dissenting.
The indictments charged that on three specified days the organizations operated bingo games and “award [ed] bingo prize money such that the total amount of bingo jackpot prizes awarded in the calendar day exceeded $1000” in violation of Code § 18.2-340.9(G). That provision of the Bingo and Raffles law reads in pertinent part as follows:
No organization shall award any bingo prize money or any merchandise valued in excess of the following amounts: (i) *689no bingo door prize shall exceed $25, (ii) no regular bingo or special bingo game shall exceed $100, and (iii) no bingo jackpot of any nature whatsoever shall exceed $1,000, nor shall the total amount of bingo jackpot prizes awarded in any one calendar day exceed $1,000.
Code § 18.2-340.9(G).
The practices prohibited by Code § 18.2-340.9(G) are purely statutory. Thus, I agree with the majority that the statutory definition of “jackpot,” Code § 18.2-340.1(5), circumscribes the offense that the indictments charged. I do not agree, however, that the Commonwealth proved beyond a reasonable doubt a violation of the statute.
It can be safely said that in Virginia there is no principle more firmly imbedded in the body of the law, or one that has been more often stated, than the principle that in every criminal case the evidence of the Commonwealth must show, beyond a reasonable doubt, every material fact necessary to establish the offense for which a defendant is being tried. This burden of proof never shifts. “[A]ny rule of state law which has the ultimate effect of shifting the burden of persuasion to the accused upon [a] critical issue is constitutionally infirm.”
McGhee v. Commonwealth, 219 Va. 560, 561-62, 248 S.E.2d 808, 810 (1978) (citation omitted).
Nothing in the statutes states that the lawful practice specified in Code § 18.2-340.9(H) is an affirmative defense to be borne by the organization when it is prosecuted for violation of the Bingo and Raffles laws.4 Indeed, the lawful practice is specifically con*690tained in the text of the statute that lists the prohibited practices, Code § 18.2-340.9, and is specifically designated as a subsection of that statute. This placement of the lawful practice within the statute that defines the offenses mandates the conclusion that disproof of the lawful practice is an element of the offense. In other jurisdictions, courts have addressed this principle as follows:
In a few instances, such as here, the negation of what is facially a statutory exception is so necessary to a true definition of the offense that the elements of the crime are not fully stated without negation of the “exception.” Stated another way, an essential element of a criminal offense is not always expressed in the statutory section defining the offense, but in a few instances may include the negation of an exception to the offense.
State v. Young, 406 S.E.2d 758, 774 (W. Va. 1991). See also State v. Ingram, 488 A.2d 545, 546-47 (N.J. 1985).
The failure to prove that the game was not operated in accordance with Code § 18.2-340.9(H) was a failure to prove “every fact necessary to constitute the crime with which [the defendants were] charged.” In re Winship, 397 U.S. 358, 364 (1970). The game practice described by Code § 18.2-340.9(H) is not a mitigating circumstance but rather an explanation of a practice that is not prohibited. Where the legislature has by statute allowed in some circumstances the payment of a larger prize to be lawful and in others unlawful, the prosecutor bears the burden of proving the distinguishing factor.
For the Commonwealth to prove a violation of Code § 18.2-340.9, it must prove that the practices violate all the elements as statutorily mandated. Proof that a defendant violated Code § 18.2-340.9(G) can only be shown by negating the practice permitted by Code § 18.2-340.9(H). Thus, the absence of the practice that is permitted by Code § 18.2-340.9(H) is an element of the statutory offenses prohibited by Code § 18.2-340.9(G).
Moreover, the practice that is permitted by Code § 18.2-340.9(H) is not subjective. Whether the games are operated in a *691manner consistent with the statute can be ascertained by objective measures. To facilitate enforcement of the statutes, the legislature by statute has required organizations that operate bingo games and raffles to file financial reports and maintain itemized written records of receipts and prizes paid on each day that games are operated. The evidence proved that the City of Martinsville audited the financial records as required by Code §§ 18.2-340.6 and 18.2-340.7. The City’s director of finance testified that he had conducted the required audits of the reports that are required to be filed and sent letters to the organizations stating that they were in compliance with the bingo section. He further testified that both organizations had always been in substantial compliance during the period that he had audited their records. The Commonwealth’s evidence did not prove otherwise and failed to prove beyond a reasonable doubt violation of the statute.
For these reasons, I would reverse the convictions.
At the time pertinent to the charged offense, Code § 18.2-340.9(H) read in pertinent part as follows:
Any bingo game in which all the gross receipts from players for that game are paid as prize money back to the players shall not be subject to the limitations of subdivision G of this section, but there shall not be more than one such game per calendar day of play and the prize money from any such game shall not exceed $1,000.
Although the appellants in this case state that Code § 18.2-340.9(H) creates an affirmative defense to Code § 18.2-340.9(G), this Court is not required to adhere to the erroneous legal conclusions of the parties. Moreover, however one chooses to label Code § 18.2-340.9(H), appellants’ brief to this Court contends that the Commonwealth failed to meet its burden of production and burden of persuasion regarding Code § 18.2-340.9(H). Only *690if that Code section constitutes an element of the offense charged must the Commonwealth bear both of those burdens. Mullaney v. Wilbur, 421 U.S. 684, 702-03 (1975).