COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
DOUGLAS BRUCE SEIBERT
v. Record No. 0138-95-4 OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA MARCH 12, 1996
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Joseph W. Kaestner (Brian R. Pitney; Kaestner &
Pitney, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Appellant, Douglas Bruce Seibert, was arrested on three
warrants, each charging him with conduct occurring over a three
month period. The charges set forth in the warrants were
certified to the grand jury. However, instead of seeking
indictments against Seibert based on the certified charges, the
Commonwealth sought, and the grand jury returned, thirty-five
direct indictments reflecting more specifically the conduct
Seibert had engaged in during the three month period. The direct
indictments alleged twenty-six counts of producing sexually
explicit material, three counts of carnal knowledge, three counts
of aggravated sexual battery, and three counts of indecent
liberties. The Commonwealth tried Seibert on the direct
indictments, and the jury convicted Seibert on thirty-two of
them.
On appeal, Seibert contends that the trial court erred in
allowing the Commonwealth to prosecute him on the direct
indictments rather than on the charges certified to the grand
jury. Alternatively, Seibert argues that, by directly indicting
him, the Commonwealth violated his right to a preliminary hearing
under Code § 19.2-218 1 because he was arrested before he was
indicted. Seibert also contends that the offense of taking
indecent liberties is a lesser included offense of aggravated
sexual battery and that the evidence was insufficient to support
separate convictions. Finding Seibert's arguments without merit,
we affirm his convictions.
I
The decision in Waye v. Commonwealth, 219 Va. 683, 251
S.E.2d 202, cert. denied, 442 U.S. 924 (1979), is dispositive.
In Waye, the defendant argued that
through a "manipulative procedure" employed
by the Commonwealth's Attorney, he was
improperly denied a preliminary hearing on
the charge of capital murder. He was
originally detained, the defendant says, on a
non-capital charge of first degree murder,
1
Code § 19.2-218 provides:
No person who is arrested on a charge of
felony shall be denied a preliminary hearing
upon the question of whether there is
reasonable ground to believe that he
committed the offense and no indictment shall
be returned in a court of record against any
such person prior to such hearing unless such
hearing is waived in writing by the accused.
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was granted a preliminary hearing on that
charge, and was certified to the grand jury.
Then, however, the defendant asserts, the
Commonwealth's Attorney obtained indictments
for both capital murder and first degree
murder and proceeded to trial on the capital
but not the non-capital offense. This
procedure, the defendant maintains,
circumvented his statutory right to a
preliminary hearing on the charge for which
he was ultimately prosecuted.
Id. at 688-89, 251 S.E.2d at 206. However, the Court disagreed,
stating that
Code § 19.2-218 provides that "[n]o person
who is arrested on a charge of felony shall
be denied a preliminary hearing . . . ."
(Emphasis added.) The defendant was not
arrested on the charge of capital murder; he
was indicted on that charge directly by the
grand jury. The procedure employed in
obtaining the indictment was not
manipulative, and it did not work a denial of
any statutory right to which the defendant
was entitled.
Id. at 689, 251 S.E.2d at 206 (citing Webb v. Commonwealth, 204
Va. 24, 30-31, 129 S.E.2d 22, 27-28 (1963) (preliminary hearing
not necessary where indictment found against defendant by grand
jury)). As in Waye, Seibert was directly indicted for charges
distinct from those on which he was arrested but which arose out
of the same course of events. Seibert was never arrested on any
of the felonies for which he was ultimately tried. Seibert's
arguments that the Commonwealth was required to prosecute on the
certified charges and that, in seeking direct indictments, the
Commonwealth denied him the right to a preliminary hearing, are
without merit.
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II
Seibert also argues that his convictions for taking indecent
liberties under Code § 18.2-370.1 2 should be reversed on the
ground that these offenses are lesser included offenses of
aggravated sexual battery under Code § 18.2-67.3. 3
2
Code § 18.2-370.1 states, in part:
Any person eighteen years of age or older who
maintains a custodial or supervisory
relationship over a child under the age of
eighteen . . . and is not legally married to
such child, and who, with lascivious intent,
knowingly and intentionally . . . (ii)
proposes to such child the performance of an
act of sexual intercourse or any act
constituting an offense under § 18.2-361
[sodomy], or . . . (iv) proposes that any
such child expose his or her sexual or
genital parts to such person, or . . . (vi)
sexually abuses the child as defined in
§ 18.2-67.10(6), shall be guilty of a Class
6 felony.
3
Code § 18.2-67.3 states, in part:
A. An accused shall be guilty of aggravated
sexual battery if he . . . sexually abuses
the complaining witness, and
* * * * * * *
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"A lesser included offense is an offense which is composed
entirely of elements that are also elements of the greater
offense." Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382
S.E.2d 279, 283 (1989). In other words, "[a]n offense is not a
lesser included offense of another if each offense contains an
element that the other does not." Walker v. Commonwealth, 14 Va.
App. 203, 206, 415 S.E.2d 446, 448 (1992). "Thus, in order for
one crime to be a lesser included offense of another crime, every
commission of the greater offense must also be a commission of
the lesser." Kauffmann, 8 Va. App. at 409, 382 S.E.2d at 283.
"The determination of what offenses are necessarily included
lesser offenses of the crime charged is based on the fundamental
nature of the offenses involved, not on the particular facts of a
specific case . . . ." Taylor v. Commonwealth, 11 Va. App. 649,
652, 400 S.E.2d 794, 795 (1991). In applying the test, the
offenses are examined in the abstract rather than with reference
to the facts of the particular case under review. Blythe v.
Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981).
(..continued)
2. The act is accomplished against the
will of the complaining witness, by force,
threat or intimidation, or through the use of
the complaining witness's mental incapacity
or physical helplessness, and
a. The complaining witness is at least
thirteen but less than fifteen years of age
. . . .
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All the elements of the crime of taking indecent liberties
are not included in the crime of aggravated sexual battery. Only
individuals over age eighteen who maintain a custodial
relationship with the victim can be convicted of taking indecent
liberties. Thus, the commission of aggravated sexual battery by
a person under age eighteen would not constitute the crime of
taking indecent liberties. This distinction alone is enough to
render aggravated sexual battery and taking indecent liberties
distinct offenses. See Kauffmann, 8 Va. App. at 409-10, 382
S.E.2d at 284 (contributing to the delinquency of a minor
requires the accused be at least eighteen years old, aggravated
sexual battery does not; as such, all the elements of the former
offense are not included within the latter offense).
Additionally, the commission of aggravated sexual assault by
a person not in a custodial relationship with the victim would
not constitute the crime of taking indecent liberties. The
requirement of custodial relationship is not merely a basis for
enhancing punishment, as suggested by Seibert. Under Code
§ 18.2-370.1, the custodial relationship the accused maintains
with respect to the victim is a predicate to guilt. Only those
persons who maintain a custodial relationship with their victim
can be convicted under § 18.2-370.1. Cf. Chaine v. Commonwealth,
17 Va. App. 179, 183-85, 436 S.E.2d 187, 189-90 (1993), aff'd on
reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994) (addressing
Code § 18.2-361).
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III
Finally, Seibert argues that all six of these convictions
(three for taking indecent liberties, three for aggravated sexual
battery) were impermissibly supported by the same conduct.
However, the victim testified that Seibert engaged in the
prohibited conduct every day for three months. The evidence
clearly supports all six convictions.
Accordingly, Seibert's convictions are affirmed.
Affirmed.
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