Commonwealth v. Hall

34 Va. Cir. 1, 1994 Va. Cir. LEXIS 33

• Court: Alexandria County Circuit Court
• Decided: March 16, 1994
• Docket: Case No. CF930664
• Status: Published

Opinion

By Judge Alfred D. Swersky

Defendant’s Motion to Dismiss Counts II and IV will be denied. However, Defendant’s Motion to Set Aside the Verdicts as to Counts II and IV will be granted and a judgment of acquittal entered.

Defendant’s Motion for a New Trial on Counts I and HI will be granted.

The Court finds that the Complainant failed to report the violation charged in Counts n and IV to a law enforcement agency as required by § 18.2-67.2:1(B). This proviso sets forth a jurisdictional matter which cannot be waived by Defendant and may be raised at any time. Rule 3A: 9(b)(1), Rules of the Supreme Court of Virginia; Owusu v. Commonwealth, 11 Va. App. 671 (1991). The statute provides that in cases of marital sexual assault, “there shall be no prosecution under this section unless the spouse or someone acting on the spouse’s behalf reports the violation to a law enforcement agency within ten days of the commission of the alleged offense.”

This language makes it clear that the legislature intended the ten-day limit be jurisdictional and the Court having found that the spouse has failed to report the violation within ten days, the verdicts as to Counts n and IV will be set aside and dismissed.

In view of the victim’s testimony, unsupported by any other evidence, claiming to have reported these offenses and in view of the prosecution’s reliance on her claim, there is no prosecutorial misconduct, and Defendant’s Motion to Dismiss Counts n and IV for prosecutorial misconduct will be denied.

Further, the Court finds that the Jury’s consideration of these improper counts resulted in substantial prejudice to the Defendant, and he is entitled to a new trial on the remaining counts in the indictment. The July’s verdicts as to Counts I and III of the indictment will be set aside and a new trial ordered if the Commonwealth is so advised.