                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Beales and Decker
PUBLISHED


            Argued at Lexington, Virginia


            REBECCA K. TAYLOR, S/K/A
             REBECCA KNIGHT TAYLOR
                                                                                   OPINION BY
            v.      Record No. 2213-13-3                                      JUDGE WILLIAM G. PETTY
                                                                                 JANUARY 27, 2015
            COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                           Bruce D. Albertson, Judge

                            R. Shannon Kite (Cook Attorneys, P.C., on brief), for appellant.

                            Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                            Attorney General, on brief), for appellee.


                    Rebecca K. Taylor was convicted of battery pursuant to Code § 18.2-57. On appeal, she

            argues (1) the trial court erred in denying her motion to strike and in failing to grant her motion to

            set aside the verdict as to the sufficiency of the evidence regarding the battery charge because the

            conduct did not exceed the bounds of lawful parental discipline; and (2) the trial court erred in

            denying her motion to set aside the verdict because the misdemeanor was not timely prosecuted

            under Code § 19.2-8.1 For the reasons stated below, we reverse the judgment of the trial court.

                                                       I. BACKGROUND

                    “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

            granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,



                    1
                    Because we hold that prosecution of the misdemeanor battery charge was not timely
            commenced, and therefore dismiss the charge for that reason, we need not address Taylor’s first
            assignment of error regarding the sufficiency of the evidence.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

       So viewed, the record establishes that on April 15, 2013, a grand jury indicted Taylor for

felony child endangerment in violation of Code § 40.1-103. The indictment alleged that the

offense occurred between January 1, 2011 and February 23, 2012. On September 25, 2013, a

bench trial was held on the charge. Taylor made a motion to strike at the conclusion of the

Commonwealth’s evidence. She renewed her motion to strike at the conclusion of the defense’s

case. The trial court overruled the motion to strike. At the conclusion of the trial, the court

withheld judgment and continued the case until September 30, 2013 for the purpose of reviewing

relevant precedent on the matters before it.

       On September 30, 2013, the trial court held that the evidence was insufficient to convict

Taylor of the charged crime of child endangerment; however, it held that the evidence was

sufficient to convict Taylor of the misdemeanor offense of battery under Code § 18.2-57, which

it concluded was a lesser-included offense of child endangerment. No warrant, bench or

otherwise, was issued against Taylor on that misdemeanor charge. Taylor then made a motion to

set aside the verdict, objecting to the sufficiency of the evidence and the trial court’s ruling that

battery is a lesser-included offense of Code § 40.1-103.2 Taylor also alleged that even if battery

is a lesser-included offense of child endangerment, prosecution of that misdemeanor was

commenced more than one year from the date of the offense and thus was barred by the statute of

limitations. The trial court denied the motion, found Taylor guilty of battery, and sentenced her

to eight months of incarceration. Taylor appeals that conviction here.


       2
          We note that although Taylor contemporaneously objected to the trial court’s finding
that battery is a lesser-included offense of child endangerment, she did not assign error to that
finding here. Thus, we will assume without deciding that misdemeanor battery is a
lesser-included offense of felony child endangerment.

                                                 -2-
                                            II. ANALYSIS

       Taylor argues that the trial court erred in denying her motion to set aside the verdict

because the misdemeanor was not timely prosecuted pursuant to Code § 19.2-8. We agree.

       “Whether a claim is barred by the statute of limitations is a question of law. This Court

‘review[s] questions of law de novo.’” Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276,

284, 623 S.E.2d 433, 437 (2005) (quoting Tomes v. James City Fire, 39 Va. App. 424, 430, 573

S.E.2d 312, 315 (2002) (internal quotation marks and citation omitted)). Furthermore, when

reviewing the statutory language, “we must give effect to the legislature’s intention as expressed

by the language used unless a literal interpretation of the language would result in a manifest

absurdity.” Conyers v. Martial Arts World, 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). “If a

statute is subject to more than one interpretation, we must apply the interpretation that will carry

out the legislative intent behind the statute.” Id.

       Code § 19.2-8 states, “A prosecution for a misdemeanor . . . shall be commenced within

one year next after there was cause therefor . . . .” We have previously held that “[t]he issuance

of a warrant commences a prosecution within the meaning of this provision.” Hall v.

Commonwealth, 2 Va. App. 159, 162, 342 S.E.2d 640, 641 (1986) (citing Ange v.

Commonwealth, 217 Va. 861, 862, 234 S.E.2d 64, 65 (1977)); cf. Phillips v. Commonwealth,

257 Va. 548, 553, 514 S.E.2d 340, 343 (1999) (noting that a prosecution “is the process in which

an accused is brought to justice from the time a formal accusation is made through trial and final

judgment in a court of appropriate jurisdiction”). This case, however, presents an issue not yet

considered by the courts of the Commonwealth of Virginia: whether one can be convicted of a

lesser offense upon a prosecution for a greater crime, which includes the lesser offense,

commenced after the limitations period has run on the lesser offense.




                                                 -3-
       In Hall, we held that the Commonwealth’s prosecution of the defendant for a

lesser-included misdemeanor was not barred by the statute of limitations because the warrant and

subsequent indictment charging the defendant with a greater felony was commenced within the

statute of limitations for the misdemeanor. Hall, 2 Va. App. at 162-63, 342 S.E.2d at 641-42. In

dicta, we left open the resolution of the issue presented in this case, noting in a footnote that

“most authorities agree that the commencement of a felony prosecution after the running of the

limitation period for a necessarily included misdemeanor offense would result in a bar to a

conviction for the necessarily included lesser offense.” Id. at 162 n.2, 342 S.E.2d at 641 n.2.

       Although we have not had an occasion to consider this issue, the overwhelming majority

of American courts that have addressed it have concluded that one cannot be convicted of a

lesser-included offense upon a prosecution for the greater crime when the prosecution is

commenced after the limitations period has run on the lesser offense. See Waters v. United

States, 328 F.2d 739 (10th Cir. 1964); Askins v. United States, 251 F.2d 909 (D.C. Cir. 1958);

Spears v. State, 160 So. 727 (Ala. 1935); Padie v. State, 557 P.2d 1138 (Alaska 1976); Drott v.

People, 206 P. 797 (Colo. 1922); Cane v. State, 560 A.2d 1063 (Del. 1989); Nelson v. State, 17

Fla. 195 (1879); State v. Brossette, 113 So. 366 (La. 1927); People v. Burt, 16 N.W. 378 (Mich.

1883); Riggs v. State, 30 Miss. 635 (1856); State v. Chevlin, 284 S.W.2d 563 (Mo. 1955); State

v. Atlas, 244 P. 477 (Mont. 1926); State v. Stillwell, 418 A.2d 267 (N.J. Super. Ct. App. Div.

1980); People v. Di Pasque, 146 N.Y.S. 523 (N.Y. App. Div. 1914); State v. Price, 1998 Ohio

App. LEXIS 6266 (Ohio Ct. App. 1998); Osborn v. State, 194 P.2d 176 (Okla. Crim. App. 1948)

(recognizing without explicitly affirming the general rule); Hickey v. State, 174 S.W. 269 (Tenn.

1915) (recognizing rule, which stemmed from Tennessee statute almost identical to Code

§ 19.2-8); Fulcher v. State, 24 S.W. 292 (Tex. Crim. App. 1893); State v. King, 84 S.E.2d 313

(W. Va. 1954). In fact, Georgia appears to be the only state that permits such a conviction

                                                 -4-
without a statute expressly allowing it. See Manning v. State, 182 S.E.2d 690, 691 (Ga. Ct. App.

1971).3

          Recognizing the overwhelming authority supporting Taylor’s argument, the

Commonwealth argues that a misdemeanor prosecution was never “commenced” against Taylor

within the meaning of Code § 19.2-8. Therefore, it reasons, Code § 19.2-8 does not apply.

Furthermore, the Commonwealth argues that Code § 19.2-8 is in pari materia with Code

§ 19.2-285, and thus, they should be construed together. According to the Commonwealth, Code

§ 19.2-285 expressly permits a fact-finder to convict a defendant of a lesser-included part of the

larger offense. That statute does not reference any time limitation. Code § 19.2-285 provides,

                          If a person indicted of a felony be by the jury acquitted of
                 part of the offense charged, he shall be sentenced for such part as
                 he is so convicted of, if the same be substantially charged in the
                 indictment, whether it be felony or misdemeanor. If the verdict be
                 set aside and a new trial granted the accused, he shall not be tried
                 for any higher offense than that of which he was convicted on the
                 last trial.

Therefore, the Commonwealth asserts, because there was no “commencement” of a prosecution

under Code § 19.2-8, the court was required by Code § 19.2-285 to sentence Taylor for

misdemeanor battery without regard to the statute of limitations. We disagree.

          West Virginia, which shares our statutory scheme, provides particularly helpful guidance

in addressing this argument. In State v. King, the Supreme Court of Appeals of West Virginia

adopted the majority rule, construing statutes nearly identical to our Code §§ 19.2-8 and

19.2-285.4 See King, 84 S.E.2d at 364-71. In that case, King was indicted by a grand jury for


          3
         By statute, Maine allows conviction for a time-barred, lesser-included offense. See
State v. Borucki, 505 A.2d 89, 91 n.2 (Me. 1986).
          4
          West Virginia’s version of Code § 19.2-8, W. Va. Code § 61-11-9, provides: “A
prosecution for a misdemeanor shall be commenced within one year after the offense was
committed . . . .” West Virginia’s version of Code § 19.2-285, W. Va. Code § 62-3-14, provides:
“If a person indicted for a felony be by the jury acquitted of part and convicted of part of the
                                                 -5-
malicious assault, a felony, in October 1953. Id. at 364. The indictment alleged that the crime

occurred in October 1951. Id. at 371. At the conclusion of the trial, the jury found King guilty

of assault and battery, a misdemeanor, and he was sentenced accordingly. Id. at 364. King

appealed his conviction, alleging that a conviction for the lesser-included misdemeanor was

barred by the statute of limitations under W. Va. Code § 61-11-9. Id. The Supreme Court of

Appeals of West Virginia reversed the judgment against King, holding that his conviction for

assault and battery was barred by the statute of limitations. Id. at 371. In doing so, West

Virginia adopted the general rule that “‘one indicted for an offense not barred by limitation, but

convicted of a lesser included offense which is so barred, is entitled to discharge.’” Id. at 369

(quoting 22 C.J.S. Criminal Law § 225(b) (1989)).

       In King, the attorney general made essentially the same argument asserted by the

Commonwealth here: that W. Va. Code § 62-3-14, West Virginia’s equivalent of our Code

§ 19.2-285, read in conjunction with the misdemeanor statute of limitations, “render[ed] [that]

case . . . a prosecution for a felony,” taking King outside the scope of the general rule quoted

above. Id. The court reasoned, however, that W. Va. Code § 62-3-14 “simply provides a rule for

criminal pleading.” Id. at 370. The court noted that W. Va. Code § 62-3-14 merely provides that

the accused in a trial on an indictment that charges a felony and a misdemeanor may be found

not guilty of the felony, but guilty of a misdemeanor that is an inherent part of the felony

charged. Id. The court observed that if King had been initially indicted for assault and battery, a

misdemeanor, a conviction for that crime would have been barred by the statute of limitations.

Id. at 371. Thus, it “necessarily follow[ed]” that his conviction for assault and battery was still




offense charged, he shall be sentenced by the court for such part as he is so convicted of, if the
same be substantially charged in the indictment, whether it be felony or misdemeanor.”

                                                -6-
barred by the statute of limitations, even though he was indicted for a felony that included the

misdemeanor. Id.

       The arguments of the parties in this case are almost identical to those in King. Here, like

the attorney general in King, the Commonwealth argues that this case did not involve the

“commencement” of a misdemeanor prosecution, making Code § 19.2-8 inapplicable; therefore,

Code § 19.2-285 controls, allowing the misdemeanor conviction to stand.

       As in King, had Taylor been indicted for a misdemeanor at the time she was actually

charged with a felony, a conviction for the misdemeanor would have been barred by the statute

of limitations.5 Here, “cause” for prosecution arose sometime between January 1, 2011 and

February 23, 2012. Prosecution was commenced, with respect to the felony child endangerment

charge and, accordingly, the lesser-included battery charge, when a grand jury indicted Taylor on

April 15, 2013, approximately a year and two months after the last date in which the crime could

have occurred, February 23, 2012. Simply put, it would negate the purpose and meaning of the

statute of limitations to allow the Commonwealth to charge a defendant with a felony—after the

limitations period on a lesser-included misdemeanor had run—just to obtain a conviction on the

otherwise time-barred, lesser-included misdemeanor when the evidence proves insufficient to

convict for the greater felony.

       We are unpersuaded by the Commonwealth’s argument that Code § 19.2-285 rendered

this case a prosecution of a felony. The fact that no warrant was issued against Taylor on the

misdemeanor does not render Code § 19.2-8 inapplicable. If battery were not “substantially

charged in the indictment” for felony child endangerment, Taylor could not have been convicted


       5
         We note that, “[c]onsistent with the common law, Virginia has no general statute of
limitation on felonies.” Anderson v. Commonwealth, 48 Va. App. 704, 711, 634 S.E.2d 372,
375 (2006); see also Foster v. Commonwealth, 44 Va. App. 574, 576, 606 S.E.2d 518, 519
(2004), aff’d, 271 Va. 235, 623 S.E.2d 902 (2006).

                                               -7-
of that offense under the felony indictment. See Code § 19.2-285. In King, for example, King

was indicted for felony malicious assault, but, at the conclusion of the trial, the court instructed

the jury on only misdemeanor assault and battery. This sequence did not lead the Supreme Court

of Appeals of West Virginia to find the misdemeanor limitation period inapplicable. King was

still “prosecuted” under the statute for the misdemeanor because he was indicted, and the

prosecution presented evidence, on a greater felony that necessarily included the misdemeanor.

        Therefore, consistent with the majority rule, we hold that one cannot be convicted of a

lesser offense upon a prosecution for a greater crime, which includes the lesser offense,

commenced after the statute of limitations has run on the lesser offense.6 As the Sixth Circuit

Court of Appeals recognized, “‘Statutes of Limitation in criminal cases differ from such statutes

in civil cases, in that in civil cases they are statutes of repose, while in criminal cases they create

a bar to the prosecution.’” Benes v. United States, 276 F.2d 99, 108-09 (6th Cir. 1960) (quoting

1 Wharton, Criminal Procedure § 367, at 415 (10th ed.)).7 Thus, because prosecution was

commenced more than one year from the date of the offense, the misdemeanor conviction under

Code § 18.2-57 must be reversed.


        6
         This holding does not conflict with our Court’s limited precedent on the matter. In
Ange, the Supreme Court dismissed a bench warrant for a misdemeanor that the trial court issued
more than one year after the offense allegedly occurred. 217 Va. at 862, 234 S.E.2d at 65.
Although the felony indictment was issued more than a year after the offense, the Court
considered the date of the bench warrant for the misdemeanor as the date for “commencement”
of the prosecution of the misdemeanor, and not the date of the felony indictment, because the
misdemeanor was not a lesser-included offense of the felony. Id.; accord Hall, 2 Va. App. at 162,
342 S.E.2d at 641 (using the date of the original felony warrant as the commencement date of the
misdemeanor prosecution—“[t]he fact that the warrant . . . charged a felony . . . does not bar
prosecution for a lesser included misdemeanor so long as the prosecution was commenced
within the applicable limitation period”).
        7
          Of course, we recognize that “‘[t]he statute of limitations is a defense and must be
asserted on the trial by the defendant in criminal cases.’” United States v. Matzkin, 14 F.3d
1014, 1017 (4th Cir. 1994) (quoting Biddinger v. Comm’r of Police, 245 U.S. 128, 135 (1917))
(noting that the statute of limitations set forth in the pertinent federal statute in that case was not
jurisdictional—it was an affirmative defense that could be waived).
                                                   -8-
                                 III. CONCLUSION

For the foregoing reasons, we reverse the ruling of the trial court.

                                                                   Reversed and dismissed.




                                        -9-
