COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bumgardner and Frank 

Argued at Richmond, Virginia 

ANDREW K. WALLER 

 MEMORANDUM OPINION* BY 

v. Record No. 0657-98-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 8, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 John H. Click, Jr. (White, Blackburn & Conte, 

P.C., on brief), for appellant. 

 Leah A. Darron, Assistant 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 Andrew K. Waller on the charges of rape and 

attempted murder of Moore, and he convicted Waller of rape and 

assault. On this appeal, Waller contends that the circuit court 

lacked jurisdiction over the case because the preliminary hearing 

was not held in the juvenile and domestic relations district 

court, which has exclusive jurisdiction to determine probable 

cause in cases involving a "family or household member." 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 approximately one year and had been in a 
sexual relationship for several months. During that time, Moore 

and Waller had lived together in the home of Waller's mother for 

"about three to four months." However, Moore left Waller's 

mother's home in December 1996 and moved to an apartment. In May 

1997, Moore "was ending [the] relationship" with Waller. Later 

that month, Waller entered Moore's apartment, took a knife from 

the kitchen area, grabbed Moore by the neck, and threatened her. 

Waller pushed Moore down onto the bed, removed her clothing, and 

then had sexual intercourse with Moore against her will. 

 After Waller was arrested, a judge of the general district 

court, criminal division, found probable cause to believe Waller 

committed the offenses of rape and attempted murder. During the 

trial in the circuit court, the Commonwealth proved in its 

case-in-chief the acts described above. After the Commonwealth 

rested its case, Waller moved to dismiss the indictments. He 

argued that the circuit court lacked jurisdiction to try the case 

because Moore was a "family member," as defined in Code 

§ 16.1-241, and, therefore, the preliminary hearing should have 

occurred in the juvenile and domestic relations district court. 

Finding that the certification of the case to the grand jury and 

the grand jury indictment "took care of" any defects, the trial 

judge overruled the motion. 

II. 

 Waller and the Commonwealth agree that Moore is a "family or 

household member," as defined by Code § 16.1-228. They also agree 

- 2 -
that the current version 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 according 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 -