Acquittal required after motion to strike granted

Where the trial court granted a defense motion to strike for insufficient evidence, the court should have entered a judgment of acquittal.

It was error for the court to let the prosecution reopen the case to present more evidence, then deny the motion to strike and send the case to the jury.

Appellant’s two convictions for possession with intent to distribute a controlled substance, third offense, are reversed. He may be retried on the lesser included offenses of possession with intent to distribute a controlled substance, first offense.

Rule 3A:15(a) (c)

“At the time of [appellant] McBride’s trial, the Rules of Court provided:

“‘Motion to Strike Evidence. After the Commonwealth has rested its case or at the conclusion of all the evidence, the court on motion of the accused may strike the Commonwealth’s evidence if the evidence is insufficient as a matter of law to sustain a conviction[.] …

“‘Judgment of Acquittal or New Trial. The court shall enter a judgment of acquittal if it strikes the evidence or sets aside the verdict because the evidence is insufficient as a matter of law to sustain a conviction. The court shall grant a new trial if it sets aside the verdict for any other reason.’ Rule 3A:15(a), (c) (emphasis added).

“Effective March 1, 2021, many Rules – including this one – were amended to replace the word ‘shall’ with the word ‘must.’ In the preamble to these amendments, the Supreme Court explained that ‘[t]he purpose of these amendments is to clarify the meaning of the word “shall” formerly appearing in these Rules and not to change existing law.’ …

“Before this clarification, the rule was already that ‘shall is mandatory and may is permissive.’ …

“Thus, the newly amended Rule 3A:15(c) merely clarifies what was already the law. A court has discretion over whether to grant a motion to strike – ‘the court on motion of the accused may strike the Commonwealth’s evidence if the evidence is insufficient.’

“But upon granting the motion, a court has to enter a judgment of acquittal – ‘[t]he court must enter a judgment of acquittal if it strikes the evidence.’ We presume that ‘the difference in language was intentional,’ where one subsection of a statute uses the word ‘shall,’ and a different subsection of the statute uses ‘may.’ …

“The same commonsense principle applies in interpreting the Rules of Court.”

Cannot reopen

“When a defendant moves to strike the evidence as insufficient, a trial court has significant discretion about how to proceed. Even if the court agrees the evidence is insufficient, Rule 3A:15(a) does not require the court to grant the motion.

“The court can take a recess to consider the evidence, the court can take the motion under advisement, the court can opine that the evidence is thin, or the court can allow the Commonwealth to put on additional evidence.

“What the court cannot do under Rule 3A:15(c) is grant the motion to strike, ruling that the evidence is insufficient, then allow additional evidence to be presented and enter a different ruling based on that added evidence.

“The court’s failure to enter an order of acquittal here was an error of law, and thus an abuse of discretion requiring reversal. ‘When an appellant successfully challenges the sufficiency of the evidence on some (but not all) aspects of his conviction, we must determine if the proven elements of the original charge qualify as a lesser-included offense.’ …

“‘If so, the appropriate remedy on appeal is a reversal of the conviction on the greater charge and a remand of the lesser charge for retrial – assuming the Commonwealth, in its prosecutorial discretion, chooses to go forward on the lesser charge.’ …

“Because PWID, first offense is a lesser-included offense of PWID, third offense, we vacate McBride’s convictions for both PWID third offenses and remand for retrial on the PWID first offenses, if the Commonwealth be so advised.”

McBride v. Commonwealth, Record No. 1354-21-4, Oct. 4, 2022. CAV (Lorish). From the Circuit Court of Fairfax County (Gardiner) Donna L. Biderman for appellant. Katherine Quinlan Adelfio, Jason S. Miyares for appellee. VLW 022-7-426, 19 pp.