                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia


ROBERT C. GRAY, S/K/A
 ROBERT CHARLES GREY
                                                OPINION BY
v.   Record No. 1670-00-1                  JUDGE RICHARD S. BRAY
                                             JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Johnny E. Morrison, Judge

           S. Jane Chittom, Appellate Defender (Public
           Defender Commission, on briefs), for
           appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Randolph A. Beales, Attorney
           General, on brief), for appellee.


     Robert C. Gray (defendant) was convicted of taking indecent

liberties with a child, a violation of former Code § 18.1-215. 1

On appeal, defendant contends the trial court erroneously denied

his motion to dismiss the indictment, arguing the prosecution

violated the double jeopardy prohibitions of the United States and

Virginia Constitutions and, further, challenges the sufficiency of

the evidence to support the conviction.    Finding no error, we

affirm.




     1
       Former Code § 18.1-215, in effect at the time of
defendant's alleged misconduct, was repealed in 1975. See 1975
Va. Acts, chs. 14 and 15.
                                 I.

     On January 8, 1998, defendant was indicted for "aggravated

sexual battery . . . [i]n violation of Code § 18.2-67.3" 2 and an

attendant jury trial commenced on October 19, 1999.    At trial, the

victim, Frances Maggard, recounted events in proof of the

indictment, the Commonwealth rested, and defendant offered no

evidence.   Immediately before the jury was instructed, defendant

moved the court to dismiss the indictment because Code § 18.2-67.3

"was not in existence" in 1972, the time of the alleged offense.

In response, the Commonwealth moved to amend the indictment to

charge "taking indecent liberties with children," a violation of

former Code § 18.1-215, which pertained in 1972.    Defendant,

however, objected, contending the amendment would allege "a

different crime" with additional elements.

     The trial court declined to amend the indictment "because it

would . . . actually charge a different crime."    Turning to

defendant's motion to dismiss, the court acknowledged the offense

alleged in the indictment, aggravated sexual battery, "didn't

exist in . . . '72," "there was [then] no such thing," and


     2
       The indictment, expressly citing Code § 18.2-67.3, alleged
that defendant,

            [o]n or about November 1, 1972 to December
            1, 1972, sexually abused Frances Maggard,
            then 13 years of age, against her will by
            force, threat or intimidation, or through
            the use of her physical helplessness or
            mental incapacity.


                                - 2 -
concluded that defendant "can't be found guilty of [the offense]

today."    Accordingly, the court granted defendant's motion, "as

[he] was charged under Section 18.2-67.3 . . ., which was not in

existence at the time of the offense in 1972."

     Within one month thereafter, the Commonwealth indicted

defendant for "taking indecent liberties with children" in

violation of former Code § 18.1-215, 3 the instant offense.

Defendant promptly moved to dismiss the indictment, maintaining he

had been "put in trial and put in jeopardy" on the aggravated

sexual battery indictment and, therefore, the instant prosecution

"constitute[d] double jeopardy."    The court denied the motion, and

proceeded with trial, resulting in the subject conviction and

appeal.

     In prosecuting the offense, the Commonwealth relied solely

upon the evidence of the alleged victim, Frances Maggard.       Maggard

testified that, when thirteen years of age, she had resided with

defendant and his wife during November and December 1972, while


     3
         The indictment, citing former Code § 18.1-215, read:

            On or about November 1, 1972 to December 1,
            1972, being twenty-one years of age or over,
            with lascivious intent, knowingly and
            intentionally placed or attempted to place,
            his hand or hands, or any portion of his
            hands upon or against or did in any way or
            manner fondle or feel or attempt to fondle
            or feel the sexual or genital parts or
            breasts of Frances Maggard, a child under
            the age of fourteen (14) years to whom he
            was not legally married.


                                - 3 -
her mother recovered from an illness.    "One afternoon" Maggard was

asleep on a couch, and defendant "lifted [her] up," "sat down" and

"laid [her] . . . over his lap."    She soon "fell back to sleep"

but was "abruptly awakened" by defendant "rubbing [her] shoulder

and neck" with one hand and her breast with the other.

"[S]hocked," Maggard "sat there for a minute," then "jumped up"

and "got away."

     Later that evening, Maggard was "[o]n the floor," "afraid" of

defendant and "pretend[ing] to be asleep," when he "laid down"

beside her and "started rubbing [her] back, . . . buttocks and

legs."   "At some point, [Maggard] was turned over" and defendant

placed his "hands . . . between [her] legs, . . . rubbing [her]

crotch, and . . . [her] breasts."    Maggard unsuccessfully "tried

to wiggle up" and "kept turning away and trying to push him off."

Finally, the "phone rang" and "as soon as [defendant] answered the

phone, [she] jumped up," "ran back to the bathroom" and "locked

both the doors."

     Maggard told no one of defendant's misconduct until she

related the incidents to her sister approximately four years

later.   A "long time" thereafter, in "'88 or '89," she reported

the offenses to police.   Explaining the delay, Maggard recalled a

feeling of shame for "be[ing] pawed over" and fear "of what [her

father] would do if he found out what had happened."




                               - 4 -
                                II.

     Relying upon principles of double jeopardy, defendant first

maintains that dismissal of the original aggravated sexual battery

indictment barred the subject prosecution on an indictment

charging indecent liberties with children, the "same offense."

     The Double Jeopardy Clauses of both the United States and

Virginia Constitutions ensure an accused is not "subject for the

same offense to be twice put in jeopardy of life or limb."     U.S.

Const. amend. V; see Va. Const. art. I, § 8.   The safeguard

"guarantees protection against (1) a second prosecution for the

same offense after acquittal; (2) a second prosecution for the

same offense after conviction; and (3) multiple punishments for

the same offense."   Payne v. Commonwealth, 257 Va. 216, 227, 509

S.E.2d 293, 300 (1999) (citations omitted).

          In order to make such a defense with
          success, the party relying upon it must show
          that he has been put upon his trial before a
          court which has jurisdiction, upon
          indictment or information which is
          sufficient in form and substance to sustain
          a conviction, and that a jury has been
          impaneled and sworn, and thus charged with
          his deliverance. Anything short of this, is
          insufficient to raise a bar against a new
          indictment or prosecution for the same
          offense.

Dulin v. Lillard, 91 Va. 718, 722, 20 S.E. 821, 822 (1895)

(citations omitted) (emphasis added).   Thus, "[i]t is settled law,

everywhere, that jeopardy means the danger of conviction."     Rosser

v. Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933).


                               - 5 -
     Here, the original indictment, which alleged aggravated

sexual battery, charged defendant with an offense that did not

exist at the time of the misconduct.    Accordingly, no valid

conviction could have resulted from the instrument.   See Wilder v.

Commonwealth, 217 Va. 145, 148, 225 S.E.2d 411, 414 (1976)

("[B]ecause the indictment found by the grand jury stated no

offense and was invalid, it necessarily follows the trial court

had no power to amend the indictment.    The conviction on the

amended indictment was therefore void.").   Thus, free from the

spectre of conviction, defendant was not in jeopardy at the first

trial, and the instant prosecution did not offend principles of

double jeopardy.   1 Charles E. Torcia, Wharton's Criminal Law

§ 58 (15th ed. 1993) ("[a] former prosecution is . . . not a bar

where . . . the indictment was void" (citations omitted)).

     Moreover, in Johnson v. Commonwealth, 221 Va. 736, 273 S.E.2d

784 (1981), the Supreme Court of Virginia, noting "[d]ismissals of

indictments are granted for a number of reasons," recognized the

distinction "between a dismissal granted pursuant to a legal

defense and a dismissal granted pursuant to a factual defense,"

determining "[t]he latter would qualify as an acquittal for double

jeopardy purposes," while "[a] legal dismissal might not . . . ."

Id. at 743-44, 273 S.E.2d at 789-90 (citing United States v.

Scott, 437 U.S. 82 (1978)).   Revisiting the issue in Greenwalt v.

Commonwealth, 224 Va. 498, 297 S.E.2d 709 (1982), the Court again

instructed, "[a] dismissal qualifies as an acquittal for double

                               - 6 -
jeopardy purposes when it is granted pursuant to a factual, as

opposed to a legal, defense."   Id. at 500, 297 S.E.2d at 710;

Dodson v. Commonwealth, 23 Va. App. 286, 303, 476 S.E.2d 512, 520

(1996).

     The instant record clearly demonstrates that the court

dismissed the earlier indictment, on defendant's motion, solely

because the offense allegedly committed in 1972 did not constitute

a violation of Code § 18.2-67.3, a penal statute not enacted by

the General Assembly until 1981.   See 1981 Va. Acts, ch. 397.

Inarguably, such dismissal was, therefore, grounded upon a legal

infirmity in the charging instrument, in contrast to an

adjudication of factual issues, a circumstance that excludes the

subsequent prosecution from the constraints of the double jeopardy

prohibition.

                                III.

     Lastly, defendant challenges the sufficiency of the evidence

to support the conviction.   In considering his argument, we view

the record, "in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom."

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866

(1998) (citation omitted).   The credibility of the witnesses, the

weight accorded testimony, and the inferences drawn from proven

facts are matters to be determined by the fact finder.    Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

                                - 7 -
plainly wrong or unsupported by the evidence.   See Code

§ 8.01-680.

     At trial, Frances Maggard detailed a visit in defendant's

home during the latter months of 1972, when she was thirteen years

of age.   She testified defendant placed her on his lap and

"rubb[ed] [her] shoulder[,] . . . neck" and breast with his hands.

Later the same day, when Maggard, frightened, was feigning sleep

on the floor of the home, defendant "laid down" beside her,

"started rubbing [her] back, . . . buttocks and . . . legs,"

"turned [her] over," placed his "hands . . . between [her] legs,"

and "rubb[ed] [her] crotch" and breasts.   Such testimony, if

believed by the fact finder, clearly provided sufficient support

for the conviction.

     Accordingly, finding no constitutional bar to the subject

prosecution and sufficient evidence in the record to prove the

offense beyond a reasonable doubt, we affirm the conviction.

                                                    Affirmed.




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