COURT OF APPEALS OF VIRGINIA 

Present: Judges Petty, Beales and Decker 

Argued at Lexington, Virginia 

REBECCA K. TAYLOR, S/K/A 

 REBECCA KNIGHT TAYLOR 

 OPINION BY 

v. Record No. 2213-13-3 JUDGE WILLIAM G. PETTY 

 JANUARY 27, 2015 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

Bruce D. Albertson, Judge 

 R. Shannon Kite (Cook Attorneys, P.C., on brief), for appellant. 

 Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee. 

 Rebecca K. Taylor was convicted of battery pursuant to Code § 18.2-57. On appeal, she 

argues (1) the trial court erred in denying her motion to strike and in failing to grant her motion to 

set aside the verdict as to the sufficiency of the evidence regarding the battery charge because the 

conduct did not exceed the bounds of lawful parental discipline; and (2) the trial court erred in 

denying her motion to set aside the verdict because the misdemeanor was not timely prosecuted 

under Code § 19.2-8.1

 For the reasons stated below, we reverse the judgment of the trial court. 

I. BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 

 1

 Because we hold that prosecution of the misdemeanor battery charge was not timely 

commenced, and therefore dismiss the charge for that reason, we need not address Taylor’s first 

assignment of error regarding the sufficiency of the evidence. 

PUBLISHED 
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26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987)). 

 So viewed, the record establishes that on April 15, 2013, a grand jury indicted Taylor for 

felony child endangerment in violation of Code § 40.1-103. The indictment alleged that the 

offense occurred between January 1, 2011 and February 23, 2012. On September 25, 2013, a 

bench trial was held on the charge. Taylor made a motion to strike at the conclusion of the 

Commonwealth’s evidence. She renewed her motion to strike at the conclusion of the defense’s 

case. The trial court overruled the motion to strike. At the conclusion of the trial, the court 

withheld judgment and continued the case until September 30, 2013 for the purpose of reviewing 

relevant precedent on the matters before it. 

 On September 30, 2013, the trial court held that the evidence was insufficient to convict 

Taylor of the charged crime of child endangerment; however, it held that the evidence was 

sufficient to convict Taylor of the misdemeanor offense of battery under Code § 18.2-57, which 

it concluded was a lesser-included offense of child endangerment. No warrant, bench or 

otherwise, was issued against Taylor on that misdemeanor charge. Taylor then made a motion to 

set aside the verdict, objecting to the sufficiency of the evidence and the trial court’s ruling that 

battery is a lesser-included offense of Code § 40.1-103.2

 Taylor also alleged that even if battery 

is a lesser-included offense of child endangerment, prosecution of that misdemeanor was 

commenced more than one year from the date of the offense and thus was barred by the statute of 

limitations. The trial court denied the motion, found Taylor guilty of battery, and sentenced her 

to eight months of incarceration. Taylor appeals that conviction here. 

 2

 We note that although Taylor contemporaneously objected to the trial court’s finding 

that battery is a lesser-included offense of child endangerment, she did not assign error to that 

finding here. Thus, we will assume without deciding that misdemeanor battery is a 

lesser-included offense of felony child endangerment. 
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II. ANALYSIS

Taylor argues that the trial court erred in denying her motion to set aside the verdict 

because the misdemeanor was not timely prosecuted pursuant to Code § 19.2-8. We agree. 

 “Whether a claim is barred by the statute of limitations is a question of law. This Court 

‘review[s] questions of law de novo.’” Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 

284, 623 S.E.2d 433, 437 (2005) (quoting Tomes v. James City Fire, 39 Va. App. 424, 430, 573 

S.E.2d 312, 315 (2002) (internal quotation marks and citation omitted)). Furthermore, when 

reviewing the statutory language, “we must give effect to the legislature’s intention as expressed 

by the language used unless a literal interpretation of the language would result in a manifest 

absurdity.” Conyers v. Martial Arts World, 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). “If a 

statute is subject to more than one interpretation, we must apply the interpretation that will carry 

out the legislative intent behind the statute.” Id. 

Code § 19.2-8 states, “A prosecution for a misdemeanor . . . shall be commenced within 

one year next after there was cause therefor . . . .” We have previously held that “[t]he issuance 

of a warrant commences a prosecution within the meaning of this provision.” Hall v. 

Commonwealth, 2 Va. App. 159, 162, 342 S.E.2d 640, 641 (1986) (citing Ange v. 

Commonwealth, 217 Va. 861, 862, 234 S.E.2d 64, 65 (1977)); cf. Phillips v. Commonwealth, 

257 Va. 548, 553, 514 S.E.2d 340, 343 (1999) (noting that a prosecution “is the process in which 

an accused is brought to justice from the time a formal accusation is made through trial and final 

judgment in a court of appropriate jurisdiction”). This case, however, presents an issue not yet 

considered by the courts of the Commonwealth of Virginia: whether one can be convicted of a 

lesser offense upon a prosecution for a greater crime, which includes the lesser offense, 

commenced after the limitations period has run on the lesser offense. 
 - 4 - 

In Hall, we held that the Commonwealth’s prosecution of the defendant for a 

lesser-included misdemeanor was not barred by the statute of limitations because the warrant and 

subsequent indictment charging the defendant with a greater felony was commenced within the 

statute of limitations for the misdemeanor. Hall, 2 Va. App. at 162-63, 342 S.E.2d at 641-42. In 

dicta, we left open the resolution of the issue presented in this case, noting in a footnote that 

“most authorities agree that the commencement of a felony prosecution after the running of the 

limitation period for a necessarily included misdemeanor offense would result in a bar to a 

conviction for the necessarily included lesser offense.” Id. at 162 n.2, 342 S.E.2d at 641 n.2. 

Although we have not had an occasion to consider this issue, the overwhelming majority 

of American courts that have addressed it have concluded that one cannot be convicted of a 

lesser-included offense upon a prosecution for the greater crime when the prosecution is 

commenced after the limitations period has run on the lesser offense. See Waters v. United 

States, 328 F.2d 739 (10th Cir. 1964); Askins v. United States, 251 F.2d 909 (D.C. Cir. 1958); 

Spears v. State, 160 So. 727 (Ala. 1935); Padie v. State, 557 P.2d 1138 (Alaska 1976); Drott v. 

People, 206 P. 797 (Colo. 1922); Cane v. State, 560 A.2d 1063 (Del. 1989); Nelson v. State, 17 

Fla. 195 (1879); State v. Brossette, 113 So. 366 (La. 1927); People v. Burt, 16 N.W. 378 (Mich. 

1883); Riggs v. State, 30 Miss. 635 (1856); State v. Chevlin, 284 S.W.2d 563 (Mo. 1955); State 

v. Atlas, 244 P. 477 (Mont. 1926); State v. Stillwell, 418 A.2d 267 (N.J. Super. Ct. App. Div. 

1980); People v. Di Pasque, 146 N.Y.S. 523 (N.Y. App. Div. 1914); State v. Price, 1998 Ohio 

App. LEXIS 6266 (Ohio Ct. App. 1998); Osborn v. State, 194 P.2d 176 (Okla. Crim. App. 1948) 

(recognizing without explicitly affirming the general rule); Hickey v. State, 174 S.W. 269 (Tenn. 

1915) (recognizing rule, which stemmed from Tennessee statute almost identical to Code 

§ 19.2-8); Fulcher v. State, 24 S.W. 292 (Tex. Crim. App. 1893); State v. King, 84 S.E.2d 313 

(W. Va. 1954). In fact, Georgia appears to be the only state that permits such a conviction 
 - 5 - 

without a statute expressly allowing it. See Manning v. State, 182 S.E.2d 690, 691 (Ga. Ct. App. 

1971).3 

Recognizing the overwhelming authority supporting Taylor’s argument, the 

Commonwealth argues that a misdemeanor prosecution was never “commenced” against Taylor 

within the meaning of Code § 19.2-8. Therefore, it reasons, Code § 19.2-8 does not apply. 

Furthermore, the Commonwealth argues that Code § 19.2-8 is in pari materia with Code 

§ 19.2-285, and thus, they should be construed together. According to the Commonwealth, Code 

§ 19.2-285 expressly permits a fact-finder to convict a defendant of a lesser-included part of the 

larger offense. That statute does not reference any time limitation. Code § 19.2-285 provides, 

If a person indicted of a felony be by the jury acquitted of 

part of the offense charged, he shall be sentenced for such part as 

he is so convicted of, if the same be substantially charged in the 

indictment, whether it be felony or misdemeanor. If the verdict be 

set aside and a new trial granted the accused, he shall not be tried 

for any higher offense than that of which he was convicted on the 

last trial. 

Therefore, the Commonwealth asserts, because there was no “commencement” of a prosecution 

under Code § 19.2-8, the court was required by Code § 19.2-285 to sentence Taylor for 

misdemeanor battery without regard to the statute of limitations. We disagree. 

West Virginia, which shares our statutory scheme, provides particularly helpful guidance 

in addressing this argument. In State v. King, the Supreme Court of Appeals of West Virginia 

adopted the majority rule, construing statutes nearly identical to our Code §§ 19.2-8 and 

19.2-285.4

 See King, 84 S.E.2d at 364-71. In that case, King was indicted by a grand jury for 

 3

 By statute, Maine allows conviction for a time-barred, lesser-included offense. See 

State v. Borucki, 505 A.2d 89, 91 n.2 (Me. 1986). 

4

 West Virginia’s version of Code § 19.2-8, W. Va. Code § 61-11-9, provides: “A 

prosecution for a misdemeanor shall be commenced within one year after the offense was 

committed . . . .” West Virginia’s version of Code § 19.2-285, W. Va. Code § 62-3-14, provides: 

“If a person indicted for a felony be by the jury acquitted of part and convicted of part of the 
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malicious assault, a felony, in October 1953. Id. at 364. The indictment alleged that the crime 

occurred in October 1951. Id. at 371. At the conclusion of the trial, the jury found King guilty 

of assault and battery, a misdemeanor, and he was sentenced accordingly. Id. at 364. King 

appealed his conviction, alleging that a conviction for the lesser-included misdemeanor was 

barred by the statute of limitations under W. Va. Code § 61-11-9. Id. The Supreme Court of 

Appeals of West Virginia reversed the judgment against King, holding that his conviction for 

assault and battery was barred by the statute of limitations. Id. at 371. In doing so, West 

Virginia adopted the general rule that “‘one indicted for an offense not barred by limitation, but 

convicted of a lesser included offense which is so barred, is entitled to discharge.’” Id. at 369 

(quoting 22 C.J.S. Criminal Law § 225(b) (1989)). 

In King, the attorney general made essentially the same argument asserted by the 

Commonwealth here: that W. Va. Code § 62-3-14, West Virginia’s equivalent of our Code 

§ 19.2-285, read in conjunction with the misdemeanor statute of limitations, “render[ed] [that] 

case . . . a prosecution for a felony,” taking King outside the scope of the general rule quoted 

above. Id. The court reasoned, however, that W. Va. Code § 62-3-14 “simply provides a rule for 

criminal pleading.” Id. at 370. The court noted that W. Va. Code § 62-3-14 merely provides that 

the accused in a trial on an indictment that charges a felony and a misdemeanor may be found 

not guilty of the felony, but guilty of a misdemeanor that is an inherent part of the felony 

charged. Id. The court observed that if King had been initially indicted for assault and battery, a 

misdemeanor, a conviction for that crime would have been barred by the statute of limitations. 

Id. at 371. Thus, it “necessarily follow[ed]” that his conviction for assault and battery was still 

 

offense charged, he shall be sentenced by the court for such part as he is so convicted of, if the 

same be substantially charged in the indictment, whether it be felony or misdemeanor.” 
 - 7 - 

barred by the statute of limitations, even though he was indicted for a felony that included the 

misdemeanor. Id. 

 The arguments of the parties in this case are almost identical to those in King. Here, like 

the attorney general in King, the Commonwealth argues that this case did not involve the 

“commencement” of a misdemeanor prosecution, making Code § 19.2-8 inapplicable; therefore, 

Code § 19.2-285 controls, allowing the misdemeanor conviction to stand. 

As in King, had Taylor been indicted for a misdemeanor at the time she was actually 

charged with a felony, a conviction for the misdemeanor would have been barred by the statute 

of limitations.5 Here, “cause” for prosecution arose sometime between January 1, 2011 and 

February 23, 2012. Prosecution was commenced, with respect to the felony child endangerment 

charge and, accordingly, the lesser-included battery charge, when a grand jury indicted Taylor on 

April 15, 2013, approximately a year and two months after the last date in which the crime could 

have occurred, February 23, 2012. Simply put, it would negate the purpose and meaning of the 

statute of limitations to allow the Commonwealth to charge a defendant with a felony—after the 

limitations period on a lesser-included misdemeanor had run—just to obtain a conviction on the 

otherwise time-barred, lesser-included misdemeanor when the evidence proves insufficient to 

convict for the greater felony. 

We are unpersuaded by the Commonwealth’s argument that Code § 19.2-285 rendered 

this case a prosecution of a felony. The fact that no warrant was issued against Taylor on the 

misdemeanor does not render Code § 19.2-8 inapplicable. If battery were not “substantially 

charged in the indictment” for felony child endangerment, Taylor could not have been convicted 

 5

 We note that, “[c]onsistent with the common law, Virginia has no general statute of 

limitation on felonies.” Anderson v. Commonwealth, 48 Va. App. 704, 711, 634 S.E.2d 372, 

375 (2006); see also Foster v. Commonwealth, 44 Va. App. 574, 576, 606 S.E.2d 518, 519 

(2004), aff’d, 271 Va. 235, 623 S.E.2d 902 (2006). 
 - 8 - 

of that offense under the felony indictment. See Code § 19.2-285. In King, for example, King 

was indicted for felony malicious assault, but, at the conclusion of the trial, the court instructed 

the jury on only misdemeanor assault and battery. This sequence did not lead the Supreme Court 

of Appeals of West Virginia to find the misdemeanor limitation period inapplicable. King was 

still “prosecuted” under the statute for the misdemeanor because he was indicted, and the 

prosecution presented evidence, on a greater felony that necessarily included the misdemeanor. 

Therefore, consistent with the majority rule, we hold that one cannot be convicted of a 

lesser offense upon a prosecution for a greater crime, which includes the lesser offense, 

commenced after the statute of limitations has run on the lesser offense.6

 As the Sixth Circuit 

Court of Appeals recognized, “‘Statutes of Limitation in criminal cases differ from such statutes 

in civil cases, in that in civil cases they are statutes of repose, while in criminal cases they create 

a bar to the prosecution.’” Benes v. United States, 276 F.2d 99, 108-09 (6th Cir. 1960) (quoting 

1 Wharton, Criminal Procedure § 367, at 415 (10th ed.)).7 Thus, because prosecution was 

commenced more than one year from the date of the offense, the misdemeanor conviction under 

Code § 18.2-57 must be reversed. 

 6

 This holding does not conflict with our Court’s limited precedent on the matter. In 

Ange, the Supreme Court dismissed a bench warrant for a misdemeanor that the trial court issued 

more than one year after the offense allegedly occurred. 217 Va. at 862, 234 S.E.2d at 65. 

Although the felony indictment was issued more than a year after the offense, the Court 

considered the date of the bench warrant for the misdemeanor as the date for “commencement” 

of the prosecution of the misdemeanor, and not the date of the felony indictment, because the 

misdemeanor was not a lesser-included offense of the felony. Id.; accord Hall, 2 Va. App. at 162, 

342 S.E.2d at 641 (using the date of the original felony warrant as the commencement date of the 

misdemeanor prosecution—“[t]he fact that the warrant . . . charged a felony . . . does not bar 

prosecution for a lesser included misdemeanor so long as the prosecution was commenced 

within the applicable limitation period”). 

7

 Of course, we recognize that “‘[t]he statute of limitations is a defense and must be 

asserted on the trial by the defendant in criminal cases.’” United States v. Matzkin, 14 F.3d 

1014, 1017 (4th Cir. 1994) (quoting Biddinger v. Comm’r of Police, 245 U.S. 128, 135 (1917)) 

(noting that the statute of limitations set forth in the pertinent federal statute in that case was not 

jurisdictional—it was an affirmative defense that could be waived). 
 - 9 - 

III. CONCLUSION

 For the foregoing reasons, we reverse the ruling of the trial court. 

Reversed and dismissed.