COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Overton 

Argued at Salem, Virginia 

JERRY SANDERS FONTAINE 

 OPINION BY 

v. Record No. 2032-95-3 JUDGE SAM W. COLEMAN III 

 JULY 8, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

B. A. Davis, III, Judge 

 Henry G. Crider for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 The defendant, Jerry Fontaine, was indicted on one count of 

attempted malicious wounding and one count of leaving the scene 

of an accident in which a person was injured in violation of Code 

§ 46.2-894.1 The trial court, sitting without a jury, found the 

defendant guilty of two misdemeanors, assault and leaving the 

 

 1 Code § 46.2-894 states, in pertinent part: 

 The driver of any vehicle involved in an 

accident in which a person is killed or 

injured or in which an attended vehicle or 

other attended property is damaged shall 

immediately stop . . . and report his name, 

address, driver's license number, and vehicle 

registration number forthwith to the State 

Police or local law-enforcement agency, to 

the person struck and injured if such person 

appears to be capable of understanding and 

retaining the information, or to the driver 

or some other occupant of the vehicle 

collided with or to the custodian of other 

damaged property. The driver shall also 

render reasonable assistance to any person 

injured in such accident . . . . 
- 2 - 

 

scene of an accident involving property damage in violation of 

Code § 46.2-894.2

 

 The defendant appeals only the conviction of leaving the 

scene of an accident involving property damage, commonly referred 

to as "hit and run property damage." He contends that the 

evidence was insufficient because it failed to prove that 

property was damaged as a result of the accident. 

 The Commonwealth argues that the defendant is barred by Rule 

5A:18 from raising the issue on appeal because he failed to make 

a motion to strike the evidence in the trial court. The 

Commonwealth also contends that the defendant acquiesced in the 

trial court's ruling that adjudged him guilty of a misdemeanor 

rather than the charged felony. On the merits, the Commonwealth 

argues that the evidence was sufficient to prove hit and run 

property damage and, alternatively, because the evidence proved 

personal injury and because hit and run property damage is a 

lesser included offense of hit and run personal injury, the 

evidence was sufficient to prove the lesser offense. 

 We hold that the defendant preserved for appeal the issue of 

 2 Code § 46.2-900 provides: 

 Any person convicted of violating the 

provisions of §§ 46.2-894 through 46.2-897 

shall, if such accident results in injury to 

or the death of, any person, be guilty of a 

Class 6 felony. If such accident results 

only in damage to property, the person so 

convicted shall be guilty of a Class 1 

misdemeanor . . . . 
- 3 - 

whether the evidence was sufficient to support the conviction for 

hit and run property damage. He did so by filing a motion to set 

aside the verdict in which he assigned the specific reason that 

the evidence failed to prove that property was damaged. We 

further hold that the defendant did not, on these facts, 

acquiesce in being adjudged guilty of the misdemeanor offense or 

invite the trial judge to treat the charge as a misdemeanor. 

Finally, we hold that hit and run property damage is not a lesser 

included offense of hit and run personal injury. Because the 

defendant was not charged with or tried for the offense of hit 

and run property damage, the trial court erred in finding him 

guilty of that misdemeanor offense. Accordingly, we reverse the 

conviction for hit and run property damage. 

BACKGROUND

 Viewing the evidence in the light most favorable to the 

Commonwealth as the party prevailing at trial, the evidence 

proved that the complaining witness, William Gaddy, had agreed to 

repair the defendant's wife's automobile. Approximately two 

weeks after Gaddy began the repairs, the defendant went to the 

farm where Gaddy was repairing the car to check on the progress. 

 An argument ensued, during which Gaddy picked up a shovel and 

the defendant picked up a tire iron. Gaddy testified that during 

a "scuffle" that occurred, he turned to avoid a fight and walked 

down the road. He heard the defendant's car start and heard it 

coming toward him. Gaddy said that he attempted to get out of 
- 4 - 

 

the way, but the driver's side of the defendant's car struck him 

on the lower buttocks and spun him around. His left arm got 

caught on the driver's side mirror, and he was thrown to the 

ground. Gaddy testified that he had injuries to his arm and 

chest and bruises to his knees and head, for which he received 

treatment at a hospital. 

 James Mebane and Jean Nelson testified that Gaddy came to 

their home to call an ambulance after the incident. Both 

testified that Gaddy was holding his arm as if it had been 

injured. Neither had witnessed the altercation between the two 

men. 

 Trooper Donnie Richardson, who investigated the incident and 

interviewed Gaddy at the hospital, testified that Gaddy was 

holding his arm and complaining of pain during the interview. 

Trooper Richardson then went to the defendant's home where he 

observed the defendant's car. He testified that the car "looked 

as though something had brushed against the left front bumper." 

He observed that the driver's side mirror was pulled loose and 

the driver's side window was broken. 

 At the conclusion of the evidence, the trial judge announced 

that he intended to convict the defendant of leaving the scene of 

an accident involving property damage, presumably as a lesser 

included offense of the charged crime of leaving the scene of an 

accident involving personal injury.3

 The following colloquy took 

 3 Code § 46.2-900 provides that a driver who leaves the 

scene of an accident with personal injury shall be guilty of a 
- 5 - 

place: 

 THE COURT: Gentlemen, at best it's 

confusion. . . . Mr. Gaddy has absolutely no 

credibility, not the slightest. The 

Commonwealth's case rises and falls with the 

testimony of James Mebane and Jean Nelson. I 

was impressed with Ms. Nelson. She had no 

reason that I'm aware of to testify to 

anything other than what she did testify to. 

 And that was the defendant, by his 

admissions, involved himself in this 

allegation [sic] . . . . I'm going to find 

the Defendant guilty of an assault and guilty 

of leaving the scene of an accident involving 

property damage. 

 DEFENSE COUNSEL: Two misdemeanors, Judge. 

 THE COURT: I found the Defendant guilty of 

assault and leaving the scene of an accident 

involving property damage. . . . 

 Although the defendant objected at trial that the evidence 

was insufficient to convict him of hit and run personal injury, 

he raised no objection when the judge found him guilty of hit and 

run property damage. At trial, he made no claim that the 

evidence failed to prove that property had been damaged. After 

trial, the defendant filed a timely motion to set aside the 

verdict for hit and run property damage on the ground that the 

evidence was insufficient to prove that property had been 

damaged. The trial judge denied the motion to set aside, and 

this appeal followed. 

ANALYSIS

(..continued) 

Class 6 felony, and a person who leaves the scene of an accident 

involving property damage shall be guilty of a Class 1 

misdemeanor. See fn. 2. 
- 6 - 

I. Procedural Bar

 Generally, the sufficiency of the evidence to support a 

conviction may be challenged by a motion to set aside the 

verdict, even where no motion to strike the evidence was filed at 

trial. See McGee v. Commonwealth, 4 Va. App. 317, 321, 357 

S.E.2d 738, 739-40 (1987); Rule 3A:15(b). The motion to set 

aside must set forth the specific objections to the sufficiency 

of the evidence. Floyd v. Commonwealth, 219 Va. 575, 584, 249 

S.E.2d 171, 176 (1978). 

 Here, the motion to set aside the verdict specifically 

alleged that the evidence was insufficient to prove property 

damage as a necessary element of the offense for which the 

defendant was convicted. Thus, the defendant's motion to set 

aside the verdict on the ground that the evidence was 

insufficient to prove a necessary element of the offense was 

timely and sufficiently specific to satisfy the Rule 5A:18 

requirement. 

 Next, we consider the Commonwealth's claim that the 

defendant concurred in the trial court's disposition. Relying 

upon Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414 S.E.2d 

613, 615 (1992), the Commonwealth contends that the defendant 

acquiesced in being found guilty of a less serious crime than the 

felony with which he was charged and should not be heard to 

complain. "The defendant, having agreed upon the action taken by 

the trial court, should not be allowed to assume an inconsistent 
- 7 - 

position." Clark v. Commonwealth, 220 Va. 210, 214, 257 S.E.2d 

784, 792 (1979), cert. denied, 444 U.S. 1049 (1980) (citing 

Commonwealth v. Beavers, 150 Va. 33, 142 S.E. 402 (1928)). By 

inquiring whether the judge was convicting him of two 

misdemeanors, the defendant did not agree, acquiesce, or invite 

the trial judge's actions. At most, the defendant was seeking 

clarification that the convictions were for misdemeanors. Where 

the defendant asks for a reduced or less serious disposition of a 

felony charge, a different result will obtain. See Manns, 13 Va. 

App. at 679-80, 414 S.E.2d at 615. Such was not the situation 

here. The defendant did not acquiesce in being found guilty of 

hit and run property damage and nothing that he did earlier was 

inconsistent with his motion to set aside the verdict. 

II. Merits

 We turn to whether the evidence was sufficient to support 

the conviction. The Commonwealth's argument is twofold: first, 

hit and run property damage is a lesser included offense of hit 

and run personal injury and, therefore, because the evidence is 

sufficient to prove the greater offense, it necessarily proves 

the lesser offense; and second, the evidence is sufficient to 

prove property damage. We first address the "lesser included" 

argument because, not only is it crucial to the Commonwealth's 

sufficiency argument, but, more importantly it is critical to the 

determination of whether the trial court had jurisdiction to find 

the defendant guilty of an offense not directly charged in the 
- 8 - 

indictment. 

 Whether one offense is a lesser included offense of the 

other depends upon whether the elements of the greater offense 

necessarily include all elements of the lesser. "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). "An 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). "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). 

 Hit and run property damage by definition contains an 

element that is not included among the elements of hit and run 

personal injury. The former requires proof of property damage 

and the latter does not. Proof of personal injury does not 

necessarily prove property damage. The elements of proof of 

property damage and personal injury are distinctly different. 

Thus, hit and run property damage is not a lesser included 

offense of hit and run personal injury. Therefore, we reject the 

premise underlying the Commonwealth's argument that the evidence 

was sufficient to support the conviction because proof of the 
- 9 - 

charged offense was necessarily sufficient to prove the lesser 

included offense. 

 By convicting the defendant of an offense that was not 

lesser included and that was not charged, the trial court 

exceeded its authority. The indictment did not charge the 

defendant generally with hit and run in violation of Code 

§ 46.2-894. Instead, it specifically charged hit and run 

personal injury. Thus, the Commonwealth charged the defendant 

with one offense and found him guilty of another. "The state may 

not accuse a person of one crime and convict him by proving 

another unless the offense is a lesser included one of that 

charged." Harrell v. Commonwealth, 11 Va. App. 1, 6, 396 S.E.2d 

680, 682 (1990). The fact that the defendant did not object to 

or appeal the conviction on the ground that he was convicted for 

an offense with which he was not charged is of no moment. Unless 

an indictment is amended to conform to the proof, see Code 

§ 19.2-231, or an accused acquiesces in being found guilty of an 

offense other than the one charged, Manns, 13 Va. App. at 679-80, 

414 S.E.2d at 615, a trial court lacks the authority to find an 

accused guilty of an offense other than the one charged or a 

lesser included offense. Cf. Council v. Smyth, 201 Va. 135, 139, 

109 S.E.2d 116, 119-20 (1959) ("The underlying question in habeas 

corpus proceedings is directed to whether an indictment is so 

fatally defective and void that the court in which the petitioner 

was convicted did not have jurisdiction of the person and crime 
- 10 - 

charged and if the court had jurisdiction to render the 

particular judgment."). The trial court lacked authority to 

convict the defendant for an offense not charged, absent an 

amendment to the indictment or acquiescence by the defendant. 

The lack of authority of the trial court to render the judgment 

that it did may be raised at any time and by this Court on its 

own motion. See Morrison v. Bestler, 239 Va. 166, 170, 387 

S.E.2d 753, 756 (1990). Accordingly, because hit and run 

property damage was not a charged or lesser included offense, the 

trial court lacked authority to convict the accused of that 

offense. Thus, we reverse the conviction and find it unnecessary 

to address whether the evidence was sufficient to prove the 

uncharged offense. 

Reversed and dismissed.