.; substituted "subsection A of § 18.2-308.012 " for "subsection J1" in the introductory paragraph of subsection C; substituted " § 18.2-308.014 " for "subsection P" in the second paragraphs of subdivisions C 7a and C 8; deleted the formerly repealed subdivision 3 and redesignated the following accordingly in subsection C; in subdivision C 3, substituted "subdivision C 9" for "subdivision B 9" in the first sentence, and substituted "this article" for "subsection D hereof" and clause (i) through (iv) designators for clause (a) through (d) designators in the second sentence; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendments by cc. 45 and 450 are identical, and in subdivision C 7 inserted "any retired member of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 " in the first sentence.

The 2014 amendment by c. 225, substituted "Virginia Lottery" for "State Lottery Department" in subdivision C 7.

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Alcoholic Beverage Control Board" twice in subdivision C 7 and once in subdivision C 7a.

The 2015 amendment by c. 221 substituted "United States or National Guard" for "United States, national guard, or naval militia" in subdivision C 8.

The 2016 amendments. - The 2016 amendment by c. 257, in subdivision C 2, inserted "or retired law-enforcement officer pursuant to § 18.2-308.016 "; deleted subdivisions C 7, 7a, and 8 pertaining to carrying of concealed weapons by retired law-enforcement officers and renumbered remaining subdivisions accordingly; in subdivision D 3, substituted "C 7" for "C 9."

The 2016 amendments by cc. 589 and 672 are identical, and added subdivision C 10 and made related changes; and in the first sentence of subdivision D 3, inserted "a judge or justice of the Commonwealth," updated references, and made minor stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 142, in subsection A, substituted "sling bow" for "slingshot" in clause (ii) of the first sentence; deleted subdivision D 5, which read: "Harbormaster of the City of Hopewell"; and made stylistic changes.

The 2020 amendment by c. 958 substituted "Board of Wildlife Resources" for "Board of Game and Inland Fisheries" in subdivision C 6.

Law review. - For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 20; 7B M.J. Evidence, § 33; 9B M.J. Homicide, § 72; 17 M.J. Statutes, §§ 31, 61; 20 M.J. Weapons, §§ 2, 4

CASE NOTES

This section is sufficiently plain, when read in the light of its history. Withers v. Commonwealth, 109 Va. 837 , 65 S.E. 16 (1909).

Successive prosecution not barred. - Where both defendants were convicted in separate prosecutions of carrying a concealed weapon in a first prosecution and possessing a firearm as a convicted felon in a second prosecution, the statute barring a successive prosecution did not bar the subsequent prosecutions in defendants' cases because, to be concealed, the weapons had to first be possessed; and the possession and concealment might (or might not) have been close temporally, but there could be no dispute that defendants had to possess the firearms at issue, and that it took separate acts to conceal them; thus, the additional act of concealing the weapon made it a different act from merely possessing it, and the successive prosecutions did not rest on the same act. Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (Dec. 3, 2020).

Issues for fact finder. - Whether a weapon is upon a person or is readily accessible are largely questions of fact that must be left to reasonable inferences drawn by the fact finder from the facts and circumstances of the case. Leith v. Commonwealth, 17 Va. App. 620, 440 S.E.2d 152 (1994).

The determination of whether a particular knife falls within the meaning of a term used in the statute is a question of fact to be determined by the trier of fact. Delcid v. Commonwealth, 32 Va. App. 14, 526 S.E.2d 273 (2000).

Motion to suppress denied. - Trial court properly denied defendant's suppression motion as the cocaine was discovered during a proper search incident to a lawful arrest for a concealed weapon violation; it was legally irrelevant under the Fourth Amendment that the deputy chose not to charge defendant with the lesser concealed weapon violation of § 18.2-308 , upon discovering the suspected drugs during the search, enabling the deputy to charge defendant with possession of cocaine with intent to distribute under § 18.2-248 , and possession of a firearm while simultaneously possessing illegal drugs under subsection A of § 18.2-308 .4. Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448, 2003 Va. App. LEXIS 352 (2003).

Trial court did not err in denying defendant's motion to suppress; even assuming the arrest and search violated state law requiring release on a summons, the officers had probable cause to believe defendant committed the misdemeanor of possessing a concealed weapon and, thus, the arrest and search were not unconstitutional. An officer testified that the officer saw what the officer thought was the butt of a firearm protruding from defendant's rear pant's pocket. Coleman v. Commonwealth,, 2008 Va. App. LEXIS 463 (Oct. 14, 2008).

Accessibility of a concealed weapon. - Prompt and immediate use is clearly the evil proscribed by this section. But while the location of a weapon is a significant circumstance for the court to consider in weighing accessibility, a weapon is not inaccessible as a matter of law if available only upon noticeable body motion. Watson v. Commonwealth, 17 Va. App. 124, 435 S.E.2d 428 (1993).

Accessibility of a concealed weapon for "prompt and immediate use" is clearly the evil proscribed by this section. Leith v. Commonwealth, 17 Va. App. 620, 440 S.E.2d 152 (1994).

A defendant's argument that a weapon was not "hidden from common observation" because it was covered only by a readily movable windbreaker jacket lacked foundation in that this section requires only that the weapon be hidden from common observation, not that the covering be difficult to remove. Accessibility of a concealed weapon for prompt and immediate use is clearly the evil proscribed by the statute and the fact that the windbreaker was readily movable supported rather than weakened the defendant's conviction. Barley v. Commonwealth, No. 0117-00-3, 2000 Va. App. LEXIS 765 (Ct. of Appeals Nov. 28, 2000).

Appellate court's judgment that affirmed the trial court's judgment finding defendant guilty of concealing a weapon "about his person" as a second offense was plainly wrong and had to be reversed; once defendant exited defendant's car and closed the door to the car in which defendant had concealed a pistol in the car's center console compartment, defendant no longer had the pistol "about his person," as was required for a conviction on the charged offense because the pistol was no longer accessible to defendant so as to afford "prompt and immediate use." Pruitt v. Commonwealth, 274 Va. 382 , 650 S.E.2d 684, 2007 Va. LEXIS 109 (2007).

Concealment of firearm not requisite under § 18.2-308.4 . - Section 18.2-308.4 is not an extension of this section. The clear wording of § 18.2-308.4 prohibits unlawful possession of cocaine "simultaneously with" knowingly and intentionally possessing any firearm. No language in § 18.2-308.4 requires proof of concealment of weapons. Jefferson v. Commonwealth, 14 Va. App. 77, 414 S.E.2d 860 (1992).

Exception for conservators of the peace. - In interpreting this criminal statute, the court is bound by the statutory definition of "conservator of the peace" adopted by the legislature and codified in § 19.2-12 and is not permitted to ignore or rewrite the statute in favor of a broader common-law definition. Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).

Former § 9-183.8, concerning the licensing and registration of security guards, expressly states that compliance with the provisions of that article does not authorize any person to exercise any powers of a conservator of the peace and it necessarily follows that a registered security guard does not, by virtue of that status alone, fall within the exemption from the prohibition on carrying concealed weapons for conservators of the peace. Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).

Availability of weapon contemplated by this section means in a ready manner or without much difficulty. Watson v. Commonwealth, 17 Va. App. 124, 435 S.E.2d 428 (1993).

No application to convicted felon who has not had rights restored. - This section allows a person to place his firearm under his coat, hunting jacket or other outer garment to protect it from the weather, but it has no application to a convicted felon who has not had his rights to possess a weapon restored. United States v. Etheridge, 932 F.2d 318 (4th Cir.), cert. denied, 502 U.S. 917, 112 S. Ct. 323, 116 L. Ed. 2d 264 (1991).

Hidden from common view. - A weapon is hidden from common view under this section when it is hidden from all except those with an unusual or exceptional opportunity to view it. Clarke v. Commonwealth, 32 Va. App. 286, 527 S.E.2d 484, 2000 Va. App. LEXIS 299 (2000).

A gun found in the pocket on the back of the vehicle seat in which the defendant was seated was concealed from common view where it became visible to the investigating officer only when he approached the front passenger seat of the vehicle close enough for him to peer down into the seat's pocket compartment from directly above. Clarke v. Commonwealth, 32 Va. App. 286, 527 S.E.2d 484, 2000 Va. App. LEXIS 299 (2000).

Deputy had probable cause under the Fourth Amendment to believe that defendant was carrying a concealed weapon in violation of § 18.2-308 where: (1) except for a "couple of inches" of the butt of the handgun protruding from defendant's pocket, the rest of the weapon was completely hidden, and even those "couple of inches" were observed by the deputy only during the close-quarters encounter of a weapons frisk, not beforehand; (2) a reasonable probability existed that the firearm, both at the time of the pat-down and during the few moments immediately preceding it, was hidden from all except those with an unusual or exceptional opportunity to observe it; and (3) an equally reasonable probability supported the inference that defendant, having lied about having a firearm on him when directly questioned by the deputy, did not possess a permit issued under subsection D of § 18.2-308 authorizing him to carry a concealed weapon. Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448, 2003 Va. App. LEXIS 352 (2003).

Pistol under car floor mat warranted conviction. - Defendant was properly convicted of carrying a concealed weapon where police inventory revealed a fully loaded pistol under the driver's floor mat completely out of sight. Watson v. Commonwealth, 17 Va. App. 124, 435 S.E.2d 428 (1993).

Pellet gun protruding above vehicle seat. - Fact finder could infer beyond a reasonable doubt that a pellet gun was concealed from public view under § 18.2-308 A, where police officer could only see the back of the grip of the gun protruding above the driver's seat of defendant's vehicle. Fountain v. Commonwealth, No. 0262-01-2, 2002 Va. App. LEXIS 276 (Ct. of Appeals May 7, 2002).

Gun placed in vehicle console. - Evidence that defendant placed his gun in the console of his vehicle after a traffic accident was sufficient to support his conviction of concealment of a weapon, because, from his position next to the driver's door, defendant could have easily obtained his gun from the console, and thus the gun was concealed about his person. Pruitt v. Commonwealth,, 2006 Va. App. LEXIS 597 (May 24, 2006).

Evidence was insufficient to sustain defendant's conviction of possession of a concealed weapon where the testimony established that the console of the vehicle where the weapon was found was closed but the officer could not recall if it had a latch or had been latched as required by the exemption of this section. Hodges v. Commonwealth, 64 Va. App. 687, 771 S.E.2d 693, 2015 Va. App. LEXIS 147 (2015).

Evidence that defendant reached into the center console, where the firearm was found just below the lid, was sufficient to show that the firearm was carried "about his person." Ames v. Commonwealth, No. 0526-16-1, 2017 Va. App. LEXIS 277 (Nov. 7, 2017).

Word "personal" in the phrase "a personal, private motor vehicle" must mean something different from the word "private"; these are common words that should be read in light of their common meanings. Eley v. Commonwealth, 70 Va. App. 158, 826 S.E.2d 321, 2019 Va. App. LEXIS 92 (2019).

Firearm carried in "personal, private motor vehicle." - Defendant was properly convicted of carrying a loaded firearm equipped with a high-capacity magazine in public because the exemption for a firearm carried in a personal, private motor vehicle did not apply; because defendant knew that the truck in which he secured the firearm was stolen, it was not "a personal, private motor vehicle" within the meaning of the exemption. Eley v. Commonwealth, 70 Va. App. 158, 826 S.E.2d 321, 2019 Va. App. LEXIS 92 (2019).

Legislature did not intend to permit one to lawfully secure a dangerous firearm in a vehicle subject to personal ownership without consideration of who the owner or authorized user of that vehicle is; consequently, the General Assembly, by using the adjective "personal," meant at the very least to require that the vehicle in which one secures a firearm, in addition to being a "private" or non-public one, must also be one that the person claiming the exemption lawfully possesses or occupies. Eley v. Commonwealth, 70 Va. App. 158, 826 S.E.2d 321, 2019 Va. App. LEXIS 92 (2019).

Plain meaning of "personal." - Defendant was not an authorized user because under the plain meaning of "personal" as used in the statutory exemption or a firearm carried in a personal, private motor vehicle, the stolen vehicle was certainly not one intended "exclusively" for defendant or one subject to his authorized use; since defendant entered a plea of guilty to receiving stolen property, he admitted that he knew the pickup truck was stolen. Eley v. Commonwealth, 70 Va. App. 158, 826 S.E.2d 321, 2019 Va. App. LEXIS 92 (2019).

"Secured in a container or compartment." - Defendant's gun was in compliance with the exception to the concealed weapon prohibition in subdivision B 10 of § 18.2-308 because was "secured" in a closed, latched, and well-fastened glove compartment, and the General Assembly specifically chose to omit the term "locked" from the exception. Doulgerakis v. Commonwealth, 61 Va. App. 417, 737 S.E.2d 40, 2013 Va. App. LEXIS 36 (2013).

Trial court was not plainly wrong in finding that a concealed handgun in a zipped backpack on the floorboard of the front passenger seat was not in a secured container or compartment for purposes subdivision C 8 of § 18.2-308 where the statute was clear that the weapon had to be secured, and it was reasonable to find that a zipped compartment on a backpack would not be well-fastened. Myers v. Commonwealth, No. 1978-18-1, 2019 Va. App. LEXIS 306 (Dec. 27, 2019).

Defendant was entitled to the protection of subdivision C 8's exception to criminal liability for carrying a concealed weapon where the handgun was secured in a container within his personal, private vehicle. The ordinary meaning of secured (when it was not considered an exact synonym of locked) included a fully latched rigid container as well as a fully zipped soft container, such as one made of cloth, canvas, or leather. Thus, the lower court erred in affirming defendant conviction for violating subsection A of § 18.2-308 as defendant lawfully possessed the handgun secured in a backpack in his personal, private vehicle. Myers v. Commonwealth,, 2021 Va. LEXIS 41 (May 13, 2021).

Definition of "curtilage." - When defendant, charged with carrying a concealed weapon, said the possession occurred in the defendant's home's curtilage, the common-law definition of "curtilage" applied because this was consistent with the statute's plain reading, legislative intent, and statutory interpretation rules, so the sole fact that defendant owned the property defendant stood on at the time of the crime did not invoke the exception, and a more exclusive Fourth Amendment test did not apply. Foley v. Commonwealth, 63 Va. App. 186, 755 S.E.2d 473, 2014 Va. App. LEXIS 107 (Mar. 25, 2014).

Conviction under ordinance void ab initio. - Defendant's conviction order for carrying a concealed weapon in violation of Henrico County, Va., Ordinance 22-2, incorporating § 18.2-308 was void ab initio because the trial court exerted its power in a way not warranted by the law as no Henrico County, Va., Ordinance 22-2, incorporating § 18.2-308 , existed. Amin v. County of Henrico, 63 Va. App. 203, 755 S.E.2d 482, 2014 Va. App. LEXIS 130 (2014).

Burden of proof. - When defendant, charged with carrying a concealed weapon, said the possession occurred in the defendant's home's curtilage, defendant had to prove this exemption because the exemption provided a statutory defense, as (1) the exemption was not essential to complete the crime, since the exemption was separate from the crime elements, (2) the exemption excused otherwise criminal conduct, and (3) whether defendant stood in the curtilage was peculiarly within defendant's knowledge. Foley v. Commonwealth, 63 Va. App. 186, 755 S.E.2d 473, 2014 Va. App. LEXIS 107 (Mar. 25, 2014).

Commonwealth bears the burden of establishing that the exemption of this section does not apply. Hodges v. Commonwealth, 64 Va. App. 687, 771 S.E.2d 693, 2015 Va. App. LEXIS 147 (2015).

Evidence proved that weapon was concealed "about the person." - Pistol was certainly close to defendant where it was in console compartment of car that was located adjacent to the area that he was sitting, and thus, the evidence supported judge's finding that the weapon was concealed "about the person" within the meaning of this section. Leith v. Commonwealth, 17 Va. App. 620, 440 S.E.2d 152 (1994).

Evidence was sufficient to prove that a concealed weapon was "about" defendant's "person" under § 18.2-308 even though defendant was standing outside the car when the gun was discovered inside the car. Since no one returned to the vehicle after the four occupants exited the car, the only explanation was that the weapon was concealed prior to defendant leaving the back seat; thus, it was reasonable for the trial court to infer that the weapon was concealed while defendant sat in close proximity to it. Johnson v. Commonwealth,, 2010 Va. App. LEXIS 475 (Dec. 14, 2010).

Evidence was sufficient to prove beyond a reasonable doubt that defendant was carrying a concealed weapon "about his person" in violation of subsection A of § 18.2-308 . The evidence clearly established defendant was aware of both the presence and character of the gun, and the gun was readily accessible for prompt and immediate use and was within defendant's dominion and control. Colbert v. Commonwealth, No. 0292-17-2, 2018 Va. App. LEXIS 42 (Feb. 20, 2018).

Trial court was not plainly wrong in finding that the handgun was about appellant's person when appellant was sitting in the driver's seat and the handgun was in a backpack on the floorboard of the front passenger seat next to him. Myers v. Commonwealth, No. 1978-18-1, 2019 Va. App. LEXIS 306 (Dec. 27, 2019).

Insufficient evidence that weapon was "about the person" of defendant. - Defendant's conviction for carrying a concealed weapon, second offense, under subsection A of § 18.2-308 , was improper because the evidence was insufficient to permit a reasonable trier of fact to conclude that the gun was "about the person" of defendant when he hid it under the rain catch and walked away. His gun had not been concealed prior to his placing it under the rain catch and no evidence showed that he remained in the proximity of the rain catch and the hidden gun for any appreciable length of time beyond that necessary to place his pistol under the rain catch. Ruth v. Commonwealth,, 2011 Va. App. LEXIS 317 (Oct. 18, 2011).

Pistol in handbag warranted conviction. - Defendant was properly convicted of carrying a concealed weapon where she carried a pistol in a brown, zippered handbag. Schaaf v. Commonwealth, 220 Va. 429 , 258 S.E.2d 574 (1979).

A pistol carried in a handbag is not only near and about the carrier's person, hidden from common observation, but in some handbags it is so accessible that it could be fired without being removed therefrom. It is so connected with the person as to be readily accessible for use or surprise if desired. Schaaf v. Commonwealth, 220 Va. 429 , 258 S.E.2d 574 (1979).

Defendant violated this section by carrying a handgun in a gym bag. Hall v. Commonwealth, 12 Va. App. 559, 389 S.E.2d 921 (1990).

And Sutherland v. Commonwealth , 109 Va. 834 , 65 S.E. 15 (1909), held overruled to the extent that it may be in conflict with holding approving conviction for concealing pistol in handbag. See Schaaf v. Commonwealth, 220 Va. 429 , 258 S.E.2d 574 (1979).

Sufficient reasons to deny permit and authority to grant limited permit. - Trial court sufficiently stated reasons for its denial of an application to carry a concealed weapon, and the court had authority to grant a limited permit; where the trial court stated that applicant failed to give reasons for the issuance of a permit which demonstrated a need to carry a concealed weapon and that there were suitable alternatives to carrying a concealed weapon available to applicant, the court sufficiently complied with the requirement that specific reasons for the denial be stated; furthermore, permit restrictions of the limited permit were consistent with the court's authority to issue such a permit. In re Gatti, No. 0083-89-4 (Ct. of Appeals May 9, 1989).

When weapon concealed. - Carrying a weapon in one's back pocket, covered by a duffle bag, constitutes carrying a concealed weapon if the handle of the weapon, the only part of the weapon extending outside of the pocket, is concealed by the duffle bag. Main v. Commonwealth, 20 Va. App. 370, 457 S.E.2d 400 (1995) (decision prior to 1995 amendment).

Evidence was sufficient to prove that handgun carried by defendant was concealed, where police office who viewed defendant from the back and front observed no visible sign that defendant was carrying a weapon and later saw defendant retrieve a handgun from his right coat pocket and drop it on the ground. Winston v. Commonwealth, 26 Va. App. 746, 497 S.E.2d 141 (1998).

It did not appear that defendant's conduct was in compliance with subsection A of § 18.2-308 , which prohibited carrying a concealed firearm about the person without a permit. Virginia case law suggested that defendant, whose concealed-carry permit had expired, carried the firearm at issue "about his person" and in a concealed manner when he held a messenger bag (in which the firearm was hidden) in the backseat of his vehicle. United States v. Masciandaro, 648 F. Supp. 2d 779, 2009 U.S. Dist. LEXIS 76802 (E.D. Va. 2009), aff'd, 638 F.3d 458, 2011 U.S. App. LEXIS 5964 (4th Cir. Va. 2011).

Sufficiency of evidence of intent to conceal. - Assuming that this statute requires proof of intent to conceal, the circumstantial evidence, viewed in the light most favorable to the commonwealth, supported a finding that the defendant did, in fact, intentionally place a weapon beneath a jacket on the passenger seat next to him where the defendant told a police officer the weapon was in the passenger seat, the officer found the weapon there, positioned beneath the jacket, the defendant himself testified that the weapon could not have fallen from the console to a location beneath the jacket and, finally, no evidence indicated that anyone besides the defendant approached the car and put the weapon beneath the jacket. Barley v. Commonwealth, No. 0117-00-3, 2000 Va. App. LEXIS 765 (Ct. of Appeals Nov. 28, 2000).

Appellant's conviction under subsection A of § 18.2-308 was affirmed where after the accident and after all medical treatment was completed, appellant intentionally decided not to reveal the handgun or uncover it, despite realizing sometime earlier that the handgun had become hidden, he only revealed the gun when an officer asked if he had a gun, and his desire to keep warm did not negate his intent to keep the gun hidden. Williams v. Commonwealth,, 2015 Va. App. LEXIS 361 (Dec. 8, 2015).

Sufficient evidence of concealment. - Conviction for carrying a concealed weapon was supported by testimony that defendant sometimes carried the dagger in his pants pocket; in addition, the trial judge could have reasonably concluded that the officer saw defendant when he came from the public street into the hallway and thus, could have inferred that the dagger, which was concealed when the officer searched defendant, was likewise concealed before defendant entered the building. Edwards v. Commonwealth, No. 1960-02-4, 2004 Va. App. LEXIS 36 (Ct. of Appeals Jan. 28, 2004).

Evidence was sufficient to convict defendant of possession of a concealed weapon by a convicted felon, in violation of § 18.2-308.2 , where defendant admitted that he possessed a razor and any razor was explicitly included as a weapon in subsection A of § 18.2-308 . The manner in which defendant used the razor was irrelevant to the analysis. Uzzle v. Commonwealth,, 2010 Va. App. LEXIS 239 (2010).

Evidence was sufficient to support defendant's conviction of unlawfully possessing a concealed weapon because the trial court rationally could have inferred from the evidence that defendant's firearm was tucked away around his waistline, that his shirt was covering the firearm prior to him being told to raise his hands above his head, and that it was only the officer's instructing of appellant to raise his hands above his head that revealed the firearm. Zelaya v. Commonwealth, No. 1987-19-4, 2020 Va. App. LEXIS 277 (Nov. 10, 2020).

Insufficient evidence of concealment. - Although the police officers testified that they did not observe the gun in the police wagon before putting appellant inside, that testimony did not exclude the hypothesis that the gun was in the wagon and hidden from common observation. Moreover, the evidence proved that two police officers searched appellant after he was captured and arrested. Both officers testified that they found nothing on his person when they searched him. This evidence failed to prove beyond a reasonable doubt that the gun was hidden on his person when he was placed in the wagon. Glaze v. Commonwealth, No. 0822-94-2 (Ct. of Appeals April 25, 1995) (decision prior to 1995 amendment).

Evidence was insufficient to convict defendant of carrying a concealed weapon under subsection A of § 18.2-308 because the weapon was not on defendant's person, but it was located in a locked glove compartment of a car in which he was a front seat passenger, and defendant did not possess a key to the locked glove compartment. Hunter v. Commonwealth, 56 Va. App. 50, 690 S.E.2d 792, 2010 Va. App. LEXIS 130 (2010).

Physical characteristics of knife and not purpose for carrying determine whether the knife is a weapon contemplated by this section. Ricks v. Commonwealth, 27 Va. App. 442, 499 S.E.2d 575 (1998).

Not all knives prohibited. - Defendant's knife, which was described by the arresting officer as a steak knife, was not a weapon "of like kind" to a dirk, despite the prosecutor's allegation that it satisfied the definition because it had a sharp end at the bottom edge and an extreme point that would certainly cut straight through flesh if propelled with any type of force. Goodwin v. Commonwealth,, 2005 Va. App. LEXIS 265 (July 12, 2005).

Defendant's conviction for possession of a concealed weapon by a convicted felon in violation of subsection A of § 18.2-308.2 was vacated because the evidence did not establish that the knife defendant possessed was one of the items enumerated in subsection A of § 18.2-308 or that it was a weapon of like kind to one enumerated, and the record was devoid of any facts on which one could find that the knife was either designed for fighting purposes or commonly understood to be a weapon. McMillan v. Commonwealth, 55 Va. App. 392, 686 S.E.2d 525, 2009 Va. App. LEXIS 571 (2009).

Circumstances surrounding possession relevant to determining nature of bladed instrument. - The determination of whether a given bladed instrument is an implement or a weapon requires consideration not only of the physical character of the instrument itself but also of the circumstances surrounding its possession and use. Delcid v. Commonwealth, 32 Va. App. 14, 526 S.E.2d 273 (2000).

Carrying a concealed non-weapon does not violate this section even though that non-weapon may be "of like kind" to a dirk; for the offense to be committed, the object carried concealed must be a weapon and the purpose for which it is created and employed is a critical distinction between an implement and a weapon. Thus, while the specific purpose for which the item is possessed is not itself an element of the crimes defined by this section, that purpose is one of the defining characteristics of the item in question. Delcid v. Commonwealth, 32 Va. App. 14, 526 S.E.2d 273 (2000).

Box cutter is not a weapon within the meaning of this section. - Appellate court erred in upholding the trial court's conviction finding defendant guilty of possessing a concealed weapon, a box cutter, after having been convicted of a felony, in violation of subsection A of § 18.2-308 .2; the box cutter was not a weapon enumerated in subsection A of § 18.2-308 and did not fit in the category in that statute that included weapons of any kind like the weapons enumerated in subsection A of § 18.2-308. Harris v. Commonwealth, 274 Va. 409 , 650 S.E.2d 89, 2007 Va. LEXIS 103 (2007).

Razor blade. - Razor blade found in defendant's pocket was a concealed weapon within the definition in § 18.2-308 A, and there was no requirement that a handle be attached to the blade to bring it within the statute's definition. Sykes v. Commonwealth, 37 Va. App. 262, 556 S.E.2d 794, 2001 Va. App. LEXIS 697 (2001).

Knife constituted a "weapon of like kind." - A convicted felon's knife constituted a "weapon of like kind" where the knife was not a common pocketknife, but had physical features making it similar to several of the prohibited knives listed in clause A (ii) of this section, and the blade came to a point like a bowie knife, with one side sharpened and the other side shaped with a concave curvature. There was no error in the trial court's denial of his motion to strike the evidence. Ohin v. Commonwealth, 47 Va. App. 194, 622 S.E.2d 784, 2005 Va. App. LEXIS 509 (2005).

Conviction under § 18.2-308 .2 for possessing a concealed weapon after having been convicted of a felony was proper because a knife found on defendant's person had similar characteristics to a bowie knife, such as a single sharp edge, a dull flat edge, and point, to constitute a "weapon of like kind" under subsection A of § 18.2-308 . Gilliam v. Commonwealth, 49 Va. App. 508, 642 S.E.2d 774, 2007 Va. App. LEXIS 143 (2007).

Defendant's knuckle knife constituted a weapon prohibited from concealment because, by definition, brass knuckles were a weapon as they were designed for fist-fighting purposes; a sergeant testified that in his experience, brass knuckles were used to inflict pain upon another; defendant testified that his knife was used in the same manner as brass knuckles; defendant's knuckle knife had similar characteristics of metal knucks as there was a grip for the hand to fit in, with a large block of metal or other material that extended well above the holder's hand; and the addition of the blade did not disqualify the knuckle knife as a weapon of like kind to those listed in this statute. Williams v. Commonwealth, No. 0224-20-4, 2020 Va. App. LEXIS 318 (Dec. 29, 2020).

Kitchen knife did not constitute a "weapon of like kind." - Although the kitchen knife possessed by defendant was a potentially dangerous object, it was not a "weapon," because it was not designed for fighting purposes nor was it commonly understood to be a "weapon"; therefore, defendant's conviction for possession of a concealed weapon by a felon under § 18.2-308 was vacated. Farrakhan v. Commonwealth, 273 Va. 177 , 639 S.E.2d 227, 2007 Va. LEXIS 10 (2007).

Because there was no evidence that defendant's kitchen steak knife was designed for fighting purposes, nor was it commonly understood to be a weapon, it was not a weapon as defined in subsection A of § 18.2-308 ; therefore, the court did not need to consider whether it was a weapon of like kind. Defendant's conviction for being a convicted felon in possession of a weapon under subsection A of § 18.2-308 .2 was reversed. Green v. Commonwealth,, 2009 Va. App. LEXIS 573 (Dec. 22, 2009).

Butterfly knife. - Defendant's knife was a weapon "of like kind" to a dirk and was therefore a deadly weapon, where it was a butterfly knife which, when opened, most closely resembled a dirk, and it was described by arresting officer as a "fighting knife." Kingrey v. Commonwealth, No. 2202-97-2 (Ct. of Appeals July 13, 1999).

In order to prove an item found in a defendant's possession is "of like kind," the Commonwealth must prove that it is substantially similar to one of the weapons enumerated in subsection A. Thompson v. Commonwealth, 277 Va. 280 , 673 S.E.2d 469, 2009 Va. LEXIS 35 (2009).

Investigative detention. - Evidence was sufficient to provide a reasonable suspicion that defendant was engaged, or was about to engage, in a criminal activity which justified brief investigative detention, where police officers observed defendant's behavior as being consistent with a drive-up drug transaction and where they discovered a gun in defendant's coat pocket. Brown v. Commonwealth, No. 0178-01-1, 2001 Va. App. LEXIS 653 (Ct. of Appeals Dec. 4, 2001).

Lawful search and seizure. - Officer had reasonable basis for belief that defendant was carrying a concealed weapon where: (1) he saw defendant walk away from his friends when other officers questioned them; (2) defendant's answers to questions about his age and location of residence appeared suspicious; and (3) officer noticed heavy object in pocket of defendant's jacket, thus, the court properly denied defendant's motion to suppress handgun which officer discovered when he conducted pat-down. Andrews v. Commonwealth, 37 Va. App. 479, 559 S.E.2d 401, 2002 Va. App. LEXIS 89 (2002).

Reasonable suspicion. - Although the circumstances might have provided the officer with a hunch that defendant might have been carrying a concealed weapon, they alone did not establish the reasonable suspicion necessary to justify a seizure in order to conduct a pat-down search; defendant's nervous behavior, distracted responses, and disregard for the officer's instructions, without additional factors, did not support a reasonable suspicion that defendant possessed a weapon, the seizure and pat down violated defendant's Fourth Amendment rights, and in light of his conditional guilty plea, the case was remanded to give him a chance to withdraw his plea. Minter v. Commonwealth,, 2014 Va. App. LEXIS 391 (Dec. 2, 2014).

Possession of a firearm by a convicted felon is not lesser included offense of carrying a concealed weapon. - Sections 18.2-308.2 , 18.2-308 , and 18.2-282 each require proof of an element that the others do not. Morris v. Commonwealth, 45 Va. App. 181, 609 S.E.2d 92, 2005 Va. App. LEXIS 79 (2005).

Conviction not based on same evidence as later conviction of being a felon in possession of a handgun. - Defendant's conviction of possession of a firearm by a felon, § 18.2-308.2 , was affirmed; the possession by a felon conviction was based on different evidence than the conviction for carrying a concealed weapon, which was based on the same incident, and therefore § 19.2-294 did not bar the possession by a felon conviction. Jefferson v. Commonwealth, 43 Va. App. 361, 597 S.E.2d 290, 2004 Va. App. LEXIS 277 (2004), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

Sufficient evidence. - Evidence was sufficient to support conviction for possession of a concealed weapon, in violation of § 18.2-308 , because the trial court could have reasonably concluded that defendant was aware of the presence and character of the gun under the driver's seat of his car and it was subject to his dominion and control based on its location. Gillard v. Commonwealth, No. 0037-02-2, 2003 Va. App. LEXIS 437 (Ct. of Appeals Aug. 19, 2003).

Shotgun discovered on the floorboard between the center console and the passenger seat of defendant's vehicle, hidden from common view and observation, provided sufficient evidence to support defendant's conviction for possession of a concealed weapon, despite fact defendant alerted officer to weapons' presence. Weatherford v. Commonwealth,, 2005 Va. App. LEXIS 251 (June 28, 2005).

Because the police found a concealed weapon in defendant's possession that, as a convicted felon, defendant could not lawfully carry in a concealed manner, and because defendant failed to prove that a miscarriage of justice had occurred after failing to preserve a claim, Va. Sup. Ct. R. 5A:18 barred review of the issue. Davis v. Commonwealth,, 2006 Va. App. LEXIS 444 (Oct. 10, 2006).

Defendant's convictions for illegal possession of a firearm under §§ 18.2-308.2 , 18.2-308.4 , and 18.2-308 were affirmed as defendant constructively possessed a handgun since: (1) defendant was convicted of possession of cocaine and marijuana with intent to distribute; (2) a handgun was found in the driver's seat of defendant's vehicle; (3) defendant was either sitting on the handgun or just next to it when an officer first saw defendant; and (4) a handgun was as much a tool of the illegal drug trade as the drugs, digital scales, and plastic distribution bags found in defendant's vehicle. Bolden v. Commonwealth, 49 Va. App. 285, 640 S.E.2d 526, 2007 Va. App. LEXIS 52 (2007).

Conviction for possession of a concealed weapon was supported by evidence showing that defendant was aware of the presence and character of the firearm and it was within defendant's dominion and control. Among other things, defendant exited vehicle along with the only other passenger and attempted to contact the officer before the officer could get to the vehicle, and the gun was in proximity to where defendant had been sitting. Bolden v. Commonwealth, 275 Va. 144 , 654 S.E.2d 584, 2008 Va. LEXIS 6 (2008), cert. denied, 129 S. Ct. 284, 2008 U.S. LEXIS 6378, 172 L. Ed. 2d 208 (U.S. 2008).

Size and composition of the weapons, along with their proximity to defendant and the fact that they were visible to defendant in his position in the car but not immediately visible to those outside the vehicle, supported the conclusion that defendant was aware of their presence, knew that they were firearms, and had ready access to them, supporting defendant's conviction for carrying a a concealed weapon. Turner v. Commonwealth,, 2014 Va. App. LEXIS 251 (June 24, 2014).

Evidence was sufficient to convict defendant of carrying a concealed weapon because, while he stated was that he was carrying a firearm in his hand the entire time, the trial court was at liberty to discount his self-serving statements as little more than lying to conceal his guilt and could treat such prevarications as affirmative evidence of guilt where the police officers, who were looking for defendant in connection with a shooting, each testified that he could see both of defendant's hands while he was walking in an alley, and they were empty. Shelton v. Commonwealth,, 2015 Va. App. LEXIS 77 (Mar. 10, 2015).

Evidence was sufficient to support defendant's convictions because a confidential informant arranged the purchase of an ounce of heroin from a person who could be found at a laundromat and who regularly drove a scooter and carried a firearm, and the trial court could reasonably conclude that defendant, who was found in the same location, carrying a firearm, and standing next to a scooter containing heroin, was the individual with whom the informant arranged the sale. Harris v. Commonwealth, No. 0717-15-2, 2016 Va. App. LEXIS 172 (Ct. of Appeals May 24, 2016).

Evidence defendant was in the driver's seat of a car emitting a strong odor of unburned marijuana and had his hands inside the console in which police found the firearm supported defendant's convictions for possession of a concealed weapon, possession of a firearm by a convicted felon, and possession of marijuana. Ames v. Commonwealth, No. 0526-16-1, 2017 Va. App. LEXIS 277 (Nov. 7, 2017).

Sufficient evidence of constructive possession. - Evidence was sufficient for the circuit court to find that defendant constructively possessed the two firearms discovered by a detective because the guns were in a bag on the front passenger seat of the vehicle that defendant was driving and within his dominion and control; defendant's girlfriend testified that she owned the vehicle and that defendant frequently drove it. Raspberry v. Commonwealth, 71 Va. App. 19, 833 S.E.2d 894, 2019 Va. App. LEXIS 241 (2019).

Petition not timely filed. - Petition to Court of Appeals was considered a review pursuant to subsection D of this section, and thus its filing more than 30 days after the decision was untimely. It was not treated as a "petition for appeal" under Rule 5A:12 whereby the filing would have followed the record within 40 days and been timely. In re Cummins, 19 Va. App. 128, 449 S.E.2d 263 (1994).

Preservation for review. - As defendant did not move to strike the charge of possession of a concealed weapon by a felon, he failed to preserve his claim that the evidence was insufficient to convict him. And as he claimed the prosecution failed to prove an element of the crime, i.e., that the knives he possessed were not of "like kind" to those enumerated weapons in § 18.2-308 , not that there was affirmative evidence that an element of the crime did not occur, he did not show that the ends of justice exception to Va. Sup. Ct. R. 5A:18 should apply to his conviction. Massa v. Commonwealth,, 2012 Va. App. LEXIS 300 (Sept. 25, 2012).

Concealed weapons charges as evidence of prior crimes. - Circuit court did not abuse its discretion by refusing to admit all of the victim's charges and convictions because the excluded charges and convictions failed to demonstrate the victim's propensity to engage in violent or turbulent conduct and thus, were not relevant to defendant's self-defense claim; the victim's concealed weapon convictions failed to establish his propensity to engage in violent or turbulent conduct, and defendant failed to present any evidence suggesting that the victim's concealed weapon convictions involved violent conduct. Anderson v. Commonwealth, 69 Va. App. 396, 819 S.E.2d 857, 2018 Va. App. LEXIS 303 (2018).

CIRCUIT COURT OPINIONS

Res judicata. - If an applicant is disqualified from receiving a concealed weapons permit, subsequent applications are barred by the doctrine of res judicata and will only be considered on the merits once the grounds for disqualification cease to exist; the doctrine of res judicata will not bar the consideration of an application based on a change of circumstances not previously brought or that could have been brought to the court's attention. In re Portillo, 91 Va. Cir. 298, 2015 Va. Cir. LEXIS 195 (Fairfax County Oct. 14, 2015).

Applicant's third request for a concealed weapons permit was barred by res judicata because (1) a court of appeals decision affirming the denial of the applicant's prior request was final, and, (2) under Va. Sup. Ct. R. 1:6, res judicata was applicable to the request. In re Portillo, 91 Va. Cir. 298, 2015 Va. Cir. LEXIS 195 (Fairfax County Oct. 14, 2015).

Proof of residency a reasonable requirement for issuance of concealed handgun permit. - Trial court granted a police department's demurrer in a declaratory judgment action pursuant to § 8.01-184 , and determined that the department could require applicants for concealed handgun permits to present evidence of residency in addition to a State application, as subsection D of § 18.2-308 only allowed the court to grant such a permit to a resident of the county, and the submission of corroborating proof of residence was a reasonable request. Merkel v. Manger,, 2003 Va. Cir. LEXIS 80 (Fairfax County May 5, 2003).

Exception for conservators of the peace. - Former police officer who resigned was not entitled to proof of consultation and review (police credentials) under subdivision B 8 [now subdivision B 7] because his resignation could not be equated with retirement, which would have entitled him to the credentials. Fey v. Rappoport, 58 Va. Cir. 190, 2002 Va. Cir. LEXIS 32 (Fairfax County 2002).

Former police officer seeking mandamus relief to require the issuance to him of proof of consultation and review, which would allow him to carry a concealed weapon, under subdivision B 8 [now subdivision B 7], had an adequate remedy at law in that he could apply for a concealed weapons permit under subdivision D, and the fact that such permit would only allow him to carry a handgun and would require payment of a fee did not render this remedy inadequate. Fey v. Rappoport, 58 Va. Cir. 190, 2002 Va. Cir. LEXIS 32 (Fairfax County 2002).

Prior felony conviction. - Applicant's third request for a concealed weapons permit was denied because (1) the applicant had not waited 16 years from the date of the applicant's felony conviction or release from incarceration and (2) the applicant had not presented good cause to grant a permit, even though the applicant's firearm rights had been judicially restored. In re Portillo, 91 Va. Cir. 298, 2015 Va. Cir. LEXIS 195 (Fairfax County Oct. 14, 2015).

Permit revoked. - Defendant's gun permit was revoked for defendant's convictions of obstructing justice and brandishing a firearm; subsection J of § 18.2-308 did not only refer to a felony conviction, as the phrase "an offense" referred to the second misdemeanor offense, which triggered a disqualification under subsection E of § 18.2-308 . Commonwealth v. Campbell, 60 Va. Cir. 232, 2002 Va. Cir. LEXIS 259 (Spotsylvania County 2002).

Simultaneous prosecutions not barred. - Requirements for proving a concealed weapons misdemeanor under this section were distinct from the requirements of § 18.2-308.2 , although the two charges were commenced at the same or concurrent time, and the prosecutions were not sequential in nature simply because the misdemeanor was more amenable to an expeditious resolution than the felony; thus, no violation of § 19.2-294 resulted. Commonwealth v. Turner, 62 Va. Cir. 209, 2003 Va. Cir. LEXIS 312 (Charlottesville 2003).

Discretion not to prosecute. - Defendant's alleged act of carrying a concealed weapon, a Class 1 misdemeanor, remains well within the Commonwealth's Attorney's discretion not to prosecute. Commonwealth v. Wilkerson,, 2021 Va. Cir. LEXIS 185 (Newport News Sept. 1, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Applicant for concealed handgun permit who is denied a permit based on submission of an incomplete application should not have his application dismissed with prejudice and may reapply by submitting a complete application pursuant to subsection D of this section. See opinion of Attorney General to The Honorable David F. Pugh, Judge, Seventh Judicial Circuit, 04-40 (7/13/04).

Armed special conservator of the peace for school safety purposes. - Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

Concealed weapon prohibited on school property. - A person with a valid concealed weapons permit may not carry a gun onto school property or a school bus and keep the weapon on or about his or her person at all times. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 00-022 (11/9/00).

Concealed weapons not permitted on lands controlled by the Department of Conservation and Recreation. - A person with a concealed weapons permit is prohibited from carrying a concealed weapon onto lands controlled by the Department of Conservation and Recreation. See opinion of Attorney General to The Honorable Richard H. Black, Member, House of Delegates, 01-080 (12/6/01).

The sheriff is the chief law-enforcement officer of the office of the sheriff for the purposes of subdivision B 8 [now subdivision B 7]. See opinion of Attorney General to the Honorable John R. Newhart, Sheriff for the City of Chesapeake, 01-065 (3/26/02).

Retired deputy sheriff's identification card satisfied subdivision B 8. - A retired deputy sheriff's identification card, which was issued by the sheriff and identified the holder as a retired deputy sheriff, satisfied the requirement of subdivision B 8 [now subdivision B 7]. See opinion of Attorney General to the Honorable John R. Newhart, Sheriff for the City of Chesapeake, 01-065 (3/26/02).

Duty of clerk of court when issuing concealed weapon permit. - When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations district court whether the applicant has any criminal charges or protective orders pending against him in those courts. The failure of a clerk to detect any existing protective orders or criminal charges does not constitute gross negligence, provided the clerk has followed the statutory requirements governing the issuance of a concealed weapon permit. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk of the Circuit Court, Wise County and City of Norton, 11-018, 2011 Va. AG LEXIS 26 (5/13/11).

Fees for concealed handgun permits. - Discretionary fees relating to the processing of a concealed handgun permit may be set by the sheriff conducting the background investigation and the State Police, according to the provisions of § 18.2-308.03 . The county board of supervisors and the circuit court of the county in which the permit is to be issued are not statutorily authorized to set any portion of the fees. See opinion of Attorney General to The Honorable Gordon F. Erby, Clerk, Circuit Court of Lunenburg County, 19-055, 2020 Va. AG LEXIS 25 (2/21/20).

Carrying concealed weapons. - Governing boards of colleges and universities may not impose a general prohibition on the carrying of concealed weapons by permitted individuals. Pursuant to specific grants of statutory authority, however, colleges and universities may regulate the conduct of students and employees to prohibit them from carrying concealed weapons on campus. See opinion of Attorney General to The Honorable R. Creigh Deeds, Member, Senate of Virginia, 05-078 (1/4/06).

Under current law, a university lawfully may promulgate a policy that prohibits persons from openly carrying a firearm in the buildings that are subject to the policy. However, where a university adopted a policy rather than a regulation, it has not "otherwise prohibited by law" persons with a concealed carry permit from possessing a handgun, and, therefore, the policies may not be used to prohibit persons with such a permit from carrying a concealed firearm into the buildings covered by the policy. See opinion of Attorney General to The Honorable Emmett W. Hanger, Jr., Member, Senate of Virginia, 11-078, 2011 Va. AG LEXIS 54 (7/1/11).

Carrying concealed handguns in state parks. - The Department of Conservation and Recreation does not have the authority to issue regulations prohibiting, within state parks, the carrying of concealed handguns by valid permit holders. See opinion of Attorney General to The Honorable Richard H. Black, Member, House of Delegates, 02-074 (9/9/02).

Carrying concealed weapon in car. - An individual may not keep a firearm stored in his vehicle at a place of employment if there is a company policy or signage prohibiting firearms on the premises. See opinion of Attorney General to The Honorable Stephen D. Newman, Member, Senate of Virginia, 11-111, 2012 Va. AG LEXIS 18 (5/25/12).

Provided the handgun is properly secured in a container or compartment within the vehicle, persons who may lawfully possess a firearm but have not been issued a concealed weapons permit may possess, in a vehicle, a handgun that is loaded and the handgun may remain within reach of a driver or passenger under such conditions; Furthermore, for a handgun to be "secured in a container or compartment," such storage tool need not be locked. See opinion of Attorney General to The Honorable Stephen D. Newman, Member, Senate of Virginia, 11-111, 2012 Va. AG LEXIS 18 (5/25/12).

Deferred finding of guilt relating to first-offense assault and battery under § 18.2-57.3 is not a "conviction" in the legal sense of the word, such a deferred finding is considered a "conviction" for purposes of applying that section in subsequent proceedings and for purposes of this section during a defendant's term of probation; also, the person's "conviction" terminates once the person completes probation and the deferred finding proceedings against him are dismissed, except for purposes of applying § 18.2-57.3 in any future proceeding under that section. See opinion of Attorney General to The Honorable Gary A. Mills, Judge, Seventh Judicial District, 04-066 (9/27/04).

Release of names of concealed handgun carry permittees. - The Department of State Police possesses the discretionary authority to release the names of concealed handgun carry permittees pursuant to a request under the The Virginia Freedom of Information Act. See opinion of Attorney General to The Honorable Dave Nutter, Member, House of Delegates, 07-027 (4/6/07).

Handgun permit information disclosure. - Beginning on July 1, 2013, the clerk of court must withhold from public disclosure the applicant's name and other information contained in all concealed handgun permit applications and orders, including those filed prior to the July 1, 2013, effective date. The clerk must withhold from public disclosure court orders issuing such permits, whether they are maintained electronically or in order books. The clerk is required to comply with this statute, irrespective of receiving any funding from the General Assembly. See opinion of Attorney General to the Honorable Ray S. Campbell, Jr., Clerk of the Circuit Court for Caroline County, 13-036, 2013 Va. AG LEXIS 50 (7/12/13).

Attorney for the Commonwealth or assistant attorney for the Commonwealth. - The 2008 amendments to § 18.2-308 clearly exempt Commonwealth's attorneys and assistant Commonwealth's attorneys from the general prohibitions on carrying concealed handguns, subject only to the restrictions in subsection J1 of § 18.2-308 . Therefore, pursuant to state law such individuals may carry concealed handguns on school property. See opinion of Attorney General to The Honorable R. Lee Ware, Member, House of Delegates, 08-111, 2009 Va. AG LEXIS 23 (7/13/09).

Restrictions through voluntary membership in an organization. - An individual excepted from the concealed handgun prohibition found in § 18.2-308 may be restricted from carrying a weapon through voluntary membership in an organization that restricts the carrying of firearms by members while on the organization's property. See opinion of Attorney General to the Honorable Richard H. Black, Member, Senate of Virginia, 13-005, 2013 Va. AG LEXIS 83 (10/11/13).

Local resolutions to opt out of gun safety laws have no legal effect. - Localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact. See opinion of Attorney General to The Honorable Jerrauld C. Jones, Member, Virginia House of Delegates, 19-059, 2019 Va. AG LEXIS 38 (12/20/19).

§ 18.2-308.01. Carrying a concealed handgun with a permit.

  1. The prohibition against carrying a concealed handgun in clause (i) of subsection A of § 18.2-308 shall not apply to a person who has a valid concealed handgun permit issued pursuant to this article. The person issued the permit shall have such permit on his person at all times during which he is carrying a concealed handgun and shall display the permit and a photo identification issued by a government agency of the Commonwealth or by the U.S. Department of Defense or U.S. State Department (passport) upon demand by a law-enforcement officer. A person to whom a nonresident permit is issued shall have such permit on his person at all times when he is carrying a concealed handgun in the Commonwealth and shall display the permit on demand by a law-enforcement officer. A person whose permit is extended due to deployment shall carry with him and display, upon request of a law-enforcement officer, a copy of the documents required by subsection B of § 18.2-308.010 .
  2. Failure to display the permit and a photo identification upon demand by a law-enforcement officer shall be punishable by a $25 civil penalty, which shall be paid into the state treasury. Any attorney for the Commonwealth of the county or city in which the alleged violation occurred may bring an action to recover the civil penalty. A court may waive such penalty upon presentation to the court of a valid permit and a government-issued photo identification. Any law-enforcement officer may issue a summons for the civil violation of failure to display the concealed handgun permit and photo identification upon demand.
  3. The granting of a concealed handgun permit pursuant to this article shall not thereby authorize the possession of any handgun or other weapon on property or in places where such possession is otherwise prohibited by law or is prohibited by the owner of private property.

    (2013, c. 746.)

§ 18.2-308.02. Application for a concealed handgun permit; Virginia resident or domiciliary.

  1. Any person 21 years of age or older may apply in writing to the clerk of the circuit court of the county or city in which he resides, or if he is a member of the United States Armed Forces and stationed outside the Commonwealth, the county or city in which he is domiciled, for a five-year permit to carry a concealed handgun. There shall be no requirement regarding the length of time an applicant has been a resident or domiciliary of the county or city. The application shall be on a form prescribed by the Department of State Police, in consultation with the Supreme Court, requiring only that information necessary to determine eligibility for the permit. Additionally, the application shall request but not require that the applicant provide an email or other electronic address where a notice of permit expiration can be sent pursuant to subsection C of § 18.2-308.010 . The applicant shall present one valid form of photo identification issued by a governmental agency of the Commonwealth or by the U.S. Department of Defense or U.S. State Department (passport). No information or documentation other than that which is allowed on the application in accordance with this section may be requested or required by the clerk or the court.
  2. The court shall require proof that the applicant has demonstrated competence with a handgun in person and the applicant may demonstrate such competence by one of the following, but no applicant shall be required to submit to any additional demonstration of competence, nor shall any proof of demonstrated competence expire:
    1. Completing any hunter education or hunter safety course approved by the Department of Wildlife Resources or a similar agency of another state;
    2. Completing any National Rifle Association firearms safety or training course;
    3. Completing any firearms safety or training course or class available to the general public offered by a law-enforcement agency, institution of higher education, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or the Department of Criminal Justice Services;
    4. Completing any law-enforcement firearms safety or training course or class offered for security guards, investigators, special deputies, or any division or subdivision of law enforcement or security enforcement;
    5. Presenting evidence of equivalent experience with a firearm through participation in organized shooting competition or current military service or proof of an honorable discharge from any branch of the armed services;
    6. Obtaining or previously having held a license to carry a firearm in the Commonwealth or a locality thereof, unless such license has been revoked for cause;
    7. Completing any in-person firearms training or safety course or class conducted by a state-certified or National Rifle Association-certified firearms instructor;
    8. Completing any governmental police agency firearms training course and qualifying to carry a firearm in the course of normal police duties; or
    9. Completing any other firearms training that the court deems adequate.

      A photocopy of a certificate of completion of any of the courses or classes; an affidavit from the instructor, school, club, organization, or group that conducted or taught such course or class attesting to the completion of the course or class by the applicant; or a copy of any document that shows completion of the course or class or evidences participation in firearms competition shall constitute evidence of qualification under this subsection.

  3. The making of a materially false statement in an application under this article shall constitute perjury, punishable as provided in § 18.2-434 .
  4. The clerk of court shall withhold from public disclosure the applicant's name and any other information contained in a permit application or any order issuing a concealed handgun permit, except that such information shall not be withheld from any law-enforcement officer acting in the performance of his official duties or from the applicant with respect to his own information. The prohibition on public disclosure of information under this subsection shall not apply to any reference to the issuance of a concealed handgun permit in any order book before July 1, 2008; however, any other concealed handgun records maintained by the clerk shall be withheld from public disclosure.
  5. An application is deemed complete when all information required to be furnished by the applicant, including the fee for a concealed handgun permit as set forth in § 18.2-308.03 , is delivered to and received by the clerk of court before or concomitant with the conduct of a state or national criminal history records check.
  6. For purposes of this section, a member of the United States Armed Forces is domiciled in the county or city where such member claims his home of record with the United States Armed Forces.

    (2013, cc. 659, 746; 2014, cc. 16, 401, 549; 2017, cc. 99, 237; 2019, c. 624; 2020, cc. 390, 958, 1130.)

Editor's note. - Acts 2013, c. 746 recodified § 18.2-308 as Article 6.1 ( §§ 18.2-307.1 through 18.2-308 .015). The last sentence in subsection D of § 18.2-308, was rewritten as subsection D of this section. Pursuant to § 30-152, amendments by Acts 2013, c. 659, were given effect in this section by substituting "shall" for "may," "applicant's name and any other information" for "social security number," "or any order issuing a concealed weapon handgun permit" for "in response to a request to inspect or copy any such permit application" and "information" for "social security number" in subsection D.

Acts 2020, cc. 390 and 1130, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2021, Sp. Sess. I, c. 85, cl. 1, effective March 11, 2021, provides: " § 1. Any applicant who completed an online course to demonstrate competence with a handgun as required in subsection B of § 18.2-308.02 of the Code of Virginia for the purposes of applying for a concealed handgun permit and contacted the circuit court clerk's office prior to January 1, 2021, but was prohibited from appearing in person at a circuit court clerk's office because of restrictions due to COVID-19 shall be eligible to apply for a concealed handgun permit through April 30, 2021."

The 2014 amendments. - The 2014 amendment by cc. 16 and 549 are nearly identical and added the last sentence of subsection D.

The 2014 amendment by c. 401, in subsection D, added "or from the applicant with respect to his own information" in the first sentence.

The 2017 amendments. - The 2017 amendment by c. 99 inserted the fourth sentence in subsection A and made minor stylistic changes.

The 2017 amendment by c. 237, in subsection A, deleted "made under oath before a notary or other person qualified to take oaths and shall be made only" following "shall be" in the third sentence, inserted the fifth sentence, and made minor stylistic changes.

The 2019 amendments. - The 2019 amendment by c. 624, in subsection A, inserted "and stationed outside the Commonwealth" in the first sentence; and added subsection F.

The 2020 amendments. - The 2020 amendments by cc. 390 and 1130, effective January 1, 2021, are identical, and inserted "in person" in the introductory language of subsection B; in subdivision B 7, inserted "in-person" and deleted "including an electronic, video, or online course" following "class"; and made a stylistic change.

The 2020 amendment by c. 958 substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries" in subdivision B 1.

OPINIONS OF THE ATTORNEY GENERAL

Fees for concealed handgun permits. - Discretionary fees relating to the processing of a concealed handgun permit may be set by the sheriff conducting the background investigation and the State Police, according to the provisions of § 18.2-308.03 . The county board of supervisors and the circuit court of the county in which the permit is to be issued are not statutorily authorized to set any portion of the fees. See opinion of Attorney General to The Honorable Gordon F. Erby, Clerk, Circuit Court of Lunenburg County, 19-055, 2020 Va. AG LEXIS 25 (2/21/20).

Handgun permit information disclosure. - Beginning on July 1, 2013, the clerk of court must withhold from public disclosure the applicant's name and other information contained in all concealed handgun permit applications and orders, including those filed prior to the July 1, 2013, effective date. The clerk must withhold from public disclosure court orders issuing such permits, whether they are maintained electronically or in order books. The clerk is required to comply with this statute, irrespective of receiving any funding from the General Assembly. See opinion of Attorney General to the Honorable Ray S. Campbell, Jr., Clerk of the Circuit Court for Caroline County, 13-036, 2013 Va. AG LEXIS 50 (7/12/13).

State-certified. - The term "state-certified" refers to a firearms instructor that is certified by any state in the United States. See opinion of Attorney General to the Honorable John T. Frey, Clerk of the Circuit Court, Fairfax County Circuit Court, 13-040, 2013 Va. AG LEXIS 38 (6/14/13).

§ 18.2-308.03. Fees for concealed handgun permits.

  1. The clerk shall charge a fee of $10 for the processing of an application or issuing of a permit, including his costs associated with the consultation with law-enforcement agencies. The local law-enforcement agency conducting the background investigation may charge a fee not to exceed $35 to cover the cost of conducting an investigation pursuant to this article. The $35 fee shall include any amount assessed by the U.S. Federal Bureau of Investigation for providing criminal history record information, and the local law-enforcement agency shall forward the amount assessed by the U.S. Federal Bureau of Investigation to the State Police with the fingerprints taken from any nonresident applicant. The State Police may charge a fee not to exceed $5 to cover its costs associated with processing the application. The total amount assessed for processing an application for a permit shall not exceed $50, with such fees to be paid in one sum to the person who receives the application. Payment may be made by any method accepted by that court for payment of other fees or penalties. No payment shall be required until the application is received by the court as a complete application.
  2. No fee shall be charged for the issuance of such permit to a person who has retired from service (i) as a magistrate in the Commonwealth; (ii) as a special agent with the Virginia Alcoholic Beverage Control Authority or as a law-enforcement officer with the Department of State Police, the Department of Wildlife Resources, or a sheriff or police department, bureau, or force of any political subdivision of the Commonwealth, after completing 15 years of service or after reaching age 55; (iii) as a law-enforcement officer with the U.S. Federal Bureau of Investigation, Bureau of Alcohol, Tobacco and Firearms, Secret Service Agency, Drug Enforcement Administration, United States Citizenship and Immigration Services, U.S. Customs and Border Protection, Department of State Diplomatic Security Service, U.S. Marshals Service, or Naval Criminal Investigative Service, after completing 15 years of service or after reaching age 55; (iv) as a law-enforcement officer with any police or sheriff's department within the United States, the District of Columbia, or any of the territories of the United States, after completing 15 years of service; (v) as a law-enforcement officer with any combination of the agencies listed in clauses (ii) through (iv), after completing 15 years of service; (vi) as a designated boarding team member or boarding officer of the United States Coast Guard, after completing 15 years of service or after reaching age 55; (vii) as a correctional officer as defined in § 53.1-1 , after completing 15 years of service; or (viii) as a probation and parole officer authorized pursuant to § 53.1-143 , after completing 15 years of service. (2013, cc. 135, 559, 746; 2015, cc. 38, 730; 2017, c. 241; 2020, c. 958.)

Editor's note. - Acts 2013, c. 746 recodified § 18.2-308 as Article 6.1 ( §§ 18.2-307.1 through 18.2-308 .015). Subsection K of § 18.2-308, was rewritten as subsection B of this section. Pursuant to § 30-152, amendments by Acts 2013, c. 135, were given effect in this section by substituting "U.S. Customs and Border Protection" for "Customs Service" in clause (iii) and inserting clause (vii) at the end of subsection B.

Subsection K of § 18.2-308 , was rewritten as subsection B of this section by Acts 2013, c. 746. Pursuant to § 30-152, amendments by Acts 2013, c. 559, were given effect in this section by substituting "U.S. Customs and Border Protection" for "Customs Service" in clause (iii) of subsection B.

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

Acts 2016, c. 41, cl. 1 provides: "Any conservation police officer who (i) has at least 20 years of service as a conservation police officer, (ii) was a full-time sworn conservation police officer immediately prior to January 1, 2016, and (iii) was transitioned to a civilian position on January 1, 2016, by the Department of Game and Inland Fisheries shall be considered a retired law-enforcement officer for the purposes of §§ 9.1-1000 , 18.2-308 , 18.2-308 .03, and 59.1-148.3 ."

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Alcoholic Beverage Control Board" in subsection B.

The 2017 amendments. - The 2017 amendment by c. 241 inserted clause (viii) in both versions of subsection B, and made related changes.

The 2020 amendments. - The 2020 amendment by c. 958 substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries" in subsection B, clause (ii).

OPINIONS OF THE ATTORNEY GENERAL

Fees for concealed handgun permits. - Discretionary fees relating to the processing of a concealed handgun permit may be set by the sheriff conducting the background investigation and the State Police, according to the provisions of § 18.2-308.03 . The county board of supervisors and the circuit court of the county in which the permit is to be issued are not statutorily authorized to set any portion of the fees. See opinion of Attorney General to The Honorable Gordon F. Erby, Clerk, Circuit Court of Lunenburg County, 19-055, 2020 Va. AG LEXIS 25 (2/21/20).

§ 18.2-308.04. Processing of the application and issuance of a concealed handgun permit.

  1. The clerk of court shall enter on the application the date on which the application and all other information required to be submitted by the applicant is received.
  2. Upon receipt of the completed application, the court shall consult with either the sheriff or police department of the county or city and receive a report from the Central Criminal Records Exchange.
  3. The court shall issue the permit via United States mail and notify the State Police of the issuance of the permit within 45 days of receipt of the completed application unless it is determined that the applicant is disqualified. Any order denying issuance of the permit shall be in accordance with § 18.2-308.08 . If the applicant is later found by the court to be disqualified after a five-year permit has been issued, the permit shall be revoked.
  4. A court may authorize the clerk to issue concealed handgun permits, without judicial review, to applicants who have submitted complete applications, for whom the criminal history records check does not indicate a disqualification and, after consulting with either the sheriff or police department of the county or city, about which application there are no outstanding questions or issues. The court clerk shall be immune from suit arising from any acts or omissions relating to the issuance of concealed handgun permits without judicial review pursuant to this section unless the clerk was grossly negligent or engaged in willful misconduct. This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law, or to affect any cause of action accruing prior to July 1, 2010.
  5. The permit to carry a concealed handgun shall specify only the following information: name, address, date of birth, gender, height, weight, color of hair, color of eyes, and signature of the permittee; the signature of the judge issuing the permit, of the clerk of court who has been authorized to sign such permits by the issuing judge, or of the clerk of court who has been authorized to issue such permits pursuant to subsection D; the date of issuance; and the expiration date. The permit to carry a concealed handgun shall be of a size comparable to a Virginia driver's license, may be laminated or use a similar process to protect the permit, and shall otherwise be of a uniform style prescribed by the Department of State Police.

    (2013, c. 746; 2017, c. 47.)

The 2017 amendments. - The 2017 amendment by c. 47 substituted "of a size comparable to a Virginia driver's license, may be laminated or use a similar process to protect the permit, and shall otherwise" for "no larger than two inches wide by three and one-fourth inches long and shall" in the last sentence of subsection E.

§ 18.2-308.05. Issuance of a de facto permit.

If the court has not issued the permit or determined that the applicant is disqualified within 45 days of the date of receipt noted on the application, the clerk shall certify on the application that the 45-day period has expired, and mail or send via electronic mail a copy of the certified application to the applicant within five business days of the expiration of the 45-day period. The certified application shall serve as a de facto permit, which shall expire 90 days after issuance, and shall be recognized as a valid concealed handgun permit when presented with a valid government-issued photo identification pursuant to subsection A of § 18.2-308.01 , until the court issues a five-year permit or finds the applicant to be disqualified. If the applicant is found to be disqualified after the de facto permit is issued, the applicant shall surrender the de facto permit to the court and the disqualification shall be deemed a denial of the permit and a revocation of the de facto permit.

(2013, c. 746.)

§ 18.2-308.06. Nonresident concealed handgun permits.

  1. Nonresidents of the Commonwealth 21 years of age or older may apply in writing to the Virginia Department of State Police for a five-year permit to carry a concealed handgun. The applicant shall submit a photocopy of one valid form of photo identification issued by a governmental agency of the applicant's state of residency or by the U.S. Department of Defense or U.S. State Department (passport). Every applicant for a nonresident concealed handgun permit shall also submit two photographs of a type and kind specified by the Department of State Police for inclusion on the permit and shall submit fingerprints on a card provided by the Department of State Police for the purpose of obtaining the applicant's state or national criminal history record. As a condition for issuance of a concealed handgun permit, the applicant shall submit to fingerprinting by his local or state law-enforcement agency and provide personal descriptive information to be forwarded with the fingerprints through the Central Criminal Records Exchange to the U.S. Federal Bureau of Investigation for the purpose of obtaining criminal history record information regarding the applicant and obtaining fingerprint identification information from federal records pursuant to criminal investigations by state and local law-enforcement agencies. The application shall be on a form provided by the Department of State Police, requiring only that information necessary to determine eligibility for the permit. If the permittee is later found by the Department of State Police to be disqualified, the permit shall be revoked and the person shall return the permit after being so notified by the Department of State Police. The permit requirement and restriction provisions of subsection C of § 18.2-308.02 and § 18.2-308.09 shall apply, mutatis mutandis, to the provisions of this subsection.
  2. The applicant shall demonstrate competence with a handgun in person by one of the following:
    1. Completing a hunter education or hunter safety course approved by the Virginia Department of Wildlife Resources or a similar agency of another state;
    2. Completing any National Rifle Association firearms safety or training course;
    3. Completing any firearms safety or training course or class available to the general public offered by a law-enforcement agency, institution of higher education, or private or public institution or organization or firearms training school utilizing instructors certified by the National Rifle Association or the Department of Criminal Justice Services or a similar agency of another state;
    4. Completing any law-enforcement firearms safety or training course or class offered for security guards, investigators, special deputies, or any division or subdivision of law enforcement or security enforcement;
    5. Presenting evidence of equivalent experience with a firearm through participation in organized shooting competition approved by the Department of State Police or current military service or proof of an honorable discharge from any branch of the armed services;
    6. Obtaining or previously having held a license to carry a firearm in the Commonwealth or a locality thereof, unless such license has been revoked for cause;
    7. Completing any in-person firearms training or safety course or class conducted by a state-certified or National Rifle Association-certified firearms instructor;
    8. Completing any governmental police agency firearms training course and qualifying to carry a firearm in the course of normal police duties; or
    9. Completing any other firearms training that the Virginia Department of State Police deems adequate.

      A photocopy of a certificate of completion of any such course or class; an affidavit from the instructor, school, club, organization, or group that conducted or taught such course or class attesting to the completion of the course or class by the applicant; or a copy of any document that shows completion of the course or class or evidences participation in firearms competition shall satisfy the requirement for demonstration of competence with a handgun.

  3. The Department of State Police may charge a fee not to exceed $100 to cover the cost of the background check and issuance of the permit. Any fees collected shall be deposited in a special account to be used to offset the costs of administering the nonresident concealed handgun permit program.
  4. The permit to carry a concealed handgun shall contain only the following information: name, address, date of birth, gender, height, weight, color of hair, color of eyes, and photograph of the permittee; the signature of the Superintendent of the Virginia Department of State Police or his designee; the date of issuance; and the expiration date.
  5. The Superintendent of the State Police shall promulgate regulations, pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), for the implementation of an application process for obtaining a nonresident concealed handgun permit. (2013, c. 746; 2017, c. 237; 2020, cc. 390, 958, 1130.)

Editor's note. - Acts 2020, cc. 390 and 1130, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

The 2017 amendments. - The 2017 amendment by c. 237, in subsection A, inserted the second sentence, substituted "shall also submit" for "shall submit" in the third sentence, and deleted "made under oath before a notary or other person qualified to take Oaths" following "shall be" in the fifth sentence.

The 2020 amendments. - The 2020 amendments by cc. 390 and 1130, effective January 1, 2021, are identical, and inserted "in person" in the introductory language of subsection B; and in subdivision B 7, inserted "in-person" and deleted "including an electronic, video, or online course" following "class."

The 2020 amendment by c. 958 substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries" in subdivision B 1.

OPINIONS OF THE ATTORNEY GENERAL

State-certified. - The term "state-certified" refers to a firearms instructor that is certified by any state in the United States. See opinion of Attorney General to the Honorable John T. Frey, Clerk of the Circuit Court, Fairfax County Circuit Court, 13-040, 2013 Va. AG LEXIS 38 (6/14/13).

§ 18.2-308.07. Entry of information into the Virginia Criminal Information Network.

  1. An order issuing a concealed handgun permit pursuant to § 18.2-308.04 , or the copy of the permit application certified by the clerk as a de facto permit pursuant to § 18.2-308.05 , shall be provided to the State Police and the law-enforcement agencies of the county or city by the clerk of the court. The State Police shall enter the permittee's name and description in the Virginia Criminal Information Network so that the permit's existence and current status will be made known to law-enforcement personnel accessing the Network for investigative purposes.
  2. The Department of State Police shall enter the name and description of a person issued a nonresident permit pursuant to § 18.2-308.06 in the Virginia Criminal Information Network so that the permit's existence and current status are known to law-enforcement personnel accessing the Network for investigative purposes.
  3. The State Police shall withhold from public disclosure permittee information submitted to the State Police for purposes of entry into the Virginia Criminal Information Network, except that such information shall not be withheld from any law-enforcement agency, officer, or authorized agent thereof acting in the performance of official law-enforcement duties, nor shall such information be withheld from an entity that has a valid contract with any local, state, or federal law-enforcement agency for the purpose of performing official duties of the law-enforcement agency. However, nothing in this subsection shall be construed to prohibit the release of (i) records by the State Police concerning permits issued to nonresidents of the Commonwealth pursuant to § 18.2-308.06 or (ii) statistical summaries, abstracts, or other records containing information in an aggregate form that does not identify any individual permittees. (2013, c. 746.)

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

§ 18.2-308.08. (Effective until January 1, 2022) Denial of a concealed handgun permit; appeal.

  1. Only a circuit court judge may deny issuance of a concealed handgun permit to a Virginia resident or domiciliary who has applied for a permit pursuant to § 18.2-308.04 . Any order denying issuance of a concealed handgun permit shall state the basis for the denial of the permit, including, if applicable, any reason under § 18.2-308.09 that is the basis of the denial, and the clerk shall provide notice, in writing, upon denial of the application, of the applicant's right to an ore tenus hearing and the requirements for perfecting an appeal of such order.
  2. Upon request of the applicant made within 21 days, the court shall place the matter on the docket for an ore tenus hearing. The applicant may be represented by counsel, but counsel shall not be appointed, and the rules of evidence shall apply. The final order of the court shall include the court's findings of fact and conclusions of law.
  3. Any person denied a permit to carry a concealed handgun by the circuit court may present a petition for review to the Court of Appeals. The petition for review shall be filed within 60 days of the expiration of the time for requesting an ore tenus hearing, or if an ore tenus hearing is requested, within 60 days of the entry of the final order of the circuit court following the hearing. The petition shall be accompanied by a copy of the original papers filed in the circuit court, including a copy of the order of the circuit court denying the permit. Subject to the provisions of subsection B of § 17.1-410 , the decision of the Court of Appeals or judge shall be final. Notwithstanding any other provision of law, if the decision to deny the permit is reversed upon appeal, taxable costs incurred by the person shall be paid by the Commonwealth. (2013, c. 746.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 18.2-308.08 .

CIRCUIT COURT OPINIONS

Prior felony conviction. - Circuit court initially denied an applicant's application for a concealed handgun permit because, while the applicant's prior conviction for domestic assault made it unlawful under federal law for the applicant to possess a firearm, it was facially insufficient to trigger disqualification where the court received no notarized statement from the county sheriff or the county's attorney, the applicant should have the opportunity to produce a certified copy of all of the prior court records in case any question as to whether the prior conviction was actually for domestic assault. In re Concealed Weapon Permit,, 2020 Va. Cir. LEXIS 151 (Culpeper Sept. 13, 2020).

§ 18.2-308.08. (Effective January 1, 2022) Denial of a concealed handgun permit; appeal.

  1. Only a circuit court judge may deny issuance of a concealed handgun permit to a Virginia resident or domiciliary who has applied for a permit pursuant to § 18.2-308.04 . Any order denying issuance of a concealed handgun permit shall state the basis for the denial of the permit, including, if applicable, any reason under § 18.2-308.09 that is the basis of the denial, and the clerk shall provide notice, in writing, upon denial of the application, of the applicant's right to an ore tenus hearing and the requirements for perfecting an appeal of such order.
  2. Upon request of the applicant made within 21 days, the court shall place the matter on the docket for an ore tenus hearing. The applicant may be represented by counsel, but counsel shall not be appointed, and the rules of evidence shall apply. The final order of the court shall include the court's findings of fact and conclusions of law.
  3. Any person denied a permit to carry a concealed handgun by the circuit court may appeal to the Court of Appeals. Such person shall file a notice of appeal with the clerk of the circuit court noting an appeal to the Court of Appeals and file his opening brief with the Court of Appeals within 60 days of the expiration of the time for requesting an ore tenus hearing, or if an ore tenus hearing is requested, within 60 days of the entry of the final order of the circuit court following the hearing. The opening brief shall be accompanied by a copy of the original papers filed in the circuit court, including a copy of the order of the circuit court denying the permit. The decision of the Court of Appeals or judge shall be final. Notwithstanding any other provision of law, if the decision to deny the permit is reversed upon appeal, taxable costs incurred by the person shall be paid by the Commonwealth.

    (2013, c. 746; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 18.2-308.08 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, rewrote subsection C, which read: "Any person denied a permit to carry a concealed handgun by the circuit court may present a petition for review to the Court of Appeals. The petition for review shall be filed within 60 days of the expiration of the time for requesting an ore tenus hearing, or if an ore tenus hearing is requested, within 60 days of the entry of the final order of the circuit court following the hearing. The petition shall be accompanied by a copy of the original papers filed in the circuit court, including a copy of the order of the circuit court denying the permit. Subject to the provisions of subsection B of § 17.1-410 , the decision of the Court of Appeals or judge shall be final. Notwithstanding any other provision of law, if the decision to deny the permit is reversed upon appeal, taxable costs incurred by the person shall be paid by the Commonwealth."

§ 18.2-308.09. Disqualifications for a concealed handgun permit.

The following persons shall be deemed disqualified from obtaining a permit:

  1. An individual who is ineligible to possess a firearm pursuant to § 18.2-308.1:1 , 18.2-308.1:2 , 18.2-308.1:3 , 18.2-308.1:6 , 18.2-308.1:7 , or 18.2-308.1:8 or the substantially similar law of any other state or of the United States.
  2. An individual who was ineligible to possess a firearm pursuant to § 18.2-308.1:1 and who was discharged from the custody of the Commissioner pursuant to § 19.2-182.7 less than five years before the date of his application for a concealed handgun permit.
  3. An individual who was ineligible to possess a firearm pursuant to § 18.2-308.1:2 and whose competency or capacity was restored pursuant to § 64.2-2012 less than five years before the date of his application for a concealed handgun permit.
  4. An individual who was ineligible to possess a firearm under § 18.2-308.1:3 and who was released from commitment less than five years before the date of this application for a concealed handgun permit.
  5. An individual who is subject to a restraining order, or to a protective order and prohibited by § 18.2-308.1:4 from purchasing, possessing, or transporting a firearm.
  6. An individual who is prohibited by § 18.2-308.2 from possessing or transporting a firearm, except that a restoration order may be obtained in accordance with subsection C of that section.
  7. An individual who has been convicted of two or more misdemeanors within the five-year period immediately preceding the application, if one of the misdemeanors was a Class 1 misdemeanor, but the judge shall have the discretion to deny a permit for two or more misdemeanors that are not Class 1. Traffic infractions and misdemeanors set forth in Title 46.2 shall not be considered for purposes of this disqualification.
  8. An individual who is addicted to, or is an unlawful user or distributor of, marijuana, synthetic cannabinoids, or any controlled substance.
  9. An individual who has been convicted of a violation of § 18.2-266 or a substantially similar local ordinance, or of public drunkenness, or of a substantially similar offense under the laws of any other state, the District of Columbia, the United States, or its territories within the three-year period immediately preceding the application.
  10. An alien other than an alien lawfully admitted for permanent residence in the United States.
  11. An individual who has been discharged from the armed forces of the United States under dishonorable conditions.
  12. An individual who is a fugitive from justice.
  13. An individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others. The sheriff, chief of police, or attorney for the Commonwealth may submit to the court a sworn, written statement indicating that, in the opinion of such sheriff, chief of police, or attorney for the Commonwealth, based upon a disqualifying conviction or upon the specific acts set forth in the statement, the applicant is likely to use a weapon unlawfully or negligently to endanger others. The statement of the sheriff, chief of police, or the attorney for the Commonwealth shall be based upon personal knowledge of such individual or of a deputy sheriff, police officer, or assistant attorney for the Commonwealth of the specific acts, or upon a written statement made under oath before a notary public of a competent person having personal knowledge of the specific acts.
  14. An individual who has been convicted of any assault, assault and battery, sexual battery, discharging of a firearm in violation of § 18.2-280 or 18.2-286.1 or brandishing of a firearm in violation of § 18.2-282 within the three-year period immediately preceding the application.
  15. An individual who has been convicted of stalking.
  16. An individual whose previous convictions or adjudications of delinquency were based on an offense that would have been at the time of conviction a felony if committed by an adult under the laws of any state, the District of Columbia, the United States or its territories. For purposes of this disqualifier, only convictions occurring within 16 years following the later of the date of (i) the conviction or adjudication or (ii) release from any incarceration imposed upon such conviction or adjudication shall be deemed to be "previous convictions." Disqualification under this subdivision shall not apply to an individual with previous adjudications of delinquency who has completed a term of service of no less than two years in the Armed Forces of the United States and, if such person has been discharged from the Armed Forces of the United States, received an honorable discharge.
  17. An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15.
  18. An individual who has received mental health treatment or substance abuse treatment in a residential setting within five years prior to the date of his application for a concealed handgun permit.
  19. An individual not otherwise ineligible pursuant to this article, who, within the three-year period immediately preceding the application for the permit, was found guilty of any criminal offense set forth in Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1, Article 1 (§ 18.2-247 et seq.), or former § 18.2-248.1:1 or of a criminal offense of illegal possession or distribution of marijuana, synthetic cannabinoids, or any controlled substance, under the laws of any state, the District of Columbia, or the United States or its territories.
  20. An individual, not otherwise ineligible pursuant to this article, with respect to whom, within the three-year period immediately preceding the application, upon a charge of any criminal offense set forth in Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1, Article 1 (§ 18.2-247 et seq.), or former § 18.2-248.1:1 or upon a charge of illegal possession or distribution of marijuana, synthetic cannabinoids, or any controlled substance under the laws of any state, the District of Columbia, or the United States or its territories, the trial court found that the facts of the case were sufficient for a finding of guilt and disposed of the case pursuant to § 18.2-251 or the substantially similar law of any other state, the District of Columbia, or the United States or its territories. (2013, c. 746; 2014, cc. 674, 719; 2016, cc. 48, 49, 337; 2019, c. 203; 2020, cc. 150, 887, 888, 1173; 2021, Sp. Sess. I, cc. 550, 551, 555.)

Editor's note. - Acts 2019, c. 203, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

Acts 2020, cc. 887 and 888, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, cl. 3 provides: "That the Supreme Court shall create standard forms to implement the intent of this act."

Acts 2020, c. 1173, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1173, cl. 4 provides: "That the Board of Counseling, Board of Medicine, Board of Nursing, and Board of Psychology shall notify all licensees of the existence of the Virginia Voluntary Do Not Sell Firearms List created by this act within 60 days after the effective date of this act."

Acts 2020, c. 1173, cl. 5 provides: "That the provisions of this act shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

Acts 2021, Sp. Sess. I, c. 555, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and in subdivisions 19 and 20 inserted "or former § 18.2-248.1:1 ."

The 2016 amendments. - The 2016 amendments by cc. 48 and 49 are identical, and in subdivision 5, inserted "possessing."

The 2016 amendment by c. 337 added the last sentence in subdivision 16.

The 2019 amendments. - The 2019 amendment by c. 203, effective January 1, 2021, substituted "restoration order" for "permit" in subdivision 6.

The 2020 amendments. - The 2020 amendment by c. 150, in subdivision 9, deleted "or who is a habitual drunkard as determined pursuant to § 4.1-333 " at the end.

The 2020 amendments by cc. 887 and 888 are identical, and inserted "or 18.2-308.1:6 " in subdivision 1.

The 2020 amendment by c. 1173, effective July 1, 2021, inserted "or 18.2-308.1:7 " in subdivision 1.

The 2021 Sp. Sess. I amendments. The 2021 amendments by Sp. Sess. I, cc. 550 and 551, cl. 2, effective July 1, 2021, are identical, and in subdivisions 19 and 20, inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1," and made stylistic changes.

The 2021 amendment by Sp. Sess. I, c. 555, effective July 1, 2021, inserted "or 18.2-308.1:8 " in subdivision 1, and made stylistic changes.

CIRCUIT COURT OPINIONS

Prior felony conviction. - Applicant's third request for a concealed weapons permit was denied because the applicant's prior felony conviction barred the applicant from obtaining a permit, as (1) it had not been 16 years since the applicant's conviction or release from incarceration, and (2) the statute applied to adult convictions, as well as juvenile convictions. In re Portillo, 91 Va. Cir. 298, 2015 Va. Cir. LEXIS 195 (Fairfax County Oct. 14, 2015).

Petitioner's application for a concealed handgun permit was denied because petitioner was disqualified from obtaining a concealed handgun permit until at least 2028; subdivision 16 applied to felons convicted as adults and applied to petitioner because he had been convicted of a felony after achieving the age of majority, and no good cause to restore petitioner's right to obtain a concealed handgun permit had been shown. In re Permit to Carry a Concealed Handgun,, 2017 Va. Cir. LEXIS 295 (Newport News Oct. 4, 2017).

Circuit court initially denied an applicant's application for a concealed handgun permit because, while the applicant's prior conviction for domestic assault made it unlawful under federal law for the applicant to possess a firearm, it was facially insufficient to trigger disqualification where the court received no notarized statement from the county sheriff or the county's attorney, the applicant should have the opportunity to produce a certified copy of all of the prior court records in case any question as to whether the prior conviction was actually for domestic assault. In re Concealed Weapon Permit,, 2020 Va. Cir. LEXIS 151 (Culpeper Sept. 13, 2020).

Dishonorable discharge from military. - Court was not precluded from issuing a concealed handgun permit to an applicant because his convictions for conspiracy, making a false statement, and larceny under the Uniform Code of Military Justice constituted misdemeanors where he was tried at a Special Court-Martial and could not have been sentenced to more than six months confinement. In re Nelson, 87 Va. Cir. 203, 2013 Va. Cir. LEXIS 99 (Fairfax County Oct. 22, 2013).

§ 18.2-308.010. Renewal of concealed handgun permit.

    1. Persons who previously have held a concealed handgun permit shall be issued, upon application as provided in § 18.2-308.02 , a new five-year permit unless it is found that the applicant is subject to any of the disqualifications set forth in § 18.2-308.09 . Persons who previously have been issued a concealed handgun permit pursuant to this article shall not be required to appear in person to apply for a new five-year permit pursuant to this section, and the application for the new permit, including a photocopy of the applicant's valid photo identification, may be submitted via the United States mail. The circuit court that receives the application shall promptly notify an applicant if the application is incomplete or if the fee submitted for the permit pursuant to § 18.2-308.03 is incorrect. A. 1.  Persons who previously have held a concealed handgun permit shall be issued, upon application as provided in § 18.2-308.02 , a new five-year permit unless it is found that the applicant is subject to any of the disqualifications set forth in § 18.2-308.09 . Persons who previously have been issued a concealed handgun permit pursuant to this article shall not be required to appear in person to apply for a new five-year permit pursuant to this section, and the application for the new permit, including a photocopy of the applicant's valid photo identification, may be submitted via the United States mail. The circuit court that receives the application shall promptly notify an applicant if the application is incomplete or if the fee submitted for the permit pursuant to § 18.2-308.03 is incorrect.
    2. If a new five-year permit is issued while an existing permit remains valid, the new five-year permit shall become effective upon the expiration date of the existing permit, provided that the application is received by the court at least 90 days but no more than 180 days prior to the expiration of the existing permit.
    3. Any order denying issuance of the new permit shall be in accordance with subsection A of § 18.2-308.08 .
  1. If a permit holder is a member of the Virginia National Guard, Armed Forces of the United States, or the Armed Forces Reserves of the United States, and his five-year permit expires during an active-duty military deployment outside of the permittee's county or city of residence, such permit shall remain valid for 90 days after the end date of the deployment. In order to establish proof of continued validity of the permit, such a permittee shall carry with him and display, upon request of a law-enforcement officer, a copy of the permittee's deployment orders or other documentation from the permittee's commanding officer that order the permittee to travel outside of his county or city of residence and that indicate the start and end date of such deployment.
  2. If the clerk has an electronic system for, and issuance of, concealed handgun permits and such system has the capability of sending electronic notices to permit holders and if a permit holder requests such notice on the concealed handgun application form, the clerk that issued the permit shall notify the permit holder by electronic mail at least 90 days prior to the permit expiration date that the permit will expire. The failure of a clerk to send the notice required by this subsection or the failure of the permit holder to receive such notice shall not extend the validity of the existing permit beyond its expiration date.

    (2013, c. 746; 2017, cc. 99, 237.)

The 2017 amendments. - The 2017 amendment by c. 99 added subsection C and made minor stylistic changes.

The 2017 amendment by c. 237 inserted "including a photocopy of the applicant's valid photo identification" in the second sentence of subdivision A 1; and made minor stylistic changes.

§ 18.2-308.011. Replacement permits.

  1. The clerk of a circuit court that issued a valid concealed handgun permit shall, upon presentation by the permit holder of the valid permit and written notice of a change of address on a form provided by the Department of State Police, issue a replacement permit specifying the permit holder's new address. The clerk of court shall forward the permit holder's new address of residence to the State Police. The State Police may charge a fee not to exceed $5, and the clerk of court issuing the replacement permit may charge a fee not to exceed $5. The total amount assessed for processing a replacement permit pursuant to this subsection shall not exceed $10, with such fees to be paid in one sum to the person who receives the information for the replacement permit.
  2. The clerk of a circuit court that issued a valid concealed handgun permit shall, upon submission of a notarized statement by the permit holder that the permit was lost or destroyed or that the permit holder has undergone a legal name change, issue a replacement permit. The replacement permit shall have the same expiration date as the permit that was lost, destroyed, or issued to the permit holder under a previous name. The clerk shall issue the replacement permit within 10 business days of receiving the notarized statement and may charge a fee not to exceed $5.

    (2013, c. 746; 2014, cc. 16, 549; 2017, c. 238.)

The 2014 amendments. - The 2014 amendments by cc. 16 and 549 are identical, and in subsection B, added "or that the permit holder has undergone a legal name change" in the first sentence; added "or issued to the permit holder under a previous name" at the end of the second sentence; and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 238, in the first sentence of subsection A, inserted "by the permit holder" and substituted "written notice of a change of address on a form provided by the Department of State Police" for "proof of a new address of residence by the permit holder."

§ 18.2-308.012. Prohibited conduct.

  1. Any person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor. Conviction of any of the following offenses shall be prima facie evidence, subject to rebuttal, that the person is "under the influence" for purposes of this section: manslaughter in violation of § 18.2-36.1 , maiming in violation of § 18.2-51.4 , driving while intoxicated in violation of § 18.2-266 , public intoxication in violation of § 18.2-388 , or driving while intoxicated in violation of § 46.2-341.24 . Upon such conviction that court shall revoke the person's permit for a concealed handgun and promptly notify the issuing circuit court. A person convicted of a violation of this subsection shall be ineligible to apply for a concealed handgun permit for a period of five years.
  2. No person who carries a concealed handgun onto the premises of any restaurant or club as defined in § 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Authority under Title 4.1 may consume an alcoholic beverage while on the premises. A person who carries a concealed handgun onto the premises of such a restaurant or club and consumes alcoholic beverages is guilty of a Class 2 misdemeanor. However, nothing in this subsection shall apply to a federal, state, or local law-enforcement officer. (2013, c. 746; 2015, cc. 38, 730.)

Editor's note. - Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Authority" for "Board" in the first sentence of subsection B.

§ 18.2-308.013. Suspension or revocation of permit.

  1. Any person convicted of an offense that would disqualify that person from obtaining a permit under § 18.2-308.09 or who violates subsection C of § 18.2-308.02 shall forfeit his permit for a concealed handgun and surrender it to the court. Upon receipt by the Central Criminal Records Exchange of a record of the arrest, conviction, or occurrence of any other event that would disqualify a person from obtaining a concealed handgun permit under § 18.2-308.09 , the Central Criminal Records Exchange shall notify the court having issued the permit of such disqualifying arrest, conviction, or other event. Upon receipt of such notice of a conviction, the court shall revoke the permit of a person disqualified pursuant to this subsection, and shall promptly notify the State Police and the person whose permit was revoked of the revocation.
  2. An individual who has a felony charge pending or a charge pending for an offense listed in subdivision 14 or 15 of § 18.2-308.09 , holding a permit for a concealed handgun, may have the permit suspended by the court before which such charge is pending or by the court that issued the permit.
  3. The court shall revoke the permit of any individual for whom it would be unlawful to purchase, possess, or transport a firearm under § 18.2-308.1:2 or 18.2-308.1:3 , and shall promptly notify the State Police and the person whose permit was revoked of the revocation. (2013, c. 746.)

§ 18.2-308.014. Reciprocity.

  1. A valid concealed handgun or concealed weapon permit or license issued by another state shall authorize the holder of such permit or license who is at least 21 years of age to carry a concealed handgun in the Commonwealth, provided (i) the issuing authority provides the means for instantaneous verification of the validity of all such permits or licenses issued within that state, accessible 24 hours a day if available; (ii) the permit or license holder carries a photo identification issued by a government agency of any state or by the U.S. Department of Defense or U.S. Department of State and displays the permit or license and such identification upon demand by a law-enforcement officer; and (iii) the permit or license holder has not previously had a Virginia concealed handgun permit revoked. The Superintendent of State Police shall enter into agreements for reciprocal recognition with such other states that require an agreement to be in place before such state will recognize a Virginia concealed handgun permit as valid in such state. The Attorney General shall provide the Superintendent with any legal assistance or advice necessary for the Superintendent to perform his duties set forth in this subsection. If the Superintendent determines that another state requires that an agreement for reciprocal recognition be executed by the Attorney General or otherwise formally approved by the Attorney General as a condition of such other state's entering into an agreement for reciprocal recognition, the Attorney General shall (a) execute such agreement or otherwise formally approve such agreement and (b) return to the Superintendent the executed agreement or, in a form deemed acceptable by such other state, documentation of his formal approval of such agreement within 30 days after the Superintendent notifies the Attorney General, in writing, that he is required to execute or otherwise formally approve such agreement.
  2. For the purposes of participation in concealed handgun reciprocity agreements with other jurisdictions, the official government-issued law-enforcement identification card issued to an active-duty law-enforcement officer in the Commonwealth who is exempt from obtaining a concealed handgun permit under this article shall be deemed a concealed handgun permit.

    (2013, c. 746; 2016, cc. 46, 47.)

Editor's note. - Acts 2016, cc. 46 and 47, cl. 2 provides: "That within 60 days of the effective date of this act, the Superintendent of State Police shall enter into agreements for reciprocal recognition of concealed handgun permits or licenses with states where such agreements were in existence as of December 1, 2015, as required by the provisions of this act."

The 2016 amendments. - The 2016 amendments by cc. 46 and 47 are identical, and rewrote subsection A, which read "A valid concealed handgun or concealed weapon permit or license issued by another state shall authorize the holder of such permit or license who is at least 21 years of age to carry a concealed handgun in the Commonwealth, provided (i) the issuing authority provides the means for instantaneous verification of the validity of all such permits or licenses issued within that state, accessible 24 hours a day, and (ii) except for the age of the permit or license holder and the type of weapon authorized to be carried, the requirements and qualifications of that state's law are adequate to prevent possession of a permit or license by persons who would be denied a permit in the Commonwealth under this article. The Superintendent of State Police shall (a) in consultation with the Office of the Attorney General determine whether states meet the requirements and qualifications of this subsection, (b) maintain a registry of such states on the Virginia Criminal Information Network (VCIN), and (c) make the registry available to law-enforcement officers for investigative purposes. The Superintendent of the State Police, in consultation with the Attorney General, may also enter into agreements for reciprocal recognition with any state qualifying for recognition under this subsection"; deleted former subsection B pertaining to validity of concealed handgun permits issued by Maryland; and redesignated former subsection C as subsection B.

§ 18.2-308.015. Inclusion of Supreme Court website on application.

For the purposes of understanding the law relating to the use of deadly and lethal force, the Department of State Police, in consultation with the Supreme Court on the development of the application for a concealed handgun permit under this article, shall include a reference to the Virginia Supreme Court website address or the Virginia Reports on the application.

(2013, c. 746.)

§ 18.2-308.016. Retired law-enforcement officers; carrying a concealed handgun.

  1. Except as provided in subsection A of § 18.2-308.012 , § 18.2-308 shall not apply to:
    1. Any State Police officer retired from the Department of State Police, any officer retired from the Division of Capitol Police, any local law-enforcement officer, auxiliary police officer or animal control officer retired from a police department or sheriff's office within the Commonwealth, any special agent retired from the State Corporation Commission or the Virginia Alcoholic Beverage Control Authority, any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 retired from the Department of Corrections, any conservation police officer retired from the Department of Wildlife Resources, any conservation officer retired from the Department of Conservation and Recreation, any Virginia Marine Police officer retired from the Law Enforcement Division of the Virginia Marine Resources Commission, any campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1 retired from a campus police department, any retired member of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 , and any retired investigator of the security division of the Virginia Lottery, other than an officer or agent terminated for cause, (i) with a service-related disability; (ii) following at least 10 years of service with any such law-enforcement agency, commission, board, or any combination thereof; (iii) who has reached 55 years of age; or (iv) who is on long-term leave from such law-enforcement agency or board due to a service-related injury, provided such officer carries with him written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the chief law-enforcement officer of the last such agency from which the officer retired or the agency that employs the officer or, in the case of special agents, issued by the State Corporation Commission or the Virginia Alcoholic Beverage Control Authority. A copy of the proof of consultation and favorable review shall be forwarded by the chief, Commission, or Board to the Department of State Police for entry into the Virginia Criminal Information Network. The chief law-enforcement officer shall not without cause withhold such written proof if the retired law-enforcement officer otherwise meets the requirements of this section. An officer set forth in clause (iv) who receives written proof of consultation to carry a concealed handgun shall surrender such proof of consultation upon return to work as a law-enforcement officer or upon termination of employment with the law-enforcement agency. Notice of the surrender shall be forwarded to the Department of State Police for entry into the Virginia Criminal Information Network. However, if such officer retires on disability because of the service-related injury, and would be eligible under clause (i) for written proof of consultation to carry a concealed handgun, he may retain the previously issued written proof of consultation.
    2. Any person who is eligible for retirement with at least 20 years of service with a law-enforcement agency, commission, or board mentioned in subdivision 1 who has resigned in good standing from such law-enforcement agency, commission, or board to accept a position covered by a retirement system that is authorized under Title 51.1, provided such person carries with him written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the chief law-enforcement officer of the agency from which he resigned or, in the case of special agents, issued by the State Corporation Commission or the Virginia Alcoholic Beverage Control Authority. A copy of the proof of consultation and favorable review shall be forwarded by the chief, Commission, or Board to the Department of State Police for entry into the Virginia Criminal Information Network. The chief law-enforcement officer shall not without cause withhold such written proof if the law-enforcement officer otherwise meets the requirements of this section.
    3. Any State Police officer who is a member of the organized reserve forces of any of the Armed Services of the United States or National Guard, while such officer is called to active military duty, provided such officer carries with him written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the Superintendent of State Police. The proof of consultation and favorable review shall be valid as long as the officer is on active military duty and shall expire when the officer returns to active law-enforcement duty. The issuance of the proof of consultation and favorable review shall be entered into the Virginia Criminal Information Network. The Superintendent of State Police shall not without cause withhold such written proof if the officer is in good standing and is qualified to carry a weapon while on active law-enforcement duty.
    4. Any retired or resigned attorney for the Commonwealth or assistant attorney for the Commonwealth who (i) was not terminated for cause and served at least 10 years prior to his retirement or resignation; (ii) during the most recent 12-month period, has met, at his own expense, the standards for qualification in firearms training for active law-enforcement officers in the Commonwealth; (iii) carries with him written proof of consultation with and favorable review of the need to carry a concealed handgun issued by the attorney for the Commonwealth from whose office he retired or resigned; and (iv) meets the requirements of a "qualified retired law enforcement officer" pursuant to the federal Law Enforcement Officers Safety Act of 2004 (18 U.S.C. § 926C). A copy of the proof of consultation and favorable review shall be forwarded by the attorney for the Commonwealth to the Department of State Police for entry into the Virginia Criminal Information Network.
  2. For purposes of complying with the federal Law Enforcement Officers Safety Act of 2004, a retired or resigned law-enforcement officer, including a retired or resigned attorney for the Commonwealth or assistant attorney for the Commonwealth, who receives proof of consultation and review pursuant to this section shall have the opportunity to annually participate, at the retired or resigned law-enforcement officer's expense, in the same training and testing to carry firearms as is required of active law-enforcement officers in the Commonwealth. If such retired or resigned law-enforcement officer meets the training and qualification standards, the chief law-enforcement officer shall issue the retired or resigned officer certification, valid one year from the date of issuance, indicating that the retired or resigned officer has met the standards of the agency to carry a firearm.
  3. A retired or resigned law-enforcement officer, including a retired or resigned attorney for the Commonwealth or assistant attorney for the Commonwealth, who receives proof of consultation and review pursuant to this section may annually participate and meet the training and qualification standards to carry firearms as is required of active law-enforcement officers in the Commonwealth. If such retired or resigned law-enforcement officer meets the training and qualification standards, the chief law-enforcement officer shall issue the retired or resigned officer certification, valid one year from the date of issuance, indicating that the retired or resigned officer has met the standards of the Commonwealth to carry a firearm. A copy of the certification indicating that the retired or resigned officer has met the standards of the Commonwealth to carry a firearm shall be forwarded by the chief, Commission, Board, or attorney for the Commonwealth to the Department of State Police for entry into the Virginia Criminal Information Network.
  4. For all purposes, including for the purpose of applying the reciprocity provisions of § 18.2-308.014 , any person granted the privilege to carry a concealed handgun pursuant to this section, while carrying the proof of consultation and favorable review required, shall be deemed to have been issued a concealed handgun permit. (2016, cc. 209, 257, 421; 2017, cc. 101, 243, 689; 2018, c. 669; 2020, c. 958.)

Editor's note. - Acts 2016, c. 257 recodified former subdivisions C 7, 7a and 8 of § 18.2-308 as this section. Pursuant to § 30-152, the amendment by Acts 2016, c. 209, was given effect in this section by inserting "any employee with internal investigations authority designated by the Department of Corrections pursuant to subdivision 11 of § 53.1-10 retired from the Department of Corrections," in subdivision A 1.

Acts 2016, c. 257 recodified former subdivisions C 7, 7a and 8 of § 18.2-308 as this section. Pursuant to § 30-152, the amendment by Acts 2016, c. 421, was given effect in this section by substituting "10 years of service" for "15 years of service" in clause (ii) of subdivision A 1.

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subdivision A 1 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

At the direction of the Virginia Code Commission, "Alcoholic Beverage Control Authority" was substituted for "Alcoholic Beverage Control Board" twice in subdivision A 1 and once in subdivision A 2 to conform to Acts 2015, cc. 38 and 730, effective January 15, 2018.

The 2017 amendments. - The 2017 amendments by cc. 101 and 243 are identical, and inserted "any conservation officer retired from the Department of Conservation and Recreation" in the first sentence of subdivision A 1.

The 2017 amendment by c. 689, added subdivision A 4; in subsection B, inserted "including a retired or resigned attorney for the Commonwealth or assistant attorney for the Commonwealth"; and in subsection C, inserted "including a retired or resigned attorney for the Commonwealth or assistant attorney for the Commonwealth" and "or attorney for the Commonwealth"; and made stylistic changes.

The 2018 amendments. - The 2018 amendment by c. 669 inserted "as a law-enforcement officer" in the fourth sentence in subdivision A 1.

The 2020 amendments. - The 2020 amendment by c. 958 substituted "Department of Wildlife Resources" for "Department of Game and Inland Fisheries" in subdivision A 1, first sentence.

OPINIONS OF THE ATTORNEY GENERAL

Armed special conservator of the peace for school safety purposes. - Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

Article 7. Other Illegal Weapons.

§ 18.2-308.1. Possession of firearm, stun weapon, or other weapon on school property prohibited; penalty.

  1. If any person knowingly possesses any (i) stun weapon as defined in this section; (ii) knife, except a pocket knife having a folding metal blade of less than three inches; or (iii) weapon, including a weapon of like kind, designated in subsection A of § 18.2-308 , other than a firearm; upon (a) the property of any child day center or public, private, or religious preschool, elementary, middle, or high school, including buildings and grounds; (b) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (c) any school bus owned or operated by any such school, he is guilty of a Class 1 misdemeanor.
  2. If any person knowingly possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) the property of any child day center or public, private, or religious preschool, elementary, middle, or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he is guilty of a Class 6 felony.
  3. If any person knowingly possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material within the building of a child day center or public, private, or religious preschool, elementary, middle, or high school and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person is guilty of a Class 6 felony and sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.
  4. The child day center and private or religious preschool provisions of this section (i) shall apply only during the operating hours of such child day center or private or religious preschool and (ii) shall not apply to any person (a) whose residence is on the property of a child day center or a private or religious preschool and (b) who possesses a firearm or other weapon prohibited under this section while in his residence.
  5. The exemptions set out in §§ 18.2-308 and 18.2-308.016 shall apply, mutatis mutandis, to the provisions of this section. The provisions of this section shall not apply to (i) persons who possess such weapon or weapons as a part of the school's curriculum or activities; (ii) a person possessing a knife customarily used for food preparation or service and using it for such purpose; (iii) persons who possess such weapon or weapons as a part of any program sponsored or facilitated by either the school or any organization authorized by the school to conduct its programs either on or off the school premises; (iv) any law-enforcement officer, or retired law-enforcement officer qualified pursuant to subsection C of § 18.2-308.016 ; (v) any person who possesses a knife or blade which he uses customarily in his trade; (vi) a person who possesses an unloaded firearm or a stun weapon that is in a closed container, or a knife having a metal blade, in or upon a motor vehicle, or an unloaded shotgun or rifle in a firearms rack in or upon a motor vehicle; (vii) a person who has a valid concealed handgun permit and possesses a concealed handgun or a stun weapon while in a motor vehicle in a parking lot, traffic circle, or other means of vehicular ingress or egress to the school; (viii) a school security officer authorized to carry a firearm pursuant to § 22.1-280.2:1; or (ix) an armed security officer, licensed pursuant to Article 4 (§ 9.1-138 et seq.) of Chapter 1 of Title 9.1, hired by a child day center or a private or religious school for the protection of students and employees as authorized by such school. For the purposes of this subsection, "weapon" includes a knife having a metal blade of three inches or longer and "closed container" includes a locked vehicle trunk.
  6. Nothing in subsection E or any other provision of law shall be construed as providing an exemption to the provisions of this section for a special conservator of the peace appointed pursuant to § 19.2-13 , other than the specifically enumerated exemptions that apply to the general population as provided in subsection E.
  7. As used in this section:

    "Child day center" means a child day center, as defined in § 22.1-289.02, that is licensed in accordance with the provisions of Chapter 14.1 (§ 22.1-289.02 et seq.) of Title 22.1 and is not operated at the residence of the provider or of any of the children.

    "Stun weapon" means any device that emits a momentary or pulsed output, which is electrical, audible, optical or electromagnetic in nature and which is designed to temporarily incapacitate a person.

    (1979, c. 467; 1988, c. 493; 1990, cc. 635, 744; 1991, c. 579; 1992, cc. 727, 735; 1995, c. 511; 1999, cc. 587, 829, 846; 2001, c. 403; 2003, cc. 619, 976; 2004, cc. 128, 461; 2005, cc. 830, 928; 2007, c. 519; 2011, c. 282; 2013, c. 416; 2015, c. 289; 2016, c. 257; 2017, c. 311; 2020, cc. 693, 1037, 1249.)

Cross references. - As to expulsion from school attendance for not less than one year of a student who has brought a firearm onto school property or to a school-sponsored activity as prohibited by this section, see § 22.1-277.07.

Editor's note. - Acts 2001, c. 403, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined."

Acts 2020, c. 1249, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

At the direction of the Virginia Code Commission, in the definition for "Child day center" in subsection G, "22.1-289.02" was substituted for "63.1-100" and "Chapter 14.1 ( § 22.1-289.02 et seq.) of Title 22.1" was substituted for "Chapter 17 ( § 63.2-1700 et seq.) of Title 63.2" to conform to the changes made by Acts 2020, cc. 860 and 861.

The 1995 amendment inserted "in or upon a motor vehicle" in the third sentence of the second paragraph.

The 1999 amendments. - The 1999 amendment by c. 587 substituted "(ii) knife having a metal blade of three inches or longer, or (iii)" for "or (ii)" in the first paragraph, and substituted the language beginning "(i) persons who possess" and ending "three inches or longer" for "persons who possess such weapon or weapons as a part of the curriculum or other programs sponsored by the school or any organization permitted by the school to use its premises or to any law-enforcement officer while engaged in his duties as such. In addition, this section shall not apply to possession of an unloaded firearm which is in a closed container in or upon a motor vehicle or an unloaded shotgun or rifle in a firearms rack in or upon a motor vehicle" in the second paragraph.

The 1999 amendments by cc. 829 and 846 are identical, and inserted the subsection A designation at the beginning of the former first paragraph and substituted "person possesses" for "person has in his possession"; added the subsection B designation at the beginning of the former second paragraph; substituted "person possesses" for "person has in his possession," and added "however, if the person possesses any firearm within a public, private or parochial elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall not be eligible for probation and shall be sentenced to a minimum, mandatory term of imprisonment of five years, which shall not be suspended in whole or in part and which shall be served consecutively with any other sentence."

The 2001 amendments. - The 2001 amendment by c. 403, in subsection A, in the first clause (ii), inserted "except a pocket knife," inserted "folding," inserted "less than," and deleted "or longer" following "inches," and in the first clause (iii), substituted "including a weapon of like kind" for "other than a firearm," and inserted "other than a firearm."

The 2003 amendments. - The 2003 amendment by c. 619, in subsection B, inserted "and 'closed container' includes a locked vehicle trunk" at the end of the second paragraph, and substituted "60" for "sixty" in the definition of "'Stun weapon."'

The 2003 amendment by c. 976 redesignated the second clauses (i) through (iii) of subsection A as clauses (a) through (c); and in subsection B, substituted "expel a projectile by action of an explosion of a combustible material" for "propel a missile of any kind" in the first paragraph, substituted "that" for "which" in clause (vi) of the second paragraph, and substituted "60" for "sixty" in the definition of "'Stun weapon."'

The 2004 amendments. - The 2004 amendment by c. 128 deleted "while engaged in his duties as such" following "law-enforcement officer" in clause (iv) of the second sentence in the second paragraph of subsection B.

The 2004 amendment by c. 461, in subsection B, deleted "not be eligible for probation and shall" following "such person shall" and substituted "mandatory minimum" for "minimum, mandatory" and "to be served" for "which shall not be suspended in whole or in part and which shall be served" near the end.

The 2005 amendments. - The 2005 amendment by c. 830, inserted "and then used exclusively" preceding "used for school-sponsored functions" in subsections A and B; added clause (vii) in the first undesignated paragraph; and made minor stylistic changes.

The 2005 amendment by c. 928 substituted "religious" for "parochial" in subsections B and C; and made minor stylistic changes.

The 2007 amendments. - The 2007 amendment by c. 519 deleted "or taser" following "stun weapon" in clause (i) of subsection A; and in subsection B, rewrote the definition of "Stun weapon" and deleted the definition of "Taser," which formerly read: "'Taser' means any mechanism that is (i) designed to emit an electronic, magnetic, or other type of charge or shock through the use of a projectile and (ii) used for the purpose of temporarily incapacitating a person."

The 2011 amendments. - The 2011 amendment by c. 282 added the subsection C designation and in subsection C, substituted "If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material" for "however, if the person possesses any firearm" and inserted "guilty of a Class 6 felony and."

The 2013 amendments. - The 2013 amendment by c. 416 inserted "or (viii) an armed security officer, licensed pursuant to Article 4 ( § 9.1-138 et seq.) of Chapter 1 of Title 9.1, hired by a private or religious school for the protection of students and employees as authorized by such school" in the second paragraph of subsection C, and made a related change.

The 2015 amendments. - The 2015 amendment by c. 289 inserted "knowingly" following "If any person" at the beginning of subsections A, B and C.

The 2016 amendments. - The 2016 amendment by c. 257 inserted "and 18.2-308.016 " and "or retired law-enforcement officer qualified pursuant to subsection C of § 18.2-308.016 " in the second paragraph of subsection C.

The 2017 amendments. - The 2017 amendment by c. 311, substituted "is guilty" for "shall be guilty" in subsections A, B, and C; in the second paragraph of subsection C, inserted clause (viii), redesignated former clause (viii) as clause (ix), and made related changes.

The 2020 amendments. - The 2020 amendment by c. 693, in the paragraph now designated as subsection E, inserted "or a stun weapon" in clauses (vi) and (vii) of the second sentence.

The 2020 amendment by c. 1037 inserted subsection E [now subsection F], redesignated existing provisions, and made a related change.

The 2020 amendment by c. 1249 inserted "child day center or" and "preschool" in subsection A and made similar changes in subsections B and C; inserted subsection D, and redesignated existing provisions; in subsection E, inserted "child day center or a" in clause (ix) of the second sentence; added the definition for "Child day center" in subsection F [now subsection G]; and made stylistic changes.

Law review. - For a review of Virginia legal issues involving children, see 33 U. Rich. L. Rev. 1001 (1999).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Schools, § 1; 20 M.J. Weapons, § 2.

CASE NOTES

Section 18.2-308.1 creates strict criminal liability and the trial court properly refused to instruct the jury that, to find a teacher who was accused of bringing a handgun onto school property, it had to find she knew she had the gun in her possession. Esteban v. Commonwealth, 266 Va. 605 , 587 S.E.2d 523, 2003 Va. LEXIS 106 (2003).

Exception for conservators of the peace. - In interpreting this criminal statute, the court is bound by the statutory definition of "conservator of the peace" adopted by the legislature and codified in § 19.2-12 and is not permitted to ignore or rewrite the statute in favor of a broader common-law definition. Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).

This section incorporates the exceptions set forth in § 18.2-308 , which includes the exception for "conservators of the peace." Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).

Section 9-183.8, concerning the licensing and registration of security guards, expressly states that compliance with the provisions of that article does not authorize any person to exercise any powers of a conservator of the peace and it necessarily follows that a registered security guard does not, by virtue of that status alone, fall within the exemption from the prohibition on carrying weapons on school grounds for conservators of the peace. Frias v. Commonwealth, 34 Va. App. 193, 538 S.E.2d 374, 2000 Va. App. LEXIS 838 (2000).

Stun weapon. - The taser, which the trial court found that defendant used to incapacitate the victim during the course of defendant's assault on the victim, qualified as a dangerous weapon due to its classification as a stun weapon and its ability to inflict injury. Cabral v. Commonwealth, 69 Va. App. 67, 815 S.E.2d 805, 2018 Va. App. LEXIS 190 (2018).

Proof of prior juvenile adjudication of illegal firearm possession. - Evidence was sufficient to convict defendant of violating § 18.2-308.2 by possessing a firearm after having been adjudicated delinquent as a juvenile of an act that would have been a felony if committed by an adult, as a certified record of a juvenile probation order stated that the juvenile had been found to be delinquent of carrying a pistol into a public school in violation of § 18.2-308.1 , a Class 6 felony. Under § 8.01-389 , that certified order was prima facie proof of the facts stated therein. Wilder v. Commonwealth,, 2008 Va. App. LEXIS 350 (July 8, 2008).

Felons may possess stun weapons and tasers. - The 2001 amendments to subsection A of § 18.2-308.2 expanded the class of weapons that a felon could not possess to include stun weapons and tasers within its proscription, and the amendment created an exception to the general prohibition of possession of a stun weapon or taser as defined in § 18.2-308.1 by allowing possession of those weapons in the home; clearly the legislative intent was that the exception apply only to stun weapons and tasers, firearms that are limited in their ability to injure. Alger v. Commonwealth, 40 Va. App. 89, 578 S.E.2d 51, 2003 Va. App. LEXIS 137 (2003)(decided under § 18.2-308.2 as it read prior to later amendments).

Possession of machete. - Defendant's possession of a machete with a seventeen-and-one-half-inch, curved, metal blade on school grounds did not violate § 18.2-308.1 because the machete was a type of knife within the meaning of clause (vi) of subsection B of § 18.2-308.1 and, therefore, defendant's possession of the machete in his automobile fell within the statutory exception. McNamara v. Commonwealth, 56 Va. App. 238, 692 S.E.2d 648, 2010 Va. App. LEXIS 204 (2010).

Proof of firearm. - Officer's testimony was sufficient to establish that her "service pistol" was a firearm where she testified that what appellant grabbed was her service pistol and her state-issued firearm, while testifying she also stood and pointed to the weapon in her holster and indicated the weapon grabbed by appellant was the same one that she possessed in the courtroom, and contrary to appellant's argument, case law had never required the Commonwealth to present specific testimony that the object was designed, made, and intended to fire or expel a projectile by means of an explosion. Salley v. Commonwealth, No. 1339-18-1, 2019 Va. App. LEXIS 268 (Ct. of Appeals Nov. 19, 2019).

Applied in Wofford v. Evans, 390 F.3d 318, 2004 U.S. App. LEXIS 24181 (4th Cir. 2004).

OPINIONS OF THE ATTORNEY GENERAL

Unattended weapon prohibited on school property. - A person with a valid concealed weapons permit who carries a gun to school and leaves it unattended, and not on his or her person, is in violation of the statute. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 00-022 (11/9/00).

Concealed weapon prohibited on school property. - A person with a valid concealed weapons permit may not carry a gun onto school property or a school bus and keep the weapon on or about his or her person at all times. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, House of Delegates, 00-022 (11/9/00).

A school board has authority to discipline a student whose action is in conformance with the language of the 2003 amendment of subsection B of this section, pertaining to the possession of an unloaded firearm in a locked vehicle trunk. See opinion of Attorney General to The Honorable Kevin G. Miller, Member, Senate of Virginia, 03-083 (10/15/03).

County school board does not have authority to prohibit the possession of firearms at school board meetings that are not held on school property. See opinion of Attorney General to Mr. James E. Barnett, County Attorney for York County, 06-072 (1/29/07).

Attorney for the Commonwealth or assistant attorney for the Commonwealth. - The 2008 amendments to § 18.2-308 clearly exempt Commonwealth's attorneys and assistant Commonwealth's attorneys from the general prohibitions on carrying concealed handguns, subject only to the restrictions in subsection J1 of § 18.2-308 . Therefore, pursuant to state law such individuals may carry concealed handguns on school property. See opinion of Attorney General to The Honorable R. Lee Ware, Member, House of Delegates, 08-111, 2009 Va. AG LEXIS 23 (7/13/09).

Armed special conservator of the peace for school safety purposes. - Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

Virginia law authorizes school resource officers and certain school security officers to possess firearms on public school grounds as school safety personnel, but such authority is not extended to teachers and administrators. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

Voter intimidation. - Where activity near polling places makes voters fear for their safety while waiting to cast their vote, or leads them to believe that they would be harmed for supporting a particular candidate, such activity may be considered harassment of a voter under state and federal law. See opinion of Attorney General to The Honorable Marcus B. Simon, Member, Virginia House of Delegates, 20-046, 2020 Va. AG LEXIS 31 (9/24/20).

§ 18.2-308.1:1. Purchase, possession, or transportation of firearms by persons acquitted by reason of insanity; penalty.

  1. It shall be unlawful for any person acquitted by reason of insanity and committed to the custody of the Commissioner of Behavioral Health and Developmental Services, pursuant to Chapter 11.1 (§ 19.2-182.2 et seq.) of Title 19.2, on a charge of treason, any felony or any offense punishable as a misdemeanor under Title 54.1 or a Class 1 or Class 2 misdemeanor under this title, except those misdemeanor violations of (i) Article 2 (§ 18.2-266 et seq.) of Chapter 7 of this title, (ii) Article 2 (§ 18.2-415 et seq.) of Chapter 9 of this title, (iii) § 18.2-119 , or (iv) an ordinance of any county, city, or town similar to the offenses specified in clause (i), (ii), or (iii), to knowingly and intentionally purchase, possess, or transport any firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.
  2. Any person so acquitted may, upon discharge from the custody of the Commissioner, petition the general district court in the city or county in which he resides or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred to restore his right to purchase, possess, or transport a firearm. A copy of the petition shall be mailed or delivered to the attorney for the Commonwealth for the jurisdiction where the petition was filed who shall be entitled to respond and represent the interests of the Commonwealth. The court shall conduct a hearing if requested by either party. If the court determines, after receiving and considering evidence concerning the circumstances regarding the disability referred to in subsection A and the person's criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence, that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest, the court shall grant the petition. Any person denied relief by the general district court may petition the circuit court for a de novo review of the denial. Upon a grant of relief in any court, the court shall enter a written order granting the petition, in which event the provisions of subsection A do not apply. The clerk of court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any such order.
  3. As used in this section, "treatment record" shall include copies of health records detailing the petitioner's psychiatric history, which shall include the records pertaining to the commitment or adjudication that is the subject of the request for relief pursuant to this section.

    (1990, c. 692; 2008, cc. 788, 854, 869; 2009, cc. 813, 840; 2010, c. 781; 2011, c. 775; 2017, c. 516.)

The 2008 amendments. - The 2008 amendment by c. 788, in subsection B, substituted "general district court" for "circuit court" in the first sentence; inserted the present second and third sentences; substituted the present provisions of the fourth sentence for "The court may, in its discretion and for good cause shown, grant the petition and issue a permit, in which event the provisions of subsection A do not apply" and added the last sentence.

The 2008 amendments by cc. 854 and 869 are identical, and inserted "purchase" following "to knowingly and intentionally" near the end of the first sentence in subsection A.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical and substituted "Behavioral Health and Developmental Services" for "Mental Health, Mental Retardation and Substance Abuse Services" in subsection A.

The 2010 amendments. - The 2010 amendment by c. 781 added the second and third sentences of subsection B.

The 2011 amendments. - The 2011 amendment by c. 775, in subsection B, substituted "the city or county in which he resides to restore his right to purchase, possess or transport" for "which he resides for a permit to possess or carry" in the first sentence, substituted "after receiving and considering evidence concerning the circumstances regarding the disability referred to in subsection A and the person's criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence" for "that the circumstances regarding the disability referred to in subsection A and the person's criminal history, treatment record, and reputation are such" in the fourth sentence, and deleted "and issue a permit" following "petition" in the sixth sentence; added subsection C; and made a minor stylistic change.

The 2017 amendments. - The 2017 amendment by c. 516, in subsection B, inserted "or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred" in the first sentence.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 13.

Applied in Eastlack v. Commonwealth, 282 Va. 120 , 710 S.E.2d 723, 2011 Va. LEXIS 126 (2011).

§ 18.2-308.1:2. Purchase, possession, or transportation of firearm by persons adjudicated legally incompetent or mentally incapacitated; penalty.

  1. It shall be unlawful for any person who has been adjudicated (i) legally incompetent pursuant to former § 37.1-128.02 or former § 37.1-134, (ii) mentally incapacitated pursuant to former § 37.1-128.1 or former § 37.1-132, or (iii) incapacitated pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2 to purchase, possess, or transport any firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.
  2. Any person whose competency or capacity has been restored pursuant to former § 37.1-134.1, former § 37.2-1012, or § 64.2-2012 may petition the general district court in the city or county in which he resides or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred to restore his right to purchase, possess or transport a firearm. A copy of the petition shall be mailed or delivered to the attorney for the Commonwealth for the jurisdiction where the petition was filed who shall be entitled to respond and represent the interests of the Commonwealth. The court shall conduct a hearing if requested by either party. If the court determines, after receiving and considering evidence concerning the circumstances regarding the disability referred to in subsection A and the person's criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence, that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest, the court shall grant the petition. Any person denied relief by the general district court may petition the circuit court for a de novo review of the denial. Upon a grant of relief in any court, the court shall enter a written order granting the petition, in which event the provisions of subsection A do not apply. The clerk of court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any such order.
  3. As used in this section, "treatment record" shall include copies of health records detailing the petitioner's psychiatric history, which shall include the records pertaining to the commitment or adjudication that is the subject of the request for relief pursuant to this section.

    (1994, c. 907; 1997, c. 921; 2004, c. 995; 2011, c. 775; 2017, c. 516.)

Editor's note. - Section 37.1-134.1 referred to in this section, was repealed by Acts 1997, c. 921, effective January 1, 1998.

At the direction of the Virginia Code Commission, the reference to "Chapter 10 ( § 37.2-1000 et seq.) of Title 37.2" was changed to "Chapter 20 ( § 64.2-2000 et seq.) of Title 64.2" and the reference to "former § 37.1-134.1 or § 37.2-1012" was changed to "former § 37.1-134.1, former § 37.2-1012, or § 64.2-2012 " to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 1997 amendment, effective January 1, 1998, in subsection A, inserted the (i) designation, substituted "former § 37.1-128.02 or former § 37.1-134, (ii) mentally incapacitated pursuant to former § 37.1-128.1 or former § 37.1-132 or (iii) incapacitated pursuant to Article 1.1 ( § 37.1-134.6 et seq.) of Chapter 4 of Title 37.1" for " § 37.1-128.02 or § 37.1-134 or mentally incapacitated pursuant to § 37.1-128.1 or § 37.1-132" and substituted "former § 37.1-134.1 or § 37.1-134.16" for " § 37.1-134.1."

The 2004 amendments. - The 2004 amendment by c. 995 deleted the A designation; substituted "section" for "subsection" in former subsection A; and deleted former subsection B which pertained to the forfeiture of a firearm possessed or transported in violation of this section.

The 2011 amendments. - The 2011 amendment by c. 775 rewrote the section, which read: "It shall be unlawful for any person who has been adjudicated (i) legally incompetent pursuant to former § 37.1-128.02 or former § 37.1-134, (ii) mentally incapacitated pursuant to former § 37.1-128.1 or former § 37.1-132 or (iii) incapacitated pursuant to Chapter 10 ( § 37.2-1000 et seq.) of Title 37.2 and whose competency or capacity has not been restored pursuant to former § 37.1-134.1 or § 37.2-1012, to purchase, possess, or transport any firearm. A violation of this section shall be punishable as a Class 1 misdemeanor."

The 2017 amendments. - The 2017 amendment by c. 516, in subsection B, inserted "or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred" in the first sentence.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 13.

§ 18.2-308.1:3. Purchase, possession, or transportation of firearm by persons involuntarily admitted or ordered to outpatient treatment; penalty.

  1. It shall be unlawful for any person (i) involuntarily admitted to a facility or ordered to mandatory outpatient treatment pursuant to § 19.2-169.2 ; (ii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as the result of a commitment hearing pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, notwithstanding the outcome of any appeal taken pursuant to § 37.2-821 ; (iii) involuntarily admitted to a facility or ordered to mandatory outpatient treatment as a minor 14 years of age or older as the result of a commitment hearing pursuant to Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, notwithstanding the outcome of any appeal taken pursuant to § 16.1-345.6; (iv) who was the subject of a temporary detention order pursuant to § 37.2-809 and subsequently agreed to voluntary admission pursuant to § 37.2-805 ; (v) who, as a minor 14 years of age or older, was the subject of a temporary detention order pursuant to § 16.1-340.1 and subsequently agreed to voluntary admission pursuant to § 16.1-338; or (vi) who was found incompetent to stand trial and likely to remain so for the foreseeable future and whose case was disposed of in accordance with § 19.2-169.3 , to purchase, possess, or transport a firearm. A violation of this subsection shall be punishable as a Class 1 misdemeanor.
  2. Any person prohibited from purchasing, possessing or transporting firearms under this section may, at any time following his release from involuntary admission to a facility, his release from an order of mandatory outpatient treatment, his release from voluntary admission pursuant to § 37.2-805 following the issuance of a temporary detention order, his release from a training center, or his release as provided by § 19.2-169.3 , petition the general district court in the city or county in which he resides or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred to restore his right to purchase, possess, or transport a firearm. A copy of the petition shall be mailed or delivered to the attorney for the Commonwealth for the jurisdiction where the petition was filed who shall be entitled to respond and represent the interests of the Commonwealth. The court shall conduct a hearing if requested by either party. If the court determines, after receiving and considering evidence concerning the circumstances regarding the disabilities referred to in subsection A and the person's criminal history, treatment record, and reputation as developed through character witness statements, testimony, or other character evidence, that the person will not likely act in a manner dangerous to public safety and that granting the relief would not be contrary to the public interest, the court shall grant the petition. Any person denied relief by the general district court may petition the circuit court for a de novo review of the denial. Upon a grant of relief in any court, the court shall enter a written order granting the petition, in which event the provisions of subsection A do not apply. The clerk of court shall certify and forward forthwith to the Central Criminal Records Exchange, on a form provided by the Exchange, a copy of any such order.
  3. As used in this section, "treatment record" shall include copies of health records detailing the petitioner's psychiatric history, which shall include the records pertaining to the commitment or adjudication that is the subject of the request for relief pursuant to this section.

    (1994, c. 907; 2004, c. 995; 2008, cc. 751, 788; 2010, c. 781; 2011, c. 775; 2017, c. 516; 2018, c. 846; 2020, cc. 299, 1121, 1175.)

The 2004 amendments. - The 2004 amendment by c. 995 deleted former subsection B which pertained to the forfeiture of a firearm possessed or transported in violation of this section; redesignated former subsection C as present subsection B; and substituted "section" for "subsection" in present subsection B.

The 2008 amendments. - The 2008 amendments by cc. 751 and 788 are identical and, substituted the present provisions of the first sentence in subsection A for "It shall be unlawful for any person involuntarily committed pursuant to Article 5 ( § 37.2-814 et seq.) of Chapter 8 of Title 37.2 to purchase, possess or transport a firearm during the period of such person's commitment"; and in subsection B, substituted the present provisions of the first and second sentences for "Any person prohibited from purchasing, possessing or transporting firearms under this section may, at any time following his release from commitment, petition the circuit court in the city or county in which he resides to restore his right to purchase, possess or transport a firearm. The court may, in its discretion and for good cause shown, grant the petition" and inserted the third and fourth sentences.

The 2010 amendments. - The 2010 amendment by c. 781 added the second and third sentences of subsection B.

The 2011 amendments. - The 2011 amendment by c. 775, in subsection B, substituted "after receiving and considering evidence concerning" for "that" and "as developed through character witness statements, testimony, or other character evidence" for "are such" in the fourth sentence, substituted "do not apply" for "shall no longer apply" at the end of the sixth sentence; and added subsection C.

The 2017 amendments. - The 2017 amendment by c. 516, in subsection B, inserted "or, if the person is not a resident of the Commonwealth, the general district court of the city or county in which the most recent of the proceedings described in subsection A occurred" following "which he resides" in the first sentence.

The 2018 amendments. - The 2018 amendment by c. 846, effective April 18, 2018, added clauses (iii) and (v) in subsection A and made related changes.

The 2020 amendments. - The 2020 amendments by cc. 299 and 1121 are identical, and inserted "or (vi) who was found incompetent to stand trial and likely to remain so for the foreseeable future and whose case was disposed of in accordance with § 19.2-169.3 " near the end of the first sentence of subsection A; inserted "his release from a training center, or his release as provided by § 19.2-169.3 " in the first sentence of subsection B; and made stylistic changes.

The 2020 amendment by c. 1175, in subsection A in the first sentence, added "notwithstanding the outcome of any appeal taken pursuant to § 37.2-821 " in clause (ii) and "notwithstanding the outcome of any appeal taken pursuant to § 16.1-345.6" in clause (iii); and made a stylistic change.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 13.

§ 18.2-308.1:4. Purchase or transportation of firearm by persons subject to protective orders; penalties.

  1. It is unlawful for any person who is subject to (i) a protective order entered pursuant to § 16.1-253.1, 16.1-253.4, 16.1-278.2, 16.1-279.1, 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 ; (ii) an order issued pursuant to subsection B of § 20-103 ; (iii) an order entered pursuant to subsection D of § 18.2-60.3 ; (iv) a preliminary protective order entered pursuant to subsection F of § 16.1-253 where a petition alleging abuse or neglect has been filed; or (v) an order issued by a tribunal of another state, the United States or any of its territories, possessions, or commonwealths, or the District of Columbia pursuant to a statute that is substantially similar to those cited in clauses (i), (ii), (iii), or (iv) to purchase or transport any firearm while the order is in effect. Any person with a concealed handgun permit shall be prohibited from carrying any concealed firearm, and shall surrender his permit to the court entering the order, for the duration of any protective order referred to herein. A violation of this subsection is a Class 1 misdemeanor.
  2. In addition to the prohibition set forth in subsection A, it is unlawful for any person who is subject to a protective order entered pursuant to § 16.1-279.1 or 19.2-152.10 or an order issued by a tribunal of another state, the United States or any of its territories, possessions, or commonwealths, or the District of Columbia pursuant to a statute that is substantially similar to § 16.1-279.1 or 19.2-152.10 to knowingly possess any firearm while the order is in effect, provided that for a period of 24 hours after being served with a protective order in accordance with subsection C of § 16.1-279.1 or subsection D of § 19.2-152.10 such person may continue to possess and, notwithstanding the provisions of subsection A, transport any firearm possessed by such person at the time of service for the purposes of surrendering any such firearm to a law-enforcement agency in accordance with subsection C or selling or transferring any such firearm to a dealer as defined in § 18.2-308.2:2 or to any person who is not otherwise prohibited by law from possessing such firearm in accordance with subsection C. A violation of this subsection is a Class 6 felony.
  3. Upon issuance of a protective order pursuant to § 16.1-279.1 or 19.2-152.10 , the court shall order the person who is subject to the protective order to (i) within 24 hours after being served with a protective order in accordance with subsection C of § 16.1-279.1 or subsection D of § 19.2-152.10 (a) surrender any firearm possessed by such person to a designated local law-enforcement agency, (b) sell or transfer any firearm possessed by such person to a dealer as defined in § 18.2-308.2:2 , or (c) sell or transfer any firearm possessed by such person to any person who is not otherwise prohibited by law from possessing such firearm and (ii) within 48 hours after being served with a protective order in accordance with subsection C of § 16.1-279.1 or subsection D of § 19.2-152.10, certify in writing, on a form provided by the Office of the Executive Secretary of the Supreme Court, that such person does not possess any firearms or that all firearms possessed by such person have been surrendered, sold, or transferred and file such certification with the clerk of the court that entered the protective order. The willful failure of any person to certify in writing in accordance with this section that all firearms possessed by such person have been surrendered, sold, or transferred or that such person does not possess any firearms shall constitute contempt of court.
  4. The person who is subject to a protective order pursuant to § 16.1-279.1 or 19.2-152.10 shall be provided with the address and hours of operation of a designated local law-enforcement agency and the certification forms when such person is served with a protective order in accordance with subsection C of § 16.1-279.1 or subsection D of § 19.2-152.10 .
  5. A law-enforcement agency that takes into custody a firearm surrendered to such agency pursuant to subsection C by a person who is subject to a protective order pursuant to § 16.1-279.1 or 19.2-152.10 shall prepare a written receipt containing the name of the person who surrendered the firearm and the manufacturer, model, and serial number of the firearm and provide a copy to such person. Any firearm surrendered to and held by a law-enforcement agency pursuant to subsection C shall be returned by such agency to the person who surrendered the firearm upon the expiration or dissolution of the protective order entered pursuant to § 16.1-279.1 or 19.2-152.10 . Such agency shall return the firearm within five days of receiving a written request for the return of the firearm by the person who surrendered the firearm and a copy of the receipt provided to such person by the agency. Prior to returning the firearm to such person, the law-enforcement agency holding the firearm shall confirm that such person is no longer subject to a protective order issued pursuant to § 16.1-279.1 or 19.2-152.10 and is not otherwise prohibited by law from possessing a firearm. A firearm surrendered to a law-enforcement agency pursuant to subsection C may be disposed of in accordance with the provisions of § 15.2-1721 if (i) the person from whom the firearm was seized provides written authorization for such disposal to the agency or (ii) the firearm remains in the possession of the agency more than 120 days after such person is no longer subject to a protective order issued pursuant to § 16.1-279.1 or 19.2-152.10 and such person has not submitted a request in writing for the return of the firearm.
  6. Any law-enforcement agency or law-enforcement officer that takes into custody, stores, possesses, or transports a firearm pursuant to this section shall be immune from civil or criminal liability for any damage to or deterioration, loss, or theft of such firearm.
  7. The law-enforcement agencies of the counties, cities, and towns within each judicial circuit shall designate, in coordination with each other, and provide to the chief judges of all circuit and district courts within the judicial circuit, one or more local law-enforcement agencies to receive and store firearms pursuant to this section. The law-enforcement agencies shall provide the chief judges with a list that includes the addresses and hours of operation for any law-enforcement agencies so designated that such addresses and hours of operation may be provided to a person served with a protective order in accordance with subsection C of § 16.1-279.1 or subsection D of § 19.2-152.10 . (1994, c. 907; 1996, c. 866; 1998, c. 569; 2001, c. 357; 2002, cc. 783, 865; 2004, c. 995; 2011, cc. 373, 402; 2013, c. 759; 2016, cc. 48, 49; 2020, cc. 1221, 1260.)

Editor's note. - At the direction of the Virginia Code Commission, in clause (iii) of subsection A, substituted "subsection D of § 18.2-60.3 " for "subsection E of § 18.2-60.3 " to conform to Acts 2016, c. 696.

At the direction of the Virginia Code Commission, substituted "subsection D of § 19.2-152.10 " for "subsection C of § 19.2-152.10 " throughout the section to conform to Acts 2020, c. 1005.

Acts 2020, cc. 1221 and 1260, cl. 2 provides: "That any petition for a protective order promulgated by the Executive Secretary of the Supreme Court of Virginia shall include a provision where the petitioner may indicate whether the petitioner knows or has reason to know that the respondent owns or otherwise possesses any firearms."

Acts 2020, cc. 1221 and 1260, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1996 amendment, effective July 1, 1997, in subsection A, inserted the clause (i) and clause (iii) designations, inserted "16.1-253," deleted "or to" following " § 16.1-279.1," and added clause (ii).

The 1998 amendment, in subsection A, in the first sentence, deleted "or" following "16.1-253.4" and inserted "19.2-152.8, 19.2-152.9 , or § 19.2-152.10 ."

The 2001 amendments. - The 2001 amendment by c. 357, in subsection A, deleted "or" preceding "(iii)," and inserted "or (iv) an order issued by a tribunal of another state, the United States or any of its territories, possessions or commonwealths, or the District of Columbia pursuant to a statute that is substantially similar to those cited in clauses (i), (ii), or (iii)."

The 2002 amendments. - The 2002 amendments by cc. 783 and 865 are identical, and, in subsection A, substituted "subsection B" for "subsection b" in the first sentence, inserted the present second sentence, and substituted "is" for "shall be punishable as" in the last sentence.

The 2004 amendments. - The 2004 amendment by c. 995 deleted the A designation; and deleted former subsection B which pertained to the forfeiture of a firearm purchased or transported in violation of this section.

The 2011 amendments. - The 2011 amendments by cc. 373 and 402 are identical, and in clause (i) of the first sentence, deleted " § 16.1-253" following "pursuant to" and inserted "16.1-278.2"; added present clause (iv) and redesignated former clause (iv) as clause (v); substituted "(iii), or (iv)" for "or (iii)" in the second sentence; and made stylistic changes.

The 2013 amendments. - The 2013 amendment by c. 759 substituted "It is unlawful" for "It shall be unlawful" at the beginning, and "subsection E" for "subsection D" in clause (iii) of the first sentence.

The 2016 amendments. - The 2016 amendments by cc. 48 and 49 are identical, and inserted the subsection designation A and substituted "subsection" for "section" in the last sentence; and added subsection B.

The 2020 amendments. - The 2020 amendments by cc. 1221 and 1260 are identical, and in subsection B in the first sentence, inserted "or 19.2-152.10 " twice, "or subsection C of § 19.2-152.10 ," "surrendering any such firearm to a law-enforcement agency in accordance with subsection C or," "a dealer as defined in § 18.2-308.2:2 or to" and "in accordance with subsection C"; and added subsections C through G.

Law review. - For article, "Family Law," see 35 U. Rich. L. Rev. 651 (2001).

For article surveying developments in family law in Virginia, see 37 U. Rich. L. Rev. 155 (2002).

Research References. - Virginia Forms (Matthew Bender). No. 5-155 Petition for Protective Order -- Family Abuse; et seq.; No. 9-203 Emergency Protective Order - Family Abuse, et seq.

CASE NOTES

Legislative intent. - Legislature's intent to provide for multiple units of prosecution based on multiple protective orders in place to safeguard different principals outweighs application of the rule of lenity. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Double jeopardy. - Defendant's five convictions and sentences did not violate his constitutional protection against double jeopardy because defendant's single act of transporting a firearm logically resulted in separate and distinct charges based on the five protective orders entered to protect five different principals; while defendant was subject to five different protective orders protecting five different principals, he transported a firearm, and that action constituted five different violations. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Construction. - Purpose of the statute is to protect the individuals who are the subjects of the protective orders; the focus of the statute must be upon the principal whom each protective order is in place to protect, and, therefore, the gravamen of the offense of the purchase or transportation of a firearm by a person subject to a protective order is the occurrence of the act while the protective order is in effect. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Purpose. - Gravamen of an offense under the statute is not possession, but it is the purchase or transportation of a firearm while the protective order is in effect because the purpose of the statute is to protect each principal. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Virginia General Assembly concluded that the different groups of individuals under restrictions are dissimilar and subject to different limitations as well as penalties; as a result of this contrast between the federal and state law, the federal cases interpreting 18 U.S.C.S. § 922(g) are inapposite to application of § 18.2-308.1:4 . Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Purpose of the statute is to further safeguard the principal whom each of the orders was entered to protect; the gravamen of the offense is the purchase or transportation of a firearm by a person subject to a protective order while the protective order is in effect. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

CIRCUIT COURT OPINIONS

Constitutionality. - Protective orders did not violate the Takings Clauses as the law required a temporary deprivation of a firearm in whatever manner the owner saw fit. Baird v. Baird, 99 Va. Cir. 432, 2018 Va. Cir. LEXIS 323 (Wise County Aug. 8, 2018).

Protective orders did not violate due process where respondent was given reasonable notice and an opportunity to be heard, and the standard for an order involved whether an objective reasonable person would have been in fear of death and bodily harm. Baird v. Baird, 99 Va. Cir. 432, 2018 Va. Cir. LEXIS 323 (Wise County Aug. 8, 2018).

Respondent's motion to dismiss a protective order issued pursuant to § 18.2-308.1:4 on Second Amendment and Va. Const. art. 1, § 13, grounds was denied as the Commonwealth had a significant government interest in public safety and protecting those most vulnerable to violence, and the statute was narrowly tailored to meet that governmental interest. Baird v. Baird, 99 Va. Cir. 432, 2018 Va. Cir. LEXIS 323 (Wise County Aug. 8, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Issuance of concealed weapon permit. - When issuing a concealed weapon permit, the clerk of court has no duty to verify with the general district or the juvenile and domestic relations district court whether the applicant has any criminal charges or protective orders pending against him in those courts. See opinion of Attorney General to The Honorable Jack Kennedy, Clerk of the Circuit Court, Wise County and City of Norton, 11-018, 2011 Va. AG LEXIS 26 (5/13/11).

§ 18.2-308.1:5. Purchase or transportation of firearm by persons convicted of certain drug offenses prohibited.

Any person who, within a 36-consecutive-month period, has been convicted of two misdemeanor offenses under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1, subsection B of former § 18.2-248.1:1 , or § 18.2-250 shall be ineligible to purchase or transport a handgun. However, upon expiration of a period of five years from the date of the second conviction and provided the person has not been convicted of any such offense within that period, the ineligibility shall be removed.

(1995, c. 577; 2011, cc. 384, 410; 2014, cc. 674, 719; 2021 Sp. Sess. I, cc. 550, 551.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 7, effective July 1, 2021, provides: "That, except for (i) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , 18.2-308.1:5 , 19.2-389.3 , 19.2-392.1 , 19.2-392.4 , and 24.2-233 of the Code of Virginia, as amended by this act, §§ 19.2-392.2:1 , 19.2-392.2:2 , and 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (ii) the repeal of § 18.2-250.1 of the Code of Virginia, the provisions of the first, third, fourth, fifth, sixth, and eleventh enactments of this act shall not become effective unless reenacted by the 2022 Session of the General Assembly. The provisions of §§ 4.1-1101.1 and 4.1-1105.1 of the Code of Virginia, as created by this act, shall expire on January 1, 2024, if the provisions of the first, third, and fourth enactments of this act are reenacted by the 2022 Session of the General Assembly."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 8, effective July 1, 2021, provides: "That (i) the provisions of the second enactment of this act, (ii) the provisions of Article 30 ( § 2.2-2499.5 et seq.) of Chapter 24 of Title 2.2 of the Code of Virginia, as created by this act, §§ 4.1-600 through 4.1-628 , 4.1-1100 , 4.1-1101 , 4.1-1101.1 , 4.1-1105.1 , 4.1-1107 through 4.1-1110 , 4.1-1112 , 4.1-1120 , 4.1-1121 , and 4.1-1302 of the Code of Virginia, as created by this act, Chapter 15 ( § 4.1-1500 et seq.) of Title 4.1 of the Code of Virginia, as created by this act, §§ 15.2-1627 , 16.1-69.48:1, 16.1-228, 16.1-278.8:01, 18.2-251.02 , 18.2-308.09 , and 18.2-308.1:5 of the Code of Virginia, as amended by this act, § 46.2-341.20:7 of the Code of Virginia, as created by this act, and § 54.1-3442.6 of the Code of Virginia, as amended by this act, and (iii) the repeal of § 18.2-250.1 of the Code of Virginia shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 550 and 551, cl. 26 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice. The provisions of this enactment shall become effective in due course."

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "subsection B of § 18.2-248.1:1 " and made a minor stylistic change.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and substituted "36-consecutive-month" for "thirty-six consecutive month," inserted "former," and made a minor stylistic change.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 550 and 551, effective July 1, 2021, are identical, and inserted "Chapter 11 ( § 4.1-1100 et seq.) of Title 4.1," deleted "18.2-250.1," and made a stylistic change.

§ 18.2-308.1:6. Purchase, possession, or transportation of firearms by persons subject to substantial risk orders; penalty.

It is unlawful for any person who is subject to an emergency substantial risk order or a substantial risk order entered pursuant to § 19.2-152.13 or 19.2-152.14 or an order issued by a tribunal of another state, the United States or any of its territories, possessions, or commonwealths, or the District of Columbia pursuant to a statute that is substantially similar to § 19.2-152.13 or 19.2-152.14 to purchase, possess, or transport any firearm while the order is in effect. Any such person with a concealed handgun permit is prohibited from carrying any concealed firearm while the order is in effect and shall surrender his permit to the court entering the order pursuant to § 19.2-152.13 or 19.2-152.14 . A violation of this section is a Class 1 misdemeanor.

(2020, cc. 887, 888.)

Editor's note. - Acts 2020, cc. 887 and 888, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, cl. 3 provides: "That the Supreme Court shall create standard forms to implement the intent of this act."

§ 18.2-308.1:7. Purchase, possession, or transportation of firearm by persons enrolled into the Voluntary Do Not Sell Firearms List; penalty.

It is unlawful for any person enrolled into the Voluntary Do Not Sell Firearms List pursuant to Chapter 12 (§ 52-50 et seq.) of Title 52 to purchase, possess, or transport a firearm. A violation of this section is punishable as a Class 3 misdemeanor.

(2020, c. 1173, § 18.2-308.1:6 .)

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 18.2-308.1:6 .

Editor's note. - Acts 2020, c. 1173, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1173, cl. 3 provides: "That the Department of State Police shall consult with the Department of Behavioral Health and Developmental Services in developing the application for enrollment into or removal from the Virginia Voluntary Do Not Sell Firearms List pursuant to this act."

Acts 2020, c. 1173, cl. 4 provides: "That the Board of Counseling, Board of Medicine, Board of Nursing, and Board of Psychology shall notify all licensees of the existence of the Virginia Voluntary Do Not Sell Firearms List created by this act within 60 days after the effective date of this act."

Acts 2020, c. 1173, cl. 5 provides: "That the provisions of this act shall become effective on July 1, 2021."

§ 18.2-308.1:8. Purchase, possession, or transportation of firearm following an assault and battery of a family or household member; penalty.

  1. Any person who knowingly and intentionally purchases, possesses, or transports any firearm following a misdemeanor conviction for an offense that occurred on or after July 1, 2021, for (i) the offense of assault and battery of a family or household member or (ii) an offense substantially similar to clause (i) under the laws of any other state or of the United States is guilty of a Class 1 misdemeanor.
  2. For the purposes of this section, "family or household member" means (i) the person's spouse, whether or not he resides in the same home with the person; (ii) the person's former spouse, whether or not he resides in the same home with the person; or (iii) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time.
  3. Any person prohibited from purchasing, possessing, or transporting a firearm pursuant to subsection A shall be prohibited from purchasing, possessing, or transporting a firearm for three years following the date of the conviction at which point the person convicted of such offense shall no longer be prohibited from purchasing, possessing, or transporting a firearm pursuant to subsection A. Such person shall have his firearms rights restored, unless such person receives another disqualifying conviction, is subject to a protective order that would restrict his rights to carry a firearm, or is otherwise prohibited by law from purchasing, possessing, or transporting a firearm.

    (2021, Sp. Sess. I, c. 555.)

Editor's note. - Acts 2021, c. 555, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Effective date. - This section is effective July 1, 2021.

§ 18.2-308.2. Possession or transportation of firearms, firearms ammunition, stun weapons, explosives or concealed weapons by convicted felons; penalties; petition for restoration order; when issued.

  1. It shall be unlawful for (i) any person who has been convicted of a felony; (ii) any person adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32 , kidnapping in violation of § 18.2-47 , robbery by the threat or presentation of firearms in violation of § 18.2-58 , or rape in violation of § 18.2-61 ; or (iii) any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, other than those felonies set forth in clause (ii), whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof, to knowingly and intentionally possess or transport any firearm or ammunition for a firearm, any stun weapon as defined by § 18.2-308 .1, or any explosive material, or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308 . However, such person may possess in his residence or the curtilage thereof a stun weapon as defined by § 18.2-308.1 . Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.
  2. The prohibitions of subsection A shall not apply to (i) any person who possesses a firearm, ammunition for a firearm, explosive material or other weapon while carrying out his duties as a member of the Armed Forces of the United States or of the National Guard of Virginia or of any other state, (ii) any law-enforcement officer in the performance of his duties, (iii) any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Virginia provided the Governor, in the document granting the pardon or removing the person's political disabilities, may expressly place conditions upon the reinstatement of the person's right to ship, transport, possess or receive firearms, (iv) any person whose right to possess firearms or ammunition has been restored under the law of another state subject to conditions placed upon the reinstatement of the person's right to ship, transport, possess, or receive firearms by such state, or (v) any person adjudicated delinquent as a juvenile who has completed a term of service of no less than two years in the Armed Forces of the United States and, if such person has been discharged from the Armed Forces of the United States, received an honorable discharge and who is not otherwise prohibited under clause (i) or (ii) of subsection A.
  3. Any person prohibited from possessing, transporting, or carrying a firearm, ammunition for a firearm, or a stun weapon under subsection A may petition the circuit court of the jurisdiction in which he resides or, if the person is not a resident of the Commonwealth, the circuit court of any county or city where such person was last convicted of a felony or adjudicated delinquent of a disqualifying offense pursuant to subsection A, for a restoration order that unconditionally authorizes possessing, transporting, or carrying a firearm, ammunition for a firearm, or a stun weapon; however, no person who has been convicted of a felony shall be qualified to petition for such an order unless his civil rights have been restored by the Governor or other appropriate authority. A copy of the petition shall be mailed or delivered to the attorney for the Commonwealth for the jurisdiction where the petition was filed who shall be entitled to respond and represent the interests of the Commonwealth. The court shall conduct a hearing if requested by either party. The court may, in its discretion and for good cause shown, grant such petition and issue a restoration order. Such order shall contain the petitioner's name and date of birth. The clerk shall certify and forward forthwith to the Central Criminal Records Exchange (CCRE), on a form provided by the CCRE, a copy of the order to be accompanied by a complete set of the petitioner's fingerprints. The Department of State Police shall forthwith enter the petitioner's name and description in the CCRE so that the order's existence will be made known to law-enforcement personnel accessing the computerized criminal history records for investigative purposes. The provisions of this section relating to firearms, ammunition for a firearm, and stun weapons shall not apply to any person who has been issued a restoration order pursuant to this subsection. C1. Any person who was prohibited from possessing, transporting or carrying explosive material under subsection A may possess, transport or carry such explosive material if his right to possess, transport or carry explosive material has been restored pursuant to federal law. C2. The prohibitions of subsection A shall not prohibit any person other than a person convicted of an act of violence as defined in § 19.2-297.1 or a violent felony as defined in subsection C of § 17.1-805 from possessing, transporting, or carrying (i) antique firearms or (ii) black powder in a quantity not exceeding five pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in antique firearms. For the purposes of this subsection, "antique firearms" means any firearm described in subdivision 3 of the definition of "antique firearm" in subsection F of § 18.2-308.2:2 .
  4. For the purpose of this section: "Ammunition for a firearm" means the combination of a cartridge, projectile, primer, or propellant designed for use in a firearm other than an antique firearm as defined in § 18.2-308.2:2 . "Explosive material" means any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion; the term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, smokeless gun powder, detonators, blasting caps and detonating cord but shall not include fireworks or permissible fireworks as defined in § 27-95 . (1979, c. 474; 1982, c. 515; 1983, c. 233; 1986, cc. 409, 641; 1987, c. 108; 1988, c. 237; 1989, cc. 514, 531; 1993, cc. 468, 926; 1994, cc. 859, 949; 1999, cc. 829, 846; 2001, cc. 811, 854; 2002, c. 362; 2003, c. 110; 2004, cc. 429, 461, 995; 2005, cc. 600, 833; 2007, c. 519; 2008, c. 752; 2009, c. 236; 2010, c. 781; 2015, cc. 200, 767; 2016, c. 337; 2017, c. 767; 2019, c. 203; 2020, cc. 1111, 1112.)

Editor's note. - Acts 2019, c. 203, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2021."

The 1999 amendments. - The 1999 amendment by c. 829, in subsection A, substituted "Any person who violates this section shall be guilty of a" for "A violation of this section shall be punishable as a" in the second sentence, and added the present third through fifth sentences, and in subsection C, added the language beginning "however, no person" at the end of the first sentence.

The 1999 amendment by c. 846, in subsection A, substituted "Any person who violates this section shall be guilty of a" for "A violation of this section shall be punishable as a" in the second sentence, and added the present third through fifth sentences.

The 2001 amendments. - The 2001 amendments by cc. 811 and 854 are virtually identical, and in the first sentence of subsection A, inserted the present clause (a) designation, inserted present clause (b), reading "stun weapon or taser as defined by § 18.2-308 .1 except in such person's residence or the curtilage thereof," and substituted "subsection A of § 18.2-308 " for " § 18.2-308 A" at the end of the sentence; inserted "stun weapon or taser as defined by § 18.2-308.1 ," following "firearm," near the beginning of the sixth sentence in subsection A; and inserted "stun weapon or taser" following "firearm," twice in the first sentence of subsection C.

The 2002 amendments. - The 2002 amendment by c. 362, effective April 1, 2002, in the first sentence of subsection A, deleted the clause (a) designator preceding "firearm or" and deleted former clause (b), which read: "stun weapon or taser as defined by § 18.2-308.1 except in such person's residence or the curtilage thereof or"; and inserted the present second sentence.

The 2003 amendments. - The 2003 amendment by c. 110, in the first sentence of subsection A, substituted "29" for "twenty-nine," substituted "14" for "fourteen," and inserted "or stun weapon or taser as defined by § 18.2-308.1 ."

The 2004 amendments. - The 2004 amendment by c. 429 inserted "or any explosive material" in clause (ii) in the first sentence of subsection A; inserted "explosive material" once in subsection B and twice in subsection C; added subsection D; and made minor stylistic changes.

The 2004 amendment by c. 461, in subsection A, twice deleted "shall not be eligible for probation, and" preceding "shall be sentenced," substituted "mandatory minimum" for "minimum, mandatory" in three places, and deleted "shall not be suspended in whole or in part and" in the next-to-last sentence.

The 2004 amendment by c. 995 deleted the last sentence in subsection A which pertained to the forfeiture of any weapon possessed, carried or transported in violation of this section.

The 2005 amendments. - The 2005 amendment by c. 600 inserted clause (ii) of subsection A; redesignated former clause (ii) of subsection A as clause (iii); in present clause (iii) of subsection A, substituted "adjudicated delinquent" for "found guilty"; added "other than those felonies set forth in clause (ii)"; and inserted "within the prior 10 years" in the next to last sentence.

The 2005 amendment by c. 833, twice deleted "explosive material" before "stun weapon" and inserted "relating to firearms, stun weapons, and tasers" near the end of subsection C and added subsection C1.

The 2007 amendments. - The 2007 amendment by c. 519 deleted "taser" following "stun weapon" in the first sentence of subsection A; deleted "or taser" following "stun weapon" in the second sentence of subsection A and twice in the first sentence of subsection C; and deleted "and tasers" following "stun weapons" in the last sentence of subsection C and made related changes.

The 2008 amendments. - The 2008 amendment by c. 752 deleted "on or after July 1, 2005" in clause (ii) in subsection A.

The 2009 amendments. - The 2009 amendment by c. 236, in subsection A, inserted "ammunition for a firearm, any"; in clause (i) in subsection B and in the last sentence of subsection C inserted "ammunition for a firearm"; and divided subsection D into the introductory language of subsection D and the definition of "Explosive material" and added the definition of "Ammunition for a firearm."

The 2010 amendments. - The 2010 amendment by c. 781 added the second and third sentences in subsection C.

The 2015 amendments. - The 2015 amendment by c. 200 twice inserted "ammunition for a firearm" following "firearm," inserted "a" preceding "stun weapon" and "or, if the person is not a resident of the Commonwealth, the circuit court of any county or city where such person was last convicted of a felony or adjudicated delinquent of a disqualifying offense pursuant to subsection A" in subsection C.

The 2015 amendment by c. 767 added "or (iv) any person whose right to possess firearms or ammunition has been restored under the law of another state subject to conditions placed upon the reinstatement of the person's right to ship, transport, possess, or receive firearms by such state" in subsection B; and made related changes.

The 2016 amendments. - The 2016 amendment by c. 337 added clause (v) and made related changes in subsection B.

The 2017 amendments. - The 2017 amendment by c. 767 added subsection C2.

The 2019 amendments. - The 2019 amendment by c. 203, effective January 1, 2021, in subsection C, substituted "restoration order that unconditionally authorizes possessing, transporting, or carrying" for "permit to possess or carry" and "such an order" for "such a permit" in the first sentence, substituted "restoration order" for "permit" at the end of the fourth sentence, added the fifth through seventh sentences, and substituted "issued a restoration order" for "granted a permit" in the last sentence.

The 2020 amendments. - The 2020 amendments by cc. 1111 and 1112 are identical, and in subsection C2, substituted "subsection F" for "subsection G" in the last sentence.

Law review. - For note, "The Clemency Process in Virginia", see 27 U. Rich. L. Rev. 241 (1993).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For note, "Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest," 97 Va. L. Rev. 1727 (2011).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Research References. - Virginia Forms (Matthew Bender). No. 9-4304 Petition to Circuit Court for Restoration of Firearm Rights - Unrestricted, et seq.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 20; 5B M.J. Criminal Procedure, §§ 59, 81; 12A M.J. Larceny, § 31; 17 M.J. Statutes, § 40; 20 M.J. Weapons, §§ 2, 4.1, 7.2, 9, 12, 13.

CASE NOTES

I. IN GENERAL.

Constitutionality. - This section does not criminalize an act previously committed, and in the instant case, the attempted firearm purchase occurred several years after this section was amended to prohibit the possession of a firearm by any convicted felon. The prohibition of firearm possession by convicted felons comes about as a relevant incident to the state regulation of firearms, and thus is not an unconstitutional ex post facto law. Dodson v. Commonwealth, 23 Va. App. 286, 476 S.E.2d 512 (1996).

Imposition of a five-year mandatory minimum sentence for defendant's conviction of possession of a firearm by a convicted felon under § 18.2-308.2 did not violate the constitutional provision of Va. Const., Art. III, § 1, requiring the separation of powers because the power of punishment was vested in the legislative, not the judicial department. Johnson v. Commonwealth, 56 Va. App. 244, 692 S.E.2d 651, 2010 Va. App. LEXIS 201 (2010).

Defendant's "as applied" Second Amendment challenge to the temporary ban on non-violent juveniles' firearm possession failed because (1) defendant's concession of the constitutionality of banning felons' firearm possession necessarily conceded defendant engaged in conduct that could be punished by a lifetime firearm possession ban, and (2) defendant's proffered justification for distinguishing juvenile adjudications, which was removal from the pool of those who could provide for the common defense, also applied to adults and juveniles tried as adults. Prekker v. Commonwealth, 66 Va. App. 103, 782 S.E.2d 604, 2016 Va. App. LEXIS 71 (Mar. 8, 2016).

Age classification did not violate due process and equal protection. - Defendant's conviction for possessing a firearm while under the age of 29 after being convicted of a felony as a juvenile was affirmed where the appellate court found the age classification in this section did not discriminate against defendant by violating his equal protection and due process rights. The permissible public safety concern of keeping firearms out of the hands of convicted felons and keeping firearms out of the hands of young adults who were convicted of what would have been a felony if they had been tried as adults was a legitimate governmental objective. Pulley v. Commonwealth, No. 0415-01-1, 2002 Va. App. LEXIS 75 (Ct. of Appeals Feb. 5, 2002).

Double jeopardy violation. - State conceded that defendant's convictions for possession of a firearm after having been convicted of a felony, as well as carrying a concealed weapon after having been convicted of a felony, both in violation of subsection A of § 18.2-308.2 , violated defendant's double jeopardy rights since the convictions were predicated on the same act; as a result, one of the convictions had to be reversed. Perez v. Commonwealth,, 2006 Va. App. LEXIS 436 (Oct. 3, 2006).

Defendant's double jeopardy rights were not violated and the trial court properly denied his motion to dismiss a second charge of possession of a weapon by a convicted felon because defendant's act of transporting a gun with him in a car was separate and distinct from his possession of another gun in a bedroom in his mother's house. Bradshaw v. Commonwealth, Nos. 1067-12-2 and 1350-12-2, 2013 Va. App. LEXIS 264 (Ct. of Appeals Sept. 24, 2013).

Statute addresses only possession of the prohibited items to sustain a conviction, not their actual use; the fact that some of the ammunition in defendant's possession did not pair with the firearms found with it did not justify separate convictions for simultaneous possession under the statute in question. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Holding regarding simultaneous possession of multiple firearms, a single act of possession of multiple guns is one offense under the statute, extends to simultaneous possession of a firearm and ammunition. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Trial court erred in imposing two sentences under the statute for simultaneous possession of a firearm and ammunition because the statute did not separately penalize defendant's possession of firearms and ammunition at the same time; defendant should have been subject to only one punishment under the statute for the firearms and ammunition that he stored in a shed. Groffel v. Commonwealth, 70 Va. App. 681, 831 S.E.2d 503, 2019 Va. App. LEXIS 191 (2019), aff'd, 849 S.E.2d 905, 2020 Va. LEXIS 158 (Va. 2020).

Trial court erred in imposing both convictions under § 18.2-308.2 for simultaneous possession of a firearm and possession of ammunition because doing so violated the Double Jeopardy Clause. Guerrant v. Commonwealth, No. 1446-18-3, 2020 Va. App. LEXIS 39 (Feb. 11, 2020).

Appellant's convictions of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon violated the Double Jeopardy Clause where the evidence showed that during a search of appellant's residence, officers found multiple firearms and ammunition in several locations. Seamster v. Commonwealth, No. 1193-19-2, 2021 Va. App. LEXIS 117 (July 13, 2021).

Successive prosecution not barred. - Where both defendants were convicted in separate prosecutions of carrying a concealed weapon in a first prosecution and possessing a firearm as a convicted felon in a second prosecution, the statute barring a successive prosecution did not bar the subsequent prosecutions in defendants' cases because, to be concealed, the weapons had to first be possessed; and the possession and concealment might (or might not) have been close temporally, but there could be no dispute that defendants had to possess the firearms at issue, and that it took separate acts to conceal them; thus, the additional act of concealing the weapon made it a different act from merely possessing it, and the successive prosecutions did not rest on the same act. Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (Dec. 3, 2020).

Purpose. - Mischief at which subsection A of § 18.2-308.2 is directed is the possession of firearms by convicted felons in an attempt to prevent indiscriminate use of dangerous weapons by one previously convicted of a serious crime; section 18.2-308.2 expresses a legislative intent of keeping firearms out of the hands of convicted felons. Alger v. Commonwealth, 40 Va. App. 89, 578 S.E.2d 51, 2003 Va. App. LEXIS 137 (2003).

Construction with § 16.1-308. - Regarding defendant's unlawful possession of a firearm, any ambiguity over juvenile protections between § 16.1-308 and this section, which applies to adult felons and juveniles of a certain age convicted of acts that would be felonies for adults, must be resolved in favor of this section, which is the more specific statute and prevails over the general statute concerning collateral disabilities for convicted juveniles. Griffin v. Commonwealth, 33 Va. App. 413, 533 S.E.2d 653, 2000 Va. App. LEXIS 649 (2000).

Juvenile conviction under Virginia law was not a criminal conviction for purposes of defining "prohibited person" under 18 U.S.C.S. § 922 and U.S. Sentencing Guidelines Manual § 2K2.1(a)(6); the fact that defendant was considered a "prohibited person" under subsection A of § 18.2-308.2 was irrelevant for purposes of a federal firearms conviction. United States v. Bugg, 248 F. Supp. 2d 507, 2003 U.S. Dist. LEXIS 3215 (E.D. Va. 2003).

Appeal dismissed under fugitive disentitlement doctrine. - Appeal of a conviction for possession of a firearm while under age 29 after a felonious juvenile adjudication, § 18.2-308.2 , was dismissed because defendant was a fugitive from justice, there was a sufficient nexus between the appeal and his fugitive status, and dismissal furthered the goals of the Fugitive Disentitlement Doctrine. Reid v. Commonwealth, 57 Va. App. 42, 698 S.E.2d 269, 2010 Va. App. LEXIS 349 (2010).

Sufficiency of indictment. - Indictment was sufficient to inform defendant of weapon possession offense he committed under this section and that he could receive the mandatory minimum sentence of five years in prison if evidence was introduced showing he had previously convicted of a violent felony, and since the Commonwealth made the required showing, defendant's argument that the indictment insufficiently alleged the offense was without merit. Thomas v. Commonwealth, 37 Va. App. 748, 561 S.E.2d 56, 2002 Va. App. LEXIS 176 (2002).

Original indictment did not charge a nonoffense where: (1) by its reference to § 18.2-308.2 , the indictment provided defendant with notice of the nature and character of the offense with which he was charged; (2) the amended indictment tracked the language of § 18.2-308.2 to charge that defendant carried in a concealed manner a dirk, bowie knife, switchblade knife, ballistic knife, machete, or razor or any weapon of like kind; (3) the nature of the charged offense was not changed; and (4) defendant did not claim surprise regarding the charged offense or request a continuance of the trial date. Thompson v. Commonwealth, 51 Va. App. 205, 656 S.E.2d 409, 2008 Va. App. LEXIS 59 (2008), rev'd, 277 Va. 280 , 673 S.E.2d 469 (2009) (as to whether butterfly knife was weapon of like kind).

Sufficient identification of defendant. - Trial court did not err in finding that a witness's identification of defendant as the person who robbed the convenience store where she worked was sufficiently reliable. The witness observed the robber's eyes, forehead, and nose during the robbery for about 10 to 15 minutes; she saw his full facial profile for about five seconds; she identified defendant as the robber in photographic and "live" lineups and at trial; and although she acknowledged that the robber had a mark and pimples on his face and defendant at trial did not, this went to the weight of the evidence. Fells v. Commonwealth,, 2006 Va. App. LEXIS 162 (May 2, 2006).

Identification evidence supported defendant's conviction of possession of a firearm by a convicted felon, as the victims' identification of defendant was sufficient to prove defendant's identity as the shooter; one victim reliably identified defendant as the person with whom the victim argued on the night of the subject shooting and another victim testified unequivocally that the same person who argued with the first victim was the shooter. Cuffee v. Commonwealth, 61 Va. App. 353, 735 S.E.2d 693, 2013 Va. App. LEXIS 7 (2013).

Number of violations based on number of occasions weapons possessed. - The unit of prosecution for this offense is the number of occasions on which a defendant "possesses" one or more weapons; when the evidence establishes that a defendant exercised dominion and control over a firearm on two separate occasions, the defendant has committed two distinct violations of a single criminal proscription. Brown v. Commonwealth, No. 1438-00-1, 2001 Va. App. LEXIS 336 (Ct. of Appeals June 12, 2001).

Number of occasions appropriately delineates the unit of prosecution constituting one offense of "possession" under § 18.2-308.2 ; the word "occasion," as employed in the context, refers to a discrete unit of time, and not to an open-ended, perpetual, and ongoing period, and thus, the use of the term "occasion" to determine the statutory proscription of a convicted felon's possession of a firearm delineates a distinct unit of time, a specific unit of prosecution. Baker v. Commonwealth, 59 Va. App. 146, 717 S.E.2d 442, 2011 Va. App. LEXIS 373 (2011), aff'd, 284 Va. 572 , 733 S.E.2d 642, 2012 Va. LEXIS 188 (Va. 2012).

Trial court did not err in convicting defendant of three counts of possession of a firearm in violation of § 18.2-308.2 because defendant exercised dominion and control over a firearm on three separate occasions; accordingly, the evidence established that defendant committed three distinct violations of possession of a firearm in violation of § 18.2-308.2 . Baker v. Commonwealth, 59 Va. App. 146, 717 S.E.2d 442, 2011 Va. App. LEXIS 373 (2011), aff'd, 284 Va. 572 , 733 S.E.2d 642, 2012 Va. LEXIS 188 (Va. 2012).

Collateral estoppel. - Defendant was properly convicted of possession of a firearm by a felon under § 18.2-308.2 , even though a jury had acquitted defendant of five related felonies, as collateral estoppel did not apply since the charges were brought simultaneously, with the jury hearing five counts and the court hearing the possession count. Rice v. Commonwealth, 57 Va. App. 437, 703 S.E.2d 254, 2011 Va. App. LEXIS 2 (2011).

In a prosecution of defendant for possession of a firearm by a non-violent felon in violation of this section, defendant could not prevail in his collateral estoppel argument, because defendant failed to meet his burden to prove that the jury in the prior trial necessarily found he did not possess the firearm. Walker v. Commonwealth,, 2014 Va. App. LEXIS 121 (Apr. 1, 2014).

Miranda warning. - Where a defendant had carried gun which was fired at his home, it followed that he discarded it between his home and where he was stopped; the public threat justified invoking the public safety exception to Miranda requirements. Benton v. Commonwealth, 40 Va. App. 136, 578 S.E.2d 74, 2003 Va. App. LEXIS 150 (2003).

Possession of three firearms. - When defendant possessed three firearms, he committed a single offense under this section, not three. Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999).

Acquittal of defendant of murder charges and use of a firearm in the commission of murder based on a finding of self-defense did not require a finding that the trial court erroneously convicted defendant of the possession of a firearm by a convicted felon, as he possessed the firearm before becoming embroiled in the altercation which led to the shooting. Wilson v. Commonwealth, No. 0962-97-1 (Ct. of Appeals April 7, 1998).

Withdrawal of guilty plea. - Trial court, which denied defendant's motion to withdraw his guilty plea to possession of a firearm by a convicted felon, did not err by weighing the equities and considering the resulting prejudice to the Commonwealth due to the lengthy delay between defendant's entry of his guilty plea and his motion to withdraw that plea. Small v. Commonwealth, 292 Va. 292 , 788 S.E.2d 702, 2016 Va. LEXIS 104 (2016).

Unlawful search and seizure. - Trial court erred in not suppressing evidence of weapon and ammunition, discovered when defendant's automobile was unlawfully stopped by police, and a search warrant was obtained, as this evidence was the fruit of an unlawful stop and seizure. Mozelle v. Commonwealth, No. 1734-00-1, 2001 Va. App. LEXIS 521 (Ct. of Appeals Sept. 25, 2001).

Motion to suppress properly denied. - Trial court properly admitted evidence of gun because defendant was not initially seized when he pulled his car into a gas station of his own volition and not in response to an officer's lights as his decision to turn into the gas station was not in submission to the officer's authority, therefore when an officer saw defendant reach into his waistband, and refuse to show his hands when asked, it was reasonable for the officer to believe that defendant was reaching for a gun. Pannell v. Commonwealth,, 2008 Va. App. LEXIS 136 (Mar. 18, 2008).

In a case in which defendant had been convicted of violating §§ 18.2-250 , 18.2-308.2 , 18.2-308.4 , and subsection C of § 18.2-57 , he argued unsuccessfully that the Court of Appeals of Virginia erroneously upheld the circuit court's denial of his motion to suppress the evidence because his encounter with the police officers was not consensual, and the officers lacked any reasonable suspicion to believe that he was engaged in criminal activity. During the encounter, which lasted only two or three minutes, the police checked the "ban list" but did not engage in any show of force or use language indicating that defendant was required to remain at that location, the police did not tell him that he was required to stay, and defendant did not make any attempt to leave; instead, defendant remained in the area, standing about five feet away from the officers while his companion moved to sit on some nearby steps. Montague v. Commonwealth, 278 Va. 532 , 684 S.E.2d 583, 2009 Va. LEXIS 113 (2009), cert. denied, 130 S. Ct. 1537, 176 L. Ed. 2d 133, 2010 U.S. LEXIS 1456 (U.S. 2010).

Defense of necessity remains available. - Common-law defense of necessity remains available, upon an appropriate factual predicate, as a defense to a charge of possessing a firearm after having been convicted of a felony under § 18.2-308.2 . Alger v. Commonwealth, 40 Va. App. 89, 578 S.E.2d 51, 2003 Va. App. LEXIS 137 (2003).

Severance. - Trial court did not err in refusing to sever felon in possession of a firearm indictment from possession of cocaine and possession of firearm charges, as nothing in the record rebutted the presumption that the trial court considered only the evidence relevant to each offense when reaching its decision. Vanhook v. Commonwealth, 40 Va. App. 130, 578 S.E.2d 71, 2003 Va. App. LEXIS 149 (2003).

Trial court did not abuse its discretion when it declined to sever the charges of possession of a firearm by a felon from the charges of carrying a concealed weapon and felony brandishing of a firearm, because the brandishment charges, in violation of § 18.2-282 , required the Commonwealth to also show a prior felony conviction, and defendant was thus not prejudiced by the introduction of the prior convictions at trial. Ellis v. Commonwealth,, 2006 Va. App. LEXIS 235 (Apr. 18, 2006).

Motion for continuance. - Denial of defendant's motion for a continuance so that he could secure the testimony of his brother did not warrant reversal, as: (1) defendant could not show that the absence of the brother's proffered testimony could not have prejudiced defendant's defense because it addressed a subject on which he needed no defense; and (2) the Commonwealth never contested the assertion that the brother brought the handgun defendant was charged with possessing into defendant's apartment during defendant's last move, but instead focused on what happened to the handgun after the move. Spruill v. Commonwealth,, 2005 Va. App. LEXIS 476 (Nov. 29, 2005).

Harmless error. - In light of the substantial evidence that defendant possessed a firearm, and the minimal prejudice that could have arisen because the judge gave a cautionary instruction, the appellate court concluded that even if defendant's prior convictions had not been admitted, the verdict would have been the same. Therefore, assuming without deciding it was error to admit the prior convictions in place of defendant's stipulation to his status as a violent felon, any error in doing so was harmless. Barker v. Commonwealth, No. 0870-17-3, 2018 Va. App. LEXIS 287 (Oct. 23, 2018).

Instruction on necessity. - Trial court erred in refusing convicted felon's requested jury instruction as to necessity when he was tried for possession of a firearm that he used solely to defend himself and his girlfriend from assailants. Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546, 2001 Va. App. LEXIS 573 (2001).

Defendant was not entitled to a jury instruction on the defense of necessity due to his fear that an individual who shot him would attack him again, where he only had a generalized fear of such an attack, rather than evidence that a real and specific threat existed at the time he possessed the firearm. Byers v. Commonwealth, 37 Va. App. 174, 554 S.E.2d 714, 2001 Va. App. LEXIS 636 (2001).

Jury instruction on self-defense proper. - Trial court properly instructed the jury that defendant, a convicted felon, had to show that she reasonably feared "serious" bodily injury or death at the hands of the victim to have acted in self-defense in possessing a firearm. Walker v. Commonwealth, No. 1686-03-2, 2004 Va. App. LEXIS 282 (Ct. of Appeals June 15, 2004).

Trial court properly refused to give defendant's proffered instruction on self-defense in the face of an assault as defendant's son refused to leave her home, and although defendant obtained a rifle during the incident, she testified she did not point the gun at her son or "use" the gun in order to get her son out of her house; thus, the rifle was not necessary to repel the son from defendant's home. There was no evidence that the son threatened defendant with death or serious bodily harm, and defendant's response to obtain a deadly weapon exceeded the use of reasonable force to repel the assault. Walker v. Commonwealth, No. 1686-03-2, 2004 Va. App. LEXIS 282 (Ct. of Appeals June 15, 2004).

Reliance on advice of probation officer as affirmative defense. - Under the Interstate Compact Relating to Juveniles, where a juvenile's probation was transferred to North Carolina, a probation officer in that state became an adjunct officer of Virginia's probation system. Thus, defendant could assert, pursuant to Miller v. Commonwealth, his alleged reasonable reliance on such a probation officer's advice as an affirmative defense to a charge of possession of a firearm by a convicted felon. Palmer v. Commonwealth, 48 Va. App. 457, 632 S.E.2d 611, 2006 Va. App. LEXIS 344 (2006).

Mandatory two-year sentence. - Trial court properly instructed the jury to recommend a sentence no lower than the two-year mandatory minimum term required by § 18.2-308.2 for the defendant's conviction of possessing a firearm after having been convicted of a felony, and the trial court also did not err in imposing the two-year sentence recommended by the jury, as the trial court had no discretion to do otherwise. Mouberry v. Commonwealth, 39 Va. App. 576, 575 S.E.2d 567, 2003 Va. App. LEXIS 17 (2003).

Mandatory sentence of five years. - Jury was required to fix defendant's sentence for possession of a firearm by a convicted felon in violation of subsection A of § 18.2-308.2 to a mandatory sentence of five years of imprisonment as: (1) defendant possessed a handgun found in a pillowcase located at defendant's feet in a car in which defendant was a passenger; and (2) defendant had been previously convicted of possession of a firearm by a felon, which was classified as a violent felony under § 17.1-805 . Lee v. Commonwealth, No. 0713-07-1, 2008 Va. App. LEXIS 324 (July 15, 2008).

Sentence of 10 years, with 5 years suspended, for possession of a firearm after having been convicted of a violent felony and a sentence of 5 years, with 2 years suspended, for using a firearm in the commission of a felony exceeded the maximum sentence permitted by law for those offenses; the 5-year mandatory minimum for the first offense was the statutory maximum, and only a 3-year mandatory term of incarceration was permitted for a first offender as to the second offense. Byrd v. Commonwealth, No. 1426-12-3, 2014 Va. App. LEXIS 102 (Mar. 18, 2014).

Mandatory minimum sentence. - In a case in which defendant was convicted of possessing a firearm after having been convicted of a violent felony, the circuit court's imposition of a jury sentence below the mandatory minimum sentence of five years was void ab initio; because defendant had a prior conviction for robbery, the "violent felony" provision of subsection A of § 18.2-308.2 applied and the mandatory minimum as well as the maximum sentence for the offense was five years. Commonwealth v. Greer, 63 Va. App. 561, 760 S.E.2d 132, 2014 Va. App. LEXIS 263 (July 22, 2014), appeal dismissed, in part, decision reached on appeal by, 67 Va. App. 324, 796 S.E.2d 422, 2017 Va. App. LEXIS 40 (2017).

Sentence appropriate. - Defendant's sentence of five years in the penitentiary after he was convicted of possession of a firearm by a felon was proper because eliminating the five-year mandate would not have affected the total sentence. On defendant's motion to reconsider, the trial court indicated that eliminating the five-year mandate would not have affected the total sentence because it would have imposed the five-year sentence in the exercise of its discretion given defendant's serious and extensive criminal history. Marshall v. Commonwealth,, 2010 Va. App. LEXIS 68 (Feb. 23, 2010).

Consecutive sentence mandatory. - Language of the statute is clear and unambiguous: the mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence; this plain language clearly expresses the General Assembly's intention that a sentence under the statute must be served separately and apart from any other sentence imposed. Commonwealth v. Botkin, 68 Va. App. 177, 805 S.E.2d 412, 2017 Va. App. LEXIS 262 (2017), aff'd, remanded, 296 Va. 309 , 819 S.E.2d 652 (2018).

Court of appeals did not err in holding that multiple mandatory minimum terms of imprisonment, imposed for multiple convictions of possession of a firearm within 10 years of having been convicted of a felony under this statute, were required to be served consecutively because this statute did not limit its requirement that sentences run consecutively; and this statute's requirement that mandatory minimum sentences be served consecutively applied, without limitation, to "any other sentence" imposed. Botkin v. Commonwealth, 296 Va. 309 , 819 S.E.2d 652, 2018 Va. LEXIS 157 (2018).

Concurrent sentence inappropriate. - Trial court erred by diluting the mandatory sentence under this section, when it ran one year of the § 18.2-308.4 sentence concurrently with the sentence under this section. The plain language of this section showed that a sentence under that section had to be served separately and apart from any other sentence imposed. Commonwealth v. Newsome,, 2014 Va. App. LEXIS 291 (Aug. 26, 2014).

New sentencing hearing. - In a case in which defendant was convicted of two counts of possession of a firearm within 10 years of having been convicted of a felony, because the circuit court imposed sentences that were in violation of the prescribed statutory range when it ordered defendant's sentences be served concurrently instead of consecutively, the sentences were not such as the circuit court had the power to render, and were void ab initio; to avoid speculation as to how the circuit court would have sentenced defendant had it correctly interpreted this statute, defendant was entitled to a new sentencing hearing on both sentences upon remand. Botkin v. Commonwealth, 296 Va. 309 , 819 S.E.2d 652, 2018 Va. LEXIS 157 (2018).

Lesser included offenses. - Possession of a firearm by a convicted felon was not barred as a lesser included offense of brandishing a firearm and carrying a concealed weapon; Sections 18.2-308.2 , 18.2-308 , and 18.2-282 each require proof of an element that the others do not. Morris v. Commonwealth, 45 Va. App. 181, 609 S.E.2d 92, 2005 Va. App. LEXIS 79 (2005).

Although defendant's conviction for possession of a firearm after having been convicted of a violent felony in violation of subsection A of § 18.2-308.2 was reversed because the circuit court orders showing his prior convictions were not properly authenticated, defendant could be sentenced under § 19.2-285 for possession after committing a felony because he admitted to being a convicted felon. Waller v. Commonwealth, 278 Va. 731 , 685 S.E.2d 48, 2009 Va. LEXIS 100 (2009).

Applied in Allen v. Commonwealth, 3 Va. App. 657, 353 S.E.2d 162 (1987); United States v. Walters, 225 F. Supp. 2d 684, 2002 U.S. Dist. LEXIS 19028 (E.D. Va. 2002); United States v. Davis, 234 F. Supp. 2d 601, 2002 U.S. Dist. LEXIS 24781 (E.D. Va. 2002); Conkling v. Commonwealth, 45 Va. App. 518, 612 S.E.2d 235 (2005); Banks v. Commonwealth, 280 Va. 612 , 701 S.E.2d 437, 2010 Va. LEXIS 274 (2010); Epps v. Commonwealth, 59 Va. App. 71, 717 S.E.2d 151, 2011 Va. App. LEXIS 351 (2011); Booker v. Commonwealth, 61 Va. App. 323, 734 S.E.2d 729, 2012 Va. App. LEXIS 407 (2012); Adjei v. Commonwealth, 63 Va. App. 727, 763 S.E.2d 225, 2014 Va. App. LEXIS 318 (2014); Martin v. Commonwealth, 64 Va. App. 666, 770 S.E.2d 795, 2015 Va. App. LEXIS 144 (2015); Watts v. Commonwealth, No. 0117-16-2, 2016 Va. App. LEXIS 358 (Ct. of Appeals Dec. 20, 2016).

II. CONVICTED FELON STATUS.

"Convicted felon" status. - A defendant was not a convicted felon for purposes of this section where, at the time of the offense in question, the final order of conviction in the previous felony case had not yet been entered. Archer v. Commonwealth, No. 2550-99-2, 2000 Va. App. LEXIS 485 (Ct. of Appeals July 5, 2000).

Because of his prior conviction in the military for housebreaking the defendant was guilty of possession of a firearm by a convicted felon; however, the trial court improperly sentenced the defendant because the crime was not a violent felony. Turner v. Commonwealth, 38 Va. App. 851, 568 S.E.2d 468, 2002 Va. App. LEXIS 525 (2002).

Criminal docket entries were properly admissible as prima facie evidence of the public record of defendant's criminal convictions in Maryland and, as public records, the contents of the records fell under an exception to the hearsay rule, § 8.01-389 A1 and, a witness saw defendant with guns in his truck; thus, the evidence was sufficient to convict defendant of possession of a firearm after being convicted of a felony in violation of subsection A of § 18.2-308.2 . Broward v. Commonwealth, No. 0743-02-3, 2003 Va. App. LEXIS 370 (Ct. of Appeals July 1, 2003).

In a prosecution for possession of a firearm by a convicted felon, sufficient evidence was introduced to allow the trial court to infer that defendant had been convicted of a felony, despite the lack of an order imposing sentence for the prior felony, because the Commonwealth introduced an order of conviction of the prior felony, as well as the testimony of a probation officer that defendant was on probation at the time he possessed a firearm, and defendant testified that he had been convicted of a felony. Nichols v. Commonwealth,, 2007 Va. App. LEXIS 1 (Jan. 9, 2007).

Defendant's conviction pursuant to § 18.2-308.2 of possession of a firearm after having previously been convicted of a felony could not stand since it was not properly supported by evidence that defendant had a prior felony conviction. The Commonwealth's exhibit indicating that defendant had been convicted of attempted arson when defendant was a 14-year-old juvenile was not conclusive on the point about whether defendant had been convicted of a felony. McMillan v. Commonwealth, 277 Va. 11 , 671 S.E.2d 396, 2009 Va. LEXIS 18 (2009).

Plain language the General Assembly chose to utilize in subsection A makes clear that a convicted felon may not possess a firearm regardless of whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the United States or any territory thereof; the prohibition of subsection A of § 18.2-308.2 is not limited to felonies that would be punished by a felony sentence in Virginia. Cartagena v. Commonwealth, 68 Va. App. 202, 807 S.E.2d 223, 2017 Va. App. LEXIS 295 (Nov. 28, 2017).

Restoration of civil rights after serving time for predicate felony does not affect convicted felon status. - Defendant's conviction of possession of a firearm by a convicted felon was proper, as defendant's prior felony conviction from West Virginia constituted the requisite predicate felony; despite the fact that defendant served his time for the West Virginia crime and thereafter, his civil rights were restored in West Virginia, that restoration had no bearing on defendant's legal ability to possess a firearm in Virginia. Farnsworth v. Commonwealth, 43 Va. App. 490, 599 S.E.2d 482, 2004 Va. App. LEXIS 358 (2004), aff'd, 270 Va. 1 , 613 S.E.2d 459 (2005).

Exemptions limited to those in statute. - Section 18.2-308.2 expressly provides two specific methods by which a convicted felon may be exempted from the prohibition against possessing a firearm in Virginia, and accordingly, the Court of Appeals of Virginia holds that the legislature intended that § 18.2-308.2 B (iii) and C constitute the exclusive means by which a convicted felon may obtain the exemption; nothing in the section automatically exempts from its application a convicted felon whose civil rights have been restored by another state following the felon's completion of his sentence in that state. Farnsworth v. Commonwealth, 43 Va. App. 490, 599 S.E.2d 482, 2004 Va. App. LEXIS 358 (2004), aff'd, 270 Va. 1 , 613 S.E.2d 459 (2005).

Defendant's possession of a firearm in Virginia violated § 18.2-308.2 , even though the State of West Virginia restored his civil rights, because he failed to obtain relief as one who had his political disabilities removed or his civil rights restored by the Governor, pursuant to Va. Const., Art. V, § 12 and § 18.2-308.2 , the only exemptions under Virginia laws. Farnsworth v. Commonwealth, 270 Va. 1 , 613 S.E.2d 459, 2005 Va. LEXIS 63 (2005), cert. denied, 126 S. Ct. 1628, 164 L. Ed. 2d 342, 2006 U.S. LEXIS 2589 (2006).

Prior juvenile adjudication. - The mandatory sentencing provision of § 18.2-308.2 is implicated by a prior juvenile adjudication. Carter v. Commonwealth, 38 Va. App. 116, 562 S.E.2d 331, 2002 Va. App. LEXIS 230 (2002).

Evidence was sufficient to convict defendant of possessing a firearm after having been convicted of a felony, in violation of § 18.2-308.2 where defendant was not charged under a specific subsection of § 18.2-308.2 , and was given fair notice of the charges against him; defendant conceded that he was in possession of a weapon and the Commonwealth presented evidence that defendant was under 29 when the present offense was committed, and that defendant was 14 or older when adjudicated guilty of unlawful wounding, an offense that would have been a felony if committed by an adult. Jones v. Commonwealth, No. 1077-02-2, 2003 Va. App. LEXIS 189 (Ct. of Appeals Apr. 1, 2003).

Defendant's sentence to a mandatory five-year term under § 18.2-308.2 for possession of a firearm by a convicted felon, was affirmed as he had been convicted of possessing a firearm after conviction of a felony in violation of § 18.2-308.2 when he was 14, which would have been classified as a violent felony under subsections B and C of § 17.1-805 , if he had been tried as an adult; defendant's argument that his juvenile conviction could not serve as the necessary predicate act for § 18.2-308.2 because he was not convicted under an indictment was rejected, and § 19.2-217 , relied upon by defendant, was inapplicable. Parks v. Commonwealth, No. 2780-02-1, 2003 Va. App. LEXIS 385 (Ct. of Appeals July 8, 2003).

Convictions for possession of a firearm when under the age of 29 and after having been convicted of a delinquent act as a juvenile that would have been a felony if committed by an adult were reversed because the juvenile court's records did not establish the fact and nature of the adjudication and thus, the Commonwealth failed to prove that defendant had been convicted as a juvenile of a delinquent act that was felonious in nature. Palmer v. Commonwealth, 269 Va. 203 , 609 S.E.2d 308, 2005 Va. LEXIS 25 (2005).

Trial court erred in convicting defendant on a charge of possession of a firearm by a convicted felon, because the Commonwealth failed to show that defendant had a prior felony conviction, as notes from a juvenile proceeding against defendant were ambiguous as to whether defendant was convicted of felony burglary. Overbey v. Commonwealth, 271 Va. 231 , 623 S.E.2d 904, 2006 Va. LEXIS 10 (2006).

Trial court's judgment of conviction finding defendant guilty of possessing a firearm while under the age of 29, after having been convicted of a delinquent act that would have been a felony if committed by an adult, had to be reversed, as the juvenile court order that the trial court relied on did not make clear to which offense, or both, it was referring to when it stated "found guilty" in regard to charges against him when he was 15-years-old of grand larceny and petit larceny; accordingly, the juvenile court's judgment order was not sufficiently clear, as required by § 19.2-307 , and the Commonwealth could not definitively show that defendant had been adjudicated guilty of a delinquent act that would have been a felony had he been an adult. Johnson v. Commonwealth,, 2006 Va. App. LEXIS 91 (Mar. 14, 2006).

There was no merit to appellant's argument that the mandatory punishment provision of § 18.2-308.2 did not apply to adjudications of delinquency; the complete reference to the charge in appellant's disposition order and the disposition notice, when read together, were sufficient to prove that appellant's prior adjudication was a felony. Ghee v. Commonwealth,, 2006 Va. App. LEXIS 477 (Oct. 24, 2006).

Evidence was sufficient to convict defendant of possession of a firearm after having been convicted of a felony, as an undated juvenile adjudication order stating that a "child" was found guilty of breaking and entering and larceny and was committed to the Virginia Department of Juvenile Justice (DJJ) was adequate proof that defendant, while a juvenile, committed two acts that would have been felonies if committed by an adult. Under § 16.1-228, "child" meant a person less than 18 years of age; and under § 16.1-278.7, only a juvenile 11 years or older could be committed to DJJ. Perez v. Commonwealth, 274 Va. 724 , 652 S.E.2d 95, 2007 Va. LEXIS 129 (2007).

Evidence was sufficient to convict defendant of violating § 18.2-308.2 by possessing a firearm after having been adjudicated delinquent as a juvenile of an act that would have been a felony if committed by an adult, as a certified record of a juvenile probation order stated that the juvenile had been found to be delinquent of carrying a pistol into a public school in violation of § 18.2-308.1 , a Class 6 felony. Under § 8.01-389 , that certified order was prima facie proof of the facts stated therein. Wilder v. Commonwealth,, 2008 Va. App. LEXIS 350 (July 8, 2008).

As a judge's notes clearly complied with the substance of § 19.2-307 in that they listed defendant's guilty plea, the judge's finding of guilt, the sentence, and conditional suspension of the sentence, and it was immaterial that the judge did not list whether the case was tried by a judge or jury, as all cases of that type in juvenile and domestic relations district court were tried by a judge, there was sufficient evidence to establish defendant's prior delinquency for purposes of § 18.2-308.2 . Sanders v. Commonwealth,, 2008 Va. App. LEXIS 320 (July 15, 2008).

In light of the presumption of regularity, the absence of a mark on a prior juvenile adjudication indicating that a Boykin-type colloquy had been given, especially when there was no requirement in § 19.2-307 that the information be on the adjudication, defendant was properly convicted of violating § 18.2-308.2 . Isaac v. Commonwealth,, 2010 Va. App. LEXIS 423 (Nov. 2, 2010).

As appellant juvenile did not dispute that he was previously convicted of the non-violent felony of grand larceny, in violation of § 18.2-95 , the evidence was sufficient to support his conviction for possession of a firearm after having been adjudicated delinquent, as a juvenile 14 years of age or older, of an act that would have been a non-violent felony if committed by an adult, in violation of § 18.2-308.2 . Preston v. Commonwealth, 281 Va. 52 , 704 S.E.2d 127, 2011 Va. LEXIS 23 (2011).

As the Commonwealth failed to prove that appellant juvenile was previously adjudicated delinquent of an act that would have been a violent felony under subsection C of § 17.1-805 if committed by an adult, his conviction for possession of a firearm, in violation of clause (iii) of subsection A of § 18.2-308.2 , could not stand; the Commonwealth's attempt to prove a prior breaking and entering conviction, in violation of § 18.2-91 , was insufficient where the nature of the delinquent act for which the juvenile was adjudicated was unclear by the document in support of that conviction. Preston v. Commonwealth, 281 Va. 52 , 704 S.E.2d 127, 2011 Va. LEXIS 23 (2011).

This section's mandatory minimum sentence applied to defendant, due to prior delinquency adjudications, because (1) the statute applied to all juveniles "found guilty" of a delinquent act deemed felonious, and (2) "any person" in the statute's punishment provision included any violator. Prekker v. Commonwealth, 66 Va. App. 103, 782 S.E.2d 604, 2016 Va. App. LEXIS 71 (Mar. 8, 2016).

Validity of juvenile felony convictions. - In a case in which defendant appealed his conviction for possession of a firearm while under the age of 29 after being adjudged delinquent of a violent felony when he was 14 years of age or older, defendant's juvenile felony convictions were valid because defendant was represented at the time of his juvenile adjudication. Accordingly, the trial court did not abuse its discretion in admitting the juvenile court conviction order into evidence. Jay Hoon Kim v. Commonwealth,, 2017 Va. App. LEXIS 247 (Oct. 3, 2017).

Evidence of adjudication of delinquency. - Adjudication order was relevant of an adjudication of delinquency under § 18.2-308.2 (A)(iii) since the order described an adjudicatory hearing based on a subsection A of § 18.2-308.2 charge and stated that defendant pled guilty and that the juvenile court accepted the plea; the order tended to prove that defendant had been previously adjudicated delinquent. Perry v. Commonwealth, 61 Va. App. 502, 737 S.E.2d 922, 2013 Va. App. LEXIS 66 (2013).

Sufficient evidence of a prior adjudication of delinquency supported defendant's conviction of possession of a firearm after having been adjudicated delinquent of an act which would be a felony if committed by an adult under § 18.2-308.2 where; (1) an adjudication order was admitted that described an adjudicatory hearing based on a § 18.2-308.2 A felony charge and stated that defendant pled guilty and that the juvenile court accepted the plea; (2) the adjudication order tended to prove that defendant had been previously adjudicated delinquent; and (3) although the disposition order was not admitted, there was no evidence that defendant's conviction changed after the adjudication hearing, and the juvenile court could not have dismissed the prior charge under subdivision A 5 of § 16.1-278.8 because an adjudication of guilt had been made. Perry v. Commonwealth, 61 Va. App. 502, 737 S.E.2d 922, 2013 Va. App. LEXIS 66 (2013).

Not arresting or charging felons not basis for due process claim. - Mother alleged that the city police department maintained and enforced a policy of not arresting or charging felons found in possession of a firearm, but instead, referred such cases to federal authorities for prosecution and that, pursuant to this policy, the officers did not arrest or charge an individual with being a felon in possession of a firearm; thus, from the date that one officer observed the individual in possession of a firearm through the date that the decedent was shot and killed, defendants did not arrest or charge the individual. While the mother alleged that defendants created the danger by affirmatively deciding not to arrest the individual, it was clear that defendants took no affirmative action and such an "omission claim" failed as a matter of law. Mills v. City of Roanoke, 518 F. Supp. 2d 815, 2007 U.S. Dist. LEXIS 76082 (W.D. Va. 2007).

Prosecution allowed to introduce specific nature of prior felony. - Allowing the Commonwealth to introduce the specific nature of defendant's prior felony conviction was not in contravention of the long established principle that evidence of specific prior criminal acts should be excluded because of its prejudicial effect on the defendant, since the Commonwealth is entitled to prove the elements set forth in the indictment, and proof of the handgun charge under subsection A required proof of the previous conviction for robbery. The evidence was, therefore, offered and admitted for a legitimate purpose and not for the prohibited purpose of showing a predisposition on the part of the accused to commit crime. If the result were otherwise, the Commonwealth would be precluded from introducing sufficient evidence against any defendant to obtain a conviction under subsection A. Glover v. Commonwealth, 3 Va. App. 152, 348 S.E.2d 434 (1986), aff'd sub nom. Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Proper instruction on prior felony. - Despite the fact that the indictment was unclear about which of defendant's two prior convictions was being used to show his status as a convicted felon, defendant failed to present his claim that the evidence varied to the trial court and also failed to file a bill of particulars; the Commonwealth limited its proof of defendant's status as a felon to his prior conviction for unlawful wounding and the trial court, therefore, properly instructed the jury accordingly. Miles v. Commonwealth, No. 0074-01-2, 2002 Va. App. LEXIS 251 (Ct. of Appeals Apr. 30, 2002).

Introduction of a stipulation of conviction of prior violent felony was not unduly prejudicial because (1) the Commonwealth was prohibited from introducing evidence of his actual prior conviction, second-degree murder, and (2) where there are concerns that evidence may be unfairly prejudicial, a limiting or clarifying instruction is the appropriate remedy, and in this case, when the stipulation was read to the jury, the court instructed the jury that "the Commonwealth has offered this stipulation into evidence for the sole purpose of proving that appellant was convicted of the prior offense. You should not use this fact for any other purpose in your deliberations." Jones v. Commonwealth, No. 1359-18-4, 2020 Va. App. LEXIS 12 (Jan. 14, 2020).

Due process defense. - Trial court erroneously concluded that defendant's probation officer was not a source legally sufficient to invoke the Due Process Clause as a bar to his prosecution and conviction. Based on the totality of the circumstances, defendant's reliance on the advice of his probation officer was reasonable and in good faith. Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997).

Bureau of Alcohol, Tobacco and Firearms (ATF) and Virginia Department of Game and Inland Fisheries (VDGIF) agents were not legally sufficient to invoke the due process defense. Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997).

Defendant's due process defense to his conviction was properly rejected as defendant failed to show that his parole officer ever affirmatively assured him that he could possess a firearm before he was 29 years old or that he sought such affirmative assurance; rather, the parole officer only told defendant that he could not lawfully possess a firearm while on parole, which fell far short of constituting an affirmative assurance that defendant could possess a firearm before he reached age 29. Bowen v. Commonwealth,, 2006 Va. App. LEXIS 119 (Mar. 28, 2006).

Commonwealth not required to prove defendant knowingly or intentionally violated statute for conviction. - Trial court did not err in finding the evidence to support defendant's conviction for possession of a firearm after having been convicted of a felony despite the Commonwealth's failure to establish that defendant intended to violate § 18.2-308.2 since § 18.2-308.2 contained no scienter or mens rea element for a conviction; thus, whether defendant was confused about his status as a convicted felony, whether he intended to mislead the gun dealer, or whether he intended to knowingly violate the statute was of no moment. Branch v. Commonwealth, 42 Va. App. 665, 593 S.E.2d 835, 2004 Va. App. LEXIS 114 (2004).

Forgetfulness no defense. - One may not lose possession or dispossess oneself of property by mere forgetfulness. Therefore, defendant's argument on appeal that he later lost awareness of the presence of the gun which had gathered dust on top of friend's kitchen cabinet and was not discovered by police until two years after its placement there was to no avail. Bond v. Commonwealth, No. 2476-95-1 (Ct. of Appeals Dec. 31, 1996).

A defendant cannot dictate which felony conviction the Commonwealth may offer into evidence to prove his felon status; although it is true that the Commonwealth could have proven the prior felony conviction element of the indictment by tendering a copy of defendant's prior burglary conviction order instead of the murder charge, an accused cannot, without stipulation of guilt, require the Commonwealth to pick and choose among its proofs, and to elect which to present and which to forego. Essex v. Commonwealth, 18 Va. App. 168, 442 S.E.2d 707 (1994).

Defendant guilty where prior conviction was involuntary manslaughter. - Trial court properly found defendant guilty of possession of a handgun after having been previously convicted of a felony involving the use of a firearm, where it was stipulated that the prior conviction was for involuntary manslaughter which was a reduction of a charge of murder and was based on defendant's having killed another person with a shotgun. Lindsey v. Commonwealth, No. 0137-89-2 (Ct. of Appeals Oct. 9, 1990).

An authenticated court order which proves that an accused has been convicted of a specific felony is relevant and admissible to prove an essential element of a violation of this section. Essex v. Commonwealth, 18 Va. App. 168, 442 S.E.2d 707 (1994).

Failure to authenticate prior convictions. - Defendant's conviction for possession of a firearm after having been convicted of a violent felony in violation of subsection A of § 18.2-308.2 was reversed because the circuit court orders showing his prior convictions were not authenticated by a judge's signature as required by subsection A of § 17.1-123 . Waller v. Commonwealth, 278 Va. 731 , 685 S.E.2d 48, 2009 Va. LEXIS 100 (2009).

Certified transfer order from city. - Trial court properly admitted a prior certified transfer order from a city indicating that the defendant had been convicted for burglary and a sentencing order describing the sentenced imposed for a burglary conviction because the city court's attestation proclaimed that each document was a true copy of a record in the court and the documents certified were part of that court's record. In addition, the court had sufficient evidence to conclude that defendant was a convicted felon and that he possessed contraband because the transfer order recited that the defendant had been found guilty of violating § 18.2-89 . Wilson v. Commonwealth, No. 1229-03-1, 2005 Va. App. LEXIS 26 (Ct. of Appeals Jan. 18, 2005).

Evidence of prior conviction admissible despite defendant's stipulation thereto. - Evidence of defendant's prior conviction for robbery was properly received for the purpose of showing a prior conviction, although defendant stipulated that he had a prior conviction of a type which satisfied subsection A, since the Commonwealth is not obliged to enter into an agreement whereby it is precluded from putting on its evidence simply because the defendant is willing to make a qualified stipulation. Glover v. Commonwealth, 3 Va. App. 152, 348 S.E.2d 434 (1986), aff'd sub nom. Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Trial court did not err in allowing the Commonwealth to introduce defendant's prior conviction order when defendant offered to stipulate that he previously had been convicted of a violent felony because defendant could not argue prejudice on appeal; the trial court would have instructed the jury exactly what defendant agreed to stipulate, that he had been convicted of a prior offense, but defendant never requested such an instruction, nor did he move for a mistrial. Clinton v. Commonwealth, No. 0184-16-1, 2017 Va. App. LEXIS 105 (Apr. 18, 2017).

Felon's claims that disability had been removed were unavailing. - In prosecution of felon for possession of a firearm where felon did not proceed under this section or the federal statute to remove his disability against possession of firearms, his claims that the disability had been removed by the Virginia Parole Board, the purchase of a hunting license, or statements by a Virginia state court judge were unavailing. United States v. Etheridge, 932 F.2d 318 (4th Cir.), cert. denied, 502 U.S. 917, 112 S. Ct. 323, 116 L. Ed. 2d 264 (1991).

Insufficient evidence of defendant's age at time of predicate. - Defendant's conviction of possession of a firearm by a convicted felon, in violation of § 18.2-308.2 , was reversed where the Commonwealth failed to prove that defendant was at least 14 years old at the time of defendant's predicate juvenile adjudication for grand larceny, as was required by subdivision A (ii) of § 18.2-308.2 ; evidence of defendant's age at the time of the prior adjudication as opposed to the date of the prior offense itself was insufficient. Green v. Commonwealth, No. 2945-01-1, 2002 Va. App. LEXIS 667 (Ct. of Appeals Nov. 5, 2002).

Evidence of prior felony. - Defendant's conviction of knowingly and intentionally possessing a firearm after previously having been convicted of a felony, § 18.2-308.2 , was affirmed; any error by the trial court in admitting an exhibit showing prior felony convictions was harmless. Murrow v. Commonwealth, No. 2659-02-2, 2004 Va. App. LEXIS 23 (Ct. of Appeals Jan. 20, 2004).

Sufficient evidence was introduced to support a finding that defendant had a felony conviction entered prior to his felony convictions in the present case, and, thus, that he could properly be convicted of a statutory violation that involved having a gun while he was a felon; the evidence showed that defendant, when he was 15-years-old, was charged with and convicted of offenses as a juvenile that if committed by an adult would be a felony and, thus, that such conduct occurred before his conduct in the present case. Perez v. Commonwealth,, 2006 Va. App. LEXIS 436 (Oct. 3, 2006).

Evidence was sufficient to establish that defendant possessed a firearm, and since defendant did not dispute that he was previously convicted of a violent felony, the supreme court further held that the jury verdict convicting defendant of possession of a firearm by a convicted felon under subsection A of § 18.2-308.2 was not plainly wrong. When police arrived at defendant's residence, defendant was alone in the bedroom in which the firearm was found, and the bedroom contained defendant's clothes and personal effects. Rawls v. Commonwealth, 272 Va. 334 , 634 S.E.2d 697, 2006 Va. LEXIS 77 (2006).

In a prosecution for possession of a firearm by a convicted felon, in violation of § 18.2-308.2 , because an printout from the National Crime Information Network was properly admitted as a business record, and the officer testifying about the same provided sufficient foundation for its admission over a hearsay objection, when such evidence was combined with two other exhibits, regarding a New Jersey conviction and an accusation, respectively, said conviction was upheld on appeal; further, trial counsel's relevancy argument as to the latter two was rejected, as such went more to the weight of the evidence rather than to its admissibility. Guerara-Sandoval v. Commonwealth,, 2007 Va. App. LEXIS 296 (Aug. 7, 2007).

Defendant's conviction of assault with intent to maim under former Md. Ann. Code art. 27, § 386 substantially conformed to § 18.2-51 and could be used under subsection B of § 19.2-297.1 to establish a violent felony under § 17.1-805 to support defendant's conviction of possession of a firearm after being convicted of a violent felony under subsection A of § 18.2-308.2 as defendant was specifically convicted of an intent to maim, which was proscribed by § 18.2-51 . Dillsworth v. Commonwealth, 62 Va. App. 93, 741 S.E.2d 818, 2013 Va. App. LEXIS 148 (2013).

Trial court did not err in imposing a mandatory minimum two-year sentence after defendant was convicted of possessing a firearm after having been convicted of a felony because the date of the prior felony conviction was not an element of the offense, but was simply a sentencing factor, the statute contained only one grade of felony, and the indictment correctly informed defendant that he was charged with a Class 6 felony. Butler v. Commonwealth, 64 Va. App. 7, 763 S.E.2d 829, 2014 Va. App. LEXIS 354 (Oct. 28, 2014).

Evidence was sufficient to support defendant's conviction for possession of a firearm by a felon because a rational trier of fact could have found he was a convicted felon; the certificate of disposition stated that defendant pleaded guilty to attempted criminal possession of a weapon in New York, and when looking at the certificate with New York law, a fact-finder could conclude that because he was charged with attempting a class D felony, the certificate meant he was convicted of an E-felony. Girard v. Commonwealth, 66 Va. App. 230, 783 S.E.2d 561 (2016).

Evidence was sufficient to support defendant's convictions for attempted possession of a firearm and possession of a firearm because it established that defendant had been convicted of a felony under the laws of the State of New York; regarding the existence of a felony conviction, the express terms of the statute required nothing more. Cartagena v. Commonwealth, 68 Va. App. 202, 807 S.E.2d 223, 2017 Va. App. LEXIS 295 (Nov. 28, 2017).

Commonwealth entitled to offer whatever evidence was available. - Circuit court did not abuse its discretion in admitting five conviction orders during defendant's trial for knowingly and intentionally possessing or transporting a firearm after having previously been convicted of a violent felony in violation of subsection A of § 18.2-308.2 because the Commonwealth was not limited to adducing evidence of only one prior conviction for a violent felony. Boone v. Commonwealth, 285 Va. 597 , 740 S.E.2d 11, 2013 Va. LEXIS 47 (2013).

Subsection A of § 18.2-308.2 does not provide a rule of evidence constraining the Commonwealth's prerogative to prove the elements of their respective offenses with its choice of the available evidence because the phrase "previously convicted of a violent felony" in subsection A merely sets forth an additional element the Commonwealth is required to prove beyond a reasonable doubt to obtain an enhanced sentence; accordingly, while the article "a" in subsection A does reflect legislative intent that proof of only one violent felony is necessary to obtain the enhanced sentence, that article does not limit the evidence the Commonwealth may adduce to prove it. Boone v. Commonwealth, 285 Va. 597 , 740 S.E.2d 11, 2013 Va. LEXIS 47 (2013).

Because subsection A of § 18.2-308.2 establishes the elements of the offense rather than a rule of evidence by which the elements may be proven, the statute does not limit the Commonwealth's prerogative to meet its burden of proof using whatever available evidence it chooses. Boone v. Commonwealth, 285 Va. 597 , 740 S.E.2d 11, 2013 Va. LEXIS 47 (2013).

Subsequent prosecution not barred. - In the instant case, the trial court dismissed the indictment under § 18.2-308.2:2 , because the criminal history consent form did not comply with statutory requirements. Thus, the dismissal was not an acquittal for double jeopardy purposes, and double jeopardy did not bar prosecution of the defendant under this section. Dodson v. Commonwealth, 23 Va. App. 286, 476 S.E.2d 512 (1996).

Conviction not based on same evidence as earlier conviction of carrying a concealed weapon. - Defendant's conviction of possession of a firearm by a felon was affirmed; the possession by a felon conviction was based on different evidence than the conviction for carrying a concealed weapon under § 18.2-308 , which was based on the same incident, and therefore § 19.2-294 did not bar the possession by a felon conviction. Jefferson v. Commonwealth, 43 Va. App. 361, 597 S.E.2d 290, 2004 Va. App. LEXIS 277 (2004), overruled by Evans v. Commonwealth, 850 S.E.2d 669, 2020 Va. LEXIS 140 (2020).

III. WEAPONS.

What constitutes deadly weapon. - Defendant's knife was a weapon "of like kind" to a dirk and was therefore a deadly weapon, where it was a butterfly knife which, when opened, most closely resembled a dirk, and it was described by arresting officer as a "fighting knife." Kingrey v. Commonwealth, No. 2202-97-2 (Ct. of Appeals July 13, 1999).

Defendant's knife, which was described by the arresting officer as a steak knife, was not a weapon "of like kind" to a dirk despite the prosecutor's allegation that it satisfied the definition because it had a sharp end at the bottom edge and an extreme point that would certainly cut straight through flesh if propelled with any type of force. Goodwin v. Commonwealth,, 2005 Va. App. LEXIS 265 (July 12, 2005).

Conviction under § 18.2-308 .2 for possessing a concealed weapon after having been convicted of a felony was proper because a knife found on defendant's person had similar characteristics to a bowie knife, such as a single sharp edge, a dull flat edge, and point, to constitute a "weapon of like kind" under subsection A of § 18.2-308 . Gilliam v. Commonwealth, 49 Va. App. 508, 642 S.E.2d 774, 2007 Va. App. LEXIS 143 (2007).

Evidence was sufficient to convict defendant of possession of a concealed weapon by a convicted felon, in violation of § 18.2-308.2 , where defendant admitted that he possessed a razor and any razor was explicitly included as a weapon in subsection A of § 18.2-308 . The manner in which defendant used the razor was irrelevant to the analysis. Uzzle v. Commonwealth,, 2010 Va. App. LEXIS 239 (2010).

Section 18.2-95 , like this section, deals with the dangerous nature of the firearm and not the criminal conduct that produces fear of physical harm to an individual victim; by definition, larceny does not require any force, threat or intimidation to a victim, and there there is no logical reason why the definition of firearm under this section should not also apply to a prosecution under § 18.2-95 . Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

Kitchen knife did not constitute a "weapon of like kind." - Although the kitchen knife possessed by defendant was a potentially dangerous object, it was not a "weapon," because it was not designed for fighting purposes nor was it commonly understood to be a "weapon"; therefore, defendant's conviction for possession of a concealed weapon by a felon under § 18.2-308 was vacated. Farrakhan v. Commonwealth, 273 Va. 177 , 639 S.E.2d 227, 2007 Va. LEXIS 10 (2007).

Because there was no evidence that defendant's kitchen steak knife was designed for fighting purposes, nor was it commonly understood to be a weapon, it was not a weapon as defined in subsection A of § 18.2-308 ; because it was not a weapon, the court did not need to consider whether it was a weapon of like kind. Defendant's conviction for being a convicted felon in possession of a weapon under subsection A of § 18.2-308 .2 was reversed. Green v. Commonwealth,, 2009 Va. App. LEXIS 573 (Dec. 22, 2009).

Jury instruction failed to require determination as to whether pneumatic gun was a weapon of like kind. - Defendant was barred from challenging the sufficiency of the evidence to support his carrying a concealed weapon as a convicted felon, arguing that the pneumatic gun that he used did not fall within the weapons of like kind classification under this section, as defendant admitted that the gun was a weapon while arguing a motion to strike, and defendant agreed to a jury instruction that did not require the jury to determine whether the unique characteristics of the pneumatic gun placed it within the weapon of like kind catch-all; to the extent that the agreed instruction misstated the law by failing to qualify the use of the term weapon, defendant could not challenge it. Aylor v. Commonwealth, No. 3366-02-2, 2004 Va. App. LEXIS 183 (Ct. of Appeals Mar. 2, 2004).

"Butterfly knife" a prohibited weapon. - A "butterfly knife," consisting of a single blade with a two-part hinged handle which folded to enclose the blade and which could be flipped open to create a straight-bladed knife, sharpened on one side, approximately nine inches long with a blade four inches long and a sharp point, was a weapon of like kind to a dirk under § 18.2-308 A and a convicted felon's possession of such a knife was, therefore, a violation of this section. Delcid v. Commonwealth, 32 Va. App. 14, 526 S.E.2d 273 (2000).

"Butterfly knife" was not "weapon of like kind." - Defendant was improperly convicted of violating subsection A of § 18.2-308 .2 by carrying a weapon concealed about his person, after having been convicted of a felony, because the evidence was insufficient to establish that his "butterfly knife" was a "weapon of like kind" to a dirk or any other weapon enumerated in subsection A of § 18.2-308 . Thompson v. Commonwealth, 277 Va. 280 , 673 S.E.2d 469, 2009 Va. LEXIS 35 (2009).

Scuba knife not weapon of like kind. - Possession of a scuba knife could not support a conviction under § 18.2-308.2 , because the scuba knife was a safety device and a tool, and was not designed for fighting purposes or commonly understood to be a weapon. McMillan v. Commonwealth, No. 2074-07-2,, 2009 Va. App. LEXIS 118 (Ct. of Appeals Mar. 17, 2009).

Defendant's conviction for possession of a concealed weapon by a convicted felon in violation of subsection A of § 18.2-308.2 was vacated because the evidence did not establish that the knife defendant possessed was one of the items enumerated in subsection A of § 18.2-308 or that it was a weapon of like kind to one enumerated, and the record was devoid of any facts on which one could find that the knife was either designed for fighting purposes or commonly understood to be a weapon. McMillan v. Commonwealth, 55 Va. App. 392, 686 S.E.2d 525, 2009 Va. App. LEXIS 571 (2009).

"Firearm" defined. - Statute prohibiting a felon from being in possession of a firearm did not indicate that the legislature meant to limit the term "firearm" to only presently-operable instruments; rather, the Commonwealth only had to prove that the instrument was designed, made, and intended to expel a projectile by an explosion, and where the Commonwealth proved that the rifle that defendant, a convicted felon, possessed had those characteristics, it proved defendant possessed a "firearm" as contemplated by the statute. Armstrong v. Commonwealth, 263 Va. 573 , 562 S.E.2d 139, 2002 Va. LEXIS 67 (2002).

Trial court properly convicted defendant of being a felon in the possession of a firearm when witnesses had testified that defendant had used a plastic flare launcher in a threatening manner, which was precisely the type of behavior the statute was designed to prevent. Quesenberry v. Commonwealth, 41 Va. App. 126, 583 S.E.2d 55, 2003 Va. App. LEXIS 395 (2003).

Because a certificate of analysis excluding the item tested from the statutory definition of "firearm" under subsection A of § 18.2-308.2 was issued after defendant's conviction became final, defendant's petition for a writ of actual innocence under § 19.2-327.10 et seq., was granted, and the conviction was ordered expunged pursuant to § 19.2-327.13 . Copeland v. Commonwealth, 52 Va. App. 529, 664 S.E.2d 528, 2008 Va. App. LEXIS 381 (2008).

Neither a commemorative replica of a handgun, which does not include a firing pin or other mechanical device necessary to fire a projectile by explosion, nor a BB gun, which fires BBs by the force of a spring, would be sufficient to convict a person under § 18.2-308.2 for possession of a firearm by a convicted felon because they are not designed, made, and intended to fire or expel a projectile by means of an explosion. Startin v. Commonwealth, 281 Va. 374 , 706 S.E.2d 873, 2011 Va. LEXIS 57 (2011).

There was ample evidence in the record to support the circuit court's finding that defendant's rifle was in fact a real firearm within the meaning of this section. Defendant's concealment of the rifle in a blanket was an indication that the weapon was real, as there would have been no need to conceal a BB gun, which defendant could lawfully possess. Hampton v. Commonwealth,, 2015 Va. App. LEXIS 335 (Nov. 17, 2015).

Evidence was sufficient to allow the factfinder to conclude that defendant possessed a firearm after previously having been convicted of a felony. The victim testified that defendant put a gun in her face, defendant and his cohort used the threat of a gun to gain access to an apartment and to commit their crimes, and the use of the gun to control the victim's movements and actions constituted an implied assertion that the object was, in fact, a firearm. Lynch v. Commonwealth, No. 0753-15-1, 2016 Va. App. LEXIS 155 (Ct. of Appeals May 10, 2016).

The term "firearm" as used in this section is used in its traditional sense. The statute does not seek to protect the public from fear of harm caused by the display of weapons; rather, it is concerned with preventing a person, who is known to have committed a serious crime in the past, from becoming dangerously armed, regardless of whether that person uses, displays, or conceals the firearm. Accordingly, this section does not include a BB handgun, which is a device that propels a projectile by pneumatic pressure. Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), overruled in part, Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641 (2001).

Flare gun is firearm. - Defendant's conviction of possessing a firearm after having been convicted of a felony was supported by sufficient evidence, because the flare gun found in defendant's possession satisfied the statutory definition of a firearm. Morris v. Commonwealth, 269 Va. 127 , 607 S.E.2d 110, 2005 Va. LEXIS 3 (2005).

Exception limited to stun weapons and tasers. - The 2001 amendments to subsection A of § 18.2-308.2 expanded the class of weapons that a felon could not possess to include stun weapons and tasers within its proscription, and the amendment created an exception to the general prohibition of possession of a stun weapon or taser as defined in § 18.2-308.1 by allowing possession of those weapons in the home; clearly the legislative intent was that the exception apply only to stun weapons and tasers, firearms that are limited in their ability to injure. Alger v. Commonwealth, 40 Va. App. 89, 578 S.E.2d 51, 2003 Va. App. LEXIS 137 (2003) (decided under § 18.2-308.2 as it read prior to later amendments).

Trial court did not err in convicting defendant on a charge of possession of a firearm after having been previously convicted of a felony, as defendant's contention that the relevant statute contained an exception allowing for his possession of a firearm at his residence had to be rejected since the exception applied only to stun weapons and tasers possessed at one's residence, and an absurd result would occur if it were read to also include firearms. Hundley v. Commonwealth, No. 1184-02-03, 2003 Va. App. LEXIS 530 (Ct. of Appeals Oct. 21, 2003).

Phrase "stun weapon or taser as defined in § 18.2-308.1 " was the last antecedent before the "except clause," and as such, "stun weapon or taser" was the referential and qualifying phrase; thus, according to the last antecedent rule of construction, the "except" clause in former § 18.2-308.2 modified only "stun weapon or taser" and not "firearm," and did not permit defendant, as a convicted felon, to possess a firearm within her home, the curtilage thereof, or anywhere else. Alger v. Commonwealth, 267 Va. 255 , 590 S.E.2d 563, 2004 Va. LEXIS 21 (2004) (decided under § 18.2-308.2 as it read prior to later amendments).

It is impossible to decipher whether the word "any" is intended to include the possession of a firearm or ammunition as a singular activity or as a "plural activity." Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999).

Firearm that could be readily or easily restored to operability. - A defendant who had previously been convicted of a felony was properly convicted of violating this section notwithstanding the fact that the firearm in question was not presently operable where the firearm could be readily or easily restored to operability. Armstrong v. Commonwealth, No. 1388-99-3, 2000 Va. App. LEXIS 753 (Ct. of Appeals Nov. 21, 2000), aff'd, on reh'g, en banc, 36 Va. App. 312, 549 S.E.2d 641 (2001), aff'd, remanded, 263 Va. 573 , 562 S.E.2d 139 (2002).

Evidence supported a conviction for possession of a firearm by a convicted felon, in violation of § 18.2-308.2 , was affirmed because the Commonwealth of Virginia met its burden of proving the subject weapon was designed, made, and intended to expel a projectile by means of an explosion, and there was no evidence that the weapon was in such a state of disrepair that it lost that characteristic. Barlow v. Commonwealth, 61 Va. App. 668, 739 S.E.2d 269, 2013 Va. App. LEXIS 107 (Apr. 2, 2013).

Inoperable firearm. - Because the trial court's factual determination that a handgun was a firearm was not plainly wrong or without evidence to support it, defendant's conviction for possession of a firearm by a convicted felon was affirmed; the evidence of inoperability because of missing parts indicated that the handgun could have been repaired, and defendant's testimony that the chambers of the handgun "just fell off of it" was insufficient to support a finding that the handgun lost its characteristic as a firearm. Kingsbur v. Commonwealth, 267 Va. 348 , 593 S.E.2d 208, 2004 Va. LEXIS 32 (2004).

Firearms not permitted to felons in their residences. - 2001 amendments to former § 18.2-308.2 A do not permit convicted felons to possess firearms in their residence or the curtilage thereof. Alger v. Commonwealth, 40 Va. App. 89, 578 S.E.2d 51, 2003 Va. App. LEXIS 137 (2003)(decided under § 18.2-308.2 as it read prior to later amendments).

Commonwealth of Virginia met its burden of proving that defendant violated § 18.2-308.2 by showing that defendant was convicted on attempted armed robbery in 1982, and that police saw defendant place a bag containing a handgun next to a trash receptacle in 2002, and the appellate court affirmed the trial court's judgment that the handgun defendant possessed was a "firearm" within the meaning of § 18.2-308.2 , even though it was missing its firing pin and other parts and could not be fired. Kingsbur v. Commonwealth, 40 Va. App. 307, 579 S.E.2d 357, 2003 Va. App. LEXIS 217 (2003), aff'd, 267 Va. 348 , 593 S.E.2d 208 (2004).

Amendment to subsection A of § 18.2-308.2 which allowed persons convicted of a felony to possess a stun weapon or taser in their residence or the curtilage of their residence did not apply to other weapons, and the trial court properly convicted defendant of violating former subsection A of § 18.2-308.2 because he possessed a revolver in the backyard of his home. Robinson v. Commonwealth, No. 0563-02-3, 2003 Va. App. LEXIS 293 (Ct. of Appeals May 13, 2003).

Exception allowing possession of a firearm inside the home or curtilage, set forth in subsection A of § 18.2-308.2 , did not permit defendant to possess firearms in his residence or the curtilage thereof. Plumley v. Commonwealth, No. 1799-02-3, 2003 Va. App. LEXIS 501 (Ct. of Appeals Oct. 7, 2003).

Required proof. - In a prosecution under this section, the Commonwealth is required to prove that the purported firearm had the actual ability to expel a projectile by the power of an explosion. Moore v. Commonwealth, No. 2755-95-3 (Ct. of Appeals Dec. 31, 1996).

This section requires the Commonwealth to prove, as an essential element of the offense, that the accused possessed an actual firearm, not merely an object of similar appearance. Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436 (1999).

This section prohibits felons from possessing actual firearms that are presently operable or that can readily or easily be made operable or capable of being fired with minimal effort and expertise. Armstrong v. Commonwealth, No. 1388-99-3, 2000 Va. App. LEXIS 753 (Ct. of Appeals Nov. 21, 2000), aff'd, on reh'g, en banc, 36 Va. App. 312, 549 S.E.2d 641 (2001), aff'd, remanded, 263 Va. 573 , 562 S.E.2d 139 (2002).

In a case in which defendant appealed his conviction for reckless handling of a firearm, the evidence failed to prove that the object in question was a firearm as contemplated by § 18.2-56.1 . By acquitting defendant of violating § 18.2-308.2 , when defendant's status as a felon was undisputed and where defendant possessed an object resembling a firearm, the trial court as factfinder rejected the only interpretation of the facts which would allow an appellate court to conclude that the facts supported a conviction under subsection A of § 18.2-56.1 . Jones v. Commonwealth, 65 Va. App. 274, 777 S.E.2d 229, 2015 Va. App. LEXIS 277 (2015).

This section prohibits a felon from possessing a device that has the actual capacity to do serious harm because of its ability to expel a projectile by the power of an explosion, and it is not concerned with the use or display of a device that may have the appearance of a firearm. Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436 (1999).

Direct evidence of operability not required. - While the best method of proving the ability of a firearm to discharge shot by gunpowder is to introduce the testimony of a ballistics expert who test-fired the weapon, the Commonwealth is not required to offer direct evidence that the firearm is operable. Instead, the operability of a firearm may be proved by circumstantial evidence. Moore v. Commonwealth, No. 2755-95-3 (Ct. of Appeals Dec. 31, 1996).

A reasonable fact finder may infer operability from an object which looks like, feels like, sounds like or is like, a firearm. Such an inference would be reasonable without direct proof of operability. Moore v. Commonwealth, No. 2755-95-3 (Ct. of Appeals Dec. 31, 1996).

Under this section, the Commonwealth was only required to prove that a convicted felon knowingly and intentionally possessed or transported any firearm and that the firearm was made with the purpose of expelling a projectile by gunpowder or other explosion; it was not required to prove that the gun was operable, because the statute's plain language does not require such proof. Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641, 2001 Va. App. LEXIS 503 (2001).

Commonwealth proved a handgun found in defendant's residence was loaded and seemed to be fully functional. As the Commonwealth was not obliged under § 18.2-308.2 to prove that the firearm was operable, the evidence was sufficient to support defendant's conviction. Williams v. Commonwealth,, 2006 Va. App. LEXIS 94 (Mar. 14, 2006).

Because the prosecution did not have to prove that a weapon that was found in plain site during a warrantless search of defendant's residence was operable under § 18.2-308.2 , the trial court properly denied defendant's motion to strike. Williams v. Commonwealth, 49 Va. App. 439, 642 S.E.2d 295, 2007 Va. App. LEXIS 113 (2007).

To obtain a conviction for grand larceny of a firearm, when a value of more than $200 is not shown, the Commonwealth must prove that the item stolen was any instrument designed, made, and intended to fire or expel a projectile by means of an explosion; however, as is the case in prosecutions under this section, proof that the firearm was operable at the time of the theft is not required under § 18.2-95 . Speller v. Commonwealth, 69 Va. App. 378, 819 S.E.2d 848, 2018 Va. App. LEXIS 302 (2018).

Physical inability to operate firearm no defense. - The plain language of § 18.2-308.2 prohibits "possession" of any firearm by a convicted felon and provides no exception from that requirement related to the felon's physical ability to use the firearm at a particular time. Byers v. Commonwealth, 37 Va. App. 174, 554 S.E.2d 714, 2001 Va. App. LEXIS 636 (2001).

Evidence supporting "firearm." - The fact that shots were fired, striking the car, corroborating other testimony, was relevant evidence because it established that appellant possessed a weapon, capable of firing bullets. McCloud v. Commonwealth, No. 2343-94-1 (Ct. of Appeals Dec. 5, 1995).

Sufficient evidence of firearm. - Store clerk's description of the object brandished by defendant as "a long black gun" was insufficient, alone, to prove that the object possessed the ability to expel a projectile by the power of an explosion. However, defendant's threat, upon presenting the weapon, to kill the clerk was an implied assertion that the object was a functioning weapon, being in fact the firearm that it appeared to be and possessing the power to kill. This implied assertion, which was corroborated by the appearance of the object and was uncontradicted by any other evidence, was evidence sufficient to support the trial court's finding that the object was a firearm. Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436 (1999).

Evidence was sufficient to prove that the defendant possessed a firearm where, after a fight, the defendant retreated to his trailer and returned with his brother, three witnesses believed the defendant possessed a firearm, two witnesses saw him raise his arm as if to shoot, all three ducked instinctively to protect themselves, and bullets damaged property in the line of fire. Martin v. Commonwealth, No. 0678-98-3 (Ct. of Appeals Jan. 12, 1999).

Where, in a pat-down search of defendant's person, police recovered a magazine to a semi-automatic Bersa handgun containing seven rounds of .380 ammunition from his left front pants pocket and a .380 caliber Bersa semi-automatic handgun from a nearby closet shelf, even though at the time of its recovery, this weapon did not have a clip loaded into the frame, the contemporaneous possession of the magazine with the possession of the weapon found in the closet provided a substantial nexus to become a functional firearm with the ability to fire by explosion. Hunter v. Commonwealth, No. 1904-99-1, 2000 Va. App. LEXIS 439 (Ct. of Appeals June 13, 2000).

Sufficient evidence permitted the jury to find beyond a reasonable doubt that defendant possessed a firearm and shot a dog where defendant admitted driving by the site of the shooting on the day of the shooting, one of two girls saw defendant shoot a firearm toward the barn where they were playing with the dog, the other saw him with a firearm right after the shooting, and the girls were certain defendant was the man they saw at the barn with the firearm. Ford v. Commonwealth, 48 Va. App. 262, 630 S.E.2d 332, 2006 Va. App. LEXIS 238 (2006).

Evidence was sufficient to support his convictions for possession of a firearm by a felon and possession of marijuana because defendant stated the car where the contraband was found was his car, and defendant provided a key to the officer who found several items with defendant's name in addition to the pistol, bullets, loose marijuana and digital scale. Patterson v. Commonwealth,, 2006 Va. App. LEXIS 361 (Aug. 8, 2006).

Evidence was sufficient to support defendant's conviction of possession of a firearm by a convicted felon, § 18.2-308.2 , because an eyewitness testified that he saw defendant with a gun, that the witness worked for the federal Department of Justice as a firearms instructor and had use of firearms everyday, that he observed defendant's hand for two minutes in a lighted area, that he observed the barrel of the gun and the firing mechanism, and that the item was a Glock 9mm, an object that the parties agreed was designed to expel a projectile by means of an explosion. Elder v. Commonwealth,, 2007 Va. App. LEXIS 375 (Oct. 9, 2007).

Sufficient evidence supported defendant's § 18.2-308.2 conviction as a victim testified that a small, silver, semi-automatic pistol was pointed at his temple; defendant's concurrent demand that the victim part with possession of a vehicle supported the victim's conclusion that a gun and not a toy was pointed at the victim's head. Jordan v. Commonwealth, 60 Va. App. 675, 731 S.E.2d 622, 2012 Va. App. LEXIS 281 (2012), aff'd, 286 Va. 153 , 747 S.E.2d 799, 2013 Va. LEXIS 106 (Va. 2013).

There was sufficient evidence that defendant possessed a firearm to support defendant's conviction under subsection A of § 18.2-308.2 where: (1) a police officer with training on firearms testified that the instrument was a revolver, and that in revolvers, when the trigger was pulled, the firing pin hit the strike plate on the round and sent the round out of the barrel by force; (2) another officer testified that she removed six rounds of ammunition from the instrument when she retrieved the instrument from the street; and (3) the firearm itself was admitted. Perry v. Commonwealth, 61 Va. App. 502, 737 S.E.2d 922, 2013 Va. App. LEXIS 66 (2013).

Evidence was sufficient to support defendant's conviction for possession of a firearm by a convicted felon because defendant conceded that he was a convicted felon, the victim identified the weapon at issue, and defendant's conduct, which included pointing that weapon at the victim's head and demanding that he get out of the truck, was an implied assertion that he held a firearm. Jordan v. Commonwealth, 286 Va. 153 , 747 S.E.2d 799, 2013 Va. LEXIS 106 (2013).

Sufficient evidence supported defendant's firearm possession conviction because the evidence showed a firearm recovered from defendant was designed, made and intended to expel a projectile by means of an explosion, as (1) an officer could conclude, without expert qualification, that the instrument was a firearm, and (2) defendant did not object to testimony that the instrument had a magazine containing real bullets. Brown v. Commonwealth,, 2014 Va. App. LEXIS 122 (Apr. 1, 2014).

A witness's testimony about his familiarity with guns, his specific description of the object he saw in defendant's hands, and the fact that the witness sustained an injury consistent with a gunshot wound was sufficient to support the trial court's conclusion that the weapon was a firearm for purposes of this section. Saunders v. Commonwealth,, 2015 Va. App. LEXIS 28 (Jan. 27, 2015).

Evidence was sufficient to support defendant's convictions for attempted robbery, use of a firearm in the commission of an attempted robbery, and possession of a firearm by a violent convicted felon, as it showed that defendant pointed a gun at the victim and chased the victim in an attempt to get the victim to go back to his house so defendant could rob him. Howard v. Commonwealth, No. 1621-14-2, 2015 Va. App. LEXIS 220 (July 21, 2015).

Because of the victim's identification of a Glock firearm, based upon the observations of the victim - who was unfamiliar with guns - and a comparison of those observations with a friend's Glock pistol, and defendant's conduct demonstrating an implied assertion that defendant possessed a firearm, a rational trier of fact could have found that defendant, a convicted felon, possessed a firearm when defendant confronted the victim and demanded, while pointing the object at the victim, that the victim give defendant the victim's wallet and phone. Trace v. Commonwealth, No. 0885-18-1, 2019 Va. App. LEXIS 211 (Oct. 1, 2019).

Insufficient evidence of firearm. - Commonwealth failed to prove that defendant possessed a device having ability to expel a projectile by power of an explosion. Gates v. Commonwealth, No. 0502-98-4 (Ct. of Appeals July 13, 1999).

Evidence was not sufficient to support defendant's conviction for possession of a firearm by a convicted felon under § 18.2-308.2 , because it only showed that the object used by defendant gave the appearance of having firing capability, it did not demonstrate that the object defendant possessed was designed, made, and intended to expel a projectile by means of an explosion. Jamar v. Commonwealth,, 2011 Va. App. LEXIS 387 (Dec. 6, 2011).

Sufficient evidence for inference of operability. - Where detective testified that he examined the rifle, tested the trigger mechanism, and that the rifle was a .50 caliber black powder rifle; a photograph of the rifle was introduced; and the detective testified in detail how the rifle functioned to discharge a bullet by an explosion of gunpowder, a reasonable fact finder could infer that the rifle was operable and therefore a firearm under this section. Moore v. Commonwealth, No. 2755-95-3 (Ct. of Appeals Dec. 31, 1996).

A convicted felon had constructive possession of a firearm where he was carrying a clip and ammunition for a particular rifle on his person, he exercised control over the trailer where the rifle was found and he directed his wife to the precise location of the rifle in the trailer and directed her to produce it. Gregory v. Commonwealth, 28 Va. App. 393, 504 S.E.2d 886 (1998), overruled in part, Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641 (2001).

Pointing a gun at the victim while demanding the contents of his pockets was an implied assertion by the defendant that the weapon was operable. By pointing a gun at the victim and demanding money, the defendant was, indeed, making a statement equivalent to "I will shoot you if you do not comply with my demand." Kirby v. Commonwealth, No. 0076-00-3, 2000 Va. App. LEXIS 783 (Ct. of Appeals Dec. 5, 2000).

Insufficient evidence for inference that gun was real. - Witness's testimony clearly proved that he was intimidated by an object that had the appearance of a gun. However, his testimony that he could not say whether the object "was a real gun or not" left uncertain whether appellant possessed a toy or an actual gun. Witness admitted that he "was not a gun person." From witness's testimony, the trier of fact could not infer beyond a reasonable doubt that the device was indeed a "real gun." Williams v. Commonwealth, No. 2584-96-1 (Ct. of Appeals Feb. 10, 1998).

The description of the firearm in a juvenile petition was excess language because the precise type of firearm was not an element of the offense. Toliver v. Commonwealth, No. 2880-99-2, 2000 Va. App. LEXIS 716 (Ct. of Appeals Nov. 7, 2000).

Ammunition was explosive material. - Not only was .25 caliber ammunition an explosive material for purposes of § 18.2-308.2 , but evidence, including that defendant had a commercially labeled box containing 42 cartridges and common knowledge recognized that firearm ammunitions contained gunpowder and functioned by explosion, was sufficient to sustain his conviction thereunder. Davis v. Commonwealth,, 2010 Va. App. LEXIS 29 (Jan. 26, 2010).

Evidence sufficient to prove cartridges were ammunition. - Contrary to defendant's claim, the evidence was not insufficient to prove that the cartridges found on defendant's person contained propellant, as nothing in subsection D of § 18.2-308.2 indicated that it was the obvious intention of the legislature that the disjunctive "or" was meant to mean "and." Williams v. Commonwealth, 61 Va. App. 1, 733 S.E.2d 124, 2012 Va. App. LEXIS 332 (2012).

Evidence established the required components for ammunition because from an officer's descriptions of the bullets and the evidence that the bullets were in a magazine and loaded in the handgun, a factfinder could infer the projectiles were in cartridges that contained primer or propellant, i.e., that the projectiles were designed for use in the handgun and for firing from the handgun in which they were loaded. Guerrant v. Commonwealth, No. 1446-18-3, 2020 Va. App. LEXIS 39 (Feb. 11, 2020).

IV. POSSESSION, TRANSPORTATION, AND CONCEALMENT.

A conviction for knowingly and intentionally possessing a firearm after having been convicted of a felony requires proof beyond a reasonable doubt of either actual or constructive possession of the firearm. Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995).

Territorial jurisdiction. - Circuit court erred when it granted defendant's petition for restoration of the right to ship, transport, possess, or receive firearms because the Commonwealth clearly objected to the circuit court adjudicating defendant's petition where he was not a resident of the city where the court was located and territorial jurisdiction was not waived. Commonwealth v. Leone, 286 Va. 147 , 747 S.E.2d 809, 2013 Va. LEXIS 104 (2013).

Sufficient evidence of knowledge. - In a prosecution on a charge of possessing a firearm after having been convicted of a felony, in violation of § 18.2-308.2 , the evidence was sufficient to show that defendant knew of the presence of the guns on the premises where he resided as they were in plain view. Redmond v. Commonwealth, 57 Va. App. 254, 701 S.E.2d 81, 2010 Va. App. LEXIS 446 (2010).

Record contained sufficient evidence from which a reasonable fact-finder could find that defendant knew of the presence and character of firearms based on where they were found because a revolver was found on a dresser in the main bedroom of his residence in plain view; another firearm was found in the closet of the main bedroom, and a fact-finder could also infer that because there was one firearm in plain view, defendant was aware of other firearms in the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Evidence was sufficient to support defendant's convictions of possession of a firearm after having been convicted of a felony and possession of a machine gun for an aggressive purpose because it showed that defendant was in the driver's seat of the vehicle, he was the only person in the vehicle, after he got out of the vehicle and closed the door he was resistant to opening the door again, the officer testified that while standing outside the vehicle he could see an extended magazine containing ammunition sticking out from under the driver's seat, and when the officer went to retrieve the magazine he found a weapon directly beside the magazine under the driver's seat. Easterling v. Commonwealth, No. 1444-19-3, 2020 Va. App. LEXIS 222 (Aug. 4, 2020).

Sufficient evidence of defendant's identity. - Facts, considered in their totality, could have led a reasonable fact finder to conclude that defendant was, in fact, the masked man in camouflage carrying a rifle, as defendant testified he knew that the twins had beaten his son on the day in question; the masked man told the person at the door "they beat my son"; the man told another person it's "Uncle Horace," and defendant's first name was Horace; defendant was spotted just moments later, near the vicinity of the crime, wearing camouflage clothing; and defendant changed his clothes immediately after an investigator drove by. Henderson v. Commonwealth,, 2011 Va. App. LEXIS 301 (Oct. 4, 2011).

Evidence of drug distribution a factor in motive to possess firearm. - Trial court did not abuse its discretion in admitting into evidence the 46 plastic baggies or the police officer's expert testimony about their use in the illegal drug trade. Both individually and collectively, the facts tended to show just what the prosecutor argued: that defendant was still engaged in the distribution of marijuana; while not alone dispositive, evidence linking a defendant to drug distribution could be considered as one factor in determining whether he may have had a motive to possess a firearm. Thomas v. Commonwealth, 44 Va. App. 741, 607 S.E.2d 738, 2005 Va. App. LEXIS 31 (2005).

Proof that a firearm was located close to defendant was not sufficient to prove the elements of the offense beyond a reasonable doubt. Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995).

Plain view. - Because a gun was in plain view in defendant's bedroom, it was immediately apparent that the gun could be evidence of possession of a firearm by a convicted felon. Therefore, the trial court was correct in denying defendant's motion to suppress the evidence. McLaughlin v. Commonwealth, 65 Va. App. 427, 778 S.E.2d 529, 2015 Va. App. LEXIS 328 (2015).

Convictions for three seperate offenses proper. - In accordance with the gravamen of the offense, a new offense of possession of a firearm could be established with each separate act or occurrence. Under that analysis, each of defendant's three convictions derived from distinct offenses; the first on the day defendant stole the weapon, the second on the day he attempted to sell it, and the third on the day he sold it. Baker v. Commonwealth, 284 Va. 572 , 733 S.E.2d 642, 2012 Va. LEXIS 188 (Nov. 1, 2012).

Consecutive sentence mandatory. - Trial court erred in ordering that the sentences for defendant's two convictions run concurrently because it diluted the mandatory sentence required by the General Assembly; once the trial court found defendant guilty of two counts of possession of a firearm, it was required to render a sentence that included two consecutive mandatory minimum terms of two years. Commonwealth v. Botkin, 68 Va. App. 177, 805 S.E.2d 412, 2017 Va. App. LEXIS 262 (2017), aff'd, remanded, 296 Va. 309 , 819 S.E.2d 652 (2018).

Word "any" in the statute unambiguously includes any other sentence, including another sentence under the same code section, and the specific language of the statute limits the circuit court's general discretionary authority; the General Assembly intended that the penalty for a violation of the statute not be diluted by running any of that time concurrently with any other sentence. Commonwealth v. Botkin, 68 Va. App. 177, 805 S.E.2d 412, 2017 Va. App. LEXIS 262 (2017), aff'd, remanded, 296 Va. 309 , 819 S.E.2d 652 (2018).

Sufficient evidence of possession. - Evidence was sufficient to find that defendant had been in actual possession of handgun recovered from area where he fell while running from police. Hill v. Commonwealth, No. 2336-98-1 (Ct. of Appeals Nov. 23, 1999).

Evidence was sufficient to support finding that defendant, a convicted felon, intentionally possessed a firearm; while defendant's paralysis may have precluded him from personally dispossessing the gun hidden under his bedding, nothing prevented him from calling friends, family, or neighbors to remove the gun, and his paralysis did not explain why he secreted the gun with its ammunition back under the bedding. Baker v. Commonwealth, No. 1142-00-3, 2001 Va. App. LEXIS 343 (Ct. of Appeals June 19, 2001).

Evidence was sufficient to prove that defendant, a convicted felon, possessed a firearm, where defendant kept guns in his bedroom, defendant forbade the children from "messing with" the guns, and defendant went hunting with his boys and the guns. Donnelly v. Commonwealth, No. 2070-00-2, 2001 Va. App. LEXIS 621 (Ct. of Appeals Nov. 13, 2001).

Trial court did not have to believe defendant's version of how defendant acquired car and was entitled to infer that defendant knew car was stolen; defendant knew of the shotgun based on its location under the passenger seat. Ridley v. Commonwealth, No. 1850-01-1, 2002 Va. App. LEXIS 387 (Ct. of Appeals July 16, 2002).

Evidence showed that defendant, a felon, was in unlawful possession of a weapon as defendant's spouse testified that while they were home alone defendant obtained a pistol she owned and fired it twice, which caused the spouse to grab her keys and flee since defendant talked about that day being the day the spouse was going to die. Kirby v. Commonwealth, 264 Va. 440 , 570 S.E.2d 832, 2002 Va. LEXIS 164 (2002).

Where defendant told police officers that defendant found firearm, evidence was sufficient to support defendant's conviction of possession of a firearm by a convicted felon, as defendant admitted picking up the firearm, thus exercising dominion and control over the firearm. Greene v. Commonwealth, No. 3343-01-2, 2002 Va. App. LEXIS 717 (Ct. of Appeals Dec. 3, 2002).

Defendant had knowing possession of guns, where the defendant's wife confessed that she had shot at the defendant with a gun in their home, the defendant complained to the police that the defendant's wife had shot at him with a gun in their home, and the defendant led the police to the guns kept in the defendant's locked bedroom in their home. Nowlin v. Commonwealth, 40 Va. App. 327, 579 S.E.2d 367, 2003 Va. App. LEXIS 218 (2003), but see Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

Testimonial evidence from the victim of an assault committed by defendant, a convicted felon, and officers who recovered the gun used to commit the same, provided sufficient evidence for a jury to convicted defendant of possession of a firearm by a convicted felon; a requisite logical connection between defendant's possession of the weapon and the crime charged was highly probative and, with the limiting instructions given to the jury as to the gun's recovery by police, outweighed any incidental prejudice. McDaniel v. Commonwealth, No. 3317-01-4, 2003 Va. App. LEXIS 349 (Ct. of Appeals June 17, 2003).

Evidence was sufficient to support defendant's conviction for possession of a firearm by a convicted felon, as the evidence showed that defendant armed himself with a gun he had purchased during the previous month and confronted another man at defendant's residence who had threatened defendant because the other man had started residing with defendant's wife while defendant was in jail; the jury was entitled to reject defendant's necessity defense, as the evidence showed that defendant had purchased the gun at least several days before the shooting occurred and, thus, defendant was not under an imminent threat at the time he came into possession of the gun. Hood v. Commonwealth, No. 2419-02-2, 2004 Va. App. LEXIS 33 (Ct. of Appeals Jan. 28, 2004).

Sufficient evidence of possession of a firearm after having been previously convicted of a violent felony, where: (1) photographs of the location of the handgun immediately adjacent to where defendant was sitting, (2) defendant's movement away from the cocaine and handgun when he saw the officer approach, and (3) the fact that there were three individuals sitting on the porch did not negate defendant's possession as possession could be shared. Peek v. Commonwealth, No. 0340-03-1, 2004 Va. App. LEXIS 193 (Ct. of Appeals Apr. 27, 2004).

Although defendant denied knowing that there was a handgun in a bag which contained items belonging to him and the driver of the truck stopped by police testified that he put the gun in the bag and did not tell defendant he had done so, the trial court did not err when it refused to believe defendant's claim of innocence and the driver's testimony and convicted defendant of possession of a firearm after having been convicted of a felony. Bailey v. Commonwealth, No. 0617-03-4, 2004 Va. App. LEXIS 369 (Ct. of Appeals Aug. 3, 2004).

Evidence that defendant bought the gun with another, handled the gun on occasion, and was within reach of the gun was sufficient to support his conviction for possession of a firearm. Maye v. Commonwealth, 44 Va. App. 463, 605 S.E.2d 353, 2004 Va. App. LEXIS 590 (2004).

Where a firearm was found beneath a mattress in the single bedroom of a home of which defendant was the sole occupant, the evidence showed that defendant constructively possessed the gun and was sufficient to support his conviction for possession of a firearm by a convicted felon. Ricks v. Commonwealth, No. 2534-03-1, 2005 Va. App. LEXIS 19 (Ct. of Appeals Jan. 11, 2005).

Evidence was sufficient to prove that defendant constructively possessed a handgun found in a van he owned and was driving. An officer found an empty holster within reach of the driver's seat, and a gun beneath the van's second row of seating; defendant's delay in pulling over after the officer activated his overhead lights permitted the inference that defendant, a convicted felon, removed the gun from the holster and slipped it under the second seat before pulling over. Wilson v. Commonwealth,, 2006 Va. App. LEXIS 437 (Oct. 3, 2006).

Because the police found a concealed weapon in defendant's possession that, as a convicted felon, defendant could not lawfully carry in a concealed manner, and because defendant failed to prove that a miscarriage of justice had occurred after failing to preserve a claim, Va. Sup. Ct. R. 5A:18 barred review of the issue. Davis v. Commonwealth,, 2006 Va. App. LEXIS 444 (Oct. 10, 2006).

In a case in which defendant appealed his conviction for possessing firearms, in violation of § 18.2-308.2 , he argued unsuccessfully that the evidence was insufficient to support that conviction. Since there had been sufficient evidence to convict defendant of discharging a firearm within an occupied building, in violation of § 18.2-279 , there was sufficient evidence that he also violated § 18.2-308.2 . Berger v. Commonwealth,, 2006 Va. App. LEXIS 609 (Nov. 17, 2006).

In a case in which defendant appealed his conviction for possessing firearms, in violation of § 18.2-308.2 , he argued unsuccessfully that the evidence was insufficient to support that conviction. A witness testified that she took at least four guns from her property and put them in a shed located behind defendant's house, and defendant was home at the time, and the witness told him that she did not want the guns on her property so she was placing them in his shed; that testimony was sufficient to prove that defendant was aware of the presence and character of the guns in his outbuilding and that they were subject to his dominion and control. Berger v. Commonwealth,, 2006 Va. App. LEXIS 609 (Nov. 17, 2006).

Fact that defendant's grandmother did not tell the officers that defendant lived elsewhere and the presence of defendant's official identifications and clothing in the same room as the closet containing the subject firearms provided sufficient evidence to support defendant's conviction for possession of a firearm after having been previously convicted of a felony under § 18.2-308.2 . Blake v. Commonwealth,, 2007 Va. App. LEXIS 311 (Aug. 21, 2007).

Because the circumstantial evidence was sufficient to conclude that a gun found in defendant's vehicle was real, defendant was properly convicted of possessing a firearm by a convicted felon, a violation of § 18.2-308.2 . Jones v. Commonwealth, No. 1190-07-1, 2007 Va. App. LEXIS 499 (Oct. 30, 2007), aff'd, 277 Va. 171 , 670 S.E.2d 727 (2009).

Conviction for possession of a firearm by a convicted felon was supported by evidence showing that defendant was aware of the presence and character of the firearm and it was within defendant's dominion and control. Among other things, defendant exited vehicle along with the only other passenger and attempted to contact the officer before the officer could get to the vehicle, and the gun was in proximity to where defendant had been sitting. Bolden v. Commonwealth, 275 Va. 144 , 654 S.E.2d 584, 2008 Va. LEXIS 6 (2008), cert. denied, 129 S. Ct. 284, 2008 U.S. LEXIS 6378, 172 L. Ed. 2d 208 (U.S. 2008).

Defendant possessed a handgun found by an officer in a pillowcase located at defendant's feet in a car in which defendant was a passenger for purposes of subsection A of § 18.2-308.2 as: (1) defendant admitted that defendant owned jewelry in the same pillowcase as the loaded handgun; and (2) defendant possessed five rocks of crack cocaine in one sock, $1,380 in the other sock, and almost one-half kilo of cocaine in another bag adjacent to the pillowcase. Lee v. Commonwealth, No. 0713-07-1, 2008 Va. App. LEXIS 324 (July 15, 2008).

Evidence was sufficient to support defendant's conviction for possession of a firearm, after having been previously convicted of a felony, under § 18.2-308.2 , where the trial court could have found beyond a reasonable doubt that, while in possession of another person's vehicle, defendant was aware of the presence and character of the rifle in the vehicle and exercised dominion and control over the weapon, using the weapon to teach defendant's seven-year-old son to shoot. Falls v. Commonwealth,, 2008 Va. App. LEXIS 491 (Nov. 4, 2008).

Rational factfinder could conclude beyond a reasonable doubt that defendant possessed a firearm in violation of subsection A of § 18.2-308.2 even though no gun was found at the time of his arrest because the arresting officer discovered primer residue on defendant's right hand shortly after his apprehension, which suggested that defendant had recently fired a firearm; the trial court had ample grounds to reject defendant's hypothesis that the primer residue on his hand came from a police officer because the arresting officer testified that he had not recently fired a firearm, and he made it clear that police officers in his department were specifically trained to sanitize their hands after firing a firearm because of the risk of lead poisoning. Peterson v. Commonwealth,, 2009 Va. App. LEXIS 142 (Mar. 24, 2009).

Appellant's conviction for possession of a firearm by a convicted felon was affirmed; in light of appellant's admission that the bag and the mail inside were his, there was ample support for the reasonable inference that he was aware of the other contents of the backpack, including the firearm, and that it was subject to his dominion and control. Morris v. Commonwealth,, 2009 Va. App. LEXIS 432 (Sept. 29, 2009).

Evidence was sufficient to convict defendant of possessing a firearm after a felony conviction because one victim testified that defendant brandished an automatic firearm, rather than a revolver, and the other victim testified that defendant threatened to shoot him if he did not comply with defendant's demands. Eley v. Commonwealth,, 2009 Va. App. LEXIS 480 (Oct. 27, 2009).

Evidence was sufficient for a rational factfinder to convict defendant of being a convicted felon in possession of a firearm in violation of § 18.2-308.2 because there was credible testimony that defendant possessed what certainly appeared to be a firearm and that shots were fired, and that testimony was corroborated by physical evidence that shots indeed were fired, such as bullet holes found in the house and empty shell casings found around the home after the home invasion was over; a rational factfinder was permitted to infer from the evidence that defendant carried an actual firearm, rather than a toy gun or water pistol, as defendant claimed on appeal. Streater v. Commonwealth,, 2009 Va. App. LEXIS 504 (Nov. 10, 2009).

Evidence was sufficient to prove that defendant, a convicted violent felon found in possession of cocaine, possessed a firearm within the meaning of §§ 18.2-308.2 and 18.2-308.4 when he was driving a car that contained the frame, cylinder pin, and cylinder with ammunition for a revolver, which was successfully test-fired. Seward v. Commonwealth,, 2009 Va. App. LEXIS 579 (Dec. 22, 2009).

Evidence was sufficient to find appellant knowingly and intentionally possessed the shotgun as a convicted felon, in violation of § 18.2-308.2 , where: (1) the shotgun was found resting against appellant's leg; (2) the evidence showed that police were called to appellant's house earlier in the day, based on reports of shots fired outside the residence; (3) spent shell casings, which appeared new, were found in appellant's backyard; and (4) appellant admitted to owning the jacket found in the vehicle that contained 12-gauge shotgun ammunition. Reynolds v. Commonwealth,, 2009 Va. App. LEXIS 587 (Dec. 29, 2009).

Appellant's conviction for of being a felon in possession of a firearm was affirmed because items related to the firearm were mixed in with items belonging to appellant, his girlfriend, and their child, allowing the trial court to infer that appellant had dominion and control over the firearm. Davis v. Commonwealth,, 2010 Va. App. LEXIS 273 (July 13, 2010).

Conviction for possession of a firearm by a convicted felon, in violation of § 18.2-308.2 , was supported by the fact that the evidence in the record did not indicate that anyone else had access to the gun to exclusion of defendant and that defendant's contention that he got the car from his cousin was not supported by the evidence. Lamb v. Commonwealth,, 2011 Va. App. LEXIS 46 (Feb. 8, 2011).

Sufficient evidence supported defendant's conviction for possession of a firearm after having been convicted of a violent felony, in violation of § 18.2-308.2 , because it was fired from the passenger side of a vehicle before being tossed from the side where defendant was seated. Because the weapon was fired in close proximity to defendant, the evidence was sufficient to prove beyond a reasonable doubt his constructive possession of the firearm. Benguche v. Commonwealth,, 2012 Va. App. LEXIS 313 (Oct. 9, 2012).

Evidence was sufficient to find defendant guilty of at least constructive possession of a firearm in violation of § 18.2-308.2 , because after police stopped the car in which he was riding, a officer saw him standing next to the area where a handgun was found on the ground. Berry v. Commonwealth,, 2012 Va. App. LEXIS 385 (Nov. 27, 2012).

Evidence was sufficient to find that defendant possessed a firearm because defendant admitted that he was not supposed to be around guns and that he knew guns were in the basement of his mother's house, the guns were easily accessible, and the keys to the basement as well as the gun cabinet were kept in the mother's room and were easily accessible to defendant. Robinson v. Commonwealth, No. 1396-12-3, 2013 Va. App. LEXIS 297 (Oct. 22, 2013).

Sufficient evidence supported defendant's firearm possession conviction because defendant was aware of the firearm's presence and character, and the firearm was subject to defendant's dominion and control, where the evidence showed (1) defendant tried to get away from and hide the firearm, (2) the firearm was in plain view where defendant had been sitting, and (3) only after defendant hid the firearm did defendant obey an officer's instructions. Brown v. Commonwealth,, 2014 Va. App. LEXIS 122 (Apr. 1, 2014).

There was sufficient evidence to support defendant's conviction of possessing a firearm while simultaneously possessing a controlled substance because the instrument defendant possessed was designed, made, and intended to expel a projectile by means of an explosion and thus, was a firearm within the meaning of the statute; defendant repeatedly referred to the instrument as a gun and treated it as such by usually putting it in a lock box. Bailey v. Commonwealth, No. 0463-13-1, 2014 Va. App. LEXIS 143 (Ct. of Appeals Apr. 15, 2014).

Sufficient evidence supported defendant's possession of a firearm after having been convicted of a violent felony conviction as: (1) defendant's claimed alibi to a burglary was rejected; (2) there was sufficient evidence of constructive possession of the firearms stolen in the burglary; (3) defendant was found in exclusive possession of four rings taken at the same time that the firearms were taken, during the home invasion; (4) defendant gave conflicting accounts as to how he came into possession of the rings; and (5) defendant made incriminating statements concerning his possession and the need to dispose of a long screwdriver, a tool that was consistent with the method of breaking used during the burglary. Wyatt v. Commonwealth,, 2015 Va. App. LEXIS 8 (Jan. 13, 2015).

Evidence of defendant's guilt for possession of a weapon by a violent felon was overwhelming, as there was no dispute he had previously been convicted of a felony and the police recovered a rifle from the bedroom closet that contained male clothing. Martin v. Commonwealth, No. 0843-15-2, 2016 Va. App. LEXIS 84 (Ct. of Appeals Mar. 22, 2016).

Evidence was sufficient to support defendant's convictions for discharging a firearm in public, brandishing a firearm, and possession of a firearm by a convicted felon because he discharged a firearm multiple times in a public place; there was no need to determine make, model, and caliber when the law required a weapon designed to expel single or multiple projectiles, and defendant showed that capability in front of multiple witnesses, one of whom was an experienced law-enforcement officer. Gerald v. Commonwealth, 68 Va. App. 167, 805 S.E.2d 407, 2017 Va. App. LEXIS 261 (2017).

Evidence defendant was in the driver's seat of a car emitting a strong odor of unburned marijuana and had his hands inside the console in which police found the firearm supported defendant's convictions for possession of a concealed weapon, possession of a firearm by a convicted felon, and possession of marijuana. Ames v. Commonwealth, No. 0526-16-1, 2017 Va. App. LEXIS 277 (Nov. 7, 2017).

Evidence that defendant was driving a vehicle in which police located a gun, was convicted of possession of cocaine with intent to distribute, and possessed and used a password-protected phone with an image of the gun recovered from the vehicle, permitted a rational trier to find that the gun was subject to defendant's dominion and control and to support his convictions for possession of a firearm by a convicted felon and possession of a firearm while in possession of a controlled substance. Coleman v. Commonwealth,, 2017 Va. App. LEXIS 299 (Nov. 28, 2017).

Circumstantial evidence supported defendant's conviction for possession of a firearm after being convicted of a violent felony because a rational factfinder could have concluded that defendant possessed the firearm the police located near to where he fell; a trooper testified that the firearm was warm to the touch, which was consistent with its having just been held close to defendant's body, and that there were no other individuals in the area who could have dropped the weapon. Townes v. Commonwealth, No. 0885-17-2, 2018 Va. App. LEXIS 59 (Mar. 13, 2018).

Evidence was sufficient to convict defendant of possession of a firearm by a convicted felon as defendant constructively possessed the shotgun because defendant testified that he saw the accomplice run up and point the shotgun at the victim; rather than telling the accomplice to put the gun away or to stop what he was doing, defendant instead instructed the accomplice to shoot into the victim's house; and, by directing the accomplice to shoot the shotgun into the house, defendant was asserting dominion and control over the firearm. Harris v. Commonwealth, No. 1084-17-2, 2018 Va. App. LEXIS 266 (Oct. 9, 2018).

There was sufficient evidence to prove that defendant was guilty of possession of a firearm after having been adjudicated a violent felon under § 18.2-308.2 , including a witness's testimony that the object wrapped in a thin cloth was a gun, other testimony that following gun shots a witness saw defendant passing her house, and telephone calls eluding to the gun defendant had hidden. Wimbush v. Commonwealth, No. 0723-18-3, 2019 Va. App. LEXIS 157 (July 9, 2019).

Because of the victim's identification of a Glock firearm, based upon the observations of the victim - who was unfamiliar with guns - and a comparison of those observations with a friend's Glock pistol, and defendant's conduct demonstrating an implied assertion that defendant possessed a firearm, a rational trier of fact could have found that defendant, a convicted felon, possessed a firearm when defendant confronted the victim and demanded, while pointing the object at the victim, that the victim give defendant the victim's wallet and phone. Trace v. Commonwealth, No. 0885-18-1, 2019 Va. App. LEXIS 211 (Oct. 1, 2019).

Evidence was sufficient to allow a reasonable fact finder to conclude beyond a reasonable doubt that appellant possessed the firearm and the ammunition that was recovered from the car where the circumstances surrounding his statement that "we were target shooting" included the location of the firearm under his seat, mere inches from him, being worried about being arrested with the only reasonably apparent crime being his possession of the firearm and ammunition, his companion, knowing of the jeopardy he faced, volunteering to take the charge for him, and his level of nervousness. Thus, a rational fact finder could have concluded that appellant's knowledge of the firearm and ammunition (as well as the targets) came from his having just gone target shooting with his companion. Lightfoot v. Commonwealth, No. 1469-18-4, 2019 Va. App. LEXIS 291 (Dec. 10, 2019).

Evidence was sufficient to support defendant's conviction for possession of a firearm by a convicted violent felon, where the firearm was found in a backpack in the vehicle defendant was driving, without any passengers, and defendant fled from the scene, evidencing consciousness of her guilt. Murray v. Commonwealth, 71 Va. App. 449, 837 S.E.2d 85, 2020 Va. App. LEXIS 13 (2020).

Video showing defendant was the individual who entered the apartment building and that he held a black object close to his thigh, shortly after shots were fired on a street nearby, was sufficient for a rational fact finder to have concluded that the object in defendant's hand as he entered the apartment building was a firearm and thus, to support his conviction for possession of a firearm after having been convicted of a violent felony. Jones v. Commonwealth, No. 1359-18-4, 2020 Va. App. LEXIS 12 (Jan. 14, 2020).

There was ample evidence that defendant had a firearm in his possession because two individuals, a military veteran and an armed security guard, testified they saw him holding a gun, and they both provided testimony from which a factfinder could reasonably conclude they were able to identify a firearm; an officer recovered a handgun that was consistent with testimony that an object was thrown out of the passenger side of the vehicle that defendant was driving. Guerrant v. Commonwealth, No. 1446-18-3, 2020 Va. App. LEXIS 39 (Feb. 11, 2020).

Commonwealth's evidence was sufficient to prove that appellant was guilty of possession of a firearm or possession of ammunition after having been convicted of a felony where testimony established that the searched house was his residence, and an officer credibly testified that appellant admitted that he helped wrap firearms that were found in a guest bedroom closet. Seamster v. Commonwealth, No. 1193-19-2, 2021 Va. App. LEXIS 117 (July 13, 2021).

Insufficient evidence of possession. - Where a handgun had been hidden in a blanket on the front floorboard of a truck in which defendant was a passenger, defendant made no furtive gestures toward the firearm nor were there any acts, statements, or conduct indicating he exercised dominion and control over it, that he had been in close proximity to the firearm was legally insufficient to prove possession. Myers v. Commonwealth, 43 Va. App. 113, 596 S.E.2d 536, 2004 Va. App. LEXIS 238 (2004).

Evidence was sufficient to show constructive possession of a handgun where defendant was driving a car when it was pulled over; the car was registered to his wife, only they possessed keys to it, and only he and his wife ever drove the car; the handgun was found in the glove compartment; defendant reached into the glove compartment to retrieve the registration while the gun was in that glove compartment; and defendant admitted he saw the gun and yet said nothing to the police officer about it. Gore v. Commonwealth, No. 1776-97-1 (Ct. of Appeals June 23, 1998).

There was insufficient evidence that defendant constructively possessed ammunition. There was no evidence that defendant was aware of the ammunition in the car in which she was riding or had any interest in the car; mere proximity to the ammunition was insufficient without more to show constructive possession. Swann v. Commonwealth,, 2012 Va. App. LEXIS 380 (Nov. 27, 2012).

In a case in which defendant was convicted of possession of a firearm by a felon, the evidence revealed that defendant, who was a back seat passenger in a car, knew the nature and character of the firearm and that defendant placed the weapon under the seat. The Commonwealth proved the elements of possession of a firearm by a convicted felon. Dagner v. Commonwealth, No. 1228-15-1, 2016 Va. App. LEXIS 283 (Ct. of Appeals Oct. 25, 2016).

Circuit court erred in convicting defendant of possessing ammunition as a convicted felon because, while defendant was a convicted felon, he was not present when the search warrant was executed, nothing established that defendant was ever present in the bedroom simultaneously with the seized contraband despite police officers finding prescription medication, a valid debit card, and an expired school identification card - each item bearing defendant's name - in the bedroom, defendant did not give conflicting statements, nor any statements at all, regarding any ownership interest in the bedroom or that he was aware of the ammunition, and the ammunition was in two plastic grocery bags and two boxes that were easily portable. Booth v. Commonwealth, No. 0532-19-2, 2020 Va. App. LEXIS 29 (Feb. 4, 2020).

Evidence proved beyond a reasonable doubt that defendant knowingly and intentionally possessed the firearm that the police found in his hotel room because it was found in a shoebox in the closet of the hotel room where defendant stayed with his girlfriend and her children, defendant had two room keys in his pocket when he was arrested, defendant admitted that the shoebox was his and that the shoes he was wearing had come from the box, and he admitted that he was a drug dealer. Smith v. Commonwealth, No. 0723-19-4, 2020 Va. App. LEXIS 136 (May 5, 2020).

Trial court erred in convicting defendant of possession of a firearm by a convicted felon because, while there was sufficient evidence that the firearm found underneath the driver's seat was within defendant's dominion and control, it was unreasonable for the investigating officer to conduct a protective sweep of the vehicle, which had been pulled over for a defective fog light, when defendant made no furtive movements, was cooperative and polite, and immediately exited the vehicle at the officer's request, and no information or instructions were transmitted between a second officer and the investigating officer prior to his initiation of the search regarding the second officer's knowledge of defendant's possible gang affiliations. McArthur v. Commonwealth, 72 Va. App. 352, 845 S.E.2d 249, 2020 Va. App. LEXIS 218 (2020).

Sufficient evidence of constructive possession. - Evidence was sufficient to show constructive possession of a gun found behind the brake pedal of a vehicle where the defendant had six rounds of ammunition for the gun in his actual possession, notwithstanding his innocent explanations for his possession of ammunition. Loney v. Commonwealth, No. 1147-98-2 (Ct. of Appeals Mar. 2, 1999).

Evidence was sufficient to show constructive possession of a gun where the defendant conceded knowledge of the weapon by revealing to the arresting officer its presence and location; the defendant also conceded exercise of dominion and control when he admitted at trial that he had "probably" retrieved the gun from its hidden location and looked at it. Baker v. Commonwealth, No. 1142-00-3, 2001 Va. App. LEXIS 343 (Ct. of Appeals June 19, 2001).

The evidence clearly supported a finding that the defendant, a convicted felon, exercised dominion and control over a bag of capsules containing heroin and a firearm found on the floor on the passenger side of a vehicle, where the operator of the vehicle and the defendant, the sole passenger, were observed by police exchanging capsules and unidentified small items from the window of the car for cash and where, as police stopped the vehicle within minutes of such a transaction, the defendant furtively leaned forward and back very fast. Grier v. Commonwealth, 35 Va. App. 560, 546 S.E.2d 743, 2001 Va. App. LEXIS 297 (2001).

Where a detective saw defendant appear to drop something, heard something hit the floor, and saw a firearm on the floor near defendant, the evidence was sufficient to show that defendant possessed the firearm. Ellis v. Commonwealth, No. 2977-01-1, 2002 Va. App. LEXIS 427 (Ct. of Appeals July 30, 2002).

Even though defendant was not immediately in possession of a firearm, the evidence was sufficient to show he constructively possessed one in the home he ran into when he saw the police, as the homeowner testified that the gun found in the bucket at the time of defendant's arrest was not there when the homeowner left moments before defendant was arrested by police in the house. Payne v. Commonwealth, No. 3339-02-3, 2003 Va. App. LEXIS 616 (Ct. of Appeals Dec. 2, 2003).

Defendant's temporal and physical proximity to the firearm, the fact that a female was the only other adult living at the residence, and defendant's statement that the firearm was not hers, provided sufficient circumstantial evidence to permit a finding that the defendant possessed the firearm. McCray v. Commonwealth,, 2008 Va. App. LEXIS 220 (May 6, 2008).

Evidence was sufficient to convict defendant of possession of a firearm by a non-violent felon where a gun was found on a car seat next to him; his behavior appeared suspicious to a trained officer; he gave a false name; and DNA evidence indicated it was highly likely that he had handled the gun. Glasgow v. Commonwealth,, 2008 Va. App. LEXIS 529 (Dec. 9, 2008).

Trooper's observation of defendant's furtive movements was evidence of defendant's knowledge that a firearm was in the vehicle and his constructive possession of it. The trial court did not err in determining that the evidence was sufficient to find defendant guilty of possession of a firearm after having been convicted of a violent felony. Salone v. Commonwealth,, 2015 Va. App. LEXIS 312 (Nov. 3, 2015).

Evidence was sufficient to convict defendant of possession of a firearm by a convicted felon because the trial court's finding of constructive possession was supported by the evidence of defendant's proximity to the firearm; his movements towards the location of the firearm as the police officers approached; the gunshot residue test results showing gun primer residue on both of defendant's hands; his statements to police regarding his position in the car relative to the location of the firearm before the officers removed the firearm from under the floor mat of the front passenger seat and before they had told defendant where in the vehicle the firearm was located; and the trial court's rejection of defendant's self-serving testimony. Gordon v. Commonwealth, No. 1329-15-1, 2017 Va. App. LEXIS 12 (Jan. 24, 2017).

Evidence was sufficient to convict defendant of possession of a firearm by a felon as the evidence proved that defendant knew about, and knowingly possessed, a gun found in the trunk of his vehicle because, after a routine traffic stop, an officer found a semi-automatic handgun in the trunk of defendant's vehicle; he was the sole occupant of the vehicle at the time; after the officer found the gun, defendant immediately attempted to negotiate, asking whether the officer would let him go if he could get two more guns; defendant did not act surprised when the officer found the gun; and defendant called his girlfriend and, within earshot of the officer, told her that the officer found the gun and that he was going to jail. Watson v. Commonwealth, No. 1214-16-2, 2017 Va. App. LEXIS 157 (June 27, 2017).

Trial court did not err in denying defendant's motion to strike because a rational trier of fact could have found that defendant constructively possessed a firearm since he was aware of its presence and character and it was subject to his dominion and control; defendant was driving the car stopped by an officer, and thus, he was in close proximity to the firearm in the center console, a circumstance probative of constructive possession. Thomas v. Commonwealth, No. 1322-17-1, 2018 Va. App. LEXIS 254 (Oct. 2, 2018).

Because there was sufficient evidence of constructive possession of a firearm and a controlled substance, the circuit court did not err in denying defendant's motion to vacate for insufficient evidence; a reasonable fact-finder could find that defendant lived at the residence where the contraband was found because the police found mail addressed to him, he was the only person an investigator observed enter the residence with keys, and the police arrested him at the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Sufficient evidence of dominion and control. - Though not in defendant's residence, the gun was in an apartment that defendant frequented on a regular basis and often stayed overnight. He admitted placing the firearm there without asking the consent of the apartment's owner, and when asked by the apartment's owner what he planned to do with it, he stated that he was going to hold it until he decided to return it to the gun's owner. He thereafter had unrestricted access to the firearm. Therefore, the evidence presented at trial sufficiently proved his dominion and control over the firearm. Bond v. Commonwealth, No. 2476-95-1 (Ct. of Appeals Dec. 31, 1996).

Where, when questioned by police regarding whether there were any weapons in the room, defendant said there might possibly be a gun or knife under one of the beds, where the police immediately found the gun under one of the mattresses, lying directly beside a knife that appellant admitted was his, and where although appellant denied ownership of the gun, its presence with his knife and his earlier statement indicating his awareness of its presence permitted the inference "that appellant exercised the dominion and control necessary to show constructive possession," the evidence of his constructive possession of a firearm was sufficient to support his conviction for grand larceny of the firearm and possession of a firearm by a convicted felon. Archer v. Commonwealth, 26 Va. App. 1, 492 S.E.2d 826 (1997).

Evidence was sufficient to support finding that defendant exercised dominion and control over drugs and firearm found hidden together near his feet, under box spring of bed. Mosley v. Commonwealth, No. 2477-98-3 (Ct. of Appeals Dec. 7, 1999).

Where defendant was traveling alone, it was reasonable to concluded that he was aware of the firearm protruding from under the front seat of the vehicle that he was driving and that it was subject to his dominion and control. Shelton v. Commonwealth, No. 3012-03-2, 2005 Va. App. LEXIS 87 (Ct. of Appeals Mar. 1, 2005).

Because defendant occupied a dwelling in which a firearm was found, admitted knowledge of the presence of the gun in the house, and possessed the trigger lock keys, which rendered the firearm subject to defendant's dominion and control, the evidence was sufficient to find that defendant constructively possessed the firearm; accordingly, the evidence was also sufficient to convict defendant of possession of a firearm after having been convicted of a felony and possession of a firearm while in possession of drugs. Herndon v. Commonwealth,, 2009 Va. App. LEXIS 129 (Mar. 24, 2009).

Defendant was properly convicted of possession of a firearm by a felon in violation of § 18.2-308.2 , because the weapon lay on a console between the driver's seat where defendant sat and his passenger. Although the passenger owned both the vehicle and the weapon, defendant knew it was there and his access to it was unrestricted. Smallwood v. Commonwealth, 278 Va. 625 , 688 S.E.2d 154, 2009 Va. LEXIS 105 (2009).

Evidence was sufficient to support defendant's conviction for possession of a firearm by a convicted felon, although defendant raised the affirmative defense of good faith reliance on a probation officer's assurance that defendant could keep firearms in a gun cabinet at home if the cabinet was locked, because defendant, a convicted felon, possessed the key to a locked gun cabinet containing firearms and the trial court clearly did not believe defendant's testimony concerning the content of the conversation with the probation officer where another probation officer testified that convicted felons were advised under the office's former policy that they could keep firearms in their homes only if they did not have access to the key used to lock the firearms. Torian v. Commonwealth,, 2010 Va. App. LEXIS 193 (May 11, 2010).

In a prosecution on a charge of possessing a firearm after having been convicted of a felony, in violation of § 18.2-308.2 , the evidence was sufficient to prove that defendant owned the property where the guns were found jointly with his girlfriend on the date of the search as his name was provided when the property was listed for sale, the girlfriend made attempts to contact defendant when the police arrived to execute the search warrant, and defendant exercised dominion and control over the premises where the guns were found. Redmond v. Commonwealth, 57 Va. App. 254, 701 S.E.2d 81, 2010 Va. App. LEXIS 446 (2010).

Although the evidence did not establish defendant's actual possession of a firearm, the evidence was sufficient for the trial court to conclude that defendant constructively possessed the firearm, because it was subject to his dominion and control. Salone v. Commonwealth,, 2015 Va. App. LEXIS 312 (Nov. 3, 2015).

Evidence was sufficient for the circuit court to find that defendant constructively possessed the two firearms discovered by a detective because the guns were in a bag on the front passenger seat of the vehicle that defendant was driving and within his dominion and control; defendant's girlfriend testified that she owned the vehicle and that defendant frequently drove it. Raspberry v. Commonwealth, 71 Va. App. 19, 833 S.E.2d 894, 2019 Va. App. LEXIS 241 (2019).

Insufficient evidence of dominion and control. - Evidence failed to prove beyond a reasonable doubt that appellant knowingly and intentionally exercised dominion and control over weapon at the time charged in the indictment. The evidence disclosed that appellant worked in a small office where a gun had been kept at an undetermined time. The gun belonged to one of the owners of the grill and was kept for the benefit of the night mangers. No evidence proved that appellant was a night manager. The evidence revealed that the office in which appellant worked when he was on the premises was one of three places the gun may have been kept, but it was not shown to have been in the office on or about the date of appellant's arrest. Flowers v. Commonwealth, No. 0128-97-1 (Ct. of Appeals Jan. 27, 1998).

Because the circumstances did not exclude a reasonable hypothesis that someone else placed gun in car, unbeknownst to defendant, the trial court was plainly wrong in finding the evidence sufficient as matter of law to support the conviction. Branch v. Commonwealth, No. 1077-01-2, 2002 Va. App. LEXIS 273 (Ct. of Appeals May 7, 2002).

Where defendant was convicted of possession of a firearm by a convicted felon, there was insufficient evidence that defendant constructively possessed the weapon that was hidden under the floor mat of the car beneath where defendant was seated; there was no evidence that defendant owned or had ever used the gun, the bulge from the gun was difficult to see at night, there was no evidence as to whether defendant would have been able to feel the gun under the mat, and defendant made no furtive movements toward the gun. Gadsden v. Commonwealth,, 2005 Va. App. LEXIS 459 (Nov. 15, 2005).

Search and seizure based on anonymous tip held lawful. - Trial court properly denied defendant's motion to suppress firearm seized from him through a warrantless pat down, despite the fact that the involved officers' suspicion that defendant was shooting at a vehicle was provided by an anonymous tip, as: (1) the police dispatcher and the investigating officers had objective reasons to believe the caller was reliable; (2) the caller's continued presence on the telephone as the encounter unfolded established this reliability; and (3) the caller provided updated information at the time the officers actually approached defendant, and the officers corroborated this information. Williams v. Commonwealth, No. 0783-04-1, 2005 Va. App. LEXIS 129 (Ct. of Appeals Mar. 29, 2005).

Probable cause to arrest. - Granting of defendant's motion to suppress was improper because a reasonable officer had probable cause to arrest defendant for the possession of a firearm after having been convicted of a felony. The officer had knowledge that defendant was a felon convicted of a drug offense; that defendant was a passenger in the vehicle driven by a female; that during the search of that vehicle based on an alert by a drug dog, a gun was discovered in a bag containing men's clothing that appeared to fit defendant; and that the female acknowledged that she knew that defendant owned a gun, but that she did not know it was in the vehicle in which she was transporting defendant's belongings. Commonwealth v. Sanford,, 2011 Va. App. LEXIS 206 (June 21, 2011).

Sufficient evidence to prove attempt to purchase. - Defendant attempted to purchase a firearm in contravention of subdivision A ii where defendant visited a gun shop, selected a gun he wanted to buy, and submitted the required Virginia Criminal History Check Form; submission of the form was a direct act done toward the completion of a felony, which was not materially different from the payment of the sale price of the gun. Both acts moved beyond arranging the means to purchase the gun and effectively invoked action on the part of the vendor, thereby commencing the consummation of the intended unlawful act. Parsons v. Commonwealth, 32 Va. App. 576, 529 S.E.2d 810, 2000 Va. App. LEXIS 426 (2000).

Conviction for attempting to knowingly and intentionally possess or transport a firearm after having been convicted of a felony was supported by sufficient evidence where appellant picked out a gun, filled out the paperwork for a background check, and paid for the gun. Appellant's actions went beyond mere preparation and constituted a direct act towards the commission of the crime, and cancellation of the purchase did not negate appellant's criminal culpability. Watkins v. Commonwealth, 62 Va. App. 263, 746 S.E.2d 77, 2013 Va. App. LEXIS 224 (2013).

Sufficient evidence of concealment. - Gun located under front passenger seat of vehicle was properly determined to be "hidden from common observation." Williams v. Commonwealth, No. 1156-98-1 (Ct. of Appeals Sept. 21, 1999).

CIRCUIT COURT OPINIONS

Constitutionality. - This section, prohibiting persons convicted of a felony as a juvenile from possessing firearms until age 29, did not violate the equal protection and due process clauses of the United States Constitution, nor was its mandatory sentence scheme illegal. The age classification was rationally related to the legitimate governmental purpose of keeping firearms out of the hands of felons and extending the prohibition to those who committed a felony as a juvenile. The mandatory sentencing provision was not inconsistent with its classification as a Class 6 felony. Commonwealth v. Pulley, 54 Va. Cir. 461, 2001 Va. Cir. LEXIS 203 (Norfolk 2001).

Simultaneous prosecutions not barred. - Requirements for proving a concealed weapons misdemeanor under § 18.2-308 were distinct from the requirements of § 18.2-308.2 , although the two charges were commenced at the same or concurrent time, and the prosecutions were not sequential in nature simply because the misdemeanor was more amenable to an expeditious resolution than the felony; thus, no violation of § 19.2-294 resulted. Commonwealth v. Turner, 62 Va. Cir. 209, 2003 Va. Cir. LEXIS 312 (Charlottesville 2003).

Double jeopardy violation. - Commonwealth could introduce the same evidence relied on in the prosecution of first degree murder and use of a firearm in the commission of a felony in a prosecution for possession of a firearm by a non-violent felon because the latter charge was not a subsequent prosecution for double jeopardy purposes where defendant sought a severance. The possession charge required proof of facts not necessarily decided in defendant's favor in the prior adjudication, which resulted in an acquittal. Commonwealth v. Walker, 86 Va. Cir. 405, 2013 Va. Cir. LEXIS 42 (Norfolk Apr. 8, 2013).

Trial court erred in finding defendant guilty of possession of a firearm by a convicted felon, possession of a concealed weapon by a convicted felon, and possession of ammunition by a convicted felon because the offenses violated the double jeopardy clause and constituted a single offense where they fell under the same statutory provision and related to a single occurrence. Commonwealth v. Deal, 94 Va. Cir. 354, 2016 Va. Cir. LEXIS 146 (Norfolk Oct. 7, 2016).

Double jeopardy. - Conviction under the Firearm Use Statut requires that the Commonwealth prove the defendant committed one of the listed felonies, and a conviction for possession of a firearm by a felon does not require that a felony be committed while possessing the firearm but that the defendant be a convicted felon; although a defendant acquitted of an underlying felony cannot be convicted of using a firearm in the commission of a felony he may nevertheless be convicted under the Firearm Possession Statute. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Although the Firearm Possession Statute prohibits felons from possessing actual firearms, a witness observing a weapon, combined with an indication that the firearm might be used, can be sufficient to prove that a defendant possessed an actual firearm; the Firearm Use Statute, by contrast, only requires that the victim reasonably believed that the defendant had an actual firearm while committing the felony. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Virginia's double jeopardy statute did not bar the prosecution of defendant for illegally possessing a firearm when defendant was earlier convicted for possessing the same firearm because defendant's separate acts, or instances of possession, on different dates warranted separate prosecutions and punishment as each act created a new danger to members of the community. Commonwealth v. Varona, 105 Va. Cir. 1, 2020 Va. Cir. LEXIS 90 (Norfolk Jan. 27, 2020).

No double jeopardy violation. - Defendant's conviction for possessing a firearm as a convicted felon did not invoke double jeopardy because in contrast to using a firearm to commit a felony, of which he was acquitted, his possession conviction was based on the fact that there was sufficient evidence he possessed a firearm; the fact that similar evidence was used to prove the two crimes was not unique, and the fact that evidence for both charges consisted of witness testimony did not invoke Double Jeopardy Clause concerns. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Commonwealth was not barred from prosecuting defendant for possession of a firearm by a convicted felon despite his earlier conviction of unlawfully carrying a concealed weapon arising from the same instance because the legal disability of being adjudicated a felon that attended and was integral to the respective acts was significantly different. Commonwealth v. Evans, 101 Va. Cir. 477, 2018 Va. Cir. LEXIS 711 (Norfolk Apr. 18, 2018).

Collateral estoppel. - Defendant's trial for possession of a firearm after having been convicted of a felony was barred by collateral estoppel after his acquittal of murder, use of a firearm in the commission of a felony, and the willful discharge of a firearm within 1,000 feet of an elementary school; in light of the standard malice instruction that was given, the only way a rational juror could have acquitted defendant was to have found a failure by the Commonwealth to prove that defendant was the gunman. Commonwealth v. Cappell, 58 Va. Cir. 324, 2002 Va. Cir. LEXIS 149 (Rockingham County 2002).

Commonwealth was not collaterally estopped from pursuing a conviction against defendant for possession of a weapon as a convicted felon because he failed to prove there were no other issues on which a rational jury could have grounded its verdict; the jury could have found that although defendant was present during the encounter and possessed a firearm, the Commonwealth failed to prove beyond a reasonable doubt one or more of the elements of robbery. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

"Convicted felon" status. - Defendant's motion to strike the State's evidence as to count 2 of the indictment charging possession of a firearm by a convicted felon, in violation of § 18.2-308.2 , was granted, as he was not a convicted felon, pursuant to § 18.2-251 on the date said charge was alleged in the information; moreover, the fact that he might have later been found to have violated his probation had no retroactive effect since a conviction occurred only after the court conducted a hearing, received evidence of a violation, and then entered a final appealable judgment of conviction. Commonwealth v. Cross, 71 Va. Cir. 272, 2006 Va. Cir. LEXIS 120 (Portsmouth 2006).

Restoration of civil rights did not include right to possess and transport firearms. - In a case in which a convicted felon petitioned for a permit to possess and carry firearms, while the Governor of Virginia had restored the convicted felon's rights to vote, hold public office, serve on a jury and to be a notary public, the order expressly declined to restore the convicted felon's right to possess firearms. Contrary to the convicted felon's argument, the term civil rights, as used in subsection C of § 18.2-308.2 , did not encompass all civil rights, notwithstanding the fact that in his case, the Governor excluded the restoration of his civil right to possess and transport firearms. Chisholm v. Commonwealth,, 2009 Va. Cir. LEXIS 116 (Fairfax County Oct. 20, 2009).

Good cause shown for reinstatement of right to bear arms. - Petitioner was entitled to the restoration of the petitioner's firearms rights because the petitioner demonstrated both the petitioner's rehabilitation and good cause for granting the petition to restore the right to possess firearms. Furthermore, the petitioner sought restoration for several different purposes, each of which was legitimate. Rudolph v. Commonwealth, 100 Va. Cir. 481, 2017 Va. Cir. LEXIS 870 (Fairfax County Apr. 24, 2017).

Petitioner was entitled to the reinstatement of the petitioner's right to purchase, possess, and carry firearms, ammunition, and/or stun weapons, after the Governor of Virginia had restored the petitioner's civil rights, because the court in a multi-factor analysis found that the petitioner demonstrated good cause for the court to restore the petitioner's right to bear firearms and that society was not placed at undue risk by the restoration of the petitioner's right to bear firearms. In re McGregor, 100 Va. Cir. 352, 2018 Va. Cir. LEXIS 691 (Fairfax County Nov. 27, 2018).

CIRCUIT COURT OPINIONS

Circuit court found that a petitioner, who was once convicted of taking indecent liberties with a child, was not entitled to have the petitioner's firearms rights restored after the Governor of Virginia restored the petitioner's civil rights because the Virginia General Assembly's determination that the petitioner was a continued threat to public safety who had to remain on the Virginia Sex Offender Registry for the rest of the petitioner's life overrode any good cause that the petitioner may have demonstrated. Stoddart v. Commonwealth,, 2021 Va. Cir. LEXIS 4 (Fairfax County Jan. 8, 2021).

Concealed handgun permit denied. - Petitioner's application for a concealed handgun permit was denied because petitioner was disqualified from obtaining a concealed handgun permit until at least 2028; section applied to felons convicted as adults and applied to petitioner because he had been convicted of a felony after achieving the age of majority, and no good cause to restore petitioner's right to obtain a concealed handgun permit had been shown. In re Permit to Carry a Concealed Handgun,, 2017 Va. Cir. LEXIS 295 (Newport News Oct. 4, 2017).

Sufficient evidence of possession. - Defendant was properly convicted of possession of a firearm by a convicted violent felon because the Commonwealth proved, beyond a reasonable doubt, that defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control; the firearm was in plain view, and when the police alerted defendant to the presence of the firearm in the vehicle that he had been driving he expressed no surprise. Commonwealth v. Mason, 94 Va. Cir. 331, 2016 Va. Cir. LEXIS 141 (Norfolk Oct. 5, 2016).

Evidence at trial was sufficient to find defendant guilty of possession of a firearm by a convicted felon because the victim determined that the firearm he observed defendant brandishing was a "Glock," and the victim further testified that defendant pointed the weapon directly at him, implying that defendant could shoot him. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

"Convicted felon" status. - Orders the Commonwealth submitted were sufficient to prove that defendant had been convicted of a prior felony for purposes of the § 18.2-308.2 charge where defendant did not offer any evidence that contradicted the presumption as to their accuracy, and one commitment order could be reasonably read to mean that the juvenile court had found him guilty for at least the felony charge of grand larceny. Commonwealth v. Harris,, 2018 Va. Cir. LEXIS 24 (Newport News Feb. 27, 2018).

Prior violent felony status. - Court refused to find that defendant was convicted of a violent felony where the parole violation orders did not list the petition numbers or what specific convictions were violated, and although it was probable that he had been convicted of a burglary charge, the court was unwilling and unable to make such an assumption, without competent evidence to rely on, when an individual's liberty was at stake. Commonwealth v. Harris,, 2018 Va. Cir. LEXIS 24 (Newport News Feb. 27, 2018).

Duress or necessity defense. - Commonwealth's motion in limine requesting that defendant's assertion of a duress or necessity defense be refused was denied because duress/necessity was a matter for the jury; the facts could satisfy the factors for a defense of duress or necessity upon consideration by a reasonable jury because defendant took a firearm that was pointed at him and placed it in his trunk, left the scene, subsequently returned, and immediately notified law enforcement upon his return. Commonwealth v. Townsend, 100 Va. Cir. 283, 2018 Va. Cir. LEXIS 619 (Chesapeake Nov. 5, 2018).

§ 18.2-308.2:01. Possession or transportation of certain firearms by certain persons.

  1. It shall be unlawful for any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence to knowingly and intentionally possess or transport any assault firearm or to knowingly and intentionally carry about his person, hidden from common observation, an assault firearm.
  2. It shall be unlawful for any person who is not a citizen of the United States and who is not lawfully present in the United States to knowingly and intentionally possess or transport any firearm or to knowingly and intentionally carry about his person, hidden from common observation, any firearm. A violation of this section shall be punishable as a Class 6 felony.
  3. For purposes of this section, "assault firearm" means any semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock.

    (1993, c. 674; 2003, c. 976; 2004, cc. 347, 995; 2008, c. 408.)

The 2003 amendments. - The 2003 amendment by c. 976 substituted "that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20" for "which expels a projectile by action of an explosion and is equipped at the time of the offense with a magazine which will hold more than twenty" in the last paragraph.

The 2004 amendments. - The 2004 amendment by c. 347 substituted "certain persons" for "aliens" in the section catchline and inserted the present second sentence in the first paragraph.

The 2004 amendment by c. 995 deleted the last sentence in the first paragraph which pertained to the forfeiture and disposal of any firearm possessed, transported, or carried in violation of this section.

The 2008 amendments. - The 2008 amendment by c. 408 designated the existing paragraphs as subsections A through C.

CASE NOTES

Construction. - Definition of "firearm" is the same under both Va. Code Ann. §§ 18.2-308.2:01 and 18.2-308.2 , because both reflect the General Assembly's determination that certain individuals are unfit to possess firearms. Adjei v. Commonwealth, 63 Va. App. 727, 763 S.E.2d 225, 2014 Va. App. LEXIS 318 (2014).

Evidence sufficient to support conviction. - Defendant's conviction for possession of a firearm was affirmed because the evidence was sufficient to prove that the item defendant possessed was an instrument that was designed, made, and intended to fire or expel a projectile by means of an explosion; proof of operability was not required to establish that the weapon was a "firearm" within the purview of subsection B. Adjei v. Commonwealth, 63 Va. App. 727, 763 S.E.2d 225, 2014 Va. App. LEXIS 318 (2014).

§ 18.2-308.2:1. Prohibiting the selling, etc., of firearms to certain persons; penalties.

Any person who sells, barters, gives, or furnishes, or has in his possession or under his control with the intent of selling, bartering, giving, or furnishing, any firearm to any person he knows is prohibited from possessing or transporting a firearm pursuant to § 18.2-308.1:1 , 18.2-308.1:2 , or 18.2-308.1:3 , subsection B of § 18.2-308.1:4 , § 18.2-308.1:6 or 18.2-308.2 , subsection B of § 18.2-308.2:01 , or § 18.2-308.7 is guilty of a Class 4 felony.

Any person who sells, barters, gives, or furnishes, or has in his possession or under his control with the intent of selling, bartering, giving, or furnishing, any firearm to any person he knows is prohibited from purchasing, possessing, or transporting a firearm pursuant to § 18.2-308.1:7 or 18.2-308.1:8 is guilty of a Class 1 misdemeanor.

However, this prohibition shall not be applicable when the person convicted of the felony or misdemeanor, adjudicated delinquent, or acquitted by reason of insanity has (i) been issued a permit pursuant to subsection C of § 18.2-308.2 or been granted relief pursuant to subsection B of § 18.2-308.1:1 or § 18.2-308.1:2 or 18.2-308.1:3 ; (ii) been pardoned or had his political disabilities removed in accordance with subsection B of § 18.2-308.2 ; or (iii) obtained a permit to ship, transport, possess, or receive firearms pursuant to the laws of the United States.

(1988, c. 327; 1990, c. 692; 1993, cc. 467, 494, 882, 926; 2004, c. 995; 2008, c. 408; 2011, c. 775; 2013, c. 797; 2020, cc. 887, 888, 1173, 1221, 1260; 2021, Sp. Sess. I, c. 555.)

Editor's note. - Acts 2020, cc. 887 and 888, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, cl. 3 provides: "That the Supreme Court shall create standard forms to implement the intent of this act."

Acts 2020, c. 1173, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1173, cl. 4 provides: "That the Board of Counseling, Board of Medicine, Board of Nursing, and Board of Psychology shall notify all licensees of the existence of the Virginia Voluntary Do Not Sell Firearms List created by this act within 60 days after the effective date of this act."

Acts 2020, c. 1173, cl. 5 provides: "That the provisions of this act shall become effective on July 1, 2021."

Acts 2020, cc. 1221 and 1260, cl. 2 provides: "That any petition for a protective order promulgated by the Executive Secretary of the Supreme Court of Virginia shall include a provision where the petitioner may indicate whether the petitioner knows or has reason to know that the respondent owns or otherwise possesses any firearms."

Acts 2020, cc. 1221 and 1260, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2021, c. 555, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 995 deleted the last sentence which pertained to the forfeiture and disposal of firearms sold, etc. in violation of this section.

The 2008 amendments. - The 2008 amendment by c. 408 inserted "subsection B of § 18.2-308.2:01 " and made a minor stylistic change.

The 2011 amendments. - The 2011 amendment by c. 775 inserted "been granted relief pursuant to" in clause (i) of the second sentence.

The 2013 amendments. - The 2013 amendment by c. 797 inserted "18.2-308.1:2, 18.2-308.1:3 ," and substituted "Class 4 felony" for "Class 6 felony" in the first sentence; and inserted "or § 18.2-308.1:2 or 18.2-308.1:3 " at the end of clause (i) of the second sentence.

The 2020 amendments. - The 2020 amendments by cc. 887 and 888 are identical, and in the first sentence, inserted "18.2-308.1:6, or"; and made stylistic changes.

The 2020 amendment by c. 1173, effective July 1, 2021, added subsection B; and made stylistic changes.

The 2020 amendments by cc. 1221 and 1260 are identical, and inserted "subsection B of § 18.2-308.1:4 " in the first sentence, and made related changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, c. 555, effective July 1, 2021, deleted the subsection A designation; added the second paragraph; inserted "or misdemeanor" in the third paragraph; and deleted subsection B.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 12.

CASE NOTES

Convicted felon must take affirmative action to restore rights. - A convicted felon in Virginia retains the civil disabilities resulting from his conviction until he himself takes affirmative action to have his civil rights restored. Almond v. United States, 854 F. Supp. 439 (W.D. Va. 1994).

Sufficiency of evidence. - Evidence was sufficient to support defendant's convictions for larceny of a firearm, larceny with intent to sell, and sale of a firearm to a felon. The trial court determined the evidence that defendant stole a handgun from its owner and sold it to a buyer was proved beyond a reasonable doubt, and the record in the case showed that a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. Ridley v. Commonwealth, No. 0061-16-1, 2016 Va. App. LEXIS 323 (Ct. of Appeals Nov. 29, 2016).

§ 18.2-308.2:2. Criminal history record information check required for the transfer of certain firearms.

  1. Any person purchasing from a dealer a firearm as herein defined shall consent in writing, on a form to be provided by the Department of State Police, to have the dealer obtain criminal history record information. Such form shall include only the written consent; the name, birth date, gender, race, citizenship, and social security number and/or any other identification number; the number of firearms by category intended to be sold, rented, traded, or transferred; and answers by the applicant to the following questions: (i) has the applicant been convicted of a felony offense or a misdemeanor offense listed in § 18.2-308.1:8 or found guilty or adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act that if committed by an adult would be a felony or a misdemeanor listed in § 18.2-308.1:8 ; (ii) is the applicant subject to a court order restraining the applicant from harassing, stalking, or threatening the applicant's child or intimate partner, or a child of such partner, or is the applicant subject to a protective order; (iii) has the applicant ever been acquitted by reason of insanity and prohibited from purchasing, possessing, or transporting a firearm pursuant to § 18.2-308.1:1 or any substantially similar law of any other jurisdiction, been adjudicated legally incompetent, mentally incapacitated, or adjudicated an incapacitated person and prohibited from purchasing a firearm pursuant to § 18.2-308.1:2 or any substantially similar law of any other jurisdiction, been involuntarily admitted to an inpatient facility or involuntarily ordered to outpatient mental health treatment and prohibited from purchasing a firearm pursuant to § 18.2-308.1:3 or any substantially similar law of any other jurisdiction, or been the subject of a temporary detention order pursuant to § 37.2-809 and subsequently agreed to a voluntary admission pursuant to § 37.2-805 ; and (iv) is the applicant subject to an emergency substantial risk order or a substantial risk order entered pursuant to § 19.2-152.13 or 19.2-152.14 and prohibited from purchasing, possessing, or transporting a firearm pursuant to § 18.2-308.1:6 or any substantially similar law of any other jurisdiction.
    1. No dealer shall sell, rent, trade, or transfer from his inventory any such firearm to any other person who is a resident of Virginia until he has (i) obtained written consent and the other information on the consent form specified in subsection A, and provided the Department of State Police with the name, birth date, gender, race, citizenship, and social security and/or any other identification number and the number of firearms by category intended to be sold, rented, traded, or transferred and (ii) requested criminal history record information by a telephone call to or other communication authorized by the State Police and is authorized by subdivision 2 to complete the sale or other such transfer. To establish personal identification and residence in Virginia for purposes of this section, a dealer must require any prospective purchaser to present one photo-identification form issued by a governmental agency of the Commonwealth or by the United States Department of Defense that demonstrates that the prospective purchaser resides in Virginia. For the purposes of this section and establishment of residency for firearm purchase, residency of a member of the armed forces shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post. A member of the armed forces whose photo identification issued by the Department of Defense does not have a Virginia address may establish his Virginia residency with such photo identification and either permanent orders assigning the purchaser to a duty post, including the Pentagon, in Virginia or the purchaser's Leave and Earnings Statement. When the photo identification presented to a dealer by the prospective purchaser is a driver's license or other photo identification issued by the Department of Motor Vehicles, and such identification form contains a date of issue, the dealer shall not, except for a renewed driver's license or other photo identification issued by the Department of Motor Vehicles, sell or otherwise transfer a firearm to the prospective purchaser until 30 days after the date of issue of an original or duplicate driver's license unless the prospective purchaser also presents a copy of his Virginia Department of Motor Vehicles driver's record showing that the original date of issue of the driver's license was more than 30 days prior to the attempted purchase. B. 1.  No dealer shall sell, rent, trade, or transfer from his inventory any such firearm to any other person who is a resident of Virginia until he has (i) obtained written consent and the other information on the consent form specified in subsection A, and provided the Department of State Police with the name, birth date, gender, race, citizenship, and social security and/or any other identification number and the number of firearms by category intended to be sold, rented, traded, or transferred and (ii) requested criminal history record information by a telephone call to or other communication authorized by the State Police and is authorized by subdivision 2 to complete the sale or other such transfer. To establish personal identification and residence in Virginia for purposes of this section, a dealer must require any prospective purchaser to present one photo-identification form issued by a governmental agency of the Commonwealth or by the United States Department of Defense that demonstrates that the prospective purchaser resides in Virginia. For the purposes of this section and establishment of residency for firearm purchase, residency of a member of the armed forces shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post. A member of the armed forces whose photo identification issued by the Department of Defense does not have a Virginia address may establish his Virginia residency with such photo identification and either permanent orders assigning the purchaser to a duty post, including the Pentagon, in Virginia or the purchaser's Leave and Earnings Statement. When the photo identification presented to a dealer by the prospective purchaser is a driver's license or other photo identification issued by the Department of Motor Vehicles, and such identification form contains a date of issue, the dealer shall not, except for a renewed driver's license or other photo identification issued by the Department of Motor Vehicles, sell or otherwise transfer a firearm to the prospective purchaser until 30 days after the date of issue of an original or duplicate driver's license unless the prospective purchaser also presents a copy of his Virginia Department of Motor Vehicles driver's record showing that the original date of issue of the driver's license was more than 30 days prior to the attempted purchase.
    2. The State Police shall provide its response to the requesting dealer during the dealer's request or by return call without delay. A dealer who fulfills the requirements of subdivision 1 and is told by the State Police that a response will not be available by the end of the dealer's fifth business day may immediately complete the sale or transfer and shall not be deemed in violation of this section with respect to such sale or transfer.
    3. Except as required by subsection D of § 9.1-132 , the State Police shall not maintain records longer than 30 days, except for multiple handgun transactions for which records shall be maintained for 12 months, from any dealer's request for a criminal history record information check pertaining to a buyer or transferee who is not found to be prohibited from possessing and transporting a firearm under state or federal law. However, the log on requests made may be maintained for a period of 12 months, and such log shall consist of the name of the purchaser, the dealer identification number, the unique approval number, and the transaction date.
    4. On the last day of the week following the sale or transfer of any firearm, the dealer shall mail or deliver the written consent form required by subsection A to the Department of State Police. The State Police shall immediately initiate a search of all available criminal history record information to determine if the purchaser is prohibited from possessing or transporting a firearm under state or federal law. If the search discloses information indicating that the buyer or transferee is so prohibited from possessing or transporting a firearm, the State Police shall inform the chief law-enforcement officer in the jurisdiction where the sale or transfer occurred and the dealer without delay.
    5. Notwithstanding any other provisions of this section, rifles and shotguns may be purchased by persons who are citizens of the United States or persons lawfully admitted for permanent residence but residents of other states under the terms of subsections A and B upon furnishing the dealer with one photo-identification form issued by a governmental agency of the person's state of residence and one other form of identification determined to be acceptable by the Department of Criminal Justice Services.
    6. For the purposes of this subsection, the phrase "dealer's fifth business day" does not include December 25.
    In addition, no dealer shall sell, rent, trade, or transfer from his inventory any assault firearm to any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence. Upon receipt of the request for a criminal history record information check, the State Police shall (a) review its criminal history record information to determine if the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law, (b) inform the dealer if its record indicates that the buyer or transferee is so prohibited, and (c) provide the dealer with a unique reference number for that inquiry.
  2. No dealer shall sell, rent, trade, or transfer from his inventory any firearm, except when the transaction involves a rifle or a shotgun and can be accomplished pursuant to the provisions of subdivision B 5, to any person who is a dual resident of Virginia and another state pursuant to applicable federal law unless he has first obtained from the Department of State Police a report indicating that a search of all available criminal history record information has not disclosed that the person is prohibited from possessing or transporting a firearm under state or federal law.

    To establish personal identification and dual resident eligibility for purposes of this subsection, a dealer shall require any prospective purchaser to present one photo-identification form issued by a governmental agency of the prospective purchaser's state of legal residence and other documentation of dual residence within the Commonwealth. The other documentation of dual residence in the Commonwealth may include (i) evidence of currently paid personal property tax or real estate tax or a current (a) lease, (b) utility or telephone bill, (c) voter registration card, (d) bank check, (e) passport, (f) automobile registration, or (g) hunting or fishing license; (ii) other current identification allowed as evidence of residency by 27 C.F.R. § 178.124 and ATF Ruling 2001-5; or (iii) other documentation of residence determined to be acceptable by the Department of Criminal Justice Services and that corroborates that the prospective purchaser currently resides in Virginia.

  3. If any buyer or transferee is denied the right to purchase a firearm under this section, he may exercise his right of access to and review and correction of criminal history record information under § 9.1-132 or institute a civil action as provided in § 9.1-135 , provided any such action is initiated within 30 days of such denial.
  4. Any dealer who willfully and intentionally requests, obtains, or seeks to obtain criminal history record information under false pretenses, or who willfully and intentionally disseminates or seeks to disseminate criminal history record information except as authorized in this section, shall be guilty of a Class 2 misdemeanor.
  5. For purposes of this section:

    "Actual buyer" means a person who executes the consent form required in subsection B or C, or other such firearm transaction records as may be required by federal law.

    "Antique firearm" means:

    1. Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;
    2. Any replica of any firearm described in subdivision 1 of this definition if such replica (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or (ii) uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade;
    3. Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol that is designed to use black powder, or a black powder substitute, and that cannot use fixed ammunition. For purposes of this subdivision, the term "antique firearm" shall not include any weapon that incorporates a firearm frame or receiver, any firearm that is converted into a muzzle-loading weapon, or any muzzle-loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breech-block, or any combination thereof; or
    4. Any curio or relic as defined in this subsection.

      "Assault firearm" means any semi-automatic center-fire rifle or pistol which expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock.

      "Curios or relics" means firearms that are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:

      1. Firearms that were manufactured at least 50 years prior to the current date, which use rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade, but not including replicas thereof;

      2. Firearms that are certified by the curator of a municipal, state, or federal museum that exhibits firearms to be curios or relics of museum interest; and

      3. Any other firearms that derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collectors' items, or that the value of like firearms available in ordinary commercial channels is substantially less.

      "Dealer" means any person licensed as a dealer pursuant to 18 U.S.C. § 921 et seq.

      "Firearm" means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

      "Handgun" means any pistol or revolver or other firearm originally designed, made and intended to fire single or multiple projectiles by means of an explosion of a combustible material from one or more barrels when held in one hand.

      "Lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

  6. The Department of Criminal Justice Services shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided by the Department of State Police pursuant to this section.
  7. The provisions of this section shall not apply to (i) transactions between persons who are licensed as firearms importers or collectors, manufacturers or dealers pursuant to 18 U.S.C. § 921 et seq.; (ii) purchases by or sales to any law-enforcement officer or agent of the United States, the Commonwealth or any local government, or any campus police officer appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; or (iii) antique firearms or curios or relics.
  8. The provisions of this section shall not apply to restrict purchase, trade, or transfer of firearms by a resident of Virginia when the resident of Virginia makes such purchase, trade, or transfer in another state, in which case the laws and regulations of that state and the United States governing the purchase, trade, or transfer of firearms shall apply. A National Instant Criminal Background Check System (NICS) check shall be performed prior to such purchase, trade, or transfer of firearms.
  9. All licensed firearms dealers shall collect a fee of $2 for every transaction for which a criminal history record information check is required pursuant to this section, except that a fee of $5 shall be collected for every transaction involving an out-of-state resident. Such fee shall be transmitted to the Department of State Police by the last day of the month following the sale for deposit in a special fund for use by the State Police to offset the cost of conducting criminal history record information checks under the provisions of this section.
  10. Any person willfully and intentionally making a materially false statement on the consent form required in subsection B or C or on such firearm transaction records as may be required by federal law shall be guilty of a Class 5 felony.
  11. Except as provided in § 18.2-308.2:1 , any dealer who willfully and intentionally sells, rents, trades, or transfers a firearm in violation of this section shall be guilty of a Class 6 felony. L1. Any person who attempts to solicit, persuade, encourage, or entice any dealer to transfer or otherwise convey a firearm other than to the actual buyer, as well as any other person who willfully and intentionally aids or abets such person, shall be guilty of a Class 6 felony. This subsection shall not apply to a federal law-enforcement officer or a law-enforcement officer as defined in § 9.1-101 , in the performance of his official duties, or other person under his direct supervision.
  12. Any person who purchases a firearm with the intent to (i) resell or otherwise provide such firearm to any person who he knows or has reason to believe is ineligible to purchase or otherwise receive from a dealer a firearm for whatever reason or (ii) transport such firearm out of the Commonwealth to be resold or otherwise provided to another person who the transferor knows is ineligible to purchase or otherwise receive a firearm, shall be guilty of a Class 4 felony and sentenced to a mandatory minimum term of imprisonment of one year. However, if the violation of this subsection involves such a transfer of more than one firearm, the person shall be sentenced to a mandatory minimum term of imprisonment of five years. The prohibitions of this subsection shall not apply to the purchase of a firearm by a person for the lawful use, possession, or transport thereof, pursuant to § 18.2-308.7 , by his child, grandchild, or individual for whom he is the legal guardian if such child, grandchild, or individual is ineligible, solely because of his age, to purchase a firearm.
  13. Any person who is ineligible to purchase or otherwise receive or possess a firearm in the Commonwealth who solicits, employs, or assists any person in violating subsection M shall be guilty of a Class 4 felony and shall be sentenced to a mandatory minimum term of imprisonment of five years.
  14. Any mandatory minimum sentence imposed under this section shall be served consecutively with any other sentence.
  15. All driver's licenses issued on or after July 1, 1994, shall carry a letter designation indicating whether the driver's license is an original, duplicate, or renewed driver's license.
  16. Prior to selling, renting, trading, or transferring any firearm owned by the dealer but not in his inventory to any other person, a dealer may require such other person to consent to have the dealer obtain criminal history record information to determine if such other person is prohibited from possessing or transporting a firearm by state or federal law. The Department of State Police shall establish policies and procedures in accordance with 28 C.F.R. § 25.6 to permit such determinations to be made by the Department of State Police, and the processes established for making such determinations shall conform to the provisions of this section.
  17. Except as provided in subdivisions 1 and 2, it shall be unlawful for any person who is not a licensed firearms dealer to purchase more than one handgun within any 30-day period. For the purposes of this subsection, "purchase" does not include the exchange or replacement of a handgun by a seller for a handgun purchased from such seller by the same person seeking the exchange or replacement within the 30-day period immediately preceding the date of exchange or replacement. A violation of this subsection is punishable as a Class 1 misdemeanor.
    1. Purchases in excess of one handgun within a 30-day period may be made upon completion of an enhanced background check, as described in this subsection, by special application to the Department of State Police listing the number and type of handguns to be purchased and transferred for lawful business or personal use, in a collector series, for collections, as a bulk purchase from estate sales, and for similar purposes. Such applications shall be signed under oath by the applicant on forms provided by the Department of State Police, shall state the purpose for the purchase above the limit, and shall require satisfactory proof of residency and identity. Such application shall be in addition to the firearms sales report required by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The Superintendent of State Police shall promulgate regulations, pursuant to the Administrative Process Act (§ 2.2-4000 et seq.), for the implementation of an application process for purchases of handguns above the limit. Upon being satisfied that these requirements have been met, the Department of State Police shall immediately issue to the applicant a nontransferable certificate, which shall be valid for seven days from the date of issue. The certificate shall be surrendered to the dealer by the prospective purchaser prior to the consummation of such sale and shall be kept on file at the dealer's place of business for inspection as provided in § 54.1-4201 for a period of not less than two years. Upon request of any local law-enforcement agency, and pursuant to its regulations, the Department of State Police may certify such local law-enforcement agency to serve as its agent to receive applications and, upon authorization by the Department of State Police, issue certificates immediately pursuant to this subdivision. Applications and certificates issued under this subdivision shall be maintained as records as provided in subdivision B 3. The Department of State Police shall make available to local law-enforcement agencies all records concerning certificates issued pursuant to this subdivision and all records provided for in subdivision B 3.
    2. The provisions of this subsection shall not apply to:
      1. A law-enforcement agency;
      2. An agency duly authorized to perform law-enforcement duties;
      3. A state or local correctional facility;
      4. A private security company licensed to do business within the Commonwealth;
      5. The purchase of antique firearms;
      6. A person whose handgun is stolen or irretrievably lost who deems it essential that such handgun be replaced immediately. Such person may purchase another handgun, even if the person has previously purchased a handgun within a 30-day period, provided that (i) the person provides the firearms dealer with a copy of the official police report or a summary thereof, on forms provided by the Department of State Police, from the law-enforcement agency that took the report of the lost or stolen handgun; (ii) the official police report or summary thereof contains the name and address of the handgun owner, a description of the handgun, the location of the loss or theft, the date of the loss or theft, and the date the loss or theft was reported to the law-enforcement agency; and (iii) the date of the loss or theft as reflected on the official police report or summary thereof occurred within 30 days of the person's attempt to replace the handgun. The firearms dealer shall attach a copy of the official police report or summary thereof to the original copy of the Virginia firearms transaction report completed for the transaction and retain it for the period prescribed by the Department of State Police;
      7. A person who trades in a handgun at the same time he makes a handgun purchase and as a part of the same transaction, provided that no more than one transaction of this nature is completed per day;
      8. A person who holds a valid Virginia permit to carry a concealed handgun;
      9. A person who purchases a handgun in a private sale. For purposes of this subdivision, "private sale" means a purchase from a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection of curios or relics or who sells all or part of such collection of curios and relics; or
      10. A law-enforcement officer. For purposes of this subdivision, "law-enforcement officer" means any employee of a police department or sheriff's office that is part of or administered by the Commonwealth or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth. (1989, c. 745; 1990, cc. 594, 692; 1991, cc. 515, 525, 716; 1992, cc. 637, 872; 1993, cc. 451, 461, 486, 493, 674; 1994, c. 624; 1997, c. 341; 1998, c. 844; 2002, c. 695; 2003, cc. 833, 976; 2004, cc. 354, 461, 837, 904, 922; 2005, cc. 578, 859; 2007, c. 509; 2008, cc. 854, 869; 2009, cc. 813, 840; 2011, c. 235; 2012, cc. 37, 257, 776; 2013, cc. 450, 662, 761, 774, 797; 2015, c. 759; 2016, cc. 697, 727; 2020, cc. 887, 888, 991, 992, 1111, 1112, 1173; 2021, Sp. Sess. I, cc. 31, 555.)

Editor's note. - At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection I to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

Acts 2020, cc. 887 and 888, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, cl. 3 provides: "That the Supreme Court shall create standard forms to implement the intent of this act."

Acts 2020, cc. 991 and 992, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 1111 and 1112, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1173, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1173, cl. 4 provides: "That the Board of Counseling, Board of Medicine, Board of Nursing, and Board of Psychology shall notify all licensees of the existence of the Virginia Voluntary Do Not Sell Firearms List created by this act within 60 days after the effective date of this act."

Acts 2020, c. 1173, cl. 5 provides: "That the provisions of this act shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, cc. 31 and 555, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1997 amendment added subdivision B 6.

The 1998 amendment, in subsection B.1, in the first sentence, in clause (ii), deleted "and received" following "requested," and inserted the language beginning "and is authorized" and ending "other such transfer."

The 2002 amendments. - The 2002 amendment by c. 695, in subdivision B 1, redesignated clauses (i) through (vii) as (a) through (g) respectively in the first paragraph and clauses (i) through (iii) as (1) through (3) respectively in the third paragraph; and added subdivision Q 2 g and made related changes.

The 2003 amendments. - The 2003 amendment by c. 833, in subsection G, rewrote the definition of "Antique firearm"; added the definition of "Curios or relics"; and substituted numerals for words in references to numbers and dollar amounts throughout the section.

The 2003 amendment by c. 976, in subsection G, substituted "single or multiple projectiles by action of an explosion of a combustible material" for "a projectile by action of an explosion" in the definition of "Assault firearm," substituted "will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material" for "which expels a projectile by action of an explosion" in the definition of "Firearm," and substituted "single or multiple projectiles by means of an explosion of a combustible material" for "a projectile by means of an explosion" in the definition of "Handgun"; and substituted numerals for words in references to numbers and dollar amounts throughout the section.

The 2004 amendments. - The 2004 amendment by c. 354, in subdivision B 1, in the first paragraph, inserted "or other communication authorized by" in clause (ii) in the first sentence, substituted "2001-5" for "79-7" in the third sentence, substituted "assigning the purchaser to a duty post in Virginia shall be the only other required" for "may be used as documentation of residence" in the fourth sentence, inserted the fifth sentence, and substituted "When" for "Additionally, when" in the last sentence and in the second paragraph, twice substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the last sentence; in subdivision B 2, substituted "request" for "call" in the first sentence and inserted "disqualifying" in the second sentence; deleted former subsection P, pertaining to the development of a standard form and posted notice of the firearms laws to be furnished to licensed firearms dealers by the Department of Education; and redesignated former subsection Q as present subsection P.

The 2004 amendment by c. 461 twice substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the last sentence of the second paragraph in subdivision B 1; deleted "which shall not be suspended in whole or in part nor shall the person be eligible for parole during that period" at the end of subsections M and N; and made a minor stylistic change.

The 2004 amendment by c. 837 twice substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the last sentence of the second paragraph in subdivision B 1; deleted clause (iv) of subsection I, which formerly read: "transactions in any county, city or town that has a local ordinance adopted prior to January 1, 1987, governing the purchase, possession, transfer, ownership, conveyance or transportation of firearms which is more stringent than this section"; and made related and minor stylistic changes.

The 2004 amendment by c. 904 twice substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the last sentence of the second paragraph in subdivision B 1; and added subdivisions P 2 h and P 2 i and made related changes.

The 2004 amendment by c. 922 twice substituted "United States Citizenship and Immigration Services" for "Immigration and Naturalization Service" in the last sentence of the second paragraph in subdivision B 1; in subsection C, in the first sentence, substituted "except when the transaction involves" for "other than" and inserted "and can be accomplished pursuant to the provisions of subdivision B 5"; inserted "in Virginia" in subsection D; inserted "curios or relics" in clause (iii) in subsection I; inserted subsection J; redesignated former subsection J as subsection J1; and substituted "11" for "eleven" in the first sentence of the last paragraph in subsection P.

The 2005 amendments. - The 2005 amendment by c. 578, substituted "subdivision 2 of this subsection" for "subdivision B 2 of this section" in the first paragraph of subdivision B 1; substituted "subdivision 1" for "subdivision B 1" twice in subdivision B 2; substituted "the Commonwealth" for "this Commonwealth" in subsection D; substituted "subdivision B 3" for "subdivision 3 of subsection B" twice in the second paragraph of subdivision P 1; added subdivision P 1 j; and made minor stylistic changes.

The 2005 amendment by c. 859 rewrote subsection A, in subdivision B 1, substituted "and the other information on the consent form" for "as," inserted "citizenship" preceding "and social security" in the first sentence, inserted "or on such firearm transaction records as may be required by federal law" in subsection K and made a minor stylistic change.

The 2007 amendments. - The 2007 amendment by c. 509 added the definition of "Actual buyer" in subsection G; and added subsection L1.

The 2008 amendments. - The 2008 amendments by cc. 854 and 869 are identical, and in subsection A, added clause (iii) and made related changes.

The 2009 amendments. - The 2009 amendments by cc. 813 and 840 are identical, and substituted "Commissioner of Behavioral Health and Developmental Services" for "Commissioner of Mental Health, Mental Retardation and Substance Abuse Services" in subdivision B 2.

The 2011 amendments. - The 2011 amendment by c. 235 inserted "including the Pentagon" in the fifth sentence in the first paragraph in subdivision B 1.

The 2012 amendments. - The 2012 amendments by cc. 37 and 257 are identical, and repealed subsection P, relating to the limitation on handgun purchases to no more than one per month.

The 2012 amendment by c. 776 inserted "or any campus police officer appointed under Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection I and subdivision P 2 j [now repealed], and made minor stylistic changes.

The 2013 amendments. - The 2013 amendments by cc. 450 and 662 are identical, and in subdivision B 1, deleted "shall be deemed to be the permanent duty post" preceding "of a member" and inserted "shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post" in the fifth sentence of the first paragraph.

The 2013 amendments by cc. 761 and 774 are identical, and added "to be served consecutively with any other sentence" at the end of the second sentence of subsection M and at the end of subsection N. Subsections M and N have been set out in the form above at the direction of the Virginia Code Commission.

The 2013 amendment by c. 797, in subsection M, substituted "Class 4 felony and sentenced to a mandatory minimum term of imprisonment of one year" for "Class 5 felony" at the end of the first sentence, and added the second sentence; inserted subsection O and redesignated former subsection O as P; and deleted former subsection P, which was previously repealed.

The 2015 amendments. - The 2015 amendment by c. 759 added subsection Q.

The 2016 amendments. - The 2016 amendment by c. 697, in subdivision B 1, deleted "To establish citizenship or lawful admission for a permanent residence for purposes of purchasing an assault firearm, a dealer shall require a prospective purchaser to present a certified birth certificate or a certificate of birth abroad issued by the United States State Department, a certificate of citizenship or a certificate of naturalization issued by the United States Citizenship and Immigration Services, an unexpired U.S. passport, a United States citizen identification card, a current voter registration card, a current selective service registration card, or an immigrant visa or other documentation of status as a person lawfully admitted for permanent residence issued by the United States Citizenship and Immigration Services" at the end of the second paragraph; and in subdivision B 5, deleted "proof of citizenship or status as a person lawfully admitted for permanent residence and" preceding "one photo-identification form."

The 2016 amendment by c. 727, in subdivision B 1, substituted "that demonstrates that the prospective purchaser resides in Virginia" for "and other documentation of residence. Except where the photo-identification was issued by the United States Department of Defense, the other documentation of residence shall show an address identical to that shown on the photo-identification form, such as evidence of currently paid personal property tax or real estate tax, or a current (a) lease, (b) utility or telephone bill, (c) voter registration card, (d) bank check, (e) passport, (f) automobile registration, or (g) hunting or fishing license; other current identification allowed as evidence of residency by Part 178.124 of Title 27 of the Code of Federal Regulations and ATF Ruling 2001-5; or other documentation of residence determined to be acceptable by the Department of Criminal Justice Services, that corroborates that the prospective purchaser currently resides in Virginia. Where the photo-identification was issued by the Department of Defense, permanent orders assigning the purchaser to a duty post in Virginia, including the Pentagon, shall be the only other required documentation of residence" in the second sentence, added the fourth sentence, and made minor stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 887 and 888 are identical, and in subsection A, added clause (iv) at the end; and made stylistic changes.

The 2020 amendments by cc. 991 and 992 are identical, and added subsection R.

The 2020 amendments by cc. 1111 and 1112 are identical, and in subsection A, added "or been the subject of a temporary detention order pursuant to § 37.2-809 and subsequently agreed to a voluntary admission pursuant to § 37.2-805 " at the end of clause (iii); in subdivision B 2, deleted the second through fifth sentences, which read: "If the criminal history record information check indicates the prospective purchaser or transferee has a disqualifying criminal record or has been acquitted by reason of insanity and committed to the custody of the Commissioner of Behavioral Health and Developmental Services, the State Police shall have until the end of the dealer's next business day to advise the dealer if its records indicate the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law. If not so advised by the end of the dealer's next business day, a dealer who has fulfilled the requirements of subdivision 1 may immediately complete the sale or transfer and shall not be deemed in violation of this section with respect to such sale or transfer. In case of electronic failure or other circumstances beyond the control of the State Police, the dealer shall be advised immediately of the reason for such delay and be given an estimate of the length of such delay. After such notification, the State Police shall, as soon as possible but in no event later than the end of the dealer's next business day, inform the requesting dealer if its records indicate the buyer or transferee is prohibited from possessing or transporting a firearm by state or federal law" and substituted "third" for "next" in the last sentence; in subdivision B 6, substituted "third" for "next"; in subsection C in the first paragraph, substituted "a dual resident of Virginia and another state pursuant to applicable federal law" for "not a resident of Virginia," deleted the last two sentences, which read: "The dealer shall obtain the required report by mailing or delivering the written consent form required under subsection A to the State Police within 24 hours of its execution. If the dealer has complied with the provisions of this subsection and has not received the required report from the State Police within 10 days from the date the written consent form was mailed to the Department of State Police, he shall not be deemed in violation of this section for thereafter completing the sale or transfer" and added the second paragraph; deleted subsection D, which read: "Nothing herein shall prevent a resident of the Commonwealth, at his option, from buying, renting or receiving a firearm from a dealer in Virginia by obtaining a criminal history record information check through the dealer as provided in subsection C"; redesignated former subsections E through J1 as subsections D through J; and made stylistic changes.

The 2020 amendment by c. 1173, effective July 1, 2021, in subdivision B 2, inserted "or is on the Voluntary Do Not Sell Firearms List established in Chapter 12 ( § 52-50 et seq.) of Title 52" in the second sentence [sentence is now deleted]; in subdivision B 6, substituted "does" for "shall"; in subsection I [now subsection H], substituted "antique firearms or curios or relics" for "antique firearms, curios or relics" in clause (iii); and made stylistic changes. Subdivision B 2 has been set out in the form above at the direction of the Virginia Code Commission.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 31, effective July 1, 2021, substituted "dealer's fifth business day" for "dealer's third business day" in subdivisions B 2 and 6.

The 2021 amendment by Sp. Sess. I, c. 555, effective July 1, 2021, in cl. (i) of subsection A, inserted "or a misdemeanor offense listed in § 18.2-308.1:8 " and "if committed by an adult" and "substituted "or a misdemeanor listed in § 18.2-308.1:8 " for "committed by an adult."

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, §§ 2, 12.

CASE NOTES

Purpose. - This section is a part of a statutory scheme reflecting a legislative purpose to interdict the availability and use of firearms by persons previously convicted of felony offenses. That purpose finds its justification from the lessons of common experience that possession of firearms by felons presents a high risk of harm to others. Mayhew v. Commonwealth, 20 Va. App. 484, 458 S.E.2d 305 (1995).

The specific legislative purpose underpinning subsection L of this section, consistent with the general legislative purpose of interdicting the availability and use of firearms by convicted felons, is to prohibit licensed firearms dealers from failing to make the appropriate criminal background check required by subsections B and C of this section. Mayhew v. Commonwealth, 20 Va. App. 484, 458 S.E.2d 305 (1995).

Exemptions. - The exemptions found in subsection I of this section are not negative elements of the offense that must be proven by the Commonwealth. Rather, they are circumstances, within the knowledge of the accused, which may be raised as statutory defenses to the charge that the dealer has unlawfully failed to obtain the criminal background check required by subsections B and C of this section. In short, these exemptions are affirmative defenses for which the accused has the burden of going forward with supporting evidence. Mayhew v. Commonwealth, 20 Va. App. 484, 458 S.E.2d 305 (1995).

In construing subsections I and L of this section, there is an implicit requirement that the application of the exemption found in the former is limited to circumstances where the dealer knows the purchaser is a police officer at the time of the sale. Mayhew v. Commonwealth, 20 Va. App. 484, 458 S.E.2d 305 (1995).

In order for firearms dealer to assert that his or her failure to conduct the requisite background check was permitted pursuant to clause I (ii) of this section, he or she must demonstrate actual knowledge that the exemption applied at the time of the sale. Mayhew v. Commonwealth, 20 Va. App. 484, 458 S.E.2d 305 (1995).

Limitation on consent form inquiries. - Subsection A of this section explicitly and unambiguously limits the inquiries of the consent form "only . . . to information required by subdivision B 1 [of this section]" and the federally mandated "firearms transaction record." Brooks v. Commonwealth, 19 Va. App. 563, 454 S.E.2d 3 (1995).

Information not required on consent form. - Neither subdivision B 1 of this section nor the referenced federal ATF Form 4473 and attendant regulations require information from a prospective firearms purchaser pertaining to criminal charges. Therefore, such information is not included in the "criminal history record" contemplated by the statute, is not "required" on the consent form, and is not subject to the criminal sanctions of subsection K of this section. Brooks v. Commonwealth, 19 Va. App. 563, 454 S.E.2d 3 (1995).

Conviction as juvenile. - The evidence established that the defendant gave a materially false response to the question of whether he had been convicted in any court of a crime for which the judge could have imprisoned him for more than one year where the defendant had been convicted of grand larceny, attempted grand larceny, petit larceny, possession of a firearm by one under the age of eighteen, attempted robbery and use of a firearm in the commission of a felony when he was seventeen years of age and it was clear that the judge could have imposed more than a one-year sentence for those convictions and, in fact, had imposed a sentence of twenty-four months to be served at a juvenile detention center. Kirby v. Commonwealth, No. 3015-99-2, 2000 Va. App. LEXIS 846 (Ct. of Appeals Dec. 28, 2000).

Commonwealth need not prove that materially false statement was made to a federally licensed firearm dealer. - Under plain language of this section, Commonwealth was not required to prove that defendant, who intentionally made a materially false statement on a criminal background investigation consent form required of prospective firearm purchasers, made the statement to a federally licensed firearms dealer. Adkins v. Commonwealth, 27 Va. App. 166, 497 S.E.2d 896 (1998).

Relationship to federal law. - Any conviction for violating the statute involves a sufficient use of physical force to qualify as a conviction for a "misdemeanor crime of domestic violence" as that term is used in 18 U.S.C.S. § 921(a)(33). Marshall v. Commonwealth, 69 Va. App. 648, 822 S.E.2d 389, 2019 Va. App. LEXIS 14 (2019).

Failure to prove defendant knew information to be false. - Defendant's conviction for a violation of subsection K of § 18.2-308.2:2 was inappropriate because there was no evidence to support a finding that he knew that he had been indicted when he signed the ATF form. The Commonwealth thus failed to prove an element of the crime. Smith v. Commonwealth, 282 Va. 449 , 718 S.E.2d 452, 2011 Va. LEXIS 220 (2011).

Construction with § 18.2-308.2 . - In this case, the trial court dismissed the indictment under this section, because the criminal history consent form did not comply with statutory requirements. Thus, the dismissal was not an acquittal for double jeopardy purposes, and double jeopardy did not bar prosecution of the defendant under § 18.2-308.2 . Dodson v. Commonwealth, 23 Va. App. 286, 476 S.E.2d 512 (1996).

Given that the prohibition of subsection A of § 18.2-308.2 is not limited to felonies that would be punished by a felony sentence in Virginia, logic dictates that the same construction of felony be applied for the purposes of establishing a conviction for a violation of subsection K of § 18.2-308.2:2 for making a materially false statement regarding a prior felony conviction. Cartagena v. Commonwealth, 68 Va. App. 202, 807 S.E.2d 223, 2017 Va. App. LEXIS 295 (Nov. 28, 2017).

Jurisdiction. - Suit brought by a man convicted of misdemeanor conviction of domestic violence as defined in the Gun Control Act of 1968, 18 U.S.C.S. § 922(g)(9), against the state police under subsection E of § 18.2-308.2:2 and § 9.1-135 , after his request to buy a firearm was rejected, was a civil action not an appeal of an administrative agency decision, thereby vesting appellate jurisdiction with the Supreme Court of Virginia rather than the Court of Appeals under § 17.1-405 . Foltz v. Dep't of State Police, 55 Va. App. 182, 684 S.E.2d 841, 2009 Va. App. LEXIS 510 (2009).

Standing to challenge statute. - Because any injury to plaintiffs, persons who wanted to purchase hand guns from out of state, resulted from decisions made by third parties rather than the application of the challenged laws to them directly, plaintiffs lacked standing to bring their Second Amendment challenges to 18 U.S.C.S. § 922(b)(3), 27 C.F.R. § 478.99 and § 18.2-308.2:2 , laws and a regulation that placed restriction on the interstate transfers of handguns. Lane v. Holder, 703 F.3d 668, 2012 U.S. App. LEXIS 26640 (4th Cir. Dec. 31, 2012), cert. denied, 134 S. Ct. 1273, 2014 U.S. LEXIS 1479, 188 L. Ed. 2d 296 (U.S. 2014).

Sale from own inventory shown. - Where evidence showed that defendant was operating the table under his business name, he exercised control and authority over the firearm and its display - this is so even if someone else owned the firearm - and defendant held the firearm for sale and negotiated the sale, accordingly, defendant was conducting a sale from his inventory as contemplated by the statute. Mayhew v. Commonwealth, 20 Va. App. 484, 458 S.E.2d 305 (1995).

Violation established. - Even though he claimed that he did not know he had been indicted, defendant made a false statement on a firearm purchase form, in violation of § 18.2-308.2:2 , because he declared on the form that he was not under indictment when he was on bail awaiting trial on a felony drug charge that had been pending for nearly a year and a half. Smith v. Commonwealth, 56 Va. App. 166, 692 S.E.2d 265, 2010 Va. App. LEXIS 168 (2010).

Evidence supported the trial court's finding that defendant willfully and intentionally made a false statement in violation of subsection K of § 18.2-308.2:2 because ATF Form 4473 issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives explicitly warned defendant that making a false statement constituted a crime, but despite that warning, defendant affirmatively declared he was not under indictment, while all along knowing he had no idea what the word "indictment" meant; by doing so, defendant displayed a deliberate disregard for its truth or falsity with a conscious purpose to avoid learning the truth, and if defendant did not know what an indictment was, he should not have affirmatively represented on the ATF Form that he was not under indictment. Smith v. Commonwealth, 57 Va. App. 319, 701 S.E.2d 826, 2010 Va. App. LEXIS 468 (Nov. 23, 2010).

Defendant intentionally and willfully provided false information on a firearm purchase form by checking a box indicating that she was not under indictment because she had been indicted for felony child abuse, entered a guilty plea, there was no formal adjudication of guilt, and she was on probation. She was neither convicted nor acquitted of child neglect when she filled out the firearm purchase form; therefore, she remained under indictment. Maldonado-Mejia v. Commonwealth, 287 Va. 49 , 752 S.E.2d 833, 2014 Va. LEXIS 6 (2014).

Record supported the trial court's conclusions that defendant knew that he was under indictment at the time that he completed the form and that he willfully and intentionally provided the false answer, as the evidence showed that defendant had gone to court and had the case continued to appoint a new attorney to represent him only 12 days before he attempted to buy the firearm. Parham v. Commonwealth, 64 Va. App. 560, 770 S.E.2d 204, 2015 Va. App. LEXIS 108 (2015).

Because the evidence established that defendant previously had been convicted of a felony under the laws of the State New York, it was sufficient to establish that he made a materially false statement on the state consent form when he denied having ever been so convicted; thus, the evidence was sufficient to convict defendant of falsifying a firearm consent form by making a materially false statement regarding a prior felony conviction. Cartagena v. Commonwealth, 68 Va. App. 202, 807 S.E.2d 223, 2017 Va. App. LEXIS 295 (Nov. 28, 2017).

Evidence was sufficient to support defendant's conviction for violating the statute because he made a materially false statement on ATF Form 4473 regarding whether he had ever been convicted in any court of a misdemeanor crime of domestic violence; defendant's prior conviction order for assault and battery of a family member, coupled with his statement that the incident involved his former spouse, established that he had previously been convicted of a misdemeanor crime of domestic violence. Marshall v. Commonwealth, 69 Va. App. 648, 822 S.E.2d 389, 2019 Va. App. LEXIS 14 (2019).

CIRCUIT COURT OPINIONS

Time limitations. - Pardoned felon's suit was untimely under this section as it was filed 31 days after his request to purchase a firearm was denied, even though he satisfied the two-step process for restoring his firearm rights in the Commonwealth of Virginia where he had received a New York certificate restoring his civil rights after he completed his sentence in New York and he had successfully petitioned the Virginia trial court for restoration of his firearm rights. Rodriguez v. Dep't of State Police,, 2013 Va. Cir. LEXIS 78 (Fairfax County July 31, 2013).

§ 18.2-308.2:3. Criminal background check required for employees of a gun dealer to transfer firearms; exemptions; penalties.

  1. No person, corporation, or proprietorship licensed as a firearms dealer pursuant to 18 U.S.C. § 921 et seq. shall employ any person to act as a seller, whether full-time or part-time, permanent, temporary, paid or unpaid, for the transfer of firearms under § 18.2-308.2 :2, if such employee would be prohibited from possessing a firearm under § 18.2-308.1:1 , 18.2-308.1:2 , or 18.2-308.1:3 , subsection B of § 18.2-308.1:4 , or § 18.2-308.1:6 , 18.2-308.1:7 , 18.2-308.1:8 , 18.2-308.2 , or 18.2-308.2:01 , or is an illegal alien, or is prohibited from purchasing or transporting a firearm pursuant to subsection A of § 18.2-308.1:4 or § 18.2-308.1:5 .
  2. Prior to permitting an applicant to begin employment, the dealer shall obtain a written statement or affirmation from the applicant that he is not disqualified from possessing a firearm and shall submit the applicant's fingerprints and personal descriptive information to the Central Criminal Records Exchange to be forwarded to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the applicant.
  3. Prior to August 1, 2000, the dealer shall obtain written statements or affirmations from persons employed before July 1, 2000, to act as a seller under § 18.2-308.2:2 that they are not disqualified from possessing a firearm. Within five working days of the employee's next birthday, after August 1, 2000, the dealer shall submit the employee's fingerprints and personal descriptive information to the Central Criminal Records Exchange to be forwarded to the Federal Bureau of Investigation (FBI) for the purpose of obtaining national criminal history record information regarding the request. C1. In lieu of submitting fingerprints pursuant to this section, any dealer holding a valid federal firearms license (FFL) issued by the Bureau of Alcohol, Tobacco and Firearms (ATF) may submit a sworn and notarized affidavit to the Department of State Police on a form provided by the Department, stating that the dealer has been subjected to a record check prior to the issuance and that the FFL was issued by the ATF. The affidavit may also contain the names of any employees that have been subjected to a record check and approved by the ATF. This exemption shall apply regardless of whether the FFL was issued in the name of the dealer or in the name of the business. The affidavit shall contain the valid FFL number, state the name of each person requesting the exemption, together with each person's identifying information, including their social security number and the following statement: "I hereby swear, under the penalty of perjury, that as a condition of obtaining a federal firearms license, each person requesting an exemption in this affidavit has been subjected to a fingerprint identification check by the Bureau of Alcohol, Tobacco and Firearms and the Bureau of Alcohol, Tobacco and Firearms subsequently determined that each person satisfied the requirements of 18 U.S.C. § 921 et seq. I understand that any person convicted of making a false statement in this affidavit is guilty of a Class 5 felony and that in addition to any other penalties imposed by law, a conviction under this section shall result in the forfeiture of my federal firearms license."
  4. The Department of State Police, upon receipt of an individual's record or notification that no record exists, shall submit an eligibility report to the requesting dealer within 30 days of the applicant beginning his duties for new employees or within 30 days of the applicant's birthday for a person employed prior to July 1, 2000.
  5. If any applicant is denied employment because of information appearing on the criminal history record and the applicant disputes the information upon which the denial was based, the Central Criminal Records Exchange shall, upon written request, furnish to the applicant the procedures for obtaining a copy of the criminal history record from the Federal Bureau of Investigation. The information provided to the dealer shall not be disseminated except as provided in this section.
  6. The applicant shall bear the cost of obtaining the criminal history record unless the dealer, at his option, decides to pay such cost.
  7. Upon receipt of the request for a criminal history record information check, the State Police shall establish a unique number for that firearm seller. Beginning September 1, 2001, the firearm seller's signature, firearm seller's number and the dealer's identification number shall be on all firearm transaction forms. The State Police shall void the firearm seller's number when a disqualifying record is discovered. The State Police may suspend a firearm seller's identification number upon the arrest of the firearm seller for a potentially disqualifying crime.
  8. This section shall not restrict the transfer of a firearm at any place other than at a dealership or at any event required to be registered as a gun show.
  9. Any person who willfully and intentionally requests, obtains, or seeks to obtain criminal history record information under false pretenses, or who willfully and intentionally disseminates or seeks to disseminate criminal history record information except as authorized by this section and § 18.2-308.2:2 , shall be guilty of a Class 2 misdemeanor.
  10. Any person willfully and intentionally making a materially false statement on the personal descriptive information required in this section shall be guilty of a Class 5 felony. Any person who offers for transfer any firearm in violation of this section shall be guilty of a Class 1 misdemeanor. Any dealer who willfully and knowingly employs or permits a person to act as a firearm seller in violation of this section shall be guilty of a Class 1 misdemeanor.
  11. There is no civil liability for any seller for the actions of any purchaser or subsequent transferee of a firearm lawfully transferred pursuant to this section.
  12. The provisions of this section requiring a seller's background check shall not apply to a licensed dealer.
  13. Any person who willfully and intentionally makes a false statement in the affidavit as set out in subdivision C 1 shall be guilty of a Class 5 felony.
  14. For purposes of this section: "Dealer" means any person, corporation or proprietorship licensed as a dealer pursuant to 18 U.S.C. § 921 et seq. "Firearm" means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material. "Place of business" means any place or premises where a dealer may lawfully transfer firearms. "Seller" means for the purpose of any single sale of a firearm any person who is a dealer or an agent of a dealer, who may lawfully transfer firearms and who actually performs the criminal background check in accordance with the provisions of § 18.2-308.2:2 . "Transfer" means any act performed with intent to sell, rent, barter, or trade or otherwise transfer ownership or permanent possession of a firearm at the place of business of a dealer. (2000, c. 794; 2002, c. 880; 2003, c. 976; 2016, cc. 48, 49; 2020, cc. 887, 888, 1173; 2021, Sp. Sess. I, c. 555.)

Editor's note. - Acts 2020, cc. 887 and 888, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 887 and 888, cl. 3 provides: "That the Supreme Court shall create standard forms to implement the intent of this act."

Acts 2020, c. 1173, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 1173, cl. 4 provides: "That the Board of Counseling, Board of Medicine, Board of Nursing, and Board of Psychology shall notify all licensees of the existence of the Virginia Voluntary Do Not Sell Firearms List created by this act within 60 days after the effective date of this act."

Acts 2020, c. 1173, cl. 5 provides: "That the provisions of this act shall become effective on July 1, 2021."

Acts 2021, Sp. Sess. I, c. 555, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendment by c. 880, in subsection A, substituted "18.2-308.1:2, 18.2-308.1:3 , 18.2-308.2 , or § 18.2-308.2:01 " for "through 18.2-308.1:7 , 18.2-308.2 , 18.2-308.2:01 " and added "or is prohibited from purchasing or transporting a firearm pursuant to § 18.2-308.1:4 or § 18.2-308.1:5 " to the end; inserted subsection C1; in subsection F, inserted "applicant shall bear the" and deleted "shall be borne by the applicant" following "record"; in subsection H, substituted "This section shall not restrict the" for "No" and deleted "shall be restricted by this section" from the end; substituted "is" for "shall be" near the end of subsections I and J and near the beginning of subsection K; and inserted present subsection M and redesignated former subsection M as present subsection N.

The 2003 amendments. - The 2003 amendment by c. 976 substituted "30" for "thirty" in subsection D; substituted "shall be" for "is" preceding "guilty" in subsections I, J and M; and substituted "will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material" for "which expels a projectile by action of an explosion" in the definition of "Firearm" in subsection N.

The 2016 amendments. - The 2016 amendments by cc. 48 and 49 are identical, and in subsection A, inserted "subsection B of § 18.2-308.1:4 ," and "subsection A of" preceding "18.2-308.1:4;" and made minor stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 887 and 888 are identical, and inserted "or 18.2-308.1:6 " in subsection A, and made a related change.

The 2020 amendment by c. 1173, effective July 1, 2021, inserted "18.2-308.1:7" in subsection A; in the definition for "Transfer" in subsection N, inserted "or" preceding "trade"; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I by c. 555, effective July 1, 2021, inserted "18.2-308.1:8" in subsection A.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, §§ 2, 12.

§ 18.2-308.2:4. Firearm verification check; penalty.

  1. For the purposes of this section:

    " Dealer " means any person licensed as a dealer pursuant to 18 U.S.C. § 921 et seq.

    " Department " means the Department of State Police.

    " Firearm " means any handgun, shotgun, or rifle that will or is designed to or may readily be converted to expel single or multiple projectiles by action of an explosion of a combustible material.

  2. A dealer who is receiving by sale, transfer, or trade a firearm from a person who is not a dealer may choose to obtain a verification check from the Department to determine if the firearm has been reported to a law-enforcement agency as lost or stolen. If a dealer chooses to obtain a verification check, the procedures in this section shall be followed.
  3. The person selling, transferring, or trading the firearm to the dealer shall present a valid photo identification issued by a state or federal governmental agency and shall consent in writing, on a form to be provided by the Department, to have the dealer obtain a verification check to determine if the firearm has been reported to a law-enforcement agency as lost or stolen. Such form shall include only the written consent; the name, address, birth date, gender, race, and verifiable government identification number on the photo identification presented by the person selling, transferring, or trading the firearm; and the serial number, caliber, make, and, if available, model of the firearm.
  4. A dealer shall (i) obtain written consent and identifying information on the consent form specified in subsection C; (ii) provide the Department with the serial number, caliber, make, and, if available, model of the firearm intended to be sold, traded, or transferred to the dealer; (iii) request a verification check by telephone or other manner authorized by the Department; and (iv) receive information from the Department as to whether the firearm has been reported to a law-enforcement agency as lost or stolen.

    To establish personal identification and residence for purposes of this section, a dealer shall require a prospective transferee to present one photo-identification form containing a verifiable identification number issued by a governmental agency of the Commonwealth, a similar photo-identification form from another state government or by the U.S. Department of Defense, or other documentation of residence determined acceptable by the Department.

  5. Upon receipt of the request for a verification check, the Department shall (i) query firearms databases to determine if the firearm has been reported to a law-enforcement agency as lost or stolen, (ii) inform the dealer if the firearm has been reported to a law-enforcement agency as lost or stolen, and (iii) provide the dealer with a unique response for that inquiry.

    The Department shall provide its response to the requesting dealer electronically or by return call without delay. If the verification check discloses that the firearm cannot be lawfully sold, transferred, or traded, the Department shall have until the end of the dealer's next business day to advise the dealer that its records indicate the firearm cannot be lawfully sold, transferred, or traded pursuant to state or federal law.

    In the case of electronic failure or other circumstances beyond the control of the Department, the dealer shall be advised immediately of the reason for such delay and be given an estimate of the length of such delay. After such notification, the Department shall, as soon as possible but in no event later than the end of the dealer's next business day, inform the requesting dealer if the firearm cannot be lawfully sold, transferred, or traded pursuant to state or federal law.

  6. The Department shall maintain a log of requests made for a period of 12 months from the date the request was made, consisting of the serial number, caliber, make, and, if available, model of the firearm; the dealer identification number; and the transaction date.
  7. The dealer shall maintain the consent form for a period of 12 months from the date of the transaction if the firearm is determined to be lost or stolen. If the firearm is determined not to be lost or stolen, the consent form shall be destroyed by the dealer within two weeks from the date of such determination.
  8. The Superintendent of State Police shall promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided pursuant to this section.
  9. The provisions of this section shall not apply to transactions between persons who are licensed as firearms importers, manufacturers, or dealers pursuant to 18 U.S.C. § 921 et seq.
  10. Any person who willfully and intentionally makes a material false statement on the consent form is guilty of a Class 1 misdemeanor.

    (2014, c. 821.)

Editor's note. - Acts 2014, c. 821, cl. 2 provides: "That the provisions of this act shall be effective January 1, 2015."

§ 18.2-308.2:5. Criminal history record information check required to sell firearm; penalty.

  1. No person shall sell a firearm for money, goods, services or anything else of value unless he has obtained verification from a licensed dealer in firearms that information on the prospective purchaser has been submitted for a criminal history record information check as set out in § 18.2-308.2:2 and that a determination has been received from the Department of State Police that the prospective purchaser is not prohibited under state or federal law from possessing a firearm or such sale is specifically exempted by state or federal law. The Department of State Police shall provide a means by which sellers may obtain from designated licensed dealers the approval or denial of firearm transfer requests, based on criminal history record information checks. The processes established shall conform to the provisions of § 18.2-308.2:2 , and the definitions and provisions of § 18.2-308.2:2 regarding criminal history record information checks shall apply to this section mutatis mutandis. The designated dealer shall collect and disseminate the fees prescribed in § 18.2-308.2:2 as required by that section. The dealer may charge and retain an additional fee not to exceed $15 for obtaining a criminal history record information check on behalf of a seller.
  2. Notwithstanding the provisions of subsection A and unless otherwise prohibited by state or federal law, a person may sell a firearm to another person if:
    1. The sale of a firearm is to an authorized representative of the Commonwealth or any subdivision thereof as part of an authorized voluntary gun buy-back or give-back program; or
    2. The sale occurs at a firearms show, as defined in § 54.1-4200 , and the seller has received a determination from the Department of State Police that the purchaser is not prohibited under state or federal law from possessing a firearm in accordance with § 54.1-4201.2 .
  3. Any person who willfully and intentionally sells a firearm to another person without obtaining verification in accordance with this section is guilty of a Class 1 misdemeanor.
  4. Any person who willfully and intentionally purchases a firearm from another person without obtaining verification in accordance with this section is guilty of a Class 1 misdemeanor.

    (2020, cc. 1111, 1112.)

Editor's note. - Acts 2020, cc. 1111 and 1112, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

CIRCUIT COURT OPINIONS

Constitutionality. - So long as the background check in this statute was limited to preventing a long-standing prohibition on a historically justified category, such as felons and the mentally disabled, it did not violate the right to keep and bear arms; thus, at the present time, this statute was facially valid and did not violate the state constitutional right to keep and bear arms. Elhert v. Settle, 105 Va. Cir. 326, 2020 Va. Cir. LEXIS 119 (Lynchburg July 14, 2020).

Because one of the plaintiff's was not a minor, but was under the age of 21, and the FBI's National Instant Criminal Background Check System automatically rejected a handgun transfer to someone under 21 years of age, the application of this statute currently created a prohibition on that plaintiff's right to purchase a handgun, and irreparably harmed that plaintiff; thus, defendant was enjoined from enforcing this statute on adults under the age of 21. Elhert v. Settle, 105 Va. Cir. 326, 2020 Va. Cir. LEXIS 119 (Lynchburg July 14, 2020).

Because nothing in the text of this statute expressly prohibited 18 to 20-year-olds from purchasing handguns subject to a background check, and the prohibition existed due to a problem with federal statutes and the setup of the FBI's National Instant Criminal Background Check System, this statute did not violate the constitutional provision that it not embrace more than one object, which should be expressed in its title. Elhert v. Settle, 105 Va. Cir. 326, 2020 Va. Cir. LEXIS 119 (Lynchburg July 14, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Applicability. - The verification requirements in § 18.2-308.2:5 do apply when awarding a firearm as a prize in a raffle. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, Senate of Virginia, 20-047, 2020 Va. AG LEXIS 33 (10/6/20).

§ 18.2-308.3. Use or attempted use of restricted ammunition in commission or attempted commission of crimes prohibited; penalty.

  1. When used in this section:

    "Restricted firearm ammunition" applies to bullets, projectiles or other types of ammunition that are: (i) coated with or contain, in whole or in part, polytetrafluorethylene or a similar product, (ii) commonly known as "KTW" bullets or "French Arcanes," or (iii) any cartridges containing bullets coated with a plastic substance with other than lead or lead alloy cores, jacketed bullets with other than lead or lead alloy cores, or cartridges of which the bullet itself is wholly comprised of a metal or metal alloy other than lead. This definition shall not be construed to include shotgun shells or solid plastic bullets.

  2. It shall be unlawful for any person to knowingly use or attempt to use restricted firearm ammunition while committing or attempting to commit a crime.  Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be guilty of a Class 5 felony.

    (1983, c. 602; 1988, c. 530.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Burglary and Housebreaking, § 2; 9B M.J. Homicide, §§ 17, 28; 12B M.J. Mayhem, § 2; 15 M.J. Rape & Other Statutory Offenses, § 3; 16 M.J. Robbery, § 2; 20 M.J. Weapons, § 9.

CASE NOTES

Right to counsel not violated. - Defendant's aggravated malicious wounding and use of a firearm in the commission of a felony convictions were not subject to reversal on appeal, as the trial court did not violate his right to counsel by erroneously disqualifying his retained trial counsel prior to trial, and appoint substitute counsel to defend him, based on an existing conflict of interest due to counsel's representation of a Commonwealth's witness. Johnson v. Commonwealth, 50 Va. App. 600, 652 S.E.2d 156, 2007 Va. App. LEXIS 406 (2007).

Sufficient evidence. - Defendant's convictions for illegal possession of a firearm under §§ 18.2-308.2 , 18.2-308.4 , and 18.2-308 were affirmed as defendant constructively possessed a handgun since: (1) defendant was convicted of possession of cocaine and marijuana with intent to distribute; (2) a handgun was found in the driver's seat of defendant's vehicle; (3) defendant was either sitting on the handgun or just next to it when an officer first saw defendant; and (4) a handgun was as much a tool of the illegal drug trade as the drugs, digital scales, and plastic distribution bags found in defendant's vehicle. Bolden v. Commonwealth, 49 Va. App. 285, 640 S.E.2d 526, 2007 Va. App. LEXIS 52 (2007).

§ 18.2-308.4. Possession of firearms while in possession of certain substances.

  1. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act (§ 54.1-3400 et seq.) of Title 54.1 to simultaneously with knowledge and intent possess any firearm. A violation of this subsection is a Class 6 felony and constitutes a separate and distinct felony.
  2. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act (§ 54.1-3400 et seq.) to simultaneously with knowledge and intent possess any firearm on or about his person. A violation of this subsection is a Class 6 felony and constitutes a separate and distinct felony and any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of two years. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.
  3. It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a controlled substance classified in Schedule I or Schedule II of the Drug Control Act (§ 54.1-3400 et seq.) or more than one pound of marijuana. A violation of this subsection is a Class 6 felony, and constitutes a separate and distinct felony and any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of five years. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony. (1987, c. 285; 1990, c. 625; 1992, c. 707; 1993, c. 831; 1999, cc. 829, 846; 2003, c. 949; 2004, cc. 461, 995; 2011, cc. 384, 410; 2014, cc. 674, 719.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in subsection A, added "It shall be unlawful for," substituted "to simultaneously with knowledge and intent possess" for "who simultaneously with knowledge and intent possesses," and deleted "shall be guilty of a Class 6 felony" following "any firearm"; and in subsection B, rewrote the second paragraph, which read: "Violation of this subsection shall constitute a separate and distinct felony and any person convicted thereof shall be sentenced to a term of imprisonment of three years for a first conviction and for a term of five years for a second or subsequent conviction under this subsection. Notwithstanding any other provision of law, the sentence prescribed for a violation of this subsection shall not be suspended in whole or in part, nor shall anyone convicted hereunder be placed on probation or parole for this offense. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony."

The 2003 amendments. - The 2003 amendment by c. 949 added the last sentence to subsection A; inserted present subsection B; redesignated former subsections B and C as present subsections C and D; and rewrote the second sentence of subsection C, which formerly read: "Violation of this section shall constitute a separate and distinct felony and any person convicted thereof shall be guilty of a Class 6 felony, shall not be eligible for probation, and shall be sentenced to a minimum, mandatory term of imprisonment of five years, which shall not be suspended in whole or in part."

The 2004 amendments. - The 2004 amendment by c. 461, in subsections B and C, in the next-to-last sentence, deleted "is not eligible for probation and" preceding "shall be sentenced," substituted "mandatory minimum" for "minimum, mandatory," and deleted "which shall not be suspended in whole or in part" at the end.

The 2004 amendment by c. 995 deleted former subsection D which pertained to the forfeiture of firearms possessed in violation of this section.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" in the first sentence of subsection C and made a minor stylistic change.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "synthetic cannabinoids" following "( § 54.1-3400 et seq.)" in subsection C, and made a minor stylistic change.

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 72; 6B M.J. Drugs & Druggists, § 2; 20 M.J. Weapons, § 4.1.

CASE NOTES

Constitutionality. - Defendant did not show that subsection C of § 18.2-308.4 , prohibiting possession of a firearm while possessing a Schedule I or II controlled substance with intent to distribute, was void for vagueness as applied to defendant, in violation of defendant's Fourteenth Amendment rights. The plain language of the statute did not require that the Commonwealth prove a nexus between the firearm and the controlled substance and, thus, defendant did not show that a Fourteenth Amendment violation occurred. Johnson v. Commonwealth,, 2008 Va. App. LEXIS 97 (Feb. 26, 2008).

Retrospective application of amendment not allowed. - The statutorily mandated five-year term of imprisonment proscribed in this section is neither vague nor unconstitutional. By amending the statute to proscribe a mandatory minimum sentence for either violation of the statute, the legislature merely determined that it was removing from a trial court's discretion the power to sentence the defendant within a statutorily proscribed range of punishments. Quarles v. Commonwealth, No. 0943-00-2, 2001 Va. App. LEXIS 65 (Ct. of Appeals Feb. 13, 2001).

The concept of individualized sentencing in criminal cases generally is not constitutionally required; hence, the trial court's imposition of the mandatory minimum sentence under this section did not violate defendant's constitutional rights. Harris v. Commonwealth, No. 0687-00-2, 2001 Va. App. LEXIS 413 (Ct. of Appeals July 10, 2001).

Trial court properly denied defendant's motion to be sentenced under a version of this section that became effective after the crime was committed; the language of the statute did not clearly allow for retroactive application of the amendment, and the statute also could not be applied retroactively pursuant to §§ 1-13.39:3 and 1-16 [see now §§ 1-238 and 1-239 ]. Taylor v. Commonwealth, 44 Va. App. 179, 604 S.E.2d 103, 2004 Va. App. LEXIS 512 (2004).

Effective date of amendments. - Where law in effect at the time that defendant committed the offense of possessing a firearm while possessing cocaine provided for a mandatory, minimum penalty of five years in prison, the trial court properly determined that it had no discretion to impose another sentence despite the fact that the law changed to establish gradations for the offense and to fix new punishments before defendant was sentenced. The law in effect at the time of the offense determines the penalty that the trial court must impose. Presbury v. Commonwealth, No. 0206-04-3, 2004 Va. App. LEXIS 628 (Ct. of Appeals Dec. 21, 2004).

Construction with § 18.2-10 . - Contention that the mandatory minimum sentence provided in this section conflicts with the Class 6 felony sentencing range found in § 18.2-10 (f) was without merit; by describing the offense as a Class 6 felony, this section limits the sentence that the trial judge may impose, and additionally, precludes the imposition of a fine, because the jail term exceeds 12 months. Harris v. Commonwealth, No. 0687-00-2, 2001 Va. App. LEXIS 413 (Ct. of Appeals July 10, 2001).

Concealment of firearm not requisite. - This section is not an extension of the concealed weapons statute, § 18.2-308 . The clear wording of this section prohibits unlawful possession of cocaine "simultaneously with" knowingly and intentionally possessing any firearm. No language in this section requires proof of concealment of weapons. Jefferson v. Commonwealth, 14 Va. App. 77, 414 S.E.2d 860 (1992).

Display of firearm in threatening manner not requisite. - To convict defendant of violating subsection C of § 18.2-308.4 , the prosecution had not been required to prove that defendant possessed a firearm "in a threatening manner," as that phrase modifies only the verb "display" immediately preceding it. Wright v. Commonwealth, 53 Va. App. 266, 670 S.E.2d 772, 2009 Va. App. LEXIS 2 , aff'd, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

Possession of firearm on or about defendant's person. - Evidence was insufficient to convict defendant of possessing a controlled substance while simultaneously possessing a firearm on or about his person under subsection B of § 18.2-308.4 because even though defendant constructively possessed a firearm located in a locked glove compartment of a car in which he was a front seat passenger, he did not have ready access to use of the firearm, which was required to show possession on or about his person, because the firearm was in a locked glove compartment and defendant did not possess a key to the glove compartment. Hunter v. Commonwealth, 56 Va. App. 50, 690 S.E.2d 792, 2010 Va. App. LEXIS 130 (2010).

Severance. - Trial court did not err in refusing to sever felon in possession of a firearm indictment from possession of cocaine and possession of firearm charges, as nothing in the record rebutted the presumption that the trial court considered only the evidence relevant to each offense when reaching its decision. Vanhook v. Commonwealth, 40 Va. App. 130, 578 S.E.2d 71, 2003 Va. App. LEXIS 149 (2003).

Only constructive possession necessary. - Actual possession of both firearm and controlled substance is not required by the wording of this section. Constructive possession of either or both is sufficient for conviction. Jefferson v. Commonwealth, 14 Va. App. 77, 414 S.E.2d 860 (1992); Samuels v. Commonwealth, No. 1364-94-2 (Ct. of Appeals Aug. 1, 1995).

Defendant's conviction for possession of a firearm while in the possession of a controlled substance was upheld on appeal where the evidence showed that defendant constructively possessed a 9 mm gun, because he admitted to the police that he received the handgun from his son and showed the police where he had hidden it, wrapped in plastic bags inside a vacuum cleaner, so his grandchildren would not find it. Gray v. Commonwealth, No. 0374-04-1, 2005 Va. App. LEXIS 52 (Ct. of Appeals Feb. 8, 2005).

In a case in which defendant was convicted of violating subsection C of § 18.2-308.4 , he argued unsuccessfully that a conviction required the Commonwealth to prove actual, simultaneous possession of both the drugs and the firearm. A violation of subsection C could be proven by constructive possession. Wright v. Commonwealth, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

To obtain a conviction under subsection C of § 18.2-308.4 , it is sufficient to prove that the defendant had constructive, rather than actual, possession of drugs and a firearm. Wright v. Commonwealth, 53 Va. App. 266, 670 S.E.2d 772, 2009 Va. App. LEXIS 2 , aff'd, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

Sufficient evidence supported the possession of a firearm while possessing cocaine with the intent to distribute conviction, even though the firearm was not on defendant's person, where defendant had constructive possession since: (1) the firearm was located in close proximity to defendant, within easy reach; (2) the grip of the gun was visible; (3) the cocaine was located immediately adjacent to the firearm; (4) the package of cocaine had defendant's DNA on it; and (5) defendant was the only passenger in the car and the fact finder could consider the connection between the firearm and the illegal drugs. Jones v. Commonwealth, No. 0448-12-1, 2013 Va. App. LEXIS 352 (Dec. 3, 2013).

For purposes of this section, defendant's possession of the drugs and a firearm could be actual or construction and the occurrence of the two did not have to be at the same discrete moment in time. Defendant's possession of drugs and a firearm were established by law and concession. Wright v. Commonwealth,, 2014 Va. App. LEXIS 187 (May 20, 2014).

Proof of nexus between drug offense and firearm possession. - To obtain a conviction under subsection C of § 18.2-308.4 , the prosecution must prove a nexus between the drug offense and the firearm possession - proof that actual or constructive possession of the firearm somehow furthers, advances, or helps the defendant to commit the offense of actually or constructively possessing a controlled substance with an intent to distribute it. Wright v. Commonwealth, 53 Va. App. 266, 670 S.E.2d 772, 2009 Va. App. LEXIS 2 , aff'd, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

As defendant admitted owning a loaded handgun and 114 grams of crack cocaine found in his bedroom, and the detective who arrested him had encountered him in his car two days earlier, at which time he had the loaded firearm with him, the evidence established that defendant's gun protected his drugs, thereby providing the necessary nexus between his constructive possession of the handgun and drugs. Therefore, the evidence had been sufficient to convict him of possessing a firearm while possessing cocaine with the intent to distribute. Wright v. Commonwealth, 53 Va. App. 266, 670 S.E.2d 772, 2009 Va. App. LEXIS 2 , aff'd, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

In a case in which defendant was convicted of violating subsection C of § 18.2-308.4 , he argued unsuccessfully that the evidence was insufficient to establish a nexus between the possession of the firearm and the unlawful activity. Nothing in subsection C contained such a requirement. Wright v. Commonwealth, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

Valid search under plain view doctrine. - Trial court erred in suppressing evidence pertaining to defendant's indictment for possession of a firearm while in possession of a controlled substance; as a police officer lawfully seized ammunition under a search warrant for a gun, the officer was in a lawful position to view the crack pipe and the bottles of prescription drugs, and therefore, lawfully seized the crack pipe and drugs under the plain view doctrine. Commonwealth v. Marek, No. 2123-02-4, 2003 Va. App. LEXIS 46 (Ct. of Appeals Feb. 5, 2003).

Verdict not "illegal." - Although verdict incorrectly combined a penitentiary term and a fine for crimes of possession of cocaine with intent to distribute and possession of a firearm while in possession of cocaine, entire verdict was not "illegal" for trial court may impose a valid sentence in substitution for one that is void. Barksdale v. Commonwealth, 17 Va. App. 456, 438 S.E.2d 761 (1993).

Multiple convictions and punishments. - Where defendant made two sales of cocaine and had ready access to firearms while retrieving the drugs, the evidence was sufficient to show multiple violations of the same offense that warranted separate punishments. Hamlett v. Commonwealth, No. 1903-02-3, 2003 Va. App. LEXIS 369 (Ct. of Appeals June 24, 2003).

Under the totality of the circumstances, defendant, who was convicted of possession of cocaine with intent to distribute under § 18.2-248 and possession of a firearm while in possession of drugs under § 18.2-308.4 , was not illegally seized under the Fourth Amendment as the police officer had a particularized and objective basis for suspecting that defendant was involved in criminal activity where: (1) defendant fled a consensual encounter with the officer; (2) the officer had a reasonable suspicion to detain defendant where he suspiciously, while in a high-crime area, leaned toward a car tire as the officer approached; (3) defendant could not provide an address in the housing area, which had been posted as a "no trespassing" area, without squinting at a building behind him and giving the officer that address; and (4) defendant's placement of his hands underneath him and his unusual movements after he fell suggested that he was attempting to remove something from his clothing. White v. Commonwealth, No. 2091-02-1, 2003 Va. App. LEXIS 367 (Ct. of Appeals June 24, 2003).

Trial court properly denied defendant's suppression motion as the cocaine was discovered during a proper search incident to a lawful arrest for a concealed weapon violation; it was legally irrelevant under the Fourth Amendment that the deputy chose not to charge defendant with the lesser concealed weapon violation of § 18.2-308 , upon discovering the suspected drugs during the search, enabling the deputy to charge defendant with possession of cocaine with intent to distribute under § 18.2-248 , and possession of a firearm while simultaneously possessing illegal drugs under subsection A of § 18.2-308 .4. Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448, 2003 Va. App. LEXIS 352 (2003).

To sustain a conviction pursuant to the provisions of this section, the Commonwealth must prove not only that the accused possessed cocaine, but that the firearm was "knowingly" and "simultaneously" possessed. Each of these factors must be proved beyond reasonable doubt and, when proof is by circumstantial evidence, the circumstances proved must be consistent with guilt, inconsistent with innocence, and exclude all reasonable hypothesis of innocence. Cooper v. Commonwealth, No. 1083-89-2 (Ct. of Appeals Sept. 3, 1991).

Controlled substance and firearm need not be introduced. - To obtain a conviction under this section, the commonwealth must prove that the defendant possessed a controlled substance with intent to distribute it while simultaneously possessing a firearm but it may do this without introducing either the controlled substance or the firearm. Users and addicts may testify as to the nature of a drug and, in a similar manner, the commonwealth can prove the existence of a firearm without offering the tangible object as evidence. Adams v. Commonwealth, No. 0138-00-3, 2001 Va. App. LEXIS 128 (Ct. of Appeals Mar. 13, 2001).

Contents of indictment. - Because an indictment that charged defendant with possession of a firearm while in possession of drugs with intent to distribute included language and an element required for conviction that appear in only subsection C of § 18.2-308.4 , the indictment was clear on its face that the offense charged was a violation of subsection C of § 18.2-308.4 . Moore v. Commonwealth, No. 1113-18-1, 2019 Va. App. LEXIS 215 (Oct. 1, 2019).

Failure of indictment to allege all material facts. - Even though defendant had also been charged with possession of and intent to distribute cocaine, it was error for sentencing judge to assume that defendant had been convicted under subsection B of this section rather than subsection A, because the indictment did not allege that defendant had the intent to manufacture, sell, or distribute cocaine in his possession while simultaneously possessing a firearm. Moore v. Commonwealth, 27 Va. App. 192, 497 S.E.2d 908 (1998).

Suppression of evidence. - Defendant's incriminating statements made after he received Miranda warnings were properly admitted, as said statements were not made as a result of an illegal arrest, but after a lawful detention by officers and an arrest based on probable cause of finding cocaine and a gun in the residence searched via a valid warrant; thus, his convictions under §§ 18.2-248.1 , 18.2-248 , and 18.2-308.4 , were upheld. Whitaker v. Commonwealth, No. 3232-03-2, 2005 Va. App. LEXIS 34 (Ct. of Appeals Feb. 1, 2005).

In a case in which defendant had been convicted of violating §§ 18.2-250 , 18.2-308.2 , 18.2-308.4 , and subsection C of § 18.2-57 , he argued unsuccessfully that the Court of Appeals of Virginia erroneously upheld the circuit court's denial of his motion to suppress the evidence because his encounter with the police officers was not consensual, and the officers lacked any reasonable suspicion to believe that he was engaged in criminal activity. During the encounter, which lasted only two or three minutes, the police checked the "ban list" but did not engage in any show of force or use language indicating that defendant was required to remain at that location, the police did not tell him that he was required to stay, and defendant did not make any attempt to leave; instead, defendant remained in the area, standing about five feet away from the officers while his companion moved to sit on some nearby steps. Montague v. Commonwealth, 278 Va. 532 , 684 S.E.2d 583, 2009 Va. LEXIS 113 (2009), cert. denied, 130 S. Ct. 1537, 176 L. Ed. 2d 133, 2010 U.S. LEXIS 1456 (U.S. 2010).

Sufficient evidence. - Ample evidence supported the findings that appellant constructively possessed a weapon or weapons with knowledge and intent while constructively possessing cocaine where the trial record established that he stayed at house where arrest was made several nights a week, he was discovered leaving the master bedroom where drugs and money were found mixed with his personal papers and property, cocaine was found in close proximity to two weapons, and both the drugs and the guns were easily accessible to appellant. Jefferson v. Commonwealth, 14 Va. App. 77, 414 S.E.2d 860 (1992).

The proximity of the dispenser containing bullets and cocaine to the handgun, combined with the correspondence of the bullets in the dispenser to the bullets in the handgun, gave rise to a reasonable inference that the two items were possessed in conjunction. Further, the relative privacy of the yard in which these items, and no others, were found supported the inference that the defendant dropped both items when running from the officer. Therefore, evidence was sufficient for conviction under § 18.2-248 and this section. Hunt v. Commonwealth, No. 0257-94-1 (Ct. of Appeals March 21, 1995).

Appellant told the police that the handguns found under his bed were not his, but that his brother had entrusted them to him. This evidence alone was sufficient to prove that appellant was aware of the presence and character of the firearms, and that they were subject to his dominion and control; thus, establishing constructive possession. Accordingly, appellant's conviction was affirmed. Morris v. Commonwealth, No. 1507-95-3 (Ct. of Appeals May 14, 1996).

Evidence was sufficient to support finding that defendant exercised dominion and control over drugs and firearm found hidden together near his feet, under box spring of bed. Mosley v. Commonwealth, No. 2477-98-3 (Ct. of Appeals Dec. 7, 1999).

Only reasonable hypothesis flowing from evidence was that defendant exercised at least joint possession of firearm found in dresser drawer of bedroom he shared with girlfriend, and thus evidence was sufficient to prove defendant's constructive possession of weapon. Vest v. Commonwealth, No. 0803-99-3 (Ct. of Appeals Feb. 15, 2000).

Circumstantial evidence held sufficient to show that the defendant had a handgun on his person when he initially refused to consent to a pat-down and that, after his unsuccessful attempt to enter a friend's house, he walked to the side of the house, deposited the gun in a shopping cart behind a concrete wall, returned and then consented to the pat-down, knowing the police officer would find nothing on his person; the defendant's flight when confronted with the gun the officer found in the grocery cart was itself evidence of his guilt. McCain v. Commonwealth, No. 2368-99-3, 2000 Va. App. LEXIS 512 (Ct. of Appeals July 18, 2000), aff'd, 261 Va. 483 , 545 S.E.2d 541, (2001).

The evidence was sufficient to support an inference that the defendant possessed a functional firearm where, during a drug sale, the defendant told a story of being stopped by a state trooper when he possessed a pistol and, as he told of the gun, he displayed the handle of a pistol concealed under his shirt; given the context of the events, the only reasonable hypothesis flowing from this evidence was that the defendant possessed an actual firearm. Where there was no evidence to suggest the weapon did not function, it would be unreasonable to conclude that the defendant talked about, carried and displayed something that looked like a gun but could not function as one. Taylor v. Commonwealth, 33 Va. App. 735, 536 S.E.2d 922, 2000 Va. App. LEXIS 736 (2000).

The evidence was sufficient to support defendant's conviction under this section where the defendant, after refusing to permit a pat-down search, began walking away from two police officers to an area behind a wall, one of the officers saw the shadow of an arm reach from the wall into an area where a metal grocery cart was located, the officer heard the sound of one metal object hitting against another metal object, the defendant then consented to a pat-down search, no one else was present in the area where the grocery cart was located, and a handgun was found in the cart; this evidence, combined with the evidence of the defendant's flight when confronted with the handgun and the evidence of his possession of cocaine with the intent to distribute, was sufficient to establish the defendant's guilt beyond a reasonable doubt on the firearm charge. McCain v. Commonwealth, 261 Va. 483 , 545 S.E.2d 541, 2001 Va. LEXIS 42 (2001).

Where a defendant confessed to trading crack cocaine for a shotgun on the day preceding his arrest and to handling firearms found scattered about the home where various items associated with cocaine distribution were found, and where these statements and the defendant's continuing involvement with others in the distribution of cocaine from the premises were corroborated by the testimony of another occupant, such evidence clearly established that defendant actually and constructively possessed the firearms. Young v. Commonwealth, No. 1228-00-2, 2001 Va. App. LEXIS 251 (Ct. of Appeals May 15, 2001).

Presence of the firearm in defendant's house, coupled with the statement to the police that they could find it beneath the mattress in the back bedroom, was sufficient to establish that defendant had knowledge of the presence of the firearm, and that it was subject to his dominion and control and hence was sufficient to sustain his conviction for possession of a firearm; the trial court could reject defendant's statement that the firearm belonged to his wife. Pitchford v. Commonwealth, No. 1582-01-1, 2002 Va. App. LEXIS 565 (Ct. of Appeals Sept. 24, 2002).

Evidence that defendant owned scales on which cocaine residue was found and that defendant had two rifles in a trailer where the scales were found was sufficient to sustain defendant's convictions for possession of cocaine, in violation of § 18.2-250 , and simultaneous possession of cocaine and firearms, in violation of subsection A of § 18.2-308.4 . Chism v. Commonwealth, No. 2892-01-2, 2002 Va. App. LEXIS 745 (Ct. of Appeals Dec. 17, 2002).

Where an officer reasonably suspected a defendant was operating his vehicle in violation of the law and lawfully stopped him and the odor of marijuana and other observations gave probable cause for a search and his conviction possession of a firearm while in possession of a controlled substance under § 18.2-308.4 was affirmed. Savage v. Commonwealth, No. 0799-02-1, 2003 Va. App. LEXIS 187 (Ct. of Appeals Apr. 1, 2003).

Only reasonable hypothesis flowing from the evidence was that defendant actually or constructively possessed a firearm and drugs found outside a bedroom window where an officer saw defendant standing with his torso and arms out the open bedroom window, and although the officer did not see anything in defendant's hands and did not see him make any sort of throwing motion as he leaned out the window, the officer immediately found drugs and a firearm outside the bedroom window. That the sister might also have had actual or constructive possession of the drugs and firearm before defendant attempted to dispose of them through the open window did not diminish defendant's guilt. Smithers v. Commonwealth, No. 2144-02-2, 2003 Va. App. LEXIS 510 (Ct. of Appeals Oct. 14, 2003).

Evidence was sufficient to support conviction for possession of a firearm while in possession of drugs, in violation of § 18.2-308.4 , where the trial court could have reasonably concluded that defendant was aware of the presence and character of the gun under the driver's seat of his car and it was subject to his dominion and control based on its location and that defendant was aware of the presence and character of the drugs found in the console and that he exercised dominion and control over them as well. Gillard v. Commonwealth, No. 0037-02-2, 2003 Va. App. LEXIS 437 (Ct. of Appeals Aug. 19, 2003).

Evidence was sufficient to show that defendant possessed cocaine, and, simultaneously, with knowledge and intent, possessed any firearm even though the cocaine was not located in his pants pocket until he had been taken to jail following a traffic stop more than one hour after the initial traffic stop for speeding revealed he was carrying the gun without a permit. The trial court's finding that he possessed both simultaneously, for the purpose of conviction, excluded every other reasonable hypothesis that flowed from the evidence. Bailey v. Commonwealth, No. 2767-02-1, 2003 Va. App. LEXIS 610 (Ct. of Appeals Nov. 25, 2003).

Evidence was sufficient to show that defendant was in possession of cocaine at the same time he possessed a firearm, as reasonable inferences existed that the cocaine packets found beneath defendant in the house he ran into when he saw police and the gun found in a nearby bucket belonged to defendant. The homeowner testified that neither the cocaine nor gun belonged to her and were not in the house when she left it shortly before defendant's arrest, and a reliable, confidential informant reported to police that defendant was in possession of cocaine shortly before defendant was arrested. Payne v. Commonwealth, No. 3339-02-3, 2003 Va. App. LEXIS 616 (Ct. of Appeals Dec. 2, 2003).

Evidence that the gun and the cocaine were found in very close proximity to items that defendant admitted to having in his pockets when he entered the room and within arms reach of defendant, who was found hiding in a closet, was sufficient to support convictions for possession of cocaine and possession of firearm while in possession of cocaine. Kersey v. Commonwealth, No. 3354-02-2, 2004 Va. App. LEXIS 59 (Ct. of Appeals Feb. 10, 2004).

There was sufficient evidence to support the jury's finding that defendant was guilty beyond a reasonable doubt of possession of a firearm while possessing cocaine in violation of § 18.2-308.4 where the arresting officer saw the blue plastic cap from a vial which contained cocaine in defendant's hand and it was thereafter retrieved from a cushion where the gun was found, the driver did not appear to have an opportunity to have placed the gun under a cushion where it was later found, and defendant was sitting on the cushion where the gun was hidden; the jury's determination that defendant possessed the firearm and its rejection of the hypothesis that the driver placed the firearm under the cushion was not plainly wrong. Artis v. Commonwealth, No. 3305-02-1, 2004 Va. App. LEXIS 131 (Ct. of Appeals Mar. 30, 2004).

Evidence was sufficient to support defendant's conviction possession of a firearm while in the possession of drugs, including: (1) photographs of the location of the handgun and the 98 individually packaged baggies of crack cocaine, immediately adjacent to where defendant was sitting; (2) defendant's movement away from the cocaine and handgun when he saw the officer approach; and (3) the fact that there were three individuals sitting on the porch did not negate defendant's possession as possession could be shared. Peek v. Commonwealth, No. 0340-03-1, 2004 Va. App. LEXIS 193 (Ct. of Appeals Apr. 27, 2004).

Evidence supported a trial court's finding that defendant constructively possessed illegal drugs found in his home where 14 pills were found in a plastic vial in a candy box in the living room of defendant's home, various empty pill bottles, some of which contained Schedule III and IV drugs, were found in defendant's bedroom, one bottle bore the name of a different party and other bottles evidenced names that had been scratched off, a medication guide was also found in the bedroom, where defendant owned the home and lived there, where, although his elderly mother also resided in the home, she did not take pain medication, where $2,289 arranged sequentially in descending order of denominations was also found in the candy box containing the plastic vial of pills, where defendant was not employed, and where no explanation of the source of the funds was in evidence; convictions for possession of a Schedule II controlled substance and possession of a firearm while in possession of a Schedule II controlled substance were affirmed. Newsome v. Commonwealth, No. 1987-03-3, 2004 Va. App. LEXIS 456 (Ct. of Appeals Sept. 28, 2004).

Defendant's convictions for illegal possession of a firearm under §§ 18.2-308.2 , 18.2-308.4 , and 18.2-308 were affirmed as defendant constructively possessed a handgun since: (1) defendant was convicted of possession of cocaine and marijuana with intent to distribute; (2) a handgun was found in the driver's seat of defendant's vehicle; (3) defendant was either sitting on the handgun or just next to it when an officer first saw defendant; and (4) a handgun was as much a tool of the illegal drug trade as the drugs, digital scales, and plastic distribution bags found in defendant's vehicle. Bolden v. Commonwealth, 49 Va. App. 285, 640 S.E.2d 526, 2007 Va. App. LEXIS 52 (2007).

Evidence was sufficient to prove that defendant was aware of both the presence and character of a set of scales and that the scales were subject to defendant's dominion and control, to support defendant's conviction for possession of a firearm while in possession of cocaine. Defendant admitted that defendant knew of the safe's contents and that defendant had accessed the safe; from this, the trial court, as fact finder, could infer that defendant knew the scales were in the safe. Banks v. Commonwealth,, 2007 Va. App. LEXIS 43 (Feb. 13, 2007).

Conviction for possession of a firearm while in possession of cocaine was supported by evidence showing that defendant was aware of the presence and character of the firearm and it was within defendant's dominion and control. Among other things, defendant exited vehicle along with the only other passenger and attempted to contact the officer before the officer could get to the vehicle, and the gun was in proximity to where defendant had been sitting. Bolden v. Commonwealth, 275 Va. 144 , 654 S.E.2d 584, 2008 Va. LEXIS 6 (2008), cert. denied, 129 S. Ct. 284, 2008 U.S. LEXIS 6378, 172 L. Ed. 2d 208 (U.S. 2008).

In a case in which defendant was convicted of violating subsection C of § 18.2-308.4 , he argued unsuccessfully that the trial court and the Court of Appeals of Virginia erred in concluding that sufficient evidence was produced to show that he possessed the firearm while committing the offense of possession of cocaine with the intent to distribute or to show a nexus between the possession of the firearm and the criminal act. The indictment charging a violation of subsection C of § 18.2-308.4 did not limit the charge to defendant's possession of cocaine with intent to distribute while in his automobile; trial testimony established that both the cocaine recovered from him at the time of his initial arrest and everything combined, which included the cocaine recovered at his home, the gun, the packaging material, and the scale, along with the absence of items to use cocaine, supported the conclusion that the cocaine was not for personal use. Wright v. Commonwealth, 278 Va. 754 , 685 S.E.2d 655, 2009 Va. LEXIS 111 (2009).

Trial court did not err in finding the Commonwealth's evidence sufficient to prove beyond a reasonable doubt that defendant possessed a firearm while in possession of more than one pound of marijuana with intent to distribute, violating subsection C of § 18.2-308.4 . Defendant admitted to a detective that a pistol located on a kitchen table, adjacent to the pantry where defendant placed a marijuana package, belonged to defendant, and that defendant used it for protection; at trial defendant testified that the pistol belonged to defendant. Hargrove v. Commonwealth, 53 Va. App. 545, 673 S.E.2d 896, 2009 Va. App. LEXIS 123 (2009).

Although defendant claimed no knowledge of the exact location of a gun in his car, evidence was sufficient to convict defendant of possession of a firearm while in possession of certain controlled substances where defendant knew of the presence of the gun somewhere in the car, the gun was found underneath defendant's seat, and defendant was the car's sole occupant. Gholston v. Commonwealth,, 2010 Va. App. LEXIS 202 (2010).

Evidence was sufficient to prove that defendant constructively possessed cocaine and a firearm simultaneously, in violation of § 18.2-308.4 , although defendant denied knowing about the cocaine, because defendant admitted seeing the firearm on the floor of a car and placing it under a seat, and the cocaine was found next to the firearm. The fact finder could have found it unreasonable to believe that defendant knew of the presence of the firearm, but did not know of the cocaine next to it. Wilson v. Commonwealth,, 2010 Va. App. LEXIS 38 (Feb. 2, 2010).

Combined evidence of defendant's possession of the key to the vehicle, the presence of defendant's fingerprint found on a tool to the drug trade in the glove box, the location of the scale and loaded gun next to the drugs, and the location of defendant's personal papers in the same compartment, supported the trial court's finding that defendant exercised dominion and control over the contraband items and was aware of their presence and character. Grimes v. Commonwealth,, 2010 Va. App. LEXIS 378 (Sept. 21, 2010).

Evidence was sufficient to convict appellant of possession of a firearm while in possession of cocaine under § 18.2-308.4 because, upon concluding that appellant had recently occupied the gold car and possessed the cocaine, the trial court was entitled to find that he possessed the firearm found next to the console containing cocaine and to find that the gun was subject to his dominion and control. Womack v. Commonwealth,, 2013 Va. App. LEXIS 38 (Feb. 5, 2013).

There was sufficient evidence to support defendant's conviction of possessing a firearm while simultaneously possessing a controlled substance because the instrument defendant possessed was designed, made, and intended to expel a projectile by means of an explosion and thus, was a firearm within the meaning of the statute; defendant repeatedly referred to the instrument as a gun and treated it as such by usually putting it in a lock box. Bailey v. Commonwealth, No. 0463-13-1, 2014 Va. App. LEXIS 143 (Ct. of Appeals Apr. 15, 2014).

Evidence was sufficient to support defendant's convictions for possession of cocaine and possession of a firearm while in possession of cocaine as the evidence showed that defendant constructively possessed the cocaine found in the driver's side cup holder because there was more than mere proximity to support the fact finder's conclusion that defendant knowingly possessed the cocaine as he testified regarding the contents of the cup holder, which demonstrated that he exercised dominion and control over the cup holder and its contents, including the cocaine, whether exclusively of the passenger or in conjunction with him. Brown v. Commonwealth,, 2015 Va. App. LEXIS 162 (May 12, 2015).

Evidence was sufficient to support defendant's convictions because a confidential informant arranged the purchase of an ounce of heroin from a person who could be found at a laundromat and who regularly drove a scooter and carried a firearm, and the trial court could reasonably conclude that defendant, who was found in the same location, carrying a firearm, and standing next to a scooter containing heroin, was the individual with whom the informant arranged the sale. Harris v. Commonwealth, No. 0717-15-2, 2016 Va. App. LEXIS 172 (Ct. of Appeals May 24, 2016).

Because the indictment was not required to allege that defendant possessed or displayed a firearm in a threatening manner, the parties' stipulation was not required to include such evidence for it to be sufficient to support a conviction for a violation of subsection C of § 18.2-308.4 . The evidence was sufficient to prove that defendant was in possession of both a firearm and controlled substances that he intended to distribute. Moore v. Commonwealth, No. 1113-18-1, 2019 Va. App. LEXIS 215 (Oct. 1, 2019).

Evidence proved beyond a reasonable doubt that defendant knowingly and intentionally possessed the firearm that the police found in his hotel room because it was found in a shoebox in the closet of the hotel room where defendant stayed with his girlfriend and her children, defendant had two room keys in his pocket when he was arrested, defendant admitted that the shoebox was his and that the shoes he was wearing had come from the box, and he admitted that he was a drug dealer. Smith v. Commonwealth, No. 0723-19-4, 2020 Va. App. LEXIS 136 (May 5, 2020).

Sufficient evidence of possession. - Evidence that defendant bought the gun with another, handled the gun on occasion, and was within reach of the gun was sufficient to support his conviction for possession of a firearm. Maye v. Commonwealth, 44 Va. App. 463, 605 S.E.2d 353, 2004 Va. App. LEXIS 590 (2004).

Where defendant was traveling alone, it was reasonable to concluded that he was aware of the firearm protruding from under the front seat of the vehicle that he was driving and that it was subject to his dominion and control. Shelton v. Commonwealth, No. 3012-03-2, 2005 Va. App. LEXIS 87 (Ct. of Appeals Mar. 1, 2005).

Evidence of constructive possession of cocaine was sufficient to support defendant's convictions of possession with intent to distribute cocaine and possession of a firearm while in possession of a controlled substance. Defendant went inside his bedroom when he saw police; a loaded firearm was within arm's reach when police entered the bedroom; cocaine was near defendant and in plain view; more cocaine was in a dresser drawer and drug packaging materials were on the dresser; bullets were on a windowsill; and some of defendant's belongings were in the bedroom. Cherry v. Commonwealth,, 2006 Va. App. LEXIS 358 (Aug. 8, 2006).

Testimony of defendant's mother that the mother gave defendant the car where the gun was found and that the mother had not used the car in about a year was sufficient to support a finding that defendant knowingly possessed the firearm found in the car. Jordan v. Commonwealth, No. 1155-06-1, 2007 Va. App. LEXIS 259 (Ct. of Appeals June 26, 2007).

Commonwealth was not required to prove that defendant possessed the firearm in a threatening manner in order to prove that he possessed a firearm in violation of subsection C of § 18.2-308.4 . Clark v. Commonwealth,, 2008 Va. App. LEXIS 269 (June 3, 2008).

Because defendant occupied a dwelling in which a firearm was found, admitted knowledge of the presence of the gun in the house, and possessed the trigger lock keys, which rendered the firearm subject to defendant's dominion and control, the evidence was sufficient to find that defendant constructively possessed the firearm; accordingly, the evidence was also sufficient to convict defendant of possession of a firearm after having been convicted of a felony and possession of a firearm while in possession of drugs. Herndon v. Commonwealth,, 2009 Va. App. LEXIS 129 (Mar. 24, 2009).

Evidence was sufficient to prove that defendant, a convicted violent felon found in possession of cocaine, possessed a firearm within the meaning of §§ 18.2-308.2 and 18.2-308.4 when he was driving a car that contained the frame, cylinder pin, and cylinder with ammunition for a revolver, which was successfully test-fired. Seward v. Commonwealth,, 2009 Va. App. LEXIS 579 (Dec. 22, 2009).

Evidence that defendant was driving a vehicle in which police located a gun, was convicted of possession of cocaine with intent to distribute, and possessed and used a password-protected phone with an image of the gun recovered from the vehicle, permitted a rational trier to find that the gun was subject to defendant's dominion and control and to support his convictions for possession of a firearm by a convicted felon and possession of a firearm while in possession of a controlled substance. Coleman v. Commonwealth,, 2017 Va. App. LEXIS 299 (Nov. 28, 2017).

Evidence was sufficient for the circuit court to find that defendant constructively possessed the two firearms discovered by a detective because the guns were in a bag on the front passenger seat of the vehicle that defendant was driving and within his dominion and control; defendant's girlfriend testified that she owned the vehicle and that defendant frequently drove it. Raspberry v. Commonwealth, 71 Va. App. 19, 833 S.E.2d 894, 2019 Va. App. LEXIS 241 (2019).

Because there was sufficient evidence of constructive possession of a firearm and a controlled substance, the circuit court did not err in denying defendant's motion to vacate for insufficient evidence; a reasonable fact-finder could find that defendant lived at the residence where the contraband was found because the police found mail addressed to him, he was the only person an investigator observed enter the residence with keys, and the police arrested him at the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Insufficient evidence of constructive possession. - Evidence did not support finding that defendant constructively possessed contraband, even though it was found in a house which he occupied, where evidence did not show that the defendant was in the dwelling recently enough to permit a reasonable inference that he was aware of the presence of the contraband. No direct evidence placed the defendant in the house; while police found mail addressed to him on a dresser in a bedroom, the postmark on the mail was six days before the discovery of the contraband; and they also found evidence of at least one other person living in the house. Diggs v. Commonwealth, No. 0957-93-2, 1994 Va. App. LEXIS 622 (Ct. of Appeals Oct. 11, 1994).

Evidence was insufficient to prove possession of the firearm where no other evidence linked the defendant to the firearm and evidence did not exclude the theory, suggested by the defendant, that someone else put the firearm under her mattress. Lawrence v. Commonwealth, No. 1153-02-1, 2003 Va. App. LEXIS 190 (Ct. of Appeals Apr. 1, 2003).

Evidence of operability not needed. - There was no error in the judgment appealed from since the World War I era handgun possessed by defendant, a felon, was designed, made, and intended to expel a projectile by means of an explosion; the state did not have to show that the handgun was "operable," "capable" of being fired, or had the "actual capacity to do serous harm." McDaniel v. Commonwealth, 264 Va. 429 , 574 S.E.2d 234, 2002 Va. LEXIS 150 (2002).

Trial court properly convicted defendant on a charge of possession of a firearm while simultaneously possessing cocaine; the Commonwealth was only required to prove, and did prove, that the firearm was designed, made, and intended to expel a projectile by means of an explosion, and not that the firearm was operable. Sprouse v. Commonwealth, No. 2438-03-2, 2005 Va. App. LEXIS 59 (Ct. of Appeals Feb. 8, 2005).

In a case in which defendant was convicted of possession of a firearm while in possession of heroin, in violation of § 18.2-308.4 , the Commonwealth was not required to produce a certificate of analysis to establish that the firearm in question was an actual weapon capable of firing projectiles and was operable. Smalls v. Commonwealth, No. 0392-16-1, 2017 Va. App. LEXIS 25 (Ct. of Appeals Jan. 31, 2017).

Sufficient evidence of awareness of presence of firearms. - Record contained sufficient evidence from which a reasonable fact-finder could find that defendant knew of the presence and character of firearms based on where they were found because a revolver was found on a dresser in the main bedroom of his residence in plain view; another firearm was found in the closet of the main bedroom, and a fact-finder could also infer that because there was one firearm in plain view, defendant was aware of other firearms in the residence. Jordan v. Commonwealth, No. 0863-18-1, 2019 Va. App. LEXIS 235 (Ct. of Appeals Oct. 22, 2019).

Applied in Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206, 2003 Va. App. LEXIS 37 (2003); Booker v. Commonwealth, 61 Va. App. 323, 734 S.E.2d 729, 2012 Va. App. LEXIS 407 (2012).

§ 18.2-308.5. Manufacture, import, sale, transfer or possession of plastic firearm prohibited.

It shall be unlawful for any person to manufacture, import, sell, transfer or possess any plastic firearm. As used in this section, "plastic firearm" means any firearm, including machine guns and sawed-off shotguns as defined in this chapter, containing less than 3.7 ounces of electromagnetically detectable metal in the barrel, slide, cylinder, frame or receiver of which, when subjected to inspection by X-ray machines commonly used at airports, does not generate an image that accurately depicts its shape. A violation of this section shall be punishable as a Class 5 felony.

(1989, c. 663; 2004, c. 995.)

The 2004 amendments. - The 2004 amendment by c. 995 deleted the former last paragraph which pertained to the forfeiture and disposal of any firearm manufactured, etc. in violation of this section.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, §§ 4.1, 12.

§ 18.2-308.5:1. Manufacture, importation, sale, possession, transfer, or transportation of trigger activators prohibited; penalty.

  1. As used in this section, "trigger activator" means a device designed to allow a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of any semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.
  2. It is unlawful for any person to manufacture, import, sell, offer for sale, possess, transfer, or transport a trigger activator in the Commonwealth.
  3. A violation of this section is punishable as a Class 6 felony.
  4. Nothing in this section shall be construed to prohibit a person from manufacturing, importing, selling, offering for sale, possessing, receiving, transferring, or transporting any item for which such person is in compliance with the National Firearms Act (26 U.S.C. § 5801 et seq.).

    (2020, c. 527.)

Editor's note. - Acts 2020, c. 527, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 18.2-308.6.

Repealed by Acts 2009, c. 288, cl. 1.

Editor's note. - Former § 18.2-308.6 , pertaining to possession of unregistered firearm mufflers or silencers and penalty for violation, derived from 1990, c. 413.

§ 18.2-308.7. Possession or transportation of certain firearms by persons under the age of 18; penalty.

It shall be unlawful for any person under 18 years of age to knowingly and intentionally possess or transport a handgun or assault firearm anywhere in the Commonwealth. For the purposes of this section, "handgun" means any pistol or revolver or other firearm originally designed, made and intended to fire single or multiple projectiles by means of an explosion of a combustible material from one or more barrels when held in one hand and "assault firearm" means any (i) semi-automatic centerfire rifle or pistol which expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock or (ii) shotgun with a magazine which will hold more than seven rounds of the longest ammunition for which it is chambered. A violation of this section shall be a Class 1 misdemeanor.

This section shall not apply to:

  1. Any person (i) while in his home or on his property; (ii) while in the home or on the property of his parent, grandparent, or legal guardian; or (iii) while on the property of another who has provided prior permission, and with the prior permission of his parent or legal guardian if the person has the landowner's written permission on his person while on such property;
  2. Any person who, while accompanied by an adult, is at, or going to and from, a lawful shooting range or firearms educational class, provided that the weapons are unloaded while being transported;
  3. Any person actually engaged in lawful hunting or going to and from a hunting area or preserve, provided that the weapons are unloaded while being transported; and
  4. Any person while carrying out his duties in the Armed Forces of the United States or the National Guard of this Commonwealth or any other state.

    (1993, cc. 467, 494; 2003, c. 976; 2004, c. 995.)

The 2003 amendments. - The 2003 amendment by c. 976, in the first paragraph, substituted "18" for "eighteen" in the first sentence, and in the second sentence, twice substituted "single or multiple projectiles" for "a projectile," twice inserted "of a combustible material," and substituted "20" for "twenty."

The 2004 amendments. - The 2004 amendment by c. 995 deleted the former last sentence in the first paragraph which pertained to the forfeiture of any handgun possessed or transported in violation of this section.

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, §§ 4.1, 13.

§ 18.2-308.8. Importation, sale, possession or transfer of Striker 12's prohibited; penalty.

It shall be unlawful for any person to import, sell, possess or transfer the following firearms: the Striker 12, commonly called a "streetsweeper," or any semi-automatic folding stock shotgun of like kind with a spring tension drum magazine capable of holding twelve shotgun shells. A violation of this section shall be punishable as a Class 6 felony.

(1993, c. 888.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1993 act having been 18.2-308.7 .

Law review. - For note, "Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest," 97 Va. L. Rev. 1727 (2011).

Michie's Jurisprudence. - For related discussion, see 20 M.J. Weapons, § 12.

§ 18.2-309. Furnishing certain weapons to minors; penalty.

  1. If any person sells, barters, gives or furnishes, or causes to be sold, bartered, given or furnished, to any minor a dirk, switchblade knife or bowie knife, having good cause to believe him to be a minor, such person shall be guilty of a Class 1 misdemeanor.
  2. If any person sells, barters, gives or furnishes, or causes to be sold, bartered, given or furnished, to any minor a handgun, having good cause to believe him to be a minor, such person shall be guilty of a Class 6 felony. This subsection shall not apply to any transfer made between family members or for the purpose of engaging in a sporting event or activity.

    (Code 1950, § 18.1-344; 1960, c. 358; 1975, cc. 14, 15; 1992, c. 487; 1993, c. 855.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants & Juveniles, § 89; 20 M.J. Weapons, § 12.

§ 18.2-310.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to forfeiture of certain weapons used in commission of criminal offense, see § 19.2-386.29 .

§ 18.2-311. Prohibiting the selling or having in possession blackjacks, etc.

If any person sells or barters, or exhibits for sale or for barter, or gives or furnishes, or causes to be sold, bartered, given or furnished, or has in his possession, or under his control, with the intent of selling, bartering, giving or furnishing, any blackjack, brass or metal knucks, any disc of whatever configuration having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, switchblade knife, ballistic knife as defined in § 18.2-307.1 , or like weapons, such person is guilty of a Class 4 misdemeanor. The having in one's possession of any such weapon shall be prima facie evidence, except in the case of a conservator of the peace, of his intent to sell, barter, give or furnish the same.

(Code 1950, § 18.1-271; 1960, c. 358; 1975, cc. 14, 15; 1985, c. 394; 1988, c. 359; 2013, c. 746.)

Cross references. - As to sale, etc., of toy firearms, see § 18.2-284 .

As to sale, etc., of weapons to minors, see § 18.2-309 .

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

The 2013 amendments. - The 2013 amendment by c. 746 substituted "ballistic knife as defined in § 18.2-307.1 , or like weapons, such person is guilty" for "ballistic knife, or like weapons, such person shall be guilty" near the end of the first sentence.

§ 18.2-311.1. Removing, altering, etc., serial number or other identification on firearm.

Any person, firm, association or corporation who or which intentionally removes, defaces, alters, changes, destroys or obliterates in any manner or way or who or which causes to be removed, defaced, altered, changed, destroyed or obliterated in any manner or way the name of the maker, model, manufacturer's or serial number, or any other mark or identification on any pistol, shotgun, rifle, machine gun or any other firearm shall be guilty of a Class 1 misdemeanor.

(1975, c. 590.)

Law review. - For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

CASE NOTES

Venue. - Defendant's conviction of altering the serial number of a firearm in violation of § 18.2-311.1 was reversed; as there was no evidence he removed the serial number in Brunswick County, the Commonwealth failed to meet its burden under § 19.2-244 to show that venue was proper in that county. Bonner v. Commonwealth, 61 Va. App. 247, 734 S.E.2d 692, 2012 Va. App. LEXIS 399 (2012).

As the offense of altering or removing a serial number of a firearm, § 18.2-311.1 , constitutes a discrete act rather than a continuing offense, under § 19.2-244 , venue is proper where the alteration or removal was done. Bonner v. Commonwealth, 61 Va. App. 247, 734 S.E.2d 692, 2012 Va. App. LEXIS 399 (2012).

Altering the serial number of a firearm is a discrete act so that venue for a prosecution under this statute lies in the county where the alteration occurred. Thus a trial court erred in finding that the Commonwealth established a strong presumption that the alteration of the serial number in defendant's possession occurred in Brunswick County as there was no testimony or other evidence that defendant was the one who filed down the serial number, let alone where that discrete act occurred. Bonner v. Commonwealth, 62 Va. App. 206, 745 S.E.2d 162, 2013 Va. App. LEXIS 216 (2013).

§ 18.2-311.2. Third conviction of firearm offenses; penalty.

On a third or subsequent conviction of any offense contained in Article 4 (§ 18.2-279 et seq.), 5 (§ 18.2-288 et seq.), 6 (§ 18.2-299 et seq.), or 7 (§ 18.2-308.1 et seq.) of Chapter 7 of Title 18.2, which would ordinarily be punished as a Class 1 misdemeanor, where it is alleged in the information or indictment on which the person is convicted, that (i) such person has been twice previously convicted of a violation of any Class 1 misdemeanor or felony offense contained in either Article 4, 5, 6, or 7 of Chapter 7 of Title 18.2 or § 18.2-53.1 , or of a substantially similar offense under the law of any other jurisdiction of the United States, and (ii) each such violation occurred on a different date, such person is guilty of a Class 6 felony.

(1994, c. 731.)

Editor's note. - At the direction of the Virginia Code Commission, substituted "Article 4 ( § 18.2-279 et seq.), 5 ( § 18.2-288 et seq.), 6 ( § 18.2-299 et seq.), or 7 ( § 18.2-308.1 et seq.) of Chapter 7" for "Article 4, 5, 6, or 7 of Chapter 7 ( § 18.2-247 et seq.)" and substituted "is guilty” for "shall be guilty.”

Article 8. Miscellaneous Dangerous Conduct.

§ 18.2-312. Illegal use of tear gas, phosgene and other gases.

If any person maliciously release or cause or procure to be released in any private home, place of business or place of public gathering any tear gas, mustard gas, phosgene gas or other noxious or nauseating gases or mixtures of chemicals designed to, and capable of, producing vile or injurious or nauseating odors or gases, and bodily injury results to any person from such gas or odor, the offending person shall be guilty of a Class 3 felony.

If such act be done unlawfully, but not maliciously, the offending person shall be guilty of a Class 6 felony.

Nothing herein contained shall prevent the use of tear gas or other gases by police officers or other peace officers in the proper performance of their duties, or by any person or persons in the protection of person, life or property.

(Code 1950, § 18.1-70; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

CASE NOTES

Construction. - When defendant sprayed a store manager with mace on the sidewalk between the front of the store and the store's parking lot, he violated the statute by discharging a noxious gas in a place of public gathering. Bolton v. Commonwealth, 36 Va. App. 358, 550 S.E.2d 342, 2001 Va. App. LEXIS 477 (2001).

"Caustic substance." - Classification of a substance as a "caustic substance" does not preclude a classification of the same substance as a noxious gas; a substance may have the characteristics of both a noxious gas and a caustic substance, and a noxious gas, for example, may cause bodily injury through its caustic, or burning, effects. Therefore, in a case where defendant either used mace or pepper spray, it was up to the prosecutor to determine what crime to charge her with. Somerville v. Commonwealth, No. 0543-14-2, 2015 Va. App. LEXIS 45 (Feb. 10, 2015).

Evidence sufficient. - Evidence was sufficient to support convictions for malicious use of a noxious gas to cause bodily injury and criminal solicitation of another to maliciously use a noxious gas to cause bodily injury where defendant sprayed a security officer in the face and encouraged her companion to do the same; testimony concerning the physical composition of pepper spray did not establish that the substance at issue was a liquid, rather than a gas. While the substance might have technically consisted of liquid particles, they were combined with other molecules and released from a canister in a gaseous state through an aerosol spray. Somerville v. Commonwealth, No. 0543-14-2, 2015 Va. App. LEXIS 45 (Feb. 10, 2015).

§ 18.2-313. Handling or using snakes so as to endanger human life or health.

It shall be unlawful for any person, or persons, to display, exhibit, handle or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person.

Any person violating the provisions of this section shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-72; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For comment on state's power to require an individual to protect himself, see 26 Wash. & Lee L. Rev. 112 (1969).

§ 18.2-313.1. Withholding information about possibly rabid animal; penalty.

It shall be unlawful for any person to (i) knowingly withhold information from, or knowingly give false information to, any lawfully authorized governmental agent which would reasonably lead to the discovery or location and capture of any animal reasonably identifiable as one that has potentially exposed a human being to rabies; (ii) upon the request of an animal control officer, a law-enforcement officer, or an official of the Department of Health, willfully fail to grant access to any animal owned, harbored, or kept by that person that is suspected of having caused a rabies exposure to a human being; or (iii) upon notice by an animal control officer, a law-enforcement officer, or an official of the Department of Health, willfully fail to comply with a confinement, isolation, or quarantine order.

Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

(1989, c. 491; 2010, c. 834.)

The 2010 amendments. - The 2010 amendment by c. 834, in the first paragraph, inserted the clause (i) designation and therein substituted "that has potentially exposed a human being to rabies" for "which has bitten a human being," and added clauses (ii) and (iii).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Animals, § 10.

§ 18.2-313.2. Introduction of snakehead fish or zebra mussel; penalty.

Any person who knowingly introduces into state waters any snakehead fish of the family Channidae, or knowingly places or causes to be placed into state waters any zebra mussel (Dreissena polymorpha) or the larvae thereof, without a permit from the Director of Wildlife Resources issued pursuant to § 29.1-575 is guilty of a Class 1 misdemeanor.

(2005, c. 916; 2017, c. 361.)

Editor's note. - At the direction of the Virginia Code Commission, "Director of Wildlife Resources" was substituted for "Director of Game and Inland Fisheries" in this section to conform with Acts 2020, c. 958.

The 2017 amendments. - The 2017 amendment by c. 361 substituted "introduces into state waters" for "introduces into the Commonwealth."

§ 18.2-314. Failing to secure medical attention for injured child.

Any parent or other person having custody of a minor child which child shows evidence of need for medical attention as the result of physical injury inflicted by an act of any member of the household, whether the injury was intentional or unintentional, who knowingly fails or refuses to secure prompt and adequate medical attention, or who conspires to prevent the securing of such attention, for such minor child, shall be guilty of a Class 1 misdemeanor; provided, however, that any parent or other person having custody of a minor child that is being furnished Christian Science treatment by a duly accredited Christian Science practitioner shall not, for that reason alone, be considered in violation of this section.

(Code 1950, § 18.1-74.2; 1966, c. 578; 1975, cc. 14, 15.)

Cross references. - For definition of "barrier crime" as including a conviction of failure to secure medical attention for an injured child as set out in § 18.2-314 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including failure to secure medical attention for an injured child as set out in § 18.2-314 , or an equivalent offense in another state, see § 63.2-1726 .

§ 18.2-315.

Repealed by Acts 1980, c. 173.

§ 18.2-316. Duty of persons causing well or pit to be dug to fill it before abandonment.

Any person who has caused to be dug on his own land or the land of another any well or pit, shall fill such well or pit with earth so that the same shall not be dangerous to human beings, animals or fowls before such well or such pit is abandoned; and any person owning land whereon any such well or pit is located shall in the same manner fill with earth any such well or pit which has been abandoned, provided such person has knowledge of the existence of such well or pit.

But in the case of mining operations in lieu of filling the shaft or pit the owner or operator thereof on ceasing operations in such shaft or pit shall securely fence the same and keep the same at all times thereafter securely fenced.

Any person violating any provision of this section shall be deemed guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-73; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abandonment, § 1; 13B M.J. Negligence, § 16.

CASE NOTES

A "well," as the term is commonly used, means a cylindrical shaft of a relatively small diameter. Certainly, an excavation covering three-fourths of an acre is not within the commonly accepted definition of a well. Polesky v. Northern Va. Constr. Co., 196 Va. 532 , 84 S.E.2d 443 (1954).

Second paragraph applies only to persons engaged in mining operations. - The provision in the second paragraph of this section requiring the fencing of an abandoned "shaft or pit" applies only to one engaged in "mining operations." Polesky v. Northern Va. Constr. Co., 196 Va. 532 , 84 S.E.2d 443 (1954).

Section held inapplicable. - Plaintiff sued for the wrongful death of her twelve-year-old son who drowned in water which had collected in an abandoned hole where defendant had dug sand and gravel. Her action was predicated on a violation of this section. This section, however, has no application to an excavation of the size of defendant's, which covered nearly an acre. Therefore the trial court correctly dismissed the action. Polesky v. Northern Va. Constr. Co., 196 Va. 532 , 84 S.E.2d 443 (1954).

§ 18.2-317. Covers to be kept on certain wells.

Every person owning or occupying any land on which there is a well having a diameter greater than six inches and which is more than ten feet deep shall at all times keep the same covered in such a manner as not to be dangerous to human beings, animals or fowls.

Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-74; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-318. Authority of counties, cities and towns to require and regulate well covers.

Notwithstanding the provisions of § 18.2-317 , the governing body of any county, city or town may adopt ordinances requiring persons owning or occupying any land within such county, city or town on which there is a well having a diameter greater than six inches and which is more than ten feet deep to keep the same covered in such a manner as not to be dangerous to human beings, animals or fowls.

Any such ordinance may specify and require reasonable minimum standards for the construction, installation and maintenance of such covers, including the manner in which any concrete used in connection therewith shall be reinforced, and may prescribe punishment for violations not inconsistent with general law.

(Code 1950, § 18.1-74.1; 1962, c. 525; 1975, cc. 14, 15.)

§ 18.2-319. Discarding or abandoning iceboxes, etc.; precautions required.

It shall be unlawful for any person, firm or corporation to discard, abandon, leave or allow to remain in any place any icebox, refrigerator or other container, device or equipment of any kind with an interior storage area of more than two cubic feet of clear space which is airtight, without first removing the door or doors or hinges from such icebox, refrigerator, container, device or equipment.

This section shall not apply to any icebox, refrigerator, container, device or equipment which is being used for the purpose for which it was originally designed, or is being used for display purposes by any retail or wholesale merchant, or is crated, strapped or locked to such an extent that it is impossible for a child to obtain access to any airtight compartment thereof.

Any violation of the provisions of this section shall be punishable as a Class 3 misdemeanor.

(Code 1950, § 18.1-415; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abandonment, § 1.

§ 18.2-320. Sale, etc., of plastic bags; warning required.

  1. No person shall sell, offer for sale, or deliver, or offer for delivery, or give away any plastic bag or partial plastic bag intended to enclose freshly cleaned clothing, the length of which totals twenty-five inches or more and the material of which is less than one mil (1/1000 inch) in thickness; unless such plastic bag bears the following warning statement, or a warning statement which the Commissioner of Health has approved as the equivalent thereof:

    "WARNING: To avoid danger of suffocation, keep this plastic bag away from babies and children. Do not use this bag in cribs, beds, carriages or playpens."

  2. Such warning statement shall be imprinted in a prominent place on the plastic bag or shall appear on a label securely attached to the bag in a prominent place, and shall be printed in legible type of at least thirty-six point type.
  3. Violators of this section shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-415.1; 1968, c. 340; 1975, cc. 14, 15.)

§ 18.2-321. Using X ray, fluoroscope, etc., in the fitting of footwear.

It shall be unlawful for any person to use any X ray, fluoroscope, or other equipment or apparatus employing roentgen rays, in the fitting of shoes or other footwear. This section shall not apply to any licensed physician or surgeon in the practice of his profession. Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-416; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-322. Expectorating in public places.

No person shall spit, expectorate, or deposit any sputum, saliva, mucus, or any form of saliva or sputum upon the floor, stairways, or upon any part of any public building or place where the public assemble, or upon the floor of any part of any public conveyance, or upon any sidewalk abutting on any public street, alley or lane of any town or city.

Any person violating any provision of this section shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 32-69; 1975, cc. 14, 15.)

§ 18.2-322.1.

Repealed by Acts 1997, c. 391.

§ 18.2-323. Leaving disabled or dead animal in road, or allowing dead animal to remain unburied.

If any person cast any dead animal into a road or knowingly permit any dead animal to remain unburied upon his property when offensive to the public or, having in custody any maimed, diseased, disabled or infirm animal, leave it to lie or be in a street, road or public place, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 32-70.1; 1958, c. 548; 1970, c. 72; 1975, cc. 14, 15.)

§ 18.2-323.01. Prohibition against disposal of dead body; penalty.

It shall be unlawful for any person to dispose of a dead body as defined in § 32.1-249 (i) on private property without the written permission of the landowner or (ii) on public property.

A violation of this section shall be punishable as a Class 1 misdemeanor.

(1992, c. 883.)

§ 18.2-323.02. Prohibition against concealment of dead body; penalty.

Any person who transports, secretes, conceals or alters a dead body, as defined in § 32.1-249 , with malicious intent and to prevent detection of an unlawful act or to prevent the detection of the death or the manner or cause of death is guilty of a Class 6 felony.

(2007, c. 436.)

CASE NOTES

Construction. - Concealing a body under § 18.2-323.02 may occur without dishonoring or desecrating a corpse, the conduct addressed in subsection B of § 18.2-126 ; defendant attempted to prevent detection of the victim's death by telling her family that she would return, even though he knew that she was dead and he had left her body in a city park, plus defendant told police that he last saw her when she left the house to buy drugs, but he did not admit that she had died in his bedroom that night. Everett v. Commonwealth, No. 1679-18-1, 2020 Va. App. LEXIS 110 (Apr. 14, 2020).

Definition of "dead body." - In a case in which defendant entered a conditional guilty plea for concealing a dead body in violation of § 18.2-323.02 , the appellate court disagreed with defendant's contention the trial court erred in denying her motion to dismiss the charge at issue because a fetus that dies in the womb does not fall within the definition of "dead body" as contemplated by the statute. Because it is clear that a stillborn fetus can fall within the applicable statutory definition of a dead body, and because it is clear that the legislature intended to treat it as such, the trial court did not err in denying defendant's motion to dismiss. Dellis v. Commonwealth, No. 0341-17-3, 2018 Va. App. LEXIS 109 (Apr. 24, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Definition of "dead body." - The words "a dead body," as used in § 18.2-323.02 , do not include the remains of a human fetus that expired in utero. See opinion of Attorney General to The Honorable Ralph S. Northam, Governor of Virginia, 18-023, 2018 Va. AG LEXIS 5 (5/25/18).

§ 18.2-323.1. Drinking while operating a motor vehicle; possession of open container while operating a motor vehicle and presumption; penalty.

  1. It shall be unlawful for any person to consume an alcoholic beverage while driving a motor vehicle upon a public highway of this Commonwealth.
  2. A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the open container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.

    For the purposes of this section:

    "Open container" means any vessel containing an alcoholic beverage, except the originally sealed manufacturer's container.

    "Passenger area" means the area designed to seat the driver of any motor vehicle, any area within the reach of the driver, including an unlocked glove compartment, and the area designed to seat passengers. This term shall not include the trunk of any passenger vehicle, the area behind the last upright seat of a passenger van, station wagon, hatchback, sport utility vehicle or any similar vehicle, the living quarters of a motor home, or the passenger area of a motor vehicle designed, maintained or used primarily for the transportation of persons for compensation, including a bus, taxi, or limousine, while engaged in the transportation of such persons.

  3. A violation of this section is punishable as a Class 4 misdemeanor.

    (1989, c. 343; 2002, c. 890.)

The 2002 amendments. - The 2002 amendment by c. 890 inserted "possession of open container while operating a motor vehicle and presumption" in the section catchline; inserted the subsections A and C designations; and added subsection B.

Law review. - For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 118.

CASE NOTES

Relationship with offense of driving under the influence. - Where the presence of an open container of alcohol and defendant's appearance gave rise to a rebuttable presumption that defendant consumed alcohol while driving, the fact that an officer did not perceive defendant to be drunk or driving under the influence did not negate the presumption because a driver did not have to be intoxicated to the extent necessary to support a conviction under § 18.2-266 in order to be found guilty of drinking while operating a motor vehicle in violation of § 18.2-323.1 . United States v. Washington, 439 F. Supp. 2d 589, 2006 U.S. Dist. LEXIS 52064 (E.D. Va. 2006), aff'd, 2009 U.S. App. LEXIS 16364 (4th Cir. Va. 2009).

Open container and defendant's appearance justified vehicle search. - Officer who observed a partially empty bottle of alcohol inside defendant's vehicle during a traffic stop did not violate the Fourth Amendment by retrieving the bottle because the presence of the open container of alcohol combined with the officer's observation that defendant's eyes were watery and bloodshot and that defendant's hands were shaking gave rise to a rebuttable presumption that defendant consumed alcohol while driving. United States v. Washington, 439 F. Supp. 2d 589, 2006 U.S. Dist. LEXIS 52064 (E.D. Va. 2006), aff'd, 2009 U.S. App. LEXIS 16364 (4th Cir. Va. 2009).

§ 18.2-324. Throwing or depositing certain substances upon highway; removal of such substances.

No person shall throw or deposit or cause to be deposited upon any highway any glass bottle, glass, nail, tack, wire, can, or any other substance likely to injure any person or animal, or damage any vehicle upon such highway, nor shall any person throw or deposit or cause to be deposited upon any highway any soil, sand, mud, gravel or other substances so as to create a hazard to the traveling public. Any person who drops, or permits to be dropped or thrown, upon any highway any destructive, hazardous or injurious material shall immediately remove the same or cause it to be removed. Any person removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from such vehicle. Any persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

This section shall not apply to the use, by a law-enforcement officer while in the discharge of official duties, of any device designed to deflate tires. The Division of Purchase and Supply shall, pursuant to § 2.2-1112 , set minimum standards for such devices and shall give notice of such standards to law-enforcement offices in the Commonwealth. No such device shall be used which does not meet or exceed the standards.

(Code 1950, § 33.1-350; 1970, c. 322; 1975, cc. 14, 15; 1997, c. 136.)

The 1997 amendment added the second paragraph.

Applied in Coleman v. Blankenship Oil Corp., 221 Va. 124 , 267 S.E.2d 143 (1980).

§ 18.2-324.1.

Repealed by Acts 2019, c. 712, cl. 11, effective October 1, 2019.

Cross references. - For current provisions as to the violation of former §§ 55-298.1 through 55-298.5 (now §§ 55.1-2800 through 55.1-2803 ), relating to electric fences, see § 55.1-2803 .

Editor's note. - Former § 18.2-324.1 , pertaining to punishment for violation of former §§ 55-298.1 through 55-298.5, relating to electric fences, derived from Code 1950, § 8-868.2; 1960, c. 384; 1977, c. 624.

Acts 2019, c. 712, cl. 5 provides: "That the repeal of Title 55 and § 18.2-324.1 , effective as of October 1, 2019, shall not affect any act or offense done or committed, or any penalty incurred, or any right established, accrued, or accruing on or before such date, or any proceeding, prosecution, suit, or action pending on that day. Except as otherwise provided in this act, neither the repeal of Title 55 nor the enactment of Title 55.1 shall apply to offenses committed prior to October 1, 2019, and prosecution for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purposes of this enactment, an offense was committed prior to October 1, 2019, if any of the essential elements of the offense occurred prior thereto."

Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 18.2-324.2. Use of unmanned aircraft system for certain purposes; penalty.

  1. It is unlawful for any person who is required to register pursuant to § 9.1-901 to use or operate an unmanned aircraft system to knowingly and intentionally (i) follow or contact another person without permission of such person or (ii) capture the images of another person without permission of such person when such images render the person recognizable by his face, likeness, or other distinguishing characteristic.
  2. It is unlawful for a respondent of a protective order issued pursuant to § 16.1-279.1 or 19.2-152.10 to knowingly and intentionally use or operate an unmanned aircraft system to follow, contact, or capture images of the petitioner of the protective order or any other individual named in the protective order.
  3. A violation of this section is a Class 1 misdemeanor.

    (2018, cc. 851, 852.)

Cross references. - As to punishment for Class 1 misdemeanor, see § 18.2-11 .

Editor's note. - Acts 2018, cc. 851 and 852, cl. 3 provides: "That the Secretary of Commerce and Trade, in consultation with the Virginia Economic Development Partnership, shall study the impact of this act on unmanned aircraft research, innovation, and economic development in Virginia and report to the Governor and General Assembly no later than November 1, 2019."

Chapter 8. Crimes Involving Morals and Decency.

Gambling.

Bingo and Raffles.

Charitable Gaming.

Sunday Offenses.

Commercial Sex Trafficking, Prostitution, etc.

Family Offenses; Crimes Against Children, etc.

Obscenity and Related Offenses.

Prohibited Sales and Loans to Juveniles.

Cruelty to Animals.

Offenses Involving Animals.

Article 1. Gambling.

§ 18.2-325. Definitions.

  1. "Illegal gambling" means the making, placing, or receipt of any bet or wager in the Commonwealth of money or other consideration or thing of value, made in exchange for a chance to win a prize, stake, or other consideration or thing of value, dependent upon the result of any game, contest, or any other event the outcome of which is uncertain or a matter of chance, whether such game, contest, or event occurs or is to occur inside or outside the limits of the Commonwealth.

    For the purposes of this subdivision and notwithstanding any provision in this section to the contrary, the making, placing, or receipt of any bet or wager of money or other consideration or thing of value shall include the purchase of a product, Internet access, or other thing made in exchange for a chance to win a prize, stake, or other consideration or thing of value by means of the operation of a gambling device as described in subdivision 3 b, regardless of whether the chance to win such prize, stake, or other consideration or thing of value may be offered in the absence of a purchase.

    "Illegal gambling" also means the playing or offering for play of any skill game.

  2. "Interstate gambling" means the conduct of an enterprise for profit that engages in the purchase or sale within the Commonwealth of any interest in a lottery of another state or country whether or not such interest is an actual lottery ticket, receipt, contingent promise to pay, order to purchase, or other record of such interest.
  3. "Gambling device" includes:
    1. Any device, machine, paraphernalia, equipment, or other thing, including books, records, and other papers, which are actually used in an illegal gambling operation or activity;
    2. Any machine, apparatus, implement, instrument, contrivance, board, or other thing, or electronic or video versions thereof, including but not limited to those dependent upon the insertion of a coin or other object for their operation, which operates, either completely automatically or with the aid of some physical act by the player or operator, in such a manner that, depending upon elements of chance, it may eject something of value or determine the prize or other thing of value to which the player is entitled; provided, however, that the return to the user of nothing more than additional chances or the right to use such machine is not deemed something of value within the meaning of this subsection; and provided further, that machines that only sell, or entitle the user to, items of merchandise of equivalent value that may differ from each other in composition, size, shape, or color, shall not be deemed gambling devices within the meaning of this subsection; and
    3. Skill games.

      Such devices are no less gambling devices if they indicate beforehand the definite result of one or more operations but not all the operations. Nor are they any less a gambling device because, apart from their use or adaptability as such, they may also sell or deliver something of value on a basis other than chance.

  4. "Operator" includes any person, firm, or association of persons, who conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling enterprise, activity, or operation.
  5. "Skill" means the knowledge, dexterity, or any other ability or expertise of a natural person.
  6. "Skill game" means an electronic, computerized, or mechanical contrivance, terminal, machine, or other device that requires the insertion of a coin, currency, ticket, token, or similar object to operate, activate, or play a game, the outcome of which is determined by any element of skill of the player and that may deliver or entitle the person playing or operating the device to receive cash; cash equivalents, gift cards, vouchers, billets, tickets, tokens, or electronic credits to be exchanged for cash; merchandise; or anything of value whether the payoff is made automatically from the device or manually.
  7. "Unregulated location" means any location that is not regulated or operated by the Virginia Lottery or Virginia Lottery Board, the Department of Agriculture and Consumer Services or the Charitable Gaming Board, the Virginia Alcoholic Beverage Control Authority, or the Virginia Racing Commission.

    (1975, cc. 14, 15; 1992, c. 423; 2010, c. 877; 2011, cc. 879, 887; 2019, c. 761; 2020, cc. 1217, 1277; 2021, Sp. Sess. I, cc. 329, 546.)

Cross references. - As to witnesses in prosecutions for gaming, see § 18.2-337 .

As to recovery back of gaming losses, see §§ 11-14 through 11-16 .

Editor's note. - Acts 2010, c. 877, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

Acts 2020, cc. 1217 and 1277, cl. 2 provides: "That until July 1, 2021, distributors shall remit a monthly tax to the Department of Taxation (the Department) of $1,200 for each skill game that such distributor provided for play in Virginia during the previous month. The Department shall allocate (i) two percent of the tax revenue collected pursuant to the second enactment of this act to the Problem Gambling Treatment and Support Fund, created pursuant to legislation enacted during the 2020 Regular Session of the General Assembly; (ii) two percent of the tax revenue collected pursuant to the second enactment of this act to the Virginia Alcohol Beverage Control Authority (the Authority) for the purposes of implementing the second, third, fourth, fifth, sixth, and seventh enactments of this act; (iii) 12 percent of the tax revenue collected pursuant to the second enactment of this act to the localities in which the skill games are located; and (iv) 84 percent of the tax revenue collected pursuant to the second enactment of this act to the COVID-19 Relief Fund established pursuant to § 2.2-115.1 of the Code of Virginia, as created by this act. Allocation of funds by the Department pursuant to the second enactment of this act shall occur no later than 60 days after such funds are collected. For purposes of the second, third, fourth, fifth, and sixth enactments of this act, 'distributor' means any person that (i) manufactures and sells skill games, including software and hardware, and distributes such devices to an ABC retail licensee or a truck stop or (ii) purchases or leases skill games from a manufacturer and provides such devices to an ABC retail licensee or a truck stop, and who otherwise maintains such games and is otherwise responsible for on-site data collection and accounting. For purposes of the second, third, fourth, fifth, and sixth enactments of this act, 'ABC retail licensee' means a person licensed by the Authority pursuant to Title 4.1 of the Code of Virginia. For purposes of the second, third, fourth, fifth, and sixth enactments of this act, 'truck stop' means an establishment (i) that is equipped with diesel islands used for fueling commercial motor vehicles; (ii) has sold, on average, at least 50,000 gallons of diesel or biodiesel fuel each month for the previous 12 months, or is projected to sell an average of at least 50,000 gallons of diesel or biodiesel fuel each month for the next 12 months; (iii) has parking spaces dedicated to commercial motor vehicles; (iv) has a convenience store; and (v) is situated on not less than three acres of land that the establishment owns or leases."

Acts 2020, cc. 1217 and 1277, cl. 3 provides: "That, beginning July 1, 2020, and each month following until July 1, 2021, distributors shall provide a report to the Virginia Alcoholic Beverage Control Authority (the Authority), in such form as required by the Authority, detailing (i) the total number of skill games provided for play in Virginia by the distributor, (ii) the address of each location where skill games are provided for play in Virginia by the distributor, (iii) the total number of skill games provided for play by the distributor at each respective location, (iv) the total amount wagered during the previous month on each skill game provided for play in Virginia by the distributor at each respective location where the skill game was provided, and (v) the total amount of prizes or winnings awarded during the previous month on each skill game provided for play in Virginia by the distributor at each respective location where the skill game was provided. The Authority shall aggregate information collected pursuant to this enactment and report it to the Governor, the Chairman of the Senate Committee on Finance and Appropriations, and the Chairmen of the House Committees on Appropriations and Finance on a monthly basis."

Acts 2020, cc. 1217 and 1277, cl. 4 provides: "That the total number of machines provided for play in Virginia by a distributor shall not exceed the total number of machines reported by that distributor to the Virginia Alcoholic Beverage Control Authority on July 1, 2020, pursuant to the third enactment of this act."

Acts 2020, cc. 1217 and 1277, cl. 5 provides: "That only those skill games that were provided by a distributor and available for play in ABC retail licensees and truck stops on June 30, 2020, may continue to operate on or after July 1, 2020."

Acts 2020, cc. 1217 and 1277, cl. 6 provides: "That any distributor found by the Virginia Alcoholic Beverage Control Authority (the Authority) to be in violation of the second, third, fourth, or fifth enactments of this act shall be subject to a civil penalty of not less than $25,000 and not more than $50,000 per incident. Civil penalties collected pursuant to the sixth enactment of this act shall be paid to the Authority and remitted by the Authority to the COVID-19 Relief Fund established pursuant to § 2.2-115.1 of the Code of Virginia, as created by this act."

Acts 2020, cc. 1217 and 1277, cl. 7 provides: "That, notwithstanding the provisions of § 58.1-3 of the Code of Virginia, the Department of Taxation shall be permitted to disclose information to the Virginia Alcoholic Beverage Control Authority regarding the tax remitted by any distributor pursuant to the second enactment of this act."

Acts 2020, cc. 1217 and 1277, cl. 8 provides: "That the second, third, fourth, fifth, sixth, and seventh enactments of this act shall expire on July 1, 2021."

Acts 2020, cc. 1217 and 1277, cl. 9 provides: "That the provisions of the first enactment of this act amending the Code of Virginia by adding a section numbered 2.2-115.1 shall become effective on July 1, 2020, and that the remaining provisions of the first enactment of this act shall become effective on July 1, 2021."

The 2010 amendments. - The 2010 amendment by c. 877 added subdivisions 1 a and 1 b and made minor stylistic changes.

The 2011 amendments. - The 2011 amendments by cc. 879 and 887 are identical, and deleted the a designation from the second paragraph of subdivision 1, and in the second paragraph of subdivision 1, inserted "Internet access, or other thing," added clause (i) designator, and added clause (ii); deleted subdivision 1 b which read: "Nothing in this section shall be construed or interpreted to prohibit the conduct of any lawful game, contest, lottery, scheme, or promotional offering that complies with the requirements contained in § 18.2-325.1 "; and inserted "or electronic or video versions thereof" in subdivision 3 b.

The 2019 amendments. - The 2019 amendment by c. 761, in the first paragraph of subdivision 1, inserted "consideration or" preceding "thing of value"; and rewrote the second paragraph of subdivision 1 which read: "For the purposes of this subdivision and notwithstanding any provision in this section to the contrary, the making, placing, or receipt of any bet or wager of money or other thing of value shall include the purchase of a product, Internet access, or other thing, which purchase credits the purchaser with free points or other measurable units that may be (i) risked by the purchaser for an opportunity to win additional points or other measurable units that are redeemable by the purchaser for money or (ii) redeemed by the purchaser for money, and but for the free points or other measurable units, with regard to clauses (i) and (ii), the purchase of the product, Internet access, or other thing (a) would be of insufficient value in and of itself to justify the purchase or (b) is merely incidental to the chance to win money."

The 2020 amendments. - The 2020 amendments by cc. 1217 and 1277, effective July 1, 2021, are identical, and in subdivision 1, added the last paragraph; added subdivision 3 c, preceding the last paragraph in subdivision 3; added subdivisions 5 and 6; and made related changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 329 and 546, effective July 1, 2021, are nearly identical, and added subdivision 7; and made a stylistic change. Subdivision 7 has been set out in the form above at the direction of the Virginia Code Commission.

Law review. - For annual survey article, "Local Government Law," see 46 U. Rich. L. Rev. 175 (2011).

For Survey article, see "Civil Practice and Procedure," 48 U. Rich. L. Rev. 1 (2013).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, §§ 2, 4-6, 9; 9B M.J. Horse and Dog Racing, § 1; 12A M.J. Lotteries, § 2.

CASE NOTES

What are bets. - While a bet implies a risk, it does not necessarily imply risk in both parties. There must be between them a chance of gain and a chance of loss; but it does not follow that each of the parties to the bet must have both these chances. Shumate v. Commonwealth, 56 Va. (15 Gratt.) 653 (1860).

"Conducts, finances, manages, supervises, directs, or owns," as used in subdivision (3) [now subdivision 4], construed. - See Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983).

The phrase "all or part of" in the definition of "operator" is intended to bring within the sweep of the statute a co-commander, co-leader, or co-manager. It is not intended as a mechanism for bootstrapping a defendant who played no leadership role in the operation into one who did. The phrase simply means that where there is proof that a defendant played even a partial leadership role in the illegal gambling enterprise then he can be convicted under § 18.2-328 . Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983).

"Bagman" in numbers operation held not to be an "operator." - See Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983).

Section not applicable to ticket purchases made outside Virginia. - Because of the "lag time" necessary to assure that the agents in other states could purchase the foreign lottery tickets and return them to Virginia prior to the drawing, all orders were for prospective, not present, wagers; therefore, a wager did not occur until the agents purchased the lottery tickets, and since those purchases occurred outside the Commonwealth of Virginia, § 18.2-330 and this section, as then in force, were inapplicable. Chavis v. Commonwealth, No. 1547-92-2 (Ct. of Appeals Feb. 15, 1994).

Pull-tab cards were "gambling devices." - Pull-tab cards which required a purchasing player to match symbols in perforated windows in order to be a "winner" were "gambling devices" within the meaning of this section. Virginia ABC Bd. v. VFW Ocean View Post-3160, 10 Va. App. 165, 390 S.E.2d 202 (1990).

Applied in Daniels v. Mobley, 285 Va. 402 , 737 S.E.2d 895, 2013 Va. LEXIS 27 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Poker tournaments. - Questions whether poker tournament and related business activities constitute gambling and whether the office of the Commissioner of the Revenue should issue business licenses authorizing such activities and whether admissions and other taxes should be assessed and collected in connection therewith require factual determinations. See opinion of Attorney General to The Honorable Franklin D. Edmondson, Commissioner of the Revenue for the City of Portsmouth, 07-084 (1/22/08).

The element of consideration is missing, and therefore no illegal gambling occurs, when the opportunity to win a prize is offered both with a purchase and without the requirement of a purchase. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-064, 2010 Va. AG LEXIS 41 (7/30/10).

Whether scenarios involving charitable donations at computer terminals, political contributions made from computers in business establishments, or sale of prepaid, rechargeable telephone card and/or computer work station time constitute legal sweepstakes or illegal gambling, depends on whether the element of consideration is missing. The question is whether the sweepstakes is the product, i.e., individuals are paying to participate in a game of chance, or whether it is a charitable donation, political contribution or marketing tool. See opinion of Attorney General to The Honorable G. Manoli Loupassi, Member, House of Delegates, 11-086, 2011 Va. AG LEXIS 58 (8/12/11).

Illegal gambling. - Hypothetical examples that center on payment of money in exchange for a product, such as a phone card or a DVD, where the product offered to the consumer is not in fact the object of the transaction, instead, the consumer disregards the item "purchased" and seeks the opportunity to play a game of chance in order to win prizes or money, would constitute illegal gambling because the elements of prize, chance and consideration are present. See opinion of Attorney General to The Honorable R. Edward Houck, Member, Senate of Virginia, 10-095, 2010 Va. AG LEXIS 60 (10/15/10).

Raffle. - A political party or a candidate's campaign committee may not conduct a raffle. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, Senate of Virginia, 20-047, 2020 Va. AG LEXIS 33 (10/6/20).

§ 18.2-325.1.

Repealed by Acts 2011, cc. 879 and 887, cl. 2.

Editor's note. - Former § 18.2-325.1 , pertaining to lawful games, contests, etc.; methods of entry; and requirements, derived from Acts 2010, c. 877.

§ 18.2-326. Penalty for illegal gambling.

Except as otherwise provided in this article, any person who illegally gambles or engages in interstate gambling as defined in § 18.2-325 shall be guilty of a Class 3 misdemeanor. If an association or pool of persons illegally gamble, each person therein shall be guilty of illegal gambling.

However, if any person makes, places, or receives any bet or wager of money or other thing of value on a horse race in the Commonwealth, whether the race is inside or outside the limits of the Commonwealth at any place or through any means other than (i) at a racetrack licensed by the Virginia Racing Commission pursuant to Chapter 29 (§ 59.1-364 et seq.) of Title 59.1 or (ii) at a satellite facility or through advance deposit account wagering, as those terms are defined in § 59.1-365 , licensed by the Virginia Racing Commission pursuant to Chapter 29 (§ 59.1-364 et seq.) of Title 59.1, such person shall be guilty of a Class 1 misdemeanor. For the purposes of this paragraph, venue shall be in any county or city in which any act was performed in furtherance of any course of conduct constituting illegal gambling.

(Code 1950, § 18.1-316; 1960, c. 358; 1973, c. 463; 1975, cc. 14, 15; 1992, c. 423; 2011, c. 732.)

Editor's note. - Acts 2011, c. 732, cl. 2, provides: "That the Virginia Racing Commission shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

The 2011 amendments. - The 2011 amendment by c. 732 added the second paragraph.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming & Gaming Contracts, §§ 4, 8, 13.

CASE NOTES

Application. - There was sufficient proof that through his activities, defendant knowingly aided and abetted the illegal gambling among spectators of the cockfighting operation, and insomuch as § 18.2-326 made gambling on cockfighting illegal, and thus encompassed within 18 U.S.C.S. § 1955(b)(1), defendant's statutory argument failed; although § 18.2-333 clarified that participants in a contest of skill, where they may win a prize or purse, were not guilty of gambling, nothing in that made it lawful for any person to wager on the outcome of such events. United States v. Kingrea, 567 F.3d 119, 2009 U.S. App. LEXIS 11505 (4th Cir. 2009).

Malum prohibitum. - In this State gambling is mala prohibita. Parr v. Commonwealth, 198 Va. 721 , 96 S.E.2d 160 (1957).

Gambling is not an offense at common law. Parr v. Commonwealth, 198 Va. 721 , 96 S.E.2d 160 (1957).

It is unlawful to bet at any game at a public place. Neal v. Commonwealth, 63 Va. (22 Gratt.) 917 (1872).

Applied in Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983); Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24 (E.D. Va. 1983).

OPINIONS OF THE ATTORNEY GENERAL

The element of consideration is missing, and therefore no illegal gambling occurs, when the opportunity to win a prize is offered both with a purchase and without the requirement of a purchase. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-064, 2010 Va. AG LEXIS 41 (7/30/10).

Whether scenarios involving charitable donations at computer terminals, political contributions made from computers in business establishments, or sale of prepaid, rechargeable telephone card and/or computer work station time constitute legal sweepstakes or illegal gambling, depends on whether the element of consideration is missing. The question is whether the sweepstakes is the product, i.e., individuals are paying to participate in a game of chance, or whether it is a charitable donation, political contribution or marketing tool. See opinion of Attorney General to The Honorable G. Manoli Loupassi, Member, House of Delegates, 11-086, 2011 Va. AG LEXIS 58 (8/12/11).

Illegal gambling. - Hypothetical examples that center on payment of money in exchange for a product, such as a phone card or a DVD, where the product offered to the consumer is not in fact the object of the transaction, instead, the consumer disregards the item "purchased" and seeks the opportunity to play a game of chance in order to win prizes or money, would constitute illegal gambling because the elements of prize, chance and consideration are present. See opinion of Attorney General to The Honorable R. Edward Houck, Member, Senate of Virginia, 10-095, 2010 Va. AG LEXIS 60 (10/15/10).

§ 18.2-327. Winning by fraud; penalty.

If any person while gambling cheats or by fraudulent means wins or acquires for himself or another money or any other valuable thing, he shall be fined not less than five nor more than ten times the value of such winnings. This penalty shall be in addition to any other penalty imposed under this article.

(Code 1950, § 18.1-318; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-328. Conducting illegal gambling operation; penalties.

The operator of an illegal gambling enterprise, activity or operation shall be guilty of a Class 6 felony. However, any such operator who engages in an illegal gambling operation which (i) has been or remains in substantially continuous operation for a period in excess of thirty days or (ii) has gross revenue of $2,000 or more in any single day shall be fined not more than $20,000 and imprisoned not less than one year nor more than ten years.

As used in this section, the term "gross revenue" means the total amount of illegal gambling transactions handled, dealt with, received by or placed with such operation, as distinguished from any net figure or amount from which deductions are taken, without regard to whether money or any other thing of value actually changes hands.

(Code 1950, § 18.1-318.1; 1972, c. 364; 1975, cc. 14, 15; 1983, c. 331.)

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, § 19; 12A M.J. Lotteries, §§ 3, 4.

CASE NOTES

Constitutionality. - Even if the definition of illegal gambling in § 18.2-325 was "read" as not having an exception for games of skill, § 18.2-333 provided that skill be considered in determining whether § 18.2-328 had been violated. The ruling of the circuit court concerning § 18.2-325 could not have rendered an otherwise valid § 18.2-328 void for vagueness. Daniels v. Mobley, 285 Va. 402 , 737 S.E.2d 895, 2013 Va. LEXIS 27 (2013).

Legislative intent. - The General Assembly intended to allow the Commonwealth to elect to charge a defendant with multiple counts of violating this section, where the evidence proves that the statute was violated at separate and distinct times. Dingus v. Commonwealth, 23 Va. App. 382, 477 S.E.2d 303 (1996).

Construction. - While this section is penal in nature and must be strictly construed and any ambiguity as to its meaning resolved in the defendant's favor, that does not mean that the defendant is entitled to a favorable result based on an unreasonably restrictive interpretation of the Code. Dingus v. Commonwealth, 23 Va. App. 382, 477 S.E.2d 303 (1996).

This section is in pari materia with several other provisions on gambling, which calls into play the rule of construction that statutes relating to the same subject should be read and construed together. Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983).

Defendant need not be only person in charge. - In order to bring defendant within the ambit of this section it was not necessary to show that he was the only person in charge. The statute was intended to bring within its sweep a co-commander, co-leader, or co-manager; moreover, where there is proof that a defendant played even a partial leadership role in the illegal gambling enterprise then he can be convicted under this section. Walton v. Commonwealth, No. 0388-85 (Ct. of Appeals Nov. 12, 1986).

"Bagman" in numbers operation held not to be an "operator." - See Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983).

Proof requirements. - To convict under this section, the Commonwealth need only prove that the defendant operated an illegal gambling enterprise, activity or operation. Dingus v. Commonwealth, 23 Va. App. 382, 477 S.E.2d 303 (1996).

Evidence of leadership role in gambling operation. - Evidence that defendant arranged to lease the building where the gambling occurred, made the necessary renovations to the building, paid the monthly rent, handled the "overhead" for the club, gave instructions to handlers of the house money and personally handled and collected money from the dice games, showed that defendant played a leadership or management role in the gambling operation and the trier of fact could properly have found beyond a reasonable doubt that defendant actively conducted, managed, supervised or directed all or part of the gambling enterprise. Walton v. Commonwealth, No. 0388-85 (Ct. of Appeals Nov. 12, 1986).

Sports publications were hearsay evidence. - Where sports publications were admitted into evidence to show that the betting sheets written by defendant corresponded with the season's football and basketball schedules and win-loss records, the publications were hearsay and did not fall within any recognized exception to the hearsay rule, and the trial court erred in admitting them. Papuchis v. Commonwealth, 15 Va. App. 281, 422 S.E.2d 419 (1992).

Sufficiency of evidence. - Where the evidence was examined without the improperly admitted taped telephone conversation, the evidence was insufficient to show that the defendant was operating a gambling enterprise, as no physical evidence was identified by the expert witness linking the defendant to the illegal activity in the house. Snead v. Commonwealth, 4 Va. App. 493, 358 S.E.2d 750 (1987).

Applied in Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983); Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24 (E.D. Va. 1983).

OPINIONS OF THE ATTORNEY GENERAL

Illegal gambling. - Hypothetical examples that center on payment of money in exchange for a product, such as a phone card or a DVD, where the product offered to the consumer is not in fact the object of the transaction, instead, the consumer disregards the item "purchased" and seeks the opportunity to play a game of chance in order to win prizes or money, would constitute illegal gambling because the elements of prize, chance and consideration are present. See opinion of Attorney General to The Honorable R. Edward Houck, Member, Senate of Virginia, 10-095, 2010 Va. AG LEXIS 60 (10/15/10).

§ 18.2-329. Owners, etc., of gambling place permitting its continuance; penalty.

If the owner, lessee, tenant, occupant or other person in control of any place or conveyance, knows, or reasonably should know, that it is being used for illegal gambling, and permits such gambling to continue without having notified a law-enforcement officer of the presence of such illegal gambling activity, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, §§ 18.1-319, 18.1-324, 18.1-337, 18.1-339; 1960, c. 358; 1968, c. 401; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, §§ 8, 12; 9B Horse and Dog Racing, § 1.

§ 18.2-330. Accessories to gambling activity; penalty.

Any person, firm or association of persons, other than those persons specified in other sections of this article, who knowingly aids, abets or assists in the operation of an illegal gambling enterprise, activity or operation, shall be guilty of a Class 1 misdemeanor.

(Code 1950, §§ 18.1-319, 18.1-325; 1960, c. 358; 1968, c. 401; 1975, cc. 14, 15; 1984, c. 625.)

Cross references. - As to gaming contracts being void, see § 11-14 .

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, § 13; 9B Horse and Dog Racing, § 1.

CASE NOTES

Section not applicable to ticket purchases made outside Virginia. - Because of the "lag time" necessary to assure that the agents in other states could purchase the foreign lottery tickets and return them to Virginia prior to the drawing, all orders were for prospective, not present, wagers; therefore, a wager did not occur until the agents purchased the lottery tickets, and since those purchases occurred outside the Commonwealth of Virginia, § 18.2-325 and this section, as then in force, were inapplicable. Chavis v. Commonwealth, No. 1547-92-2 (Ct. of Appeals Feb. 15, 1994).

Applied in Turner v. Commonwealth, 226 Va. 456 , 309 S.E.2d 337 (1983).

§ 18.2-331. Illegal possession, etc., of gambling device; penalty.

A person is guilty of illegal possession of a gambling device when he manufactures, sells, transports, rents, gives away, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of any gambling device, believing or having reason to believe that the same is to be used in the advancement of unlawful gambling activity. Violation of any provision of this section shall constitute a Class 1 misdemeanor.

(Code 1950, §§ 18.1-323, 18.1-329, 18.1-330; 1960, c. 358; 1962, c. 633; 1964, c. 371; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, §§ 8, 9; 12A M.J. Lotteries, §§ 2-4.

CASE NOTES

Gambling device illustrated. - A slot machine operated by the player depositing a nickel or token and then turning a crank, whereupon the machine will automatically pay a reward, which will always contain a package of mint of the retail value of five cents and sometimes in addition thereto one or more tokens which may be used in playing the machine, is a gambling device within the meaning of this section against slot machines, though by means of an indicator the player was informed as to what the machine will play before each play but there is no method of knowing what the reward will be as to subsequent plays. Ferris v. Jones, 13 Va. L. Reg. (n.s.) 235 (1927).

Applied in Resorts Int'l Hotel, Inc. v. Agresta, 569 F. Supp. 24 (E.D. Va. 1983).

OPINIONS OF THE ATTORNEY GENERAL

Illegal gambling. - Hypothetical examples that center on payment of money in exchange for a product, such as a phone card or a DVD, where the product offered to the consumer is not in fact the object of the transaction, instead, the consumer disregards the item "purchased" and seeks the opportunity to play a game of chance in order to win prizes or money, would constitute illegal gambling because the elements of prize, chance and consideration are present. See opinion of Attorney General to The Honorable R. Edward Houck, Member, Senate of Virginia, 10-095, 2010 Va. AG LEXIS 60 (10/15/10).

Consideration. - Whether scenarios involving charitable donations at computer terminals or political contributions made from computers in business establishments constitute legal sweepstakes or illegal gambling, depends on whether the element of consideration is missing. The question is whether the sweepstakes is the product, i.e., individuals are paying to participate in a game of chance, or whether it is a charitable donation or political contribution. See opinion of Attorney General to The Honorable G. Manoli Loupassi, Member, House of Delegates, 11-086, 2011 Va. AG LEXIS 58 (8/12/11).

§ 18.2-331.1. Operation of gambling devices at unregulated locations; civil penalty.

  1. In addition to any other penalty provided by law, any person who conducts, finances, manages, supervises, directs, or owns a gambling device that is located in an unregulated location is subject to a civil penalty of up to $25,000 for each gambling device located in such unregulated location.
  2. The Attorney General, an attorney for the Commonwealth, or the attorney for any locality may cause an action in equity to be brought in the name of the Commonwealth or of the locality, as applicable, to enjoin the operation of a gambling device in violation of this section and to request an attachment against all such devices and any moneys within such devices pursuant to Chapter 20 (§ 8.01-533 et seq.) of Title 8.01, and to recover the civil penalty of up to $25,000 per device.
  3. In any action brought under this section, the Attorney General, the attorney for the Commonwealth, or the attorney for the locality may recover reasonable expenses incurred by the state or local agency in investigating and preparing the case, and attorney fees.
  4. Any civil penalties assessed under this section in an action in equity brought in the name of the Commonwealth shall be paid into the Literary Fund. Any civil penalties assessed under this section in an action in equity brought in the name of a locality shall be paid into the general fund of the locality.

    (2021, Sp. Sess. I, cc. 329, 546.)

Effective date. - This section is effective July 1, 2021.

§ 18.2-332. Certain acts not deemed "consideration" in prosecution under this article.

In any prosecution under this article, no consideration shall be deemed to have passed or been given because of any person's attendance upon the premises of another; his execution, mailing or delivery of an entry blank; his answering of questions, verbally or in writing; his witnessing of a demonstration or other proceeding; or any one or more thereof, where no charge is made to, paid by, or any purchase required of him in connection therewith.

(Code 1950, § 18.1-340.1; 1960, c. 226; 1975, cc. 14, 15.)

OPINIONS OF THE ATTORNEY GENERAL

The element of consideration is missing, and therefore no illegal gambling occurs, when the opportunity to win a prize is offered both with a purchase and without the requirement of a purchase. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-064, 2010 Va. AG LEXIS 41 (7/30/10).

§ 18.2-333. Exceptions to article; certain sporting events.

Nothing in this article shall be construed to prevent any contest of speed or skill between men, animals, fowl or vehicles, where participants may receive prizes or different percentages of a purse, stake or premium dependent upon whether they win or lose or dependent upon their position or score at the end of such contest.

Any participant who, for the purpose of competing for any such purse, stake or premium offered in any such contest, knowingly and fraudulently enters any contestant other than the contestant purported to be entered or knowingly and fraudulently enters a contestant in a class in which it does not belong, shall be guilty of a Class 3 misdemeanor.

(Code 1950, §§ 18.1-319, 18.1-322; 1960, c. 358; 1968, c. 401; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, § 6; 9B M.J. Horse and Dog Racing, § 1.

CASE NOTES

Application. - There was sufficient proof that through his activities, defendant knowingly aided and abetted the illegal gambling among spectators of the cockfighting operation, and insomuch as § 18.2-326 made gambling on cockfighting illegal, and thus encompassed within 18 U.S.C.S. § 1955(b)(1), defendant's statutory argument failed; although § 18.2-333 clarified that participants in a contest of skill, where they may win a prize or purse, were not guilty of gambling, nothing in that made it lawful for any person to wager on the outcome of such events. United States v. Kingrea, 567 F.3d 119, 2009 U.S. App. LEXIS 11505 (4th Cir. 2009).

Applied in Daniels v. Mobley, 285 Va. 402 , 737 S.E.2d 895, 2013 Va. LEXIS 27 (2013).

§ 18.2-334. Exception to article; private residences.

Nothing in this article shall be construed to make it illegal to participate in a game of chance conducted in a private residence, provided such private residence is not commonly used for such games of chance and there is no operator as defined in subsection 4 of § 18.2-325 .

(Code 1950, § 18.1-327; 1960, c. 358; 1975, cc. 14, 15; 1992, c. 423.)

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, §§ 5, 6.

§ 18.2-334.1.

Defeated at referendum.

Editor's note. - This section, relating to horse racing and pari-mutuel betting, was enacted by Acts 1978, c. 600. The 1978 act, which also enacted §§ 59.1-216 through 59.1-254, was made subject to referendum held Nov. 7, 1978, and provided that, if approved, the act would become effective Jan. 1, 1979. The act was defeated at the referendum, and therefore never went into effect.

§ 18.2-334.2. Same; bingo games, raffles, duck races, and Texas Hold'em poker tournaments conducted by certain organizations.

Nothing in this article shall apply to any bingo game, instant bingo, network bingo, raffle, duck race, or Texas Hold'em poker tournament conducted solely by organizations as defined in § 18.2-340.16 which have received a permit as set forth in § 18.2-340.25 , or which are exempt from the permit requirement under § 18.2-340.23 .

(1979, c. 420; 1993, c. 513; 1995, c. 837; 2013, cc. 36, 350; 2020, c. 982.)

Editor's note. - Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2020, c. 982, cl. 2 provides: "That the Charitable Gaming Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Charitable Gaming Board shall provide an opportunity for public comment on the regulations prior to adoption."

The 1995 amendment, effective July 1, 1996, substituted " § 18.2-340.16 which have" for "subdivisions 1 (a) and 1 (b) of § 18.2-340.2 and meeting the qualifications set forth in § 18.2-340.3 and having" and substituted " § 18.2-340.25 , or which are exempt from the permit requirement under § 18.2-340.23 " for " § 18.2-340.2."

The 2013 amendments. - The 2013 amendments by cc. 36 and 350, effective January 1, 2014, are identical and inserted "network bingo."

The 2020 amendments. - The 2020 amendment by c. 982 substituted "duck race, or Texas Hold'em poker tournament" for "or duck race."

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, § 6.

§ 18.2-334.3. Exemptions to article; state lottery; sports betting.

Nothing in this article shall apply to:

  1. Any lottery conducted by the Commonwealth of Virginia pursuant to Article 1 (§ 58.1-4000 et seq.) of Chapter 40 of Title 58.1; or
  2. Any sports betting or related activity that is lawful under Article 2 (§ 58.1-4030 et seq.) of Chapter 40 of Title 58.1. (1987, c. 531; 2020, cc. 1218, 1256.)

Editor's note. - Acts 2020, cc. 1218 and 1256, cl. 2 provides: "That the Virginia Lottery Board (the Board) shall promulgate regulations implementing the provisions of this act. The Board's initial adoption of regulations shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Board shall provide an opportunity for public comment on the regulations prior to adoption. The Board shall complete work on such regulations no later than September 15, 2020."

The 2020 amendments. - The 2020 amendments by cc. 1218 and 1256 are identical, and rewrote the section, which read: "Nothing in this article shall apply to any lottery conducted by the Commonwealth of Virginia pursuant to Chapter 40 of Title 58.1."

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, §§ 2, 13.

CASE NOTES

Section 11-14 is not a part of Chapter 8, Art. 1, of Title 18.2 of the Code and, therefore, the operation of § 11-14 is unaffected by the provisions of this section. Hughes v. Cole, 251 Va. 3 , 465 S.E.2d 820 (1996).

§ 18.2-334.4. Exemptions to article; pari-mutuel wagering.

Nothing in this article shall be construed to make it illegal to participate in any race meeting or pari-mutuel wagering conducted in accordance with Chapter 29 (§ 59.1-364 et seq.) of Title 59.1.

(1988, c. 855.)

§ 18.2-334.5. Exemptions to article; certain gaming operations.

Nothing in this article shall be construed to make it illegal to participate in any casino gaming operation conducted in accordance with Chapter 41 (§ 58.1-4100 et seq.) of Title 58.1.

(2020, cc. 1197, 1248.)

Editor's note. - Acts 2020, cc. 1197 and 1248, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, cc. 1197 and 1248, cl. 3 provides: "That the Virginia Lottery Board shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

§ 18.2-334.6. Exemptions to article; certain skill games offered at family entertainment centers.

  1. As used in this section:

    "Coin-operated amusement games" means games that do not deliver or entitle the person playing or operating the game to receive cash; cash equivalents, gift cards, vouchers, billets, tickets, tokens, or electronic credits to be exchanged for cash; or merchandise or anything of value.

    "Family entertainment center" means an establishment that (i) is located in a building that is owned, leased, or occupied by the establishment for the primary purpose of providing amusement and entertainment to the public; (ii) offers coin-operated amusement games and skill games pursuant to the exemption created by this section; and (iii) markets its business to families with children.

  2. Notwithstanding the provisions of § 18.2-325 , a person operating a family entertainment center may make skill games available for play if the prize won or distributed to a player is a noncash, merchandise prize or a voucher, billet, ticket, token, or electronic credit redeemable only for a noncash, merchandise prize (i) the value of which does not exceed the cost of playing the skill game or the total aggregate cost of playing multiple skill games; (ii) that is not and does not include an alcoholic beverage; (iii) that is not eligible for repurchase; and (iv) that is not exchangeable for cash, cash equivalents, or anything of value whatsoever. (2020, cc. 1217, 1277, § 18.2-334.5 .)

The number of this section was assigned by the Virginia Code Commission, the number in the 2020 act having been § 18.2-334.5 .

Editor's note. - Acts 2020, cc. 1217 and 1277, cl. 2 provides: "That until July 1, 2021, distributors shall remit a monthly tax to the Department of Taxation (the Department) of $1,200 for each skill game that such distributor provided for play in Virginia during the previous month. The Department shall allocate (i) two percent of the tax revenue collected pursuant to the second enactment of this act to the Problem Gambling Treatment and Support Fund, created pursuant to legislation enacted during the 2020 Regular Session of the General Assembly; (ii) two percent of the tax revenue collected pursuant to the second enactment of this act to the Virginia Alcohol Beverage Control Authority (the Authority) for the purposes of implementing the second, third, fourth, fifth, sixth, and seventh enactments of this act; (iii) 12 percent of the tax revenue collected pursuant to the second enactment of this act to the localities in which the skill games are located; and (iv) 84 percent of the tax revenue collected pursuant to the second enactment of this act to the COVID-19 Relief Fund established pursuant to § 2.2-115.1 of the Code of Virginia, as created by this act. Allocation of funds by the Department pursuant to the second enactment of this act shall occur no later than 60 days after such funds are collected. For purposes of the second, third, fourth, fifth, and sixth enactments of this act, 'distributor' means any person that (i) manufactures and sells skill games, including software and hardware, and distributes such devices to an ABC retail licensee or a truck stop or (ii) purchases or leases skill games from a manufacturer and provides such devices to an ABC retail licensee or a truck stop, and who otherwise maintains such games and is otherwise responsible for on-site data collection and accounting. For purposes of the second, third, fourth, fifth, and sixth enactments of this act, 'ABC retail licensee' means a person licensed by the Authority pursuant to Title 4.1 of the Code of Virginia. For purposes of the second, third, fourth, fifth, and sixth enactments of this act, 'truck stop' means an establishment (i) that is equipped with diesel islands used for fueling commercial motor vehicles; (ii) has sold, on average, at least 50,000 gallons of diesel or biodiesel fuel each month for the previous 12 months, or is projected to sell an average of at least 50,000 gallons of diesel or biodiesel fuel each month for the next 12 months; (iii) has parking spaces dedicated to commercial motor vehicles; (iv) has a convenience store; and (v) is situated on not less than three acres of land that the establishment owns or leases."

Acts 2020, cc. 1217 and 1277, cl. 3 provides: "That, beginning July 1, 2020, and each month following until July 1, 2021, distributors shall provide a report to the Virginia Alcoholic Beverage Control Authority (the Authority), in such form as required by the Authority, detailing (i) the total number of skill games provided for play in Virginia by the distributor, (ii) the address of each location where skill games are provided for play in Virginia by the distributor, (iii) the total number of skill games provided for play by the distributor at each respective location, (iv) the total amount wagered during the previous month on each skill game provided for play in Virginia by the distributor at each respective location where the skill game was provided, and (v) the total amount of prizes or winnings awarded during the previous month on each skill game provided for play in Virginia by the distributor at each respective location where the skill game was provided. The Authority shall aggregate information collected pursuant to this enactment and report it to the Governor, the Chairman of the Senate Committee on Finance and Appropriations, and the Chairmen of the House Committees on Appropriations and Finance on a monthly basis."

Acts 2020, cc. 1217 and 1277, cl. 4 provides: "That the total number of machines provided for play in Virginia by a distributor shall not exceed the total number of machines reported by that distributor to the Virginia Alcoholic Beverage Control Authority on July 1, 2020, pursuant to the third enactment of this act."

Acts 2020, cc. 1217 and 1277, cl. 5 provides: "That only those skill games that were provided by a distributor and available for play in ABC retail licensees and truck stops on June 30, 2020, may continue to operate on or after July 1, 2020."

Acts 2020, cc. 1217 and 1277, cl. 6 provides: "That any distributor found by the Virginia Alcoholic Beverage Control Authority (the Authority) to be in violation of the second, third, fourth, or fifth enactments of this act shall be subject to a civil penalty of not less than $25,000 and not more than $50,000 per incident. Civil penalties collected pursuant to the sixth enactment of this act shall be paid to the Authority and remitted by the Authority to the COVID-19 Relief Fund established pursuant to § 2.2-115.1 of the Code of Virginia, as created by this act."

Acts 2020, cc. 1217 and 1277, cl. 7 provides: "That, notwithstanding the provisions of § 58.1-3 of the Code of Virginia, the Department of Taxation shall be permitted to disclose information to the Virginia Alcoholic Beverage Control Authority regarding the tax remitted by any distributor pursuant to the second enactment of this act."

Acts 2020, cc. 1217 and 1277, cl. 8 provides: "That the second, third, fourth, fifth, sixth, and seventh enactments of this act shall expire on July 1, 2021."

Acts 2020, cc. 1217 and 1277, cl. 9 provides: "That the provisions of the first enactment of this act amending the Code of Virginia by adding a section numbered 2.2-115.1 shall become effective on July 1, 2020, and that the remaining provisions of the first enactment of this act shall become effective on July 1, 2021."

§ 18.2-335.

Repealed by Acts 1979, c. 420.

Cross references. - For present provisions as to bingo games and raffles, see § 18.2-334.2 and Article 1.1:1 ( § 18.2-340.15 et seq.) of this chapter.

§ 18.2-336.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to forfeiture of money, gambling devices, etc., seized from illegal gambling enterprise, see § 19.2-386.30 .

§ 18.2-337. Immunity of witnesses from prosecution.

No witness called by the Commonwealth or by the court, giving evidence either before the grand jury or in any prosecution under this article, shall ever be prosecuted for the offense being prosecuted concerning which he testifies. Such witness shall be compelled to testify and for refusing to do so may be punished for contempt.

(Code 1950, § 19.1-266; 1960, c. 366; 1975, cc. 14, 15.)

Cross references. - For other provisions as to immunity of witnesses, see §§ 18.2-445 and 48-15 .

CASE NOTES

This section secures full protection to witnesses testifying in prosecutions for unlawful gaming, and one is not justified in refusing to testify on the ground that his answer will tend to criminate and disgrace him. Kendrick v. Commonwealth, 78 Va. 490 (1884). See also Flanary v. Commonwealth, 113 Va. 775 , 75 S.E. 289 (1912).

§ 18.2-338. Enforcement of § 18.2-331 by Governor and Attorney General.

If it shall come to the knowledge of the Governor that § 18.2-331 is not being enforced in any county, city or town, the Governor may call upon the Attorney General to direct its enforcement in such county, city or town, and thereupon the Attorney General may instruct the attorney for the Commonwealth, sheriff and chief of police, if any, of such county, or the attorney for the Commonwealth and chief of police of such city, or the attorney for the Commonwealth of the county in which such town is located and the chief of police or sergeant of such town, to take such steps as may be necessary to insure the enforcement of such section in such county, city or town, and if any such officers, after receiving such instructions, shall thereafter fail or refuse to exercise diligence in the enforcement of § 18.2-331 , the Attorney General shall make report thereof in writing to the Governor and to the judge of the circuit court having jurisdiction over the acts thereby prohibited, and thereupon the Attorney General upon being directed so to do by the Governor, shall take such steps as he may deem proper in directing the institution and prosecution of criminal proceedings, to secure the enforcement of § 18.2-331 .

(Code 1950, § 18.1-334; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-339. Enjoining offenses relating to gambling.

Whenever any person shall be engaged in committing, or in permitting to be committed, or shall be about to commit, or permit, any act prohibited by any one or more of the sections in this article, the attorney for the Commonwealth of the county or city in which such act is being, or is about to be, committed or permitted, or the Attorney General of the Commonwealth, may institute and maintain a suit in equity in the appropriate court, in the name of the Commonwealth, upon the relation of such attorney for the Commonwealth, or the Attorney General, to enjoin and restrain such person from committing, or permitting, such prohibited act or acts. The procedure in any such suit shall be similar to the procedure in other suits for injunctions, except that no bond shall be required upon the granting of either a temporary or permanent injunction therein.

(Code 1950, § 18.1-343; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 12A M.J. Lotteries, § 4.

§ 18.2-340. County ordinances prohibiting illegal gambling.

The governing body of any county may adopt ordinances prohibiting illegal gambling, including a provision for forfeiture proceedings in accordance with Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2. Such ordinances shall not conflict with the provisions of this article or with other state laws and any penalties provided for violation of such ordinances shall not exceed a fine of $2,500 or confinement in jail for 12 months, either or both.

(Code 1950, § 18.1-344; 1960, c. 358; 1975, cc. 14, 15; 1991, c. 710; 2012, cc. 283, 756.)

The 2012 amendments. - The 2012 amendments by cc. 283 and 756 are identical, and substituted "gambling, including a provision for forfeiture proceedings in accordance with Chapter 22.1 ( § 19.2-386.1 et seq.) of Title 19.2" for "gambling and other illegal activity related thereto, including provision for forfeiture proceedings in the name of the county" at the end of the first sentence and "12 months" for "twelve months" in the second sentence.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Gaming and Gaming Contracts, §§ 2, 3, 5.

Article 1.1. Bingo and Raffles.

§§ 18.2-340.1 through 18.2-340.14.

Repealed by Acts 1995, c. 837, effective July 1, 1996.

Editor's note. - Acts 1995, c. 837, cl. 5, provides: "That the provisions of Article 1.1 ( § 18.2-340.1 et seq.) of Chapter 8 of Title 18.2 and any ordinances adopted pursuant thereto by local governing bodies shall remain in effect until July 1, 1996, when the Charitable Gaming Commission shall be vested with control of all charitable gaming in the Commonwealth and implement its regulations in accordance with Article 1.1:1 ( § 18.2-340.15 et seq.) of Chapter 8 of Title 18.2. No local governing body shall collect, in advance, any audit fee for the review of charitable gaming financial reports required to be filed by Article 2 ( § 18.2-340.1 et seq.) of Chapter 8 of Title 18.2."

Article 1.1:1.

Charitable Gaming.

§ 18.2-340.15. State control of charitable gaming.

  1. Charitable gaming as authorized herein shall be permitted in the Commonwealth as a means of funding qualified organizations but shall be conducted only in strict compliance with the provisions of this article. The Department of Agriculture and Consumer Services is vested with control of all charitable gaming in the Commonwealth. The Charitable Gaming Board shall have the power to prescribe regulations and conditions under which such gaming shall be conducted to ensure that it is conducted in a manner consistent with the purpose for which it is permitted.
  2. The conduct of any charitable gaming is a privilege that may be granted or denied by the Department of Agriculture and Consumer Services or its duly authorized representatives in its discretion in order to effectuate the purposes set forth in this article.

    (1995, c. 837; 2003, c. 884; 2006, c. 644; 2008, cc. 387, 689.)

Cross references. - As to the Charitable Gaming Board, see § 2.2-2455 et seq.

Editor's note. - Acts 2008, cc. 387 and 689, cl. 3 provides: "That as of July 1, 2008, the Department of Agriculture and Consumer Services shall be deemed successor in interest to the Department of Charitable Gaming to the extent that this act transfers powers and duties. All right, title, and interest in and to any real or tangible personal property vested in the Department of Charitable Gaming shall be transferred to and taken as standing in the name of the Department of Agriculture and Consumer Services."

Acts 2008, cc. 387 and 689, cl. 4 provides: "That the Governor may transfer an appropriation or any portion thereof within a state agency established, abolished, or otherwise affected by the provisions of this act, or from one such agency to another, to support the changes in organization or responsibility resulting from or required by the provisions of this act."

Acts 2008, cc. 387 and 689, cl. 5 provides: "That all rules and regulations adopted by the Department of Charitable Gaming or the Charitable Gaming Board that are in effect as of July 1, 2008, and that pertain to the subject of this act, shall remain in full force and effect until altered, amended, or rescinded by the Department of Agriculture and Consumer Services or the Charitable Gaming Board."

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department of Charitable Gaming" for "Charitable Gaming Commission" in subsections A and B, in subsection A divided the former second sentence into the present second and third sentences and substituted "The Charitable Gaming Board shall have the" for "with plenary" at the beginning of the present third sentence, and substituted "that" for "which" in subsection B.

The 2006 amendments. - The 2006 amendment by c. 644 inserted "but shall be conducted only in strict compliance with the provisions of this article" in the first sentence of subsection A.

The 2008 amendments. - The 2008 amendments by cc. 387 and 689 are nearly the same, and substituted "Department of Agriculture and Consumer Services" for "Department of Charitable Gaming" in the second sentence in subsection A and in subsection B. In addition, c. 387 substituted "Board of Agriculture and Consumer Services" for "Charitable Gaming Board" in the third sentence of subsection A.

OPINIONS OF THE ATTORNEY GENERAL

Raffle by political party. - A political party may not conduct a raffle as a form of charitable gaming in the Commonwealth, as it is not an entity specifically chartered or organized for religious, charitable, community, or educational purposes. See opinion of Attorney General to The Honorable H. Fuller Cridlin, Lee County Commonwealth's Attorney, 18-031, 2018 Va. AG LEXIS 19 (11/2/18).

A political party or a candidate's campaign committee may not conduct a raffle. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, Senate of Virginia, 20-047, 2020 Va. AG LEXIS 33 (10/6/20).

§ 18.2-340.16. Definitions.

As used in this article, unless the context requires a different meaning:

"Bingo" means a specific game of chance played with (i) individual cards having randomly numbered squares ranging from one to 75, (ii) Department-approved electronic devices that display facsimiles of bingo cards and are used for the purpose of marking and monitoring players' cards as numbers are called, or (iii) Department-approved cards, in which prizes are awarded on the basis of designated numbers on such cards conforming to a predetermined pattern of numbers selected at random.

"Board" means the Charitable Gaming Board created pursuant to § 2.2-2455 .

"Bona fide member" means an individual who participates in activities of a qualified organization other than such organization's charitable gaming activities.

"Charitable gaming" or "charitable games" means those raffles, Texas Hold'em poker tournaments, and games of chance explicitly authorized by this article.

"Charitable gaming supplies" includes bingo cards or sheets, devices for selecting bingo numbers, instant bingo cards, pull-tab cards and seal cards, playing cards for Texas Hold'em poker, poker chips, and any other equipment or product manufactured for or intended to be used in the conduct of charitable games. However, for the purposes of this article, charitable gaming supplies shall not include items incidental to the conduct of charitable gaming such as markers, wands, or tape.

"Commissioner" means the Commissioner of the Department of Agriculture and Consumer Services.

"Conduct" means the actions associated with the provision of a gaming operation during and immediately before or after the permitted activity, which may include, but not be limited to, (i) selling bingo cards or packs, electronic devices, instant bingo or pull-tab cards, or raffle tickets, (ii) calling bingo games, (iii) distributing prizes, and (iv) any other services provided by volunteer workers.

"Department" means the Department of Agriculture and Consumer Services.

"Fair market rental value" means the rent that a rental property will bring when offered for lease by a lessor who desires to lease the property but is not obligated to do so and leased by a lessee under no necessity of leasing.

"Gaming expenses" means prizes, supplies, costs of publicizing gaming activities, audit and administration or permit fees, and a portion of the rent, utilities, accounting and legal fees and such other reasonable and proper expenses as are directly incurred for the conduct of charitable gaming.

"Gross receipts" means the total amount of money generated by an organization from charitable gaming before the deduction of expenses, including prizes.

"Instant bingo," "pull tabs," or "seal cards" means specific games of chance played by the random selection of one or more individually prepacked cards, including Department-approved electronic versions thereof, with winners being determined by the preprinted or predetermined appearance of concealed letters, numbers or symbols that must be exposed by the player to determine wins and losses and may include the use of a seal card which conceals one or more numbers or symbols that have been designated in advance as prize winners. Such cards may be dispensed by electronic or mechanical equipment.

"Jackpot" means a bingo game that the organization has designated on its game program as a jackpot game in which the prize amount is greater than $100.

"Landlord" means any person or his agent, firm, association, organization, partnership, or corporation, employee, or immediate family member thereof, which owns and leases, or leases any premises devoted in whole or in part to the conduct of bingo games, and any person residing in the same household as a landlord.

"Management" means the provision of oversight of a gaming operation, which may include, but is not limited to, the responsibilities of applying for and maintaining a permit or authorization, compiling, submitting and maintaining required records and financial reports, and ensuring that all aspects of the operation are in compliance with all applicable statutes and regulations.

"Network bingo" means a specific bingo game in which pari-mutuel play is permitted.

"Network bingo provider" means a person licensed by the Department to operate network bingo.

"Operation" means the activities associated with production of a charitable gaming activity, which may include, but not be limited to (i) the direct on-site supervision of the conduct of charitable gaming; (ii) coordination of volunteers; and (iii) all responsibilities of charitable gaming designated by the organization's management.

"Organization" means any one of the following:

  1. A volunteer fire department or volunteer emergency medical services agency or auxiliary unit thereof that has been recognized in accordance with § 15.2-955 by an ordinance or resolution of the political subdivision where the volunteer fire department or volunteer emergency medical services agency is located as being a part of the safety program of such political subdivision;
  2. An organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code, is operated, and has always been operated, exclusively for educational purposes, and awards scholarships to accredited public institutions of higher education or other postsecondary schools licensed or certified by the Board of Education or the State Council of Higher Education for Virginia;
  3. An athletic association or booster club or a band booster club established solely to raise funds for school-sponsored athletic or band activities for a public school or private school accredited pursuant to § 22.1-19 or to provide scholarships to students attending such school;
  4. An association of war veterans or auxiliary units thereof organized in the United States;
  5. A fraternal association or corporation operating under the lodge system;
  6. An organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code and is operated, and has always been operated, exclusively to provide services and other resources to older Virginians, as defined in § 51.5-116 ;
  7. An organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code and is operated, and has always been operated, exclusively to foster youth amateur sports;
  8. An organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code and is operated, and has always been operated, exclusively to provide health care services or conduct medical research;
  9. An accredited public institution of higher education or other postsecondary school licensed or certified by the Board of Education or the State Council of Higher Education for Virginia that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code;
  10. A church or religious organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code;
  11. An organization that is exempt from income tax pursuant to § 501(c)(3) or 501(c)(4) of the Internal Revenue Code and is operated, and has always been operated, exclusively to (i) create and foster a spirit of understanding among the people of the world; (ii) promote the principles of good government and citizenship; (iii) take an active interest in the civic, cultural, social, and moral welfare of the community; (iv) provide a forum for the open discussion of matters of public interest; (v) encourage individuals to serve the community without personal financial reward; and (vi) encourage efficiency and promote high ethical standards in commerce, industries, professions, public works, and private endeavors;
  12. An organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code and is operated, and has always been operated, exclusively to (i) raise awareness of law-enforcement officers who died in the line of duty; (ii) raise funds for the National Law Enforcement Officers Memorial and Museum; and (iii) raise funds for the charitable causes of other organizations that are exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code;
  13. An organization that is exempt from income tax pursuant to § 501(c)(3) of the Internal Revenue Code and is operated, and has always been operated, exclusively to (i) promote the conservation of the environment, caves, or other natural resources; (ii) promote or develop opportunities for the use of science and technology to advance the conservation of the environment, caves, or other natural resources; and (iii) raise funds for the conservation of the environment, caves, or other natural resources or provide grant opportunities to other nonprofit organizations that are devoted to such conservation efforts;
  14. A local chamber of commerce; or
  15. Any other nonprofit organization that is exempt from income tax pursuant to § 501(c) of the Internal Revenue Code and that raises funds by conducting raffles, bingo, instant bingo, pull tabs, or seal cards that generate annual gross receipts of $40,000 or less, provided that such gross receipts, less expenses and prizes, are used exclusively for charitable, educational, religious or community purposes. Notwithstanding § 18.2-340.26:1 , proceeds from instant bingo, pull tabs, and seal cards shall be included when calculating an organization's annual gross receipts for the purposes of this subdivision. "Pari-mutuel play" means an integrated network operated by a licensee of the Department comprised of participating charitable organizations for the conduct of network bingo games in which the purchase of a network bingo card by a player automatically includes the player in a pool with all other players in the network, and where the prize to the winning player is awarded based on a percentage of the total amount of network bingo cards sold in a particular network. "Qualified organization" means any organization to which a valid permit has been issued by the Department to conduct charitable gaming or any organization that is exempt pursuant to § 18.2-340.23 . "Raffle" means a lottery in which the prize is won by (i) a random drawing of the name or prearranged number of one or more persons purchasing chances or (ii) a random contest in which the winning name or preassigned number of one or more persons purchasing chances is determined by a race involving inanimate objects floating on a body of water, commonly referred to as a "duck race." "Reasonable and proper business expenses" means business expenses actually incurred by a qualified organization in the conduct of charitable gaming and not otherwise allowed under this article or under Board regulations on real estate and personal property tax payments, travel expenses, payments of utilities and trash collection services, legal and accounting fees, costs of business furniture, fixtures and office equipment and costs of acquisition, maintenance, repair or construction of an organization's real property. For the purpose of this definition, salaries and wages of employees whose primary responsibility is to provide services for the principal benefit of an organization's members shall not qualify as a business expense. However, payments made pursuant to § 51.1-1204 to the Volunteer Firefighters' and Rescue Squad Workers' Service Award Fund shall be deemed a reasonable and proper business expense. "Supplier" means any person who offers to sell, sells or otherwise provides charitable gaming supplies to any qualified organization. "Texas Hold'em poker game" means a variation of poker in which (i) players receive two cards facedown that may be used individually, (ii) five cards shown face up are shared among all players in the game, (iii) players combine any number of their individual cards with the shared cards to make the highest five-card hand to win the value wagered during the game, and (iv) the ranking of hands and the rules of the game are governed by the official rules of the Poker Tournament Directors Association. "Texas Hold'em poker tournament" or "tournament" means an organized competition of players (i) who pay a fixed fee for entry into the competition and for a certain amount of poker chips for use in the competition; (ii) who may be allowed to pay an additional fee, during set preannounced times of the competition, to receive additional poker chips for use in the competition; (iii) who may be seated at one or more tables simultaneously playing Texas Hold'em poker games; (iv) who upon running out of poker chips are eliminated from the competition; and (v) a pre-set number of whom are awarded prizes of value according to how long such players remain in the competition. (1995, c. 837; 1996, c. 919; 1997, cc. 777, 838; 1998, cc. 57, 398; 1999, c. 534; 2002, cc. 282, 340; 2003, c. 884; 2006, c. 644; 2007, cc. 160, 264; 2008, cc. 387, 689; 2009, c. 121; 2010, c. 429; 2013, cc. 36, 350; 2015, cc. 502, 503; 2020, c. 982; 2021, Sp. Sess. I, c. 520.)

Editor's note. - Acts 1998, c. 398, cl. 3, effective October 1, 1998, provides: "That none of the provisions of this act shall be construed to reduce the potential lawful uses of gross receipts from charitable gaming derived by qualified organizations from what they were interpreted to be by the Charitable Gaming Commission [now the Agriculture and Consumer Services] as of January 14, 1998."

Acts 2010, c. 429, cl. 3, provides: "That the Department of Agriculture and Consumer Services shall report to the chairs of the House Committee on General Laws and the Senate Committee on General Laws and Technology on or before December 1, 2010 concerning the Department's efforts to increase the number of Department-approved independent laboratory testers in order to expedite the Department's approval process for new charitable games authorized by Article 1:1 ( § 18.2-340.15 et seq.) of Chapter 6 of Title 18.2 and regulations of the Charitable Gaming Board."

Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2020, c. 982, cl. 2 provides: "That the Charitable Gaming Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Charitable Gaming Board shall provide an opportunity for public comment on the regulations prior to adoption."

The 1996 amendment added the second sentences in the paragraph defining "Instant bingo" and in the next-to-last paragraph.

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and in the paragraph defining "Bingo," inserted the clause (i) designator and added clauses (ii) and (iii) in the first sentence and deleted "with each column having five randomly numbered squares, except the center column which shall contain one free space" at the end of the second sentence; in the paragraph defining "Organization," in subdivision 1, substituted "volunteer" for "voluntary" in two places and inserted "in accordance with § 15.1-26.01" following "has been recognized," and added subdivisions 5 and 6; and inserted "or 'seal cards' which conceal one or more numbers or symbols that have been designated in advance as prize winners" at the end of the first sentence in the second paragraph of the definition of "Raffle."

The 1998 amendments. - The 1998 amendment by c. 57, effective October 1, 1998, added the definitions for "Gaming expenses" and "Reasonable and proper business expenses."

The 1998 amendment by c. 398, effective October 1, 1998, added the definitions for "Gaming expenses" and "Reasonable and proper business expenses," and in the paragraph defining "Organization," in subdivision 1, substituted "15.2-955" for "15.1-26.01."

The 1999 amendment added the last sentence in the paragraph defining "Charitable gaming supplies."

The 2002 amendments. - The 2002 amendment by c. 282 inserted the paragraph defining "Fair market rental value."

The 2002 amendment by c. 340, in the definition of "Reasonable and proper business expenses," added the present last sentence of the paragraph.

The 2003 amendments. - The 2003 amendment by c. 884, in the definition of "Bingo" substituted "Board-approved" for "Commission-approved" twice, and substituted "subsection B of § 18.2-340.19 " for "subdivision 13 of § 18.2-340.18 "; added the definition of "Board"; deleted the definition of "Commission"; added the definitions of "Department" and "Director"; in the definition of "Qualified organization" substituted "Department" for "Commission"; and in the definition of "Reasonable and proper business expenses" substituted "Board" for "Commission."

The 2006 amendments. - The 2006 amendment by c. 644, in the paragraph defining "Bingo," substituted "Department" for "Board" in clauses (ii) and (iii), deleted "pursuant to subsection B of § 18.2-340.19 " following "approved cards" in clause (iii) and deleted the last sentence, which read: "Such cards shall have five columns headed respectively by the letters B.I.N.G.O."; added the paragraphs defining "Conduct," "Management" and "Operation"; substituted "generated" for "received" in the paragraph defining "Gross receipts"; in the paragraph defining "Instant bingo," inserted "'pull tabs,' or 'seal cards,"' substituted "a specific game" for "specific games," deleted "made completely out of paper or paper products" following "prepacked cards" and inserted "or predetermined"; in the paragraph defining "Jackpot," inserted the language beginning "that the organization" and ending "jackpot game," deleted clause (i), relating to bingo cards and deleted the clause (ii) designation; substituted "employee, or immediate family member thereof" for "or employee thereof" in the paragraph defining "Landlord"; in subdivision 6 in the paragraph defining "Organization," substituted "Any other" for "A" and "$25,000 or less" for "less than $75,000"; deleted the second paragraph in the definition of "Raffle," relating to alternate definitions; and inserted "in the conduct of charitable gaming" in the first sentence of the paragraph defining "Reasonable and proper business expenses."

The 2007 amendments. - The 2007 amendment by c. 160, in the definition of "Organization," added subdivision 3 and redesignated former subdivisions 3 through 6 as subdivisions 4 through 7.

The 2007 amendment by c. 264, in the definition of "Instant bingo" inserted "including Department-approved electronic versions thereof," near the beginning of the first sentence.

The 2008 amendments. - The 2008 amendments by cc. 387 and 689 are identical, and added the definition of "Commissioner"; in the definition of "Department," substituted "Agriculture and Consumer Services" for "Charitable Gaming created in accordance with Chapter 9.1 ( § 2.2-905 et seq.) of Title 2.2"; and deleted the definition for "Director."

The 2009 amendments. - The 2009 amendment by c. 121 substituted "$40,000" for "$25,000" in subdivision 7 in the definition of "Organization."

The 2010 amendments. - The 2010 amendment by c. 429, in the definition of "jackpot," deleted "exclusive of a 'winner-take-all' bingo game" following "as a jackpot game"; and in the definition of "landlord," substituted "any premises devoted" for "any premise devoted."

The 2013 amendments. - The 2013 amendments by cc. 36 and 350, effective January 1, 2014, are identical and in the paragraph defining "Bingo," substituted "75" for "seventy-five" in clause (i); and added the paragraphs defining "Network bingo," "Network bingo provider" and "Pari-mutuel pay."

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "volunteer emergency medical services agency" for "rescue squad" throughout the definition for "Organization" and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 982, in the definition for "Charitable gaming" or "charitable games," inserted "Texas Hold'em poker tournaments"; in the definition for "Charitable gaming supplies," inserted "playing cards for Texas Hold'em poker, poker chips" in the first sentence; and added the definitions for "Texas Hold'em poker game" and "Texas Hold'em poker tournament" or "tournament."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, in the definition for "Organization," rewrote subdivision 2, inserted subdivisions 6 through 13 and redesignated the subsequent subdivisions accordingly, and rewrote subdivision 15.

CASE NOTES

The term "raffle" does not encompass a system whereby, to win, a purchaser must match bars, cherries or lemons in triple sequence. Virginia ABC Bd. v. VFW Ocean View Post-3160, 10 Va. App. 165, 390 S.E.2d 202 (1990) (decided under former § 18.2-340.1 )

Single, double, and triple bingo lines do not satisfy the definition of "jackpot" in subdivision 5. Therefore, prizes awarded for those accomplishments are not "jackpot" prizes. Only prizes awarded for success at "coverall" qualify as "jackpot" prizes. Regular Veterans Ass'n v. Commonwealth, 18 Va. App. 683, 446 S.E.2d 621 (1994) (decided under former § 18.2-340.1 )

OPINIONS OF THE ATTORNEY GENERAL

Definition of "instant bingo" and "pull tabs" does not authorize the use of electronic devices that display facsimiles of instant bingo cards or pull tabs. Such games may not be played using equipment that merely dispenses a receipt showing the amount of winnings due to the player upon completion of the game. See opinion of Attorney General to Mr. Harry M. Durham, Interim Director, Department of Charitable Gaming, 06-093 (6/20/07).

Raffle by political party. - A political party may not conduct a raffle as a form of charitable gaming in the Commonwealth, as it is not an entity specifically chartered or organized for religious, charitable, community, or educational purposes. See opinion of Attorney General to The Honorable H. Fuller Cridlin, Lee County Commonwealth's Attorney, 18-031, 2018 Va. AG LEXIS 19 (11/2/18).

A political party or a candidate's campaign committee may not conduct a raffle. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, Senate of Virginia, 20-047, 2020 Va. AG LEXIS 33 (10/6/20).

The verification requirements in § 18.2-308.2:5 do apply when awarding a firearm as a prize in a raffle. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, Senate of Virginia, 20-047, 2020 Va. AG LEXIS 33 (10/6/20).

§ 18.2-340.17.

Repealed by Acts 2003, c. 884, cl. 2.

Editor's note. - Acts 2003, c. 884, cl. 3, provides: "That all rules and regulations of the Virginia Charitable Gaming Commission that are in effect as of the effective date of this act shall remain in full force and effect until altered, amended, or rescinded by the Charitable Gaming Board created in accordance with this act."

Acts 2003, c. 884, cl. 4, provides: "That as of July 1, 2003, the Department of Charitable Gaming shall be deemed successor in interest to the Virginia Charitable Gaming Commission to the extent that this act transfers powers and duties. All right, title, and interest in and to any real or tangible personal property vested in the Virginia Charitable Gaming Commission shall be transferred to and taken as standing in the name of the Department of Charitable Gaming." Pursuant to Acts 2008, cc. 387 and 689, the Department of Agriculture and Consumer Services is the successor in interest to the Department of Charitable Gaming. See Editor's notes under § 18.2-340.16 .

Acts 2003, c. 884, cl. 5, provides: "That the Charitable Gaming Board shall examine regulations, including the computation and percentage of gross receipts that are required to be used for charitable purposes by qualified organizations, and provide a report to the Governor and the 2004 Session of the General Assembly. The report shall include the Board's plans regarding regulatory action on these issues, and anticipated timetable for such action."

§ 18.2-340.18. Powers and duties of the Department.

The Department shall have all powers and duties necessary to carry out the provisions of this article and to exercise the control of charitable gaming as set forth in § 18.2-340.15 . Such powers and duties shall include but not be limited to the following:

  1. The Department is vested with jurisdiction and supervision over all charitable gaming authorized under the provisions of this article and including all persons that conduct or provide goods, services or premises used in the conduct of charitable gaming. It may employ such persons as are necessary to ensure that charitable gaming is conducted in conformity with the provisions of this article and the regulations of the Board. The Department shall designate such agents and employees as it deems necessary and appropriate who shall be sworn to enforce the provisions of this article and the criminal laws of the Commonwealth and who shall be law-enforcement officers as defined in § 9.1-101 .
  2. The Department, its agents and employees and any law-enforcement officers charged with the enforcement of charitable gaming laws shall have free access to the offices, facilities or any other place of business of any organization, including any premises devoted in whole or in part to the conduct of charitable gaming. These individuals may enter such places or premises for the purpose of carrying out any duty imposed by this article, securing records required to be maintained by an organization, investigating complaints, or conducting audits.
  3. The Department may compel the production of any books, documents, records, or memoranda of any organizations or supplier involved in the conduct of charitable gaming for the purpose of satisfying itself that this article and its regulations are strictly complied with. In addition, the Department may require the production of an annual balance sheet and operating statement of any person granted a permit pursuant to the provisions of this article and may require the production of any contract to which such person is or may be a party.
  4. The Department may issue subpoenas for the attendance of witnesses before it, administer oaths, and compel production of records or other documents and testimony of such witnesses whenever, in the judgment of the Department, it is necessary to do so for the effectual discharge of its duties.
  5. The Department may compel any person conducting charitable gaming to file with the Department such documents, information or data as shall appear to the Department to be necessary for the performance of its duties.
  6. The Department may enter into arrangements with any governmental agency of this or any other state or any locality in the Commonwealth or any agency of the federal government for the purposes of exchanging information or performing any other act to better ensure the proper conduct of charitable gaming.
  7. The Department may issue a charitable gaming permit while the permittee's tax-exempt status is pending approval by the Internal Revenue Service.
  8. The Department shall report annually to the Governor and the General Assembly, which report shall include a financial statement of the operation of the Department and any recommendations for legislation applicable to charitable gaming in the Commonwealth.
  9. The Department, its agents and employees may conduct such audits, in addition to those required by § 18.2-340.31 , as they deem necessary and desirable.
  10. The Department may limit the number of organizations for which a person may manage, operate or conduct charitable games.
  11. The Department may report any alleged criminal violation of this article to the appropriate attorney for the Commonwealth for appropriate action.
  12. Beginning July 1, 2024, and at least once every five years thereafter, the Department shall convene a stakeholder work group to review the limitations on prize amounts and provide any recommendations to the General Assembly by November 30 of the year in which the stakeholder work group is convened.

    (1995, c. 837; 1997, cc. 777, 838; 2003, c. 884; 2006, c. 644; 2014, c. 208; 2021, Sp. Sess. I, c. 491.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 491, cl. 2 was codified as subdivision 12 of this section at the direction of the Virginia Code Commission.

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and added subdivision 13.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" for "Commission" throughout the section; deleted former subdivision 4, pertaining to the regulations under which charitable gaming should be conducted; redesignated former subdivisions 5 through 12 as subdivisions 4 through 11; and deleted former subdivision 13, pertaining to regulations and approval variations to the card formats for bingo games.

The 2006 amendments. - The 2006 amendment by c. 644, in the third sentence in subdivision 1, substituted "shall" for "may" following "Department," "who shall be sworn" for "to be vested with like power" and "and who shall be law-enforcement officers as defined in § 9.1-101 " for "and is vested in the chief law-enforcement officer of any county, city or town"; inserted "involved in the conduct of charitable gaming" in the first sentence of subsection 3; substituted "conducting charitable gaming" for "holding a permit" in subdivision 5; and inserted "or any agency of the federal government" in subsection 6.

The 2014 amendments. - The 2014 amendment by c. 208, in subdivision 7, substituted "a charitable gaming permit while the permittee's tax-exempt status is pending approval by the Internal Revenue Service" for "interim certification of tax-exempt status and collect a fee therefor in accordance with subsection B of § 18.2-340.24 ."

§ 18.2-340.19. Regulations of the Board.

  1. The Board shall adopt regulations that:
    1. Require, as a condition of receiving a permit, that the applicant use a predetermined percentage of its gross receipts for (i) those lawful religious, charitable, community or educational purposes for which the organization is specifically chartered or organized or (ii) those expenses relating to the acquisition, construction, maintenance or repair of any interest in real property involved in the operation of the organization and used for lawful religious, charitable, community or educational purposes.
    2. Specify the conditions under which a complete list of the organization's members who participate in the management, operation or conduct of charitable gaming may be required in order for the Board to ascertain the percentage of Virginia residents in accordance with subdivision A 3 of § 18.2-340.24 . Membership lists furnished to the Board or Department in accordance with this subdivision shall not be a matter of public record and shall be exempt from disclosure under the provisions of the Freedom of Information Act (§ 2.2-3700 et seq.).
    3. Prescribe fees for processing applications for charitable gaming permits. Such fees may reflect the nature and extent of the charitable gaming activity proposed to be conducted.
    4. Establish requirements for the audit of all reports required in accordance with § 18.2-340.30 .
    5. Define electronic and mechanical equipment used in the conduct of charitable gaming. Board regulations shall include capacity for such equipment to provide full automatic daubing as numbers are called. For the purposes of this subdivision, electronic or mechanical equipment for instant bingo, pull tabs, or seal cards shall include such equipment that displays facsimiles of instant bingo, pull tabs, or seal cards and are used solely for the purpose of dispensing or opening such paper or electronic cards, or both; but shall not include (i) devices operated by dropping one or more coins or tokens into a slot and pulling a handle or pushing a button or touchpoint on a touchscreen to activate one to three or more reels marked into horizontal segments by varying symbols, where the predetermined prize amount depends on how and how many of the symbols line up when the rotating reels come to rest, or (ii) other similar devices that display flashing lights or illuminations, or bells, whistles, or other sounds, solely intended to entice players to play. Such regulations shall not prohibit the use of multiple video monitors or touchscreens on an electronic pull tab device.
    6. Prescribe the conditions under which a qualified organization may (i) provide food and nonalcoholic beverages to its members who participate in the management, operation or conduct of bingo; (ii) permit members who participate in the management, operation or conduct of bingo to play bingo; and (iii) subject to the provisions of subdivision 12 of § 18.2-340.33 , permit nonmembers to participate in the conduct of bingo so long as the nonmembers are under the direct supervision of a bona fide member of the organization during the bingo game.
    7. Prescribe the conditions under which a qualified organization may sell raffle tickets for a raffle drawing that will be held outside the Commonwealth pursuant to subsection B of § 18.2-340.26 .
    8. Prescribe the conditions under which persons who are bona fide members of a qualified organization or a child, above the age of 13 years, of a bona fide member of such organization may participate in the conduct or operation of bingo games.
    9. Prescribe the conditions under which a person below the age of 18 years may play bingo, provided that such person is accompanied by his parent or legal guardian.
    10. Require all qualified organizations that are subject to Board regulations to post in a conspicuous place in every place where charitable gaming is conducted a sign which bears a toll-free telephone number for "Gamblers Anonymous" or other organization which provides assistance to compulsive gamblers.
    11. Prescribe the conditions under which a qualified organization may sell network bingo cards in accordance with § 18.2-340.28:1 and establish a percentage of proceeds derived from network bingo sales to be allocated to (i) prize pools, (ii) the organization conducting the network bingo, and (iii) the network bingo provider. The regulations shall also establish procedures for the retainage and ultimate distribution of any unclaimed prize.
    12. Prescribe the conditions under which a qualified organization may manage, operate or contract with operators of, or conduct Texas Hold'em poker tournaments.
  2. In addition to the powers and duties granted pursuant to § 2.2-2456 and this article, the Board may, by regulation, approve variations to the card formats for bingo games, provided that such variations result in bingo games that are conducted in a manner consistent with the provisions of this article. Board-approved variations may include, but are not limited to, bingo games commonly referred to as player selection games and 90-number bingo. (1995, c. 837; 1996, c. 919; 1997, cc. 777, 838; 1998, c. 845; 2001, c. 833; 2003, c. 884; 2006, c. 644; 2010, cc. 429, 572; 2013, cc. 36, 350; 2020, cc. 568, 982; 2021, Sp. Sess. I, cc. 14, 499, 520.)

Editor's note. - Acts 2010, c. 429, cl. 3, provides: "That the Department of Agriculture and Consumer Services shall report to the chairs of the House Committee on General Laws and the Senate Committee on General Laws and Technology on or before December 1, 2010 concerning the Department's efforts to increase the number of Department-approved independent laboratory testers in order to expedite the Department's approval process for new charitable games authorized by Article 1:1 ( § 18.2-340.15 et seq.) of Chapter 6 of Title 18.2 and regulations of the Charitable Gaming Board."

Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2020, c. 982, cl. 2 provides: "That the Charitable Gaming Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Charitable Gaming Board shall provide an opportunity for public comment on the regulations prior to adoption."

Acts 2021, Sp. Sess. I, c. 520, cl. 4 provides: "That, except as otherwise provided in subdivision A 1 of § 18.2-340.19 of the Code of Virginia, as amended by this act, the Charitable Gaming Board shall not adjust the percentage of gross receipts, as set forth in 11VAC15-40-20 as it was in effect on January 1, 2021, that an organization with a charitable gaming permit must use for religious, charitable, community, or educational purposes or for certain real property expenses until a study is completed by a joint subcommittee of the Senate Committee on General Laws and Technology, the Senate Committee on Finance and Appropriations, the House Committee on General Laws, and the House Committee on Appropriations. The joint subcommittee shall have a total membership of eight members that shall consist of two members from each committee, to be appointed by the respective committee chairmen. In conducting its study, the joint subcommittee shall analyze and make recommendations, as appropriate, regarding (i) the percentage of an organization's gross receipts that should be used for the religious, charitable, community, or educational purposes for which the organization was chartered or organized and certain real property expenses; (ii) whether proceeds from instant bingo, pull tabs, and seal cards should be included when calculating an organization's gross receipts; (iii) the locations at which organizations should be permitted to conduct charitable gaming; (iv) the types of organizations that should be permitted to conduct charitable gaming; (v) the regulatory oversight of charitable gaming in the Commonwealth, including the membership, structure, and necessity of the Charitable Gaming Board; and (vi) necessary safeguards and conflict of interest prohibitions on the Charitable Gaming Board. Administrative staff support for the joint subcommittee shall be provided by the Office of the Clerk of the Senate. Legal, research, policy analysis, and other services as requested by the joint subcommittee shall be provided by the Division of Legislative Services. All agencies of the Commonwealth, including the Department of Agriculture and Consumer Services' Office of Charitable and Regulatory Programs, shall provide assistance to the joint subcommittee for this study, upon request. The joint subcommittee shall complete its meetings by November 1, 2021, and report its findings to the General Assembly no later than the first day of the 2022 Regular Session of the General Assembly."

Acts 2021, Sp. Sess. I, c. 520, cl. 5 provides: "That, notwithstanding the provisions of subdivision 15 of the definition of "organization" in § 18.2-340.16 of the Code of Virginia, as amended by this act, any nonprofit organization that (i) is exempt from income tax pursuant to § 501(c) of the Internal Revenue Code; (ii) raises funds by conducting raffles, bingo, instant bingo, pull tabs, or seal cards; and (iii) was issued a charitable gaming permit between January 1, 2018, and January 1, 2021, may generate more than $40,000 in annual gross receipts from conducting such raffles, bingo, instant bingo, pull tabs, or seal cards until July 1, 2022, provided that such gross receipts, less expenses and prizes, are used exclusively for charitable, educational, religious, or community purposes. Notwithstanding the provisions of subsection B of § 18.2-340.23 of the Code of Virginia, as amended by this act, any such nonprofit organization generating more than $40,000 in annual gross receipts until July 1, 2022, shall not be exempt from the payment of application fees or audit fees."

The 1996 amendment added subdivision 5.

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and substituted "members who participate in the management, operation or conduct of charitable gaming" for "members" following "list of organization's" in the first paragraph of subdivision 2 and added subdivisions 6 through 9.

The 1998 amendment added subdivision 10.

The 2001 amendments. - The 2001 amendment by c. 833, substituted "subsection B" for "subsection C" in subsection 7.

The 2003 amendments. - The 2003 amendment by c. 884 designated the section; throughout the section, substituted "Board" for "Commission"; in subdivision A 8, substituted "11" for "eleven"; in subdivision A 9, substituted "18" for "eighteen"; and added subsection B.

The 2006 amendments. - The 2006 amendment by c. 644 inserted "excluding winner-take-all games" in subdivision A 1; in subdivision A 2, substituted "Specify" for "Require the organization to have at least 50 percent of its membership consist of residents of the Commonwealth and specify" and "in accordance with subdivision A 3 of § 18.2-340.24 " for language explaining exemptions from the regulations; deleted "located in the Northern Virginia Planning District" following "organization" in subdivision A 7; and in subdivision A 9, deleted clause (i), which read: "has the consent of his parent or legal guardian or" and the clause (ii) designation.

The 2010 amendments. - The 2010 amendment by c. 429, in subdivision A 1, deleted "excluding winner-take-all games" following "its gross receipts"; in subdivision A 5, added the second sentence; and in subdivision A 6, added clause (iii) and made related changes.

The 2010 amendment by c. 572 inserted the last sentence of subdivision A 5.

The 2013 amendments. - The 2013 amendments by cc. 36 and 350 are identical, and added subdivision A 11.

The 2020 amendments. - The 2020 amendment by c. 568 substituted "subdivision 12 of § 18.2-340.33 " for "subdivision 13 of § 18.2-340.33 " in clause (iii) of subdivision A 6.

The 2020 amendment by c. 982, in subdivision A 1, inserted the second sentence and added subdivision A 12.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 14 and 499 are identical, effective July 1, 2021, and added the last sentence in subdivision A 5.

The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, deleted the second and third sentences in subdivision A 1, which read: "In the case of the conduct of Texas Hold'em poker tournaments, the regulations shall provide that the predetermined percentage of gross receipts may be used for expenses related to compensating operators contracted by the qualified organization to administer such events. The regulation may provide for a graduated scale of percentages of gross receipts to be used in the foregoing manner based upon factors the Board finds appropriate to and consistent with the purpose of charitable gaming"; and inserted "that" following "provided" in subdivision A 9 and subsection B.

§ 18.2-340.20. Denial, suspension or revocation of permit; hearings and appeals.

  1. The Department may deny, suspend or revoke the permit of any organization found not to be in strict compliance with the provisions of this article and the regulations of the Board only after the proposed action by the Department has been reviewed and approved by the Board. The action of the Department in denying, suspending or revoking any permit shall be subject to the Administrative Process Act (§ 2.2-4000 et seq.).
  2. Except as provided in §§ 18.2-340.25 , 18.2-340.30 and 18.2-340.36 , no permit to conduct charitable gaming shall be denied, suspended or revoked except upon notice stating the proposed basis for such action and the time and place for the hearing. At the discretion of the Department, hearings may be conducted by hearing officers who shall be selected from the list prepared by the Executive Secretary of the Supreme Court. After a hearing on the issues, the Department may refuse to issue or may suspend or revoke any such permit if it determines that the organization has not complied with the provisions of this article or the regulations of the Board.
  3. Any person aggrieved by a refusal of the Department to issue any permit, the suspension or revocation of a permit, or any other action of the Department may seek review of such action in accordance with Article 4 (§ 2.2-4025 et seq.) of the Administrative Process Act. (1995, c. 837; 1996, c. 573; 1997, cc. 777, 838; 2000, c. 1000; 2001, c. 813; 2002, c. 282; 2003, c. 884; 2004, c. 213; 2006, c. 644; 2010, c. 711.)

Editor's note. - Acts 2000, c. 1000, which added former subsection D, provided in cl. 3, as amended by Acts 2001, c. 813: "That the provisions of this act shall expire on July 1, 2002."

Acts 2004, c. 213, cl. 2, provides: "That the provisions of subsection D of § 18.2-340.20 of the Code of Virginia shall expire when replacement regulations are adopted pursuant to subdivision 1 of § 18.2-340.19 by the Charitable Gaming Board." Subsection D was subsequently repealed by Acts 2006, c. 644.

The 1996 amendment, in subsection C, substituted "seek review of such action in accordance with Article 4 ( § 9-6.14:15 et seq.) of the Administrative Process Act" for "within thirty days of such action, appeal to the circuit court in the jurisdiction where such charitable gaming was being or would have been conducted" and deleted the former last sentence which read: "If the court finds based on the record of the Commission that the action of the Commission is not supported by credible evidence, it shall order such relief as it deems appropriate. The decision of the court shall be subject to appeal as in other cases at law."

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and added the second sentence of subsection A and inserted "Except as provided in §§ 18.2-340.30 and 18.2-340.36 " at the beginning of subsection B.

The 2000 amendments. - The 2000 amendment by c. 1000 added former subsection D. For expiration provision, see editor's notes.

The 2001 amendments. - The 2001 amendment by c. 813 substituted "July 1, 2002" for "July 1, 2001" near the beginning of former subsection D.

The 2002 amendments. - The 2002 amendment by c. 282 added present subsection D, which is almost the same as expired subsection D.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" or "Board" for "Commission" throughout the section, and in subsection D, substituted "December 31, 2004" for "June 30, 2003."

The 2004 amendments. - The 2004 amendment by c. 213, in subsection D, deleted "Until December 31, 2004" at the beginning and "unless requested by the organization" following " § 18.2-340.19 ," inserted the clause (i) designation, deleted "(i) was conducting gaming in a rental facility prior to January 1, 2000, and (ii)" preceding "is otherwise in compliance," and added clause (ii).

The 2006 amendments. - The 2006 amendment by c. 644 inserted "18.2-340.25" in the first sentence of subsection B; and deleted subsection D, relating to organizations that fail to meet the required minimum percentage of gross receipts used for charitable purposes.

The 2010 amendments. - The 2010 amendment by c. 711 inserted "only after the proposed action by the Department has been reviewed and approved by the Board" in subsection A and made minor stylistic changes.

§ 18.2-340.21.

Repealed by Acts 2003, c. 884, cl. 2.

Cross references. - As to the Charitable Gaming Board, see § 2.2-2455 et seq.

§ 18.2-340.22. Only raffles, bingo, network bingo, instant bingo games, and Texas Hold'em poker tournaments permitted; prizes not gaming contracts.

  1. This article permits qualified organizations to conduct raffles, bingo, network bingo, instant bingo games, and Texas Hold'em poker tournaments. All games not explicitly authorized by this article or Board regulations adopted in accordance with § 18.2-340.18 are prohibited. Nothing herein shall be construed to authorize the Board to approve the conduct of any other form of poker in the Commonwealth.
  2. The award of any prize money for any charitable game shall not be deemed to be part of any gaming contract within the purview of § 11-14 .
  3. Nothing in this article shall prohibit an organization from using the Virginia Lottery's Pick-3 number or any number or other designation selected by the Virginia Lottery in connection with any lottery, as the basis for determining the winner of a raffle.

    (1995, c. 837; 1997, cc. 777, 838; 2003, c. 884; 2013, cc. 36, 350; 2014, c. 225; 2020, c. 982.)

Editor's note. - Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2020, c. 982, cl. 2 provides: "That the Charitable Gaming Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Charitable Gaming Board shall provide an opportunity for public comment on the regulations prior to adoption."

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and in subsection A, deleted "and organizations exempted under § 18.2-340.23 from obtaining a permit" following "organizations" in the first sentence and inserted "or Commission regulations adopted in accordance with § 18.2-340.18 " following "by this article" in the second sentence.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Board" for "Commission" in subsection A.

The 2013 amendments. - The 2013 amendments by cc. 36 and 350, effective January 1, 2014, are identical, and inserted "network bingo," in the first sentence of subsection A.

The 2014 amendments. - The 2014 amendment by c. 225, substituted "Virginia Lottery's" for "State Lottery Department's" and "Virginia Lottery" for "State Lottery Department" in subsection C.

The 2020 amendments. - The 2020 amendment by c. 982, in subsection A, added "and Texas Hold'em poker tournaments" in the first sentence, added the last sentence and made stylistic changes.

§ 18.2-340.23. Organizations exempt from certain fees and reports.

  1. No organization that reasonably expects, based on prior charitable gaming annual results or any other quantifiable method, to realize gross receipts of $40,000 or less in any 12-month period from raffles conducted in accordance with the provisions of this article shall be required to (i) notify the Department of its intention to conduct raffles or (ii) comply with Board regulations governing raffles. If any organization's actual gross receipts from raffles for the 12-month period exceed $40,000, the Department shall require the organization to file by a specified date the report required by § 18.2-340.30 .
  2. Any (i) organization described in subdivision 15 of the definition of "organization" in § 18.2-340.16 or (ii) volunteer fire department or volunteer emergency medical services agency or auxiliary unit thereof that has been recognized in accordance with § 15.2-955 by an ordinance or resolution of the political subdivision where the volunteer fire department or volunteer emergency medical services agency is located as being part of the safety program of such political subdivision shall be exempt from the payment of application fees required by § 18.2-340.25 and the payment of audit fees required by § 18.2-340.31 . Nothing in this subsection shall be construed as exempting any organizations described in subdivision 15 of the definition of "organization" in § 18.2-340.16 , volunteer fire departments, or volunteer emergency medical services agencies from any other provisions of this article or other Board regulations.
  3. Nothing in this section shall prevent the Department from conducting any investigation or audit it deems appropriate to ensure an organization's compliance with the provisions of this article and, to the extent applicable, Board regulations.

    (1995, c. 837; 1997, cc. 777, 838; 2003, c. 884; 2006, c. 644; 2009, c. 121; 2015, cc. 502, 503; 2021, Sp. Sess. I, c. 520.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 520, cl. 5 provides: "That, notwithstanding the provisions of subdivision 15 of the definition of "organization" in § 18.2-340.16 of the Code of Virginia, as amended by this act, any nonprofit organization that (i) is exempt from income tax pursuant to § 501(c) of the Internal Revenue Code; (ii) raises funds by conducting raffles, bingo, instant bingo, pull tabs, or seal cards; and (iii) was issued a charitable gaming permit between January 1, 2018, and January 1, 2021, may generate more than $40,000 in annual gross receipts from conducting such raffles, bingo, instant bingo, pull tabs, or seal cards until July 1, 2022, provided that such gross receipts, less expenses and prizes, are used exclusively for charitable, educational, religious, or community purposes. Notwithstanding the provisions of subsection B of § 18.2-340.23 of the Code of Virginia, as amended by this act, any such nonprofit organization generating more than $40,000 in annual gross receipts until July 1, 2022, shall not be exempt from the payment of application fees or audit fees."

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and rewrote this section, which formerly read: "Any organization that reasonably expects to realize gross receipts of $25,000 or less in any twelve-month period and a volunteer fire department or rescue squad or auxiliary unit thereof which has been recognized by an ordinance or resolution of the political subdivision where the voluntary fire department or rescue squad is located as being a part of the safety program of such political subdivision shall be exempt from the requirements of § 18.2-340.25 if, prior to conducting charitable gaming, it notifies the Commission, on a form prescribed by the Commission, that it will conduct charitable gaming. Any such organizations also shall be exempt from the financial reporting and audit requirements of this article and the payment of audit fees but shall file with the Commission, at such time or times as may be required by the Commission, a resolution of its board of directors stating that the organization has complied with the provisions of this article. If any of the organization's actual gross receipts for the twelve-month period exceed $25,000, the Commission may require the organization to file by a specified date the report required by § 18.2-340.30 . Nothing in this section shall prevent the Commission from conducting any investigation or audit it deems appropriate to ensure the organization's compliance with the provisions of this article or the Commission's regulations."

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" or "Board" for "Commission" throughout the section, and substituted for "12" for "twelve" in subsection A.

The 2006 amendments. - The 2006 amendment by c. 644, in subsection A, deleted former clause (ii), which read: "file a resolution of its board of directors as required by subsection B, or," redesignated former clause (iii) as clause (ii) and made a related change; in subsection B, substituted "payment of application fees required by § 18.2-340.25 and the payment of audit fees required by § 18.2-340.31 " for language relating to charitable gaming and exemptions from financial reporting requirements.

The 2009 amendments. - The 2009 amendment by c. 121, in subsection A, substituted "$40,000" for "$25,000" in the first and last sentences.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "volunteer emergency medical services agency" for "rescue squad" or variants throughout subsection B and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, in subsection A, inserted "from raffles conducted in accordance with the provisions of this article," and substituted "raffles" for "charitable gaming" in clause (i), added "governing raffles" in clause (ii), and in the second sentence, inserted "from raffles" and substituted "shall" for "may"; in subsection B, inserted clause (i) and inserted the (ii) designation in the first sentence, and in the second sentence, inserted "any organizations described in subdivision 15 of the definition of 'organization' in § 18.2-340.16 " and substituted "or volunteer" for "and volunteer."

OPINIONS OF THE ATTORNEY GENERAL

Raffle by political party. - A political party may not conduct a raffle as a form of charitable gaming in the Commonwealth, as it is not an entity specifically chartered or organized for religious, charitable, community, or educational purposes. See opinion of Attorney General to The Honorable H. Fuller Cridlin, Lee County Commonwealth's Attorney, 18-031, 2018 Va. AG LEXIS 19 (11/2/18).

§ 18.2-340.24. Eligibility for permit; exceptions; where valid.

  1. To be eligible for a permit to conduct charitable gaming, an organization shall:
    1. Have been in existence and met on a regular basis in the Commonwealth for a period of at least three years immediately prior to applying for a permit.

      The three-year residency requirement shall not apply (i) to any lodge or chapter of a national or international fraternal order or of a national or international civic organization which is exempt under § 501(c) of the United States Internal Revenue Code and which has a lodge or chapter holding a charitable gaming permit issued under the provisions of this article anywhere within the Commonwealth; (ii) to booster clubs which have been operating for less than three years and which have been established solely to raise funds for school-sponsored activities in public schools or private schools accredited pursuant to § 22.1-19; (iii) to recently established volunteer fire and rescue companies or departments, after county, city or town approval; or (iv) to an organization which relocates its meeting place on a permanent basis from one jurisdiction to another, complies with the requirements of subdivision 2 of this section, and was the holder of a valid permit at the time of its relocation.

    2. Be operating currently and have always been operated as a nonprofit organization.
    3. Have at least 50 percent of its membership consist of residents of the Commonwealth; however, if an organization (i) does not consist of bona fide members and (ii) is exempt under § 501(c)(3) of the United States Internal Revenue Code, the Board shall exempt such organizations from the requirements of this subdivision.
  2. Any organization whose gross receipts from all charitable gaming exceeds or can be expected to exceed $40,000 in any calendar year shall have been granted tax-exempt status pursuant to § 501(c) of the United States Internal Revenue Code. At the same time tax-exempt status is sought from the Internal Revenue Service, the same documentation may be filed with the Department in conjunction with an application for a charitable gaming permit. If such documentation is filed, the Department may, after reviewing such documentation it deems necessary, issue a charitable gaming permit.
  3. A permit shall be valid only for the dates and times designated in the permit.

    (1995, c. 837; 1996, c. 919; 2003, c. 884; 2006, c. 644; 2009, c. 121; 2014, c. 208; 2020, c. 568.)

The 1996 amendment, in the second paragraph of subdivision A 1, in the first sentence, substituted "of" for "to" following "or international fraternal order or" and deleted "(3)" following "which is exempt under § 501(c)."

The 2003 amendments. - The 2003 amendment by c. 884, in subsection B, substituted "Department" for "Commission" three times, and substituted "60" for "sixty" and "18" for "18."

The 2006 amendments. - The 2006 amendment by c. 644, in subdivision A 1, substituted "Commonwealth" for "county, city or town or in a county, city or town adjacent to the county, city or town wherein the organization proposes to conduct charitable gaming" in the first paragraph, and substituted "or private school accredited pursuant to § 22.1-19" for "which are less than three years old" in the second paragraph; added subdivision A 3; in subsection B, substituted "$25,000" for "$75,000" in the first sentence, and substituted "shall charge a fee of $500 for such determination" for "may charge a reasonable fee, not to exceed $500" in the fourth sentence; and inserted "dates, and times" in subsection C.

The 2009 amendments. - The 2009 amendment by c. 121 substituted "$40,000" for "$25,000" in the first sentence of subsection B.

The 2014 amendments. - The 2014 amendment by c. 208, in subdivision A 3, substituted "50 percent" for "50%"; in subsection B, substituted "in conjunction with an application for a charitable gaming permit" for "for an interim certification of tax-exempt status" and "a charitable gaming permit" for "its determination of tax-exempt status within 60 days of receipt of such documentation" in the second sentence and deleted the last two sentences, which read "The Department shall charge a fee of $500 for such determination. This interim certification of tax-exempt status shall be valid until the Internal Revenue Service issues its determination of tax-exempt status, or for 18 months, whichever is earlier."

The 2020 amendments. - The 2020 amendment by c. 568 deleted "locations" preceding "dates" in subsection C.

§ 18.2-340.25. Permit required; application fee; form of application.

  1. Except as provided for in § 18.2-340.23 , prior to the commencement of any charitable game, an organization shall obtain a permit from the Department.
  2. All complete applications for a permit shall be acted upon by the Department within 45 days from the filing thereof. Upon compliance by the applicant with the provisions of this article, and at the discretion of the Department, a permit may be issued. All permits when issued shall be valid for the period specified in the permit unless it is sooner suspended or revoked. No permit shall be valid for longer than two years. The application shall be a matter of public record.

    All permits shall be subject to regulation by the Department to ensure the public safety and welfare in the operation of charitable games. The permit shall only be granted after a reasonable investigation has been conducted by the Department. The Department may require any prospective employee, permit holder or applicant to submit to fingerprinting and to provide personal descriptive information to be forwarded along with employee's, licensee's or applicant's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purposes of obtaining criminal history record information regarding such prospective employee, permit holder or applicant. The Central Criminal Records Exchange upon receipt of a prospective employee, licensee or applicant record or notification that no record exists, shall forward the report to the Commissioner of the Department or his designee, who shall belong to a governmental entity. However, nothing in this subsection shall be construed to require the routine fingerprinting of volunteer bingo workers.

  3. In no case shall an organization receive more than one permit allowing it to conduct charitable gaming.
  4. Application for a charitable gaming permit shall be made on forms prescribed by the Department and shall be accompanied by payment of the fee for processing the application.
  5. Applications for renewal of permits shall be made in accordance with Board Regulations. If a complete renewal application is received 45 days or more prior to the expiration of the permit, the permit shall continue to be effective until such time as the Department has taken final action. Otherwise, the permit shall expire at the end of its term.
  6. The failure to meet any of the requirements of § 18.2-340.24 shall cause the automatic denial of the permit, and no organization shall conduct any charitable gaming until the requirements are met and a permit is obtained. (1995, c. 837; 1997, cc. 777, 838; 1999, c. 361; 2003, c. 884; 2006, cc. 211, 644; 2008, cc. 387, 689; 2017, c. 739; 2020, c. 568.)

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and in the first sentence of subsection B, inserted "complete" preceding "applications" and substituted "forty-five" for "sixty" preceding "days from."

The 1999 amendment substituted "a permit" for "an annual permit" in subsection A; and added the fourth sentence of subsection B.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" for "Commission" throughout the section, and in subsection B substituted "45" for "forty-five."

The 2006 amendments. - The 2006 amendment by c. 211 added subsection E.

The 2006 amendment by c. 644 added the third through fifth sentences in the second paragraph of subsection B; and added subsection F.

The 2008 amendments. - The 2008 amendments by cc. 387 and 689 are identical, and substituted "Commissioner" for "director" preceding "of the Department" near the end of the fourth sentence in the second paragraph of subsection B.

The 2017 amendments. - The 2017 amendment by c. 739 substituted "18.2-340.27:1" for "18.2-340.27" in subsection C.

The 2020 amendments. - The 2020 amendment by c. 568 deleted "however, nothing in this section shall be construed to prohibit granting special permits pursuant to § 18.2-340.27:1 " at the end of subsection C.

OPINIONS OF THE ATTORNEY GENERAL

Exemption from permit requirement. - By removing the proceeds from pull tabs in determining the gross receipts from charitable gaming conducted under the conditions specified in § 18.2-340.26:1 , an organization is exempt from the permit requirement of this section, provided the gross receipts' annual results still do not exceed $25,000. See opinion of Attorney General to The Honorable Donald L. Moseley, Secretary of Administration, 01-076 (8/30/01).

§ 18.2-340.26. Sale of raffle tickets; drawings.

  1. Except as provided in subsection B, a qualified organization may sell raffle tickets both in and out of the jurisdiction designated in its permit and shall conduct the drawing within the Commonwealth.
  2. A qualified organization may sell raffle tickets for a raffle drawing which will be held outside the Commonwealth, provided the raffle is conducted in accordance with (i) the regulations of the Board and (ii) the laws and regulations of the jurisdiction in which the raffle drawing will be held.
  3. Before a prize drawing, each stub or other detachable section of each ticket sold or won through some other authorized charitable game conducted by the same organization holding the raffle, shall be placed into a receptacle from which the winning tickets are drawn. The receptacle shall be designed so that each ticket placed in it has an equal chance of being drawn.

    (1995, c. 837; 1997, cc. 777, 838; 2001, c. 833; 2003, c. 884; 2006, c. 644; 2008, c. 573.)

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and rewrote this section, which formerly read: "A qualified organization may sell raffle tickets both in and out of the jurisdiction designated in its permit and shall conduct the drawing within the Commonwealth; however pull-tab devices used as part of a raffle as defined in § 18.2-340.16 may be sold only upon the premises owned or exclusively leased by the organization and at such times as the portion of the premises in which the pull-tab devices are sold is open only to members and their guests."

The 2001 amendments. - The 2001 amendment by c. 833 substituted "subsection B" for "subsection C" in subsection A, deleted former subsection B, which read: "Pull tabs or seal cards used as part of a raffle as defined in § 18.2-340.16 may be sold only upon the premises owned or exclusively leased by the organization and at such times as the portion of the premises in which the pull tabs or seal cards are sold is open only to members and their guests," and redesignated former subsection "C" as present subsection "B."

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Board" for "Commission" in subsection B.

The 2006 amendments. - The 2006 amendment by c. 644 deleted "located in the Northern Virginia Planning District" following "qualified organization" in subsection B.

The 2008 amendments. - The 2008 amendment by c. 573 added subsection C.

§ 18.2-340.26:1. Sale of instant bingo, pull tabs, or seal cards; proceeds not counted as gross receipts.

  1. Instant bingo, pull tabs, or seal cards may be sold only (i) by a qualified organization, as defined in § 18.2-340.16 , (ii) upon premises that are owned or exclusively and entirely leased by the qualified organization, and (iii) at such times that the premises in which the instant bingo, pull tabs, or seal cards are sold is open only to members and their guests via controlled access. No organization, except for an association of war veterans or auxiliary units thereof organized in the United States or a fraternal association or corporation operating under the lodge system, may sell instant bingo, pull tabs, or seal cards (a) at a location outside of the county, city, or town in which the organization's principal office, as registered with the State Corporation Commission, is located or in an adjoining county, city, or town or (b) at an establishment that has been granted a license pursuant to Chapter 2 (§ 4.1-200 et seq.) of Title 4.1 unless such license is held by the organization. Nothing in this article shall be construed to prohibit the conduct of games of chance involving the sale of pull tabs, or seal cards, commonly known as last sale games, conducted in accordance with this section.
  2. Except as otherwise provided in subdivision 15 of the definition of "organization" in § 18.2-340.16 , the proceeds from instant bingo, pull tabs, or seal cards shall not be included in determining the gross receipts for a qualified organization provided the gaming (i) is limited exclusively to members of the organization and their guests, (ii) is not open to the general public, and (iii) there is no public solicitation or advertisement made regarding such gaming.
  3. No more than 18 devices that facilitate the play of electronic versions of instant bingo, pull tabs, or seal cards, commonly referred to as electronic pull tabs, may be used upon the premises owned or exclusively leased by the organization and at such times as the portion of the premises in which the instant bingo, pull tabs, or seal cards are sold is open only to members and their guests.

    (2001, c. 833; 2006, c. 644; 2007, c. 196; 2020, c. 979; 2021, Sp. Sess. I, c. 520.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 520, cl. 3 provides: "That, notwithstanding §§ 18.2-340.26:1 , 18.2-340.27 , 18.2-340.28 , and 18.2-340.28 :1 of the Code of Virginia, as amended by this act, any organization that conducted bingo, network bingo, instant bingo, pull tabs, or seal cards at a location outside of the county, city, or town in which its principal office, as registered with the State Corporation Commission, is located or an adjoining county, city, or town on or before February 1, 2021, may continue to conduct bingo, network bingo, instant bingo, pull tabs, or seal cards at such locations until June 30, 2022."

The 2006 amendments. - The 2006 amendment by c. 644, in subsection A, inserted "Instant bingo" and a variation preceding "pull tabs" twice and deleted "used as part of a raffle as defined in § 18.2-340.16 " preceding "may be sold"; in subsection B, inserted "instant bingo" preceding "pull tabs" and deleted "used as a part of a raffle" following "seal cards."

The 2007 amendments. - The 2007 amendment by c. 196 added the second sentence of subsection A.

The 2020 amendments. - The 2020 amendment by c. 979 added subsection C.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, rewrote subsection A; inserted "Except as otherwise provided in subdivision 15 of the definition of 'organization' in § 18.2-340.16 " in subsection B; deleted the former last sentence, which read: "The Board may approve exceptions to this requirement where there is a special or documented need" in subsection C; and made a stylistic change. See Editor's note.

OPINIONS OF THE ATTORNEY GENERAL

Gaming organizations are subject to audit, inspection, and enforcement. - Qualified gaming organizations that sell pull tabs in private social quarters are subject to audit, inspection, and enforcement by the Charitable Gaming Commission [now the Department of Agriculture and Consumer Services]. See opinion of Attorney General to The Honorable Donald L. Moseley, Secretary of Administration, 01-076 (8/30/01).

No restrictions on uses of proceeds of games described in statute. - The charitable gaming statutes impose no restriction on the uses to which the proceeds of the games described in the statute may be put, or any requirement that such proceeds be used for any particular purpose, including charitable purposes. See opinion of Attorney General to The Honorable Donald L. Moseley, Secretary of Administration, 01-076 (8/30/01).

Exemption from permit requirement. - By removing the proceeds from pull tabs in determining the gross receipts from charitable gaming conducted under the conditions specified in this section, an organization is exempt from the permit requirement of § 18.2-340.25 , provided the gross receipts' annual results still do not exceed $25,000. See opinion of Attorney General to The Honorable Donald L. Moseley, Secretary of Administration, 01-076 (8/30/01).

§ 18.2-340.26:2. Sale of instant bingo, pull tabs, or seal cards by certain booster clubs.

As a part of its annual fund-raising event, any qualified organization that is an athletic association or booster club or a band booster club may sell instant bingo, pull tabs, or seal cards provided that (i) the sale is limited to a single event in a calendar year and (ii) the event is open to the public. The Department may require organizations authorized under this section to make such financial reporting as it deems necessary.

Nothing in this section shall be construed as exempting organizations authorized to sell instant bingo, pull tabs, or seal cards under this section from any other provisions of this article or other Board regulations.

(2007, c. 160.)

§ 18.2-340.27. Conduct of bingo games.

  1. A qualified organization shall accept only cash or, at its option, checks or debit cards in payment of any charges or assessments for players to participate in bingo games. However, no such organization shall accept postdated checks in payment of any charges or assessments for players to participate in bingo games.
  2. No qualified organization or any person on the premises shall extend lines of credit or accept any credit or other electronic fund transfer other than debit cards in payment of any charges or assessments for players to participate in bingo games.
  3. Bingo games may be held by qualified organizations on any calendar day.
  4. Qualified organizations may hold an unlimited number of bingo sessions on any calendar day.
  5. Any organization may conduct bingo games only in the county, city, or town in which its principal office, as registered with the State Corporation Commission, is located or in an adjoining county, city, or town. An organization shall have only one principal office. An organization may not conduct bingo games at an establishment that has been granted a license pursuant to Chapter 2 (§ 4.1-200 et seq.) of Title 4.1 unless such license is held by the organization. This subsection shall not apply to any association of war veterans or auxiliary units thereof organized in the United States or any fraternal association or corporation operating under the lodge system. (1995, c. 837; 2006, c. 644; 2010, c. 429; 2017, c. 739; 2020, c. 568; 2021, Sp. Sess. I, c. 520.)

Editor's note. - Acts 2010, c. 429, cl. 3 provides: "That the Department of Agriculture and Consumer Services shall report to the chairs of the House Committee on General Laws and the Senate Committee on General Laws and Technology on or before December 1, 2010 concerning the Department's efforts to increase the number of Department-approved independent laboratory testers in order to expedite the Department's approval process for new charitable games authorized by Article 1:1 ( § 18.2-340.15 et seq.) of Chapter 6 of Title 18.2 and regulations of the Charitable Gaming Board."

Acts 2021, Sp. Sess. I, c. 520, cl. 3 provides: "That, notwithstanding §§ 18.2-340.26:1 , 18.2-340.27 , 18.2-340.28 , and 18.2-340.28 :1 of the Code of Virginia, as amended by this act, any organization that conducted bingo, network bingo, instant bingo, pull tabs, or seal cards at a location outside of the county, city, or town in which its principal office, as registered with the State Corporation Commission, is located or an adjoining county, city, or town on or before February 1, 2021, may continue to conduct bingo, network bingo, instant bingo, pull tabs, or seal cards at such locations until June 30, 2022."

The 2006 amendments. - The 2006 amendment by c. 644 inserted "or debit cards" in the first sentence of subsection A; in subsection B, deleted "or debit card" following "any credit" and inserted "other than debit cards"; substituted "subsection E" for "subsection D" in subsection C; added subsection D; redesignated former subsection D as subsection E; in subsection E, substituted "state, federal or religious holidays" for "other similar events" and "shall be" for "are located in the jurisdiction"; and added subsection F.

The 2010 amendments. - The 2010 amendment by c. 429 added "nor shall there be more than 55 bingo games per session" to the end of subsection D.

The 2017 amendments. - The 2017 amendment by c. 739 substituted " § 18.2-340.27:1 " for "Subsection E" in subsection C; deleted former subsection E, which read: "A special permit may be granted a qualified organization which entitles it to conduct more frequent operations of bingo games during carnivals, fairs and state, federal or religious holidays, which shall be designated in the permit"; and redesignated former subsection F as subsection E.

The 2020 amendments. - The 2020 amendment by c. 568 substituted "on any calendar day" for "no more frequently than two calendar days in any calendar week, except in accordance with § 18.2-340.27:1 " in subsection C; rewrote subsection D, which read: "No more than two sessions of bingo games may be held by qualified organizations in any calendar day, nor shall there be more than 55 bingo games per session"; and rewrote subsection E, which read: "Any organization may conduct bingo games only in the county, city or town or in any adjoining county, city or town in which they regularly have been in existence or met. The Department may approve exceptions to this requirement where there is a special circumstance or documented need."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, rewrote subsection E, which read: "Any organization may conduct bingo games at any location within the Commonwealth." See Editor's note.

§ 18.2-340.27:1.

Repealed by Acts 2020, c. 568, cl. 2.

Editor's note. - Former § 18.2-340.27:1 , pertaining to special permits, derived from Acts 2017, c. 739.

§ 18.2-340.28. Conduct of instant bingo, network bingo, pull tabs, and seal cards.

  1. Any organization qualified to conduct bingo games pursuant to the provisions of this article may also play instant bingo, network bingo, pull tabs, or seal cards; however, such games shall be played only at such times designated in the permit for regular bingo games and only at locations at which the organization is authorized to conduct regular bingo games pursuant to subsection E of § 18.2-340.27 .
  2. Any organization conducting instant bingo, network bingo, pull tabs, or seal cards shall maintain a record of the date, quantity and card value of instant bingo supplies purchased as well as the name and address of the supplier of such supplies. The organization shall also maintain a written invoice or receipt from a nonmember of the organization verifying any information required by this subsection. Such supplies shall be paid for only by check drawn on the gaming account of the organization. A complete inventory of all such gaming supplies shall be maintained by the organization on the premises where the gaming is being conducted.
  3. No qualified organization shall sell any instant bingo, network bingo, pull tabs, or seal cards to any individual younger than 18 years of age. No individual younger than 18 years of age shall play or redeem any instant bingo, network bingo, pull tabs, or seal cards.
  4. The use of electronic pull tab devices utilizing multiple video monitors or touchscreens shall be limited to one player at a time.

    (1995, c. 837; 1997, cc. 777, 838; 2006, c. 644; 2013, cc. 36, 350; 2020, c. 568; 2021, Sp. Sess. I, cc. 14, 499, 520.)

Editor's note. - Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2021, Sp. Sess. I, c. 520, cl. 3 provides: "That, notwithstanding §§ 18.2-340.26:1 , 18.2-340.27 , 18.2-340.28 , and 18.2-340.28 :1 of the Code of Virginia, as amended by this act, any organization that conducted bingo, network bingo, instant bingo, pull tabs, or seal cards at a location outside of the county, city, or town in which its principal office, as registered with the State Corporation Commission, is located or an adjoining county, city, or town on or before February 1, 2021, may continue to conduct bingo, network bingo, instant bingo, pull tabs, or seal cards at such locations until June 30, 2022."

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and deleted former subsection B, which read: "The gross receipts in the course of a reporting year from the playing of instant bingo shall not exceed fifty percent of the gross receipts of an organization's bingo operation" and redesignated former subsections C and D as present subsections B and C.

The 2006 amendments. - The 2006 amendment by c. 644, in subsection A, inserted "pull tabs, or seal cards" and "if a permit is required pursuant to § 18.2-340.25 , such games shall be played"; in subsection B, in the first sentence, inserted "pull tabs, or seal cards" and deleted "instant bingo" preceding "supplies," in the third sentence, substituted "Such" for "Instant bingo" and "the gaming account" for "an account," in the fourth sentence, substituted "A complete inventory of all such gaming supplies" for "During the conduct of instant bingo, the supplier's invoice, or a legible true copy thereof, for the instant bingo supplies being used" and "gaming" for "instant bingo"; and in subsection C, in the first sentence, substituted "pull tabs, or seal cards" for "card" and made a minor stylistic change, and added the second sentence.

The 2013 amendments. - The 2013 amendments by cc. 36 and 350, effective January 1, 2014, are identical and inserted "network bingo," throughout the section; and substituted "younger than 18" for "under 18" twice in subsection C.

The 2020 amendments. - The 2020 amendment by c. 568 substituted "such times" for "such location and at such times as" in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 14 and 499 are identical, effective July 1, 2021, and added subsection D.

The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, rewrote subsection A, which read: "Any organization qualified to conduct bingo games pursuant to the provisions of this article may play instant bingo, network bingo, pull tabs, or seal cards as a part of such bingo game and, if a permit is required pursuant to § 18.2-340.25 , such games shall be played only at such times designated in the permit for regular bingo games." See Editor's note

§ 18.2-340.28:1. Conduct of network bingo.

  1. Any organization qualified to conduct bingo games pursuant to the provisions of this article may also sell network bingo cards; however, network bingo shall be sold only at such times designated in the permit for regular bingo games and only at locations at which the organization is authorized to conduct regular bingo games pursuant to subsection E of § 18.2-340.27 .
  2. Any organization selling network bingo cards shall maintain a record of the date and quantity of network bingo cards purchased from a licensed network bingo provider. The organization shall also maintain a written invoice or receipt from a licensed supplier verifying any information required by this subsection. Such supplies shall be paid for only by check drawn on the gaming account of the organization or by electronic fund transfer. A complete inventory of all such gaming supplies shall be maintained by the organization on the premises where network bingo cards are sold.
  3. No qualified organization shall sell any network bingo cards to any individual younger than 18 years of age. No individual younger than 18 years of age shall play or redeem any network bingo cards.
  4. A qualified organization shall accept only cash or, at its option, checks or debit cards in payment of any charges or assessments for players to participate in any network bingo game. However, no such organization shall accept postdated checks in payment of any charges or assessments for players to participate in network bingo games.
  5. No qualified organization or any person on the premises shall extend lines of credit or accept any credit or other electronic fund transfer other than debit cards in payment of any charges or assessments for players to participate in network bingo games.
  6. No qualified organization shall conduct network bingo more frequently than one day in any calendar week, which shall not be the same day of each week.
  7. No network bingo games shall be permitted in the social quarters of an organization that are open only to the organization's members and their guests.
  8. No qualified organization shall sell network bingo cards on the Internet or other online service or allow the play of network bingo on the Internet or other online service. However, the location where network bingo games are conducted shall be equipped with a video monitor, television, or video screen, or any other similar means of visually displaying a broadcast or signal, that relays live, real-time video of the numbers as they are called by a live caller. The Internet or other online service may be used to relay information about winning players.
  9. Qualified organizations may award network bingo prizes on a graduated scale; however, no single network bingo prize shall exceed $25,000.
  10. Nothing in this section shall be construed to prohibit an organization from participating in more than one network bingo network.

    (2013, cc. 36, 350; 2020, c. 568; 2021, Sp. Sess. I, c. 520.)

Editor's note. - Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2021, Sp. Sess. I, c. 520, cl. 3 provides: "That, notwithstanding §§ 18.2-340.26:1 , 18.2-340.27 , 18.2-340.28 , and 18.2-340.28 :1 of the Code of Virginia, as amended by this act, any organization that conducted bingo, network bingo, instant bingo, pull tabs, or seal cards at a location outside of the county, city, or town in which its principal office, as registered with the State Corporation Commission, is located or an adjoining county, city, or town on or before February 1, 2021, may continue to conduct bingo, network bingo, instant bingo, pull tabs, or seal cards at such locations until June 30, 2022."

The 2020 amendments. - The 2020 amendment by c. 568 substituted "such times" for "such location and at such times as" in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, rewrote subsection A, which read: "Any organization qualified to conduct bingo games pursuant to the provisions of this article may sell network bingo cards as a part of a regular bingo game and, if a permit is required pursuant to § 18.2-340.25 , network bingo shall be sold only at such times designated in the permit for regular bingo games." See Editor's note.

§ 18.2-340.28:2. Conduct of Texas Hold'em poker tournaments by qualified organizations; limitation of operator fee; conditions.

  1. Any organization qualified to conduct bingo games on or after July 1, 2019, may conduct Texas Hold'em poker tournaments. The Board shall promulgate regulations establishing circumstances under which organizations qualified to conduct bingo games prior to July 1, 2019, may conduct Texas Hold'em poker tournaments.
  2. A qualified organization may contract with an operator to administer Texas Hold'em poker tournaments. Limitations on operator fees shall be established by Board regulations.
  3. A qualified organization shall accept only cash or, at its option, checks in payment of any charges or assessments for players to participate in Texas Hold'em poker tournaments. However, no such organization shall accept postdated checks in payment of any charges or assessments for players to participate in Texas Hold'em poker tournaments.
  4. No qualified organization or any person on the premises shall extend lines of credit or accept any credit or debit card or other electronic fund transfer in payment of any charges or assessments for players to participate in Texas Hold'em poker tournaments.
  5. No qualified organization shall allow any individual younger than 18 years of age to participate in Texas Hold'em poker tournaments.

    (2020, c. 982.)

Editor's note. - Acts 2020, c. 982, cl. 2 provides: "That the Charitable Gaming Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Charitable Gaming Board shall provide an opportunity for public comment on the regulations prior to adoption."

§ 18.2-340.29. Joint operation of bingo games; written reports; joint permit required.

  1. Any two or more qualified organizations may jointly organize and conduct bingo games provided both have fully complied with all other provisions of this article.
  2. Any two or more qualified organizations jointly conducting such games shall be (i) subject to the same restrictions and prohibitions contained in this article that would apply to a single organization conducting bingo games and (ii) required to furnish to the Department a written report setting forth the location where such games will be held, the division of manpower, costs, and proceeds for each game to be jointly conducted.

    Upon a finding that the division of manpower and costs for each game bears a reasonable relationship to the division of proceeds, the Department shall issue a joint permit.

  3. No bingo game shall be jointly conducted until the joint permit issued pursuant to subsection B is obtained by the organizations.

    (1995, c. 837; 2003, c. 884; 2006, c. 644.)

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" for "Commission" twice in subsection B.

The 2006 amendments. - The 2006 amendment by c. 644 inserted "or more" in subsection A; in subsection B, inserted "or more" in the first paragraph and substituted "joint permit" for "special permit for the joint conduct of all approved games" in the second paragraph; and substituted "joint" for "special" in subsection C.

§ 18.2-340.30. Reports of gross receipts and disbursements required; form of reports; failure to file.

  1. Each qualified organization shall keep a complete record of all inventory of charitable gaming supplies purchased, all receipts from its charitable gaming operation, and all disbursements related to such operation. Except as provided in § 18.2-340.23 , each qualified organization shall file at least annually, on a form prescribed by the Department, a report of all such receipts and disbursements, the amount of money on hand attributable to charitable gaming as of the end of the period covered by the report and any other information related to its charitable gaming operation that the Department may require. In addition, the Board, by regulation, may require any qualified organization whose net receipts exceed a specified amount during any three-month period to file a report of its receipts and disbursements for such period. All reports filed pursuant to this section shall be a matter of public record.
  2. All reports required by this section shall be filed on or before the date prescribed by the Department. The Board, by regulation, shall establish a schedule of late fees to be assessed for any organization that fails to submit required reports by the due date.
  3. Except as provided in § 18.2-340.23 , each qualified organization shall designate or compensate an outside individual or group who shall be responsible for filing an annual, and, if required, quarterly, financial report if the organization goes out of business or otherwise ceases to conduct charitable gaming activities. The Department shall require such reports as it deems necessary until all proceeds of any charitable gaming have been used for the purposes specified in § 18.2-340.19 or have been disbursed in a manner approved by the Department.
  4. Each qualified organization shall maintain for three years a complete written record of (i) all charitable gaming sessions using Department prescribed forms or reasonable facsimiles thereof approved by the Department; (ii) the name and address of each individual to whom is awarded any charitable gaming prize or jackpot that meets or exceeds the requirements of Internal Revenue Service Publication 3079, as well as the amount of the award; and (iii) an itemized record of all receipts and disbursements, including operating costs and use of proceeds incurred in operating bingo games.
  5. The failure to file reports within 30 days of the time such reports are due shall cause the automatic revocation of the permit, and no organization shall conduct any bingo game or raffle thereafter until the report is properly filed and a new permit is obtained. However, the Department may grant an extension of time for filing such reports for a period not to exceed 45 days if requested by an organization, provided the organization requests an extension within 15 days of the time such reports are due and all projected fees are paid. For the term of any such extension, the organization's permit shall not be automatically revoked, such organization may continue to conduct charitable gaming, and no new permit shall be required.

    (1995, c. 837; 1997, cc. 777, 838; 1999, c. 360; 2003, c. 884; 2006, c. 644; 2007, c. 541; 2014, c. 208.)

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and inserted "Except as provided in § 18.2-340.23 " at the beginning of the second sentence of subsection A; deleted former subsections C and D, which read: "C. The financial report shall be accompanied by a certificate, verified under oath, by the board of directors or the executive committee, if any, of the organization stating that the proceeds of charitable gaming have been used only for those purposes specified in § 18.2-340.19 and that the operation of the charitable games has been in accordance with the provisions of this article.

"D. Any qualified organization having annual gross receipts from charitable gaming in excess of $250,000, as shown on its annual financial report, shall attach to such report an opinion of a licensed independent certified public accountant that in all material respects (i) the annual financial report fairly presents beginning cash, receipts, operating costs, use of proceeds, and ending cash; (ii) the proceeds of all charitable games have been used for those purposes specified in § 18.2-340.19 ; and (iii) the gross receipts have been used in accordance with the provisions of this article. The opinion required by this subsection shall be in addition to any other opinion that may be required by the Commission"; redesignated former subsections E through G as present subsections C through E; inserted "Except as provided in § 18.2-340.23 " at the beginning of present subsection C; and in present subsection E, in the first sentence, deleted "and, when required, the opinion of a licensed independent certified public accountant in accordance with subsection D" following "when due" and deleted "or the opinion" following "until the report," and added the present second and third sentences.

The 1999 amendment substituted "within thirty days of the time such reports are" for "when" in the first sentence of subsection E.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" or "Board" for "Commission" throughout the section; in the last sentence of subsection A, substituted "pursuant to" for "per"; and in subsection E, substituted "30" for "thirty," "45" for "forty-five" and "15" for "fifteen."

The 2006 amendments. - The 2006 amendment by c. 644, in subsection A, inserted "inventory of charitable gaming supplies purchased, all" in the first sentence, substituted "for each calendar quarter" for "at least annually" in the second sentence and deleted the third sentence, which detailed additional reporting requirements; in subsection B, deleted "acknowledged in the presence of a notary public and" following "shall be" in the first sentence and added the second sentence; in subsection D, deleted the former clause (i) designation, inserted "complete" preceding "written record," deleted "the dates on which bingo games are played, the number of people in attendance on each date and the amount of the gross receipts and prizes paid on each day" following "record of," added clause (i), and in clause (ii), deleted "a record of" preceding "the name", substituted "any prize" for "a regular or special bingo game prize" and "any charitable gaming" for "the playing of bingo" and inserted "in excess of $599"; and added "and all projected fees are paid" in the second sentence of subsection E.

The 2007 amendments. - The 2007 amendment by c. 541, in subsection A, substituted "at least annually" for "for each calendar quarter" in the second sentence and added the present next-to-last sentence; and substituted "or compensate an outside individual or group" for "an individual" in the first sentence of subsection C.

The 2014 amendments. - The 2014 amendment by c. 208, in clause (ii) of subsection D, substituted "is awarded" for "any prize or jackpot in excess of $599 from" and "prize or jackpot that meets or exceeds the requirements of Internal Revenue Service Publication 3079" for "is awarded."

§ 18.2-340.30:1.

Repealed by Acts 2010, c. 429, cl. 2.

Editor's note. - Former § 18.2-340.30:1 , establishing that proceeds from "winner-take-all" games are not counted as gross receipts, was enacted by Acts 2007, c. 550.

§ 18.2-340.31. Audit of reports; exemption; audit and administration fee; additional gross receipts assessment.

  1. All reports filed pursuant to § 18.2-340.30 shall be subject to audit by the Department in accordance with Board regulations. The Department may engage the services of independent certified public accountants to perform any audits deemed necessary to fulfill the Department's responsibilities under this article.
  2. The Department shall prescribe a reasonable audit and administration fee to be paid by any organization conducting charitable gaming under a permit issued by the Department unless the organization is exempt from such fee pursuant to § 18.2-340.23 . Such fee shall not exceed one and one-quarter percent of the gross receipts which an organization reports pursuant to § 18.2-340.30 . The audit and administration fee shall accompany each report for each calendar quarter.
  3. The audit and administration fee shall be payable to the Treasurer of Virginia. All such fees received by the Treasurer of Virginia shall be separately accounted for and shall be used only by the Department for the purposes of auditing and regulating charitable gaming.
  4. In addition to the fee imposed under subsection B, an additional fee of one-quarter of one percent of the gross receipts that an organization reports pursuant to § 18.2-340.30 shall be paid by the organization to the Treasurer of Virginia. All such amounts shall be collected and deposited in the same manner as prescribed in subsections B and C and shall be used for the same purposes. (1995, c. 837; 1997, cc. 777, 838; 2003, c. 884; 2006, c. 644; 2020, c. 982.)

Editor's note. - Acts 2020, c. 982, cl. 2 provides: "That the Charitable Gaming Board's initial adoption of regulations necessary to implement the provisions of this act shall be exempt from the Administrative Process Act ( § 2.2-4000 et seq. of the Code of Virginia), except that the Charitable Gaming Board shall provide an opportunity for public comment on the regulations prior to adoption."

Acts 2020, c. 1289, Item 105 A, as amended by Acts 2021, Sp. Sess. I, c. 552, effective for the biennium ending June 30, 2022, provides: "Notwithstanding § 18.2-340.31 , Code of Virginia, any and all fees paid by any organization conducting charitable gaming under a permit issued by the department, including audit and administrative fees and permit fees, shall be deposited to the general fund."

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and added the second sentence in subsection A; rewrote subsection B, which formerly read: "The Commission shall prescribe a reasonable audit fee not to exceed the actual cost of the audit if the audit is conducted by an independent auditor or accountant, or if the audit is conducted by the Commission, two percent of (i) the gross receipts which an organization reports pursuant to § 18.2-340.30 and (ii) the interest income on money the organization has received from charitable gaming operations. The audit fee shall accompany each annual report"; and in subsection C, inserted "and administration" in the first sentence and substituted "such fees" for "audit fees" near the beginning of the second sentence.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" or "Board" for "Commission" throughout the section, and in subsection B, deleted "one and one-half percent of the gross receipts which an organization reports pursuant to § 18.2-340.30 . Beginning July 1, 1998, the audit and administration fee charged by the Commission shall not exceed" following "not exceed."

The 2006 amendments. - The 2006 amendment by c. 644 deleted "Except as provided in § 18.2-340.23 " preceding "All reports" in the first sentence of subsection A; substituted "report for each calendar quarter" for "annual report or each three month report if such report is required by the Department pursuant to § 18.2-340.30 " in subsection B,; and in subsection C, substituted "Treasurer of Virginia" for "Department" twice and inserted "by the Department" in the second sentence.

The 2020 amendments. - The 2020 amendment by c. 982 added subsection D.

§ 18.2-340.32.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions as to regulation of bingo and instant bingo, see § 15.2-912.2 .

§ 18.2-340.33. Prohibited practices.

In addition to those other practices prohibited by this article, the following acts or practices are prohibited:

  1. No part of the gross receipts derived by a qualified organization may be used for any purpose other than (i) reasonable and proper gaming expenses, (ii) reasonable and proper business expenses, (iii) those lawful religious, charitable, community or educational purposes for which the organization is specifically chartered or organized, and (iv) expenses relating to the acquisition, construction, maintenance, or repair of any interest in the real property involved in the operation of the organization and used for lawful religious, charitable, community or educational purposes. For the purposes of clause (iv), such expenses may include the expenses of a corporation formed for the purpose of serving as the real estate holding entity of a qualified organization, provided (a) such holding entity is qualified as a tax exempt organization under § 501(c) of the Internal Revenue Code and (b) the membership of the qualified organization is identical to such holding entity.
  2. Except as provided in § 18.2-340.34:1 , no qualified organization shall enter into a contract with or otherwise employ for compensation any person for the purpose of organizing, managing, or conducting any charitable games. However, organizations composed of or for deaf or blind persons may use a part of their gross receipts for costs associated with providing clerical assistance in the management and operation but not the conduct of charitable gaming. The provisions of this subdivision shall not prohibit the joint operation of bingo games held in accordance with § 18.2-340.29 .
  3. No person shall pay or receive for use of any premises devoted, in whole or in part, to the conduct of any charitable games, any consideration in excess of the current fair market rental value of such property. Fair market rental value consideration shall not be based upon or determined by reference to a percentage of the proceeds derived from the operation of any charitable games or to the number of people in attendance at such charitable games.
  4. No person shall participate in the management or operation of any charitable game unless such person is and, for a period of at least 30 days immediately preceding such participation, has been a bona fide member of the organization. For any organization that is not composed of members, a person who is not a bona fide member may volunteer in the conduct of a charitable game as long as that person is directly supervised by a bona fide official member of the organization. The provisions of this subdivision shall not apply to (i) persons employed as clerical assistants by qualified organizations composed of or for deaf or blind persons; (ii) employees of a corporate sponsor of a qualified organization, provided such employees' participation is limited to the management, operation or conduct of no more than one raffle per year; (iii) the spouse or family member of any such bona fide member of a qualified organization provided at least one bona fide member is present; or (iv) persons employed by a qualified organization authorized to sell pull tabs or seal cards in accordance with § 18.2-340.16 , provided (a) such sales are conducted by no more than two on-duty employees, (b) such employees receive no compensation for or based on the sale of the pull tabs or seal cards, and (c) such sales are conducted in the private social quarters of the organization.
  5. No person shall receive any remuneration for participating in the management, operation or conduct of any charitable game, except that:
    1. Persons employed by organizations composed of or for deaf or blind persons may receive remuneration not to exceed $30 per event for providing clerical assistance in the management and operation but not the conduct of charitable games only for such organizations;
    2. Persons under the age of 19 who sell raffle tickets for a qualified organization to raise funds for youth activities in which they participate may receive nonmonetary incentive awards or prizes from the organization;
    3. Remuneration may be paid to off-duty law-enforcement officers from the jurisdiction in which such bingo games are played for providing uniformed security for such bingo games even if such officer is a member of the sponsoring organization, provided the remuneration paid to such member is in accordance with off-duty law-enforcement personnel work policies approved by the local law-enforcement official and further provided that such member is not otherwise engaged in the management, operation or conduct of the bingo games of that organization, or to private security services businesses licensed pursuant to § 9.1-139 providing uniformed security for such bingo games, provided that employees of such businesses shall not otherwise be involved in the management, operation, or conduct of the bingo games of that organization;
    4. A member of a qualified organization lawfully participating in the management, operation or conduct of a bingo game may be provided food and nonalcoholic beverages by such organization for on-premises consumption during the bingo game provided the food and beverages are provided in accordance with Board regulations;
    5. Remuneration may be paid to bingo managers or callers who have a current registration certificate issued by the Department in accordance with § 18.2-340.34:1 , or who are exempt from such registration requirement. Such remuneration shall not exceed $100 per session; and
    6. Volunteers of a qualified organization may be reimbursed for their reasonable and necessary travel expenses, not to exceed $50 per session.
  6. No landlord shall, at bingo games conducted on the landlord's premises, (i) participate in the conduct, management, or operation of any bingo games; (ii) sell, lease or otherwise provide for consideration any bingo supplies, including, but not limited to, bingo cards, instant bingo cards, or other game pieces; or (iii) require as a condition of the lease or by contract that a particular manufacturer, distributor or supplier of bingo supplies or equipment be used by the organization.

    The provisions of this subdivision shall not apply to any qualified organization conducting bingo games on its own behalf at premises owned by it.

  7. No qualified organization shall enter into any contract with or otherwise employ or compensate any member of the organization on account of the sale of bingo supplies or equipment.
  8. No organization shall award any bingo prize money or any merchandise valued in excess of the following amounts:
    1. No bingo door prize shall exceed $250 for a single door prize or $500 in cumulative door prizes in any one session;
    2. No regular bingo or special bingo game prize shall exceed $100. However, up to 10 games per bingo session may feature a regular bingo or special bingo game prize of up to $200;
    3. No instant bingo, pull tab, or seal card prize for a single card shall exceed $2,000;
    4. Except as provided in this subdivision 8, no bingo jackpot of any nature whatsoever shall exceed $1,000, nor shall the total amount of bingo jackpot prizes awarded in any one session exceed $1,000. Proceeds from the sale of bingo cards and the sheets used for bingo jackpot games shall be accounted for separately from the bingo cards or sheets used for any other bingo games; and
    5. No single network bingo prize shall exceed $25,000. Proceeds from the sale of network bingo cards shall be accounted for separately from bingo cards and sheets used for any other bingo game.
  9. The provisions of subdivision 8 shall not apply to:

    Any progressive bingo game, in which (i) a regular or special prize, not to exceed $100, is awarded on the basis of predetermined numbers or patterns selected at random and (ii) a progressive prize, not to exceed $500 for the initial progressive prize and $5,000 for the maximum progressive prize, is awarded if the predetermined numbers or patterns are covered when a certain number of numbers is called, provided that (a) there are no more than six such games per session per organization, (b) the amount of increase of the progressive prize per session is no more than $200, (c) the bingo cards or sheets used in such games are sold separately from the bingo cards or sheets used for any other bingo games, (d) the organization separately accounts for the proceeds from such sale, and (e) such games are otherwise operated in accordance with the Department's rules of play.

  10. No organization shall award any raffle prize valued at more than $100,000.

    The provisions of this subdivision shall not apply to a raffle conducted no more than three times per calendar year by a qualified organization qualified as a tax-exempt organization pursuant to § 501(c) of the Internal Revenue Code for a prize consisting of a lot improved by a residential dwelling where 100 percent of the moneys received from such a raffle, less deductions for the fair market value for the cost of acquisition of the land and materials, are donated to lawful religious, charitable, community, or educational organizations specifically chartered or organized under the laws of the Commonwealth and qualified as a § 501(c) tax-exempt organization. No more than one such raffle shall be conducted in any one geographical region of the Commonwealth.

  11. No qualified organization composed of or for deaf or blind persons which employs a person not a member to provide clerical assistance in the management and operation but not the conduct of any charitable games shall conduct such games unless it has in force fidelity insurance, as defined in § 38.2-120 , written by an insurer licensed to do business in the Commonwealth.
  12. No person shall participate in the management or operation of any charitable game if he has ever been convicted of any felony or if he has been convicted of any misdemeanor involving fraud, theft, or financial crimes within the preceding five years. No person shall participate in the conduct of any charitable game if, within the preceding 10 years, he has been convicted of any felony or if, within the preceding five years he has been convicted of any misdemeanor involving fraud, theft, or financial crimes. In addition, no person shall participate in the management, operation or conduct of any charitable game if that person, within the preceding five years, has participated in the management, operation, or conduct of any charitable game which was found by the Department or a court of competent jurisdiction to have been operated in violation of state law, local ordinance or Board regulation.
  13. Qualified organizations jointly conducting bingo games pursuant to § 18.2-340.29 shall not circumvent any restrictions and prohibitions which would otherwise apply if a single organization were conducting such games. These restrictions and prohibitions shall include, but not be limited to, the frequency with which bingo games may be held, the value of merchandise or money awarded as prizes, or any other practice prohibited under this section.
  14. A qualified organization shall not purchase any charitable gaming supplies for use in the Commonwealth from any person who is not currently registered with the Department as a supplier pursuant to § 18.2-340.34 .
  15. Unless otherwise permitted in this article, no part of an organization's charitable gaming gross receipts shall be used for an organization's social or recreational activities.

    (1995, c. 837; 1996, c. 919; 1997, cc. 777, 838; 1998, cc. 57, 398; 1999, c. 534; 2000, c. 1000; 2001, c. 754; 2002, c. 282; 2003, c. 884; 2004, c. 275; 2005, cc. 776, 826; 2006, c. 644; 2007, cc. 226, 790; 2008, c. 352; 2010, c. 429; 2013, cc. 36, 350; 2017, cc. 566, 739; 2020, c. 568; 2021, Sp. Sess. I, c. 491.)

Editor's note. - Acts 1998, c. 398, cl. 3, effective October 1, 1998, provides: "That none of the provisions of this act shall be construed to reduce the potential lawful uses of gross receipts from charitable gaming derived by qualified organizations from what they were interpreted to be by the Charitable Gaming Commission [now the Department of Agriculture and Consumer Services] as of January 14, 1998."

The 2000 amendment by c. 1000 added the former second paragraph of subdivision 3. Acts 2001, c. 813, cl. 3 extended the expiration date for this amendment to July 1, 2002. The section is set out above without the change by Acts 2000, c. 1000.

Acts 2005, cc. 776 and 826, cl. 2, provide: "That notwithstanding the provisions of subsection A (ii) of § 15.2-912.2 , the Charitable Gaming Board shall establish the hours during which bingo games may be conducted."

Acts 2010, c. 429, cl. 3, provides: "That the Department of Agriculture and Consumer Services shall report to the chairs of the House Committee on General Laws and the Senate Committee on General Laws and Technology on or before December 1, 2010 concerning the Department's efforts to increase the number of Department-approved independent laboratory testers in order to expedite the Department's approval process for new charitable games authorized by Article 1:1 ( § 18.2-340.15 et seq.) of Chapter 6 of Title 18.2 and regulations of the Charitable Gaming Board."

Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

Acts 2020, c. 980, cl. 3 provides: "That the Charitable Gaming Board shall convene a stakeholder work group to review the current limitations on prize amounts and provide any recommendations to the General Assembly by November 30, 2020."

The 1996 amendment, in subdivision 4, inserted the clause (i) designation, substituted "which is exempt from taxation" for "and qualified as a tax-exempt organization," deleted "or" following "the Internal Revenue Code," and added clause (ii); deleted "and" at the end of subdivision 6 a, inserted "and" at the end of subdivision 6 b, and added subdivision 6 c.

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and added the second sentence in subdivision 1; in subdivision 5, in the first paragraph, substituted "thirty days" for "ninety days" following "of at least" and deleted "however" following "organization," and inserted "or family member" following "the spouse" in the concluding paragraph; added subdivision 6 d; inserted "up to $1,000" following "for that game" in the concluding paragraph in subdivision 9 d; and substituted "pull tabs or seal cards" for "pull tab devices" preceding "when played" in clause (ii) in the concluding paragraph in subdivision 10 d.

The 1998 amendments. - The 1998 amendments by cc. 57 and 398, effective October 1, 1998, are identical, and in subdivision 1, in the first sentence, in clause (i), substituted "gaming expenses" for "operating costs," in clause (ii), substituted "reasonable and proper business expenses" for "publicizing the time and date of charitable gaming," in former clause (iii), deleted "prizes" preceding "those lawful"; redesignated former clause (iv) as present clause (iii), and redesignated former clause (v) as present clause (iv); and in the second sentence substituted "(iv)" for "(v)" following "For the purposes of clause" and added subdivision 15.

The 1999 amendment deleted "markers" following "instant bingo cards" in subdivision 7.

The 2000 amendments. - The 2000 amendment by c. 1000 added the second paragraph of subdivision 3. For expiration provision, see editor's note.

The 2001 amendments. - The 2001 amendment by c. 754, in the second paragraph of subdivision 5, deleted "or" preceding "(iii)," and inserted "or (iv) persons employed by a qualified organization authorized to sell pull tabs or seal cards in accordance with § 18.2-340.16 , provided (a) such sales are conducted by no more than two on-duty employees, (b) such employees receive no compensation for or based on the sale of the pull tabs or seal cards, and (c) such sales are conducted in the private social quarters of the organization" at the end.

The 2002 amendments. - The 2002 amendment by c. 282, in the concluding paragraph of subdivision 9, inserted "commonly referred to as 'winner-take-all' games," deleted "and" following "day of play," inserted the clause (i) and (ii) designations, substituted "does not exceed the lesser of the gross receipts directly attributable to the sale of bingo cards or sheets for such game or $1,000" for "does not exceed $1,000, such games being commonly referred to as 'winner-take-all' games" in clause (ii), and added clauses (iii) and (iv).

The 2003 amendments. - The 2003 amendment by c. 884, in subdivision 5, substituted "30" for "thirty"; in subdivision 6 a, substituted "$30" for "thirty dollars"; in subdivision 6 b, substituted "19" for "nineteen"; in subdivision 6 d, substituted "Board" for "Commission"; in subdivision 12, substituted "Department" and "Board" for "Commission"; and in subdivision 14, substituted "Department" for "Commission."

The 2004 amendments. - The 2004 amendment by c. 275 redesignated the last paragraph of subdivision 9 as subdivision 9a; added subdivisions 9a (a) and 9a(b); and made a minor stylistic change.

The 2005 amendments. - The 2005 amendments by cc. 776 and 826 are nearly identical, and inserted "Except as provided in § 18.2-340.34:1 " at the beginning of subdivision 2; added subdivision 6 e; and made stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 644 deleted "(3), (7) or (10)" following "501(c)" in subdivision 1; inserted "management and operation but not the" in subdivision 2; substituted "charitable gaming" for "bingo games" in subdivision 4; in the first paragraph in subdivision 5, substituted "or operation of any" for "operation or conduct of any" in the first sentence and added the second sentence; inserted "management and operation but not the" in subdivision 6 a; inserted the language beginning "or to private security services" in subdivision 6 c; deleted "for bingo managers or $50 per session for bingo callers" following "per session" in the last sentence of subdivision 6 e; deleted the last sentence, relating to itemizing a lease or contract, in subdivision 7; substituted "$50 for a single door prize or $250 in cumulative door prizes in any one session" for "$25" in subdivision 9 a; in subdivision 9 c, inserted "pull tab, or seal card" and substituted "$599" for "$500"; substituted "session" for "calendar day" in subdivision 9 d; redesignated former subdivision 9a as subdivision 10; in subdivision 10 a, in clause (i), substituted "is" for "are" and "session" for "calendar day"; substituted "session" for "calendar day" in clause (i) of subdivision 10 b; redesignated former subdivisions 10 through 15 as subdivisions 11 through 16; in the second paragraph in subdivision 11, deleted the clause (i) designation and "(3)" following "501(c)" twice and deleted clause (ii), which read: "pull tabs or seal cards when played as permitted in § 18.2-340.26 , which prize award for a single card shall not exceed $500" and made a related change; inserted "management and operation but not the" in subdivision 12; in subdivision 13, added the first sentence and in the second sentence, deleted "management, operation or" preceding "conduct," substituted "10" for "five," "any felony" for "a felony" and the language beginning "if, within the preceding" for "crime of moral turpitude."

The 2007 amendments. - The 2007 amendment by c. 226 added "or who are exempt from such registration requirement" at the end of the first sentence of subdivision 6 e.

The 2007 amendment by c. 790 added the last sentence to subdivision 9 d; and substituted "two such games" for "one such game" in subdivision 10 a and made related changes.

The 2008 amendments. - The 2008 amendment by c. 352 rewrote the second sentence in subparagraph 9 d, which read: "Bingo cards and the sheets used for bingo jackpot games shall be sold separately from the bingo cards or sheets used for any other bingo games, and the organization shall separately account for the proceeds from such sales."

The 2010 amendments. - The 2010 amendment by c. 429 rewrote subdivision 10.

The 2013 amendments. - The 2013 amendments by cc. 36 and 350, effective January 1, 2014, are identical and in subdivision 9, substituted "$1,000" for "$599" in subdivision 9 c, added the exception at the beginning of subdivision 9 d, added subdivision 9 e, and made related changes.

The 2017 amendments. - The 2017 amendment by c. 566, in the second paragraph of subdivision 11, substituted "three times per calendar year" for "once per calendar year," and added the second sentence.

The 2017 amendment by c. 739 substituted "18.2-340.27:1" for "18.2-340.27" in the second paragraph of subdivision 4; and added subdivision 6 f and made related changes.

The 2020 amendments. - The 2020 amendment by c. 568 deleted subdivision 4, which read: "No building or other premises shall be utilized in whole or in part for the purpose of conducting charitable gaming more frequently than two calendar days in any one calendar week. However, no building or other premises owned by (i) a qualified organization which is exempt from taxation pursuant to § 501(c) of the Internal Revenue Code or (ii) any county, city or town shall be utilized in whole or in part for the purpose of conducting bingo games more frequently than four calendar days in any one calendar week. The provisions of this subdivision shall not apply to the playing of bingo games pursuant to a special permit issued in accordance with § 18.2-340.27:1 ," and redesignated the remaining subdivisions accordingly; and updated internal references.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 491, effective July 1, 2021, substituted "$250" for "$50" and "$500" for "$250" in subdivision 8 a; added the second sentence in subdivision 8 b; substituted "$2,000" for "$1,000" in subdivision 8 c; substituted "$200" for "$100" in subdivision 9, second paragraph, clause (b); and made stylistic changes.

CASE NOTES

Single, double, and triple bingo lines do not satisfy the definition of "jackpot" in subdivision 5 of former § 18.2-340.1 . Therefore, prizes awarded for those accomplishments are not "jackpot" prizes. Only prizes awarded for success at "coverall" qualify as "jackpot" prizes.(decided under former § 18.2-340.9) Regular Veterans Ass'n v. Commonwealth, 18 Va. App. 683, 446 S.E.2d 621 (1994).

If the total prizes awarded in the game equal or exceed the gross receipts from the sale of cards, those prizes will accomplish the repayment of all the gross receipts as prize money back to the players, and that game will fall within the exemption of subsection H of this section (see now subsection I).(decided under former § 18.2-340.9) Regular Veterans Ass'n v. Commonwealth, 18 Va. App. 683, 446 S.E.2d 621 (1994).

Prize/receipts ratio not within statutory provisions. - Where commander of veteran's organization acknowledged that no financial records showed equal receipts and disbursements for games, that on some days receipts exceeded prizes, and that on other days prizes exceeded receipts, and he opined that on an ongoing basis, it was "basically an averaging situation," the games as described did not satisfy the definition in subsection H of this section (see now subsection I). Regular Veterans Ass'n v. Commonwealth, 18 Va. App. 683, 446 S.E.2d 621 (1994)(decided under former § 18.2-340.9)

Evidence sufficient for violation. - Where witness's testimony did not relate specifically to games in question, receipts/prize ratio analysis did not meet burden of proof, where the records that were produced refuted a consistent return of gross receipts to the players, and where the announcement of the prize values before the sale of cards established that no relationship existed between gross receipts and prize value determination, the evidence supported the jury's determination that games did not fall within the definition in subsection H of this section (see now subsection I) and that the ladies auxiliary and veteran's organization on the respective occasions charged against them, awarded jackpot prizes exceeding $1,000 in violation of subsection G of this section (see now subsection H). Regular Veterans Ass'n v. Commonwealth, 18 Va. App. 683, 446 S.E.2d 621 (1994)(decided under former § 18.2-340.9)

Double jeopardy inapplicable. - For a charge under this section, the misappropriated funds must be from gross receipts of bingo games or raffles conducted by licensed organizations; there is no minimum amount. For a charge of grand larceny not from the person under § 18.2-95 , there is no limitation on the source of the stolen property, but the property must be worth at least $200; thus, each offense contains an element the other does not, and defendant therefore was not punished twice for the same offense. Waldrop v. Commonwealth, No. 2094-94-2 (Ct. of Appeals Dec. 29, 1995)(decided under former § 18.2-340.9)

OPINIONS OF THE ATTORNEY GENERAL

Raffle by political party. - A political party may not conduct a raffle as a form of charitable gaming in the Commonwealth, as it is not an entity specifically chartered or organized for religious, charitable, community, or educational purposes. See opinion of Attorney General to The Honorable H. Fuller Cridlin, Lee County Commonwealth's Attorney, 18-031, 2018 Va. AG LEXIS 19 (11/2/18).

A political party or a candidate's campaign committee may not conduct a raffle. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, Senate of Virginia, 20-047, 2020 Va. AG LEXIS 33 (10/6/20).

§ 18.2-340.34. Suppliers of charitable gaming supplies; manufacturers of electronic games of chance systems; permit; qualification; suspension, revocation or refusal to renew certificate; maintenance, production, and release of records.

  1. No person shall offer to sell, sell, or otherwise provide charitable gaming supplies to any qualified organization and no manufacturer shall distribute electronic games of chance systems for charitable gaming in the Commonwealth unless and until such person has made application for and has been issued a permit by the Department. An application for permit shall be made on forms prescribed by the Department and shall be accompanied by a fee in the amount of $1,000. Each permit shall remain valid for a period of one year from the date of issuance. Application for renewal of a permit shall be accompanied by a fee in the amount of $1,000 and shall be made on forms prescribed by the Department.
  2. The Board shall have authority to prescribe by regulation reasonable criteria consistent with the provisions of this article for the registration of suppliers and manufacturers of electronic games of chance systems for charitable gaming. The Department shall refuse to issue a permit to any supplier or manufacturer who has, or which has any officer, director, partner, or owner who has, (i) been convicted of or pleaded nolo contendere to a felony in any state or federal court or has been convicted of any offense that, if committed in the Commonwealth, would be a felony; (ii) been convicted of or pleaded nolo contendere to a crime involving gambling; (iii) violated the gaming laws of any jurisdiction within the last five years, including violations for failure to register; or (iv) had any license, permit, certificate, or other authority related to charitable gaming suspended or revoked in the Commonwealth or in any other jurisdiction within the last five years. The Department may refuse to issue a permit to any supplier or manufacturer who has, or which has any officer, director, partner, or owner who has, (a) failed to file or has been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth or (b) failed to establish a registered office or registered agent in the Commonwealth if so required by § 13.1-634 or 13.1-763 .
  3. The Department shall suspend, revoke, or refuse to renew the permit of any supplier or manufacturer for any conduct described in clause (i), (ii), (iii), or (iv) of subsection B. The Department may suspend, revoke, or refuse to renew the permit of any supplier or manufacturer for any conduct described in clause (a) or (b) of subsection B or for any violation of this article or regulation of the Board. Before taking any such action, the Department shall give the supplier or manufacturer a written statement of the grounds upon which it proposes to take such action and an opportunity to be heard. Every hearing in a contested case shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).
  4. Each supplier shall document each sale of charitable gaming supplies, including electronic games of chance systems, and other items incidental to the conduct of charitable gaming, such as markers, wands or tape, to a qualified organization on an invoice which clearly shows (i) the name and address of the qualified organization to which such supplies or items were sold; (ii) the date of the sale; (iii) the name or form and serial number of each deal of instant bingo cards and pull-tab raffle cards, the quantity of deals sold and the price per deal paid by the qualified organization; (iv) the serial number of the top sheet in each packet of bingo paper, the serial number for each series of uncollated bingo paper, and the cut, color and quantity of bingo paper sold; and (v) any other information with respect to charitable gaming supplies, including electronic games of chance systems, or other items incidental to the conduct of charitable gaming as the Board may prescribe by regulation. A legible copy of the invoice shall accompany the charitable gaming supplies when delivered to the qualified organization.

    Each manufacturer of electronic games of chance systems shall document each distribution of such systems to a qualified organization or supplier on an invoice which clearly shows (a) the name and address of the qualified organization or supplier to which such systems were distributed; (b) the date of distribution; (c) the serial number of each such system; and (d) any other information with respect to electronic games of chance systems as the Board may prescribe by regulation. A legible copy of the invoice shall accompany the electronic games of chance systems when delivered to the qualified organization or supplier.

  5. Each supplier and manufacturer shall maintain a legible copy of each invoice required by subsection D for a period of three years from the date of sale. Each supplier and manufacturer shall make such documents immediately available for inspection and copying to any agent or employee of the Department upon request made during normal business hours. This subsection shall not limit the right of the Department to require the production of any other documents in the possession of the supplier or manufacturer which relate to its transactions with qualified organizations. All documents and other information of a proprietary nature furnished to the Department in accordance with this subsection shall not be a matter of public record and shall be exempt from disclosure under the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).
  6. Each supplier and manufacturer shall provide to the Department the results of background checks and any other records or documents necessary for the Department to enforce the provisions of subsections B and C.

    (1995, c. 837; 1996, c. 919; 1997, cc. 777, 838; 1999, c. 534; 2003, c. 884; 2006, c. 644; 2007, c. 264; 2021, Sp. Sess. I, c. 520.)

Cross references. - As to records which are excluded from the provisions of the Virginia Freedom of Information Act, see § 2.2-3705.1 et seq.

Editor's note. - Acts 2021, Sp. Sess. I, c. 520, cl. 2 provides: "That the provisions of this act that amend subsections B and C of § 18.2-340.34 of the Code of Virginia to require the Department of Agriculture and Consumer Services to refuse to issue a permit, or to suspend, revoke, or refuse to renew a permit that has already been issued, to a supplier or manufacturer under certain circumstances shall not apply to offenses committed or suspensions or revocations imposed prior to July 1, 2021."

The 1996 amendment, in subsection B, in clause (iv), inserted "failed to file or has" preceding "been delinquent" and inserted "in excess of one year" preceding "in the filing of any tax returns," and substituted "quantity" for "quality" preceding "of deals sold" in clause (iii) of subsection D.

The 1997 amendments. - The 1997 amendments by cc. 777 and 838 are identical, and added the third sentence of subsection C and added the fourth sentence of subsection E.

The 1999 amendment, in subsection D, inserted "and other items incidental to the conduct of charitable gaming, such as markers, wands or tape" following "gaming supplies," substituted "such supplies or items" for "the supplies" in clause (i), and substituted "charitable gaming supplies or other items incidental to the conduct of charitable gaming" for "items of charitable gaming supplies" in clause (v).

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" or "Board" for "Commission" throughout the section.

The 2006 amendments. - The 2006 amendment by c. 644, in subsection A, substituted "permit" for "registration certificate" in the first, third and fourth sentences, in the second sentence, substituted "permit" for "registration," and substituted "$1,000" for "$500" in the second and fourth sentences; in subsection B, substituted "issue a permit to" for "register" in the second sentence, added clause (v) and made a related change; and substituted "permit" for "certificate" in the first sentence of subsection C.

The 2007 amendments. - The 2007 amendment by c. 264 inserted "manufacturers of electronic games of chance systems" to the section catchline; inserted "and no manufacturer shall distribute electronic games of chance systems for charitable gaming in the Commonwealth" in the first sentence of subsection A; inserted "and manufacturers of electronic games of chance systems for charitable gaming" in the first sentence of subsection B; in subsection C, inserted "or manufacturer" in the first and second sentences; in subsection D, inserted "including electronic games of chance systems" in the first sentence and added the second paragraph; and in subsection E, inserted "and manufacturer" in the first and second sentences and inserted "or manufacturer" in the third sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 520, effective July 1, 2021, rewrote subsection B; in subsection C, inserted the first sentence, and inserted "clause (a) or (b)" in the second sentence; and added subsection F. For applicability, see Editor's note.

§ 18.2-340.34:1. Bingo managers and callers; remuneration; registration; qualification; suspension, revocation or refusal to renew certificate; exceptions.

  1. No person shall receive remuneration as a bingo manager or caller from any qualified organization unless and until such person has made application for and has been issued a registration certificate by the Department. Application for registration shall be made on forms prescribed by the Department and shall be accompanied by a fee in the amount of $75. Each registration certificate shall remain valid for a period of one year from the date of issuance. Application for renewal of a registration certificate shall be accompanied by a fee in the amount of $75 and shall be made on forms prescribed by the Department.
  2. As a condition of registration as a bingo manager, the applicant shall (i) have been a bona fide member of the qualified organization for at least 12 consecutive months prior to making application for registration and (ii) be required to complete a reasonable training course developed and conducted by the Department.

    As a condition of registration as a bingo caller, the applicant shall be required to complete a reasonable training course developed and conducted by the Department.

    The Department may refuse to register any bingo manager or caller who has (a) been convicted of or pleaded nolo contendere to a felony in any state or federal court or has been convicted of any offense which, if committed in the Commonwealth, would be a felony; (b) been convicted of or pleaded nolo contendere to a crime involving gambling; (c) had any license, permit, certificate, or other authority related to activities defined as charitable gaming in the Commonwealth suspended or revoked in the Commonwealth or in any other jurisdiction; or (d) failed to file or has been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth.

  3. The Department may suspend, revoke, or refuse to renew the registration certificate of any bingo manager or caller for any conduct described in subsection B or for any violation of this article or regulations of the Board. Before taking any such action, the Department shall give the bingo manager or caller a written statement of the grounds upon which it proposes to take such action and an opportunity to be heard. Every hearing in a contested case shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).
  4. The provisions of subsection A requiring registration for bingo callers with the Department shall not apply to a bingo caller for a volunteer fire department or volunteer emergency medical services agency or auxiliary unit thereof that has been recognized in accordance with § 15.2-955 by an ordinance or resolution of the political subdivision where the volunteer fire department or volunteer emergency medical services agency is located as being a part of the safety program of such political subdivision. (2005, cc. 776, 826; 2007, cc. 226, 347; 2015, cc. 502, 503.)

Editor's note. - Acts 2005, cc. 776 and 826, cl. 2, provide: "That notwithstanding the provisions of subsection A (ii) of § 15.2-912.2 , the Charitable Gaming Board shall establish the hours during which bingo games may be conducted."

The 2007 amendments. - The 2007 amendment by c. 226 added subsection D.

The 2007 amendment by c. 347 inserted "as a bingo manager" following "registration" in the first paragraph and added the second paragraph of subsection B.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "volunteer emergency medical services agency" for "rescue squad" twice in subsection D.

§ 18.2-340.34:2. Licensing of network bingo providers; qualification; suspension, revocation, or refusal to renew license; maintenance, production, and release of records.

  1. No person shall sell or offer to sell or otherwise provide access to a network bingo network to any qualified organization unless and until such person has made application for and has been issued a license by the Department. An application for license shall be made on forms prescribed by the Department and shall be accompanied by a fee in the amount of $500. Each license shall remain valid for a period of two years from the date of issuance. Application for renewal of a license shall be accompanied by a fee in the amount of $500 and shall be made on forms prescribed by the Department.
  2. The Board shall have authority to prescribe by regulation reasonable criteria consistent with the provisions of this article for the licensure of network bingo providers. The Department may refuse to issue a license to any network bingo provider that has any officer, director, partner, or owner who has (i) been convicted of or pleaded nolo contendere to a felony in any state or federal court or has been convicted of any offense that, if committed in the Commonwealth, would be a felony; (ii) been convicted of or pleaded nolo contendere to a crime involving gambling; (iii) had any license, permit, certificate, or other authority related to activities defined as charitable gaming in the Commonwealth suspended or revoked in the Commonwealth or in any other jurisdiction; (iv) failed to file or been delinquent in excess of one year in the filing of any tax returns or the payment of any taxes due the Commonwealth; or (v) failed to establish a registered office or registered agent in the Commonwealth if so required by § 13.1-634 or 13.1-763 .
  3. The Department may suspend, revoke, or refuse to renew the license of any network bingo provider for any conduct described in subsection B or for any violation of this article or regulation of the Board. Before taking any such action, the Department shall give the network bingo provider a written statement of the grounds upon which it proposes to take such action and an opportunity to be heard. Every hearing in a contested case shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.).
  4. The Department by regulation shall require network bingo providers to have onsite independent supervision of network bingo games as the numbers are called.
  5. Each network bingo provider shall document each sale of network bingo supplies and other items incidental to the conduct of network bingo to a qualified organization on an invoice that clearly shows (i) the name and address of the qualified organization to which such supplies or items were sold; (ii) the date of the sale; (iii) the name or form and serial number of each network bingo card, the quantity of cards sold, and the price per card paid by the qualified organization; and (iv) any other information required by the Department. A legible copy of the invoice shall accompany the network bingo supplies when delivered to the qualified organization.
  6. Each network bingo provider shall maintain a legible copy of each invoice required by subsection E for a period of three years from the date of sale. Each network bingo provider shall make such documents immediately available for inspection and copying to any agent or employee of the Department upon request made during normal business hours. This subsection shall not limit the right of the Department to require the production of any other documents in the possession of the network bingo provider that relate to its transactions with qualified organizations. All documents and other information of a proprietary nature furnished to the Department in accordance with this subsection shall be exempt from disclosure under the provisions of the Freedom of Information Act (§ 2.2-3700 et seq.). (2013, cc. 36, 350.)

Editor's note. - Acts 2013, cc. 36 and 350, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2014, except that the provisions of § 18.2-340.19 of this act shall become effective on July 1, 2013."

§ 18.2-340.35. Assistance from Department of State Police.

The Department of the State Police, upon request of the Department, shall assist in the conduct of investigations by the Department.

(1995, c. 837; 2003, c. 884.)

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" for "Commission" twice.

§ 18.2-340.36. Suspension of permit.

  1. When any officer charged with the enforcement of the charitable gaming laws of the Commonwealth has reasonable cause to believe that the conduct of charitable gaming is being conducted by an organization in violation of this article or the regulations of the Board, he may apply to any judge, magistrate, or other person having authority to issue criminal warrants for the immediate suspension of the permit of the organization conducting the bingo game or raffle. If the judge, magistrate, or person to whom such application is presented is satisfied that probable cause exists to suspend the permit, he shall suspend the permit. Immediately upon such suspension, the officer shall notify the organization in writing of such suspension.
  2. Written notice specifying the particular basis for the immediate suspension shall be provided by the officer to the organization within one business day of the suspension and a hearing held thereon by the Department or its designated hearing officer within 10 days of the suspension unless the organization consents to a later date. No charitable gaming shall be conducted by the organization until the suspension has been lifted by the  Department or a court of competent jurisdiction.

    (1995, c. 837; 2003, c. 884.)

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Board" for "Commission" in subsection A, and in subsection B substituted "Department" for "Commission" and "10" for "ten."

§ 18.2-340.37. Criminal penalties.

  1. Any person who violates the provisions of this article or who willfully and knowingly files, or causes to be filed, a false application, report or other document or who willfully and knowingly makes a false statement, or causes a false statement to be made, on any application, report or other document required to be filed with or made to the Department shall be guilty of a Class 1 misdemeanor.
  2. Each day in violation shall constitute a separate offense.
  3. Any person who converts funds derived from any charitable gaming to his own or another's use, when the amount of funds is less than $1,000, shall be guilty of petit larceny and, when the amount of funds is $1,000 or more, shall be guilty of grand larceny. The provisions of this section shall not preclude the applicability of any other provision of the criminal law of the Commonwealth that may apply to any course of conduct that violates this section.

    (1995, c. 837; 1996, c. 919; 2003, c. 884; 2006, c. 644; 2018, cc. 764, 765; 2020, cc. 89, 401.)

The 1996 amendment inserted "or who willfully and knowingly files, or causes to be filed, a false application, report or other document or who willfully and knowingly makes a false statement, or causes a false statement to be made, on any application, report or other document required to be filed with or made to the Commission" following "who violates the provisions of this article" in subsection A.

The 2003 amendments. - The 2003 amendment by c. 884 substituted "Department" for "Commission" in subsection A.

The 2006 amendments. - The 2006 amendment by c. 644 added subsection C.

The 2018 amendments. - The 2018 amendments by cc. 764 and 765 are identical, and substituted "$500" for "$200" twice in subsection C.

The 2020 amendments. - The 2020 amendments by cc. 89 and 401 are identical, and substituted "$1,000" for "$500" twice in subsection C.

§ 18.2-340.38.

Repealed by Acts 2001, c. 754, cl. 2.

Article 2. Sunday Offenses.

§§ 18.2-341 through 18.2-343.

Repealed by Acts 2004, c. 608.

Editor's note. - Former § 18.2-341 , pertaining to working or transacting business on Sunday, derived from Code 1950, § 18.1-363.1; 1974, c. 330; 1975, cc. 14, 15, 498; 1976, c. 569; 1978, c. 639; 1979, c. 400; 1982, c. 286; 1984, c. 369; 1988, c. 666. Former § 18.2-342, pertaining to applicability of § 18.2-341 within certain counties and cities, derived from 1975, cc. 14, 15. Former § 18.2-343, pertaining to observance of Saturday as Sabbath, derived from Code 1950, § 18.1-363.2; 1975, c. 133.

Article 3. Commercial Sex Trafficking, Prostitution, etc.

§ 18.2-344.

Repealed by Acts 2020, c. 122, cl. 2.

Editor's note. - Former § 18.2-344 , pertaining to fornication, was derived from Code 1950, §§ 18.1-188, 18.1-190; 1960, c. 358; 1975, cc. 14, 15.

§ 18.2-345.

Repealed by Acts 2013, c. 621.

Editor's note. - Former § 18.2-345 , pertaining to lewd and lascivious cohabitation, derived from Code 1950, § 18.1-193; 1960, c. 358; 1975, cc. 14, 15.

§ 18.2-346. Prostitution; commercial sexual conduct; penalties.

Any person who, for money or its equivalent, (i) commits any act in violation of § 18.2-361 ; performs cunnilingus, fellatio, or anilingus upon or by another person; engages in sexual intercourse or anal intercourse; touches the unclothed genitals or anus of another person with the intent to sexually arouse or gratify; or allows another to touch his unclothed genitals or anus with the intent to sexually arouse or gratify or (ii) offers to commit any act in violation of § 18.2-361 ; perform cunnilingus, fellatio, or anilingus upon or by another person; engage in sexual intercourse or anal intercourse; touch the unclothed genitals or anus of another person with the intent to sexually arouse or gratify; or allow another to touch his unclothed genitals or anus with the intent to sexually arouse or gratify and thereafter does any substantial act in furtherance thereof is guilty of prostitution, which is punishable as a Class 1 misdemeanor.

(Code 1950, § 18.1-194; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534; 1993, c. 609; 2013, cc. 417, 467; 2014, c. 794; 2020, cc. 122, 595, 900; 2021, Sp. Sess. I, c. 188.)

Cross references. - As to issuance of writ of vacatur for victims of commercial sex trafficking, see § 19.2-327.16 .

As to seizure of property used in connection with certain offenses, see § 19.2-386.35 .

Editor's note. - Acts 2020, c. 595, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2013 amendments. - The 2013 amendments by cc. 417 and 467 are identical, and in subsection A, added the clause (i) and (ii) designators, substituted "is guilty of" for "shall be guilty of being a prostitute, or," and "is punishable" for "shall be punishable"; in subsection B, substituted "in subsection A" for "above," "is guilty" for "shall be guilty," and "which is punishable as" for "and shall be guilty of," and added the last sentence.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, in subsection A, inserted a variation of "performs cunnilingus, fellatio, or anilingus upon or by another person, or engages in anal intercourse" twice.

The 2020 amendments. - The 2020 amendments by cc. 122 and 900 are identical, and in clauses (i) and (ii) of subsection A, deleted "adultery, fornication, or" preceding "any act" and inserted "sexual intercourse or."

The 2020 amendment by c. 595, in subsection A, inserted "touches the unclothed genitals or anus of another person with the intent to sexually arouse or gratify; or allows another to touch his unclothed genitals or anus with the intent to sexually arouse or gratify" in clause (i), inserted similar language in clause (ii) and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, deleted the subsection A designation, and deleted subsection B, which read: "Any person who offers money or its equivalent to another for the purpose of engaging in sexual acts as enumerated in subsection A and thereafter does any substantial act in furtherance thereof is guilty of solicitation of prostitution, which is punishable as a Class 1 misdemeanor. However, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony."

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, §§ 2, 3.

CASE NOTES

Statutory scheme did not violate Equal Protection Clause. - The fact that solicitation to commit prostitution is a misdemeanor and is, therefore, considered a less serious crime than solicitation to commit a felony, § 18.2-29 , which includes solicitation to commit sodomy, does not create an impermissible classification between groups of people similarly situated. Therefore, the court rejected the defendant's claim that the statutory scheme violated the Equal Protection Clause. Branche v. Commonwealth, 25 Va. App. 480, 489 S.E.2d 692 (1997).

No discrimination of one gender in absence of attempts to apprehend other gender. - The police do not intentionally discriminate against one gender by the absence of attempts to detect and apprehend offenders of the other gender, when no evidence is presented that offenders of the other gender are engaged in similar criminal behavior; the defendant offered no evidence that similarly situated females could have been prosecuted but were not. Branche v. Commonwealth, 25 Va. App. 480, 489 S.E.2d 692 (1997).

Attempted prostitution defined solely by section. - Attempted prostitution, unlike attempts to commit crimes generally, is defined solely by this section. Adams v. Commonwealth, 215 Va. 257 , 208 S.E.2d 742 (1974).

And, as so defined, is incorporated within the offense of prostitution itself. Adams v. Commonwealth, 215 Va. 257 , 208 S.E.2d 742 (1974).

Requirements for attempt to commit prostitution. - An attempt to commit prostitution requires an offer to engage in sexual intercourse for pay and a substantial act performed in furtherance of the offer. Adams v. Commonwealth, 215 Va. 257 , 208 S.E.2d 742 (1974).

Evidence was sufficient to prove beyond a reasonable doubt that defendant used a vehicle to promote prostitution in violation of § 18.2-349 , and the vehicle was also used to aid or promote prostitution in violation of § 18.2-348 because defendant not only committed substantial acts in furtherance of prostitution while in the vehicle by driving himself in the vehicle to the parking lot of the motel for the purpose of engaging the services of a prostitute, he used his vehicle to transport himself to a place to be used for the purpose of prostitution; the evidence proved that defendant initiated a conversation with an undercover officer concerning a "blow job," how much money he had, and whether she was a "cop," and in addition, defendant asked the officer to take a ride at the outset of the conversation and engaged in substantial acts in furtherance of completing the sexual transaction. Bakran v. Commonwealth, 57 Va. App. 197, 700 S.E.2d 471, 2010 Va. App. LEXIS 410 (2010).

How conviction sustained where no act occurred. - Where no act of adultery or fornication has occurred, a conviction under this section can be sustained only if the evidence shows an attempt to commit prostitution. Adams v. Commonwealth, 215 Va. 257 , 208 S.E.2d 742 (1974).

Attempt to commit act of sodomy for money. - The General Assembly, by its amendment of this section to include within its proscription an act of sodomy for money, precluded prosecution of an attempt to commit such act under the general statutory scheme under which attempts to commit felonies are prosecuted. McFadden v. Commonwealth, 3 Va. App. 226, 348 S.E.2d 847 (1986).

Application of abstention doctrine of Younger v. Harris , 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), to action brought by corporation engaged in business of providing escort and dating services seeking order enjoining prosecution of itself or its employees under this section and § 18.2-347 . See Hanpar, Inc. v. Atkinson, 496 F. Supp. 112 (E.D. Va. 1980).

Public policy exception to employment-at-will doctrine. - Employee who alleged that he was forced to quit his job as a result of retaliatory conduct that supervisors directed at the employee after the employee refused to engage in sexual harassment at work sufficiently stated a claim for wrongful constructive discharge in violation of public policy because the employee was a member of the class of persons that the statutes forbidding fornication, sexual battery, aggravated sexual battery, and prostitution were designed to protect. Hill v. Paramont Mfg., LLC,, 2006 U.S. Dist. LEXIS 78488 (W.D. Va. Oct. 18, 2006).

Applied in Fine v. Commonwealth, 31 Va. App. 636, 525 S.E.2d 69 (2000); Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27, 2004 Va. App. LEXIS 168 (2004).

§ 18.2-346.01. Prostitution; solicitation; commercial exploitation of a minor; penalties.

Any person who offers money or its equivalent to another for the purpose of engaging in sexual acts enumerated in § 18.2-346 and thereafter does any substantial act in furtherance thereof is guilty of solicitation of prostitution, which is punishable as a Class 1 misdemeanor. However, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony.

(2021, Sp. Sess. I, c. 188.)

Effective date. - This section is effective July 1, 2021.

§ 18.2-346.1. Testing of convicted prostitutes and injection drug users for sexually transmitted infection.

  1. As soon as practicable following conviction of any person for violation of § 18.2-346 , 18.2-346 .01, or 18.2-361 , any violation of Article 1 (§ 18.2-247 et seq.) or 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 involving the possession, sale, or use of a controlled substance in a form amenable to intravenous use, or the possession, sale, or use of hypodermic syringes, needles, or other objects designed or intended for use in parenterally injecting controlled substances into the human body, such person shall be provided the option to submit to testing for a sexually transmitted infection. The convicted person shall receive counseling from personnel of the Department of Health concerning (i) the meaning of the test, (ii) sexually transmitted infections, and (iii) the transmission and prevention of sexually transmitted infections.
  2. Any tests performed pursuant to this section shall be consistent with current Centers for Disease Control and Prevention recommendations. The results of such test for a sexually transmitted infection shall be confidential as provided in § 32.1-36.1 and shall be disclosed to the person who is the subject of the test and to the Department of Health as required by § 32.1-36 . The Department shall conduct surveillance and investigation in accordance with the requirements of § 32.1-39 .
  3. Upon receiving a report of a positive test for hepatitis C, the State Health Commissioner may share protected health information relating to such positive test with relevant sheriffs' offices, the state police, local police departments, adult or youth correctional facilities, salaried or volunteer firefighters, paramedics or emergency medical technicians, officers of the court, and regional or local jails (i) to the extent necessary to advise exposed individuals of the risk of infection and to enable exposed individuals to seek appropriate testing and treatment and (ii) as may be needed to prevent and control disease and is deemed necessary to prevent serious harm and serious threats to the health and safety of individuals and the public.

    The disclosed protected health information shall be held confidential; no person to whom such information is disclosed shall redisclose or otherwise reveal the protected health information without first obtaining the specific authorization from the individual who was the subject of the test for such redisclosure.

    Such protected health information shall only be used to protect the health and safety of individuals and the public in conformance with the regulations concerning patient privacy promulgated by the federal Department of Health and Human Services, as such regulations may be amended.

  4. The results of the tests shall not be admissible in any criminal proceeding.

    The cost of the tests shall be paid by the Commonwealth and taxed as part of the cost of such criminal proceedings.

    (1990, c. 913; 2005, c. 438; 2021, Sp. Sess. I, cc. 188, 465.)

The 2005 amendments. - The 2005 amendment by c. 438 added the subsection A, B and D designators; in subection A, rewrote the first sentence, in the second sentence, inserted "and hepatitis C" and substituted "virus" for "viruses and hepatitis C"; inserted "for human immunodeficiency viruses"; inserted subsection C; and substituted "tests" for "test" twice in subsection D.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in the first sentence of subsection A.

The 2021 amendment by Sp. Sess. I, c. 465, effective July 1, 2021, rewrote subsection A and B; and deleted "related to prostitution or drug use" at the end of the first paragraph in subsection D.

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 2; 9A M.J. Health and Sanitation, § 1.

§ 18.2-347. Keeping, residing in, or frequenting a bawdy place; "bawdy place" defined; penalty.

It is unlawful for any person to keep any bawdy place, or to reside in or at or visit for immoral purposes any such bawdy place. Each day such bawdy place is kept, resided in, or visited shall constitute a separate offense. In a prosecution under this section, the general reputation of the bawdy place may be proved. A violation of this section is a Class 1 misdemeanor.

As used in this Code, "bawdy place" means any place within or outside any building or structure that is used or is to be used for lewdness, assignation, or prostitution.

(Code 1950, §§ 18.1-195, 18.1-196; 1960, c. 358; 1975, cc. 14, 15; 2019, c. 617.)

Cross references. - As to pandering, see §§ 18.2-355 through 18.2-360 .

As to issuance of writ of vacatur for victims of commercial sex trafficking, see § 19.2-327.16 .

As to houses of prostitution, etc., as nuisances, see §§ 48-7 through 48-15 .

The 2019 amendments. - The 2019 amendment by c. 617 in the first paragraph, twice substituted "is" for "shall be," added the last sentence; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 99; 4A M.J. Contracts, § 124; 6A M.J. Disorderly Houses and Houses of Ill Fame, §§ 3, 6, 7.

CASE NOTES

This section and § 18.2-349 are broad and comprehensive. Dorchincoz v. Commonwealth, 191 Va. 33 , 59 S.E.2d 863 (1950).

The purpose of this section is to suppress commercial prostitution and to put a ban on any place where persons may meet for the purpose of illicit intercourse without fear of being molested or interfered with by the keeper thereof. Trent v. Commonwealth, 181 Va. 338 , 25 S.E.2d 350 (1943); Bennett v. Commonwealth, 182 Va. 7 , 28 S.E.2d 13 (1943).

What constitutes house of prostitution. - Every house where illicit sexual intercourse is indulged between a man and a woman is not necessarily a house of prostitution. In order to constitute such a house, it must have the elements of a public house; a house which many people may frequent for immoral purposes or a house where a person may go for immoral purposes without an invitation. Trent v. Commonwealth, 181 Va. 338 , 25 S.E.2d 350 (1943).

A house of ill fame is not measured by the number of its rooms or inhabitants. It is not necessary that more than one woman inhabit or resort to a place for the purpose of prostitution in order for such place to constitute a house of ill fame. Trent v. Commonwealth, 181 Va. 338 , 25 S.E.2d 350 (1943).

"Bawdyhouse" and "house of ill fame" are synonymous terms used in the law. Wilson v. Commonwealth, 132 Va. 824 , 111 S.E. 96 (1922).

Also "house of prostitution" is synonymous with "house of ill fame." Trent v. Commonwealth, 181 Va. 338 , 25 S.E.2d 350 (1943).

And "brothel." - A "bawdyhouse" is also spoken of as a "brothel." Wilson v. Commonwealth, 132 Va. 824 , 111 S.E. 96 (1922).

Motel parking lot was bawdy place. - Evidence was sufficient to show that the motel parking lot was a bawdy place as defined by this section and city code § 29-24. Once contract had been made to go to a reputed bawdy place for an immoral purpose, the ordinance was violated when the parties arrived at the parking lot. They were then visiting a bawdy place for the specific immoral purpose that the statute and ordinance were intended to suppress. Harrison v. City of Norfolk, 16 Va. App. 572, 431 S.E.2d 658 (1993).

Prostitution defined. - Prostitution means common, indiscriminate, illicit intercourse for hire, or the practice by a female in offering her body to an indiscriminate intercourse with men for money or its equivalent. Trent v. Commonwealth, 181 Va. 338 , 25 S.E.2d 350 (1943). See § 18.2-346 .

Maintenance of a house of ill fame is a continuing offense. Foster v. Commonwealth, 179 Va. 96 , 18 S.E.2d 314 (1942).

"General character" means "general reputation." - The words "general character," are used in the sense of "general reputation." Wilson v. Commonwealth, 132 Va. 824 , 111 S.E. 96 (1922); Mitchell v. Commonwealth, 192 Va. 205 , 64 S.E.2d 713 (1951).

Necessity for proving reputation. - In a prosecution for keeping a bawdyhouse it is not necessary to prove that the house had a general reputation as a bawdyhouse, where it is shown that it was in fact such a house. Wilson v. Commonwealth, 132 Va. 824 , 111 S.E. 96 (1922).

Accused must know of illegal practices in house. - Before one charged with violation of this section can be found guilty, he must possess knowledge of the illegal practices that are carried on in such place. Warshaw v. City of Norfolk, 190 Va. 862 , 58 S.E.2d 884 (1950).

Proof of knowledge of character of place. - In a prosecution for keeping a place where persons may meet for the purpose of illicit or illegal intercourse, it is not necessary for the state to prove actual knowledge on the part of the accused of the character of his place, or of the inmates, or of those who resorted there, but such facts and circumstances may be shown as will convince a jury beyond a reasonable doubt that the accused was bound to have cognizance, or knowledge, of the inmates of the house, or of those who resorted there. Bennett v. Commonwealth, 182 Va. 7 , 28 S.E.2d 13 (1943).

Res gestae. - In a prosecution for violating this section, raiding officers could testify as to the names given them by the occupants of the cabins at a tourist camp of which accused was night manager, such evidence being admissible as a part of the res gestae. Bennett v. Commonwealth, 182 Va. 7 , 28 S.E.2d 13 (1943).

Sufficiency of evidence. - Evidence held sufficient to support conviction for keeping a house of ill fame, that is, a bawdyhouse or brothel. Foster v. Commonwealth, 179 Va. 96 , 18 S.E.2d 314 (1942); Wilson v. Commonwealth, 132 Va. 824 , 111 S.E. 96 (1922).

Evidence sufficient to support conviction for operating a bawdyhouse. Gaskill v. Commonwealth, 206 Va. 486 , 144 S.E.2d 293 (1965).

Instruction. - In a prosecution for violating this section, there was no error in the giving of an instruction that if the jury believed that accused kept a place "where persons may meet for the purpose of illegal or illicit intercourse" they should find him guilty. Bennett v. Commonwealth, 182 Va. 7 , 28 S.E.2d 13 (1943).

Application of abstention doctrine of Younger v. Harris , 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), to action brought by corporation engaged in business of providing escort and dating services seeking order enjoining prosecution of itself or its employees under § 18.2-346 and this section. See Hanpar, Inc. v. Atkinson, 496 F. Supp. 112 (E.D. Va. 1980).

Applied in Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983).

§ 18.2-348. Aiding prostitution or illicit sexual intercourse, etc.; penalty.

It is unlawful for any person or any officer, employee, or agent of any firm, association, or corporation with knowledge of, or good reason to believe, the immoral purpose of such visit, to take or transport or assist in taking or transporting, or offer to take or transport on foot or in any way, any person to a place, whether within or outside any building or structure, used or to be used for the purpose of lewdness, assignation, or prostitution within the Commonwealth or to procure or assist in procuring for the purpose of illicit sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act violative of § 18.2-361 , or touching of the unclothed genitals or anus of another person with the intent to sexually arouse or gratify, or to give any information or direction to any person with intent to enable such person to commit an act of prostitution. A violation of this section is a Class 1 misdemeanor. However, any adult who violates this section with a person under the age of 18 is guilty of a Class 6 felony.

(Code 1950, § 18.1-197; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534; 2014, c. 794; 2019, c. 617; 2020, c. 595.)

Editor's note. - Acts 2020, c. 595, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, substituted "is unlawful" for "shall be unlawful," "the Commonwealth" for "this Commonwealth," inserted "anal intercourse, cunnilingus, fellatio, or anilingus," and made stylistic changes.

The 2019 amendments. - The 2019 amendment by c. 617 added the last two sentences; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 595 inserted "touching of the unclothed genitals or anus of another person with the intent to sexually arouse or gratify, or" in the first sentence.

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 3.

CASE NOTES

Contents of tape recording not protected from disclosure. - The contents of a tape recording of an office conversation between complainant and an attorney were not protected from disclosure in a prosecution of the attorney for procuring for the purpose of prostitution under this section, and that disclosure did not violate the attorney's right to privacy vouch-safed by the Fourth Amendment. Cogdill v. Commonwealth, 219 Va. 272 , 247 S.E.2d 392 (1978).

Evidence failed to prove van was used to aid prostitution. - See Fine v. Commonwealth, 31 Va. App. 636, 525 S.E.2d 69 (2000).

Evidence sufficient to prove vehicle was used to aid or promote prostitution. - Evidence was sufficient to prove beyond a reasonable doubt that defendant used a vehicle to promote prostitution in violation of § 18.2-349 , and the vehicle was also used to aid or promote prostitution in violation of § 18.2-348 because defendant not only committed substantial acts in furtherance of prostitution while in the vehicle by driving himself in the vehicle to the parking lot of the motel for the purpose of engaging the services of a prostitute, he used his vehicle to transport himself to a place to be used for the purpose of prostitution; the evidence proved that defendant initiated a conversation with an undercover officer concerning a "blow job," how much money he had, and whether she was a "cop," and in addition, defendant asked the officer to take a ride at the outset of the conversation and engaged in substantial acts in furtherance of completing the sexual transaction. Bakran v. Commonwealth, 57 Va. App. 197, 700 S.E.2d 471, 2010 Va. App. LEXIS 410 (2010).

Applied in Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978); Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983).

§ 18.2-348.1. Promoting travel for prostitution; penalty.

It is unlawful for any travel agent to knowingly promote travel services, as defined in § 59.1-445 , for the purposes of prostitution or any act in violation of an offense set forth in subdivision 1 of the definition of Tier III offense as defined in § 9.1-902 , made punishable within the Commonwealth, whether committed within or without. Violation of this section shall constitute a separate and distinct offense, and any person violating this section is guilty of a Class 1 misdemeanor. Punishment for a violation of this section shall be separate and apart from any punishment received from any other offense. For the purposes of this section "travel agent" means any person who for a consideration consults with or advises persons concerning travel services in the course of his business.

(2019, c. 458; 2020, c. 829.)

Editor's note. - Acts 2020, c. 829, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2020 amendments. - The 2020 amendment by c. 829, in the first sentence, substituted "subdivision 1 of the definition of Tier III offense as defined in § 9.1-902 " for "subsection E 1 of § 9.1-902 ."

§ 18.2-349. Using vehicles to promote prostitution or unlawful sexual intercourse; penalty.

It is unlawful for any owner or chauffeur of any vehicle, with knowledge or reason to believe the same is to be used for such purpose, to use the same or to allow the same to be used for the purpose of prostitution or unlawful sexual intercourse or to aid or promote such prostitution or unlawful sexual intercourse by the use of any such vehicle. A violation of this section is a Class 1 misdemeanor. However, any adult who violates this section by using a vehicle or allowing a vehicle to be used for or to aid or promote prostitution or unlawful sexual intercourse with a person under the age of 18 is guilty of a Class 6 felony.

(Code 1950, § 18.1-198; 1960, c. 358; 1975, cc. 14, 15; 2019, c. 617.)

The 2019 amendments. - The 2019 amendment by c. 617 substituted "It is" for "It shall be" and added the last two sentences; and made stylistic changes.

CASE NOTES

Construction. - As this section is penal in nature, it must be strictly construed against the state and limited in application to cases falling clearly within the language of the section. Fine v. Commonwealth, 31 Va. App. 636, 525 S.E.2d 69 (2000).

Evidence failed to prove van was used to aid prostitution. - See Fine v. Commonwealth, 31 Va. App. 636, 525 S.E.2d 69 (2000).

Evidence sufficient to support conviction. - Evidence was sufficient to prove beyond a reasonable doubt that defendant used a vehicle to promote prostitution in violation of § 18.2-349 , and the vehicle was also used to aid or promote prostitution in violation of § 18.2-348 because defendant not only committed substantial acts in furtherance of prostitution while in the vehicle by driving himself in the vehicle to the parking lot of the motel for the purpose of engaging the services of a prostitute, he used his vehicle to transport himself to a place to be used for the purpose of prostitution; the evidence proved that defendant initiated a conversation with an undercover officer concerning a "blow job," how much money he had, and whether she was a "cop," and in addition, defendant asked the officer to take a ride at the outset of the conversation and engaged in substantial acts in furtherance of completing the sexual transaction. Bakran v. Commonwealth, 57 Va. App. 197, 700 S.E.2d 471, 2010 Va. App. LEXIS 410 (2010).

Applied in Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983).

§ 18.2-350. Confinement of convicted prostitutes and persons violating §§ 18.2-347 through 18.2-349.

In any case in which a person is convicted of a violation of § 18.2-346 or of a misdemeanor violation of § 18.2-347 , 18.2-348 , or 18.2-349 and where a city or county farm or hospital is available for the confinement of persons so convicted, confinement may be in such farm or hospital, in the discretion of the court or judge.

(Code 1950, § 18.1-199; 1960, c. 358; 1975, cc. 14, 15; 2019, c. 617; 2021, Sp. Sess. I, c. 188.)

The 2019 amendments. - The 2019 amendment by c. 617 rewrote the section, which read: "Every person convicted of being a prostitute and every person convicted of violating any of the provisions of §§ 18.2-347 through 18.2-349 shall be guilty of a Class 1 misdemeanor; provided, however, that in any case in which a city or county farm or hospital is available for the confinement of persons so convicted, confinement may be in such farm or hospital, in the discretion of the court or judge."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, deleted "subsection A of" preceding " § 18.2-346 ."

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 6.

§§ 18.2-351 through 18.2-353.

Repealed by Acts 2004, c. 459.

Editor's note. - Former § 18.2-351 , pertaining to commitment of persons convicted of certain offenses; investigation and report; reduction of period, derived from Code 1950, § 18.1-200; 1960, c. 358; 1962, c. 240; 1971, Ex. Sess., c. 189; 1974, cc. 44, 45; 1975, cc. 14, 15; 1977, c. 143. Former § 18.2-352, pertaining to examination and investigation of such persons; reports to committing court, derived from Code 1950, § 18.1-201; 1960, c. 358; 1962, c. 240; 1971, Ex. Sess., c. 189; 1974, cc. 44, 45; 1975, cc. 14, 15. Former § 18.2-353, pertaining to probation or release of such persons, derived from Code 1950, § 18.1-202; 1960, c. 358; 1962, c. 240; 1974, cc. 44, 45; 1975, cc. 14, 15.

§ 18.2-354.

Reserved.

§ 18.2-355. Taking, detaining, etc., person for prostitution, etc., or consenting thereto; human trafficking.

Any person who:

  1. For purposes of prostitution or unlawful sexual intercourse, takes any person into, or persuades, encourages or causes any person to enter, a bawdy place, or takes or causes such person to be taken to any place against his or her will for such purposes; or
  2. Takes or detains a person against his or her will with the intent to compel such person, by force, threats, persuasions, menace or duress, to marry him or her or to marry any other person, or to be defiled; or
  3. Being parent, guardian, legal custodian or one standing in loco parentis of a person, consents to such person being taken or detained by any person for the purpose of prostitution or unlawful sexual intercourse; or
  4. For purposes of prostitution, takes any minor into, or persuades, encourages, or causes any minor to enter, a bawdy place, or takes or causes such person to be taken to any place for such purposes; is guilty of pandering.

    A violation of subdivision (1), (2), or (3) is punishable as a Class 4 felony. A violation of subdivision (4) is punishable as a Class 3 felony.

    (Code 1950, § 18.1-204; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534; 1997, c. 555; 2014, cc. 649, 706; 2015, c. 395.)

Cross references. - For definition of "barrier crime" as including a conviction of pandering as set out in § 18.2-355 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including pandering as set out in § 18.2-355 , or an equivalent offense in another state, see § 63.2-1726 .

The 1997 amendment substituted "legal custodian or one standing in loco parentis" for "or legal custodian" preceding "of a person" in subdivision (3).

The 2014 amendments. - The 2014 amendments by cc. 649 and 706 are identical, and in subdivision (4), inserted from "(4) For purposes" to "for such purposes" and made related changes.

The 2015 amendments. - The 2015 amendment by c. 395 substituted "A violation of subdivision (1), (2), or (3) is punishable as a Class 4 felony. A violation of subdivision (4) is punishable as a Class 3 felony" for "and shall be guilty of a Class 4 felony" in subdivision (4).

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 2; 9B M.J. Infants & Juveniles, § 89.

CASE NOTES

Sections 18.2-355 through 18.2-360 considered together. - This section and §§ 18.2-356 through 18.2-360 are designed to prohibit illicit prostitution and procurement. Over a long period of time these sections have been considered together because they are all designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of a female. It is immaterial whether the act be called pandering or pimping. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Female concerned need not be immoral. - Under the provisions of §§ 18.2-355 through 18.2-360 there is no requirement that the female concerned must be either a prostitute or willing to engage in illicit sexual relations. The statute covers a situation where the woman is immoral, as well as where she is an innocent virgin. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

Applied in Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983).

§ 18.2-356. Receiving money for procuring person; penalties.

Any person who receives any money or other valuable thing for or on account of (i) procuring for or placing in a house of prostitution or elsewhere any person for the purpose of causing such person to engage in unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act in violation of § 18.2-361 , or touching of the unclothed genitals or anus of another person with the intent to sexually arouse or gratify, or (ii) causing any person to engage in forced labor or services, concubinage, prostitution, or the manufacture of any obscene material or child pornography is guilty of a Class 4 felony. Any person who violates clause (i) or (ii) with a person under the age of 18 is guilty of a Class 3 felony.

(Code 1950, § 18.1-206; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534; 2011, c. 785; 2014, c. 794; 2015, cc. 690, 691; 2020, c. 595.)

Editor's note. - Acts 2020, c. 595, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2011 amendments. - The 2011 amendment by c. 785 substituted "receives" for "shall receive" inserted the clause (i) designation, and added clause (ii).

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, inserted "anal intercourse, cunnilingus, fellatio, or anilingus," substituted "is guilty" for "shall be guilty," and made a minor stylistic change.

The 2015 amendments. - The 2015 amendments by cc. 690 and 691 are identical and added the second sentence.

The 2020 amendments. - The 2020 amendment by c. 595 added "touching of the unclothed genitals or anus of another person with the intent to sexually arouse or gratify, or" in clause (i) of the first sentence.

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 3.

CASE NOTES

Sections 18.2-355 through 18.2-360 considered together. - Sections 18.2-355 through 18.2-360 are designed to prohibit illicit prostitution and procurement. Over a long period of time these sections have been considered together because they are all designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of a female. It is immaterial whether the act be called pandering or pimping. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

This section and § 18.2-357 accomplish same purpose. - This section prohibits pandering. It reaches the person who receives money for procuring any female to engage in unlawful sexual intercourse. But § 18.2-357 also prohibits pandering. The two sections were enacted to accomplish the same purpose, prohibit commercial prostitution. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

The conduct punished under this section and § 18.2-357 and the conduct sought to be reached by a conspiracy charge under these sections is sufficiently congruent to require the application of Wharton's Rule, which is applicable where there exists a general congruence of the agreement and the completed substantive offense and under which the conspiracy and substantive offense merge when the substantive offense is proved, at least where only the potential panderer and the potential prostitute are parties to the agreement alleged. Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983).

The only difference between this section and § 18.2-357 is that under this section the source of the money paid is immaterial and it can be received either before or after the procuring or the placing of the female. A violation does not depend upon an act of sexual intercourse having occurred. Under § 18.2-357 the money must be knowingly received from the earnings of the female, and therefore after the act of prostitution. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

A bellman in a hotel who is given $10 by a guest to procure for him a prostitute, and does so, violates this section. If he also receives from the prostitute a portion of her fee for the service she rendered the guest, he violates § 18.2-357 . Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

One who effects a criminal act through an innocent agent is a principal in the first degree. Collins v. Commonwealth, 226 Va. 223 , 307 S.E.2d 884 (1983).

A defendant may not escape criminal responsibility for a crime which he arranges to have committed by an unwitting agent. Collins v. Commonwealth, 226 Va. 223 , 307 S.E.2d 884 (1983).

It is not the prostitute that this section and § 18.2-357 seek to reach but the one who profits from an act of prostitution by another. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Permissible amendment of indictment. - This section and § 18.2-357 are so interrelated that an indictment drawn under one could be subsequently amended to charge a violation of the other section if the evidence showed such a violation. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Because of the similarity of purpose and subject matter of this section and § 18.2-357 , an amendment to an indictment which changes the provision under which a defendant is charged from § 18.2-357 to this section does not change the nature or character of the offense charged and is permissible under the provisions of § 19.2-231 . Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

An indictment following the language of this section was sufficient, and the contention that the words "to cohabit with male persons" do not imply sexual intercourse or connote sexual relations was without merit. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

Defendant was properly convicted of the attempt to commit the crime of pandering where he had placed a female in his room and solicited males to have intercourse with her, and was prevented from receiving the money only by the intervention of the police. Martin v. Commonwealth, 195 Va. 1107 , 81 S.E.2d 574 (1954).

§ 18.2-357. Receiving money from earnings of male or female prostitute; penalties.

Any person who shall knowingly receive any money or other valuable thing from the earnings of any male or female engaged in prostitution, except for a consideration deemed good and valuable in law, shall be guilty of pandering, punishable as a Class 4 felony. Any person who violates this section by receiving money or other valuable thing from a person under the age of 18 is guilty of a Class 3 felony.

(Code 1950, § 18.1-208; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534; 2015, cc. 690, 691.)

The 2015 amendments. - The 2015 amendments by cc. 690 and 691 are identical and added the second sentence.

Law review. - For survey of Virginia evidence for the year 1972-1973, see 59 Va. L. Rev. 1526 (1973).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 2.

CASE NOTES

Sections 18.2-355 through 18.2-360 considered together. - Sections 18.2-355 through 18.2-360 are designed to prohibit illicit prostitution and procurement. Over a long period of time these sections have been considered together because they are all designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of a female. It is immaterial whether the act be called pandering or pimping. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Section 18.2-356 and this section accomplish same purpose. - Section 18.2-356 prohibits pandering. It reaches the person who receives money for procuring any female to engage in unlawful sexual intercourse. But this section also prohibits pandering. The two sections were enacted to accomplish the same purpose, prohibit commercial prostitution. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

The conduct punished under this section and § 18.2-356 and the conduct sought to be reached by a conspiracy charge under these sections is sufficiently congruent to require the application of Wharton's Rule, which is applicable where there exists a general congruence of the agreement and the completed substantive offense and under which the conspiracy and substantive offense merge when the substantive offense is proved, at least where only the potential panderer and the potential prostitute are parties to the agreement alleged. Stewart v. Commonwealth, 225 Va. 473 , 303 S.E.2d 877 (1983).

The only difference between § 18.2-356 and this section is that under § 18.2-356 the source of the money paid is immaterial and it can be received either before or after the procuring or the placing of the female. A violation does not depend upon an act of sexual intercourse having occurred. Under this section the money must be knowingly received from the earnings of the female, and therefore after the act of prostitution. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

A bellman in a hotel who is given $10.00 by a guest to procure for him a prostitute, and does so, violates § 18.2-356 . If he also receives from the prostitute a portion of her fee for the service she rendered the guest, he violates this section. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

It is not the prostitute that § 18.2-356 and this section seek to reach but the one who profits from an act of prostitution by another. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Prostitute is not accomplice. - In a prosecution under this section, the testimony of the prostitute was not that of an accomplice since the prostitute herself could not have been indicted under this section for receiving money from her own earnings. Clinton v. Commonwealth, 204 Va. 275 , 130 S.E.2d 437 (1963), rev'd on other grounds, 377 U.S. 158, 84 S. Ct. 1186, 12 L. Ed. 2d 213 (1964).

Evidence that an accused received a part of the earnings of a prostitute on other occasions not too remote in time to the offense charged is admissible as tending to show a system or uniform plan from which motive, criminal intent or knowledge may be inferred. Minor v. Commonwealth, 213 Va. 278 , 191 S.E.2d 825 (1972).

Permissible amendment of indictment. - Section 18.2-356 and this section are so interrelated that an indictment drawn under one could be subsequently amended to charge a violation of the other section if the evidence showed such a violation. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Because of the similarity of purpose and subject matter of § 18.2-356 and this section, an amendment to an indictment which changes the provision under which a defendant is charged from this section to § 18.2-356 does not change the nature or character of the offense charged and is permissible under the provisions of § 19.2-231 . Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

An indictment was sufficient though it charged that money received by the accused from the earnings of a prostitute was not for a consideration deemed "good and valuable at law" instead of charging that it was not for a consideration deemed "good or valuable at law," which was the language of former § 18-97. Saunders v. Commonwealth, 186 Va. 1000 , 45 S.E.2d 307 (1947).

Exception language creates an affirmative defense. - Exception language in § 18.2-357 creates an affirmative defense that places the burden of production on a defendant to show that there was some consideration given in exchange for the earnings of the prostitute. Tart v. Commonwealth, 52 Va. App. 272, 663 S.E.2d 113, 2008 Va. App. LEXIS 318 (2008).

Jury instruction as to exception language not required. - Because the exception language in § 18.2-357 was not an element of the offense, but rather an affirmative defense, defendant was required to satisfy the defendant's burden of producing or pointing to evidence that would allow the defendant to invoke the exception. Because the defendant failed to meet that threshold burden, the trial court did not err by refusing the defendant's proposed jury instruction that placed the burden on the Commonwealth to prove that defendant did not give "consideration deemed good and valuable in law" in exchange for earnings the defendant received from a roommate's prostitution. Tart v. Commonwealth, 52 Va. App. 272, 663 S.E.2d 113, 2008 Va. App. LEXIS 318 (2008).

Sufficient evidence of pandering. - Circuit court properly convicted defendant of pandering because the evidence showed that he assisted a woman in drafting an advertisement for prostitution and sat next to her while she posted the advertisement online, that he entered her hotel room and retrieved money that she had earned from engaging in prostitution, that the police found defendant in the room where the woman told police they would find her pimp, and that the police found cash on defendant and in the room. Johnson v. Commonwealth, 69 Va. App. 639, 822 S.E.2d 385, 2019 Va. App. LEXIS 10 (2019).

§ 18.2-357.1. Commercial sex trafficking; penalties.

  1. Any person who, with the intent to receive money or other valuable thing or to assist another in receiving money or other valuable thing from the earnings of a person from prostitution or unlawful sexual intercourse in violation of § 18.2-346 , solicits, invites, recruits, encourages, or otherwise causes or attempts to cause a person to violate § 18.2-346 is guilty of a Class 5 felony.
  2. Any person who violates subsection A through the use of force, intimidation, or deception is guilty of a Class 4 felony.
  3. Any adult who violates subsection A with a person under 18 years of age is guilty of a Class 3 felony.
  4. Each violation of this section constitutes a separate and distinct felony.

    (2015, cc. 690, 691; 2019, c. 617; 2021, Sp. Sess. I, c. 188.)

The 2019 amendments. - The 2019 amendment by c. 617 added subsection D; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, deleted "subsection A of" preceding " § 18.2-346 " twice in subsection A.

CASE NOTES

Conspiracy. - Sufficient evidence supported defendant's conviction for conspiracy to commit sex trafficking because the evidence showed defendant agreed with others to encourage a victim to commit prostitution, from which defendant benefitted monetarily. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Admissibility of character evidence. - Limiting defendant's cross-examination of a victim about the victim's prior drug dealing and prostitution did not violate defendant's confrontation right because (1) the evidence defendant sought to elicit was minimally relevant, (2) a danger of jury confusion and unfair prejudice was high, (3) the jury already knew the victim was a drug addict, and (4) whether the victim had previously engaged in prostitution was irrelevant to whether defendant intimidated the victim to engage in charged commercial sex acts. Lambert v. Commonwealth, 70 Va. App. 740, 833 S.E.2d 468, 2019 Va. App. LEXIS 227 (2019).

Relevance of gang membership evidence. - Defendant's gang membership was relevant because (1) the evidence was relevant to whether defendant intimidated a victim to engage in sex acts, which was an element of sex trafficking, and (2) a cautionary instruction was given. Lambert v. Commonwealth, 70 Va. App. 740, 833 S.E.2d 468, 2019 Va. App. LEXIS 227 (2019).

Sufficient evidence. - Sufficient evidence showed defendant committed sex trafficking because defendant forced a victim to commit prostitution, which paid for defendant's hotel room. Carr v. Commonwealth, 69 Va. App. 106, 816 S.E.2d 591, 2018 Va. App. LEXIS 199 (2018).

Circuit court properly convicted defendant of sex trafficking to receive money because he drove a woman to Virginia from North Carolina, assisted her in drafting an advertisement for prostitution, entered her hotel room and retrieved money that she had earned from prostitution, the police found him in the room where the woman said they would find her pimp, the police found cash on defendant and in the room, threats of violence or actual use of violence were not necessary for a conviction, and the fact that the woman was engaged in prostitution before she met defendant and continued to do so after he was incarcerated did not change the fact that he solicited, invited, recruited, encouraged, or otherwise caused her to engage in prostitution. Johnson v. Commonwealth, 69 Va. App. 639, 822 S.E.2d 385, 2019 Va. App. LEXIS 10 (2019).

Sufficient evidence supported defendant's drug and sex trafficking convictions because the victim's testimony was credible, as defendant's confession to jumping out a third-story window to avoid apprehension corroborated the testimony. Lambert v. Commonwealth, 70 Va. App. 740, 833 S.E.2d 468, 2019 Va. App. LEXIS 227 (2019).

§ 18.2-358.

Repealed by Acts 2004, c. 459.

Editor's note. - Former § 18.2-358 , pertaining to detaining male or female in bawdy place against his or her will, derived from Code 1950, § 18.1-209; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534.

§ 18.2-359. Venue for criminal sexual assault or where any person transported for criminal sexual assault, attempted criminal sexual assault, or purposes of unlawful sexual intercourse, crimes against nature, and indecent liberties with children; venue for such crimes when coupled with a violent felony.

  1. Any person transporting or attempting to transport through or across the Commonwealth any person for the purposes of unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or prostitution, or for the purpose of committing any crime specified in § 18.2-361 , 18.2-370 , or 18.2-370.1 , or for the purposes of committing or attempting to commit criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4, may be presented, indicted, tried, and convicted in any county or city in which any part of such transportation occurred.
  2. Venue for the trial of any person charged with committing or attempting to commit any crime specified in § 18.2-361 , 18.2-370 , or 18.2-370.1 , or sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 may be had in the county or city in which such crime is alleged to have occurred or, with the concurrence of the attorney for the Commonwealth in the county or city in which the crime is alleged to have occurred, in any county or city through which the victim was transported by the defendant prior to the commission of such offense.
  3. Venue for the trial of any person charged with committing or attempting to commit criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 against a person under 18 years of age may be had in the county or city in which such crime is alleged to have occurred or, when the county or city where the offense is alleged to have occurred cannot be determined, then in the county or city where the person under 18 years of age resided at the time of the offense.
  4. Venue for the trial of any person charged with committing or attempting to commit (i) any crime specified in § 18.2-361 , 18.2-370 , or 18.2-370.1 , or criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 and (ii) any violent felony as defined in § 17.1-805 or any act of violence as defined in § 19.2-297.1 arising out of the same incident, occurrence, or transaction may be had in the county or city in which any such crime is alleged to have occurred or, with the concurrence of the attorney for the Commonwealth in the county or city in which the crime is alleged to have occurred, in any county or city through which the victim was transported by the defendant in the commission of such offense. (Code 1950, § 18.1-210; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 54; 1978, c. 610; 1981, c. 397; 2004, c. 869; 2011, c. 763; 2014, c. 794; 2015, c. 555.)

The 2004 amendments. - The 2004 amendment by c. 869 inserted "or for the purposes of committing or attempting to commit criminal sexual assault under Article 7 ( § 18.2-61 et seq.) of Chapter 4 of this title" in subsection A; and added subsection C.

The 2011 amendments. - The 2011 amendment by c. 763, in subsection B, substituted "any crime specified in § 18.2-361 or 18.2-370 or" for "criminal" following "attempting to commit" and inserted "with the concurrence of the attorney for the Commonwealth in the county or city in which the crime is alleged to have occurred" preceding "in any county"; added subsection D; and made minor stylistic changes.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, in subsection A, substituted "the Commonwealth" for "this Commonwealth," inserted "anal intercourse, cunnilingus, fellatio, or anilingus," and made a minor stylistic change.

The 2015 amendments. - The 2015 amendment by c. 555 substituted "18.2-370, or 18.2-370.1 " for "or 18.2-370 " in subsections A, B and D.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

CASE NOTES

Sections 18.2-355 through 18.2-360 considered together. - Sections 18.2-355 through 18.2-360 are designed to prohibit illicit prostitution and procurement. Over a long period of time these sections have been considered together because they are all designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of a female. It is immaterial whether the act be called pandering or pimping. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

Prosecution did not violate the double jeopardy clause of the United States Constitution by indicting defendant on rape charge in Portsmouth, in addition to the murder charge tried in Norfolk for no evidence was presented that the rape occurred in Norfolk or that the victim was transported to Norfolk by the defendant prior to the commission of such offense, and the Norfolk court did not have jurisdiction to try appellant for rape. Vanegas v. Commonwealth, 17 Va. App. 451, 438 S.E.2d 289 (1993).

§ 18.2-360. Competency of persons to testify in prosecutions under §§ 18.2-355 through 18.2-361.

Any male or female referred to in §§ 18.2-355 through 18.2-361 shall be a competent witness in any prosecution under such sections to testify to any and all matters, including conversations by or with the accused with third persons in his or her presence, notwithstanding he or she may have married the accused either before or after the violation of any of the provisions of this section; but such witness shall not be compelled to testify after such marriage.

(Code 1950, § 18.1-211; 1960, c. 358; 1975, cc. 14, 15; 1980, c. 534.)

Michie's Jurisprudence. - For related discussion, see 6A M.J. Disorderly Houses and Houses of Ill Fame, § 2.

CASE NOTES

Sections 18.2-355 through 18.2-360 considered together. - Sections 18.2-355 through 18.2-359 and this section are designed to prohibit illicit prostitution and procurement. Over a long period of time these sections have been considered together because they are all designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of a female. It is immaterial whether the act be called pandering or pimping. Edwards v. Commonwealth, 218 Va. 994 , 243 S.E.2d 834 (1978).

§ 18.2-361. Crimes against nature; penalty.

  1. If any person carnally knows in any manner any brute animal or voluntarily submits to such carnal knowledge, he is guilty of a Class 6 felony.
  2. Any person who performs or causes to be performed cunnilingus, fellatio, anilingus, or anal intercourse upon or by his daughter or granddaughter, son or grandson, brother or sister, or father or mother is guilty of a Class 5 felony. However, if a parent or grandparent commits any such act with his child or grandchild and such child or grandchild is at least 13 but less than 18 years of age at the time of the offense, such parent or grandparent is guilty of a Class 3 felony.
  3. For the purposes of this section, parent includes step-parent, grandparent includes step-grandparent, child includes step-child, and grandchild includes step-grandchild.

    (Code 1950, § 18.1-212; 1960, c. 358; 1968, c. 427; 1975, cc. 14, 15; 1977, c. 285; 1981, c. 397; 1993, c. 450; 2005, c. 185; 2014, c. 794.)

Cross references. - As to forcible sodomy, see § 18.2-67.1 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

For definition of "barrier crime" as including a conviction of crimes against nature involving children as set out in § 18.2-361 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including crimes against nature involving children as set out § 18.2-361 , or an equivalent offense in another state, see § 63.2-1726 .

The 2005 amendments. - The 2005 amendment by c. 185 substituted "performs or causes to be performed cunnilingus, fellatio, anilingus or anal intercourse upon or by" for "carnally knows by the anus or by or with the mouth" in subsection B, added subsection C, and made minor stylistic changes.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, deleted "or carnally knows any male or female person by the anus or by or with the mouth" following "brute animal" in subsection A, "except as provided in subsection B" at the end, substituted "is guilty" for "or she shall be guilty," and made minor stylistic changes.

Law review. - For note, "Sodomy and the Married Man," see 3 U. Rich. L. Rev. 344 (1969). For survey of constitutional law in Virginia for the year 1975-1976, see 62 Va. L. Rev. 1389 (1976). For article reviewing United States Supreme Court privacy decisions and focusing on John Doe v. Commonwealth's Att'y, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976), see 12 U. Rich. L. Rev. 627 (1978). For article discussing the legislative history of sexual assault law reform in Virginia, see 68 Va. L. Rev. 459 (1982). For note on constitutionality of Virginia's sodomy statute, see 26 Wm. & Mary L. Rev. 645 (1985). For note, "Homosexuality and the Custodial Parent in Virginia - The Effects of Roe v. Roe," see 8 G.M.U. U.L. Rev. 389 (1986). For note on state's authority to proscribe certain sexual activities, see 9 G.M.U. L. Rev. 185 (1986).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For 2007 annual survey article, "Family and Juvenile Law," see 42 U. Rich. L. Rev. 417 (2007).

For article, "The Equal Protection Implications of Government's Hateful Speech," see 54 Wm. & Mary L. Rev. 159 (2012).

For article, "Dying Criminal Laws: Sodomy and Adultery From the Bible to Demise," see 7 Va. J. Crim. L. 48 (2019).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, §§ 77, 78, 128, 142; 6A M.J. Disorderly Houses and Houses of Ill Fame, § 3; 9B M.J. Infants & Juveniles, § 89; 16 M.J. Sodomy, §§ 1, 2.

CASE NOTES

Constitutionality. - Although this section may have a basis in religious values, it is not contrary to the establishment clause of the state or federal constitution in that its primary effect is not to advance or inhibit religion and it does not foster excessive governmental entanglement with religion but rests plainly on long established secular values concerning sexual conduct. DePriest v. Commonwealth, 33 Va. App. 754, 537 S.E.2d 1, 2000 Va. App. LEXIS 752 (2000).

Court rejected defendant's claim that § 18.2-361 violated the Equal Protection Clause of the Fourteenth Amendment because § 18.2-361 , on its face, did not draw distinctions between homosexual and heterosexual individuals. Section 18.2-361 applies equally to all citizens, regardless of sexual orientation, and all persons, male or female, whether heterosexual or homosexual, who solicit another to commit an act of sodomy are guilty of a class 6 felony. Tjan v. Commonwealth, 46 Va. App. 698, 621 S.E.2d 669, 2005 Va. App. LEXIS 447 (2005).

Defendant's convictions for four counts of sodomy were affirmed because subsection A of § 18.2-361 was constitutional as applied to defendant as his violations involved 16 and 17 year-old minors and therefore merited no protection under the Due Process Clause of the Fourteenth Amendment. McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754, 2006 Va. App. LEXIS 259 (2006), aff'd, 645 S.E.2d 918, 2007 Va. LEXIS 87 (Va. 2007).

Nothing in the United States Supreme Court opinion in Lawrence or the Supreme Court of Virginia's opinion in Martin facially invalidates subsection A of § 18.2-361 . McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754, 2006 Va. App. LEXIS 259 (2006), aff'd, 645 S.E.2d 918, 2007 Va. LEXIS 87 (Va. 2007).

As defendant's victims, 16 and 17, were "minors" as defined by § 1-207 , his as-applied constitutional challenge to the sodomy statute, § 18.2-361 , failed because nothing in Lawrence v. Texas, 539 U.S. 558 (2003), or Martin v. Ziherl, 607 S.E.2d 367 (2005), prohibited the application of the sodomy statute to conduct between adults and minors. McDonald v. Commonwealth, 274 Va. 249 , 645 S.E.2d 918, 2007 Va. LEXIS 87 (2007).

Anti-sodomy provision of § 18.2-361 facially violates the Due Process Clause of the Fourteenth Amendment. MacDonald v. Moose, 710 F.3d 154, 2013 U.S. App. LEXIS 4921 (4th Cir. 2013), cert. denied, 134 S. Ct. 200, 2013 U.S. LEXIS 5525, 187 L. Ed. 2d 45 (U.S. 2013).

Trial court had subject matter jurisdiction to impose sentence on defendant's conviction for consensual sodomy with juveniles after defendant breached the terms of his suspended sentence because the sodomy statute was constitutional, particularly in the context of conduct between adults and minors. Saunders v. Commonwealth, 62 Va. App. 793, 753 S.E.2d 602, 2014 Va. App. LEXIS 23 (2014).

Applying ordinary principles that govern facial and as applied challenges led to the conclusion that § 18.2-361 was not facially invalid. Defendant did not raise an as applied challenge and, therefore, his conviction for violating § 18.2-361 could properly be considered by the trial court in revoking his suspended sentences. McClary v. Commonwealth,, 2014 Va. App. LEXIS 152 (Apr. 29, 2014).

It was proper to apply the "normal rule" by prohibiting those applications of this rule that were unconstitutional and leaving the constitutional applications of this rule to be enforced. Toghill v. Commonwealth, 289 Va. 220 , 768 S.E.2d 674, 2015 Va. LEXIS 18 (2015).

Because defendant solicited sodomy with a person whom he thought was a minor, defendant did not have standing to assert a facial challenge to the anti-sodomy provisions of this section, because enforcement of the sodomy prohibition law was constitutional as applied to him. Toghill v. Commonwealth, 289 Va. 220 , 768 S.E.2d 674, 2015 Va. LEXIS 18 (2015).

District court properly denied petitioner's habeas petition challenging his Virginia conviction for computer solicitation of acts of sodomy from minor under age of 15 because Virginia's anti-sodomy statute, as authoritatively construed by Supreme Court of Virginia, did not criminalize conduct that United States Supreme Court in Lawrence v. Texas declared to be protected by liberty interests guaranteed by Due Process Clause, and it was, therefore, not facially unconstitutional, and Supreme Court of Virginia's decision to adopt that narrowing construction in petitioner's case was not contrary to or unreasonable application of applicable United States Supreme Court precedent. Toghill v. Clarke, 877 F.3d 547, 2017 U.S. App. LEXIS 25369 (4th Cir. 2017), cert. denied, 139 S. Ct. 223, 2018 U.S. LEXIS 4914, 202 L. Ed. 2d 152 (2018).

Circuit court properly convicted defendant of soliciting another person "to carnally know a brute animal or to submit to carnal knowledge with a brute animal" because the Virginia Supreme Court's conclusion that the pre-2014 version of the statute at issue was not facially unconstitutional was dispositive of defendant's facial challenge to the current version of the statute, and the statute was not unconstitutional as applied to defendant where bestiality was a crime at common law, it had been criminalized in Virginia by statute, in one form or another, since at least 1792, and defendant did not identify any court that had concluded bestiality was a fundamental liberty interest protected by the due process clause. Warren v. Commonwealth, 69 Va. App. 659, 822 S.E.2d 395, 2019 Va. App. LEXIS 16 (2019).

Section is not unconstitutional on its face. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

It cannot be said that this section offends the Bill of Rights or any other of the amendments to the federal Constitution, and the wisdom or policy is a matter for the state's resolve. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

Defendant's conviction was proper in a case where he solicited an act of oral sodomy from an undercover police officer in a public place, a men's restroom at a local department store; that statute did not violate defendant's substantive due process rights and was not unconstitutional on its face, as it did not violate the protection in Lawrence given to private consensual sodomy, but did outlaw defendant's conduct, which involved a request for an act of sodomy in a public place. Singson v. Commonwealth, 46 Va. App. 724, 621 S.E.2d 682, 2005 Va. App. LEXIS 452 (2005).

Prosecution under statute with more severe penalty held not denial of equal protection. - Prosecution under § 18.2-29 and this section for a crime committed on federal land does not violate the Fourteenth Amendment right of equal protection even though similar conduct is proscribed by federal law and is punishable by lesser penalties. Fletcher v. Commonwealth, No. 0405-85 (Ct. of Appeals Oct. 10, 1986).

Lacked standing to assert that statute was unconstitutional. - Adult defendant who unsuccessfully solicited oral sex from a 17-year-old girl lacked standing to assert that § 18.2-361 was facially unconstitutional in violation of the Due Process Clause, as the statute was not unconstitutional as it applied to him. MacDonald v. Commonwealth,, 2007 Va. App. LEXIS 7 (Jan. 9, 2007).

Married couples remain protected in their expectation of privacy within their own bedroom though they converse with friends or write books about their sexual relations, recounting in explicit detail their own intimacies and techniques. Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976) (decided under former § 18.1-212).

But once married couple admits strangers as onlookers to sexual acts, federal protection of privacy dissolves. Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976) (decided under former § 18.1-212).

If the couple performs sexual acts for the excitation or gratification of welcome onlookers, they cannot selectively claim that the state is an intruder. Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976) (decided under former § 18.1-212).

Married couples possess the freedom to follow their own inclinations in privacy, but once they accept onlookers, whether they are close friends, chance acquaintances, observed "Peeping Toms" or paying customers, they may not exclude the state as a constitutionally forbidden intruder. Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976) (decided under former § 18.1-212).

The presence of an onlooker in the married couple's bedroom dissolved the reasonable expectation of privacy shared by the married couple when alone. Lovisi v. Slayton, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976) (decided under former § 18.1-212).

Section poses threat to right of privacy of consenting adults. - While the condition of marriage would doubtless make more difficult an attempt by government to justify an intrusion upon sexual behavior, this condition is not a prerequisite to the operation of the right of privacy. Accordingly, this section poses a threat to the right of privacy possessed by consenting adults. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

And invades marriage bed. - This section regulates no less than the actual form of sexual expression between husband and wife. It invades the marital bed, informing the couple of the conduct in which they may or may not engage. As it applies to a married couple, this law doubtless threatens an invasion of the right of privacy. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

Those preserving privacy may attack this section. - There is no obstacle to prevent those who have preserved the privacy surrounding their acts from asserting their constitutional rights to attack this section. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

In order for sexual relations to be constitutionally protected, the participants have the responsibility of ensuring that the seclusion surrounding their acts was preserved. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

But those voluntarily relinquishing it may not. - The right to privacy inherent in the federal Constitution may well extend to heterosexual relations involving oral-genital contact between consenting adults, but persons who voluntarily relinquish the privacy that would normally surround their acts are not themselves protected by such a right. They can, therefore, be prosecuted for the acts in which they engaged. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

No privacy defense for solicitation in public parks. - The defendants' acts and their proposed conduct were clothed with no circumstance giving rise to a supportable claim of privacy where the defendants where charged with soliciting strangers in public parks to commit oral sodomy in the parks. DePriest v. Commonwealth, 33 Va. App. 754, 537 S.E.2d 1, 2000 Va. App. LEXIS 752 (2000).

Defendants failed to establish that this section is unconstitutional in so many of its applications that it could not have been intended by the legislature to be left standing to cover persons who have not preserved their privacy. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

Although this section was designed to cover all acts of sodomy, public and private, the federal district court could not say that a prohibition against the application of this section to private acts prevents it from applying in the vast majority of its intended applications. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

Even if this section could not constitutionally be applied to private sexual relations between consenting adults, the federal district court found that where the relations were not private, the defendants had no right which they can assert, and their conduct was not constitutionally protected. Lovisi v. Slayton, 363 F. Supp. 620 (E.D. Va. 1973), aff'd, 539 F.2d 349 (4th Cir.), cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 585 (1976).

There is no authoritative judicial bar to the proscription of homosexuality, since it is obviously no portion of marriage, home or family life. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

If a state determines that punishment for homosexual acts, even when committed in the home, is appropriate in the promotion of morality and decency, it is not for the federal courts to say that a state is not free to do so. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

Section reflects state's legitimate interest. - The longevity of this section testifies to the state's interest and its legitimacy. It is not an upstart notion; it has ancestry going back to Judaic and Christian law. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

The sodomy statute, so long in force in Virginia, has a rational basis of state interest, demonstrably legitimate and mirrored in cited decisional law of the Supreme Court. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

Effect of homosexuality on moral delinquency. - To sustain this section, the state is not required to show that moral delinquency actually results from homosexuality. It is enough for upholding the legislation to establish that the conduct is likely to end in a contribution to moral delinquency. Doe v. Commonwealth's Att'y ex rel. City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751, reh'g denied, 425 U.S. 985, 96 S. Ct. 2192, 48 L. Ed. 2d 810 (1976).

Double jeopardy violation in convictions for sodomy and carnal knowledge. - Convictions of both forcible sodomy and carnal knowledge violate the federal and state constitutional protections against double jeopardy. Every instance of cunnilingus, fellatio, anallingus, or anal intercourse in violation of § 18.2-67.1 A also constitutes a violation of this section. Moreover, there is no indication that the legislature intended that two punishments be imposed for the same act. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

Offense not lesser included offense of sexual penetration by object. - Because every instance of object penetration does not constitute carnal knowledge under § 18.2-361 A, an offense under that statute is not a lesser-included offense of § 18.2-67.2 . Smith v. Commonwealth, No. 1546-97-4 (Ct. of Appeals Dec. 1, 1998).

Criminality of lesbianism factor in custody determination. - A lesbian mother is not per se an unfit parent. However, conduct inherent in lesbianism is punishable as a Class 6 felony in the Commonwealth, pursuant to this section; thus, that conduct is another important consideration in determining custody. Bottoms v. Bottoms, 249 Va. 410 , 457 S.E.2d 102 (1995).

Sodomy "with the mouth" is another term for cunnilingus. Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

Whereas sodomy "by the mouth" indicates fellatio. Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

Cunnilingus, fellatio, anallingus, and anal intercourse are acts of carnal knowledge of any male or female person by the anus or by or with the mouth. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

Penetration is necessary. - To constitute the offense of buggery or other "carnal copulation" there must be a penetration (res in re), as in rape. Wise v. Commonwealth, 135 Va. 757 , 115 S.E. 508 (1923).

Penetration is an essential element of the crime of sodomy so a conviction of sodomy should be reversed because there was no evidence that defendant's penis penetrated a child's mouth. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1968).

The Commonwealth must demonstrate that penetration occurred. Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

To sustain a sodomy conviction, evidence of penetration is required. The evidence of penetration, however, may be circumstantial. Chrisman v. Commonwealth, 3 Va. App. 371, 349 S.E.2d 899 (1986).

And must be proved. - Evidence of penetration is necessary to establish sodomy, and while this may be and generally can only be shown by circumstantial evidence, such evidence must be convincing to a moral certainty and sufficient to exclude every reasonable doubt. Proof that accused had his head upon the stomach of another with the penis in his hand is insufficient. It was therefore error to charge under such circumstances that if the jury believe beyond a reasonable doubt that the accused actually indulged in such carnal copulation by taking the penis in the mouth, it is their duty to find him guilty. Hudson v. Commonwealth, 141 Va. 525 , 127 S.E. 89 (1925).

To sustain a conviction for sodomy, the Commonwealth must prove beyond a reasonable doubt that penetration occurred. However, penetration may be proved by circumstantial evidence, and that evidence need only be slight. Lawson v. Commonwealth, 13 Va. App. 109, 409 S.E.2d 466 (1991).

But emission is not necessary. - The penetration of a beast by a man, against the order of nature, without emission, constitutes buggery. Commonwealth v. Thomas, 3 Va. (1 Va. Cas.) 307 (1812).

Penetration need only be slight. - In a prosecution for carnally knowing a victim with the mouth, the penetration that must be shown need be only slight. Ryan v. Commonwealth, 219 Va. 439 , 247 S.E.2d 698 (1978).

Penetration issue for jury. - In a prosecution for carnally knowing a victim with the mouth, the issue of penetration is a question for the jury upon the evidence in the case. Ryan v. Commonwealth, 219 Va. 439 , 247 S.E.2d 698 (1978).

And may be proved by circumstantial evidence. - As in rape, penetration in sodomy can be proved by circumstantial evidence. Ryan v. Commonwealth, 219 Va. 439 , 247 S.E.2d 698 (1978).

Thus, evidence of the condition, position and proximity of the parties may afford sufficient evidence of penetration to support a charge of sodomy by cunnilingus. Ryan v. Commonwealth, 219 Va. 439 , 247 S.E.2d 698 (1978).

Penetration inferred from victim's account. - In a prosecution for carnally knowing a victim with the mouth, it could reasonably be inferred that penetration had occurred from the victim's account of the defendant's protracted assault upon her, extending over a period of at least 45 minutes. Ryan v. Commonwealth, 219 Va. 439 , 247 S.E.2d 698 (1978).

Where victim specifically stated that penetration did not occur, there is reasonable doubt on an element essential to support defendant's conviction of sodomy. In this case, to permit the jury to draw an inference which would contradict the direct evidence given by the person whose testimony created the circumstantial evidence was error. Chrisman v. Commonwealth, 3 Va. App. 371, 349 S.E.2d 899 (1986).

Proof that accused knew victim did not consent not required. - The language of subsection A of this section requires proof only that the accused intended to "carnally know" the victim by mouth; the statute does not require proof that the accused knew the victim did not consent. Paris v. Commonwealth, 35 Va. App. 377, 545 S.E.2d 557, 2001 Va. App. LEXIS 241 (2001).

Forcing act of sodomy on wife. - See Towler v. Peyton, 303 F. Supp. 581 (W.D. Va. 1969).

When enhanced punishment available. - The offense proscribed by the "provided" clause is precisely the same offense that is proscribed by the main portion of the statute that precedes the word "provided." The legislature has provided for an enhanced punishment when the characteristics specified in the proviso are applicable to the persons prosecuted for violating the offense defined in the main portion of the statute. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

The misdemeanor of indecent exposure is not included within the offense of sodomy because the elements of indecent exposure are not included within the elements of sodomy. Similarly, the elements of indecent exposure with lascivious intent are not included within the offense of sodomy, nor are the elements of sodomy included within the offense of indecent exposure with lascivious intent. So even if a prior conviction of indecent exposure with lascivious intent was based on the same evidence as a later prosecution for sodomy, § 19.2-294 is not applicable. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1968).

Uncorroborated confession insufficient. - Defendant's conviction could not be sustained where the corpus delicti was proven only by his extrajudicial confession. Phillips v. Commonwealth, 202 Va. 207 , 116 S.E.2d 282 (1960).

The separate confessions of co-defendants are each admissible only against the defendant who made the confession. Phillips v. Commonwealth, 202 Va. 207 , 116 S.E.2d 282 (1960).

Evidence was clearly sufficient to support jury's verdict against defendant. Lewis v. Commonwealth, 209 Va. 602 , 166 S.E.2d 248 (1969).

Evidence was sufficient to convict defendant of non-forcible sodomy in violation of subsection A of § 18.2-361 because the victim testified that she engaged in oral sex with defendant at his request on the date in question. Mervin-Frazier v. Commonwealth,, 2010 Va. App. LEXIS 134 (Apr. 6, 2010).

Defendant's nonjury trial conviction was supported by positive evidence of the victim that the two men engaged in crimes against nature in a deserted area, and by a doctor's stipulated testimony that upon examination of the victim on the day of the incident he found the victim's rectum irritated, with a red abrasion, but without a tear or bruises. Hahn v. Commonwealth, No. 1303-89-1 (Ct. of Appeals Sept. 11, 1990).

Conviction of boy set aside. - When defendant, charged with buggery, was under twelve years of age, and no complaint was made for two years, his conviction was set aside. Williams v. Commonwealth, 2 Va. Dec. 201, 22 S.E. 859 (1895).

Failure to record preliminary hearing where credibility of prosecutrix at issue. - In a prosecution under this section, defense counsel's failure to record the preliminary hearing constitutes a serious error of judgment in a case where the credibility of the prosecutrix is at issue. Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

Child's best interests are not promoted by award of custody to parent who carries on active homosexual relationship in the same residence as the child. An award of custody to such a parent constitutes an abuse of judicial discretion. Roe v. Roe, 228 Va. 722 , 324 S.E.2d 691 (1985).

Failure to voir dire jury constitutes serious tactical error. - In determining whether the jury was indeed impartial in a prosecution under this section, counsel should have examined them to determine whether they or their families had ever been victims of a sex crime and whether they had young daughters. Failure to seize upon this opportunity constitutes a serious tactical error and poor judgment. Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

Jury instructions in forcible sodomy case. - See Lankford v. Foster, 546 F. Supp. 241 (W.D. Va. 1982), aff'd, 716 F.2d 896 (4th Cir. 1983), cert. denied, 467 U.S. 1214, 104 S. Ct. 2655, 81 L. Ed. 2d 362 (1984).

Jury instruction gave undue prominence to duration of act. - A jury instruction which commented on a piece of circumstantial evidence tending to establish a key element of the offense charged gave undue prominence to the duration of the alleged sexual act which was but one of many pieces of circumstantial evidence the jury could have considered in reaching a verdict. Thus, there existed a danger that the jury would be misled because the instruction permitted the jury to base its decision on an inference or presumption that duration alone was sufficient to prove penetration. Simmons v. Commonwealth, No. 0460-94-3 (Ct. of Appeals Aug. 29, 1995).

Sentences for solicitation to commit oral sodomy. - Neither the five-year maximum sentence for solicitation to commit oral sodomy nor the actual sentences imposed on defendants convicted of such offense constituted a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience and to constitute cruel and unusual punishment. DePriest v. Commonwealth, 33 Va. App. 754, 537 S.E.2d 1, 2000 Va. App. LEXIS 752 (2000).

Defendant preserved the double jeopardy argument for appeal where defense counsel stated in a discussion with the judge that the indictments of sodomy and carnal knowledge should have been struck; although the argument was not precisely framed as an objection, this colloquy sufficed to present the issue to the trial judge. Moreover, the trial judge's response was a clear acknowledgment that he understood the issue. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

Sufficiency of evidence. - General Assembly intended by its use of the phrase "carnally knows in any manner any brute animal," to include any sexual bodily connection between humans and animals because subsection A of § 18.2-361 is the only code section to prohibit carnal knowledge "in any manner," and uses that term specifically as it relates to prohibited sexual conduct with "any brute animal." Ward v. Commonwealth,, 2011 Va. App. LEXIS 81 (Mar. 8, 2011).

Contention barred from appellate review. - Contention by appellant, who was convicted of pandering, regarding the erroneous use of the term "sexual acts" instead of "unlawful sexual intercourse" or one of the acts specified in this section, was barred from appellate review because it was never raised in the trial court. Haitham Shurbaji v. Commonwealth, No. 1822-92-4 (Ct. of Appeals Mar. 29, 1994).

Where defendant failed to preserve a constitutional claim that the state was precluded from enforcing § 18.2-361 because it criminalized consensual sexual acts, the appellate court held that the case did not raise either a good cause or ends of justice basis to forego the primary preservation requirements of Va. Sup. Ct. R. 5A:18. Askew v. Commonwealth, No. 0235-03-1, 2004 Va. App. LEXIS 72 (Ct. of Appeals Feb. 10, 2004).

Writ of actual innocence denied. - Defendant in a petition for a writ of actual innocence pursuant to §§ 19.2-327.10 and 19.2-327.11 did not ask the appellate court to consider any newly discovered evidence that was not available at the time of defendant's trial, but only advanced an argument that the legal holdings of Lawrence and Toghill should be applied to the facts of his case; accordingly, summary dismissal of defendant's petition was appropriate because review was allowed solely of previously unknown or unavailable non-biological evidence. Waller v. Commonwealth, 70 Va. App. 772, 833 S.E.2d 484, 2019 Va. App. LEXIS 230 (2019).

Applied in Pedersen v. City of Richmond, 219 Va. 1061 , 254 S.E.2d 95 (1979); Howard v. Commonwealth, 221 Va. 904 , 275 S.E.2d 602 (1981); Nemetz v. Immigration & Naturalization Serv., 647 F.2d 432 (4th Cir. 1981); Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27, 2004 Va. App. LEXIS 168 (2004).

§ 18.2-361.1. Victims of sex trafficking; affirmative defense.

  1. For the purposes of this section: "Qualifying offense" means a charge for a violation of § 18.2-346 or 18.2-347 . "Victim of sex trafficking" means any person charged with a qualifying offense in the Commonwealth who committed such offense as a direct result of being solicited, invited, recruited, encouraged, forced, intimidated, or deceived by another to engage in acts of prostitution or unlawful sexual intercourse for money or its equivalent, as described in § 18.2-346 , regardless of whether any other person has been charged or convicted of an offense related to the sex trafficking of such person.
  2. It is an affirmative defense to prosecution of a qualifying offense if at the time of the offense leading to such charge, such person was a victim of sex trafficking and (i) was coerced to engage in the offense through the use of force or intimidation or (ii) such offense was committed at the direction of another person other than the individual with whom the person engaged in the acts of prostitution or unlawful sexual intercourse for such money or its equivalent.

    (2021, Sp. Sess. I, c. 334.)

Editor's note. - At the direction of the Virginia Code Commission, "subsection A of" was deleted in reference to § 18.2-346 to conform to amendments to § 18.2-346 by Acts 2021, Sp. Sess. I, c. 188.

Effective date. - This section is effective July 1, 2021.

Article 4. Family Offenses; Crimes Against Children, etc.

§ 18.2-362. Person marrying when spouse is living; penalty; venue.

If any married person, during the life of such person's spouse, marries another person in the Commonwealth, or, if the marriage with such other person takes place outside of the Commonwealth and the persons cohabitate in the Commonwealth, he is guilty of a Class 4 felony. Venue for a violation of this section may be in the county or city where the subsequent marriage occurred or where the parties to the subsequent marriage cohabited.

(Code 1950, § 20-41 ; 1975, cc. 14, 15; 2003, c. 99; 2020, c. 900.)

Editor's note. - Acts 2020, c. 900, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendment by c. 99 added the last sentence.

The 2020 amendments. - The 2020 amendment by c. 900 rewrote the first sentence, which read: "If any person, being married, shall, during the life of the husband or wife, marry another person in this Commonwealth, or if the marriage with such other person take place out of the Commonwealth, shall thereafter cohabit with such other person in this Commonwealth, he or she shall be guilty of a Class 4 felony."

Law review. - For note, "Estop in the Name of Love: A Case for Constructive Marriage in Virginia," see 49 Wm. & Mary L. Rev. 973 (2007).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 28 Domestic Actions. § 28.02 Marriage. Friend.

Virginia Forms (Matthew Bender). No. 5-116 Complaint for Annulment.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, § 8; 2C M.J. Autrefois, Acquit and Convict, § 7; 3A M.J. Bigamy, §§ 2-5, 9.

CASE NOTES

Section compared with § 20-38.1 . - While the felony (this section) applies only to a person who, while already married, marries again, the misdemeanor ( § 20-38.1 ) is broader in scope and applies to any person, whether married or not, who enters into a marriage before the dissolution of an earlier marriage of one of the parties. Stuart v. Commonwealth, 11 Va. App. 216, 397 S.E.2d 533 (1990).

Commonwealth could choose to charge defendant with felony rather than misdemeanor. - Attorney for the Commonwealth could choose to charge the defendant with a felony (this section) instead of a misdemeanor ( § 20-38.1 ); the mere fact that the defendant may also have committed a lesser offense does not preclude the Commonwealth from charging a greater offense arising out of the same act or transaction. Stuart v. Commonwealth, 11 Va. App. 216, 397 S.E.2d 533 (1990).

Marriage while still married to another is void ab initio. - Where parties took part in a marriage ceremony in South Carolina and at the time of the ceremony, husband had not secured a final decree of divorce from his first wife, which he subsequently obtained, the parties' marriage in South Carolina was void ab initio, not merely voidable. Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908 (1986).

Elements of offense of bigamy. - In order for a second marriage to constitute the crime of bigamy it is, of course, essential that the first marriage should have been a valid marriage, and that the marital relation should have been subsisting between the parties thereto at the time the defendant entered into the second marriage. Warner v. Commonwealth, 4 Va. (2 Va. Cas.) 95 (1817); Moore v. Commonwealth, 36 Va. (9 Leigh) 639 (1838); Oneale v. Commonwealth, 58 Va. (17 Gratt.) 582 (1867); Bird v. Commonwealth, 62 Va. (21 Gratt.) 800 (1871).

The subsequent marriage of the accused is of course an essential element of the crime. Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

Under this section, the crime of bigamy is complete in this state if under an invalid marriage in another state there is thereafter cohabitation under such marriage in this state. Corvin v. Commonwealth, 131 Va. 649 , 108 S.E. 651 (1921); Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

Proof of validity of out-of-state marriage. - Where a prior marriage is alleged to have taken place in another state it must be shown that the marriage was valid where contracted. Warner v. Commonwealth, 4 Va. (2 Va. Cas.) 95 (1817); Oneale v. Commonwealth, 58 Va. (17 Gratt.) 582 (1867); Bird v. Commonwealth, 62 Va. (21 Gratt.) 800 (1871).

Unmarried party to second marriage guilty of aiding and abetting. - An unmarried person who marries another, knowing that the latter is already married, may be convicted of aiding and abetting the commission of bigamy by the latter even though this section does not in terms make the competent party to the bigamous marriage punishable. Adkins v. Commonwealth, 175 Va. 590 , 9 S.E.2d 349 (1940).

What is necessary to give court jurisdiction. - Either the second unlawful marriage, or the cohabitation after the second unlawful marriage has been entered into out of this state, must take place within this state to give our courts jurisdiction. Neither the place of marriage nor the place of cohabitation is an element of the nature or character of the crime. Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

Reasonable belief that one is divorced is no defense. - Because the unambiguous language of this section does not require proof of a specific intent, reasonable belief that a prior marriage has been ended by divorce is not a defense to the charge of bigamy. Stuart v. Commonwealth, 11 Va. App. 216, 397 S.E.2d 533 (1990).

As to evidence to prove former marriage, see Warner v. Commonwealth, 4 Va. (2 Va. Cas.) 95 (1817); Moore v. Commonwealth, 36 Va. (9 Leigh) 639 (1838); Oneale v. Commonwealth, 58 Va. (17 Gratt.) 582 (1867); Bird v. Commonwealth, 62 Va. (21 Gratt.) 800 (1871); Womack v. Tankersley, 78 Va. 242 (1883).

Bigamy both illegal and void. - Because defendant married a second wife while married to his first wife, because this section clearly condemned bigamy as both illegal and void, and because defendant's two-year minimum prison term fell far short of implicating any Eighth Amendment issue, there was no merit in any of defendant's statutory or constitutional challenges. Cole v. Commonwealth, 58 Va. App. 642, 712 S.E.2d 759, 2011 Va. App. LEXIS 255 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Void marriages. - Virginia's laws voiding bigamous marriages and criminalizing bigamy are constitutional; the Fourth Circuit's decision in Bostic v. Schaefer does not invalidate §§ 18.2-362 , 18.2-363 , 20-38.1 , 20-40 , and 20-45.1 , which prohibit bigamy by all persons, regardless of sexual orientation or gender identity. Also, bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful. See opinion of Attorney General to the Honorable Robert G. Marshall, Member, House of Delegates, No. 14-073, 2014 Va. AG LEXIS 74 (12/9/14).

§ 18.2-363. Leaving Commonwealth to evade law against bigamy.

If any persons, resident in the Commonwealth, one of whom has a living spouse, shall, with the intention of returning to reside in the Commonwealth, go into another state or country and there intermarry and return to and reside in the Commonwealth cohabiting as a married couple, such marriage shall be governed by the same law, in all respects, as if it had been solemnized in the Commonwealth.

(Code 1950, § 20-44 ; 1975, cc. 14, 15; 2020, c. 900.)

The 2020 amendments. - The 2020 amendment by c. 900 substituted "the Commonwealth" for "this Commonwealth" throughout, and substituted "living spouse" for "husband or wife living" and "a married couple" for "man and wife."

OPINIONS OF THE ATTORNEY GENERAL

Void marriages. - Virginia's laws voiding bigamous marriages and criminalizing bigamy are constitutional; the Fourth Circuit's decision in Bostic v. Schaefer does not invalidate §§ 18.2-362 , 18.2-363 , 20-38.1 , 20-40 , and 20-45.1 , which prohibit bigamy by all persons, regardless of sexual orientation or gender identity. Also, bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful. See opinion of Attorney General to the Honorable Robert G. Marshall, Member, House of Delegates, No. 14-073, 2014 Va. AG LEXIS 74 (12/9/14).

§ 18.2-364. Exceptions to §§ 18.2-362 and 18.2-363.

Sections 18.2-362 and 18.2-363 shall not extend to a person whose spouse shall have been continuously absent from such person for seven years next before marriage of such person to another, and shall not have been known by such person to be living within that time; nor to a person who can show that the second marriage was contracted in good faith under a reasonable belief that the former consort was dead; nor to a person who shall, at the time of the subsequent marriage, have been divorced from the bond of the former marriage; nor to a person whose former marriage was void.

(Code 1950, § 20-42; 1975, cc. 14, 15; 2020, c. 900.)

The 2020 amendments. - The 2020 amendment by c. 900 substituted "spouse" for "husband or wife."

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accomplices and Accessories, § 8; 2C M.J. Autrefois, Acquit and Convict, § 7; 3A M.J. Bigamy, §§ 2, 3.

CASE NOTES

Void foreign decree of divorce renders second marriage bigamous. - If the accused did not go to West Virginia with the determination to make it his legal domicile, or if he went there merely for the purpose of obtaining a divorce, intending to remain no longer than was necessary to accomplish his purpose, or if the divorce was obtained by fraud, the decree of the West Virginia court is void, and the accused in marrying another woman and thereafter cohabiting with her in this state, while his former wife still was living, is guilty of bigamy. Corvin v. Commonwealth, 131 Va. 649 , 108 S.E. 651 (1921).

Evidence of fraud in obtaining decree. - Where a divorce decree in another state was relied upon by accused as a defense, the material facts which culminated in the divorce suit, as well as his conduct immediately thereafter, are admissible to determine whether the decree had been obtained in good faith or by deceit and fraud. Corvin v. Commonwealth, 131 Va. 649 , 108 S.E. 651 (1921).

Indictment for bigamy need not negative provisions of this section. - In a prosecution for bigamy, it is not necessary that the indictment should negative the provisions of this section, as this section constitutes no part of the description of the offense, but is disconnected with the statutory description of the crime and only affords the accused certain grounds of defense, among them a divorce from the bond of a previous marriage. Corvin v. Commonwealth, 131 Va. 649 , 108 S.E. 651 (1921).

§ 18.2-365. Adultery defined; penalty.

Any person, being married, who voluntarily shall have sexual intercourse with any person not his or her spouse shall be guilty of adultery, punishable as a Class 4 misdemeanor.

(Code 1950, §§18.1-187, 18.1-190; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For an article, "Sex and Guilt," see 84 Va. L. Rev. 1 (1998).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For note, "Estop in the Name of Love: A Case for Constructive Marriage in Virginia," see 49 Wm. & Mary L. Rev. 973 (2007).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, §§ 2, 3, 8.

CASE NOTES

Adultery is not protected by the First or Fourteenth Amendments to the United States Constitution particularly as the Commonwealth prohibits it by this section. Suddarth v. Slane, 539 F. Supp. 612 (W.D. Va. 1982).

State trooper who admitted to adulterous conduct could not claim wrongful dismissal pursuant to 42 U.S.C.S. § 1983, as his conduct was clearly in violation of Virginia law and the Department of State Police regulations. Suddarth v. Slane, 539 F. Supp. 612 (W.D. Va. 1982).

Applied in Roe v. Roe, 228 Va. 722 , 324 S.E.2d 691 (1985).

CIRCUIT COURT OPINIONS

Fifth Amendment right. - Plaintiff was ordered to answer the interrogatory related to adultery; as the statute of limitations for a misdemeanor was one year, plaintiff faced no risk of prosecution. Zakia v. Zakia, 104 Va. Cir. 168, 2020 Va. Cir. LEXIS 7 (Fairfax County Jan. 24, 2020).

Adultery established by clear and convincing evidence. - Wife was granted a divorce based on a husband's adultery because the evidence well exceeded the clear and convincing standard to prove adultery established by the legislature; the husband testified that he deserted the marital residence to reside with and continue an on-going sexual relationship with another woman, who also testified about the necessary corroborative facts of adultery and desertion. Giambalvo v. Giambalvo,, 2018 Va. Cir. LEXIS 432 (Orange County Oct. 14, 2018).

§ 18.2-366. Sexual intercourse by persons forbidden to marry; incest; penalties.

  1. Any person who engages in sexual intercourse with any person whom he is forbidden by law to marry is guilty of a Class 1 misdemeanor except as provided by subsection B.
  2. Any person who engages in sexual intercourse with his daughter or granddaughter, son or grandson, or father or mother is guilty of a Class 5 felony. However, if a parent or grandparent engages in sexual intercourse with his child or grandchild, and such child or grandchild is at least 13 years of age but less than 18 years of age at the time of the offense, such parent or grandparent is guilty of a Class 3 felony.
  3. For the purposes of this section, parent includes stepparent, grandparent includes step-grandparent, child includes a stepchild, and grandchild includes a step-grandchild.

    (Code 1950, § 18.1-191; 1960, c. 358; 1975, cc. 14, 15; 1981, c. 397; 1993, c. 703; 2014, c. 542; 2020, cc. 122, 900.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

For provision that consent to adoption shall not be required of the birth father when the father has been convicted of a violation of § 18.2-61 A, § 18.2-63 , or § 18.2-366 B, see § 63.2-1202 F.

As to validity of an entrustment agreement for termination of parental rights, despite lack of birth father's signature, when the father has been convicted of a violation of § 18.2-61 A, § 18.2-63 , or § 18.2-366 B, and the child in question was conceived as a result of such violation, see § 63.2-903 C and § 63.2-1222 .

As to execution of consent for parental placement adoptions, and exceptions to consent requirements, see § 63.2-1233 .

For definition of "barrier crime" as including a conviction of incest as set out in § 18.2-366 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Editor's note. - Acts 2020, c. 900, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2014 amendments. - The 2014 amendment by c. 542 added subsection C.

The 2020 amendments. - The 2020 amendment by c. 122 substituted "engages in sexual intercourse" for "commits adultery or fornication" three times; and made stylistic changes.

The 2020 amendment by c. 900 substituted "engages in sexual intercourse" for "commits adultery or fornication" three times; in subsection A, substituted "whom he" for "whom he or she"; in subsection B, substituted "son or grandson, or father or mother" for "or with her son or grandson, or her father or his mother" in the first sentence and "his" for "his or her" in the second sentence; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 2; 9B M.J. Incest, § 2.

CASE NOTES

Evidence of incestuous intercourse admissible. - It is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction. Brown v. Commonwealth, 208 Va. 512 , 158 S.E.2d 663 (1968).

HLA test results are insufficient to prove incest. - Where the alleged victim testifies as a witness for the Commonwealth and denies the act of incest, the Human Leucocyte Antigen (HLA) test result alone may not suffice to prove incest beyond a reasonable doubt. Bridgeman v. Commonwealth, 3 Va. App. 523, 351 S.E.2d 598 (1986).

Circumstantial evidence in the nature of Human Leucocyte Antigen (HLA) test results showing a probability of paternity was insufficient as a matter of law to find defendant guilty of incest, where the Commonwealth's own evidence, including the testimony of expert regarding the lack of statistical information concerning the effect which incestuous relationships have on increasing the probability of the HLA results indicating paternity, and the denial by the alleged victim that intercourse occurred between her and defendant, created a reasonable doubt that defendant was guilty of the crime charged. Bridgeman v. Commonwealth, 3 Va. App. 523, 351 S.E.2d 598 (1986).

Evidence sufficient to prove paternity. - Where an alleged incest victim and her mother identified defendant as the victim's father, he was listed as her father on the birth certificate, the victim was born during defendant's marriage to the victim's mother, and the victim used defendant's surname throughout her life, the evidence was sufficient to prove defendant's paternity. Dowdy v. Commonwealth, No. 2509-02-3, 2003 Va. App. LEXIS 705 (Ct. of Appeals Dec. 30, 2003).

Constitutional argument insufficient. - Contrary to defendant's argument, there was no constitutional right for a stepfather to engage in sexual intercourse with his eighteen-year-old stepdaughter, and this section, prohibiting it that was enacted by the people's elected representatives in the General Assembly was constitutional. Ferguson v. Commonwealth, 71 Va. App. 546, 838 S.E.2d 75, 2020 Va. App. LEXIS 52 (Feb. 25, 2020).

CIRCUIT COURT OPINIONS

Fifth Amendment right. - Because there was no statute of limitations for a felony, if plaintiff had sexual intercourse with his daughter or granddaughter, or his mother, he could invoke his right under the Fifth Amendment as such sexual intercourse was a felony. Zakia v. Zakia, 104 Va. Cir. 168, 2020 Va. Cir. LEXIS 7 (Fairfax County Jan. 24, 2020).

Incest is not a lesser included offense of rape, as under this section, the incest statute, the Commonwealth has to prove a familial relationship and there is no requirement that it be nonconsensual, while lack of consent is an element of rape, and not every commission of rape was a commission of incest. Comm. of Va. v. Levin, 55 Va. Cir. 229, 2001 Va. Cir. LEXIS 275 (Norfolk 2001).

§ 18.2-367.

Repealed by Acts 2004, c. 459.

Editor's note. - Former § 18.2-367 , pertaining to conspiring to cause spouse to commit adultery, derived from Code 1950, § 18.1-192; 1960, c. 358; 1975, cc. 14, 15.

§ 18.2-368. Placing or leaving spouse for prostitution; penalty.

Any person who, by force, fraud, intimidation, or threats, places or leaves or procures any other person to place or leave his spouse in a bawdy place for the purpose of prostitution or unlawful sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus is guilty of pandering, punishable as a Class 4 felony.

(Code 1950, § 18.1-207; 1960, c. 358; 1975, cc. 14, 15; 2014, c. 794; 2020, c. 900.)

Editor's note. - Acts 2020, c. 900, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, substituted "anal intercourse, cunnilingus, fellatio, or anilingus is" for "shall be."

The 2020 amendments. - The 2020 amendment by c. 900 substituted "spouse" for "wife."

§ 18.2-369. Abuse and neglect of incapacitated adults; penalty.

  1. It is unlawful for any responsible person to abuse or neglect any incapacitated adult as defined in this section. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect does not result in serious bodily injury or disease to the incapacitated adult is guilty of a Class 1 misdemeanor. Any responsible person who is convicted of a second or subsequent offense under this subsection is guilty of a Class 6 felony.
  2. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in serious bodily injury or disease to the incapacitated adult is guilty of a Class 4 felony. Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect results in the death of the incapacitated adult is guilty of a Class 3 felony.
  3. For purposes of this section:

    "Abuse" means (i) knowing and willful conduct that causes physical injury or pain or (ii) knowing and willful use of physical restraint, including confinement, as punishment, for convenience or as a substitute for treatment, except where such conduct or physical restraint, including confinement, is a part of care or treatment and is in furtherance of the health and safety of the incapacitated person.

    "Incapacitated adult" means any person 18 years of age or older who is impaired by reason of mental illness, intellectual disability, physical illness or disability, advanced age or other causes to the extent the adult lacks sufficient understanding or capacity to make, communicate or carry out reasonable decisions concerning his well-being.

    "Neglect" means the knowing and willful failure by a responsible person to provide treatment, care, goods or services which results in injury to the health or endangers the safety of an incapacitated adult.

    "Responsible person" means a person who has responsibility for the care, custody or control of an incapacitated person by operation of law or who has assumed such responsibility voluntarily, by contract or in fact.

    "Serious bodily injury or disease" shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life-threatening internal injuries or conditions, whether or not caused by trauma.

  4. No responsible person shall be in violation of this section whose conduct was (i) in accordance with the informed consent of the incapacitated person that was given when he was not incapacitated or a person authorized to consent on his behalf; (ii) in accordance with a declaration by the incapacitated person under the Health Care Decisions Act (§ 54.1-2981 et seq.) that was given when he was not incapacitated or with the provisions of a valid medical power of attorney; (iii) in accordance with the wishes of the incapacitated person that were made known when he was not incapacitated or a person authorized to consent on behalf of the incapacitated person and in accord with the tenets and practices of a church or religious denomination; (iv) incident to necessary movement of, placement of or protection from harm to the incapacitated person; or (v) a bona fide, recognized or approved practice to provide medical care. (1992, c. 551; 1994, c. 620; 2000, c. 796; 2001, c. 181; 2004, c. 863; 2007, cc. 562, 653; 2012, cc. 476, 507; 2019, c. 234.)

Cross references. - For definition of "barrier crime" as including a conviction of abuse and neglect of incapacitated adults as set out in § 18.2-369 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including abuse and neglect of incapacitated adults as set out in § 18.2-369 , or an equivalent offense in another state, see § 63.2-1726 .

Editor's note. - Acts 2000, c. 796, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

Acts 2001, c. 181, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0."

Acts 2019, c. 234, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

The 2000 amendments. - The 2000 amendment by c. 796, in subsection B, substituted "knowing and willful" for "malicious" twice in the paragraph defining "Abuse"; inserted "knowing and" in the paragraph defining "Neglect"; and in subsection C, deleted "or" preceding "(iii)," and added clauses (iv) and (v).

The 2001 amendments. - The 2001 amendment by c. 181, in subsection A, inserted "and the abuse or neglect does not result in serious bodily injury or disease to the incapacitated adult" in the first sentence and substituted "subsection" for "section" in the last sentence; added the subsection B designation to the former second paragraph of subsection A and redesignated former subsections B and C as C and D; in present subsection B, substituted "Any responsible person who abuses or neglects an incapacitated adult in violation of this section and the abuse or neglect" for "in any event, if a violation," substituted "the incapacitated adult shall be guilty of" for "another, conviction of an offense shall be punishable as," and deleted the former last sentence which read: "For purposes of this subsection, 'serious bodily injury or disease' shall include but not be limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life threatening internal injuries or conditions, whether or not caused by trauma"; and added the last paragraph in subsection C, defining "serious bodily injury or disease."

The 2004 amendments. - The 2004 amendment by c. 863 substituted "Class 4 felony" for "Class 6 felony" in subsection B; and substituted "18" for "eighteen" in the definition of "Incapacitated adult" in subsection C.

The 2007 amendments. - The 2007 amendments by cc. 562 and 653 are identical, and substituted "is guilty" for "shall be guilty" in the second and last sentences of subsection A and in the first sentence of subsection B; and added the last sentence in subsection B.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and in subsection C, substituted "any person 18 years of age or older who is impaired by reason of mental illness, intellectual disability, physical illness" for "any person 18 years or older who is impaired by reason of mental illness, mental retardation, physical illness" in the paragraph defining "Incapacitated adult."

The 2019 amendments. - The 2019 amendment by c. 234, in subsection A, substituted "It is unlawful" for "It shall be unlawful"; in subsection D, inserted "that was given when he was not incapacitated" twice, and inserted "that were made known when he was not incapacitated."

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Guardian and Ward, § 1.

CASE NOTES

Failure to provide medical treatment. - Evidence that defendant knowingly and willfully failed to provide medical treatment to her incapacitated mother even though the doctor instructed defendant to bring her mother to his office if she experiences any problems, was sufficient to support her conviction for felonious abuse or neglect of her mother that resulted in serious bodily injury or disease. Correll v. Commonwealth, 269 Va. 3 , 607 S.E.2d 119, 2005 Va. LEXIS 14 (2005).

There was sufficient evidence of proximate causation to support the jury's verdict that defendant's actions were a proximate cause of the victim's death as defendant, the owner of a residential group home for people with intellectual disabilities, directed that the victim was not to be taken to a hospital after the victim was burned by hot water when there was evidence that the victim would not have died of sepsis days later or the victim's pneumonia would have been prevented if the victim had received proper treatment. Wagoner v. Commonwealth, 289 Va. 476 , 770 S.E.2d 479, 2015 Va. LEXIS 47 (2015).

Evidence was sufficient to establish that defendant knowingly, willfully or maliciously caused any injuries or failed to provide treatment, care, goods or services to her mother. - Among other things, defendant's failure to provide her mother with the appropriate food and/or care, including medical care, amounted to more than bad judgment, and defendant's conduct amounted to a voluntary, knowing omission which defendant could not have reasonably believed was lawful or excusable as she was clearly capable of comprehending the seriousness of her mother's condition given the fact that she had cared for her mother over the years. Correll v. Commonwealth, 42 Va. App. 311, 591 S.E.2d 712, 2004 Va. App. LEXIS 30 (2004), aff'd, 269 Va. 3 , 607 S.E.2d 119 (2005).

Motion to suppress denied. - In a case of abuse or neglect of an incapacitated adult, a motion to suppress the evidence because the officer entered the house without a warrant or probable cause, was denied as the officer had consent to enter. Arms v. Commonwealth,, 2008 Va. App. LEXIS 256 (May 27, 2008).

In defendant's prosecution for abuse or neglect of an incapacitated adult resulting in death, a jury could find defendant's act willful, knowing injury or death would result, because (1) the jury was correctly instructed on "neglect" and "willful," and (2) the jury could believe defendant knew the victim was severely burned but sought no proper treatment to protect defendant's own interests, showing a willful act. Wagoner v. Commonwealth, 63 Va. App. 229, 756 S.E.2d 165, 2014 Va. App. LEXIS 133 (2014), aff'd, 770 S.E.2d 479 (Va. 2015).

Evidence sufficient to find neglect of incapacitated adult. - Trial court did not err in convicting defendant of felony neglect of an incapacitated adult in violation of subsection B of § 18.2-369 because defendant had a sufficient relationship with the victim by contract or in fact through her employment as a home health aide with a home health care company to make her a "responsible person" under § 18.2-369 , and the Commonwealth clearly established that defendant accepted the company's offer to employ her as the victim's home health aide and that she accepted compensation for the care that she claimed to provide the victim; the evidence adduced at trial proved that defendant knowingly and willfully neglected the victim in violation of § 18.2-369 because as the victim's health care worker, who saw the victim five days a week in his home and claimed to regularly move and wash him, defendant certainly should have been aware of the victim's condition and should have acted to address it. Williams v. Commonwealth,, 2009 Va. App. LEXIS 408 (Sept. 15, 2009).

Circuit court properly convicted defendant of felony murder and abuse or neglect of an incapacitated adult because the evidence was sufficient to show that the 77-year-old victim's death was the result of defendant's neglect where the victim depended on defendant for her daily needs, including food, water, and medical care, the primary cause of the victim's death was severe malnutrition and dehydration, she was emaciated, her body collapsing in on itself, was skeletal in photographs taken soon after her death, her weight dropped from 105 to 45 pounds over the course of six months, which indicated that she had been deprived of adequate nutrition for months, and defendant did not take her to a doctor in the months before her death. India v. Commonwealth, No. 1034-16-1, 2017 Va. App. LEXIS 81 (Mar. 21, 2017).

Motion to set aside verdict. - In defendant's prosecution for abuse or neglect of an incapacitated adult resulting in death, a "substantial possibility of survival" standard was not wrongly applied to defendant's motion to set aside the verdict because (1) the standard was only used to decide whether to submit proximate cause of death to the jury, and (2) the standard applied to the motion. Wagoner v. Commonwealth, 63 Va. App. 229, 756 S.E.2d 165, 2014 Va. App. LEXIS 133 (2014), aff'd, 770 S.E.2d 479 (Va. 2015).

In defendant's prosecution for abuse or neglect of an incapacitated adult resulting in death, it was no error to let the jury decide if defendant's acts "resulted in" the victim's death because testimony on the victim's 25 percent survival chance had defendant not denied medical treatment allowed such an inference. Wagoner v. Commonwealth, 63 Va. App. 229, 756 S.E.2d 165, 2014 Va. App. LEXIS 133 (2014), aff'd, 770 S.E.2d 479 (Va. 2015).

Proper standard for deciding a motion to set aside the verdict in a criminal case was whether the jury's verdict was plainly wrong or without evidence to support it. Accordingly, the trial court and the intermediate appellate court erred in considering the loss of a substantial possibility of survival as the basis for deciding the motion to set aside the verdict as that standard was applicable in medical malpractice cases. Wagoner v. Commonwealth, 289 Va. 476 , 770 S.E.2d 479, 2015 Va. LEXIS 47 (2015).

Applied in Chapman v. Commonwealth, 68 Va. App. 131, 804 S.E.2d 326, 2017 Va. App. LEXIS 238 (2017).

CIRCUIT COURT OPINIONS

Failure to provide medical treatment. - Motion filed by defendant, a group home owner, to set aside a verdict convicting him of the felonious abuse and neglect of an incapacitated adult, which resulted in death, in violation of subsection B of § 18.2-369 , was denied because the evidence was adequate for the jury to conclude that defendant acted knowingly and willfully in failing to provide appropriate medical treatment to the victim after he was scalded by hot water while bathing himself. Commonwealth v. Wagoner, 85 Va. Cir. 426, 2012 Va. Cir. LEXIS 188 (Martinsville Oct. 10, 2012), aff'd, 63 Va. App. 229, 756 S.E.2d 165, 2014 Va. App. LEXIS 133 (2014).

§ 18.2-370. Taking indecent liberties with children; penalties.

  1. Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony:
  2. Any person 18 years of age or over who, with lascivious intent, knowingly and intentionally receives money, property, or any other remuneration for allowing, encouraging, or enticing any person under the age of 18 years to perform in or be a subject of sexually explicit visual material as defined in § 18.2-374.1 or who knowingly encourages such person to perform in or be a subject of sexually explicit material is guilty of a Class 5 felony.
  3. Any person who is convicted of a second or subsequent violation of this section is guilty of a Class 4 felony, provided that (i) the offenses were not part of a common act, transaction or scheme; (ii) the accused was at liberty as defined in § 53.1-151 between each conviction; and (iii) it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this section.
  4. Any parent, step-parent, grandparent, or step-grandparent who commits a violation of either this section or clause (v) or (vi) of subsection A of § 18.2-370.1 (i) upon his child, step-child, grandchild, or step-grandchild who is at least 15 but less than 18 years of age is guilty of a Class 5 felony or (ii) upon his child, step-child, grandchild, or step-grandchild less than 15 years of age is guilty of a Class 4 felony.

    (Code 1950, §§ 18.1-213 through 18.1-215; 1960, c. 358; 1973, c. 131; 1975, cc. 14, 15; 1979, c. 348; 1981, c. 397; 1986, c. 503; 2000, c. 333; 2001, cc. 776, 840; 2005, cc. 185, 762; 2013, cc. 423, 470; 2014, c. 794.)

  1. Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; or
  2. [Repealed.]
  3. Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; or
  4. Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361 ; or
  5. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this subsection.

Cross references. - As to aggravated sexual battery, see § 18.2-67.3 .

As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

For definition of "barrier crime" as including a conviction of taking indecent liberties with children as set out in § 18.2-370 or § 18.2-370.1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including taking indecent liberties with children as set out in § 18.2-370 or § 18.2-370.1 , or an equivalent offense in another state, see § 63.2-1726 .

The 2000 amendments. - The 2000 amendment by c. 333 added the subsection A designation and added subsection B.

The 2001 amendments. - The 2001 amendment by c. 776 substituted "Class 5 felony" for "Class 6 felony" at the end of present subsection B, and substituted "Class 4 felony" for "Class 5 felony" near the beginning of present subsection C.

The 2001 amendment by c. 840, in subsection A, inserted "commit any of the following acts with any child under the age of fourteen years shall be guilty of a Class 5 felony", redesignated former subdivision A 6 as subsection B and inserted "Any person eighteen years of age or over who, with lascivious intent, knowingly and intentionally receives" and substitutes "Class 5" for "Class 6" therein, redesignated former subsection B as present subsection C and substituted "Class 4" for "Class 5" in present subsection C.

The 2005 amendments. - The 2005 amendment by c. 185, in subsection A, substituted "15 years" for "fourteen years"; added subsection D and made minor stylistic changes.

The 2005 amendment by c. 762 substituted "18 years" for "eighteen years" in subsection A and twice in subsection B and "15 years" for "fourteen years" in subsection A.

The 2013 amendments. - The 2013 amendments by cc. 423 and 470 are identical, and inserted "his own sexual or genital parts or" in subdivision A (3).

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, in subdivision A 4, inserted "anal intercourse, cunnilingus, fellatio, or anilingus" and made a minor stylistic change; in subdivision A 5, substituted "subsection" for "section"; and in subsections B and C, substituted "is guilty" for "shall be guilty" and made minor stylistic changes.

Law review. - For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970). For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For a review of criminal law in Virginia for year 1999, see 33 U. Rich. L. Rev. 857 (1999).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For article, "Protecting Virtual Playgrounds: Children, Law, and Play Online: Sex Play in Virtual Worlds," see 66 Wash. & Lee L. Rev. 1127 (2009).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, §§ 11, 15; 2C M.J. Autrefois, Acquit and Convict, § 16; 9B M.J. Infants & Juveniles, § 89; 15 M.J. Rape & Other Sexual Offenses, § 12; 16 M.J. Sodomy, § 4.

CASE NOTES

The word "lascivious" is not defined in this section and must therefore be given its ordinary meaning. As so determined, the word "lascivious" describes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite. McKeon v. Commonwealth, 211 Va. 24 , 175 S.E.2d 282 (1970); Campbell v. Commonwealth, 227 Va. 196 , 313 S.E.2d 402 (1984).

Actual touching not within section. - This section does not encompass situations where the accused has actually touched the victim or the victim was caused to touch the accused. Mason v. Commonwealth, No. 0309-97-2 (Ct. of Appeals May 5, 1998).

"Expose" defined. - Expose for purposes of this statute means not only to lay bare to view, but to feel or touch; to limit exposure to visual observation unduly limits the behavior that the statute intends to prevent. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

"Expose," as used in this section, requires a visual display where the genitalia are seen, or where there is a possibility that they could have been seen. Farhoumand v. Commonwealth, 288 Va. 338 , 764 S.E.2d 95, 2014 Va. LEXIS 150 (Oct. 31, 2014).

"Expose" element. - Defendant sent photographs of his genitals to the minor victim via Snapchat, which messages laid open to view his genitals, and the messages he sent satisfied the "expose" element of the statute. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

Nothing in case law places a limitation on the term "expose" by requiring that, to satisfy the statute, the exposure must occur in the physical presence of the victim; expose requires exposure in the actual presence and sight of others, or in such a place or under such circumstances that the exhibition is liable to be seen by others. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

"Physical presence" element. - By ensuring that the victim had his correct user name, and then confirming that she had received a Snapchat from him, defendant was clearly exposing himself to the victim in a manner liable to be seen by her, and his behavior satisfied the physical presence or liable to be seen requirement under the statute. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

This section and § 18.2-68 deal with different approaches to a sexual offense. Black v. Peyton, 292 F. Supp. 45 (W.D. Va. 1968).

And different evidence is required to support convictions under this section and former § 18.2-68 . Black v. Peyton, 292 F. Supp. 45 (W.D. Va. 1968).

Former § 18.1-215 contemplated an intentional act of a person over 21 [now 18] years of age placing the hands upon or in any manner fondling or feeling the sexual or genital parts of a child under 14 years of age with lascivious intent. Black v. Peyton, 292 F. Supp. 45 (W.D. Va. 1968).

At time of exposure. - Conversation between defendant and the minor victim via text message occurred at the same time as their exchange of explicit Snapchat messages, and defendant asked the victim if she had received his Snapchat message, and she responded in the affirmative within 20 seconds, such that she viewed defendant's genitals at time of the exposure. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

Unnecessary that victim perceive display. - This section proscribes the intentional display by an adult, with lascivious intent, of his or her genitals in the presence of a child where a reasonable probability exists that they might be seen by that child, regardless of the child's actual perception of such a display. Siquina v. Commonwealth, 28 Va. App. 694, 508 S.E.2d 350 (1998).

Indecent exposure is not included within the offense of sodomy because the elements of indecent exposure are not included within the elements of sodomy. Similarly, the elements of indecent exposure with lascivious intent are not included within the offense of sodomy, nor are the elements of sodomy included within the offense of indecent exposure with lascivious intent. So even if a prior conviction of indecent exposure with lascivious intent was based on the same evidence as a later prosecution for sodomy, § 19.2-294 is not applicable. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1968).

Indecent exposure not lesser offense of indecent liberties. - Indecent exposure, as proscribed by § 18.2-387 , was not a lesser included offense of indecent liberties, as proscribed by subdivision A 1 of § 18.2-370 , because all the elements of indecent exposure were not included in the offense charged, and, thus, failure to instruct the jury on indecent exposure was not error. Simon v. Commonwealth, 58 Va. App. 194, 708 S.E.2d 245, 2011 Va. App. LEXIS 153 (2011).

When physical appearance may determine age. - When proof is required that a person is above or below a given age, physical appearance may be considered as proof of that fact; if a criminal defendant's physical appearance indicates an age well above that required to be proven and the trial court determines that the fact finder is able to conclude beyond a reasonable doubt from the defendant's physical appearance that he exceeds the age required to be proven, then the defendant's physical appearance alone is sufficient evidence of his age, and the fact finder may resolve that issue based only on the defendant's physical appearance; however, in less obvious cases, where the defendant's physical appearance does not establish beyond a reasonable doubt that his age exceeds that required, then physical appearance alone is insufficient evidence of his age and must be corroborated. Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259 (1989).

Defendant's conviction of taking indecent liberties was affirmed because the trial court found that defendant was 18 years old or older based on his appearance in court, stated its finding, and that finding was proper; contrary to defendant's claim, the trial court did not base its finding on defendant's answers to its questions posed during arraignment. Winn v. Commonwealth,, 2009 Va. App. LEXIS 141 (Mar. 24, 2009).

Physical appearance was sufficient to prove age. - The physical appearance of the defendant, according to the comments of the trial judge, was sufficient as a matter of law to determine that the defendant was over 18 years old; the trial court did not err, in denying the defendant's motion to strike the evidence. Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259 (1989).

Where the statute requires that an accused be "eighteen years of age or over" at the time of the offense, and victim testified that, at the time of the instant offense, defendant was married and had two children, the oldest of whom was four years old, and where defendant was present at trial, such that his "physical appearance may be considered" by the court as evidence of his age at the time of the offense, this evidence sufficiently established that defendant was no less than 18 years of age at the time of the offenses. Gardner v. Commonwealth, No. 1050-95-1 (Ct. of Appeals Mar. 19, 1996).

Where the defendant told the victim he was twenty-eight years old and the defendant's physical appearance at trial corroborated this statement, the evidence was sufficient to prove that the defendant was more than eighteen years of age. Bloom v. Commonwealth, 34 Va. App. 364, 542 S.E.2d 18, 2001 Va. App. LEXIS 91 , aff'd, 262 Va. 814 , 554 S.E.2d 84 (2001).

Use of Internet in establishing attempt. - Where evidence showed that defendant knew that he was chatting with a 13-year-old girl, who was actually a detective, in an internet chat room, based on the so-called victim's statement telling him her age and that she was in the seventh grade, lived at home, and had little, if any, sexual experience, and that defendant turned on his webcam and exposed himself to the victim, such was sufficient to support his convictions of attempting to take indecent liberties with a child under the age of 14, in violation of §§ 18.2-370 and 18.2-26 . Deecheandia v. Commonwealth, No. 1885-03-2, 2004 Va. App. LEXIS 266 (Ct. of Appeals June 8, 2004).

Evidence presented at trial that defendant tried to meet with a person for sex that he perceived to be a 13-year-old female from his conversations with "her" between their computers was sufficient to support his conviction of attempted indecent liberties with a minor; his defense that he could not be convicted of violating that statute because no child existed, since the "female" turned out to be a police officer, was a defense of factual, not legal, impossibility and factual impossibility was not a recognized defense to that offense. Hix v. Commonwealth, 270 Va. 335 , 619 S.E.2d 80, 2005 Va. LEXIS 84 (2005).

Although defendant argued he could not be convicted of a violation of 18 U.S.C.S. § 2422(b) because the Government did not prove he was guilty of § 18.2-370 since his victim was not a child under fourteen years of age, but rather an adult posing as a child online, defendant's argument was meritless as the absence of an actual child had no bearing on the crime of attempt under § 18.2-370 . United States v. Kaye,, 2007 U.S. App. LEXIS 16114 (4th Cir. July 6, 2007).

Reliance not on physical appearance but on documents not in evidence. - Although defendant's physical appearance was sufficient evidence that he was over 18 years of age, the trial court did not rely on the defendant's physical appearance but relied on documents which were not in evidence, therefore the case was reversed and remanded for a new trial. Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259 (1989).

Recent complaint exception to hearsay rule unavailable. - The recent complaint exception to the hearsay rule must be confined to cases involving rape. Thus, in a prosecution under this section, where the incident involved occurred some time between 2 p.m. and 3:30 p.m., the complaint by the alleged victim to his mother was not made until approximately 8 p.m., the mother was not present, and her only knowledge of the alleged crime was that gained from her four-and-a-half-year-old son, her testimony was hearsay and inadmissible. Leybourne v. Commonwealth, 222 Va. 374 , 282 S.E.2d 12 (1981).

Admissibility of prior bad acts. - Defendant's convictions for using electronic means to solicit sex with a minor and attempted indecent liberties in violation of subsection B of § 18.2-374.3 and § 18.2-370 were appropriate because evidence of defendant's relationship with another female prior to the current events fell within the general exceptions to the general rule of exclusion of other bad acts evidence. The evidence was relevant to show some of the elements of the crimes charged and demonstrated not only defendant's knowledge that minors were present in the adult chat rooms but also his intent to engage in sexual acts with the current victim, just as he had done in the past. Detzler v. Commonwealth,, 2010 Va. App. LEXIS 132 (Apr. 6, 2010).

Evidence of child's prior sexual conduct properly excluded. - Trial court did not err in denying defendant's motion to present evidence of a six-year-old victim's prior sexual conduct because there was no evidence that defendant gave the notice required by § 18.2-67.7 , the rape shield statute, other than the prosecutor's statement that he had received a hand-written notice. Gleason v. Commonwealth,, 2010 Va. App. LEXIS 256 (June 29, 2010).

Dependent or neglected child. - Uncle's nieces, in the uncle's care, were properly found to be abused or neglected under § 16.1-228, based on the uncle's commission of sexual acts with another child, resulting in criminal charges that were nolle prosequied, because (1) the statute required only that the uncle perform a sexual act with a child, not that the uncle be convicted of such an act, and (2) the uncle did not contest that the uncle took indecent liberties with the other child in violation of § 18.2-370 . Cumbo v. Dickenson County Dep't of Soc. Servs., 62 Va. App. 124, 742 S.E.2d 885, 2013 Va. App. LEXIS 173 (2013).

Factors to be considered in determining lascivious intent are disjunctive. - When the evidence was sufficient to show defendant improperly gestured toward himself, this was sufficient to show his lascivious intent and sustain his conviction for taking indecent liberties, even though the evidence was not sufficient to show that he was sexually aroused, that he made any improper remarks, or that he asked the victims to do anything wrong, because the factors considered in determining whether lascivious intent was shown were disjunctive, so the demonstration of any one factor was sufficient. Viney v. Commonwealth, No. 0559-03-1, 2004 Va. App. LEXIS 214 (Ct. of Appeals May 4, 2004), aff'd, 609 S.E.2d 26 (2005).

Defendant's double jeopardy rights not violated. - Defendant's double jeopardy rights were not violated by being punished multiple times for what might have been the same offense since: (1) despite the overlap of some of the evidence, each indictment alleged an indecent liberties crime had occurred within a specific, different time period; (2) the victim described distinct acts that occurred during the specific periods of time alleged in each indictment; (3) although the victim was unable to recall specific dates of each offense, the time frames supplied by the victim were sufficient to identify a particular event with each indictment; and (4) specific dates were not required. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

Trial court did not err in denying appellant's motion to strike 10 counts of indecent liberties down to one count where each distinguishable incident in which an adult articulated a proposal for a child under the age of 14 to expose his or her sexual parts constituted a violation of subdivision A 1 of § 18.2-370 . Sandoval v. Commonwealth, 64 Va. App. 398, 768 S.E.2d 709, 2015 Va. App. LEXIS 60 (Feb. 24, 2015).

Appellant's conviction for the manufacture of child pornography, former subsection B of § 18.2-374.1 , and indecent liberties, subsection A of § 18.2-370 , did not violate double jeopardy where the charged offenses did not require proof of the same elements in all circumstances. Sandoval v. Commonwealth, 64 Va. App. 398, 768 S.E.2d 709, 2015 Va. App. LEXIS 60 (Feb. 24, 2015).

Relationship with other laws. - Where defendant appealed his 10-year sentence for violating 18 U.S.C.S. § 2252(a)(4)(B), he had a prior conviction under § 18.2-370 , and all conduct proscribed by § 18.2-370 categorically involved abusive sexual conduct; the district court did not err in applying the mandatory minimum sentence mandated by 18 U.S.C.S. § 2252(b)(2). United States v. Landry, 733 Fed. Appx. 693, 2018 U.S. App. LEXIS 12573 (4th Cir. May 15, 2018).

Admission of evidence harmless error. - As there was abundant evidence in the record demonstrating that defendant sent photographs of his genitals to the minor victim via Snapchat, the erroneous admission of the nude photographs allegedly of him found on his iPad did not influence the jury, or had but slight effect, thus rendering the error harmless in connection with his convictions of use of a computer to solicit a minor and taking indecent liberties with a child. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

Evidence was sufficient to prove lascivious intent where defendant asked 11 and 13 year old victims if they had ever seen a "dick" and if they wanted to see one; such questions were improper remarks and constituted competent, circumstantial evidence of lascivious intent. Penley v. Commonwealth, No. 1880-97-2 (Ct. of Appeals Sept. 8, 1998).

Evidence of defendant's conduct during encounters with child was sufficient to prove that defendant exposed his genitals to child with lascivious intent. Brandon v. Commonwealth, No. 2434-98-2 (Ct. of Appeals Jan. 11, 2000).

Admitted telephone conversations between defendant and her incarcerated husband plainly demonstrated that they shared an intent to incite sexual desire and appetite in each other by taking sexually explicit photographs of defendant and a minor girl, who in one photograph was posed with a vibrator, and the tone of the discussions indicated the photographs were being made for husbands sexual enjoyment while defendant admittedly became sexually aroused in the process. Upon this evidence, the jury was entitled to conclude beyond a reasonable doubt that defendant possessed lascivious intent at the time the photographs were produced and that defendant was guilty of taking indecent liberties with a child in violation of § 18.2-370 . Mason v. Commonwealth, 49 Va. App. 39, 636 S.E.2d 480, 2006 Va. App. LEXIS 505 (2006).

There was sufficient evidence to prove lasciviousness in support of defendant's indecent liberties conviction, a violation of subdivision A 1 of § 18.2-370 , where defendant, on two different occasions within the span of three days, wore intentionally modified shorts, into the crotch of which he had cut a golf ball-sized hole, and exposed himself to a minor. Simon v. Commonwealth, 58 Va. App. 194, 708 S.E.2d 245, 2011 Va. App. LEXIS 153 (2011).

Trial court did not err when it found that defendant acted with lascivious intent and that she exposed a sexual part to a child, her breast. Dietz v. Commonwealth, No. 0861-15-1, 2016 Va. App. LEXIS 146 (Ct. of Appeals May 3, 2016), aff'd, 294 Va. 123 , 804 S.E.2d 309, 2017 Va. LEXIS 117 (2017).

Defendant's acts and statements, including that he was excited while watching cartoons with the victim, and the effect of defendant's actions on the victim's behavior were also evidence from which the jury could have inferred lascivious intent to convict him of taking indecent liberties with a child. McCoy v. Commonwealth, No. 0710-17-3, 2018 Va. App. LEXIS 182 (July 10, 2018).

Evidence insufficient to prove lascivious intent. - See Breeding v. Commonwealth, 213 Va. 344 , 192 S.E.2d 807 (1972).

Circuit court erred in convicting defendant of taking indecent liberties with a minor because the evidence was insufficient to prove that he had lascivious intent when he exposed his genitalia in the presence of a young child in a public store inasmuch as defendant exposed himself once, did not say anything, did not gesture, did not have an erection, maintained a blank expression, and turned and exited the store when the child's mother confronted him. Steggall v. Commonwealth, No. 1903-18-2, 2019 Va. App. LEXIS 249 (Ct. of Appeals Nov. 5, 2019).

Membership in association. - Defendant's membership in the North American Man-Boy Love Association and pornographic materials in his possession at the time of his arrest were admissible in order to show lascivious intent. Smith v. Commonwealth, No. 1546-97-4 (Ct. of Appeals Dec. 1, 1998).

Evidence held sufficient to show that defendant wrote letter. - Commonwealth proved sufficiently that defendant was the one who wrote letter proposing sexual acts to a 12-year-old girl since the letter came in an envelope with the defendant's return address on it and one of the comments in the letter was directly responsive to a statement made in the girl's earlier letter to the defendant. Jewell v. Commonwealth, 8 Va. App. 353, 382 S.E.2d 259 (1989).

Acts sufficient to uphold conviction. - Any one of the following factors can be sufficient to uphold a conviction under the statute: the defendant was sexually aroused; that he made any gestures toward himself or to the child; that he made any improper remarks to the child, or that he asked the child to do anything wrong. Campbell v. Commonwealth, 227 Va. 196 , 313 S.E.2d 402 (1984).

Circuit court properly convicted defendant of two counts of taking indecent liberties with a minor in violation of § 18.2-370 because, while the Commonwealth offered no evidence that the victims, who were both under the age of 13, visually observed defendant's genitalia, and since "exposure" meant not only to "lay open to view," but also to "lay open to feel or to touch, the evidence proved that defendant physically touched the victims' genitals with his bare penis, which was sufficient to support the trial court's finding that he knowingly and intentionally exposed his genital parts. Mason v. Commonwealth, No. 0309-97-2, 1998 Va. App. LEXIS 683 (Nov. 10, 1998).

Evidence showing that defendant twice transmitted to someone, whom he believed was a minor, live images of his genital parts by means of a computer and a web camera so that the minor could see his genital parts at the time of the exposure was sufficient for the trial judge to have inferred that defendant knowingly and intentionally exposed his genitals to a person whom he believed to be a minor. Brooker v. Commonwealth, 41 Va. App. 609, 587 S.E.2d 732, 2003 Va. App. LEXIS 543 (2003).

Sufficient evidence supported defendant's indecent liberties convictions where the victim was forced to touch defendant's bare penis with his hand, although sometimes it was done inside defendant's clothing and in the dark with his eyes closed; while not always exposed to the victim's eyesight, defendant's bare penis was unquestionably exposed to the victim's sense of touch, and defendant therefore physically and tactilely exposed his penis to the victim. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

Sufficient evidence supported defendant's indecent liberties conviction where: (1) the victim testified that defendant abused him throughout eighth grade; (2) the victim was in the eighth grade from September 2009 until June 2010; (3) the indictment alleged an offense between January 1, 2010, though September 3, 2010; and (4) defendant admitted fondling the victim eight times between March and August 2010. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

Sufficient evidence supported defendant's indecent liberties convictions where: (1) the indictment alleged an offense between September 4 through December 31, 2010; (2) the victim testified that an incident occurred when he started ninth grade; and (3) defendant testified he sent the victim a text message on September 7, 2010, asking about his first day of school, which showed that defendant had contact with the victim from as early as September 7, 2010. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

Sufficient evidence supported defendant's indecent liberties conviction where: (1) the indictment alleged a crime between January 1, and September 3, 2011; (2) the victim testified that the last incident occurred on September 2, 2011; (3) the fact finder could find that the final incident occurred on September 2, 2011; and (4) it could be found that during the last meeting, defendant caused the victim's hand to be placed upon his penis from the victim's answer of "If I had to say today, for the court officially, I would say yes" in response to the question of whether defendant placed the victim's hand on defendant's penis. Farhoumand v. Commonwealth, No. 2087-12-4, 2013 Va. App. LEXIS 353 (Dec. 3, 2013).

Defendant's unchallenged statement that he took full responsibility for what happened, his statements that the situation with the mother was volatile when he left, and his attempt to contact the mother while at a friend's house and ask her where she was all supported defendant's conviction for contributing to the delinquency of a minor. Brown v. Commonwealth, No. 1737-14-2, 2015 Va. App. LEXIS 225 (July 21, 2015).

Defendant was properly convicted of taking indecent liberties with a child because defendant's illicit requests provided the basis for the charges, and the victim's testimony specifically describing the acts of sexual abuse supported the convictions; the credibility of the victim's trial testimony, which was sufficient on its own, was corroborated by her out-of-court complaints, and evidence from witnesses supported her accounts of the offenses. Possich v. Commonwealth, No. 0566-15-1, 2016 Va. App. LEXIS 96 (Ct. of Appeals Mar. 29, 2016).

Evidence was sufficient to convict defendant of indecent liberties because there was a reasonable probability that the child would awaken and see defendant's genitals as he was masturbating inches away from her face for an extended period of time; and he touched her face and foot with his penis and ejaculated into her hair and on her leg. Ele v. Commonwealth, No. 1602-18-1, 70 Va. App. 543, 829 S.E.2d 564, 2019 Va. App. LEXIS 162 (July 16, 2019).

Evidence was sufficient to establish an attempt to take indecent liberties with children where: (1) after passing the victims, defendant turned his car around in a driveway and returned to the location where they were standing; and (2) he then asked them twice if they had ever seen a "dick," and when they responded "no," asked if they wanted to see one; the latter inquiry reasonably could be interpreted as an attempt by defendant to entice the victims to approach his car and supported an inference that the crime would have been consummated had a neighbor not approached. Penley v. Commonwealth, No. 1880-97-2 (Ct. of Appeals Sept. 8, 1998).

The evidence was sufficient to support a conviction for attempting to take indecent liberties with a minor where the defendant established a plan to pick up the victim at a particular time and location and to take her to his house, the defendant then went to the designated location at the designated time, driving the vehicle that he had identified for the victim, and the defendant had clearly stated an intention to have the victim come to his house and engage in sexual acts. Bloom v. Commonwealth, 34 Va. App. 364, 542 S.E.2d 18, 2001 Va. App. LEXIS 91 , aff'd, 262 Va. 814 , 554 S.E.2d 84 (2001).

Adding "to whom he was not married" to indictment was permissible amendment. - Clearly, an element of the offense of indecent exposure is that the defendant not be married to the child. Supported by the reference to the statute, the indictments adequately informed the accused of the nature and character of the offenses charged and satisfied the requirement of a definite written statement. Thus, adding the words "to whom he was not married" was a permissible, although unnecessary, amendment. The amendment neither changed the nature or character of the offense charged nor resulted in surprise or prejudice to the accused. Cantwell v. Commonwealth, 2 Va. App. 606, 347 S.E.2d 523 (1986).

Lascivious need not be defined in jury instruction. - Because the Supreme Court of Virginia has not held that proof of one of the four factors of lasciviousness is a prerequisite to a finding of lascivious intent under § 18.2-370 , defendant's suggested supplemental language defining lascivious was not required to guide the jury regarding the issue of lascivious intent. Accordingly, the trial court did not err in denying defendant's proposed instruction. Mason v. Commonwealth, 49 Va. App. 39, 636 S.E.2d 480, 2006 Va. App. LEXIS 505 (2006).

Sentence was proper. - Sentence for taking indecent liberties with a minor was affirmed where, before passing sentence, the trial court emphasized the seriousness of the offense committed, addressed two of the arguments made by the defense in mitigation of the offense, explained that it did not feel either of those claims undermined the seriousness of the criminal acts committed against the victim, and gave reasons for exceeding the sentencing guidelines: "gravity of the offense" and "failure to truly accept responsibility"; contrary to defendant's contention, the record did not reflect that the trial court refused to consider any of the mitigating facts or circumstances presented on his behalf. The sentence imposed by the trial court was within the range set by the legislature. Harmon v. Commonwealth, No. 0694-11-4,, 2012 Va. App. LEXIS 107 (Ct. of Appeals Apr. 10, 2012).

Actual innocence not proven. - In his recantation, the minor victim stated that the prisoner never forced him to engage in any sexual act; thus, the prisoner claimed that he was actually innocent of the nolle prossed charges brought against him pursuant to §§ 18.2-67.1 , 18.2-67.2 , 18.2-67.3 , and 18.2-370 . However, the victim's statement did not demonstrate that the prisoner was actually innocent, since none of the nolle prossed charges required proof of force, threats, or intimidation where the victim was under the age of 13, or 15, or for the indecent liberties charges; thus, even if the victim, who was 11 at the time of the abuse, consented to engage in the alleged sexual acts, the conduct was still unlawful. DiCaprio-Cuozzo v. Johnson,, 2010 U.S. Dist. LEXIS 108702 (E.D. Va. Oct. 12, 2010).

Evidence sufficient to uphold conviction. - Evidence that defendant pulled his pants down, exposed his genitalia, and beckoned to a young girl to get her attention was sufficient to show that he intentionally exposed himself, and that he did so with lascivious intent in violation of § 18.2-370 . Campbell v. Commonwealth, 227 Va. 196 , 313 S.E.2d 402, 1984 Va. LEXIS 282 (1984).

Evidence that defendant exposed his genitals, while it was reasonably probable that he could be seen by children, with the intent to sexually arouse himself, was sufficient to uphold conviction for indecent liberties with a child under § 18.2-370 A 1; the distance between defendant's property and that of the complainant was irrelevant. Holley v. Commonwealth, 38 Va. App. 158, 562 S.E.2d 351, 2002 Va. App. LEXIS 240 (2002).

Appellate court's judgment that affirmed the trial court's judgment finding defendant guilty of two counts of taking indecent liberties with a child was affirmed, as the trial court's judgment was not shown to be plainly wrong or without evidence to support it, as the evidence was sufficient to show that defendant had the lascivious intent required to support convictions on those charges given the fact that he looked down at his groin and adjusted his clothing in such a way as to expose his penis to two young girls riding by on bicycles. Viney v. Commonwealth, 269 Va. 296 , 609 S.E.2d 26, 2005 Va. LEXIS 20 (2005).

There was sufficient evidence to support defendant's conviction for indecent liberties with a minor, because the evidence showed that defendant exposed himself with lascivious intent, both knowingly and intentionally, when he had his erect penis exposed underneath a public pier on a public beach in view of children playing in the surf nearby. Frenzel v. Commonwealth,, 2008 Va. App. LEXIS 274 (June 10, 2008).

Evidence was sufficient to support defendant's convictions involving the second victim for taking indecent liberties with a child under 14 years old pursuant to § 18.2-370 , forcible sodomy in violation of § 18.2-67.1 , and aggravated sexual battery of a child less than 13 years old pursuant to § 18.2-67.3 . Although the second victim could not pinpoint her exact age at the time of the incidents giving rise to the convictions, the trial court as the fact finder could determine that she was under the age of 13, as the second based her age on the relative dates of momentous events in her life, which gave the trial court a basis for determining she was less than 13 years old at the relevant times. Wood v. Commonwealth,, 2008 Va. App. LEXIS 451 (Oct. 7, 2008).

Evidence was sufficient to support defendant's convictions regarding taking indecent liberties with a child under 14 years old in violation of § 18.2-370 , forcible sodomy in violation of § 18.2-67.1 , and aggravated sexual battery of a child less than 13 years old pursuant to § 18.2-67.3 , all regarding the first victim. The trial court, as the fact finder because a bench trial was involved, could determine that the events that the first victim described occurred while still rejecting the first victim's timeline of the events all happening while she was in the fourth grade, which conflicted with the dates set forth in the indictment. Wood v. Commonwealth,, 2008 Va. App. LEXIS 451 (Oct. 7, 2008).

Defendant was properly convicted of computer solicitation of a minor in violation of § 18.2-374.3 and attempted indecent liberties with a minor in violation of § 18.2-370 because if the trial court erred in precluding defendant from inquiring of his witnesses what they said concerning the victim's age, any error was harmless, and defendant told the police after his arrest that he believed the victim was only fourteen to fifteen years old; that evidence plainly rebutted any inference that defendant thought he was pursuing an adult, and given defendant's admission that he thought the victim could have been fourteen, along with repeated references during internet chats to the victim's age of thirteen, any error did not affect the jury verdict. Mahmoudzedeh v. Commonwealth,, 2009 Va. App. LEXIS 268 (June 16, 2009).

The evidence was sufficient to convict defendant of feloniously taking indecent liberties with a minor, where the evidence included testimony from the victim and the fact that defendant was aroused, which was corroborated by a lifeguard. Robertson v. Commonwealth,, 2010 Va. App. LEXIS 75 (Feb. 23, 2010).

For those counts where the evidence showed that the victim saw defendant's penis, even if for a brief time, the evidence was sufficient to support defendant's convictions, but when there was no evidence that the victim saw defendant's penis, defendant's conviction was reversed. Farhoumand v. Commonwealth, 288 Va. 338 , 764 S.E.2d 95, 2014 Va. LEXIS 150 (Oct. 31, 2014).

Evidence was sufficient to convict defendant of two counts of carnal knowledge and two counts of indecent liberties because, notwithstanding any impeachment, the trial court accepted the 14-year-old victim's testimony of a sexual relationship between herself and defendant; the victim's testimony was supported by her pregnancy and subsequent abortion; the stepfather's and girlfriend's statements were admissible under the recent complaint exception to the hearsay rule as they were utilized to corroborate the victim's independent testimony; and defendant's statements regarding the victim's pregnancy and abortion constituted a waiver of his assertion that the Commonwealth's testimony on those issues was inadmissible. Pickett v. Commonwealth, No. 1320-14-2, 2015 Va. App. LEXIS 219 (July 21, 2015).

Evidence supported the circuit court's holding that defendant violated subdivision A (5) by inviting the minor victim to his car for the purpose of engaging in sexual activity because both the victim and her brother testified that defendant asked the victim to come to his car, and their testimony was not contradicted by any other evidence; the circumstances in which defendant asked the victim to come to his car suggested he intended to engage in sexual activity with her. Jackson v. Commonwealth,, 2016 Va. App. LEXIS 64 (Mar. 1, 2016).

Evidence was sufficient to support defendant's conviction for taking indecent liberties with a child because defendant directly proposed a sexual act listed in subdivision A (4) to the minor victim; the victim's brother testified that he heard defendant tell the victim that he wanted her to "sit on his face," and the circuit court's inference that defendant intended to direct the statement toward the victim and not her brother was reasonable and supported by the evidence. Jackson v. Commonwealth,, 2016 Va. App. LEXIS 64 (Mar. 1, 2016).

Evidence was sufficient to support defendant's conviction for indecent liberties with a child because defendant's proposal to buy the minor victim an expensive ice cream if defendant could smack the victim's bare bottom was a proposal to feel or fondle the sexual or genital parts of the victim. Bailey v. Commonwealth, No. 0370-16-1, 2017 Va. App. LEXIS 7 (Ct. of Appeals Jan. 17, 2017).

Sufficient evidence of custodial or supervisory relationship. For purposes of defendant's conviction for taking indecent liberties with a minor by a person in a custodial or supervisory relationship, defendant, who was a teacher at a vocational school, had the custodial or supervisory relationship that was statutorily required with the victim because he had been assigned responsibility for student safety and supervision on the sidewalk and in the cafeteria at certain times, which encompassed students not enrolled in his classes. Linnon v. Commonwealth, 287 Va. 92 , 752 S.E.2d 822, 2014 Va. LEXIS 8 (2014).

Evidence was sufficient to find that defendant maintained the required "custodial or supervisory relationship," etc. For purposes of defendant's conviction for taking indecent liberties with a minor by a person in a custodial or supervisory relationship, defendant, who was a teacher at a vocational school, "maintained" the relationship while the acts occurred, although the proscribed acts occurred at defendant's home, because the relationship continued, with a known past and an expected, imminent future. Linnon v. Commonwealth, 287 Va. 92 , 752 S.E.2d 822, 2014 Va. LEXIS 8 (2014).

Evidence was sufficient to sustain a conviction, etc. Narrative of the victim, who was deaf and mute, was sufficient to support a finding that defendant violated § 18.2-370.1 , taking indecent liberties with a child, when he told the victim to take off her clothes. Bynum v. Commonwealth, No. 0854-12-1, 2013 Va. App. LEXIS 170 (Ct. of Appeals June 4, 2013).

Evidence was insufficient to support a conviction under this section, where the victims asserted either that defendant tried to put his penis in their vaginas or that he touched their breasts and vaginas, but there was no evidence that he exposed his genitalia to them or made any propositions or suggestions of sexual intercourse. Mason v. Commonwealth, No. 0309-97-2 (Ct. of Appeals May 5, 1998).

Applied in Howard v. Commonwealth, 221 Va. 904 , 275 S.E.2d 602 (1981); Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986); Chrisman v. Commonwealth, 3 Va. App. 371, 349 S.E.2d 899 (1986); Frantz v. Commonwealth, 9 Va. App. 348, 388 S.E.2d 273 (1990); Nuckoles v. Commonwealth, 12 Va. App. 1083, 407 S.E.2d 355 (1991); Jackson v. Commonwealth, 29 Va. App. 418, 512 S.E.2d 838 (1999); Legault v. Commonwealth,, 2015 Va. App. LEXIS 206 (June 30, 2015).

CIRCUIT COURT OPINIONS

Applicability. - Circuit Court of the City of Norfolk, Virginia, is satisfied that §§ 18.1-215 and 18.2-370 are equivalent. When the current sexual assault complaint hearsay exception, codified at § 19.2-268.2 , states that it applies to charges for violations under § 18.2-370 , the Court therefore finds that it encompasses prior versions of that statute, including § 18.1-215. Commonwealth v. Silver, 91 Va. Cir. 401, 2015 Va. Cir. LEXIS 245 (Norfolk Dec. 2, 2015).

§ 18.2-370.01. Indecent liberties by children; penalty.

Any child over the age of thirteen years but under the age of eighteen who, with lascivious intent, knowingly and intentionally exposes his or her sexual or genital parts to any other child under the age of fourteen years who, measured by actual dates of birth, is five or more years the accused's junior, or proposes that any such child expose his or her sexual or genital parts to such person, shall be guilty of a Class 1 misdemeanor.

(1998, c. 825.)

Law review. - For an article relating to all published Virginia criminal law decisions between July 1, 1997 and July 1, 1998, see 32 U. Rich. L. Rev. 1091 (1998).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

§ 18.2-370.1. Taking indecent liberties with child by person in custodial or supervisory relationship; penalties.

  1. Any person 18 years of age or older who, except as provided in § 18.2-370 , maintains a custodial or supervisory relationship over a child under the age of 18 and is not legally married to such child and such child is not emancipated who, with lascivious intent, knowingly and intentionally (i) proposes that any such child feel or fondle the sexual or genital parts of such person or that such person feel or handle the sexual or genital parts of the child; or (ii) proposes to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361 ; or (iii) exposes his or her sexual or genital parts to such child; or (iv) proposes that any such child expose his or her sexual or genital parts to such person; or (v) proposes to the child that the child engage in sexual intercourse, sodomy or fondling of sexual or genital parts with another person; or (vi) sexually abuses the child as defined in subdivision 6 of § 18.2-67.10 is guilty of a Class 6 felony.
  2. Any person who is convicted of a second or subsequent violation of this section is guilty of a Class 5 felony, provided that (i) the offenses were not part of a common act, transaction or scheme; (ii) the accused was at liberty as defined in § 53.1-151 between each conviction; and (iii) it is admitted, or found by the jury or judge before whom the person is tried, that the accused was previously convicted of a violation of this section. (1982, c. 521; 1986, c. 503; 1991, c. 517; 2001, c. 840; 2005, c. 185; 2014, c. 794.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

For definition of "barrier crime" as including a conviction of taking indecent liberties with children as set out in § 18.2-370 or § 18.2-370.1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including taking indecent liberties with children as set out in § 18.2-370 or § 18.2-370.1 , or an equivalent offense in another state, see § 63.2-1726 .

The 2001 amendments. - The 2001 amendment by c. 840 added the subsection A designator and added subsection B.

The 2005 amendments. - The 2005 amendment by c. 185, in subsection A, inserted "except as provided in § 18.2-370 ," deleted "including but not limited to the parent, step-parent, grandparent, step-grandparent, or who stands in loco parentis with respect to such child" following "the age of 18," substituted "and such child is not emancipated" for "and" following "to such child," and made minor stylistic changes.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, in subsection A, inserted "anal intercourse, cunnilingus, fellatio, or anilingus" and "subdivision 6 of," substituted "is guilty" for "(6), shall be guilty," and made a minor stylistic change; and in subsection B substituted "is guilty" for "shall be guilty" and made a minor stylistic change.

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, §§ 81, 89.

CASE NOTES

This section is clear and unambiguous is requiring proof of a "custodial or supervisory relationship" over the victim. Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999).

"Custodial or supervisory relationship." - The "custodial or supervisory relationship" required under this section is not limited to those situations where legal custody exists. Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999).

In addition to the specific provision that such a relationship includes but is not limited to the parent, step-parent, grandparent or step-grandparent, the term also includes those individuals eighteen years or older who have a temporary, custodial relationship with a child, such as teachers, athletic instructors and baby-sitters. The child in each instance has been entrusted to the care and control of the supervising adult. Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999).

The "custodial or supervisory relationship" contemplated by this section is not limited to those situations where legal custody exists. The term also includes those individuals eighteen years or older who have a temporary, custodial relationship with a child, such as, teachers, athletic instructors and baby-sitters. DeAmicis v. Commonwealth, 29 Va. App. 751, 514 S.E.2d 788 (1999).

For a custodial or supervisory relationship to exist, the custodian or supervisor must hold some form of legal or actual authority over the child. Kisling v. Commonwealth, No. 0169-98-3 (Ct. of Appeals Dec. 22, 1998).

For a school security officer to be convicted of taking indecent liberties with a student at the school where he worked by a person in a custodial or supervisory relationship, it was not required that his victim's parents specifically entrust her to his care. Guda v. Commonwealth, 42 Va. App. 453, 592 S.E.2d 748, 2004 Va. App. LEXIS 84 (2004).

Sufficient evidence demonstrated defendant's custodial or supervisory relationship with defendant's victim because the evidence showed defendant implicitly agreed to the victim's mother's request to supervise the child while the mother was away by (1) staying at the mother's house until the mother's friend returned, and (2) ordering the mother's children to play outside and cooking dinner for the children. Nicholson v. Commonwealth,, 2011 Va. App. LEXIS 405 (Dec. 20, 2011).

Rational fact finder could have concluded beyond a reasonable doubt that defendant committed the offense while in a supervisory or custodial relationship over the minor, as defendant, with the permission of the victim's mother, was ostensibly driving the victim to church when she drove to another location where they had sexual intercourse. Padgett v. Commonwealth,, 2014 Va. App. LEXIS 205 (May 27, 2014).

The requirement of a custodial relationship is not merely a basis for enhancing punishment; rather, the custodial relationship the accused maintains with respect to the victim is a predicate to guilt. Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999).

Only those persons who maintain a custodial relationship with their victim can be convicted under this section; thus defendant's taking indecent liberties convictions were not lesser included offenses of aggravated sexual battery, of which he was also found guilty. Seibert v. Commonwealth, 22 Va. App. 40, 467 S.E.2d 838 (1996).

Athletic coach. - Evidence proved beyond a reasonable doubt that when defendant sexually abused the victim defendant maintained a custodial or supervisory relationship over the victim as the victim's athletic coach; having coached the victim's high school softball team defendant was an authority figure who oversaw and supervised the victim's athletic activities for two years, and as such was in a position of trust from a young person's perspective. Accordingly, the evidence was sufficient to sustain defendant's conviction for violating § 18.2-370.1 . Sadler v. Commonwealth, 51 Va. App. 17, 654 S.E.2d 313, 2007 Va. App. LEXIS 462 (2007), aff'd, 276 Va. 762 , 667 S.E.2d 783, 2008 Va. LEXIS 112 (2008).

Because defendant was the coach of the victim's softball team at the time defendant took indecent liberties with the victim, even though they were not involved in team-related activities at the time, the evidence was sufficient to support a finding that at the time of the incident, defendant maintained a custodial or supervisory relationship with the victim as required by § 18.2-370.1 . Sadler v. Commonwealth, 276 Va. 762 , 667 S.E.2d 783, 2008 Va. LEXIS 112 (2008).

School security officer. - School security officer exercised sufficient control and care over the students at the school where he worked, including his victim, for a jury to reasonably find beyond a reasonable doubt that he had the requisite custodial or supervisory relationship with the victim to allow his conviction for taking indecent liberties with her by a person in a custodial or supervisory relationship. Guda v. Commonwealth, 42 Va. App. 453, 592 S.E.2d 748, 2004 Va. App. LEXIS 84 (2004).

Teachers' assistant has supervisory or custodial relationship to student. - Defendant was properly convicted of violating § 18.2-370.1 as he clearly maintained a supervisory or custodial relationship over the victims at the time of defendant's proposals to the victims as a teacher's assistant in the victims' math class. Dunnings v. Commonwealth,, 2008 Va. App. LEXIS 107 (Mar. 4, 2008).

Temporary custodial relationship created. - Where mother entrusted her child to the care, custody and control of defendant for purposes of professional counseling, and at defendant's suggestion, mother agreed to photography and modeling sessions during which time the defendant demanded complete control of the child, circumstances created a temporary custodial relationship between defendant and child for the duration of each session. DeAmicis v. Commonwealth, 29 Va. App. 751, 514 S.E.2d 788 (1999).

Physical appearance sufficient to prove age. - There was sufficient evidence that defendant was 18 years old at the time of the offenses for purposes of §§ 18.2-370 and 18.2-370.1 as the trial court did not commit an impermissible act of judicial notice since it specifically referred to Jewell v. Commonwealth, 382 S.E.2d 259 (1989), and did not state that it took judicial notice of defendant's age; the trial judge's comments regarding defendant's physical appearance and the related conclusions regarding defendant's age came in the course of the trial court's lawful duty to determine the facts. Haley v. Commonwealth, No. 0877-06-2, 2007 Va. App. LEXIS 402 (Ct. of Appeals Nov. 6, 2007).

Exposure of buttocks. - Buttocks are not "sexual parts" within the meaning of this statute, but evidence properly presented might establish that one who exposes his or her buttocks exposed his or her genitalia as well. Moyer v. Commonwealth, 30 Va. App. 744, 520 S.E.2d 371 (1999).

Non-reproductive parts such as buttocks may be sexual if accompanied by the proper intent and, therefore, buttocks are "sexual parts" under this section if the accused, acting with the requisite lascivious intent, exposes his buttocks to a juvenile or proposes that a juvenile expose the juvenile's buttocks to the accused. Moyer v. Commonwealth, 33 Va. App. 8, 531 S.E.2d 580, 2000 Va. App. LEXIS 557 (July 25, 2000).

Delay of over a year in reporting abuse was credibly explained in a prosecution arising from the abuse of three sisters by their foster father, where defendant threatened one child and all feared separation if his actions were reported. Ingram, Sr. v. Commonwealth, No. 2720-96-2 (Ct. of Appeals March 3, 1998).

Lascivious intent. - The word "lascivious" describes a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite; circumstantial evidence of lasciviousness may include evidence that the defendant was sexually aroused, that he made gestures toward himself or to the victim, that he made improper remarks to the victim or that he asked the victim to do anything wrong. Moyer v. Commonwealth, 33 Va. App. 8, 531 S.E.2d 580, 2000 Va. App. LEXIS 557 (July 25, 2000).

Sufficient evidence demonstrated defendant's lascivious intent because the evidence showed defendant (1) touched the victim's genitals while defendant and the victim were alone in a bedroom, (2) asked the victim if the victim enjoyed pornography, (3) touched the victim's genitals after the victim objected, and (4) gave self-serving testimony which could be used as evidence of defendant's guilt. Nicholson v. Commonwealth,, 2011 Va. App. LEXIS 405 (Dec. 20, 2011).

No right to have psychiatric exam of child victim. - Trial court judge lacked authority to order a medical examination of the complaining witness and, therefore, did not err by denying defendant's motion for a psychiatric examination of the child victim, namely his daughter, though, as a matter of law, the trial court judge erred by denying the motion for incorrect reasons. Nobrega v. Commonwealth,, 2005 Va. App. LEXIS 189 (May 10, 2005), aff'd, 271 Va. 508 , 628 S.E.2d 922 (2006).

In a prosecution for sexual abuse of a child in violation of § 18.2-370.1 , the trial court properly denied defendant's motion for a psychiatric or psychological evaluation of the complaining witness, as no Virginia statute or rule authorized the trial court to do so, even where the witness had a history of mental illness and her testimony was uncorroborated. Nobrega v. Commonwealth, 271 Va. 508 , 628 S.E.2d 922, 2006 Va. LEXIS 48 (2006).

Licensed professional counselor permitted to testify as to post-traumatic stress disorder of child victim. - In a prosecution for indecent liberties with a child in defendant's custody and object sexual penetration, the trial court did not abuse its discretion by allowing an expert, who was also a licensed professional counselor, to give testimony regarding a psychiatric diagnosis of the victim of sexual abuse, as the expert was both: (1) permitted by state law; and (2) qualified by her training and experience to testify about post-traumatic stress disorder. Fitzgerald v. Commonwealth, 48 Va. App. 271, 630 S.E.2d 337, 2006 Va. App. LEXIS 249 (2006), aff'd, 273 Va. 596 , 643 S.E.2d 162, 2007 Va. LEXIS 63 (2007).

Defendant's membership in the North American Man-Boy Love Association and pornographic materials in his possession at the time of his arrest were admissible in order to show lascivious intent. Smith v. Commonwealth, No. 1546-97-4 (Ct. of Appeals Dec. 1, 1998).

Possession of pornography admissible. - Where defendant was charged with taking indecent liberties with his six-year-old stepdaughter, his statement that he owned pornographic videos was relevant as it heightened the likelihood that the child told the truth when she testified that she had watched such videos with him; the trial court properly found that the probative value of the statement outweighed its potential prejudicial effect. Croxton v. Commonwealth,, 2005 Va. App. LEXIS 166 (Apr. 26, 2005).

Proof of use of force not required. - Because the Commonwealth was not required to prove use of force for purposes of defendant's convictions for custodial indecent liberties, the trial court did not err in denying defendant's motion to strike. Quyen Vinh Phan Le v. Commonwealth, 65 Va. App. 66, 774 S.E.2d 475, 2015 Va. App. LEXIS 229 (2015).

Admission of evidence. - Trial court did not err by admitting evidence of child pornography found on defendant's computer because it was relevant to show defendant's conduct or attitude toward the victim, as she alleged defendant showed pornographic movies involving naked adults on the same computer while he assaulted her, to prove motive or method of committing the sexual assaults, as evidence of defendant's specific intent to engage in sex with a minor, and to corroborate the victim's allegations. Kenner v. Commonwealth, 71 Va. App. 279, 835 S.E.2d 107, 2019 Va. App. LEXIS 282 (2019), aff'd, 299 Va. 414 , 854 S.E.2d 493 (Va. 2021).

Commonwealth of Virginia's evidence of the titles of the child pornography downloads found on defendant's desktop computer was properly admitted at trial because the evidence was relevant to show defendant's attitude and conduct towards the minor victim, to prove motive or method of committing the sexual assault, and to prove the elements of the offense of custodial sexual abuse. Furthermore, the legitimate probative value of the evidence received by the trial court outweighed its incidental prejudice to defendant. Kenner v. Commonwealth, 299 Va. 414 , 854 S.E.2d 493, 2021 Va. LEXIS 6 (2021).

Sufficient evidence of custodial or supervisory relationship. - Where evidence showed that by inviting the two minor victims to his home to watch movies with their mother's permission, defendant: (1) assumed responsibility for them; and (2) had the authority to monitor and direct the victims' activities while they remained in his home, said evidence was sufficient to prove that he exercised a custodial or supervisory relationship over them; further, as the sole adult alone in his home with the victims, defendant tacitly agreed he would oversee their safety and well-being while they were in his presence. Beazley v. Commonwealth, No. 2505-03-2, 2005 Va. App. LEXIS 76 (Ct. of Appeals Feb. 22, 2005).

Where defendant, as an adult and parent hosting a 14-year old girl overnight in his home to baby sit his children, was responsible for the control of the victim's safety and well-being, and thus stood in loco parentis to the victim when he sexually assaulted her, the Commonwealth presented sufficient evidence showing that defendant was in a custodial or supervisory relationship with said victim; whether the victim's mother explicitly entrusted her to defendant's care and supervision was not dispositive. Marchioli-Acra v. Commonwealth, No. 0671-04-2, 2005 Va. App. LEXIS 101 (Ct. of Appeals Mar. 15, 2005).

Because defendant was the victim's employer, defendant maintained a "supervisory" relationship over the victim; therefore, based on defendant's admission of inappropriately touching and manipulating the victim, the trial court properly convicted defendant of taking indecent liberties with a child over whom defendant maintained a custodial or supervisory relationship. Gilbert v. Commonwealth, 47 Va. App. 266, 623 S.E.2d 428, 2005 Va. App. LEXIS 518 (2005).

For purposes of defendant's conviction for taking indecent liberties with a minor by a person in a custodial or supervisory relationship, defendant, who was a teacher at a vocational school, had the custodial or supervisory relationship that was statutorily required with the victim because he had been assigned responsibility for student safety and supervision on the sidewalk and in the cafeteria at certain times, which encompassed students not enrolled in his classes. Linnon v. Commonwealth, 287 Va. 92 , 752 S.E.2d 822, 2014 Va. LEXIS 8 (2014).

Evidence was sufficient to find that defendant was in a custodial or supervisorial relationship with the victim when the offense occurred, as defendant testified that he shared in the responsibility for control of the victim's care and custody when she was in his home, including the night of the offense, and, during the time of the offense, defendant was the only adult present and was aware the victim was left in his care Taylor v. Commonwealth,, 2015 Va. App. LEXIS 368 (Dec. 8, 2015).

Defendant was properly convicted of indecent liberties with a minor by a custodian because the evidence established that defendant had both express and implied power to direct or control the actions of the victim where defendant's attempt to befriend the victim by proposing they go out together socially and the offer to teach the victim a job skill evinced a predatory relationship in which opportunities arose to exploit the victim, the victim was dependent on defendant to return him to his uncle's house inasmuch as the victim could not drive, was unfamiliar with the area, and, while not a young child, he was a foreigner who had been in the country only a short time, and likely spoke little, if any, English. Grandados v. Commonwealth, No. 1241-16-4, 2017 Va. App. LEXIS 285 (Nov. 14, 2017).

Evidence was insufficient to prove that the defendant had a custodial or supervisory relationship, etc. with the victim where the victim lived with the defendant as a guest after she was evicted from her apartment after the landlord learned that her mother was in prison and that she was living in the apartment unsupervised. Kisling v. Commonwealth, No. 0169-98-3 (Ct. of Appeals Dec. 22, 1998).

Evidence was insufficient to support defendant's conviction for taking indecent liberties with a child because he did not maintain the "supervisory relationship" with the victim; the aspect of defendant's relationship with the victim that most strongly showed control was sexual activity, but no precedent permitted the Commonwealth to use the sexual proposals to prove a supervisory relationship, and that sort of control was not deployed in furtherance of the victim's safety and well-being. Hutton v. Commonwealth, 66 Va. App. 714, 791 S.E.2d 750 (2016).

Evidence was sufficient to find that defendant maintained the required "custodial or supervisory relationship" over the child where the defendant was the only adult present during trips from church. He had the responsibility for and control of the victim's safety and well-being while she was in his care, and as such, his contact with the victim was in the nature of a baby-sitter, i.e., one entrusted with the care of the child for a limited period of time. Krampen v. Commonwealth, 29 Va. App. 163, 510 S.E.2d 276 (1999).

Juvenile was under the care, custody and control of the defendant where her mother entrusted her to the defendant for the purposes of professional counseling, the defendant demanded complete control of the juvenile free from questions or interference by the mother, and he was alone with the juvenile during his sessions with her. DeAmicis v. Commonwealth, 31 Va. App. 437, 524 S.E.2d 151 (2000).

For purposes of defendant's conviction for taking indecent liberties with a minor by a person in a custodial or supervisory relationship, defendant, who was a teacher at a vocational school, "maintained" the relationship while the acts occurred, although the proscribed acts occurred at defendant's home, because the relationship continued, with a known past and an expected, imminent future. Linnon v. Commonwealth, 287 Va. 92 , 752 S.E.2d 822, 2014 Va. LEXIS 8 (2014).

Evidence was sufficient to sustain a conviction where the victims testified they had suffered abuse from defendant, defendant denied abusing them, and the court, after due consideration, determined that the Commonwealth had proved its case beyond a reasonable doubt. Ingram, Sr. v. Commonwealth, No. 2720-96-2 (Ct. of Appeals March 3, 1998).

There was sufficient evidence to find that defendant was guilty of rape, forcible sodomy, and indecent liberties with a child for acts upon defendant's wife's four-year-old cousin because the evidence supported the victim's account of the events and defendant did have an opportunity to commit the acts on at least two occasions; the victim gave her foster mother a substantially similar account when she initially made her complaint, the victim's testimony was consistent with a drawing she did at the psychologist's instruction, and the medical evidence showed that the victim was a sexually abused child as her hymen was consistent with a painful penetrating injury. Johnson v. Commonwealth, 40 Va. App. 605, 580 S.E.2d 486, 2003 Va. App. LEXIS 303 (2003).

In a prosecution for sexual abuse of a child, the child's detailed account of two acts of sexual intercourse was sufficient to convict, despite minor inconsistencies in her testimony, her history of mental illness, and the lack of corroborating physical evidence. Nobrega v. Commonwealth, 271 Va. 508 , 628 S.E.2d 922, 2006 Va. LEXIS 48 (2006).

Evidence that defendant had a long standing relationship with the victim's family and asserted authority over the victim, showing that defendant maintained a custodial or supervisory relationship with the victim, and that defendant admitted touching the victim's erect penis out of some sort of morbid curiosity was sufficient to support a conviction for custodial indecent liberties, in violation of § 18.2-370.1 . Kolesnikoff v. Commonwealth, 54 Va. App. 396, 679 S.E.2d 559, 2009 Va. App. LEXIS 342 (2009).

Narrative of the victim, who was deaf and mute, was sufficient to support a finding that defendant violated § 18.2-370.1 , taking indecent liberties with a child, when he told the victim to take off her clothes. Bynum v. Commonwealth, No. 0854-12-1, 2013 Va. App. LEXIS 170 (Ct. of Appeals June 4, 2013).

Evidence was sufficient to convict defendant of two counts of rape, two counts of carnal knowledge, five counts of custodial indecent liberties with a minor, and one count of manufacturing child pornography because the victim testified that defendant had vaginal intercourse with her three or four times when she was 11 and that he continued to have vaginal intercourse with her every year, with increasing frequency after she turned 13; she testified that defendant set up a camera, they engaged in vaginal intercourse, and the victim turned off the camera; corroboration of the victim's testimony was not needed to uphold defendant's convictions; and the victim's testimony was not so inherently incredible as to render it unworthy of belief. Harris v. Commonwealth,, 2014 Va. App. LEXIS 342 (Oct. 14, 2014).

Defendant's convictions for indecent custodial liberties with a child and contributing to the delinquency of a minor were affirmed as the victim was not inherently incredible because nothing in the victim's testimony rendered it so contrary to human experience as to render it unworthy of belief. Jones v. Commonwealth, No. 1151-19-2, 2020 Va. App. LEXIS 164 (June 2, 2020).

Sufficient evidence of lascivious intent. - Although the evidence of any particular offense, standing alone, might have been insufficient to establish that the defendant acted with lascivious intent, his course of conduct in using his position as an adult role model to gain the trust of two boys and establish close personal relationships with them, coupled with detailed diary accounts of the defendant's repeated nude paddlings, nude wrestling and other encounters with these children and the testimony of one of the boys that the defendant was sexually aroused during two of the boy's encounters with him, was sufficient to support a finding that the defendant acted with the requisite lascivious intent in exposing his sexual or genital parts to both boys or proposing that they expose their sexual or genital parts to him. Moyer v. Commonwealth, 33 Va. App. 8, 531 S.E.2d 580, 2000 Va. App. LEXIS 557 (July 25, 2000).

Evidence held irrelevant to issue of intent. - Testimony of criminal defendant's daughter that defendant allegedly forced her to perform a sex act on him 20 years earlier was irrelevant to show that defendant had "lascivious intent" under this section, where he was charged with taking indecent liberties with a minor over whom he maintained a custodial or supervisory relationship, as no causal relationship or logical connection existed between the earlier incident and the current charge; thus, such testimony should not have been admitted, was more prejudicial than probative, and was impermissible prior bad act evidence. Quinones v. Commonwealth, 35 Va. App. 634, 547 S.E.2d 524, 2001 Va. App. LEXIS 337 (2001).

Testimony of detective that videotapes seized from defendant's home during search were pornographic was irrelevant to show that defendant had "lascivious intent" under this section, where he was charged with taking indecent liberties with a minor over whom he maintained a custodial or supervisory relationship, as no causal relationship or logical connection existed between that characterization and the current charge; thus, such testimony should not have been admitted, was more prejudicial than probative, and was immaterial to the issue of criminal intent. Quinones v. Commonwealth, 35 Va. App. 634, 547 S.E.2d 524, 2001 Va. App. LEXIS 337 (2001).

Amendment of charge allowed. - The Commonwealth was properly permitted to amend the indictment charging defendant with taking indecent liberties with a child, from one requiring proof of a "supervisory relationship" to another which did not, since the amendment did not add elements to the charges or otherwise jeopardize his opportunity to adequately defend himself, and defendant already had proper notice of the essential elements from the initial charge. Bottenfield v. Commonwealth, 25 Va. App. 316, 487 S.E.2d 883 (1997).

Because the custodial indecent liberties statute had a similarity of purpose and subject matter as the carnal knowledge statute, both indictments charged defendant with sexually abusing a minor victim, the evidence necessary to prove criminal conduct under both statutes was identical, and the evidence revealed that, on more than one occasion, defendant put the victim's penis in his mouth, the amendment to the indictment did not change the nature or character of the offense charged, and the trial court properly permitted the Commonwealth to amend the indictment of carnal knowledge to custodial indecent liberties. Jones v. Commonwealth, No. 1151-19-2, 2020 Va. App. LEXIS 164 (June 2, 2020).

Sex offender reclassification. - Amendment of former § 19.2-298.1 that reclassified a violation of § 18.2-370.1 as a "sexually violent offense" and changed the reregistration requirements did not violate a sex offender's equal protection rights as subsection A of § 9.1-901 provided that the registration requirements applied to all persons convicted of an offense set out in § 9.1-902 "on or after July 1, 1994," and the registration distinction based on the timing of the conviction asserted by the offender did not exist. McCabe v. Commonwealth, 274 Va. 558 , 650 S.E.2d 508, 2007 Va. LEXIS 112 (2007).

Amendment of former § 19.2-298.1 that reclassified a violation of § 18.2-370.1 as a "sexually violent offense" and changed the reregistration requirements did not violate a sex offender's procedural due process rights as: (1) a "sexually violent offense" under the Virginia statute was based solely on the nature of the crime, not on a determination of current dangerousness; (2) § 9.1-902 specifically defined the term "sexually violent offense" for purposes of the civil registry scheme, and § 18.2-370.1 did not incorporate the term "sexually violent offense," nor did it incorporate any other descriptive term, such as "sexual offense"; (3) it was inaccurate for the offender to claim the offender was convicted of only a "sexual offense" as the offender was convicted of a violation of § 18.2-370.1, and that conviction was the only fact relevant to the classification determination; and (4) the offender failed to allege that a hearing on the reclassification would have established facts relevant to the Virginia legislature's statutory scheme. McCabe v. Commonwealth, 274 Va. 558 , 650 S.E.2d 508, 2007 Va. LEXIS 112 (2007).

Amendment of former § 19.2-298.1 that reclassified a violation of § 18.2-370.1 as a "sexually violent offense" and changed the reregistration requirements did not violate a sex offender's substantive due process rights as a personal appearance was not required for a periodic reregistration, subsection A of § 9.1-909 allowed the offender to petition for relief from the 90-day reregistration requirement, the lifetime quarterly reregistration requirement was not a liberty interest specially protected by the Due Process Clause, and the offender had no recognized fundamental right to rely on the civil legislative scheme in existence at the time of the offender's guilty plea. McCabe v. Commonwealth, 274 Va. 558 , 650 S.E.2d 508, 2007 Va. LEXIS 112 (2007).

Applied in Sutton v. Commonwealth, 228 Va. 654 , 324 S.E.2d 665 (1985); Kauffman v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989); Velasquez-Lopez v. Clarke, 290 Va. 443 , 778 S.E.2d 504, 2015 Va. LEXIS 167 (2015); Haas v. Commonwealth, 71 Va. App. 1, 833 S.E.2d 886, 2019 Va. App. LEXIS 237 (2019).

CIRCUIT COURT OPINIONS

Section 8.01-221 does not create cause of action. - Demurrer filed by a counselor and his employer as to the count of patient's complaint alleging taking indecent liberties with a minor while the accused is in a supervisory relationship was sustained because the factual allegations could be properly included in a claim for sexual assault and battery, but they did not generate a separate civil claim for a violation of § 18.2-370.1 ; § 8.01-221 does not create, or recognize, that a cause of action exists for a violation of the indecent liberties statute in the criminal code. B.E.L. v. Price, 81 Va. Cir. 391, 2010 Va. Cir. LEXIS 138 (Culpeper Dec. 2, 2010).

§ 18.2-370.2. Sex offenses prohibiting proximity to children; penalty.

  1. "Offense prohibiting proximity to children" means a violation or an attempt to commit a violation of (i) subsection A of § 18.2-47 , clause (ii) or (iii) of § 18.2-48 , subsection B of § 18.2-361 , or subsection B of § 18.2-366 , where the victim of one of the foregoing offenses was a minor, or (ii) clause (iii) of subsection A of § 18.2-61 , § 18.2-63 or 18.2-64.1 , subdivision A 1 of § 18.2-67.1 , subdivision A 1 of § 18.2-67.2 , subdivision A 1 or A 4 (a) of § 18.2-67.3 , § 18.2-370 or 18.2-370.1 , clause (ii) of § 18.2-371 , or § 18.2-374.1 , 18.2-374.1 :1 or 18.2-379 . As of July 1, 2006, "offense prohibiting proximity to children" includes a violation of § 18.2-47 2.1 when the offense requiring registration was one of the foregoing offenses.
  2. Every adult who is convicted of an offense prohibiting proximity to children when the offense occurred on or after July 1, 2000, shall as part of his sentence be forever prohibited from loitering within 100 feet of the premises of any place he knows or has reason to know is a primary, secondary or high school. In addition, every adult who is convicted of an offense prohibiting proximity to children when the offense occurred on or after July 1, 2006, shall as part of his sentence be forever prohibited from loitering within 100 feet of the premises of any place he knows or has reason to know is a child day program as defined in § 22.1-289.02.
  3. Every adult who is convicted of an offense prohibiting proximity to children, when the offense occurred on or after July 1, 2008, shall as part of his sentence be forever prohibited from going, for the purpose of having any contact whatsoever with children who are not in his custody, within 100 feet of the premises of any place owned or operated by a locality that he knows or should know is a playground, athletic field or facility, or gymnasium.
  4. Any person convicted of an offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof, similar to any offense set forth in subsection A shall be forever prohibited from loitering within 100 feet of the premises of any place he knows or has reason to know is a primary, secondary, or high school or any place he knows or has reason to know is a child day program as defined in § 22.1-289.02. In addition, he shall be forever prohibited from going, for the purpose of having any contact whatsoever with children who are not in his custody, within 100 feet of the premises of any place owned or operated by a locality that he knows or has reason to know is a playground, athletic field or facility, or gymnasium.
  5. A violation of this section is punishable as a Class 6 felony.

    (2000, c. 770; 2006, cc. 857, 914; 2008, c. 579; 2017, c. 507; 2020, cc. 860, 861.)

Editor's note. - Acts 2020, cc. 860 and 861, cl. 3 provides: "That the provisions of the first and second enactments of this act shall become effective on July 1, 2021, except that § 22.1-289.04 of the Code of Virginia, as created by this act, shall become effective in due course."

The 2006 amendments. - The 2006 amendments by cc. 857 and 914 are identical, and added the last sentence to subsection A; and added the last sentence to subsection B.

The 2008 amendments. - The 2008 amendment by c. 579 inserted the first paragraph in subsection C.

The 2017 amendments. - The 2017 amendment by c. 507, in subsection A, substituted "includes" for "shall include"; in subsection C, substituted "who" for "that"; and added subsection D.

The 2020 amendments. - The 2020 amendments by cc. 860 and 861, effective July 1, 2021, are identical, and substituted " § 22.1-289.02" for " § 63.2-100 " in the last sentence of subsection B and the first sentence of subsection D; and made stylistic changes.

Law review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

§ 18.2-370.3. Sex offenses prohibiting residing in proximity to children; penalty.

  1. Every adult who is convicted of an offense occurring on or after July 1, 2006, where the offender is more than three years older than the victim, of one of the following qualifying offenses: (i) clause (iii) of subsection A of § 18.2-61 , (ii) subdivision A 1 of § 18.2-67.1 , (iii) subdivision A 1 of § 18.2-67.2 , or (iv) any similar offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof, shall be forever prohibited from residing within 500 feet of the premises of any place he knows or has reason to know is a child day center as defined in § 22.1-289.02, or a primary, secondary, or high school. A violation of this section is a Class 6 felony. The provisions of this section shall only apply if the qualifying offense was done in the commission of, or as a part of the same course of conduct as, or as part of a common scheme or plan as a violation of (a) subsection A of § 18.2-47 or § 18.2-48 ; (b) § 18.2-89 , 18.2-90 , or 18.2-91 ; (c) § 18.2-51.2 ; or (d) any similar offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof.
  2. An adult who is convicted of an offense as specified in subsection A and has established a lawful residence shall not be in violation of this section if a child day center or a primary, secondary, or high school is established within 500 feet of his residence subsequent to his conviction.
  3. Every adult who is convicted of an offense occurring on or after July 1, 2008, where the offender is more than three years older than the victim, of one of the following qualifying offenses: (i) clause (iii) of subsection A of § 18.2-61 , (ii) subdivision A 1 of § 18.2-67.1 , (iii) subdivision A 1 of § 18.2-67.2 , or (iv) any similar offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof, shall be forever prohibited from residing within 500 feet of the boundary line of any place he knows is a public park when such park (a) is owned and operated by a county, city, or town, (b) shares a boundary line with a primary, secondary, or high school, and (c) is regularly used for school activities. A violation of this section is a Class 6 felony. The provisions of this section shall only apply if the qualifying offense was done in the commission of, or as a part of the same course of conduct as, or as part of a common scheme or plan as a violation of (1) subsection A of § 18.2-47 or § 18.2-48 ; (2) § 18.2-89 , 18.2-90 , or 18.2-91 ; (3) § 18.2-51.2 ; or (4) any similar offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof.
  4. An adult who is convicted of an offense as specified in subsection C and has established a lawful residence shall not be in violation of this section if a public park that (i) is owned and operated by a county, city, or town, (ii) shares a boundary line with a primary, secondary, or high school, and (iii) is regularly used for school activities, is established within 500 feet of his residence subsequent to his conviction.
  5. The prohibitions in this section predicated upon an offense similar to any offense set forth in this section under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof, shall apply only to residences established on and after July 1, 2017.

    (2006, cc. 857, 914; 2008, c. 726; 2017, c. 507; 2020, cc. 860, 861.)

Editor's note. - Acts 2020, cc. 860 and 861, cl. 3 provides: "That the provisions of the first and second enactments of this act shall become effective on July 1, 2021, except that § 22.1-289.04 of the Code of Virginia, as created by this act, shall become effective in due course."

The 2008 amendments. - The 2008 amendment by c. 726 added subsections C and D.

The 2017 amendments. - The 2017 amendment by c. 507, in subsection A, added clauses (iv) and (d); in subsection C, added clauses (iv) and (4); added subsection E; and made minor stylistic changes.

The 2020 amendments. - The 2020 amendments by cc. 860 and 861, effective July 1, 2021, are identical, and in subsection A, first sentence, substituted " § 22.1-289.02" for " § 63.2-100 " and made stylistic changes.

§ 18.2-370.4. Sex offenses prohibiting working on school property; penalty.

  1. Every adult who has been convicted of an offense occurring on or after July 1, 2006, where the offender is more than three years older than the victim, of one of the following qualifying offenses: (i) clause (iii) of subsection A of § 18.2-61 , (ii) subdivision A 1 of § 18.2-67.1 , (iii) subdivision A 1 of § 18.2-67.2 , or (iv) any similar offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof, shall be forever prohibited from working or engaging in any volunteer activity on property he knows or has reason to know is a public or private elementary or secondary school or child day center property. A violation of this section is punishable as a Class 6 felony. The provisions of this section shall only apply if the qualifying offense was done in the commission of, or as a part of the same course of conduct of, or as part of a common scheme or plan as a violation of (a) subsection A of § 18.2-47 or 18.2-48 ; (b) § 18.2-89 , 18.2-90 , or 18.2-91 ; (c) § 18.2-51.2 ; or (d) any similar offense under the laws of any foreign country or any political subdivision thereof, or the United States or any political subdivision thereof.
  2. An employer of a person who violates this section, or any person who procures volunteer activity by a person who violates this section, and the school or child day center where the violation of this section occurred, are immune from civil liability unless they had actual knowledge that such person had been convicted of an offense listed in subsection A.

    (2006, cc. 853, 857, 914; 2017, c. 507.)

The number of this section was assigned by the Virginia Code Commission, the number in Acts 2006, c. 853, having been § 18.2-370.3 .

The 2017 amendments. - The 2017 amendment by c. 507, in subsection A, added clauses (iv) and (d) and made minor stylistic changes.

§ 18.2-370.5. Offenses prohibiting entry onto school or other property; penalty.

  1. Every adult who is convicted of a Tier III offense, as defined in § 9.1-902 , shall be prohibited from entering or being present (i) during school hours, and during school-related or school-sponsored activities upon any property he knows or has reason to know is a public or private elementary or secondary school or child day center property; (ii) on any school bus as defined in § 46.2-100 ; or (iii) upon any property, public or private, during hours when such property is solely being used by a public or private elementary or secondary school for a school-related or school-sponsored activity.
  2. The provisions of clauses (i) and (iii) of subsection A shall not apply to such adult if (i) he is a lawfully registered and qualified voter, and is coming upon such property solely for purposes of casting his vote; (ii) he is a student enrolled at the school; or (iii) he has obtained a court order pursuant to subsection C allowing him to enter and be present upon such property, has obtained the permission of the school board or of the owner of the private school or child day center or their designee for entry within all or part of the scope of the lifted ban, and is in compliance with such school board's, school's or center's terms and conditions and those of the court order.
  3. Every adult who is prohibited from entering upon school or child day center property pursuant to subsection A may after notice to the attorney for the Commonwealth and either (i) the proprietor of the child day center, (ii) the Superintendent of Public Instruction and the chairman of the school board of the school division in which the school is located, or (iii) the chief administrator of the school if such school is not a public school, petition the circuit court in the county or city where the school or child day center is located for permission to enter such property. The court shall direct that the petitioner shall cause notice of the time and place of the hearing on his petition to be published once a week for two successive weeks in a newspaper meeting the requirements of § 8.01-324 . The newspaper notice shall contain a provision stating that written comments regarding the petition may be submitted to the clerk of court at least five days prior to the hearing. For good cause shown, the court may issue an order permitting the petitioner to enter and be present on such property, subject to whatever restrictions of area, reasons for being present, or time limits the court deems appropriate.
  4. A violation of this section is punishable as a Class 6 felony.

    (2007, cc. 284, 370; 2008, c. 781; 2010, c. 402; 2011, cc. 648, 796, 855; 2015, c. 688; 2020, c. 829.)

Editor's note. - Acts 2020, c. 829, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2008 amendments. - The 2008 amendment by c. 781 inserted "and during school-related and school-sponsored activities" following "during school hours" in subsection A.

The 2010 amendments. - The 2010 amendment by c. 402, in subsection A, inserted "has obtained the permission of the school board or of the owner of the private school or child day center or their designee for entry within all or part of the scope of the lifted ban," "such school board's, school's or center's"; in clause B (iii), deleted "the juvenile and domestic relations district court or"; and made stylistic changes.

The 2011 amendments. - The 2011 amendment by c. 648 substituted "prohibited from entering or being present during school hours, and shall be prohibited from entering or being present during school-related or school-sponsored activities" for "prohibited from entering and being present, during school hours, and during school-related and school sponsored activities" in the first sentence in subsection A.

The 2011 amendments by cc. 796 and 855 are identical, and in subsection A, inserted the clause (i) designator and added clause (ii); in subsection B, inserted the subsection designator, "The provisions of clauses (i) and (iii) of subsection A shall not apply to such adult if" at the beginning and "pursuant to subsection C"; redesignated subsection B as C; and transferred the last sentence of former subsection A to be new subsection D.

Subsection A is set out in the form above at the direction of the Virginia Code Commission.

The 2015 amendments. - The 2015 amendment by c. 688 in subsection C inserted "and the chairman of the school board" in clause (ii) of the first sentence, and added the second and third sentences.

The 2020 amendments. - The 2020 amendment by c. 829 substituted "Tier III" for "sexually violent" in subsection A.

Law review. - For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

CASE NOTES

Standing to bring federal claim. - Because plaintiff, classified as a sexually violent offender, alleged harm from not being able to access church property (due to Sunday schools) or the property of defendant school board under subsection A of § 18.2-370.5 , but she had not attempted to petition a state court (which she could have done anonymously), the board, or the churches, for access as provided in §§ 8.01-15.1 and 18.2-370.5 , she lacked standing to bring claims of constitutional violations under U.S. Const. amend. I and XIV, based on not being able to associate with the school community and not being able to attend churches of her choosing. Doe v. Va. Dep't of State Police, 713 F.3d 745, 2013 U.S. App. LEXIS 7403 (4th Cir. 2013), cert. denied, 134 S. Ct. 1538, 188 L. Ed. 2d 556, 2014 U.S. LEXIS 2190 (2014).

School board has authority to determine whether to allow convicted sex offender onto school property. - Circuit court erred in granting a convicted sex offender's petition for an order permitting him to enter onto city school property to attend school events involving his stepson pursuant to § 18.2-370.5 because the circuit court improperly divested the local school board of its authority under Va. Const., Art. VIII, § 7 to supervise public schools; subsection B of § 18.2-370.5 provides circuit courts and juvenile and domestic relations district courts the authority to remove the statutory ban imposed by subsection A of § 18.2-370.5, which prohibits a violent sex offender from entering onto school property, and implicitly leaves to a school board the ultimate decision whether to allow the convicted offender entry, and § 18.2-370.5 does not restrict the supervisory authority granted by Va. Const., Art. VIII, § 7 to local school boards to determine under what, if any, circumstances a previously convicted sex offender may enter onto school property. Commonwealth v. Doe, 278 Va. 223 , 682 S.E.2d 906, 2009 Va. LEXIS 88 (2009).

§ 18.2-370.6. Penetration of mouth of child with lascivious intent; penalty.

Any person 18 years of age or older who, with lascivious intent, kisses a child under the age of 13 on the mouth while knowingly and intentionally penetrating the mouth of such child with his tongue is guilty of a Class 1 misdemeanor.

(2008, c. 772.)

§ 18.2-371. Causing or encouraging acts rendering children delinquent, abused, etc.; penalty; abandoned infant.

Any person 18 years of age or older, including the parent of any child, who (i) willfully contributes to, encourages, or causes any act, omission, or condition that renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228 or (ii) engages in consensual sexual intercourse or anal intercourse with or performs cunnilingus, fellatio, or anilingus upon or by a child 15 or older not his spouse, child, or grandchild is guilty of a Class 1 misdemeanor. This section shall not be construed as repealing, modifying, or in any way affecting §§ 18.2-18 , 18.2-19 , 18.2-61 , 18.2-63 , and 18.2-347 .

If the prosecution under this section is based solely on the accused parent having left the child at a hospital or emergency medical services agency, it shall be an affirmative defense to prosecution of a parent under this section that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended emergency medical services agency that employs emergency medical services personnel, within the first 14 days of the child's life. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the child's safety.

(Code 1950, § 18.1-14; 1960, c. 358; 1975, cc. 14, 15; 1981, cc. 397, 568; 1990, c. 797; 1991, c. 295; 1993, c. 411; 2003, cc. 816, 822; 2006, c. 935; 2008, cc. 174, 206; 2014, c. 794; 2015, cc. 502, 503.)

Cross references. - As to jurisdiction of Juvenile and Domestic Relations District Court, see § 16.1-241.

For provision that records involving complaints of sexual abuse of a child, including the display of the child in sexually explicit visual material, as defined in § 18.2-374.1 , and contributing to the delinquency of a minor in violation of § 18.2-371 , be made available to the attorney for the Commonwealth and the local law-enforcement agency, see § 63.2-1503 D.

The 2003 amendments. - The 2003 amendments by cc. 816 and 822 are identical, and in the first paragraph substituted "18" for "eighteen" and "15" for "fifteen"; and added the second paragraph.

The 2006 amendments. - The 2006 amendment by c. 935 added the last sentence in the second paragraph.

The 2008 amendments. - The 2008 amendments by cc. 174 and 206 are identical, and deleted "18.2-66" following "18.2-63" in the first paragraph.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, in the first paragraph substituted "that" for "which," "is guilty" for "shall be guilty," inserted "or anal intercourse" and "or performs cunnilingus, fellatio, or anilingus upon or by," and made a minor stylistic change.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "emergency medical services agency" for "rescue squad" throughout the section and substituted "services personnel" for "technicians" preceding "within" in the second paragraph.

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For 2007 annual survey article, "Family and Juvenile Law," see 42 U. Rich. L. Rev. 417 (2007).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attempts & Solicitations, § 7; 9B M.J. Infants & Juveniles, § 90; 15 M.J. Rape & Other Sexual Offenses, § 23.

CASE NOTES

Not essential that accused caused the commission of the misdemeanor. - It is not an essential element of the offense that accused should have caused the prosecutrix to commit a misdemeanor. If he encouraged her to commit a misdemeanor, he was guilty of the statutory offense. Bibbs v. Commonwealth, 129 Va. 768 , 106 S.E. 363 (1921).

For a child to be "in need of services" as an element of this section, circumstances specified in either § 16.1-228 (i) or (ii) must have rendered court intervention essential to resolve the difficulty. DeAmicis v. Commonwealth, 29 Va. App. 751, 514 S.E.2d 788 (1999).

It is not an essential element of the offense under this section that the accused should have "caused" the juvenile to commit the misdemeanor. It is sufficient if he "encouraged" such commission. This is so because the prohibition in the section is in the disjunctive against any person who shall cause or encourage the commission of a misdemeanor. Hubbard v. Commonwealth, 207 Va. 673 , 152 S.E.2d 250 (1967).

Evidence that defendant encouraged smoking of marijuana insufficient. - The evidence was insufficient to support the conviction of the mother of a 15 year-old boy under this section where, although the mother knew her son and his friends smoked marijuana in the garage, there was no evidence that the mother affirmatively encouraged this activity and the mother attempted, although unsuccessfully and perhaps ineffectually, to discourage the activity. Peace v. Commonwealth, No. 2651-99-2, 2000 Va. App. LEXIS 725 (Ct. of Appeals Nov. 14, 2000).

Examples of "encouragement." - Where in a prosecution under this section accused admitted that he had carnal intercourse with the prosecutrix and was, therefore, a willing participant with her in the commission of the misdemeanor, such participation, in itself alone, encouraged the prosecutrix to commit such misdemeanor and made the accused guilty under the statute. Bibbs v. Commonwealth, 129 Va. 768 , 106 S.E. 363 (1921).

In a prosecution under this section for encouraging a child to commit a misdemeanor, namely, fornication, even if it were true that the prosecutrix made the first advance, that did not justify the accused in encouraging her to commit the misdemeanor by yielding to her solicitation. Bibbs v. Commonwealth, 129 Va. 768 , 106 S.E. 363 (1921).

Contributing to the delinquency of a minor. - Reasonable officer would have had a basis for suspecting that plaintiff visitor was contributing to the delinquency of a minor, pursuant to § 18.2-371 , because a stepfather had identified his missing stepson as one of the young men in the window of the house and the visitor's actions could have led a reasonable officer to believe that the visitor sought to unlawfully conceal the stepson from his concerned stepfather. Smith v. Ray,, 2011 U.S. App. LEXIS 2191 (4th Cir. Feb. 2, 2011).

Misdemeanor contributing to the delinquency of a minor by abuse or neglect does not require proof that the foreseeable risk resulted in actual harm to the child; this lesser crime, in part, is complete upon proof that the appellant knew or should have known that his or her intentional conduct involving his or her child created a substantial risk of injury. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

By the statute's clear language, an individual who willfully contributes to, encourages, or causes a child to engage in a criminal activity, where the child actually commits the crime, has committed the offense of contributing to the delinquency of a minor. Gibson v. Commonwealth, No. 0986-18-4, 2019 Va. App. LEXIS 174 (July 23, 2019).

Solicitation of oral sex. - By unsuccessfully soliciting oral sex from a minor, defendant willfully encouraged her to engage in a criminal act in violation of § 18.2-29 . As his solicitation was clearly designed to encourage her to commit that act, which would have rendered her delinquent under § 16.1-228, the evidence established that he contributed to the delinquency of a minor in violation of § 18.2-371 . MacDonald v. Commonwealth,, 2007 Va. App. LEXIS 7 (Jan. 9, 2007).

Compared to § 18.2-371.1 . - Felony child neglect conviction was upheld, as evidence of defendant's gross, wanton and willful conduct was presented by his act of brutally beating his mother in front of his eight-year-old son, leaving the son alone with his unconscious grandmother at night, and instructing his son not to call for help; the fact that the risks in doing so had not yet materialized did not mean that the risks were absent and did not serve to remove defendant's conduct from the prohibitions of the statute. Jones v. Commonwealth, No. 1670-03-1, 2004 Va. App. LEXIS 561 (Ct. of Appeals Nov. 16, 2004).

Defendant sufficiently preserved for review the claim that defendant could not be convicted of violating § 18.2-371 , misdemeanor child abuse and neglect, because defense counsel made numerous arguments that defendant had not been charged with violating it and it was not a lesser-included offense of § 18.2-371 .1, felony child abuse and neglect. Since the Commonwealth conceded that it was not a lesser-included offense and defendant had not procedurally defaulted the issue, the conviction had to be dismissed. Brown v. Commonwealth,, 2008 Va. App. LEXIS 94 (Feb. 26, 2008).

Conviction hereunder not necessarily basis for impeachment of witness. - A conviction under this section does not, as a matter of law, involve moral turpitude, so as to permit cross-examination thereof for impeachment purposes. Unless the record of conviction plainly shows that the specific act constituting the ground for the conviction is one involving moral turpitude, the fact of such conviction cannot be shown. Tasker v. Commonwealth, 202 Va. 1019 , 121 S.E.2d 459 (1961).

Use of excessive force during arrest. - Where an officer went to a house looking for a missing juvenile and an arrestee answered the door and alleged that the officer used excessive force, the officer was properly denied summary judgment based on qualified immunity as to the arrestee's excessive force claim because, inter alia, the officer at most had reason to suspect that the arrestee may be guilty of the misdemeanor of contributing to the delinquency of a minor, and the arrestee gave no indication that the arrestee was at all inclined to cause the officer any harm. Smith v. Ray, 781 F.3d 95, 2015 U.S. App. LEXIS 4391 (4th Cir. Mar. 18, 2015).

Proof of child abuse and neglect. - Mere possibility that the children could have been harmed does not meet the evidentiary threshold necessary to prove child abuse and neglect. Wilmer v. Commonwealth, No. 0654-16-3, 2017 Va. App. LEXIS 223 (Aug. 29, 2017).

Admissibility of evidence. - The particulars of statements made by the prosecutrix in a prosecution under this section, to police officers when taken from the house of accused, would be generally inadmissible. In the instant case, however, the accused had testified that the whole case was a conspiracy against him by the police, and this authorized the Commonwealth to introduce evidence in rebuttal tending to show that there had been no such conspiracy against the accused. But it is doubtful whether the Commonwealth should have been permitted to introduce the evidence of the policeman as to all of the details of the statement. Gottlieb v. Commonwealth, 126 Va. 807 , 101 S.E. 872 (1920).

Once an officer observed the seemingly underage individuals holding beer bottles and then fleeing from the police presence, he had probable cause to believe that a crime was being committed. Because the development of probable cause and the creation of the exigencies were virtually contemporaneous, the officer had no meaningful opportunity in which to obtain a search warrant for the property before exigent circumstances necessitated his further intrusion onto the premises; thus, the trial court did not err in concluding that the officer had both probable cause and exigent circumstances sufficient to justify his warrantless entry into defendant's backyard, the denial of his motion to suppress was affirmed, and his convictions for contributing to the delinquency of a minor were affirmed. Robinson v. Commonwealth, 47 Va. App. 533, 625 S.E.2d 651, 2006 Va. App. LEXIS 54 (2006).

On the night of a party, defendant impliedly consented to have members of the public, including law-enforcement officers, enter her driveway, and the officer that did enter her driveway did not exceed the scope of that implied consent because, by driving up the driveway and parking in the parking area, he went no further than an ordinary member of the public would have gone in an attempt to contact the occupants of the premises; accordingly, because defendant extended an implied invitation to enter the property, and because the officer did not exceed the scope of that implied consent, the Fourth Amendment had not been implicated at the point in time when the officer observed the individuals drinking beer and then fleeing into the woods. Because the officer was legitimately present on the property when he viewed the illegal activity of minors drinking alcohol, and because defendant presented no further arguments in support of her position that the trial court should have granted her motion to suppress, the trial court did not err in denying the motion to suppress; thus, her convictions for contributing to the delinquency of a minor were affirmed. Robinson v. Commonwealth, 47 Va. App. 533, 625 S.E.2d 651, 2006 Va. App. LEXIS 54 (2006).

Defendant was entitled to a new trial for contributing to the delinquency of a minor because the admission of an investigator's testimony and a photograph of defendant's daughter's driver's license was not harmless where the investigator lacked personal knowledge of the daughter's age and based his testimony on the photograph, the testimony was hearsay as it was offered for its truth, the Commonwealth did not advance any hearsay exception under which the testimony was admissible, and the testimony was the only evidence proving the age element of the crime. McCarter v. Commonwealth,, 2014 Va. App. LEXIS 404 (Dec. 16, 2014).

Character of prosecuting witness province of jury. - In the instant case defendant was charged with unlawfully and knowingly permitting prosecutrix, a child under the age of 18 years, to remain in his boarding house for the commission and permitting and encouraging her to commit immoral and vicious acts. Accused asked for an instruction that in cases of this character the testimony of the prosecuting witness should be cautiously scrutinized. The court properly refused this instruction, because it invaded the province of the jury. Gottlieb v. Commonwealth, 126 Va. 807 , 101 S.E. 872 (1920).

A third party does not have a claim for relief against seller of intoxicating beverages for injuries sustained as a result of the intoxication of the vendor's patron, even if the patron is a minor. Byrd v. Gate Petro. Co., 845 F.2d 86 (4th Cir. 1988).

Conduct which renders a child abused and neglected as defined in § 16.1-228 is sufficient for a conviction under this statute and defendant's acts in photographing a juvenile's sexual or genital parts clearly constituted abusive and neglectful behavior. DeAmicis v. Commonwealth, 31 Va. App. 437, 524 S.E.2d 151 (2000).

Trial court properly denied the instruction on contributing to the delinquency of a minor since it was not a lesser included offense of aggravated sexual battery; the offense of aggravated sexual battery does not require proof that the defendant was 18 years of age or older, and thus, all of the elements of this section are not included within the offense of § 18.2-67.3 . Kauffman v. Commonwealth, 8 Va. App. 400, 382 S.E.2d 279 (1989).

Proposed instruction denied. - Trial court did not abuse its discretion when it refused to give defendant's proposed instruction on the definition of a "person responsible for the care of a child," a phrase that did not appear in the statutes applicable to the offense of contributing to the delinquency of a minor, because the jury was properly instructed on the elements of the offense and all necessary definitions. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Advertisements for telephone sex lines. - Evidence supported a conviction where the defendant threw magazines at minors which invited them to engage in unlawful sexual acts with the pictured models, notwithstanding that their primary purpose was to advertise telephone sex lines and that the invitations to engage in unlawful sexual acts were fantasies designed to market the telephone sex lines. Hartman v. Commonwealth, No. 0569-98-3 (Ct. of Appeals Mar. 30, 1999).

Evidence sufficient to sustain conviction. - Defendant's indifference in the face of overwhelming evidence of inappropriate and illegal sexual contact between defendant's daughter and older sons led directly to the older son being found delinquent and the younger son and the daughter being found abused and neglected; the evidence, consequently, was sufficient to sustain defendant's convictions on three counts of contributing to the delinquency of a minor. Kilby v. Commonwealth, No. 1426-06-4, 2007 Va. App. LEXIS 357 (Ct. of Appeals Oct. 2, 2007).

Evidence was sufficient to convict defendant of consensual intercourse with a child 15 years or older because the victim, who was 17 years old, testified that she had consensual sexual intercourse with defendant on the date in question. Mervin-Frazier v. Commonwealth,, 2010 Va. App. LEXIS 134 (Apr. 6, 2010).

Evidence was sufficient for a rational trier of fact to conclude that defendant contributed to the delinquency of a minor. A jury could reasonably conclude that the facts indicated that defendant created the situation that caused or encouraged the minor to commit a crime, and, therefore, be delinquent. Wright v. Commonwealth,, 2014 Va. App. LEXIS 376 (Nov. 18, 2014), aff'd in part and rev'd in part, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016).

Facts were sufficient to prove the willfulness required to support defendant's conviction for contributing to the delinquency of a minor because defendant knew or should have known that her intentional actions created a substantial risk of harm to her young son; it was reasonable for the jury to conclude that defendant knew or should have known that her intentional actions in leaving her son in the car subjected him to a substantial risk of harm. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Facts provided the jury with ample evidence to conclude that defendant left her child either with a stranger or unattended for an hour and that the situation constituted an "unreasonable absence" from her young son because defendant left her child for about an hour while she was inside a grocery store, and no evidence indicated any sort of emergency that might have rendered her absence reasonable. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Evidence supported the jury's finding that defendant left her child without "parental care or guardianship" because when defendant chose to go inside a store and leave her young child in the car, either alone or under the intermittent monitoring of a stranger, she left the child without parental care, which was the care provided by a parent to his or her child; the statute does not require actual harm or impairment. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Evidence was sufficient to prove that defendant contributed to the delinquency of a minor because defendant left her young child in a car with its engine running, she double parked in a fire lane where parking was prohibited, and she went inside a store, leaving the child unattended, for one hour. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

Trial court did not err in finding the evidence sufficient to convict defendant of contributing to the delinquency of a minor, making a false report of child abuse or neglect, and giving a false report to a law-enforcement official because it was entitled to reject defendant's theory that she did not cause her daughter to fabricate child abuse; it was reasonable to infer that defendant used an audio file to help her daughter provide a full account of the alleged child abuse to authorities. Gibson v. Commonwealth, No. 0986-18-4, 2019 Va. App. LEXIS 174 (July 23, 2019).

Evidence was sufficient to support defendant's conviction for contributing to the delinquency of a minor because defendant's actions caused her daughter to falsely report sexual abuse, a criminal act under the laws of Virginia; a rational fact finder could conclude that defendant caused the daughter to falsely report sexual abuse by her father when she hypnotized the daughter and facilitated the daughter's disclosure of the abuse to a detective and child protective services. Gibson v. Commonwealth, No. 0986-18-4, 2019 Va. App. LEXIS 174 (July 23, 2019).

Defendant's convictions for indecent custodial liberties with a child and contributing to the delinquency of a minor were affirmed as the victim was not inherently incredible because nothing in the victim's testimony rendered it so contrary to human experience as to render it unworthy of belief. Jones v. Commonwealth, No. 1151-19-2, 2020 Va. App. LEXIS 164 (June 2, 2020).

Because the Commonwealth's evidence was insufficient to prove that defendant's child was a "child in need of services," defendant's conviction of contributing to the delinquency of a minor was reversed, as the 911 call the child made could not be considered treatment, rehabilitation, or services not presently being received, and there was no evidence that defendant's conduct would have continued indefinitely had the court not intervened, as defendant and the children were already inside the house when the deputy arrived. Spell v. Commonwealth, 72 Va. App. 629, 851 S.E.2d 83, 2020 Va. App. LEXIS 302 (2020).

Evidence insufficient to sustain conviction. - Trial court erred in convicting defendant of causing an act or omission that rendered a child abused or neglected because he did not create or inflict a physical or mental injury upon the children or cause them to be without care by an unreasonable absence; both, or either of the children's mothers independently, were responsible for the children's care during the time that defendant left the children with them, and neither of the children was injured or harmed. Wilmer v. Commonwealth, No. 0654-16-3, 2017 Va. App. LEXIS 223 (Aug. 29, 2017).

Sufficiency issue not preserved for review. - Defendant failed to preserve his challenge to the sufficiency of the evidence to support his conviction of contributing to the delinquency of a minor; he did not argue that the evidence was insufficient to permit any trier of fact to find the now-challenged element of abandonment, or any other form of abuse and neglect, and he offered no argument relating to the elements of the offense or the definition of abandonment or unreasonable absence. Tilley v. Commonwealth, No. 0207-17-3, 2018 Va. App. LEXIS 278 (Oct. 16, 2018).

Relationship to immigration laws. - Because the only document that could be considered under the modified approach to determine if petitioner alien was convicted of a crime involving moral turpitude did not state under which subsection of § 18.2-371 the alien was convicted, finding that he was subject to removal under 8 U.S.C.S. § 1227(a)(2)(A)(i) was error. Prudencio v. Holder, 669 F.3d 472, 2012 U.S. App. LEXIS 1693 (4th Cir. Jan. 30, 2012).

Applied in McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754, 2006 Va. App. LEXIS 259 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Act, omission, or condition that renders a child delinquent, etc. - A parent or caretaker who leaves a child alone in the same room with a sexually violent offender, yet remains within the residence, has not violated § 18.2-371 by leaving the child "alone in the same dwelling" with an offender within the meaning of § 16.1-228. See opinion of Attorney General to The Honorable A. Donald McEachin, Member, Senate of Virginia, 14-015, 2014 Va. AG LEXIS 14 (5/23/14).

§ 18.2-371.1. Abuse and neglect of children; penalty; abandoned infant.

  1. Any parent, guardian, or other person responsible for the care of a child under the age of 18 who by willful act or willful omission or refusal to provide any necessary care for the child's health causes or permits serious injury to the life or health of such child is guilty of a Class 4 felony. For purposes of this subsection, "serious injury" includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, (vi) forced ingestion of dangerous substances, and (vii) life-threatening internal injuries. For purposes of this subsection, "willful act or willful omission" includes operating or engaging in the conduct of a child welfare agency as defined in § 63.2-100 without first obtaining a license such person knows is required by Subtitle IV (§ 63.2-1700 et seq.) of Title 63.2 or after such license has been revoked or has expired and not been renewed.
    1. Any parent, guardian, or other person responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life is guilty of a Class 6 felony. B. 1.  Any parent, guardian, or other person responsible for the care of a child under the age of 18 whose willful act or omission in the care of such child was so gross, wanton, and culpable as to show a reckless disregard for human life is guilty of a Class 6 felony.
    2. If a prosecution under this subsection is based solely on the accused parent having left the child at a hospital or emergency medical services agency, it shall be an affirmative defense to prosecution of a parent under this subsection that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended emergency medical services agency that employs emergency medical services personnel, within the first 14 days of the child's life. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the child's safety.
  2. Any parent, guardian, or other person having care, custody, or control of a minor child who in good faith is under treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination shall not, for that reason alone, be considered in violation of this section.

    (1981, c. 568; 1988, c. 228; 1990, c. 638; 1993, c. 628; 2003, cc. 816, 822; 2006, c. 935; 2015, cc. 502, 503; 2016, c. 705.)

Cross references. - For requirement that a valid report of child abuse or neglect involving abuse or neglect resulting in serious injury as defined in § 18.2-371.1 be investigated by a local department of social services that has been designated as a child-protective services differential response agency, see § 63.2-1506 C.

For definition of "barrier crime" as including a conviction of abuse and neglect of children as set out in § 18.2-371.1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including abuse and neglect of children as set out in § 18.2-371.1 , or an equivalent offense in another state, see § 63.2-1726 .

The 2003 amendments. - The 2003 amendments by cc. 816 and 822 are identical, and designated the existing provisions of subsection B as subdivision B 1 and added subdivision B 2; and substituted "18" for "eighteen" near the beginning of the first sentence of subsection A and in subdivision B 1.

The 2006 amendments. - The 2006 amendment by c. 935 added the last sentence in subdivision B 2.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "emergency medical services agency" for "rescue squad" and "is guilty" for "shall be guilty" throughout the section; substituted "includes but is not limited" for "shall include but not be limited" in subsection A; substituted "services personnel" for "technicians" in subsection B 2; and made minor stylistic changes.

The 2016 amendments. - The 2016 amendment by c. 705, in subsection A, inserted "willful" preceding "omission" in the first sentence, and added the last sentence.

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants and Juveniles, § 89.

CASE NOTES

I. GENERAL CONSIDERATION.

Person "responsible for the care of a child." - One may become a person "responsible for the care of a child" by a voluntary course of conduct and without explicit parental delegation of supervisory responsibility or court order. Snow v. Commonwealth, 33 Va. App. 766, 537 S.E.2d 6, 2000 Va. App. LEXIS 754 (2000).

Even as employed in the statute, the purpose of the phrase "other person responsible" is to cover a broader range of defendants who may be held criminally liable, not to relieve others from criminal responsibility for their own acts of abuse or neglect. Miller v. Commonwealth, 64 Va. App. 527, 769 S.E.2d 706, 2015 Va. App. LEXIS 98 (2015).

"Willful" defined. - "Willful" generally means an act done with a bad purpose, without justifiable excuse or without ground for believing it is lawful and the terms "bad purpose" or "without justifiable excuse," while facially unspecific, necessarily imply knowledge that particular conduct will likely result in injury or illegality; the term "willful" denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. Collado v. Commonwealth, 33 Va. App. 356, 533 S.E.2d 625, 2000 Va. App. LEXIS 635 (2000).

"Willful" generally means an act done with bad purpose, without justifiable excuse, or without ground for believing it is lawful. Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999).

The term "willful" denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999).

Willful omission or refusal must be proven. - To sustain a conviction under this section, the evidence must prove beyond a reasonable doubt a willful act or willful omission or willful refusal regarding the proscribed conduct. Dotson v. Commonwealth, No. 1507-99-3, 2000 Va. App. LEXIS 484 (Ct. of Appeals July 5, 2000).

Willful omissions. - Willful omissions require an awareness that the conduct would cause or permit serious injury; where the evidence against defendant did not establish that he knew danger ensued from only ordering his son to put a gun away rather than taking it from him, and failed to establish defendant's knowledge and consciousness that an injury would result from the act done, his child abuse and reckless handling of a firearm convictions were reversed. Mangano v. Commonwealth, 44 Va. App. 210, 604 S.E.2d 118, 2004 Va. App. LEXIS 511 (2004).

In a case in which defendant was convicted of child abuse and neglect after her five-year-old son's body was found in the bottom of a septic tank, the evidence was insufficient to show that defendant left her son unsupervised with the knowledge and consciousness that injury would result. By requiring proof of a willful act or omission, the General Assembly intended a much higher mens rea than the evidence established in the case. White v. Commonwealth, 68 Va. App. 111, 804 S.E.2d 317, 2017 Va. App. LEXIS 236 (Sept. 19, 2017).

Subsection A of § 18.2-371.1 does not impose criminal liability on parents who fail to take positive action to ferret out every potential hazard to ensure the premises are safe. Rather, the statute punishes a parent's willful omission, which requires an awareness of the danger associated with leaving his or her child unsupervised. White v. Commonwealth, 68 Va. App. 111, 804 S.E.2d 317, 2017 Va. App. LEXIS 236 (Sept. 19, 2017).

Implication of "bad purpose" or "without justifiable excuse." - The terms "bad purpose" or "without justifiable excuse," while facially unspecific, necessarily imply knowledge that particular conduct will likely result in injury or illegality. Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999).

Inattention and inadvertence have not been heretofore equated with actions taken willfully, thus making them subject to criminal penalty. Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999).

"Reckless disregard." - Although child's injuries were serious and painful, they were not life-threatening, and mother's approach to injuries was not so gross, wanton or culpable as to show a reckless disregard for human life. McBeth v. Commonwealth, No. 1096-98-2 (Ct. of Appeals June 29, 1999).

Child neglect statute required the Commonwealth to prove that defendant, through his willful act or omission, showed a reckless disregard for the child's life. Riddick v. Commonwealth,, 2014 Va. App. LEXIS 280 (Aug. 12, 2014).

Duty on parent to actively monitor child's health and well-being. - This section not only precludes a parent or custodian from committing "willful acts," but also mandates that a parent or custodian may not stand idle while the child's life or health is seriously threatened. The statute imposes upon the parent the duty to make herself aware of her child's physical and mental condition and to actively monitor his health and well-being in order to insure his safety. Lester v. Commonwealth, No. 0538-89-1 (Ct. of Appeals June 12, 1990).

Double jeopardy. - Defendant's convictions for child abuse and child endangerment under §§ 18.2-371.1 and 40.1-103 were appropriate because his double-jeopardy rights were not violated since each statute required proof of additional facts not found in the other and thus constituted two distinct offenses. Child endangerment did not require serious injury, or any injury at all; child endangerment, but not child abuse, required that the child's life, health, or morals be endangered; and endangerment of a child's moral well-being was not a violation of the child abuse statute. King v. Commonwealth, 56 Va. App. 133, 692 S.E.2d 249, 2010 Va. App. LEXIS 166 (2010).

Defendant's convictions for felony child abuse and felony murder did not violate the Double Jeopardy Clause because committing a felonious act was not an element within the offense of felony child abuse; to obtain a conviction under the felony murder statute, the Commonwealth must prove that the defendant committed some felonious act as an independent element, and to convict under the felony child abuse statute, it must prove the defendant was in a special relationship with the victim. Schmidt v. Commonwealth, No. 1104-16-4, 2018 Va. App. LEXIS 12 (Jan. 23, 2018).

It is clear from the language of the felony child abuse statute and the felony murder statute that they apply to distinct forms of actions. Felony child abuse criminalizes certain specific conduct by individuals who are responsible for minors; in contrast, the General Assembly intended for the felony murder statute to apply in a wide variety of situations, and prosecutors have implemented it accordingly. Schmidt v. Commonwealth, No. 1104-16-4, 2018 Va. App. LEXIS 12 (Jan. 23, 2018).

Expert testimony unnecessary to prove dangers. - Where defendant was convicted of criminal abuse and neglect for, in part, preparing a bottle for defendant's six-month-old child that contained nearly three percent alcohol, the Commonwealth was not required to produce expert testimony showing that consumption of alcohol by a six-month-old child who had not had any food or liquids for at least seven hours presented a substantial risk of serious injury or risk of death to the child, as the dangers inherent in such a situation could be inferred by the fact finder as a matter of common knowledge. Commonwealth v. Duncan, 267 Va. 377 , 593 S.E.2d 210, 2004 Va. LEXIS 38 (2004), reversing 2002 Va. App. LEXIS 530 (Va. Cir. App. 2002).

Knowledge conduct would likely cause serious injury. - To obtain a conviction under this section, the commonwealth is required to prove only that the defendant knew his conduct would likely result in serious injury; an intent to cause a serious injury or any specific injury is not an element of the offense. Collado v. Commonwealth, 33 Va. App. 356, 533 S.E.2d 625, 2000 Va. App. LEXIS 635 (2000).

Where defendant, while intoxicated, allowed an eight-year old child to sit on defendant's lap and drive a van, the evidence was sufficient to convict defendant of felony child abuse and neglect under subsection B of § 18.2-371.1 . Kenyon v. Commonwealth, No. 2383-02-1, 2003 Va. App. LEXIS 542 (Ct. of Appeals Oct. 28, 2003).

Knowledge of dangerous hazard. - Although the trial court in a child abuse and neglect case was entitled to disbelieve or disregard defendant's testimony that she had never tried to open a septic tank lid and did not realize the lid was a dangerous hazard, the Commonwealth failed to present evidence from which the trial court could infer defendant did know. There was simply no evidence from which the trial court could infer that defendant knew her son had a propensity for opening the unsecured lid and dropping toys into the septic tank while playing in the backyard. White v. Commonwealth, 68 Va. App. 111, 804 S.E.2d 317, 2017 Va. App. LEXIS 236 (Sept. 19, 2017).

Expert opinion as to intent not allowed. - An expert witness was properly not allowed to give his opinion as to whether an injury sustained by a four month old child was necessarily intentionally inflicted; the expert could, and did, testify as to the mechanics of how such an injury occurs, but it was the province of the fact finder to determine whether an intentional act necessarily caused the injury. Towns v. Commonwealth, No. 0346-98-3 (Ct. of Appeals Mar. 30, 1999).

Recent childbirth alone does not excuse legal duty to care for child. - Although a court may consider the mother's condition in determining the degree of criminal culpability arising from a failure to attend to her newborn baby, the sole fact that she has recently experienced childbirth does not excuse her from a legal duty to care for the baby. Vaughan v. Commonwealth, 7 Va. App. 665, 376 S.E.2d 801 (1989).

Severity of injuries. - Subsection does not require proof that injuries inflicted by the defendant were life threatening. Woodson v. Commonwealth, No. 0140-98-2 (Ct. of Appeals Mar. 2, 1999).

An injury may be serious because of the nature and extent of the injury, the effect the injury has upon the victim or the extent to which the injury may require medical treatment. Tate v. Commonwealth, No. 0042-99-2, 2000 Va. App. LEXIS 522 (Ct. of Appeals July 18, 2000).

A child had suffered "serious injuries" within the meaning of this section where the evidence proved that the child suffered from numerous bruises of various ages on her entire body, the child had a large bruise on her forehead that was several days old and numerous small bruises and lacerations on her face, she had a scab on her shoulder in the shape of two linear lines and a bruise in the shape of a thumbprint on her thigh, an MRI showed scattered petechial hemorrhages throughout the child's brain that were approximately three to four days old, the child also had an area of bruising on the right occiput of the head and, when the child was taken to the hospital, she appeared to be lethargic; the child's injuries, although not life threatening, were indicative of multiple and repetitive trauma. Tate v. Commonwealth, No. 0042-99-2, 2000 Va. App. LEXIS 522 (Ct. of Appeals July 18, 2000).

Specifications of "serious injury" in § 18.2-371.1 do not limit the court's consideration of the term "serious bodily injury" in a case under § 16.1-253.2. They relate to a specific legislative concern, the protection of children in custodial relationships; furthermore, the statute expressly provides that the term "serious injury" is not limited to the enumerated specifications. Nolen v. Commonwealth, 53 Va. App. 593, 673 S.E.2d 920, 2009 Va. App. LEXIS 138 (2009).

Although death is not listed as a "serious injury" in this section, a defendant's argument that she could not be convicted of felony child abuse for causing her child's death by shaken baby syndrome ignored the fact that the victim suffered grievous injuries that caused death; the violent shaking caused brain injury, which produced the shock, which affected vital organs, and death resulted. Cotton v. Commonwealth, 35 Va. App. 511, 546 S.E.2d 241, 2001 Va. App. LEXIS 277 (2001).

Defendant's acts created risk of serious injury. - Based on the testimony of a medical expert that a child's injuries created a risk of tissue and long-term organ damage to the child, the appellate court concluded that the evidence was sufficient to establish that defendant's acts created a substantial risk of serious injury to the child. Pullin v. Commonwealth, No. 1117-18-1, 2019 Va. App. LEXIS 229 (Ct. of Appeals Oct. 15, 2019).

Failure to place baby for adoption before birth not supportive of mother's plan to kill baby. - That mother never took active steps towards placing the baby for adoption before the birth was not a fact which would support a reasonable inference that she intended to kill the baby since making adoption arrangements prior to a birth may be advisable, but it is not reasonable to infer that the failure to do so indicates a plan to kill a baby. Vaughan v. Commonwealth, 7 Va. App. 665, 376 S.E.2d 801 (1989).

Transporting his son while driving under the influence. - Trial court did not err in denying defendant's motion to strike, which alleged that he could not have been prosecuted under under this section, based upon his act of transporting his son while driving under the influence, as subsection D of § 18.2-270 simply provided an additional penalty for driving under the influence while transporting a person 17 years of age or younger and did not include within its parameters the elements of the child abuse and neglect offense. Wolfe v. Commonwealth, 42 Va. App. 776, 595 S.E.2d 27, 2004 Va. App. LEXIS 168 (2004).

Unsecured handgun. - Defendant's conviction for felony child neglect under subsection A of § 18.2-371.1 was appropriate because she was aware that the handgun was in the gym bag; she was aware that the gym bag with the handgun was on the floor easily within the reach of children; and she was also aware that she had directed the children to stay in the same bedroom with the unsecured handgun. Wright v. Commonwealth,, 2011 Va. App. LEXIS 309 (Oct. 11, 2011).

Compared to § 18.2-371 . - Defendant sufficiently preserved for review the claim that defendant could not be convicted of violating § 18.2-371 , misdemeanor child abuse and neglect, because defense counsel made numerous arguments that defendant had not been charged with violating it and it was not a lesser-included offense of § 18.2-371.1 , felony child abuse and neglect. Since the Commonwealth conceded that it was not a lesser-included offense and defendant had not procedurally defaulted the issue, the conviction had to be dismissed. Brown v. Commonwealth,, 2008 Va. App. LEXIS 94 (Feb. 26, 2008).

Evidence insufficient to sustain a conviction. - Circuit court erred in convicting defendant of felony child endangerment because the evidence did not establish that the children were likely to suffer injury as a result of defendant's conduct where, while defendant intentionally left her children unsupervised and alone in an unlocked car in a parking lot while she shopped, the children were left for less than 15 minutes, the parking lot was not in a high crime area, there was nothing extreme or dangerous about the temperature or that the children were not appropriately dressed for the weather conditions, and the children were not at a greater risk of injury in the parking lot than they would have been at home. Hannon v. Commonwealth, 68 Va. App. 87, 803 S.E.2d 355, 2017 Va. App. LEXIS 212 (Aug. 22, 2017).

As evidence to support termination of residual parental rights. - Trial court did not err in entering a judgment that terminated the parental rights of the mother in her two minor children and found it was in the best interests of the children to do so; the mother pled guilty to one count of felony abuse and neglect in violation of § 18.2-371.1 and one count of felony cruelty and injury to children in violation of § 40.1-103 , which was sufficient to establish that the mother committed a felony assault causing serious bodily injury and served as a ground for terminating her parental rights in the two minor children. Canter v. City of Bristol Dep't of Soc. Servs., No. 0507-05-3, 2005 Va. App. LEXIS 501 (Ct. of Appeals Dec. 13, 2005).

Termination of the mother's parental rights was in the best interests of the children because the mother entered an Alford plea to felony child endangerment as one of the children found his two-week-old sister lying under her mother in the mother's bed, the two-week-old child sustained a significant neurological injury due to lack of oxygen and subsequently died, and the mother was intoxicated at the time of the child's injury; the children had been in the custody of the city's Department of Community and Human Services for approximately 20 months; the Department had tried to place some of the children with the mother, but the children were returned to foster care; and the children were doing well in foster care. Robinson v. City of Alexandria Dep't of Cmty. & Human Servs., No. 1397-16-4, 2017 Va. App. LEXIS 3 (Ct. of Appeals Jan. 10, 2017).

Probation revocation. - Where defendant had been indicted for felony child abuse, entered a guilty plea, and was placed on supervised probation, she violated the good behavior conditions of her supervised probation by providing false information on a firearm purchase form indicating that she was not under indictment. Therefore, the trial court did not err in revoking her active supervised probation and finding her guilty of felony child abuse and neglect. Maldonado-Mejia v. Commonwealth, 287 Va. 49 , 752 S.E.2d 833, 2014 Va. LEXIS 6 (2014).

Applied in Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582 (1995).

II. SUFFICIENCY OF EVIDENCE.

Evidence was sufficient to sustain conviction, etc. where the defendant frequently beat the victim, routinely confined the victim to the basement, without regard for his health, physical comfort or nutrition, and eventually ordered the victim, a 12 year old child, to leave the house permanently without making any alternative arrangements for his care. Woodson v. Commonwealth, No. 0140-98-2 (Ct. of Appeals Mar. 2, 1999).

Felony child neglect shown where the mother willfully, wantonly and culpably allowed in her home activities that exposed her six-year-old daughter to drug activity, loaded weapons and risk of death and where, by smoking marijuana in the apartment and by allowing the air in the apartment to be saturated with smoke, the mother showed a reckless and wanton disregard for the child's life and health in that the child suffered from severe asthma. Taylor v. Commonwealth, No. 0411-99-2, 2000 Va. App. LEXIS 353 (Ct. of Appeals May 9, 2000).

The evidence was sufficient to support the defendant's conviction where her infant son had been drowned by her daughter and where it was established that, by staying out all night drinking beer, the defendant rendered herself unable to give proper attention to her children, that having slept only one and one-half hours, she made no effort to obtain assistance or to keep herself awake, that she sat on the couch where she succumbed to sleep, that knowing of her daughter's previous, potentially lethal, conduct toward her son, she nonetheless left the children unattended with no provision to protect her son from her daughter's known aggressiveness and that she did all these things knowingly and intentionally. Barrett v. Commonwealth, 32 Va. App. 693, 530 S.E.2d 437, 2000 Va. App. LEXIS 480 (2000).

The evidence was sufficient to support a trial court's finding that the defendant knew her child was at risk but, by "omission or refusal" to act, allowed the abuse to continue by entrusting her child to her boyfriend when the defendant had observed extensive cuts and bruises on the child's face and body after she had been left in the boyfriend's care several days before. Tate v. Commonwealth, No. 0042-99-2, 2000 Va. App. LEXIS 522 (Ct. of Appeals July 18, 2000).

The evidence was sufficient to support a jury's finding that the defendant was the criminal agent who inflicted the life threatening injuries to a child where the child was criminally assaulted during a period when the defendant had sole custody and control of the child. Collado v. Commonwealth, 33 Va. App. 356, 533 S.E.2d 625, 2000 Va. App. LEXIS 635 (2000).

Conviction was affirmed where, although an order showing the conviction for second degree murder of the person with whom the defendant left her deceased child was hearsay, it was admissible at the defendant's trial for abuse and neglect of her child as it fell within the scope of § 8.01-389 A, the judicial records exception to the hearsay rule. Furthermore, although the trial court erred in admitting the order into evidence as the order was irrelevant because it provided no proof of any element of defendant's trial, the admission of the order was harmless error as the evidence overwhelmingly and compellingly established defendant's guilt. Palmer v. Commonwealth, No. 3265-01-1, 2003 Va. App. LEXIS 245 (Ct. of Appeals Apr. 22, 2003).

Evidence, which included expert testimony by two physicians, showed that defendant was the only adult present with the baby several hours prior to the appearance of her symptoms of limpness and unresponsiveness, and that the injuries were inflicted by defendant in rudeness or anger, with force and violence, and with reckless disregard for the baby's well-being. Given the totality of the evidence, the appellate court found that the jury was entitled to reject defendant's explanations of innocence and to conclude that the evidence was sufficient to establish she inflicted the baby's injuries with the requisite state of mind. Morton v. Commonwealth, No. 2677-02-2, 2004 Va. App. LEXIS 40 (Ct. of Appeals Jan. 28, 2004).

Conviction for felony child neglect was supported by evidence proving that defendant showed utter disregard for the safety and well-being of her children by leaving them unsupervised for several days and nights, thereby exposing them to injury and risk of harm or death; evidence proved that defendant was the mother of the children and that she left them alone for several days and nights, all of which constituted a "willful act or omission of care" of the children and constituted criminal negligence. Ascencio v. Commonwealth, No. 3357-02-2, 2004 Va. App. LEXIS 42 (Ct. of Appeals Feb. 3, 2004).

Evidence that defendant left the child in the van and casually instructed other children to get all the children out of the van and into the house without ensuring that his instructions were obeyed, and that, over a period of more than seven hours, defendant assumed but never ascertained that the child was asleep in the house was sufficient to show defendant's total and utter disregard for her well-being, safety, and life and thus, to support convictions for involuntary manslaughter and felony child neglect. Kelly v. Commonwealth, 42 Va. App. 347, 592 S.E.2d 353, 2004 Va. App. LEXIS 47 (2004).

Reviewing court found that there was sufficient evidence to convict defendant of criminal abuse and neglect where defendant left defendant's six-month-old child with three women defendant barely knew, defendant did not give them food for the baby, the child did not receive food or liquids for more than seven hours, and defendant, more than eight hours later, prepared for the child a bottle that contained alcohol in it, which was fed to the child. Commonwealth v. Duncan, 267 Va. 377 , 593 S.E.2d 210, 2004 Va. LEXIS 38 (2004), reversing 2002 Va. App. LEXIS 530 (Va. Cir. App. 2002).

Felony child abuse and neglect conviction was upheld where the evidence against defendant sufficiently proved beyond a reasonable doubt that his act of repeatedly beating his son was not negligent or non-criminal, but was reasonably calculated to produce injury and done with an indifferent disregard of the rights of others. Abshire v. Commonwealth, No. 2441-02-3, 2004 Va. App. LEXIS 119 (Ct. of Appeals Mar. 23, 2004).

Defendant's conduct in placing his 14-month-old son's feet in hot water resulting in the soles of the son's feet being burned, which defendant did because he wanted to teach the baby a lesson about "dirtying the baby's diaper" was the kind of gross, wanton, and culpable act that showed reckless disregard for his son's life; the Commonwealth was not required to show that defendant's conduct caused an actual risk of death, as the "reckless disregard" could be shown by conduct subjecting a child to a substantial risk of serious injury, which defendant's conduct did. Gray v. Commonwealth, No. 2720-02-2, 2004 Va. App. LEXIS 173 (Ct. of Appeals Apr. 13, 2004).

Where a mother had knowledge that her daughter was very jealous of her younger sibling, had tried to harm him and kill him, and that the daughter was capable of turning the water on in the bathtub, which was her favorite place to play, and of pulling the younger sibling into the bathtub, the mother's conviction for criminal neglect of both her son and her daughter was supported by the evidence; the mother had been out all night drinking alcohol, had come home and fallen asleep on the couch, and the daughter had pulled the younger sibling into the bathtub, which had two inches of water in it, covered him with toys, a laundry basket, and a blanket, and he had drowned. Barrett v. Commonwealth, 268 Va. 170 , 597 S.E.2d 104, 2004 Va. LEXIS 105 (2004).

Felony child neglect conviction was upheld, as evidence of defendant's gross, wanton and willful conduct was presented by his act of brutally beating his mother in front of his eight-year-old son, leaving the son alone with his unconscious grandmother at night, and instructing his son not to call for help; the fact that the risks in doing so had not yet materialized did not mean that the risks were absent and did not serve to remove defendant's conduct from the prohibitions of the statute. Jones v. Commonwealth, No. 1670-03-1, 2004 Va. App. LEXIS 561 (Ct. of Appeals Nov. 16, 2004).

Evidence that defendant stayed up too late, that she did not take prescribed medication, and that she failed to respond to her premature infant's breathing and heart rate monitor for 27 minutes early one morning even though an alarm attached to the monitor was sounding the whole time was sufficient to support defendant's conviction; the jury was free to disbelieve her testimony that she did not hear the alarm, especially after the alarm was played for the jury and they heard how loud the alarm sounded. Wimmer v. Commonwealth,, 2005 Va. App. LEXIS 305 (Aug. 2, 2005).

The fact that defendant dealt drugs out of her apartment placed the child at risk of harm from accidental ingestion of harmful drugs, and at risk of harm from drug-related violence, and was sufficient to constitute a gross, wanton, and willful disregard for human life. Jones v. Commonwealth, 46 Va. App. 713, 621 S.E.2d 676, 2005 Va. App. LEXIS 448 (2005).

Jury's finding that a child's injuries resulted from repetitive and forceful shaking was sufficient to support its conclusion that defendant was guilty of felony child neglect. Blackmon v. Commonwealth,, 2006 Va. App. LEXIS 23 (Jan. 24, 2006).

Defendant's conviction of felony child neglect in violation of subdivision B 1 of § 18.2-371.1 was affirmed, because defendant knew or should have known that placing heroin and cocaine in the same room as her unattended son created a substantial risk of serious injury, even though the child did not ingest the drugs, and thus the totality of the evidence proved that a substantial or probable risk of harm to the child existed. Jones v. Commonwealth, 272 Va. 692 , 636 S.E.2d 403, 2006 Va. LEXIS 109 (2006).

Defendant's willful act of failing to secure prompt medical attention for juveniles in her charge when one of them took sleeping pills, despite defendant's recognition that ingesting drugs could pose a substantial risk of serious injury or death, satisfied the requirement of a "willful act" in "reckless disregard for human life," as required by § 18.2-371.1 . Flowers v. Commonwealth, 49 Va. App. 241, 639 S.E.2d 313, 2007 Va. App. LEXIS 14 (2007).

Evidence that the two younger children were not properly dressed before being left out in cold at night for five hours to guard against possible criminal activity supported felony neglect charges; by barring the children from seeking refuge in the building where defendant was sleeping, defendant compounded the exposure of the children to danger evidencing a reckless disregard for the rights of the children that would probably result in an injury. Ferguson v. Commonwealth, 50 Va. App. 351, 649 S.E.2d 724, 2007 Va. App. LEXIS 338 (2007).

Defendant's conviction for felony child abuse was supported by the evidence, as defendant fell within the purview of subsection A of § 18.2-371.1 during those times in which defendant was left alone with the child. Defendant's girlfriend testified that when she returned, the child was very ill, had a high fever, and had a bruise on the chest. Miller v. Commonwealth,, 2008 Va. App. LEXIS 73 (Feb. 12, 2008).

Evidence was sufficient to support defendant's conviction for felony child neglect in violation of § 18.2-371.1 because under the facts and circumstances, the trial court could determine that defendant, who had specialized medical training in pediatrics, acted in a willful manner with full knowledge of the consequences of his actions, and not only did defendant cause an infant's affliction, he did not timely offer information that could have sped her recovery; therefore, the trial court could find that defendant acted with a "bad purpose" or "without justifiable excuse" because he knew his conduct would result in injury to the infant. Gainov v. Commonwealth,, 2009 Va. App. LEXIS 387 (Sept. 1, 2009).

In a case in which defendant appealed her conviction for felony child neglect in violation of subsection B of § 18.2-371.1 , she argued unsuccessfully that the evidence was insufficient because it failed to show that: (1) she withheld her son's medication; (2) her behavior caused a substantial risk to his life or health; and (3) she knew withholding his medication was likely to cause such a risk. The record on appeal failed to establish the defendant preserved any of her arguments for appeal as required by Va. Sup. Ct. R. 5A:18. Thornton v. Commonwealth,, 2009 Va. App. LEXIS 413 (Sept. 15, 2009).

Convictions of involuntary manslaughter, § 18.2-36 , and felony child neglect, § 18.2-371.1 were supported by sufficient evidence under circumstances in which defendant, a daycare van driver, left a child in the van for a full day, and the child died of heat exposure; defendant failed to look for the child after unloading the other children from the van, despite having personally strapped the child into his car seat, did not use the van logbook designed to prevent this kind of tragedy, took the child's diaper bag inside the daycare without confirming that the child was also safely inside, failed to use the logbook inside the daycare, and then drove home, completely oblivious to the child sitting behind him. After returning home, defendant did not check to make sure the van was empty, silenced his phone, making it impossible for anyone to reach him when questions later arose concerning the child's delivery, and then slept all day leading to the reasonable inference that lack of sleep compromised his alertness that morning. Whitfield v. Commonwealth, 57 Va. App. 396, 702 S.E.2d 590, 2010 Va. App. LEXIS 502 (2010).

Evidence was sufficient to support defendant's conviction for child neglect under subsection A of § 18.2-371.1 , where there was sufficient evidence to support a finding that defendant, who was dating and living with the child's mother, was a person responsible for the child's care through a voluntary course of conduct; among other things, defendant held himself out as the father, "looked out" for the child, and even helped feed, bathe, and put the child to sleep. Carrington v. Commonwealth, 59 Va. App. 614, 721 S.E.2d 815, 2012 Va. App. LEXIS 46 (2012).

Where defendant and her boyfriend were the only ones that took care of the child on the day in question and the jury accepted the boyfriend's denial, testifying that he did not cause the injuries and has never shaken the child, and the jury reasonably could have inferred that defendant fatally injured the child. Burnette v. Commonwealth, 60 Va. App. 462, 729 S.E.2d 740, 2012 Va. App. LEXIS 246 (2012).

Evidence was sufficient to permit the jury to find defendant guilty of felony child abuse or neglect, where an expert in pediatric care opined that the child's complex skull fracture could not have been caused by a fall into a playpen, but that it occurred from something with a more significant amount of force, and that since there was an absence of an explanation of an accident with the requisite degree of force, the injury was an "inflicted" head injury. The trial court was entitled to conclude that defendant lied to the police in order to conceal her guilt and that her testimony at trial was untrue, as it was not until more than a month after the incident that defendant told the police officers that she fell and caused the child to land in the playpen with a "thud." O'Berry v. Commonwealth,, 2012 Va. App. LEXIS 412 (Dec. 18, 2012).

There was no evidence that defendant committed a willful act or omission in the care of her daughter that was so gross, wanton, and culpable as to show a reckless regard for human life as required for a child neglect conviction, as there was no evidence that the filthy condition of the house subjected the daughter, who was 17 years old, to a substantial risk of serious injury or a risk of death. Kemp v. Commonwealth,, 2014 Va. App. LEXIS 290 (Aug. 26, 2014).

Evidence supported defendant's conviction for abuse and neglect of a child because the Commonwealth of Virginia's expert testimony, which the trial court credited, supported the conclusion that the child's acute subdural hematoma and retinal hemorrhaging were caused by abusive head trauma, which occurred while the child was in defendant's care. Brantley v. Commonwealth,, 2015 Va. App. LEXIS 269 (Sept. 22, 2015).

Evidence demonstrating that defendant inflicted brutal injuries in his 16-month-old daughter, failed to seek help for her after causing those injuries, and seemed to lack remorse was sufficient for the trier of fact to convict defendant of first-degree murder and felony child abuse. Logan v. Commonwealth, No. 0867-15-1, 2016 Va. App. LEXIS 290 (Ct. of Appeals Nov. 1, 2016).

Evidence that defendant left her four children, ages one to seven, alone in a hotel room containing a BB gun, a pocket knife, and alcoholic beverages for at least nine hours, without readily edible food was sufficient to support defendant's conviction for felony child neglect under subdivision B 1 of § 18.2-371.1 . Mott v. Commonwealth, No. 1802-15-1, 2016 Va. App. LEXIS 325 (Ct. of Appeals Nov. 29, 2016).

Evidence was sufficient to convict defendant of involuntary manslaughter, felonious child abuse or neglect involving the reckless endangerment of a child, and felonious child abuse involving serious injury to a child as the evidence proved that defendant was criminally negligent because he drove recklessly after recently ingesting marijuana with the knowledge that his minor passengers were not properly restrained by seat belts or appropriate devices; and he possessed the knowledge and consciousness of risk that could establish reckless disregard as he wore his own seat belt. Turner v. Commonwealth, No. 0067-16-1, 2017 Va. App. LEXIS 4 (Ct. of Appeals Jan. 10, 2017).

Evidence allowed the factfinder to conclude that defendant's blood alcohol content was higher than .25 when she was driving her children on the highways of the Commonwealth. As defendant's level of intoxication was more than three times the legal limit, the evidence was sufficient to support defendant's convictions for felony child neglect under subdivision B 1 of § 18.2-371.1 . Camp v. Commonwealth, 68 Va. App. 694, 813 S.E.2d 10, 2018 Va. App. LEXIS 126 (2018).

Evidence was sufficient to convict defendant of felony child neglect as he acted with reckless disregard for the life and safety of his 5-year-old child in a way that would probably result in injury by leaving him alone in their apartment for the better part of an hour to drive away to a prescheduled meeting because a similar situation in which the child left the apartment unsupervised occurred just a month earlier; and defendant should have been aware that the child's young age, coupled with his history of unruly or undisciplined behavior, rendered the child incapable of staying alone in the apartment unsupervised for close to an hour. Gibbs v. Commonwealth, No. 1020-17-2, 2018 Va. App. LEXIS 82 (Apr. 3, 2018).

Evidence was sufficient to establish that defendant willfully disregarded warning signs that the victim needed medical care because he told a physician that the victim had not been acting right for three weeks before his wife took him to the emergency room, a month and a half before the emergency room visit defendant noticed that the victim's head was deforming, he told the detective that the victim started acting "not himself" several weeks before the visit, and for a week prior to the visit the victim was unresponsive, projectile vomiting, whimpering, and not eating well. Blackmon v. Commonwealth, No. 0151-20-2, 2021 Va. App. LEXIS 17 (Feb. 2, 2021).

Evidence was sufficient to convict defendant of child abuse or neglect as the child suffered a serious injury; defendant's explanations for the injuries were not consistent with the medical evidence; and defendant was either the one striking the child, or she permitted his condition to deteriorate and allowed the trauma the doctor identified to be inflicted upon him. Luchille v. Commonwealth, No. 0180-20-1, 2021 Va. App. LEXIS 69 (Apr. 27, 2021).

Evidence insufficient to sustain conviction. - Because defendant took significant steps to prevent the recurrence of a prior event that had placed her son at risk of harm, the fact that her actions, though significant, did not eliminate all risk to her child was insufficient to prove criminal negligence; therefore, despite her admitted alcohol consumption and failing to check the door and re-lock the same in order to prevent her child from escaping into harm's way, defendant's actions, which amounted at best to bad judgment and simple negligence, did not amount to the level of criminal negligence necessary to support a conviction under § 18.2-371.1 . Frey v. Commonwealth,, 2005 Va. App. LEXIS 153 (Apr. 19, 2005).

Where defendant's young children were found in the woods near their home, unattended, while she napped, the evidence was insufficient to convict her of felonious child neglect in violation of subsection B of § 18.2-371.1 . As there was no evidence that defendant was under the influence of drugs or alcohol at the time she and the children went to sleep, the prosecution did not prove that she willfully failed to care for her sons in a manner so gross, wanton, and culpable as to show a reckless disregard for their lives. Morris v. Commonwealth, 272 Va. 732 , 636 S.E.2d 436, 2006 Va. LEXIS 100 (2006).

Evidence was insufficient to sustain defendant's conviction for felony child neglect, under subdivision B 1 of § 18.2-371.1 , when the victim stood outside in cold weather because: (1) the evidence showed the victim was 17 years, 7 months old; (2) the victim was appropriately dressed for the winter temperature; and (3) the victim had complete access to a building with no restrictions, so the victim was not continually exposed to harsh winter conditions outside, nor was the victim required to guard against potential criminal activity outside the building, so it could not be found that defendant demonstrated a reckless disregard for the victim's health and safety. Ferguson v. Commonwealth, 51 Va. App. 427, 658 S.E.2d 692, 2008 Va. App. LEXIS 367 (2008).

Evidence was insufficient to support defendant's conviction for child neglect under subdivision B 1, where the evidence failed to show that defendant's conduct constituted a willful act or omission that was so gross, wanton, and culpable as to show a reckless disregard for human life; the burns the child had received prior to coming into defendant's care were covered with gauze and duct tape and the child's lethargy was insufficient to make defendant aware that the child needed medical attention. Shanklin v. Commonwealth, 53 Va. App. 683, 674 S.E.2d 577, 2009 Va. App. LEXIS 158 (2009).

Evidence that defendant left her children in the care of her boyfriend's parents when she and her boyfriend went out for the night; that upon returning home, defendant checked on the children and went to sleep in another room, with the door open; defendant was unaware that the other adults had left; and defendant was not aware that her three-year-old twins, who defendant knew were capable of climbing the child gate on the trailer's deck, were capable of opening the door to her trailer to gain access to the outside was insufficient to support a conviction for felony child neglect. Clark v. Commonwealth,, 2012 Va. App. LEXIS 158 (May 15, 2012).

Evidence did not support defendant's conviction of felony child neglect, as the record reflected that at no time did defendant simply disregard the care and needs of defendant's child; defendant made attempts to care for the child once defendant realized the child was in distress, including washing the child in the bathtub, calling regular caregivers for advice, and ultimately calling 911. Davis v. Commonwealth,, 2012 Va. App. LEXIS 343 (Oct. 31, 2012).

While defendant could have expected that sniffing dust remover would result in her incapacitation, thereby leaving the children unattended in the home for that period of time, without additional evidence in the record of a substantial risk or probability of serious injury or death to the children arising from environmental or human factors in that time frame, defendant's actions did not rise to the level required for a felony conviction under subdivision B 1 of § 18.2-371.1 . Shifflett v. Commonwealth,, 2012 Va. App. LEXIS 391 (Dec. 4, 2012).

Evidence failed to show that defendant showed a reckless disregard for his child's life and his conviction was reversed; while defendant was negligent in his care of the child, the evidence failed to show that he was criminally negligent, as his delay in seeking medical care for the child's burned foot amounted to mere inattention or inadvertence, the injury to the child was not life-threatening, doctors treated the burn the same way defendant did, and there was no evidence that the delay in treatment worsened the burn or endangered the child's health. Riddick v. Commonwealth,, 2014 Va. App. LEXIS 280 (Aug. 12, 2014).

Evidence was insufficient to support defendant's child neglect conviction because defendant's keeping loaded firearms in the home where defendant lived with defendant's child was not sufficient to establish criminal culpability on the part of defendant. Although defendant was arrested for dealing drugs, there was no evidence that controlled buys were conducted in the house, no evidence that drug deals took place in the house while the child was present, and no evidence that any drugs or paraphernalia were in the same room as the child. Wiggins v. Commonwealth, No. 0632-15-2, 2016 Va. App. LEXIS 139 (Ct. of Appeals Apr. 26, 2016).

Sufficient evidence did not support defendant's felony child neglect conviction, when defendant had an automobile accident with defendant's child in the car after becoming intoxicated, because, (1) given defendant's speed below the speed limit on a "wet and curvy road," and the lack of damage to either car, a finding of criminal negligence turned solely on whether defendant's intoxication was alone sufficient to show such negligence, (2) no authority supported the proposition that voluntary intoxication was alone sufficient to constitute criminal negligence for purposes of felony child neglect, and (3) the mere speculative possibility of harm alone was insufficient for a conviction. Coomer v. Commonwealth, 67 Va. App. 537, 797 S.E.2d 787 (2017).

Evidence of "willfulness" sufficient. - Defendant's forty-hour delay in seeking medical attention for her four-year-old son, after recognizing that he suffered extensive abuse, amounted to a violation of this section, and her fear of her boyfriend did not justify her failure to take action. Roberts v. Commonwealth, No. 1594-98-3 (Ct. of Appeals June 8, 1999).

Circumstantial evidence was sufficient to establish willfulness in child abuse case, where medical experts' opinions cast doubt upon all of defendant's multiple accounts of how the child "accidentally" sustained a fatal head injury, and indicated that the injury was consistent with abuse. Hickson v. Commonwealth, Nos. 1205-10-3, 1869-01-3, 2002 Va. App. LEXIS 243 (Ct. of Appeals Apr. 23, 2002).

Evidence that defendant was a licensed child care provider who routinely chose to allow the older children in her care to provide extended supervision for the children entrusted to defendant's care, most of whom were infants, toddlers, and preschoolers, was sufficient to prove a "willful act or omission" and thus, supported defendant's conviction for child neglect under subsection B of § 18.2-371.1 . Bean-Brewer v. Commonwealth, 49 Va. App. 3, 635 S.E.2d 680, 2006 Va. App. LEXIS 469 (2006).

Evidence was sufficient to show that defendant willfully abused or neglected a child whom defendant was responsible for providing care for and, thus, defendant's conviction for a violation of subsection A of § 18.2-371.1 had to be upheld. The evidence showed that after defendant tried to clean the child with a sink sprayer shooting hot water, defendant failed to obtain the medical help that the child obviously needed and that defendant instead spent the time trying to figure ways to keep defendant from getting in trouble. Carter v. Commonwealth,, 2008 Va. App. LEXIS 447 (Oct. 7, 2008).

Evidence sufficient to establish willfulness. - The evidence was sufficient to show a willful act or omission in the care of children where the defendant, while driving a vehicle occupied by three of his brother's children, led the police on a chase at speeds exceeding 100 miles per hour until the engine of the car blew and the defendant was forced to stop. Snow v. Commonwealth, 33 Va. App. 766, 537 S.E.2d 6, 2000 Va. App. LEXIS 754 (2000).

Defendant was properly convicted of felony child abuse arising from the drowning death of her youngest child; she intentionally created a situation where a two-year-old child, who had known aggressive tendencies toward the youngest child, was left completely unsupervised, and she exposed both children to injury and/or the risk of death. Barrett v. Commonwealth, 41 Va. App. 377, 585 S.E.2d 355, 2003 Va. App. LEXIS 446 (2003), aff'd, 268 Va. 170 , 597 S.E.2d 104 (2004).

Evidence that defendant placed her nine-month-old daughter in an empty hot tub for use as a bed, that the daughter became wet because the daughter was able to turn on the water faucet leading into the hot tub, that defendant turned off the water and put the child back in the hot tub and left her unattended, where the child was later found drowned was sufficient to show defendant acted so grossly, wantonly, and culpably as to demonstrate a reckless disregard for human life because the evidence showed that defendant willfully returned the daughter to a place of imminent danger despite defendant's knowledge that the child could turn on the water faucet leading to the hot tub but could not climb out of the hot tub; accordingly, defendant's conviction for felony child neglect was affirmed. Ratliffe v. Commonwealth, No. 0532-02-3, 2003 Va. App. LEXIS 481 (Ct. of Appeals Sept. 23, 2003).

"Willfulness" was shown for purposes of a mother's convictions for neglect of two of her children where the mother's knowledge that her daughter was extremely jealous of the mother's son, and that the daughter had harmed the son and tried to kill him on prior occasions went beyond "ordinary negligence," to the point where it showed the mother's reckless disregard for the relationship between her two children; the mother was neglectful of her duty to protect both of her children, and her conduct in going to sleep and leaving both children otherwise unattended was willful and was accompanied by acts of omission of a wanton nature that showed a reckless or indifferent disregard for the life and health of both children. Barrett v. Commonwealth, 268 Va. 170 , 597 S.E.2d 104, 2004 Va. LEXIS 105 (2004).

Evidence of willfull refusal to provide necessary medical care. - As there was an abundance of evidence from which the trial court could conclude that defendant willfully refused to provide necessary medical care for her child, who had third and second degree burns on his face and chest, as she clearly appreciated the severity of her baby's injuries, but did not take the baby to the hospital or otherwise seek medical care, did not care for her baby all night, and repeatedly put her baby in the care of an irresponsible caretaker, defendant was properly convicted under subsection A of § 18.2-371.1 . Magno v. Commonwealth,, 2008 Va. App. LEXIS 528 (Dec. 9, 2008).

Evidence sufficient to show intent. - In a prosecution arising from a spiral fracture of the femur of a four month old child, the evidence was sufficient to show intent where the baby slept next to the defendant and the mother, and that shortly after the baby awoke at 4:20, the mother discovered that the baby's leg was limp and motionless, and that the fracture injury was one that is extremely rare, usually associated with abuse. Towns v. Commonwealth, No. 0346-98-3 (Ct. of Appeals Mar. 30, 1999).

The defendant's actions were "willful" where the evidence was sufficient to establish that the defendant, a professional daycare provider, shook a five-month-old infant so violently as to cause brain injury; the defendant's spoken intent to force the child to conform to her idea of an appropriate schedule would not justify shaking her, nor would the crying of a five-month-old infant justify such treatment and the jury was entitled to conclude from the evidence that the child did not conform to the defendant's expectations for behavior and the defendant responded by brutally shaking her into submission. Collado v. Commonwealth, 33 Va. App. 356, 533 S.E.2d 625, 2000 Va. App. LEXIS 635 (2000).

Evidence was insufficient to prove defendant's actions constituted "willful" act or omission under this section where, although defendant was negligent in forgetting to turn off a gas jet and in failing to check the operability of smoke detectors, and defendant, without question, purposefully and intentionally left her apartment to visit a friend in another residential building, the evidence failed to support the conclusion that she acted with knowledge or consciousness that her children would be injured as a likely result of her departure. Ellis v. Commonwealth, 29 Va. App. 548, 513 S.E.2d 453 (1999).

Circumstantial evidence. - In a case in which defendant was convicted of felony child abuse, the appellate court concluded that the evidence was sufficient to prove that defendant's acts were so gross, wanton, and culpable as to show a reckless disregard for human life. While defendant argued that the evidence was insufficient because there was no direct evidence of how the bruising on the child occurred or when it occurred, circumstantial evidence tended to prove that the child's injuries were inflicted by defendant while the child was in defendant's care. Pullin v. Commonwealth, No. 1117-18-1, 2019 Va. App. LEXIS 229 (Ct. of Appeals Oct. 15, 2019).

CIRCUIT COURT OPINIONS

Reckless disregard for human life. - Infliction of the child's injuries constituted a willful act that was so gross, wanton, and culpable as to show a reckless disregard for human life; the evidence thereby satisfied subdivision B 1 of § 18.2-371.1 . Commonwealth v. Griffis, 101 Va. Cir. 27, 2019 Va. Cir. LEXIS 13 (Norfolk Jan. 10, 2019).

Exclusion of certain evidence. - Photographic evidence of defendant's horrible housekeeping practices had only tangential value with respect to the issue of "willful" neglect and protecting a child from a loaded gun hanging on a wall in the home, and the prejudicial effect was potentially extreme in that jurors could conclude that defendant was a bad mother and lose sight of the issue; therefore, the evidence could be excluded. Commonwealth v. Phillips, 59 Va. Cir. 394, 2002 Va. Cir. LEXIS 229 (Spotsylvania County 2002).

Evidence insufficient to show serious injury. - Conviction for child abuse or neglect causing serious injury was set aside; the Commonwealth did not prove that defendant caused the hypoxia to the brain, and the court agreed that non-life-threatening bruises and a small laceration on the forehead, even one that would scar, did not satisfy the statutory definition of serious injury. Commonwealth v. Griffis, 101 Va. Cir. 27, 2019 Va. Cir. LEXIS 13 (Norfolk Jan. 10, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Members' petition for a special meeting of the board of directors of a property owners' association is not a "communication" that requires the board to provide a reasonable, effective, and free method of exchange with other owners. See opinion of Attorney General to The Honorable Vincent F. Callahan, Jr., Member, House of Delegates, 03-107 (2/17/04).

The defense provided where a child is left at a hospital or rescue squad creates an affirmative defense to criminal acts of child abuse and neglect, but does not provide an affirmative defense to civil findings of child abuse and neglect. See opinion of Attorney General to The Honorable Martin E. Williams, Member, Senate of Virginia, 03-105 (12/16/03).

§ 18.2-371.2. Prohibiting purchase or possession of tobacco products, nicotine vapor products, alternative nicotine products, and hemp products intended for smoking by a person under 21 years of age or sale of tobacco products, nicotine vapor products, alternative nicotine products, and hemp products intended for smoking to persons under 21 years of age.

  1. No person shall sell to, distribute to, purchase for, or knowingly permit the purchase by any person less than 21 years of age, knowing or having reason to believe that such person is less than 21 years of age, any tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking.

    Tobacco products, nicotine vapor products, alternative nicotine products, and hemp products intended for smoking may be sold from a vending machine only if the machine is (i) posted with a notice, in a conspicuous manner and place, indicating that the purchase or possession of such products by persons under 21 years of age is unlawful and (ii) located in a place that is not open to the general public and is not generally accessible to persons under 21 years of age. An establishment that prohibits the presence of persons under 21 years of age unless accompanied by a person 21 years of age or older is not open to the general public.

  2. No person less than 21 years of age shall attempt to purchase, purchase, or possess any tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking. The provisions of this subsection shall not be applicable to the possession of tobacco products, nicotine vapor products, alternative nicotine products, or hemp products intended for smoking by a person less than 21 years of age (i) making a delivery of tobacco products, nicotine vapor products, alternative nicotine products, or hemp products intended for smoking in pursuance of his employment or (ii) as part of a scientific study being conducted by an organization for the purpose of medical research to further efforts in cigarette and tobacco use prevention and cessation and tobacco product regulation, provided that such medical research has been approved by an institutional review board pursuant to applicable federal regulations or by a research review committee pursuant to Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1. This subsection shall not apply to purchase, attempt to purchase, or possession by a law-enforcement officer or his agent when the same is necessary in the performance of his duties.
  3. No person shall sell a tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking to any individual who does not demonstrate, by producing a driver's license or similar photo identification issued by a government agency, that the individual is at least 21 years of age. Such identification is not required from an individual whom the person has reason to believe is at least 21 years of age or who the person knows is at least 21 years of age. Proof that the person demanded, was shown, and reasonably relied upon a photo identification stating that the individual was at least 21 years of age shall be a defense to any action brought under this subsection. In determining whether a person had reason to believe an individual is at least 21 years of age, the trier of fact may consider, but is not limited to, proof of the general appearance, facial characteristics, behavior, and manner of the individual.

    This subsection shall not apply to mail order or Internet sales, provided that the person offering the tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking for sale through mail order or the Internet (i) prior to the sale of the tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking verifies that the purchaser is at least 21 years of age through a commercially available database that is regularly used by businesses or governmental entities for the purpose of age and identity verification and (ii) uses a method of mailing, shipping, or delivery that requires the signature of a person at least 21 years of age before the tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking will be released to the purchaser.

  4. The provisions of subsections B and C shall not apply to the sale, giving, or furnishing of any tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking to any active duty military personnel who are 18 years of age or older. An identification card issued by the Armed Forces of the United States shall be accepted as proof of age for this purpose.
  5. A violation of subsection A or C by an individual or by a separate retail establishment that involves a nicotine vapor product, alternative nicotine product, hemp product intended for smoking, or tobacco product other than a bidi is punishable by a civil penalty not to exceed $100 for a first violation, a civil penalty not to exceed $200 for a second violation, and a civil penalty not to exceed $500 for a third or subsequent violation.

    A violation of subsection A or C by an individual or by a separate retail establishment that involves the sale, distribution, or purchase of a bidi is punishable by a civil penalty in the amount of $500 for a first violation, a civil penalty in the amount of $1,000 for a second violation, and a civil penalty in the amount of $2,500 for a third or subsequent violation. Where a defendant retail establishment offers proof that it has trained its employees concerning the requirements of this section, the court shall suspend all of the penalties imposed hereunder. However, where the court finds that a retail establishment has failed to so train its employees, the court may impose a civil penalty not to exceed $1,000 in lieu of any penalties imposed hereunder for a violation of subsection A or C involving a nicotine vapor product, alternative nicotine product, hemp product intended for smoking, or tobacco product other than a bidi.

    A violation of subsection B is punishable by a civil penalty not to exceed $100 for a first violation and a civil penalty not to exceed $250 for a second or subsequent violation. A court may, as an alternative to the civil penalty, and upon motion of the defendant, prescribe the performance of up to 20 hours of community service for a first violation of subsection B and up to 40 hours of community service for a second or subsequent violation. If the defendant fails or refuses to complete the community service as prescribed, the court may impose the civil penalty. Upon a violation of subsection B, the judge may enter an order pursuant to subdivision A 9 of § 16.1-278.8.

    Any attorney for the Commonwealth of the county or city in which an alleged violation occurred may bring an action to recover the civil penalty, which shall be paid into the state treasury. Any law-enforcement officer may issue a summons for a violation of subsection A, B, or C.

    1. Cigarettes and hemp products intended for smoking shall be sold only in sealed packages provided by the manufacturer, with the required health warning. The proprietor of every retail establishment that offers for sale any tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking shall post in a conspicuous manner and place a sign or signs indicating that the sale of tobacco products, nicotine vapor products, alternative nicotine products, or hemp products intended for smoking to any person under 21 years of age is prohibited by law. Any attorney for the county, city, or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $50. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city, or town which instituted the action. F. 1.  Cigarettes and hemp products intended for smoking shall be sold only in sealed packages provided by the manufacturer, with the required health warning. The proprietor of every retail establishment that offers for sale any tobacco product, nicotine vapor product, alternative nicotine product, or hemp product intended for smoking shall post in a conspicuous manner and place a sign or signs indicating that the sale of tobacco products, nicotine vapor products, alternative nicotine products, or hemp products intended for smoking to any person under 21 years of age is prohibited by law. Any attorney for the county, city, or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $50. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city, or town which instituted the action.
    2. For the purpose of compliance with regulations of the Substance Abuse and Mental Health Services Administration published at 61 Federal Register 1492, the Department of Agriculture and Consumer Services may promulgate regulations which allow the Department to undertake the activities necessary to comply with such regulations.
    3. Any attorney for the county, city, or town in which an alleged violation of this subsection occurred may enforce this subsection by civil action to recover a civil penalty not to exceed $100. The civil penalty shall be paid into the local treasury. No filing fee or other fee or cost shall be charged to the county, city, or town which instituted the action.
  6. Nothing in this section shall be construed to create a private cause of action.
  7. Agents of the Virginia Alcoholic Beverage Control Authority designated pursuant to § 4.1-105 may issue a summons for any violation of this section.
  8. As used in this section:

    "Alternative nicotine product" means any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. "Alternative nicotine product" does not include any nicotine vapor product, tobacco product, or product regulated as a drug or device by the U.S. Food and Drug Administration (FDA) under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

    "Bidi" means a product containing tobacco that is wrapped in temburni leaf (diospyros melanoxylon) or tendu leaf (diospyros exculpra), or any other product that is offered to, or purchased by, consumers as a bidi or beedie.

    "Hemp product" means the same as that term is defined in § 3.2-4112.

    "Nicotine vapor product" means any noncombustible product containing nicotine that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor from nicotine in a solution or other form. "Nicotine vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device. "Nicotine vapor product" does not include any product regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

    "Tobacco product" means any product made of tobacco and includes cigarettes, cigars, smokeless tobacco, pipe tobacco, bidis, and wrappings. "Tobacco product" does not include any nicotine vapor product, alternative nicotine product, or product that is regulated by the FDA under Chapter V (21 U.S.C. § 351 et seq.) of the Federal Food, Drug, and Cosmetic Act.

    "Wrappings" includes papers made or sold for covering or rolling tobacco or other materials for smoking in a manner similar to a cigarette or cigar.

    (1986, c. 406; 1991, c. 558; 1993, c. 631; 1994, c. 305; 1995, c. 675; 1996, cc. 509, 517; 1997, cc. 812, 882; 1998, c. 363; 1999, c. 1020; 2000, c. 883; 2003, cc. 114, 615; 2014, cc. 357, 394; 2015, cc. 38, 730, 739, 756; 2019, cc. 90, 102; 2020, cc. 406, 524.)

Editor's note. - Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

The 1995 amendment, in subsection A, in the first sentence, deleted "or" following "distribute to" and inserted "or knowingly permit the purchase by", and, in the second sentence, substituted "Where any" for "However, the provisions of this subsection shall not apply to the sale of any", inserted "is sold", deleted "provided" preceding "notice", and substituted "shall also be posted" for "is posted"; in subsection C, in the first sentence, substituted "fifty dollars" for "$50" and substituted "penalty not to exceed $100 for a second violation" for "penalty of $100 for any subsequent violation", and added the present second and third sentences; and in subsection D, added the present first sentence and substituted "fifty dollars" for "$50" in the present third sentence.

The 1996 amendments. - The 1996 amendment by c. 509, in subsection A, in the second sentence, substituted "No tobacco" for "Where any tobacco," substituted "may be sold" for "is sold," added clause (i), inserted the clause (ii) designation, inserted "unless" preceding "notice," and substituted "is posted" for "shall also be posted," inserted "and the judge in his discretion may enter an order pursuant to subdivision 9 of § 16.1-278.8" following "punishable by a civil penalty not to exceed $100" in the third sentence of subsection D, inserted the subdivision E 1 designation, and added subdivisions E 2 through E 4.

The 1996 amendment by c. 517 added present subsection C, redesignated former subsections C through E as present subsections D through F, and substituted "subsection A, B, or C" for "subsection A or B" in two places in present subsection D.

The 1997 amendments. - The 1997 amendments by cc. 812 and 882, effective April 2, 1997, are identical, and in subsection D, in the first sentence, substituted "subsection A or C" for "subsection A, B, or C" preceding "by an individual," substituted "$100" for "fifty dollars" preceding "for a first" and substituted "$200" for "$100" preceding "for a second," substituted "$500" for "$250" at the end of the second sentence, divided the former third sentence into the present third and fourth sentences by inserting "Upon a third or subsequent violation of subsection B" at the beginning of the present fourth sentence, and in the present third sentence, deleted "third or subsequent" following "A" at the beginning, and substituted "$50 for a first violation and a civil penalty not to exceed $100 for a second or subsequent violation" for "$100, and"; and added subsection G.

The 1998 amendment, in subsection A, rewrote the second sentence and added the present third sentence; in subsection E, deleted former subdivision 2, which related to the operation of vending machines which dispense tobacco products and redesignated former subdivisions 3 and 4 as present subdivisions 2 and 3.

The 1999 amendment, in subsection D, rewrote the former first paragraph, which read: "A violation of subsection A or C by an individual or by a separate retail establishment shall be punishable by a civil penalty not to exceed $100 for a first violation and, a civil penalty not to exceed $200 for a second violation. However, subsequent violation of subsection A shall be punishable by a civil penalty not to exceed $500" and rewrote the former second paragraph, which read: "A violation of subsection B shall be punishable by a civil penalty not to exceed $50 for a first violation and a civil penalty not to exceed $100 for a second or subsequent violation. Upon a third or subsequent violation of subsection B, the judge in his discretion may enter an order pursuant to subdivision 9 of § 16.1-278.8."

The 2000 amendments. - The 2000 amendment by c. 883, in subsections A and B and subdivision E 1, deleted "and" following "cigarettes," and inserted "and bidis"; in the first sentence of subsection C, inserted "including but not limited to cigarettes, cigars, and bidis;" in the first paragraph of subsection D, inserted "that involves a tobacco product other than a bidi" in the first sentence, inserted "A violation" and inserted language beginning "or C by an individual" and ending "for a third or subsequent violation" in the second sentence, and added "for a violation of subsection A or C involving a tobacco product other than a bidi" at the end of the last sentence; and added subsection H.

The 2003 amendments. - The 2003 amendment by c. 114 substituted "18" for "eighteen" throughout; in subsection B, inserted "attempt to purchase" in the first sentence of the first paragraph, and added the present last sentence; and substituted "$50" for "fifty dollars" in subdivision E 1.

The 2003 amendment by c. 615 substituted "18" for "eighteen," and "bidis, and wrappings" for "and bidis" in subsections A, B and C; inserted "including wrappings" following "tobacco products" in subsection B; in subdivision E 1, substituted "18" for "eighteen" and substituted "$50" for "fifty" and inserted "including wrappings" following "tobacco products"; and in subsection H, inserted "and" at the end of the definition of "Bidi" and added the definition of "Wrappings."

The 2014 amendments. - The 2014 amendments by cc. 357 and 394 are identical, and substituted "nicotine vapor product, or alternative nicotine product" for variations of "including but not limited to cigarettes, cigars, bidis, and wrappings" throughout subsections A through C and E; and in the second paragraph of subsection C, inserted "or Internet" and the language beginning "provided that the person" to the end of the paragraph; throughout subsection D, inserted "nicotine vapor product, alternative nicotine product, or" and substituted "is" for "shall be" in the second paragraph; and in subsection H added the definitions of "Alternative nicotine product," "Nicotine vapor product," and "Tobacco product"; and made a stylistic change.

The 2015 amendments. - The 2015 amendment by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Authority" for "Board" in subsection G.

The 2015 amendments by cc. 739 and 756 are identical, and substituted "signature of a person at least 18 years of age" for "purchaser's signature" in the second paragraph of subsection C.

The 2019 amendments. - The 2019 amendments by cc. 90 and 102 are identical, and substituted "21 years" for "18 years" throughout; in the second paragraph of subsection A, inserted "nicotine vapor products, and alternative nicotine products," three times substituted "persons under 21 years of age" for "minors" and substituted "a person 21 years of age or older" for "an adult"; added subsection D and redesignated remaining subsections accordingly; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 406 inserted "or hemp product intended for smoking" and similar language pertaining to hemp products intended for smoking throughout subsections A through F; in the second paragraph of subsection A, substituted "such products" for "tobacco products" in clause (i); in subsection I, inserted the definition for "Hemp product"; and made stylistic changes.

The 2020 amendment by c. 524, in the second sentence of subsection B, inserted the clause (i) designation and added clause (ii).

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For note, "Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest," 97 Va. L. Rev. 1727 (2011).

§ 18.2-371.3. Tattooing or body piercing of minors.

No person shall tattoo or perform body piercing for hire or consideration on a person less than eighteen years of age, knowing or having reason to believe such person is less than eighteen years of age except (i) in the presence of the person's parent or guardian, or (ii) when done by or under the supervision of a medical doctor, registered nurse or other medical services personnel licensed pursuant to Title 54.1 in the performance of their duties.

In addition, no person shall tattoo or perform body piercing on any client unless he complies with the Centers for Disease Control and Prevention's guidelines for "Universal Blood and Body Fluid Precautions" and provides the client with the following disclosure:

  1. Tattooing and body piercing are invasive procedures in which the skin is penetrated by a foreign object.
  2. If proper sterilization and antiseptic procedures are not followed by tattoo artists and body piercers, there is a risk of transmission of bloodborne pathogens and other infections, including, but not limited to, human immunodeficiency viruses and hepatitis B or C viruses.
  3. Tattooing and body piercing may cause allergic reactions in persons sensitive to dyes or the metals used in ornamentation.
  4. Tattooing and body piercing may involve discomfort or pain for which appropriate anesthesia cannot be legally made available by the person performing the tattoo or body piercing unless such person holds the appropriate license from a Virginia health regulatory board.

    A person who violates this section is guilty of a Class 1 misdemeanor.

    For the purposes of this section:

    "Body-piercing" means the act of penetrating the skin to make a hole, mark, or scar, generally permanent in nature. "Body piercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter or lobe of the ear or both.

    "Tattoo" means to place any design, letter, scroll, figure, symbol or any other mark upon or under the skin of any person with ink or any other substance resulting in the permanent coloration of the skin, including permanent make-up or permanent jewelry, by the aid of needles or any other instrument designed to touch or puncture the skin.

    (1997, c. 586; 2000, c. 842; 2001, c. 270; 2006, c. 692.)

Cross references. - As to regulation of tattoo parlors and body-piercing salons, see § 15.2-912 .

The 2000 amendments. - The 2000 amendment by c. 842, in the first paragraph, inserted "or perform body piercing on" near the beginning of the first sentence, substituted "Class 2" for "Class 3" near the end of the second sentence, and added the third sentence; divided the former second paragraph into the present second and fourth paragraphs; and inserted the present third paragraph.

The 2001 amendments. - The 2001 amendment by c. 270 added the second paragraph and subdivisions 1 through 4, and inserted "including permanent make-up or permanent jewelry" in the paragraph defining "Tattoo."

The 2006 amendments. - The 2006 amendment by c. 692 inserted "for hire or consideration" in the first paragraph of the introductory language; and in the paragraph following subdivision 4, substituted "Class 1" for "Class 2" and deleted the second sentence, which read: "Any second or subsequent violation of this section shall be punished as a Class 1 misdemeanor."

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For 2000 survey of Virginia health law, see 34 U. Rich. L. Rev. 853 (2000).

CIRCUIT COURT OPINIONS

Ordinance banning tattooing. - City ordinance's total ban on tattooing violated § 1-248 , as it conflicted with Virginia's policy of restricting but not banning tattooing, as expressed in §§ 15.2-912 and 18.2-371.3 . Thus, the city's demurrer to petitioner's claim that the ordinance was inconsistent with state law was denied. Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, 72 Va. Cir. 388, 2007 Va. Cir. LEXIS 151 (Norfolk 2007).

§ 18.2-371.4. Prohibiting the sale of novelty lighters to juveniles.

  1. "Novelty lighter" means a mechanical or electrical device containing a combustible fuel typically used for lighting cigarettes, cigars, or pipes that is (i) designed to resemble a cartoon character, toy, gun, watch, musical instrument, vehicle, animal, food, or beverage, or (ii) a fanciful article that plays musical notes, has flashing lights, or has other entertaining features that are appealing to or intended for use by juveniles. A novelty lighter may operate on any fuel, including butane, isobutene, or liquid fuel.
  2. "Novelty lighter" does not include (i) a lighter without fuel and that is incapable of being fueled, (ii) a lighter lacking a device necessary to produce combustion or a flame, (iii) a mechanical or electrical device primarily used to ignite fuel for fireplaces or for charcoal or gas grills, (iv) a lighter manufactured prior to 1980, or (v) a standard disposable lighter that is printed or decorated with logos, labels, decals, or artwork, or heat shrinkable sleeves.
  3. Novelty lighters that are available for purchase at a retail establishment shall be located in a place that is not open to the general public.
  4. Any individual who sells a novelty lighter to a person he knows or has reason to know is a juvenile is subject to a civil penalty of no more than $100.
  5. This section may be enforced by the State Fire Marshal's Office, local fire marshals appointed pursuant to § 27-34.2 or 27-34.2:1 , or law-enforcement officers. (2009, c. 668.)

Article 5. Obscenity and Related Offenses.

§ 18.2-372. "Obscene" defined.

The word "obscene" where it appears in this article shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

(Code 1950, § 18.1-227; 1960, c. 233; 1975, cc. 14, 15.)

Cross references. - As to public and private schools blocking Internet access to material defined in this section as obscene, see § 22.1-70.2.

As to inspections and disclosure requirements involving barbershops, barber schools, cosmetology salons and schools, nail care salons and schools, tattoo parlors and schools, and body-piercing salons and schools, see § 54.1-705 .

For definition of "barrier crime" as including a conviction of employing or permitting a minor to assist in an act constituting an offense under § 18.2-372 et seq. as set out in § 18.2-379 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including employing or permitting a minor to assist in an act constituting an offense under § 18.2-372 et seq., as set out in § 18.2-379 , or an equivalent offense in another state, see § 63.2-1726 .

Law review. - For comment on the law of obscenity in Virginia, see 17 Wash. & Lee L. Rev. 322 (1960). For article on written obscenity, see 11 Wm. & Mary L. Rev. 106 (1969). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1 Courts. § 1.05 District Courts. Friend.

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 12A M.J. Libel & Slander, § 49; 18 M.J. Telegraph and Telephone Companies, § 2.

CASE NOTES

This section has passed constitutional muster. It has been found to give "adequate warning of the conduct proscribed" so as to permit the law to be fairly administered. United States v. Pryba, 674 F. Supp. 1504 (E.D. Va. 1987).

Exercise of police power. - The Commonwealth of Virginia, in the exercise of its police power, may properly determine that public exhibition of or traffic in obscenity may be contrary to the public interest. The Commonwealth, acting through the General Assembly, has made such a determination in enacting the state obscenity laws and authorizing local governing bodies to adopt similar local ordinances. KMA, Inc. v. City of Newport News, 228 Va. 365 , 323 S.E.2d 78 (1984), cert. denied, 471 U.S. 1100, 105 S. Ct. 2324, 85 L. Ed. 2d 842 (1985).

Interpretation by Supreme Court. - For the purpose of testing the constitutionality of Virginia's statute, the interpretation by the Supreme Court is as definitive as if the statute had been amended by the legislature. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

The definition of obscenity adopted by Virginia courts fully complies with the constitutional standards prescribed by the Supreme Court. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

The definition of obscenity approved by Virginia's highest court is binding upon the state's trial courts and magistrates. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

The Supreme Court has narrowed the definition of obscenity by judicial construction. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

"Obscenity." - Obscenity is defined in the following terms: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. Under this definition, as elaborated in subsequent cases, three elements must coalesce: It must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

In the definition of obscenity three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. Price v. Commonwealth, 213 Va. 113 , 189 S.E.2d 324 (1972).

In House v. Commonwealth , 210 Va. 121 , 169 S.E.2d 572 (1969), the Supreme Court expressly recognized that in determining whether a publication was constitutionally protected, Virginia courts were bound by the Supreme Court's definition of obscenity found in Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) as amplified and explained in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen. , 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). Consequently, in a prosecution charging the sale of obscene magazines, the Supreme Court found the evidence to be insufficient to support a conviction when measured by the following test: "Whether to the average person, applying contemporary community standards: (1) the dominant theme of the material taken as a whole appeals to a prurient interest; (2) that is a shameful or morbid patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (3) the material is utterly without redeeming social value." Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

Court of appeals erred in affirming defendant's conviction for harassment by computer in violation § 18.2-152.7:1 because it should not have substituted a dictionary definition of "obscene" for that provided by the general assembly in § 18.2-372 ; the general assembly provided a definition of "obscene" in § 18.2-372 to comport with constitutional requirements, and there was no suggestion that the definition was constitutionally infirm. Barson v. Commonwealth, 284 Va. 67 , 726 S.E.2d 292, 2012 Va. LEXIS 121 (2012).

Although defendant's behavior was inappropriate, it did not rise to the level of obscenity required under § 18.2-387 , as defined in § 18.2-372 , and defendant's conviction of indecent exposure was improper; nothing in the record suggested that defendant invited any sexual conduct with the victim, hinted at any sexual excitement on defendant's part, or, when defendant dropped defendant's pants upon exiting a bus (with defendant's back to the victim and running away from the victim), displayed defendant's sexual organs to the victim or to anyone else. A. M. v. Commonwealth,, 2013 Va. App. LEXIS 46 (Feb. 12, 2013).

A prurient interest is a shameful or morbid interest, in sex. Price v. Commonwealth, 213 Va. 113 , 189 S.E.2d 324 (1972).

Virginia juries have traditionally relied on local rather than statewide community standards. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

It would be difficult, if not impossible, for a Virginia jury to formulate a statewide standard of obscenity, for the state comprises communities with a vast diversity of life styles. Materials which do not offend the community standards of the metropolitan areas might well be regarded as obscene by the standards of some rural communities. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

To be obscene, conduct must violate contemporary community standards of sexual candor. Copeland v. Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000).

Expert testimony regarding community standards is not required because the fact finder may apply his or her knowledge in ascertaining the acceptable standard in the community. Copeland v. Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000).

Using the § 18.2-372 definition of "obscene," defendant's use of "whore" and repeated use of "fuck you" in an instant message were insufficient to permit a reasonable trier of fact to conclude the references were obscene. Although the words were sexually explicit, defendant's usage of the words was not erotic and did not have the purpose to appeal to a prurient interest in sex, but was used in a communication where defendant told the victim to leave defendant's roommate alone; use of the words, while offensive and coarse, was a method to show anger, contempt, or disgust with the victim and to direct the victim away from the roommate. Airhart v. Commonwealth,, 2007 Va. App. LEXIS 11 (Jan. 16, 2007).

While defendant used words which could be obscene in certain contexts, defendant used the offensive words as vulgar curse or swear words to communicate his frustration, anger, contempt or disgust with the victim. Accordingly, defendant's language failed to meet the definition of obscene as required by case law and § 18.2-372 and defendant's conviction under § 18.2-427 was reversed. Lofgren v. Commonwealth, 55 Va. App. 116, 684 S.E.2d 223, 2009 Va. App. LEXIS 491 (2009).

Trial court erred in convicting defendant of harassment by computer in violation of § 18.2-152.7:1 because the evidence was insufficient to permit a reasonable trier of fact to conclude that the e-mails defendant sent were obscene under § 18.2-372 ; although the e-mails contained vulgar, offensive, and sexually explicit language, defendant's use of those words, considered as a whole and in the context of the marital discord and the angry, offensive tone and purpose of the e-mails, did not establish or support a factual or legal determination that he intended an appeal to the prurient interest in sex, but rather, the evidence showed that defendant wrote the e-mails solely to convey his anger and disgust and that he forwarded them to his family and friends to embarrass the victim. Barson v. Commonwealth,, 2010 Va. App. LEXIS 427 (Nov. 2, 2010).

Court of appeals erred in affirming defendant's conviction for harassment by computer in violation of § 18.2-152.7:1 because defendant's emails to his wife, as offensive, vulgar, and disgusting their language could have been, did not meet the standard of obscenity provided by § 18.2-372 . Barson v. Commonwealth, 284 Va. 67 , 726 S.E.2d 292, 2012 Va. LEXIS 121 (2012).

Public obscenity is not constitutionally protected. Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir.), cert. denied, 396 U.S. 985, 90 S. Ct. 477, 24 L. Ed. 2d 449 (1969).

A portrayal of nudity is not, as a matter of law, a sufficient basis for a finding that a work is obscene. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

Computer harassment. - Defendant was properly convicted of computer harassment in violation of § 18.2-152.7:1 , as his e-mails to the victim expressed "an appeal to the prurient interest in sex," included "shameful" sexual suggestions that went "substantially beyond customary limits," made obscene proposals, and implicitly threatened "illegal or immoral" acts. Moter v. Commonwealth, 61 Va. App. 471, 737 S.E.2d 538, 2013 Va. App. LEXIS 54 (2013).

Seizure of copy of film for use as evidence. - In the enforcement of obscenity laws, a state or locality may seize single copies of films to preserve them for use as evidence, particularly where the seizure does not prevent continued exhibition of the films. KMA, Inc. v. City of Newport News, 228 Va. 365 , 323 S.E.2d 78 (1984), cert. denied, 471 U.S. 1100, 105 S. Ct. 2324, 85 L. Ed. 2d 842 (1985).

Evidence held sufficient. - Evidence that defendant exposed his genitals, that he was clearly aroused, and that he was masturbating supported the jury's findings that his conduct went "substantially beyond" acceptable community standards, and were obscene under this section. Copeland v. Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000).

Despite a trial court expressing uncertainty as to whether the applicable standard under § 18.2-387 was one of indecency or one of obscenity, any error was harmless because the verdict convicting defendant would have been the same as a result of defendant's conduct of exposing his buttocks and breasts (he was a transvestite), in the early morning hours, on a street known for illegal prostitution, which was conduct that was intentional and done with the purpose of appealing to the prurient interest in sex. Willis v. Commonwealth, No. 0173-04-2, 2005 Va. App. LEXIS 58 (Ct. of Appeals Feb. 8, 2005).

Evidence insufficient. - Evidence that defendant was in a car in a parking lot, wearing only a woman's nightgown with his genitals exposed, was insufficient to convict him of indecent exposure, as he did not admit to having an obscene intent, he was not visibly aroused, there was no evidence that he had been masturbating, and the totality of the circumstances did not support an inference that his dominant purpose was a prurient interest in sex. Romick v. Commonwealth, No. 1580-12-4, 2013 Va. App. LEXIS 336 (Nov. 19, 2013).

§ 18.2-373. Obscene items enumerated.

Obscene items shall include:

  1. Any obscene book;
  2. Any obscene leaflet, pamphlet, magazine, booklet, picture, painting, bumper sticker, drawing, photograph, film, negative, slide, motion picture, videotape recording;
  3. Any obscene figure, object, article, instrument, novelty device, or recording or transcription used or intended to be used in disseminating any obscene song, ballad, words, or sounds; or
  4. Any obscene writing, picture or similar visual representation, or sound recording, stored in an electronic or other medium retrievable in a perceivable form.

    (Code 1950, § 18.1-229; 1960, c. 233; 1975, cc. 14, 15; 1981, c. 293; 1989, c. 546; 2000, c. 1009.)

The 2000 amendments. - The 2000 amendment by c. 1009, deleted "or" at the end of subdivisions 1 and 2, inserted "or" at the end of subdivision 3, and added subdivision 4.

Law review. - For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

Applied in Educational Books, Inc. v. Commonwealth, 228 Va. 392 , 323 S.E.2d 84 (1984).

§ 18.2-374. Production, publication, sale, possession, etc., of obscene items.

It shall be unlawful for any person knowingly to:

  1. Prepare any obscene item for the purposes of sale or distribution; or
  2. Print, copy, manufacture, produce, or reproduce any obscene item for purposes of sale or distribution; or
  3. Publish, sell, rent, lend, transport in intrastate commerce, or distribute or exhibit any obscene item, or offer to do any of these things; or
  4. Have in his possession with intent to sell, rent, lend, transport, or distribute any obscene item. Possession in public or in a public place of any obscene item as defined in this article shall be deemed prima facie evidence of a violation of this section.

    For the purposes of this section, "distribute" shall mean delivery in person, by mail, messenger or by any other means by which obscene items as defined in this article may pass from one person, firm or corporation to another.

    (Code 1950, § 18.1-228; 1960, c. 233; 1962, c. 289; 1970, c. 204; 1975, cc. 14, 15.)

Cross references. - As to enhanced penalty for using a computer in connection with a violation of §§ 18.2-374 , 18.2-375 , or 18.2-376 , see § 18.2-376 .1.

Law review. - For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971). For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 14B M.J. Photographs and Photographers, § 4; 16 M.J. Searches and Seizures, § 6; 18 M.J. Theaters, Shows and Fairs, § 2.

CASE NOTES

This section does not contravene Art. I, § 12 of the Constitution of Virginia. Star News, Inc. v. Commonwealth, No. 1785-96-1 (Ct. of Appeals Jan. 6, 1998).

Provision in subdivision (4) unconstitutional. - In 1962, subdivision (4) was amended by the addition of a presumption, which renders the statute unconstitutional. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

But severable. - The presumption is unconstitutional, but severable. The remaining portion of subdivision (4) is valid. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

This section frames offenses in language that conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices and gives adequate warning of the conduct proscribed and mark the boundaries sufficiently distinct for judges and juries fairly to administer the law. United States v. Pryba, 674 F. Supp. 1504 (E.D. Va. 1987).

"Obscenity." - Obscenity is defined in Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) in the following terms: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Under this definition, as elaborated in subsequent cases, three elements must coalesce: It must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. House v. Commonwealth, 210 Va. 121 , 169 S.E.2d 572 (1969).

Section does not prohibit private possession of obscene material. - This section has not been construed to prohibit the private possession of obscene material, and there is no basis for concluding that Virginia courts would endow it with such a strained and unnatural meaning. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

Writing which proposes sexual conduct in violation of law. - It is not a per se violation of community standards for a writing to propose an act of sexual conduct that is in violation of the law. Hartman v. Commonwealth, No. 0569-98-3 (Ct. of Appeals Mar. 30, 1999).

Movie films are to be accorded the same constitutional protection as books. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

Nudity is not necessarily obscenity. House v. Commonwealth, 210 Va. 121 , 169 S.E.2d 572 (1969).

The determination whether a particular motion picture, book, or other work of expression is obscene is not merely a factual matter on which a jury's verdict is conclusive, but also involves an issue of constitutional law which must ultimately be decided by the court. House v. Commonwealth, 210 Va. 121 , 169 S.E.2d 572 (1969).

It cannot be assumed that jurors in themselves necessarily express or reflect community standards. House v. Commonwealth, 210 Va. 121 , 169 S.E.2d 572 (1969).

Expert evidence. - To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror. House v. Commonwealth, 210 Va. 121 , 169 S.E.2d 572 (1969).

Burden of proof. - Since this section provides punishment for "every person who knowingly . . . distributes . . . any obscene item," the burden is on the Commonwealth to show that magazines are obscene and that a defendant knew they were obscene when he distributed them to retail dealers. House v. Commonwealth, 210 Va. 121 , 169 S.E.2d 572 (1969).

Necessity for judicial determination that matter is in fact obscene. - A person may not be forced to go through the hardship of defending himself against a criminal prosecution - with its consequent chilling effect on him and the community at large - for possessing, selling, or promoting, etc., publications or film without the government first having judicially ascertained whether the matter for the possession, etc., of which he is being prosecuted is, in fact, obscene. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

Unconstitutional seizure. - A seizure of allegedly obscene books on the authority of a warrant issued on the strength of the conclusory assertion of a single police officer, without any scrutiny by the judge of any materials considered obscene, is an unconstitutional seizure. Lee Art Theatre, Inc. v. Commonwealth, 210 Va. 315 , 170 S.E.2d 769 (1969).

Conviction of possessing and exhibiting lewd and obscene motion pictures in violation of this section was reversed because of admission in evidence of films in question which were seized under authority of warrant issued by justice of the peace solely upon conclusory assertions of police officer without any inquiry by the justice of the peace into the factual basis for the officer's conclusions. Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S. Ct. 2103, 20 L. Ed. 2d 1313 (1968).

A city is simply entitled to retain single copies of allegedly obscene material for purposes of prosecution. Greenmount Sales, Inc. v. Davila, 479 F.2d 591 (4th Cir. 1973).

Where only single copies of allegedly obscene materials were seized and others were left on the shelves, neither the author's First Amendment right to expression nor the public's right to know is infringed. Such seizure by the police is a procedure justified by the requirements of effective law enforcement and is not prohibited by the First Amendment as a prior restraint on the circulation and dissemination of books in violation of the constitutional restrictions against abridgment of freedom of speech and press. Greenmount Sales, Inc. v. Davila, 479 F.2d 591 (4th Cir. 1973).

Evidence of probable cause for arrest. - There was no evidence of probable cause upon which the officers could have lawfully arrested defendant for violation of the obscenity law, when in searching for marijuana, one of the officers opened a chest of drawers belonging to defendant and found in it seven "nude" pictures. There was no prima facie evidence that defendant was violating the law. Upton v. Commonwealth, 211 Va. 445 , 177 S.E.2d 528 (1970).

Evidence was insufficient to support a conviction where the evidence showed that the defendant threw a magazine at a minor, but the magazine was destroyed before trial, and the only evidence of its content was the minor's testimony that he thought it was a Playboy magazine and that it had photographs of "like dirty stuff." Hartman v. Commonwealth, No. 0569-98-3 (Ct. of Appeals Mar. 30, 1999).

Evidence that defendant mailed an envelope containing obscene photographs to a television station office in Hampton, that the photographs depicted defendant in various stages of undress, and that defendant included personal information as an invitation for a news anchor to contact defendant, supported defendant's conviction for distributing obscene material under § 18.2-374 . Newby v. Commonwealth,, 2009 Va. App. LEXIS 231 (May 19, 2009).

Applied in Wall Distribs., Inc. v. City of Newport News, 228 Va. 358 , 323 S.E.2d 75 (1984); Educational Books, Inc. v. Commonwealth, 228 Va. 392 , 323 S.E.2d 84 (1984); Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903 (1986).

§ 18.2-374.1. Production, publication, sale, financing, etc., of child pornography; presumption as to age.

  1. For purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, "child pornography" means sexually explicit visual material which utilizes or has as a subject an identifiable minor. An identifiable minor is a person who was a minor at the time the visual depiction was created, adapted, or modified; or whose image as a minor was used in creating, adapting or modifying the visual depiction; and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and shall not be construed to require proof of the actual identity of the identifiable minor. For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term "sexually explicit visual material" means a picture, photograph, drawing, sculpture, motion picture film, digital image, including such material stored in a computer's temporary Internet cache when three or more images or streaming videos are present, or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390 , or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390 , or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent.
  2. A person shall be guilty of production of child pornography who:
    1. Accosts, entices or solicits a person less than 18 years of age with intent to induce or force such person to perform in or be a subject of child pornography; or
    2. Produces or makes or attempts or prepares to produce or make child pornography; or
    3. Who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means; or
    4. Knowingly finances or attempts or prepares to finance child pornography.
    5. [Repealed.]

      B1. [Repealed.]

      C1. Any person who violates this section, when the subject of the child pornography is a child less than 15 years of age, shall be punished by not less than five years nor more than 30 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section where the person is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 15 years nor more than 40 years, 15 years of which shall be a mandatory minimum term of imprisonment.

      C2. Any person who violates this section, when the subject of the child pornography is a person at least 15 but less than 18 years of age, shall be punished by not less than one year nor more than 20 years in a state correctional facility. However, if the person is at least seven years older than the subject of the child pornography the person shall be punished by term of imprisonment of not less than three years nor more than 30 years in a state correctional facility, three years of which shall be a mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this section when he is at least seven years older than the subject shall be punished by a term of imprisonment of not less than 10 years nor more than 30 years, 10 years of which shall be a mandatory minimum term of imprisonment.

      C3. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.

      D. For the purposes of this section it may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.

      E. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs, where the alleged offender resides, or where any sexually explicit visual material associated with a violation of this section is produced, reproduced, found, stored, or possessed.

      (1979, c. 348; 1983, c. 524; 1986, c. 585; 1992, c. 234; 1995, c. 839; 2007, cc. 418, 759, 823; 2013, cc. 761, 774; 2015, c. 709; 2020, c. 489.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to the Child Pornography Registry, see § 19.2-390.3 .

For provision that records involving complaints of sexual abuse of a child, including the display of the child in sexually explicit visual material, as defined in § 18.2-374.1 , and contributing to the delinquency of a minor in violation of § 18.2-371 , be made available to the attorney for the Commonwealth and the local law-enforcement agency, see § 63.2-1503 D.

For definition of "barrier crime" as including a conviction of obscenity offenses as set out in § 18.2-374.1 , and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including obscenity offenses as set out in § 18.2-374.1 , or an equivalent offense in another state, see § 63.2-1726 .

The 1995 amendment inserted "digital image" near the middle of the first sentence of subsection A; and, in subsection B, inserted "by any means, including but not limited to computer-generated reproduction" in subdivision 3, and, in subdivision 4, inserted "electronically transmits" and inserted "transmit."

The 2007 amendments. - The 2007 amendment by c. 418 substituted "18 years" for "eighteen years" throughout this section; added present subsection E; redesignated former subsection E as present subsection F.

The 2007 amendments by cc. 759 and 823 are nearly the same and rewrote the section.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added subsection C3.

The 2015 amendments. - The 2015 amendment by c. 709 deleted former subsection F pertaining to severability.

The 2020 amendments. - The 2020 amendment by c. 489 inserted "where the alleged offender resides" in subsection E.

Law review. - For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

For note, "Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases," see 52 Wm. & Mary L. Rev. 1717 (2011).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Michie's Jurisprudence. - For related discussion, see 2C M.J. Autrefois, Acquit and Convict, § 16; 4C M.J. Constitutional Law, § 78; 9B M.J. Infants, §§ 81, 89.

CASE NOTES

Objectionable provisions of subsection A held severable. - The phrase "obscene for children," and the definition thereof, were severable from the remainder of the definition of "sexually explicit visual material" set forth in subsection A as it read in 1979, and the remainder of the section met all of the requirements of New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982) and was constitutional. Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (decided under section as it read in 1979).

Elements set forth in the 1979 version of subdivisions B 1 and B 2 met the scienter requirement of New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (decided under section as it read in 1979).

The paramount legislative goal of this section was to protect children from the harm they suffer when they are induced to become models for such materials, irrespective of the motive or intent of the offender. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Compelling interest of state in protecting children. - The state has a compelling interest, one central to its right to survive, in protecting its children from treatment it determines is physically or psychologically injurious to youth, and this section is intended to further the state's interest by punishing and deterring such treatment. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Relationship with federal sentencing laws. - Because defendant's prior 1984 conviction under subdivision B 2 of § 18.2-374.1 categorically qualified as the type of conviction Congress sought to include as a predicate conviction within 18 U.S.C.S. § 2252A(b)(1)'s broadly phrased sentencing enhancement, defendant's sentence was affirmed. United States v. Colson, 683 F.3d 507, 2012 U.S. App. LEXIS 12936 (4th Cir. 2012).

Effect on adult's First Amendment rights incidental. - The process of production from which the harm flows cannot effectively be curtailed unless the profit motive is contained. Whatever restriction the distribution penalties impose upon the First Amendment rights of adults who want to sell or view child pornography is merely an effect incidental to the achievement of the goal this section pursues. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

No constitutional requirement to define obscenity by adult standards. - In the enactment of this section to protect children exploited by adults in the production of pornography, the legislature is not constitutionally required to define obscenity by adult standards. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

No double jeopardy violation. - Appellant's conviction for the manufacture of child pornography, former subsection B of § 18.2-374.1 , and indecent liberties, subsection A of § 18.2-370 , did not violate double jeopardy where the charged offenses did not require proof of the same elements in all circumstances. Sandoval v. Commonwealth, 64 Va. App. 398, 768 S.E.2d 709, 2015 Va. App. LEXIS 60 (Feb. 24, 2015).

Trial court did not err in denying appellant's motion to strike 10 counts of manufacturing child pornography down to one count where the Virginia legislature had demonstrated its clear intent that production of a single photograph could have constituted an offense under § 18.2-374.1 and that multiple punishments would have resulted from multiple violations of the statute. Sandoval v. Commonwealth, 64 Va. App. 398, 768 S.E.2d 709, 2015 Va. App. LEXIS 60 (Feb. 24, 2015).

Possession of child pornography is not a lesser-included offense of production of child pornography because one can commit the offense of production of child pornography without ever possessing that child pornography. Therefore, the offenses were not the same offenses for double jeopardy purposes and the trial court did not err in convicting and punishing defendant separately for each offense. Servais v. Commonwealth, No. 0297-19-3, 2020 Va. App. LEXIS 130 (Apr. 28, 2020).

Material depicting lewd exhibition of a juvenile's genitals is "hard core" obscenity for children. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Photographing of exposed nipples, while within the literal definition of nudity under § 18.2-390 , is not, without more, the lewd exhibition of nudity required under this section as it read in 1979. Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (decided under section as it read in 1979).

In a prosecution under this section, the inquiry is whether the material in issue is obscene for children. If the evidence shows that it is, the offense is complete, and how the defendant may have regarded it is irrelevant. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

The scienter requirement of this section is satisfied if the defendant was aware of the nature of the material in issue, even if he did not know it was illegal. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Jurors are qualified to judge a picture from a child's viewpoint and decide what effects it may have and whether it has any redeeming social value for the average member of the juvenile community. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Each instance of reproduction of child pornography is a separate offense. - Where defendant was observed over a period of hours printing four distinct images of child pornography from the Internet at a public library, double jeopardy protection did not preclude defendant's conviction for each of the four instances of reproduction of child pornography under § 18.2-374.1 , since the intent of the legislature was to consider each reproduction of an item of sexually explicit visual material as a unit of prosecution. Slavek v. Hinkle, 359 F. Supp. 2d 473, 2005 U.S. Dist. LEXIS 4107 (E.D. Va. 2005).

By using the word "a" followed by a succession of singular nouns in the definition of sexually explicit visual material in subsection A of § 18.2-374.1 , the Virginia legislature has demonstrated its clear intent that possession of a single photograph could constitute an offense under § 18.2-374.1 and that multiple punishments would result from multiple violations of the statute. Accordingly, the permissible unit of prosecution for possession of child pornography under subdivision B 4 of § 18.2-374.1 corresponds to the number of individual items of sexually explicit visual material, and the trial court correctly ruled that appellant's convictions on the child pornography charges were not multiplicitous. Mason v. Commonwealth, 49 Va. App. 39, 636 S.E.2d 480, 2006 Va. App. LEXIS 505 (2006).

Three separate images not required. - Defendant's convictions for possession of child pornography and possession of child pornography second or subsequent offense was appropriate because subsection A of § 18.2-374.1 , which defined "child pornography," did not require that each conviction be supported by three separate images containing child pornography. Chapman v. Commonwealth, 56 Va. App. 725, 697 S.E.2d 20, 2010 Va. App. LEXIS 340 (2010).

Evidence of prior sexual conduct between photographer and child admissible. - In a prosecution under this section for photographing a nude five-year-old in prurient positions, evidence of prior sexual conduct between the photographer and the child was admissible to show a motive or purpose which the photographer might have had in taking such pictures. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Photographs of nude daughter failed to prove violation of subdivision B 3. - Because the photographs of defendant's nude daughter did not constitute lewd exhibitions of nudity, the evidence failed to establish that defendant sought to reproduce sexually explicit material involving a minor within the purview of subdivision B 3. Foster v. Commonwealth, No. 0369-87-2 (Ct. of Appeals Nov. 21, 1989).

Photographs considered sexually explicit. - Photographs, which contained as their primary focus the close-up views of the teenager's genitalia, depicted the teenager sitting with her knees up to her breast and her legs widely spread to expose a frontal view of her genitalia were sexually explicit within the meaning of this section. Asa v. Commonwealth, 17 Va. App. 714, 441 S.E.2d 26 (1994).

Mere presence of nudity in a photograph, even child nudity, does not constitute child pornography as that term is defined by Virginia law; instead, the picture must contain a lewd exhibition of nudity. United States v. Doyle, 650 F.3d 460, 2011 U.S. App. LEXIS 10361 (4th Cir. 2011).

Evidence was sufficient to convict defendant of possession of child pornography; his photos of a nude 17-year-old girl were "sexually explicit visual material" because they depicted her lying and sitting on a bed, a sexually suggestive setting, and showed her breasts and genitalia, and in view of his sexual relationship with her and the fact that he groped her breast while taking the photos, the jury could have inferred that he created the images with a lascivious intent. Phan Le v. Commonwealth,, 2014 Va. App. LEXIS 352 (Oct. 21, 2014).

Evidence was sufficient to convict defendant of two counts of distributing child pornography because the jury was not plainly wrong in finding that the images depicted minors and were lewd depictions of nudity as defendant told an investigator that he had used the search term "kiddy porn" and had put the search terms a little lower when his searches for 16 and 17-year-old girls failed to yield the desired results; the appearance of the females in the photos suggested they were underage; Exhibit One showed a visibly aroused male touching his genitals to a female's; and Exhibit Two depicted three females lying naked in a bed in a manner that could reasonably be interpreted as sexually provocative or enticing. Coleman v. Commonwealth, No. 0096-16-3, 2016 Va. App. LEXIS 369 (Ct. of Appeals Dec. 27, 2016).

Evidence was sufficient to show defendant intended to induce child to be the subject of sexually explicit visual material from his actions in showing child close-up photographs of male and female genitalia; in telling her not to tell anyone what had happened the day he showed her the pictures; in defendant's handwritten account asking her to model as his corpse; and in asking her to accompany him when he took pictures of dead children. Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (decided under section as it read in 1979).

Evidence was insufficient to show that defendant intended to induce or force child to perform in or be the subject of sexually explicit visual material since the evidence only showed that defendant photographed child in a bathing suit and showed her pictures of nude children he had taken and had another child read a typewritten introduction to a photograph album that stated the album contained nude pictures. Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988) (decided under section as it read in 1979).

Evidence was sufficient to sustain conviction. - Evidence was sufficient to support defendant's convictions for forcible sodomy, in violation § 18.2-67.1 A, rape, in violation of § 18.2-61 , and producing sexually explicit material, in violation of § 18.2-374.1 , where evidence showed that a victim and defendant engaged in oral sex while the victim's mother was at work, during a strip poker game in which the victim ran out of clothes and had to do favors for defendant, which included putting defendant's penis in the victim's mouth and defendant putting defendant's penis in the victim's vagina; in addition, there was testimony that a victim made videos at defendant's direction and that these were termed a type of punishment, and the videos detailed various instances of sexual abuse, at least one of which was seen by the victims' 13-year-old brother. Cairns v. Commonwealth, 40 Va. App. 271, 579 S.E.2d 340, 2003 Va. App. LEXIS 221 (2003).

Trial court properly convicted defendant of possession of child pornography and revoked his probation because defendant's ownership of a cell phone on which an image of his 17 1/2-year old girlfriend manipulating her genitalia with her hand was found and his statements concerning that image to others established that he knowingly possessed a pornographic image. Bliss v. Commonwealth,, 2014 Va. App. LEXIS 177 (May 13, 2014).

Evidence was sufficient to convict defendant of two counts of rape, two counts of carnal knowledge, five counts of custodial indecent liberties with a minor, and one count of manufacturing child pornography because the victim testified that defendant had vaginal intercourse with her three or four times when she was 11 and that he continued to have vaginal intercourse with her every year, with increasing frequency after she turned 13; she testified that defendant set up a camera, they engaged in vaginal intercourse, and the victim turned off the camera; corroboration of the victim's testimony was not needed to uphold defendant's convictions; and the victim's testimony was not so inherently incredible as to render it unworthy of belief. Harris v. Commonwealth,, 2014 Va. App. LEXIS 342 (Oct. 14, 2014).

Evidence was sufficient to convict defendant of producing child pornography because, regardless of the fact that the child was clothed in Exhibit Six, the visual images were sexually explicit as they depicted lewd exhibitions of nudity by defendant because he filmed himself masturbating and ejaculating on the child; and defendant's act of masturbating until he ejaculated on the child met statutory definitions of sexual excitement and sexual conduct. Ele v. Commonwealth, No. 1602-18-1, 70 Va. App. 543, 829 S.E.2d 564, 2019 Va. App. LEXIS 162 (July 16, 2019).

Concurrent sentences proper. - Trial court followed the clear mandate of subdivision C1 of § 18.2-374.1 in convicting defendant of six counts of production of child pornography, first offense, for taking six sexually explicit photographs within a two-minute window and sentenced defendant to six minimum terms to be served concurrently with each other as Bullock v. Commonwealth , 631 S.E.2d 334 (Va. App. 2006), was not a predicate for the application of stare decisis here as Bullock's holding was limited to the imposition of multiple mandatory minimum sentences under § 18.2-53.1 , and § 18.2-53.1 specified that the punishment for violating the statute was to be separate and apart from, and was to be made to run consecutively with, any punishment received for the primary felony. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012) (decided prior to 2013 amendments, which added subsection C3).

Subdivision C1 of § 18.2-374.1 does not prohibit mandatory minimum sentences imposed under that section from running concurrently as: (1) § 18.2-12.1 , defining mandatory minimum, does not require that mandatory minimum sentences run consecutively; (2) § 19.2-308 provides that when any person is convicted of two or more offenses, and sentenced to confinement, such sentences shall not run concurrently, unless expressly ordered by the court; and (3) if subdivision C1 of § 18.2-374.1 were interpreted to require the mandatory minimum sentences to run consecutively, it would render superfluous the words the Virginia General Assembly used in at least 11 other criminal statutes explicitly requiring that mandatory minimum sentences run consecutively. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012) (decided prior to 2013 amendments, which added subsection C3).

Trial court did not abuse its discretion in ordering defendant's six subdivision C1 sentences to run concurrently with each other as: (1) § 18.2-12.1 , defining mandatory minimum, did not require that mandatory minimum sentences run consecutively; (2) § 19.2-308 provided that when any person was convicted of two or more offenses, and sentenced to confinement, such sentences were not to run concurrently, unless expressly ordered by the court; and (3) if subdivision C1 of § 18.2-374.1 were interpreted to require the mandatory minimum sentences to run consecutively, it would render superfluous the words the Virginia general assembly used in at least 11 other criminal statutes explicitly requiring that mandatory minimum sentences run consecutively. Commonwealth v. Jefferson, 60 Va. App. 749, 732 S.E.2d 728, 2012 Va. App. LEXIS 323 (2012) (decided prior to 2013 amendments, which added subsection C3).

Actual innocence not proven. - Despite the child victim's recantation, the prisoner failed to establish actual innocence with respect to two charges against him that were nolle prossed - i.e., producing sexually explicit material involving a person under the age of 18, in violation of subdivisions B 2 and B 3 of § 18.2-374.1 . At best, the new evidence the prisoner offered indicated that he was actually innocent of producing any pornographic material utilizing the child victim, but the evidence failed to demonstrate that it was more likely than not that no reasonable juror would have found the prisoner guilty beyond a reasonable doubt of producing pornographic material depicting a person, other than the child victim, who was under the age of 18. DiCaprio-Cuozzo v. Johnson,, 2010 U.S. Dist. LEXIS 108702 (E.D. Va. Oct. 12, 2010).

Applied in Frantz v. Commonwealth, 9 Va. App. 348, 388 S.E.2d 273 (1990).

CIRCUIT COURT OPINIONS

Not overbroad or vague. - Rebuttable permissive presumption contained in subsection D does not appear to contain any constitutional infirmity, because it is neither vague nor overbroad. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Severability. - Under subsection E [now subsection F], even if the court were to find that some sections of the Virginia Child Pornography statute overbroad or vague and thus unconstitutional, the remaining provisions would not be affected or impaired because the provisions were severable. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Images must be of actual children. - Virginia child pornography statute applies to images that utilize, or have as their subject, an actual male or female child. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Definition of "sexually explicit visual material." - The plain language of the definition encompasses something less than the 100 percent mirror image of an actual child. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Evidence insufficient to show lewd exhibition of nudity. - In a case in which defendant was charged with possession of child pornography, in violation of § 18.2-374.1 :1, and defendant moved to dismiss, the evidence failed to support a finding that the offending material satisfied the element of a sexually explicit showing of a lewd exhibition of nudity required under § 18.2-374.1 . The photograph depicted a female from the top of the breasts to mid thigh, she had her arms clasped across the breasts, exposing a small portion of the areola of one and possibly two breasts, and due to the grainy nature of the photograph, it was unclear whether one nipple was visible; while the photograph satisfied the definition of nudity set forth in § 18.2-390 , a photograph of a young girl's exposed nipples was not, without more, a lewd exhibition of nudity. Commonwealth v. Ting Yi Oei,, 2009 Va. Cir. LEXIS 115 (Loudoun County Mar. 31, 2009).

Motion to dismiss. - Defendant failed to show that trial counsel's arguments to support a motion to dismiss under § 19.2-294 fell below an objective standard of reasonableness state charges for producing child pornography under § 18.2-374.1 and federal charges for possession of images of child pornography under 18 U.S.C.S. 2252A(a)(5)(B) involved two distinct acts and required different evidence to sustain them; the federal possession charge required only a showing that the pornographic images defendant possessed in 2004 were produced by someone using materials that had entered interstate commerce, and the state charge of production required the Commonwealth to show that defendant created the pornographic images in 2003. Allen v. Johnson,, 2012 Va. Cir. LEXIS 72 (Fairfax County July 20, 2012).

§ 18.2-374.1:1. Possession, reproduction, distribution, solicitation, and facilitation of child pornography; penalty.

  1. Any person who knowingly possesses child pornography is guilty of a Class 6 felony.
  2. Any person who commits a second or subsequent violation of subsection A is guilty of a Class 5 felony.
  3. Any person who knowingly (i) reproduces by any means, including by computer, sells, gives away, distributes, electronically transmits, displays, purchases, or possesses with intent to sell, give away, distribute, transmit, or display child pornography or (ii) commands, entreats, or otherwise attempts to persuade another person to send, submit, transfer or provide to him any child pornography in order to gain entry into a group, association, or assembly of persons engaged in trading or sharing child pornography shall be punished by not less than five years nor more than 20 years in a state correctional facility. Any person who commits a second or subsequent violation under this subsection shall be punished by a term of imprisonment of not less than five years nor more than 20 years in a state correctional facility, five years of which shall be a mandatory minimum term of imprisonment. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.
  4. Any person who intentionally operates an Internet website for the purpose of facilitating the payment for access to child pornography is guilty of a Class 4 felony.
  5. All child pornography shall be subject to lawful seizure and forfeiture pursuant to § 19.2-386.31 .
  6. For purposes of this section it may be inferred by text, title or appearance that a person who is depicted as or presents the appearance of being less than 18 years of age in sexually explicit visual material is less than 18 years of age.
  7. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs, where the alleged offender resides, or where any child pornography is produced, reproduced, found, stored, received, or possessed in violation of this section.
  8. The provisions of this section shall not apply to any such material that is possessed for a bona fide medical, scientific, governmental, law-enforcement, or judicial purpose by a physician, psychologist, scientist, attorney, employee of the Department of Social Services or a local department of social services, employee of a law-enforcement agency, judge, or clerk and such person possesses such material in the course of conducting his professional duties as such.

    (1992, c. 745; 1993, c. 853; 1994, c. 511; 1999, c. 659; 2003, cc. 935, 938; 2004, c. 995; 2007, cc. 759, 823; 2009, c. 379; 2011, cc. 399, 416; 2012, c. 369; 2013, cc. 761, 774; 2014, c. 291; 2015, c. 428; 2017, c. 96; 2020, c. 489.)

Cross references. - As to Sex Offenders and Crimes Against Minors Registry, see § 9.1-900 et seq.

As to the Child Pornography Registry, see § 19.2-390.3 .

As to public and private schools blocking Internet access to child pornography as set out in this section, see § 22.1-70.2.

For definition of "barrier crime" as including a conviction of possession of child pornography as set out in § 18.2-374.1:1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Editor's note. - Acts 2014, cc. 100 and 260, cl. 1, provides: "1. The proposed modifications to the discretionary sentencing guidelines for convictions related to the possession of child pornography in violation of subsections A and B of § 18.2-374.1:1 of the Code of Virginia adopted by the Virginia Criminal Sentencing Commission pursuant to subdivision 1 of § 17.1-803 of the Code of Virginia and contained in the Commission's 2013 Annual Report pursuant to subdivision 10 of § 17.1-803 shall not become effective until July 1, 2016. The Virginia Criminal Sentencing Commission shall review the discretionary sentencing guidelines recommendations for convictions related to the possession of child pornography in violation of subsections A and B of § 18.2-374.1:1 and complete its review by December 1, 2015. Any proposed modification to the discretionary sentencing guidelines for such convictions contained in the Commission's 2015 Annual Report shall supersede the proposed modifications contained in the Commission's 2013 Annual Report unless otherwise provided by law."

The 1999 amendment substituted "Class 1" for "Class 3" in subsection A and substituted "attorney" for "prosecutor" in subsection B.

The 2003 amendments. - The 2003 amendments by cc. 935 and 938 are identical, and substituted "18" for "eighteen" in subsections A and C; substituted "Class 6 felony" for "Class 1 misdemeanor" in subsection A; and substituted "Class 5 felony" for "Class 6 felony" in subsection D.

The 2004 amendments. - The 2004 amendment by c. 995 substituted "19.2-386.31" for "18.2-374.2" in subsection C.

The 2007 amendments. - The 2007 amendments by cc. 759 and 823 are identical and rewrote this section.

The 2009 amendments. - The 2009 amendment by c. 379 added subsection G and redesignated former subsection G as subsection H; and substituted "material that is possessed" for "material which is possessed" in subsection H.

The 2011 amendments. - The 2011 amendments by cc. 399 and 416 are identical, and in subsection H, inserted "law-enforcement" and "employee of a law-enforcement agency."

The 2012 amendments. - The 2012 amendment by c. 369, in the first sentence of subsection C, added the clause (i) designator and clause (ii), and made a related change.

The 2013 amendments. - The 2013 amendments by cc. 761 and 774 are identical, and added the third sentence of subsection C.

The 2014 amendments. - The 2014 amendments by c. 291, deleted "or" preceding "judge" and inserted "or clerk" following "judge" in subsection H.

The 2015 amendments. - The 2015 amendment by c. 428 in subsection C, inserted "knowingly" preceding "(i)" and deleted "with lascivious intent" in two instances preceding "purchases" and "or (ii)."

The 2017 amendments. - The 2017 amendment by c. 96, in subsection H, inserted "employee of the Department of Social Services or a local department of social services" and substituted "and such person" for "who."

The 2020 amendments. - The 2020 amendment by c. 489 inserted "where the alleged offender resides" in subsection G.

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For annual survey, "A Look Back and Forward: Legislative and Regulatory Highlights for 2008 and 2009 and a Discussion of Juvenile Transfer," see 44 U. Rich. L. Rev. 53 (2009).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 87; 9B M.J. Infants and Juveniles, § 89.

CASE NOTES

Venue proper in county where unlawful act occurred. - Because appellant admitted to viewing the nude images of the victim in her Lebanon residence, which was located in Russell County, Virginia, the evidence established a strong presumption that the offense of child pornography was committed within that jurisdiction and that, under § 18.2-374.1:1 , venue was proper in that county. Klewer v. Commonwealth,, 2012 Va. App. LEXIS 315 (Oct. 9, 2012).

No ex post facto violation found. - Despite defendant's contention on appeal that the child pornography material he was convicted of possessing was either created or last accessed at a time when such offense was a Class 1 misdemeanor, and hence, his conviction violated his constitutional right to be free from ex post facto punishment, because the Commonwealth adequately showed that two months after the crime became a felony, defendant was aware of, and knowingly possessed said materials on his computer and accessories, his conviction for the same was upheld. Moreover, the mere fact that some of defendant's acts proving his possession in September, 2003 occurred before the change in the law did not preclude application of the new law, and the trial court properly found that defendant continued to possess the child pornographic images at the time of his arrest, notwithstanding the date the pornographic images were originally downloaded. Bodine v. Commonwealth, No. 0779-05-2, 2006 Va. App. LEXIS 509 (Nov. 7, 2006).

Denial of discovery request. - Trial court did not abuse its discretion in denying defendant's discovery request for copies of the Commonwealth's photographs because it permitted defense counsel to have liberal access to the images in the office of the Commonwealth's attorney, and counsel failed to meet the statutory requirements to justify obtaining copies; defense counsel were not entitled to copies of the images absent a showing that inspecting them was insufficient, and producing copies was material and necessary. Nimety v. Commonwealth, 66 Va. App. 432, 786 S.E.2d 835 (2016).

Evidence found in temporary internet cache sufficient. - Defendant's convictions for possession of child pornography, in violation of subsection A of § 18.2-374.1:1 , and possession of child pornography, second or subsequent offense, in violation of subsection B of § 18.2-374.1:1 , were appropriate because the Commonwealth's introduction of 20 examples of child pornography, which were found in the temporary internet cache of defendant's computer, was certainly sufficient to prove 10 counts of possession of child pornography. Chapman v. Commonwealth, 56 Va. App. 725, 697 S.E.2d 20, 2010 Va. App. LEXIS 340 (2010).

Plain view doctrine. - Officers were not required to cease their search of the electronic devices when they discovered clear evidence of criminal activity that was non-drug-related; the pornographic photographs of children fell within the doctrine. Officers were authorized by the warrants to search all of the photographic files on the electronic devices wholly independent of a search for child pornography and they did not violate the Fourth Amendment by accessing the photographic files on the electronic devices. Commonwealth v. Stanley, No. 0962-19-3, 2019 Va. App. LEXIS 260 (Ct. of Appeals Nov. 12, 2019).

Evidence at trial. - In a prosecution for possession of child pornography under this section, the best evidence rule did not govern digital images because an expert testified that a bit for bit copy of defendant's hard drive was considered forensically to be an original, and defendant did not assert that the admitted photographs or video clips admitted into evidence had been manipulated or altered. Midkiff v. Commonwealth, 280 Va. 216 , 694 S.E.2d 576, 2010 Va. LEXIS 61 (2010).

Evidence sufficient to show possession. - Evidence establishing that the former girlfriend discovered the images in the recycling bin of defendant's computer was sufficient to show that he possessed the images. Terlecki v. Commonwealth, 65 Va. App. 13, 772 S.E.2d 777, 2015 Va. App. LEXIS 196 (2015).

Evidence supported certain of defendant's possession of child pornography convictions because the police recovered images of child pornography from defendant's desktop in a collection zip file that were downloaded using peer-to-peer sharing software and the images were accessible to users without any special programs. In addition, the images located in the zip file were under defendant's name and the zip file had recently been opened, leading to the conclusion that defendant had knowledge of the images and dominion and control of the images. Kovach v. Commonwealth, No. 2013-15-2, 2016 Va. App. LEXIS 331 (Ct. of Appeals Dec. 6, 2016).

Evidence sufficiently showed defendant possessed child pornography on or about the date alleged in an indictment because the Commonwealth did not have to prove the exact date defendant possessed the images, as time was not a statutory element of the crime, so the Commonwealth only had to prove a crime occurred and defendant committed it, which the Commonwealth did. Christy v. Commonwealth, No. 0169-17-3, 2018 Va. App. LEXIS 95 (Apr. 10, 2018).

Sufficient evidence supported defendant's child pornography possession convictions because there were sufficient indicia that defendant had knowledge of and dominion and control over such images, as only defendant had access to and used the computer and account on which the images were found to download such images until defendant deleted the images. Christy v. Commonwealth, No. 0169-17-3, 2018 Va. App. LEXIS 95 (Apr. 10, 2018).

Photographs considered sexually explicit. - Evidence was sufficient to convict defendant of possession of child pornography; his photos of a nude 17-year-old girl were "sexually explicit visual material" because they depicted her lying and sitting on a bed, a sexually suggestive setting, and showed her breasts and genitalia, and in view of his sexual relationship with her and the fact that he groped her breast while taking the photos, the jury could have inferred that he created the images with a lascivious intent. Phan Le v. Commonwealth,, 2014 Va. App. LEXIS 352 (Oct. 21, 2014).

Evidence insufficient to show dominion and control. - Convictions for possession of child pornography were reversed because defendant, as a prior tenant, did not have sufficient dominion and control over the computer on the alleged date to permit the conclusion that he possessed the images contained thereon on that date; among other things, there was no evidence to suggest he made any effort to retrieve the computer or that he retained a key to the apartment. Simone v. Commonwealth, No. 0551-04-1, 2005 Va. App. LEXIS 99 (Ct. of Appeals Mar. 15, 2005).

Defendant's child pornography possession convictions had to be reversed as to photos in defendant's computer's unallocated space because (1) the photos could not be accessed without forensic software, and (2) nothing showed defendant had access to or used such software or otherwise had knowledge, dominion, or control of the photos on the date charged. Kobman v. Commonwealth, 65 Va. App. 304, 777 S.E.2d 565, 2015 Va. App. LEXIS 298 (2015).

Evidence failed to support certain of defendant's possession of child pornography convictions because defendant could not be found to possess the contraband obtained from unallocated space on defendant's desktop or a thumb cache as no forensic software was found on the computer or defendant's laptop allowing access to the material. Therefore, no evidence established that defendant had knowledge, dominion, or control of the photographs that were found. Kovach v. Commonwealth, No. 2013-15-2, 2016 Va. App. LEXIS 331 (Ct. of Appeals Dec. 6, 2016).

Evidence sufficient to support conviction. - Evidence that the computer, located in a residence over which defendant had exclusive control, contained "quick desktop access" to a folder containing the subject images, that defendant was the registered user of the computer's operating system, and that there was a software setting that had been manually set to disallow file sharing was sufficient to support defendant's conviction for misdemeanor possession of child pornography. Kromer v. Commonwealth, 45 Va. App. 812, 613 S.E.2d 871, 2005 Va. App. LEXIS 227 (2005).

Evidence was sufficient to convict appellant of possession of child pornography under § 18.2-374.1:1 because it was clear from appellant's text conversations with the victim's mother and her own statements to the police that she accessed nude images of the minor victim. Klewer v. Commonwealth,, 2012 Va. App. LEXIS 315 (Oct. 9, 2012).

Evidence was sufficient to convict defendant of distributing child pornography because by downloading peer-to-peer software onto his laptop computer, he voluntarily participated in peer-to-peer file-sharing and made the child pornography files that he downloaded available to others, defendant did not prevent others from downloading those files, and whether defendant's shared folder was created as a default option by the software or by defendant himself, the files were, in fact, downloaded by defendant into his shared folder and, thereby, made available to other users. Kelley v. Commonwealth, 289 Va. 463 , 771 S.E.2d 672, 2015 Va. LEXIS 42 (2015).

Defendant's admission that the images found on his computer were child pornography and testimony from defendant's former girlfriend that the images were clear photographs that depicted children and not a cartoon or likeness was sufficient to support defendant's conviction for possession of child pornography. Terlecki v. Commonwealth, 65 Va. App. 13, 772 S.E.2d 777, 2015 Va. App. LEXIS 196 (2015).

Sufficient evidence supported defendant's child pornography possession convictions because the evidence showed defendant constructively possessed photos in defendant's computer's recycle bin, as (1) defendant admitted officers could find what the officers were looking for when executing a search warrant for child pornography in certain locations, (2) expert testimony said computer users could access files in a computer's recycle bin, (3) lubricating gel and napkins were present in front of the computer, and (4) child pornography was present in the computer's unallocated spaces. Kobman v. Commonwealth, 65 Va. App. 304, 777 S.E.2d 565, 2015 Va. App. LEXIS 298 (2015).

Evidence supported defendant's conviction for distribution of child pornography because defendant knowingly downloaded and used peer-to-peer sharing software on defendant's desktop, a GUID number that a special agent captured while downloading photographs from defendant's computer of child pornography onto a computer during the investigation was a number generated during the installation of the software on defendant's desktop, and several of the videos that the special agent obtained were also found on a SD card in defendant's hamper. Kovach v. Commonwealth, No. 2013-15-2, 2016 Va. App. LEXIS 331 (Ct. of Appeals Dec. 6, 2016).

Conviction for possession of child pornography was supported by evidence there were at least 14 cached images on defendant's laptop, the files were stored under a password-protected profile bearing defendant's name, and defendant accessed the files after they were cached, allowing an inference that defendant knew of and exercised dominion and control over the images. Volpe v. Commonwealth, No. 1290-15-3, 2016 Va. App. LEXIS 347 (Ct. of Appeals Dec. 13, 2016).

Evidence was sufficient to convict defendant of two counts of distributing child pornography as defendant knowingly posted both photos to the internet because both images were posted to the same account, which was associated with defendant's personal email address; the account was password-protected, and defendant had no knowledge of anyone else posting to it; defendant admitted to posting Exhibit One; he never denied posting Exhibit Two; and the record contained no evidence indicating that someone else posted Exhibit Two. Coleman v. Commonwealth, No. 0096-16-3, 2016 Va. App. LEXIS 369 (Ct. of Appeals Dec. 27, 2016).

Evidence was sufficient to convict defendant of two counts of distributing child pornography because the jury was not plainly wrong in finding that the images depicted minors and were lewd depictions of nudity as defendant told an investigator that he had used the search term "kiddy porn" and had put the search terms a little lower when his searches for 16 and 17-year-old girls failed to yield the desired results; the appearance of the females in the photos suggested they were underage; Exhibit One showed a visibly aroused male touching his genitals to a female's; and Exhibit Two depicted three females lying naked in a bed in a manner that could reasonably be interpreted as sexually provocative or enticing. Coleman v. Commonwealth, No. 0096-16-3, 2016 Va. App. LEXIS 369 (Ct. of Appeals Dec. 27, 2016).

Direct and circumstantial evidence supported the factfinder's conclusions that defendant knew of the child pornography on the hard drive devices, that it was subject to his dominion and control, and that he constructively possessed it in violation of § 18.2-374.1:1 . The number of images and the lengths of the movies suggested that the person who assembled and stored the material into the hard drives knew what was kept. Lee v. Commonwealth, No. 0869-20-4, 2021 Va. App. LEXIS 121 (July 13, 2021).

Lesser-included offenses. - Possession of child pornography is not a lesser-included offense of production of child pornography because one can commit the offense of production of child pornography without ever possessing that child pornography. Therefore, the offenses were not the same offenses for double jeopardy purposes and the trial court did not err in convicting and punishing defendant separately for each offense. Servais v. Commonwealth, No. 0297-19-3, 2020 Va. App. LEXIS 130 (Apr. 28, 2020).

Subsequent violations. - This section does not use the word "conviction" as a predicate for the enhanced felony charge; therefore, defendant was properly convicted of one count of child pornography and eleven counts of possession of child pornography, second or subsequent violations, due to his possession of 12 pictures. The first violation was committed by possession of the first offending image, and each of the other images was subsequent violation. Papol v. Commonwealth, 63 Va. App. 150, 754 S.E.2d 918, 2014 Va. App. LEXIS 105 (Mar. 18, 2014).

Virginia Legislature does not intend the recidivism provision in this section to be evaded by aggregate downloading using a torrent program or to be determined by the precise micro-timing of the receipt of each image; when multiple images are downloaded on a single occasion, one of those images invariably constitutes the first image possessed, while all the others qualify as second or subsequent images possessed. Therefore, defendant was properly convicted of one count of possessing child pornography and eleven counts of child pornography as subsequent violations, even though 12 pictures were downloaded through the use of a torrent program. Papol v. Commonwealth, 63 Va. App. 150, 754 S.E.2d 918, 2014 Va. App. LEXIS 105 (Mar. 18, 2014).

Jury instructions. - Defendant's convictions for possession of child pornography, in violation of subsection A of § 18.2-374.1:1 , and possession of child pornography, second or subsequent offense, in violation of subsection B of § 18.2-374.1:1 , were appropriate because the trial court informed the jurors as to the essential elements of the offense by instructing them that the evidence must prove beyond a reasonable doubt that defendant "knowingly possessed" child pornography in order to convict him under subsection A; thus, the trial court did not err in granting that instruction. Chapman v. Commonwealth, 56 Va. App. 725, 697 S.E.2d 20, 2010 Va. App. LEXIS 340 (2010).

In a child pornography case, the trial court did not err in permitting the Commonwealth to argue before the jury about the meaning of the jury instruction regarding an inference that the person depicted was less than 18 years old because the jury instruction did not constitute burden-shifting as the instruction presented a permissible, not mandatory, inference; the jury could conclude from evidence other than an individual's identity, including her appearance, that she was a minor as the jury was competent to determine if images depicted minors; and the Commonwealth presented evidence other than appearance, including defendant's own statements, that supported the jury's conclusion that the photographs were images of underage females. Coleman v. Commonwealth, No. 0096-16-3, 2016 Va. App. LEXIS 369 (Ct. of Appeals Dec. 27, 2016).

Applied in Rideout v. Commonwealth, 62 Va. App. 779, 753 S.E.2d 595, 2014 Va. App. LEXIS 22 (Feb. 4, 2014).

CIRCUIT COURT OPINIONS

Does not apply to images that "appear to be" of children. - Neither the Virginia Code section criminalizing possession of child pornography, nor the definition of "sexually explicit visual material," refer to images that appear to be of children, as did the constitutionally objectionable portions of the Child Pornography Prevention Act of 1996 (CPPA), 18 U.S.C.S. § 2256; furthermore, the statute specifically requires that the material at issue utilize or have as its subject a "person." Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

This section is not overly broad because the clear language of the statute reveals that it only applies to images utilizing actual children; the Virginia General Assembly not only included language in the statute to limit its application to images utilizing actual children, it also included language providing that the statute does not apply to any material having a bona fide artistic, medical, scientific, educational, religious, government, judicial, or other proper purpose; therefore the statute was narrowly tailored to achieve its purpose, as required by the strict scrutiny standard applied to governmental restrictions on speech. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Nor does it apply to morphed images. - Prohibition on possession of morphed images in the Virginia child pornography statute is not unconstitutionally vague because a reasonable person is able to determine what speech is permitted and what speech is prohibited, thereby providing adequate notice to the public; furthermore, the prohibition on such morphed images is not unconstitutionally overbroad. The statute does not regulate substantially more speech than the Constitution allows to be regulated, and the statute actually contains a provision excluding from its coverage images that have bona fide purposes. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

In determining whether a defendant knowingly possessed sexually explicit images of children under 18 in a computer, the issue is whether defendant "reached out for and controlled" the images at issue. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 215 (Portsmouth 2003).

"Knowingly." - Pending charges of possession of child pornography in violation of § 18.2-374.1:1 were not dismissed because the "knowing" element of the charge was shown as defendant stated "I don't have too much" when asked by the police about the presence of child pornography on defendant's computer. Commonwealth v. Gardner, 72 Va. Cir. 497, 2007 Va. Cir. LEXIS 15 (Norfolk 2007).

Statute prohibits possession. - It was clear that defendant acquired mastery of and had control of pornographic images involving children, which were discovered in his temporary internet files and computer screen saver wallpaper; his Internet search terms, stories involving graphic juvenile sexual activity, and the child pornography image manually displayed on his computer wall paper proved, beyond a reasonable doubt, that he reached out for and controlled the three images contained in his computer's cache/temporary internet file. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Computer images. - Defendant was convicted of possessing child pornography on his computer, where Internet searches he conducted (using the terms "Lolitas," "pedophelia," and "pre-teen pictures"), and his possession of a child pornography image that had to be manually downloaded, showed that he was reaching out for images involving child pornography with the intent to control and have dominion over them. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 215 (Portsmouth 2003).

Distinct violations for each image possessed. - If proven, each child pornography image possessed by a defendant may properly form the basis for a distinct violation of this section. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Applicability of statute to offenses committed before 2003 amendment. - Counsel for defendant and the Commonwealth stipulated that the applicable version of § 18.2-374.1:1 , which was amended during the Virginia legislature's 2003 session, was that in existence at the time of the crimes alleged, June 29, 2002; the stipulation was consistent with the statutory mandate embodied in § 1-16 [see now § 1-239 ] that no new law shall be construed to repeal a former law, as to any offense committed against the former law. Commonwealth v. Simone, 63 Va. Cir. 216, 2003 Va. Cir. LEXIS 362 (Portsmouth 2003).

Admission of a purported sex toy with defendant's DNA was not relevant to the offenses and any probative value was outweighed by the prejudicial effect of admission; there was no connection temporally or geographically of the purported sex toy recovered in Maryland to the flash drive with the purported images of child pornography recovered in Virginia. Commonwealth v. Champlin, 104 Va. Cir. 296, 2020 Va. Cir. LEXIS 27 (Orange County Mar. 3, 2020).

Evidence. - Thesis statement,letter, and paper, if authored by defendant, were admissible to show his knowledge, ownership, motive to possess child pornography and absence of mistake and possession of the contents of the flash drive, and knowledge was an essential element under the statute; the paper was also considered a statement by a party opponent. Commonwealth v. Champlin, 104 Va. Cir. 296, 2020 Va. Cir. LEXIS 27 (Orange County Mar. 3, 2020).

Admission of evidence. - Portion of the letter from defendant to another, if authored by defendant, was admissible because it was a statement against interest that directly addressed the knowledge of child pornography, demonstrated motive to possess child pornography and negated the possibility of mistake or accident. Commonwealth v. Champlin, 104 Va. Cir. 296, 2020 Va. Cir. LEXIS 27 (Orange County Mar. 3, 2020).

Statement inadmissible. - While statements by defendant, nothing in two letters addressed knowledge, ownership, absence of mistake or awareness of child pornography, and thus the letters were not relevant and inadmissible. Commonwealth v. Champlin, 104 Va. Cir. 296, 2020 Va. Cir. LEXIS 27 (Orange County Mar. 3, 2020).

§ 18.2-374.1:2.

Repealed by Acts 2007, cc. 759 and 823, cl. 2.

§ 18.2-374.2.

Repealed by Acts 2004, c. 995.

Cross references. - For current provisions as to seizure and forfeiture of property used in connection with production of sexually explicit items involving children, see § 19.2-386.31 .

§ 18.2-374.3. Use of communications systems to facilitate certain offenses involving children.

  1. As used in subsections C, D, and E, "use a communications system" means making personal contact or direct contact through any agent or agency, any print medium, the United States mail, any common carrier or communication common carrier, any electronic communications system, the Internet, or any telecommunications, wire, computer network, or radio communications system.
  2. It is unlawful for any person to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means for the purposes of procuring or promoting the use of a minor for any activity in violation of § 18.2-370 or 18.2-374.1 . A violation of this subsection is a Class 6 felony.
  3. It is unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally:
    1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person;
    2. Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child;
    3. Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361 ; or
    4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions. Any person who violates this subsection is guilty of a Class 5 felony. However, if the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age, the person shall be punished by a term of imprisonment of not less than five years nor more than 30 years in a state correctional facility, five years of which shall be mandatory minimum term of imprisonment. Any person who commits a second or subsequent violation of this subsection when the person is at least seven years older than the child he knows or has reason to believe is less than 15 years of age shall be punished by a term of imprisonment of not less than 10 years nor more than 40 years, 10 years of which shall be a mandatory minimum term of imprisonment.
  4. Any person who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any child he knows or has reason to believe is at least 15 years of age but younger than 18 years of age to knowingly and intentionally commit any of the activities listed in subsection C if the person is at least seven years older than the child is guilty of a Class 5 felony. Any person who commits a second or subsequent violation of this subsection shall be punished by a term of imprisonment of not less than one nor more than 20 years, one year of which shall be a mandatory minimum term of imprisonment.
  5. Any person 18 years of age or older who uses a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting any person he knows or has reason to believe is a child younger than 18 years of age for (i) any activity in violation of § 18.2-355 or 18.2-361 , (ii) any activity in violation of § 18.2-374.1 , or (iii) a violation of § 18.2-374.1:1 is guilty of a Class 5 felony. (1992, c. 699; 1999, c. 659; 2003, cc. 935, 938; 2004, cc. 414, 444, 459, 864; 2007, cc. 759, 823; 2013, cc. 423, 470; 2014, c. 794.)

The 1999 amendment in subsection A, inserted "procuring or" and " § 18.2-370 or"; and added subsection B.

The 2003 amendments. - The 2003 amendments by cc. 935 and 938 are identical, and in subsection B, substituted "18" for "eighteen," and "child less than 18 years of age" for "minor."

The 2004 amendments. - The 2004 amendment by c. 414, in subsection B, in the first sentence, substituted "18 years of age or older" for "over the age of 18" and "or § 18.2-361 " for "18.2-361 or § 18.2-370 ," added clause (iv), and made related changes.

The 2004 amendment by c. 444 substituted "subsection" for "section" in the last sentence of subsection A; in subsection B, in the first sentence, substituted "18 years of age or older" for "over the age of 18" and "or § 18.2-361 " for "18.2-361 or § 18.2-370 ," and added clause (iv); and made related changes.

The 2004 amendment by c. 459 substituted "subsection is" for "section shall be punishable as" in the last sentence of subsections A and B; and deleted "18.2-358" preceding "18.2-361" in clause (i) in the first sentence of subsection B.

The 2004 amendment by c. 864 substituted "18 years of age or older" for "over the age of 18" in the first sentence of subsection B.

The 2007 amendments. - The 2007 amendments by cc. 759 and 823 are identical and rewrote this section.

The 2013 amendments. - The 2013 amendments by cc. 423 and 470 are identical, and substituted "younger" for "less" in the introductory paragraph of subsection C, and in subsections D and E; and inserted "his own sexual or genital parts or" in subdivision C 2.

The 2014 amendments. - The 2014 amendment by c. 794, effective April 23, 2014, in subsection A made a minor stylistic change; in subsections B and C substituted "is unlawful" for "shall be unlawful"; and in subdivision C 3 inserted "anal intercourse, cunnilingus, fellatio, or anilingus" and made a minor stylistic change.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants, §§ 81, 89.

CASE NOTES

Constitutionality. - Virginia statute criminalizing the use by an adult of a computer for the purpose of soliciting a minor was constitutional because the statute was not unconstitutionally vague in violation of defendant's due process rights under U.S. Const. amend. XIV, as any ordinary person would have understood what conduct the statute prohibited, nor was it overbroad in violation of defendant's freedom of speech rights under U.S. Const. amend. I, as the statute did not target speech, but conduct. Stoltz v. Commonwealth, 297 Va. 529 , 831 S.E.2d 164, 2019 Va. LEXIS 88 (2019).

First Amendment does not bar conviction. - First Amendment to the United States Constitution did not bar defendant's conviction for using a communications system to solicit a person defendant knew, or had reason to believe, was a minor, for certain sexual offenses, in violation of subsection B of § 18.2-374.3 . Although defendant claimed the statute was facially overbroad in that it barred free speech using a computer, the First Amendment did not prohibit the Commonwealth from enacting a statute to prohibit defendant from using a computer to commit a crime, that of soliciting sex from minors. Podracky v. Commonwealth, 52 Va. App. 130, 662 S.E.2d 81, 2008 Va. App. LEXIS 284 (2008).

Venue proper in county where personal contracts received. - Trial court did not err in denying defendant's challenge to venue because pursuant to §§ 18.2-374.3 and 19.2-244 , venue was proper in Louisa County since a detective, who was posing as 13-year-old girl, received defendant's personal electronic contacts there; defendant chose to communicate online with the undercover officer, and the victim actually received his communications, which was a critical portion of the offense proscribed by subsection A of § 18.2-374.3 , while in Louisa County. Spiker v. Commonwealth, 58 Va. App. 466, 711 S.E.2d 228, 2011 Va. App. LEXIS 221 (2011).

Because the evidence established that both individuals were in Russell County, Virginia, throughout the entire conversation in which appellant solicited the minor victim to meet her in the park, under § 18.2-374.3 , the trial court correctly held that Russell County was the proper venue in which to prosecute the offense. Klewer v. Commonwealth,, 2012 Va. App. LEXIS 315 (Oct. 9, 2012).

Offense not complete until victim receives contact. - Subsection A of § 18.2-374.3 , by its plain terms, does not proscribe the mere act of sending a communication such as an instant message or e-mail, but it requires, in addition, that the perpetrator, by means of that communication, makes personal or direct contact with any person he knows or has reason to believe is a child less than 15 years of age. The offense, therefore, is not complete until the victim receives the personal or direct contact. Spiker v. Commonwealth, 58 Va. App. 466, 711 S.E.2d 228, 2011 Va. App. LEXIS 221 (2011).

Communication with third party not required. - Contrary to defendant's claim, there was no stated requirement in this section, that defendant communicate with someone other than the minor child with whom defendant was seeking to involve the illegal activity. Dietz v. Commonwealth, 294 Va. 123 , 804 S.E.2d 309, 2017 Va. LEXIS 117 (2017).

Evidence of intent to solicit a minor via a communications device. - From the content of the three conversations that defendant had with a person whom he believed was a minor, which included defendant asking the minor if she wanted to "see and feel the real thing," and the evidence of the images defendant transmitted, the trial judge could have inferred that defendant intended to solicit a minor to commit illegal sexual acts in violation of the statute and via a communications device. Brooker v. Commonwealth, 41 Va. App. 609, 587 S.E.2d 732, 2003 Va. App. LEXIS 543 (2003).

Defendant was properly convicted of using a computer to solicit a minor because the jury was entitled to conclude that he knew or had reason to believe he was soliciting a minor and no constitution right was implicated where a detective unequivocally held himself out to defendant as a 13-year-old girl, "Annie," on three different occasions, in emails and a telephone conversation, "Annie" reiterated that she was 13 years old, defendant never communicated to "Annie" that he would not be interested in someone who was actually 13 years old, and the jury was guided by the instruction that "reason" was the capacity to distinguish truth from falsehood. Stoltz v. Commonwealth, No. 0352-17-4, 2018 Va. App. LEXIS 163 (June 19, 2018), aff'd Stoltz v. Commonwealth, 297 Va. 529 , 831 S.E.2d 164, 2019 Va. LEXIS 88 (2019).

Evidence of victim's age. - Jury could have reasonably inferred that defendant, as the youth pastor at the church, would have seen the minor victim's medical release form stating her age and therefore have had reason to believe that she was 14 years old, plus in his interview with an investigator, he stated that the victim was either 14 or 15 years old. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

Registration as sex offender properly required. - Trial court did not err in requiring defendant to register as a sex offender pursuant to § 9.1-902 based on defendant's conviction of computer solicitation for sex with a minor based on defendant's actions in using his computer to solicit sex from someone he thought was a 13-year-old girl, but who was, in fact, a police officer posing as a 13-year-old girl. Colbert v. Commonwealth, 47 Va. App. 390, 624 S.E.2d 108, 2006 Va. App. LEXIS 7 (2006).

Admissibility of prior bad acts. - Defendant's convictions for using electronic means to solicit sex with a minor and attempted indecent liberties in violation of subsection B of § 18.2-374.3 and § 18.2-370 were appropriate because evidence of defendant's relationship with another female prior to the current events fell within the general exceptions to the general rule of exclusion of other bad acts evidence. The evidence was relevant to show some of the elements of the crimes charged and demonstrated not only defendant's knowledge that minors were present in the adult chat rooms but also his intent to engage in sexual acts with the current victim, just as he had done in the past. Detzler v. Commonwealth,, 2010 Va. App. LEXIS 132 (Apr. 6, 2010).

Commonwealth not required to prove communication with third party. - Commonwealth was not required to prove that defendant used an electronic device to communicate with a person other than the victim, or a person posing as the victim, in an illicit activity in order to prove defendant committed the offense of procuring or promoting the use of a minor. Dietz v. Commonwealth, No. 0861-15-1, 2016 Va. App. LEXIS 146 (Ct. of Appeals May 3, 2016), aff'd, 294 Va. 123 , 804 S.E.2d 309, 2017 Va. LEXIS 117 (2017).

Admission of evidence harmless error. - As there was abundant evidence in the record demonstrating that defendant sent photographs of his genitals to the minor victim via Snapchat, the erroneous admission of the nude photographs allegedly of him found on his iPad did not influence the jury, or had but slight effect, thus rendering the error harmless in connection with his convictions of use of a computer to solicit a minor and taking indecent liberties with a child. Hillman v. Commonwealth, 811 S.E.2d 853, 2018 Va. App. LEXIS 84 (2018).

Admission of evidence not harmless error. - Trial court erred by excluding the testimony of a forensic psychologist who would have testified that defendant was not a pedophile during defendant's trial for computer solicitation of a minor because the psychologist's proffered testimony did not express an opinion on any of the ultimate issues at trial, as he would have provided information that would have been relevant to understanding defendant's belief as to the victim's age but he would not have expressed any opinion on defendant's mental state when he was communicating with the victim. Kilpatrick v. Commonwealth, 73 Va. App. 172, 857 S.E.2d 163, 2021 Va. App. LEXIS 75 (2021).

Evidence sufficient to uphold conviction. - Evidence was sufficient to support defendant's conviction for use of a computer to solicit a minor, as it showed that defendant used a computer to entice the "victim" to meet with him at a restaurant parking lot even though the "victim" turned out to be a police officer. Hix v. Commonwealth, 270 Va. 335 , 619 S.E.2d 80, 2005 Va. LEXIS 84 (2005).

Defendant was properly convicted of computer solicitation of a minor in violation of § 18.2-374.3 and attempted indecent liberties with a minor in violation of § 18.2-370 because if the trial court erred in precluding defendant from inquiring of his witnesses what they said concerning the victim's age, any error was harmless, and defendant told the police after his arrest that he believed the victim was only fourteen to fifteen years old; that evidence plainly rebutted any inference that defendant thought he was pursuing an adult, and given defendant's admission that he thought the victim could have been fourteen, along with repeated references during internet chats to the victim's age of thirteen, any error did not affect the jury verdict. Mahmoudzedeh v. Commonwealth,, 2009 Va. App. LEXIS 268 (June 16, 2009).

Because, based on the prior conversations about sex, the jury could reasonably infer that appellant intended to act on her previously-stated desire to perform various sex acts on the minor victim when she went to meet him in the park, the evidence was sufficient to convict her of electronic solicitation of a minor under subdivision C 3 of § 18.2-374.3 . Klewer v. Commonwealth,, 2012 Va. App. LEXIS 315 (Oct. 9, 2012).

Viewed in the light most favorable to the Commonwealth, there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant knew or should have known that the person with whom he was communicating was less than 15 years of age. Salander v. Commonwealth,, 2010 Va. App. LEXIS 510 (Apr. 21, 2010).

In a case in which a jury convicted defendant of three counts of soliciting a child less than fifteen years old in violation of this section, the Commonwealth's evidence was competent, was not inherently incredible, and was sufficient to prove beyond a reasonable doubt defendant was guilty of violating the statute. Defendant's actions and statements were not just words alone. Salander v. Commonwealth,, 2010 Va. App. LEXIS 510 (Apr. 21, 2010).

Trial court did not err when it found that defendant acted with lascivious intent and that she exposed a sexual part to a child, her breast, as prohibited by § 18.2-370 , and thus, the evidence was sufficient to support defendant's conviction under this section. Dietz v. Commonwealth, No. 0861-15-1, 2016 Va. App. LEXIS 146 (Ct. of Appeals May 3, 2016), aff'd, 294 Va. 123 , 804 S.E.2d 309, 2017 Va. LEXIS 117 (2017).

Violation of § 18.2-370 was not required to establish a violation of this section, as the Commonwealth established defendant's lascivious intent through the text messages and pictures she sent to a detective while believing she was communicating with the minor. Dietz v. Commonwealth, 294 Va. 123 , 804 S.E.2d 309, 2017 Va. LEXIS 117 (2017).

Court of appeals erred in finding that the evidence adduced at trial, and the reasonable inferences that the factfinder could draw therefrom, was insufficient to support defendant's conviction for using a communications system for the purpose of soliciting an adolescent between the ages of 15 and 18 to commit sexual acts because the pattern of defendant's communications by text messages showed that he regularly departed from the topic of the victim's athletic training to discuss matters of a personal nature; and it was that pattern of communication, along with the dynamic of the coach-student relationship, which supported the conclusion that defendant was soliciting the victim to perform the sexual acts he described. Commonwealth v. Murgia, 297 Va. 310 , 827 S.E.2d 377, 2019 Va. LEXIS 46 (2019).

Combined evidence at trial - including a police officer's testimony about the video defendant shared via Dropbox, the amusement park photograph of defendant, the contents of the website chat between defendant and the officer when the officer adopted the persona of a preteen child, and defendant's own admissions during defendant's police interview - constituted sufficient evidence to establish that defendant exposed himself on the website to the officer, a person whom defendant reasonably believed was a thirteen-year-old child named Lilly. Pick v. Commonwealth, 72 Va. App. 651, 852 S.E.2d 479, 2021 Va. App. LEXIS 5 (2021).

Enhanced sentence applied even if victim was not an actual child. - Mandatory minimum sentencing provision in subsection C of § 18.2-374.3 applied to defendant even though the person that he contacted by email and telephone was an adult policewoman, not a 13-year-old girl as defendant believed. The victim of the crime need not be an actual child for the mandatory minimum sentence to apply. Grafmuller v. Commonwealth, 57 Va. App. 58, 698 S.E.2d 276, 2010 Va. App. LEXIS 348 (2010).

Cruel and unusual punishment. - Trial court did not err in sentencing defendant to 50 years' imprisonment for felony solicitation of a minor by use of a communications system and criminal solicitation as a second or subsequent offense because the sentence did not violate the Eighth Amendment's prohibition against cruel and unusual punishment where defendant had not been sentenced to life imprisonment without parole and each of the crimes for which defendant was convicted carried a minimum mandatory sentence of five or 10 years imprisonment. Olmstead v. Commonwealth,, 2015 Va. App. LEXIS 149 (May 5, 2015).

Federal habeas relief denied. - District court properly denied petitioner's habeas petition challenging his Virginia conviction for computer solicitation of acts of sodomy from minor under age of 15 because Virginia's anti-sodomy statute, as authoritatively construed by Supreme Court of Virginia, did not criminalize conduct that United States Supreme Court in Lawrence v. Texas declared to be protected by liberty interests guaranteed by Due Process Clause, and it was, therefore, not facially unconstitutional, and Supreme Court of Virginia's decision to adopt that narrowing construction in petitioner's case was not contrary to or unreasonable application of applicable United States Supreme Court precedent. Toghill v. Clarke, 877 F.3d 547, 2017 U.S. App. LEXIS 25369 (4th Cir. 2017), cert. denied, 139 S. Ct. 223, 2018 U.S. LEXIS 4914, 202 L. Ed. 2d 152 (2018).

§ 18.2-374.4. Display of child pornography or grooming video or materials to a child unlawful; penalty.

  1. Any person 18 years of age or older who displays child pornography or a grooming video or materials to a child under 13 years of age with the intent to entice, solicit, or encourage the child to engage in the fondling of the sexual or genital parts of another or the fondling of his sexual or genital parts by another, sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, or object sexual penetration is guilty of a Class 6 felony.
  2. "Grooming video or materials" means a cartoon, animation, image, or series of images depicting a child engaged in the fondling of the sexual or genital parts of another or the fondling of his sexual or genital parts by another, masturbation, sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, or object sexual penetration.

    (2012, c. 624.)

§ 18.2-375. Obscene exhibitions and performances.

It shall be unlawful for any person knowingly to:

  1. Produce, promote, prepare, present, manage, direct, carry on or participate in, any obscene exhibitions or performances, including the exhibition or performance of any obscene motion picture, play, drama, show, entertainment, exposition, tableau or scene; provided, that no employee of any person or legal entity operating a theatre, garden, building, structure, room or place which presents such obscene exhibition or performance shall be subject to prosecution under this section if the employee is not the manager of the theatre or an officer of such entity, and has no financial interest in such theatre other than receiving salary and wages; or
  2. Own, lease or manage any theatre, garden, building, structure, room or place and lease, let, lend or permit such theatre, garden, building, structure, room or place to be used for the purpose of presenting such obscene exhibition or performance or to fail to post prominently therein the name and address of a person resident in the locality who is the manager of such theatre, garden, building, structure, room or place.

    (Code 1950, § 18.1-230; 1960, c. 233; 1971, Ex. Sess., c. 191; 1975, cc. 14, 15.)

Cross references. - As to enhanced penalty for using a computer in connection with a violation of §§ 18.2-374 , 18.2-375 , or 18.2-376 , see § 18.2-376 .1.

Law review. - For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971). For survey of Virginia constitutional law for the year 1972-1973, see 59 Va. L. Rev. 1445 (1973).

For 2006 survey article, "Family and Juvenile Law," see 41 U. Rich. L. Rev. 151 (2006).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 18 M.J. Theaters, Shows and Fairs, § 2.

CASE NOTES

This section is constitutional. Grove Press, Inc. v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969).

It is not unconstitutionally vague or overbroad in light of the new test of obscenity promulgated in Miller v. California , 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), which established the following guidelines for the trier of fact to use in determining whether a work is obscene: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

But gives fair notice of the meaning of obscenity. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

A person of ordinary understanding would have no difficulty in determining what sorts of material would be regarded as obscene under this section. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

The conduct whose portrayal is proscribed must be specifically defined by statute, as written or as authoritatively construed. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

Examples of descriptions that are sufficiently specific are patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

This section prohibits only hard core pornography such as these examples, delineated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

And does not restrict constitutionally protected speech and writing. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

This section limits the class of works which might be found obscene to portrayals of sexual activity or excretion, not including mere nudity, which go beyond the customary limits of candor in representing such matters. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

This section applies only to persons who "knowingly" violate its provisions, but all that is required is to show that the defendant exhibited the film knowing its content. Price v. Commonwealth, 213 Va. 113 , 189 S.E.2d 324 (1972).

It would be difficult, if not impossible, for a Virginia jury to formulate a statewide standard of obscenity, for the state comprises communities with a vast diversity of life styles. Materials which do not offend the community standards of the metropolitan areas might well be regarded as obscene by the standards of some rural communities. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

Since under Miller v. California , 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), national standards are not constitutionally required in obscenity cases, neither are statewide standards compelled. Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

Local governing bodies not prevented from enacting public nudity ordinances. - State laws do not prevent a local governing body, under its police power, from enacting public nudity ordinances not inconsistent with the state law prohibiting conduct which the local governing body reasonably deems to be contrary to the morals, health, safety and general welfare of the community. Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231 , 208 S.E.2d 51 (1974).

Motion picture held to lack serious literary, artistic, political, or scientific value. - See Price v. Commonwealth, 214 Va. 490 , 201 S.E.2d 798 (1974).

Applied in Wall Distribs., Inc. v. City of Newport News, 228 Va. 358 , 323 S.E.2d 75 (1984).

§ 18.2-376. Advertising, etc., obscene items, exhibitions or performances.

It shall be unlawful for any person knowingly to prepare, print, publish, or circulate, or cause to be prepared, printed, published or circulated, any notice or advertisement of any obscene item proscribed in § 18.2-373 , or of any obscene performance or exhibition proscribed in § 18.2-375 , stating or indicating where such obscene item, exhibition, or performance may be purchased, obtained, seen or heard.

(Code 1950, § 18.1-231; 1960, c. 233; 1975, cc. 14, 15.)

Cross references. - As to enhanced penalty for using a computer in connection with a violation of §§ 18.2-374 , 18.2-375 , or 18.2-376 , see § 18.2-376 .1.

Law review. - For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971).

§ 18.2-376.1. Enhanced penalties for using a computer in certain violations.

Any person who uses a computer in connection with a violation of §§ 18.2-374 , 18.2-375 , or § 18.2-376 is guilty of a separate and distinct Class 1 misdemeanor, and for a second or subsequent such offense within 10 years of a prior such offense is guilty of a Class 6 felony, the penalties to be imposed in addition to any other punishment otherwise prescribed for a violation of any of those sections.

(2003, cc. 987, 1016.)

§ 18.2-377. Placards, posters, bills, etc.

It shall be unlawful for any person knowingly to expose, place, display, post up, exhibit, paint, print, or mark, or cause to be exposed, placed, displayed, posted, exhibited, painted, printed or marked, in or on any building, structure, billboard, wall or fence, or on any street, or in or upon any public place, any placard, poster, banner, bill, writing, or picture which is obscene, or which advertises or promotes any obscene item proscribed in § 18.2-373 or any obscene exhibition or performance proscribed in § 18.2-375 , or knowingly to permit the same to be displayed on property belonging to or controlled by him.

(Code 1950, § 18.1-232; 1960, c. 233; 1975, cc. 14, 15.)

Law review. - For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971).

§ 18.2-378. Coercing acceptance of obscene articles or publications.

It shall be unlawful for any person, firm, association or corporation, as a condition to any sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication to require that the purchaser or consignee receive for resale any other article, book, or other publication which is obscene; nor shall any person, firm, association or corporation deny or threaten to deny any franchise or impose or threaten to impose any penalty, financial or otherwise, by reason of the failure or refusal of any person to accept such articles, books, or publications, or by reason of the return thereof.

(Code 1950, § 18.1-233; 1960, c. 233; 1975, cc. 14, 15.)

Law review. - For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971).

§ 18.2-379. Employing or permitting minor to assist in offense under article.

It shall be unlawful for any person knowingly to hire, employ, use or permit any minor to do or assist in doing any act or thing constituting an offense under this article.

(Code 1950, § 18.1-234; 1960, c. 233; 1975, cc. 14, 15.)

Cross references. - As to report to children's residential facility for which a background check is being performed on whether the applicant has ever been convicted of or is the subject of pending charges for various crimes, including employing or permitting a minor to assist in an act constituting an offense under § 18.2-372 et seq., as set out in § 18.2-379 , or an equivalent offense in another state, see § 63.2-1726 .

§ 18.2-380. Punishment for first offense.

Any person, firm, association or corporation convicted for the first time of an offense under §§ 18.2-374 , 18.2-375 , 18.2-376 , 18.2-377 , 18.2-378 or § 18.2-379 , shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-235.1; 1968, c. 662; 1975, cc. 14, 15; 1983, c. 412; 1985, c. 279.)

§ 18.2-381. Punishment for subsequent offenses; additional penalty for owner.

Any person, firm, association or corporation convicted of a second or other subsequent offense under § 18.2-374 , 18.2-375 , 18.2-376 , 18.2-377 , 18.2-378 , or 18.2-379 is guilty of a Class 6 felony. However, if the person, firm, association or corporation convicted of such subsequent offense is the owner of the business establishment where each of the offenses occurred, a fine of not more than $10,000 shall be imposed in addition to the penalties otherwise prescribed by this section.

(Code 1950, § 18.1-236.1; 1960, c. 233; 1968, c. 662; 1975, cc. 14, 15; 1983, c. 412; 2015, c. 428.)

The 2015 amendments. - The 2015 amendment by c. 428 substituted " § 18.2-374 , 18.2-375 , 18.2-376 , 18.2-377 , 18.2-378 , or 18.2-379 is guilty" for " §§ 18.2-374 through 18.2-379 shall be guilty."

CASE NOTES

Enhanced punishment for multiple convictions of separate offenses in simultaneous prosecution. - An enhanced punishment may be applied where there are multiple convictions for separate offenses in a simultaneous prosecution. Star News, Inc. v. Commonwealth, No. 1785-96-1 (Ct. of Appeals Jan. 6, 1998).

Applied in Educational Books, Inc. v. Commonwealth, 228 Va. 392 , 323 S.E.2d 84 (1984).

§ 18.2-382. Photographs, slides and motion pictures.

Every person who knowingly:

  1. Photographs himself or any other person, for purposes of preparing an obscene film, photograph, negative, slide or motion picture for purposes of sale or distribution; or
  2. Models, poses, acts, or otherwise assists in the preparation of any obscene film, photograph, negative, slide or motion picture for purposes of sale or distribution;

    shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-235; 1960, c. 233; 1970, c. 204; 1975, cc. 14, 15.)

CASE NOTES

The Constitution requires an adversary hearing to determine obscenity before seizure of a movie. Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir.), cert. denied, 396 U.S. 985, 90 S. Ct. 477, 24 L. Ed. 2d 449 (1969).

§ 18.2-383. Exceptions to application of article.

Nothing contained in this article shall be construed to apply to:

  1. The purchase, distribution, exhibition, or loan of any book, magazine, or other printed or manuscript material by any library, school, or institution of higher education, supported by public appropriation;
  2. The purchase, distribution, exhibition, or loan of any work of art by any museum of fine arts, school, or institution of higher education, supported by public appropriation;
  3. The exhibition or performance of any play, drama, tableau, or motion picture by any theatre, museum of fine arts, school, or institution of higher education, supported by public appropriation.

    (Code 1950, § 18.1-236.2; 1960, c. 233; 1966, c. 516; 1975, cc. 14, 15.)

Editor's note. - At the direction of the Virginia Code Commission, "higher education" was substituted for "higher learning" throughout the section to conform to Acts 2016, c. 588.

§ 18.2-384. (Effective until January 1, 2022) Proceeding against book alleged to be obscene.

  1. Whenever he has reasonable cause to believe that any person is engaged in the sale or commercial distribution of any obscene book, any citizen or the attorney for the Commonwealth of any county or city, or city attorney, in which the sale or commercial distribution of such book occurs may institute a proceeding in the circuit court in said city or county for adjudication of the obscenity of the book.
  2. The proceeding shall be instituted by filing with the court a petition:
    1. Directed against the book by name or description;
    2. Alleging the obscene nature of the book; and
    3. Listing the names and addresses, if known, of the author, publisher, and all other persons interested in its sale or commercial distribution.
  3. Upon the filing of a petition pursuant to this article, the court in term or in vacation shall forthwith examine the book alleged to be obscene. If the court find no probable cause to believe the book obscene, the judge thereof shall dismiss the petition; but if the court find probable cause to believe the book obscene, the judge thereof shall issue an order to show cause why the book should not be adjudicated obscene.
  4. The order to show cause shall be:
    1. Directed against the book by name or description;
    2. Published once a week for two successive weeks in a newspaper of general circulation within the county or city in which the proceeding is filed;
    3. If their names and addresses are known, served by registered mail upon the author, publisher, and all other persons interested in the sale or commercial distribution of the book; and
    4. Returnable twenty-one days after its service by registered mail or the commencement of its publication, whichever is later.
  5. When an order to show cause is issued pursuant to this article, and upon four days' notice to be given to the persons and in the manner prescribed by the court, the court may issue a temporary restraining order against the sale or distribution of the book alleged to be obscene.
  6. On or before the return date specified in the order to show cause, the author, publisher, and any person interested in the sale or commercial distribution of the book may appear and file an answer. The court may by order permit any other person to appear and file an answer amicus curiae.
  7. If no one appears and files an answer on or before the return date specified in the order to show cause, the court, upon being satisfied that the book is obscene, shall order the clerk of court to enter judgment that the book is obscene, but the court in its discretion may except from its judgment a restricted category of persons to whom the book is not obscene.
  8. If an appearance is entered and an answer filed, the court shall order the proceeding set on the calendar for a prompt hearing. The court shall conduct the hearing in accordance with the rules of civil procedure applicable to the trial of cases by the court without a jury. At the hearing, the court shall receive evidence, including the testimony of experts, if such evidence be offered, pertaining to:
    1. The artistic, literary, medical, scientific, cultural and educational values, if any, of the book considered as a whole;
    2. The degree of public acceptance of the book, or books of similar character, within the county or city in which the proceeding is brought;
    3. The intent of the author and publisher of the book;
    4. The reputation of the author and publisher;
    5. The advertising, promotion, and other circumstances relating to the sale of the book;
    6. The nature of classes of persons, including scholars, scientists, and physicians, for whom the book may not have prurient appeal, and who may be subject to exception pursuant to subsection (7).
  9. In making a decision on the obscenity of the book, the court shall consider, among other things, the evidence offered pursuant to subsection (8), if any, and shall make a written determination upon every such consideration relied upon in the proceeding in his findings of fact and conclusions of law or in a memorandum accompanying them.
  10. If he finds the book not obscene, the court shall order the clerk of court to enter judgment accordingly. If he finds the book obscene, the court shall order the clerk of court to enter judgment that the book is obscene, but the court, in its discretion, may except from its judgment a restricted category of persons to whom the book is not obscene.
  11. While a temporary restraining order made pursuant to subsection (5) is in effect, or after the entry of a judgment pursuant to subsection (7), or after the entry of judgment pursuant to subsection (10), any person who publishes, sells, rents, lends, transports in intrastate commerce, or commercially distributes or exhibits the book, or has the book in his possession with intent to publish, sell, rent, lend, transport in intrastate commerce, or commercially distribute or exhibit the book, is presumed to have knowledge that the book is obscene under §§ 18.2-372 through 18.2-378 of this article.
  12. Any party to the proceeding, including the petitioner, may appeal from the judgment of the court to the Supreme Court of Virginia, as otherwise provided by law.
  13. It is expressly provided that the petition and proceeding authorized under this article, relating to books alleged to be obscene, shall be intended only to establish scienter in cases where the establishment of such scienter is thought to be useful or desirable by the petitioner; and the provisions of § 18.2-384 shall in nowise be construed to be a necessary prerequisite to the filing of criminal charges under this article. (Code 1950, § 18.1-236.3; 1960, c. 233; 1975, cc. 14, 15.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 18.2-384 .

Law review. - For survey of Virginia constitutional law for the year 1971-1972, see 58 Va. L. Rev. 1197 (1972).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78, 136; 10A M.J. Injunctions, § 88; 11B M.J. Jury, § 10; 13B M.J. Newspapers, § 6; 18 M.J. Theaters, Shows and Fairs, § 2.

CASE NOTES

Constitutionality. - This section provides a sufficiently definite procedure for determining whether certain materials alleged to be obscene are, in fact, obscene, and is therefore not unconstitutionally vague. Alexander v. Commonwealth, 214 Va. 539 , 203 S.E.2d 441 (1974).

Movie films are to be accorded the same constitutional protection as books. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

No distinction can be made between seizure for condemnation and seizure for evidence. - No distinction can rationally be made between the seizure of publications and film for condemnation, and seizure for evidence in a criminal prosecution. Both types of seizure must be treated the same, for to do otherwise would sanction indiscriminate police fishing expeditions. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

The magnitude of a particular seizure of allegedly obscene materials is not a viable determinant of whether a person's or society's right to freedom of speech and press has been abridged. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

The community standard for obscenity is that of the locality rather than that of the State or nation. Alexander v. Commonwealth, 214 Va. 539 , 203 S.E.2d 441 (1974).

Prior judicial determination of obscenity required. - A prior adversary judicial hearing must be conducted before allegedly obscene books can be seized by government authorities. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

A person may not be forced to go through the hardship of defending himself against a criminal prosecution - with its consequent chilling effect on him and the community at large - for possessing, selling, or promoting, etc., publications or film, without the government first having judicially ascertained whether the matter for the possession, etc., of which he is being prosecuted is, in fact, obscene. Greenmount Sales, Inc. v. Davila, 344 F. Supp. 860 (E.D. Va. 1972), aff'd in part and rev'd in part, 479 F.2d 591 (4th Cir. 1973).

Nothing on the face of this section denies a prompt adversary hearing on the issue of obscenity after temporary seizure or restraint. Alexander v. Commonwealth, 214 Va. 539 , 203 S.E.2d 441 (1974).

There is no absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. Alexander v. Commonwealth, 214 Va. 539 , 203 S.E.2d 441 (1974).

A trial by jury is not constitutionally required in a state civil obscenity proceeding pursuant to this section. Alexander v. Virginia, 413 U.S. 836, 93 S. Ct. 2803, 37 L. Ed. 2d 993 (1973); Alexander v. Commonwealth, 214 Va. 539 , 203 S.E.2d 441 (1974).

The object of an adversary hearing is to ensure that expression will not be suppressed without contest and justification. An adversary proceeding contemplates an opportunity for one to be afforded the protection of the First Amendment to the Constitution of the United States. Allegedly obscene publications or movies are not to be treated the same way as narcotics, gambling paraphernalia and other contraband. The legal rules governing the former are different from the latter. Tyrone, Inc. v. Wilkinson, 294 F. Supp. 1330 (E.D. Va.), aff'd, 410 F.2d 639 (4th Cir.), cert. denied, 396 U.S. 985, 90 S. Ct. 477, 24 L. Ed. 2d 449 (1969).

Sufficiency of evidence. - See Alexander v. Commonwealth, 214 Va. 539 , 203 S.E.2d 441 (1974).

§ 18.2-384. (Effective January 1, 2022) Proceeding against book alleged to be obscene.

  1. Whenever he has reasonable cause to believe that any person is engaged in the sale or commercial distribution of any obscene book, any citizen or the attorney for the Commonwealth of any county or city, or city attorney, in which the sale or commercial distribution of such book occurs may institute a proceeding in the circuit court in said city or county for adjudication of the obscenity of the book.
  2. The proceeding shall be instituted by filing with the court a petition:
    1. Directed against the book by name or description;
    2. Alleging the obscene nature of the book; and
    3. Listing the names and addresses, if known, of the author, publisher, and all other persons interested in its sale or commercial distribution.
  3. Upon the filing of a petition pursuant to this article, the court in term or in vacation shall forthwith examine the book alleged to be obscene. If the court find no probable cause to believe the book obscene, the judge thereof shall dismiss the petition; but if the court find probable cause to believe the book obscene, the judge thereof shall issue an order to show cause why the book should not be adjudicated obscene.
  4. The order to show cause shall be:
    1. Directed against the book by name or description;
    2. Published once a week for two successive weeks in a newspaper of general circulation within the county or city in which the proceeding is filed;
    3. If their names and addresses are known, served by registered mail upon the author, publisher, and all other persons interested in the sale or commercial distribution of the book; and
    4. Returnable 21 days after its service by registered mail or the commencement of its publication, whichever is later.
  5. When an order to show cause is issued pursuant to this article, and upon four days' notice to be given to the persons and in the manner prescribed by the court, the court may issue a temporary restraining order against the sale or distribution of the book alleged to be obscene.
  6. On or before the return date specified in the order to show cause, the author, publisher, and any person interested in the sale or commercial distribution of the book may appear and file an answer. The court may by order permit any other person to appear and file an answer amicus curiae.
  7. If no one appears and files an answer on or before the return date specified in the order to show cause, the court, upon being satisfied that the book is obscene, shall order the clerk of court to enter judgment that the book is obscene, but the court in its discretion may except from its judgment a restricted category of persons to whom the book is not obscene.
  8. If an appearance is entered and an answer filed, the court shall order the proceeding set on the calendar for a prompt hearing. The court shall conduct the hearing in accordance with the rules of civil procedure applicable to the trial of cases by the court without a jury. At the hearing, the court shall receive evidence, including the testimony of experts, if such evidence be offered, pertaining to:
    1. The artistic, literary, medical, scientific, cultural and educational values, if any, of the book considered as a whole;
    2. The degree of public acceptance of the book, or books of similar character, within the county or city in which the proceeding is brought;
    3. The intent of the author and publisher of the book;
    4. The reputation of the author and publisher;
    5. The advertising, promotion, and other circumstances relating to the sale of the book;
    6. The nature of classes of persons, including scholars, scientists, and physicians, for whom the book may not have prurient appeal, and who may be subject to exception pursuant to subsection G.
  9. In making a decision on the obscenity of the book, the court shall consider, among other things, the evidence offered pursuant to subsection H, if any, and shall make a written determination upon every such consideration relied upon in the proceeding in his findings of fact and conclusions of law or in a memorandum accompanying them.
  10. If he finds the book not obscene, the court shall order the clerk of court to enter judgment accordingly. If he finds the book obscene, the court shall order the clerk of court to enter judgment that the book is obscene, but the court, in its discretion, may except from its judgment a restricted category of persons to whom the book is not obscene.
  11. While a temporary restraining order made pursuant to subsection E is in effect, or after the entry of a judgment pursuant to subsection G, or after the entry of judgment pursuant to subsection J, any person who publishes, sells, rents, lends, transports in intrastate commerce, or commercially distributes or exhibits the book, or has the book in his possession with intent to publish, sell, rent, lend, transport in intrastate commerce, or commercially distribute or exhibit the book, is presumed to have knowledge that the book is obscene under §§ 18.2-372 through 18.2-378 of this article.
  12. Any party to the proceeding, including the petitioner, may appeal from the judgment of the court to the Court of Appeals, as otherwise provided by law.
  13. It is expressly provided that the petition and proceeding authorized under this article, relating to books alleged to be obscene, shall be intended only to establish scienter in cases where the establishment of such scienter is thought to be useful or desirable by the petitioner; and the provisions of § 18.2-384 shall in nowise be construed to be a necessary prerequisite to the filing of criminal charges under this article. (Code 1950, § 18.1-236.3; 1960, c. 233; 1975, cc. 14, 15; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 18.2-384 .

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, redesignated subdivisions (1)-(13) as subsections A-M and subdivisions (2)(a)-(c), (4)(a)-(d), and (8)(a)-(f) as B 1-3 , D 1-4 , and H 1-6 ; updated internal references according to the redesignations throughout the section; substituted "Court of Appeals" for "Supreme Court of Virginia" in subsection L; and made a stylistic change.

§ 18.2-385. Section 18.2-384 applicable to motion picture films.

The provisions of § 18.2-384 shall apply mutatis mutandis in the case of motion picture film.

(Code 1950, § 18.1-236.4; 1966, c. 516; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, §§ 78, 136; 18 M.J. Theaters, Shows and Fairs, § 2.

§ 18.2-386. Showing previews of certain motion pictures.

It shall be unlawful for any person to exhibit any trailer or preview of any motion picture which has a motion picture industry rating which would not permit persons in the audience viewing the feature motion picture to see the complete motion picture from which the trailer or preview is taken. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-246.1; 1970, c. 504; 1975, cc. 14, 15.)

§ 18.2-386.1. Unlawful creation of image of another; penalty.

  1. It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videographic or still image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being recorded would have a reasonable expectation of privacy.
  2. The provisions of this section shall not apply to any videographic or still image created by any means whatsoever by (i) law-enforcement officers pursuant to a criminal investigation which is otherwise lawful or (ii) correctional officials and local or regional jail officials for security purposes or for investigations of alleged misconduct involving a person committed to the Department of Corrections or to a local or regional jail, or to any sound recording of an oral conversation made as a result of any videotaping or filming pursuant to Chapter 6 (§ 19.2-61 et seq.) of Title 19.2.
  3. A violation of subsection A shall be punishable as a Class 1 misdemeanor.
  4. A violation of subsection A involving a nonconsenting person under the age of 18 shall be punishable as a Class 6 felony.
  5. Where it is alleged in the warrant, information, or indictment on which the person is convicted and found by the court or jury trying the case that the person has previously been convicted within the 10-year period immediately preceding the offense charged of two or more of the offenses specified in this section, each such offense occurring on a different date, and when such offenses were not part of a common act, transaction, or scheme, and such person has been at liberty as defined in § 53.1-151 between each conviction, he shall be guilty of a Class 6 felony. (1994, c. 640; 2004, c. 844; 2005, c. 375; 2008, c. 732; 2014, c. 399.)

The 2004 amendments. - The 2004 amendment by c. 844 added subsection D.

The 2005 amendments. - The 2005 amendment by c. 375, rewrote subsection A and inserted "or other still image or videographic recording" in subsection B.

The 2008 amendments. - The 2008 amendment by c. 732 added subsection E.

The 2014 amendments. - The 2014 amendment by c. 399, in subsection A, deleted "videotape, photograph, or film any nonconsenting person or" following "internationally," "videotape, photograph, film or" following "(ii) the," "record" following "still image," and "videotaped, photographed, filmed or otherwise" following "person being," and substituted "any nonconsenting" for "the nonconsenting"; and in subsection B substituted "any videographic or" for "filming, videotaping or photographing or other" and "created by any means whatsoever" for "or videographic recording."

Law review. - For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

CASE NOTES

Nonconsenting person. - Although the trial court erred in concluding that the eight-year-old minor victim, as a matter of law, was a nonconsenting person due to the victim's age, the error was harmless because the totality of the evidence led inexorably to the conclusion that the victim was unaware that the victim was being filmed surreptitiously in the victim's bedroom, rendering the victim a nonconsenting person for purposes of defendant's trial for filming the victim without the victim's consent on multiple occasions. Blackwell v. Commonwealth,, 2021 Va. App. LEXIS 29 (Feb. 23, 2021).

Expectation of privacy. - Because the victim was wearing clothing covering her undergarments while shopping in a public location, the trial court did not err in finding that she had a reasonable expectation of privacy as to those undergarments for purposes of § 18.2-386.1 ; under § 18.2-386.1 , a person can possess a reasonable expectation of privacy when being victimized in public, and the requirement in clause (ii) of subsection A that the victim's intimate parts or undergarments covering those intimate parts not otherwise be visible to the general public is simply a standard by which to assess whether the victim's "intimate parts or undergarments" were reasonably out of view, as a prerequisite to finding that the accused has viewed them unlawfully. Wilson v. Commonwealth, 53 Va. App. 599, 673 S.E.2d 923, 2009 Va. App. LEXIS 137 (2009).

Evidence was sufficient to support the jury's finding that defendant recorded the victim when she had a reasonable expectation of privacy because the evidence showed that the victim was in her bedroom, at the time the recording began the victim was shielding her naked body from defendant and the camera with a blanket, the victim pleaded with defendant to stop recording her, and she considered leaving the apartment but did not so because she was naked. Haba v. Commonwealth, 73 Va. App. 277, 858 S.E.2d 436, 2021 Va. App. LEXIS 92 (2021).

Defendant's conviction for unlawful creation of images of another was affirmed because this statute prohibited recording another person, naked, without her consent, when in her bedroom, where she had a reasonable expectation of privacy; there was ample evidence to support the conclusion that the victim was truthful when she said she was unaware of, and thus non-consenting to, the recordings of her and defendant engaging in sexual activity; and the fact-finder was entitled to disbelieve the authenticity and validity of the contract that defendant offered into evidence as proof that the victim had provided written consent to film her. Johnson v. Commonwealth, 73 Va. App. 393, 860 S.E.2d 408, 2021 Va. App. LEXIS 133 (2021).

"Other location" does not include public forum. - The general words, "other location," as used in the statute did not apply to the defendant's videotaping from under the dress of a fully clothed person standing at a public forum, i.e., a county fairgrounds. C'Debaca v. Commonwealth, No. 2754-97-4 (Ct. of Appeals Feb. 2, 1999) (decided prior to 2005 amendment which added A(ii)).

Evidence sufficient. - Evidence was sufficient for the trial court to rationally find defendant guilty of attempting to photograph a victim in violation of § 18.2-386.1 because defendant was charged with and convicted of attempting to photograph the victim in violation of §§ 18.2-27 and 18.2-386.1 , not the completed crime; therefore, it was not necessary for the Commonwealth to prove that defendant, in fact, accomplished "directly" photographing the victim in the proscribed manner under the statute or that defendant actually photographed anything. Wilson v. Commonwealth, 53 Va. App. 599, 673 S.E.2d 923, 2009 Va. App. LEXIS 137 (2009).

Evidence, including four videos of naked, showering women found on defendant's work computer, non-sequential segments indicating they had been taken out of order before stored, and storage of videos for over a year, supported a reasonable inference defendant knowingly and intentionally filmed the videos, supporting his convictions for intentionally videotaping nonconsenting persons aged 18 years or older. McCurnin v. Commonwealth, No. 0309-17-2, 2017 Va. App. LEXIS 293 (Nov. 21, 2017).

Evidence sufficiently established that defendant engaged in the illegal filming of the minor victim because the filming was surreptitious with the camera being slipped under the victim's closed bedroom door, the videos were found on defendant's phone, defendant had access to the victim's home as the victim's parent was defendant's paramour, and defendant seized and disabled the paramour's phone to prevent the paramour from calling the police when the paramour confronted defendant about the videos that the paramour found on defendant's phone. Blackwell v. Commonwealth,, 2021 Va. App. LEXIS 29 (Feb. 23, 2021).

CIRCUIT COURT OPINIONS

Multiple contemporaneous convictions required sex offender registration. - Defendant was required to register as a sex offender pursuant to subdivision B 1 of § 9.1-902 after he was convicted of nine violations of § 18.2-386.1 because he had accumulated at least three convictions of § 18.2-386.1 and the contemporaneousness of his convictions was not a bar to enforcement of the registration requirement. Commonwealth v. Schneider, 78 Va. Cir. 320, 2009 Va. Cir. LEXIS 160 (Hanover County May 7, 2009).

§ 18.2-386.2. Unlawful dissemination or sale of images of another; penalty.

  1. Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor. For purposes of this subsection, "another person" includes a person whose image was used in creating, adapting, or modifying a videographic or still image with the intent to depict an actual person and who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic.
  2. If a person uses services of an Internet service provider, an electronic mail service provider, or any other information service, system, or access software provider that provides or enables computer access by multiple users to a computer server in committing acts prohibited under this section, such provider shall not be held responsible for violating this section for content provided by another person.
  3. Venue for a prosecution under this section may lie in the jurisdiction where the unlawful act occurs or where any videographic or still image created by any means whatsoever is produced, reproduced, found, stored, received, or possessed in violation of this section.
  4. The provisions of this section shall not preclude prosecution under any other statute.

    (2014, c. 399; 2019, cc. 490, 515.)

The 2019 amendments. - The 2019 amendments by cc. 490 and 515 are identical, and in subsection A, added the second sentence and redesignated the former second sentence as subsection B; in subsection B, deleted "However," at the beginning; and redesignated former subsections B and C as subsections C and D, respectively.

CASE NOTES

Venue. - In a case involving the unlawful dissemination of nude images, there was no error in determining that a particular county was the proper venue to try the case under this statute where defendant did not dispute that his ex-wife received images he maliciously disseminated in the county at issue. The Commonwealth carried its burden of proof in demonstrating a strong presumption that this county was an appropriate venue to try the case. Morehead v. Commonwealth, 66 Va. App. 241, 784 S.E.2d 301 (2016).

Applied in Sheehy v. Williams, 850 S.E.2d 371, 2020 Va. LEXIS 139 (Nov. 25, 2020).

§ 18.2-387. Indecent exposure.

Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present.

(Code 1950, § 18.1-236; 1960, c. 233; 1975, cc. 14, 15; 1994, c. 398.)

Law review. - For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971). For article on the constitutionality of local ordinances banning nude sunbathing, see 20 U. Rich. L. Rev. 589 (1986).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 11.

CASE NOTES

"Public place." - "Public place" comprises places and circumstances where an offender does not have a reasonable expectation of privacy because of the foreseeability of a non-consenting public witness, thus, the evidence supported defendant's indecent exposure conviction. Defendant had no expectation of privacy when he masturbated while standing at the front bars of his cell, in open view of the staff, other inmates, and members of the public with authorized access. Barnes v. Commonwealth, 61 Va. App. 495, 737 S.E.2d 919, 2013 Va. App. LEXIS 65 (2013).

Indecent exposure not lesser offense of sodomy. - Indecent exposure, though it may occur in almost all cases of sodomy where two persons are involved, is not a fact that must be charged or proved to sustain a conviction of sodomy in any case. Therefore, indecent exposure is not a lesser offense included in the offense of sodomy. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1968).

But is lesser offense of exposure with lascivious intent. - While not a lesser offense included under sodomy because the facts to be proven are not the same, indecent exposure is a lesser offense included under the statutory felony of exposure to certain infants with lascivious intent, because only the intent differs. Hewitt v. Commonwealth, 213 Va. 605 , 194 S.E.2d 893 (1973).

Local governing bodies not prevented from enacting public nudity ordinances. - State laws do not prevent a local governing body, under its police power, from enacting public nudity ordinances not inconsistent with the state law prohibiting conduct which the local governing body reasonably deems to be contrary to the morals, health, safety and general welfare of the community. Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231 , 208 S.E.2d 51 (1974).

Exposure of groin and buttocks clearly, fall within the proscriptions of this section. Hart v. Commonwealth, 18 Va. App. 77, 441 S.E.2d 706 (1994).

Exposure of defendant's penis violated the proscription of this section. Morales v. Commonwealth, 31 Va. App. 541, 525 S.E.2d 23 (2000).

More than indecent exposure proven. - While defendant was correct in asserting that absent proof of lascivious intent, he could only be found guilty of misdemeanor indecent exposure, defendant's conduct in looking down at his groin and then adjusting his shorts so that his previously unexposed penis was exposed to two young girls riding by on bicycles involved sufficient conduct to show his lascivious intent and support his taking indecent liberties with a child in violation of § 18.2-370 . Viney v. Commonwealth, 269 Va. 296 , 609 S.E.2d 26, 2005 Va. LEXIS 20 (2005).

Indecent exposure not lesser offense of indecent liberties. - Indecent exposure, as proscribed by § 18.2-387 , was not a lesser included offense of indecent liberties, as proscribed by § 18.2-370 , because all the elements of indecent exposure were not included in the offense charged, and, thus, failure to instruct the jury on indecent exposure was not error. Simon v. Commonwealth, 58 Va. App. 194, 708 S.E.2d 245, 2011 Va. App. LEXIS 153 (2011).

Evidence was clearly sufficient to support the trial court's conclusion that defendant's exposure of his "private parts" was obscene, where defendant dropped his shorts in front of a clerk in an office supply store, so that he was clad in a skimpy G-string which covered only his penis and anus, leaving his pubic area and buttocks exposed; the trial court was entitled to conclude that defendant's statements, in conjunction with his actions, clearly established that his actions had as their dominant purpose an appeal to the prurient interest in sex. Hart v. Commonwealth, 18 Va. App. 77, 441 S.E.2d 706 (1994).

Evidence that defendant exposed his genitals, that he was clearly aroused, and that he was masturbating established that defendant's actions had as their dominant purpose an appeal to the prurient interest in sex and were therefore obscene. Copeland v. Commonwealth, 31 Va. App. 512, 525 S.E.2d 9 (2000).

Proof that defendant was exposing his genitals, that he was in a visibly aroused state, and that he was masturbating satisfied the requirement that defendant's conduct violated contemporary community standards of sexual candor. Morales v. Commonwealth, 31 Va. App. 541, 525 S.E.2d 23 (2000).

Because a man masturbating in public could still display his "person" or "private parts" while not exposing his penis to sight, defendant's public masturbation in front of children was an obscene "display" of his person or private parts even though he was fully clothed. Moses v. Commonwealth, 45 Va. App. 357, 611 S.E.2d 607, 2005 Va. App. LEXIS 220 (2005).

Uncorroborated testimony supported defendant's conviction for indecent exposure despite the victim's delay in reporting the assault because the delay, which was due to the victim's fear of her father, defendant, and her shame and embarrassment, was consistent with human experience and did not render her testimony inherently incredible. Wilson v. Commonwealth, 46 Va. App. 73, 615 S.E.2d 500, 2005 Va. App. LEXIS 268 (2005).

Evidence that defendant flaunted his almost completely nude body before an unsuspecting public in a very open public place, leaving his buttocks completely uncovered and his penis and scrotum covered by the thinnest strip of cloth, was sufficient to support defendant's conviction for indecent exposure. Maness v. Commonwealth,, 2014 Va. App. LEXIS 191 (May 20, 2014).

Evidence insufficient. - Defendant was erroneously convicted of indecent exposure under § 18.2-387 , where defendant's conduct in exposing her breasts to three 11- and 12-year-old boys who were family friends was not obscene; defendant's conduct was always done in a joking manner and defendant did not exhibit signs of sexual interest, such as visible arousal or masturbatory behavior. Neice v. Commonwealth,, 2010 Va. App. LEXIS 231 (June 8, 2010).

Although defendant's behavior was inappropriate, it did not rise to the level of obscenity required under § 18.2-387 , as defined in § 18.2-372 , and defendant's conviction of indecent exposure was improper; nothing in the record suggested that defendant invited any sexual conduct with the victim, hinted at any sexual excitement on defendant's part, or, when defendant dropped defendant's pants upon exiting a bus (with defendant's back to the victim and running away from the victim), displayed defendant's sexual organs to the victim or to anyone else. A. M. v. Commonwealth,, 2013 Va. App. LEXIS 46 (Feb. 12, 2013).

Evidence that defendant was in a car in a parking lot, wearing only a woman's nightgown with his genitals exposed, was insufficient to convict him of indecent exposure, as he did not admit to having an obscene intent, he was not visibly aroused, there was no evidence that he had been masturbating, and the totality of the circumstances did not support an inference that his dominant purpose was a prurient interest in sex. Romick v. Commonwealth, No. 1580-12-4, 2013 Va. App. LEXIS 336 (Nov. 19, 2013).

Harmless error. - Despite a trial court expressing uncertainty as to whether the applicable standard was one of indecency or one of obscenity, any error was harmless because the verdict convicting defendant would have been the same as a result of defendant's conduct of exposing his buttocks and breasts (he was a transvestite), in the early morning hours, on a street known for illegal prostitution, which was conduct that was intentional and done with the purpose of appealing to the prurient interest in sex. Willis v. Commonwealth, No. 0173-04-2, 2005 Va. App. LEXIS 58 (Ct. of Appeals Feb. 8, 2005).

Intent not established. - While the evidence amply established that defendant exposed his private parts while standing at his bedroom window, the Commonwealth failed to bear its burden of proving beyond a reasonable doubt that the exposure was intentional. Stiftar v. Commonwealth, No. 0431-87-4 (Ct. of Appeals Dec. 6, 1988).

Applied in Chrisman v. Commonwealth, 3 Va. App. 89, 348 S.E.2d 399 (1986).

OPINIONS OF THE ATTORNEY GENERAL

"Public place." - A jail may be a "public place," provided the conduct in question occurs in an area of the jail or under circumstances where an inmate does not have a reasonable expectation of privacy due to the foreseeability of a non-consenting public witness. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff, City of Norfolk, 16-025, 2016 Va. AG LEXIS 27 (11/10/16).

§ 18.2-387.1. Obscene sexual display; penalty.

Any person who, while in any public place where others are present, intending that he be seen by others, intentionally and obscenely as defined in § 18.2-372 , engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1 misdemeanor.

(2005, c. 422.)

Law review. - For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

CASE NOTES

"Public place." - "Public place" comprises places and circumstances where an offender does not have a reasonable expectation of privacy because of the foreseeability of a non-consenting public witness, thus, the evidence supported defendant's sexual display conviction. Defendant had no expectation of privacy when he masturbated while standing at the front bars of his cell, in open view of the staff, other inmates, and members of the public with authorized access. Barnes v. Commonwealth, 61 Va. App. 495, 737 S.E.2d 919, 2013 Va. App. LEXIS 65 (2013).

OPINIONS OF THE ATTORNEY GENERAL

"Public place." - A jail may be a "public place," provided the conduct in question occurs in an area of the jail or under circumstances where an inmate does not have a reasonable expectation of privacy due to the foreseeability of a non-consenting public witness. See opinion of Attorney General to The Honorable Robert J. McCabe, Sheriff, City of Norfolk, 16-025, 2016 Va. AG LEXIS 27 (11/10/16).

§ 18.2-388. Intoxication in public; penalty; transportation of public inebriates to detoxification center.

If any person is intoxicated in public, whether such intoxication results from alcohol, narcotic drug, or other intoxicant or drug of whatever nature, he is guilty of a Class 4 misdemeanor. In any area in which there is located a court-approved detoxification center, a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.

(Code 1950, § 18.1-237; 1960, c. 358; 1964, c. 434; 1975, cc. 14, 15; 1979, c. 654; 1982, c. 666; 1983, c. 187; 1990, c. 965; 2020, c. 160.)

Cross references. - As to running automobiles, engines, etc., while intoxicated, see §§ 18.2-266 through 18.2-273 .

As to detoxification center programs, see § 9.1-163 et seq.

As to safe reporting of overdoses, see § 18.2-251.03 .

The 2020 amendments. - The 2020 amendment by c. 160, in the first sentence, deleted "profanely curses or swears or" following "If any person" and substituted "is guilty" for "shall be deemed guilty"; and made stylistic changes.

Law review. - For article, "Drunkenness and Reform of the Criminal Law," see 54 Va. L. Rev. 1135 (1968). For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974).

For note, "Is Powell Still Valid? The Supreme Court's Changing Stance on Cruel and Unusual Punishment," see 104 Va. L. Rev. 547 (2018).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 5; 2B M.J. Automobiles, § 118; 3A M.J. Breach of the Peace, §§ 2, 5; 6B M.J. Drunkenness, §§ 3, 13; 17 M.J. Statutes, § 60.

CASE NOTES

Arrest for violation of this section is authorized. - Under the plain language of this section, an officer is authorized to arrest a public inebriate. Carrasquillo v. Commonwealth, No. 0372-00-2, 2001 Va. App. LEXIS 274 (Ct. of Appeals May 22, 2001).

Intoxication on private property shielded from public view not grounds for arrest. - Police officers did not have the right to arrest an individual for public intoxication where it was clearly established at the time of the arrest that by consuming alcohol in his own yard, shielded from public view, at the end of a private road, the individual arrested did not commit the offense of public intoxication within the meaning of Virginia law. Rogers v. Pendleton, 249 F.3d 279, 2001 U.S. App. LEXIS 8157 (4th Cir. 2001).

The plain meaning of "in public" for purposes of § 18.2-388 was a place in open view, visible to the community, and could include a defendant's private property. Crislip v. Commonwealth, 37 Va. App. 66, 554 S.E.2d 96, 2001 Va. App. LEXIS 592 (2001).

Defendant should not have been arrested absent physical impairment. - Granting of a defendant's motion to suppress evidence in the form of a gun seized from his person and statements made to officers, where the officers lacked sufficient justification under the Fourth Amendment to perform a Terry v. Ohio stop, and to arrest and search defendant based on an uncorroborated anonymous tip, and where defendant admitted he had been drinking but was not intoxicated, was affirmed on appeal. United States v. Brown, 401 F.3d 588, 2005 U.S. App. LEXIS 4859 (4th Cir. 2005).

Alcoholism is not a defense to a prosecution for public drunkenness. Rakes v. Coleman, 359 F. Supp. 370 (E.D. Va. 1973).

A claim that it is cruel and unusual punishment to incarcerate an alcoholic without rehabilitation was not supported by the record. Rakes v. Coleman, 359 F. Supp. 370 (E.D. Va. 1973).

When pending prosecutions may be enjoined. - A federal court may enjoin pending prosecutions for violation of this section only upon a showing of bad faith harassment by the state or abridgement of First Amendment freedoms in addition to a showing that the alleged injuries are immediate, real and irreparable. Rakes v. Coleman, 359 F. Supp. 370 (E.D. Va. 1973).

Self-defense argument prohibited. - Defendant's conviction for assault and battery of a law-enforcement officer was appropriate because the trial court did not err in refusing to accept defendant's self-defense argument. Whether the police had probable cause to arrest defendant for disorderly conduct was immaterial because police did have probable cause to arrest him for public intoxication under § 18.2-388 ; thus, the police officers were acting properly when they arrested defendant and he had no legal justification for head-butting a law-enforcement officer who was carrying out his lawful duties. Davis v. Commonwealth,, 2010 Va. App. LEXIS 209 (May 18, 2010).

As to standing of chronic alcoholics to seek declaratory relief on allegations of denial of defense of alcoholism and incarceration without rehabilitative treatment, see Rakes v. Coleman, 359 F. Supp. 370 (E.D. Va. 1973).

Evidence held sufficient. - Evidence was sufficient to support a finding that officer possessed probable cause to believe that defendant was drunk in public where the officer testified that defendant slurred his speech and swayed from side to side, smelled of alcohol, and had bloodshot and glassy eyes; additionally, another witness testified that he saw defendant shortly after his arrest and also noticed that he slurred his speech, stumbled, and smelled of alcohol. Wilson v. Commonwealth, No. 2850-00-2, 2002 Va. App. LEXIS 322 (Ct. of Appeals May 28, 2002).

Probable cause to arrest. - Because defendant's initial arrest for being drunk in public under § 18.2-388 was supported by probable cause, defendant had no right to resist; consequently, defendant was properly convicted of assault and battery of a police officer under § 18.2-57 when defendant later fled and then struggled with and injured a police officer. Brower v. Commonwealth,, 2008 Va. App. LEXIS 83 (Feb. 19, 2008).

As defendant's bloodshot eyes, slurred speech, unsteadiness on his feet, and possession of an open can of beer in a truck parked at a motel parking lot gave an officer probable cause to arrest him for public drunkenness under § 18.2-388 , drugs found in a search of defendant's pockets were admissible as the fruits of a search incident to an arrest. Whether the officer exceeded the permissible scope of a weapons frisk, whether he believed he had probable cause to arrest defendant before the search, and the fact that he performed the search before the arrest were irrelevant. Commonwealth v. Lasley,, 2009 Va. App. LEXIS 10 (Jan. 13, 2009).

Although there was a compelling argument that § 18.2-388 , which criminalized cursing at an officer, was unconstitutional, plaintiff arrestee failed to show that it was so grossly and flagrantly unconstitutional that defendant police officer should have anticipated its invalidation, thus, the arrest of the arrestee for calling the officer a bitch was supported by probable cause and the arrestee's First and Fourth Amendment claims failed. Harrison v. Deane,, 2011 U.S. App. LEXIS 8873 (4th Cir. Apr. 29, 2011).

Search incident to arrest for public drunkenness. - Cocaine found on defendant during a search incident to defendant's arrest for public drunkenness was erroneously suppressed as a police officer had probable cause to arrest defendant for public drunkenness under § 18.2-388 , since defendant was found drunk and sleeping in a car in a parking lot open to the public and routinely used by apartment residents and guests; it did not matter for Fourth Amendment purposes that defendant was charged under a City ordinance with a more narrow scope than the state public drunkenness statute. Commonwealth v. Carter,, 2007 Va. App. LEXIS 344 (Sept. 14, 2007).

Cocaine found in defendant's vehicle was admissible because a police officer had probable cause under subsection B of § 19.2-81 to arrest defendant for public intoxication, in violation of § 18.2-388 , as the officer testified that as the officer approached defendant's parked vehicle and spoke with defendant there was a very strong odor of alcohol coming from defendant's breath, defendant's speech was slurred, and defendant's eyes were very bloodshot. Furthermore, the officer's search of defendant's vehicle was a proper search incident to arrest under then existing law, as defendant was in custody and an occupant of the vehicle. McGhee v. Commonwealth, 280 Va. 620 , 701 S.E.2d 58, 2010 Va. LEXIS 260 (2010).

OPINIONS OF THE ATTORNEY GENERAL

There is no statutory time limit within which a magistrate must grant bond for an intoxicated person charged with a misdemeanor offense, such as driving under the influence or public intoxication. See opinion of Attorney General to The Honorable Gary W. Waters, Sheriff for the City of Portsmouth, 04-49 (7/15/04).

Preliminary breath tests may be admissible. - The results of the preliminary breath tests (Alco-Sensor or like device) may be admissible for the offenses of underage possession of alcohol, possession or consumption of alcoholic beverages by an interdicted person, and public intoxication at the discretion of the trial judge and subject to the proper foundation. See opinion of Attorney General to the Honorable La Bravia J. Jenkins, Commonwealth's Attorney, City of Fredericksburg, 12-111, 2013 Va. AG LEXIS 34 (6/7/13).

"Habitual drunkard." - Commonwealth's Attorney should no longer seek new interdictions, criminal penalties, or criminal enhancements premised on the person being labeled "habitual drunkard." See opinion of Attorney General to Honorable Colette McEachin, Interim Commonwealth's Attorney for the City of Richmond, 19-048, 2019 Va. AG LEXIS ____ (9/13/19).

§ 18.2-389.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions as to adoption of ordinances prohibiting obscenity, see § 15.2-926.2 .

Article 6. Prohibited Sales and Loans to Juveniles.

§ 18.2-390. Definitions.

As used in this article:

  1. "Juvenile" means a person less than 18 years of age.
  2. "Nudity" means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.
  3. "Sexual conduct" means actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse, or physical contact in an act of apparent sexual stimulation or gratification with a person's clothed or unclothed genitals, pubic area, buttocks or, if such be female, breast.
  4. "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
  5. "Sadomasochistic abuse" means actual or explicitly simulated flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
  6. "Harmful to juveniles" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly appeals to the prurient, shameful or morbid interest of juveniles, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for juveniles, and (c) is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.
  7. "Knowingly" means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of both (a) the character and content of any material described herein which is reasonably susceptible of examination by the defendant, and (b) the age of the juvenile, provided however, that an honest mistake shall constitute an excuse from liability hereunder if the defendant made a reasonable bona fide attempt to ascertain the true age of such juvenile.
  8. "Video or computer game" means an object or device that stores recorded data or instructions, receives data or instructions generated by a person who uses it, and, by processing the data or instructions, creates an interactive game capable of being played, viewed, or experienced on or through a computer, television gaming system, console, or other technology.

    (Code 1950, § 18.1-236.6; 1970, c. 560; 1975, cc. 14, 15, 492; 1976, c. 504; 2006, c. 463.)

Cross references. - As to restrictions on state employee access to information infrastructure, see § 2.2-2827 .

As to public and private schools blocking Internet access to material deemed harmful to juveniles, see § 22.1-70.2.

Editor's note. - The above section is § 18.1-236.6 as amended by Acts 1975, c. 492. Pursuant to § 30-152, it has been substituted for § 18.2-390 as enacted by Acts 1975, cc. 14 and 15.

The 2006 amendments. - The 2006 amendment by c. 463 added subdivision (8).

Law review. - For survey of proposed changes in statutory regulation of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971). For survey of constitutional law in Virginia for the year 1975-1976, see 62 Va. L. Rev. 1389 (1976).

For note, "Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases," see 52 Wm. & Mary L. Rev. 1717 (2011).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78.

CASE NOTES

Virginia Code's current definition of "harmful to juveniles" is modification of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) definition of obscenity, adapted for juveniles. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988).

In defining "harmful to juveniles" in subdivision (6)(c), the General Assembly interpreted the statutory definition of "harmful to juveniles" in accordance with the current United States Supreme Court definition of obscenity. American Booksellers Ass'n v. Virginia, 882 F.2d 125 (4th Cir. 1989), cert. denied, 494 U.S. 1056, 110 S. Ct. 1525, 108 L. Ed. 2d 764 (1990).

Material depicting the lewd exhibition of a juvenile's genitals is "hard core" obscenity for children. Freeman v. Commonwealth, 223 Va. 301 , 288 S.E.2d 461 (1982).

Photographing of exposed nipples, while within the literal definition of nudity under this section, is not, without more, the lewd exhibition of nudity required under § 18.2-374.1 as it read in 1979. Foster v. Commonwealth, 6 Va. App. 313, 369 S.E.2d 688 (1988).

Lewd exhibition of nudity. - Evidence was sufficient to convict defendant of producing child pornography because, regardless of the fact that the child was clothed in Exhibit Six, the visual images were sexually explicit as they depicted lewd exhibitions of nudity by defendant because he filmed himself masturbating and ejaculating on the child; and defendant's act of masturbating until he ejaculated on the child met statutory definitions of sexual excitement and sexual conduct. Ele v. Commonwealth, No. 1602-18-1, 70 Va. App. 543, 829 S.E.2d 564, 2019 Va. App. LEXIS 162 (July 16, 2019).

Photographs considered sexually explicit. - Evidence was sufficient to convict defendant of possession of child pornography; his photos of a nude 17-year-old girl were "sexually explicit visual material" because they depicted her lying and sitting on a bed, a sexually suggestive setting, and showed her breasts and genitalia, and in view of his sexual relationship with her and the fact that he groped her breast while taking the photos, the jury could have inferred that he created the images with a lascivious intent. Phan Le v. Commonwealth,, 2014 Va. App. LEXIS 352 (Oct. 21, 2014).

Books not shown to be "harmful to juveniles." - Where none of the 16 books in question in a certification procedure met the third prong of the tripartite test established in Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274 (1968), for determination of materials harmful to minors, none of the books was "harmful to juveniles" within the meaning of this section and § 18.2-391 . Commonwealth v. American Booksellers Ass'n, 236 Va. 168 , 372 S.E.2d 618 (1988), cert. denied, 494 U.S. 1056, 110 S. Ct. 1525, 108 L. Ed. 2d 764 (1990).

"Sexually explicit visual material" not found. - Where in photographs, the teenager's breasts, buttocks, and genitals were pictured but were not the central focus of the photographs, they did not meet the statutory requirement of "sexually explicit visual material." Asa v. Commonwealth, 17 Va. App. 714, 441 S.E.2d 26 (1994).

Applied in American Booksellers Ass'n v. Strobel, 617 F. Supp. 699 (E.D. Va. 1985); Frantz v. Commonwealth, 9 Va. App. 348, 388 S.E.2d 273 (1990); Mainstream Loudoun v. Board of Trustees, 2 F. Supp. 2d 783 (E.D. Va. 1998); Urofsky v. Gilmore, 167 F.3d 191 (4th. Cir. 1999); Bliss v. Commonwealth,, 2014 Va. App. LEXIS 177 (May 13, 2014).

§ 18.2-391. Unlawful acts; penalties.

  1. It shall be unlawful for any person to sell, rent or loan to a juvenile, knowing or having reason to know that such person is a juvenile, or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse:
    1. Any picture, photography, drawing, sculpture, motion picture in any format or medium, video or computer game, electronic file or message containing an image, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles, or
    2. Any book, pamphlet, magazine, printed matter however reproduced, electronic file or message containing words, or sound recording which contains any matter enumerated in subdivision 1 of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct or sadomasochistic abuse and which, taken as a whole, is harmful to juveniles.

      However, if a person uses services of an Internet service provider or an electronic mail service provider in committing acts prohibited under this subsection, such Internet service provider or electronic mail service provider shall not be held responsible for violating this subsection.

  2. It shall be unlawful for any person knowingly to sell to a juvenile an admission ticket or pass, or knowingly to admit a juvenile to premises whereon there is exhibited a motion picture, show or other presentation which, in whole or in part, depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles or to exhibit any such motion picture at any such premises which are not designed to prevent viewing from any public way of such motion picture by juveniles not admitted to any such premises.
  3. It shall be unlawful for any juvenile falsely to represent to any person mentioned in subsection A or subsection B hereof, or to his agent, that such juvenile is 18 years of age or older, with the intent to procure any material set forth in subsection A, or with the intent to procure such juvenile's admission to any motion picture, show or other presentation, as set forth in subsection B.
  4. It shall be unlawful for any person knowingly to make a false representation to any person mentioned in subsection A or subsection B hereof or to his agent, that he is the parent or guardian of any juvenile, or that any juvenile is 18 years of age, with the intent to procure any material set forth in subsection A, or with the intent to procure such juvenile's admission to any motion picture, show or other presentation, as set forth in subsection B.
  5. No person shall sell, rent, or loan any item described in subdivision A 1 or A 2 to any individual who does not demonstrate his age in accordance with the provisions of subsection C of § 18.2-371.2 .
  6. A violation of subsection A, B, C, or D is a Class 1 misdemeanor. A person or separate retail establishment who violates subsection E shall be liable for a civil penalty not to exceed $100 for a first violation, a civil penalty not to exceed $200 for a second violation, and a civil penalty not to exceed $500 for a third or subsequent violation.

    (Code 1950, § 18.1-236.7; 1970, c. 560; 1972, c. 421; 1975, cc. 14, 15; 1976, c. 504; 1985, c. 506; 1987, c. 356; 1999, c. 936; 2000, c. 1009; 2001, c. 451; 2006, c. 463.)

The 1999 amendment redesignated former subsection (a) as A, redesignated former subdivisions (1) and (2) as 1 and 2 respectively, and inserted "electronic file or message containing an image" in subdivision A 1, inserted "electronic file or message containing words" in subdivision A 2; redesignated former subsections (b) through (e) as present subsections B through E, respectively; and in subsections C and D, substituted "(a)" for "A," and "(b)" for "B," in four places.

The 2000 amendments. - The 2000 amendment by c. 1009 added the second paragraph of subdivision A 2.

The 2001 amendments. - The 2001 amendment by c. 451, in the introductory language of subsection A, deleted "knowingly" following "any person" and inserted "knowing or having reason to know that such person is a juvenile"; substituted "in any format or medium" for "film" in subdivision A 1; rewrote subsection E, which formerly read: "Violation of any provision hereof shall constitute a Class 1 misdemeanor"; and added subsection F.

The 2006 amendments. - The 2006 amendment by c. 463 inserted "video or computer game" in subdivision A 1 and made minor stylistic changes.

Law review. - For survey of proposed changes in statutory regulations of obscenity in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1636 (1971). For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of constitutional law in Virginia for the year 1975-1976, see 62 Va. L. Rev. 1389 (1976).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For 2000 survey of Virginia technology law, see 34 U. Rich. L. Rev. 1051. (2000).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For 2002 survey of Virginia technology law, see 37 U. Rich. L. Rev. 341 (2002).

For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 10B M.J. Interstate Commerce, § 3.

CASE NOTES

Constitutionality. - Section 18.2-391 , as amended by Acts 1999, c. 936, violates the First Amendment to the United States Constitution, because given the current state of Internet technology, enforcement of the statute would restrict the access of both adults and children to material considered "harmful to minors," and because the statute is not narrowly drawn. PSINet Inc. v. Chapman, 167 F. Supp. 2d 878, 2001 U.S. Dist. LEXIS 16352 (W.D. Va. 2001), aff'd, 362 F.3d 227 (4th Cir. 2004).

Section 18.2-391 , as amended by Acts 1999, c. 936, violates the Commerce Clause of the United States Constitution because it is technologically infeasible for a Web site operator to limit access to online materials by geographic location, and therefore, in order to avoid prosecution, an adult Web site operator must comply with the most restrictive state obscenity regulations if it is to make its content available on the Web at all. PSINet Inc. v. Chapman, 167 F. Supp. 2d 878, 2001 U.S. Dist. LEXIS 16352 (W.D. Va. 2001), aff'd, 362 F.3d 227 (4th Cir. 2004).

Section 18.2-391 is unconstitutionally overbroad and violates the First Amendment; the district court's entry of summary judgment in favor of plaintiff businesses, membership organizations, and individuals which entered a permanent injunction against the statute was upheld. Psinet, Inc. v. Chapman, 362 F.3d 227, 2004 U.S. App. LEXIS 5599 (4th Cir. 2004).

Section 18.2-391 violates the Commerce Clause; given the broad reach of the Internet, it was difficult for the court to see how such a blanket regulation could be construed to have only a local effect. Psinet, Inc. v. Chapman, 362 F.3d 227, 2004 U.S. App. LEXIS 5599 (4th Cir. 2004).

Injunction issued on basis of possible unconstitutionality. - Plaintiffs representing a spectrum of businesses, membership organizations and individuals who used the Internet to communicate, disseminate, display and to seek access to a broad range of speech were entitled to a preliminary injunction enjoining the enforcement of this section on the grounds that if no injunction issued, plaintiffs faced the choice of self-censorship or subjecting themselves to criminal liability, that plaintiffs were likely to succeed on the merits in that the statute in question was not narrowly tailored, did not provide the most effective means of preventing juveniles from viewing sexually explicit and harmful materials, and unduly burdened interstate commerce, and that it was in the public interest to prevent enforcement of an unconstitutional statute. PSINet, Inc. v. Chapman, 108 F. Supp. 2d 611, 2000 U.S. Dist. LEXIS 11621 (W.D. Va. 2000).

Virginia Code's current definition of "harmful to juveniles" is modification of Miller v. California , 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) definition of obscenity, adapted for juveniles. Virginia v. American Booksellers Ass'n, 484 U.S. 383, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988).

Intent of 1985 amendment to subsection (a). - The 1985 amendment to subsection (a) of this section, which added "or to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse," is aimed not at the method chosen by the bookseller to display his wares for sale, but at the opportunity he may afford to juveniles to take off the shelves books which they are unable to buy, and to read them in the store. Commonwealth v. American Booksellers Ass'n, 236 Va. 168 , 372 S.E.2d 618 (1988), cert. denied, 494 U.S. 1056, 110 S. Ct. 1525, 108 L. Ed. 2d 764 (1990).

If a work is found to have serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole. Commonwealth v. American Booksellers Ass'n, 236 Va. 168 , 372 S.E.2d 618 (1988), cert. denied, 494 U.S. 1056, 110 S. Ct. 1525, 108 L. Ed. 2d 764 (1990).

Books not shown to be "harmful to juveniles." - Where none of the 16 books in question in a certification procedure met the third prong of the tripartite test established in Ginsberg v. New York , 390 U.S. 629, 88 S. Ct. 1274 (1968), for determination of materials harmful to minors, none of the books was "harmful to juveniles" within the meaning of § 18.2-390 and this section. Commonwealth v. American Booksellers Ass'n, 236 Va. 168 , 372 S.E.2d 618 (1988), cert. denied, 494 U.S. 1056, 110 S. Ct. 1525, 108 L. Ed. 2d 764 (1990).

§ 18.2-391.1. Exceptions to application of article.

Nothing contained in this article shall be construed to apply to:

  1. The purchase, distribution, exhibition, or loan of any work of art, book, magazine, or other printed or manuscript material by any accredited museum, library, school, or institution of higher education.
  2. The exhibition or performance of any play, drama, tableau, or motion picture by any theatre, museum, school, or institution of higher education, either supported by public appropriation or which is an accredited institution supported by private funds.

    (1977, c. 480.)

Editor's note. - At the direction of the Virginia Code Commission, "higher education" was twice substituted for "higher learning" to conform to Acts 2016, c. 588.

Article 7. Cruelty to Animals.

§§ 18.2-392 through 18.2-403.

Repealed by Acts 1984, c. 492.

Cross references. - For the comprehensive animal laws, see now § 3.2-5900 et seq.

As to offenses involving animals, see now § 18.2-403.1 et seq.

Article 8. Offenses Involving Animals.

§ 18.2-403.1. Offenses involving animals - Class 1 misdemeanors.

The following unlawful acts and offenses against animals shall constitute and be punished as a Class 1 misdemeanor:

  1. Violation of subsection A of § 3.2-6570 pertaining to cruelty to animals, except as provided for second or subsequent violations in that section.
  2. Violation of § 3.2-6508 pertaining to transporting animals under certain conditions.
  3. Making a false claim or receiving money on a false claim under § 3.2-6553 pertaining to compensation for livestock and poultry killed by dogs.
  4. Violation of § 3.2-6518 pertaining to boarding establishments and groomers as defined in § 3.2-6500.
  5. Violation of § 3.2-6504 pertaining to the abandonment of animals.
  6. Violation of subdivision B 3 of § 3.2-6587 pertaining to an animal confinement agreement or plan set forth in § 3.2-6562.1.

    (1984, c. 492; 1992, c. 177; 1993, c. 174; 1996, c. 249; 1999, c. 620; 2018, c. 416; 2020, c. 1183.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860.

The 1996 amendment inserted "and groomers as defined in § 3.1-796.68" at the end of subdivision 4.

The 1999 amendment added "except as provided for second or subsequent violations in that section" in subdivision 1.

The 2018 amendments. - The 2018 amendment by c. 416 added subdivision 5.

The 2020 amendments. - The 2020 amendment by c. 1183 added subdivision 6.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Animals, § 14.

§ 18.2-403.2. Offenses involving animals - Class 3 misdemeanors.

The following unlawful acts and offenses against animals shall constitute and be punished as a Class 3 misdemeanor:

  1. Violation of § 3.2-6511 pertaining to the failure of a shopkeeper or pet dealer to provide adequate care to animals.
  2. Violation of § 3.2-6509 pertaining to the misrepresentation of an animal's condition by the shopkeeper or pet dealer.
  3. Violation of § 3.2-6510 pertaining to the sale of baby fowl.
  4. Violation of clause (iv) of subsection A of § 3.2-6570 pertaining to soring horses.
  5. Violation of § 3.2-6519 pertaining to notice of consumer remedies required to be supplied by boarding establishments.

    (1984, c. 492; 1992, c. 177; 1993, c. 174; 1999, c. 620; 2003, c. 787; 2008, cc. 543, 707; 2018, c. 416; 2019, cc. 536, 537.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860.

The 1999 amendment substituted "C" for "B" in subdivision 3.

The 2003 amendments. - The 2003 amendment by c. 787 deleted "and subsection C of § 3.1-796.122" following " § 3.1-796.73" in subdivision 3.

The 2008 amendments. - The 2008 amendments by cc. 543 and 707 are identical, and deleted former subdivision 5, which read: "Violation of § 3.1-796.125 pertaining to fighting cocks, dogs and other animals"; and redesignated former subdivisions 6 and 7 as subdivisions 5 and 6, respectively.

The 2018 amendments. - The 2018 amendment by c. 416 deleted subdivision 3, which read "Violation of § 3.2-6504 pertaining to the abandonment of animals" and made related changes.

The 2019 amendments. - The 2019 amendments by cc. 536 and 537 are identical, and substituted "clause (iv)" for "clause (iii)" in subdivision 4.

Law review. - For annual survey article, "Animal Law," see 44 U. Rich. L. Rev. 185 (2009).

§ 18.2-403.3. Offenses involving animals - Class 4 misdemeanors.

The following unlawful acts and offenses against animals shall constitute and be punished as a Class 4 misdemeanor:

  1. Violation of § 3.2-6566 pertaining to interference of agents charged with preventing cruelty to animals.
  2. Violation of § 3.2-6573 pertaining to shooting pigeons.
  3. Violation of § 3.2-6554 pertaining to disposing of the body of a dead companion animal.
  4. Unless otherwise punishable under subsection B of § 3.2-6587, violation of ordinances passed pursuant to §§ 3.2-6522 and 3.2-6525 pertaining to rabid dogs and preventing the spread of rabies and the running at large of vicious dogs.
  5. Violation of an ordinance passed pursuant to § 3.2-6539 requiring dogs to be on a leash.
  6. Failure by any person to secure and exhibit the permits required by § 29.1-422 pertaining to field trails, night trails and foxhounds.
  7. Diseased dogs. - For the owner of any dog with a contagious or infectious disease, other than rabies, to permit such dog to stray from his premises if such disease is known to the owner.
  8. License application. - For any person to make a false statement in order to secure a dog or cat license to which he is not entitled.
  9. License tax. - For any dog or cat owner to fail to pay any license tax required by subsection A or C of § 3.2-6530 within one month after the date when it is due. In addition, the court may order confiscation and the proper disposition of the dog or cat.
  10. Concealing a dog or cat. - For any person to conceal or harbor any dog or cat on which any required license tax has not been paid.
  11. Removing collar and tag. - For any person, except the owner or custodian, to remove a legally acquired license tag from a dog or cat without the permission of the owner or custodian.
  12. Violation of § 3.2-6503 pertaining to care of animals by owner.

    (1984, c. 492; 1993, cc. 174, 817; 2017, cc. 559, 567; 2020, c. 1183.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860.

The 2017 amendments. - The 2017 amendments by cc. 559 and 567 are identical, and in subdivision 9, substituted "subsection A or C of § 3.2-6530 within one month after the date when" for " § 3.2-6530 before February 1 for the year in which."

The 2020 amendments. - The 2020 amendment by c. 1183, in subdivision 4, substituted "Unless otherwise punishable under subsection B of § 3.2-6587, violation" for "Violation"; and in subdivision 7, inserted "other than rabies."

§ 18.2-403.4. Unauthorized release of animals; penalty.

Any person who intentionally releases an animal, as defined in § 3.2-6500, lawfully confined for scientific, research, commercial, agricultural or educational purposes without the consent of the owner or custodian of the animal and with the intent to impede or obstruct any such lawful purpose shall be guilty of a Class 1 misdemeanor.

(1992, c. 307.)

Editor's note. - At the direction of the Virginia Code Commission, Title 3.2 references were substituted for Title 3.1 references to conform to the title revision by Acts 2008, c. 860.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Animals, § 17.

Chapter 9. Crimes Against Peace and Order.

Riot and Unlawful Assembly.

Disorderly Conduct.

Abusive and Insulting Language.

Picketing of Dwelling Places.

Activities Tending to Cause Violence.

Unlawful Use of Telephones.

Places of Amusement and Dance Halls.

Unlawful Paramilitary Activity.

Article 1. Riot and Unlawful Assembly.

§ 18.2-404. Obstructing free passage of others.

Any person or persons who in any public place or on any private property open to the public unreasonably or unnecessarily obstructs the free passage of other persons to and from or within such place or property and who shall fail or refuse to cease such obstruction or move on when requested to do so by the owner or lessee or agent or employee of such owner or lessee or by a duly authorized law-enforcement officer shall be guilty of a Class 1 misdemeanor. Nothing in this section shall be construed to prohibit lawful picketing.

(Code 1950, § 18.1-254.01; 1968, c. 608; 1975, cc. 14, 15.)

Cross references. - As to disorderly conduct on grounds of state hospital, see § 37.2-429 .

Law review. - For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4; 13A M.J. Mobs, Riots and Lynchings, §§ 1, 4.

CASE NOTES

Elements. - The adverbs "unreasonably" and "unnecessarily" modify the verb "obstruct" and are an element required for conviction under this section. Juares v. Commonwealth, 26 Va. App. 154, 493 S.E.2d 677 (1997).

Under this section, the accused must be proved to have obstructed the free passage of other persons either unreasonably OR unnecessarily (emphasis in original). Juares v. Commonwealth, 26 Va. App. 154, 493 S.E.2d 677 (1997).

Determining whether an obstruction is unreasonable or unnecessary requires an examination of the facts and circumstances of each case. Juares v. Commonwealth, 26 Va. App. 154, 493 S.E.2d 677 (1997).

Sufficient evidence. - Defendant obstructed the free passage of others to and from private property open to the public where she positioned herself outside a medical center so that people were required to walk around her, and vehicles entering the center were required to stop. Juares v. Commonwealth, 26 Va. App. 154, 493 S.E.2d 677 (1997).

§ 18.2-405. What constitutes a riot; punishment.

Any unlawful use, by three or more persons acting together, of force or violence which seriously jeopardizes the public safety, peace or order is riot.

Every person convicted of participating in any riot shall be guilty of a Class 1 misdemeanor.

If such person carried, at the time of such riot, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.

(Code 1950, §§ 18.1-254.1, 18.1-254.2; 1968, c. 460; 1971, Ex. Sess., c. 251; 1975, cc. 14, 15.)

Law review. - For discussion of Virginia's legislative response to riots and their underlying causes, see 54 Va. L. Rev. 1031 (1968). For article, "Injunctive Control of Disruptive Student Demonstrations," see 56 Va. L. Rev. 215 (1970). For survey of Virginia criminal law procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970). For note, "The Clear and Present Danger Standard: Its Present Viability," see 6 U. Rich. L. Rev. 93 (1971). For survey of constitutional law in Virginia for the year 1970-1971, see 57 Va. L. Rev. 1476 (1971). For survey of Virginia statutory changes in substantive criminal law for the year 1970-1971, see 57 Va. L. Rev. 1467 (1971).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 13A M.J. Mobs, Riots and Lynchings, § 1.

CASE NOTES

The common-law definition of unlawful assembly expressly requires clear and present danger of violent conduct. Owens v. Commonwealth, 211 Va. 633 , 179 S.E.2d 477 (1971).

Mere presence is not enough to support a conviction. Jones v. Commonwealth, 210 Va. 299 , 170 S.E.2d 779 (1969).

Evidence insufficient to convict. - See Corbett v. Commonwealth, 210 Va. 304 , 171 S.E.2d 251 (1969).

Any action under § 18.2-407 can only be taken in conjunction with this section or § 18.2-406 . Thus, before § 18.2-407 can be invoked, the public peace and order must be in jeopardy. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

§ 18.2-406. What constitutes an unlawful assembly; punishment.

Whenever three or more persons assembled share the common intent to advance some lawful or unlawful purpose by the commission of an act or acts of unlawful force or violence likely to jeopardize seriously public safety, peace or order, and the assembly actually tends to inspire persons of ordinary courage with well-grounded fear of serious and immediate breaches of public safety, peace or order, then such assembly is an unlawful assembly. Every person who participates in any unlawful assembly shall be guilty of a Class 1 misdemeanor. If any such person carried, at the time of his participation in an unlawful assembly, any firearm or other deadly or dangerous weapon, he shall be guilty of a Class 5 felony.

(Code 1950, §§ 18.1-254.1, 18.1-254.3; 1968, c. 460; 1971, Ex. Sess., c. 251; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Breach of the Peace, § 2; 4C M.J. Constitutional Law, § 78; 13A M.J. Mobs, Riots and Lynchings, §§ 1, 4.

CASE NOTES

Constitutionality. - On its face, this section does not impermissibly infringe upon rights under U.S. Const., Amend. I. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

Language of this section closely follows common-law definition of unlawful assembly. That definition requires the existence of circumstances evidencing a present threat of violence or breach of public order. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

States have right to maintain public order. - There is no doubt that the states retain the right to maintain public order. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order, appears, the power of the state to prevent or punish is obvious. This section does no more than exercise that power. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

Any action under § 18.2-407 can only be taken in conjunction with § 18.2-405 or this section. Thus, before § 18.2-407 can be invoked, the public peace and order must be in jeopardy. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

CIRCUIT COURT OPINIONS

States have a right to maintain public order. - Protesters were not entitled to an emergency motion for a temporary injunction because, even if they had a private cause of action, their declaratory judgment claim did not present a justiciable controversy where there was a serious question as to whether they would be able to prove that the police action in response to their protest was in retaliation of their expression of free assembly and speech or that declaring an unlawful assembly was pretextual where they admitted that 150 people set up an encampment, blocked the city streets, and interfered with traffic, and an injunction would constitute an unwarranted intrusion into and interference with the ability of law enforcement to do its job during an unprecedented period of civil unrest. Va. Student Power Network v. City of Richmond, 105 Va. Cir. 259, 2020 Va. Cir. LEXIS 108 (Richmond June 30, 2020).

§ 18.2-407. Remaining at place of riot or unlawful assembly after warning to disperse.

Every person, except the owner or lessee of the premises, his family and nonrioting guests, and public officers and persons assisting them, who remains at the place of any riot or unlawful assembly after having been lawfully warned to disperse, shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-254.4; 1968, c. 460; 1971, Ex. Sess., c. 251; 1975, cc. 14, 15.)

Cross references. - As to arrest for violation of this section, see § 19.2-74 .

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78; 13A M.J. Mobs, Riots and Lynchings, § 1.

CASE NOTES

Constitutionality. - Although this section can be applied to cause the removal from the streets of persons engaged in wholly lawful activities, that fact does not require a holding that this section is unconstitutional on its face. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

Police must act quickly against clear and present danger. - When the public peace and order are in jeopardy, it is not unreasonable to authorize the police to clear the streets. This is not a long term measure. Once order is restored, those engaged in lawful activity may return to the streets. But at the time of a disturbance, or when there is a clear and present danger of an immediate disturbance, the Commonwealth requires that the police be able to take quick action. To require individual determinations of who is acting lawfully and who unlawfully would prove unduly burdensome. The ability of the police to restore order would be impaired; the restoration of order, unnecessarily slowed. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

Any action under this section can only be taken in conjunction with § 18.2-405 or § 18.2-406 . Thus, before this section can be invoked, the public peace and order must be in jeopardy. United Steelworkers v. Dalton, 544 F. Supp. 282 (E.D. Va. 1982).

§ 18.2-408. Conspiracy; incitement, etc., to riot.

Any person who conspires with others to cause or produce a riot, or directs, incites, or solicits other persons who participate in a riot to acts of force or violence, shall be guilty of a Class 5 felony.

(Code 1950, § 18.1-254.5:1; 1971, Ex. Sess., c. 251; 1975, cc. 14, 15.)

§ 18.2-409. Resisting or obstructing execution of legal process.

Every person acting jointly or in combination with any other person to resist or obstruct the execution of any legal process shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-254.6; 1968, c. 460; 1975, cc. 14, 15.)

OPINIONS OF THE ATTORNEY GENERAL

Detention to serve protective order. - A law-enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 if the officer has reasonable, articulable suspicion of criminal activity, but may not lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order. See opinion of Attorney General to The Honorable Colette Wallace McEachin, Commonwealth's Attorney, City of Richmond, 20-002, 2020 Va. AG LEXIS 35 (10/30/20).

§ 18.2-410. Power of Governor to summon law-enforcement agencies, national guard, etc., to execute process or preserve the peace.

If it appears to the Governor that the power of the locality is not sufficient to enable the sheriff or other officer to execute process delivered to him or to suppress riots and to preserve the peace, he may order law-enforcement agencies, national guard, militia or other agencies of the Commonwealth or localities as may be necessary to execute such process and to preserve the peace. All persons so ordered or summoned by the Governor are required to attend and act. Any person who, without lawful cause, refuses or neglects to obey the command, shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-254.7; 1968, c. 460; 1975, cc. 14, 15.)

§ 18.2-411. Dispersal of unlawful or riotous assemblies; duties of officers.

When any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies, the police officials of the county, city or town, and any assigned militia, or any of them, shall go among the persons assembled or as near to them as safety will permit and command them in the name of the Commonwealth immediately to disperse. If upon such command the persons unlawfully assembled do not disperse immediately, such sheriff, officer or militia may use such force as is reasonably necessary to disperse them and to arrest those who fail or refuse to disperse. To accomplish this end, the sheriff or other law-enforcement officer may request and use the assistance and services of private citizens. Every endeavor shall be used, both by such sheriff or other officers and by the officer commanding any other force, which can be made consistently with the preservation of life, to induce or force those unlawfully assembled to disperse before an attack is made upon those unlawfully assembled by which their lives may be endangered.

(Code 1950, §§ 18.1-254.8, 18.1-254.9; 1968, c. 460; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 13A M.J. Mobs, Riots and Lynchings, § 2.

§ 18.2-412. Immunity of officers and others in quelling a riot or unlawful assembly.

No liability, criminal or civil, shall be imposed upon any person authorized to disperse or assist in dispersing a riot or unlawful assembly for any action of such person which was taken after those rioting or unlawfully assembled had been commanded to disperse, and which action was reasonably necessary under all the circumstances to disperse such riot or unlawful assembly or to arrest those who failed or refused to disperse.

(Code 1950, §§ 18.1-254.8, 18.1-254.9; 1968, c. 460; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 13A M.J. Mobs, Riots and Lynchings, § 2.

§ 18.2-413. Commission of certain offenses in county, city or town declared by Governor to be in state of riot or insurrection.

Any person, who after the publication of a proclamation by the Governor, or who after lawful notice to disperse and retire, resists or aids in resisting the execution of process in any county, city or town declared to be in a state of riot or insurrection, or who aids or attempts the rescue or escape of another from lawful custody or confinement, or who resists or aids in resisting a force ordered out by the Governor or any sheriff or other officer to quell or suppress an insurrection or riot, shall be guilty of a Class 5 felony.

(Code 1950, § 18.1-254.10; 1968, c. 460; 1975, cc. 14, 15.)

§ 18.2-414. Injury to property or persons by persons unlawfully or riotously assembled.

If any person or persons, unlawfully or riotously assembled, pull down, injure, or destroy, or begin to pull down, injure or destroy any dwelling house or other building, or assist therein, or perpetrate any premeditated injury on the person of another, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-254.11; 1968, c. 460; 1975, cc. 14, 15.)

§ 18.2-414.1. Obstructing emergency medical services agency personnel in performance of mission; penalty.

Any person who unreasonably or unnecessarily obstructs the delivery of emergency medical services by emergency medical services agency personnel, whether governmental, private, or volunteer, or who fails or refuses to cease such obstruction or move on when requested to do so by emergency medical services personnel going to or at the site at which emergency medical services are required is guilty of a Class 2 misdemeanor.

(1976, c. 233; 2002, c. 560; 2015, cc. 502, 503.)

The 2002 amendments. - The 2002 amendment by c. 560 substituted "Class 2" for "Class 4."

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and rewrote the section, which read "Any person or persons who unreasonably or unnecessarily obstruct a member or members of a rescue squad, whether governmental, private or volunteer, in the performance of their rescue mission or who shall fail or refuse to cease such obstruction or move on when requested to do so by a member of a rescue squad going to or at the site of a rescue mission, shall be guilty of a Class 2 misdemeanor."

§ 18.2-414.2. Crossing established police lines, perimeters or barricades.

It shall be unlawful for any person to cross or remain within police lines or barricades which have been established pursuant to § 15.2-1714 without proper authorization.

Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

(1984, c. 533; 1990, c. 327.)

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4.

Article 2. Disorderly Conduct.

§ 18.2-415. Disorderly conduct in public places.

  1. A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof, he:
    1. In any street, highway, or public building, or while in or on a public conveyance, or while in a public place engages in conduct having a direct tendency to cause acts of violence by the person or persons at whom, individually, such conduct is directed;
    2. Willfully or being intoxicated, whether willfully or not, and whether such intoxication results from self-administered alcohol or other drug of whatever nature, disrupts any funeral, memorial service, or meeting of the governing body of any political subdivision of this Commonwealth or a division or agency thereof, or of any school, literary society, or place of religious worship, if the disruption (i) prevents or interferes with the orderly conduct of the funeral, memorial service, or meeting or (ii) has a direct tendency to cause acts of violence by the person or persons at whom, individually, the disruption is directed; or
    3. Willfully or while intoxicated, whether willfully or not, and whether such intoxication results from self-administered alcohol or other drug of whatever nature, disrupts the operation of any school or any activity conducted or sponsored by any school, if the disruption (i) prevents or interferes with the orderly conduct of the operation or activity or (ii) has a direct tendency to cause acts of violence by the person or persons at whom, individually, the disruption is directed.
  2. The conduct prohibited under subsection A shall not be deemed to include the utterance or display of any words or to include conduct otherwise made punishable under this title.
  3. The person in charge of any such building, place, conveyance, meeting, operation, or activity may eject therefrom any person who violates any provision of this section, with the aid, if necessary, of any persons who may be called upon for such purpose.
  4. The provisions of this section shall not apply to any elementary or secondary school student if the disorderly conduct occurred on the property of any elementary or secondary school, on a school bus as defined in § 46.2-100 , or at any activity conducted or sponsored by any elementary or secondary school.
  5. The governing bodies of counties, cities, and towns are authorized to adopt ordinances prohibiting and punishing the acts and conduct prohibited by this section, provided that the punishment fixed therefor shall not exceed that prescribed for a Class 1 misdemeanor. A person violating any provision of this section is guilty of a Class 1 misdemeanor.

    (Code 1950, §§ 18.1-239, 18.1-240, 18.1-253.1 through 18.1-253.3; 1960, c. 358; 1968, c. 639; 1969, Ex. Sess., c. 2; 1970, c. 374; 1975, cc. 14, 15; 1976, c. 244; 1990, c. 627; 2006, c. 250; 2020, cc. 199, 355.)

Cross references. - As to automatic sealing of criminal history record information for offenses resulting in a deferred and dismissed disposition or conviction, see § 19.2-392.6 .

The 2006 amendments. - The 2006 amendment by c. 250 twice inserted "funeral, memorial service, or" in subsection B.

The 2020 amendments. - The 2020 amendments by cc. 199 and 355 are identical, and inserted subsection D, and redesignated the first paragraph as the introductory paragraph of subsection A, former subsections A through C as subdivisions A 1 through A 3, and the remaining three paragraphs as subsections B, C, and E; in subdivision A 1, inserted "while in a"; deleted "However" at the beginning of present subsection B; and updated an internal reference and made stylistic changes.

Law review. - For survey of recent legislation on criminal law - riotous or disorderly conduct at public meetings, see 5 U. Rich. L. Rev. 191 (1970). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974); for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975); for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For note on case declaring former Virginia disorderly conduct statute, § 18.1-253.2, unconstitutional, see 33 Wash. & Lee L. Rev. 499 (1976).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

For annual survey article, "Criminal Law and Procedure," see 44 U. Rich. L. Rev. 339 (2009).

Michie's Jurisprudence. - For related discussion, see 3B M.J. Carriers, §§ 70, 97; 4C M.J. Constitutional Law, § 78; 6A M.J. Disorderly Conduct, § 1; 6A M.J. Disturbing Public Meetings, § 1; 13A M.J. Mobs, Riots and Lynchings, §§ 1, 4; 14A M.J. Obstructing Justice, § 2; 16 M.J. Religious Societies, § 3.

CASE NOTES

Constitutionality of former section. - For case declaring the former Virginia disorderly conduct statute, § 18.1-253.2 unconstitutional, see Squire v. Pace, 380 F. Supp. 269 (W.D. Va. 1974), aff'd, 516 F.2d 250 (4th Cir.), cert. denied, 423 U.S. 840, 96 S. Ct. 68, 46 L. Ed. 2d 58 (1975).

As to meaning of "intoxicated," see Gardner v. Commonwealth, 195 Va. 945 , 81 S.E.2d 614 (1954).

Intent. - While defendant's conduct demonstrated an intent to cause public inconvenience, annoyance or alarm as required for a conviction of disorderly conduct under § 18.2-415 , there was no evidence proving beyond a reasonable doubt that defendant had an intention to prevent the officer from performing her duties, which is the conduct prohibited by § 18.2-460 . Cary v. Commonwealth,, 2015 Va. App. LEXIS 295 (Oct. 20, 2015).

This section applies, not only to disturbances which are made while the religious services are progressing, but also to disturbances made while the congregation is assembled for religious worship; though it be at night after the religious services are closed for the day, and the congregation has retired to rest. Commonwealth v. Jennings, 44 Va. (3 Gratt.) 624 (1846).

Disorderly conduct is not a lesser included offense of larceny. Cuthrell v. Zayre of Va., Inc., 214 Va. 427 , 201 S.E.2d 779 (1974).

Charges of petit larceny and of disorderly conduct are two separate and distinct offenses, and a conviction of the one did not bar the conviction of the other. Cuthrell v. Zayre of Va., Inc., 214 Va. 427 , 201 S.E.2d 779 (1974).

An indictment for disturbing a religious congregation need not set out the means by which the disturbance and disquieting was effected. Commonwealth v. Daniels, 4 Va. (2 Va. Cas.) 402 (1824).

Lack of probable cause to arrest. - Because the police lacked probable cause to arrest defendant for either falsely summoning police or for disorderly conduct, the trial court erred in denying his motion to suppress the drugs obtained from his arrest and defendant's conviction for the possession of cocaine was improper. Thor v. Commonwealth,, 2010 Va. App. LEXIS 88 (Mar. 9, 2010).

Conviction of disorderly conduct was upheld where evidence showed that defendant defied the police officer's order to remain seated in his automobile while he prepared the traffic summons, "jumped out," and became loud and uncooperative, refusing to calm down; such willful, intemperate and provocative conduct, in response to proper law enforcement activity, audible for several blocks and visible from a public street, clearly evinced the intent or recklessness contemplated by the ordinance. Keyes v. City of Va. Beach, 16 Va. App. 198, 428 S.E.2d 766 (1993).

Defendant was properly convicted for disorderly conduct at a county board of supervisors meeting where he persisted in inappropriate questioning, refused to leave the podium, disrupted the meeting, prevented the board from hearing the comments of other citizens, and forced the board to forcibly remove him from the room. Mannix v. Commonwealth, 31 Va. App. 271, 522 S.E.2d 885 (2000).

Defendant, upset about being ejected from the bar, got louder and abusive, and attracted a crowd; when officer warned the defendant he would be arrested for that behavior, the defendant started waving his arms around and continued yelling. Believing that the defendant was in the beginning stages of combative behavior and that he wanted to fight, the officer arrested the defendant. It was reasonable to infer from those facts that the defendant was not going to stop causing a scene until he was permitted to re-enter the premises, which he was not entitled to do. Jolinski v. Commonwealth, No. 2083-99-3, 2000 Va. App. LEXIS 449 (Ct. of Appeals June 20, 2000).

Defendant's conviction of disorderly conduct under this section was supported by sufficient evidence, as defendant's acts of taking pictures of the victims, the grandparents of defendant's fiance's children and others, created a risk of violence in instigating a confrontation between defendant and the children's grandmother. Potter v. Commonwealth, No. 0921-01-2, 2002 Va. App. LEXIS 98 (Ct. of Appeals Feb. 12, 2002).

Defendant's conviction of disorderly conduct under § 18.2-415 was supported by sufficient evidence; the situs of the offense, a drug store, was a public place as required by the statute, and defendant's acts of threatening a store manager with physical violence after defendant was fired from his job at the store had a direct tendency to cause acts of violence. Williams v. Commonwealth, No. 0127-02-1, 2002 Va. App. LEXIS 689 (Ct. of Appeals Nov. 19, 2002).

Defendant's conviction for disorderly conduct was affirmed where, when a police officer approached defendant, defendant became angry and loudly cursed the officer, repeatedly called the officer a "bitch" and said she did not have to do what the officer requested, attempted to evade the officer, and when the officer blocked defendant's route of escape, defendant raised her cup above her shoulder and threw the cup at the officer. Davis v. Commonwealth, No. 2638-03-2, 2004 Va. App. LEXIS 489 (Ct. of Appeals Oct. 12, 2004).

Rational jury could have concluded that defendant's threat to the officer, made when he came within striking distance of her, constituted disorderly conduct. Defendant's conduct, including her screaming profanities and demanding entrance to her boyfriend's apartment, evidenced a disintegrating situation requiring intervention of the officer. Brown v. Commonwealth,, 2005 Va. App. LEXIS 50 (Feb. 8, 2005).

Evidence was sufficient to support defendant's conviction for misdemeanor disorderly conduct in violation of § 18.2-415 in a case stemming from defendant's refusal to leave an off-site betting center even though defendant was asked to do so; defendant's belligerent words and conduct regarding attempts to evict defendant from the betting center had a direct tendency to cause acts of violence necessitating that a reasonable person respond with physical force. Collier v. Commonwealth,, 2007 Va. App. LEXIS 111 (Mar. 20, 2007).

Case involved a police officer attempting to investigate an accident in the midst of snarled traffic at a busy intersection and over a sustained period of time, appellant screamed profanities at the officer, refused to obey any of his commands or answer any of his questions, and loudly cursed at her husband; the tumult reached such a level that passing vehicles stopped in a nearby parking lot to find out the cause of alarm. It became obvious to the officer that he would have to use physical force to subdue appellant both for his own safety and the safety of those vulnerably stopped at the intersection while she carried on her tirade; under the circumstances, the trial court had a sufficient evidentiary basis to find appellant guilty of disorderly conduct. Tokora-Mansary v. Commonwealth,, 2009 Va. App. LEXIS 586 (Dec. 29, 2009).

Other-crimes proviso. - Because the other-crimes proviso of § 18.2-415 applied as a matter of law to the disorderly conduct charge upon which defendant was convicted, even after giving the Commonwealth the benefit of all reasonable inferences, as his actions could either be punishable under §§ 18.2-57 , 18.2-416 , or 18.2-404 , said conviction was reversed and the corresponding arrest warrant dismissed. Battle v. Commonwealth, 50 Va. App. 135, 647 S.E.2d 499, 2007 Va. App. LEXIS 271 (2007).

Because Hampton, Va., City Code § 24-12 was enacted pursuant to the authority of § 18.2-415 , prior appellate decisions interpreting § 18.2-415 were relevant in the application of the disorderly conduct ordinance; however, while the other crimes proviso in § 18.2-415 precluded a conviction if the disorderly conduct was comprised solely of conduct punishable under Title 18.2, § 24-12(b) only applied to a subset of those offenses made punishable under Hampton, Virginia, City Code chapter 24, and defendant's conduct constituting indecent exposure was punishable under Hampton, Virginia, City Code chapter 23. Thomas v. City of Hampton,, 2008 Va. App. LEXIS 431 (Sept. 23, 2008).

Other-crimes proviso reserves disorderly conduct convictions only for conduct not punishable elsewhere in the criminal code; sometimes mistaken as a broad limitation on the statute, the other-crimes proviso has a narrow, finely calibrated scope. It is not enough that the defendant could merely be prosecuted for a Title 18.2 crime because that requires only a showing of probable cause, rather, the conduct exempted by the other-crimes proviso includes only Title 18.2 crimes for which the defendant could be found guilty beyond a reasonable doubt; equally important, the other-crimes proviso precludes a conviction only when the convictable disorderly conduct is comprised solely of conduct otherwise made punishable under this title, each distinct act that, in the aggregate, constitutes disorderly conduct must be otherwise punishable under Title 18.2 for the proviso to apply. Tokora-Mansary v. Commonwealth,, 2009 Va. App. LEXIS 586 (Dec. 29, 2009).

Although appellant claimed the other-crimes proviso applied because she could have been charged under § 18.2-464 , which punished refusal or neglect to obey a conservator of the peace, or § 18.2-416 , which was the abusive language statute, the issue was not whether she could have been charged with other Title 18.2 offenses, it was whether she could have been found guilty beyond a reasonable doubt for such offenses. She could not be convicted under § 18.2-464 because law-enforcement officers were not listed as conservators of the peace in that statute and while she arguably could have been found guilty under § 18.2-416 for using abusive language, a conviction under that section would have punished only one of the distinct acts that, in the aggregate, constituted the basis for her disorderly conduct conviction; in short, appellant's disorderly conduct was not comprised solely of conduct otherwise made punishable under Title 18.2. Tokora-Mansary v. Commonwealth,, 2009 Va. App. LEXIS 586 (Dec. 29, 2009).

Sufficiency of the evidence. - Sufficient evidence of defendant's confrontational demeanor and refusal to comply with a deputy's orders was presented to allow the jury to reasonably conclude that a sheriff deputy's concern that he might have to take physical action to subdue defendant was reasonable and supported by the evidence presented; moreover, defendant's conduct had a direct tendency to cause acts of violence by the persons at whom it was directed. Bennett v. Commonwealth, No. 3047-05-2, 2007 Va. App. LEXIS 155 (Apr. 17, 2007).

Article 3. Abusive and Insulting Language.

§ 18.2-416. Punishment for using abusive language to another.

If any person shall, in the presence or hearing of another, curse or abuse such other person, or use any violent abusive language to such person concerning himself or any of his relations, or otherwise use such language, under circumstances reasonably calculated to provoke a breach of the peace, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-255; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974). For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974); for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Breach of the Peace, §§ 2, 4; 12A M.J. Libel and Slander, § 49.

CASE NOTES

Application of this section is limited to words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. Mercer v. Winston, 214 Va. 281 , 199 S.E.2d 724 (1973), cert. denied, 416 U.S. 988, 94 S. Ct. 2393, 40 L. Ed. 2d 765 (1974).

This section addresses itself to a direct confrontation of individuals in which one curses or abuses the other or uses violent abusive language concerning the other or his or her relations under circumstances which would precipitate an immediate, forceful and violent reaction by a reasonable person. It envisions words of a kind and nature spoken under such circumstances as by their utterance reasonably tend to provoke a breach of the peace. Mercer v. Winston, 214 Va. 281 , 199 S.E.2d 724 (1973), cert. denied, 416 U.S. 988, 94 S. Ct. 2393, 40 L. Ed. 2d 765 (1974).

In light of such construction this section is not constitutionally vague and overbroad under the First and Fourteenth Amendments to the United States Constitution. Mercer v. Winston, 214 Va. 281 , 199 S.E.2d 724 (1973), cert. denied, 416 U.S. 988, 94 S. Ct. 2393, 40 L. Ed. 2d 765 (1974).

This section serves a valid and proper purpose for it is aimed at preventing personal, face-to-face, abusive and insulting language likely to provoke a violent reaction and retaliation. Mercer v. Winston, 214 Va. 281 , 199 S.E.2d 724 (1973), cert. denied, 416 U.S. 988, 94 S. Ct. 2393, 40 L. Ed. 2d 765 (1974).

Remarks designed to provoke violence. - Application of this section is limited to words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed. Hershfield v. Commonwealth, 14 Va. App. 381, 417 S.E.2d 876 (1992).

A conviction under this section must be supported by evidence that abusive language is spoken to or about another in his presence or hearing and under circumstances reasonably calculated to provoke a breach of peace. Hershfield v. Commonwealth, 14 Va. App. 381, 417 S.E.2d 876 (1992).

Remarks not uttered in a "face-to-face" confrontation. - In the context of a private incident between two neighbors separated by a front yard and a fence, the language "go f -- - yourself" was not uttered in a "face-to-face" confrontation. Since parties were separated by at least 55 feet and by chain link fence, this was not likely to provoke a breach of peace. Hershfield v. Commonwealth, 14 Va. App. 381, 417 S.E.2d 876 (1992).

Insulting words need not be used in presence of third person. - In order to constitute an offense under this section, the insulting words need not be used in the presence of some third person as well as in the presence of the person to or about whom they were spoken. The expression "such person," in the section refers to the person "in the presence or hearing of" whom the insult is offered; and the offense is complete whenever insulting language is spoken to or about another, or about his female relations, in his presence and under circumstances reasonably calculated to provoke a breach of the peace, regardless of the presence or absence of third persons. Byrd v. Commonwealth, 124 Va. 833 , 98 S.E. 632 (1919).

Evidence of truth is admissible in mitigation of punishment. - In a prosecution under this section, evidence that the offense words spoken were true was held not admissible in bar of the prosecution, but admissible in mitigation of the punishment. Byrd v. Commonwealth, 124 Va. 833 , 98 S.E. 632 (1919).

While in many cases the insulting words spoken to or in the presence of another about his female relations, may be of such a character as that their truth would not be accorded very much, if any, weight in mitigation of the offense; yet such evidence should be received for what it is worth as an aid in fixing the punishment. Byrd v. Commonwealth, 124 Va. 833 , 98 S.E. 632 (1919).

And rejection is not harmless error. - In a prosecution under this section error in rejecting evidence of the truth of the insulting words offered in mitigation of the punishment was not harmless where the amount of the fine imposed was materially larger than the minimum fixed by the statute. Byrd v. Commonwealth, 124 Va. 833 , 98 S.E. 632 (1919).

"Fighting words" is jury question. - If the unlawful conduct relied upon consists of the use by a defendant of violent abusive language to another, it is for the jury to determine whether the words used are "fighting" words and whether the use of such words under the circumstances are reasonably calculated to provoke a violent reaction and retaliation. If so, their utterance constitutes an offense under this section. Mercer v. Winston, 214 Va. 281 , 199 S.E.2d 724 (1973), cert. denied, 416 U.S. 988, 94 S. Ct. 2393, 40 L. Ed. 2d 765 (1974).

Venue must be established. - In a prosecution under this section, the Commonwealth is bound to establish the venue, and, regardless of instructions, if there is no proof at all as to where the offense was committed, the verdict of guilty should be set aside and a new trial awarded. Byrd v. Commonwealth, 124 Va. 833 , 98 S.E. 632 (1919).

Applied in Smith v. Commonwealth, 30 Va. App. 737, 519 S.E.2d 831 (1999).

§ 18.2-417. Slander and libel.

Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any person of chaste character, any words derogatory of such person's character for virtue and chastity, or imputing to such person acts not virtuous and chaste, or who shall falsely utter and speak, or falsely write and publish, of and concerning another person, any words which from their usual construction and common acceptation are construed as insults and tend to violence and breach of the peace or who shall use grossly insulting language to any person of good character or reputation is guilty of a Class 3 misdemeanor.

The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.

(Code 1950, § 18.1-256; 1960, c. 358; 1973, c. 526; 1975, cc. 14, 15; 2020, c. 900.)

Editor's note. - Acts 2020, c. 900, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2020 amendments. - The 2020 amendment by c. 900, in the first paragraph, substituted "concerning any person," "such person's," "such person" and "to any person" for "concerning any female," "such female's," "such female" and "to any female," respectively, and substituted "or who shall use" for "or shall use" and "is guilty" for "shall be guilty."

Law review. - For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976). For article on modern defamation law in Virginia, see 21 U. Rich. L. Rev. 3 (1986).

CIRCUIT COURT OPINIONS

Actionable words. - Words that falsely speak towards a woman's chastity and character are actionable as defamation in Virginia, under § 18.2-417 ; the words "slut," "whore," "prostitute," and "bitch" fit this meaning under the Virginia Code. Magallon v. Wireless Unlimited Inc., 85 Va. Cir. 460, 2012 Va. Cir. LEXIS 98 (Fairfax County Oct. 23, 2012).

Defamation claim properly pleaded. - Employee claimed that an account manager called her a slut, bitch, whore, and prostitute, and her complaint also contained phrases including "bitch, I (expletive) fired you," and "bitch, get away from the store or I am going to call the police," which might infer that the employee had been fired for a criminal offense, which inference could harm her reputation and be prejudicial to her; the employee's complaint properly pleaded a claim for defamation for the manager's actions, for which the business might be held liable. Magallon v. Wireless Unlimited Inc., 85 Va. Cir. 460, 2012 Va. Cir. LEXIS 98 (Fairfax County Oct. 23, 2012).

Article 4. Picketing of Dwelling Places.

§ 18.2-418. Declaration of policy.

It is hereby declared that the protection and preservation of the home is the keystone of democratic government; that the public health and welfare and the good order of the community require that members of the community enjoy in their homes a feeling of well-being, tranquility, and privacy, and when absent from their homes carry with them the sense of security inherent in the assurance that they may return to the enjoyment of their homes; that the practice of picketing before or about residences and dwelling places causes emotional disturbance and distress to the occupants; that such practice has as its object the harassing of such occupants; and without resort to such practice, full opportunity exists, and under the terms and provisions of this article will continue to exist, for the exercise of freedom of speech and other constitutional rights; and that the provisions hereinafter enacted are necessary in the public interest, to avoid the detrimental results herein set forth.

(Code 1950, § 18.1-367.1; 1970, c. 711; 1975, cc. 14, 15.)

Law review. - For survey of recent legislation on criminal law - picketing of dwelling places prohibited, see 5 U. Rich. L. Rev. 189 (1970). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970).

Michie's Jurisprudence. - For related discussion, see 11B M.J. Labor, § 9.

§ 18.2-419. Picketing or disrupting tranquility of home.

Any person who shall engage in picketing before or about the residence or dwelling place of any individual, or who shall assemble with another person or persons in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home, shall be guilty of a Class 3 misdemeanor. Each day on which a violation of this section occurs shall constitute a separate offense.

Nothing herein shall be deemed to prohibit (1) the picketing in any lawful manner, during a labor dispute, of the place of employment involved in such labor dispute; (2) the picketing in any lawful manner of a construction site; or (3) the holding of a meeting or assembly on any premises commonly used for the discussion of subjects of general public interest.

Notwithstanding the penalties herein provided, any court of general equity jurisdiction may enjoin conduct, or threatened conduct, proscribed by this article, and may in any such proceeding award damages, including punitive damages, against the persons found guilty of actions made unlawful by this section.

(Code 1950, §§ 18.1-367.2 through 18.1-367.6; 1970, c. 711; 1975, cc. 14, 15.)

Article 5. Activities Tending to Cause Violence.

§ 18.2-420. "Clandestine organization" defined.

"Clandestine organization" means: any organization (1) which conceals, or attempts to conceal, its name, activities or membership, or the names, activities or membership of any chapter, branch, unit or affiliate thereof, by the use of cover-names, codes, or any deceptive practice or other means, or (2) whose members shall be required, urged, or instructed, or shall adopt any practice, to conceal their membership or affiliation and that of others in or with such organization, or (3) whose members shall take any oath or pledge, or shall administer any such oath or pledge to those associated with them, to maintain in secrecy any matter or knowledge committed to them by the organization or by any member thereof, or (4) which shall transact business or advance any purpose at any secret meeting or meetings which are guarded or secured against intrusion by persons not associated with it, and (5) whose purpose, policy or activity includes the unlawful use of violence, threats, or intimidation in accomplishing any of its objectives.

(Code 1950, § 18.1-380.1; 1968, c. 792; 1975, cc. 14, 15.)

§ 18.2-421. Information to be filed by clandestine organization with State Corporation Commission.

Every existing membership corporation and every existing unincorporated association which is a clandestine organization as defined in § 18.2-420 , shall file with the clerk of the State Corporation Commission a sworn copy of its constitution, bylaws, rules, regulations, and oath of membership, together with a roster of its membership and a list of its officers for the current year. Every such corporation and association shall, in case its constitution, bylaws, rules, regulations or oath of membership or any part thereof be revised, changed or amended, within ten days after such revision or amendment, file with the clerk of the State Corporation Commission a sworn copy of such revised, changed or amended constitution, bylaw, rule, regulation or oath of membership. Every such corporation or association shall, within thirty days after a change has been made in its officers, file with the clerk of the State Corporation Commission a sworn statement showing such change. Every such corporation or association shall, at intervals of six months, file with the clerk of the State Corporation Commission, a sworn statement showing the names and addresses of such additional members as have been received in such corporation or association during such interval.

The violation of any provision of this section shall constitute a Class 3 misdemeanor.

The provisions of §§ 18.2-420 and 18.2-421 shall not apply to fraternal organizations which are organized for charitable, benevolent, and educational objectives and whose transactions and list of members are open for public inspection.

(Code 1950, § 18.1-380.2; 1968, c. 792; 1975, cc. 14, 15.)

§ 18.2-422. Prohibition of wearing of masks in certain places; exceptions.

It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing. However, the provisions of this section shall not apply to persons (i) wearing traditional holiday costumes; (ii) engaged in professions, trades, employment or other activities and wearing protective masks which are deemed necessary for the physical safety of the wearer or other persons; (iii) engaged in any bona fide theatrical production or masquerade ball; or (iv) wearing a mask, hood or other device for bona fide medical reasons upon (a) the advice of a licensed physician or osteopath and carrying on his person an affidavit from the physician or osteopath specifying the medical necessity for wearing the device and the date on which the wearing of the device will no longer be necessary and providing a brief description of the device, or (b) the declaration of a disaster or state of emergency by the Governor in response to a public health emergency where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver. The violation of any provisions of this section is a Class 6 felony.

(Code 1950, §§ 18.1-364, 18.1-367; 1960, c. 358; 1975, cc. 14, 15; 1986, c. 19; 2010, cc. 262, 420; 2014, c. 167.)

Editor's note. - Acts 2020, c. 1289, cl. 15, as amended by Acts 2020, Sp. Sess. I, c. 56, as amended by Acts 2021, Sp. Sess. I, c. 552, and as added by Acts 2021, Sp. Sess. II, c. 1, effective for the biennium ending June 30, 2022, provides: "That the provisions of § 18.2-422 of the Code of Virginia shall not apply to a person wearing a mask to prevent the spread of COVID-19."

The 2010 amendments. - The 2010 amendments by cc. 262 and 420 are identical, and inserted the clause (iv) (a) designator and clause (iv) (b).

The 2014 amendments. - The 2014 amendment by c. 167, in the first sentence, substituted "16" for "sixteen" and "to, with the intent to conceal his identity, wear" for "while wearing"; and in the last sentence substituted "is" for "shall constitute."

CASE NOTES

Constitutionality. - This section is not unconstitutional on its face. Hernandez v. Commonwealth, 12 Va. App. 669, 406 S.E.2d 398 (1991), aff'd sub nom. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992); appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 390 (1994).

In 28 U.S.C.S. § 2254 action, federal district court held this section constitutional. Virginia's mask-wearing prohibition did not violate the First nor Fourteenth Amendment guarantees of freedom of speech, due process, and equal protection as applied to habeas petitioner, a Ku Klux Klan member. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992), appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 390 (1994).

Section held constitutional as applied to member of Ku Klux Klan. - This section was not unconstitutional as applied to a Ku Klux Klan member who, in addition to the Klan's traditional white robe and hood, wore a mask covering his entire face except for his eyes. Hernandez v. Commonwealth, 12 Va. App. 669, 406 S.E.2d 398 (1991), aff'd sub nom. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992); appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 390 (1994).

Klan hood not entitled to First Amendment protection. - Ku Klux Klan member's mask-wearing did not constitute expressive conduct entitled to First Amendment protection because it did not convey a particularized message. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992), appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 390 (1994).

Requisite intent to conceal identity. - The words "so as to conceal the identity" express a requirement of intent; therefore, to violate this section, an individual must intend to conceal his identity by covering his face. Hernandez v. Commonwealth, 12 Va. App. 669, 406 S.E.2d 398 (1991), aff'd sub nom. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992); appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 390 (1994).

Actions not prohibited by section. - This section does not prohibit the masking of one's face for a purpose other than concealing one's identity, such as protection from cold weather, expression of grief, or practice of a religion. Hernandez v. Commonwealth, 12 Va. App. 669, 406 S.E.2d 398 (1991), aff'd sub nom. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992); appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied, 510 U.S. 1119, 114 S. Ct. 1071, 127 L. Ed. 2d 390 (1994).

Evidence sufficiently supported defendant's conviction for wearing a mask in a public place where police officer testified he saw defendant with his face covered by a mask in parking lot of a convenience store which was open to the public for business. Hopson v. Commonwealth, 15 Va. App. 749, 427 S.E.2d 221 (1993), overruled, in part, by Jones v. Commonwealth, 70 Va. App. 307, 826 S.E.2d 908, 2019 Va. App. LEXIS 110 (2019).

Trial court properly found that the evidence was sufficient to convict defendant of feloniously wearing a mask because it did not err when it relied only on its own observations of defendant's physical appearance to determine that there was sufficient evidence to prove beyond a reasonable doubt that he was over the age of sixteen when he committed the offense; the court of appeals had to give deference to the trial court's finding regarding defendant's age. Stith v. Commonwealth, 65 Va. App. 27, 773 S.E.2d 165, 2015 Va. App. LEXIS 212 (2015).

The evidence was sufficient to support a defendant's conviction under this section where a participant in a robbery identified the defendant and stated that the defendant was wearing a mask when the crime was committed and where an employee of the theatre that was robbed testified that all three men involved in the crime were wearing masks and carrying guns. Kingsberry v. Commonwealth, No. 0142-99-1, 2000 Va. App. LEXIS 622 (Ct. of Appeals Aug. 22, 2000).

See Young v. Commonwealth, No. 0363-03-1, 2003 Va. App. LEXIS 588 (Ct. of Appeals Nov. 12, 2003).

Evidence was sufficient to support a jury's verdict convicting defendant of robbery, use of a firearm in the commission of a felony, § 18.2-53.1 , and wearing a mask in public, § 18.2-422 , under circumstances in which defendant did not contest the victim's testimony that a robbery occurred, defendant and another individual were identified when the victim's purse was found in a creek near the other individual's residence and the other individual's fingerprint was found on the victim's credit card still inside the purse, when the other individual was arrested, defendant was with him, and, in a subsequent videotaped confession, defendant told a detective that he was the robber and gave numerous specific details about the offense, his subsequent flight from the scene, and the disposal of the purse in the creek; defendant admitted wearing a mask and using a BB gun to commit the offense. Defendant's actions did not support his claim that he confessed to prevent the other individual from being held responsible for the robbery. Sears v. Commonwealth,, 2009 Va. App. LEXIS 319 (July 14, 2009).

Although no witness was able to identify defendant by facial recognition, as the robber was wearing a mask during the robbery, there was sufficient evidence to convict defendant of unlawfully wearing a mask during a robbery where the surveillance camera photographs showed the robber wearing a dark, hooded jacket or sweatshirt of some type, with a tag or label on the lower left front side, as well as distinctively marked gloves, the store owner testified that defendant's height was about the same as the height of the robber and the robber was African-American, as was defendant, a police officer later encountered defendant wearing a dark jacket, zipped up, with a knit cap on his head and the hood of his jacket pulled over his head, with a tag or label on the lower left front side, and the officer discovered a pair of gloves and a handgun lying on the ground in a haphazard fashion, as if someone had quickly or carelessly tossed them there, defendant's DNA profile was consistent with that found on the gloves, and the gloves had the same color and distinctive markings as the gloves worn by the robber. Spence v. Commonwealth, 60 Va. App. 355, 727 S.E.2d 786, 2012 Va. App. LEXIS 221 (2012).

Evidence was sufficient to find that defendant was involved in a home invasion, which led to convictions for armed burglary, attempted robbery, and wearing a mask in public because, about 40 minutes after the victim fired two shots at intruders, defendant and codefendant arrived with gunshot wounds at a hospital located about 40 minutes' away; both men claimed that they were together at a house party when they were shot, but they could not provide details to police to confirm their story; cell phone records suggested that both men were near the victims' residence when the home invasion occurred; and codefendant was shot with the same kind of unusual ammunition that the victim used during the home invasion. Chantz v. Commonwealth, No. 0113-16-3, 2017 Va. App. LEXIS 44 (Ct. of Appeals Feb. 21, 2017).

Sufficient evidence of principal in the second degree. - Where evidence clearly showed that defendant shared co-defendant's criminal intent; committed an overt act in furtherance of their plans when he supplied mask to co-defendant so that co-defendant could not be identified; and then in a vehicle the defendant controlled, drove co-defendant to the places where the crimes were committed, evidence supported the trial court findings that defendant was guilty as a principal in the second degree of three violations of this section. McGill v. Commonwealth, 24 Va. App. 728, 485 S.E.2d 173 (1997).

Harsher sentence improper. - Judgment was reversed and the case was remanded for a new sentencing hearing on defendant's robbery, conspiracy, and wearing a mask in public convictions as the ends of justice exception in Va. Sup. Ct. R. 5A:18 applied because defendant was sentenced to a maximum total sentence of 33 years in violation of § 19.2-295 , when the jury imposed a maximum total sentence of 15 years of imprisonment. Gibbs v. Commonwealth, No. 1726-11-1, 2012 Va. App. LEXIS 324 (Ct. of Appeals Oct. 16, 2012).

CIRCUIT COURT OPINIONS

Wearing of masks required during public health threat. - Plaintiff's motion for declaratory judgment and injunctive relief to declare Executive Order No. 63 (EO 63), requiring face coverings in response to COVID-19, in conflict with this statute and null and void was denied as EO 63 was properly issued because it addressed exceptional circumstances that existed concerning a communicable disease of public health threat that was issued by the State Health Commissioner; the law provided broad discretion and relied on the Governor's judgment to determine how to resolve the emergency; the Governor's Executive Orders were consistent with the state constitution; and plaintiff failed to establish that he was likely to suffer irreparable harm. Schilling v. Northam, 105 Va. Cir. 343, 2020 Va. Cir. LEXIS 120 (Albemarle County July 20, 2020).

Waiver. - Winery was not entitled to a temporary injunction from enforcement of an executive order requiring face coverings to be worn by individuals in certain settings, because the Governor of Virginia and the Virginia State Health Commissioner validly enacted the order to limit the spread of COVID-19 and expressly waived the application of the criminal prohibition on the wearing of a mask to conceal one's identity. The winery could not demonstrate a likely success as to the merits, irreparable harm, the balance of equities, and the public interest. Strother v. Northam, 105 Va. Cir. 233, 2020 Va. Cir. LEXIS 106 (Fauquier County June 29, 2020).

§ 18.2-423. Burning cross on property of another or public place with intent to intimidate; penalty; prima facie evidence of intent.

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

(Code 1950, §§ 18.1-365 through 18.1-367; 1960, c. 358; 1968, c. 350; 1975, cc. 14, 15; 1983, c. 337.)

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 78.

CASE NOTES

Constitutionality. - Section 18.2-423 violates the First Amendment to the United States Constitution, because it is impermissible to punish intimidation based solely upon the content of otherwise protected symbolic speech, and because the statute is overbroad in that it permits arrest and prosecution for both protected and unprotected speech. Black v. Commonwealth, 262 Va. 764 , 553 S.E.2d 738, 2001 Va. LEXIS 144 (2001).

Statutory prohibition of cross burning with the intent to intimidate does not violate the right to freedom of speech, since the statute bans intentional intimidating conduct rather than expression. Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535, 2003 U.S. LEXIS 2715 (2003).

On remand from the United States Supreme Court, the court declined to interpret a model jury instruction to save the prima facie evidence provision of § 18.2-423 from unconstitutionality because the instruction, taken in context of the other instructions, properly interpreted the provision. Thus, the court affirmed its prior holding that the prima facie evidence provision of § 18.2-423 was unconstitutionally overbroad because of its chilling effect upon the exercise of free speech under the First Amendment. Elliott v. Commonwealth, 267 Va. 464 , 593 S.E.2d 263, 2004 Va. LEXIS 41 (2004).

Because Va. Const., art. I, § 12, was coextensive with the First Amendment's free speech provisions, after severance of the provision concerning prima facie evidence of intent, § 18.2-423 did not violate the First Amendment or Va. Const., art. I, § 12. Elliott v. Commonwealth, 267 Va. 464 , 593 S.E.2d 263, 2004 Va. LEXIS 41 (2004).

Severability of prima facie evidence provision. - Because § 18.2-423 did not fall within either of the exceptions to the rule of severability established in § 1-17.1 [see now § 1-243 ], the court held that the statute was severable and that the provisions of the statute that remained did not violate the First Amendment or Va. Const., art. I, § 12. Elliott v. Commonwealth, 267 Va. 464 , 593 S.E.2d 263, 2004 Va. LEXIS 41 (2004).

§ 18.2-423.01. Burning object on property of another or a highway or other public place with intent to intimidate; penalty.

  1. Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.
  2. Any person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

    (2002, cc. 589, 600.)

Editor's note. - Acts 2002, cc. 589 and 600, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

§ 18.2-423.1. Placing swastika on certain property with intent to intimidate; penalty; prima facie evidence of intent.

It shall be unlawful for any person or persons, with the intent of intimidating another person or group of persons, to place or cause to be placed a swastika on any church, synagogue or other building or place used for religious worship, or on any school, educational facility or community center owned or operated by a church or religious body.

A violation of this section shall be punishable as a Class 6 felony.

For the purposes of this section, any such placing of a swastika shall be prima facie evidence of an intent to intimidate another person or group of persons.

(1983, c. 337.)

Law review. - For article surveying developments in criminal law and procedure in Virginia from July 2001 to September 2002, see 37 U. Rich. L. Rev. 45 (2002).

§ 18.2-423.2. Displaying noose on property of another or a highway or other public place with intent to intimidate; penalty.

  1. Any person who, with the intent of intimidating any person or group of persons, displays a noose on the private property of another without permission is guilty of a Class 6 felony.
  2. Any person who, with the intent of intimidating any person or group of persons, displays a noose on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

    (2009, c. 277.)

CASE NOTES

Constitutionality. - Statute did not offend the First Amendment because (1) the display of a noose evoked a long history of impending violence, (2) the statute had no prima facie evidence provision found unconstitutional in a similar statute, and (3) the statute only barred true threats, as the Commonwealth had to prove another was put in reasonable fear of death or injury. Turner v. Commonwealth, 67 Va. App. 46, 792 S.E.2d 299 (2016).

Display on private property. - Defendant's display of a noose on defendant's property violated the statute because (1) barring a display in a "public place" did not mean public property, (2) the noose conveyed an offensive message and disturbed those within the noose's view, (3) the statute barred displays communicating true threats, and (4) using the Virginia Supreme Court's prior definition of public place to include conduct on one's premises disturbing those within the conduct's view furthered the legislative purpose when accompanied by an intent to intimidate and tendency to cause reasonable fear of death or injury. Turner v. Commonwealth, 67 Va. App. 46, 792 S.E.2d 299 (2016).

Court of Appeals of Virginia applies the obvious and rational meaning of the term public place as used in subsection B to include private property generally visible by the public from some other location. Turner v. Commonwealth, 295 Va. 104 , 809 S.E.2d 679, 2018 Va. LEXIS 12 (2018), cert. denied, 139 S. Ct. 123, 2018 U.S. LEXIS 5611, 202 L. Ed. 2d 77 (2018).

Because the Court of Appeals of Virginia presumes that the word place under subsection B means something different than the word property under subsection A, the term public place under subsection B is not limited in scope to public property, a term nowhere found in the statute. In other words, under subsection B, whether a noose display is on privately or publicly owned property is not determinative of whether it is located on a public place. Turner v. Commonwealth, 295 Va. 104 , 809 S.E.2d 679, 2018 Va. LEXIS 12 (2018), cert. denied, 139 S. Ct. 123, 2018 U.S. LEXIS 5611, 202 L. Ed. 2d 77 (2018).

Defendant's noose display located in his front yard and clearly visible from a public road unmistakably fell within the purview of the subsection B element proscribing a noose display on a public place where the obvious and rational meaning of the term "public place" included private property generally visible by the public from some other location. Turner v. Commonwealth, 295 Va. 104 , 809 S.E.2d 679, 2018 Va. LEXIS 12 (2018), cert. denied, 139 S. Ct. 123, 2018 U.S. LEXIS 5611, 202 L. Ed. 2d 77 (2018).

Article 6. Unlawful Use of Telephones.

§§ 18.2-424, 18.2-425.

Repealed by Acts 2007, c. 467, cl. 2.

§ 18.2-425.1.

Repealed by Acts 2009, c. 699, cl. 2.

Cross references. - For current provisions restricting certain solicitation calls, see Automatic Dialing-Announcing Devices, Chapter 44.1 ( § 59.1-518.1 et seq.) of Title 59.1.

§ 18.2-426. "Emergency call" and "emergency personnel" defined.

As used in this article:

"Emergency call" means a call to report a fire or summon police, or for emergency medical services, in a situation where human life or property is in jeopardy and the prompt summoning of aid is essential.

"Emergency personnel" means any persons, paid or volunteer, who receive calls for dispatch of police, fire, or emergency medical services personnel, and includes law-enforcement officers, firefighters, including special forest wardens designated pursuant to § 10.1-1135 , and emergency medical services personnel.

(Code 1950, § 18.1-370; 1960, c. 358; 1975, cc. 14, 15; 1995, c. 791; 2000, c. 962; 2007, c. 467; 2015, cc. 502, 503.)

The 1995 amendment added the definitions of "Emergency call" and "Emergency personnel" and deleted the second sentence in the definition of "Telephone party line" which contained the prior definition of "Emergency call."

The 2000 amendments. - The 2000 amendment by c. 962 inserted "including special forest wardens designated pursuant to § 10.1-1135 " in the paragraph defining "Emergency personnel."

The 2007 amendments. - The 2007 amendment by c. 467 deleted the paragraph defining "Telephone party line," which formerly read: "'Telephone party line' means a subscribers' line circuit consisting of two or more main telephone stations connected therewith, each station with a distinctive ring or telephone number."

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "emergency medical services" for "medical aid or ambulance service" in the first paragraph and substituted "services" for "service" in two instances in the second paragraph.

Law review. - For comment, " '911' Emergency Assistance Call Systems: Should Local Governments Be Liable for Negligent Failure to Respond?," see 8 Geo. Mason U.L. Rev. 103 (1985).

§ 18.2-427. Use of profane, threatening, or indecent language over public airways or by other methods.

Any person who uses obscene, vulgar, profane, lewd, lascivious, or indecent language, or makes any suggestion or proposal of an obscene nature, or threatens any illegal or immoral act with the intent to coerce, intimidate, or harass any person, over any telephone or citizens band radio, in this Commonwealth, is guilty of a Class 1 misdemeanor.

"Over any telephone" includes, for purposes of this section, any electronically transmitted communication producing a visual or electronic message that is received or transmitted by cellular telephone or other wireless telecommunications device.

(Code 1950, § 18.1-238; 1960, c. 358; 1964, c. 577; 1975, cc. 14, 15; 1976, c. 312; 1984, c. 592; 2010, c. 565; 2011, c. 246.)

The 2010 amendments. - The 2010 amendment by c. 565 rewrote the section.

The 2011 amendments. - The 2011 amendment by c. 246 substituted "communication producing a visual or electronic message that is received or transmitted by cellular telephone or other wireless telecommunications device" for "message that is received or transmitted by telephone" in the last paragraph.

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973). For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974). For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975); for the year 1975-1976, see 62 Va. L. Rev. 1400 (1976). For note on case holding predecessor § 18.1-238 unconstitutional, see 33 Wash. & Lee L. Rev. 499 (1976).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

For annual survey of Virginia law article, "Criminal Law and Procedure," see 47 U. Rich. L. Rev. 143 (2012).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Libel and Slander, § 49; 18 M.J. Telegraph and Telephone Companies, § 2.

CASE NOTES

Section as it stood prior to 1975 and 1976 amendments held facially overbroad and impermissibly sweeping. - See Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975).

Section is not overbroad. - This section is not overbroad because it can be construed so that the phrase "with the intent to coerce, intimidate, or harass" applies to the words that it directly follows and also applies to the use of "obscene, vulgar, profane, lewd, lascivious, or indecent language." Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991).

In view of the legislature's amendments to the statute following the decision in Walker v. Dillard , 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975), the legislature intended to address harassing conduct as the evil to be proscribed and intended to narrow the scope of the speech phrases to that which is obscene. This construction is not strained and removes protected speech from within the statute's sweep. Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991).

Section is not void for vagueness. - By requiring that the language be used with the intent to "coerce, intimidate, or harass," the statute gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited. The police cannot make arbitrary arrests under the statute. By requiring a criminal mens rea, any alleged vagueness has been remedied. Perkins v. Commonwealth, 12 Va. App. 7, 402 S.E.2d 229 (1991).

Words "vulgar," "profane" and "indecent" are capable of overbroad interpretation. Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975), decided prior to the 1975 and 1976 amendments to this section.

Words like "vulgar," "profane" and "indecent" have sometimes been interpreted as meaning "obscene," but only when they have been used in conjunction with other, more specific adjectives like "obscene," "lewd" and "lascivious." Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975), decided prior to the 1975 and 1976 amendments to this section.

"Threat" must be narrowly defined in order to avoid punishing constitutionally protected speech. Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975), decided prior to the 1975 and 1976 amendments to this section.

As the correct interpretation of defendant's voicemail statements had to be determined by the jury, based on whether a reasonable recipient would interpret defendant's remarks as threats, defendant's conviction for making threatening/obscene phone calls was proper. Alexander v. Commonwealth, No. 0126-12-4, 2013 Va. App. LEXIS 137 (Ct. of Appeals Apr. 30, 2013).

State has a legitimate interest in prohibiting obscene, threatening and harassing phone calls, none of which are generally thought of as protected by the First Amendment. Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975), decided prior to the 1975 and 1976 amendments to this section.

Proscription of section must not be one that unduly impinges on protected expression. Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 U.S. 906, 96 S. Ct. 208, 46 L. Ed. 2d 136 (1975), decided prior to the 1975 and 1976 amendments to this section.

Use of expert testimony to explain caller identification device was not necessary to Commonwealth's case. The user of the caller identification device could testify as to facts establishing the reliability of the device, including that it had accurately displayed and identified telephone numbers on other occasions. Blackstone v. Commonwealth, No. 1077-96-3 (Ct. of Appeals Oct. 7, 1997).

No error in allowing manager for telephone company to testify. - Trial judge did not err in allowing regional security manager for telephone company to testify where he did not know the type of caller identification device used and claimed no expertise as to the operation of such devices. Although manager did not claim to be an expert, he had knowledge and personal experience with caller identification devices. On this record, the trial judge did abuse his discretion in concluding that manager had sufficient knowledge of this matter to give value to his opinion. Blackstone v. Commonwealth, No. 1077-96-3 (Ct. of Appeals Oct. 7, 1997).

While defendant used words which could be obscene in certain contexts, defendant used the offensive words as vulgar curse or swear words to communicate his frustration, anger, contempt or disgust with the victim. Accordingly, defendant's language failed to meet the definition of obscene as required by case law and § 18.2-372 and defendant's conviction under § 18.2-427 was reversed. Lofgren v. Commonwealth, 55 Va. App. 116, 684 S.E.2d 223, 2009 Va. App. LEXIS 491 (2009).

Sufficient evidence of violation. - Statement to school personnel officer by employee facing termination that "I have some fireworks for you" followed by a statement that "I am going to bring all three down," supported the finding of the trial court that appellant violated this section. Witts v. Commonwealth, No. 0078-94-1 (Ct. of Appeals April 4, 1995).

Defendant was properly convicted of violating former § 18.2-427 by leaving threatening messages on the victim's answering machine because (1) defendant's language was sufficient to enable a rational fact-finder to conclude defendant threatened the victim with physical injury in the form of a sexual offense, with the obvious intent to intimidate and harass the victim, (2) such speech fell outside the protection of the First Amendment, so state law could proscribe the language, obscene or not, and (3) whether the language was obscene was immaterial, since the statutory offense of threatening illegal or immoral acts was not qualified by the word "obscene." Rives v. Commonwealth, 284 Va. 1 , 726 S.E.2d 248, 2012 Va. LEXIS 126 (2012).

Admission of call trap evidence. - Results of a call trap, which is an electronic device programmed into the telephone company's computer to trace calls, may be admitted only after the particular device in question has been proven reliable. Penny v. Commonwealth, 6 Va. App. 494, 370 S.E.2d 314 (1988).

CIRCUIT COURT OPINIONS

Expungement improper. - Entering of an order of expungement was improper because, having pleaded guilty to the use of profane language removed defendant from the group of innocent citizens the legislature envisioned as being eligible for expungement; had the incident giving rise to the stalking charge and subsequent conviction of use of profane language been otherwise dismissed, the result would have left defendant as an innocent citizen with a record of the charge being a hindrance to his ability to obtain employment, an education, and to obtain credit. Defendant was not an innocent citizen in regard to the stalking charge and subsequent guilty plea to use of profane language over a telephone. Commonwealth v. Rowe, 85 Va. Cir. 323, 2012 Va. Cir. LEXIS 174 (Hanover County Aug. 31, 2012).

OPINIONS OF THE ATTORNEY GENERAL

Conspiracy is not a criminal act punishable under this section. See opinion of Attorney General to The Honorable J. Brandon Bell, II, Member, Senate of Virginia, 04-020 (4/16/04).

§ 18.2-428. Giving certain false information to another by telephone.

If any person maliciously advises or informs another over any telephone in this Commonwealth of the death of, accident to, injury to, illness of, or disappearance of some third party, knowing the same to be false, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-238.1; 1962, c. 225; 1975, cc. 14, 15.)

§ 18.2-429. Causing telephone or pager to ring with intent to annoy.

  1. Any person who, with or without intent to communicate but with intent to annoy any other person, causes any telephone or digital pager, not his own, to ring or to otherwise signal, and any person who permits or condones the use of any telephone under his control for such purpose, is guilty of a Class 3 misdemeanor. A second or subsequent conviction under this subsection is punishable as a Class 2 misdemeanor if such prior conviction occurred before the date of the offense charged.
  2. Any person who, with or without intent to converse, but with intent to annoy, harass, hinder or delay emergency personnel in the performance of their duties as such, causes a telephone to ring, which is owned or leased for the purpose of receiving emergency calls by a public or private entity providing fire, police or emergency medical services, and any person who knowingly permits the use of a telephone under his control for such purpose, is guilty of a Class 1 misdemeanor.

    (Code 1950, § 18.1-238.2; 1962, c. 495; 1975, cc. 14, 15; 1989, c. 59; 1995, cc. 410, 478, 791; 2012, c. 133; 2015, cc. 502, 503.)

The 1995 amendments. - The 1995 amendment by c. 410 substituted "communicate" for "converse", inserted "or digital pager" and inserted "or to otherwise signal."

The 1995 amendment by c. 478 inserted "or digital pager" following "any telephone" and inserted "or otherwise signal" following "to ring."

The 1995 amendment by c. 791 added the second paragraph.

The 2012 amendments. - The 2012 amendment by c. 133 designated the existing provisions of the section as subsections A and B; substituted "is guilty" for "shall be guilty" in subsections A and B; and added the last sentence in subsection A.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "medical services" for "medical service" in subsection B.

CASE NOTES

Intent must exist when call is made. - Defendant's conviction for misuse of the 9-1-1 system was reversed because the evidence failed to establish that defendant possessed the requisite intent to annoy, harass, hinder or delay emergency personnel in the performance of their duties at the time she caused the telephone to ring; and her intent to intimidate the officers, which developed after she remained on the telephone, did not violate the statute as an intent to annoy, harass, hinder or delay that arose during the call did not fall within the scope of the statutory prohibition. Fountain v. Commonwealth, 64 Va. App. 51, 764 S.E.2d 293, 2014 Va. App. LEXIS 361 (2014).

§ 18.2-429.1. False caller identification information; penalty.

  1. For the purposes of this section:

    "Caller identification information" means data that identifies the identity of the caller or the caller's telephone number to the recipient of a telephone call or to the recipient's telephone network.

    "False caller identification information" means data that misrepresents the identity of the caller or the caller's telephone number to the recipient of a telephone call or to the recipient's telephone network.

  2. Any person who, with the intent to defraud, intimidate, or harass, causes a telephone to ring and engages in conduct that results in the display of false caller identification information on the called party's telephone is guilty of a Class 3 misdemeanor. A second or subsequent conviction under this subsection is punishable as a Class 2 misdemeanor if the prior conviction occurred before the date of the offense charged.
  3. This section shall not apply to:
    1. The blocking of caller identification information;
    2. Any law-enforcement agencies or any law-enforcement officer while he is engaged in the performance of his official duties;
    3. Any intelligence or security agency of the federal government or any employee of such agency while he is engaged in the performance of his official duties; or
    4. Any telecommunications, broadband, or Voice-over-Internet protocol service provider that is (i) acting in its capacity as an intermediary for the transmission of telephone service between the caller and the recipient, (ii) providing or configuring a service or service feature as requested by a customer, (iii) acting in a manner that is authorized or required by law, or (iv) engaging in other conduct that is a necessary incident to the provision of service.

      (2019, c. 476.)

§ 18.2-430. Venue for offenses under this article.

Any person violating any of the provisions of this article may be prosecuted either in the county or city from which he called or in the county or city in which the call was received, or in the City of Richmond if venue cannot otherwise be established and the person subjected to the act is one of the following officials or employees of the Commonwealth and such official or employee was subjected to the act while engaged in the performance of his public duties or because of his position with the Commonwealth: the Governor, Governor-elect, Lieutenant Governor, Lieutenant Governor-elect, Attorney General, or Attorney General-elect, a member or employee of the General Assembly, a justice of the Supreme Court of Virginia or a judge of the Court of Appeals of Virginia.

(Code 1950, § 18.1-238; 1960, c. 358; 1964, c. 577; 1975, cc. 14, 15; 2020, c. 1002.)

The 2020 amendments. - The 2020 amendment by c. 1002 added the language beginning with "or in the City of Richmond" to the end of the section.

§ 18.2-431. Duty of telephone companies; notices in directories.

  1. It shall be the duty, on pain of contempt of court, of each telephone company in this Commonwealth to furnish immediately in response to a subpoena issued by a circuit court such information as it, its officers and employees may possess which, in the opinion of the court, may aid in the apprehension of persons suspected of violating the provisions of this article or the provisions of § 18.2-83 or § 18.2-212 .
  2. Every telephone directory distributed to the public which lists the calling numbers of telephones or of any telephone exchange located in this Commonwealth shall contain a notice which explains the offenses made punishable under this article, such notice to be printed in type which conforms with and is comparable to other type on the same page, and to be placed in a prominent place in such directory. Any violation of this subsection shall be punishable as a Class 4 misdemeanor.

    (Code 1950, §§ 18.1-238, 18.1-371; 1960, c. 358; 1964, c. 577; 1975, cc. 14, 15; 1982, c. 502.)

§ 18.2-431.1. Illegal conveyance or possession of cellular telephone or other wireless telecommunications device by prisoner or committed person; penalty.

  1. It is unlawful for any person without authorization to provide or cause to be provided a cellular telephone or other wireless telecommunications device to an incarcerated prisoner or person committed to the Department of Juvenile Justice in any juvenile correctional center.
  2. It is unlawful for an incarcerated prisoner or person committed to the Department of Juvenile Justice in any juvenile correctional center without authorization to possess a cellular telephone or other wireless telecommunications device during the period of his incarceration.
  3. Any violation of this section is a Class 6 felony.

    (2005, c. 171; 2013, cc. 707, 782; 2015, c. 601.)

The 2013 amendments. - The 2013 amendments by cc. 707 and 782 are identical, and inserted "or person committed to the Department of Juvenile Justice in any juvenile correctional center" in subsections A and B; and substituted "is" for "shall be" in subsection C.

The 2015 amendments. - The 2015 amendment by c. 601 in subsections A and B, substituted "It is" for "It shall be" at the beginning and inserted "or other wireless telecommunications device" following "telephone."

CASE NOTES

Applicability. - Section 18.2-431.1 's prohibition on unauthorized cell phones encompasses incarcerated persons in both state and local correctional facilities. Lewis v. Commonwealth,, 2012 Va. App. LEXIS 414 (Dec. 18, 2012).

Evidence sufficient. - Defendant's convictions for possession of a cell phone by a prisoner was supported by sufficient evidence as, in the first instance, the evidence showed that defendant handed the cell phone to the correctional officer, establishing that he had actual possession of the phone. With regard to the second conviction, the evidence that defendant was lying on the cot moments before the officer searched the cell and that the phone could be easily felt from the outside of the mattress supported the trial court's finding that defendant constructively possessed the phone. Lewis v. Commonwealth,, 2012 Va. App. LEXIS 414 (Dec. 18, 2012).

Affirmative testimony from two officers that the phone seized from defendant while he was in jail was a cellular phone was sufficient to support defendant's conviction for possession of a cellular telephone by a prisoner, as defendant did not object to the testimony and conceded that one of the officers "got him," which was evidence of consciousness of guilt. Ragland v. Commonwealth, 67 Va. App. 519, 797 S.E.2d 437 (2017).

Evidence was sufficient to convict defendant of possession of a cellular telephone by a prisoner because defendant was seen hiding an item in his prison cell; three correctional officers identified the item as a cell phone, and one officer testified that it was similar to cell phones he had previously recovered during prison searches; contemporaneous photographs and the item itself were admitted into evidence; and the Commonwealth was not required to produce expert testimony to identify the item as a cell phone nor demonstrate functionality or operability. Jordan v. Commonwealth, 72 Va. App. 1, 840 S.E.2d 568, 2020 Va. App. LEXIS 105 (2020).

Article 7. Places of Amusement and Dance Halls.

§§ 18.2-432, 18.2-433.

Repealed by Acts 2004, c. 462.

Cross references. - For current provisions as to regulation of dance halls by counties, cities and towns, see § 15.2-912.3 .

Article 8. Unlawful Paramilitary Activity.

§ 18.2-433.1. Definitions.

As used in this article:

"Civil disorder" means any public disturbance within the United States or any territorial possessions thereof involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.

"Explosive or incendiary device" means (i) dynamite and all other forms of high explosives, (ii) any explosive bomb, grenade, missile, or similar device, or (iii) any incendiary bomb or grenade, fire bomb, or similar device, including any device which consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone.

"Firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material; or the frame or receiver of any such weapon.

"Law-enforcement officer" means any officer as defined in § 9.1-101 or any such officer or member of the armed forces of the United States, any state, any political subdivision of a state, or the District of Columbia, and such term shall specifically include, but shall not be limited to, members of the National Guard, as defined in § 101(c) of Title 10, United States Code, members of the organized militia of any state or territory of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, not included within the definition of National Guard as defined by such § 101(c), and members of the Armed Forces of the United States.

(1987, c. 720; 2003, c. 976; 2004, c. 263.)

Editor's note. - At the direction of the Virginia Code Commission, " § 101(c)" was twice substituted for "101(9)" in the definition of "law-enforcement officer."

The 2003 amendments. - The 2003 amendment by c. 976 rewrote the definition of "Firearm," which formerly read: "'Firearm' means any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of any such weapon."

The 2004 amendments. - The 2004 amendment by c. 263 deleted "subdivision 9 of" preceding " § 9.1-101 " in the definition of "Law-enforcement officer."

Michie's Jurisprudence. - For related discussion, see 3A M.J. Breach of the Peace, § 2; 20 M.J. Weapons, § 4.1.

§ 18.2-433.2. Paramilitary activity prohibited; penalty.

A person is guilty of unlawful paramilitary activity, punishable as a Class 5 felony, if he:

  1. Teaches or demonstrates to any other person the use, application, or making of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that such training will be employed for use in, or in furtherance of, a civil disorder;
  2. Assembles with one or more persons for the purpose of training with, practicing with, or being instructed in the use of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, intending to employ such training for use in, or in furtherance of, a civil disorder; or
  3. Violates subsection A of § 18.2-282 while assembled with one or more persons for the purpose of and with the intent to intimidate any person or group of persons. (1987, c. 720; 2020, c. 601.)

Editor's note. - Acts 2020, c. 601, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2020 amendments. - The 2020 amendment by c. 601, in the introductory wording, substituted "is" for "shall be"; added subdivision 3; and made stylistic changes.

§ 18.2-433.3. Exceptions.

Nothing contained in this article shall be construed to apply to:

  1. Any act of a law-enforcement officer performed in the otherwise lawful performance of the officer's official duties;
  2. Any activity, undertaken without knowledge of or intent to cause or further a civil disorder, which is intended to teach or practice self-defense or self-defense techniques such as karate clubs or self-defense clinics, and similar lawful activity;
  3. Any facility, program or lawful activity related to firearms instruction and training intended to teach the safe handling and use of firearms; or
  4. Any other lawful sports or activities related to the individual recreational use or possession of firearms, including but not limited to hunting activities, target shooting, self-defense and firearms collection.

    Notwithstanding any language contained herein, no activity of any individual, group, organization or other entity engaged in the lawful display or use of firearms or other weapons or facsimiles thereof shall be deemed to be in violation of this statute.

    (1987, c. 720.)

Chapter 10. Crimes Against the Administration of Justice.

Perjury.

Bribery and Related Offenses.

Bribery of Public Servants and Party Officials.

Barratry.

Contempt of Court.

Interference with Administration of Justice.

Escape of, Communications with and Deliveries to Prisoners.

Article 1. Perjury.

§ 18.2-434. What deemed perjury; punishment and penalty.

If any person to whom an oath is lawfully administered on any occasion willfully swears falsely on such occasion touching any material matter or thing, or if a person falsely make oath that any other person is 18 years of age or older in order to obtain a marriage license for such other person, or if any person in any written declaration, certificate, verification, or statement under penalty of perjury pursuant to § 8.01-4.3 willfully subscribes as true any material matter which he does not believe is true, he is guilty of perjury, punishable as a Class 5 felony. Upon the conviction of any person for perjury, such person thereby shall be adjudged forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia, or of serving as a juror.

(Code 1950, §§ 18.1-273 through 18.1-275; 1960, c. 358; 1972, c. 823; 1975, cc. 14, 15; 2005, c. 423.)

Cross references. - As to the Attorney General's limited authority to institute or conduct criminal prosecutions under this section, see § 2.2-511 .

As to competence of one convicted of perjury or subornation as a witness, see § 19.2-269 .

As to definition and effect of "sealing" criminal history record information, see § 19.2-392.5 .

As to application of this section to one making a false application for welfare assistance or otherwise swearing falsely in connection with welfare, see § 63.2-502 .

As to application of this section to false statements made on registration form under Mutual Consent Adoption Registry, see § 63.2-1258.

As to submissions to the Screened Family Day Home Provider List, see § 63.2-1704.2.

The 2005 amendments. - The 2005 amendment by c. 423, in the first sentence, substituted "swears" for "swear" and "is" for "shall be" preceding "guilty of perjury," inserted "or older" and "or if any person in any written declaration, certificate, verification, or statement under penalty of perjury pursuant to § 8.01-4.3 willfully subscribes as true any material matter which he does not believe is true," and made a related change.

Law review. - For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury, " see 44 Wash. & Lee L. Rev. 1257 (1988).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Acknowledgments, § 2; 9B M.J. Indictments, Informations and Presentments, § 57; 12B M.J. Marriage, § 7; 14B M.J. Perjury, §§ 2, 5, 10.

CASE NOTES

Fifth amendment does not shield perjury. - Although the amendment grants a privilege to remain silent without risking contempt, it does not endow the person who testifies with a license to commit perjury. The warnings simply inform the witness that the privilege is available in order to eliminate the dilemma of self-incrimination or perjury. Shifflett v. Commonwealth, 5 Va. App. 277, 361 S.E.2d 783 (1987).

Failure to give fifth amendment warnings is not defense to perjury charge. Shifflett v. Commonwealth, 5 Va. App. 277, 361 S.E.2d 783 (1987).

Statements made in suppression hearing in prosecution of another. - Defendant's incriminating statements made at a suppression hearing in the prosecution of another person were constitutionally admissible as evidence against him at his trial for perjury. Because the crime of perjury had not yet been committed at the time defendant took the stand and began to testify at the suppression hearing, his sixth amendment right to counsel did not attach as to that charge. Therefore, the evidence obtained during his testimony was not required to be excluded simply because other charges were pending at that time. Shifflett v. Commonwealth, 5 Va. App. 277, 361 S.E.2d 783 (1987).

Failure to include words not fatal. - Trial court did not err in refusing to quash indictment because it failed to specifically include words "any material matter " contained in this section since body of indictment contained words "in violation of Code § 18.2-434 , " and thus, appellant was fully informed of charge he was required to defend. Tomlinson v. Commonwealth, No. 0798-87-2 (Ct. of Appeals Mar. 7, 1989).

Two witnesses or other corroborating evidence required. - A perjury conviction under this section requires proof of falsity from the testimony of at least two witnesses or other corroborating evidence of falsity in the event the case is supported by the testimony of only one witness. Donowa v. Commonwealth, No. 1579-95-2 (Ct. of Appeals May 28, 1996).

The law as stated in Schwartz v. Commonwealth, 68 Va. (27 Gratt.) 1025 (1876) remains in effect, and a perjury conviction under this section requires proof of falsity from the testimony of at least two witnesses or other corroborating evidence of falsity in the event the case is supported by the testimony of only one witness. Keffer v. Commonwealth, 12 Va. App. 545, 404 S.E.2d 745 (1991).

Videotape evidence alone sufficient to convict. - Defendant's perjury conviction for denying under oath that he had masturbated in a public place was affirmed, as a videotape of him performing the act spoke for itself, and the Schwartz rule's requirement of corroborating testimony was inapplicable. Piatkowski v. Ralph D. Kaiser Co., 219 Va. 1015 , 254 S.E.2d 68 (1979).

This section is to be construed strictly as a penal statute. Commonwealth v. Simon, 11 Va. L. Reg. (n.s.) 349 (1925).

Oath must be lawfully administered. - By this section "any occasion " suffices, but it is required that the oath shall be lawfully administered. Thus where there was no requirement or provision of law for a notary's administering the oath of loss of an automobile for the purpose of collecting on an insurance policy, and as under § 49-4 the notary was only authorized to take such affidavits as are required by law, such an affidavit was not lawfully administered as required by this section. Commonwealth v. Simon, 11 Va. L. Reg. (n.s.) 349 (1925).

Where the court which administered an oath had no jurisdiction to do so, one who swore falsely before it was not guilty of perjury. Commonwealth v. Calvert, 3 Va. (1 Va. Cas.) 265 (1809).

Oath must be willful and false. - To constitute the crime of perjury, the oath must have been willful and false. Falsity is the main ingredient of the crime. Thomas v. Commonwealth, 41 Va. (2 Rob.) 795 (1843); Fitch v. Commonwealth, 92 Va. 824 , 24 S.E. 272 (1896).

It does not apply to gratuitous affidavit. - A "gratuitous" affidavit, that is, one unprovided for or unauthorized by law, though false, does not fall within the requirements of this section as being an oath "lawfully administered on any occasion . . . touching any material matter or thing, " so as to constitute a perjury. Commonwealth v. Simon, 11 Va. L. Reg. (n.s.) 349 (1925).

Knowledge of falsity must be proved. - Perjury can only be established upon proof of knowledge of falsity of the alleged statements. It cannot be predicated where wilfulness and corruption are not proven. Rothfuss v. Commonwealth, 198 Va. 461 , 94 S.E.2d 532 (1956).

And false statement must be material. - To convict one of perjury, the alleged false statement must have been material in the judicial proceeding in which it is proved to have been made. Commonwealth v. Pickering, 49 Va. (8 Gratt.) 628 (1851); Crump v. Commonwealth, 75 Va. 922 (1882); Rhodes v. Commonwealth, 78 Va. 692 (1884). See also Fitch v. Commonwealth, 92 Va. 824 , 24 S.E. 272 (1896); Commonwealth v. Roach, 42 Va. (1 Gratt.) 561 (1844).

Where person makes false statements under oath regarding a material fact, he can be prosecuted for perjury for the false statement. Ganzie v. Commonwealth, 24 Va. App. 422, 482 S.E.2d 863 (1997).

R. swore that M. had stolen bacon and offered to sell it to him on November 15th, 1875. Later, R. swore that M. had stolen bacon and offered to sell it to him just before Christmas, 1875. On indictment against R. for perjury, it was not proved that M. did not steal bacon, but it was proved that R. made contradictory statements as to the date. R. was convicted. It was held that the stealing of the bacon was the material matter of the charge; that the date of the offer to sell was not material to the offense; that the oath as to the date was not material to the issue, and was not likely to induce the jury to give the readier credit to the substantial part of the evidence; and that R. was not guilty of perjury. Rhodes v. Commonwealth, 78 Va. 692 (1884).

If the untrue representation does not touch any material matter or thing in the trial, the mere falsity of the statement alone will not sustain a perjury conviction. The testimony must be relevant in the trial of the case, either to the main issue or some collateral issue. Holz v. Commonwealth, 220 Va. 876 , 263 S.E.2d 426 (1980).

Defendant's perjury conviction was not upheld where the inquiry to which defendant falsely swore was not material to a proper matter of inquiry. Trotman v. Commonwealth, 10 Va. App. 403, 392 S.E.2d 685 (1990).

This section does not require the Commonwealth to establish that the false testimony was essential to the outcome of the case in order to prove that it was material. Rather, the testimony is material if it was relevant in the trial of the case, either to the main issue or some collateral issue. Donowa v. Commonwealth, No. 1579-95-2 (Ct. of Appeals May 28, 1996).

"Testimony is material if it is relevant to a main or collateral issue on trial," for purposes of this section. Ganzie v. Commonwealth, 24 Va. App. 422, 482 S.E.2d 863 (1997).

Defendant was properly convicted of perjury, as defendant's testimony at the trial of a friend who was a suspect in a murder investigation that defendant had not received a letter from the friend and had never before seen the letter from the friend addressed to him that the prosecuting attorney produced at the friend's trial was material because the letter contained statements indicating the friend's consciousness of guilt and, thus, was central to the issue of the friend's guilt or innocence. Fritter v. Commonwealth, 45 Va. App. 345, 610 S.E.2d 887, 2005 Va. App. LEXIS 124 (2005).

Multiple acts. - Separate false statements give rise to separate violations of this section; multiple acts of perjury can occur from a single occasion. Ganzie v. Commonwealth, 24 Va. App. 422, 482 S.E.2d 863 (1997).

Juror swearing falsely on voir dire commits perjury. - A circuit court has the right and power, on the trial of an indictment for felony, to compel a venireman or bystander called to serve as a juror on the trial, to be sworn on his voir dire, and to answer proper questions touching his fitness as a juror in the particular case, and the juror may be convicted of perjury because of false answers of his voir dire. Commonwealth v. Stockley, 37 Va. (10 Leigh) 678 (1840).

Corroboration. - While the code has never expressly required corroboration to sustain a perjury conviction, from an early date Virginia courts have imposed a corroboration requirement. Keffer v. Commonwealth, 12 Va. App. 545, 404 S.E.2d 745 (1991).

A perjury conviction under this section requires proof of falsity from the testimony of at least two witnesses or other corroborating evidence of falsity in the event the case is supported by the testimony of only one witness. Stewart v. Commonwealth, 22 Va. App. 117, 468 S.E.2d 126 (1996).

A detective's testimony that the defendant was driving a particular car in a particular location on a certain day was sufficiently corroborated so as to support a conviction for perjury based on the defendant's original statement that he was driving the car in a particular location on that day and his subsequent denial under oath that he made such statement as the defendant's original statement was an admission of such facts and Gibbs v. Commonwealth, No. 1117-98-3 (Ct. of Appeals Apr. 6, 1999).

Testimony of friend who was on trial and a detective that defendant talked to was sufficient to show that defendant committed perjury when he testified at the friend's trial that he had not received a letter from jail that the friend sent to him, which defendant subsequently turned over to the detective, as the testimony of the friend and detective was sufficient to satisfy the "two witness" rule necessary to sustain defendant's perjury conviction. Fritter v. Commonwealth, 45 Va. App. 345, 610 S.E.2d 887, 2005 Va. App. LEXIS 124 (2005).

Record contained insufficient evidence to provide the strong independent corroboration required to support defendant's conviction for perjury, as the scope of defendant's testimony at another individual's burglary trial supported the individual's false alibi merely by inference; even assuming that the individual's convictions were sufficiently independent of his testimony at defendant's perjury trial, the convictions did not provide the necessary strong corroboration. Cossitt-Manica v. Commonwealth, 65 Va. App. 394, 778 S.E.2d 513, 2015 Va. App. LEXIS 330 (2015).

Videotape evidence. - In a perjury case, the jury reasonably concluded a videotape of an interaction between a jail guard and defendant did not support defendant's testimony and allegation of an assault and battery committed by the guard. Thus, the statements contained in defendant's sworn complaint were false and willfully made concerning a material matter. Anderson v. Commonwealth, No. 0052-16-4, 2017 Va. App. LEXIS 114 (Apr. 25, 2017).

Harmless error in limiting cross-examination. - Defendant's convictions for obtaining $200 or more by false pretenses and giving material false testimony under oath were appropriate even though the trial court's limitation on cross-examination was erroneous because the error was harmless. The record contained extensive evidence impeaching defendant's testimony and establishing the falsified documentary evidence on other critical points and the attorney was not a witness to any of the evidence upon which the conviction for giving material false testimony was based. Lindsey v. Commonwealth,, 2011 Va. App. LEXIS 72 (Mar. 1, 2011).

Burden of proof. - Regarding the truthfulness of defendant's statements that on two different occasions he was at a hospital when he was supposed to be in court, the appellate court did not find that the circuit court's conclusions were plainly wrong or without supporting evidence. As such, the appellate court found that the evidence proved beyond a reasonable doubt that defendant perjured himself on the two dates charged. Winder v. Commonwealth, No. 1813-16-1, 2018 Va. App. LEXIS 28 (Feb. 6, 2018).

Burden on Commonwealth. - In a prosecution under this section, the burden was on the Commonwealth to prove beyond a reasonable doubt not only that the statements the accused made under oath were false, but that they were known by him to be false at the time. Rothfuss v. Commonwealth, 198 Va. 461 , 94 S.E.2d 532 (1956).

The Commonwealth must prove beyond a reasonable doubt, inter alia, that defendant willfully swore falsely. This burden includes not only a showing that the statements made under oath by the defendant were false, but were known by the accused to be false at the time. If the defendant believes the facts stated by him to be true, he may not properly be said to have willfully sworn falsely to such facts. Holz v. Commonwealth, 220 Va. 876 , 263 S.E.2d 426 (1980).

In order to obtain a conviction for perjury, the Commonwealth must prove that the defendant made a false statement under oath, that he did so willfully, and that the statement was material to an issue involved in the trial. Donowa v. Commonwealth, No. 1579-95-2 (Ct. of Appeals May 28, 1996).

Venue proper. - Because the General Assembly's broad grant of joint jurisdiction in the city's charter encompassed the authority exercised by the trial court in trying defendant for perjury, the Albemarle County Circuit Court was a proper venue for defendant's perjury trial. Gerald v. Commonwealth, No. 1967-15-2, 2016 Va. App. LEXIS 370 (Ct. of Appeals Dec. 27, 2016).

Proof of perjury. - Trial court's decision to convict defendant of perjury was not plainly wrong and was supported by competent evidence because an automobile accident victim's testimony established that defendant was driving the other vehicle involved in the accident at the time of the accident and the Commonwealth of Virginia introduced defendant's out of court confessions on two occasions to different officers whom defendant knew were investigating the accident. Gerald v. Commonwealth, No. 1931-15-2, 2016 Va. App. LEXIS 367 (Ct. of Appeals Dec. 27, 2016), aff'd, 295 Va. 469 , 813 S.E.2d 722 (2018).

Section does not apply to perjury before federal tribunals. - A witness who gives his testimony, pursuant to the Constitution and laws of the United States, in a case pending in a court or other judicial tribunal of the United States, whether he testifies in the presence of that tribunal, or before any magistrate or officer, either of the nation or of the state, designated by act of Congress for the purpose, is accountable for the truth of his testimony to the United States only, and cannot be punished by the laws of Virginia under this section. In re Loney, 134 U.S. 372, 10 S. Ct. 584, 33 L. Ed. 949 (1890).

False affidavit for polygraph examination not perjury. - An affidavit which was a condition imposed upon the defendant by the Commonwealth's attorney as a condition precedent to obtaining a polygraph examination requested by the defendant, was not one required by law but, instead, was a gratuitous one. Such an affidavit, however false it may be, cannot sustain a conviction for perjury under this section. Mendez v. Commonwealth, 220 Va. 97 , 255 S.E.2d 533 (1979).

Evidence of defendant swearing to co-applicant's age which was false. - Evidence showing that defendant was lawfully under oath and that he swore to the material fact of his co-applicant's age, which was falsely represented in the joint marriage application of the parties, was sufficient to establish defendant's guilt under this section. McKay v. Commonwealth, No. 1721-88-4 (Ct. of Appeals May 8, 1990).

Evidence of conflicting statements is insufficient to sustain conviction. - Statements made by a witness off the stand, which conflicted with his testimony, were insufficient to convict him of perjury. Schwartz v. Commonwealth, 68 Va. (27 Gratt.) 1025 (1876).

Evidence sufficient to prove perjury. - Evidence was sufficient to prove perjury because defendant knew that he was not a lawful resident in the country when he represented that he was one on a concealed handgun permit application; the record supported the reasonable inferences that defendant's application for permanent residence was proof of his knowledge of his continuing status as an illegal alien and, thus, that he was not a lawful resident, and that he knew of his status when he completed his permit application. Adjei v. Commonwealth, 63 Va. App. 727, 763 S.E.2d 225, 2014 Va. App. LEXIS 318 (2014).

Defendant was properly convicted of perjury because his denial, in the underlying criminal trial, of not being known by the name that a police officer knew him was a material issue in the case at bar, defense counsel conceded that identity was the unspoken element of every crime, defendant admitted that he was the person against whom certain warrants and capias were issued, and he stated, during the underlying trial, that the charges should have been brought against him under the name by which the officer knew him. Saunders v. Commonwealth, No. 1639-15-3, 2016 Va. App. LEXIS 299 (Ct. of Appeals Nov. 8, 2016).

Evidence was sufficient to convict defendant of perjury because she was under oath when she testified at the general district court trial; the materiality of her testimony was evident; and the Commonwealth satisfied its burden of establishing the falsity of defendant's statements as the victim's testimony established that defendant drove away from the scene of the accident, and defendant made out of court confessions that she drove the vehicle after the accident on two occasions to two different officers who she knew were investigating the case. Gerald v. Commonwealth, No. 1967-15-2, 2016 Va. App. LEXIS 370 (Ct. of Appeals Dec. 27, 2016).

Evidence was sufficient to find defendant guilty of perjury, stemming from testimony he gave during a larceny trial in which he was acquitted, because defendant was arrested on April 29, 2014, with the victim's dog in his car; defendant did not respond when asked by a detective when he found the victim's dog; and it was within the bounds of the evidence for the trial court to conclude that defendant did not fortuitously come into possession of the dog on February 9, 2014, when the victim first saw a man wearing a hoodie walking with a dog that resembled her dog, but rather knew where the dog was five days before when he testified that he had no information on where the dog was and that he had not seen the dog since September 6, 2013. Pijor v. Commonwealth, 294 Va. 502 , 808 S.E.2d 408, 2017 Va. LEXIS 196 (2017).

Circuit court's judgment finding defendant and codefendant guilty of perjury was not plainly wrong or without evidence to support it both of them stated shortly after an accident that defendant was driving, but in defense of the charges that they were driving while their licenses were suspended on the date of the accident, they both testified under oath in the general district court that they were not in fact driving; there was detailed evidence of their driving with reference to the accident. Gerald v. Commonwealth, 295 Va. 469 , 813 S.E.2d 722, 2018 Va. LEXIS 66 (2018), cert. denied, 139 S. Ct. 846, 202 L. Ed. 2d 613, 2019 U.S. LEXIS 387 (2019).

Ends of justice exception not applied. - Defendant's perjury conviction was affirmed where: (1) he was convicted under § 18.2-435 , but the parties and the trial court proceeded at trial and on appeal as if defendant had been convicted for perjury under § 18.2-434 ; (2) defendant's claim that there was not sufficient evidence to convict him of perjury because the evidence of falsity was uncorroborated was irrelevant as it was premised on the common-law rule that perjury required proof of the falsity from at least two witnesses or one witness and corroborating evidence that did not apply to perjury under § 18.2-435 ; and (3) although there was no indication that defendant ever testified under oath on more than one occasion, the appellate court refused to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18 sua sponte. Sutphin v. Commonwealth, 61 Va. App. 315, 734 S.E.2d 725, 2012 Va. App. LEXIS 405 (2012).

Because defendant failed to identify where the record contained affirmative evidence of innocence or lack of a criminal offense, the ends of justice exception was not met. Therefore, because defendant did not raise the argument to the trial court, and the ends of justice exception did not apply, the court did not consider her claim that the evidence was insufficient. Jordan v. Commonwealth, No. 0648-20-2, 2021 Va. App. LEXIS 31 (Mar. 2, 2021).

Collateral estoppel. - Commonwealth was not collaterally estopped from convicting defendant of perjury as the ultimate issue in the larceny and perjury cases was not the same because, although the ultimate issue of fact in the larceny trial was whether on September 6, 2013, defendant took the dog with the intent to steal him, the issue in the perjury case was whether defendant's statements that he had not seen the dog and had not received information about the dog's whereabouts since September 6, 2013 were false; and there was no indication in the record that the jury based its verdict in the larceny case on defendant's statements that he had not seen nor received any information about the dog. Pijor v. Commonwealth, 294 Va. 502 , 808 S.E.2d 408, 2017 Va. LEXIS 196 (2017).

Applied in Williams v. Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989); N. Va. Real Estate, Inc. v. Martins, 283 Va. 86 , 720 S.E.2d 121, 2012 Va. LEXIS 11 (2012).

CIRCUIT COURT OPINIONS

Knowledge of falsity must be proved. - While being examined under oath pursuant to § 8.01-358 , a juror had a duty to not willfully swear falsely in her responses to questions posed to her by the court and counsel during voir dire; however, the evidence was insufficient to establish that the juror swore falsely by her silence in response to questioning by the court. Lester v. Allied Concrete Co., 83 Va. Cir. 308, 2011 Va. Cir. LEXIS 245 (Charlottesville Sept. 6, 2011).

OPINIONS OF THE ATTORNEY GENERAL

Service on jury. - A person convicted of perjury may serve as a juror after his political rights have been restored by the governor. See opinion of Attorney General to The Honorable J. Jack Kennedy, Jr., Clerk of the Circuit Court, Wise County & City of Norton, 12-095, 2012 Va. AG LEXIS 42 (11/16/2012).

Hold public office. - A person convicted of perjury may seek election to public office after his political rights have been restored by the governor. See opinion of Attorney General to The Honorable Ronald K. Elkins, Commonwealth's Attorney, Wise County & City of Norton, 12-080, 2012 Va. AG LEXIS 41 (11/16/2012).

§ 18.2-435. Giving conflicting testimony on separate occasions as to same matter; indictment; sufficiency of evidence.

It shall likewise constitute perjury for any person, with the intent to testify falsely, to knowingly give testimony under oath as to any material matter or thing and subsequently to give conflicting testimony under oath as to the same matter or thing. In any indictment for such perjury, it shall be sufficient to allege the offense by stating that the person charged therewith did, knowingly and with the intent to testify falsely, on one occasion give testimony upon a certain matter and, on a subsequent occasion, give different testimony upon the same matter. Upon the trial on such indictment, it shall be sufficient to prove that the defendant, knowingly and with the intent to testify falsely, gave such differing testimony and that the differing testimony was given on two separate occasions.

(Code 1950, § 18.1-276; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury," see 44 Wash. & Lee L. Rev. 1257 (1988).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Indictments, Informations and Presentments, § 57; 14B M.J. Perjury, §§ 5, 8, 11.

CASE NOTES

The term, "give testimony," as used in this section encompasses any material declaration made under oath, whether ex parte or in an adversary proceeding subject to cross-examination. Scott v. Commonwealth, 14 Va. App. 294, 416 S.E.2d 47 (1992).

Burden to show that testimony was not conflicting. - Where the defendant testified at a criminal proceeding that he could not read, but subsequently denied at a child custody hearing that he had testified as such, the defendant bore the burden of producing some evidence to show that his testimony was not conflicting. Henson, Jr. v. Commonwealth, No. 1741-97-2 (Ct. of Appeals Dec. 22, 1998).

Knowing use of perjured testimony. - Although witness' testimony at defendant's trial partially conflicted with the testimony he gave at a co-defendant's trial, there was no evidence indicating the witness gave partially conflicting testimony with the intent to testify falsely, that the witness had any prior negative association with defendant, or had any other motive to testify falsely at defendant's trial, thus defendant's claim that the prosecutor made knowing use of perjured testimony was insufficient as a matter of law. Angelone v. Dabney, 263 Va. 323 , 560 S.E.2d 253, 2002 Va. LEXIS 43 (2002).

Conviction affirmed. - Defendant's perjury conviction was affirmed where: (1) he was convicted under § 18.2-435 , but the parties and the trial court proceeded at trial and on appeal as if defendant had been convicted for perjury under § 18.2-434 ; (2) defendant's claim that there was not sufficient evidence to convict him of perjury because the evidence of falsity was uncorroborated was irrelevant as it was premised on the common-law rule that perjury required proof of the falsity from at least two witnesses or one witness and corroborating evidence that did not apply to perjury under § 18.2-435 ; and (3) although there was no indication that defendant ever testified under oath on more than one occasion, the appellate court refused to apply the ends of justice exception to Va. Sup. Ct. R. 5A:18 sua sponte. Sutphin v. Commonwealth, 61 Va. App. 315, 734 S.E.2d 725, 2012 Va. App. LEXIS 405 (2012).

Evidence was sufficient to support defendant's conviction for felony perjury because defendant gave conflicting testimony at two trials, and his testimony regarding selling the marijuana was relevant to establishing his defense of necessity or self-defense. Atkins v. Commonwealth,, 2019 Va. App. LEXIS 51 (Mar. 5, 2019).

Applied in Williams v. Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989).

§ 18.2-436. Inducing another to give false testimony; sufficiency of evidence.

If any person procure or induce another to commit perjury or to give false testimony under oath in violation of any provision of this article, he shall be punished as prescribed in § 18.2-434 .

In any prosecution under this section, it shall be sufficient to prove that the person alleged to have given false testimony shall have been procured, induced, counselled or advised to give such testimony by the party charged.

(Code 1950, § 18.1-277; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury," see 44 Wash. & Lee L. Rev. 1257 (1988).

CASE NOTES

Sufficiency of the evidence. - Trial court committed reversible error in ruling that prosecutor had laid proper foundation to admit into evidence witness's statement under the past recorded recollection exception where witness himself testified that his memory was not good more than one or two days past the happening of an event. Scearce v. Commonwealth, 38 Va. App. 98, 561 S.E.2d 777, 2002 Va. App. LEXIS 215 (2002).

Defendant's convictions for suborning perjury were reversed because the evidence failed to establish that defendant ever communicated to the two witnesses his "plan" for them to commit perjury; there was no causal connection between letters defendant wrote and the witnesses' alleged perjury because the letters were intercepted at a jail, and there was no evidence establishing the recipient's identity or relation to the witnesses. Smith v. Virginia, No. 0099-18-1, 2019 Va. App. LEXIS 119 (May 14, 2019).

§ 18.2-437. Immunity of witnesses.

No witness called by the attorney for the Commonwealth, or by the court, and required to give evidence for the prosecution in a proceeding under this article shall ever be proceeded against for the offense concerning which he testified. Such witness shall be compelled to testify and may be punished for contempt for refusing to do so.

(Code 1950, § 18.1-277; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For note, "Lying on the Stand Won't Cost You a Dime: Should Courts Recognize a Civil Action in Tort for Perjury," see 44 Wash. & Lee L. Rev. 1257 (1988).

Article 2. Bribery and Related Offenses.

§ 18.2-438. Bribes to officers or candidates for office.

If any person corruptly give, offer or promise to any executive, legislative or judicial officer, sheriff or police officer, or to any candidate for such office, either before or after he shall have taken his seat, any gift or gratuity, with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding, which is or may be then pending, or may by law come or be brought before him in his official capacity, he shall be guilty of a Class 4 felony and shall forfeit to the Commonwealth any such gift or gratuity given. This section shall also apply to a resident of this Commonwealth who, while temporarily absent therefrom for that purpose, shall make such gift, offer or promise.

(Code 1950, § 18.1-278; 1960, c. 358; 1975, cc. 14, 15; 1978, c. 123.)

Cross references. - As to bribery of participant in game, contest or sport, see § 18.2-442 .

As to solicitation or acceptance of bribe by participant in game or by coach, etc., see § 18.2-443 .

As to this section in relation to the Virginia Public Procurement Act, see § 2.2-4367 .

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bribery, §§ 2, 4-6.

CASE NOTES

This section is not invalid because it does not in terms require that one accused thereunder have knowledge that the bribe was offered to one in his official capacity. Livingston v. Commonwealth, 184 Va. 830 , 36 S.E.2d 561 (1946).

Bribery defined. - Bribery is the offering, giving, receiving, or soliciting of anything of value with intent to influence the recipient's action as a public official. Ford v. Commonwealth, 177 Va. 889 , 15 S.E.2d 50 (1941).

The gist of the offense of bribery is the criminal intent to undermine the proper and orderly administration of justice. Ford v. Commonwealth, 177 Va. 889 , 15 S.E.2d 50 (1941).

Offense is complete with offer or promise of bribe. - Under this section, an attempt to corrupt, evidenced by an offer or promise of a gift, constitutes bribery on the part of the offeror or promisor as fully and completely as if a corrupt gift had been made and accepted. Ford v. Commonwealth, 177 Va. 889 , 15 S.E.2d 50 (1941).

Section embraces offer to pay for future protection. - In a prosecution for bribery, a constable testified that the accused had offered him six dollars a week if he would give her protection in the sale of whiskey. The accused contended that this section did not embrace an offer to pay for protection for an offense to be thereafter committed, or to pay an officer for his failure to perform his duty in the future. It was held that the comprehensive and inclusive language of this section negatived the contention of the accused. Ford v. Commonwealth, 177 Va. 889 , 15 S.E.2d 50 (1941).

Indictment need not set out amount of bribe. - An indictment for attempting to bribe a deputy sheriff to summon designated persons upon a jury to try a felony was held to be good, though the amount of the bribe was not set forth, and though the offense is not an offense at common law. Commonwealth v. Chapman, 3 Va. (1 Va. Cas.) 138 (1803).

Nor state that accused had knowledge of official character of officer. - An indictment need not state that the accused had knowledge of the official character of the person to whom the bribe was offered, where the indictment necessarily implied that the accused was being charged with knowledge that he was offering a bribe to a police officer. Livingston v. Commonwealth, 184 Va. 830 , 36 S.E.2d 561 (1946).

And it need not be in identical words of this section. - An indictment was held sufficient although it was not in the identical words of this section, as it gave the accused notice of the nature and character of the offense charged so that he could make his defense. Livingston v. Commonwealth, 184 Va. 830 , 36 S.E.2d 561 (1946).

Evidence. - On an indictment for attempting to bribe an officer by offering to pay him a sum of money to release the accused and drop a proceeding against her for maintaining a disorderly house, it was not admissible to show that a young girl had been given whiskey to drink, and had had intercourse with a man at the house of the accused the previous night. Such evidence was entirely collateral to, and had no connection with, the alleged attempt to bribe the officer. Haynes v. Commonwealth, 104 Va. 854 , 52 S.E. 358 (1905).

CIRCUIT COURT OPINIONS

Offer of $50,000 to drop out of political race not bribery. - Political candidate's claims of libel arising out of a rival's alleged accusation of bribery were subject to demurrer because the statement made, that the candidate offered a rival $50,000 to drop out of the race, did not constitute an allegation that the candidate gave money to influence her as a candidate in any official governmental decision. Borgenicht v. Norment, 75 Va. Cir. 382, 2008 Va. Cir. LEXIS 269 (Richmond Aug. 19, 2008).

§ 18.2-439. Acceptance of bribe by officer or candidate.

If any executive, legislative or judicial officer, sheriff or police officer, or any candidate for such office, accept in this Commonwealth, or if, being resident in this Commonwealth, such officer or candidate shall go out of this Commonwealth and accept and afterwards return to and reside in this Commonwealth, any gift or gratuity or any promise to make a gift or do any act beneficial to such officer or candidate under an agreement, or with an understanding, that his vote, opinion or judgment shall be given on any particular side of any question, cause or proceeding which is or may be by law brought before him in his official capacity or that in such capacity he shall make any particular nomination or appointment or take or fail to take any particular action or perform any duty required by law, he shall be guilty of a Class 4 felony and shall forfeit his office and be forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia. The word candidate as used in this section and § 18.2-438 , shall mean anyone who has filed his candidacy with the appropriate electoral official or who is a candidate as defined in § 24.2-101 .

(Code 1950, § 18.1-279; 1960, c. 358; 1975, cc. 14, 15.)

Editor's note. - At the direction of the Virginia Code Commission, " § 24.2-101 " was substituted for "subdivision (2) of § 24.1-1 ."

§ 18.2-440. Bribes to officers to prevent service of process.

If any officer authorized to serve legal process receive any money or other thing of value for omitting or delaying to perform any duty pertaining to his office, he shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 18.1-281; 1960, c. 358; 1975, cc. 14, 15.)

CASE NOTES

The offense punishable by this section is the omitting or delaying to perform any duty, etc., not the doing of any act. Old v. Commonwealth, 59 Va. (18 Gratt.) 915 (1867).

And not merely the duty to serve legal process. - This section punishes the omitting or delaying to perform any duty pertaining to the office of one who is authorized to serve legal process, and not merely the omitting or delaying to perform the duty to serve legal process. Old v. Commonwealth, 59 Va. (18 Gratt.) 915 (1867).

The presentment should follow the terms of this section, or must use terms which show conclusively, or beyond any rational doubt to the contrary, that the accused is guilty of the offense described in this section. Unless this is done, the addition that "so the accused did receive money for omitting and delaying to perform a duty pertaining to his office of constable," etc., will not cure the defect. Old v. Commonwealth, 59 Va. (18 Gratt.) 915 (1867).

The natural and proper mode of charging a violation of this section is to aver that the accused was an officer authorized to serve legal process, as for example, a constable; that while he was such officer, it became his duty, as such, to perform a certain act, as for example, to warrant for a claim entrusted to him for that purpose and recoverable by warrant, or to serve a warrant which had been issued on such claim, and placed in his hands for execution, etc., and that he unlawfully received a certain sum of money, or a certain other thing of value, for omitting or delaying to perform his said duty. While this would be the natural and proper mode of making the charge, and would conform to the very terms of this section, it might be sufficiently made in other terms which are substantially the same with those used in this section or which show conclusively or beyond a rational doubt to the contrary, that the accused is guilty of the offense described in this section at least such a defect would be cured by the verdict. Old v. Commonwealth, 59 Va. (18 Gratt.) 915 (1867).

§ 18.2-441. Giving bribes to, or receiving bribes by, commissioners, jurors, etc.

If any person give, offer or promise to give any money or other thing of value to a commissioner appointed by a court, auditor, arbitrator, umpire or juror (although not impaneled), with intent to bias his opinion or influence his decision in relation to any matter in which he is acting or is to act, or if any such commissioner, auditor, arbitrator, umpire or juror corruptly take or receive such money or other thing, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-282; 1960, c. 358; 1975, cc. 14, 15.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 34 Alternatives to Trial: Arbitration and Award and Dispute Resolution Proceedings. § 34.02 Arbitration and Award. Friend.

§ 18.2-441.1. Bribery of witnesses.

If any person give, offer, or promise to give any money or other thing of value to anyone with intent to prevent such person from testifying as a witness in any civil or criminal proceeding or with intent to cause that person to testify falsely, he shall be guilty of a Class 6 felony.

(1978, c. 612.)

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 56.

CASE NOTES

Statement did not constitute bribery. - Defendant's statement that he would give the witness $500 to "squash" the case did not constitute a bribe under § 18.2-441.1 as neither the statement, nor the surrounding circumstances, demonstrated anything more than that he offered the witness money in an attempt to persuade her to dismiss the case. Law v. Commonwealth, 39 Va. App. 154, 571 S.E.2d 893, 2002 Va. App. LEXIS 671 (2002).

§ 18.2-442. Bribery of participants in games, contests or sports.

Whoever gives, promises or offers any valuable thing to any professional or amateur participant or prospective participant in any game, contest or sport, with intent to influence him to lose or try to lose or cause to be lost or to limit his or his team's margin of victory in any professional or amateur game, contest or sport in which such participant is taking part or expects to take part, or has any duty or connection therewith, shall be guilty of a Class 5 felony.

(Code 1950, § 18.1-402; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-443. Solicitation or acceptance of bribes by participants or by managers, coaches or trainers.

A professional or amateur participant or prospective participant in any game, contest or sport or a manager, coach or trainer of any team or individual participant or prospective participant in any such game, contest or sport, who solicits or accepts any valuable thing to influence him to lose or try to lose or cause to be lost or to limit his or his team's margin of victory in any game, contest or sport in which he is taking part, or expects to take part, or has any duty or connection therewith, shall be guilty of a Class 5 felony.

(Code 1950, § 18.1-403; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-444. Corruptly influencing, or being influenced as, agents, etc.

  1. Any person who gives, offers or promises to an agent, employee or servant any gift or gratuity whatever, without the knowledge and consent of the principal, employer or master of such agent, employee or servant, with intent to influence his action to the prejudice of his principal's, employer's or master's business; or
  2. An agent, employee or servant who, without the knowledge and consent of his principal, employer or master requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself, under an agreement or with an understanding that he shall act in any particular manner as to his principal's, employer's or master's business; or
  3. An agent, employee or servant who, being authorized to procure materials, supplies or other articles either by purchase or contract for his principal, employer or master or to employ service or labor for his principal, employer or master receives directly or indirectly, for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who renders such service or labor; or
  4. Any person who gives or offers such an agent, employee or servant such commission, discount or bonus;

    shall be guilty of a Class 3 misdemeanor.

    (Code 1950, § 18.1-404; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article, "Commercial Bribery: Choice and Measurement Within a Remedies Smorgasbord," see 74 Wash & Lee L. Rev. 369 (2017).

CIRCUIT COURT OPINIONS

Conspiracy. - Investor's allegation for statutory conspiracy under §§ 18.2-444 and 18.2-500 was defective because: (1) there was no allegation of malice; and (2) an allegation of conspiracy, whether criminal or civil, had to at least allege an unlawful act or an unlawful purpose, and the investor failed to do so. Furthermore, a conspiracy merely to breach a contract that did not involve an independent duty arising outside the contract was insufficient to establish a civil claim under § 18.2-500 . Schur v. Sprenkle, 84 Va. Cir. 418, 2012 Va. Cir. LEXIS 132 (Richmond Apr. 11, 2012).

§ 18.2-444.1.

Reserved.

§ 18.2-444.2. Giving or accepting a fee or gift for purposes of influencing decisions of financial institution.

  1. No officer, director, or employee of a financial institution or subsidiary, affiliate or holding company thereof, or stockholder owning ten percent or more of the issued capital stock of any such financial institution or holding company, shall accept, receive or acquire any fee, gift, property interest, or other thing of value with the intent to influence the decision of the financial institution, subsidiary, affiliate or holding company with regard to any extension of credit, investment, or purchase or sale of assets by such financial institution, subsidiary, affiliate or holding company.  No person shall give, provide or cause to be transferred to any such officer, director, employee or stockholder, any fee, gift, property interest or other thing of value with the intent to influence the decision of the financial institution, subsidiary, affiliate or holding company with regard to any extension of credit, investment or purchase or sale of assets by the financial institution, subsidiary, affiliate or holding company.  The foregoing provisions shall not apply to salary, wages, fees or other compensation or consideration paid by, or expenses paid or reimbursed by, such financial institution, subsidiary, affiliate or holding company.  The violation of this section shall be punishable as a Class 6 felony.
  2. The provisions of this section shall not apply to any such officer, director, employee or stockholder who is a member of a firm of licensed brokers, in buying for or from or selling to, or for the account of, the financial institution, in the ordinary course of business, real estate or bonds, stocks, or other evidences of debt at the usual rate of commission for such service, if the officer, director, employee or stockholder notifies the board of directors of the financial institution, its cashier or secretary, in writing, that such services will be rendered for compensation prior to the rendition of the services or within five business days following the commencement of the services. If a continuing business relationship exists, an annual disclosure may be made.
  3. The provisions of this section shall not apply to fees paid to any such officer, director, employee, or stockholder who renders services to a borrower outside of his relationship with the financial institution in connection with the preparation of a loan application, or in connection with the closing of a loan, in evaluating the security or affecting a lien on the collateral, where the fact of rendition of such services for compensation is disclosed in writing to the board of directors of the financial institution, or its cashier or secretary, prior to the time such services are rendered or within five business days following the commencement of the services.  If a continuing business relationship exists, an annual disclosure may be made.

    (Code 1950, § 6.1-121; 1966, c. 584; 1981, c. 339; 1991, c. 501; 1992, c. 318.)

§ 18.2-445. Immunity of witnesses.

No witness called by the court or attorney for the Commonwealth and giving evidence for the prosecution, either before the grand jury or the court in any prosecution, under this article shall ever be proceeded against for any offense of giving, or offering to give, or accepting a bribe committed by him at the time and place indicated in such prosecution; but such witness shall be compelled to testify, and for refusing to answer questions may, by the court, be punished for contempt.

(Code 1950, §§ 18.1-280, 18.1-405; 1960, c. 358; 1975, cc. 14, 15.)

Article 3. Bribery of Public Servants and Party Officials.

§ 18.2-446. Definitions.

The following words and phrases when used in this article shall have the meanings respectively ascribed to them in this section except where the context clearly requires a different meaning:

  1. "Benefits" means a gain or advantage, or anything regarded by the beneficiary as a gain or advantage, including a benefit to any other person or entity in whose welfare he is interested, but shall not mean an advantage promised generally to a group or class of voters as a consequence of public measures which a candidate engages to support or oppose;
  2. "Party official" means a person who holds an elective or appointive post in a political party in the United States by virtue of which he directs or conducts, or participates in directing or conducting party affairs at any level of responsibility;
  3. "Pecuniary benefit" means a benefit in the form of money, property, commercial interest or anything else the primary significance of which is economic gain;
  4. "Public servant" means any officer or employee of this Commonwealth or any political subdivision thereof, including members of the General Assembly and judges, and any person participating as a juror, advisor, consultant or otherwise, in performing any governmental function; but the term does not include witnesses;
  5. "Administrative proceeding" means any proceeding other than a judicial proceeding, the outcome of which is required to be based on a record or documentation prescribed by law including specifically, but not limited to, proceedings before a planning commission and board of zoning appeals.

    (Code 1950, § 18.1-282.1; 1968, c. 552; 1975, cc. 14, 15.)

Cross references. - As to this section in relation to the Virginia Public Procurement Act, see § 2.2-4367 .

Law review. - For article on the law of inchoate crimes, see 59 Va. L. Rev. 1235 (1973).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bribery, § 5.

§ 18.2-447. When person guilty of bribery.

A person shall be guilty of bribery under the provisions of this article:

  1. If he offers, confers or agrees to confer upon another (a) any pecuniary benefit as consideration for or to obtain or influence the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official, or (b) any benefit as consideration for or to obtain or influence either the recipient's decision, opinion, recommendation, vote or other exercise of official discretion in a judicial or administrative proceeding or the recipient's violation of a known legal duty as a public servant or party official; or
  2. If he accepts or agrees to accept from another (a) any pecuniary benefit offered, conferred or agreed to be conferred as consideration for or to obtain or influence the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official, or (b) any benefit offered, conferred or agreed to be conferred as consideration for or to obtain or influence either the recipient's decision, opinion, recommendation, vote or other exercise of official discretion in a judicial or administrative proceeding or the recipient's violation of a known legal duty as a public servant or party official; or
  3. If he solicits from another (a) any pecuniary benefit or promise of pecuniary benefit as consideration for or in exchange for his decision, opinion, recommendation, vote or other exercise of discretion as a public servant or party official, or (b) any benefit or promise of benefit as consideration for or in exchange for his decision, opinion, recommendation, vote or other exercise of official discretion in a judicial or administrative proceeding or his violation of a known legal duty as a public servant or party official.

    (Code 1950, § 18.1-282.2; 1968, c. 552; 1975, cc. 14, 15.)

CASE NOTES

Willingness to pay money implied through another. - Where the evidence showed that the defendant, through another, implied a willingness to pay money to a corrections officer to induce him to change his testimony in a pending marijuana case, the evidence was sufficient to sustain a bribery conviction even though no specific sum was ever mentioned. Mendez v. Commonwealth, 220 Va. 97 , 255 S.E.2d 533 (1979).

§ 18.2-448. Certain matters not to constitute defenses.

It shall be no defense to any prosecution under § 18.2-447 that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason. Also it shall be no defense to a prosecution under § 18.2-447 that a resident of this Commonwealth charged with committing an act of bribery was temporarily absent from this Commonwealth at the time such act was committed.

(Code 1950, § 18.1-282.3; 1968, c. 552; 1975, cc. 14, 15.)

§ 18.2-449. Punishment.

Any person found guilty of bribery under the provisions of this article shall be guilty of a Class 4 felony, and if such person be a public servant he shall in addition forfeit his public office and shall be forever incapable of holding any public office in this Commonwealth.

(Code 1950, § 18.1-282.4; 1968, c. 552; 1975, cc. 14, 15.)

Law review. - For article on the law of inchoate crimes, see 59 Va. L. Rev. 1235 (1973).

§ 18.2-450. Immunity of witnesses.

No witness called by the court or attorney for the Commonwealth and giving evidence for the prosecution, either before the grand jury or the court in any prosecution under this article shall ever be proceeded against for any offense of giving, or offering to give, or accepting a bribe committed by him at the time and place indicated in such prosecution; but such witness shall be compelled to testify, and for refusing to answer questions, may by the court, be punished for contempt.

(Code 1950, § 18.1-282.3; 1968, c. 552; 1975, cc. 14, 15.)

Article 4. Barratry.

§ 18.2-451. Definitions; application and construction of article.

  1. "Barratry" is the offense of stirring up litigation.
  2. A "barrator" is an individual, partnership, association or corporation who or which stirs up litigation.
  3. "Stirring up litigation" means instigating or attempting to instigate a person or persons to institute a suit at law or equity.
  4. "Instigating" means bringing it about that all or part of the expenses of the litigation are paid by the barrator or by a person or persons (other than the plaintiffs) acting in concert with the barrator, unless the instigation is justified.
  5. "Justified" means that the instigator is related by blood or marriage to the plaintiff whom he instigates, or that the instigator is entitled by law to share with the plaintiff in money or property that is the subject of the litigation or that the instigator has a direct interest in the subject matter of the litigation or occupies a position of trust in relation to the plaintiff; or that the instigator is acting on behalf of a duly constituted legal aid society approved by the Virginia State Bar which offers advice or assistance in all kinds of legal matters to all members of the public who come to it for advice or assistance and are unable because of poverty to pay legal fees.
  6. "Direct interest" means a personal right or a pecuniary right or liability.

    This article shall not be applicable to attorneys who are parties to contingent fee contracts with their clients where the attorney does not protect the client from payment of the costs and expense of litigation, nor shall this article apply to any matter involving annexation, zoning, bond issues, or the holding or results of any election or referendum, nor shall this article apply to suits pertaining to or affecting possession of or title to real or personal property, regardless of ownership, nor shall this article apply to suits involving the legality of assessment or collection of taxes or the rates thereof, nor shall this article apply to suits involving rates or charges or services by common carriers or public utilities, nor shall this article apply to criminal prosecutions, nor to the payment of attorneys by legal aid societies approved by the Virginia State Bar, nor to proceedings to abate nuisances. Nothing herein shall be construed to be in derogation of the constitutional rights of real parties in interest to employ counsel or to prosecute any available legal remedy under the laws of this Commonwealth.

    (Code 1950, § 18.1-388; 1960, c. 358; 1975, cc. 14, 15.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 15 Sanctions. § 15.08 Sanctions Against Attorneys. Friend.

CASE NOTES

Legislative committee. - As to powers of legislative committee, created by Acts 1956, Ex. Sess., c. 34, to investigate laws relating to administration of justice with special reference to promotion or support of litigation by persons not parties thereto, see NAACP v. Committee on Offenses Against Admin. of Justice, 199 Va. 665 , 101 S.E.2d 631 (1958).

Constitutionality of article. - This article was held to violate the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution in NAACP v. Patty , 159 F. Supp. 503 (E.D. Va. 1958). This decision was reversed by the United States Supreme Court, on the ground that the federal district court should have abstained from deciding the merits of the issues tendered it, so as to afford the Virginia courts a reasonable opportunity to construe the statutes in question. Harrison v. NAACP, 360 U.S. 167, 79 S. Ct. 1025, 3 L. Ed. 2d 1152 (1959).

§ 18.2-452. Barratry unlawful.

Any person, if an individual, who shall engage in barratry shall be guilty of a Class 1 misdemeanor; and if a corporation, may be fined not more than $10,000. If the corporation be a foreign corporation, its certificate of authority to transact business in Virginia shall be revoked by the State Corporation Commission.

(Code 1950, §§ 18.1-389, 18.1-390; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-453. Aiders and abettors.

A person who aids and abets a barrator by giving money or rendering services to or for the use or benefit of the barrator for committing barratry shall be guilty of barratry and punished as provided in § 18.2-452 .

(Code 1950, § 18.1-391; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-454. Enjoining barratry.

Suits to enjoin barratry may be brought by the Attorney General or the attorney for the Commonwealth in the appropriate circuit court.

(Code 1950, § 18.1-392; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-455. Unprofessional conduct; revocation of license.

Conduct that is made illegal by this article on the part of an attorney at law or any person holding license from the Commonwealth to engage in a profession is unprofessional conduct. Upon hearing pursuant to the provisions of § 54.1-3935 , or other statute applicable to the profession concerned, if the defendant be found guilty of barratry, his license to practice law or any other profession shall be revoked for such period as provided by law.

(Code 1950, § 18.1-393; 1960, c. 358; 1975, cc. 14, 15.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 15 Sanctions. § 15.08 Sanctions Against Attorneys. Friend.

Article 5. Contempt of Court.

§ 18.2-456. Cases in which courts and judges may punish summarily for contempt.

  1. The courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases:
    1. Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;
    2. Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness, or party going to, attending, or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court;
    3. Vile, contemptuous, or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;
    4. Misbehavior of an officer of the court in his official character;
    5. Disobedience or resistance of an officer of the court, juror, witness, or other person to any lawful process, judgment, decree, or order of the court; and
    6. Willful failure to appear before any court or judicial officer as required after having been charged with a felony offense or misdemeanor offense or released on a summons pursuant to § 19.2-73 or 19.2-74 .
  2. The judge shall indicate, in writing, under which subdivision in subsection A a person is being charged and punished for contempt.
  3. Nothing in subdivision A 6 shall be construed to prohibit prosecution under § 19.2-128 . (Code 1950, § 18.1-292; 1960, c. 358; 1975, cc. 14, 15; 2019, c. 708.)

Cross references. - As to refusal of witness to attend or to testify before court in criminal case, see §§ 18.2-445 , 19.2-253 .

As to limitation on fine and imprisonment unless jury be impaneled, see § 18.2-457 .

As to power of State Corporation Commission to punish for contempt, see § 12.1-34 .

As to enforcing certification of examination and recognizance to clerk of court by contempt, see § 19.2-190 .

As to writ of error to judgment for contempt, see § 19.2-318 .

As to punishment as for contempt where defendant fails to pay fine or installment thereof, see § 19.2-358 .

As to enforcement by contempt of temporary orders for support in domestic relations court, see § 20-71 .

As to power to compel witnesses to testify before fire marshal, see § 27-32 .

As to contempt proceedings for violation of injunction against disorderly house, see §§ 48-10 , 48-11 .

As to contempt for waste in violation of order during pendency of suit, see § 8.01-178.4 .

As to constitutional provision allowing legislature to regulate right of courts to punish for contempt, see Va. Const., Art. IV, § 14.

The 2019 amendments. - The 2019 amendment by c. 708 designated the existing provisions as subsection A; added subdivision A 6 and subsections B and C; and made stylistic changes.

Law review. - For note on contempt by publication and the limitations on indirect contempt of court, see 48 Va. L. Rev. 556 (1962). For case note on contempt, see 49 Va. L. Rev. 341 (1963). For comment, "Lack of Due Process in Virginia Contempt Proceeding for Failure to Comply With Order for Support and Alimony," see 4 U. Rich. L. Rev. 128 (1969). For survey of Virginia law on practice and pleading for the year 1973-1974, see 60 Va. L. Rev. 1572 (1974).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 9 Discovery. §§ 9.08, 9.11. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 15 Sanctions § 15.07 Failure to Obey Summons or Other Process.

Virginia Forms (Matthew Bender). No. 2-1414 Order Against a Witness to Show Cause Why a Fine for Contempt Should Not Be Imposed, et seq.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Contempt, §§ 2, 4-6, 8, 13, 15, 22, 27, 30; 6A M.J. Discovery, § 36; 9A M.J. Grand Jury, § 16.

CASE NOTES

I. GENERAL CONSIDERATION.

This section is constitutional. It is a reasonable regulation of the exercise by the courts of the power to punish for contempt. Yoder v. Commonwealth, 107 Va. 823 , 57 S.E. 581 (1907); Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352 (1943).

As is subdivision (4). - In the context of lawyers, subdivision (4) is sufficiently definite to provide the notice requisite to constitutionality under the due process clause. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

And subdivision (5). - There is nothing unconstitutionally vague about the language of subdivision (5). Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Classes of contempt. - Proceedings for contempt of court are of two classes, - those prosecuted to preserve the power and vindicate the dignity of the court and those to preserve and enforce the rights of private parties. The former are criminal and punitive in their nature; the latter are civil, remedial and coercive in their nature, and the parties chiefly interested in their conduct and prosecution are those individuals for the enforcement of whose private rights and remedies the original suit was instituted. Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth ex rel. Va. Ferry Corp., 193 Va. 773 , 71 S.E.2d 159 (1952); Holt v. Commonwealth, 205 Va. 332 , 136 S.E.2d 809 (1964), rev'd on other grounds, 381 U.S. 131, 85 S. Ct. 1375, 14 L. Ed. 2d 290 (1965).

A contempt of court is in the nature of a criminal offense, and the proceeding for its punishment is criminal in its character. B & O R. R. v. City of Wheeling, 54 Va. (13 Gratt.) 40 (1855).

The purpose of a civil contempt proceeding is to procure the imposition of a punishment, which will afford remedial relief to an injured party, and in appropriate cases to preserve and enforce the rights and administer the remedies to which the court has found the persons for whose protection an injunction was granted to be entitled, and to require the violator of an injunction to restore the status quo as far as may be possible. French v. Town of Clintwood ex rel. Johnson, 203 Va. 562 , 125 S.E.2d 798 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 510 (1963).

Common-law contempt not bound within statutory sentencing guidelines. - Attorney's scheduling of various matters in different courts on the same day, and then his failure to call one of the courts to report that he would be tardy, was found to be sufficient to support the court's finding that he was guilty of common-law indirect criminal contempt; the court was not obligated to sentence him within the limits of §§ 18.2-456 and 18.2-457 because he was not charged with summary or direct contempt, and he had a plenary hearing prior to being found guilty. Robinson v. Commonwealth, 41 Va. App. 137, 583 S.E.2d 60, 2003 Va. App. LEXIS 397 (2003).

Contempt as a criminal offense. - Trial court did not err by finding that defendant was charged with a criminal offense at the point of his initial arrest, and therefore his conviction for escape from custody conviction was affirmed, because his charge of criminal contempt was a criminal offense, as the issuance of the capias was directly related to his failure to comply with the conditions imposed upon him arising from his underlying assault and battery case, formal proceedings for the assault and battery had not been concluded when defendant escaped from the officer's custody, and the officer knew of defendant's outstanding warrant and attempted to arrest him. Lopez v. Commonwealth,, 2021 Va. App. LEXIS 30 (Mar. 2, 2021).

Necessary adjuncts to administration of justice. - The dignity of the courts and the duty of the citizens to respect them are necessary adjuncts to the administration of justice. Salyer v. Commonwealth, 209 Va. 662 , 166 S.E.2d 110 (1969).

Scope of authority of Workers' Compensation Commission. - Workers' Compensation Commission has the same authority as a court to punish for noncompliance with its discovery orders and it has the inherent authority to strike a party's defenses for failure to comply with a discovery order. Jeff Coal, Inc. v. Phillips, 16 Va. App. 271, 430 S.E.2d 712 (1993).

Virginia Workers' Compensation Commission abused its discretion in assessing 34 separate contempt fines for a professional employer organization's failure to appear at a show cause hearing, one for each of its 34 client companies, as there was no statute or rule that vested the Commission with the authority to summarily divide one case into 34. Cura Group, Inc. v. Va. Workers' Comp. Comm'n, 45 Va. App. 559, 612 S.E.2d 735 (2005).

Applied in Davis v. Commonwealth, 219 Va. 395 , 247 S.E.2d 681 (1978); Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209, 2001 Va. App. LEXIS 262 (2001).

II. POWER OF COURTS.
A. IN GENERAL.

The power to punish for contempt is inherent in the nature and constitution of a court. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899); Burdett v. Commonwealth, 103 Va. 838 , 48 S.E. 878 (1904); Bryant v. Commonwealth, 198 Va. 148 , 93 S.E.2d 130 (1956); French v. Town of Clintwood ex rel. Johnson, 203 Va. 562 , 125 S.E.2d 798 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 510 (1963).

The power to fine and imprison for contempt is incident to every court of record. The courts ex necessitate rei, have the power of protecting the administration of justice, with a promptitude calculated to meet the exigency of the particular case. Board of Supvrs. v. Bazile, 195 Va. 739 , 80 S.E.2d 566 (1954).

A court is invested with power to punish for contempt, both by the inherent nature and constitution of the court and by this section. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).

Sentence and injunction imposed on a property owner for violating a Montgomery County Zoning Ordinance, which ordered defendant to clean up a defined area of his property by a specific deadline, ultimately derived from subdivision A 5 of § 15.2-2286 ; as the mandatory injunction was valid, the trial court had the inherent, discretionary authority to fashion reasonable remedial sanctions as punishment after finding defendant in contempt for failing to comply with the injunction, which allowed a county to enter on defendant's property, to abate the zoning violation, and to impose a lien on the property for the costs incurred. Epperly v. County of Montgomery, 46 Va. App. 546, 620 S.E.2d 125, 2005 Va. App. LEXIS 373 (2005).

The power to punish for contempt is discretionary and not mandatory under this section. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).

The word "summarily" used in this section does not refer to the time the adjudication of contempt must be made, but to the form of procedure which dispenses with any further proof or examination and a formal hearing. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).

The court's power to punish a contemner is not lost by a short delay during the course of the trial. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).

A delay of five days before advising defendant that he is being held in contempt for violating a ruling is not in itself prejudicial to the defendant. Higginbotham v. Commonwealth, 206 Va. 291 , 142 S.E.2d 746 (1965).

The fact that a decree is final does not render the court powerless to enforce it by contempt proceedings. Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 (1918).

Power to punish violation of verbal command. - A trial court has the authority to hold an offending party in contempt for acting in bad faith or for willful disobedience of its order, and this principle applies to the oral orders, commands and directions of the court as well as written orders. Lalik v. Commonwealth, No. 1855-99-3, 2000 Va. App. LEXIS 348 (Ct. of Appeals May 9, 2000).

Trial court's power does not include power to impose attorneys' fees and costs as a sanction. - In the absence of authority granted by a statute, a trial court's inherent power to supervise the conduct of attorneys practicing before it and to discipline an attorney who engages in misconduct does not include the power to impose as a sanction an award of attorneys' fees and costs to the opposing parties. If an attorney's conduct is disruptive of court processes or disrespectful of the court itself, there is ample power to punish the misconduct as contempt. Nusbaum v. Berlin, 273 Va. 385 , 641 S.E.2d 494, 2007 Va. LEXIS 26 (2007).

B. ABRIDGEMENT BY LEGISLATURE.

The distinction between legislative and constitutional courts should be made in the cases covered by this section. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899); Burdett v. Commonwealth, 103 Va. 838 , 48 S.E. 878 (1904).

Legislature does not have absolute power over subject. - The constitutional provision, Va. Const., Art. IV, § 14, that the General Assembly "may regulate the exercise by courts of the right to punish for contempt" was not intended to clothe the legislature with absolute power over the subject. Yoder v. Commonwealth, 107 Va. 823 , 57 S.E. 581 (1907).

It may regulate constitutional courts but not deprive them of the power. - There is an inherent power of self defense and self preservation in the courts of this state created by the Constitution. This power may be regulated by the legislature, but cannot be destroyed or so far diminished as to be rendered ineffectual. It is a power necessarily resident in and to be exercised by the power of the court itself, and the legislature cannot deprive such courts of the power to summarily punish for contempts by providing for a jury trial in such case. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899).

Statute providing for jury trial cannot deprive courts of power. - The legislature cannot deprive courts of the power to summarily punish for contempt by providing for a jury trial in such case. Burdett v. Commonwealth, 103 Va. 838 , 48 S.E. 878 (1904).

The act of 1897, securing the defendant a jury trial in cases of direct contempt, was held unconstitutional. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899).

Nor can statute giving justices jurisdiction of misdemeanors. - A Virginia statute giving to justices of the peace exclusive jurisdiction of all misdemeanors, if intended to interfere with the jurisdiction of courts of record to punish for contempts, is void as an unwarranted invasion of the judicial by the legislative department of the government. Elam v. Commonwealth, 4 Va. L. Reg. 520 (1898).

III. ACTS CONSTITUTING CONTEMPT.
A. CONTEMPTUOUS CONDUCT TOWARDS JUDGE.
1. IN GENERAL.

The "clear and present danger" standard does not apply to misconduct in the presence of the court. Williams v. Commonwealth, No. 1503-89-2 (Ct. of Appeals Feb. 12, 1991).

Contempt includes any act which is calculated to embarrass, hinder, or obstruct the court in the discharge of its responsibilities. Baugh v. Commonwealth, 14 Va. App. 368, 417 S.E.2d 891 (1992), overruled in part by Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

False statement to obtain continuance is contempt. - The effort of a party to obtain a continuance of his cause by means of a statement as to his health which he knew to be false tended directly to impede and obstruct the administration of justice and was contempt. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899).

Past misbehavior and lateness. - Court does not hold that any instance of past misbehavior is relevant in contempt cases, but in this case, the behavior in question, being late for a court proceeding, was the very same misconduct that was at issue before the court, such that the circuit court committed no abuse of discretion in considering defendant's past instances of tardiness. Abdo v. Commonwealth, 64 Va. App. 468, 769 S.E.2d 677, 2015 Va. App. LEXIS 87 (2015).

Evidence supported the circuit court's conclusion that defendant was guilty of criminal contempt, as his repeated tardiness not only disrupted court proceedings but also evidenced his willful and reckless disregard of the obligation to appear on time, and thus the circuit court did not err in finding the element of intent satisfied; certainly not every instance of tardiness will justify a finding of criminal contempt, but the evidence here supported the judgment of the circuit court. Abdo v. Commonwealth, 64 Va. App. 468, 769 S.E.2d 677, 2015 Va. App. LEXIS 87 (2015).

This section is broad enough to include insulting language delivered at a public meeting or published in a newspaper. Boorde v. Commonwealth, 134 Va. 625 , 114 S.E. 731 (1922).

No defense that defendant thought court had adjourned. - In a prosecution for contempt in publishing an insulting libel concerning the judge of a court, the fact that the defendant thought that the court had adjourned at the time of the publication, or that the judge had in fact directed the sheriff to make the proclamation of adjournment, constitutes no defense. Burdett v. Commonwealth, 103 Va. 838 , 48 S.E. 878 (1904).

No defense that defendant addressed statement to the "court" system. - The defendant violated this section although she contended that the statement was addressed to the "court" system and not the judge; the judge is a part of the court system. Williams v. Commonwealth, No. 1503-89-2 (Ct. of Appeals Feb. 12, 1991).

No obstruction of justice occurred. - Trial court erred in convicting defendant of contempt for obstructing or interrupting the administration of justice in violation of subdivision 1 of § 18.2-456 because no obstruction to the administration of justice occurred when defendant spoke with a jury administrator and a supervisor for the circuit judges' office, and although the evidence was sufficient to prove that defendant was loud and rude, it was not clear that his conduct constituted contempt under § 18.2-456 ; neither the administrator nor the supervisor specified how defendant behavior obstructed the administration of justice, but instead, they performed their respective jobs addressing his concerns, and no evidence showed that any court proceedings were interrupted or delayed because of defendant's conduct or that any judicial officer was prevented from performing his or her administrative duties. Henderson v. Commonwealth,, 2010 Va. App. LEXIS 451 (Nov. 16, 2010).

Intent. - Evidence was sufficient to convict defendant of criminal contempt of court because she did not deny that she testified erroneously when she told the trial court that she had not been present at her child's school for a party and the trial judge determined that defendant's testimony was not credible and found that she had the requisite intent to be convicted of criminal contempt. Rush v. Commonwealth,, 2014 Va. App. LEXIS 237 (June 10, 2014).

Court disagrees that contempt is a specific-intent crime, nor does the language of the statute require specific intent; willfulness or recklessness satisfies the intent required for a finding of criminal contempt Abdo v. Commonwealth, 64 Va. App. 468, 769 S.E.2d 677, 2015 Va. App. LEXIS 87 (2015).

2. CRITICISMS OF OFFICIAL CONDUCT.

Latitude of criticism. - Considerable latitude is permissible in the criticism of judicial decisions already rendered, but when such criticism necessarily involves the future action of the court in pending causes, a stricter rule, for obvious reasons, must be applied. Boorde v. Commonwealth, 134 Va. 625 , 114 S.E. 731 (1922).

To find the line where the right of free speech ends and its abuse begins is not always an easy task. In contempt proceedings, this line must usually be defined by the courts themselves, and in such cases its location is to be established with especial care and caution. Boorde v. Commonwealth, 143 Va. 625 , 114 S.E. 731 (1922).

Charging bias. - Neither an attorney charged with contempt nor his counsel could consistently with due process be convicted for contempt for filing motions for a change of venue and disqualification of the judge because of alleged bias, where the words used in the motions were plain English, in no way offensive in themselves, and wholly appropriate to charge bias in the community and bias of the presiding judge. Holt v. Virginia, 381 U.S. 131, 85 S. Ct. 1375, 14 L. Ed. 2d 290 (1965).

Utterances as to judge's conduct of an ended case. - False and libelous utterances as to a judge's conduct of an ended case may or may not be punishable contempt, depending upon whether such utterances present a clear and present danger to the administration of justice. Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953); Salyer v. Commonwealth, 209 Va. 662 , 166 S.E.2d 110 (1969).

The provisions of subdivision (3) of this section when applied to statements regarding a "proceeding had," that is, a proceeding which had been terminated, are not violative of the right of freedom of speech. Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953).

"A clear and present danger" exists if it appears that the attack probably will affect the course of justice in future litigation and impair, if not destroy, the judicial efficiency of the court or judge subjected to attack. Salyer v. Commonwealth, 209 Va. 662 , 166 S.E.2d 110 (1969).

Courts are not required to tolerate critical comments. - Courts are not required to tolerate the spontaneous expression aloud in the courtroom of critical comments by litigants or witnesses disappointed with the decision. Williams v. Commonwealth, No. 1503-89-2 (Ct. of Appeals Feb. 12, 1991).

A criticism in good faith of the practice of a judge in presiding over cases in which his sons were counsel, without imputing to the judge conscious and intentional bias and improper judgments in specific cases, is within the constitutional right of free speech. Boorde v. Commonwealth, 134 Va. 625 , 114 S.E. 731 (1922).

Assertions of good faith in scheduling conflicting matters in different courts did not negate inference of contempt. - Attorney's actions in scheduling multiple matters for trial in different courts in different jurisdictions at the same time supported trial court's finding of contempt; attorney's assertions of good faith did not negate the reasonable inference that he recklessly or willfully failed timely to advise the court of his conflicting schedule. Brown v. Commonwealth, 26 Va. App. 758, 497 S.E.2d 147 (1998).

Determining whether language used constitutes contempt. - In determining whether the language used by the defendant constitutes contempt it must be borne in mind that since a summary proceeding for contempt is a proceeding "to preserve the power and vindicate the dignity of the court," it is criminal and punitive in character, and the guilt of the alleged contemner must be established beyond a reasonable doubt. Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953).

Words held contemptuous. - A charge that a judge was a "wet judge" and that his decisions were influenced both by this fact and the appearance of his son as counsel was contempt within the meaning of this section. Boorde v. Commonwealth, 134 Va. 625 , 114 S.E. 731 (1922).

The trial court found that the statement "crooked court" was contemptuous and that the statement was "addressed to or published of a judge" where the defendant made the statement immediately after she talked to the judge and she made the statement loud enough for the judge to hear. Williams v. Commonwealth, No. 1503-89-2 (Ct. of Appeals Feb. 12, 1991).

Language held not "obscene, contemptuous or insulting". - See Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953).

B. MISCONDUCT.

The "clear and present danger" standard in subdivision (1) of this section does not apply to misconduct in the presence of the court. Williams v. Commonwealth, No. 1503-89-2 (Ct. of Appeals Feb. 12, 1991).

An attorney's failure to attend court is not contempt. - An attorney failing to attend court at the time of a trial previously fixed with his consent was not guilty of a contempt of court. Wise v. Commonwealth, 97 Va. 779 , 34 S.E. 453 (1899).

Attorney's conduct was not contempt. - Defendant attorney's conduct did not amount to criminal contempt in violation of the statute where the record failed to reflect any evidence of intent on the part of defendant to obstruct justice and/or interrupt the administration of justice; the record did not establish that defendant's request for a continuance was unreasonable in light of the discovery he had received. Weaver v. Commonwealth, No. 1056-01-1, 2002 Va. App. LEXIS 170 (Ct. of Appeals Mar. 19, 2002).

In two cases in which the Appeals Court of Virginia affirmed the convictions of two attorneys for criminal contempt, nothing in either record suggested an intent on the part of the two attorneys to obstruct or interrupt the administration of justice as required by subdivision 1 of § 18.2-456 . Unquestionably, attorney A's absence on the scheduled trial date and his release of his client was entirely consistent with his asserted good faith belief that the circuit court would grant the mutually requested continuance because of the Commonwealth's inability to proceed to trial on the scheduled trial date; likewise, the evidence was entirely consistent with attorney B's assertion that he excused his client from appearing on the scheduled trial date on the reasonable expectation that the court would grant the mutually requested continuance because of the Commonwealth's inability to proceed to trial without its necessary witness. Singleton v. Commonwealth, 278 Va. 542 , 685 S.E.2d 668, 2009 Va. LEXIS 104 (2009).

There was insufficient evidence that defendant, a defense counsel, intended to be contemptuous or to interrupt or obstruct the administration of justice to support his summary contempt conviction under subdivision 1 of § 18.2-456 as defendant did not notify the court earlier of his client's wish to revoke his waiver of a jury trial because he was still discussing the pros and cons of the revocation of the waiver and the plea agreement with the client. Cartier v. Commonwealth,, 2013 Va. App. LEXIS 68 (Mar. 5, 2013).

Where counsel scheduled multiple cases in different jurisdictions for the same time and failed to appear at an agreed upon trial date, the evidence was sufficient to constitute contempt. Robinson v. Commonwealth, No. 2901-01-1, 2003 Va. App. LEXIS 183 (Ct. of Appeals Apr. 1, 2003).

Failure to appear for pretrial conference. - The appellant was properly found in contempt for a violation of subdivision (1) of this section where she did not appear for a pretrial conference as ordered and later successfully objected to the testimony of an expert witness as primarily containing hearsay statements, as such objection was more properly the subject for a motion in limine which should have been settled at the pretrial conference. Roberts v. Haiar, No. 2096-97-1 (Ct. of Appeals February 24, 1998).

Conduct in what is perceived as a client's interest may also be conduct contemptuous of the court. The two are not mutually exclusive. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Refusal to surrender or pay over money as directed by court. - Where money is in the hands of an officer of the court, subject to the order of the court, it is clearly a contempt of the court to refuse to surrender and pay over the money as directed by the court, and obedience to the order may be enforced by contempt proceedings involving the imprisonment of the officer. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137 (1962).

The act of witnesses avoiding service of subpoena to appear before a grand jury did not constitute a contempt, under this statute, punishable by the court in a summary manner. Commonwealth v. Deskins, 31 Va. (4 Leigh) 685 (1834). But see Kendrick v. Commonwealth, 78 Va. 490 (1884).

Delay in request for jury trial held not contempt. - Evidence held insufficient to find defendant guilty of criminal contempt for failing, without offering an excuse, to notify the trial court of his request for a jury prior to the morning he was scheduled to be tried by the trial judge without a jury. To support a finding of the willful intent necessary for conviction of contempt, the record had to contain evidence that the delayed request was made for the purpose of obstructing or interrupting the administration of justice and not just for the purpose of exercising a right guaranteed by the Constitutions of the United States and the Commonwealth of Virginia. Carter v. Commonwealth, 2 Va. App. 392, 345 S.E.2d 5 (1986).

Use of profanity toward prosecutor. - Where defendant used profanity toward the prosecutor at defendant's sentencing hearing, and the trial court opined that this conduct in the presence of the court disrupted the court and was in contempt of the court's process, such conduct and findings supported a contempt finding under subdivision (1) of § 18.2-456 . Middlebrooks v. Commonwealth, No. 1516-01-1, 2002 Va. App. LEXIS 433 (Ct. of Appeals July 30, 2002).

Profanity not intended for trial judge to hear. - Where defendant used profanity toward the prosecutor at defendant's sentencing hearing for other offenses, but there was no evidence that defendant intended the trial judge to hear defendant's statement to the prosecutor, such evidence did not support a contempt finding under § 18.2-456 (3). Middlebrooks v. Commonwealth, No. 1516-01-1, 2002 Va. App. LEXIS 433 (Ct. of Appeals July 30, 2002).

Contempt conviction supported by evidence of defendant's intoxication in court. - Because the results of an Alcosensor test for blood alcohol content were properly admitted and considered by the circuit court as the fact finder, and defendant did not object to the admission of the general district court certificate of the conviction, filed pursuant to § 18.2-459 , which he himself introduced into evidence, his contempt conviction was upheld on appeal. Rozario v. Commonwealth, 50 Va. App. 142, 647 S.E.2d 502, 2007 Va. App. LEXIS 272 (2007).

Failure to preserve assignments of error for appeal. - Ends of justice exception to Va. Sup. Ct. R. 5A:18 did not apply, as defendant knowingly falsely asserted that defendant's former husband violated probation, misbehavior sufficiently near the presence of the trial court that the court could consider it in support of defendant's contempt conviction. Amos v. Commonwealth,, 2012 Va. App. LEXIS 253 (Aug. 7, 2012).

Actions held contemptuous. - Defendant's summary contempt conviction under subdivision 1 of § 18.2-456 was supported by sufficient evidence as when defendant balled up a summons and later the juvenile and domestic relations court's written orders, defendant intended to display to the court and all others in the courtroom her contemptuous disrespect for the court and its child custody decision; defendant committed misbehavior in the presence of the court, and although no finding that her misbehavior obstructed or interrupted justice was required, her acts obstructed and interrupted justice. Parham v. Commonwealth, 60 Va. App. 450, 729 S.E.2d 734, 2012 Va. App. LEXIS 248 (2012).

Attorney was properly convicted by a circuit court of criminal contempt for misbehavior as an officer of the court because the attorney intentionally acted in disrespect of the court or its processes when he attempted to use the court's own forms to short-cut the garnishment process by having a payroll administrator for an employer, which was the garnishee, set up a garnishment to collect a judgment debt before it was even filed with the district court. Becker v. Commonwealth, 64 Va. App. 481, 769 S.E.2d 683, 2015 Va. App. LEXIS 88 (2015).

C. DISOBEDIENCE OF ORDERS OR DECREES.

Willful disobedience to any lawful process or order of court is contempt and summarily punishable as such. Board of Supvrs. v. Bazile, 195 Va. 739 , 80 S.E.2d 566 (1954).

When one shows by his conduct a deliberate and studied effort to disobey a valid order of a court, he subjects himself to punishment for contempt. Laing v. Commonwealth, 205 Va. 511 , 137 S.E.2d 896 (1964).

Disobedience of the decree of the court comes plainly within the fifth subdivision of this section. Forbes v. State Council, 107 Va. 853 , 60 S.E. 81 (1908), appeal dismissed, 216 U.S. 396, 30 S. Ct. 295, 54 L. Ed. 534 (1909).

Finding of contempt rests upon four elements. - A finding of contempt for such disobedience must rest upon four elements: (1) Issuance of "lawful process"; (2) valid service of the process by one of the modes prescribed by law; (3) timely knowledge of the process by the person upon whom service is sought, where service was not personal; and (4) willful disobedience of the process. Bellis v. Commonwealth, 241 Va. 257 , 402 S.E.2d 211 (1991).

Decree must contain express command or prohibition. - There is a conflict of authority on the question whether a decree or order which merely declares the rights of the parties without an express command or prohibition may be the basis of a contempt proceeding. The better and safer rule is that there must be an express command or prohibition. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137 (1962).

A person is in contempt of a court order only if it is shown that he or she has violated its express terms; process for contempt lies for disobedience of what is decreed, not for what may be decreed. Michaels v. Commonwealth, 32 Va. App. 601, 529 S.E.2d 822, 2000 Va. App. LEXIS 463 (2000).

Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties thereby imposed upon him and the command must be expressed rather than implied. Michaels v. Commonwealth, 32 Va. App. 601, 529 S.E.2d 822, 2000 Va. App. LEXIS 463 (2000).

A deputy sheriff was improperly held in criminal contempt for failing to transport a prisoner where the underlying order did not expressly impose a duty on the defendant or any other personnel from the sheriff's office to transport the prisoner. Michaels v. Commonwealth, 32 Va. App. 601, 529 S.E.2d 822, 2000 Va. App. LEXIS 463 (2000).

Where there was no prior court order prohibiting an attorney from deposing a party, a finding of civil contempt under subdivision 5 of § 18.2-456 was erroneous; therefore, an attorney should not have been ordered to pay monetary sanctions to an animal rights organization. Any prohibition on such was merely an implication from the general remarks made by a circuit court, which was not a proper basis for a contempt judgment. Petrosinelli v. People for the Ethical Treatment of Animals, Inc., 273 Va. 700 , 643 S.E.2d 151, 2007 Va. LEXIS 50 (2007).

This section applicable to disobeying a subpoena. - Disobedience to "any lawful process" is made subject to summary punishment or contempt by subdivision (5); "process" includes a subpoena directed to a witness. Bellis v. Commonwealth, 241 Va. 257 , 402 S.E.2d 211 (1991).

Section applies to erroneous orders. - Where the court has jurisdiction of the parties and of the subject matter of the suit and the legal authority to make the order, a party refusing to obey it, however erroneously made, is liable for contempt. Such order, though erroneous, is lawful within the meaning of contempt statutes until it is reversed by an appellate court. Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352 (1943); Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth ex rel. Va. Ferry Corp., 193 Va. 773 , 71 S.E.2d 159, cert. denied, 344 U.S. 893, 73 S. Ct. 212, 97 L. Ed. 690 (1952); French v. Town of Clintwood ex rel. Johnson, 203 Va. 562 , 125 S.E.2d 798 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 510 (1963).

While trial court erred in ordering attorney to produce a written statement made by an employee of his client for the purpose of contradicting the latter, which statement was not admissible under § 8.01-404 , it did not follow that such order was void and could be disobeyed with impunity, and attorney was therefore liable for contempt for refusal to obey order. Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352 (1943).

And without regard to constitutionality of act under which order issued. - An order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the act under which the order is issued. Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth ex rel. Va. Ferry Corp., 193 Va. 773 , 71 S.E.2d 159, cert. denied, 344 U.S. 893, 73 S. Ct. 212, 97 L. Ed. 690 (1952).

Judgment or order need not be in writing. - It was not the purpose of subdivision (5) of this section, in providing for summary punishment by a court for disobedience or resistance to any lawful order, to limit or confine such "order" to one which has been reduced to writing, and thereby exclude and leave unpunishable in summary contempt proceedings the verbal commands, directions or orders of the court. Robertson v. Commonwealth, 181 Va. 520 , 25 S.E.2d 352 (1943).

No evidence of disobeying or resisting lawful process. - Trial court erred in convicting defendant of contempt for being disobedient or resistant to lawful process of the trial court in violation of subdivision 5 of § 18.2-456 because the record contained no evidence that defendant failed to appear on any date that he was summoned or required to report for jury duty; at most, defendant expressed his intention to disobey the jury summons in the future, but the record did not establish whether he actually did so. Henderson v. Commonwealth,, 2010 Va. App. LEXIS 451 (Nov. 16, 2010).

Circuit court erred in holding the Virginia Department of Corrections in contempt because the evidence was insufficient for it to conclude that the Department was in violation of its orders; the circuit court erred by ruling it lacked the authority to determine whether the positions offered to an employee were comparable because pursuant to the implementation statute, it had the authority to make such factual findings and to implement the hearing officer's decision. Va. Dep't of Corr. v. Estep, No. 0485-16-2, 2016 Va. App. LEXIS 260 (Ct. of Appeals Oct. 11, 2016).

Attorney conduct. - Attorney's continued disobedience to court's directive that he treat witnesses politely and refrain from sarcasm was sufficient to support his convictions for contempt. Crandley v. Commonwealth, No. 1694-98-1 (Ct. of Appeals Aug. 10, 1999).

A witness who left the court house before his testimony was complete was properly held to have been in contempt for disobeying an order of the court where the court had instructed the witness to step down and wait outside the courtroom while the judge conferred briefly with the attorneys; although the court did not designate the instruction as an order that the witness wait, the import of the words was made manifest by both definition and context and there was clearly nothing to suggest to the witness that he was free to elect whether to go or stay. Lalik v. Commonwealth, No. 1855-99-3, 2000 Va. App. LEXIS 348 (Ct. of Appeals May 9, 2000).

Courthouse security. - Trial court did not err in finding defendant, acting in his role as sheriff, in contempt for his conduct in threatening courthouse security by reassigning a deputy posted inside the courthouse's front entrance to a jail and taking down signs the trial court had posted regarding access to the courthouse; the trial court found that his conduct interrupted the orderly flow of the court's business and defendant's contention that he did not intend to impede the administration of justice under § 18.2-456 was belied by his conduct. Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912, 2006 Va. App. LEXIS 102 (2006).

Person not a party and without notice not liable. - A seller of intoxicants who had no actual knowledge or notice of an interdiction order entered against the purchaser cannot be held in contempt for violating such order. Calamos v. Commonwealth, 184 Va. 397 , 35 S.E.2d 397 (1945).

A person cannot be punished for contempt for disobedience or resistance to a decree appointing a receiver, when he was not a party to suit, had no knowledge of its existence or of the appointment of the receiver, and where the decree appointing the receiver contained no direction, mandate, or prohibition to or against him. Kidd v. Virginia Safe Deposit & Trust Corp., 113 Va. 612 , 75 S.E. 145 (1912).

The disobedience of a void order is not contempt. Laing v. Commonwealth, 205 Va. 511 , 137 S.E.2d 896 (1964).

Illustrative case. - Defendants were properly held in contempt for violating an injunction notwithstanding their contention that they in good faith relied upon a subsequent irregular amendment to the zoning regulation on which the injunction had been based. French v. Town of Clintwood ex rel. Johnson, 203 Va. 562 , 125 S.E.2d 798 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 510 (1963).

Where a trial court found that appellant was in violation of a zoning ordinance and gave him 10 days to abate the violation, it properly exercised its power to enforce its orders and did not act without jurisdiction when it found him in contempt for violating the abatement order. Miller v. Bd. of Supervisors, No. 1050-03-2, 2004 Va. App. LEXIS 71 (Ct. of Appeals Feb. 10, 2004).

Trial judge properly appointed a conservator in a domestic matter where said services were required because the husband was continually violating the court's orders, refusing to respond to discovery, and dissipating the estate; therefore, the court had the power to appoint the conservator to determine the information wife requested in discovery and to preserve the estate. However, death of the payor spouse, which abates the divorce action, also renders the pendente lite order void. Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004).

The trial court properly found a landowner in contempt for violating the county code in operating his junkyard, and no violation of his rights occurred, as the county was authorized to enter his property and make whatever changes were necessary to the landscape of the property to bring such within code and protect the county's interests. Phelps v. Bd. of County Supervisors,, 2007 Va. App. LEXIS 262 (July 3, 2007).

Trial court did not err when it found that defendant was in contempt of court when she appeared in the general district court to request a restricted license while having three different illegal drugs in her system and appearing to be under the influence of drugs in the view of the general district judge. Graves v. Commonwealth,, 2014 Va. App. LEXIS 389 (Nov. 25, 2014).

Circuit court did not err in finding a property owner in contempt for failure to comply with orders requiring him to abate all zoning violations because the record was replete with evidence of the owner's disregard of the zoning ordinance; in finding that the owner remained in contempt, the circuit court did not allude to the issue of whether and when he would be willing to submit to a property inspection but based its ruling on the evidence demonstrating his continuous violation. Weber v. Cty. of Henrico, No. 1132-17-2, 2018 Va. App. LEXIS 150 (June 5, 2018).

Circuit court did not err in finding a property owner in contempt for failure to comply with orders requiring him to abate all zoning violations on his residential property because the evidence was sufficient to establish that despite the precise language of the orders putting the owner on notice, he did not abate his junk storage; the owner had simply relocated most of the "junk" items to his backyard. Weber v. Cty. of Henrico, No. 1132-17-2, 2018 Va. App. LEXIS 150 (June 5, 2018).

Circuit court did not err in finding a property owner in contempt for failure to comply with orders requiring him to abate all zoning violations on his residential property because the language of each order was clear and unambiguous and set out the owner's obligation. Weber v. Cty. of Henrico, No. 1132-17-2, 2018 Va. App. LEXIS 150 (June 5, 2018).

Because both a statute and a zoning ordinance expressly authorized injunctive relief, the circuit court had authority to enjoin a property owner's future noncompliance with the ordinance; because the owner was on notice that he would remain in contempt if he was storing junk anywhere on his property, his due process rights were not violated. Weber v. Cty. of Henrico, No. 1132-17-2, 2018 Va. App. LEXIS 150 (June 5, 2018).

Parent intentionally violated a property settlement agreement (PSA) because the parent failed to maintain in full force and effect an existing policy of life insurance and claimed the parties' younger child as a dependent for a tax year, improperly preventing the other parent from claiming the child. The sanctions imposed were civil in nature because the court attempted to restore the other parent to the approximate position the parent would have been in if the parent had not violated the PSA and the court's order incorporating the PSA. Mills v. Mills, 70 Va. App. 362, 827 S.E.2d 391, 2019 Va. App. LEXIS 115 (2019).

Wrongful death settlement. - Where a dock owner agreed to remove a boat dock pursuant to a wrongful death settlement agreement that was included in the court order approving the settlement, the dock owner was properly found in contempt because: (1) the dock owner used structures or objects on the property to moor or dock a boat; (2) the Wrongful Death Act, §§ 8.01-50 through 8.01-56 , did not preclude the contempt proceeding; and (3) when the trial court included the settlement terms in its court order, it retained the right to enforce the obligations imposed upon the dock owner under subdivision 5 of § 18.2-456 . Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

Failure to pay spousal support. - Trial court properly found a husband in contempt for failing to pay spousal support, as previously ordered by the court, where the trial court found that the husband had failed to comply with the terms and conditions of the final divorce decree, and in addition, it found that husband had ignored two subsequent orders regarding the amount of the husband's retirement to be paid to the wife. Mihnovets v. Mihnovets, No. 2087-03-4, 2004 Va. App. LEXIS 410 (Ct. of Appeals Aug. 31, 2004).

Where at the time of circuit court trial de novo, defendant had completed alcohol abuse treatment and was not shown to have willfully disobeyed the court's order, the evidence was insufficient for the circuit court to find that defendant was in contempt of the juvenile court order. Hanson v. Commonwealth, No. 2899-95-3, 1997 Va. App. LEXIS 206 (Ct. of Appeals Apr. 1, 1997).

As to the September 1994 order, the evidence was sufficient to support the trial court's finding that defendant willfully disobeyed that order, where defendant admitted at trial that she knew she was violating the order by removing her daughter from the Presbyterian home before the end of the program. Hanson v. Commonwealth, No. 2899-95-3, 1997 Va. App. LEXIS 206 (Ct. of Appeals Apr. 1, 1997).

Inability to obey an order of court may be a complete defense. Camden v. Virginia Safe Deposit & Trust Corp., 115 Va. 20 , 78 S.E. 596 (1913).

The inability of an alleged contemner, without fault on his part, to render obedience to an order of court, is a good defense to a charge of contempt. Laing v. Commonwealth, 205 Va. 511 , 137 S.E.2d 896 (1964).

But not if disability voluntary. - But where an alleged contemner has voluntarily and contumaciously brought on himself disability to obey an order, he cannot avail himself of a plea of inability to obey as a defense to the charge of contempt. Laing v. Commonwealth, 205 Va. 511 , 137 S.E.2d 896 (1964).

Violation of property settlement agreement. - Sanction which a circuit court imposed for a parent's alleged violation of a provision of the parties' property settlement agreement by intentionally interfering with the love, affection, and respect of the children for the other parent sounded in criminal, as opposed to civil contempt. Thus, the court erred in imposing the sanction without the appropriate procedural safeguards so that reversal of the judgment and a remand for further proceedings was necessary. Mills v. Mills, 70 Va. App. 362, 827 S.E.2d 391, 2019 Va. App. LEXIS 115 (2019).

IV. PURGING CONTEMPTS.

Effect of want of intention. - A contempt may be purged where the defendant denies any evil intention, as where a party in his answer under oath to a rule to show cause why he should not be punished for contempt, states that he acted in good faith, without any design, wish or expectation of committing any contempt of court. Wells v. Commonwealth, 62 Va. (21 Gratt.) 500 (1871); Trimble v. Commonwealth, 96 Va. 818 , 32 S.E. 786 (1899).

When disclaimer of intention unavailing. - Where an attack upon a judge is unmistakably contemptuous and insulting, disclaimer of any intention to insult the court or the judge is unavailing. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899); Boorde v. Commonwealth, 134 Va. 625 , 114 S.E. 731 (1922).

Effect when language or acts bear two constructions. - If the intent with which a thing is said or done gives color and character to the act or words a disclaimer of any purpose to be guilty of a contempt, or to destroy or impair the authority due to the court, is a good defense to a charge of contempt, but this is true only of language or acts of doubtful import, and which may reasonably bear two constructions. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899); Board of Supvrs. v. Bazile, 195 Va. 739 , 80 S.E.2d 566 (1954).

The advice of counsel may, under some circumstances, be a palliation of the offense of his client in disobeying the lawful orders of the court, but the extent of such palliation must depend upon the circumstances of the case and the character of the advice given. Wells v. Commonwealth, 62 Va. (21 Gratt.) 500 (1871); Trimble v. Commonwealth, 96 Va. 818 , 32 S.E. 786 (1899); Trimble v. Commonwealth, 5 Va. L. Reg. 92 (1899).

Where an attorney has acted in good faith, although he may err in judgment, he is not guilty of contempt. Wells v. Commonwealth, 62 Va. (21 Gratt.) 500 (1871).

Violating a habeas corpus for the custody of a child may be purged by disclaimer by defendant of any purpose to be guilty of contempt. Trimble v. Commonwealth, 96 Va. 818 , 32 S.E. 786 (1899).

V. SUMMARY PROCEEDINGS.

This section, which enlarges the classes of cases in which there may be summary punishment, is constitutional. Yoder v. Commonwealth, 107 Va. 823 , 57 S.E. 581 (1907).

The power of courts of record to punish summarily for contempts, is generally conceded to be inherent, and applies as well to constructive as to direct contempts. Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899).

Limited to classes set forth in statute. - The power given to the court and judge by this section to punish "summarily" for contempt is a power to punish without the intervention of a jury and is limited to the classes of contempt set forth in this section. Yoder v. Commonwealth, 107 Va. 823 , 57 S.E. 581 (1907); Kidd v. Virginia Safe Deposit & Trust Corp., 113 Va. 612 , 75 S.E. 145 (1912).

For violations of subdivision (1) of this section, the General Assembly has limited the maximum punishment to a $50 fine or 10 days in jail, "without a jury." Baugh v. Commonwealth, 14 Va. App. 368, 417 S.E.2d 891 (1992), overruled in part by Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Restrictions on behavior. - Trial court was not required to restrict defendant's behavior into one of the subsections of the statute because the court did not punish appellant summarily. Abdo v. Commonwealth, 64 Va. App. 468, 769 S.E.2d 677, 2015 Va. App. LEXIS 87 (2015).

Basis for exception to requirement of full fact-finding hearing. - The exception to the general requirement of a full fact-finding hearing in cases of contempt committed directly under the eye or within the view of the court is not grounded solely in the need for immediate vindication of the court's integrity, but is also supported by the fact that there is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Right of confrontation and contempt. - Defendant's constitutional right of confrontation was not violated by admission into evidence in criminal proceeding of certificate prepared by general district court judge, which detailed circumstances of offense. Baugh v. Commonwealth, 14 Va. App. 368, 417 S.E.2d 891 (1992), overruled in part by Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Summary conviction for criminal contempt has been effectively limited to cases where the contempt is judged by the court not to constitute "serious" criminal conduct. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Penalty imposed is evidence of seriousness of offense. - Since Virginia does not specify sentencing limits for cases of contempt, the court must look to the penalty actually imposed as the best evidence of the seriousness of the offense. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

What are "serious" crimes for jury trial purposes. - Contempts punishable by more than six months' imprisonment or a greater than $500.00 fine or both appear to constitute "serious" crimes for jury trial purposes. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Jury trial not unreasonable safeguard for certain subdivision (1) contempts. - Since subdivision (1) is not statutorily restricted in terms of highly specific conduct or specific persons as are the other subsections, it cannot be considered unreasonable for the legislature to have deemed it in the interest of justice to provide a slightly greater procedural safeguard, in the form of jury trial as provided by § 18.2-457 , for those contempts of subdivision (1) which will be punished by a fine exceeding $50.00 or imprisonment of more than 10 days. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Due process rights violated. - Trial court erred in conducting a plenary criminal contempt hearing without affording a husband in a divorce proceeding the protections to which he was entitled. Therefore, the husband's conviction for criminal contempt was reversed and vacated, including the fine and assessment of attorney's fees made against him. Clugston v. Commonwealth,, 2009 Va. App. LEXIS 344 (Aug. 4, 2009).

In a summary contempt proceeding under § 18.2-456 , defendants were not afforded the due process rights to which they were entitled as nothing indicated that any of the defendants' conduct was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures, was necessary. Scialdone v. Commonwealth, 279 Va. 422 , 689 S.E.2d 716, 2010 Va. LEXIS 27 (2010).

Due process not denied. - Trial court's denial of a plenary hearing to determine guilt for certain specific acts of contempt where acts by petitioner were not only committed in the presence of the court but were elaborated upon to the court each step of the way was not a denial of due process. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

VI. PRACTICE.

The substantial difference between a direct and constructive contempt is one of procedure. Burdett v. Commonwealth, 103 Va. 838 , 48 S.E. 878 (1904).

Direct contempts. - An attachment for contempt has no other object than to bring the party into court. When the contempt is in open court, the party being present, there is no need of any process to bring him into court. Burdett v. Commonwealth, 103 Va. 838 , 48 S.E. 878 (1904).

Rules of evidence in criminal law apply. - In a proceeding to punish for a criminal, or quasi criminal contempt, the rules of evidence applicable in criminal cases prevail, and a mere preponderance of evidence is not sufficient to convict, but the offense charged must be proved beyond a reasonable doubt. Kidd v. Virginia Safe Deposit & Trust Corp., 113 Va. 612 , 75 S.E. 145 (1912).

The guilt of the alleged contemner must be established beyond a reasonable doubt. Salyer v. Commonwealth, 209 Va. 662 , 166 S.E.2d 110 (1969).

In criminal contempt proceedings, the rules of evidence applicable in criminal cases prevail. Carter v. Commonwealth, 2 Va. App. 392, 345 S.E.2d 5 (1986).

Burden of proof. - A person charged with criminal contempt is entitled to the benefit of the presumption of innocence, and the burden is on the prosecution to prove the guilt of the accused. Carter v. Commonwealth, 2 Va. App. 392, 345 S.E.2d 5 (1986).

Mere preponderance of evidence is not sufficient to convict one of criminal contempt; the offense charged must be proved beyond a reasonable doubt. Carter v. Commonwealth, 2 Va. App. 392, 345 S.E.2d 5 (1986).

Punishment for criminal contempt is punitive in its nature and is imposed for the purpose of preserving the power and vindicating the dignity of the court. Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth ex rel. Va. Ferry Corp., 193 Va. 773 , 71 S.E.2d 159, cert. denied, 344 U.S. 893, 73 S. Ct. 212, 97 L. Ed. 690 (1952).

And degree of punishment is within discretion of court. - The degree of punishment for contempt is within the sound discretion of the trial court. Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth ex rel. Va. Ferry Corp., 193 Va. 773 , 71 S.E.2d 159, cert. denied, 344 U.S. 893, 73 S. Ct. 212, 97 L. Ed. 690 (1952).

In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court's order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant's defiance as required by the public interest, and the importance of deterring such acts in the future. Because of the nature of these standards, great reliance must be placed upon the discretion of the trial judge. Local 333B, United Marine Div. of Int'l Longshoremen's Ass'n v. Commonwealth ex rel. Va. Ferry Corp., 193 Va. 773 , 71 S.E.2d 159, cert. denied, 344 U.S. 893, 73 S. Ct. 212, 97 L. Ed. 690 (1952).

Limitation on punishment by § 18.2-457 applies only to first class. - The limitation of the duration of imprisonment for contempt imposed by § 18.2-457 applies only to contempts mentioned in the first class of this section, and not to those mentioned in the remaining four classes of the section. Yoder v. Commonwealth, 107 Va. 823 , 57 S.E. 581 (1907).

Defendant's contempt sentences were not void for exceeding statutory limits because (1) defendant was found in contempt under subdivision (3), and (2) the limitations in § 18.2-457 did not apply to the third class of contempt in § 18.2-456 , as that limit applied to the first class of contempt under § 18.2-456 . Harper v. Commonwealth, No. 1369-12-2, 2012 Va. App. LEXIS 426 (Ct. of Appeals Nov. 28, 2012).

Where the contempt is not established, it is error to seek to enforce the return of money improperly paid by an order directing the imprisonment of the defendant if the money be not paid. Kidd v. Virginia Safe Deposit & Trust Corp., 113 Va. 612 , 75 S.E. 145 (1912).

Due process. - Reviewing court did not violate defendant's due process right to confrontation by admitting into evidence the juvenile and domestic relations court's certificate of the summary contempt conviction and particular circumstances of the offense under § 18.2-459 as no litigant in a summary contempt case had a right to cross-examine the judge under the Sixth Amendment, U.S. Const. amend. VI, and the Due Process Clause, U.S. Const. amend. XIV, did not afford a right of confrontation where the Sixth Amendment did not. Parham v. Commonwealth, 60 Va. App. 450, 729 S.E.2d 734, 2012 Va. App. LEXIS 248 (2012).

VII. APPEAL AND ERROR.

A writ of error will now lie to an order punishing for contempt. Lindsey v. Lindsey, 158 Va. 647 , 164 S.E. 551 (1932).

Appeal from judgment for contempt must be by statute. - "A commitment for contempt . . . is a commitment in execution; and the judgment of conviction, unless the power to supervise is given by statute, is not subject to review in any other court, not even upon a writ of habeas corpus." Forbes v. State Council, 107 Va. 853 , 60 S.E. 81 (1908), cert. denied, 216 U.S. 396, 30 S. Ct. 295, 54 L. Ed. 534 (1909). See also Wells v. Commonwealth, 62 Va. (21 Gratt.) 500 (1871).

The judgment in contempt proceeding can be reviewed by a superior tribunal only by writ of error, and not always in that way. B & O R. R. v. City of Wheeling, 54 Va. (13 Gratt.) 40 (1855).

Cannot be reviewed by writ of habeas corpus. - Proceedings for contempt cannot be reviewed in the Supreme Court on application for a writ of habeas corpus. Wells v. Commonwealth, 62 Va. (21 Gratt.) 500 (1871); Cromwell v. Commonwealth, 95 Va. 254 , 28 S.E. 1023 (1897).

Preservation for review. - Attorney's arguments challenging the trial court's finding the attorney to be in contempt of court were barred by Va. Sup. Ct. R. 5A:18, as they were not raised in the circuit court, providing no ruling to review on appeal. Further, the record failed to disclose anything that would allow the appellate court to invoke the ends of justice exception to Rule 5A:18. Stroupe v. Rivero, No. 1936-02-4, 2003 Va. App. LEXIS 630 (Ct. of Appeals Dec. 9, 2003).

Defendant did not adequately preserve for review his claim that there was insufficient evidence to support the trial court's finding that he committed criminal contempt of court; defendant did not object in the trial court and the appellate court could not review the claim under either the "good cause shown" or "ends of justice" exceptions contained in Va. Sup. Ct. R. 5A:18, as neither exception applied. Forbes v. Commonwealth,, 2005 Va. App. LEXIS 230 (June 14, 2005).

Husband's appeal of an order finding him in contempt and sentencing him to one day in jail was dismissed because the husband failed to timely file a transcript or written statement of facts regarding the hearing that led to the order; a transcript of that hearing, which would show the events that gave rise to the contempt finding and sentence, was indispensable to addressing the husband's argument that the trial court's contempt finding and sentence violated § 18.2-456 and constituted reversible error. Smith v. Smith,, 2008 Va. App. LEXIS 184 (Apr. 15, 2008).

Contemporaneous objection exception. - Contemporaneous objection exception applied and no further steps were required to preserve defendant's issues for appellate review as defendant was not a party in the proceeding in which she was held in contempt, but was a witness, was not represented by counsel, and after the ruling, was immediately taken to jail without any further consideration by the court; the actions of the trial court prevented defendant from presenting a contemporaneous objection. Commonwealth v. Amos, 287 Va. 301 , 754 S.E.2d 304, 2014 Va. LEXIS 29 (2014).

Arguments waived on appeal. - Attorney's failure to object to his summary conviction of criminal contempt and never having the trial court rule on any of his violation of due process claims caused such claims to be deemed waived on appeal. Nusbaum v. Berlin, 273 Va. 385 , 641 S.E.2d 494, 2007 Va. LEXIS 26 (2007).

No right to cross-examine Juvenile and Domestic Relations District Court Judge. - Virginia legislature does not intend to give birth to a constitutional right to cross-examine a juvenile and domestic relations district court (JDR court) judge at an appeal of a petty direct summary contempt proceeding, a right that a defendant does not otherwise have in the JDR court or the circuit court, as: (1) a JDR court proceeding is not a criminal prosecution within the scope of the Sixth Amendment; (2) there is no constitutional right to trial at the JDR court and no constitutional right of appeal; (3) there is a statutory prohibition against calling a judge as a witness; and (4) the Virginia general assembly provides a statutory right of appeal with the caveat that a certificate from the JDR court can be used in such an appeal. Gilman v. Commonwealth, 48 Va. App. 16, 628 S.E.2d 54, 2006 Va. App. LEXIS 130 (2006), rehearing granted, 48 Va. App. 236, 629 S.E.2d 720 (2006), opinion withdrawn, vacated by 2006 Va. App. LEXIS 456 (Oct. 10, 2006).

Confrontation clause rights not violated. - Defendant's rights under the Confrontation Clause were not violated by the use of a certificate from a juvenile and domestic relations district court (JDR court) judge in her appeal from a conviction for petty direct summary contempt as the Virginia legislature did not intend to give birth to a constitutional right to cross-examine a JDR court judge at an appeal of a petty direct summary contempt proceeding as: (1) a JDR court proceeding was not a criminal prosecution within the scope of the Sixth Amendment; (2) there was no constitutional right to trial at the JDR court and no constitutional right of appeal; (3) there was a statutory prohibition against calling a judge as a witness; and (4) the Virginia general assembly provided a statutory right of appeal with the caveat that a certificate from the JDR court could be used in such an appeal. Gilman v. Commonwealth, 48 Va. App. 16, 628 S.E.2d 54, 2006 Va. App. LEXIS 130 (2006), rehearing granted, 48 Va. App. 236, 629 S.E.2d 720 (2006), opinion withdrawn, vacated by 2006 Va. App. LEXIS 456 (Oct. 10, 2006).

CIRCUIT COURT OPINIONS

Contempt proceeding deemed civil in nature. - Because the purpose of a contempt hearing was remedial in nature, seeking compliance with the court order regarding child support payments, the contempt was not filed to punish a husband for his past transgressions, and no sanctions would be issued if he complied with the court-ordered payments, the proceeding was deemed civil in nature, allowing the wife to appeal from an order rendered therein and have a trial de novo. Zaret v. Zaret, 68 Va. Cir. 241, 2005 Va. Cir. LEXIS 236 (Norfolk July 8, 2005).

Contempt found. - Attorney's actions in purposefully rescheduling sentencing in federal trial court so that it conflicted with trial setting for defendant he represented in state trial court warranted a finding that the attorney was in contempt of the state court, as attorney's conduct was an attempt to hinder justice because attorney had already delayed the case several times by obtaining continuances. Commonwealth v. Foulks, 56 Va. Cir. 449, 2001 Va. Cir. LEXIS 89 (Suffolk 2001).

Conviction for summary criminal contempt and imposition of the maximum punishment was warranted because the submittal by a litigant of a new forged newspaper article in defense against sanctions for the previous use of a fake email as evidence constituted intentional interference with the administration of justice in the presence of the court. Sisira Kumara Kumaragamage Don v. Tera Int'l Grp., Inc., 100 Va. Cir. 365, 2018 Va. Cir. LEXIS 725 (Fairfax County Dec. 5, 2018).

Contempt not found. - Because an owner's § 18.2-456 request for a show cause was not grounded in law or fact and was brought for the purpose of punishing the citizens who opposed his rezoning application and cost him "a lot of money," the citizens were awarded their attorneys' fees and costs under § 8.01-271.1 . Sowers v. Bd. of Supervisors, 71 Va. Cir. 324, 2006 Va. Cir. LEXIS 155 (Nottoway County 2006).

Bond. - Sentence of mother for contempt to a fixed and determinant time to serve in jail without the ability to purge herself of contempt was a criminal sanction and the bond the mother posted was to release her from jail pending her appeal; no performance bond was necessary. Div. of Child Support Enforcement v. Overstreet, 58 Va. Cir. 355, 2002 Va. Cir. LEXIS 153 (Roanoke 2002).

Child in need of supervision. - Under either § 18.2-456 or subsection E of § 16.1-292, there can be multiple confinement orders for violations of orders to attend school, issued under the same Child In Need of Supervision petition. Commonwealth v. May, 62 Va. Cir. 360, 2003 Va. Cir. LEXIS 275 (Rockingham County 2003).

Court could not waive consent decree's agreed-to sanction. - Property owner and a county zoning administrator had entered into consent decree providing that the owner would be sanctioned by a fine of $100 for each day that he failed to remove a storage structure. The court that entered the decree lacked authority to waive the fine after it found the owner in contempt of court for failing to timely remove structure, since it was obliged to enforce the consent decree entered into by the parties and could not vary its terms. Shoup v. Jerro, 70 Va. Cir. 109, 2005 Va. Cir. LEXIS 282 (Fairfax County 2005).

§ 18.2-457. Fine and imprisonment by court limited unless jury impaneled.

No court shall, without a jury, for any such contempt as is mentioned in the first class embraced in § 18.2-456 , impose a fine exceeding $250 or imprison more than ten days; but in any such case the court may, without an indictment, information or any formal pleading, impanel a jury to ascertain the fine or imprisonment proper to be inflicted and may give judgment according to the verdict.

(Code 1950, § 18.1-295; 1960, c. 358; 1975, cc. 14, 15; 1999, c. 626.)

The 1999 amendment substituted "$250" for "fifty dollars."

Law review. - For survey of Virginia law on practice and pleading for the year 1973-1974, see 60 Va. L. Rev. 1572 (1974).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 15 Sanctions. § 15.10 Contempt. Friend.

CASE NOTES

This section only applies to first class of § 18.2-456 . - The limitation of the duration of the imprisonment for contempt imposed by this section applies only to contempts mentioned in the first class of § 18.2-456 , and not to those mentioned in the remaining four classes of that section. Yoder v. Commonwealth, 107 Va. 823 , 57 S.E. 581 (1907). See Stroupe v. Rivero, No. 1936-02-4, 2003 Va. App. LEXIS 630 (Ct. of Appeals Dec. 9, 2003).

Defendant's contempt sentences were not void for exceeding statutory limits because (1) defendant was found in contempt under subdivision (3) of § 18.2-456 , and (2) the limitations in § 18.2-457 did not apply to the third class of contempt in § 18.2-456 , as that limit applied to the first class of contempt under § 18.2-456. Harper v. Commonwealth, No. 1369-12-2, 2012 Va. App. LEXIS 426 (Ct. of Appeals Nov. 28, 2012).

Jury trial not unreasonable safeguard for certain § 18.2-456 (1) contempts. - Since subdivision (1) of § 18.2-456 is not statutorily restricted in terms of highly specific conduct or specific persons as are the other subdivisions of that statute, it cannot be considered unreasonable for the legislature to have deemed it in the interest of justice to provide a slightly greater procedural safeguard, in the form of jury trial as provided by this section, for those contempts of this more general subdivision which will be punished by a fine exceeding $50 or imprisonment of more than 10 days. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

What are "serious" crimes for jury trial purposes. - Contempts punishable by more than six months' imprisonment or a greater than $500 fine or both appear to constitute "serious" crimes for jury trial purposes. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Penalty imposed is evidence of seriousness of offense. - Since Virginia does not specify sentencing limits for cases of contempt, the court must look to the penalty actually imposed as the best evidence of the seriousness of the offense. Greene v. Tucker, 375 F. Supp. 892 (E.D. Va. 1974).

Fine limited to $50 (now $250). - Fine of $400 for contempt was excessive: where punishment is by fine and determined without a jury, amount of fine is limited to $50 (now $250). Brown v. Commonwealth, 26 Va. App. 758, 497 S.E.2d 147 (1998).

Where the appellant was held in contempt for failure to appear at a pretrial conference and there was nothing in the record to indicate that she failed to comply with a discovery order, the court's contempt power did not flow from Rule 4:12, and instead, the fine was limited to $50 (now $250) under this section. Roberts v. Haiar, No. 2096-97-1 (Ct. of Appeals February 24, 1998).

Excessive sentence. - Where defendant's use of profanity toward the prosecutor at defendant's sentencing hearing supported a contempt finding under § 18.2-456 (1), defendant's sentence, imposed without a jury, of 12 months in jail and a $1,000 fine was excessive under the applicable sentencing statute, § 18.2-457 , to the extent that it exceeded a jail term of 10 days and a $250 fine; the sentence was vacated and a sentence of 10 days in jail and a $250 fine was imposed. Middlebrooks v. Commonwealth, No. 1516-01-1, 2002 Va. App. LEXIS 433 (Ct. of Appeals July 30, 2002).

Common-law contempt not bound within statutory sentencing guidelines. - Attorney's scheduling of various matters in different courts on the same day, and then his failure to call one of the courts to report that he would be tardy, was found to be sufficient to support the court's finding that he was guilty of common-law indirect criminal contempt; the court was not obligated to sentence him within the limits of §§ 18.2-456 and 18.2-457 because he was not charged with summary or direct contempt, and he had a plenary hearing prior to being found guilty. Robinson v. Commonwealth, 41 Va. App. 137, 583 S.E.2d 60, 2003 Va. App. LEXIS 397 (2003).

No right to jury. - Trial court did not err in the manner it conducted defendant's proceedings involving civil and criminal contempt charges for his conduct in making courthouse security decisions in his role as sheriff; the record indicated that defendant was afforded all rights and privileges due him in a criminal proceeding and he was not permitted to have a jury because the Commonwealth proceeded under § 18.2-457 , which allowed a punishment of no more than 10 days in jail. Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912, 2006 Va. App. LEXIS 102 (2006).

Impermissible sanction. - In the absence of authority granted by a statute, a trial court's inherent power to supervise the conduct of attorneys practicing before it and to discipline an attorney who engages in misconduct does not include the power to impose as a sanction an award of attorneys' fees and costs to the opposing parties. If an attorney's conduct is disruptive of court processes or disrespectful of the court itself, there is ample power to punish the misconduct as contempt. Nusbaum v. Berlin, 273 Va. 385 , 641 S.E.2d 494, 2007 Va. LEXIS 26 (2007).

§ 18.2-458. Power of judge of district court to punish for contempt.

A judge of a district court shall have the same power and jurisdiction as a judge of a circuit court to punish summarily for contempt, but in no case shall the fine exceed $250, or the imprisonment exceed ten days, for the same contempt.

(Code 1950, § 18.1-293; 1960, c. 358; 1975, cc. 14, 15; 1999, c. 626.)

The 1999 amendment substituted "$250" for "fifty dollars."

Law review. - For comment, "Lack of Due Process in Virginia Contempt Proceeding for Failure to Comply with Order for Support and Alimony," see 4 U. Rich. L. Rev. 128 (1969).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 15 Sanctions. § 15.10 Contempt. Friend.

CASE NOTES

Right of confrontation and contempt. - Defendant's constitutional right of confrontation was not violated by admission into evidence in criminal proceeding of certificate prepared by general district court judge, which detailed circumstances of offense. Baugh v. Commonwealth, 14 Va. App. 368, 417 S.E.2d 891 (1992), overruled in part by Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Verbal direction to sheriff's deputies to take defendant into custody for a specified number of hours, is equivalent to a written order and therefore is binding upon the sheriff's office, and sheriff's deputies carrying out such orders enjoy the same qualified sovereign immunity they have when others are in their custody. See opinion of Attorney General to The Honorable Dennis S. Proffitt, Sheriff, County of Chesterfield, 10-069, 2010 Va. AG LEXIS 52 (8/30/10).

Prefiling review. - A district court may, pursuant to § 8.01-271.1 , impose a pre-filing review requirement if such a sanction is appropriate. Further, a district court has the inherent authority to limit or prevent an attorney or a litigant from practicing before it in the event the court determines, after a hearing, that the attorney or litigant has engaged in the unauthorized practice of law or otherwise has engaged in unprofessional or unethical conduct. See opinion of Attorney General to The Honorable Barbara J. Gaden, Judge, Richmond General District Court, 10-068, 2010 Va. AG LEXIS 51 (8/30/10).

§ 18.2-459. Appeal from sentence of such judge.

Any person sentenced to pay a fine, or to confinement, under § 18.2-458 , may appeal therefrom to the circuit court of the county or city in which the sentence was pronounced, upon entering into recognizance before the sentencing judge, with surety and in penalty deemed sufficient, to appear before such circuit court to answer for the offense. If such appeal be taken, a certificate of the conviction and the particular circumstances of the offense, together with the recognizance, shall forthwith be transmitted by the sentencing judge to the clerk of such circuit court, who shall immediately deliver the same to the judge thereof. Such judge, sitting without a jury, shall hear the case upon the certificate and any legal testimony adduced on either side, and make such order therein as may seem to him proper.

(Code 1950, § 18.1-294; 1960, c. 358; 1975, cc. 14, 15; 2013, c. 615.)

The 2013 amendments. - The 2013 amendment by c. 615 substituted "sitting without a jury, shall" for "may" in the last sentence.

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 15 Sanctions. § 15.10 Contempt. Friend.

CASE NOTES

Construction with other laws. - Where the provisions of §§ 16.1-69.24 and 18.2-459 address the specific subject of appeals from summary contempt adjudications in the district courts, and the provisions of §§ 16.1-132 and 16.1-136 address the general subject of appeals from the district courts, to the extent that the more specific provisions of §§ 16.1-69.24 and § 18.2-459 are in conflict with the general provisions of §§ 16.1-132 and 16.1-136, the more specific statutes prevail. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Under the plain meaning of § 18.2-459 , an appellant is entitled to present evidence in the circuit court, and the court commits an error of law by interpreting the phrase legal testimony to mean simply legal argument. Unger v. Commonwealth,, 2015 Va. App. LEXIS 394 (Dec. 22, 2015).

By its plain reading, this section directs the circuit court to reach an independent determination regarding the contemnor's guilt, while using the district court's recitation of what occurred in that court's presence, along with any legal testimony presented to the circuit court by either party. Unger v. Commonwealth,, 2015 Va. App. LEXIS 394 (Dec. 22, 2015).

No rights under confrontation clause. - Virginia legislature does not intend to give birth to a constitutional right to cross-examine a juvenile and domestic relations district court (JDR court) judge at an appeal of a petty direct summary contempt proceeding, a right that a defendant does not otherwise have in the JDR court or the circuit court, as: (1) a JDR court proceeding is not a criminal prosecution within the scope of the Sixth Amendment; (2) there is no constitutional right to trial at the JDR court and no constitutional right of appeal; (3) there is a statutory prohibition against calling a judge as a witness; and (4) the Virginia general assembly provides a statutory right of appeal with the caveat that a certificate from the JDR court can be used in such an appeal. Gilman v. Commonwealth, 48 Va. App. 16, 628 S.E.2d 54, 2006 Va. App. LEXIS 130 (2006), rehearing granted, 48 Va. App. 236, 629 S.E.2d 720 (2006), opinion withdrawn, vacated by 2006 Va. App. LEXIS 456 (Oct. 10, 2006).

Confrontation clause rights not violated. - Defendant's rights under the Confrontation Clause were not violated by the use of a certificate from a juvenile and domestic relations district court (JDR court) judge in her appeal from a conviction for petty direct summary contempt as the Virginia legislature did not intend to give birth to a constitutional right to cross-examine a JDR court judge at an appeal of a petty direct summary contempt proceeding as: (1) a JDR court proceeding was not a criminal prosecution within the scope of the Sixth Amendment; (2) there was no constitutional right to trial at the JDR court and no constitutional right of appeal; (3) there was a statutory prohibition against calling a judge as a witness; and (4) the Virginia general assembly provided a statutory right of appeal with the caveat that a certificate from the JDR court could be used in such an appeal. Gilman v. Commonwealth, 48 Va. App. 16, 628 S.E.2d 54, 2006 Va. App. LEXIS 130 (2006), rehearing granted, 48 Va. App. 236, 629 S.E.2d 720 (2006), opinion withdrawn, vacated by 2006 Va. App. LEXIS 456 (Oct. 10, 2006).

Because the provisions of § 16.1-69.24 and § 18.2-459 had to prevail over the more general provisions of §§ 16.1-132 and 16.1-136, a contemnor appealing an adjudication of summary contempt does not receive a trial de novo in the circuit court with attendant Sixth Amendment protections and, thus, does not have a Sixth Amendment right of confrontation in that summary contempt adjudication in the circuit court. Gilman v. Commonwealth, 275 Va. 222 , 657 S.E.2d 474, 2008 Va. LEXIS 23 (2008).

Reviewing court did not violate defendant's due process right to confrontation by admitting into evidence the juvenile and domestic relations court's certificate of the summary contempt conviction and particular circumstances of the offense under § 18.2-459 as no litigant in a summary contempt case had a right to cross-examine the judge under the Sixth Amendment, U.S. Const. amend. VI, and the Due Process Clause, U.S. Const. amend. XIV, did not afford a right of confrontation where the Sixth Amendment did not. Parham v. Commonwealth, 60 Va. App. 450, 729 S.E.2d 734, 2012 Va. App. LEXIS 248 (2012).

Due process not violated. - Denial of appellant's motion to dismiss the district court contempt adjudication was not error where she did not claim a systemic due process violation, and thus, an appeal in the circuit court in compliance with § 18.2-459 requirements was the only remedy available to appellant on the facts of the case. Unger v. Commonwealth,, 2015 Va. App. LEXIS 394 (Dec. 22, 2015).

Error to allow judge's testimony. - Trial court erred in allowing the sitting circuit judge to testify in defendant's civil and criminal contempt case where defendant defied the trial court's order to have a deputy at the courthouse entrance during weekly business hours, and he took down signs ordered to be posted by the trial court about when the courthouse would be closed absent a deputy at the front entrance despite at least one request by the trial court that a sign and corresponding order be returned; the court itself, and not the trial judge, was the victim of defendant's contemptuous conduct and other statutory authority, such as § 18.2-459 , did not permit a judicial officer who simply witnesses contemptuous behavior to testify. Epps v. Commonwealth, 47 Va. App. 687, 626 S.E.2d 912, 2006 Va. App. LEXIS 102 (2006).

Defendant could not complain on appeal of evidence that he introduced at trial. - Because the results of an Alcosensor test for blood alcohol content were properly admitted and considered by the circuit court as the fact finder, and defendant did not object to the admission of the general district court certificate of the conviction, filed pursuant to § 18.2-459 , which he himself introduced into evidence, his contempt conviction was upheld on appeal. Rozario v. Commonwealth, 50 Va. App. 142, 647 S.E.2d 502, 2007 Va. App. LEXIS 272 (2007).

CIRCUIT COURT OPINIONS

Confrontation clause rights not violated. - Defendant's constitutional right of confrontation was not violated when a certificate of conviction and particular circumstances of an offense prepared by a juvenile and domestic relations district court judge was admitted into evidence against her where the court was exercising its contempt jurisdiction; the basic confrontation rights only applied when a court exercised its criminal jurisdiction. Commonwealth v. Tanner, 73 Va. Cir. 434, 2007 Va. Cir. LEXIS 214 (Roanoke County July 17, 2007).

Construction with other laws. - Sections 16.1-69.24 and 18.2-459 explicitly allow appeals to the circuit courts from summary contempt convictions in the district courts, but not for dismissals; by necessary implication, subsection H of § 16.1-296 allows appeals from findings of civil or criminal contempt in the juvenile and domestic relations district courts for failure to pay support, as the statute establishes bond requirements for appeals. Huck v. Banfield, 94 Va. Cir. 182, 2016 Va. Cir. LEXIS 167 (Norfolk Aug. 25, 2016).

Article 6. Interference with Administration of Justice.

§ 18.2-460. Obstructing justice; resisting arrest; fleeing from a law-enforcement officer; penalties.

  1. If any person without just cause knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, any law-enforcement officer, or animal control officer employed pursuant to § 3.2-6555 in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, attorney for the Commonwealth, witness, law-enforcement officer, or animal control officer employed pursuant to § 3.2-6555, he is guilty of a Class 1 misdemeanor.
  2. Except as provided in subsection C, any person who, by threats or force, knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, any law-enforcement officer, or an animal control officer employed pursuant to § 3.2-6555 lawfully engaged in his duties as such, or to obstruct or impede the administration of justice in any court, is guilty of a Class 1 misdemeanor.
  3. If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, any law-enforcement officer, lawfully engaged in the discharge of his duty, or to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate § 18.2-248 or subdivision (a)(3), (b) or (c) of § 18.2-248.1 , or § 18.2-46.2 or § 18.2-46.3 , or relating to the violation of or conspiracy to violate any violent felony offense listed in subsection C of § 17.1-805 , he is guilty of a Class 5 felony.
  4. Any person who knowingly and willfully makes any materially false statement or representation to a law-enforcement officer or an animal control officer employed pursuant to § 3.2-6555 who is in the course of conducting an investigation of a crime by another is guilty of a Class 1 misdemeanor.
  5. Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor. For purposes of this subsection, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave.

    (Code 1950, § 18.1-310; 1960, c. 358; 1975, cc. 14, 15; 1976, c. 269; 1984, c. 571; 1989, c. 506; 1993, c. 747; 1996, c. 718; 1999, cc. 770, 800; 2002, cc. 527, 810, 818; 2003, cc. 111, 149; 2004, cc. 396, 435; 2007, cc. 220, 282; 2009, c. 242; 2018, c. 417.)

Cross references. - As to interference in arrest of keeper of gaming table, see § 18.2-330 .

As to competency of persons having the power to issue warrants to testify in any criminal proceeding wherein the defendant is charged pursuant to this section, see § 19.2-271 .

Editor's note. - At the direction of the Virginia Code Commission, the catchline has been updated by inserting "resisting arrest."

The 1996 amendment substituted "Class 2 misdemeanor" for "Class 3 misdemeanor" at the end of subsection A.

The 1999 amendments. - The 1999 amendments by cc. 770 and 800 are identical, and inserted "or relating to the violation of or conspiracy to violate any violent felony offense listed in subsection C of § 17.1-805 " in subsection C.

The 2002 amendments. - The 2002 amendment by c. 527 added subsection D.

The 2002 amendments by cc. 810 and 818 are identical, and substituted "Class 1 misdemeanor" for "Class 2 misdemeanor" in subsection A.

The 2003 amendments. - The 2003 amendments by cc. 111 and 149 are identical, and substituted "Class 1" for "Class 2" in subsection D.

The 2004 amendments. - The 2004 amendments by cc. 396 and 435 are identical, and substituted "subdivision (a) (3), (b) or (c) of § 18.2-248.1 or § 18.2-46.2 or § 18.2-46.3 " for " § 18.2-248.1 (a) (3)" in subsection C.

The 2007 amendments. - The 2007 amendment by c. 220 substituted "Except as provided in subsection C, any person who, by" for "If any person, by" and "court, is guilty" for "court, he shall be deemed to be guilty" in subsection B.

The 2007 amendment by c. 282 inserted "attorney for the Commonwealth" near the beginning of subsection C.

The 2009 amendments. - The 2009 amendment by c. 242 inserted "or animal control officer employed pursuant to § 3.2-6555" twice in subsection A and in subsections B and D and made related changes.

The 2018 amendments. - The 2018 amendment by c. 417 substituted "is guilty" for "shall be guilty" in subsections A and C; and added subsection E.

Law review. - For comment, "Spoliation: Civil Liability for Destruction of Evidence," see 20 U. Rich. L. Rev. 191 (1985).

For article surveying developments in labor and employment law in Virginia, see 37 U. Rich. L. Rev. 241 (2002).

For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

For article summarizing Virginia labor and employment law cases from 2007, see 43 U. Rich. L. Rev. 211 (2008).

For annual survey article, "Animal Law," see 44 U. Rich. L. Rev. 185 (2009).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escape, § 1; 14A M.J. Obstructing Justice, §§ 2, 3; 20 M.J. Witness, § 11.1.

CASE NOTES

Constitutionality. - This section was not unconstitutional in granting the prosecutor discretion to charge a defendant's conduct as either a misdemeanor under subsection B or as a felony under subsection C, where there was no principled basis for differentiating between prosecutorial discretion afforded the government when a defendant had violated more than one criminal statute and prosecutorial discretion when the charging decision involved two subsections of the same statute. Bishop v. Commonwealth, 49 Va. App. 251, 639 S.E.2d 683, 2007 Va. App. LEXIS 20 (2007), rev'd, in part, on other grounds, 275 Va. 9 , 654 S.E.2d 906, 2008 Va. LEXIS 19 (2008).

Because defendant threatened to kill a police officer, and because the speech proscribed by subsection C of § 18.2-460 encompassed only "threats of bodily harm," the statute was not unconstitutional either facially or as applied to defendant; "fighting words" were not necessary for a conviction under the statute. Wise v. Commonwealth, 49 Va. App. 344, 641 S.E.2d 134, 2007 Va. App. LEXIS 68 (2007).

Subsection C of § 18.2-460 does not reach a substantial amount of constitutionally protected speech and is not facially violative of the First Amendment; "fighting words" are not necessary for a conviction under § 18.2-460 . Wise v. Commonwealth, 49 Va. App. 344, 641 S.E.2d 134, 2007 Va. App. LEXIS 68 (2007).

Legislative intent. - The absence of language in this section relating to use of a weapon indicates the legislative intent to include in the misdemeanor offense of obstructing justice less violent types of conduct, and to make conduct accompanied by the use of a weapon subject to prosecution for greater offenses, such as attempted murder. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

The statute was enacted for the purpose of deterring those who intimidate any witness lawfully engaged in his duties as such. Fleming v. Commonwealth, 13 Va. App. 349, 412 S.E.2d 180 (1991).

Concluding that a particular action is vile, abhorrent, and criminal does not compel the conclusion that the activity violates a specific statute. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Threatening violence against anyone is wrong, and through the statutes it has enacted, the General Assembly has determined that threatening certain public officials as they attempt to perform their official duties is more egregious than the average threat because the threat is made not only against the individual but the office he or she holds as a representative of the people as sovereign. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Fair reading of the "relating to" 'requirement is that the threat and attempted obstruction have a direct relationship to the enumerated felony; the overriding purpose of subsection C is to prevent the use of threats to attempt to intimidate or impede a covered individual from carrying out his or her duty related to an enumerated felony. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Attempted arson fell within the proscribed offenses in the felony obstruction statute because the language of the obstruction statute, when considered in conjunction with the language of the statute that it incorporated by reference, subsection C of § 17.1-805 , reflected an intention by the legislature to proscribe attempt crimes. Tanner v. Commonwealth, 72 Va. App. 86, 841 S.E.2d 377, 2020 Va. App. LEXIS 131 (2020).

Evidence of fleeing insufficient. - Evidence was insufficient to support defendant's conviction for resisting arrest because, although defendant's actions certainly demonstrated resistance and efforts to avoid physical custody, there was no evidence of defendant fleeing from an officer, a necessary element of the offense of resisting arrest, as defendant remained continuously in close proximity to the arresting officer at all times. Joseph v. Commonwealth, 64 Va. App. 332, 768 S.E.2d 256, 2015 Va. App. LEXIS 36 (2015).

Evidence sufficient. - Evidence that defendant intended to flee, broke from the officer's grasp, moved away from the officer's immediate control, and would have traveled more than a few steps if the officer had not quickly managed to grab defendant's jacket was sufficient to support defendant's conviction for resisting arrest. Perry v. Commonwealth,, 2015 Va. App. LEXIS 396 (Dec. 29, 2015).

Evidence was sufficient to establish beyond a reasonable doubt that defendant resisted arrest because defendant cursed at a police officer, when the officer drew a weapon and advised defendant that defendant was under arrest and to turn around and put defendant's hands behind defendant's back, and ran from the officer until defendant tripped and the officer was able to handcuff defendant. In addition, the officer was worried that defendant had a gun and waited for other officers to arrive on the scene before actually approaching defendant. Battaglia v. Commonwealth, No. 0719-15-4, 2017 Va. App. LEXIS 59 (Mar. 7, 2017).

Evidence that defendant was aware that the officers were in his home to conduct an investigation, ignored the officers' orders to him and used force to close a door to prevent the officers from entering a back bedroom was sufficient to support defendant's obstruction of justice conviction. Hamilton v. Commonwealth, 69 Va. App. 176, 817 S.E.2d 343, 2018 Va. App. LEXIS 217 (2018).

Evidence was sufficient to support defendant's conviction of attempting to flee from a law-enforcement officer because after a high-speed car chase with the officer's emergency equipment activated on his vehicle the vehicles collided and defendant ran, the officer drew his firearm and instructed defendant to stop, and the officer used a taser on defendant and placed himself on top of defendant. Peters v. Commonwealth, 72 Va. App. 378, 846 S.E.2d 23, 2020 Va. App. LEXIS 223 (2020).

Venue. - In an obstruction of justice case under this section, it was uncontested that defendant accomplished all of the elements of the crime in Virginia Beach, where defendant's estranged wife resided. Although the wife was subpoenaed to testify specifically in the trial court in Norfolk, the Norfolk trial court lacked venue pursuant to § 19.2-244 because the entire offense was committed in Virginia Beach. Williams v. Commonwealth,, 2016 Va. App. LEXIS 28 (Feb. 2, 2016).

Violation of subsection C. - Commonwealth failed to prove that defendant violated subsection C of § 18.2-460 , because it had presented no proof that, at the time a threatening statement was made to a deputy, the deputy was engaged in the discharge of any duty "relating to a violation of or conspiracy to violate" one of the felony offenses listed in § 18.2-460 . Washington v. Commonwealth, 273 Va. 619 , 643 S.E.2d 485, 2007 Va. LEXIS 61 (2007).

Where defendant refused police officers' commands to stop running, and, once caught, refused commands to give officers his hands, there was insufficient evidence of "force" to convict defendant of felony obstruction of justice. But as defendant intended to impede the officers in the performance of their duties, defendant committed misdemeanor obstruction. Belton v. Commonwealth,, 2007 Va. App. LEXIS 391 (Oct. 23, 2007).

Defendant's conviction of felony obstruction of justice under subsection C of § 18.2-460 had to be reversed as none of the statutorily enumerated felony offenses were at issue. Roach v. Commonwealth, 51 Va. App. 741, 660 S.E.2d 348, 2008 Va. App. LEXIS 212 (2008).

Section does not articulate public policy exception to employment-at-will. - There is no established public policy underlying this section that would support a police officer's wrongful discharge action based on the public policy exception to the employment-at-will doctrine. City of Va. Beach v. Harris, 259 Va. 220 , 523 S.E.2d 239 (2000).

Statute did not create any statutory right or a corresponding public policy of the type that would support an exception to the employment-at-will doctrine and, thus, allow a common-law action for wrongful termination. Rowan v. Tractor Supply Co., 263 Va. 209 , 559 S.E.2d 709, 2002 Va. LEXIS 38 (2002).

Public policy behind the obstruction of justice statute is not to protect individuals from intimidation, but to protect the public from a flawed legal system due to impaired prosecution of criminals. Hence, an employer did not violate the public policy behind the obstruction of justice statute by terminating an employee for pursuing criminal assault charges against a fellow employee. Rowan v. Tractor Supply Co.,, 2004 U.S. App. LEXIS 18594 (4th Cir. Sept. 2, 2004).

It is the threats made by the offender, coupled with his intent, that constitute the offense under subsection A of this section; the resulting effect of the offender's threats, such as fear, apprehension, or delay, is not an element of the crime. Polk v. Commonwealth, 4 Va. App. 590, 358 S.E.2d 770 (1987).

"Threat" defined. - The defendant's statement that he would kill the police officer was a threat as contemplated by subsection A of this section. Polk v. Commonwealth, 4 Va. App. 590, 358 S.E.2d 770 (1987).

Although words alone can support a conviction for obstruction of justice, those words generally must contain some manner of a threat intended to intimidate a police officer. Brown v. City of Danville, 44 Va. App. 586, 606 S.E.2d 523, 2004 Va. App. LEXIS 627 (2004).

It is not necessary that there be an assault or physical threat in order to find criminal intent under this statute. Woodson v. Commonwealth, 14 Va. App. 787, 421 S.E.2d 1 (1992), aff'd, 245 Va. 401 , 429 S.E.2d 27 (1993).

The actual assault of a police officer is not prerequisite to a finding obstruction of justice in Virginia. Smith v. Tolley, 960 F. Supp. 977 (E.D. Va. 1997).

Intent to impede a police officer. - It is not defendant's intent to use a gun in an offensive manner that is prohibited by the statute; rather, it is his intent to impede a police officer in the performance of his duties that is the gravamen of the statute. Woodson v. Commonwealth, 14 Va. App. 787, 421 S.E.2d 1 (1992), aff'd, 245 Va. 401 , 429 S.E.2d 27 (1993).

Where defendant injected himself between police officers and man they sought to question, he plainly intended and accomplished interference with proper performance of officers' duties. Mason v. Commonwealth, No. 1189-98-2 (Ct. of Appeals Aug. 3, 1999).

Trial court correctly denied defendant's motion to suppress evidence a police officer seized from his person because the officer was conducting a reasonable search incident to arrest when he removed a crack pipe from defendant's pocket; because defendant refused to allow a police officer to conduct a pat-down search and struggled with the officer, the officer had probable cause to arrest defendant for obstruction of justice. Pettaway v. Commonwealth,, 2009 Va. App. LEXIS 178 (Apr. 21, 2009).

Even if an officer lacked probable cause to arrest a defendant for public intoxication, there was probable cause to support an arrest for obstruction of justice where the defendant's acts of agitation, aggression, and shouldering himself into an officer impeded the officer's ability to conduct an investigation. Thomas v. Commonwealth,, 2010 Va. App. LEXIS 117 (Mar. 30, 2010).

Intent to prevent officer's performance of duty required. - A conviction for violation of this section requires proof of acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to "obstruct" ordinarily implies opposition or resistance by direct action; it means to obstruct the officer himself, not merely to oppose or impede the process with which the officer is armed. Rogers v. Pendleton, 249 F.3d 279, 2001 U.S. App. LEXIS 8157 (4th Cir. 2001).

While defendant's conduct demonstrated an intent to cause public inconvenience, annoyance or alarm as required for a conviction of disorderly conduct under § 18.2-415 , there was no evidence proving beyond a reasonable doubt that defendant had an intention to prevent the officer from performing her duties, which is the conduct prohibited by § 18.2-460 . Cary v. Commonwealth,, 2015 Va. App. LEXIS 295 (Oct. 20, 2015).

Focus is on defendant's intent, not the officer's intent. - When evaluating whether a defendant's actions fall within the ambit of § 18.2-460 , a court's focus is not on the intent of the police officer but, rather, on the intent of the defendant to commit an act of violence or force. Ishtiwi v. Commonwealth, No. 0734-04-4, 2005 Va. App. LEXIS 11 (Ct. of Appeals Jan. 11, 2005).

Even assuming that a police officer had no present intent to visit defendant at the time that defendant threatened the officer that if he came to defendant's house, he would get a dog bite, defendant could not rely on the officer's lack of present intent to negate his own intent to commit an act of violence or force. Ishtiwi v. Commonwealth, No. 0734-04-4, 2005 Va. App. LEXIS 11 (Ct. of Appeals Jan. 11, 2005).

This section requires actual hindrance or obstruction of the officer, opposition or resistance by direct action; obstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person's conduct merely renders the officer's task more difficult or frustrates his investigation. Rogers v. Pendleton, 249 F.3d 279, 2001 U.S. App. LEXIS 8157 (4th Cir. 2001).

Peaceful criticism directed at police officer during an arrest did not constitute "direct action" for purposes of subsection A of § 18.2-460 , and police officers had no probable cause to arrest attorney under this section for advising an arrestee of his constitutional rights while officers were in the process of making the arrest; and the fact that the attorney refused to leave the scene after one of the officers told the attorney to do so did not provide a basis for probable cause because the attorney was required to have been obstructing the officer in order to have violated the order to leave under the statute. Wilson v. Kittoe, 229 F. Supp. 2d 520, 2002 U.S. Dist. LEXIS 21532 (W.D. Va. 2002), aff'd, 337 F.3d 392 (4th Cir. 2003).

The ability to peacefully criticize the police as a right of a free society has been recognized in Virginia, and police officers had no probable cause to arrest attorney under subsection A of § 18.2-460 for advising an arrestee of his constitutional rights while officers were in the process of making the arrest. Wilson v. Kittoe, 229 F. Supp. 2d 520, 2002 U.S. Dist. LEXIS 21532 (W.D. Va. 2002), aff'd, 337 F.3d 392 (4th Cir. 2003).

District court properly denied an officer's motion for summary judgment on qualified immunity grounds where an attorney's inquiry into a neighbor's son's well-being during an arrest, inquiries to the arresting and assisting officers requesting permission to talk with the son after the arrest was completed, and peaceful attempts to remind the officer of the son's constitutional rights did not give the arresting officer probable cause to arrest the attorney for obstruction of justice under subsection A of § 18.2-460 . Wilson v. Kittoe, 337 F.3d 392, 2003 U.S. App. LEXIS 14609 (4th Cir. 2003).

Not a crime involving moral turpitude. - Court did not owe Chevron deference to the Board of Immigration Appeals' decision that an alien's Virginia conviction for obstruction of justice was a crime involving moral turpitude that precluded relief under the Nicaraguan Adjustment and Central American Relief Act, as the decision involved interpretation of a state statute and was non-precedential; the alien's conviction was not a crime involving moral turpitude because the obstruction of justice statute did not require morally reprehensible conduct. Ramirez v. Sessions, 887 F.3d 693, 2018 U.S. App. LEXIS 9642 (4th Cir. 2018).

Sufficiency of force to constitute offense. - To constitute obstruction of an officer in the performance of his duty it is not necessary that there be an actual or technical assault upon the officer, but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to "obstruct" ordinarily implies opposition or resistance by direct action and forcible or threatened means. It means to obstruct the officer himself; not merely to oppose or impede the process with which the officer is armed. Jones v. Commonwealth, 141 Va. 471 , 126 S.E. 74 (1925); Love v. Commonwealth, 212 Va. 492 , 184 S.E.2d 769 (1971).

Failing to cooperate fully with an officer or engaging in conduct which merely renders the officer's task more difficult is not proscribed by this section. Piela v. Commonwealth, No. 0550-99-1, 2000 Va. App. LEXIS 260 (Ct. of Appeals Apr. 4, 2000).

Running away from officer. - Commonwealth did not prove beyond a reasonable doubt that defendant "obstructed" a law-enforcement officer pursuant to subsection A of § 18.2-460 because defendant's failure to stop running away from an officer did not constitute obstruction of justice, and the officer testified at trial that he was never able to touch defendant and that defendant never threw anything at or near the officer to impede his progress, nor was there evidence that defendant threatened the officer in any manner; evidence that a suspect ran away from the police, without doing anything else, is insufficient as a matter of law to convict a person under subsection A. Brandon Jarell Love v. Commonwealth,, 2010 Va. App. LEXIS 409 (Oct. 26, 2010).

Defendant's resistance, running from officers, did not prevent or significantly impede the officers in the performance of their duties and thus, required reversal of the conviction for obstruction of justice. Roberts v. Commonwealth,, 2011 Va. App. LEXIS 303 (Oct. 4, 2011).

Force may be used to repel illegal arrest. - One who is illegally arrested may use a reasonable amount of force to repel the assault. United States v. Moore, 332 F. Supp. 919 (E.D. Va. 1971).

Officers' mistaken belief that defendant was the person named in the capias did not make the capias an instrument upon which they could lawfully arrest her, even if that mistake was made in good faith, and therefore defendant had the right to use reasonable force to resist arrest. Brown v. Commonwealth, 27 Va. App. 111, 497 S.E.2d 527 (1998).

Qualified immunity of police officer. - Circuit court erred by striking an arrestee's § 1983 claim for false arrest based upon qualified immunity because a police officer's actions were not entitled to qualified immunity; no reasonable officer could have concluded that an arrestee's behavior constituted obstruction of justice because the arrestee did not threaten the officer, she did not act with an intention to obstruct the officer, and she did not employ direct action to resist arrest. Cromartie v. Billings, 298 Va. 284 , 837 S.E.2d 247, 2020 Va. LEXIS 2 (Jan. 16, 2020).

Use of force unreasonable. - Because a police officer's use of force was unreasonable under the circumstances, and because it failed both prongs of the qualified immunity analysis at the motion to strike stage, the circuit court erred by granting his motion to strike on an arrestee's § 1983 excessive force claim; the arrestee's infraction for speeding was minor and was not a criminal offense, and obstruction of justice, the offense for which the officer unjustifiably obtained an arrest warrant, was a misdemeanor. Cromartie v. Billings, 298 Va. 284 , 837 S.E.2d 247, 2020 Va. LEXIS 2 (Jan. 16, 2020).

By persons in close relationship. - Persons in close relationship of affinity or consanguinity may resist an officer in making an unlawful arrest. United States v. Moore, 332 F. Supp. 919 (E.D. Va. 1971).

Lawful resistance to unlawful arrest or detention not established. - Where the evidence was sufficient to convict defendant of obstruction of justice under subsection A of § 18.2-460 because she interfered with an officer's issuance of a summons to a driver of a car, in which defendant was a passenger, by making inappropriate comments and by approaching and assaulting the officer as he tried to issue the summons, defendant could not justify her conduct as lawful resistance to an unlawful arrest or detention because she was not detained or arrested when the interference occurred. Bennett v. Commonwealth,, 2010 Va. App. LEXIS 12 (Jan. 12, 2010).

In a case in which defendant was convicted of felony assault on a law-enforcement officer, misdemeanor intentional destruction of property and misdemeanor obstruction of justice, defendant was not resisting an unlawful arrest when she punched, kicked, slapped, and threatened a deputy, in response to his attempts to restrain her, because there was probable cause to arrest her for obstruction of justice when the officer first attempted to handcuff her as the officer told defendant to stay with her vehicle, but she left her vehicle and walked toward a convenience store; defendant refused to obey the deputy's commands to return to her vehicle; and defendant understood that she was actually obstructing the deputy in his duties. Lightfoot v. Commonwealth, No. 0313-20-2, 2021 Va. App. LEXIS 55 (Apr. 6, 2021).

Solicitation not use of threat or force. - An indictment for soliciting one to use his influence with a grand juror to persuade the juror to vote against the finding of the indictment against the defendant does not charge the offense as defined by this section. In order to charge an offense under this section it is necessary to allege an attempted intimidation by threats or force. Wiseman v. Commonwealth, 143 Va. 631 , 130 S.E. 249 (1925).

Conviction need not be based on proof defendant committed underlying felony. - A defendant's conviction for obstruction need not be based on proof that he committed the underlying felony. It is sufficient that the Commonwealth proved that the lawful activity of a state trooper related to an offense specified in subsection C. of this section. Turner v. Commonwealth, 20 Va. App. 713, 460 S.E.2d 605 (1995).

Neither subsection A. nor subsection B. requires a conviction for an underlying offense as an element of the alleged obstruction of justice. Subsection C. evinces legislative intent to make the punishment for obstructing justice as to certain drug offenses more severe than for obstructing justice generally. Turner v. Commonwealth, 20 Va. App. 713, 460 S.E.2d 605 (1995).

Trial court erred in imposing a sentence of 30 days in jail, where appellant was convicted for obstruction of justice in violation of subsection A, a Class 4 misdemeanor. The punishment for a Class 4 misdemeanor is a fine of not more than $250. Nesbit v. Commonwealth, 15 Va. App. 391, 424 S.E.2d 239 (1992).

Defendant convicted under this section could also be prosecuted for attempted murder. - Where defendant was first convicted of, inter alia, obstruction of justice by threats or force (a misdemeanor) and later convicted of attempted murder (a felony), the "same conduct" rule enunciated in Grady v. Corbin, 495 U.S. - , 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), did not apply to bar prosecution of the charge of attempted murder on principles of double jeopardy. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

Suppression of evidence. - In a case in which defendant was convicted for misdemeanor obstruction of justice, in violation of subsection B of § 18.2-460 , for threatening two deputies with violence if they attempted to arrest him, he argued unsuccessfully that the trial court should have suppressed the evidence of his threats because, prior to making his threats against the deputies, they should have advised him of his right to remain silent under the Miranda decision. The Miranda exclusionary rule need not be pushed so far that crimes-by-words could not be proved and punished. Testa v. Commonwealth, 55 Va. App. 275, 685 S.E.2d 213, 2009 Va. App. LEXIS 534 (2009).

Sufficiency of evidence. - The defendant's threat to kill the police officer demonstrated his intent to intimidate the police officer from completion of the post-arrest processing; therefore, the evidence presented was sufficient to establish the defendant's criminal intent. Polk v. Commonwealth, 4 Va. App. 590, 358 S.E.2d 770 (1987).

By brandishing shovel and approaching officer in a threatening manner while officer attempted to serve summons, defendant attempted to intimidate or impede officer in the performance of her duties, and thus his actions amounted to obstruction of justice. Fredriksen v. Commonwealth, No. 0732-98-4 (Ct. of Appeals June 22, 1999).

The evidence was sufficient to support a defendant's conviction under this section where the defendant, who was a prisoner in the county jail, after intentionally disabling his cell door, which prevented a proper lockdown, refused to exit his cell on command and physically resisted the efforts of law-enforcement officers to remove him, while cursing and threatening one of the officers. Such behavior did not simply burden the task of a law-enforcement officer but necessitated affirmative and violent intervention to allow the proper performance of his duties, circumstances clearly contemplated by this section. Piela v. Commonwealth, No. 0550-99-1, 2000 Va. App. LEXIS 260 (Ct. of Appeals Apr. 4, 2000).

Inmate's action in intentionally disabling his cell door, which prevented a proper lockdown, and resisting officers' attempts to remove him from his cell constituted action calculated to impede law-enforcement officers in lawful discharge of their duties, and evidence was thus sufficient to sustain defendant's conviction. Piela v. Commonwealth, No. 0550-99-1 (Ct. of Appeals Apr. 4, 2000).

Evidence was sufficient to support defendant's conviction for obstruction of justice under subsection C of § 18.2-460 where: (1) defendant put items in his mouth as police approached, after observing a drug transaction; (2) defendant knew of the police presence, as the officer approached wearing a gunbelt, a shirt marked "police," and his badge around his neck; (3) defendant struggled with the officer; and (4) defendant refused to spit the items out of his mouth when ordered to do so by the officer. Ward v. Commonwealth, No. 1773-01-1, 2002 Va. App. LEXIS 624 (Ct. of Appeals Oct. 15, 2002).

Evidence was sufficient to support defendant's conviction for obstruction of justice, as it showed that defendant refused the commands of law-enforcement officers to get down on the ground so that he could be arrested and that he also refused to take his hands out of his jacket when ordered to do so, resulting in his struggle with police officers while he was being handcuffed and taken into custody. Payne v. Commonwealth, No. 3339-02-3, 2003 Va. App. LEXIS 616 (Ct. of Appeals Dec. 2, 2003).

Police acted reasonably when they conducted a strip search of defendant who was arrested for failure to appear in court on a felony narcotics charge before they placed defendant in a detention facility, and the trial court's judgments denying defendant's motion to suppress 12 pieces of cocaine which police found in a plastic bag defendant had placed between his buttocks, and convicting defendant of possession of cocaine with the intent to distribute and obstruction of justice for fighting with police when they attempted to conduct their search, were upheld. Craddock v. Commonwealth, 40 Va. App. 539, 580 S.E.2d 454, 2003 Va. App. LEXIS 296 (2003).

Where defendant, a physically imposing man, was loud, confrontational, stood within an arm's length of a police officer, and kept repeating that a police officer "better" fix or "needed to fix" a malicious wounding charge for which the officer had arrested defendant, defendant's actions constituted a "threat of bodily harm or force" and defendant acted with the requisite intent to intimidate a police officer; as a result, the evidence was sufficient to support defendant's conviction for obstructing justice under subsection C. Jones v. Commonwealth, No. 3288-02-2, 2004 Va. App. LEXIS 187 (Ct. of Appeals Mar. 2, 2004).

Where the evidence showed that defendant slipped out of his coat and ran when officers initially attempted to detain him, struggled, kicked, and was uncooperative after a group of officers were able to subdue him, and refused to move his hands into view, but had his hands on top of a loaded firearm, said facts and circumstances proved beyond a reasonable doubt that defendant was guilty of obstructing justice; moreover, defendant was not justified in using force against the officers in order to resist an investigative detention. Spinner v. Commonwealth, No. 2548-03-3, 2004 Va. App. LEXIS 490 (Ct. of Appeals Oct. 12, 2004).

Because defendant refused to spit out a suspected narcotic that defendant had ingested, the evidence was sufficient to find that defendant obstructed justice in violation of subsection A of § 18.2-460 . Jones v. Commonwealth,, 2007 Va. App. LEXIS 29 (Jan. 30, 2007).

Because defendant's post-entry assaults on police officers were outside the scope of the exclusionary rule, and because police officers had probable cause under § 19.2-81 to make a warrantless arrest for public intoxication, the Fourth Amendment was irrelevant; since defendant had no right to resist the arrest, defendant's motion to suppress was properly denied and defendant was properly convicted of assault and battery on a police officer and obstruction of justice. Messier v. Commonwealth,, 2007 Va. App. LEXIS 201 (May 15, 2007).

Evidence was sufficient to prove that defendant obstructed justice in violation of subsection A of § 18.2-460 as defendant's refusal to obey an officer's order to get out of defendant's car, defendant's walking away after having been told defendant was under arrest, and defendant's "pulling" and "tugging" from the officer's grasp obstructed the officer's execution of defendant's arrest. Collins v. Commonwealth,, 2007 Va. App. LEXIS 468 (Dec. 27, 2007).

Where defendant grabbed an officer's hand as the officer was trying to handcuff him, and was thrashing and pulling away so hard that he bent the handcuffs, the evidence was sufficient to prove that he obstructed justice in violation of § 18.2-460 . Solorzano v. Commonwealth,, 2008 Va. App. LEXIS 39 (Jan. 22, 2008).

Appellant's obstruction of justice conviction was reversed because, although appellant failed to properly preserve the issue for appellate review, the "ends of justice" exception applied since a miscarriage of justice occurred because appellant could not have been convicted of violating subsection A of § 18.2-460 based solely upon appellant's flight from the scene. Yancey v. Commonwealth,, 2008 Va. App. LEXIS 29 (Jan. 15, 2008).

Evidence was sufficient to support the trial court's finding that defendant knowingly and without just cause obstructed officers in the performance of their duties within the meaning of § 18.2-460 . Defendant not only refused the officers' order to defendant to get out of the vehicle in which defendant was a passenger, but also attempted to flee by breaking away after the officers placed their hands on defendant to remove defendant from the car, and defendant physically resisted the officers' efforts to put defendant's hands behind defendant's back and handcuff defendant in order to effect an arrest for the offense of carrying a concealed firearm. Coleman v. Commonwealth,, 2008 Va. App. LEXIS 463 (Oct. 14, 2008).

Evidence was sufficient to support defendant's conviction for obstruction of justice, as defendant ran from officers, twisted away from the officers, and repeatedly tried to put defendant's hands in defendant's pockets. Defendant also kicked defendant's legs as officers tried to arrest defendant. Boxley v. Commonwealth,, 2009 Va. App. LEXIS 99 (Mar. 10, 2009).

In a case in which defendant was convicted for misdemeanor obstruction of justice, in violation of subsection B of § 18.2-460 , for threatening two deputies with violence if they attempted to arrest him, he argued unsuccessfully that the evidence was insufficient to support his conviction. There was ample evidence that defendant attempted to intimidate the deputies by threatening them with violence; behind a closed, locked door, he told the deputies that he would pick them off one by one if they tried to arrest him and he added that if he was going back to jail, he was bringing them down with him. Testa v. Commonwealth, 55 Va. App. 275, 685 S.E.2d 213, 2009 Va. App. LEXIS 534 (2009).

Evidence was sufficient to convict defendant of misdemeanor obstruction of justice in violation of subsection B of § 18.2-460 because he interposed himself between an officer investigating a noise complaint and the homeowner, he refused to leave, and he lunged at an officer with his hands in the air prior to being arrested. Bennett v. Commonwealth,, 2009 Va. App. LEXIS 566 (Dec. 22, 2009).

Evidence showing that defendant forcibly removed his arm from the grip of a police officer arresting him and then fled from the officer did not merely represent avoidance of the officer but rather was sufficient to support defendant's conviction of obstruction of justice in violation of subsection A of § 18.2-460 . Brown v. Commonwealth,, 2010 Va. App. LEXIS 20 (Jan. 19, 2010).

Trial court did not err by refusing to set aside a verdict finding defendant guilty of obstruction of justice because there was ample evidence that he intended to obstruct a district court judge in the performance of his duties and that his insistence on remaining at counsel table despite an admonishment that the court would not proceed with its business if he remained there constituted a direct act that resulted in a suspension of the court's ability to conduct its business in the courtroom. Lux v. Commonwealth, No. 1476-12-4, 2013 Va. App. LEXIS 329 (Nov. 12, 2013).

Evidence that defendant was in jail, others were outside working to get the charges dropped and defendant out of jail, and defendant's continued demand that the others apply pressure to a witness to keep her from testifying was sufficient for a rational trier of fact to conclude that defendant conspired to intimidate the victim of a burglary to prevent her from testifying against him and two codefendants. Nunnally v. Commonwealth,, 2014 Va. App. LEXIS 257 (July 8, 2014).

Defendant's behavior was designed to obstruct a detective's performance of his duties and necessitated that he use force against her in order to properly perform his duties, circumstances that certainly fell within the statute; defendant refused the detective's repeated order that she exit the vehicle, then locked the vehicle doors to prevent the detective from opening them, then physically obstructed him when he reached inside the open passenger window of the vehicle to unlock the door. Miles v. Commonwealth, No. 1781-14-2, 2015 Va. App. LEXIS 311 (Nov. 3, 2015).

There was sufficient evidence that defendant intended to and did obstruct a sergeant from performing his duties, and thus defendant's conviction of obstruction of justice was affirmed; defendant, after failing to follow the sergeant's instructions multiple times, stepped towards the sergeant in an aggressive, threatening, and angry manner while shouting and cursing, and defendant's conduct prevented the sergeant from performing his official duties, which included maintaining safety of the scene by attempting to create a safe perimeter. Molinet v. Commonwealth, 65 Va. App. 572, 779 S.E.2d 231, 2015 Va. App. LEXIS 357 (2015).

Evidence was sufficient to support defendant's conviction for obstruction of justice, as it showed that the officer requested that defendant roll her window down more at least five times and defendant completely prevented the officer from testing the window tint for a significant period of time, complying only after a backup officer arrived. Thorne v. Commonwealth, 66 Va. App. 248, 784 S.E.2d 304 (2016).

Lower courts erred in finding defendant guilty of felony malicious bodily injury by means of a caustic substance, felony assault and battery of a law-enforcement officer, and obstruction of justice because the evidence contradicted the inference that defendant was hiding behind a water heater and released a bear deterrent "while his brother's hands were raised," the evidence that defendant was present in the basement two hours later was equally as susceptible to a finding consistent with his innocence as it was to a finding of guilt, and the record did not demonstrate that defendant procured, encouraged, countenanced, approved commission of the crime, shared the criminal intent of his brother, or was guilty of some overt act. Wright v. Commonwealth, 292 Va. 386 , 789 S.E.2d 611, 2016 Va. LEXIS 109 (2016), cert. denied, 137 S. Ct. 1442, 2017 U.S. LEXIS 2293, 197 L. Ed. 2d 655 (U.S. 2017).

Defendant's actions during her encounter with the officer prevented him from taking a photograph of the minor, which was necessary for his investigation of the crime of grand larceny; defendant's behavior did more than just make the officer's job more onerous, it completely precluded him from carrying out his investigation, and he could not take the minor's picture until defendant was arrested, and the evidence established that she acted with the intent to obstruct, and thus the evidence was sufficient to prove obstruction of justice. Fripp-Hayes v. Commonwealth, No. 1500-15-4, 2016 Va. App. LEXIS 254 (Ct. of Appeals Oct. 4, 2016).

Evidence was sufficient to support defendant's conviction for obstruction of justice because defendant's behavior obstructed a police officer's performance of the officer's official duties as a law-enforcement officer. To apprehend defendant, the officer was required to threaten defendant with the use of force, when defendant acted aggressively toward the officer by assuming a fighting stance, and was required to remove the officer's Taser and threaten defendant with it to coerce defendant to comply with the officer's orders. Epps v. Commonwealth, No. 1301-15-1, 2016 Va. App. LEXIS 344 (Ct. of Appeals Dec. 13, 2016).

Evidence sustained defendant's obstruction of justice conviction because defendant prevented police officers from fulfilling their duties and intended to prevent the officers from performing their duties as defendant refused to comply with the officers' legitimate orders to stop running, to get on the ground, and to exit an apartment building. Furthermore, defendant yelled that there was a hostage situation and that the officers would have to kill him, threateningly gestured at the officers, and brandished a cell phone as if it were a firearm. Warren v. Commonwealth, No. 0893-17-1, 2018 Va. App. LEXIS 142 (May 29, 2018).

Evidence was sufficient to establish that defendant's threats to a county police detective constituted a violation of subsection B because defendant knowingly made the threat to the detective, who was lawfully engaged in his duties when he attempted to arrest defendant; given the circumstances of the threat, a reasonable factfinder could conclude his purpose was to attempt to intimidate or impede the detective in his attempt to arrest defendant. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Evidence was sufficient to establish defendant violated subsection B with respect to threats made against the county Deputy Commonwealth's Attorney (DCA) because defendant's threats actually obstructed and impeded the DCA in the performance of her duties; defendant's threats to do the DCA harm while she was walking to court represented knowing attempts to intimidate or impede her while she was lawfully engaged in her duties. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Evidence did not establish the direct relationship required by the statute because nothing about defendant's threats after his request for U-visa certification years after the fact could be viewed as an attempt to intimidate or impede the county Deputy Commonwealth's Attorney in carrying out her official duties regarding the felony prosecution. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Evidence was insufficient to support defendant's convictions for violating subsection C because it did not establish the direct relationship of the threats with the felony prosecution as required by the statute; because the "relating to" requirement was not so elastic as to tie defendant's threats to the county Deputy Commonwealth's Attorney and to the county police detective to the prosecution of his attacker, defendant's conduct did not fall within the ambit of subsection C. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Evidence was sufficient to convict defendant of three counts of obstruction of justice because defendant devised a plan to escape from jail and flee to West Virginia, and that part of his plan was to prepare writings that he would leave behind in his cell that would serve as diversions to aid his flight; included in defendant's writings were numerous threats against a Commonwealth's attorney, a judge, two investigators, and a witness together with statements indicating that after defendant had escaped, he would linger in the area long enough to carry out those threats; and the jury could reasonably infer that defendant intended his threatening writings to intimidate or impede the investigators and the witness. Gordon v. Commonwealth, No. 1284-19-3, 2020 Va. App. LEXIS 285 (Nov. 17, 2020).

The evidence failed to establish a violation of this section. Rhodes v. Commonwealth, 182 Va. 39 , 27 S.E.2d 899 (1943).

Evidence showing only that the defendant broke and entered an apartment as he fled from the police, entering from one side of the apartment and exiting on the other, was insufficient to show that he did this with intent to obstruct a law-enforcement officer. Thomas v. Commonwealth, No. 0213-90-2 (Ct. of Appeals March 12, 1991).

Evidence did not prove that defendants had the intent to obstruct justice when they entered apartment where evidence proved that the three men entered the apartment in an apparent attempt to avoid detection or to await the end of the disturbances in which they had been involved; no evidence proved that they had any contact with police officers before they entered the apartment or even that police officers were present when they entered the apartment; and although the men peered through the windows, no facts or circumstances proved that the defendants intended by threat or force to attempt to intimidate or impede a law-enforcement officer. Dowdell v. Commonwealth, No. 1694-93-1 (Ct. of Appeals March 7, 1995).

Defendant did not use unreasonable force to resist an unlawful arrest whether she sat on the sofa and cursed and kicked or jumped from the sofa and kicked, not aiming the kick at any of the officers. Brown v. Commonwealth, 27 Va. App. 111, 497 S.E.2d 527 (1998).

Defendant, involved in automobile accident, who first told officer that he was too drunk to have been driving and later told officer that he did not remember who was driving did not obstruct the officer in the performance of his duties because, although his statements may have frustrated the officer, they did not oppose, impede, or resist the officer's efforts to investigate the accident. Ruckman v. Commonwealth, 28 Va. App. 428, 505 S.E.2d 388 (1998).

Defendant's false statements to investigating officer were insufficient to support conviction for obstruction of justice.(decided prior to the 2002 amendment adding subsection D) Dobson v. Commonwealth, No. 2802-97-2 (Ct. of Appeals June 15, 1999).

Individual's evidence showed that the individual had not committed any crime, did not at any time reach for or appear to reach for a weapon or threaten the officers in any way, and cooperated fully with the officers. Assuming these facts, the officer's arrest for obstruction of justice, was not protected by qualified immunity and the individual's Fourth Amendment claims brought under 42 U.S.C.S. § 1983 survived summary judgment. Veney v. Ojeda, 321 F. Supp. 2d 733, 2004 U.S. Dist. LEXIS 11259 (E.D. Va. 2004).

Removal of cash from police car did not involve use of force necessary to sustain conviction for obstructing justice under subsection C of § 18.2-460 . Jordan v. Commonwealth, 273 Va. 639 , 643 S.E.2d 166, 2007 Va. LEXIS 59 (2007).

Evidence was insufficient to support defendant's conviction for obstruction of justice, in violation of subsection D of § 18.2-460 , as that statutory section was inapplicable when the police were investigating defendant and not the crime of another; defendant provided false statements to police concerning his identity when he was questioned by them. Atkins v. Commonwealth, 54 Va. App. 340, 678 S.E.2d 834, 2009 Va. App. LEXIS 310 (2009).

Evidence was insufficient to support defendant's conviction for obstruction of justice, in violation of subsection A of § 18.2-460 , as his mere flight from police did not constitute obstruction of justice; defendant's action of running away when police officers indicated an intent to detain him did not "obstruct" the officers from performing their duties, but instead, merely impeded the process. Atkins v. Commonwealth, 54 Va. App. 340, 678 S.E.2d 834, 2009 Va. App. LEXIS 310 (2009).

Circuit court erred in denying defendant's motion to strike the evidence as legally insufficient to support a conviction of misdemeanor obstruction of justice. Although defendant lied to police about whether his son was home, which resulted in a delay in the police interview of the son of approximately forty minutes, the record did not reflect how this delay constituted a significant impediment to the investigation of a car accident. Maldonado v. Commonwealth, No. 0254-18-1, 70 Va. App. 554, 829 S.E.2d 570, 2019 Va. App. LEXIS 165 (July 16, 2019).

Court erred in dismissing charges after granting defendants' motions to suppress. - Even assuming without deciding that police officers' way of entering onto defendants' property violated the Fourth Amendment, the circuit court erred in suppressing the evidence concerning the illegal actions then taken by defendants that led to their arrests because their actions after the officers were on their property constituted independent, intervening illegal acts against the officers that should not have been suppressed. Commonwealth v. Williams, Nos. 0849-19-2, 0850-19-2, 2019 Va. App. LEXIS 240 (Oct. 29, 2019).

Remand for retrial. - Matter was remanded to the circuit court so that defendant could be retried for violations of subsection B if the Commonwealth be so advised because defendant did not consent to resentencing. Mendez v. Commonwealth,, 2019 Va. App. LEXIS 59 (Mar. 12, 2019).

Providing conflicting or incorrect statements to an investigating officer does not "obstruct" the officer in the performance of his duties as contemplated by this section.(decided prior to the 2002 amendment adding subsection D) Wilson v. Commonwealth, No. 1072-00-1, 2001 Va. App. LEXIS 121 (Ct. of Appeals Mar. 13, 2001).

No violation of Fourth Amendment as there was probable cause for arrest. - Following an accident in a store parking lot, at the time of the claimant's arrest, the officers had probable cause to believe that the claimant had violated numerous laws, including obstruction of justice and failure to provide the customer whose car she had damaged with her name, address, driver's license number, and vehicle registration number in violation of §§ 18.2-460 and 46.2-896 . Because they had probable cause to believe that the claimant had violated the law, the officers did not violate the claimant's Fourth Amendment rights when they arrested her without a warrant. Durney v. Doss,, 2004 U.S. App. LEXIS 15545 (4th Cir. July 28, 2004).

Because defendant officer's order for plaintiff passenger to remain in an automobile that was the subject of a traffic stop was lawful, the officer's belief that the passenger was violating the obstruction of justice statute by getting out of the car was likewise reasonable, as was his use of force to effectuate the resulting arrest; accordingly, the officer's arrest of the passenger and his use of force were shielded under the doctrine of qualified immunity. Coffey v. Morris, 401 F. Supp. 2d 542, 2005 U.S. Dist. LEXIS 29544 (W.D. Va. 2005).

Arresting officer was entitled to qualified immunity in an arrestee's suit alleging a Fourth Amendment violation from his arrest because there was probable cause to arrest for obstruction of justice since the arrestee lunged at the officer, pointed his finger in the officer's face, and threatened the officer when the officer attempted to talk to the arrestee in response to a call. Ware v. James City County, 652 F. Supp. 2d 693, 2009 U.S. Dist. LEXIS 83263 (E.D. Va. 2009), aff'd, 2010 U.S. App. LEXIS 11145 (4th Cir. Va. 2010).

Probable cause to arrest. - Police had probable cause to arrest defendant for obstruction of justice, where the record clearly demonstrated that detectives had a reasonable belief that defendant was not telling them the truth based on the fact that defendant's version of events differed significantly from statements the detectives received from a witness, and defendant was coy and deceptive during questioning, which served to convince the detectives that defendant was holding back information about the shooting. Commonwealth v. Helvenston,, 2010 Va. App. LEXIS 237 (2010).

No probable cause to arrest. - Court was unable to conclude that there was probable cause to arrest for obstruction of justice, under subsection A of § 18.2-460 , because, while the arrestee acknowledged that he was initially unable to hear the deputies due to the wind and the initial distance between him and the deputies, he alleged that upon comprehending what the deputies were yelling, he promptly followed their instructions, removed a clip and placed a pistol on the ground and then followed further instructions to lay down on the ground as well, and the arrestee further alleged that at no time did his acts indicate an intention to oppose or resist the deputies. Botkin v. Fisher,, 2009 U.S. Dist. LEXIS 24554 (W.D. Va. Mar. 25, 2009).

Arrestee presented sufficient allegations to support a claim that his arrest for obstruction of justice under § 18.2-460 lacked probable cause, and therefore the officer was denied summary judgment on the issue of qualified immunity, because at the time of the arrest, the arrestee had engaged in relatively little interaction with the officer; the arrestee alleged that he waved to signal his approach, walked to the police cruiser at a measured and even pace, and respectfully contested the officer's assessment of the arrestee's son's speed. The arrestee's personal refusal to obey the officer's order to go back in the house at best raised triable issues as to probable cause. Jackson v. Brickey,, 2011 U.S. Dist. LEXIS 13964 (W.D. Va. Feb. 11, 2011).

Applied in Henry v. Commonwealth, 21 Va. App. 141, 462 S.E.2d 578 (1995); Salahuddin v. Commonwealth, 67 Va. App. 190, 795 S.E.2d 472 (2017).

CIRCUIT COURT OPINIONS

No private right of action. - Police officer, who claimed that other police officers conspired to conceal events surrounding the death of a suspect and compelled him to testify falsely about those events, did not have a private right of action against a city or its employees to recover damages he sustained when he was terminated from the city's police department. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

Probation officers not law-enforcement officers. - Because probation officers were not considered law-enforcement officers under the Virginia Code, an employee's allegation that the employee was directed to obstruct justice in violation of § 18.2-460 by lying to a supervisor's probation officer did not constitute a valid retaliatory discharge claim under the Bowman line of cases. Carr v. Bus. Sys. Mgmt., 73 Va. Cir. 459, 2007 Va. Cir. LEXIS 114 (Fairfax County 2007).

Indictment found to be insufficient. - As the indictment alleged obstruction of witnesses related to charges under § 18.2-248 , but did not allege that the obstruction was done by threat of bodily harm or force, but was instead allegedly done by improper access to a Division of Motor Vehicles computer system, the indictment did not allege a violation of subsection C of § 18.2-460 and the court quashed the indictments in those cases, subject to amendment first if the Commonwealth so chose. In re Snow, 99 Va. Cir. 484, 2018 Va. Cir. LEXIS 142 (Orange County Aug. 28, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Arrest for obstruction of justice not authorized. - Law-enforcement officer conducting a lawful investigative stop may not arrest a suspect for obstruction of justice under subsection A of this section, when the suspect refuses to identify himself to the officer; depending on the circumstances, however, there may be justification to detain a suspect for the purpose of determining his identity. See opinion of Attorney General to The Honorable Marsha L. Garst, Commonwealth's Attorney for the City of Harrisonburg, 02-082 (10/10/02).

§ 18.2-460.1. Unlawful disclosure of existence of order authorizing wire or oral interception of communication.

Except as provided in Chapter 6 (§ 19.2-61 et seq.) of Title 19.2, it shall be unlawful for any person who, by virtue of his position of authority or in the course of his employment by a court, a public utility, a law-enforcement agency, or by any other agency of state or local government, obtains knowledge of the fact that an order authorizing interception of wire or oral communication has been entered or is sought to be entered, intentionally to disclose such information to any person, except in the performance of his duties. Persons violating this section shall be guilty of a Class 1 misdemeanor.

Nothing herein precludes a court authorizing an interception under this chapter from prohibiting any other person from disclosing the existence of an order, interception, or device and imposing contempt sanctions for any willful disclosure.

(1980, c. 339.)

§ 18.2-461. Falsely summoning or giving false reports to law-enforcement officials.

It shall be unlawful for any person (i) to knowingly give a false report as to the commission of any crime to any law-enforcement official with intent to mislead; (ii) to knowingly, with the intent to mislead a law-enforcement agency, cause another to give a false report to any law-enforcement official by publicly simulating a violation of Chapter 4 (§ 18.2-30 et seq.) or Chapter 5 (§ 18.2-77 et seq.); or (iii) without just cause and with intent to interfere with the operations of any law-enforcement official, to call or summon any law-enforcement official by telephone or other means, including engagement or activation of an automatic emergency alarm. Violation of the provisions of this section shall be punishable as a Class 1 misdemeanor. However, if a person intentionally gives a false report as to the commission of any crime to any law-enforcement official, causes another to give a false report to any law-enforcement official, or calls or summons any law-enforcement official against another person because of his race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, the person is guilty of a Class 6 felony.

(Code 1950, § 18.1-401; 1960, c. 358; 1975, cc. 14, 15; 1996, cc. 753, 815; 2019, cc. 471, 498; 2020, Sp. Sess. I, c. 22.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 22, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1996 amendments. - The 1996 amendment by c. 753, in the first sentence, added the clause (i) designation, deleted "to" preceding "knowingly," inserted "or" following "to mislead," and added clause (ii).

The 1996 amendment by c. 815, in the first sentence, added the clause (i) designation, deleted "to" preceding "knowingly," inserted "or" following "to mislead," and added clause (ii).

The 2019 amendments. - The 2019 amendments by cc. 471 and 498 are identical, and inserted clause (ii), and redesignated former clause (ii) as (iii).

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 22, effective March 1, 2021, added the last sentence.

Law review. - For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

CASE NOTES

Lack of probable cause to arrest. - Because the police lacked probable cause to arrest defendant for either falsely summoning police or for disorderly conduct, the trial court erred in denying his motion to suppress the drugs obtained from his arrest and defendant's conviction for the possession of cocaine was improper. Thor v. Commonwealth,, 2010 Va. App. LEXIS 88 (Mar. 9, 2010).

Evidence sufficient. - Evidence was sufficient to show that defendant intended to mislead police by falsely reporting an incident to them, and to sustain his conviction under § 18.2-461(i), where defendant rode with a driver and passenger in a gray Camaro for an extended period of time on the night in question, where, having tired of defendant's repeated requests for her to drive him to various locations, the driver told defendant she wanted to take him home, where defendant was verbally abusive to the driver and tried to prevent her from driving to his residence, where, once they reached defendant's residence, defendant told the driver he would "get her back," where defendant immediately called the police and reported two women had shot at his residence from a gray Camaro and that the women possessed cocaine, and where, stopped by the police within minutes of defendant's call, the driver and her passenger possessed neither firearms nor drugs. Kimberlin v. Commonwealth,, 2005 Va. App. LEXIS 148 (Apr. 12, 2005).

Evidence was sufficient to show that defendant provided false information to a law-enforcement officer because defendant falsely told a Department of Motor Vehicles agent information about a license applicant, including that she was his wife and that she worked at two particular stores. Melendez v. Commonwealth,, 2010 Va. App. LEXIS 171 (May 4, 2010).

Evidence was sufficient to convict defendant of knowingly giving a false report of a crime to a law-enforcement official with the intent to mislead because defendant's false description of the officer's penetration of her vagina and anus alleged the commission of a crime as the existence of defenses against defendant's accusations did not mean that she did not allege the commission of a crime, and, even assuming for the sake of argument that defendant's false accusation did not describe a crime under Virginia law, her accusation alleged a violation of federal law; and because defendant's description of that crime to a special agent of the Virginia State Police constituted a report. Dunne v. Commonwealth, 66 Va. App. 24, 782 S.E.2d 170, 2016 Va. App. LEXIS 52 (Feb. 23, 2016).

Evidence, including text messages showing increasing conflict between defendant and the alleged assailant leading up to the rape report and defendant's inconsistent statements, was sufficient to support defendant's conviction for making a false report to law enforcement. Bryant v. Commonwealth, No. 1550-14-3, 2016 Va. App. LEXIS 159 (Ct. of Appeals May 10, 2016).

Trial court did not err in finding the evidence sufficient to convict defendant of contributing to the delinquency of a minor, making a false report of child abuse or neglect, and giving a false report to a law-enforcement official because it was entitled to reject defendant's theory that she did not cause her daughter to fabricate child abuse; it was reasonable to infer that defendant used an audio file to help her daughter provide a full account of the alleged child abuse to authorities. Gibson v. Commonwealth, No. 0986-18-4, 2019 Va. App. LEXIS 174 (July 23, 2019).

Evidence clearly established that defendant did unlawfully make and cause to be made a false report of child abuse because her daughter acted as an innocent agent for defendant, who was therefore guilty as a principal in the first degree; because defendant engaged in actions that caused her daughter to commit a crime as an innocent agent of defendant, she was guilty of giving a false report to law-enforcement as a principal in the first degree. Gibson v. Commonwealth, No. 0986-18-4, 2019 Va. App. LEXIS 174 (July 23, 2019).

Passenger not an informant. - Trial court did not err in denying defendant's motion to suppress cocaine the police discovered in defendant's vehicle incident to an arrest on a separate charge because the police did not rely on the passenger of the vehicle as an informant since the passenger was not an informant, and his reliability and basis of knowledge were not factors in determining whether the police had probable cause to arrest defendant; unlike an anonymous tipster, the passenger was known to the police and personally spoke with them, and by telling the police that defendant was the driver and possessed the cocaine, the passenger was subjecting himself to possible arrest if the information proved false under § 18.2-461 , and placed his credibility at risk and could not lie with impunity. Jones v. Commonwealth,, 2011 Va. App. LEXIS 98 (Mar. 22, 2011).

Venue. - Because defendant made a false report regarding the commission of a crime to law enforcement officials in Loudoun County, Loudoun County was a proper venue in which to prosecute the offense. McGuire v. Commonwealth, 68 Va. App. 736, 813 S.E.2d 552, 2018 Va. App. LEXIS 137 (2018).

CIRCUIT COURT OPINIONS

No private right of action. - Police officer, who claimed that other police officers conspired to conceal events surrounding the death of a suspect and compelled him to testify falsely about those events, did not have a private right of action against a city or its employees to recover damages he sustained when he was terminated from the city's police department. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

§ 18.2-462. Concealing or compounding offenses; penalties.

  1. Except as provided in subsection B, if any person knowing of the commission of an offense takes any money or reward, or an engagement therefor, upon an agreement or understanding, expressed or implied, to compound or conceal such offense, or not to prosecute therefor, or not to give evidence thereof, he shall, if such offense is a felony, be guilty of a Class 2 misdemeanor; and if such offense is not a felony, unless it is punishable merely by forfeiture to him, he shall be guilty of a Class 4 misdemeanor.
  2. Any person, other than the victim of the crime or the husband, wife, parent, grandparent, child, grandchild, brother, or sister, by consanguinity or affinity of the offender, who with actual knowledge of the commission by another of any felony offense under Chapter 4 (§ 18.2-30 et seq.) of this title, willfully conceals, alters, dismembers, or destroys any item of physical evidence with the intent to delay, impede, obstruct, prevent, or hinder the investigation, apprehension, prosecution, conviction, or punishment of any person regarding such offense is guilty of a Class 6 felony. (Code 1950, § 18.1-303; 1960, c. 358; 1975, cc. 14, 15; 2005, c. 408.)

The 2005 amendments. - The 2005 amendment by c. 408, redesignated former section as subsection A; in subsection A, inserted "Except as provided in subsection B" at the beginning, substituted "takes" for "take" preceding "any money," and "is" for "be" three times; and added subsection B.

Law review. - For article on criminal restitution, a survey of its past history and an analysis of its present usefulness, see 5 U. Rich. L. Rev. 71 (1970).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Compounding Offenses, §§ 2, 3, 4.

CASE NOTES

Application of section. - Defendants, tobacco warehousemen, procured plaintiff's arrest upon a warrant for a misdemeanor under act which provides that it shall be a misdemeanor to procure a loan from a tobacco warehouseman upon a written promise or pledge to sell tobacco through such warehouseman, and fail to comply with such pledge, or repay the amount borrowed. Defendants upon obtaining a settlement of their claim against plaintiff, had him released and the warrant dismissed. It was held that the transaction did not fall within the condemnation of this section, but rather within the spirit, if not within the terms, of § 19.2-151 . Glidewell v. Murray-Lacy & Co., 124 Va. 563 , 98 S.E. 665 (1919).

Plaintiffs, who sought to recover money claimed to have been paid to prevent prosecuting of kinsman for embezzlement, contended that because this section imposes a penalty for receiving a consideration to compound a felony, but not upon the person paying the consideration, the parties were not in pari delicto and therefore plaintiffs should be permitted to recover. It was held that such contracts are illegal regardless of statute, as they tend to suppress evidence and impede the due course of public justice. Ellis v. Peoples Nat'l Bank, 166 Va. 389 , 186 S.E. 9 (1936).

The evidence established a prima facie case of conspiracy between defendant and his wife where she played an active role in the concealment of the crime by agreement with her husband and received money from the robbery in violation of this section. Stumpf v. Commonwealth, 8 Va. App. 200, 379 S.E.2d 480 (1989).

CIRCUIT COURT OPINIONS

No private right of action. - Police officer, who claimed that other police officers conspired to conceal events surrounding the death of a suspect and compelled him to testify falsely about those events, did not have a private right of action against a city or its employees to recover damages he sustained when he was terminated from the city's police department. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

§ 18.2-462.1. Use of police radio during commission of crime.

Any person who has in his possession or who uses a device capable of receiving a police radio signal, message, or transmission, while in the commission of a felony, is guilty of a Class 1 misdemeanor. A prosecution for or conviction of the crime of use or possession of a police radio is not a bar to conviction for any other crime committed while possessing or using the police radio.

(1992, c. 499.)

§ 18.2-463. Refusal to aid officer in execution of his office.

If any person on being required by any sheriff or other officer refuse or neglect to assist him: (1) in the execution of his office in a criminal case, (2) in the preservation of the peace, (3) in the apprehending or securing of any person for a breach of the peace, or (4) in any case of escape or rescue, he shall be guilty of a Class 2 misdemeanor.

(Code 1950, § 18.301; 1960, c. 358; 1975, cc. 14, 15.)

CASE NOTES

Arrest. - Defendant had no right to use reasonable force to repel an unlawful arrest because officers had probable cause to arrest defendant, as (1) defendant was arrested for defendant's conduct, rather than the content of defendant's speech, (2) officers had reasonable grounds to believe defendant refused or neglected to assist the officers in preserving the peace, contrary to § 18.2-463 , (3) defendant exhibited continuous profane and uncooperative behavior, (4) defendant cursed the officers repeatedly with abusive language, and (5) there was sufficient objective evidence to support probable cause to arrest defendant for obstruction, even if defendant was ultimately charged with other crimes. Doscoli v. Commonwealth, 66 Va. App. 419, 786 S.E.2d 472 (2016).

§ 18.2-464. Failure to obey order of conservator of the peace.

If any person, being required by a conservator of the peace on view of a breach of the peace or other offense to bring before him the offender, refuse or neglect to obey the conservator of the peace, he shall be guilty of a Class 2 misdemeanor; and if the conservator of the peace declare himself or be known to be such to the person so refusing or neglecting, ignorance of his office shall not be pleaded as an excuse.

(Code 1950, § 18.1-302; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-465. Officer summoning juror to act impartially.

If any sheriff or other officer corruptly, or through favor or ill-will, summon a juror, with intent that such juror shall find a verdict for or against either party, he shall be guilty of a Class 3 misdemeanor, and forfeit his office; and he shall be forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia.

(Code 1950, § 18.1-296; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-465.1. Penalizing employee for court appearance or service on jury panel.

Any person who is summoned to serve on jury duty or any person, except a defendant in a criminal case, who is summoned or subpoenaed to appear in any court of law or equity when a case is to be heard or who, having appeared, is required in writing by the court to appear at any future hearing, shall neither be discharged from employment, nor have any adverse personnel action taken against him, nor shall he be required to use sick leave or vacation time, as a result of his absence from employment due to such jury duty or court appearance, upon giving reasonable notice to his employer of such court appearance or summons. No person who is summoned and appears for jury duty for four or more hours, including travel time, in one day shall be required to start any work shift that begins on or after 5:00 p.m. on the day of his appearance for jury duty or begins before 3:00 a.m. on the day following the day of his appearance for jury duty. Any employer violating the provisions of this section is guilty of a Class 3 misdemeanor.

(1981, c. 609; 1985, c. 436; 1988, c. 415; 2000, c. 295; 2002, c. 423; 2004, c. 800; 2005, c. 931.)

Editor's note. - Acts 2004, c. 800, cl. 2, provides: "That the provisions of this act shall become effective July 1, 2005."

The 2000 amendments. - The 2000 amendment by c. 295, in the first sentence, substituted "any court" for "a court," and inserted "or equity," and substituted "Class 3" for "Class 4" in the second sentence.

The 2002 amendments. - The 2002 amendment by c. 423 inserted "or who, having appeared, is required in writing by the court to appear at any future hearing" in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 800, effective July 1, 2005, inserted the next-to-last sentence.

The 2005 amendments. - The 2005 amendment by c. 931 rewrote the next-to-last sentence, which formerly read: "No person who is summoned to serve on jury duty shall be required to work on the day of his service on a jury" and substituted "is guilty" for "shall be guilty" in the last sentence.

Law review. - For 2003/2004 survey of state labor and employment law, see 39 U. Rich. L. Rev. 285 (2004).

For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 18 Juries and Jurors. § 18.04 Who May Serve as Jurors. Friend.

CASE NOTES

Public policy. - Employee's claim for wrongful discharge in violation of the public policy expressed in § 18.2-465.1 was subject to dismissal because § 18.2-465.1 did not create any specific statutory right or set forth any specific public policy and the Virginia Supreme Court had not addressed whether § 18.2-465.1 provided a cause of action for wrongful discharge. Sewell v. Macado's, Inc.,, 2004 U.S. Dist. LEXIS 19950 (W.D. Va. Oct. 4, 2004).

§ 18.2-466. Corruptly procuring juror to be summoned.

If any person procure or attempt to procure a juror to be summoned, with intent that such juror shall find a verdict for or against either party, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-297; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-467. Fraud in drawing jurors, etc.

If any person be guilty of any fraud, either by tampering with the jury box prior to a draft, or in drawing a juror, or in returning into the jury box the name of any person which has lawfully been drawn out and drawing and substituting another in his stead, or in any other way in drawing of jurors, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-298; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-468. Making sound recordings of jury deliberations.

If any person shall install or cause to be installed or use or cause to be used any microphone or device designed for recording or transmitting for recording sound in any jury room in this Commonwealth for the purpose of recording the deliberations of any jury or for the purpose of preparing a summary of such deliberations, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-299; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-469. Officer refusing, delaying, etc., to execute process for criminal.

If any officer willfully and corruptly refuse to execute any lawful process requiring him to apprehend or confine a person convicted of, or charged with, an offense, or willfully and corruptly omit or delay to execute such process, whereby such person shall escape and go at large, such officer shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 18.1-300; 1960, c. 358; 1975, cc. 14, 15.)

CASE NOTES

Arrest. - Where officers went to an arrestee's home to arrest the arrestee's son pursuant to a warrant, the arrestee allegedly closed the door on an officer's foot, and the arrestee was arrested for obstruction of justice pursuant to a warrant, the officers were entitled to summary judgment based on qualified immunity as to the arrestee's Fourth Amendment claim because their belief that there was probable cause was objectively reasonable. Graham v. Gagnon, 104 F. Supp. 3d 753, 2015 U.S. Dist. LEXIS 61241 (E.D. Va. 2015), aff'd, 831 F.3d 176, 2016 U.S. App. LEXIS 13672 (4th Cir. 2016).

Section does not articulate public policy exception to employment-at-will. - There is no established public policy underlying this section that would support a police officer's wrongful discharge action based on the public policy exception to the employment-at-will doctrine. City of Va. Beach v. Harris, 259 Va. 220 , 523 S.E.2d 239 (2000).

§ 18.2-470. Extortion by officer.

If any officer, for performing an official duty for which a fee or compensation is allowed or provided by law, knowingly demand and receive a greater fee or compensation than is so allowed or provided, he shall be guilty of a Class 4 misdemeanor.

(Code 1950, § 18.1-304; 1960, c. 358; 1975, cc. 14, 15.)

Law review. - For article on justification as a defense to crime, see 59 Va. L. Rev. 1326 (1973).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Extortion, § 1.

§ 18.2-471. Fraudulent issue of fee bills.

If any person authorized by law to charge fees for services performed by him and issue bills therefor fraudulently issue a fee bill for a service not performed by him, or for more than he is entitled to, he shall be guilty of a Class 3 misdemeanor and shall forfeit his office and be forever incapable of holding office of honor, profit or trust under the Constitution of Virginia.

(Code 1950, §§ 18.1-305, 18.1-307; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-471.1. Destruction of human biological evidence; penalty.

Any clerk of court or other public official who willfully violates an order entered pursuant to § 19.2-270.4:1 is guilty of a Class 6 felony.

(2006, c. 913.)

§ 18.2-472. False entries or destruction of records by officers.

If a clerk of any court or other public officer fraudulently make a false entry, or erase, alter, secrete or destroy any record, including a microphotographic copy, in his keeping and belonging to his office, he shall be guilty of a Class 1 misdemeanor and shall forfeit his office and be forever incapable of holding any office of honor, profit or trust under the Constitution of Virginia.

(Code 1950, §§ 18.1-306, 18.1-307; 1960, c. 358; 1975, cc. 14, 15; 1977, c. 107.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Courts, § 25.

CASE NOTES

Evidence sufficient to convict. - State police affidavit stating that the state police did not receive defendant's registration between November 2 and November 17, 2015, and an officer's testimony that the registration had not been received by November 17th, permitted a reasonable inference that the deadline the police gave defendant to return the registration form was the same date that his registration was due and thus, the evidence was sufficient to support defendant's conviction for failure to register. Raigoza v. Commonwealth, No. 0386-18-1, 2019 Va. App. LEXIS 108 (May 7, 2019).

§ 18.2-472.1. Providing false information or failing to provide registration information; penalty; prima facie evidence.

  1. Any person subject to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, other than a person convicted of a Tier III offense or murder as defined in § 9.1-902 , who knowingly fails to register, reregister, or verify his registration information, or who knowingly provides materially false information to the Sex Offender and Crimes Against Minors Registry is guilty of a Class 1 misdemeanor. A second or subsequent conviction for an offense under this subsection is a Class 6 felony.
  2. Any person convicted of a Tier III offense or murder, as defined in § 9.1-902 , who knowingly fails to register, reregister, or verify his registration information, or who knowingly provides materially false information to the Sex Offender and Crimes Against Minors Registry is guilty of a Class 6 felony. A second or subsequent conviction for an offense under this subsection is a Class 5 felony.
  3. A prosecution pursuant to this section shall be brought in the city or county where the offender can be found or where the offender last registered, reregistered, or verified his registration information or, if the offender failed to comply with the duty to register, where the offender was last convicted of an offense for which registration or reregistration is required.
  4. At any preliminary hearing pursuant to this section, an affidavit from the State Police issued as required in § 9.1-907 shall be admitted into evidence as prima facie evidence of the failure to comply with the duty to register, reregister, or verify his registration information. A copy of such affidavit shall be provided to the registrant or his counsel seven days prior to hearing or trial by the attorney for the Commonwealth.
  5. The accused in any preliminary hearing in which an affidavit from the State Police issued as required in § 9.1-907 is offered into evidence pursuant to this section shall have the right to summon and call a custodian of records issuing the affidavit and examine him in the same manner as if he had been called as an adverse witness. Such witness shall appear at the cost of the Commonwealth.
  6. At any trial or hearing other than a preliminary hearing conducted pursuant to this section, an affidavit from the State Police issued as required in § 9.1-907 shall constitute prima facie evidence of the failure to comply with the duty to register, reregister, or verify his registration information, provided the requirements of subsection G have been satisfied and the accused has not objected to the admission of the affidavit pursuant to subsection H.
  7. If the attorney for the Commonwealth intends to offer the affidavit into evidence in lieu of testimony at a trial or hearing, other than a preliminary hearing, he shall:
    1. Provide by mail, delivery, or otherwise, a copy of the affidavit to counsel of record for the accused, or to the accused if he is proceeding pro se, at no charge, no later than 28 days prior to the hearing or trial;
    2. Provide simultaneously with the copy of the affidavit so provided under subdivision 1 a notice to the accused of his right to object to having the affidavit admitted without the presence and testimony of a custodian of the records; and
    3. File a copy of the affidavit and notice with the clerk of the court hearing the matter on the day that the affidavit and notice are provided to the accused.
  8. In any trial or hearing, other than a preliminary hearing, the accused may object in writing to admission of the affidavit, in lieu of testimony, as evidence of the facts stated therein. Such objection shall be filed with the court hearing the matter, with a copy to the attorney for the Commonwealth, no more than 14 days after the affidavit and notice were filed with the clerk by the attorney for the Commonwealth, or the objection shall be deemed waived. If timely objection is made, the affidavit shall not be admissible into evidence unless (i) the objection is waived by the accused or his counsel in writing or before the court, or (ii) the parties stipulate before the court to the admissibility of the affidavit.
  9. Where a custodian of the records is not available for hearing or trial and the attorney for the Commonwealth has used due diligence to secure the presence of the person, the court shall order a continuance. Any continuances ordered pursuant to this subsection shall total not more than 90 days if the accused has been held continuously in custody and not more than 180 days if the accused has not been held continuously in custody.
  10. Any objection by counsel for the accused, or the accused if he is proceeding pro se, to timeliness of the receipt of notice required by subsection G shall be made before hearing or trial upon his receipt of actual notice unless the accused did not receive actual notice prior to hearing or trial. A showing by the Commonwealth that the notice was mailed, delivered, or otherwise provided in compliance with the time requirements of this section shall constitute prima facie evidence that the notice was timely received by the accused. If the court finds upon the accused's objection made pursuant to this subsection, that he did not receive timely notice pursuant to subsection G, the accused's objection shall not be deemed waived and if the objection is made prior to hearing or trial, a continuance shall be ordered if requested by either party. Any continuance ordered pursuant to this subsection shall be subject to the time limitations set forth in subsection I.
  11. For the purposes of this section any conviction for a substantially similar offense under the laws of (i) any foreign country or any political subdivision thereof, or (ii) any state or territory of the United States or any political subdivision thereof, the District of Columbia, or the United States shall be considered a prior conviction.

    (1997, c. 747; 1999, c. 845; 2001, c. 365; 2003, c. 584; 2006, cc. 857, 914, 931; 2008, c. 218; 2009, Sp. Sess. I, cc. 1, 4; 2010, c. 656; 2011, c. 285; 2020, c. 829.)

Editor's note. - Acts 2020, c. 829, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment added "or where the offender last registered or reregistered or, if the offender failed to comply with the duty to register, where the offender was last convicted of an offense for which registration or reregistration is required" at the end of the second paragraph.

The 2001 amendments. - The 2001 amendment by c. 365 added the last paragraph.

The 2003 amendments. - The 2003 amendment by c. 584, in the first paragraph, in the first sentence, substituted "Chapter 9 ( § 9.1-900 et seq.) of Title 9.1, other than a person convicted of a sexually violent offense" for " § 19.2-298.1 , other than a sexually violent offender" and "is guilty" for "shall be guilty," and in the second sentence, substituted " § 9.1-902 " for " § 19.2-298.1 " and "Sex Offender and Crimes Against Minors Registry" for "Registry established pursuant to § 19.2-390.1 shall be guilty"; substituted "offender" for "registrant" in the second paragraph; and substituted " § 9.1-907 " for "subsection H of § 19.2-298.1" in the last paragraph.

The 2006 amendments. - The 2006 amendments by cc. 857, 914 and 931 are nearly the same, and inserted the A designation at the beginning of the first paragraph, and in subsection A, inserted "or murder as defined in § 9.1-902 " in the first sentence and added the last sentence; substituted "B. Any" for "However, any" at the beginning of the second paragraph and added the last sentence to subsection B; inserted the C designation at the beginning of the third paragraph and the D designation at the beginning of the fourth paragraph; and added subsection E.

Subsection E has been set out in the form above at the direction of the Virginia Code Commission.

The 2008 amendments. - The 2008 amendment by c. 218 inserted present subsection E and redesignated former subsection E as subsection F.

The 2009 amendments. - The 2009 amendments by Sp. Sess. I, c. 1, effective August 21, 2009, and Sp. Sess. I, c. 4, effective September 15, 2009, are identical, and substituted "preliminary hearing" for "trial" near the beginning of subsection D; substituted "any preliminary hearing in which" for "any hearing or trial in which," "is offered" for "is admitted" and "a custodian" for "the custodian" in subsection E; added subsections F through J; and redesignated former subsection F as K.

The 2010 amendments. - The 2010 amendment by c. 656 inserted "in lieu of testimony" in subsection G; and substituted "Provide simultaneously with" for "Attach to" in subdivision G 2.

The 2011 amendments. - The 2011 amendment by c. 285, substituted "reregister. A copy" for "reregister and a copy" in subsection D; in subsection E, inserted "summon and" in the first sentence, and deleted "be summoned and" following "Such witness shall" in the second sentence; and inserted "In any trial or hearing, other than a preliminary hearing" at the beginning of subsection H.

The 2020 amendments. - The 2020 amendment by c. 829 substituted "Tier III offense" for "sexually violent offense" in subsections A and B; inserted "or verify his registration information" in subsections A, B, D, and F; inserted "or verified his registration information" in subsection C; and made related changes.

Law review. - For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

Research References. - Virginia Forms (Matthew Bender). No. 9-2419 Objection to Admission of Affidavit.

CASE NOTES

Constitutionality. - Circuit court properly convicted defendant in a bench trial of failing to register his social media account information with law enforcement because the statutory scheme unquestionably advanced a significant governmental interest and any burden it placed on defendant's First Amendment rights of speech and association was minimal to non-existent, neither statute prohibited or regulated the content of speech or prevented defendant from accessing or using any Internet site, they simply required that he make his online identity and whereabouts known to law enforcement, and the existence of the penalty did not "chill" him sufficiently to stop either the speech or other associative acts in which he sought to engage on the Internet. Bailey v. Commonwealth, 70 Va. App. 634, 830 S.E.2d 62, 2019 Va. App. LEXIS 181 (2019).

Affidavit not "testimonial." - Admission of an affidavit regarding defendant's sex offender registration history, prepared by the Virginia Department of State Police and reflecting records kept by the Department pursuant to statute, was not "testimonial" in nature and thus, its admission did not violate defendant's right to confrontation. Harris v. Commonwealth, 53 Va. App. 494, 673 S.E.2d 483, 2009 Va. App. LEXIS 104 (2009).

"Knowingly" means knowledge of duty to register. - Defendant was convicted of failing to register as a sex offender in violation of § 18.2-472.1 , although he was delayed in California and tried to call the State Police to register from there. The term "knowingly" meant that defendant had knowledge of his duty to register; § 18.2-472.1 was not a specific intent crime. Marshall v. Commonwealth, 58 Va. App. 210, 708 S.E.2d 253, 2011 Va. App. LEXIS 154 (2011).

Crime involving moral turpitude. - Where an alien was convicted for failing to register as a sex offender, in violation of Va. Code Ann. § 18.2-472.1 , the Board of Immigration Appeals erred as a matter of law in relying on that conviction as a basis to order the alien's removal because that conviction was not a crime involving moral turpitude since, inter alia, apart from the fact that it was statutorily mandated, the court found no moral norm requiring sex offenders to register or to provide information to the community. Mohamed v. Holder, 769 F.3d 885, 2014 U.S. App. LEXIS 19898 (4th Cir. 2014).

Fatal variance between indictment and proof. - Defendant's convictions for failing to register or re-register as a violent sexual offender in violation of § 18.2-472.1 were reversed because a fatal variance existed between the indictments and the proof offered at trial since the indictments charged defendant with failing to register or re-register in violation of § 18.2-472.1 , but defendant was convicted on the assertion that he knowingly provided materially false information on his re-registration forms in violation of subsection B of § 18.2-472.1; lying on a re-registration form is different from failing to reregister in the first place because one was a crime of commission, the other of omission. Purvy v. Commonwealth, 59 Va. App. 260, 717 S.E.2d 847, 2011 Va. App. LEXIS 389 (2011).

Virginia Sex Offender and Crimes Against Minors Registry Act civil in nature. - Trial court did not err in denying defendant's motion to dismiss an indictment charging him with failure to register as a sex offender because defendant did not demonstrate by the clearest proof that the 2007 amendment to the Virginia Sex Offender and Crimes Against Minors Registry Act transformed a civil remedy into a criminal penalty. Baugh v. Commonwealth, 68 Va. App. 437, 809 S.E.2d 247 (2018).

Evidence sufficient to convict. - Evidence was sufficient to prove that defendant intentionally failed to reregister with the sexual offender registry, in violation of subsection B of § 18.2-472.1 , because defendant admitted that he knew he was required to reregister every 90 days, and he had received prior reregistration forms by certified mail, although the registered mail for the underlying reregistration notice had been returned as unclaimed. Lyons v. Commonwealth,, 2010 Va. App. LEXIS 54 (Feb. 9, 2010).

Evidence was sufficient to convict defendant for knowingly providing materially false information on his re-registration forms in violation of subsection B of § 18.2-472.1 because a rational factfinder could conclude that defendant did not reside at the address he provided and thus violated subsection B of § 18.2-472.1 by knowingly providing materially false information on his re-registration forms. Purvy v. Commonwealth, 59 Va. App. 260, 717 S.E.2d 847, 2011 Va. App. LEXIS 389 (2011).

Trial court properly found that the evidence was sufficient to find defendant guilty of failing to register as a sex offender or providing false information, second or subsequent offense, because the Commonwealth presented three certified orders showing that defendant had previously pleaded guilty to, or was convicted of, failure to reregister as a sex offender and he admitted to a state trooper that he was not in compliance with his requirement to reregister when he changed his residence. Shell v. Commonwealth, 64 Va. App. 16, 763 S.E.2d 833, 2014 Va. App. LEXIS 355 (2014).

Circuit court properly found defendant guilty of knowingly failing to reregister as a sex offender, where the procedural safeguard of § 9.1-904 did not affect defendant's knowledge of his statutory duty to register with the Virginia State Police, it was undisputed that he knew that he had to register every 90 days, and thus, the Commonwealth had established every necessary element of the crime. Brockington v. Commonwealth, No. 1410-15-2, 2016 Va. App. LEXIS 130 (Ct. of Appeals Apr. 19, 2016).

Trial court erred in relying on the substantial similarity of the Virginia and Idaho statutes in finding defendant guilty of failing to re-register as person convicted of sexually violent offense. However, because the record in this case supported a finding that defendant knowingly failed to re-register as a violent sex offender within the ninety days required, the trial court properly found defendant guilty of violating § 18.2-472.1 . Turner v. Commonwealth, No. 0826-17-2, 2018 Va. App. LEXIS 100 (Apr. 17, 2018), aff'd, 297 Va. 257 , 826 S.E.2d 307, 2019 Va. LEXIS 33 (2019).

Evidence sufficient to find a sexually violent offense. - Defendant was properly convicted of providing false information to the Virginia Sex Offender and Crimes Against Minors Registry and of failing to register as a violent sex offender because the evidence was sufficient to prove that defendant's prior conviction for carnal knowledge of a minor constituted a sexually violent offense, that defendant was required to register as a sexually violent offender, and that defendant failed to re-register and failed to report defendant's change of address. Wright v. Commonwealth, No. 1238-18-1, 2019 Va. App. LEXIS 202 (Sept. 17, 2019).

Circuit court properly convicted defendant of failing to reregister as a sexually violent offender because defendant conceded that offenses of conviction in a 1986 order were "sexually violent offenses," the record evidence proved that defendant was the person identified in the offenses, and, although he was convicted of a sexually violent offense before the Virginia Sex Offender and Crimes Against Minors Registry Act took effect, he was incarcerated for that offense on or after July 1, 1994, as required for him to be subject to the Act's provisions. Young v. Commonwealth, 70 Va. App. 646, 830 S.E.2d 68, 2019 Va. App. LEXIS 183 (2019).

Applied in Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

CIRCUIT COURT OPINIONS

Affidavit violated Confrontation Clause. - Affidavit filed pursuant to subsection D of § 18.2-472.1 in a failure to register case, which affidavit stated that state police records showed that no sex offender registration or re-registration form was filed for defendant, was accusatory, resembled "ex-parte examination," was a core testimonial statement, and thus violated the Confrontation Clause. Commonwealth v. Dickens, 72 Va. Cir. 533, 2007 Va. Cir. LEXIS 17 (Norfolk Feb. 20, 2007).

OPINIONS OF THE ATTORNEY GENERAL

Misdemeanor violations of subsection A of § 18.2-472.1 - A General District Court is authorized to order postrelease supervision of a person convicted of violating subsection A of § 18.2-472.1 , but in the case of misdemeanor convictions that period is limited to six months for each such conviction. The court can order the Virginia Department of Corrections to oversee such supervision. See opinion of Attorney General to the Honorable Lucretia A. Carrico, General District Court Judge, Retired, Petersburg, 11-093, 2013 Va. AG LEXIS 47 (7/12/13).

Article 7. Escape of, Communications with and Deliveries to Prisoners.

§ 18.2-473. Persons aiding escape of prisoner or child.

When a person is lawfully detained as a prisoner in any jail or prison or held in custody, or when a child is placed in a local juvenile detention home, or committed to the Department of Juvenile Justice in any juvenile correctional center, or Reception and Diagnostic Center for Children or held in custody, if any person: (1) conveys anything into the jail, prison, juvenile detention home, juvenile correctional center or Reception and Diagnostic Center for Children with intent to facilitate a person's escape therefrom, (2) in any way aids such prisoner or child to escape, or in an attempt to escape, from such jail, prison, juvenile detention home, juvenile correctional center, Reception and Diagnostic Center for Children or custody, or (3) forcibly takes, or attempts to take him therefrom, such person, if the taking or escape is effected, shall, if the prisoner or child was detained on conviction, commitment or charge of felony, be confined in a state correctional facility not less than one year nor more than five years. If the same is not effected, or if the prisoner or child was not detained on such conviction, commitment or charge, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-284; 1960, c. 358; 1975, cc. 14, 15; 1984, c. 587; 1989, c. 733; 1996, cc. 755, 914.)

The 1996 amendments. - The 1996 amendments by cc. 755 and 914 are identical, and substituted "juvenile correctional center" for "learning center" in three places.

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escape, § 3.

§ 18.2-473.1. Communication with prisoners or committed person; penalty.

It shall be unlawful for any person outside of any state or local correctional facility or any juvenile correctional center, other than the jailers or custodial officers in charge of the prisoners or in charge of the persons committed to the Department of Juvenile Justice, to communicate without authority by word or sign with the intent to disrupt institutional operations with any prisoner confined within a state or local correctional facility or with any person committed to the Department of Juvenile Justice in any juvenile correctional center. Any person violating this section is guilty of a Class 4 misdemeanor.

(1982, c. 636; 2000, c. 286; 2013, cc. 707, 782.)

The 2000 amendments. - The 2000 amendment by c. 286, in the first sentence, substituted "state or local correctional facility" for "jail," inserted "without authority," and substituted "confined within a state or local correction facility" for "then detained in a jail" at the end of the sentence.

The 2013 amendments. - The 2013 amendments by cc. 707 and 782 are identical, and rewrote the section.

§ 18.2-474. Delivery of articles to prisoners or committed person.

No person shall willfully in any manner deliver, or attempt to deliver, to any prisoner confined under authority of the Commonwealth of Virginia, or of any political subdivision thereof, or to any person committed to the Department of Juvenile Justice in any juvenile correctional center, any article of any nature whatsoever, without first securing the permission of the person in whose charge such prisoner or committed person is, and who may in his discretion grant or refuse permission. Any person violating this section is guilty of a Class 1 misdemeanor.

Nothing herein contained shall be construed to repeal or amend § 18.2-473 .

(Code 1950, § 18.1-285; 1960, c. 358; 1975, cc. 14, 15; 2013, cc. 707, 782.)

The 2013 amendments. - The 2013 amendments by cc. 707 and 782 are identical, and in the first paragraph, inserted "or to any person committed to the Department of Juvenile Justice in any juvenile correctional center" and "or committed person," and substituted "is" for "shall be."

§ 18.2-474.1. Delivery of drugs, firearms, explosives, etc., to prisoners or committed persons.

Notwithstanding the provisions of § 18.2-474 , any person who shall willfully in any manner deliver, attempt to deliver, or conspire with another to deliver to any prisoner confined under authority of the Commonwealth of Virginia, or of any political subdivision thereof, or to any person committed to the Department of Juvenile Justice in any juvenile correctional center, any drug which is a controlled substance regulated by the Drug Control Act in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1 or marijuana is guilty of a Class 5 felony. Any person who shall willfully in any manner so deliver or attempt to deliver or conspire to deliver to any such prisoner or confined or committed person, firearms, ammunitions, or explosives of any nature is guilty of a Class 3 felony.

Nothing herein contained shall be construed to repeal or amend § 18.2-473 .

(1975, c. 608; 1982, c. 490; 2011, cc. 384, 410; 2013, cc. 707, 782; 2014, cc. 674, 719.)

Cross references. - As to penalty for sale, possession, etc., of controlled substance or marijuana by inmate in penal institution or in custody of employee thereof, see § 53.1-203 .

For definition of "barrier crime" as including a conviction of delivery of drugs to prisoners as set out in § 18.2-474.1 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and inserted "synthetic cannabinoids" in the first sentence of the first paragraph.

The 2013 amendments. - The 2013 amendments cc. 707 and 782 are identical, and rewrote the first paragraph, which read: "Notwithstanding the provisions of § 18.2-474 , any person who shall willfully in any manner deliver, attempt to deliver, or conspire with another to deliver to any prisoner confined under authority of the Commonwealth of Virginia, or of any political subdivision thereof, any drug which is a controlled substance regulated by the Drug Control Act in Chapter 34 of Title 54.1, synthetic cannabinoids or marijuana, shall be guilty of a Class 5 felony. Any person who shall willfully in any manner so deliver or attempt to deliver or conspire to deliver to any such prisoner, firearms, ammunitions, or explosives of any nature shall be guilty of a Class 3 felony."

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "synthetic cannabinoids" following "Title 54.1" in the first paragraph, and made a minor stylistic change.

Law review. - For survey of Virginia criminal law for the year 1977-1978, see 64 Va. L. Rev. 1407 (1978).

CASE NOTES

Not precluded by double jeopardy principles. - Circuit court was not precluded by double jeopardy principles from trying defendant for delivering marijuana to a prisoner, in violation of § 18.2-474.1 , after she pled guilty in a district court to a charge alleging that she possessed the same marijuana, in violation of § 18.2-250.1 , because possession of marijuana was not a lesser-included offense of delivering marijuana to a prisoner. Logan v. Commonwealth, 43 Va. App. 504, 600 S.E.2d 133, 2004 Va. App. LEXIS 374 (2004).

Compared to § 18.2-474.1 . - In order to manufacture, sell, give, distribute, or possess a controlled drug, which is an element of the crime of distribution under § 18.2-248 , a defendant must possess that controlled substance. The same analysis does not apply to the crime of delivering a controlled substance to a prisoner, in violation of § 18.2-474.1 . Logan v. Commonwealth, 43 Va. App. 504, 600 S.E.2d 133, 2004 Va. App. LEXIS 374 (2004).

Evidence sufficient to affirm conviction for attempting to deliver marijuana to a prisoner where the testimony of the deputies showed that no one other than defendant entered the restroom before one of the deputies found the marijuana. Gilliam v. Commonwealth, No. 2455-02-2, 2003 Va. App. LEXIS 515 (Ct. of Appeals Oct. 14, 2003).

Evidence sufficiently supported defendant's conviction for delivery of marijuana to her husband, a prisoner at a correctional facility, as the testimony of correctional officers and expert witnesses, as well as videotape evidence and still photographs, was sufficient to show that defendant transferred marijuana to her husband while visiting him at the correctional facility where he was incarcerated. Rodgers v. Commonwealth,, 2005 Va. App. LEXIS 257 (July 5, 2005).

Evidence was sufficient to support defendant's convictions for possession with the intent to distribute Methadone and Diazepamin and attempt to deliver to a prisoner a controlled substance in violation of §§ 18.2-248 and 18.2-474.1 because defendant knew of the procedures to turn in prescription medication at a jail annex, and not only did he fail to follow those procedures, but he also concealed the pills in his underwear and told a sergeant that he brought the pills into the jail to give to other inmates so his stay would "go a lot easier;" defendant took all the necessary steps to accomplish his objective of delivering drugs to others in the jail annex because in preparation for reporting to jail, he concealed drugs, for which he had no prescription, he entered the jail with those drugs, and he failed to report the drugs to jail personnel, and but for a strip search, he would have completed his crimes. Hounshell v. Commonwealth,, 2010 Va. App. LEXIS 443 (Nov. 9, 2010).

Evidence was insufficient to prove that defendant attempted to deliver marijuana to prisoner, where the proof concerning defendant's conduct was equivocal and did not establish more than mere preparation. Lewis v. Commonwealth, 15 Va. App. 337, 423 S.E.2d 371 (1992).

Applied in Henry v. Commonwealth, 2 Va. App. 194, 342 S.E.2d 655 (1986).

§ 18.2-474.2. Bribery in correctional facilities; penalty.

  1. Any person who receives any pecuniary benefit or other consideration to act in violation of § 18.2-474 or 18.2-474.1 is guilty of bribery, punishable as a Class 4 felony.
  2. Any law-enforcement officer as defined in § 9.1-101 , jail officer as defined in § 53.1-1 , or correctional officer as defined in § 53.1-1 who violates this section shall be decertified in accordance with § 15.2-1707 , if applicable, and shall be forever ineligible for reemployment as a law-enforcement officer, jail officer, or correctional officer in the Commonwealth. (2021, Sp. Sess. I, c. 289.)

Editor's note. - Acts 2021, Sp. Sess. I, c. 289, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.”

Effective date. - This section is effective July 1, 2021.

§ 18.2-475. Officers, etc., voluntarily allowing person convicted, charged, or adjudicated delinquent of felony to escape; penalty.

If any sheriff, jailer, or other officer, or any guard or other person summoned or employed by any such sheriff, jailer, or other officer, voluntarily allows a prisoner or person committed to the Department of Juvenile Justice convicted of, charged with, or adjudicated delinquent of a felony to escape from his custody, he is guilty of a Class 4 felony.

(Code 1950, § 18.1-286; 1960, c. 358; 1975, cc. 14, 15; 1983, c. 360; 2013, cc. 707, 782.)

The 2013 amendments. - The 2013 amendments by cc. 707 and 782 are identical, and rewrote the section, which read: "If any sheriff, jailer or other officer, or any guard or other person summoned or employed by any such sheriff, jailer or other officer, voluntarily allows a prisoner convicted of or charged with felony to escape from his custody, he shall be guilty of a Class 4 felony."

CASE NOTES

Sheriff is not liable for conduct of deputy. - A sheriff is not criminally liable for an escape due to the conduct of his deputy. Commonwealth v. Lewis, 31 Va. (4 Leigh) 664 (1833).

§ 18.2-476. Officers, etc., willfully and deliberately permitting person convicted of, charged with, or adjudicated delinquent of a nonfelonious offense to escape or willfully refusing to receive person; penalty.

If any sheriff, jailer, or other officer, or any guard or other person summoned or employed by such sheriff, jailer, or other officer, willfully and deliberately permits a prisoner or person committed to the Department of Juvenile Justice convicted of, charged with, or adjudicated delinquent of an offense not a felony, to escape from his custody, or willfully refuses to receive into his custody a person lawfully committed thereto, he is guilty of a Class 2 misdemeanor.

(Code 1950, § 18.1-287; 1960, c. 358; 1975, cc. 14, 15; 1983, c. 360; 2013, cc. 707, 782.)

The 2013 amendments. - The 2013 amendments by cc. 707 and 782 are identical, and rewrote the section, which read: "If any sheriff, jailer or other officer, or any guard or other person summoned or employed by such sheriff, jailer or other officer, willfully and deliberately permits a prisoner convicted of or charged with an offense not a felony, to escape from his custody, or willfully refuses to receive into his custody a person lawfully committed thereto, he shall be guilty of a Class 2 misdemeanor."

CASE NOTES

Sheriff is not liable for escape permitted by deputy. - The sheriff in Virginia is ex officio jailer of his county, but may devolve the duties of jailer on a deputy, and will not be criminally liable for a negligent escape permitted by him. If, however, a prisoner is permitted to go at large with the knowledge and approval of the sheriff, and by his direction and authority, and while so at large the prisoner escapes, the sheriff is himself criminally liable for the escape. Watts v. Commonwealth, 99 Va. 872 , 39 S.E. 706 (1901).

Indictment held insufficient. - An indictment against a jailer, for permitting a prisoner in his custody to have an instrument in his room with which he might break the jail and escape, and for failing carefully to examine at short intervals the condition of the jail, and what the prisoner was engaged at in said jail, in consequence of which the prisoner escaped, does not state an indictable offense. Commonwealth v. Connell, 44 Va. (3 Gratt.) 587 (1846).

Venue. - A criminal prosecution against a sheriff cannot be maintained in another county for his act in wilfully permitting the escape of a prisoner in the sheriff's own county. Commonwealth v. Lewis, 31 Va. (4 Leigh) 664 (1833).

§ 18.2-477. Prisoner escaping from jail; how punished.

If any person confined in jail or in custody after conviction of a criminal offense shall escape by force or violence, other than by setting fire thereto, he shall be guilty of a Class 6 felony. The term of confinement under this section shall commence from the expiration of the former sentence.

(Code 1950, § 18.1-288; 1960, c. 358; 1962, c. 506; 1975, cc. 14, 15; 1985, c. 555.)

Cross references. - For definition of "barrier crime" as including a conviction of escape from jail as set out in § 18.2-477 , or an equivalent offense in another state, and prohibition against assisted living facilities, adult day care centers or child welfare agencies hiring for certain compensated employment persons who have committed such an offense, see §§ 63.2-1719 , 63.2-1720 .

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escape, §§ 1, 2; 9A M.J. Habeas Corpus, § 11.

CASE NOTES

Mistakenly indicating that prosecution is under this section. - Where, prior to the defendant's arraignment and plea, in response to an inquiry by defense counsel, the Commonwealth's attorney mistakenly indicated that he was proceeding against the defendant under this section, the defendant's claim that this was an election by the Commonwealth, which limited his punishment to the maximum provided by this section, was without merit since the defendant, prior to his plea, was advised by both his counsel and the trial court that the prosecution was being conducted under former § 53-291, and was also advised that he, as an inmate of a penal institution, was subject to a maximum penalty of 20 years imprisonment if he had inflicted bodily injury on the guard from whose custody he escaped, a fact that was later established by uncontroverted evidence. Guthrie v. Commonwealth, 212 Va. 550 , 186 S.E.2d 26 (1972).

When former sentence expires. - Where a party has been indicted and the verdict of the jury finds him guilty and orders that he be imprisoned for a certain time, and before that time has expired the party escapes from jail and is afterwards retaken, he is to be kept in prison beyond the prescribed period for the length of time he was out when he escaped, and this though he has already been indicted for the escape. Cleek v. Commonwealth, 62 Va. (21 Gratt.) 777 (1871).

§ 18.2-477.1. Escapes from juvenile facility; penalty.

  1. It shall be unlawful for any person to escape or remain away without proper authority from a group home or other residential care facility for children in need of services, delinquent or alleged delinquent youths in which he had been placed by the juvenile and domestic relations court or as a result of his commitment as a juvenile to the Department of Juvenile Justice. Any person violating this subsection shall be taken into custody and brought before the juvenile and domestic relations court. The court may find the person in violation of § 16.1-292 or, if the court finds the person amenable to further treatment in a juvenile facility, the court may return him to the custody of the Department.
  2. It shall be unlawful for any person to escape or remain away without proper authority from a secure facility operated by or under contract with the Department of Juvenile Justice or from a secure juvenile detention facility in which he had been placed by the juvenile and domestic relations court or as a result of his commitment as a juvenile to the Department of Juvenile Justice. Any person who escapes from a facility specified in this subsection by force or by violence shall be guilty of a Class 6 felony or, if violation of this subsection occurs other than by force or violence, a Class 1 misdemeanor.

    (1985, c. 435; 1989, c. 733; 1993, c. 840; 1994, c. 490; 1997, c. 749.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 1997 amendment, in subsection B, inserted "secure" preceding "facility operated" and inserted "or under contract with" preceding "the Department of Juvenile Justice."

Law review. - For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escape, §§ 1, 2; 9A M.J. Habeas Corpus, § 11; 9B M.J. Infants & Juveniles, § 86.

CASE NOTES

Appellant was detained pursuant to detention order. - Evidence established that appellant was a resident of a juvenile facility pursuant to an order of the juvenile and domestic relations district court. Since appellant had an upcoming detention review hearing, then a fortiori, he was being detained pursuant to an order of detention. Furthermore, according to chief correctional officer for the sheriff's office, the only persons detained in the juvenile interim holding facility were juveniles ordered there by the juvenile and domestic relations district court judge. Testa v. Commonwealth, No. 1496-96-4 (Ct. of Appeals Dec. 9, 1997).

§ 18.2-477.2. Punishment for certain offenses committed within a secure juvenile facility or detention home.

It shall be unlawful for a person committed to the Department of Juvenile Justice in any juvenile correctional center or detained in a secure juvenile facility or detention home to commit any of the offenses enumerated in § 53.1-203 . A violation of this section shall be punishable as a Class 6 felony, except that a violation of subdivision 6 of § 53.1-203 is a Class 5 felony.

(1999, c. 21; 2007, c. 521; 2013, cc. 707, 782.)

The 2007 amendments. - The 2007 amendment by c. 521 deleted "subdivisions 1 through 9 of" preceding " § 53.1-203 " in the first sentence.

The 2013 amendments. - The 2013 amendment by 707 rewrote the section, which read: "It shall be unlawful for a person detained in a secure juvenile facility or detention home to commit any of the offenses enumerated in § 53.1-203 . A violation of this section shall be punishable as a Class 1 misdemeanor."

The 2013 amendment by c. 782 inserted "committed to the Department of Juvenile Justice in any juvenile correctional center or" in the first sentence; and substituted "Class 6 felony, except that a violation of subdivision 6 of § 53.1-203 is a Class 5 felony" for "Class 1 misdemeanor" in the second sentence.

§ 18.2-478. Escape from jail or custody by force or violence without setting fire to jail.

If any person lawfully imprisoned in jail and not tried or sentenced on a criminal offense escapes from jail by force or violence, other than by setting fire thereto or if any person lawfully in the custody of any police officer on a charge of criminal offense escapes from such custody by force or violence, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-289; 1960, c. 358; 1975, cc. 14, 15; 1985, c. 555.)

Law review. - For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escape, § 1.

CASE NOTES

Elements. - Because assault of an officer is not a lesser included offense of escape from a police officer by use of force or violence under the statute and because defendant's act of obstructing justice was a separate and distinct act from his escape, which the Commonwealth's evidence supported, defendant's escape conviction was well founded. Henry v. Commonwealth, 21 Va. App. 141, 462 S.E.2d 578 (1995).

Evidence that defendant ran away from an officer who was escorting him to a police wagon and was subsequently caught and subdued by three officers did not prove beyond a reasonable doubt that defendant used force to attempt to escape. Bell v. Commonwealth, No. 0139-01-2, 2002 Va. App. LEXIS 151 (Ct. of Appeals Mar. 12, 2002).

Evidence of "custody." - Because the Commonwealth had to prove that the appellant was in custody and that the custody was "on a charge of criminal offense," the existence of warrant for appellant's arrest was relevant to prove that appellant was being arrested on criminal charges. Johnson v. Commonwealth, 21 Va. App. 102, 462 S.E.2d 125 (1995).

A person is in custody for the purposes of escape under this statute when by physical force, words, or actions, that person becomes subject to the officer's control; thus, if a person of ordinary intelligence and understanding would not feel free to leave under the circumstances, then he or she is in "custody" for purposes of this section. Johnson v. Commonwealth, 21 Va. App. 102, 462 S.E.2d 125 (1995).

Because a police officer grabbed defendant's wrist in an attempt to handcuff him and told him that he was under arrest, before defendant struggled free and escaped moments later, defendant was under arrest and therefore in custody for purposes of the escape statute. Hall v. Commonwealth, 55 Va. App. 451, 686 S.E.2d 554, 2009 Va. App. LEXIS 567 (2009), aff'd, 280 Va. 566 , 701 S.E.2d 68, 2010 Va. LEXIS 263 (Va. 2010).

Evidence showed that the officer went to defendant's residence and advised defendant that he had a warrant for his arrest, that after directing defendant to step onto the front porch, the officer lawfully advised defendant that he was under arrest and grabbed defendant's left wrist to handcuff him, and that the officer spoke words of arrest and actually touched defendant for the stated purpose of arrest; therefore, at that moment, notwithstanding defendant's subsequent flight, the arrest was effected and defendant was in custody since an individual under arrest was always in custody. Accordingly, the evidence was sufficient to prove that defendant was in custody pursuant to § 18.2-478 prior to his forcibly wrestling free of the officer's grasp, and that defendant escaped from custody by force or violence in violation of § 18.2-478 . Hall v. Commonwealth, 280 Va. 566 , 701 S.E.2d 68, 2010 Va. LEXIS 263 (2010).

Defendant not charged with a criminal offense. - Charge of escape by force from the custody of a police officer should have been dismissed where there was no evidence that defendant was charged with a criminal offense; the evidence showed that police stopped defendant because they had report that the car he was driving was stolen, not because he was charged with a criminal offense. Coles v. Commonwealth, 44 Va. App. 549, 605 S.E.2d 784, 2004 Va. App. LEXIS 612 (2004).

No evidence of written charge. - Evidence was insufficient to sustain defendant's conviction of felonious escape from custody, in violation of § 18.2-478 , where the Commonwealth did not introduce any evidence that there was a written charge against him at the time he was allegedly taken into custody by an officer following an attempted traffic stop and foot chase. Hubbard v. Commonwealth, 276 Va. 292 , 661 S.E.2d 464, 2008 Va. LEXIS 61 (2008).

To sustain a conviction under § 18.2-478 , the evidence must show a defendant was taken into custody pursuant to a written charge; probable cause to arrest will not suffice to satisfy the "on a charge of criminal offense" element stated in § 18.2-478 . Hubbard v. Commonwealth, 276 Va. 292 , 661 S.E.2d 464, 2008 Va. LEXIS 61 (2008).

Evidence sufficient. - Evidence was sufficient to convict defendant of attempted felony escape because there was no damage to the cell before his detainment; he was the only person to use the bathroom before officers discovered the damage; the officers discovered a large hole in the ceiling within minutes of transferring defendant from the cell; and the evidence revealed no other explanation for why he created a one to two foot hole in the holding cell's bathroom ceiling. Childress v. Commonwealth, No. 2256-12-3, 2013 Va. App. LEXIS 288 (Ct. of Appeals Oct. 15, 2013).

Trial court did not err by finding that defendant was charged with a criminal offense at the point of his initial arrest, and therefore his conviction for escape from custody conviction was affirmed, because his charge of criminal contempt was a criminal offense, as the issuance of the capias was directly related to his failure to comply with the conditions imposed upon him arising from his underlying assault and battery case, formal proceedings for the assault and battery had not been concluded when defendant escaped from the officer's custody, and the officer knew of defendant's outstanding warrant and attempted to arrest him. Lopez v. Commonwealth,, 2021 Va. App. LEXIS 30 (Mar. 2, 2021).

Sufficiency of the evidence claim not preserved. - Defendant failed to preserve his sufficiency of the evidence claim as to his escape conviction under § 18.2-478 where: (1) he failed to renew his motion to strike made at the close of the Commonwealth's case, and proceeded to put on his own evidence, thereby waiving his right to stand on the motion made at the conclusion of the Commonwealth's case; (2) renewing the arguments made in support of his motion to strike in his closing argument did not preserve a sufficiency argument for purposes of an appeal; and (3) he made a different argument in support of his motion to set aside the verdict in the trial court than he made on appeal, which under Va. Sup. Ct. R. 5A:18, precluded the appellate court from considering the argument on appeal. Anthony v. Commonwealth, No. 0986-02-3, 2003 Va. App. LEXIS 654 (Ct. of Appeals Dec. 16, 2003).

Applied in Thomas v. Commonwealth, 56 Va. App. 1, 690 S.E.2d 298, 2010 Va. App. LEXIS 93 (2010); Joseph v. Commonwealth, 64 Va. App. 332, 768 S.E.2d 256, 2015 Va. App. LEXIS 36 (2015).

§ 18.2-479. Escape without force or violence or setting fire to jail.

  1. Except as provided in subsection B, any person lawfully confined in jail or lawfully in the custody of any court, officer of the court, or of any law-enforcement officer for violation of his probation or parole or on a charge or conviction of a misdemeanor, who escapes, other than by force or violence or by setting fire to the jail, is guilty of a Class 1 misdemeanor.
  2. Any person, lawfully confined in jail or lawfully in the custody of any court, officer of the court, or of any law-enforcement officer on a charge or conviction of a felony, who escapes, other than by force or violence or by setting fire to the jail, is guilty of a Class 6 felony.

    (Code 1950, § 18.1-290; 1960, c. 358; 1975, cc. 14, 15; 1985, c. 555; 2005, c. 573.)

Cross references. - As to crimes by prisoners, see § 53.1-203 et seq.

The 2005 amendments. - The 2005 amendment by c. 573, rewrote this section.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For article, "Construction Law," see 45 U. Rich. L. Rev. 227 (2010).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 3; 5B M.J. Criminal Procedure, § 83; 7A M.J. Escape, § 1; 9A M.J. Habeas Corpus, § 11.

CASE NOTES

Proof of underlying offense for which accused is in custody is irrelevant to the determination of guilt, except in those cases in which the Commonwealth seeks enhanced punishment under subsection B. Williams v. Commonwealth, 29 Va. App. 696, 514 S.E.2d 381 (1999).

Arrest does not equate to being "in custody on a charge of a felony." - Probable cause to arrest will not satisfy the requirement that the Commonwealth of Virginia prove beyond a reasonable doubt that the defendant was "in custody on a charge of a felony." A criminal charge exists only when a formal written complaint has been made against the accused, and a prosecution initiated. Boone v. Commonwealth,, 2005 Va. App. LEXIS 95 (Mar. 8, 2005).

For case distinguishing offenses in this section and former § 53-291, see Wood v. Cox, 333 F. Supp. 1064 (W.D. Va. 1971).

Nothing in this section indicates it establishes the exclusive offense for persons who escape before conviction or assignment to the penitentiary (now state correctional facility) system, and nothing in former § 53-291 indicates it is applicable only to those who escape after conviction and assignment to the penitentiary system. Mason v. Commonwealth, 217 Va. 321 , 228 S.E.2d 683 (1976) (decided under § 18.1-290, predecessor to this section).

Conviction under this section or former § 53-291 bars prosecution under the other. Mason v. Commonwealth, 217 Va. 321 , 228 S.E.2d 683 (1976) (decided under § 18.1-290, predecessor to this section).

It is a matter of prosecutorial election whether the Commonwealth proceeds under this section or former § 53-291 against an accused. Mason v. Commonwealth, 217 Va. 321 , 228 S.E.2d 683 (1976) (decided under § 18.1-290, predecessor to this section).

For case comparing punishment provisions of this section and former § 53-208, see Durkin v. Davis, 390 F. Supp. 249 (E.D. Va. 1975), rev'd on other grounds, 538 F.2d 1037 (4th Cir. 1976).

Attempted crimes are specific intent crimes, and therefore, where the Commonwealth charges a defendant with attempted escape, it is required to prove that: (1) the defendant intended to escape from custody; and (2) he engaged in some act in furtherance of escaping. Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209, 2001 Va. App. LEXIS 262 (2001).

Violent felony for federal sentencing purposes. - Despite its title, a conviction for escape under subsection B of § 18.2-479 , constituted a violent felony for purposes of sentencing under the Armed Career Criminal Act, 18 U.S.C.S § 924(e), because the title was irrelevant to this determination, particularly as every escape, no matter how conducted, involved conduct that presented a serious potential risk of physical injury, and § 18.2-479 , by its plain text, punished those who unlawfully and feloniously escaped from confinement. United States v. Mathias, 482 F.3d 743, 2007 U.S. App. LEXIS 8524 (4th Cir. 2007).

No felony escape if occurred during custody for misdemeanor. - Defendant's conviction for felony escape under subsection B of § 18.2-479 was reversed because at the time of his escape he had only been arrested for a misdemeanor and the arresting officer did not yet know that he had prior petit larceny convictions. Johnson v. Commonwealth, No. 2870-02-2, 2003 Va. App. LEXIS 513 (Ct. of Appeals Oct. 14, 2003).

Application of force to complete arrest. - Where a police officer clearly stated that defendant could not drive her truck based on a felony capias for her arrest, and applied physical force to complete the arrest, the evidence supported defendant's escape conviction. Harris v. Commonwealth, No. 0795-02-3, 2003 Va. App. LEXIS 25 (Ct. of Appeals Jan. 28, 2003).

Lesser-included offense of escape by force or violence. - Defendant's conviction of nonviolent escape from custody, as a lesser-included offense of escape by force or violence, was upheld, as the jury was authorized to conclude from the evidence presented that defendant disappeared while in custody, was left alone in an interview room, and was never found by law-enforcement officials; further, because he was convicted of a lesser-included offense, the indictment did not require the Commonwealth to prove he used force when he escaped. McBrayer v. Commonwealth, No. 1929-03-2, 2004 Va. App. LEXIS 467 (Ct. of Appeals Oct. 5, 2004).

The evidence was sufficient for a jury to have found that defendant knew he was "in custody" and not free to leave where, although the defendant arrived the police station voluntarily, he came there for the purpose of having two felony arrest warrants served on him, a deputy testified that by the time the defendant had attempted to leave, he had already served the warrants on the defendant, when the defendant began to leave, the deputy ordered the defendant to stop, the defendant ignored the deputy's request to stop and the defendant had to be physically restrained. Bennett v. Commonwealth, 35 Va. App. 442, 546 S.E.2d 209, 2001 Va. App. LEXIS 262 (2001).

Appellant was not in officer's custody. - Officer did not effectuate his legal authority to arrest appellant; he neither touched appellant nor obtained appellant's submission to his authority. Each time officer spoke to appellant, appellant responded with profanity. When officer told appellant not to run, appellant responded that he was going to run, and he did. In short, the evidence showed that appellant did not submit, in any respect, to a show of authority. Appellant was not in officer's custody at the time he ran, and accordingly, the court reversed his escape conviction. Cavell v. Commonwealth, 26 Va. App. 82, 493 S.E.2d 382 (1997).

When officer determined to place defendant in custody, he did not have physical control over defendant, and defendant fled before the officer could obtain that degree of control; thus, defendant was not in custody and his flight was not an escape under subsection B of § 18.2-479 . White v. Commonwealth, 267 Va. 96 , 591 S.E.2d 662, 2004 Va. LEXIS 9 (2004).

Whether a person is "in custody" for purposes of the statute depends upon whether the officer has applied direct physical restraint or, in the absence of restraint, whether the person has submitted to a show of authority. Towns v. Commonwealth, No. 1720-97-3 (Ct. of Appeals Nov. 10, 1998).

An individual is in "custody," as contemplated by § 18.2-479 , when a law enforcement officer has lawfully curtailed the individual's freedom of movement to a degree associated with a formal arrest, even when a formal custodial arrest has not been effected. Applying an objective standard, the inquiry is whether the officer, with proper authority to do so, had by his words or use of physical force, curtailed the individual's freedom of movement beyond that required for a temporary investigative detention. White v. Commonwealth, 267 Va. 96 , 591 S.E.2d 662, 2004 Va. LEXIS 9 (2004).

"Custody" not shown. - Whether a person is "in custody" for the purposes of this section depends upon whether the officer has applied direct physical restraint, or in the absence of restraint, whether the person has submitted to a show of authority. Thus, where defendant was present in the courthouse on another matter; officer did not physically touch or restrain defendant; and while defendant admitted that he walked to officer when his name was called, he never submitted to a show of authority, rather it was undisputed the moment officer began to read from warrant, defendant ran away, defendant was not in custody at the time he fled and therefore his conviction of escape was reversed. Towns v. Commonwealth, No. 1720-97-3 (Ct. of Appeals November 10, 1998).

Where defendant was arrested for a probation violation, and then escaped, since defendant was not in custody for a misdemeanor, escape conviction would be reversed. Khaliq v. Commonwealth, No. 1588-01-2, 2002 Va. App. LEXIS 277 (Ct. of Appeals May 7, 2002).

Defendant's escape from custody conviction was reversed, where the Commonwealth failed to show sufficient evidence that he was in the custody of the court when he failed to report to jail after being released on bond pending sentencing; thus, at the time he failed to report a sufficient restraint of physical control over him did not exist. Davis v. Commonwealth, 45 Va. App. 12, 608 S.E.2d 482, 2005 Va. App. LEXIS 43 (2005).

Where defendant failed to raise his objection before the trial court, the "ends of justice" exception was established because the record affirmatively demonstrated that the Commonwealth failed to prove an essential element for a conviction of escape from custody on a charge or conviction of a felony under subsection B of § 18.2-479 since there was no written complaint against defendant and he was not in custody on a felony conviction when he escaped from the police. Thomas v. Commonwealth, 56 Va. App. 1, 690 S.E.2d 298, 2010 Va. App. LEXIS 93 (2010).

Insufficient evidence. - Commonwealth failed to prove an essential element for a conviction of escape from custody on a charge or conviction of a felony under subsection B because the evidence affirmatively showed that there was no written complaint against defendant and he was not in custody on a felony conviction when he escaped from the police. Thomas v. Commonwealth, 56 Va. App. 1, 690 S.E.2d 298, 2010 Va. App. LEXIS 93 (2010).

Identity sufficiently established. - The testimony of the two police officers involved in the defendant's apprehension was sufficient to establish her identity as the person who had escaped from custody where, although the record did not reflect that either officer physically pointed a finger at the defendant in court, it clearly established that immediately prior to the taking of evidence, the defendant identified herself to the trial judge by name and that during their testimony, both officers identified the defendant by name as the person they had detained and stated that she was in their custody and presence when the escape and recapture occurred. Wiglesworth v. Commonwealth, No. 1291-99-2, 2000 Va. App. LEXIS 276 (Ct. of Appeals Apr. 11, 2000).

No meritorious issues were raised with regard to resisting arrest conviction. - Defendant failed to raise meritorious issues on appeal with regard to his conviction for resisting arrest in violation of 18 U.S.C.S. §§ 7 and 13, assimilating § 18.2-479 ; based upon the evidence presented by the government, any rational trier of fact could have found defendant guilty of resisting arrest under § 18.2-479 , the Virginia statute for escape, and his acquittal on obstruction of justice charges did not bar his conviction on the resisting arrest count. United States v. Wells, - F.3d - , 2005 U.S. App. LEXIS 4829 (4th Cir. Mar. 24, 2005).

Applied in Cavell v. Commonwealth, 28 Va. App. 484, 506 S.E.2d 552 (1998).

§ 18.2-479.1.

Repealed by Acts 2018, c. 417, cl. 2.

Cross references. - For current provisions prohibiting fleeing from a law-enforcement officer, see § 18.2-460 .

Editor's note. - Former § 18.2-479.1 , relating to the offense of fleeing from a law-enforcement officer and its penalty, derived from Acts 2003, cc. 112, 805.

§ 18.2-480. Escape, etc., by setting fire to jail.

If any person lawfully imprisoned in jail escape, or attempt to escape therefrom, by setting fire thereto, he shall be guilty of a Class 4 felony.

(Code 1950, § 18.1-291; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 7A M.J. Escape, § 1.

§ 18.2-480.1. Admissibility of records of Department of Corrections in escape cases.

In any prosecution for, or preliminary hearing for, the offense of escape under this article or Title 53.1, the records maintained by the Department of Corrections or the Department of Juvenile Justice, when such records are duly attested by the custodian of such records, shall be admissible in evidence as evidence of the fact, location and dates of confinement, provided that the records shall be filed with the clerk of the court hearing the case at least seven days prior to the trial or preliminary hearing. On motion of the accused, the court may require the custodian to appear as a witness and be subject to cross-examination; provided such motion is made within a reasonable time prior to the day on which the case is set for trial; and provided further, that the custodian so appearing shall be considered the Commonwealth's witness.

(1976, c. 394; 1989, c. 733.)

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 11.

Chapter 11. Offenses Against the Sovereignty of the Commonwealth.

Treason and Related Offenses.

Uniform Flag Act.

Article 1. Treason and Related Offenses.

§ 18.2-481. Treason defined; how proved and punished.

Treason shall consist only in:

  1. Levying war against the Commonwealth;
  2. Adhering to its enemies, giving them aid and comfort;
  3. Establishing, without authority of the legislature, any government within its limits separate from the existing government;
  4. Holding or executing, in such usurped government, any office, or professing allegiance or fidelity to it; or
  5. Resisting the execution of the laws under color of its authority.

    Such treason, if proved by the testimony of two witnesses to the same overt act, or by confession in court, shall be punishable as a Class 2 felony.

    (Code 1950, § 18.1-418; 1960, c. 358; 1975, cc. 14, 15.)

Cross references. - As to amendment of indictment for treason, see § 19.2-231 .

As to arrest of member of General Assembly for treason, see § 30-7, and Va. Const., Art. IV, § 9.

Law review. - For survey of Virginia criminal law for the year 1974-1975, see 61 Va. L. Rev. 1697 (1975).

Michie's Jurisprudence. - For related discussion, see 18 M.J. Treason, § 1.

CASE NOTES

No private right of action. - District court properly dismissed disbarred attorney's treason claim because there was no private right of action. Rodriguez v. Doe,, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013).

§ 18.2-482. Misprision of treason.

If any person knowing of such treason shall not, as soon as may be, give information thereof to the Governor, or some conservator of the peace, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-419; 1960, c. 358; 1975, cc. 14, 15.)

CASE NOTES

No private right of action. - District court properly dismissed disbarred attorney's treason claim because there was no private right of action. Rodriguez v. Doe,, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013).

§ 18.2-483. Attempting, or instigating others, to establish usurped government.

If any person attempt to establish any such usurped government and commit any overt act therefor or by writing or speaking endeavor to instigate others to establish such government, he shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 18.1-420; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, § 2.

§ 18.2-484. Advocacy of change in government by force, violence or other unlawful means.

It shall be unlawful for any person, group, or organization to advocate any change, by force, violence, or other unlawful means in the government of the Commonwealth of Virginia or any of its subdivisions or in the government of the United States of America.

It shall be unlawful for any person to join, assist or otherwise contribute to any group or organization which, to the knowledge of such person, advocates or has as its purpose, aim or objective, any change, by force, violence, or other unlawful means in the government of the Commonwealth of Virginia or any of its subdivisions or in the government of the United States of America.

Violation of this section shall be punishable as a Class 6 felony.

Nothing herein shall be construed to limit or prohibit the advocacy, orally or otherwise, of any change, by peaceful means, in the government of the Commonwealth or any of its subdivisions or in the government of the United States.

(Code 1950, § 18.1-421; 1960, c. 358; 1962, c. 343; 1975, cc. 14, 15.)

§ 18.2-485. Conspiring to incite one race to insurrection against another race.

If any person conspire with another to incite the population of one race to acts of violence and war against the population of another race, he shall, whether such acts of violence and war be made or not, be guilty of a Class 4 felony.

(Code 1950, § 18.1-422; 1960, c. 358; 1975, cc. 14, 15.)

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, § 2.

Article 2. Uniform Flag Act.

§ 18.2-486. Definition of flag, standard, etc.

The words flag, standard, color, ensign or shield, as used in this article, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States, or of this Commonwealth, or a copy, picture or representation thereof.

(Code 1950, § 18.1-423; 1960, c. 358; 1975, cc. 14, 15.)

Uniform law cross references. - For other signatory state provisions, see:

Maine: 1 M.R.S. §§ 251 to 256.

Maryland: Md. Ann. Code, CR §§ 10-701 et seq.

Vermont: 13 V.S.A. §§ 1901 to 1906.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

Michie's Jurisprudence. - For related discussion, see 8B M.J. Flags and Emblems, § 1.

CASE NOTES

What is United States flag. - A flag with red and white stripes and a blank blue field in the upper left corner is admittedly similar to a United States flag, but even to a casual observer it would not purport to be a flag of the United States. Herrick v. Commonwealth, 212 Va. 789 , 188 S.E.2d 209 (1972).

A flag which is approximately three feet by five feet and has 13 stripes, six white and seven red, appearing alternately, and has in the upper left corner a blue field with 26 stars of two different sizes arranged in the configuration of a peace symbol, and which was at no time an actual or official flag of the United States, does not come under this section. Herrick v. Commonwealth, 212 Va. 789 , 188 S.E.2d 209 (1972).

§ 18.2-487. Exhibition or display.

No person shall, in any manner, for exhibition or display:

  1. Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this Commonwealth, or authorized by any law of the United States or of this Commonwealth;
  2. Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed, any such word, figure, mark, picture, design, drawing or advertisement; or
  3. Expose to public view for sale, manufacture or otherwise, or sell, give or have in possession for sale, for gift or for use for any purpose, any substance, being an article of merchandise, or receptacle, or thing for holding or carrying merchandise, upon or to which shall have been produced or attached any such flag, standard, color, ensign or shield, in order to advertise, call attention to, decorate, mark or distinguish such article or substance.

    (Code 1950, § 18.1-424; 1960, c. 358; 1975, cc. 14, 15.)

CASE NOTES

The purpose of this law is to prohibit any disfiguration of the United States flag. It is the flag itself which the law seeks to protect from desecration. Herrick v. Commonwealth, 212 Va. 789 , 188 S.E.2d 209 (1972).

Displaying flag which is not actual or official flag of United States. - A flag which is approximately three feet by five feet and has 13 stripes, six white and seven red, appearing alternately, and has in the upper left corner a blue field with 26 stars of two different sizes arranged in the configuration of a peace symbol, and which was at no time an actual or official flag of the United States, does not come under this section. Herrick v. Commonwealth, 212 Va. 789 , 188 S.E.2d 209 (1972).

§ 18.2-488. Mutilating, defacing, etc.

No person shall publicly burn with contempt, mutilate, deface, defile, trample upon, or wear with intent to defile any such flag, standard, color, ensign or shield.

(Code 1950, § 18.1-425; 1960, c. 358; 1968, c. 349; 1975, cc. 14, 15, 493.)

Editor's note. - The above section is § 18.1-425 as amended by Acts 1975, c. 493. Pursuant to § 30-152, it has been substituted for § 18.2-488 as enacted by Acts 1975, cc. 14 and 15.

CASE NOTES

Public act. - An act done in the radio room of a public university, a place frequented by students and others who have business there, and which is visible to persons passing on the outside, is plainly an act publicly done. Franz v. Commonwealth, 212 Va. 587 , 186 S.E.2d 71 (1972).

§ 18.2-488.1. Flag at half staff or mast for certain public safety personnel killed in the line of duty.

  1. As used in this section, unless the context requires a different meaning: "Emergency medical services provider" means the same as that term is defined in § 32.1-111.1 and any member of a volunteer emergency medical services agency. "Firefighter" means the same as that term is defined in § 9.1-300 , and any member of a volunteer fire department. "Police officer" means any full-time or part-time employee of a police department or sheriff's office which is a part of or administered by the Commonwealth or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth and a state correctional officer of the Department of Corrections. "Service member" means a member of the United States armed forces, Virginia National Guard, or Virginia Defense Force.
  2. Whenever a service member, police officer, firefighter, or emergency medical services provider who is a resident of Virginia is killed in the line of duty, all flags, state and local, flown at any building owned and operated by the Commonwealth or any political subdivision thereof shall be flown at half staff or mast for one day to honor and acknowledge respect for those who made the supreme sacrifice.
  3. The Department of General Services shall develop procedures to effectuate the purposes of this section.

    (2012, c. 767; 2015, cc. 502, 503; 2017, c. 344.)

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "emergency medical services agency" for "lifesaving crew or rescue squad" in the definition for "Emergency medical services provider" and made stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 344, in subsection A, inserted "and a state correctional officer of the Department of Corrections" at end of the definition of "Police officer"; in subsection B, inserted "or any political subdivision thereof."

§ 18.2-489. To what article applies.

This article shall not apply to any act permitted by the statutes of the United States or by the laws of this Commonwealth, or by the United States armed forces regulations, nor shall it apply to any printed or written document or production, stationery, ornament, picture or jewelry whereon shall be depicted such flag, standard, color, ensign or shield, with no design or words thereon and disconnected with any advertisement.

(Code 1950, § 18.1-426; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-490. Penalty.

Any violation of this article shall be punishable as a Class 1 misdemeanor.

The provisions of this section shall not apply to § 18.2-488.1 .

(Code 1950, § 18.1-427; 1960, c. 358; 1968, c. 349; 1975, cc. 14, 15; 2012, c. 767.)

The 2012 amendments. - The 2012 amendment by c. 767 added the second sentence.

§ 18.2-491. Construction.

This article shall be so construed as to effectuate its general purpose, and to make uniform the laws of the states which enact it.

(Code 1950, § 18.1-428; 1960, c. 358; 1975, cc. 14, 15.)

§ 18.2-492. Short title.

This article may be cited as the Uniform Flag Act.

(Code 1950, § 18.1-429; 1960, c. 358; 1975, cc. 14, 15.)

Chapter 12. Miscellaneous.

Liquefied Petroleum Gas Containers.

Virginia Governmental Frauds Act.

Conspiracy to Injure Another in Trade, Business or Profession.

Miscellaneous Offenses in General.

Article 1. Liquefied Petroleum Gas Containers.

§ 18.2-493. Definitions.

As used in this article, unless the text indicates otherwise:

  1. "Person" shall mean any person, firm or corporation.
  2. "Owner" shall mean any person who holds a written bill of sale under which title or ownership to a container was transferred to such person, or any manufacturer of a container who has not sold or transferred ownership thereof by written bill of sale.
  3. "Liquefied petroleum gas" shall mean any material which is composed predominately of any of the following hydrocarbons or mixtures of the same: propane, propylene, butanes (normal butane and isobutane) and butylenes.

    (Code 1950, § 18.1-400.1; 1970, c. 442; 1975, cc. 14, 15.)

§ 18.2-494. Unlawful use of, filling or refilling or trafficking in containers.

No person except the owner thereof or person authorized in writing by the owner shall fill or refill with liquefied petroleum gas, or any other gas or compound, a liquefied petroleum gas container; or buy, sell, offer for sale, give, take, loan, deliver or permit to be delivered, or otherwise use, dispose of, or traffic in a liquefied petroleum gas container or containers if the container bears upon the surface thereof in plainly legible characters the name, initials, mark or other device of the owner; nor shall any person other than the owner of a liquefied petroleum gas container or a person authorized in writing by the owner deface, erase, obliterate, cover up, or otherwise remove or conceal any name, mark, initial or device thereon.

(Code 1950, § 18.1-400.2; 1970, c. 442; 1975, cc. 14, 15.)

§ 18.2-495. Presumptive evidence.

The use of a liquefied petroleum gas container or containers by any person other than the person whose name, mark, initial or device is on the liquefied petroleum gas container or containers, without written consent, or purchase of the marked and distinguished liquefied petroleum gas container for the sale of liquefied petroleum gas or filling or refilling with liquefied petroleum gas, or possession of the liquefied petroleum gas containers by any person other than the person having his name, mark, initial or other device thereon, without the written consent of such owner, is presumptive evidence of the unlawful use, filling or refilling, or trafficking in of such liquefied petroleum gas containers.

(Code 1950, § 18.1-400.3; 1970, c. 442; 1975, cc. 14, 15.)

§ 18.2-496. Punishment for violation.

Any person who fails to comply with any of the foregoing provisions of this article is guilty of a Class 3 misdemeanor for each separate offense.

(Code 1950, § 18.1-400.4; 1970, c. 442; 1975, cc. 14, 15.)

§ 18.2-497. Fines and costs.

The costs incurred in the enforcement of this article shall be assessed and collected in the same manner as in criminal cases, and all fines collected by virtue of this article shall be turned over in the same manner and for the same purposes as criminal and misdemeanor fines are disposed of by law.

(Code 1950, § 18.1-400.5; 1970, c. 442; 1975, cc. 14, 15.)

§ 18.2-498. Exempt containers.

Nothing in this article applies to or shall be construed to affect a liquefied petroleum gas container having a total capacity of five gallons or less.

(Code 1950, § 18.1-400.6; 1970, c. 442; 1975, cc. 14, 15.)

Article 1.1. Virginia Governmental Frauds Act.

§ 18.2-498.1. Short title.

This article shall be known and cited as the Virginia Governmental Frauds Act.

(1980, c. 472.)

Cross references. - As to the violation of this article as grounds for denying prequalification of contractors under the Virginia Public Procurement Act, see § 2.2-4317 .

As to this article in relation to the Ethics in Public Contracting article of the Virginia Public Procurement Act, see § 2.2-4367 .

CASE NOTES

Conviction under § 18.2-178 for inflated vendors' bids. - The enactment of § 59.1-68.6 et seq. and this article did not preclude the Commonwealth from obtaining a conviction under § 18.2-178 of a defendant alleged to have improperly inflated vendors' bids to the detriment of the Commonwealth, where the alleged acts took place prior to the enactment of the new statutes. Mosteller v. Commonwealth, 222 Va. 143 , 279 S.E.2d 380 (1981).

§ 18.2-498.2. Definitions.

When used in this article, the term:

  1. "Person" includes any natural person, any trust or association of persons, formal or otherwise, or any corporation, partnership, company or other legal or commercial entity.
  2. "Commercial dealing" shall mean any offer, acceptance, agreement, or solicitation to sell or offer to sell or distribute goods, services or construction, to the Commonwealth of Virginia, or any local government within the Commonwealth or any department or agency thereof.

    (1980, c. 472.)

§ 18.2-498.3. Misrepresentations prohibited.

Any person, in any commercial dealing in any matter within the jurisdiction of any department or agency of the Commonwealth of Virginia, or any local government within the Commonwealth or any department or agency thereof, who knowingly falsifies, conceals, misleads, or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be guilty of a Class 6 felony.

(1980, c. 472.)

§ 18.2-498.4. Duty to provide certified statement.

  1. The Commonwealth, or any department or agency thereof, and any local government or any department or agency thereof, may require that any person seeking, offering or agreeing to transact business or commerce with it, or seeking, offering or agreeing to receive any portion of the public funds or moneys, submit a certification that the offer or agreement or any claim resulting therefrom is not the result of, or affected by, any act of collusion with another person engaged in the same line of business or commerce; or any act of fraud punishable under this article.
  2. Any person required to submit a certified statement as provided in subsection A above who knowingly makes a false statement shall be guilty of a Class 6 felony.

    (1980, c. 472.)

§ 18.2-498.5. Actions on behalf of Commonwealth or localities.

The Attorney General on behalf of the Commonwealth, or the attorney for the Commonwealth, on behalf of the county or city as the case may be may institute actions and proceedings for any and all violations occurring within their jurisdictions.

(1980, c. 472.)

Article 2. Conspiracy to Injure Another in Trade, Business or Profession.

§ 18.2-499. Combinations to injure others in their reputation, trade, business or profession; rights of employees.

  1. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor. Such punishment shall be in addition to any civil relief recoverable under § 18.2-500 .
  2. Any person who attempts to procure the participation, cooperation, agreement or other assistance of any one or more persons to enter into any combination, association, agreement, mutual understanding or concert prohibited in subsection A of this section shall be guilty of a violation of this section and subject to the same penalties set out in subsection A.
  3. This section shall not affect the right of employees lawfully to organize and bargain concerning wages and conditions of employment, and take other steps to protect their rights as provided under state and federal laws.

    (Code 1950, § 18.1-74.1:1; 1964, c. 623; 1972, c. 469; 1975, cc. 14, 15; 1994, c. 534.)

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For article on injuries to business under the Virginia Conspiracy Act, see 38 Wash. & Lee L. Rev. 377 (1981). For article on the Virginia Conspiracy Statute, see 38 Wash. & Lee L. Rev. 1147 (1981).

For an article, "Preserving Competition: Economic Analysis, Legal Standards, and Microsoft," see 8 Geo. Mason L. Rev. 1 (1999).

For a review of antitrust and trade regulation law in Virginia for year 1999, see 33 U. Rich. L. Rev. 769 (1999).

For article, "Antitrust and Trade Regulation," see 35 U. Rich. L. Rev. 453 (2001).

For annual survey article discussing antitrust and trade regulation law, see 38 U. Rich. L. Rev. 39 (2003).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Research References. - Stanley S. Arkin, Business Crime: Criminal Liability of the Business Community (Matthew Bender).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, §§ 2, 8, 13; 5B M.J. Criminal Procedure, §§ 6, 7; 18 M.J. Torts, § 2.2; 18 M.J. Trademarks, Trade Names & Unfair Competition, § 4.1.

CASE NOTES

I. GENERAL CONSIDERATION.

The focus of this section and § 18.2-500 is upon conspiracies resulting in business-related damages. Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980), rev'd on other grounds, 657 F.2d 45 (4th Cir. 1981), cert. denied, 455 U.S. 907, 102 S. Ct. 1253, 71 L. Ed. 2d 445 (1982).

The elements of a statutory conspiracy claim under the Virginia Conspiracy Act are: (1) concerted action; (2) legal malice; and (3) causally-related injury. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

Section not applicable to injury to one's employment interests. - Where former postmaster alleged that co-workers conspired to injure him in his reputation, trade, business and profession and as a result he was demoted, the claim was dismissed for failure to state a claim for relief because this section addresses only injuries to one's business, not injuries to one's employment interests. Jordan v. Hudson, 690 F. Supp. 502 (E.D. Va. 1988), aff'd, 879 F.2d 98 (4th Cir. 1989).

To the extent a plaintiff attempts to base his conspiracy claim on injury to his personal reputation or employment, as opposed to business, interests, he fails to state a claim under this section and § 18.2-500 . Warner v. Buck Creek Nursery, Inc., 149 F. Supp. 2d 246 (W.D. Va. 2001).

The statute only applies to injury to a "business," rather than merely to employment or employment reputation. Proffit v. Ring, No. 1:01CV00121, 2002 U.S. Dist. LEXIS 1316 (W.D. Va. Jan. 28, 2002).

Where claims were brought for malicious prosecution and statutory conspiracy, under §§ 18.2-499 and 18.2-500 , alleging conspiracy to injure reputation, trade, business, and profession, the trial court properly granted summary judgment to defendants on the statutory conspiracy claims, as §§ 18.2-499 and 18.2-500 applied to business and property interests, not to personal or employment interests. Andrews v. Ring, 266 Va. 311 , 585 S.E.2d 780, 2003 Va. LEXIS 86 (2003).

Physician's claimed injuries (the termination of the physician's employment with an anesthesiology group and a hospital and the potential difficulty the physician faced in obtaining future employment with another hospital or anesthesiology group) did not fall within the scope of §§ 18.2-499 and 18.2-500 . Mansfield v. Anesthesia Assocs.,, 2008 U.S. Dist. LEXIS 34732 (E.D. Va. Apr. 28, 2008).

Employment not within scope of section. - Summary judgment was granted for a defendant doctor who was chair of a hospital executive committee board and was alleged to be liable for a conspiracy under §§ 18.2-499 and 18.2-500 , because defendant could not be liable for a conspiracy arising from a personal employment relationship. Payman v. Mirza, No. 2:02CV00023, 2002 U.S. Dist. LEXIS 21489 (W.D. Va. Nov. 1, 2002).

Unspecified future business prospect insufficient to support claim. - This section does not apply to a claim of injury to an unspecified future business endeavor. Warner v. Buck Creek Nursery, Inc., 149 F. Supp. 2d 246 (W.D. Va. 2001).

Federal preemption. - Because copyright and the infringement thereof is an area controlled exclusively by the federal government, any state causes of action under this section and § 18.2-500 must be preempted in this area. Hoey v. Dexel Sys. Corp., 716 F. Supp. 222 (E.D. Va. 1989).

Defendant's business conspiracy and common law conspiracy claims would not be dismissed because applying the Virginia Uniform Trade Secrets Act's preemption provision would be premature as the court could not conclusively determine whether the information was a trade secret without the benefit of a factual record, and the court declined to enlarge the reach of the Uniform Trade Secrets Act's statutory preemption to include confidential business information. Microstrategy Servs. Corp. v. OpenRisk, LLC,, 2015 U.S. Dist. LEXIS 32719 (E.D. Va. 2015).

Mandatory abstention where claim was related to bankruptcy proceeding. - Where plaintiffs' claims for defamation and violation of the Virginia Business Conspiracy Act, § 18.2-499 , were removed pursuant to 28 U.S.C.S. §§ 1334(b) and 1452 on the ground that the claims were related to defendant's bankruptcy proceeding, mandatory abstention was required under 28 U.S.C.S. § 1334(c)(2) because: (1) plaintiffs filed a timely motion to abstain; (2) the case was based on state law; (3) the proceeding did not arise under Title 11; (4) the case could not have been commenced in federal court absent 28 U.S.C.S. § 1334; (5) an action was commenced and could be timely adjudicated in state court; and (6) 28 U.S.C.S. § 157(b)(4)'s "personal injury tort" exception to mandatory abstention did not apply to claims that did not involve physical injury. Massey Energy Co. v. W. Va. Consumers for Justice, 351 Bankr. 348, 2006 U.S. Dist. LEXIS 73695 (E.D. Va. 2006).

Collateral estoppel. - Because "legal malice" standard applicable to this section is not identical to the "willful and malicious" standard required under the federal statute, debtor was not collaterally estopped from contesting issue of dischargeability of creditor's claim arising from state court judgment. MT Tech. Enters., LLC v. Nolte (In re Nolte), 542 Bankr. 185, 2015 Bankr. LEXIS 4013 (Bankr. E.D. Va. 2015).

Not preempted by Virginia Wine Franchise Act. - Virginia Wine Franchise Act did not preempt common-law or statutory conspiracy claims under § 18.2-499 by a wholesaler against a winery; a violation of the Act was covered by the Act, but a conspiracy to violate the Act was not. As the wholesaler had also brought an administrative proceeding before the Virginia Department of Alcoholic Beverage Control (ABC Board), however, the doctrine of primary jurisdiction meant that the ABC Board should determine whether the wrongful acts underlying the conspiracy claims had occurred. Country Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402 , 634 S.E.2d 745, 2006 Va. LEXIS 86 (2006).

Not preempted by Virginia Uniform Trade Secrets Act. - Plaintiff plainly articulated claims for conspiracy under § 18.2-499 that were independent of the claim for misappropriation of trade secrets and thus were not preempted under the Virginia Uniform Trade Secrets Act. E.I. Dupont De Nemours & Co. v. Kolon Indus., 688 F. Supp. 2d 443, 2009 U.S. Dist. LEXIS 76795 (E.D. Va. 2009), motion granted by, E.I. du Pont de Nemours & Co. v. Kolon Indus., 683 F. Supp. 2d 401 (E.D. Va., 2009); motion granted by, judgment entered by E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 8981 (E.D. Va., Feb. 3, 2010); rev'd by E. I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435 (4th Cir. Va., 2011).

Choice of law. - Under Virginia's doctrine of lex loci delicti, Georgia law governed plaintiff's claim for breach of Virginia's business conspiracy statute, because the wrong alleged and the first causally related injury occurred in Georgia and the doctrine of legislative jurisdiction was inapplicable where plaintiff raised no constitutional challenge to the application of Virginia's choice-of-law rules. Hilb Rogal & Hobbs Co. v. Risk Strategy Partners, Inc.,, 2007 U.S. App. LEXIS 9332 (4th Cir. Apr. 24, 2007).

Dentists' claims for violations of the Virginia Business Conspiracy Statute failed since District of Columbia law applied to the dentists' tort claims under D.C.'s modified governmental interests test since: (1) the injury occurred in D.C., resulting from conduct mostly occurring in Virginia; (2) the dentists resided in and did business in D.C.; (3) the former partner and his wife resided in Virginia and did business in D.C. (although the wife worked in Virginia); and (4) the relationship between the parties and the two dental practices involved was centered in D.C. Guttenberg v. Emery,, 2014 U.S. Dist. LEXIS 67362 (D.D.C. May 16, 2014).

Exclusive distributorship arrangements do not violate the antitrust laws unless they foreclose competition in the relevant market. Thompson Everett, Inc. v. National Cable Adv., 850 F. Supp. 470 (E.D. Va. 1994), aff'd, 57 F.3d 1317 (4th Cir. 1995).

"Without lawful justification" means that the defendants contrived to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. Virginia Vermiculite, Ltd. v. W.R. Grace & Co.- Conn., 108 F. Supp. 2d 549, 2000 U.S. Dist. LEXIS 10513 (W.D. Va 2000).

"Without lawful justification" means that the defendants contrived to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means; the statute thus requires that the plaintiff prove that at least one of the co-conspirators acted either with an unlawful purpose or by unlawful means. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

Required proof. - The conspiracy statutes do not require proof of actual malice, the statutes merely require proof of legal malice, i.e., that defendant acted intentionally, purposely, and without lawful justification. Commercial Bus. Sys. v. Bellsouth Servs., Inc., 249 Va. 39 , 453 S.E.2d 261 (1995).

This section and § 18.2-500 do not require a plaintiff to prove that a conspirator's primary and overriding purpose is to injure another in his trade or business. Advanced Marine Enters., Inc. v. PRC, Inc., 256 Va. 106 , 501 S.E.2d 148 (1998).

Although plaintiff need not prove personal spite, the alleged conduct must at least be aimed at damaging another's business. Peterson v. Cooley, 142 F.3d 181 (4th Cir. 1998).

In order to sustain a claim for statutory conspiracy under this section and § 18.2-500 the plaintiff must prove by clear and convincing evidence that the conspirators acted with legal malice, that is, that the defendant acted intentionally, purposefully and without lawful justification; these statutes do not require a plaintiff to prove that a conspirator's primary and overriding purpose was to injure another in his trade or business. Simmons v. Miller, 261 Va. 561 , 544 S.E.2d 666, 2001 Va. LEXIS 48 (2001).

Because the jury instructions required the jury to find proof of injury and proof that the injured party suffered damages as a predicate to a verdict on a business conspiracy claim, the jury's finding of such a conspiracy without damages in each instance was contrary to the jury instructions; hence, under Rome v. Kelly Springfield Tire Co. , 217 Va. 943 , 948, 234 S.E.2d 277, 281 (1977), the verdicts were invalid as a matter of law. Ulloa v. QSP, Inc., 271 Va. 72 , 624 S.E.2d 43, 2006 Va. LEXIS 21 (2006).

Since plaintiffs provided no evidence of an agreement or an intent to injure, both of which were required to establish a business conspiracy under §§ 18.2-499 and 18.2-500 , a reasonable jury could not conclude that the company and the third party were criminally and civilly liable under the theory of business conspiracy; therefore, summary judgment was granted against the claim. DAG Petroleum Suppliers L.L.C. v. BP P.L.C., 452 F. Supp. 2d 641, 2006 U.S. Dist. LEXIS 67438 (E.D. Va. 2006).

An employer sufficiently pled a claim for statutory conspiracy in violation of § 18.2-499 , as it need not allege that the former employee's primary purpose was to injure the employer's business. The claims that the employee tortiously interfered with contract and violated a noncompete clause were insufficient and were dismissed. Nortec Communs., Inc. v. Lee-Llacer, 548 F. Supp. 2d 226, 2008 U.S. Dist. LEXIS 34350 (E.D. Va. 2008).

Standard of proof. - Proof of civil conspiracy must be shown by clear and convincing evidence. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522 (4th Cir. 1997).

Investigative-administrative arms of state not inhibited. - This section and § 18.2-500 do not create a protected interest against investigative-administrative arms of the state, as officials of a public body who act within the scope of their employment are not considered to be conspiring together for the purposes of this statute. Becker v. Russek, 518 F. Supp. 1040 (W.D. Va. 1981), aff'd, 679 F.2d 876 (4th Cir. 1982).

Dismissal of state conspiracy law claims against judge and clerk required. - Judge and deputy clerk were immune from damage claims with regards to their actions in revoking bondsman's certificate and that immunity required dismissal of the state conspiracy law claim that they conspired to injure the bondsman in her trade or business against them. Battle v. Whitehurst, 831 F. Supp. 522 (E.D. Va. 1993), aff'd, 36 F.3d 1091 (4th Cir. 1994).

Officials of the Department of Education, acting within the scope of their employment could not "combine, associate, agree, mutually undertake or concert together" to injure another in his trade or business within the meaning of this section. Fowler v. Department of Educ., 472 F. Supp. 121 (E.D. Va. 1978).

Allegations sufficient to withstand motion to dismiss. - Plaintiff's statutory conspiracy claim survived defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, because defendants' alleged tortious interference with plaintiff's employment contracts constituted the requisite "unlawful act" to proceed on a statutory business conspiracy claim under Virginia law. Depuy Synthes Sales, Inc. v. Jones,, 2014 U.S. Dist. LEXIS 37727 (E.D. Va. Mar. 21, 2014).

No conspiracy claim. - Any alleged conspiracy to injure a doctor's employment was not actionable under § 18.2-499 because individual defendants all served as employees or agents of a corporation; no conspiracy claim could lie against a single entity. Baylor v. Comprehensive Pain Mgmt. Ctrs.,, 2011 U.S. Dist. LEXIS 37699 (W.D. Va. Apr. 6, 2011).

Conspiracy claim failed. - Because a licensee's civil conspiracy evidence consisted of its president's deposition testimony, repeating a statement made to him by a former licensor employee, who in turn was repeating a statement allegedly made by the licensor's president allegedly indicating an intent to "go out, take the licensee's business and put the licensee out of business" and that evidence was clearly inadmissible hearsay, the claim failed. General Assur. of Am., Inc. v. Overby-Seawell Co.,, 2013 U.S. App. LEXIS 14436 (4th Cir. July 17, 2013).

Lack of standing. - Affiliate dealer of a satellite television system operator lacked standing to maintain a business conspiracy claim against a telecommunications provider and individuals who failed to pay subscription fees owed to the operator, and the claim lacked merit as well because there was no evidence to support a statutory business conspiracy claim. Sky Cable, LLC v. Coley,, 2013 U.S. Dist. LEXIS 97129 (W.D. Va. July 11, 2013).

Applied in Federated Graphics Cos. v. Napotnik, 424 F. Supp. 291 (E.D. Va. 1976); Human Resources Inst. of Norfolk, Inc. v. Blue Cross, 484 F. Supp. 520 (E.D. Va. 1980); Picture Lake Campground, Inc. v. Holiday Inns, Inc., 497 F. Supp. 858 (E.D. Va. 1980); Sun Publishing Co. v. Mecklenburg News, Inc., 594 F. Supp. 1512 (E.D. Va. 1984); Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048 (4th Cir. 1985); Eshbaugh v. Amoco Oil Co., 234 Va. 74 , 360 S.E.2d 350 (1987); Haigh v. Matsushita Elec. Corp. of Am., 676 F. Supp. 1332 (E.D. Va. 1987); Catercorp, Inc. v. Catering Concepts, Inc., 246 Va. 22 , 431 S.E.2d 277 (1993); Derthick v. Bassett-Walker, Inc., 904 F. Supp. 510 (W.D. Va. 1995).

II. ELEMENTS OF OFFENSE.
A. CONSPIRACY.

Elements of offense. - To recover in an action for conspiracy to harm a business, the plaintiff must prove: (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business; and (2) resulting damage to plaintiff. Allen Realty Corp. v. Holbert, 227 Va. 441 , 318 S.E.2d 592 (1984).

To recover in an action under this section, plaintiff must prove: (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business; and (2) resulting damage to plaintiff. Saliba v. Exxon Corp., 865 F. Supp. 306 (W.D. Va. 1994), aff'd, 52 F.3d 322 (4th Cir. 1995).

Company failed to present any evidence either of a conspiracy between the corporation and the non-minority owned company or legal malice on behalf of either; therefore, any injury the company might have suffered was not actionable under the Virginia Business Conspiracy Act, §§ 18.2-499 and 18.2-500 . DAG Petroleum Suppliers, L.L.C. v. BP P.L.C.,, 2008 U.S. App. LEXIS 1293 (4th Cir. Jan. 23, 2008).

Proof of malice required. - The element of legal malice requires the plaintiff to prove that the concerted action was undertaken by one conspirator to injure the plaintiff intentionally, purposefully and without lawful justification, but the statute does not require that the the co-conspirator act with legal malice; rather, the statute simply requires that one party, acting with legal malice, conspire with another party to injure the plaintiff. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

Showing of malice. - When the fact finder is satisfied from the evidence that the defendant's primary and overriding purpose is to injure his victim in his reputation, trade, business or profession, motivated by hatred, spite or ill-will, the element of malice required by this section is established, notwithstanding any additional motives entertained by the defendant to benefit himself or persons other than the victim. Greenspan v. Osheroff, 232 Va. 388 , 351 S.E.2d 28 (1986).

Legal malice not found. - Defendant former employee did not engage in a conspiratorial act of legal malice in violation of § 18.2-499 by accepting future employment with an employment broker while the employee was still employed by plaintiff former employer, another employment firm that had arranged for the employee, pursuant to a contract with the employment broker, to perform temporary services for a certain manufacturer, even though the employee expected to be placed by the employment broker for an extended period with the same manufacturer, as the employee was an at-will employee, neither the employee nor the employment broker violated any contract by their conduct, and the employee did not rob the former employer of any objective or tangible business opportunity or expectancy; therefore, there was no basis for the jury's verdict in the former employer's favor on its claim against the former employee for civil liability under § 18.2-500 for allegedly violating § 18.2-499 . Williams v. Dominion Tech. Partners, L.L.C., 265 Va. 280 , 576 S.E.2d 752, 2003 Va. LEXIS 29 (2003).

Summary judgment was properly granted to defendants on a plaintiff's business conspiracy claim because the record lacked evidence that defendants acted with legal malice toward the plaintiff's business. Rogers v. Deane, 594 Fed. Appx. 768, 2014 U.S. App. LEXIS 21255 (4th Cir. Nov. 6, 2014).

Conduct directed at person not covered. - This section does not codify common-law actions. Rather, statutory coverage is afforded only when malicious conduct is directed at one's business, not one's person. Moore v. Allied Chem. Corp., 480 F. Supp. 364 (E.D. Va. 1979); Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980), rev'd on other grounds, 657 F.2d 45 (4th Cir. 1981), cert. denied, 455 U.S. 907, 102 S. Ct. 1253, 71 L. Ed. 2d 445 (1982).

Where the plaintiff claimed that the alleged conspiracy caused damage to his investment and claimed monetary losses in connection with his business, he was advancing a common-law claim for libel and slander to his personal reputation. This type of claim is not actionable under this section. Moore v. Allied Chem. Corp., 480 F. Supp. 364 (E.D. Va. 1979).

But individuals who own and operate business protected. - This section does not restrict its coverage to corporations; by speaking of injury to "another in his reputation, trade, business or profession," this section also protects individuals who own and operate a business. Moore v. Allied Chem. Corp., 480 F. Supp. 364 (E.D. Va. 1979).

The two categories of "persons" protected by this section are corporations and individuals who own or operate a business. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

Sanctions error where there was possibility city could be sued under act. - Where district judge awarded sanctions to city since plaintiffs should have known that the city was incapable of forming the criminal intent necessary for liability under the Virginia Conspiracy Act, where the Virginia Conspiracy Act itself does not clearly state whether cities can be subjected to liability, where the Virginia Supreme Court has not been confronted directly with whether a city is a person within the meaning of the Virginia Conspiracy Act, and where a recent pronouncement of the Supreme Court in a Virginia Conspiracy Act case seemed to have left open the possibility that a city could be sued under that act, the district court abused its discretion in sanctioning plaintiffs since the court of appeals was unable to say that plaintiffs had "absolutely no chance of success" in bringing a Virginia Conspiracy Act claim against the city. Brubaker v. City of Richmond, 943 F.2d 1363 (4th Cir. 1991).

Sanctions error where Supreme Court had not rejected vicarious liability concept. - Where district court awarded sanctions to city on the ground that plaintiffs had no evidence to support their allegations that the city was involved in a scheme to prevent them from obtaining Minority Business Enterprises certification or securing investment business, when plaintiffs filed their complaint, the Virginia Supreme Court had not rejected the concept of vicarious liability in the Virginia Conspiracy Act context, and in fact, seemed to leave open at least the possibility of this theory; because plaintiffs had a sufficient factual basis for implicating the city in the scheme, the district court abused its discretion in awarding sanctions to the city on the Virginia Conspiracy Act count. Brubaker v. City of Richmond, 943 F.2d 1363 (4th Cir. 1991).

Conspiracy between corporation and its agents as legal impossibility. - Although plaintiff's allegations were initially sufficient to satisfy the threshold demands of Virginia's civil conspiracy statute, they were not sufficient to overcome the obstacle provided by the intracorporate immunity doctrine, which holds that because at least two persons must be present to form a conspiracy, a corporation cannot conspire with itself; therefore, a conspiracy between a corporation and the agents of that corporation who are acting in the scope of their employment is a legal impossibility. Selman v. American Sports Underwriters, Inc., 697 F. Supp. 225 (W.D. Va. 1988).

Where plaintiff claimed that defendant corporation and two of its employees acted in concert to interfere with plaintiff's business, no conspiracy could be established because a corporation is a legal fiction capable of acting only through its officers and employees and is considered to be essentially only one actor. Sunsport, Inc. v. Barclay Leisure Ltd., 984 F. Supp. 418 (E.D. Va. 1997).

Defendant health care insurer was entitled to summary judgment on plaintiff chiropractic providers and patients' state law conspiracy claims brought under §§ 18.2-499 and 18.2-500 , for the same reasons that their antitrust claims failed; Virginia had adopted the intracorporate immunity doctrine which barred the majority of the claims and the facts did not show that a violation of the conspiracy law had occurred. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 258 F. Supp. 2d 461, 2003 U.S. Dist. LEXIS 6961 (W.D. Va. 2003), aff'd, 367 F.3d 212 (4th Cir. 2004).

Where plaintiff, a polybutylene (PB) replacement company, alleged that defendants, former employees and a competing PB replacement company, violated § 18.2-499 by conspiring to infringe plaintiff's copyrighted consumer contract, plaintiff's business conspiracy claim failed under the doctrine of intracorporate immunity because the employees were agents of the competing company, the agents acted within the scope of their agency, and there was no evidence indicating that the employees conspired to use plaintiff's consumer contract before they formed the competing company. Accordingly, plaintiff could not establish concerted activity by two or more persons. Phoenix Renovation Corp. v. Rodriguez,, 2007 U.S. App. LEXIS 29253 (4th Cir. Dec. 17, 2007).

Corporate officers and directors as separate entities. - Where the directors and officers of a corporation can be shown to have a personal stake in achieving a corporation's illegal objective, they can be treated as separate entities for conspiracy purposes. Levine v. McLeskey, 881 F. Supp. 1030 (E.D. Va. 1995), vacated in part on other grounds, 164 F.3d 210 (4th Cir. 1998).

Agent could not conspire with his principal. - Claim under § 18.2-499 failed because: (1) plaintiff presented factual allegations that the individual defendant was an agent of the copyright defendants; (2) plaintiff incorporated all prior allegations into the Count alleging violation of § 18-2-499; and (3) an agent could not conspire with its principal under the intracorporate immunity doctrine. SecureInfo Corp. v. Telos Corp., 387 F. Supp. 2d 593, 2005 U.S. Dist. LEXIS 21228 (E.D. Va. 2005).

Court granted defendants' motion for summary judgment with respect to plaintiff's statutory business conspiracy claim because plaintiff was unable to present a prima facie business conspiracy claim where an agent/principal relationship existed such that the parties could not legally conspire, and the preparation of the tax returns was within the scope of that relationship. Rogers v. Deane, 992 F. Supp. 2d 621, 2014 U.S. Dist. LEXIS 9482 (E.D. Va. 2014), aff'd, 2014 U.S. App. LEXIS 21255 (4th Cir. Va. 2014).

Personal-stake exception to intracorporate immunity. - The doctrine of intracorporate immunity is excepted when an agent of the corporation has an independent personal stake in achieving the corporation's impermissible objectives; such personal stake must be wholly separable from the more general and indirect corporate benefit. Hence, on defendant's motion to dismiss, plaintiffs pleaded sufficient facts to satisfy the personal stake exception, namely, that the agents of insurer, as competing physicians, had a direct interest in the market for healthcare services which was distinct and independent from their roles as agents of insurer. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 151 F. Supp. 2d 723, 2001 U.S. Dist. LEXIS 10348 (W.D. Va. 2001).

A single entity cannot conspire with itself, thus, a corporation cannot conspire with its wholly owned subsidiary. Saliba v. Exxon Corp., 865 F. Supp. 306 (W.D. Va. 1994), aff'd, 52 F.3d 322 (4th Cir. 1995).

Where the record is clear that the bank's agent was retained to service "problem" loans, and that it acted within the scope of its agency, a conspiracy was a legal impossibility because a principal and an agent are not separate persons for purposes of the conspiracy statute. One entity existed, the bank, and a single entity cannot conspire with itself. Charles E. Brauer Co. v. NationsBank, 251 Va. 28 , 466 S.E.2d 382 (1996).

Because an attorney was an agent of client, attorney could not conspire with the client in violation of the Virginia Business Conspiracy Statute, § 18.2-499 et seq.; thus, a federal district court properly dismissed for failure to state a claim an attorney's lawsuit alleging, inter alia, that individuals (presumably clients and one or more attorneys) who had filed disciplinary complaints against the attorney conspired to harm the attorney's reputation and trade. Prousalis v. Jamgochian,, 2002 U.S. App. LEXIS 12255 (4th Cir. June 20, 2002).

Former president alleged that the actions of the individual defendants that led to the association's redefinition of his job responsibilities and nonrenewal of his employment contract constituted a civil conspiracy; however, the alleged co-conspirators were all agents of the association acting within the scope of their employment and as the individual defendants were acting within the scope of their employment, the alleged conspiracy was performed by a single entity. Therefore, summary judgment was granted as to the civil conspiracy claim. Huizenga v. Am. Int'l Auto. Dealers Ass'n,, 2005 U.S. Dist. LEXIS 30972 (E.D. Va. Nov. 22, 2005).

In an action in which a debtor filed suit against defendants based on their allegedly fraudulent conduct surrounding the placement of one creditor's Second Deed of Trust on the debtor's apartment complex, there was no business conspiracy because the debtor failed to show that at least two people had combined intentionally for the nefarious purpose of harming the debtor's business. Wellington Apt., LLC v. Clotworthy (In re Wellington Apt., LLC), 350 Bankr. 213, 2006 Bankr. LEXIS 2362 (Bankr. E.D. Va. 2006).

Former subcontractors of a contractor were not liable for conspiracy to wilfully and maliciously injure a contractor in its business where the evidence presented indicated that the subcontractors, through their company, which competed with the contractor's, did infringe copyrighted material, but at the time before and after the contractor copyrighted its material, the subcontractors had already formed their competing company and were acting as agents of that company in infringing the copyright. Because the subcontractors were acting as agents of the same principal, within the scope of their agency relationship, a conspiracy was legally impossible. Phoenix Renovation Corp. v. Rodriguez, 461 F. Supp. 2d 411, 2006 U.S. Dist. LEXIS 79724 (E.D. Va. 2006).

Plaintiff car dealership's former owner's claim under § 18.2-499 against defendants, a car manufacturer and its financing division, failed to state a claim as the car manufacturer and its subsidiary financing division were considered a single entity and a single entity could not conspire with itself, and further, while other entities were also identified, there was no factual basis to discern the method of the alleged conspiracy or how it was carried out. Field v. GMAC LLC, 660 F. Supp. 2d 679, 2008 U.S. Dist. LEXIS 110164 (E.D. Va. 2008).

Tortious interference with contract or with business expectancy. - Plaintiffs may use tortious interference with contract or with business expectancy as the predicate unlawful act for a claim under the Virginia business conspiracy statutes because both tort claims are predicated on an independent common-law duty arising outside of contract. Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207 , 754 S.E.2d 313, 2014 Va. LEXIS 33 (Feb. 27, 2014).

Where plaintiff alleged defendants conspired to force him out of business, the district court erred by dismissing his claims because tortious interference with contract and tortious interference with business expectancy qualified as the requisite unlawful acts to proceed on a business conspiracy claim under this section. Dunlap v. Cottman Transmissions Sys., LLC, 576 Fed. Appx. 225, 2014 U.S. App. LEXIS 11873 (4th Cir. June 24, 2014).

Allegations sufficient to withstand motion to dismiss. - Telecommunications provider's allegations of a business conspiracy (that defendant and another entity acted together to divert the telecommunications provider's earned commissions, and to injure or destroy the telecommunications provider's business, and that the conspiratorial conduct was willful and malicious, and resulted in substantial money damages to the telecommunications provider) were sufficient to withstand defendant's motion to dismiss. While the allegations were arguably conclusory, the complaint, in its entirety, contained sufficient factual content to permit the court to reasonably infer that the required elements of concerted action, legal malice and causally related injury, could be met. All Bus. Solutions, Inc. v. NationsLine, Inc., 629 F. Supp. 2d 553, 2009 U.S. Dist. LEXIS 54693 (W.D. Va. 2009).

Claims a liquidating trustee asserted in an adversary proceeding he filed against the directors and shareholders of a privately-held company that offered clinical laboratory services to physicians before it was placed into Chapter 11 bankruptcy, which alleged, inter alia, that the directors breached their fiduciary duties under § 13.1-690 and their common law fiduciary duties of due care and loyalty when they allowed the shareholders to cancel a shareholders' agreement to avoid personal liability for taxes, and that the directors and shareholders engaged in a common law conspiracy and violated § 18.2-499 , were sufficient to survive the directors and shareholders' motion to dismiss. Arrowsmith v. Warnick (In re Health Diagnostic Lab., Inc.),, 2018 Bankr. LEXIS 2953 (Bankr. E.D. Va. Sept. 27, 2018).

Chapter 7 trustee adequately pleaded claims of statutory and common-law civil conspiracy under Virginia law by alleging that defendants willfully conspired with non-defendant board members and officers of debtor law firm to breach their fiduciary duties through the misappropriation of client funds and by alleging that defendants willfully conspired with non-defendant board members and officers of debtor to breach the fiduciary duties owed by the officers and directors by giving control of debtor to a non-lawyer, in violation of a state statute prohibiting practicing law without authority. Tavenner v. ULX Partners, LLC (In re Leclairryan PLLC),, 2021 Bankr. LEXIS 1917 (Bankr. E.D. Va. July 20, 2021).

Cause of action not stated. - The plaintiff failed to state a cause of action for conspiracy to injure its business where the plaintiff provided no specific factual basis, other than the conclusory allegation that the defendants conspired with others, to support the cause of action. Stone Castle Fin., Inc. v. Friedman, Billings, Ramsey & Co., 191 F. Supp. 2d 652, 2002 U.S. Dist. LEXIS 3764 (E.D. Va. 2002).

Where a vermiculite miner sued a landowner and a preservation organization for violation of the Virginia Civil Conspiracy Act (VCCA) by reason of a gift of the owner's vermiculite-containing land to the organization, with a covenant prohibiting mining of vermiculite, because the basis for violating the VCCA was the wrong done by the conspiracy, and there was no underlying Sherman Act § 1 wrong, there was no liability under the VCCA. Va. Vermiculite Ltd.v. Historic Green Springs, Inc., 307 F.3d 277, 2002 U.S. App. LEXIS 20877 (4th Cir. 2002), cert. denied, 538 U.S. 998, 123 S. Ct. 1900, 155 L. Ed. 2d 824 (2003).

In a brand owner's suit against a distributor alleging that the manufacturer secretly entered into a manufacturing agreement with the competing distributor and that the distributor told customers that the brand owner was going out of business, the conspiracy claim was dismissed because the brand owner failed to aver an unlawful act or an attempt by the distributor to interfere with the agreement between the brand owner and manufacturer. Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483, 2003 U.S. Dist. LEXIS 12709 (E.D. Va. 2003).

Plaintiff's claim for statutory business conspiracy under § 18.2-499 failed to state a claim for purposes of Fed. R. Civ. P. 12(b)(6), because the facts alleged were not sufficiently specific to support the conclusory language that defendants entered into an agreement with the purpose of injuring plaintiff in its business, and therefore did not satisfy the statute's heightened pleading standard. At best, plaintiff's claim alleged that defendants had agreements to sell advertising to plaintiff's competitors; none of the facts pled supported a claim that defendants were entering into the advertising agreements with the intent to maliciously injure plaintiff. Gov't Emples. Ins. Co. v. Google, Inc., 330 F. Supp. 2d 700, 2004 U.S. Dist. LEXIS 18415 (E.D. Va. 2004).

Taking all the evidence in the light most favorable to plaintiff, it would have taken more than a stretch to conclude that plaintiff's evidence supported an inference that defendants acted in concert for the specific purpose of injuring plaintiff. Waytec Elecs. Corp. v. Rohm & Haas Elec. Materials, LLC, 459 F. Supp. 2d 480, 2006 U.S. Dist. LEXIS 77673 (W.D. Va. 2006), aff'd, 2007 U.S. App. LEXIS 28113 (4th Cir. Va. 2007).

Corporate president did not state a cause of action for civil conspiracy against a bank due to one of its officer's erroneous transmission of funds from the corporation's account and the failure to transfer the funds back to the corporation's account because: (1) the president did not allege any concerted action as there was no showing of any agreement, and § 18.2-499 was not so broad as to encompass a conspiracy where there was no agreement and "but for" the bank's actions, the president would not have been damaged; (2) he failed to allege malice; and (3) the alleged business conspiracy was not pleaded with the requisite malice. Schlegel v. Bank of Am., N.A., 505 F. Supp. 2d 321, 2007 U.S. Dist. LEXIS 42551 (W.D. Va. 2007).

Amended complaint failed to set forth sufficient facts that plausibly suggested a conspiracy under § 18.2-499 and the parties' Consultant Agreement allowed defendant company to terminate its contract with plaintiff individual at will; the amended complaint was devoid of factual allegations suggesting when or how defendants entered into an agreement to act jointly to maliciously injure plaintiffs. Scharpenberg v. Carrington, 686 F. Supp. 2d 655, 2010 U.S. Dist. LEXIS 14356 (E.D. Va. 2010).

Conspiracy merely to breach a contract that did not involve an independent duty arising outside the contract was insufficient to establish a civil claim under § 18.2-499 because to permit a mere breach of contract to constitute an "unlawful act" for the purposes of the conspiracy statute would have been inconsistent with the diligence courts exercised to prevent turning every breach of contract into an actionable claim for fraud. Therefore, because the company's agreements with the owners and with the developer and the principal did not implicate statutory or independent common-law duties, merely alleging breach of those contracts was insufficient to establish a claim of statutory conspiracy under §§ 18.2-499 and 18.2-500 , and the circuit court did not err in sustaining the demurrers to that claim. Station # 2, LLC v. Lynch, 280 Va. 166 , 695 S.E.2d 537, 2010 Va. LEXIS 64 (2010).

Terminated subcontractor's claim under Virginia's business conspiracy statute, §§ 18.2-499 to 18.2-500 , failed because the subcontractor did not prove the defendants had combined to accomplish some purpose by criminal or unlawful means. Neither could he demonstrate an injury to a business interest. Shirvinski v. United States Coast Guard, 673 F.3d 308, 2012 U.S. App. LEXIS 5106 (4th Cir. 2012).

Former employee was unable to state a civil conspiracy claim under §§ 18.2-499 and 18.2-500 because these statutes afforded a right of action only when the malicious conduct was directed at a business, and the employee's claims exclusively concerned her employment prospects. Conyers v. Va. Hous. Dev. Auth.,, 2012 U.S. Dist. LEXIS 134908 (E.D. Va. Sept. 19, 2012).

District court properly dismissed attorney's federal and state RICO claims and business conspiracy claim because his claims were not plausible and he failed to present factual content to support finding that enterprise or conspiracy existed. Rodriguez v. Doe,, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013).

Because a complainant's underlying claims of tortious interference with contract against a successor-in-interest to a lessor and a lessee failed as to a lease agreement, the complainant's claims of statutory business conspiracy also failed. Francis Hosp., Inc. v. Read Props., LLC, 296 Va. 358 , 820 S.E.2d 607, 2018 Va. LEXIS 170 (2018).

No authority to act as agent. - Bank's claims against a title insurance company under § 18.2-499 failed because a title agent that was alleged to have fraudulently closed mortgage loans did not act as an agent of the title company; an agreement between the title company and the title agent expressly prohibited the title agent from acting as a settlement agent on behalf of the title company. Wells Fargo Bank, N.A. v. Old Republic Title Ins. Co., 413 Fed. Appx. 569, 2011 U.S. App. LEXIS 4030 (4th Cir. Mar. 1, 2011).

Cause of action stated. - Plaintiff's claim for violation of the Virginia Business Conspiracy Statute survived a motion to dismiss, where it alleged that the conspirators included defendants and the credit reporting bureaus, it alleged that defendants and the three credit bureaus agreed to withhold certain information from plaintiff, and it alleged that the agreement was for the purpose of maliciously causing injury to plaintiff; the fact that the last element of malice was not pled by specifically alleging particular facts supporting the legal standard of malice was not fatal to the complaint because malice could be averred generally. College Loan Corp. v. SLM Corp.,, 2002 U.S. Dist. LEXIS 27744 (E.D. Va. Dec. 10, 2002), vacated and remanded by College Loan Corp. v. SLM Corp., 396 F.3d 588 (4th Cir. 2005).

Defendants' and a "partner's" actions constituted a prima facie case of business conspiracy; such examples were defendants' and the partner's structure of plaintiff company's settlement agreement, the purchase of a jet against plaintiffs' directions, the purchase of the eight acre parcel next to a store although the price was too high and the site was not suitable, and a stock subscription agreement that negatively impacted plaintiffs. These actions were all evidence that defendants and the partner worked together to damage plaintiffs and that damaging plaintiffs might not have been their primary purpose was immaterial under Virginia law. Atlas Partners II v. Brumberg, Mackey & Wall, PLC,, 2006 U.S. Dist. LEXIS 983 (W.D. Va. Jan. 6, 2006).

Where a liquidating trustee of corporate bankruptcy debtors alleged that insiders of the debtors combined, agreed, and/or mutually undertook to willfully and maliciously loot the debtors, and described the unlawful acts that were taken in furtherance of the conspiracy, the trustee stated a viable claim under Virginia law for statutory conspiracy. Schnelling v. Crawford (In re James River Coal Co.), 360 Bankr. 139, 2007 Bankr. LEXIS 159 (Bankr. E.D. Va. 2007).

Plaintiff stated a statutory business conspiracy claim, as the complaint sufficiently alleged that some of defendants' actions that allegedly violated plaintiff's employment contracts also represented a violation of fiduciary duties inherent in the employment relationship - duties that were not purely contractual. Depuy Synthes Sales, Inc. v. Jones,, 2014 U.S. Dist. LEXIS 37727 (E.D. Va. Mar. 21, 2014).

Persons acting within scope of employment as agents of city do not constitute conspiracy. - If defendants, who were charged with having conspired to injure producer and promoter of shows and concerts in his trade, business, or occupation in violation of this section and § 18.2-500 , were acting within the scope of their employment and, therefore, were agents of the city, then only one entity exists - the city. By definition, a single entity cannot conspire with itself. Fox v. Deese, 234 Va. 412 , 362 S.E.2d 699 (1987).

This section does not mention employment as a protected activity. The section is aimed at conduct which injures a "business." Campbell v. Board of Supvrs., 553 F. Supp. 644 (E.D. Va. 1982).

Section not applicable to employment interests. - In a former employee's suit against his former employer, alleging a civil conspiracy to divest him of his stock ownership in the employer and to injure his professional reputation and business by terminating him, in violation of §§ 18.2-499 and 18.2-500 , the employee failed to state a claim because his professional reputation and stock ownership in the company were employment interests, and not business interests, which were not covered by these laws. Inman v. Klockner-Pentaplast of Am., Inc., 467 F. Supp. 2d 642, 2006 U.S. Dist. LEXIS 93620 (W.D. Va. 2006).

Covered conduct must be directly aimed toward damaging business, etc. - The Virginia Conspiracy Statute applies to any malicious conduct that injures business. However, such conduct must be directly aimed toward damaging the business, trade, reputation or profession: the injury must not be a result or secondary effect of an action taken for mere personal gain. Nationwide Mut. Fire Ins. Co. v. Jones, 577 F. Supp. 968 (W.D. Va. 1984).

But primary purpose need not be injury to another's trade or business. - Under §§ 18.2-499 and 18.2-500 , plaintiffs may only recover for business conspiracy if they prove by clear and convincing evidence that: (1) a combination of two or more persons; (2) acted for the purpose of willful and malicious injury to plaintiffs by any means whatever; and (3) that act resulted in damage to plaintiffs. To prove malice, plaintiffs must show that defendants acted intentionally, purposefully, and without legal justification. Significantly, the statute does not require a plaintiff to prove that a conspirator's primary and overriding purpose is to injure another in his trade or business. Atlas Partners II v. Brumberg, Mackey & Wall, PLC,, 2006 U.S. Dist. LEXIS 983 (W.D. Va. Jan. 6, 2006).

Right of action arises from conduct directed at business, not person. - A right of action is afforded under this section and § 18.2-500 only when malicious conduct is directed at one's business, not one's person, and the statutes focus upon conduct directed at property, i.e., one's business and apply only to conspiracies resulting in business-related damages. Buschi v. Kirven, 775 F.2d 1240 (4th Cir. 1985).

To recover damages for conspiracy a plaintiff must show that the defendants have combined to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987).

Statute does not require a co-conspirator to act with legal malice, only that one party conspire with another to injure plaintiff. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522 (4th Cir. 1997).

Conspiracy found in banks' actions toward debtor. - There was credible evidence to support a finding that two banks acted in concert and agreed, associated, or combined for the purpose of willfully and maliciously damaging debtor in its trade or business in light of the extensive and unusual actions they undertook to eliminate any ability of debtor to continue operating or to file a reorganization plan under chapter 11 by removing the debtor's access to cash flow, inventory, or other financing. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611 (1992).

Evidence sufficient to show conspiracy. - There is sufficient circumstantial evidence that conspiracy existed to injure plaintiffs where the strike was long and the lawlessness pervasive, union officials were regularly on the scene and there was no evidence that any member of the union was disciplined, or that there was any serious, comprehensive effort to stop the violence. Ramar Coal Co. v. International Union, UMW, 814 F. Supp. 502 (W.D. Va. 1993).

Evidence supported conspiracy finding where defendant attempted to drive competitor out of business by use of negative advertising campaign, damaged competitor's property, cut off competitor's service to customers without notice, and offered illegal kickbacks to apartment manager for substituting defendant's service for competitor's. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522 (4th Cir. 1997).

The evidence was sufficient to establish a violation of this section where a group of officers and directors informed the principal owner of their employer that they intended to resign en masse as a means of exerting leverage against the owner to accept the group's buyout offer and thus facilitate a merger of their employer with a rival firm; injury to the plaintiff employer was a known and intended result of the plan. Feddeman & Co. v. Langan Assocs., P.C., 260 Va. 35 , 530 S.E.2d 668, 2000 Va. LEXIS 92 (2000).

Plaintiff's allegations that defendant individuals, prior to forming defendant corporation, and while still employed by plaintiff, conspired to misappropriate and copy plaintiff's trade secrets and proprietary information, lure away plaintiff's employees, copy plaintiff's business format, and imitate and infringe plaintiff's trademarks had sufficiently pled a conspiracy under §§ 18.2-499 and 18.2-500 . Buffalo Wings Factory, Inc. v. Mohd, 622 F. Supp. 2d 325, 2007 U.S. Dist. LEXIS 91324 (E.D. Va. 2007).

Evidence insufficient to show conspiracy. - Where an insurance company ceased doing business with a flood insurance agent, the insurance company was entitled to summary judgment as to the agent's business conspiracy claim because evidence of a conversation between a general agent and the insurance company did not establish the presence of a conspiracy to injure the agent in the agent's business. Hecht v. Am. Bankers Ins. Co.,, 2005 U.S. Dist. LEXIS 25883 (W.D. Va. Oct. 21, 2005).

No factual basis existed to support the plaintiffs' allegation that the defendants formed an agreement to harm the plaintiffs and no evidence existed that the defendants acted with malice during their telephone conversations. To the contrary, both of the defendants denied any agreement to cut one of the plaintiffs out of the sale of a property, and one of the defendants testified that the calls were specifically prompted by the fact that the one plaintiff only presented the defendants with one offer for the property and did not present them with another offer for the property. N. Va. Real Estate, Inc. v. Martins, 283 Va. 86 , 720 S.E.2d 121, 2012 Va. LEXIS 11 (2012).

Relationship terminable at-will. - In a suit stemming from the termination of a 20 year relationship for the sale and distribution of certain delicatessen products, which was based on an oral agreement, which was terminable by either party at-will, the buyers' counterclaim against the sellers for business conspiracy in violation of § 18.2-499 failed as a matter of law due to the fact that the parties had the right to terminate their at-will relationship. Frank Brunckhorst Co., L.L.C. v. Coastal Atl., Inc., 542 F. Supp. 2d 452, 2008 U.S. Dist. LEXIS 6748 (E.D. Va. 2008).

B. INJURY.

No proximate cause between defendants' actions and former employer's lost profits. - Despite the testimony of an expert witness, who was a forensic accountant, as to a former employer's loss of profits from the alleged wrongful conduct of defendants, its former salesman and his new store, defendants' motion to strike, which tested sufficiency of the evidence, should have been granted. The expert used a "but-for" damages calculation, which presumed an injury to the former employer from the mere fact that the salesman, who had been an at-will employee, had stopped working at the former employer's store and had begun working at the new store; the expert did not demonstrate that defendants' wrongful conduct, including a breach of fiduciary duties and violation of §§ 18.2-499 and 18.2-500 , had proximately caused any injury to the former employer. Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177 , 630 S.E.2d 304, 2006 Va. LEXIS 54 (2006).

Calculation of damages, and lost profits in particular, was speculative as it assumed future business from customers who had no duty to shop at the former employer's store; the expert also did not show that the conduct of the salesman or his new store had proximately caused any of the loss of the former employer's customers, and the expert's damages calculation, which was based on a "but-for" analysis, had focused solely on the fact that the salesman had stopped working for the former employer and did not focus on any wrongful conduct by defendants. Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177 , 630 S.E.2d 304, 2006 Va. LEXIS 54 (2006).

Consequential injury not covered. - Injury to an insurance company's business, trade or reputation which the insurance company suffered as a result of defendants' denial of responsibility for the fire which destroyed their home and false statements regarding their loss was a consequential loss from the defendants' action to recover the insurance proceeds. The statute is not aimed at this type of loss. Nationwide Mut. Fire Ins. Co. v. Jones, 577 F. Supp. 968 (W.D. Va. 1984).

Right to performance of contract and right to reap profits therefrom are property rights which are entitled to protection in the courts. Consequently, suits for procuring breach of contract proceed on this basis. Chaves v. Johnson, 230 Va. 112 , 335 S.E.2d 97 (1985).

Publication of interview in magazine no offense. - Allegations that defendant journalists and magazine conspired to obtain and publish an interview with plaintiff minister and that plaintiff's fund raising activities were adversely affected as a result of the publication, failed to state a claim upon which relief could be granted under this section and § 18.2-500 , since there was no basis for the general allegation that any of the defendants conspired for the specific purpose of injuring the plaintiff. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Hiring accountant without intent no offense. - Evidence that plaintiff's associate employed accountant to review certain financial records to determine if there was any financial mismanagement of company and that until review was made, it was totally unknown whether company was mismanaged did not support contention that plaintiff's associate employed accountant with intent to injure plaintiff, as he could not have had requisite intent when he had no knowledge of result. Semida v. Rice, 863 F.2d 1156 (4th Cir. 1988).

Agreement to stall payment to bank until customer obtained writ. - Issuing bank, account customer, and president of account customer did not conspire, in violation of this section, to injure confirming bank by agreeing to stall payment to confirming bank until account customer had obtained and had served a writ of attachment; at most, confirming bank's allegations amounted to a claim that issuing bank, account customer, and president of account customer fraudulently conspired to cause confirming bank to rest on its legal rights while account customer obtained and served the writ of attachment; such a conspiracy, even if true, was manifestly for the purpose of protecting the parties from the loss of $95,904, not for the purpose of injuring confirming bank's business; any injury to confirming bank was a "secondary" or "consequential" result of the parties' attempt to protect themselves. Petra Int'l Banking Corp. v. First Am. Bank, 758 F. Supp. 1120 (E.D. Va. 1991), aff'd sub nom. Petra Int'l Banking Corp. v. Dameron Int'l, Inc., 953 F.2d 1383 (4th Cir. 1992).

No double recovery. - Because a company's claim asserting violation of Virginia's Uniform Trade Secret Act did not require the same proof as the civil conspiracy claim, the award of both punitive and treble damages in favor of the company did not constitute an impermissible double recovery. 21st Century Sys. v. Perot Sys. Gov't Servs., 284 Va. 32 , 726 S.E.2d 236, 2012 Va. LEXIS 139 (2012).

Cause of action properly stated. - Lawyer was given leave to add a count to her complaint for business conspiracy because she stated a claim that defendant and another combined to willfully and maliciously injure the lawyer in her business; she properly alleged that their malicious conduct was directed at her business, not at her person, either because her reputation and business were inextricable as a solo practitioner or because her removal from the court appointed attorney list directly injured her business. Daniczek v. Spencer, 156 F. Supp. 3d 739, 2016 U.S. Dist. LEXIS 3390 (E.D. Va. 2016).

Injury to personal reputation and employment interest not covered. - Any alleged conspiracy to injure a doctor's employment was not actionable under § 18.2-499 because injury to the doctor's personal reputation and interest in employment were clearly excluded from the scope of the statute's coverage. Baylor v. Comprehensive Pain Mgmt. Ctrs.,, 2011 U.S. Dist. LEXIS 37699 (W.D. Va. Apr. 6, 2011).

CIRCUIT COURT OPINIONS

Unspecified future business prospect insufficient to support claim. - Where a subcontractor's expectation that it would be allowed to bid on a project did not rise to a level of a reasonable expectation of further contractual relations, the subcontractor did not show that an engineer company and its employees were involved in a conspiracy or employed "improper means." Commercial Roofing & Sheet Metal Co. v. Gardner Eng'g, Inc., 60 Va. Cir. 384, 2002 Va. Cir. LEXIS 275 (Fairfax County 2002).

Right of action arises from conduct directed at business, not person. - Trial court dismissed a police officer's claim alleging that two homebuyers and a homeowner violated this section when they conspired to have him indicted because they were unhappy with work he did on their houses while operating a private construction business, and that he was fired from his job as a police officer after he was indicted, but overruled demurrers that the homebuyers and homeowner filed to the officer's claims seeking recovery for malicious prosecution, interference with a contract, breach of contract, and fraud. Fitzgerald v. Farrell, 63 Va. Cir. 1, 2003 Va. Cir. LEXIS 340 (Loudoun County 2003).

Plaintiff's claim was dismissed as plaintiff did not allege any injury to his business, relief was only proper when malicious conduct was directed at one's business, not one's person, and §§ 18.2-499 and 18.2-500 applied only to conspiracies resulting in business-related damages. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County 2006).

Police officer had no cause of action for unlawful conspiracy to injure the officer's reputation or employment as a police officer because § 18.2-499 applied to business and property interests, not to personal or employment interests. Hueston v. Kizer,, 2008 Va. Cir. LEXIS 280 (Hanover County May 29, 2008).

Statute of limitations. - While the statute of limitations may be at least five years, the underlying wrong may in effect further restrict the period within which the conspiracy claim may be actionable; the actionable wrong must occur within at least the five-year period applicable for property claims and must then itself be unlawful at such time. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Some claims of conspiracy subject to demurrer. - Claims of conspiracy to injure a trade, business or profession, with no explainable factual basis, were subject to demurrer with leave to amend as one did not file a claim, especially one as serious as this, with no explainable factual basis, intending to "flesh it out" during discovery. Mut. Funding, Inc. v. Collins, 62 Va. Cir. 34, 2003 Va. Cir. LEXIS 68 (Spotsylvania County 2003).

Where a non-solicitation clause was not limited in duration or geography and the clause's language, requiring a newly formed competing business, did not support a bill of complaint, and where there was no business conspiracy under § 18.2-499 or 18.2-500 , or common-law conspiracy because the former employer did not show that a former employee acted with malice or that there was a concerted action to accomplish an unlawful purpose, the former employee's demurrers were sustained. Int'l Paper Co. v. Brooks, 63 Va. Cir. 494, 2003 Va. Cir. LEXIS 248 (Roanoke 2003).

The Buschi decision, which construes §§ 18.2-499 and 18.2-500 to limit recovery to damages to a plaintiff's business, profession, or trade, and not to allow damages to a plaintiff's reputation or employment interests, is persuasive. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

Although an owners' association claimed that sellers were motivated by personal gain to enter into a conspiracy, there were no facts alleged to indicate that the individual and corporate defendants actually agreed to engage in unlawful conduct with the purpose of injuring the association, and no conspiracy could exist without an agreement. Carlton Bridge Owners Ass'n v. Keyser, 72 Va. Cir. 565, 2007 Va. Cir. LEXIS 163 (Charlottesville 2007).

Conspiracy claims against two members of a limited liability company failed because there was no legal obligation for the members to make the stated capital contributions and one member's decision not to make capital contributions was not a wrongful act within contemplation of common law or statutory conspiracy. Wonderland I, LLC v. Peck, 91 Va. Cir. 83, 2015 Va. Cir. LEXIS 119 (Norfolk Aug. 5, 2015).

LLC co-owner's demurrer on a conspiracy claim on the ground that the requisite malice had not been sufficiently pleaded was overruled given the allegations that after the project members refused the owner's request for a disposition fee for the property in the amount of .75% of the property's sale price, a manager paid to the LLC disposition fees of 1.0% for both projects. Fortress Holdings II, LLC v. Patty, 95 Va. Cir. 402, 2017 Va. Cir. LEXIS 85 (Norfolk Apr. 27, 2017).

Demurrer by the executrix of the decedent's estate was sustained because the complaint by the decedent's adult child for conspiracy to harm a business failed to plead, with the requisite degree of particularity, facts which supported the elements of conspiracy. Wilkinson v. St. Pierre, 97 Va. Cir. 21, 97 Va. Cir. 21, 2017 Va. Cir. LEXIS 319 (Chesterfield County May 3, 2017).

Bank's demurrer to statutory conspiracy was sustained because there was no allegation what a son's trade, business, or profession was, let alone that the decedent's stepson and a bank acted for the purpose of injuring it, and the circuit court could not infer that the son's reputation would be affected; as pleaded, the purpose of the stepson and the bank was to deprive the son of a monetary benefit. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

On the grounds of the pleaded agency relationship and the lack of an unlawful act or purpose, the circuit court concluded the demurrers of defendants #1, #2, and #3, to count VI of the amended complaint alleging common-law civil conspiracy should be sustained. S. Wallace Edwards & Sons v. Selective Way Ins. Co., 105 Va. Cir. 279, 2020 Va. Cir. LEXIS 97 (Surry County July 2, 2020).

Demurrer granted. - Complaint failed to allege the first element of a prima facie case of statutory business conspiracy, and thus defendants' demurrers were sustained; the complaint failed to recite any facts supporting an allegation or fair inference that defendants engaged in these alleged actions for the purpose of willfully and maliciously injuring plaintiff. Shenandoah Women's Healthcare, P.C. v. Scheidt,, 2017 Va. Cir. LEXIS 631 (Rockingham County Mar. 13, 2017).

Demurrer was sustained as to limited liability company members' statutory conspiracy claim because (1) the members lacked standing, as the members had to bring the claim derivatively, (2) managers could not have conspired with each other under the intracorporate immunity doctrine, and (3) the members did not allege a conspiracy to harm the members in the members' trade or business. Johnson v. Bella Gravida, LLC, 105 Va. Cir. 350, 2020 Va. Cir. LEXIS 103 (Fairfax County July 20, 2020).

Demurrer denied as to claim of business conspiracy. - Former employee's demurrer pursuant to § 8.01-273 A was denied as to a company's claim that the former employee was involved in a business conspiracy pursuant to §§ 18.2-499 and 18.2-500 , because a company adequately alleged that the former employee and others conspired to injure the company by leaving the company en masse to work for a competitor, and to take the accounts for which they were responsible, and by taking and using documents that were alleged to be confidential trade secrets. Int'l Paper Co. v. Gilliam, 63 Va. Cir. 485, 2003 Va. Cir. LEXIS 249 (Roanoke 2003).

Legal malice not shown. - Plaintiff had not established by a preponderance of the evidence that defendants engaged in a statutory business conspiracy; many defendants in varying combinations had discussions regarding work-related and personal matters but absent from any of these discussions was evidence of any association or undertaking for the specific purpose of willfully and maliciously injuring plaintiff's reputation, trade, business, or otherwise. Futrend Tech., Inc. v. MicroHealth LLC,, 2020 Va. Cir. LEXIS 128 (Fairfax County Aug. 21, 2020).

Demurrer denied. - Former employee's and competitors' demurrers to contractor's claim of civil conspiracy were not sustained as the contractor's complaint alleged the necessary elements of a civil conspiracy, and, while the contractor alleged that the former employee and competitors acted as agents of each other, it alternatively alleged that the employee and competitors acted individually, and, while one competitor was only alleged to be affiliated with another competitor, conspiracy was pled against him as acts by all the individual competitors satisfying the elements of civil conspiracy were alleged. H.E.R.C. Prods. v. Turlington, 62 Va. Cir. 489, 2003 Va. Cir. LEXIS 305 (Norfolk 2003).

Because a retailer pleaded: (1) a concerted action by a manufacturer and a former employee; and (2) the manufacturer's unequal application of a marketing and resale policy, the retailer's claims under the Virginia Business Conspiracy Act survived demurrer. Atl. Futon v. Tempur-Pedic, Inc., 67 Va. Cir. 269, 2005 Va. Cir. LEXIS 165 (Charlottesville Apr. 26, 2005).

Because a company raised facts that, if considered as true, provided an adequate legal basis for its claims of violation of the Virginia Uniform Trade Secrets Act, breach of contract, fraud, and conspiracy, the demurrer and plea in bar of a competitor and its successor were overruled. VMC Satellite, Inc. v. Stevens & Assocs., 68 Va. Cir. 103, 2005 Va. Cir. LEXIS 231 (Loudoun County May 19, 2005).

Defendants' demurrers were denied as to an engineer's claim of business conspiracy under § 18.2-499 et seq., because the engineer alleged that defendants intentionally conspired to harm him by imputing to him an unfitness to perform his job, a lack of integrity in the discharge of his job, and prejudiced him in his profession. Rohrbaugh v. Kreidler, 71 Va. Cir. 298, 2006 Va. Cir. LEXIS 245 (Arlington County 2006).

Claim alleging that defendants conspired with one another to injure a company in its reputation, trade, business and profession in violation of §§ 18.2-499 and 18.2-500 was sufficient under Va. Sup. Ct. R. 1:4(d) to survive a demurrer as the intracorporate immunity doctrine did not apply to a conspiracy claim against employees, officers or agents who combined to harm their corporation. Colgate v. Disthene Group, Inc., 86 Va. Cir. 218, 2013 Va. Cir. LEXIS 9 (Buckingham County Feb. 4, 2013).

Violation found. - Plaintiff's former partners and their new company violated §§ 18.2-499 and 18.2-500 by pursuing the unlawful purpose of forcing plaintiff out of the former partnership without compensating him for his interest and by accomplishing this purpose by unlawful means, including purporting to withdraw from the partnership while actually seizing control of its assets, converting partnership assets and plaintiff's property, inducing former partnership employees to accept employment with them, and breaching their fiduciary duties. Greenfeld v. Stitely,, 2007 Va. Cir. LEXIS 7 (Fairfax County Jan. 5, 2007).

Failure to show conspiracy. - Trial court dismissed a claim which a software company filed against a professional corporation and a doctor who owned the corporation, alleging that they conspired to steal information the company compiled while performing work under a contract for the corporation, because the company did not allege that the doctor acted outside the scope of her duties as an officer of the corporation. Softwise, Inc. v. Goodrich, 63 Va. Cir. 576, 2004 Va. Cir. LEXIS 6 (Roanoke 2004).

Because a provider failed to allege adequate facts to support its claim that a company and a competitor sought to willfully and maliciously injure its business with the company, the provider failed to state a claim for civil conspiracy or a violation of §§ 18.2-499 and 18.2-500 . George K. Degnon Assocs. v. Acad. for Eating Disorders,, 2005 Va. Cir. LEXIS 202 (Fairfax County Nov. 29, 2005).

No conspiracy to interfere with the trade, business, and profession of the buyers existed between a corporation, the sellers, and the sellers' limited liability company (LLC) when the sellers sold their stock in the corporation to the buyers. There was no evidence that the LLC conspired with anyone; the intra-corporate immunity doctrine defeated a claim of conspiracy between the corporation and the sellers, who were the principals of the corporation; and the purpose of the sellers' misconduct was to induce the buyers to purchase a business based on false and fraudulent representations regarding the nature of that business, not to injure them in the operation of that business. Arias v. Jokers Wild, 73 Va. Cir. 281, 2007 Va. Cir. LEXIS 82 (Fairfax County 2007).

Plaintiff had not pleaded facts sufficient to maintain a statutory conspiracy claim; to the extent plaintiff was pleading that defendants were alleged to have conspired after the employee was employed by each entity, the intra-corporate immunity doctrine applied and a conspiracy claim could not be maintained. TradeStaff & Co. v. Nogiec, 77 Va. Cir. 77, 2008 Va. Cir. LEXIS 226 (Chesapeake 2008).

Defendant's demurrer to a statutory business conspiracy under § 18.2-499 claim was sustained where plaintiff admitted that it had no business expectation in the property to run a golf course as an ongoing business, and its sole purpose in seeking to reacquire the golf course was for plaintiff to have standing. CPM Va., L.L.C. v. MJM Golf, L.L.C., 96 Va. Cir. 105, 2017 Va. Cir. LEXIS 108 (Chesapeake July 14, 2017).

Single entity cannot conspire with itself. - Disbarred attorney could not sustain his claims that a state bar association's disciplinary board and its prosecutor caused injury when they conspired against him, either during the course of or as the result of disciplinary hearings, where the board members and the prosecutor were all part of one entity. Leach v. Va. State Bar, 73 Va. Cir. 362, 2007 Va. Cir. LEXIS 221 (Richmond June 8, 2007).

Evidence sufficient to show conspiracy. - Former employee and a retailer were held liable for violating § 18.2-499 et seq., with regard to enticing the former employee from his employ with a clothier, with the former employee purposefully taking the clothier's clientele list and the retailer having full knowledge of the same and, in fact, encouraging it. The restrictive covenant in the clothier's handbook prohibiting employment with a competitor within one mile for a period of three years was not overly harsh or oppressive and, therefore, in addition to compensatory damages in the amount of $548,611, trebled to $1,654,833, the trial court enjoined the former employee from working for the retailer for a period of three years from the date of the trial court's opinion. James, Ltd. v. Saks Fifth Ave., Inc., 67 Va. Cir. 126, 2005 Va. Cir. LEXIS 150 (Arlington County Mar. 8, 2005), rev'd in part as to treble damages, 630 S.E.2d 404, 2006 Va. LEXIS 54 (Va. 2006).

Where defendants, plaintiff's former independent contractors, went to work for a competitor, which won a contract to provide services to plaintiff's client, defendants acted with the legal malice required to establish a civil conspiracy under § 18.2-499 because they knowingly violated the non-competition clauses in their contracts with plaintiff. Management Concepts v. Kraemer,, 2004 Va. Cir. LEXIS 391 (Fairfax County Apr. 26, 2004).

Failed to allege concerted action. - Claimant did not sufficiently allege a statutory business conspiracy claim to injure the claimant in the claimant's reputation, trade, business, and profession because the claimant did not properly allege concerted action or attempted concerted action between a tortfeasor and unnamed journalists and websites. Moreover, although the claimant sufficiently alleged malice, the claimant's alleged damages were not proper damages for the cause of action. Bumgarner v. Fischer, 101 Va. Cir. 65, 2019 Va. Cir. LEXIS 3 (Richmond Jan. 17, 2019).

CIRCUIT COURT OPINIONS

As to unenforceability of contract due to lack of valid compensation term in a business conspiracy claim, see Boy Blue, Inc. v. Brown, 74 Va. Cir. 4, 2007 Va. Cir. LEXIS 165 (Essex County 2007).

Claim time-barred. - Plaintiff's conspiracy claim was time-barred as: (1) plaintiff asserted a claim for trebled money damages, so he did not seek purely equitable remedies; (2) a claim for conspiracy under §§ 18.2-499 and 18.2-500 was a legal cause of action, whether the claim was brought on the law or chancery side; (3) the basis of the claim was fraud and fraud was a wrongful act aimed at the person; (4) as fraud invariably acted upon the person of the victim, its consequence was personal damage; and (5) the conspiracy claim was therefore time-barred whether subsection A of § 8.01-243 , which applied to fraud claims, or § 8.01-248 , which applied to personal actions for which no other limitation was specified, applied. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County 2006).

Judgment creditor's claim for civil conspiracy was not within the applicable statute of limitations for personal fraud, which was two years, because the creditor's claims sounded only in fraud, and the actionable facts occurred more than two years prior to the filing of the complaint. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Proper pleading. - Defendants' argument that a § 8.01-499 claim should be dismissed was rejected as plaintiff alleged that defendant individuals conspired with each other, not with defendant corporation; under § 8.01-499 , all that is required is two or more persons combining to injure a plaintiff's reputation, trade, business, or profession. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County 2006).

Messages on internet message board. - Messages posted on an internet message board did not support the company's claim that the customers conspired to willfully and intentionally injure the company in reputation, trade, or business as they were non-defamatory or matters of opinion - both protected by First Amendment. Xtreme 4x4 Ctr., Inc. v. Howery, 65 Va. Cir. 469, 2004 Va. Cir. LEXIS 229 (Roanoke 2004).

Cause of action stated. - Lessee's conspiracy claim against the building owners and a contractor survived demurrer where the lessee alleged that the building owners conspired with the owners of the upper story condominiums with the intent to bar the lessee from providing live entertainment vital to its restaurants profits, violated an enforceable contract and their breach of fiduciary duties in order to achieve the end goal, and the plan culminated in a directive prohibiting the lessee from providing live entertainment, thereby damaging its profits. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 51 (Norfolk 2008).

Property owners alleged defendants wrote to government agents falsely accusing the owners of diverting a stream flow and removing wetlands. The owners' complaint sufficiently alleged legal malice - that defendants acted intentionally, purposely, and without lawful justification - to state claims of statutory conspiracy under §§ 18.2-499 and 18.2-500 . Mathre v. Schweichert,, 2007 Va. Cir. LEXIS 310 (Nelson County Aug. 9, 2007).

Development company and associate's demurrer to the restaurant operator's claim against them for conspiracy to injure a business, pursuant to §§ 18.2-499 and 18.2-500 , had to be denied as the restaurant operator stated a claim under both sections. The restaurant operator alleged that: (1) they combined with others to willfully and maliciously injure the restaurant operator by preventing the restaurant operator from presenting live entertainment at its restaurant; and (2) as a result, the restaurant operator lost profits vital to the operation of the restaurant. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 52 (Norfolk 2008).

Pleadings stated claims for common-law and statutory conspiracy where an employer alleged that former employees willfully and maliciously combined together to help a competitor acquire premier partner status so that it could compete with the employer's business. Innovative Sys. & Solutions, Inc. v. Hannah, 75 Va. Cir. 363, 2008 Va. Cir. LEXIS 270 (Norfolk July 31, 2008).

In a case in which: (1) a fencing school alleged that a former employee was an officer or director of a competitor; (2) the competitor and the other defendants knew of the employee's contractual obligations to the school; (3) the competitor and the other individual defendants encouraged the employee to breach a non-competition agreement, both while he was employed and after his employment was terminated; (4) the competitor and the other individual defendants directly or indirectly provided him facilities to coach the school's students in violation of his agreement; and (5) the employee, competitor, and the individual defendants advised students to break their agreements with the school and seek instruction from the employee or the competitor, the school sufficiently stated a claim for statutory conspiracy under § 18.2-499 . Va. Academy of Fencing, Inc. v. Sintchinov,, 2009 Va. Cir. LEXIS 81 (Fairfax Aug. 27, 2009).

Plaintiffs alleged the misappropriation of trade secrets, not standing alone, and the alleged conversion of equipment by defendants; although defendants argued that plaintiffs failed to state a claim for statutory conspiracy, the demurrers were overruled. Rogers Elec. of Va., Ltd. v. Sims, 93 Va. Cir. 484, 2015 Va. Cir. LEXIS 239 (Chesapeake Feb. 13, 2015).

While the complaint could have been more artfully drawn, it was clear that plaintiff was seeking damages for injury to her business interests as a pediatric nurse practitioner, not her personal reputation, and thus plaintiffs stated causes of action for tortious interference with a business expectancy. Compassionate Care Pediatrics, LLC v. Children's Med. Ctr., Ltd., 100 Va. Cir. 6, 2018 Va. Cir. LEXIS 310 (Martinsville Sept. 6, 2018).

Developer's demurrer to a contractor's complaint was overruled because the factual allegations in the complaint established a violation where the contractor suffered a pecuniary loss due to the developer's interference in the subcontractor's performance of its subcontracts with the contractor in violation of the common and statutory laws; the developer and the subcontractor conspired for the purpose of willfully and maliciously denying the contractor the agreed amount of payment for the construction work that the contractor had contracted to perform and the contractor lost a total of $121,794 in profits as a result of that conspiracy. Evans Constr. Servs., L.L.C. v. Ox Builders, L.L.C.,, 2021 Va. Cir. LEXIS 96 (Loudoun County Apr. 6, 2021).

Cause of action not stated. - Stock assignee's claim that defendants conspired to take control of a corporation did not sufficiently allege that they conspired "for the purpose of" injuring the assignee's predecessors; the complaint alleged damage to the corporation, which could only be remedied by a derivative suit. Lexcadia Capital, L.L.C. v. Next Generation Fund, L.L.C., 71 Va. Cir. 83, 2006 Va. Cir. LEXIS 104 (Fairfax County 2006).

Defendants' demurrers were granted as to a company's claim for statutory business conspiracy under §§ 18.2-499 and 18.2-500 , because the company failed to allege how defendants conspired with a sublandlord to terminate a sublease, and the company failed to allege a criminal or unlawful purpose or means on the part of defendants. R & D 2001, L.L.C. v. Collins,, 2006 Va. Cir. LEXIS 131 (Fairfax County July 12, 2006).

Counterclaim contending that a real estate agent and an administrative assistant conspired to oust defendant from a partnership alleged they took "overt steps" in furtherance of the conspiracy, but failed to specify what those steps were, and thus did not state a claim of statutory conspiracy in violation of §§ 18.2-499 and 18.2-500 . Poco Loco, LLC v. Barnes, 72 Va. Cir. 165, 2006 Va. Cir. LEXIS 202 (Fairfax County 2006).

No facts were alleged by purchasers to indicate that sellers actually agreed to engage in fraudulent conduct with the purpose of injuring the purchasers. While it was true that due to the nature of conspiracy, all details may not have been known at the time of pleading, in order to survive a demurrer, a plaintiff needed to at least plead the requisite concert of action and unity of purpose in more than mere conclusory language, and no conspiracy existed without an agreement. Kayes v. Keyser, 72 Va. Cir. 549, 2007 Va. Cir. LEXIS 160 (Charlottesville 2007).

Former employer failed to sufficiently plead statutory business conspiracy in violation of §§ 18.2-499 and 18.2-500 where an underlying employment agreement was rendered invalid by a blue-pencil provision and by overbroad noncompetition and confidentiality provisions and where the employer failed to allege malice. BB&T Ins. Servs. v. Thomas Rutherfoord, Inc., 80 Va. Cir. 174, 2010 Va. Cir. LEXIS 25 (Richmond Feb. 9, 2010).

Economic loss doctrine applied to the statutory conspiracy claim, as any misstatement of facts alleged to the claim were merely contractual issues. Foster v. Wintergreen Real Estate Co., 81 Va. Cir. 353, 2010 Va. Cir. LEXIS 252 (Nelson County Nov. 16, 2010).

Demurrer dismissing a statutory conspiracy claim against a real estate company and individual brokers was not reconsidered on the theory that § 18.2-216 false advertisement claims showed statutory conspiracy because (1) the claims only alleged false advertising, and (2) the company and the individual defendants were one entity. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

Demurrer dismissing a statutory conspiracy claim against a real estate company and individual brokers was not reconsidered on the theory that alleged breaches of statutory and fiduciary duties constituted statutory conspiracy because statutes and regulations allegedly violated were part of each client's contract. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

Demurrer dismissing a statutory conspiracy claim was not reconsidered on the theory that an alleged tortious interference with contract fell under the conspiracy statutes because a defendant company and individual defendants were one entity, under the intracorporate immunity doctrine. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

Plaintiff's action for statutory conspiracy, brought against her former partner and paramour failed because the statutory business requirement was not satisfied; plaintiff complained about matters involving a deed, deed of trust, and a payment agreement, all of which involved a real estate, not a business transaction. Whalen v. Rutherford, 86 Va. Cir. 560, 2011 Va. Cir. LEXIS 277 (Nelson County Nov. 16, 2011).

Complaint by a contractor who supplied flooring services to an apartment complex against the owner, manager, property manager, and maintenance supervisor of the apartment complex failed to plead, with the requisite degree of particularity, facts which supported the elements of conspiracy to harm a business when the contractor was not paid for its services. Skipper v. Landmark Prop. Servs., 97 Va. Cir. 1, 2017 Va. Cir. LEXIS 321 (Chesterfield County Feb. 17, 2017).

Judgment creditor did produce all the evidence it could possibly muster against a seller, purchaser, and business associate that would have been of relevance to the issue of whether there was proof to support the claims of civil conspiracy because the same evidence was essential to proving the claim of fraudulent conveyance; the seller, purchaser, and associate did not act with "actual malice," i.e., ill-will, hatred, or spite directed toward the creditor. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Attorney's fees. - Where plaintiffs prevailed on defendant's counterclaim alleging conspiracy under § 18.2-499 , they were not entitled to attorneys' fees under § 18.2-500 , as § 18.2-500 limited recovery of such fees to the victims of conspiracies to injure them in their trade or business, and plaintiffs were accused of participating in such a conspiracy. Bhagat v. Diamond Info. Sys., L.L.C., 84 Va. Cir. 233, 2012 Va. Cir. LEXIS 79 (Loudoun County Jan. 23, 2012).

Independent contractor failed to state a claim under §§ 18.2-499 and 18.2-500 where he had entered into an agreement to market orthopedic surgical appliances for the manufacturer in his individual capacity, not as a separate business or organization, there were no allegations that the contractor owned his own business, and his personal, employment interests were not a business interest. Hunter v. Simpson, 93 Va. Cir. 366, 2016 Va. Cir. LEXIS 68 (Henrico County May 13, 2016).

§ 18.2-500. Same; civil relief; damages and counsel fees; injunctions.

  1. Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499 , may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff's counsel, and without limiting the generality of the term, "damages" shall include loss of profits.
  2. Whenever a person shall duly file a civil action in the circuit court of any county or city against any person alleging violations of the provisions of § 18.2-499 and praying that such party defendant be restrained and enjoined from continuing the acts complained of, such court shall have jurisdiction to hear and determine the issues involved, to issue injunctions pendente lite and permanent injunctions and to decree damages and costs of suit, including reasonable counsel fees to complainants' and defendants' counsel. (Code 1950, § 18.1-74.1:2; 1964, c. 623; 1975, cc. 14, 15; 2003, c. 578; 2005, c. 681.)

The 2003 amendments. - The 2003 amendment by c. 578 substituted subsection designations A and B for subdivision designations (a) and (b); and in subsection A, substituted a comma for a semi-colon following "plaintiff's counsel," and deleted the former last sentence, which read: "Such counsel shall in no case receive any other, further or additional compensation except that allowed by the court and any contract to the contrary shall be null and void."

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, substituted "a civil action" for "a bill in chancery" in subsection B.

Law review. - For article on injuries to business under the Virginia Conspiracy Act, see 38 Wash. & Lee L. Rev. 377 (1981). For article on the Virginia Conspiracy Statute, see 38 Wash. & Lee L. Rev. 1147 (1981).

For a review of antitrust and trade regulation law in Virginia for year 1999, see 33 U. Rich. L. Rev. 769 (1999).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 14 Costs. § 14.02 Items Included. Bryson.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 26 Tort Actions: Other Common-Law and Statutory Remedies. § 26.19 Conspiracy. Friend.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Conspiracy, §§ 2, 8, 13; 5A M.J. Costs, § 3; 18 M.J. Torts, §§ 2.1, 2.2.

CASE NOTES

The focus of § 18.2-499 and this section is upon conspiracies resulting in business-related damages. Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980), rev'd on other grounds, 657 F.2d 45 (4th Cir. 1981), cert. denied, 455 U.S. 907, 102 S. Ct. 1253, 71 L. Ed. 2d 445 (1982).

Section 18.2-499 not applicable to injury to one's employment interests. - Where former postmaster alleged that co-workers conspired to injure him in his reputation, trade, business and profession and as a result he was demoted, the claim was dismissed for failure to state a claim for relief because § 18.2-499 addresses only injuries to one's business, not injuries to one's employment interests. Jordan v. Hudson, 690 F. Supp. 502 (E.D. Va. 1988), aff'd, 879 F.2d 98 (4th Cir. 1989).

In a former employee's suit against his former employer, alleging a civil conspiracy to divest him of his stock ownership in the employer and to injure his professional reputation and business by terminating him, in violation of §§ 18.2-499 and 18.2-500 , the employee failed to state a claim because his professional reputation and stock ownership in the company were employment interests, and not business interests, which were not covered by these laws. Inman v. Klockner-Pentaplast of Am., Inc., 467 F. Supp. 2d 642, 2006 U.S. Dist. LEXIS 93620 (W.D. Va. 2006).

Physician's claimed injuries (the termination of the physician's employment with an anesthesiology group and a hospital and the potential difficulty the physician faced in obtaining future employment with another hospital or anesthesiology group) did not fall within the scope of §§ 18.2-499 and 18.2-500 . Mansfield v. Anesthesia Assocs.,, 2008 U.S. Dist. LEXIS 34732 (E.D. Va. Apr. 28, 2008).

Federal preemption. - Because copyright and the infringement thereof is an area controlled exclusively by the federal government, any state causes of action under § 18.2-499 and this section must be preempted in this area. Hoey v. Dexel Sys. Corp., 716 F. Supp. 222 (E.D. Va. 1989).

This section and 18 U.S.C.S. § 1961 et seq., compared. - The elements and purposes of Virginia business conspiracy statute, this section, and RICO, 18 U.S.C.S. § 1961 et seq., diverge. Where the Virginia act required a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business, a RICO § 1962(c) cause of action is made out by proof of: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Thus, the Virginia business conspiracy act is not an appropriate state statute from which to borrow a statute of limitations for RICO. HMK Corp. v. Walsey, 637 F. Supp. 710 (E.D. Va. 1986), aff'd, 828 F.2d 1071 (4th Cir. 1987), cert. denied, 484 U.S. 1009, 108 S. Ct. 706, 98 L. Ed. 2d 657 (1988).

Exclusive distributorship arrangements do not violate the antitrust laws unless they foreclose competition in the relevant market. Thompson Everett, Inc. v. National Cable Adv., 850 F. Supp. 470 (E.D. Va. 1994), aff'd, 57 F.3d 1317 (4th Cir. 1995).

This statutory action provides a remedy for wrongful conduct directed to the business. An injury to one's business is clearly an injury to one's property interest. Federated Graphics Cos. v. Napotnik, 424 F. Supp. 291 (E.D. Va. 1976); Picture Lake Campground, Inc. v. Holiday Inns, Inc., 497 F. Supp. 858 (E.D. Va. 1980).

The elements of a statutory conspiracy claim under the Virginia Conspiracy Act are: (1) concerted action; (2) legal malice; and (3) causally-related injury. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

Elements of a statutory civil conspiracy claim require a plaintiff to allege that two or more persons combined, associated, agreed, or mutually undertook together to willfully and maliciously injure the plaintiff in his reputation, trade, business, or profession; a district court erred when it dismissed a real estate broker's statutory conspiracy claim pursuant to Fed. R. Civ. P. 12(b)(6) because the broker had sufficiently alleged: (1) that a limited liability company and its agents had conspired and acted together to complete the sale of a farm without paying the broker a commission for the work that it had performed in connection with the sale; (2) that the conduct of the company and its agents was intentional, purposeful, and without lawful justification; and (3) that the conduct resulted in substantial monetary damages to the broker. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 2004 U.S. App. LEXIS 20572 (4th Cir. 2004).

Elements of offense. - To recover in an action for conspiracy to harm a business, the plaintiff must prove: (1) a combination of two or more persons for the purpose of willfully and maliciously injuring plaintiff in his business; and (2) resulting damage to plaintiff. Allen Realty Corp. v. Holbert, 227 Va. 441 , 318 S.E.2d 592 (1984); Meadow Ltd. Partnership v. Heritage Sav. & Loan Ass'n, 639 F. Supp. 643 (E.D. Va. 1986).

In order to prove a conspiracy under the Virginia Conspiracy Act, at least two people had to have combined intentionally for the nefarious purpose of harming the victim's business, but unfortunately for debtor, it did not make it over this initial hurdle. The only remaining defendant could not conspire alone. Wellington Apt., LLC v. Clotworthy (In re Wellington Apt., LLC),, 2006 Bankr. LEXIS 1954 (Bankr. E.D. Va. July 27, 2006).

Company failed to present any evidence either of a conspiracy between the corporation and the non-minority owned company or legal malice on behalf of either; therefore, any injury the company might have suffered was not actionable under the Virginia Business Conspiracy Act, §§ 18.2-499 and 18.2-500 . DAG Petroleum Suppliers, L.L.C. v. BP P.L.C.,, 2008 U.S. App. LEXIS 1293 (4th Cir. Jan. 23, 2008).

Proof of malice required. - The element of legal malice requires the plaintiff to prove that the concerted action was undertaken by one conspirator to injure the plaintiff intentionally, purposefully and without lawful justification, but the statute does not require that the the co-conspirator act with legal malice; rather, the statute simply requires that one party, acting with legal malice, conspire with another party to injure the plaintiff. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

To prove malice, plaintiffs must show that defendants acted intentionally, purposefully, and without legal justification; significantly, the statute does not require a plaintiff to prove that a conspirator's primary and overriding purpose is to injure another in his trade or business. Atlas Partners II v. Brumberg, Mackey & Wall, PLC,, 2006 U.S. Dist. LEXIS 983 (W.D. Va. Jan. 6, 2006).

Legal malice element of cause of action not found. - Defendant former employee did not engage in a conspiratorial act of legal malice in violation of § 18.2-499 by accepting future employment with an employment broker while the employee was still employed by plaintiff former employer, another employment firm that had arranged for the employee, pursuant to a contract with the employment broker, to perform temporary services for a certain manufacturer, even though the employee expected to be placed by the employment broker for an extended period with the same manufacturer, as the employee was an at-will employee, neither the employee nor the employment broker violated any contract by their conduct, and the employee did not rob the former employer of any objective or tangible business opportunity or expectancy; therefore, there was no basis for the jury's verdict in the former employer's favor on its claim against the former employee for civil liability under § 18.2-500 for allegedly violating § 18.2-499 . Williams v. Dominion Tech. Partners, L.L.C., 265 Va. 280 , 576 S.E.2d 752, 2003 Va. LEXIS 29 (2003).

Since plaintiffs provided no evidence of an agreement or an intent to injure, both of which were required to establish a business conspiracy under §§ 18.2-499 and 18.2-500 , a reasonable jury could not conclude that the company and the third party were criminally and civilly liable under the theory of business conspiracy; therefore, summary judgment was granted against the claim. DAG Petroleum Suppliers L.L.C. v. BP P.L.C., 452 F. Supp. 2d 641, 2006 U.S. Dist. LEXIS 67438 (E.D. Va. 2006).

Summary judgment was properly granted to defendants on a plaintiff's business conspiracy claim because the record lacked evidence that defendants acted with legal malice toward the plaintiff's business. Rogers v. Deane, 594 Fed. Appx. 768, 2014 U.S. App. LEXIS 21255 (4th Cir. Nov. 6, 2014).

"Without lawful justification" means that the defendants contrived to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means; the statute thus requires that the plaintiff prove that at least one of the co-conspirators acted either with an unlawful purpose or by unlawful means. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

Proof of injury required. - Under the Virginia Conspiracy Act, the plaintiff must show that the defendants' concerted action caused it injury in order to be entitled either to damages or to injunctive relief. Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn, 144 F. Supp. 2d 558, 2001 U.S. Dist. LEXIS 7006 (W.D. Va. 2001), aff'd sub nom. Va. Vermiculite Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir. 2002).

To the extent a plaintiff attempts to base his conspiracy claim on injury to his personal reputation or employment, as opposed to business, interests, he fails to state a claim under this section and § 18.2-499 . Warner v. Buck Creek Nursery, Inc., 149 F. Supp. 2d 246 (W.D. Va. 2001).

In a diversity action that alleged a violation of Virginia's business conspiracy statute, § 18.2-500 , which permits a suit for civil relief based on a violation of § 18.2-499 , the appellate court held dismissal pursuant to Fed. R. Civ. P. 12(b)(6) was warranted, where the complaint did not allege a violation of § 18.2-499 and Michigan law applied to the suit anyway. Beydoun v. Clark Constr. Int'l, LLC,, 2003 U.S. App. LEXIS 14838 (4th Cir. July 25, 2003).

Because the jury instructions required the jury to find proof of injury and proof that the injured party suffered damages as a predicate to a verdict on a business conspiracy claim, the jury's finding of such a conspiracy without damages in each instance was contrary to the jury instructions; hence, under Rome v. Kelly Springfield Tire Co. , 217 Va. 943 , 948, 234 S.E.2d 277, 281 (1977), the verdicts were invalid as a matter of law. Ulloa v. QSP, Inc., 271 Va. 72 , 624 S.E.2d 43, 2006 Va. LEXIS 21 (2006).

In an action for damages by an information technology company and its sole owner against a former partner, his wife, and their new corporation, the trial court erred in conducting a retrial on damages on a civil conspiracy claim under § 18.2-500 because the jury's verdict form awarding zero dollars clearly indicated that no injury was sustained. In addition, because an award of attorney's fees and costs was made pursuant to § 18.2-500 , that award was also erroneous. Syed v. Zh Techs., Inc., 280 Va. 58 , 694 S.E.2d 625, 2010 Va. LEXIS 73 (2010).

Proof of unlawful act required. - In a brand owner's suit against a distributor alleging that the manufacturer secretly entered into a manufacturing agreement with the competing distributor and that the distributor told customers that the brand owner was going out of business, the conspiracy claim was dismissed because the brand owner failed to aver an unlawful act or an attempt by the distributor to interfere with the agreement between the brand owner and manufacturer. Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F. Supp. 2d 483, 2003 U.S. Dist. LEXIS 12709 (E.D. Va. 2003).

Plaintiff's statutory conspiracy claim survived defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss, because defendants' alleged tortious interference with plaintiff's employment contracts constituted the requisite "unlawful act" to proceed on a statutory business conspiracy claim under Virginia law. Depuy Synthes Sales, Inc. v. Jones,, 2014 U.S. Dist. LEXIS 37727 (E.D. Va. Mar. 21, 2014).

Breach of contract not "unlawful act." - Conspiracy merely to breach a contract that does not involve an independent duty arising outside the contract is insufficient to establish a civil claim under § 18.2-500 . Station # 2, LLC v. Lynch, 280 Va. 166 , 695 S.E.2d 537, 2010 Va. LEXIS 64 (2010).

Tortious interference with contract or with business expectancy. - Plaintiffs may use tortious interference with contract or with business expectancy as the predicate unlawful act for a claim under the Virginia business conspiracy statutes because both tort claims are predicated on an independent common law duty arising outside of contract. Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207 , 754 S.E.2d 313, 2014 Va. LEXIS 33 (Feb. 27, 2014).

Where plaintiff alleged defendants conspired to force him out of business, the district court erred by dismissing his claims because tortious interference with contract and tortious interference with business expectancy qualified as the requisite unlawful acts to proceed on a business conspiracy claim under this section. Dunlap v. Cottman Transmissions Sys., LLC, 576 Fed. Appx. 225, 2014 U.S. App. LEXIS 11873 (4th Cir. June 24, 2014).

Because a complainant's underlying claims of tortious interference with contract against a successor-in-interest to a lessor and a lessee failed as to a lease agreement, the complainant's claims of statutory business conspiracy also failed. Francis Hosp., Inc. v. Read Props., LLC, 296 Va. 358 , 820 S.E.2d 607, 2018 Va. LEXIS 170 (2018).

No proximate cause between defendants' actions and former employer's lost profits. - Despite the testimony of an expert witness, who was a forensic accountant, as to a former employer's loss of profits from the alleged wrongful conduct of defendants, its former salesman and his new store, defendants' motion to strike, which tested sufficiency of the evidence, should have been granted. The expert used a "but-for" damages calculation, which presumed an injury to the former employer from the mere fact that the salesman, who had been an at-will employee, had stopped working at the former employer's store and had begun working at the new store; the expert did not demonstrate that defendants' wrongful conduct, including a breach of fiduciary duties and a violation of §§ 18.2-499 and 18.2-500 , had proximately caused any injury to the former employer. Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177 , 630 S.E.2d 304, 2006 Va. LEXIS 54 (2006).

Calculation of damages, and lost profits in particular, was speculative as it assumed future business from customers who had no duty to shop at the former employer's store; the expert also did not show that the conduct of the salesman or his new store had proximately caused any of the loss of the former employer's customers, and the expert's damages calculation, which was based on a "but-for" analysis, had focused solely on the fact that the salesman had stopped working for the former employer and did not focus on any wrongful conduct by defendants. Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177 , 630 S.E.2d 304, 2006 Va. LEXIS 54 (2006).

Loss of goodwill. - Because a company introduced no evidence demonstrating a diminution in value of either its fair market value or identifiable assets during the relevant time period, nor did it demonstrate that its sale price to another company was affected by the employees' actions, it introduced no evidence demonstrating a diminution in value of its goodwill; thus, the evidence was insufficient to support an award of lost goodwill damages because of the conspiracy. 21st Century Sys. v. Perot Sys. Gov't Servs., 284 Va. 32 , 726 S.E.2d 236, 2012 Va. LEXIS 139 (2012).

Personal-stake exception to intracorporate immunity. - The doctrine of intracorporate immunity is excepted when an agent of the corporation has an independent personal stake in achieving the corporation's impermissible objectives; such personal stake must be wholly separable from the more general and indirect corporate benefit. Hence, on defendant's motion to dismiss, plaintiffs pleaded sufficient facts to satisfy the personal stake exception, namely, that the agents of insurer, as competing physicians, had a direct interest in the market for healthcare services which was distinct and independent from their roles as agents of insurer. Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 151 F. Supp. 2d 723, 2001 U.S. Dist. LEXIS 10348 (W.D. Va. 2001).

Standard of proof. - Proof of civil conspiracy must be shown by clear and convincing evidence. Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522 (4th Cir. 1997).

Conspiracy between corporation and its agents as legal impossibility. - Although plaintiff's allegations were initially sufficient to satisfy the threshold demands of Virginia's civil conspiracy statute, they were not sufficient to overcome the obstacle provided by the intracorporate immunity doctrine, which holds that because at least two persons must be present to form a conspiracy, a corporation cannot conspire with itself; therefore, a conspiracy between a corporation and the agents of that corporation who are acting in the scope of their employment is a legal impossibility. Selman v. American Sports Underwriters, Inc., 697 F. Supp. 225 (W.D. Va. 1988).

Applicable limitation. - An action brought under this section and § 18.2-499 survives, and hence, was subject to the five-year limitation in former § 8-24. Federated Graphics Cos. v. Napotnik, 424 F. Supp. 291 (E.D. Va. 1976).

Malicious prosecution distinguished. - Malicious prosecution involves wrongful conduct directed at a person which may indirectly damage property. The statutory action under this section and § 18.2-499 , on the other hand, focuses upon conduct directed at property, i.e., one's business. Accordingly, the nature of the two actions differs. Federated Graphics Cos. v. Napotnik, 424 F. Supp. 291 (E.D. Va. 1976).

If a competitor is in fact about to cease marketing a competing product, it is not unlawful to state that fact truthfully to customers. Hechler Chevrolet, Inc. v. GMC, 230 Va. 396 , 337 S.E.2d 744 (1985).

Right of action arises from conduct directed at business, not person. - A right of action is afforded under § 18.2-499 and this section only when malicious conduct is directed at one's business, not one's person, and the statutes focus upon conduct directed at property, i.e., one's business and apply only to conspiracies resulting in business-related damages. Buschi v. Kirven, 775 F.2d 1240 (4th Cir. 1985).

Employee failed to allege how the alleged conspiracy hurt her in her business, instead, she alleged in conclusory terms that defendants harmed her reputation, harmed her in her profession, and in her ability to find comparable trade or business work; as such, her civil conspiracy claim failed. Bowers v. Rector,, 2006 U.S. Dist. LEXIS 78114 (W.D. Va. Oct. 24, 2006).

Plaintiff's employment reputation is an employment interest and employment interests are not covered by § 18.2-500 . Bowers v. Rector,, 2006 U.S. Dist. LEXIS 78114 (W.D. Va. Oct. 24, 2006).

Former employee was unable to state a civil conspiracy claim under §§ 18.2-499 and 18.2-500 because these statutes afforded a right of action only when the malicious conduct was directed at a business, and the employee's claims exclusively concerned her employment prospects. Conyers v. Va. Hous. Dev. Auth.,, 2012 U.S. Dist. LEXIS 134908 (E.D. Va. Sept. 19, 2012).

Lawyer was given leave to add a count to her complaint for business conspiracy because she stated a claim that defendant and another combined to willfully and maliciously injure the lawyer in her business; she properly alleged that their malicious conduct was directed at her business, not at her person, either because her reputation and business were inextricable as a solo practitioner or because her removal from the court appointed attorney list directly injured her business. Daniczek v. Spencer, 156 F. Supp. 3d 739, 2016 U.S. Dist. LEXIS 3390 (E.D. Va. 2016).

Right of action accrues when any damage, however slight, is sustained. Eshbaugh v. Amoco Oil Co., 234 Va. 74 , 360 S.E.2d 350 (1987).

Term "damages" in subsection B refers to "three-fold" recovery Advanced Marine Enters., Inc. v. PRC, Inc., 256 Va. 106 , 501 S.E.2d 148 (1998).

Chancery court is permitted to award treble damages on law claim under the provisions of this section. Rather than limiting the relief available in chancery, subsection B grants complainant the additional right to seek and obtain injunctive relief, as well as damages and costs of suit. Advanced Marine Enters., Inc. v. PRC, Inc., 256 Va. 106 , 501 S.E.2d 148 (1998).

Treble damage award nondischargeable in bankruptcy. - Treble damages awarded by a state court in favor of a limited liability company and its remaining members against a debtor, who was also a member, by a state court pursuant to § 18.2-500 were nondischargeable under 11 U.S.C.S. § 523(a)(4) to the extent the treble damage award was based on damages for knowing embezzlement and knowing and wrongful theft, but not to the extent the treble damages were based on other portions of the damage award that the court found dischargeable. Credit Experts, LLC v. Santos (In re Santos),, 2012 Bankr. LEXIS 3076 (Bankr. E.D. Va. July 2, 2012).

Conspiracy action accrued to warehouse operator when freight forwarder demanded lower rates and staffing changes, not later when operators abandoned their contract. Detrick v. Panalpina, Inc., 108 F.3d 529 (4th Cir.), cert. denied, 522 U.S. 810, 118 S. Ct. 52, 139 L. Ed. 2d 17 (1997).

Right to performance of contract and right to reap profits therefrom are property rights which are entitled to protection in the courts. Consequently, suits for procuring breach of contract proceed on this basis. Chaves v. Johnson, 230 Va. 112 , 335 S.E.2d 97 (1985).

It is not unlawful to entice employee of competitor to leave his employment provided no wrongful means are used, and the employment is terminable at will. Hechler Chevrolet, Inc. v. GMC, 230 Va. 396 , 337 S.E.2d 744 (1985).

Relationship terminable at-will. - In a suit stemming from the termination of a 20-year relationship for the sale and distribution of certain delicatessen products, which was based on an oral agreement, which was terminable by either party at-will, the buyers' counterclaim against the sellers for business conspiracy in violation of § 18.2-499 failed as a matter of law due to the fact that the parties had the right to terminate their at-will relationship. Frank Brunckhorst Co., L.L.C. v. Coastal Atl., Inc., 542 F. Supp. 2d 452, 2008 U.S. Dist. LEXIS 6748 (E.D. Va. 2008).

Employment not within scope of section. - This section is aimed at conduct which injures a "business" and the statute is to be construed to exclude employment from its scope. Buschi v. Kirven, 775 F.2d 1240 (4th Cir. 1985).

Where claims were brought for malicious prosecution and statutory conspiracy, under §§ 18.2-499 and 18.2-500 , alleging conspiracy to injure reputation, trade, business, and profession, the trial court properly granted summary judgment to defendants on the statutory conspiracy claims, as §§ 18.2-499 and 18.2-500 applied to business and property interests, not to personal or employment interests. Andrews v. Ring, 266 Va. 311 , 585 S.E.2d 780, 2003 Va. LEXIS 86 (2003).

Persons acting within scope of employment as agents of city do not constitute conspiracy. - If defendants, who were charged with having conspired to injure producer and promoter of shows and concerts in his trade, business, or occupation in violation of § 18.2-499 and this section, were acting within the scope of their employment and, therefore, were agents of the city, then only one entity exists - the city. By definition, a single entity cannot conspire with itself. Fox v. Deese, 234 Va. 412 , 362 S.E.2d 699 (1987).

Parent corporation and its wholly-owned subsidiary are equally incapable of conspiring under this statute or the federal Sherman Act. Ray Dobbins Lincoln-Mercury, Inc. v. Ford Motor Co., 604 F. Supp. 203 (W.D. Va. 1984), aff'd, 813 F.2d 402 (4th Cir. 1985).

Investigative-administrative arms of state not inhibited. - Section 18.2-499 and this section do not create a protected interest against investigative-administrative arms of the state, as officials of a public body who act within the scope of their employment are not considered to be conspiring together for the purposes of this statute. Becker v. Russek, 518 F. Supp. 1040 (W.D. Va. 1981), aff'd, 679 F.2d 876 (4th Cir. 1982).

Dismissal of state conspiracy law claims against judge and clerk required. - Judge and deputy clerk were immune from damage claims with regards to their actions in revoking bondsman's certificate, and that immunity required dismissal of the state conspiracy law claim that they conspired to injure the bondsman in her trade or business against them. Battle v. Whitehurst, 831 F. Supp. 522 (E.D. Va. 1993), aff'd, 36 F.3d 1091 (4th Cir. 1994).

Expert testimony not always necessary to support fees and costs award. - While expert testimony ordinarily is necessary to assist determination of the attorney's fees and expenses award in action under this section, such testimony is not required in every case. Thus, where plaintiff submitted to the trial court almost 300 pages of contemporaneous time records detailing the activities for which fees were sought and also submitted affidavits of its attorneys upon the reasonableness of the hourly rates charged and the accuracy of the time billed while defendant presented nothing to contradict the affidavits, trial court's award of $472,000 was amply supported by the evidence. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611 (1992).

Costs. - With the exception of reasonable attorney's fees, this section makes no provision for award of costs other than those ordinarily awarded under the general statutes of Title 14.1 (now repealed) addressing the taxing of costs. Advanced Marine Enters., Inc. v. PRC, Inc., 256 Va. 106 , 501 S.E.2d 148 (1998).

Costs not recoverable. - While a prevailing party in a suit involving libelous statements about his pet care business was entitled to a fee award, he was not entitled to costs for travel and lodging because such costs were like those that the Virginia Supreme Court had not permitted in similar cases. Ebersole v. Kline-Perry,, 2012 U.S. Dist. LEXIS 138659 (E.D. Va. Sept. 26, 2012).

Publication of interview in magazine no offense. - Allegations that defendant journalists and magazine conspired to obtain and publish an interview with plaintiff minister and that plaintiff's fund raising activities were adversely affected as a result of the publication, failed to state a claim upon which relief could be granted under § 18.2-499 and this section, since there was no basis for the general allegation that any of the defendants conspired for the specific purpose of injuring the plaintiff. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Reasonable attorneys' fees. - Prevailing party in a suit involving libelous statements about his pet care business was entitled to a fee award of $75,833 because the amount was reasonable based on the time spent on the litigation, after reductions for the hourly rate and for time spent on certain matters, such as the fee application, jury instructions, proposed stipulations, and block billing for a motion to quash. Ebersole v. Kline-Perry,, 2012 U.S. Dist. LEXIS 138659 (E.D. Va. Sept. 26, 2012).

Evidence sufficient to show conspiracy. - Defendants' and a "partner's" actions constituted a prima facie case of business conspiracy; such examples were defendants' and the partner's structure of plaintiff company's settlement agreement, the purchase of a jet against plaintiffs' directions, the purchase of the eight acre parcel next to a store although the price was too high and the site was not suitable, and a stock subscription agreement that negatively impacted plaintiffs. These actions were all evidence that defendants and the partner worked together to damage plaintiffs and that damaging plaintiffs might not have been their primary purpose was immaterial under Virginia law. Atlas Partners II v. Brumberg, Mackey & Wall, PLC,, 2006 U.S. Dist. LEXIS 983 (W.D. Va. Jan. 6, 2006).

Plaintiff's allegations that defendant individuals, prior to forming defendant corporation, and while still employed by plaintiff, conspired to misappropriate and copy plaintiff's trade secrets and proprietary information, lure away plaintiff's employees, copy plaintiff's business format, and imitate and infringe plaintiff's trademarks had sufficiently pled a conspiracy under §§ 18.2-499 and 18.2-500 . Buffalo Wings Factory, Inc. v. Mohd, 622 F. Supp. 2d 325, 2007 U.S. Dist. LEXIS 91324 (E.D. Va. 2007).

Plaintiff stated a statutory business conspiracy claim, as the complaint sufficiently alleged that some of defendants' actions that allegedly violated plaintiff's employment contracts also represented a violation of fiduciary duties inherent in the employment relationship - duties that were not purely contractual. Depuy Synthes Sales, Inc. v. Jones,, 2014 U.S. Dist. LEXIS 37727 (E.D. Va. Mar. 21, 2014).

Evidence insufficient to show conspiracy. - Where an insurance company ceased doing business with a flood insurance agent, the insurance company was entitled to summary judgment as to the agent's business conspiracy claim because evidence of a conversation between a general agent and the insurance company did not establish the presence of a conspiracy to injure the agent in the agent's business. Hecht v. Am. Bankers Ins. Co.,, 2005 U.S. Dist. LEXIS 25883 (W.D. Va. Oct. 21, 2005).

Allegations sufficient to withstand motion to dismiss. - Telecommunications provider's allegations of a business conspiracy (that defendant and another entity acted together to divert the telecommunications provider's earned commissions, and to injure or destroy the telecommunications provider's business, and that the conspiratorial conduct was willful and malicious, and resulted in substantial money damages to the telecommunications provider) were sufficient to withstand defendant's motion to dismiss. While the allegations were arguably conclusory, the complaint, in its entirety, contained sufficient factual content to permit the court to reasonably infer that the required elements of concerted action, legal malice and causally related injury, could be met. All Bus. Solutions, Inc. v. NationsLine, Inc., 629 F. Supp. 2d 553, 2009 U.S. Dist. LEXIS 54693 (W.D. Va. 2009).

Proof of malice required. - Plaintiffs' allegations failed for two reasons: (i) first, it is not correct to say that only one member of a conspiracy need have legal malice; to say that a defendant can be a completely innocent party and still be liable as a co-conspirator is inconsistent with the requirement that the parties must act in concert to establish a conspiracy, and (ii) banks generally do not owe non-customers a duty to protect them from fraud perpetrated by customers. Hackman v. Wilson (In re Hackman), 534 Bankr. 867, 2015 Bankr. LEXIS 2378 (Bankr. E.D. Va. 2015).

Applied in Fowler v. Department of Educ., 472 F. Supp. 121 (E.D. Va. 1978); Evans v. Commonwealth, 226 Va. 292 , 308 S.E.2d 126 (1983); Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984); Hechler Chevrolet, Inc. v. GMC, 230 Va. 396 , 337 S.E.2d 744 (1985); Greenspan v. Osheroff, 232 Va. 388 , 351 S.E.2d 28 (1986); Oksanen v. Page Mem. Hosp., 945 F.2d 696 (4th Cir. 1991); Catercorp, Inc. v. Catering Concepts, Inc., 246 Va. 22 , 431 S.E.2d 277 (1993); Lansdowne Dev. Co., L.L.C. v. Xerox Realty Corp., 257 Va. 392 , 514 S.E.2d 157 (1999); Feddeman & Co. v. Langan Assocs., P.C., 260 Va. 35 , 530 S.E.2d 668, 2000 Va. LEXIS 92 (2000).

CIRCUIT COURT OPINIONS

Construction. - The Buschi decision, which construes §§ 18.2-499 and 18.2-500 to limit recovery of damages to a plaintiff's business, profession, or trade, and not to allow damages to a plaintiff's reputation or employment interests, is persuasive. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

Failure to show a conspiracy. - Where a subcontractor's expectation that it would be allowed to bid on a project did not rise to a level of a reasonable expectation of further contractual relations, the subcontractor did not show that an engineer company and its employees were involved in a conspiracy or employed "improper means." Commercial Roofing & Sheet Metal Co. v. Gardner Eng'g, Inc., 60 Va. Cir. 384, 2002 Va. Cir. LEXIS 275 (Fairfax County 2002).

Messages posted on an internet message board did not support the company's claim that the customers conspired to willfully and intentionally injure the company in reputation, trade, or business as they were non-defamatory or matters of opinion - both protected by First Amendment. Xtreme 4x4 Ctr., Inc. v. Howery, 65 Va. Cir. 469, 2004 Va. Cir. LEXIS 229 (Roanoke 2004).

Because a provider failed to allege adequate facts to support its claim that a company and a competitor sought to willfully and maliciously injure its business with the company, the provider failed to state a claim for civil conspiracy or a violation of §§ 18.2-499 and 18.2-500 . George K. Degnon Assocs. v. Acad. for Eating Disorders,, 2005 Va. Cir. LEXIS 202 (Fairfax County Nov. 29, 2005).

Counterclaim contending that a real estate agent and an administrative assistant conspired to oust defendant from a partnership alleged they took "overt steps" in furtherance of the conspiracy, but failed to specify what those steps were, and thus did not state a claim of statutory conspiracy in violation of §§ 18.2-499 and 18.2-500 . Poco Loco, LLC v. Barnes, 72 Va. Cir. 165, 2006 Va. Cir. LEXIS 202 (Fairfax County 2006).

Disbarred attorney could not recover damages on his claims that a state bar association's disciplinary board and its prosecutor caused injury when they conspired against him, either during the course of or as the result of disciplinary hearings, where the board members and the prosecutor were all part of one entity and no specific allegations of bad faith barred their entitlement to prosecutorial and judicial immunity. Leach v. Va. State Bar, 73 Va. Cir. 362, 2007 Va. Cir. LEXIS 221 (Richmond June 8, 2007).

Plaintiff had not pleaded facts sufficient to maintain a statutory conspiracy claim; to the extent plaintiff was pleading that defendants were alleged to have conspired after the employee was employed by each entity, the intra-corporate immunity doctrine applied and a conspiracy claim could not be maintained. TradeStaff & Co. v. Nogiec, 77 Va. Cir. 77, 2008 Va. Cir. LEXIS 226 (Chesapeake 2008).

In an action for damages by a company against a former employee, a limited liability company, its members, and others, defendants did not employ any unlawful means or act maliciously in setting up a competing business and, consequently, they did not violate § 18.2-500 . Tryco, Inc. v. United States Med. Source, 80 Va. Cir. 619, 2010 Va. Cir. LEXIS 91 (Fairfax County Aug. 3, 2010).

Sustaining of the demurrers as to a government contract bidder's claims for business conspiracies against a competitor and its affiliated entities was appropriate because the competitor and its affiliated entities could not form a conspiracy. Heard Constr., Inc. v. Waterfront Marine Constr. Co., 91 Va. Cir. 4, 2015 Va. Cir. LEXIS 131 (Chesapeake Mar. 9, 2015).

Elements of offense. - Investor's allegation for statutory conspiracy under §§ 18.2-444 and 18.2-500 was defective because: (1) there was no allegation of malice; and (2) an allegation of conspiracy, whether criminal or civil, had to at least allege an unlawful act or an unlawful purpose, and the investor failed to do so. Furthermore, a conspiracy merely to breach a contract that did not involve an independent duty arising outside the contract was insufficient to establish a civil claim under § 18.2-500 . Schur v. Sprenkle, 84 Va. Cir. 418, 2012 Va. Cir. LEXIS 132 (Richmond Apr. 11, 2012).

Proof of injury required. - Claims of conspiracy to injure a trade, business or profession, with no explainable factual basis, were subject to demurrer with leave to amend as one did not file a claim, especially one as serious as this, with no explainable factual basis, intending to "flesh it out" during discovery. Mut. Funding, Inc. v. Collins, 62 Va. Cir. 34, 2003 Va. Cir. LEXIS 68 (Spotsylvania County 2003).

Trial court dismissed a claim which a software company filed against a professional corporation and a doctor who owned the corporation, alleging that they conspired to steal information the company compiled while performing work under a contract for the corporation, because the company did not allege that the doctor acted outside the scope of her duties as an officer of the corporation. Softwise, Inc. v. Goodrich, 63 Va. Cir. 576, 2004 Va. Cir. LEXIS 6 (Roanoke 2004).

Plaintiff's claim was dismissed as plaintiff did not allege any injury to his business, relief was only proper when malicious conduct was directed at one's business, not one's person, and §§ 18.2-499 and 18.2-500 applied only to conspiracies resulting in business-related damages. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County 2006).

Demurrer was properly sustained as to a business conspiracy claim because an alleged association did not allegedly harm a plaintiff. AV Auto., LLC v. Preske, 101 Va. Cir. 184, 2019 Va. Cir. LEXIS 27 (Fairfax County Feb. 11, 2019).

Proof of unlawful act required. - Defendants' demurrers were granted as to a company's claim for statutory business conspiracy under §§ 18.2-499 and 18.2-500 , because the company failed to allege how defendants conspired with a sublandlord to terminate a sublease, and the company failed to allege a criminal or unlawful purpose or means on the part of defendants. R & D 2001, L.L.C. v. Collins,, 2006 Va. Cir. LEXIS 131 (Fairfax County July 12, 2006).

Business expectancy. - Whether the contractor had a business expectancy in a public contract was not appropriately disposed of on demurrer as the contractor alleged that, absent the employee's and competitors' conduct, it would have been awarded the contract as a sole source provider, and a preference, in 48 C.F.R. §§ 16.500(a) and 16.504(c)(i), for multiple providers did not establish an absolute mandate for multiple providers, and the contractor alleged it had a business expectancy in a certain public contract, the employee and the competitors knew of this expectancy, facts showed there was a reasonable certainty that the contractor would otherwise have realized this expectancy, and the contractor was damaged by the employee's and competitors' interference. However, a competitor who was only alleged to be affiliated with another competitor, with no indication of the nature of the affiliation, could not be held liable under this theory. H.E.R.C. Prods. v. Turlington, 62 Va. Cir. 489, 2003 Va. Cir. LEXIS 305 (Norfolk 2003).

Failure to show malice. - Where a non-solicitation clause was not limited in duration or geography and the clause's language, requiring a newly formed competing business, did not support a bill of complaint, and where there was no business conspiracy under §§ 18.2-499 and 18.2-500 or common-law conspiracy because the former employer did not show that a former employee acted with malice or that there was a concerted action to accomplish an unlawful purpose, the former employee's demurrers were sustained. Int'l Paper Co. v. Brooks, 63 Va. Cir. 494, 2003 Va. Cir. LEXIS 248 (Roanoke 2003).

Violation found. - Plaintiff's former partners and their new company violated §§ 18.2-499 and 18.2-500 by pursuing the unlawful purpose of forcing plaintiff out of the former partnership without compensating him for his interest and by accomplishing this purpose by unlawful means, including purporting to withdraw from the partnership while actually seizing control of its assets, converting partnership assets and plaintiff's property, inducing former partnership employees to accept employment with them, and breaching their fiduciary duties. Greenfeld v. Stitely,, 2007 Va. Cir. LEXIS 7 (Fairfax County Jan. 5, 2007).

Employment not within scope of section. - Trial court dismissed a police officer's claim alleging that two homebuyers and a homeowner violated this section when they conspired to have him indicted because they were unhappy with work he did on their houses while operating a private construction business, and that he was fired from his job as a police officer after he was indicted, but overruled demurrers which the homebuyers and homeowner filed to the officer's claims seeking recovery for malicious prosecution, interference with a contract, breach of contract, and fraud. Fitzgerald v. Farrell, 63 Va. Cir. 1, 2003 Va. Cir. LEXIS 340 (Loudoun County 2003).

Statute of limitations. - While the statute of limitations may be at least five years, the underlying wrong may in effect further restrict the period within which the conspiracy claim may be actionable; the actionable wrong must occur within at least the five-year period applicable for property claims and must then itself be unlawful at such time. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Evidence sufficient to show conspiracy. - Former employee and a retailer were held liable for violating § 18.2-499 et seq., with regard to enticing the former employee from his employ with a clothier, with the former employee purposefully taking the clothier's clientele list and the retailer having full knowledge of the same and, in fact, encouraging it. The restrictive covenant in the clothier's handbook prohibiting employment with a competitor within one mile for a period of three years was not overly harsh or oppressive and, therefore, in addition to compensatory damages in the amount of $548,611, trebled to $1,654,833, the trial court enjoined the former employee from working for the retailer for a period of three years from the date of the trial court's opinion. James, Ltd. v. Saks Fifth Ave., Inc., 67 Va. Cir. 126, 2005 Va. Cir. LEXIS 150 (Arlington County Mar. 8, 2005), rev'd in part as to treble damages, 630 S.E.2d 404, 2006 Va. LEXIS 54 (Va. 2006).

Demurrer denied as to claim of business conspiracy. - Former employee's demurrer pursuant to subsection A of § 8.01-273 was denied as to a company's claim that the former employee was involved in a business conspiracy pursuant to §§ 18.2-499 and 18.2-500 , because a company adequately alleged that the former employee and others conspired to injure the company by leaving the company en masse to work for a competitor, and to take the accounts for which they were responsible, and by taking and using documents that were alleged to be confidential trade secrets. Int'l Paper Co. v. Gilliam, 63 Va. Cir. 485, 2003 Va. Cir. LEXIS 249 (Roanoke 2003).

Development company and associate's demurrer to the restaurant operator's claim against them for conspiracy to injure a business, pursuant to §§ 18.2-499 and 18.2-500 , had to be denied as the restaurant operator stated a claim under both sections. The restaurant operator alleged that: (1) they combined with others to willfully and maliciously injure the restaurant operator by preventing the restaurant operator from presenting live entertainment at its restaurant; and (2) as a result, the restaurant operator lost profits vital to the operation of the restaurant. Station # 2, LLC v. Lynch, 75 Va. Cir. 179, 2008 Va. Cir. LEXIS 52 (Norfolk 2008).

Claim alleging that defendants conspired with one another to injure a company in its reputation, trade, business and profession in violation of §§ 18.2-499 and 18.2-500 was sufficient under Va. Sup. Ct. R. 1:4(d) to survive a demurrer as the intracorporate immunity doctrine did not apply to a conspiracy claim against employees, officers or agents who combined to harm their corporation. Colgate v. Disthene Group, Inc., 86 Va. Cir. 218, 2013 Va. Cir. LEXIS 9 (Buckingham County Feb. 4, 2013).

Claim time-barred. - Plaintiff's conspiracy claim was time-barred as: (1) plaintiff asserted a claim for trebled money damages, so he did not seek purely equitable remedies; (2) a claim for conspiracy under §§ 18.2-499 and 18.2-500 was a legal cause of action, whether the claim was brought on the law or chancery side; (3) the basis of the claim was fraud and fraud was a wrongful act aimed at the person; (4) as fraud invariably acted upon the person of the victim, its consequence was personal damage; and (5) the conspiracy claim was therefore time-barred whether subsection A of § 8.01-243 , which applied to fraud claims, or § 8.01-248 , which applied to personal actions for which no other limitation was specified, relied on. Orantes v. Pollo Ranchero, Inc., 70 Va. Cir. 277, 2006 Va. Cir. LEXIS 52 (Fairfax County 2006).

Judgment creditor's claim for civil conspiracy was not within the applicable statute of limitations for personal fraud, which was two years, because the creditor's claims sounded only in fraud, and the actionable facts occurred more than two years prior to the filing of the complaint. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Cause of action stated. - Property owners alleged defendants wrote to government agents falsely accusing the owners of diverting a stream flow and removing wetlands. The owners' complaint sufficiently alleged legal malice - that defendants acted intentionally, purposely, and without lawful justification - to state claims of statutory conspiracy under §§ 18.2-499 and 18.2-500 . Mathre v. Schweichert,, 2007 Va. Cir. LEXIS 310 (Nelson County Aug. 9, 2007).

Plaintiffs alleged the misappropriation of trade secrets, not standing alone, and the alleged conversion of equipment by defendants; although defendants argued that plaintiffs failed to state a claim for statutory conspiracy, the demurrers were overruled. Rogers Elec. of Va., Ltd. v. Sims, 93 Va. Cir. 484, 2015 Va. Cir. LEXIS 239 (Chesapeake Feb. 13, 2015).

While the complaint could have been more artfully drawn, it was clear that plaintiff was seeking damages for injury to her business interests as a pediatric nurse practitioner, not her personal reputation, and thus plaintiffs stated causes of action for tortious interference with a business expectancy. Compassionate Care Pediatrics, LLC v. Children's Med. Ctr., Ltd., 100 Va. Cir. 6, 2018 Va. Cir. LEXIS 310 (Martinsville Sept. 6, 2018).

Developer's demurrer to a contractor's complaint was overruled because the factual allegations in the complaint established a violation where the contractor suffered a pecuniary loss due to the developer's interference in the subcontractor's performance of its subcontracts with the contractor in violation of the common and statutory laws; the developer and the subcontractor conspired for the purpose of willfully and maliciously denying the contractor the agreed amount of payment for the construction work that the contractor had contracted to perform and the contractor lost a total of $121,794 in profits as a result of that conspiracy. Evans Constr. Servs., L.L.C. v. Ox Builders, L.L.C.,, 2021 Va. Cir. LEXIS 96 (Loudoun County Apr. 6, 2021).

Cause of action not stated. - Stock assignee's claim that defendants conspired to take control of a corporation did not sufficiently allege that they conspired "for the purpose of" injuring the assignee's predecessors; the complaint alleged damage to the corporation, which could only be remedied by a derivative suit. Lexcadia Capital, L.L.C. v. Next Generation Fund, L.L.C., 71 Va. Cir. 83, 2006 Va. Cir. LEXIS 104 (Fairfax County 2006).

Former employer failed to sufficiently plead statutory business conspiracy in violation of §§ 18.2-499 and 18.2-500 where an underlying employment agreement was rendered invalid by a blue-pencil provision and by overbroad noncompetition and confidentiality provisions and where the employer failed to allege malice. BB&T Ins. Servs. v. Thomas Rutherfoord, Inc., 80 Va. Cir. 174, 2010 Va. Cir. LEXIS 25 (Richmond Feb. 9, 2010).

Demurrer dismissing a statutory conspiracy claim against a real estate company and individual brokers was not reconsidered on the theory that § 18.2-216 false advertisement claims showed statutory conspiracy because (1) the claims only alleged false advertising, and (2) the company and the individual defendants were one entity. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

Demurrer dismissing a statutory conspiracy claim against a real estate company and individual brokers was not reconsidered on the theory that alleged breaches of statutory and fiduciary duties constituted statutory conspiracy because statutes and regulations allegedly violated were part of each client's contract. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

Demurrer dismissing a statutory conspiracy claim was not reconsidered on the theory that an alleged tortious interference with contract fell under the conspiracy statutes because a defendant company and individual defendants were one entity, under the intracorporate immunity doctrine. Foster v. Wintergreen Real Estate Co., 84 Va. Cir. 5, 2011 Va. Cir. LEXIS 209 (Nelson County Oct. 27, 2011).

Plaintiff's action for statutory conspiracy, brought against her former partner and paramour failed because the statutory business requirement was not satisfied; plaintiff complained about matters involving a deed, deed of trust, and a payment agreement, all of which involved a real estate, not a business transaction. Whalen v. Rutherford, 86 Va. Cir. 560, 2011 Va. Cir. LEXIS 277 (Nelson County Nov. 16, 2011).

Plaintiff's allegation that he had an implied contract with a group of music artists and that the alleged conspirators caused him to lose the implied contract or to lose value in the implied contract was merely an allegation that the people involved conspired to cause a breach of contract, which was not actionable. Schur v. Sprenkle, 86 Va. Cir. 455, 2013 Va. Cir. LEXIS 51 (Richmond May 22, 2013).

Judgment creditor did produce all the evidence it could possibly muster against a seller, purchaser, and business associate that would have been of relevance to the issue of whether there was proof to support the claims of civil conspiracy because the same evidence was essential to proving the claim of fraudulent conveyance; the seller, purchaser, and associate did not act with "actual malice," i.e., ill-will, hatred, or spite directed toward the creditor. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Claimant did not sufficiently allege a statutory business conspiracy claim to injure the claimant in the claimant's reputation, trade, business, and profession because the claimant did not properly allege concerted action or attempted concerted action between a tortfeasor and unnamed journalists and websites. Moreover, although the claimant sufficiently alleged malice, the claimant's alleged damages were not proper damages for the cause of action. Bumgarner v. Fischer, 101 Va. Cir. 65, 2019 Va. Cir. LEXIS 3 (Richmond Jan. 17, 2019).

In a case in which counterclaim-plaintiff alleged that he was injured when counterclaim-defendants and third-party defendants improperly induced him to sell his membership interests in the limited liability companies, counterclaim-defendants' and third-party defendants' demurrer to counterclaim-plaintiff's statutory civil conspiracy claim was sustained because counterclaim-plaintiff's pleadings were insufficient to allege damage to his business interests and a violation of civil conspiracy statute as a membership interest in a limited liability company was personal property; and the allegations of a wrongfully induced sale of personal interests were not sufficient to establish a business injury under the civil conspiracy statute. FC Oaks, L.L.C. v. Patty, 104 Va. Cir. 47, 2019 Va. Cir. LEXIS 1192 (Virginia Beach Nov. 19, 2019).

Plaintiff entitled to punitive damages. - Where defendants, plaintiff's former independent contractors, went to work for a competitor, which won a contract to provide services to plaintiff's client, as defendants were guilty of willful and wanton conduct in their complete disregard of the noncompete covenants in their contracts with plaintiff, it was entitled to punitive damages under § 18.2-500 in its civil conspiracy claim. Management Concepts v. Kraemer,, 2004 Va. Cir. LEXIS 391 (Fairfax County Apr. 26, 2004).

Attorney's fees. - Where plaintiffs prevailed on defendant's counterclaim alleging conspiracy under § 18.2-499 , they were not entitled to attorneys' fees under § 18.2-500 , as § 18.2-500 limited recovery of such fees to the victims of conspiracies to injure them in their trade or business, and plaintiffs were accused of participating in such a conspiracy. Bhagat v. Diamond Info. Sys., L.L.C., 84 Va. Cir. 233, 2012 Va. Cir. LEXIS 79 (Loudoun County Jan. 23, 2012).

Statute was the only one allowing the recovery of attorney fees on any of plaintiffs' counts, and the demurrer was sustained as to fees on all counts except this one. Rogers Elec. of Va., Ltd. v. Sims, 93 Va. Cir. 484, 2015 Va. Cir. LEXIS 239 (Chesapeake Feb. 13, 2015).

Independent contractor failed to state a claim under §§ 18.2-499 and 18.2-500 where he had entered into an agreement to market orthopedic surgical appliances for the manufacturer in his individual capacity, not as a separate business or organization, there were no allegations that the contractor owned his own business, and his personal, employment interests were not a business interest. Hunter v. Simpson, 93 Va. Cir. 366, 2016 Va. Cir. LEXIS 68 (Henrico County May 13, 2016).

§ 18.2-501. Same; protection of persons testifying or producing evidence.

  1. No natural person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, in any action, suit, or prosecution authorized by this article; provided, that no person so testifying shall be exempt from prosecution or punishment for perjury committed in so testifying.
  2. As used in this article a "person" is any person, firm, corporation, partnership or association.

    (Code 1950, § 18.1-74.1:3; 1964, c. 623; 1975, cc. 14, 15.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 26 Tort Actions: Other Common-Law and Statutory Remedies. § 26.19 Conspiracy. Friend.

Michie's Jurisprudence. - For related discussion, see 6B M.J. Embezzlement, § 12.

CASE NOTES

Conspiracy between corporation and its agents as legal impossibility. - Although plaintiff's allegations were initially sufficient to satisfy the threshold demands of Virginia's civil conspiracy statute, they were not sufficient to overcome the obstacle provided by the intracorporate immunity doctrine, which holds that because at least two persons must be present to form a conspiracy, a corporation cannot conspire with itself; therefore, a conspiracy between a corporation and the agents of that corporation who are acting in the scope of their employment is a legal impossibility. Selman v. American Sports Underwriters, Inc., 697 F. Supp. 225 (W.D. Va. 1988).

Waiver of immunity. - This section does not operate to withdraw subject matter jurisdiction. Rather, it affords the defense of immunity, and immunity may of course be waived by failure to invoke the immunity when prosecution is begun. Evans v. Commonwealth, 226 Va. 292 , 308 S.E.2d 126 (1983).

Applied in Reasor v. City of Norfolk, 606 F. Supp. 788 (E.D. Va. 1984).

Article 2.1. Sports Agents Regulation Act.

Editor's note. - Acts 1989, c. 530, cl. 2 provided that this article ( §§ 18.2-501.1 through 18.2-501.5) would not become effective until reenacted by the 1990 Session of the General Assembly. The article was not reenacted, and therefore, never became effective.

Article 3. Miscellaneous Offenses in General.

§ 18.2-502. Medical referral for profit.

  1. No person, firm, partnership, association or corporation, or agent or employee thereof, shall for profit engage in any business which in whole or in part includes the referral or recommendation of persons to a physician, hospital, health related facility, or dispensary for any form of medical care or treatment of any ailment or physical condition unless the person is advised of the criteria of selection of the physicians, hospitals, health-related facilities or dispensaries considered for the referral or recommendation. The acceptance of a fee or charge for any such referral or recommendation shall create a presumption that the business is engaged in such service for profit. A violation of the provisions of this section shall be punishable as a Class 1 misdemeanor.
  2. Whenever there is a violation of this section, in addition to the criminal sanctions, an application may be made by the Attorney General to the circuit court of the city or county in which the offense occurred, to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violation. If it appears to the satisfaction of the court or judge that the defendant has, in fact, violated this section, an injunction may be issued by such court or judge enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. Nothing in this section shall be construed to limit, prohibit, forbid or prevent any licensed physician or practitioner of the healing arts in the ordinary course of his professional practice from making referrals or recommendations to other members of such groups, so long as no fee is received for such referral or recommendation.

    The criminal and civil provisions of this section shall not apply to any individual association or corporation not organized or incorporated for pecuniary profit or financial gain, or to any organization or association which is exempt from taxation pursuant to § 501 (c) of Title 26 of the United States Code (Int. Rev. Code of 1954).

  3. Nothing in this section shall be construed to authorize any division of fees prohibited by § 54.1-2962 or any remuneration for referral prohibited by federal law or regulation. (Code 1950, § 18.1-417.2; 1972, c. 642; 1975, cc. 14, 15; 1986, c. 632.)

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

§ 18.2-502.1. Weight loss centers or clinics; disclosure.

No weight loss center or clinic shall, in its name or advertisements, use the words "physicians" or "doctors" or refer to its clients as "patients" or indicate that "medical teams" are available in its facility unless (i) the facility employs at least one registered nurse full-time and employs or contracts with at least one physician licensed by the Board of Medicine for services or consultation in connection with the facility's activities; or (ii) the facility is under the full-time supervision of a physician; or (iii) the clinic or program is operated by or in conjunction with a licensed hospital. Any physician affiliated with a weight loss center or clinic for purposes of consultation or supervision shall have primary responsibility for decisions made within the scope of that affiliation relating to the provision of medical services or care to persons using the services of that facility and shall have primary responsibility for medical decisions relating to the evaluation of the appropriateness of the admission of persons to the weight loss program. Any person who violates the provisions of this section shall be guilty of a Class 1 misdemeanor.

(1988, c. 765.)

§ 18.2-502.2. Warning required for certain medical tests; penalty.

No commercial medical testing kit designed for consumer home use shall be sold in this Commonwealth unless a warning is provided to the consumer to the effect that such tests may produce erroneous results and that medical testing is more accurate when performed by professionals within the controlled conditions of a laboratory. The consumer shall be advised to seek professional medical consultation and, if recommended, another test for validation of such test results.

Any person who violates the provisions of this section shall be guilty of a Class 4 misdemeanor.

(1989, c. 142.)

§ 18.2-503. Possession or duplication of certain keys.

  1. No person shall knowingly possess any key to the lock of any building or other property owned by the Commonwealth of Virginia, or a department, division, agency or political subdivision thereof, without receiving permission from a person duly authorized to give such permission to possess such key.
  2. No person, without receiving permission from a person duly authorized to give such permission, shall knowingly duplicate, copy or make a facsimile of any key to a lock of a building or other property owned by the Commonwealth of Virginia, or a department, division, agency or political subdivision thereof.

    Violation of this section shall constitute a Class 3 misdemeanor.

    (Code 1950, § 18.1-408.1; 1972, c. 139; 1975, cc. 14, 15; 1984, c. 61.)

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

§ 18.2-504. Destroying or concealing wills.

If any person fraudulently destroy or conceal any will or codicil, with intent to prevent the probate thereof, he shall be guilty of a Class 6 felony.

(Code 1950, § 18.1-309; 1960, c. 358; 1975, cc. 14, 15.)

Research References. - Virginia Forms (Matthew Bender). No. 15-401 Checklist for Probate and Administration.

§ 18.2-504.1. Unlawful change of name; punishment.

If any person residing in this Commonwealth changes his name or assumes another name, unlawfully, he shall be guilty of a Class 3 misdemeanor.

(Code 1950, § 8-577.1; 1956, c. 402; 1973, c. 401; 1976, c. 115; 1977, c. 624.)

Cross references. - As to civil proceedings for change of name, see § 8.01-217 .

Research References. - Virginia Forms (Matthew Bender). No. 5-1603 Petition to Change Name, et seq.

Michie's Jurisprudence. - For related discussion, see 13B M.J. Names, § 6.

§ 18.2-505. Preparation, etc., of papers to be submitted for academic credit.

  1. No person shall prepare, cause to be prepared or sell any term paper, thesis, dissertation or other written material for another person, for profit, with the knowledge, or under circumstances in which he should reasonably have known, that such term paper, thesis, dissertation or other written material is to be submitted by any other person for academic credit at any public or private institution of higher education in the Commonwealth.
  2. No person shall make or disseminate, with the intent to induce any other person to enter into any obligation relating thereto, any statement, written or oral, that he will prepare or cause to be prepared, any term paper, thesis, dissertation or other written material, to be sold for profit, for or on behalf of any person who has been assigned the written preparation of such term paper, thesis, dissertation or other written material for academic credit at any public or private institution of higher education in the Commonwealth.

    (Code 1950, § 18.1-371.1; 1974, c. 342; 1975, cc. 14, 15.)

Editor's note. - At the direction of the Virginia Code Commission, "institution of higher education in the Commonwealth" was substituted for "college, university or other institution of higher learning in this Commonwealth" in subsections (a) and (b) to conform to Acts 2016, c. 588.

§ 18.2-506. "Person" and "prepare" defined.

  1. As used in this article, "person" means any individual, partnership, corporation or association.
  2. As used in this article, "prepare" means to put into condition for intended use. "Prepare" does not include the mere typing or assembling of papers, nor the mere furnishing of information or research.

    (Code 1950, § 18.1-371.2; 1974, c. 342; 1975, cc. 14, 15.)

§ 18.2-507. Injunctions against violation of § 18.2-505.

Whenever an institution of higher education in the Commonwealth shall duly file a civil action in the circuit court of any county or city against any person alleging violations of the provisions of § 18.2-505 , and praying that such party defendant be restrained and enjoined from continuing the acts complained of, such court shall have jurisdiction to hear and determine the issues involved, to issue injunctions pendente lite and permanent injunctions and to decree damages and costs of suit, including reasonable counsel fees to complainants' counsel.

(Code 1950, § 18.1-371.3; 1974, c. 342; 1975, cc. 14, 15; 2005, c. 681.)

Editor's note. - At the direction of the Virginia Code Commission, "an institution of higher education in the Commonwealth" was substituted for "a college, university or other institution of higher learning in this Commonwealth" in text of this section to conform to Acts 2016, c. 588.

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, substituted "a civil action" for "a bill in chancery."

§ 18.2-508. Penalties.

Any person found guilty of violating any provision of § 18.2-505 shall be guilty of a misdemeanor and shall be punished by a fine not to exceed $1,000.

(Code 1950, § 18.1-371.4; 1974, c. 342; 1975, cc. 14, 15.)

§ 18.2-509. Employment of lights under certain circumstances.

Any person in any motor vehicle or otherwise who, between a half hour after sunset on any day and a half hour before sunrise the following day, employs a light attached to such vehicle, or employs a spotlight to cast a light beyond the surface of the roadway upon any poultry house or other building inhabited by animals that causes such animals to panic or become injured, except upon his own land or upon private land on which he has permission, shall be guilty of a Class 4 misdemeanor.

(1976, c. 332.)

§ 18.2-510. Burial or cremation of animals or fowls which have died.

When the owner of any animal or grown fowl which has died knows of such death, such owner shall forthwith have its body cremated or buried or request such service from an officer or other person designated for the purpose. If the owner fails to do so, any judge of a general district court, after notice to the owner if he can be ascertained, shall cause any such dead animal or fowl to be cremated or buried by an officer or other person designated for the purpose. Such officer or other person shall be entitled to recover of the owner of every such animal or fowl that is cremated or buried the actual cost of the cremation or burial and a reasonable fee to be recovered in the same manner as officers' fees are recovered, free from all exemptions in favor of such owner. Any person violating the provisions of this section shall be guilty of a Class 4 misdemeanor.

Nothing in this section shall be deemed to require the burial or cremation of the whole or portions of any animal or fowl which is to be used for food or in any commercial manner.

This section shall not apply to any county until the governing body thereof shall adopt the same.

(Code 1950, § 32-70; 1979, c. 716; 1981, c. 578; 2008, c. 345.)

The 2008 amendments. - The 2008 amendment by c. 345 rewrote the first and second sentences which read: "When the owner of any animal or grown fowl which has died knows of such death, such owner shall forthwith have its body cremated or buried, and, if he fails to do so, any judge of a general district court, after notice to the owner if he can be ascertained, shall cause any such dead animal or fowl to be cremated or buried by an officer or other person designated for the purpose. Such officer or other person shall be entitled to recover of the owner of every such animal so cremated or buried the actual cost of the cremation or burial, not to exceed seventy-five dollars, and of the owner of every such fowl so cremated or buried the actual cost of the cremation or burial, not to exceed five dollars, to be recovered in the same manner as officers' fees are recovered, free from all exemptions in favor of such owner" in the first paragraph.

§ 18.2-511. Sale of certain military grave markers prohibited.

Any person who sells or offers for sale any military grave marker of one or more deceased persons who served in the military service of the Commonwealth, the United States, or any of the states thereof, shall be assessed a $100 civil penalty payable to the Literary Fund.

The provisions of this section shall not apply to the sale or offer for sale of such grave marker if it was (i) conveyed with real property to which it remains affixed, (ii) sold or offered for sale following manufacture or fabrication and prior to initial installation or dedication, or (iii) lawfully acquired.

(2004, c. 299.)

Editor's note. - Acts 2004, c. 299, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 2005."

§ 18.2-511.1. Smoking in proximity to a medical oxygen source in a health care facility; penalty.

Any person who smokes or uses an open flame within 25 feet of a medical oxygen source in a health care facility, as defined in § 15.2-2820 , when the area is posted as an area where smoking and open flame are prohibited is guilty of a Class 2 misdemeanor.

(2007, c. 430; 2009, cc. 153, 154.)

Editor's note. - Acts 2009, cc. 153 and 154, cl. 3 provides: "That the provisions of this act shall become effective on December 1, 2009."

The 2009 amendments. - The 2009 amendment by cc. 153 and 154, effective December 1, 2009, are identical and substituted " § 15.2-2820 " for " § 15.2-2800 ."

Law review. - For 2007 annual survey article, "Health Care Law," see 42 U. Rich. L. Rev. 441 (2007).

Chapter 13. Virginia Racketeer Influenced and Corrupt Organization Act.

Sec.

§ 18.2-512. Short title.

This chapter may be cited as the "Virginia Racketeer Influenced and Corrupt Organization (RICO) Act."

(2004, cc. 883, 996.)

The numbers of §§ 18.2-512 to 18.2-517 were assigned by the Virginia Code Commission, the numbers in the 2004 act having been §§ 18.2-511 to 18.2-516 .

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

§ 18.2-513. Definitions.

As used in this chapter:

"Criminal street gang" means the same as that term is defined in § 18.2-46.1 .

"Enterprise" includes any of the following: sole proprietorship, partnership, corporation, business trust, criminal street gang, or other group of three or more individuals associated for the purpose of criminal activity.

"Proceeds" means the same as that term is defined in § 18.2-246.2 .

"Racketeering activity" means to commit, attempt to commit, or conspire to commit or to solicit, coerce, or intimidate another person to commit two or more of the following offenses: Article 2.1 (§ 18.2-46.1 et seq.) of Chapter 4, § 18.2-460 ; a felony offense of § 3.2-4212, 3.2-4219, 10.1-1455 , 18.2-31 , 18.2-32 , 18.2-32.1 , 18.2-33 , or 18.2-35 , Article 2.2 (§ 18.2-46.4 et seq.) of Chapter 4, § 18.2-47 , 18.2-48 , 18.2-48.1 , 18.2-49 , 18.2-51 , 18.2-51.2 , 18.2-52 , 18.2-53 , 18.2-55 , 18.2-58 , 18.2-59 , 18.2-77 , 18.2-79 , 18.2-80 , 18.2-89 , 18.2-90 , 18.2-91 , 18.2-92 , 18.2-93 , or 18.2-95 , Article 4 (§ 18.2-111 et seq.) of Chapter 5, Article 1 (§ 18.2-168 et seq.) of Chapter 6, § 18.2-178 or 18.2-186 , Article 6 (§ 18.2-191 et seq.) of Chapter 6, Article 9 (§ 18.2-246.1 et seq.) of Chapter 6, § 18.2-246.13 , Article 1 (§ 18.2-247 et seq.) of Chapter 7, § 18.2-279 , 18.2-286.1 , 18.2-289 , 18.2-300 , 18.2-308.2 , 18.2-308.2 :1, 18.2-32 8, 18.2-346 , 18.2-346 .01, 18.2-348 , 18.2-348.1 , 18.2-349 , 18.2-35 5, 18.2-356 , 18.2-357 , 18.2-357.1 , 18.2-368 , 18.2-369 , or 18.2-374.1 , Article 8 (§ 18.2-433.1 et seq.) of Chapter 9, Article 1 (§ 18.2-434 et seq.) of Chapter 10, Article 2 (§ 18.2-438 et seq.) of Chapter 10, Article 3 (§ 18.2-446 et seq.) of Chapter 10, Article 1.1 (§ 18.2-49 8.1 et seq.) of Chapter 12, § 3.2-6571, 18.2-51 6, 32.1-314 , 58.1-1008.2 , 58.1-1017 , or 58.1-1017.1 ; or any substantially similar offenses under the laws of any other state, the District of Columbia, or the United States or its territories.

(2004, cc. 883, 996; 2008, c. 681; 2009, cc. 662, 847; 2013, c. 626; 2015, cc. 690, 691; 2019, cc. 458, 617; 2021, Sp. Sess. I, c. 188.)

The 2008 amendments. - The 2008 amendment by c. 681, under the definition for "Racketeering activity," inserted "3.1-796.124" preceding "18.2-516" near the end of the paragraph, and made stylistic changes.

The 2009 amendments. - The 2009 amendment by c. 662, inserted "18.2-59," "18.2-348," "18.2-356," and "18.2-368" in the definition of "Racketeering activity."

The 2009 amendment by c. 847, in the definition of "Racketeering activity," inserted "3.2-4212, 3.2-4219," " § 18.2-246.13 ," and "58.1-1008.2."

The 2013 amendments. - The 2013 amendment by c. 626 inserted "or 58.1-1017.1 " and made a related change.

The 2015 amendments. - The 2015 amendments by cc. 690 and 691 are identical and inserted "18.2-357.1" in the definition of "Racketeering activity."

The 2019 amendments. - The 2019 amendment by c. 458, in the definition of "Racketeering activity," inserted "18.2-348.1"; and made stylistic changes.

The 2019 amendment by c. 617, in the definition of "Racketeering activity," inserted "18.2-346" and "18.2-349" to the list of offenses; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in the definition for "Racketeering activity."

§ 18.2-514. Racketeering offenses.

  1. It shall be unlawful for an enterprise, or for any person who occupies a position of organizer, supervisor, or manager of an enterprise, to receive any proceeds known to have been derived directly from racketeering activity and to use or invest an aggregate of $10,000 or more of such proceeds in the acquisition of any title to, or any right, interest, or equity in, real property, or in the establishment or operation of any enterprise.
  2. It shall be unlawful for any enterprise, or for any person who occupies a position of organizer, supervisor, or manager of an enterprise, to directly acquire or maintain any interest in or control of any enterprise or real property through racketeering activity.
  3. It shall be unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through racketeering activity.
  4. It shall be unlawful for any person to conspire to violate any of the provisions of subsection A, B, or C.
  5. Each violation of this section is a separate and distinct felony punishable in accordance with § 18.2-515 . (2004, cc. 883, 996; 2009, c. 847.)

The 2009 amendments. - The 2009 amendment by c. 847 added subsections C and D; and redesignated former subsection C as subsection E.

CASE NOTES

Cause of action not stated. - District court properly dismissed attorney's federal and state RICO claims and business conspiracy claim because his claims were not plausible and he failed to present factual content to support finding that enterprise or conspiracy existed. Rodriguez v. Doe,, 2013 U.S. App. LEXIS 24613 (4th Cir. Dec. 11, 2013).

§ 18.2-515. Criminal penalties; forfeiture.

  1. Any person or enterprise convicted of engaging in activity in violation of the provisions of § 18.2-514 is guilty of a felony punishable by imprisonment for not less than five years nor more than 40 years and a fine of not more than $1 million. A second or subsequent offense shall be punishable as a Class 2 felony and a fine of not more than $2 million. The court may order any such person or enterprise to be divested of any interest in any enterprise or real property identified in § 18.2-514 ; order the dissolution or reorganization of such enterprise; and order the suspension or revocation of any license, permit, or prior approval granted to such enterprise or person by any agency of the Commonwealth or political subdivision thereof.
  2. All property, real or personal, including money, together with any interest or profits derived from the investment of such money, used in substantial connection with, intended for use in the course of, or traceable to, conduct in violation of any provision of § 18.2-514 is subject to civil forfeiture to the Commonwealth. The forfeiture proceeding shall be conducted pursuant to the provisions of Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2. (2004, cc. 883, 996; 2012, c. 511.)

The 2012 amendments. - The 2012 amendment by c. 511 inserted "together with any interest or profits derived from the investment of such money," in the first sentence of subsection B.

§ 18.2-516. Prohibition of illegal money transmitting.

  1. Any person who controls, manages, or owns all or part of an enterprise, engaged in money transmission as defined in § 6.2-1900 , and transmits money, which he knows or should have known was derived from or traceable to racketeering activity, is guilty of a Class 6 felony.
  2. All property, real or personal, including money, used in substantial connection with, intended for use in the course of, or traceable to, conduct in violation of any provision of subsection A is subject to civil forfeiture to the Commonwealth. The forfeiture proceeding shall be conducted pursuant to the provisions of Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2. (2004, cc. 883, 996.)

Editor's note. - In subsection A, " § 6.2-1900 " was substituted for " § 6.1-370," effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts 2010, c. 794.

§ 18.2-517. Venue for prosecution.

For the purposes of venue, any violation of this chapter shall be considered to have been committed in any county or city:

  1. In which any act was performed in furtherance of any course of conduct that violates this chapter;
  2. That is the principal place of the enterprise in the Commonwealth;
  3. In which any offender had control or possession of any proceeds of a violation of this chapter, or of any records, or any other material or objects, which were used in furtherance of a violation;
  4. In which any offender resides; or
  5. Any place of venue under Article 2 (§ 19.2-244 et seq.) of Chapter 15 of Title 19.2. (2004, cc. 883, 996.)