COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia
ROBERT C. GRAY, S/K/A
ROBERT CHARLES GREY
OPINION BY
v. Record No. 1670-00-1 JUDGE RICHARD S. BRAY
JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Robert C. Gray (defendant) was convicted of taking indecent
liberties with a child, a violation of former Code § 18.1-215. 1
On appeal, defendant contends the trial court erroneously denied
his motion to dismiss the indictment, arguing the prosecution
violated the double jeopardy prohibitions of the United States and
Virginia Constitutions and, further, challenges the sufficiency of
the evidence to support the conviction. Finding no error, we
affirm.
1
Former Code § 18.1-215, in effect at the time of
defendant's alleged misconduct, was repealed in 1975. See 1975
Va. Acts, chs. 14 and 15.
I.
On January 8, 1998, defendant was indicted for "aggravated
sexual battery . . . [i]n violation of Code § 18.2-67.3" 2 and an
attendant jury trial commenced on October 19, 1999. At trial, the
victim, Frances Maggard, recounted events in proof of the
indictment, the Commonwealth rested, and defendant offered no
evidence. Immediately before the jury was instructed, defendant
moved the court to dismiss the indictment because Code § 18.2-67.3
"was not in existence" in 1972, the time of the alleged offense.
In response, the Commonwealth moved to amend the indictment to
charge "taking indecent liberties with children," a violation of
former Code § 18.1-215, which pertained in 1972. Defendant,
however, objected, contending the amendment would allege "a
different crime" with additional elements.
The trial court declined to amend the indictment "because it
would . . . actually charge a different crime." Turning to
defendant's motion to dismiss, the court acknowledged the offense
alleged in the indictment, aggravated sexual battery, "didn't
exist in . . . '72," "there was [then] no such thing," and
2
The indictment, expressly citing Code § 18.2-67.3, alleged
that defendant,
[o]n or about November 1, 1972 to December
1, 1972, sexually abused Frances Maggard,
then 13 years of age, against her will by
force, threat or intimidation, or through
the use of her physical helplessness or
mental incapacity.
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concluded that defendant "can't be found guilty of [the offense]
today." Accordingly, the court granted defendant's motion, "as
[he] was charged under Section 18.2-67.3 . . ., which was not in
existence at the time of the offense in 1972."
Within one month thereafter, the Commonwealth indicted
defendant for "taking indecent liberties with children" in
violation of former Code § 18.1-215, 3 the instant offense.
Defendant promptly moved to dismiss the indictment, maintaining he
had been "put in trial and put in jeopardy" on the aggravated
sexual battery indictment and, therefore, the instant prosecution
"constitute[d] double jeopardy." The court denied the motion, and
proceeded with trial, resulting in the subject conviction and
appeal.
In prosecuting the offense, the Commonwealth relied solely
upon the evidence of the alleged victim, Frances Maggard. Maggard
testified that, when thirteen years of age, she had resided with
defendant and his wife during November and December 1972, while
3
The indictment, citing former Code § 18.1-215, read:
On or about November 1, 1972 to December 1,
1972, being twenty-one years of age or over,
with lascivious intent, knowingly and
intentionally placed or attempted to place,
his hand or hands, or any portion of his
hands upon or against or did in any way or
manner fondle or feel or attempt to fondle
or feel the sexual or genital parts or
breasts of Frances Maggard, a child under
the age of fourteen (14) years to whom he
was not legally married.
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her mother recovered from an illness. "One afternoon" Maggard was
asleep on a couch, and defendant "lifted [her] up," "sat down" and
"laid [her] . . . over his lap." She soon "fell back to sleep"
but was "abruptly awakened" by defendant "rubbing [her] shoulder
and neck" with one hand and her breast with the other.
"[S]hocked," Maggard "sat there for a minute," then "jumped up"
and "got away."
Later that evening, Maggard was "[o]n the floor," "afraid" of
defendant and "pretend[ing] to be asleep," when he "laid down"
beside her and "started rubbing [her] back, . . . buttocks and
legs." "At some point, [Maggard] was turned over" and defendant
placed his "hands . . . between [her] legs, . . . rubbing [her]
crotch, and . . . [her] breasts." Maggard unsuccessfully "tried
to wiggle up" and "kept turning away and trying to push him off."
Finally, the "phone rang" and "as soon as [defendant] answered the
phone, [she] jumped up," "ran back to the bathroom" and "locked
both the doors."
Maggard told no one of defendant's misconduct until she
related the incidents to her sister approximately four years
later. A "long time" thereafter, in "'88 or '89," she reported
the offenses to police. Explaining the delay, Maggard recalled a
feeling of shame for "be[ing] pawed over" and fear "of what [her
father] would do if he found out what had happened."
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II.
Relying upon principles of double jeopardy, defendant first
maintains that dismissal of the original aggravated sexual battery
indictment barred the subject prosecution on an indictment
charging indecent liberties with children, the "same offense."
The Double Jeopardy Clauses of both the United States and
Virginia Constitutions ensure an accused is not "subject for the
same offense to be twice put in jeopardy of life or limb." U.S.
Const. amend. V; see Va. Const. art. I, § 8. The safeguard
"guarantees protection against (1) a second prosecution for the
same offense after acquittal; (2) a second prosecution for the
same offense after conviction; and (3) multiple punishments for
the same offense." Payne v. Commonwealth, 257 Va. 216, 227, 509
S.E.2d 293, 300 (1999) (citations omitted).
In order to make such a defense with
success, the party relying upon it must show
that he has been put upon his trial before a
court which has jurisdiction, upon
indictment or information which is
sufficient in form and substance to sustain
a conviction, and that a jury has been
impaneled and sworn, and thus charged with
his deliverance. Anything short of this, is
insufficient to raise a bar against a new
indictment or prosecution for the same
offense.
Dulin v. Lillard, 91 Va. 718, 722, 20 S.E. 821, 822 (1895)
(citations omitted) (emphasis added). Thus, "[i]t is settled law,
everywhere, that jeopardy means the danger of conviction." Rosser
v. Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933).
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Here, the original indictment, which alleged aggravated
sexual battery, charged defendant with an offense that did not
exist at the time of the misconduct. Accordingly, no valid
conviction could have resulted from the instrument. See Wilder v.
Commonwealth, 217 Va. 145, 148, 225 S.E.2d 411, 414 (1976)
("[B]ecause the indictment found by the grand jury stated no
offense and was invalid, it necessarily follows the trial court
had no power to amend the indictment. The conviction on the
amended indictment was therefore void."). Thus, free from the
spectre of conviction, defendant was not in jeopardy at the first
trial, and the instant prosecution did not offend principles of
double jeopardy. 1 Charles E. Torcia, Wharton's Criminal Law
§ 58 (15th ed. 1993) ("[a] former prosecution is . . . not a bar
where . . . the indictment was void" (citations omitted)).
Moreover, in Johnson v. Commonwealth, 221 Va. 736, 273 S.E.2d
784 (1981), the Supreme Court of Virginia, noting "[d]ismissals of
indictments are granted for a number of reasons," recognized the
distinction "between a dismissal granted pursuant to a legal
defense and a dismissal granted pursuant to a factual defense,"
determining "[t]he latter would qualify as an acquittal for double
jeopardy purposes," while "[a] legal dismissal might not . . . ."
Id. at 743-44, 273 S.E.2d at 789-90 (citing United States v.
Scott, 437 U.S. 82 (1978)). Revisiting the issue in Greenwalt v.
Commonwealth, 224 Va. 498, 297 S.E.2d 709 (1982), the Court again
instructed, "[a] dismissal qualifies as an acquittal for double
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jeopardy purposes when it is granted pursuant to a factual, as
opposed to a legal, defense." Id. at 500, 297 S.E.2d at 710;
Dodson v. Commonwealth, 23 Va. App. 286, 303, 476 S.E.2d 512, 520
(1996).
The instant record clearly demonstrates that the court
dismissed the earlier indictment, on defendant's motion, solely
because the offense allegedly committed in 1972 did not constitute
a violation of Code § 18.2-67.3, a penal statute not enacted by
the General Assembly until 1981. See 1981 Va. Acts, ch. 397.
Inarguably, such dismissal was, therefore, grounded upon a legal
infirmity in the charging instrument, in contrast to an
adjudication of factual issues, a circumstance that excludes the
subsequent prosecution from the constraints of the double jeopardy
prohibition.
III.
Lastly, defendant challenges the sufficiency of the evidence
to support the conviction. In considering his argument, we view
the record, "in the light most favorable to the Commonwealth,
giving it all reasonable inferences fairly deducible therefrom."
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866
(1998) (citation omitted). The credibility of the witnesses, the
weight accorded testimony, and the inferences drawn from proven
facts are matters to be determined by the fact finder. Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The judgment of the trial court will not be disturbed unless
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plainly wrong or unsupported by the evidence. See Code
§ 8.01-680.
At trial, Frances Maggard detailed a visit in defendant's
home during the latter months of 1972, when she was thirteen years
of age. She testified defendant placed her on his lap and
"rubb[ed] [her] shoulder[,] . . . neck" and breast with his hands.
Later the same day, when Maggard, frightened, was feigning sleep
on the floor of the home, defendant "laid down" beside her,
"started rubbing [her] back, . . . buttocks and . . . legs,"
"turned [her] over," placed his "hands . . . between [her] legs,"
and "rubb[ed] [her] crotch" and breasts. Such testimony, if
believed by the fact finder, clearly provided sufficient support
for the conviction.
Accordingly, finding no constitutional bar to the subject
prosecution and sufficient evidence in the record to prove the
offense beyond a reasonable doubt, we affirm the conviction.
Affirmed.
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