                     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.
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.




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