Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and 

Agee, JJ., and Compton, S.J. 

RICHARD J. ELLIOTT 

v. Record No. 003014 

COMMONWEALTH OF VIRGINIA 

JONATHAN O'MARA 

v. Record No. 010038 OPINION BY 

JUSTICE DONALD W. LEMONS 

COMMONWEALTH OF VIRGINIA MARCH 5, 2004 

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES 

 On remand from the Supreme Court of the United States, we 

consider the proper construction of the prima facie evidence 

provision of Code § 18.2-423 and the severability of the 

provision from the core provisions of the statute. 

Additionally, we consider whether the convictions of the 

defendants should be vacated and dismissed, vacated with the 

opportunity for the Commonwealth to retry the defendants, or 

whether the convictions should be affirmed. 

I. Facts and Proceedings Below 

 On the night of May 2, 1998, Richard J. Elliott, 

("Elliott") and Jonathan S. O'Mara ("O'Mara") erected a cross 

in the yard of James S. Jubliee, Elliott's next-door neighbor, 

and attempted to ignite it. According to the record, Elliott 

conceived of the cross burning as revenge against Jubliee 
because Jubliee had complained to Elliott's mother about 

gunfire in Elliott's backyard. Elliott convinced two friends, 

O'Mara and David Targee, to aid him in the burning. 

 The Commonwealth prosecuted Elliott and O'Mara for 

attempted cross burning and conspiracy to commit cross burning 

under Code §§ 18.2-423, 18.2-16, and 18.2-22. O'Mara pled 

guilty to attempted cross burning and conspiracy to commit 

cross burning but conditioned his plea upon the reservation of 

his right to challenge the constitutionality of Code § 18.2-

423 on appeal. Elliott chose to be tried by a jury. The 

trial court instructed the jury that in order to find Elliott 

guilty of attempted cross burning, "The Commonwealth must 

prove beyond a reasonable doubt . . . [t]hat the defendant had 

the intent of intimidating any person or group of persons." 

No instruction based upon the prima facie evidence provision 

of Code § 18.2-423 was given. A jury found Elliott guilty of 

attempted cross burning but acquitted him of conspiracy to 

commit cross burning. 

 In Black v. Commonwealth, 262 Va. 764, 553 S.E.2d 738 

(2001), an appeal consolidating the Elliott and O'Mara cases 

with a third case involving Barry E. Black ("Black"), who was 

charged under § 18.2-423 for burning a cross at a Ku Klux Klan 

rally, we held that § 18.2-423 was facially invalid as 

selective regulation of speech based upon content. Our ruling 

2
was premised upon the language of the statute and our 

interpretation of the United States Supreme Court's ruling in 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). We held that 

the statute was underinclusive, because it singled out "a 

particular form of intimidating symbolic speech" for 

punishment while leaving other forms unregulated. Black v. 

Commonwealth, 262 Va. at 773-76, 553 S.E.2d at 743-45. 

Additionally, we held that the language of the prima facie 

evidence provision of the statute was overbroad because of its 

chilling effect upon the exercise of free speech under the 

First Amendment. Id. at 777-78, 553 S.E.2d at 746. 

 The Commonwealth appealed our decision to the United 

States Supreme Court. In a plurality opinion authored by 

Justice O'Connor, the Supreme Court held that the Commonwealth 

may engage in content discrimination "[w]hen the basis for the 

content discrimination consists entirely of the very reason 

the entire class of speech at issue is proscribable." 

Virginia v. Black, 538 U.S. 343, 361 (2003). Thus, the 

Commonwealth may prohibit cross burning with intent to 

intimidate, even though it fails to prohibit the burning of 

other objects, because cross burning is significantly more 

likely to intimidate. Id. at 363. 

 Although it concluded that the core provisions of Code 

§ 18.2-423 were constitutional, the Supreme Court held that 

3
the prima facie evidence provision of the statute was 

unconstitutional because it "strips away the very reason why a 

State may ban cross burning" − the intent to intimidate. Id.

at 365. Using the language of the jury instruction given in 

the case involving Black as the interpretation of the prima 

facie evidence provision, the Supreme Court held that the 

provision "as interpreted by the jury instruction" was 

unconstitutionally overbroad. Id. at 364. 

 The Supreme Court vacated the judgment in Black v. 

Commonwealth, dismissed the case against Black, and remanded 

the Elliott and O'Mara cases to this Court to determine 

whether the jury instruction given in Black's trial was the 

proper interpretation of the prima facie evidence provision, 

whether the prima facie evidence provision could be severed 

from the statute if a constitutional interpretation could not 

be found, and the proper disposition of the cases against 

Elliott and O'Mara. Virginia v. Black, 538 U.S. at 367-68. 

II. Analysis 

A. Constitutionality of the 

Prima Facie Evidence Provision 

 Code § 18.2-423, in effect at the time defendants 

committed the offenses, provided: 

It shall be unlawful for any person or 

persons, with the intent of intimidating any 

person or group of persons, to burn or cause to 

4
be burned, a cross on the property of another, 

a highway or other public place . . . 

Any such burning of a cross shall be prima 

facie evidence of an intent to intimidate a 

person or group of persons. 

A violation of this section is punishable as a Class 6 felony. 

 In Black v. Commonwealth, we held that the prima facie 

evidence provision "sweeps within its ambit for arrest and 

prosecution, both protected and unprotected speech." 262 Va. 

at 778, 553 S.E.2d at 746. We based our holding directly on 

the language of the statute, not the language of the jury 

instruction used at Black's trial, because the statute itself 

was the common thread among the three procedurally and 

factually distinct cases. 

 Although the Commonwealth suggests an alternate 

interpretation for the prima facie evidence provision,* we hold 

that the instruction given at Black's trial properly 

interprets the prima facie evidence provision of Code § 18.2-

423. The instruction provided: "The burning of a cross, by 

itself, is sufficient evidence from which you may infer the 

required intent." Of course, no one jury instruction contains 

all of the applicable law in a given case. The law applicable 

to the case is contained in multiple instructions which, taken 

 *

 The Commonwealth argues that adding a statement to the 

instruction explaining to the jury that prima facie evidence 

is rebuttable would properly interpret the statute and remove 

all concerns regarding constitutionality. 

5
collectively, give proper guidance to the jury. See Van Duyn 

v. Matthews, 181 Va. 256, 261, 24 S.E.2d 442, 444 (1943); 

Adamson v. Norfolk & Portsmouth Traction Co., 111 Va. 556, 

561, 69 S.E. 1055, 1058 (1911). 

The subject instruction must be read in context with the 

general instructions given in virtually every criminal jury 

trial in Virginia concerning reasonable doubt, presumption of 

innocence, and the credibility of witnesses. These additional 

instructions reflect general principles of criminal law and 

procedure including that the defendant is not required to 

produce any evidence, that the Commonwealth bears the burden 

of proof beyond a reasonable doubt on every element of the 

offense, that the jury must give impartial consideration to 

all the evidence presented, and that the jury must weigh the 

credibility of witnesses but may not arbitrarily disregard 

believable testimony. Taken in context of the other 

instructions, the subject instruction concerning the prima 

facie evidence provision of Code § 18.2-423 properly 

interprets the provision, but it does not save the provision 

from unconstitutionality. 

 In Black v. Commonwealth, 262 Va. at 777-78, 553 S.E.2d 

at 745-46, we held that the statutory provision concerning 

prima facie evidence of intent to intimidate affects both 

6
protected and unprotected speech, and consequently, is 

overbroad. The plurality in Virginia v. Black agreed: 

The prima facie evidence provision permits a 

jury to convict in every cross-burning case in 

which defendants exercise their constitutional 

right not to put on a defense. And even where 

a defendant like Black presents a defense, the 

prima facie evidence provision makes it more 

likely that the jury will find an intent to 

intimidate regardless of the particular facts 

of the case. The provision permits the 

Commonwealth to arrest, prosecute, and convict 

a person based solely on the fact of cross 

burning itself. 

It is apparent that the provision as so 

interpreted " 'would create an unacceptable 

risk of the suppression of ideas.' " The act 

of burning a cross may mean that a person is 

engaging in constitutionally proscribable 

intimidation. But that same act may mean only 

that the person is engaged in core political 

speech. The prima facie evidence provision in 

this statute blurs the line between these two 

meanings of a burning cross. As interpreted by 

the jury instruction, the provision chills 

constitutionally protected political speech 

because of the possibility that a State will 

prosecute − and potentially convict − somebody 

engaging only in lawful political speech at the 

core of what the First Amendment is designed to 

protect. 

538 U.S. at 365 (citations omitted). The plurality opinion in 

Virginia v. Black properly noted that we "had the opportunity 

to expressly disavow the jury instruction." 538 U.S. at 364. 

We did not disavow it then and we do not accept the invitation 

to do so now. Accordingly, we affirm our prior holding that 

7
the prima facie evidence provision of Code § 18.2-423 is 

overbroad. 

B. Severability of the Prima 

Facie Evidence Provision 

 Elliott and O'Mara have argued that the unconstitutional 

prima facie evidence provision cannot be severed from the 

remainder of the statute and that, even if it is otherwise 

possible to sever the prima facie evidence provision, the 

procedural history of these cases prevents us from severing 

the provision on remand. We reject both arguments. 

1. Severability 

 Code § 1-17.1, first enacted in 1986, provides that 

"[t]he provisions of all statutes are severable unless (i) the 

statute specifically provides that its provisions are not 

severable; or (ii) it is apparent that two or more statutes or 

provisions must operate in accord with one another." Prior to 

the enactment of this statute, "[a]bsent a severability 

provision, a legislative act [was] presumed to be nonseverable." Board of Sup. of James City County v. Rowe, 216 

Va. 128, 147, 216 S.E.2d 199, 214 (1975). Code § 1-17.1 

changed that rule and provided a rule of construction for the 

courts to apply to interpret even statutes passed prior to 

1986. If the General Assembly intended for § 1-17.1 to apply 

only to statutes passed after 1986, it could have included 

8
such language in the section. Instead, the statute refers 

broadly to "[t]he provisions of statutes in this Code," 

without reference to dates of enactment. 

 Code § 18.2-423 does not fall within either of the 

exceptions to the rule of severability established in § 1-

17.1. The cross burning statute does not contain language 

stating that its parts are not severable, nor is the prima 

facie evidence provision necessary to the operation of the 

remainder of the statute. The fact that the provision is not 

inextricably intertwined with the rest of the statute is 

illustrated by the fact that the cross burning statute, now 

codified at § 18.2-423, existed for 16 years, from 1952 to 

1968, without the prima facie evidence provision. See Code 

§ 18.1-365 (Supp. 1968). The statute was and can be effective 

now in punishing intimidation without the prima facie evidence 

provision. Therefore, we hold that the prima facie evidence 

provision is severable. 

2. Waiver of Severability 

 Elliott and O'Mara argue in this proceeding that the 

Commonwealth waived the issue of severability by failing to 

raise it prior to the appeal to the United States Supreme 

Court. We disagree. 

 First, it would be incongruous to place the burden of 

raising severability on the Commonwealth in this case when 

9
neither Elliott nor O'Mara relied specifically on the 

unconstitutionality of the prima facie evidence provision 

prior to the Commonwealth's appeal to the United States 

Supreme Court. The Commonwealth properly responded to the 

arguments raised by Elliott and O'Mara in their briefs to this 

Court, which revolved around the unconstitutionality of 

banning cross burning as a general matter. 

 A more elemental flaw in the waiver argument advanced by 

Elliott and O'Mara is that it presumes that severability is an 

issue that must be raised by one of the parties. 

Severability, as codified in § 1-17.1, is a rule for judicial 

construction of statutes. As such, the possibility of 

severance cannot be waived by a party to a suit by failure to 

raise it. Rather, it is the duty of the Court, faced with a 

constitutional challenge to a statute, to consider sua sponte

whether an invalid portion of a statute may be severed to 

permit the continued operation of the constitutional portion 

of the statute. The Court cannot be forced to accept a flawed 

construction of a statute or prevented from saving a statute 

from invalidity simply because of an oversight or tactical 

decision by one or both of the parties. For these reasons, we 

hold that the prima facie evidence provision of Code § 18.2-

423 is severable from the remainder of the statute. 

C. Application of the Brandenburg Standard 

10
Because we held that Code § 18.2-423 was unconstitutional 

for other reasons in Black v. Commonwealth, we found it 

unnecessary to address challenges to the constitutionality of 

the statute based upon Brandenburg v. Ohio, 395 U.S. 444, 

(1969). Nonetheless, the parties addressed Brandenburg issues 

before the United States Supreme Court. The plurality opinion 

of the United States Supreme Court is silent concerning 

Brandenburg; however, the language of the opinion precludes 

any consideration of Brandenburg on remand. 

 The oft-cited case of Brandenburg v. Ohio involved a Ku 

Klux Klan rally not unlike the facts presented in Black's 

case. The United States Supreme Court held that 

the constitutional guarantees of free speech 

and free press do not permit a State to forbid 

or proscribe advocacy of the use of force or of 

law violation except where such advocacy is 

directed to inciting or producing imminent 

lawless action and is likely to incite or 

produce such action. 

395 U.S. at 447. 

 Elliott and O'Mara argue that because we chose not to 

address Brandenburg challenges in Black v. Commonwealth and 

the United States Supreme Court plurality opinion in Virginia 

v. Black is silent concerning Brandenburg, that we should 

consider such a challenge on remand. We disagree. 

 Clearly, Brandenburg addresses First Amendment concerns. 

Equally clearly, the United States Supreme Court plurality 

11
opinion in Virginia v. Black held that "[a] ban on cross 

burning carried out with the intent to intimidate is fully 

consistent with our holding in R.A.V. and is proscribable 

under the First Amendment." 538 U.S. at 363. With the 

Brandenburg issues before the Supreme Court of the United 

States, it is inconceivable that the Court could make such a 

clear statement about cross burning with the intent to 

intimidate being "proscribable under the First Amendment" if 

it had any concerns about failure to meet the Brandenburg

tests. 

D. Constitutionality of § 18.2-423 

under the Virginia Constitution 

 In Black v. Commonwealth, 262 Va. at 778 n.10, 553 S.E.2d 

at 746 n.10, we declined to address claims that Code § 18.2-

423 violates Article I, § 12 of the Constitution of Virginia. 

On remand, quoting Robert v. City of Norfolk, 188 Va. 413, 

420, 49 S.E.2d 697, 700 (1948), Elliott and O'Mara argue that 

the "Constitution of Virginia is broader than that of the 

United States in providing that − 'any citizen may freely 

speak, write and publish his sentiments on all subjects.' " 

Elliott and O'Mara accurately recite the statement from 

Robert; however, it is dictum. We take this opportunity to 

declare that Article I, § 12 of the Constitution of Virginia 

is coextensive with the free speech provisions of the federal 

12
First Amendment. Consequently, consistent with the plurality 

opinion of the United States Supreme Court in Virginia v. 

Black, we hold that, after severance of the provision 

concerning prima facie evidence of intent, Code § 18.2-423 

does not violate the First Amendment or Article I, § 12 of the 

Constitution of Virginia. 

E. Disposition of Elliott and O'Mara's Convictions 

 In the trial court, Elliott was tried by a jury; however, 

no jury instruction involving the prima facie evidence 

provision was given. In the trial court, O'Mara pled guilty, 

reserving his right to challenge the constitutionality of Code 

§ 18.2-423 on appeal. In its remand, the Supreme Court of the 

United States "[left] open the possibility that . . . Elliott 

and O'Mara could be retried under § 18.2-423." 538 U.S. at 

367. Elliott and O'Mara argue that retrial would violate the 

Double Jeopardy Clause of the Fifth Amendment. It is not 

necessary to address their concerns regarding retrial because 

we hold that retrial is not required under the procedural 

postures of these cases. 

 Elliott was convicted by a jury that did not receive an 

instruction regarding the prima facie evidence provisions. He 

was convicted by the jury as if the provision was not in the 

statute. He cannot be heard to complain about the 

13
unconstitutionality of a provision of the statute, found 

severable, that played no part in his trial. 

 O'Mara's plea agreement in the trial court recites in 

part: 

Pursuant to Section 19.2-254 of the Code of 

Virginia, the Commonwealth consents to allowing 

the defendant to plead guilty to both charges, 

conditioned upon the reservation of right to 

appeal the ruling . . . regarding the 

constitutionality of Section 18.2-423 of the 

Code of Virginia. If the defendant prevails at 

the conclusion of the appeal process, he shall 

be allowed to withdraw his plea. 

Additionally, a written Stipulation of Facts was signed by 

O'Mara, his counsel, and the attorney for the Commonwealth 

that stated: 

On May 2, 1998, David Targee had approximately 

fifteen individuals, including Jonathan O'Mara 

and Richard Elliott, at his residence in 

Virginia Beach. They were all consuming 

alcohol. Elliott complained to Targee and 

O'Mara about his neighbor and about how he 

wanted to "get back" at him. It was suggested 

(not by O'Mara) that they burn a cross in 

Elliott's neighbor's yard. O'Mara and Targee 

agreed, and they all went to Targee's garage 

where a cross was built. They all got in 

Targee's truck and drove to Munden Point Road 

in Virginia Beach. Targee was driving, with 

O'Mara in the front passenger seat and Elliott 

in the back seat. Once there, Elliott handed 

the cross to O'Mara, who also grabbed a can of 

lighter fluid and went outside and placed the 

cross in the yard of Elliott's neighbor. He 

then poured lighter fluid on the cross, set it 

on fire, and ran back to the car. Targee drove 

them back to his house. The next morning, 

Elliott's neighbor, James Jubilee, came out of 

his house and observed the partially burned 

14
cross in his yard. He broke the cross and 

placed [it] in the garage. He later called the 

police. 

Lastly, on the form entitled "Questions Asked the Defendant 

Before the Court Accepts a Plea of Guilty," O'Mara answered 

"yes" to the written question, "Are you entering the plea of 

guilty because you are, in fact, guilty of the crime(s) 

charged?" 

 On appeal to this Court from the trial court, O'Mara 

never argued that the prima facie evidence provision of the 

statute rendered the statute unconstitutional. His claim of 

unconstitutionality was based upon arguments related to the 

R.A.V. case and the Brandenburg case. The prima facie 

evidence provision clearly played no part in his plea 

agreement and no part in his appeal to this Court. O'Mara has 

waived any claim of error based upon the unconstitutionality 

of the prima facie evidence provision. Rule 5:25. 

 Finally, in our order of August 29, 2003, we directed the 

parties to address certain issues on remand from the United 

States Supreme Court. One of those issues concerning the 

prima facie evidence provision was: 

If the final sentence is not amenable to an 

interpretation that would render it 

constitutional, but it is severable, could 

Richard J. Elliott and/or Jonathan O'Mara be 

retried under § 18.2-423? More specifically, 

should the Court order (a) that Elliott's 

and/or O'Mara's convictions stand with no right 

15
to retrial, (b) that Elliott's and/or O'Mara's 

convictions are vacated, but the Commonwealth 

may retry either or both appellants, or (c) 

that Elliott and/or O'Mara's convictions are 

vacated, but the Commonwealth may not retry 

either or both defendants? 

In response, O'Mara only argued that his conviction should be 

vacated and that he should not be retried. We note that 

O'Mara does not assert that he has the right to withdraw his 

guilty plea. Further, we note that O'Mara has not prevailed 

on any issue he raised on appeal. 

III. Conclusion 

For the reasons discussed above, we hold that the prima 

facie evidence provision of Code § 18.2-423 is 

unconstitutionally overbroad under the First Amendment and 

Article I, § 12 of the Constitution of Virginia. We hold that 

the statute is severable and that the core provisions of the 

statute that remain do not violate the First Amendment or 

Article I, § 12 of the Constitution of Virginia. There is no 

need to order retrials; consequently, the convictions of 

Richard J. Elliott and Jonathan S. O'Mara will be affirmed. 

Affirmed.

16