COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia
JERRY SANDERS FONTAINE
OPINION BY
v. Record No. 2032-95-3 JUDGE SAM W. COLEMAN III
JULY 8, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
B. A. Davis, III, Judge
Henry G. Crider for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The defendant, Jerry Fontaine, was indicted on one count of
attempted malicious wounding and one count of leaving the scene
of an accident in which a person was injured in violation of Code
§ 46.2-894. 1 The trial court, sitting without a jury, found the
defendant guilty of two misdemeanors, assault and leaving the
1
Code § 46.2-894 states, in pertinent part:
The driver of any vehicle involved in an
accident in which a person is killed or
injured or in which an attended vehicle or
other attended property is damaged shall
immediately stop . . . and report his name,
address, driver's license number, and vehicle
registration number forthwith to the State
Police or local law-enforcement agency, to
the person struck and injured if such person
appears to be capable of understanding and
retaining the information, or to the driver
or some other occupant of the vehicle
collided with or to the custodian of other
damaged property. The driver shall also
render reasonable assistance to any person
injured in such accident . . . .
scene of an accident involving property damage in violation of
Code § 46.2-894. 2
The defendant appeals only the conviction of leaving the
scene of an accident involving property damage, commonly referred
to as "hit and run property damage." He contends that the
evidence was insufficient because it failed to prove that
property was damaged as a result of the accident.
The Commonwealth argues that the defendant is barred by Rule
5A:18 from raising the issue on appeal because he failed to make
a motion to strike the evidence in the trial court. The
Commonwealth also contends that the defendant acquiesced in the
trial court's ruling that adjudged him guilty of a misdemeanor
rather than the charged felony. On the merits, the Commonwealth
argues that the evidence was sufficient to prove hit and run
property damage and, alternatively, because the evidence proved
personal injury and because hit and run property damage is a
lesser included offense of hit and run personal injury, the
evidence was sufficient to prove the lesser offense.
We hold that the defendant preserved for appeal the issue of
2
Code § 46.2-900 provides:
Any person convicted of violating the
provisions of §§ 46.2-894 through 46.2-897
shall, if such accident results in injury to
or the death of, any person, be guilty of a
Class 6 felony. If such accident results
only in damage to property, the person so
convicted shall be guilty of a Class 1
misdemeanor . . . .
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whether the evidence was sufficient to support the conviction for
hit and run property damage. He did so by filing a motion to set
aside the verdict in which he assigned the specific reason that
the evidence failed to prove that property was damaged. We
further hold that the defendant did not, on these facts,
acquiesce in being adjudged guilty of the misdemeanor offense or
invite the trial judge to treat the charge as a misdemeanor.
Finally, we hold that hit and run property damage is not a lesser
included offense of hit and run personal injury. Because the
defendant was not charged with or tried for the offense of hit
and run property damage, the trial court erred in finding him
guilty of that misdemeanor offense. Accordingly, we reverse the
conviction for hit and run property damage.
BACKGROUND
Viewing the evidence in the light most favorable to the
Commonwealth as the party prevailing at trial, the evidence
proved that the complaining witness, William Gaddy, had agreed to
repair the defendant's wife's automobile. Approximately two
weeks after Gaddy began the repairs, the defendant went to the
farm where Gaddy was repairing the car to check on the progress.
An argument ensued, during which Gaddy picked up a shovel and
the defendant picked up a tire iron. Gaddy testified that during
a "scuffle" that occurred, he turned to avoid a fight and walked
down the road. He heard the defendant's car start and heard it
coming toward him. Gaddy said that he attempted to get out of
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the way, but the driver's side of the defendant's car struck him
on the lower buttocks and spun him around. His left arm got
caught on the driver's side mirror, and he was thrown to the
ground. Gaddy testified that he had injuries to his arm and
chest and bruises to his knees and head, for which he received
treatment at a hospital.
James Mebane and Jean Nelson testified that Gaddy came to
their home to call an ambulance after the incident. Both
testified that Gaddy was holding his arm as if it had been
injured. Neither had witnessed the altercation between the two
men.
Trooper Donnie Richardson, who investigated the incident and
interviewed Gaddy at the hospital, testified that Gaddy was
holding his arm and complaining of pain during the interview.
Trooper Richardson then went to the defendant's home where he
observed the defendant's car. He testified that the car "looked
as though something had brushed against the left front bumper."
He observed that the driver's side mirror was pulled loose and
the driver's side window was broken.
At the conclusion of the evidence, the trial judge announced
that he intended to convict the defendant of leaving the scene of
an accident involving property damage, presumably as a lesser
included offense of the charged crime of leaving the scene of an
accident involving personal injury. 3 The following colloquy took
3
Code § 46.2-900 provides that a driver who leaves the
scene of an accident with personal injury shall be guilty of a
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place:
THE COURT: Gentlemen, at best it's
confusion. . . . Mr. Gaddy has absolutely no
credibility, not the slightest. The
Commonwealth's case rises and falls with the
testimony of James Mebane and Jean Nelson. I
was impressed with Ms. Nelson. She had no
reason that I'm aware of to testify to
anything other than what she did testify to.
And that was the defendant, by his
admissions, involved himself in this
allegation [sic] . . . . I'm going to find
the Defendant guilty of an assault and guilty
of leaving the scene of an accident involving
property damage.
DEFENSE COUNSEL: Two misdemeanors, Judge.
THE COURT: I found the Defendant guilty of
assault and leaving the scene of an accident
involving property damage. . . .
Although the defendant objected at trial that the evidence
was insufficient to convict him of hit and run personal injury,
he raised no objection when the judge found him guilty of hit and
run property damage. At trial, he made no claim that the
evidence failed to prove that property had been damaged. After
trial, the defendant filed a timely motion to set aside the
verdict for hit and run property damage on the ground that the
evidence was insufficient to prove that property had been
damaged. The trial judge denied the motion to set aside, and
this appeal followed.
ANALYSIS
(..continued)
Class 6 felony, and a person who leaves the scene of an accident
involving property damage shall be guilty of a Class 1
misdemeanor. See fn. 2.
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I. Procedural Bar
Generally, the sufficiency of the evidence to support a
conviction may be challenged by a motion to set aside the
verdict, even where no motion to strike the evidence was filed at
trial. See McGee v. Commonwealth, 4 Va. App. 317, 321, 357
S.E.2d 738, 739-40 (1987); Rule 3A:15(b). The motion to set
aside must set forth the specific objections to the sufficiency
of the evidence. Floyd v. Commonwealth, 219 Va. 575, 584, 249
S.E.2d 171, 176 (1978).
Here, the motion to set aside the verdict specifically
alleged that the evidence was insufficient to prove property
damage as a necessary element of the offense for which the
defendant was convicted. Thus, the defendant's motion to set
aside the verdict on the ground that the evidence was
insufficient to prove a necessary element of the offense was
timely and sufficiently specific to satisfy the Rule 5A:18
requirement.
Next, we consider the Commonwealth's claim that the
defendant concurred in the trial court's disposition. Relying
upon Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d
613, 615 (1992), the Commonwealth contends that the defendant
acquiesced in being found guilty of a less serious crime than the
felony with which he was charged and should not be heard to
complain. "The defendant, having agreed upon the action taken by
the trial court, should not be allowed to assume an inconsistent
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position." Clark v. Commonwealth, 220 Va. 210, 214, 257 S.E.2d
784, 792 (1979), cert. denied, 444 U.S. 1049 (1980) (citing
Commonwealth v. Beavers, 150 Va. 33, 142 S.E. 402 (1928)). By
inquiring whether the judge was convicting him of two
misdemeanors, the defendant did not agree, acquiesce, or invite
the trial judge's actions. At most, the defendant was seeking
clarification that the convictions were for misdemeanors. Where
the defendant asks for a reduced or less serious disposition of a
felony charge, a different result will obtain. See Manns, 13 Va.
App. at 679-80, 414 S.E.2d at 615. Such was not the situation
here. The defendant did not acquiesce in being found guilty of
hit and run property damage and nothing that he did earlier was
inconsistent with his motion to set aside the verdict.
II. Merits
We turn to whether the evidence was sufficient to support
the conviction. The Commonwealth's argument is twofold: first,
hit and run property damage is a lesser included offense of hit
and run personal injury and, therefore, because the evidence is
sufficient to prove the greater offense, it necessarily proves
the lesser offense; and second, the evidence is sufficient to
prove property damage. We first address the "lesser included"
argument because, not only is it crucial to the Commonwealth's
sufficiency argument, but, more importantly it is critical to the
determination of whether the trial court had jurisdiction to find
the defendant guilty of an offense not directly charged in the
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indictment.
Whether one offense is a lesser included offense of the
other depends upon whether the elements of the greater offense
necessarily include all elements of the lesser. "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). "An 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). "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).
Hit and run property damage by definition contains an
element that is not included among the elements of hit and run
personal injury. The former requires proof of property damage
and the latter does not. Proof of personal injury does not
necessarily prove property damage. The elements of proof of
property damage and personal injury are distinctly different.
Thus, hit and run property damage is not a lesser included
offense of hit and run personal injury. Therefore, we reject the
premise underlying the Commonwealth's argument that the evidence
was sufficient to support the conviction because proof of the
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charged offense was necessarily sufficient to prove the lesser
included offense.
By convicting the defendant of an offense that was not
lesser included and that was not charged, the trial court
exceeded its authority. The indictment did not charge the
defendant generally with hit and run in violation of Code
§ 46.2-894. Instead, it specifically charged hit and run
personal injury. Thus, the Commonwealth charged the defendant
with one offense and found him guilty of another. "The state may
not accuse a person of one crime and convict him by proving
another unless the offense is a lesser included one of that
charged." Harrell v. Commonwealth, 11 Va. App. 1, 6, 396 S.E.2d
680, 682 (1990). The fact that the defendant did not object to
or appeal the conviction on the ground that he was convicted for
an offense with which he was not charged is of no moment. Unless
an indictment is amended to conform to the proof, see Code
§ 19.2-231, or an accused acquiesces in being found guilty of an
offense other than the one charged, Manns, 13 Va. App. at 679-80,
414 S.E.2d at 615, a trial court lacks the authority to find an
accused guilty of an offense other than the one charged or a
lesser included offense. Cf. Council v. Smyth, 201 Va. 135, 139,
109 S.E.2d 116, 119-20 (1959) ("The underlying question in habeas
corpus proceedings is directed to whether an indictment is so
fatally defective and void that the court in which the petitioner
was convicted did not have jurisdiction of the person and crime
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charged and if the court had jurisdiction to render the
particular judgment."). The trial court lacked authority to
convict the defendant for an offense not charged, absent an
amendment to the indictment or acquiescence by the defendant.
The lack of authority of the trial court to render the judgment
that it did may be raised at any time and by this Court on its
own motion. See Morrison v. Bestler, 239 Va. 166, 170, 387
S.E.2d 753, 756 (1990). Accordingly, because hit and run
property damage was not a charged or lesser included offense, the
trial court lacked authority to convict the accused of that
offense. Thus, we reverse the conviction and find it unnecessary
to address whether the evidence was sufficient to prove the
uncharged offense.
Reversed and dismissed.
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