COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

DOUGLAS BRUCE SEIBERT 

v. Record No. 0138-95-4 OPINION BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA MARCH 12, 1996 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

 Joseph W. Kaestner (Brian R. Pitney; Kaestner & 

Pitney, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Appellant, Douglas Bruce Seibert, was arrested on three 

warrants, each charging him with conduct occurring over a three 

month period. The charges set forth in the warrants were 

certified to the grand jury. However, instead of seeking 

indictments against Seibert based on the certified charges, the 

Commonwealth sought, and the grand jury returned, thirty-five 

direct indictments reflecting more specifically the conduct 

Seibert had engaged in during the three month period. The direct 

indictments alleged twenty-six counts of producing sexually 

explicit material, three counts of carnal knowledge, three counts 

of aggravated sexual battery, and three counts of indecent 

liberties. The Commonwealth tried Seibert on the direct 

indictments, and the jury convicted Seibert on thirty-two of 
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them. 

 On appeal, Seibert contends that the trial court erred in 

allowing the Commonwealth to prosecute him on the direct 

indictments rather than on the charges certified to the grand 

jury. Alternatively, Seibert argues that, by directly indicting 

him, the Commonwealth violated his right to a preliminary hearing 

under Code § 19.2-2181

 because he was arrested before he was 

indicted. Seibert also contends that the offense of taking 

indecent liberties is a lesser included offense of aggravated 

sexual battery and that the evidence was insufficient to support 

separate convictions. Finding Seibert's arguments without merit, 

we affirm his convictions. 

I 

 The decision in Waye v. Commonwealth, 219 Va. 683, 251 

S.E.2d 202, cert. denied, 442 U.S. 924 (1979), is dispositive. 

In Waye, the defendant argued that 

 through a "manipulative procedure" employed 

by the Commonwealth's Attorney, he was 

improperly denied a preliminary hearing on 

the charge of capital murder. He was 

originally detained, the defendant says, on a 

non-capital charge of first degree murder, 

 

 1 Code § 19.2-218 provides: 

 No person who is arrested on a charge of 

felony shall be denied a preliminary hearing 

upon the question of whether there is 

reasonable ground to believe that he 

committed the offense and no indictment shall 

be returned in a court of record against any 

such person prior to such hearing unless such 

hearing is waived in writing by the accused. 
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was granted a preliminary hearing on that 

charge, and was certified to the grand jury. 

Then, however, the defendant asserts, the 

Commonwealth's Attorney obtained indictments 

for both capital murder and first degree 

murder and proceeded to trial on the capital 

but not the non-capital offense. This 

procedure, the defendant maintains, 

circumvented his statutory right to a 

preliminary hearing on the charge for which 

he was ultimately prosecuted. 

Id. at 688-89, 251 S.E.2d at 206. However, the Court disagreed, 

stating that 

 Code § 19.2-218 provides that "[n]o person 

who is arrested on a charge of felony shall 

be denied a preliminary hearing . . . ." 

(Emphasis added.) The defendant was not 

arrested on the charge of capital murder; he 

was indicted on that charge directly by the 

grand jury. The procedure employed in 

obtaining the indictment was not 

manipulative, and it did not work a denial of 

any statutory right to which the defendant 

was entitled. 

Id. at 689, 251 S.E.2d at 206 (citing Webb v. Commonwealth, 204 

Va. 24, 30-31, 129 S.E.2d 22, 27-28 (1963) (preliminary hearing 

not necessary where indictment found against defendant by grand 

jury)). As in Waye, Seibert was directly indicted for charges 

distinct from those on which he was arrested but which arose out 

of the same course of events. Seibert was never arrested on any 

of the felonies for which he was ultimately tried. Seibert's 

arguments that the Commonwealth was required to prosecute on the 

certified charges and that, in seeking direct indictments, the 

Commonwealth denied him the right to a preliminary hearing, are 

without merit. 
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 II 

 Seibert also argues that his convictions for taking indecent 

liberties under Code § 18.2-370.12

 should be reversed on the 

ground that these offenses are lesser included offenses of 

aggravated sexual battery under Code § 18.2-67.3.3

 2 Code § 18.2-370.1 states, in part: 

 Any person eighteen years of age or older who 

maintains a custodial or supervisory 

relationship over a child under the age of 

eighteen . . . and is not legally married to 

such child, and who, with lascivious intent, 

knowingly and intentionally . . . (ii) 

proposes to such child the performance of an 

act of sexual intercourse or any act 

constituting an offense under § 18.2-361 

[sodomy], or . . . (iv) proposes that any 

such child expose his or her sexual or 

genital parts to such person, or . . . (vi) 

sexually abuses the child as defined in 

 § 18.2-67.10(6), shall be guilty of a Class 

6 felony. 

 3 Code § 18.2-67.3 states, in part: 

 A. An accused shall be guilty of aggravated 

sexual battery if he . . . sexually abuses 

the complaining witness, and 

* * * * * * * 
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 "A lesser included offense is an offense which is composed 

entirely of elements that are also elements of the greater 

offense." Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 

S.E.2d 279, 283 (1989). In other words, "[a]n offense is not a 

lesser included offense of another if each offense contains an 

element that the other does not." Walker v. Commonwealth, 14 Va. 

App. 203, 206, 415 S.E.2d 446, 448 (1992). "Thus, in order for 

one crime to be a lesser included offense of another crime, every 

commission of the greater offense must also be a commission of 

the lesser." Kauffmann, 8 Va. App. at 409, 382 S.E.2d at 283. 

 "The determination of what offenses are necessarily included 

lesser offenses of the crime charged is based on the fundamental 

nature of the offenses involved, not on the particular facts of a 

specific case . . . ." Taylor v. Commonwealth, 11 Va. App. 649, 

652, 400 S.E.2d 794, 795 (1991). In applying the test, the 

offenses are examined in the abstract rather than with reference 

to the facts of the particular case under review. Blythe v. 

Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981). 

(..continued) 

 2. The act is accomplished against the 

will of the complaining witness, by force, 

threat or intimidation, or through the use of 

the complaining witness's mental incapacity 

or physical helplessness, and 

 a. The complaining witness is at least 

thirteen but less than fifteen years of age 

 . . . . 
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 All the elements of the crime of taking indecent liberties 

are not included in the crime of aggravated sexual battery. Only 

individuals over age eighteen who maintain a custodial 

relationship with the victim can be convicted of taking indecent 

liberties. Thus, the commission of aggravated sexual battery by 

a person under age eighteen would not constitute the crime of 

taking indecent liberties. This distinction alone is enough to 

render aggravated sexual battery and taking indecent liberties 

distinct offenses. See Kauffmann, 8 Va. App. at 409-10, 382 

S.E.2d at 284 (contributing to the delinquency of a minor 

requires the accused be at least eighteen years old, aggravated 

sexual battery does not; as such, all the elements of the former 

offense are not included within the latter offense). 

 Additionally, the commission of aggravated sexual assault by 

a person not in a custodial relationship with the victim would 

not constitute the crime of taking indecent liberties. The 

requirement of custodial relationship is not merely a basis for 

enhancing punishment, as suggested by Seibert. Under Code 

§ 18.2-370.1, the custodial relationship the accused maintains 

with respect to the victim is a predicate to guilt. Only those 

persons who maintain a custodial relationship with their victim 

can be convicted under § 18.2-370.1. Cf. Chaine v. Commonwealth, 

17 Va. App. 179, 183-85, 436 S.E.2d 187, 189-90 (1993), aff'd on 

reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994) (addressing 

Code § 18.2-361). 
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III 

 Finally, Seibert argues that all six of these convictions 

(three for taking indecent liberties, three for aggravated sexual 

battery) were impermissibly supported by the same conduct. 

However, the victim testified that Seibert engaged in the 

prohibited conduct every day for three months. The evidence 

clearly supports all six convictions. 

 Accordingly, Seibert's convictions are affirmed. 

Affirmed.