Criminal- Evidence supports arson conviction

Where a man argued the trial court violated his double jeopardy protections by convicting him of multiple counts of indecent liberties, because the acts underlying his convictions were a part of a continuous transaction, this argument failed. The statute authorizes multiple punishments for distinct acts prohibited by the statute.

Background

Following a jury trial, the trial court convicted Christian Thomas Perry of one count of aggravated sexual battery and three counts of taking indecent liberties with a child under the age of 15.

Double jeopardy

Perry argues that the trial court violated his double jeopardy protections by convicting him of multiple counts of indecent liberties. He contends that the acts underlying his convictions constitute a single offense because they were a part of a continuous transaction. This court disagrees.

The trial court convicted Perry of three separate violations of Code § 18.2-370(A): (1) for exposing his penis to J.S.; (2) for proposing that J.S. perform oral sex on him and (3) for asking to touch and fondle J.S.’s genitals. Perry argues that these acts were part of a continuous transaction because he committed them within a relatively short period of time, in the same location, and with the same victim. Thus, he contends they constitute a single offense.

Perry’s contention is misguided. Code § 18.2-370(A) proscribes “any” of the distinct acts listed. “This disjunctive language indicates that the legislature intended each act [to] constitute a discrete unit of prosecution.” “This interpretation parallels our understanding of the appropriate units of prosecution under other sex crime statutes.” Thus, the statute authorizes multiple punishments for distinct acts prohibited by the statute.

Perry committed three distinct acts that are prohibited by Code § 18.2-370(A). Perry’s convictions are consistent with the legislature’s intention to create a discrete unit of prosecution for each act prohibited by the statute. Accordingly, all of his indecent liberties convictions are affirmed.

Recall

After J.S. testified on the first day of trial, the Commonwealth informed the trial court that J.S. was subject to recall and, accordingly, asked the court not to excuse her. On the second day of trial, the Commonwealth recalled J.S., and Perry objected, arguing that doing so gave the Commonwealth “another bite at the apple.” The trial court overruled Perry’s objection, finding that it had the discretion to allow additional testimony. During her testimony on the second day, J.S. clarified and supplemented certain aspects of her prior testimony.

“A trial court exercises discretion in deciding whether to permit the recall of witnesses for further examination.” Contrary to Perry’s assertions, this court does not see how the trial court “ran afoul of [the] latitude it is normally afforded.” When the Commonwealth recalled J.S., her testimony supplemented and clarified prior testimony. She did not simply reiterate her prior testimony. Nothing in the record otherwise suggests an abuse of discretion. Accordingly, the trial court did not err when it permitted the Commonwealth to recall J.S. for additional testimony.

Sufficiency

Perry finally contends that the evidence was insufficient to sustain his aggravated sexual battery conviction. Specifically, he argues that the Commonwealth failed to prove the element of force, threat or intimidation. This court declines to consider this argument, however, because Perry failed to properly raise it below.

Without conceding that he did not raise the argument below, Perry asks this court to invoke the ends of justice exception. Perry has failed to meet his burden to justify invoking the ends of justice exception.

He merely asserts that we should invoke the exception “because an element of the offense is missing” and, thus, “it would be a grave injustice to uphold [his] conviction.” His argument focuses on the lack of evidence, but “[l]ack of proof is not affirmative evidence to the contrary, which would warrant exercising the ‘ends of justice’ exception to Rule 5A:18.” In other words, Perry’s “argument misses ‘the distinction between lack of proof of an element and affirmative proof that the element did not occur.’”

Affirmed.

Perry v. Commonwealth, Record No. 0423-25-3, April 21, 2026. CAV (Atlee Jr.). From the Circuit Court of Carroll County (Geisler). Jonathan P. Sheldon (Sheldon & Flood, PLC, on briefs), for appellant. Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-152. 10 pp.

Full-Text Opinion

VLW 026-7-152
Virginia Lawyers Weekly