8.3 Criminal Offenses

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

8.3 CRIMINAL OFFENSES

8.301 Definitions. Criminal offenses are usually defined by statute; although common law offenses are recognized as still existing by Va. Code § 18.2-16. Common law offenses often have their punishment defined by statute. ⁵⁰ Criminal statutes are generally found in title 18.2 of the Virginia Code, entitled "Crimes and Offenses Generally." Criminal offenses may, however, also be defined in other titles (for example, reckless driving, a Class 1 misdemeanor, is defined in Va. Code § 46.2-852). Title 18.2 is a 1975 reorganization of Virginia's criminal code, repealing the previously applicable title 18.1. As with all jurisdictions, Virginia modifies specific offenses and procedures on a regular basis, and a practitioner should always consult primary sources to learn the current state of the law. A useful, free service is the Virginia General Assembly's Legislative Information System (LIS) website, available at http://law.lis.virginia.gov/vacode.

8.302 Title 18.2—Crimes and Offenses Generally. Title 18.2 is divided into thirteen chapters, each containing related sections. The following discussion will highlight some of the more important sections within each chapter, but a detailed discussion of all the statutory crimes listed in these chapters is too extensive for the purpose of this handbook. Counsel should refer to each specific statute for which the defendant is charged.

A. Chapter 1—In General. ⁵¹

1. Felonies. Felonies are defined as any offense punishable with death or confinement in a state correctional facility. All other offenses are misdemeanors. Traffic offenses are not criminal offenses. ⁵² The classifications of felonies and misdemeanors are described in paragraph 8.2 above.

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2. Mandatory Minimum Punishment. Certain code sections define a mandatory minimum punishment, for which the "court shall impose the entire term of confinement, the full amount of the fine and the complete requirement of community service prescribed by law. The court shall not suspend in full or in part any punishment described as mandatory minimum punishment." ⁵³

B. Chapter 2—Principals and Accessories. ⁵⁴ Principals of the second degree and accessories before the fact for any felony are "indicted, tried, convicted and punished in all respects as if a principal in the first degree," except for certain defined homicides. ⁵⁵

Accessories after the fact for any felony may be found guilty of a Class 1 misdemeanor. Certain family members may not be charged as accessories after the fact. ⁵⁶

C. Chapter 3—Inchoate Offenses. ⁵⁷ Conspiracy to commit a felony is itself a felony but is punished less harshly than the underlying offense. ⁵⁸ Conspiracy to commit a capital offense is a Class 3 felony. Conspiracy to commit a noncapital offense is a Class 5 felony. Conspiracy to commit a crime for which the maximum punishment is less than five years is punished by one year in a state correctional facility or up to 12 months in jail, plus a $500 fine. In no case may the punishment for conspiracy be greater than that for the underlying offense. ⁵⁹ Conviction of the underlying substantive offenses bars a conviction of conspiracy for the same offense. ⁶⁰

Similarly, attempts are treated less harshly. An attempt to commit a capital offense is a Class 2 felony. ⁶¹ An attempt to commit a noncapital felony is classified based on the punishment available for the completed offense. ⁶²

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An attempted noncapital felony that is punishable by (I) life or greater than 20 years is a Class 4 felony; (ii) 20 years maximum is a Class 5 felony; and (iii) less than 20 years maximum is a Class 6 felony. ⁶³ An attempt to commit a misdemeanor is punished the same as the object of the attempt. ⁶⁴ In no case may the punishment for attempt exceed the punishment for the underlying offense. ⁶⁵

D. Chapter 4—Crimes Against the Person. ⁶⁶ Virginia's capital murder statute, ⁶⁷ contains fifteen subsections, each of which creates a specific form of capital murder. See the Virginia CLE handbook Trial of Capital Murder Cases in Virginia ⁶⁸ for an in-depth treatment of the statute and associated procedures.

For various sexual assaults, ⁶⁹ marriage to the victim is not a defense. However, if the Commonwealth and spouse victim agree, the offender may be placed on probation—despite the defined mandatory minimum sentence—to complete a course of counseling which, if successful, may result in dismissal of the charge.

E. Chapter 5—Crimes Against Property. ⁷⁰ The most common property crimes a practitioner will encounter are trespass offenses and vandalism to property crimes. The most common trespass offense is trespass after notice is given or posted that entry onto a person's or entity's property is forbidden. ⁷¹ Entry upon the real property of another must be made without authority of its owner with criminal intent. ⁷²

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The basic vandalism offense is found in Va. Code § 18.2-137, which prohibits the destroying, defacing, damaging, or removing without the intent to steal real or personal property of another without permission or authority. Unlawful vandalism is a Class 3 misdemeanor, and intentional vandalism is a Class 1 misdemeanor. If the amount of the damage is over $1,000, it becomes a Class 6 felony. ⁷³

F. Chapter 6—Crimes Involving Fraud. ⁷⁴ The statutes involving fraudulent offenses exist to punish individuals who seek to profit or gain some advantage by committing fraud. Some fraud offenses overlap one another, but if the Commonwealth indicts on a specific fraud offense, it cannot convict unless it proves the elements of that specific offense and not another. For example, obtaining property by false pretenses is different than larceny by trick because false pretenses involves both the change in ownership as well as possession and not possession alone. ⁷⁵

G. Chapter 7—Crimes Involving Health and Safety. ⁷⁶

1. Drug Offenses. Drug offenses are addressed in Va. Code § 18.2-248 et seq. These statutes contain a complex scheme of definitions and punishments based on the schedule of the drug manufactured, distributed, etc.; the amount; and the number of times the offender has been convicted of a similar offense.

a. Simple Possession of Marijuana. Simple possession of marijuana is a Class 1 misdemeanor punishable by no more than 30 days in jail or a fine of up to $500 or both for a first offense. A second or subsequent offense is punishable with up to 12 months in jail or up to a $2,500 fine or both. ⁷⁷ Possession of less than one-half ounce of marijuana is simple possession (possession for personal use). ⁷⁸

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b. Cannabimimetic Agents and Controlled Substance Analogs. "Cannabimimetic agents" ⁷⁹ are prohibited in Virginia Code § 54.1-3446. Chapters 674 and 719, enacted at the 2014 session of the General Assembly, which also authorizes the Board of Pharmacy to place "controlled substance analogs" (a substance that has a chemical structure substantially similar to that of a controlled substance in Schedule I or II and that has or is intended to have the same or a greater stimulant, depressant, or hallucinogenic effect on the central nervous system) into the list of controlled substances found in Schedule I or II. As the General Assembly has in recent years regularly added substances...