COURT OF APPEALS OF VIRGINIA

Present: Judges Pett y, 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 COUR T OF ROCKINGHAM COUNTY Bruce D. Albe rtson, Judge R. Shannon Kite (C ook Attorneys, P.C., on brief), for appellant. Aaron J. Campbell, Assistant A ttorney 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 rega rding the battery ch arge because the conduct did not exceed the bounds of lawful parent al discipline; and (2) th e trial court erred in denying her motion to set aside the verdict because the misdemean or was not timely prosecuted under Code § 19.2-8. 1 For the reasons stated below, we reverse the judgment of the trial court.

I. B ACKGROUND “On appeal, ‘we review the ev idence in the light most fa vorable 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 th at reason, we need not address Taylor’s first assignment of error regarding the sufficiency of the evidence.PUBLISHED- 2 - 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the record establishes that on Ap ril 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 st rike at the conclusion of the

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

case. The trial court overruled the motion to stri ke. At the conclusion of the trial, the court withheld judgment and conti nued 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 Ta ylor 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 endange rment, 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, f ound Taylor guilty of battery, and sentenced her to eight months of incarceration. Ta ylor appeals that conviction here.

2 We note that although Taylor contemporaneous ly objected to the trial court’s finding that battery is a lesser-included offense of child endangerment, she did no t assign error to that finding here. Thus, we will assume without deciding that misdemeanor battery is a lesser-included offense of felony child endangerment.- 3 - II. A NALYSIS Taylor argues that the trial court erred in denying her motion to set aside the verdict because the misdemeanor was not timely prosecu ted 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 a nd citation omitted)). Furthermore, when reviewing the statutory language, “w e must give effect to the legi slature’s intention as expressed by the language used unless a literal interpretatio n of the language would result in a manifest absurdity.” Conyers v. Martial Arts Wo rld, 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 be hind the statute.” Id. Code § 19.2-8 states, “A prosecution for a mi sdemeanor . . . shall be commenced within one year next after there was cause therefor . . . .” We have previ ously held that “[t]he issuance of a warrant commences a pros ecution 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, howe ver, 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 st atute of limitations because the warrant and subsequent indictment charging the defendant with a greater fe lony 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 resoluti on of the issue presented in this case, noting in a footnote that “most authorities agree that the co mmencement of a felony prosecution after the running of the limitation period for a necessarily included misd emeanor 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 consid er 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); Stat e 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. St ate, 194 P.2d 176 (Okla. Crim. App. 1948) (recognizing without explicitly affirming the gene ral rule); Hickey v. State, 174 S.W. 269 (Tenn. 1915) (recognizing rule, which stemmed from Te nnessee statute almost identical to Code § 19.2-8); Fulcher v. State, 24 S.W. 292 (Te x. Crim. App. 1893); State v. King, 84 S.E.2d 313 (W. Va. 1954). In fact, Georgi a appears to be the only state that permits such a conviction- 5 - without a statute expressly a llowing 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 pros ecution was never “commenced” against Taylor within the meaning of Code § 19.2-8. Theref ore, 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. Accord ing to the Commonwealth, Code § 19.2-285 expressly permits a fact-finder to convic t a defendant of a lesser-included part of the larger offense. That statute does not refe rence any time limitation. Code § 19.2-285 provides, If a person indicted of a fel ony be by the jury acquitted of part of the offense charged, he shal l 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 th e 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 statut es nearly identical to our Code §§ 19.2-8 and

19.2-285. 4 See King, 84 S.E.2d at 364-71. In that cas e, 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 commen ced 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- 6 - 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, allegi ng that a conviction for the le sser-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 judgmen t against King, holding th at 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 indi cted for an offense not barred by limitation, but

convicted of a lesser included offense which is so barred, is entitled to di scharge.’” Id. at 369 (quoting 22 C.J.S. Criminal Law § 225(b) (1989)). In King, the attorney general made essent ially 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 th e 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 misdemea nor 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 ha ve been barred by the statute of limitations. Id. at 371. Thus, it “necessarily follow[ed]” that his conviction for assau lt and battery was still

offense charged, he shall be sentenced by the court fo r such part as he is so convicted of, if the same be substantially charged in the indict ment, whether it be felony or misdemeanor.”- 7 - barred by the statute of limitati ons, 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 t hose 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 mi sdemeanor 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 misd emeanor 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 w ith a felony—after the limitations period on a lesser-incl uded 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 C ode § 19.2-285 rendered this case a prosecution of a felony. The fact th at no warrant was issued against Taylor on the misdemeanor does not render Code § 19.2-8 inappli cable. If battery we re not “substantially charged in the indictment” for felony child enda ngerment, 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. Commonw ealth, 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 tria l, 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 misd emeanor limitation period inapplicable. King was still “prosecuted” under the st atute for the misdemeanor because he was indicted, and the prosecution presented evidence, on a greater felo ny 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 limita tions has run on the lesser offense. 6 As the Sixth Circuit Court of Appeals recognized, “‘Stat utes of Limitation in criminal cases differ from such statutes in civil cases, in that in civil cases they are stat utes of repose, while in criminal cases they create a bar to the prosecution.’” Benes v. United St ates, 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 C ourt’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 th e 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 wa rrant . . . 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 defe ndant 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 limitati ons set forth in the pertinent fede ral statute in that case was not jurisdictional—it was an affirmative defense that could be waived).- 9 - III. C ONCLUSION For the foregoing reasons, we reve rse the ruling of the trial court.

Reversed and dismissed.