
    CIRCUIT COURT OF RICHMOND COUNTY
    Commonwealth of Virginia v. Brew
    October 31, 1996
   By Judge Joseph E. Spruill, Jr.

Defendant Brew came before the Juvenile and Domestic Relations District Court for a preliminary hearing on a charge of statutory rape. After hearing fee evidence, fee district judge found fee defendant guilty of contributing to fee delinquency of a minor. As fee district judge was explaining his ruling, fee Commonwealth's Attorney moved to nolle prosequi fee charge. The motion was denied, and fee defendant was sentenced to a twenty day jail term.

Thereafter, Brew was indicted by fee grand jury on fee statutory rape charge. His counsel moves to quash fee indictment on grounds of double jeopardy. The Commonwealth lias filed a Writ of Certiorari requesting this Court to direct the district court to vacate its previous judgment in this case on constitutional (separation of powers) grounds.

Although posed in different ways, fee issues raised by counsel here relate to a single question: whether principles of double jeopardy bar further prosecution of Mr. Brew.

If fee district judge had dismissed fee charge after hearing fee evidence, fee Commonwealth clearly could proceed to indict and try fee defendant in fee circuit court. Moore v. Commonwealth, 218 Va. 388 (1977). The critical distinction between Moore and Brew is feat Brew was convicted by fee district court and Moore was not The district court has potential jurisdiction to proceed under certain circumstances to try fee accused for a lesser misdemeanor offense included within fee felony charge then before fee court Moore, id.; Code § 19.2-186. But when fee district court finds no probable cause, it is “not required to proceed to try fee accused on fee merits of such lesser offense, although the court may elect to do so. Moore, id. hi this case, the district court elected to try die accused on a lesser offense. It had, under Moore, potential jurisdiction to proceed as it did.

Laying aside for the moment the question of whether the offense Brew was convicted of is a lesser included offense of statutory rape, the question is, as it was m Rouzie and Boudreau v. Commonwealth, 215 Va. 174 (1974), whether the district court had jurisdiction to convict of lesser misdemeanor offenses i«mtiiH«t within die felony charges so that a district court conviction placed defendant in danger, absent a double jeopardy bar, of prosecution fer identical or greater included offenses. The Supreme Court found that Code § 19.2-186 (formerly § 19.1-106) bestowed that precise jurisdiction. In Rouzie, upon a preliminary hearing for maiming, the municipal court convicted defendants of assault A subsequent circuit court conviction of die maiming charge was reversed upon principles of double jeopardy.

In Rouzie, the court held:

The double jeopardy clauses of die United States and Virginia Constitutions, as related to the present case, bar prosecution of a criminal charge against an accused already convicted of an identical or less»: included offense ... . Offenses are identical if the facts required to convict of one would necessarily convict of the other.

This brings us to die question of whether the crime of contributing to the delinquency of a minor is a lesser included offense of statutory rape. There seem to be no Virginia cases addressing this specific issue.

hi Ashby v. Commonwealth, 208 Va. 443 (1968), the Supreme Court held “an indictment charging a greater offense can be considered as abo charging only those less»: offenses die elements of which are elements of the greater offense...."

There are two elemente to the crime of statutory rape: (1) sexual intercourse; and (2) the age of the victim (under 15). There are three elements to the crime of contributing to die delinquency of a minor: (1) die accused has willfully caused or contributed to a condition which renders the child delinquent; (2) the age of the accused (over 18); and (3) the child’s age (under 18).

Applying die Ashby test, it does not appear that contributing to the delinquency of a minor is a lesser included offense of statutory rape. A statutory rape charge dora not, for example, require proof that the accused was 18 years of age or older, In Kauffman v. Commonwealth, 8 Va. App. 400 (1989), die court found that contributing to the delinquency of a minor was not a lesser included offense of aggravated sexual battery because aggravated sexual battery does not require proof that the defendant was 18 years of age or older and thus all the elements of the lesser charge are not included within the greater charge. In Ashby, id., indecent exposure was found not to be a lesser iiM»inHeri offense of sodomy. Even though the Supreme Court found drat indecent exposure "may occur in almost all cases of sodomy” it is not a fact that must be .charged or proved to sustain a conviction of sodomy in any case. Ashby, id., p. 445. In Edenton v. Commonwealth, 227 Va. 413 (1984), driving without a license was found not to be a lesser included offense of driving while an habitual offender.

To be a lesser included offense, every commission of the greater offense must also be a commission of the lesser offense. Kauffman, id. A 17 year old could be convicted of statutory rape but for the same act could not be convicted of contributing to the delinquency of a minor.

Upon ibis analysis, contributing to the delinquency of a minor is not a lesser included offense of statutory rape and the accused was never “in jeopardy” in the district court proceeding.

This, however, does not end our inquiry. Brew has been before a court of this Commonwealth, convicted, and sentenced to jail. The Commonwealth urges another prosecution upon the same evidence which was die basis for his district court conviction. To permit this seems, to this court, inequitable and unfair. Brew, after all, was not responsible for die conduct of these proceedings. To continue on appears to violate die spirit, if not the letter, of the law. As the Supreme Court wrote in Rouzie, “any equity involved in a double jeopardy plea inures to die benefit of the accused. ”

For these reasons, the motion to quash the indictment will be sustained.  