Elements of the crime- Fairfax criminal lawyer says the Virginia assistant commonwealth’s attorney / prosecutor must prove each beyond a reasonable doubt

Elements of the charged crime (ECC) are essential for your attorney to challenge. As a Fairfax criminal lawyer, I know that a prosecutor “bears the burden to prove each element of the crime beyond a reasonable doubt.” Goldman v. Commonwealth of Virginia, 74 Va. App. 556, 562 (2022) (citing Kenner v. Com., 71 Va. App. 279, 295, 835 S.E.2d 107 (2019)). Your Virginia criminal attorney has the obligation to upend and challenge the prosecutor’s ability to prove each element of the crime. If you win as a result, that is time for celebration. If you get convicted at trial in Circuit Court, your attorney’s challenging proof of the ECC — including at the motion to strike stage of the trial — preserves your appellate record so that you may argue the matter on appeal.

Consider closely whether the prosecutor has provided sufficient evidence to prove all elements of the crime

Jenmali Donte Simmons’s trial and appellate Virginia criminal defense lawyers did a terrific job at getting his carrying a concealed handgun / weapon conviction (under Virginia Code § 18.2-308) overturned on appeal over the elements of the charged crime, where his winning issue on appeal was not whether he had a concealed firearm in his car (he did, on the floor of his vehicle’s driver side), but whether it is possible that he had simply left the handgun there seconds before leaving his vehicle. Simmons’s successful appellate opinion talks about the importance of a concealed weapon to be readily accessible to the defendant for them to risk a conviction. Here, because evidence was lacking to show that Simmons was with the handgun for an appreciable amount of time during its concealment, the Virginia Court of Appeals reversed his conviction. Simmons v. Commonwealth of Virginia, Record No. 2219-231 (Va. App. 2025) (unpublished). I only wish that Simmons had been made a published opinion, where unpublished opinions do not carry precedential and binding value.

Nothing beats a simple flowchart to cover the elements of each count being tried

As a Fairfax criminal lawyer, I always go to court with at least a simple trial outline that lists the elements of each offense. This outline covers the motions I will argue pretrial and during the trial, some of the key objections for me to be ready to present and defend against, the ECC, and some of my other key points to raise. In one instance, I won a trial where the prosecutor utterly failed to present evidence of which state the alleged crime occurred in, thus depriving the court of jurisdiction over the case. In another instance, the prosecutor presented evidence of a theft from a retail store, but presented no evidence to tie my client to the alleged crime. (Here, I say, that for my purposes, my trial flowchart adds as related to the ECC the need for the prosecution to prove my client’s identity beyond a reasonable doubt, and also to prove the date and county or city location of the alleged crime.)

Is your potential Virginia criminal lawyer going to relentlessly pursue your best defense, pursue the essential evidence, and go through your case and evidence with a fine-toothed comb?

As a Fairfax criminal lawyer, I know that the possible winning arguments do not always jump right off the page — whether a challenge of the elements of the charged crime or otherwise — but require teamwork between the Virginia criminal defendant and their lawyer, and relentless pursuit of the essential evidence by the criminal defense lawyer, and going through the case, evidence and applicable law with a fine toothed comb and razor sharp insight and analysis. Such criminal defense attorney achievement does not come  with wishful thinking nor incantations, but through plenty of proverbial blood, sweat and tears. Fairfax criminal lawyer Jonathan Katz never lets up on pursuing your best defense. Call 703-383-1100, Info@KatzJustice.com, or (text) 571-406-7268, for your free in-person strictly confidential initial consultation with Jon Katz about your court pending case.