*1 original May a.m., DUI arrest on at 2:24 for an He, therefore, committed at 2:04 a.m. does not dis- pute the attendant compliance with Code 18.2-268.2 and related statutes in testing the alcohol content of his breath. Accordingly, defendant’s consent to the test properly implied by statute, thereby rendering the resulting certificate of analysis admissible evidence in the instant prosecution, notwithstanding subsequent termination original of the war- rant nolle prosequi
We, therefore, affirm the conviction.
Affirmed.
COMMONWEALTH of Record No. 0340-01-2. Appeals
Court of Virginia,
Richmond. July *2 (William Jr.; Blandford, Blandford, R. Newlon, & Carrico P.C., brief), appellant. for Appellant submitting on brief. Shaffer,
H. Elizabeth Attorney Assistant (Randolph General Beales, Attorney General, A. on brief), appellee. BENTON,
Present: HUMPHREYS, ANNUNZIATA and *3 JJ. HUMPHREYS,
ROBERT J. Judge. Ragsdale conviction, Richard Lee appeals his a after bench trial, minor, for carnal of a in violation Code § 18.2-63. Ragsdale contends the trial court in refusing erred grant to his motion- to on grounds dismiss the the charge against violated his right double as jeopardy by secured the Fifth Amendment to the United States by Constitution and I, Article Section 8 of Virginia the Constitution. Ragsdale further contends the trial court erred in finding child, 18.2-63, § of a pursuant to Code is not a lesser-included offense of rape, § under In Code 18.2-61. the alternative, Ragsdale argues the trial court in finding erred the evidence sufficient support as a matter of law to the conviction.
I. BACKGROUND 7, 1999, September On Nottoway County a grand jury Ragsdale C.W., 26, 1999, indicted the April trial, Ragsdale’s § Prior he filed violation of Code 18.2-61.1 to him, that, charges alleging motion against a to dismiss the 19.2-243, § five than months had pursuant to Code more At his trial probable the determination cause.2 passed since to Commonwealth consented the on December the charge against the motion to dismiss and the court dismissed on the of the Commonwealth’s Ragsdale, prejudice, with basis statutory speedy requirements failure with trial comply to the § of Code 19.2-243. January Ragsdale was indicted the Circuit
On carnally Nottoway County felony Court of for the offense force, C.W., a child use of fourteen knowing, § age, in violation 18.2-63.3 The date of was Code rape charge. listed for the same date 18.2-61(A) § 1. Code states: complaining witness any person If has sexual intercourse with a who witness, spouse complaining a or her causes whether or not his or spouse, engage any her intercourse with other his or (i) accomplished against complaining person and such act is will, force, by against threat or intimidation of or witness’s (ii) person, through the use of the complaining witness or another or incapacity physical helplessness, complaining witness’s mental or victim, (iii) age child thirteen or she shall be with a he rape. guilty of provides, pertinent part: §
2. Code 19.2-243 general probable district court has that there is cause Where found accused, felony, has if he believe that accused committed thereafter, discharged continuously custody is held shall forever prosecution trial is in the from for such offense if no commenced probable date cause circuit court within five months from the such court. found district provides: *4 knows, force, person carnally the use of a child any If years age age, years of or older but fifteen of such thirteen under However, child person felony. if such is guilly shall be of a Class years age age years of older but fifteen of and thirteen under and is a minor and such to sexual intercourse the accused consents years junior, the consenting child is or more the accused’s three consenting felony. child guilty a Class 6 If such accused shall be of guilty years junior, shall be the accused’s the accused less than three of a 4 misdemeanor. Class indictment, On to trial on new May prior his the Ragsdale filed a plea jeopardy, requesting double that the trial charge against Ragsdale court dismiss the him. contend- ed the which he was indicted was either same or a lesser-included offense of the offense dismissed Nottoway 13,1999, and, Circuit on County Court December such, prohibited his retrial was pursuant 19.2- 243. Ragsdale argued further that to him on try the subse- quent indictment would constitute jeopardy double and denial of his rights under the United States Constitution and the Virginia Constitution.
At his trial on the second indictment on June Ragsdale a plea entered of not trial guilty. The court then Ragsdale’s heard argument plea jeopardy. double held, court “I pretty think it’s book law that jeopardy [sic] attached, tried, never because he was never there was no [sic] Therefore, witnesses sworn and the jury was not sworn. jeopardy did attach.” The court Rags- did not rule on dale’s argument that carnal knowledge is a lesser-included rape. However, offense of took Ragsdale’s court and plea attendant motion to dismiss proceeded under advisement and with the trial.
Upon completion presentation of the of the Commonwealth’s case-in-chief, Ragsdale evidence, raised a motion to strike the arguing that “the testimony overall of the complaining witness given should not be great weight.” Ragsdale then argued that the Commonwealth prove did not its prima case. The facie motion, court ultimately denied and Ragsdale found guilty charge, of the delayed but a final decision pending consider- Ragsdale’s ation of plea of jeopardy double and motion dismiss. calculating In years such three junior whether child is or more a minor, the accused the actual dates of birth child and the accused, section, respectively, For purposes shall used. of this (i) age child he thirteen shall not considered a (ii) consenting child and includes acts of sexual intercourse, intercourse, fellatio, cunnilingus, anallingus, anal object penetration. animate and inanimate added.)
(Emphasis
426 2000, 11, court August the trial
By opinion letter dated child, a set in Code as forth ruled that forth 18.2-63, rape, § not a offense of as set lesser-included court in 18.2-61. The trial stated: rape, requiring penis/va- It is view that the elements of my gina are different than those section penetration other acts set out which in addition to intercourse includes girl If old year in one a fourteen paragraph. rapes the last has in commits acts set forth 18.2-63 he also other crimes. separate two and different my opinion committed for carnal is not a lesser present The indictment offense 18.2-61. includable within therefore, court, rejected of double Ragsdale’s plea The trial jeopardy and denied his motion dismiss.
II. ANALYSIS Consti The Fifth Amendment of the United States subject the same person tution that no shall “be for declares twice of life or limb.” put jeopardy offense to be an from be Virginia protects Constitution likewise individual for As we ing “put twice the same offense.”4 jeopardy Fifth noted in Dalo v. Amendment “[t]he separate double includes ‘three protection against jeopardy (1) against prosecution “It a second for guarantees: protects (2) acquittal. protects against the same offense after [ I]t conviction. prosecution second same after (3)] punishments it for the protects against multiple And [ ’ ”5 However, must attach be same offense.” first jeopardy can jeopardy fore a claim of double succeed. bar, we the trial court
In the case at hold first jeopardy not attach properly determined did I, § 4. Va. art. 8. Const. 705, (2001) (quoting v. Va.App. S.E.2d 708 Illinois
5. 37
554
2264-65,
Vitale,
410,
2260,
S.Ct.
65 L.Ed.2d
Pearce,
(1980)
S.Ct.
U.S.
(quoting North Carolina
2072, 2076-77,
(1969),
grounds
Nevertheless, 19.2-243, § according to Rags- Code dale discharged must be “forever prosecution from for [that charge],” due to the speedy Commonwealth’s violation of the trial statute. Specifically, Ragsdale the offense from which is 26, discharged April is the 1999 of C.W.7Ragsdale argues that carnal knowledge is a lesser-included offense of rape. Thus, he he contends must also be from discharged prosecu tion for this Assuming, offense. deciding, that under this rule Ragsdale would be discharged prosecution also from for a offense, agree lesser-included we do not Ragsdale’s with contention that carnal knowledge is a lesser-included offense of rape.
“Generally, to
charges
determine whether
are for the ‘same
offense,’ courts turn to
test
established in Blockburger.8
...
applicable
‘the
rule is that where the same
or
act
transac-
tion constitutes a violation
statutory provisions,
of two distinct
the test to
applied
to determine whether there are two
one,
or only
requires
offenses
is whether each provision
proof
”9
of a fact which the other does not.’
In applying the
Smith,
794,
2201,
Alabama v.
490 U.S.
109 S.Ct.
L.Ed.2d
104
865
(1989))).
440,
Va.App.
6.
Peterson
5
363 S.E.2d
444
States,
(1987)
1055,
(citing
v. United
95 S.Ct.
Serfass
1062-63,
(1975)).
8.
v. United
284
52
76
U.S.
S.Ct.
L.Ed. 306
(1932).
Dalo,
Ohio,
Va.App.
at
(quoting
Code
18.2-61
...
spouse
his or her
with a
witness who
not
complaining
complaining
against
act is
...
accomplished
and such
will,
force,
of or
by
against
threat or intimidation
witness’s
rape.”
guilty
witness ... he or she shall be
complaining
knows,
states,
any person carnally
with-
§
Code
“[i]f
18.2-68
force,
age
thirteen
older but
years
out
a child
the use
of a
person
guilty
such
shall be
age,
under fifteen
further
“carnal
felony.”
The code section
defines
Class
intercourse,
the acts of sexual
knowledge”
“including]
fellatio,
intercourse,
animate
anallingus, anal
cunnilingus,
object
penetration.”
and inanimate
sexual
Thus,
requires
§
of facts that Code
proof
18.2-61
§
and vice versa. Code
require,
18.2-63 does
(i)
(ii)
intercourse,
is accom-
requires
proof
(iii)
will,
force,
plished
complaining
witness’s
against
*7
threat,
intimidation,
requires
of
proof
or
while
(i)
knowledge,
acts other than sexual
carnal
which includes
(ii)
intercourse,
years
with
between thirteen and fifteen
a child
(hi)
old,
Accordingly,
requires
the
of force.
rape
without
use
facts,
use
sexual intercourse and the
proof
specifically,
of two
force,
knowledge
require.
of
that carnal
not
Carnal
does
of one
does not
knowledge requires proof
fact
victim
and
require, specifically, that the
be between thirteen
the
require
fifteen
old. Carnal
also does not
force, required
rape.
use
act of
intercourse or the
test,
Therefore,
Blockburger
the traditional
and the
rape,
is not
lesser-included offense
the
prosecution
trial
not
the
allowing
court did
err
Therefore,
fails
proceed.11
Ragsdale’s argument
offense to
796,
Commonwealth,
722, 726,
Blythe
222 Va.
284 S.E.2d
798
v.
10.
States,
684,
8,
(1981) (citing
694
100 S.Ct.
Whalen
n.
v. United
1432, 1439,
(1980)).
429 prosecuted was subsequently because he the “same offense.”
Finally, Ragsdale argues finding that the trial court erred as to evidence sufficient a matter law sustain the conviction. Under accepted principles, sufficiency “[w]here of the is challenged evidence on be appeal, evidence must [the] Commonwealth, construed in the most light favorable to the giving it all fairly reasonable inferences deducible there- “ 12 from.” The ‘judgment of a trial court sitting without jury is entitled to the same as a weight jury verdict will not be on plainly wrong disturbed appeal unless ”13 Moreover, evidence support to it.’ “the conclusions of fact finder issues of witness be credibility may disturbed on appeal only when we find that the witness’ testimony incredible, or ‘inherently contrary so experience human ”14 to render it unworthy cases, belief.’ “In all other we finder[,] must to the defer conclusions of ‘the fact who has ”15 opportunity seeing and hearing witnesses.’ “These principles same apply involving cases rape, sodomy, and offenses, other sexual may which solely upon sustained victim, testimony of the even corroborating absence of evidence.”16 bar, evidence the case at when viewed in the
light Commonwealth, most favorable is sufficient to find Commonwealth, 518, 520, 12. v. Norman 2 Va.App. 346 S.E.2d 45 (1986) Commonwealth, (citing Higginbotham 349, 352, v. Va. 216 218 (1975)). S.E.2d 537 Commonwealth, Va.App. Brown v. 364 S.E.2d (1988) (quoting Hambury Va.App. (1986)). S.E.2d *8 Commonwealth, 182, Ashby 14. Va.App. v. 33 187 535 S.E.2d (2000) Commonwealth, 296, (quoting 299-300, Fisher v. 228 Va. 321 202, (1984)). S.E.2d 204 548, Ashby, Va.App. 15. (quoting 735, 33 at 535 at S.E.2d 187 Schneider v. Commonwealth, (1985)). 230 Va. S.E.2d 337 736-37 548-49, Ashby, Va.App. 16. 33 at at 535 S.E.2d knowledge of carnal of C.W. C.W. testified Ragsdale guilty age the date of fourteen on that she was Ragsdale on that had sexual intercourse with and that she court, in Further, finding Ragsdale guilty, the trial day. extremely stated, an credible thought “I that [C.W.] testimony extremely I think credible her witness.... evidence, Ragsdale no contrary.” to offered [Ragsdale’s] testimony, to rebut C.W.’s self-serving his other than own to sufficient testimony.17 We hold the evidence was therefore committed the beyond Ragsdale that reasonable doubt prove offense. charged
Affirmed.
BENTON, J., concurring. knowledge” that the term “carnal provides intercourse, fellatio, cunnilingus, annal- includes acts of sexual intercourse, or object penetration, animate sexual lingus, anal trial, Rags- Prior object penetration. to inanimate to seeking particulars not file motion for a bill of dale did the Commonwealth intend- learn what act by Ragsdale’s pretrial raised prove. ed to sole contention try claim that jeopardy of double was the “to plea [him] and a jeopardy would double indictment constitute present argument At the rights his under the Constitution.” denial motion, that carnal prosecutor on the asserted acts evidence of one of various sexual proved by could § 18.2-63. under Code applied “the test to be purposes jeopardy,
For
of double
one, is
only
two
whether there are
offenses
determine
of a fact
[statutory]
requires proof
provision
whether each
States, 284
not.”
v. United
Blockburger
the other does
which
(1932).
180,182,
Applying
courts should look the elements of the offense as in Thus, Whalen, the indictments. in Supreme the Court ruled as follows: case,
In this resort Blockburger to the rule leads to the conclusion Congress that did authorize consecutive sen- tences and for a rape killing committed in the course of rape, the it is plainly since not the case that provision “each requires proof of a which fact the other not.” A does conviction for killing a rape course of cannot be had all proving of rape. elements the offense of The Government contends felony rape that murder and are not the “same” offense Blockburger, under since the former offense is, does not all require proof rape; cases of a that felony murder proscribes [the of killing statute] another person in the course of committing rape or robbery or arson, kidnapping or etc. Where proved the offense to be does not proof rape—for include of example, where the killing offense is a perpetration of robbery—the offense is of course from rape, different the offense of and the Government in believing correct that cumulative punishments for the for a felony murder and rape would be permitted case, In Blockburger. present howev- er, proof of is a necessary element of of proof murder, felony unpersuaded we are that this case differently should be treated from other cases in which one criminal requires proof every of element another offense. There would no question regard be this if Congress, instead the six listing lesser included offenses alternative, in the had separately proscribed the six differ- felony ent species provisions. murder under six statutory It is doubtful that Congress could have that imagined so formal a difference in drafting any practical signifi- had cance, and ascribe we none it. To the extent argument Government’s persuades us that the matter is not doubt, must resolved favor free the doubt entirely lenity. (citations 693-94, and footnote at 100 S.Ct. omitted). that, applying has held Virginia “[i]n Supreme Court test, charged in the we look at the offenses Blockburger *10 facts of the case
abstract, referring particular v. 261 Va. review.” under Coleman (2001). Supreme decision Court’s S.E.2d test, to be at odds in its of the appears, application Coleman at “the that we look requires Coleman with Whalen because creating disjunctive hypotheti ‘or’ the statute” as of the use statute, at one see 261 Va. cal alternatives within than of distinct statutes actuality at rather S.E.2d disjunctive one of the elements. See Whal having with each en, 694, 100 the Government’s (rejecting at S.Ct. 1432 rape are not the ‘same’ “felony that murder and argument not Blockburger, since the former does offense under Indeed, of teaching of “the require proof rape”). all cases ” the statute should is that “the construction of clearly Whalen actuality hypothetical be and not terms in terms v. Barrington, United States genuine possibilities.” but not Cir.1981). (4th 662 F.2d case, this I con- I the Coleman apply reasoning When that, of sexual intercourse although rape requires proof clude may proved by § be knowledge 18.2-61 and carnal under Code 18.2-63, knowledge § carnal sexual intercourse Code (i.e., may it intercourse also require proof sexual does acts). viewed, of six Thus either other proved lesser- statute cannot be deemed a carnal reasons, I rape. For these concur included offense of the affirming conviction. after Commonwealth’s summarily note that
I also would relying prove it on to that the act was evidence established rise to the gave act was same to Code indictment, pursuant no was made to strike motion merely the same 19.2-243, that the conviction alleging charge earlier dismissed because Commonwealth violated Thus, § 19.2-243. we need not that issue. decide
Court
Richmond. July 2, 2002.