Jury instructions did not match verdict form

Where the jury verdict form omitted the element of defendant’s age, defendant cannot be subjected to a sentencing enhancement requiring life sentences for rape and forceable sodomy if the victim is less than 13 years old and the defendant’s age is 18 years or over.

Introduction

The 40-year-old defendant was charged with rape and forceable sodomy of a child who was 11 and 12 when the offenses occurred. A jury found defendant guilty of both charges. Both charges have a sentencing enhancement – a mandatory life sentence if the defendant is 18 or over and the victim is less than 13.

Defendant’s post-trial motion argues that the jury verdict form for each charge was flawed.

“Specifically, the defendant asserts that the verdict form used by the jury was deficient because it did not contain a specific finding provision to wit: the defendant’s age (18 or older). He argues that the enhanced statutory punishment provision is akin to an ‘aggravated factor’ that must be proven beyond a reasonable doubt.

“In order to assure that the jury unanimously found this particular factor beyond a reasonable doubt, he insists, such element must be included in the verdict form.

“The Commonwealth argues that the true verdict of the jury may be determined from a review of all of the instructions taken together as a whole. The Commonwealth asserts that three of five instructions relating to the ages of the victim and defendant, require the jury to determine the defendant was over the age of 18 as an essential element of the offense.

“Thus, the Commonwealth argues that the court should find that, as a matter of record, the jury has spoken as to all essential elements. …

“[T]his court agrees with the defendant’s argument. Accordingly, this court will grant the defendant’s requested relief, and treat his sentencing for Rape and Forcible Sodomy according to the punishment range that directly corresponds with the particular verdict expressed by the jury within its verdict form.”

Analysis

“[I]n Virginia, there are at least two reasons a jury verdict form should contain an accurate and express recitation of all offense specific elements which were found by the jury.

“First, because Virginia’s longstanding criminal procedure preference demands accuracy within a verdict form sufficient to assure the precise finding of the jury.

“Second, Due Process, as a constitutional requirement, demands that any fact, other than a prior conviction, that enhances punishment for a base crime creates a new species of the offense that must be unanimously resolved by the jury beyond a reasonable doubt. Prieto v. Commonwealth, 278 Va. 366, 682 S.E.2d 910 (2009).

“The Virginia Supreme Court resolved this principle in Prieto without any ambiguity. Prieto was a double murder case in which the jury imposed the death penalty. At the time, such penalty could only be imposed upon the jury’s determination that one of two enhanced penalty factors (or perhaps both) existed in the commission of the murder(s).

“In Prieto, among other issues, a verdict form failed to recite that either or both of such ‘aggravating’ factual elements were unanimously found by the jury beyond a reasonable doubt. … [T]he Court found reversible error even though three separate jury instructions were simultaneously given to the jury that implicitly explained this legal requirement.

“Hence, the ‘real intent’ of the jury analysis in [Jackson v. Commonwealth, 218 Va. 490 (1977)], where a verdict can by understood by ‘necessary implication,’ when reading the instructions in conjunction with the verdict form, does not constitute a safe harbor where Due Process is the measure of procedural accuracy in determining exactly what the jury has unanimously found beyond a reasonable doubt.”

Conclusion

“The highest form of the indictment, for which the Defendant was charged, that can be precisely found in the jury’s written verdict is guilty of Statutory Rape of a child and Forcible sodomy of a child under 13 years of age. A species of this offense, that was also charged and instructed, but which was not set out in the verdict form, i.e., that such crime was committed by a person 18 years of age or older cannot be confirmed by a facial review of the verdict form used by the jury.

“Thus, this court will impose a discretionary sentence according to the limits of the legislative penalty range attached to each crime committed by the Defendant in the instant case.”

Chavez v. Commonwealth, Record Nos. 34014-00, 34014-01, May 2, 2022, From the Circuit Court of Loudoun County (Fisher). VLW 022-8-042, 13 pp.