Criminal – Court rejects Double Jeopardy Clause argument

Where the defendant argued that imposition of multiple sentences under Code §§ 18.2-67.2 (object sexual penetration) and 18.2-67.3 (aggravated sexual battery) for the same conduct violates the Double Jeopardy Clause, this argument was rejected. Because each offense contains an element the other does not, the General Assembly is presumed to have authorized separate punishments.

Background

Dorian Omar Chavarria appeals the final sentencing order of the circuit court. Chavarria argues that the imposition of multiple sentences under Code §§ 18.2-67.2 (object sexual penetration) and 18.2-67.3 (aggravated sexual battery) for the same conduct violates the Double Jeopardy Clause. Chavarria also argues the trial court erred in denying his motions to strike and the motions to set aside the verdict on the two counts of aggravated sexual battery.

Chavarria also argues the trial court erred in failing to grant a mistrial or set aside the verdict, and in failing to question an excused alternate juror, based on a private conversation she had with a deliberating juror in the courthouse lunchroom after closing arguments.

Double Jeopardy

When a defendant raises a double-jeopardy claim premised on multiple punishments, this court must first examine whether the statutory text or legislative history unambiguously establishes the General Assembly’s intent to authorize, or prohibit, cumulative punishment. Where the legislature has expressed a clear intent to impose multiple punishments, that expression is dispositive and application of the analysis in Blockburger v. United States, 284 U.S. 299 (1932), is unnecessary.

Here, however, the relevant statutory provisions, while not ambiguous, are silent as to whether separate punishments are authorized for conduct that implicates both offenses. Accordingly, legislative intent must be ascertained by resorting to the Blockburger test.

Under Blockburger, two offenses arising from the same act or transaction are not the “same offense” for double-jeopardy purposes if each statutory provision requires proof of a fact that the other does not. Object sexual penetration under Code § 18.2-67.2 requires proof of penetration of the labia majora or anus with an animate or inanimate object, an element not required by aggravated sexual battery under Code § 18.2-67.3.

Conversely, aggravated sexual battery requires proof of “sexual abuse,” as defined in Code § 18.2-67.10(6), demanding a specific intent to sexually molest, arouse, or gratify—an element not required to prove object sexual penetration, a general-intent offense requiring only the voluntary commission of the prohibited act. Because each offense contains an element the other does not, the Blockburger test is satisfied, and the General Assembly is presumed to have authorized separate punishments.

Sufficiency

The evidence was sufficient to support the convictions for aggravated sexual battery independent of the penetration offenses, as the act of anal penetration necessarily encompasses the touching of an intimate part and the jury could permissibly infer the specific intent to molest, arouse or gratify from the nature and circumstances of the conduct.

Mistrial

Although Chavarria alluded to possible juror misconduct after closing arguments, he neither moved for a mistrial nor requested that the trial court examine the excused juror at the time of the alleged error. Rule 5A:18 of the Rules of the Supreme Court of Virginia requires that an objection be stated with reasonable certainty at the time of the ruling; a general or abstract reference to a concerning circumstance does not satisfy this requirement. Because Chavarria failed to present the issue to the trial court with the requisite specificity, the claim is procedurally defaulted, and the trial court was not obligated to act on its own.

Affirmed.

Chavarria v. Commonwealth, Record No 0170-25-4, April 7, 2026. CAV (Bernhard). From the Circuit Court of Prince William County (Willett). Brett P. Blobaum, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant. Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-128. 26 pp.

Full-Text Opinion

VLW 026-7-128
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