COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgar dner and Frank Argued at Rich mond, Virginia

ANDREW K. WALLER MEMORANDUM OPINION * BY v. Record No. 0657-98-2 JU DGE JAMES W. BENTON, JR. JUNE 8, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY George F. Ti dey, Judge John H. Click, Jr. (W hite, Blackbur n & Conte, P.C., on brief), for appellant. Leah A. Darron, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. A judge tried An drew K. Waller on th e charges of rape and attempted murd er of Moore, and he conv icted Waller of rape and assault. On this ap peal, Waller contends that the circuit court lacked jurisdiction over the case because th e preliminar y hearing was not held in the juvenile and domest ic relation s district court, which has exclusive jurisdicti on to determ ine probable cause in cases involv ing a "family or ho usehold me mber." See Code §§ 16.1-228 and 16.1 -241(J). We affirm the convictions.

I. The evidence in the record proved that Waller and Moore had a romantic relationship for approximatel y one year and had been in asexual relationship fo r several months . During that time, Moore and Waller had lived to gether in the home of Waller's mother for "about three to four months." Howe ver, Moore left Waller's mother's home in Decemb er 1996 and moved to an apartment. In May 1997, Moore "was ending [the] relation ship" with Wa ller. Later that month, Waller en tered Moore's ap artment, took a knife from the kitchen area, grabbed Moore by the neck, and thre atened her. Waller pushed Moore do wn onto the bed, remo ved her clot hing, and then had sexual in tercourse with Moor e against her will. After Waller was arrested, a judge of the ge neral district court, criminal divisi on, found probab le cause to be lieve Waller committed the offe nses of rape and attemp ted murder. During the trial in the circuit court, the Commonweal th proved in its case-in-chief the acts describe d above. After the Commonwealth rested its case, Waller moved to dismiss th e indictment s. He argued that the circuit court lack ed jurisdiction to try the case because Moore wa s a "family memb er," as defi ned in Code § 16.1-241, and, theref ore, the preliminary hearing should have occurred in the juvenile and domestic rela tions district court. Finding that the certif ication of the case to the grand jury and the grand jury indictme nt "took care of" an y defects, the trial judge overrule d the motion.

II. Waller and the Common wealth agree that Mo ore is a "family or household member ," as defined by Code § 16.1-228. They also agree

- 2 -that the current ve rsion of Code § 16.1-241 governs this case. As pertinent to this appeal, Code § 16.1-241 gave the juvenile court "exclusive jurisdiction " over the preliminary hearing acco rding to the following terms: All offenses in which one family or household member is charged with an offense in which another family or household member is the victim . . . . In prosecution for felonies over which the court has jurisdiction, jurisdiction shall be limited to determining whether or not there is probable cause. Any objection based on jurisdiction under this subsection shall be made . . . , in a nonjury trial, before the earlier of when the court begins to hear or receive evidence or the first witness is sworn, or it shall be conclusively waived for all purposes

. Code § 16.1-241(J) (emphasis added). As we recently decided in Burke v. Commonwealth , 29 Va. App. 183, 190, 510 S.E.2d 743, 746 (1999), "appellant waived his objection to the juvenile court's . . . jurisdiction over his preliminary hearing by not raising such objection before trial in the circuit court." For the reasons fully explained in Burke , we hold that Waller waived his objection by delaying the challenge until after evidence had been taken. Accordingly, we hold that the circuit court had jurisdiction to try the criminal charges, and we affirm the judgment. Affirmed

.

- 3 -