Melvin Hall Fitzgerald, Jr. v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
MELVIN HALL FITZGERALD, JR.
OPINION BY
v. 	Record No. 0348-99-3 	JUDGE SAM W. COLEMAN III
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
Humes J. Franklin, Jr., Judge
J. Lloyd Snook, III (Snook & Haughey, P.C.,
on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Melvin H. Fitzgerald was convicted following a jury trial
of object sexual penetration in violation of Code § 18.2-67.2.
The trial court granted Fitzgerald's motion to set aside the
jury's verdict, but over Fitzgerald's objection, the trial judge
found him guilty of assault and battery in violation of Code
§ 18.2-57. 	The sole issue on appeal is whether the trial judge,
after granting the defendant's motion to set aside the verdict
based on insufficient evidence, may sua sponte find the
defendant guilty of a lesser charge where the defendant
requested a jury trial. 	We find that the trial court erred in
finding Fitzgerald guilty of the lesser-included offense.

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Accordingly, we reverse the conviction and remand the case to
the trial court.
BACKGROUND
Fitzgerald was indicted for object sexual penetration and
sodomy. 	He pleaded not guilty and requested a jury trial. 	At
the close of the Commonwealth's case, Fitzgerald moved to strike
both counts, but his motion was denied. 	The trial court did not
instruct the jury on lesser-included offenses. 	The jury found
Fitzgerald guilty of object sexual penetration but acquitted him
of the sodomy offense.
After trial, Fitzgerald moved to set aside the verdict,
arguing that the evidence was insufficient to prove that the
sexual contact was accomplished by use of force. 	The trial
judge granted the motion to set aside the verdict, but over
Fitzgerald's objection, found him guilty of the lesser-included
offense of assault and battery. 	The trial judge stated that
"the Court feels it has no alternative but to reduce this from a
felony conviction to assault and battery . . . this Court has
-- has an absolute power not simply to dismiss this but to
reduce it and the Court would -– it's threshold matter -- reduce
this to assault and battery." 	Fitzgerald objected to the trial
judge's finding him guilty of the lesser charge and argued that
he was entitled to a jury trial to determine the issues of guilt

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and sentence. 	The trial court overruled Fitzgerald's objection,
found him guilty of assault and battery, and imposed sentence.
ANALYSIS
The right of an accused to a trial by a jury is a
constitutional right guaranteed under both the United States
Constitution and the Virginia Constitution. 	See U.S. Const.
amend. VI; Va. Const. art. I, § 8. 	"Thus, the right to plead
not guilty and have one's guilt or innocence and punishment
determined by the jury is not only recognized in the law but
given great deference." 	Mason v. Commonwealth, 14 Va. App. 609,
613, 419 S.E.2d 856, 859 (1992).
Here, Fitzgerald invoked his constitutional right to a jury
trial and was found guilty of object sexual penetration. 	The
trial court, however, set aside the verdict, finding that the
evidence was insufficient to support the conviction. 	The trial
court, relying on Woodard v. Commonwealth, 27 Va. App. 405, 499
S.E.2d 557 (1998), and Johnson v. Commonwealth, 5 Va. App. 529,
365 S.E.2d 237 (1988), ruled that it "ha[d] no alternative but
to reduce this from a felony conviction to assault and battery."
By failing to order a new trial on the lesser offense, the
trial court exceeded its authority. 	Neither Woodard nor Johnson
authorizes the trial judge presiding over a jury trial to find
the defendant guilty of a lesser offense where the trial judge

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finds the evidence insufficient to support the jury's conviction
of the greater offense.
The Commonwealth, citing Manns v. Commonwealth, 13 Va. App.
677, 414 S.E.2d 613 (1992), asserts that a defendant, who was
tried for a felony, may be found guilty of a lesser-included
offense without the necessity of a new trial. 	The
Commonwealth's reliance on Manns is misplaced. 	In Manns, the
defendant was convicted in a bench trial of maliciously throwing
a missile at a moving vehicle. 	At the sentencing hearing,
defense counsel expressly requested that the court find the
defendant guilty of the lesser-included offense of interfering
with the property rights of another. 	On appeal, the defendant
argued that the evidence was insufficient to support the
lesser-included offense. 	We affirmed the conviction, finding
that the defendant, having specifically requested that the trial
court find him guilty of the lesser offense, could not on appeal
assume an inconsistent position. 	See id. at 679-80, 414 S.E.2d
at 615.
Here, Fitzgerald did not request that the trial court, in
setting aside the conviction for object sexual penetration, find
him guilty of a lesser offense. 	Fitzgerald requested, rather,
that he be retried by a jury on the lesser offense, noting that
he made a tactical decision at trial not to request that the
jury be instructed on the lesser-included offense. 	Fitzgerald

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also noted that retrial is consistent with appellate practice
when the evidence is found to be insufficient to sustain a
felony conviction on appeal, but sufficient to sustain a
conviction on a lesser-included offense. 	See Gorham v.
Commonwealth, 15 Va. App. 673, 678-79, 426 S.E.2d 493, 496-97
(1993); see also Woodard, 27 Va. App. at 410, 499 S.E.2d at
559-60; Johnson, 5 Va. App. at 534-35, 365 S.E.2d at 240.
We hold that the trial court erred in finding Fitzgerald
guilty of the lesser offense of assault and battery, thereby
depriving him of his right to have a jury determine guilt and
sentence. 	Accordingly, we reverse the conviction and remand for
such further proceedings as the Commonwealth may be so advised.
Reversed and remanded.