Jeff Hobbs, Sometimes Known as Jeffrey Lee Hobbs v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 22, 2022
• Docket: 1216211
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Athey, Ortiz and Lorish UNPUBLISHED

JEFF HOBBS, SOMETIMES KNOWN AS JEFFREY LEE HOBBS MEMORANDUM OPINION* v. Record No. 1216-21-1 PER CURIAM NOVEMBER 22, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY James C. Hawks, Judge Designate

(W. Christopher Dunn; Randall. Page & Bruch, P.C., on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Matthew P. Dullaghan, Senior Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

In a bench trial upon a charge of sexual battery, the trial court convicted Jeffrey Lee Hobbs

for battery in violation of Code § 18.2-57 and sentenced him to twelve months in jail with eleven

months suspended. Hobbs argues that the trial court erred in convicting him of battery because it

was not a lesser-included offense of sexual battery. Hobbs concedes that he did not preserve this

issue for appellate review, but asks this Court to invoke the good cause or ends of justice exception

to Rule 5A:18 and consider the issue. Both parties waive oral argument on this appeal. We affirm

the decision of the trial court.

BACKGROUND

At trial, the Commonwealth introduced testimony about three instances when Hobbs

touched an employee of his wife’s in an offensive manner. At the end of the evidence, the trial

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. court agreed with defense counsel’s argument that the evidence failed to prove that the touching

occurred by “force, threat, intimidation, or ruse,” as required for a conviction for sexual battery

under Code § 18.2-67.4(A)(i). The court then asked counsel whether it could convict appellant

for battery, asked counsel to brief the issue, and continued the proceedings to a later date. When

the proceedings resumed, defense counsel, citing Gnadt v. Commonwealth, 27 Va. App. 148

(1998), specifically asserted that assault and battery was a lesser-included offense of sexual

battery, and the prosecutor agreed. The trial court then convicted Hobbs for battery and

sentenced him.

DISCUSSION

Before this Court, Hobbs now argues that the trial court lacked authority to convict him

for battery because it was not a lesser-included offense of sexual battery. “The [Virginia]

Supreme Court has held that ‘[a] party may not approbate and reprobate by taking successive

positions in the course of litigation that are either inconsistent with each other or mutually

contradictory.’” Nelson v. Commonwealth, 71 Va. App. 397, 403 (2020) (quoting Rowe v.

Commonwealth, 277 Va. 495, 502 (2009)). “The ‘doctrine against approbation and reprobation’

applies both to assertions of fact and law, and precludes litigants from ‘playing fast and loose’

with the courts, or ‘blowing hot and cold’ depending on their perceived self-interests.” Id. at 403

(citations omitted) (quoting Babcock & Wilcox v. Areva, 292 Va. 165, 204 (2016)).

In the trial court, Hobbs asserted that, under prevailing case authority, he could be

convicted for battery because it was a lesser-included offense of sexual battery. Now, on appeal,

Hobbs takes an inconsistent position—that the trial court erred in convicting him for battery

because it is not a lesser-included offense. Thus, Hobbs has “approbated and reprobated,” and

his “position in the trial court below prevents us from considering an opposite position on

appeal.” Id. at 404-05.

-2- Hobbs asks us to apply the “ends of justice” exception to Rule 5A:18 and take up this

error anyway. But “there is no ‘ends of justice’ exception to the approbate and reprobate

doctrine.” Id. at 405. Instead, we have observed that “[t]he approbate-reprobate doctrine is

broader and more demanding than Rule 5A:18.” Id. (quoting Alford v. Commonwealth, 56

Va. App. 706, 709 (2010)). “The very fact that” Hobbs agreed that the trial court could convict

him of battery “renders Rule 5A:18’s ends of justice exception inapplicable.” Id. (quoting

Alford, 56 Va. App. at 709). “It can hardly be a ‘grave injustice’ to a defendant’s essential rights

for a trial court to [make] an agreed-upon [ruling].” Id. (alterations in original) (citation omitted)

(quoting Alford, 56 Va. App. at 709).

CONCLUSION

For these reasons, we do not consider the issue Hobbs raises on appeal and we affirm the

judgment.

Affirmed.

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