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Virginia criminal attorney on the continuing offense defense

Virginia Criminal Defense – Beware being convicted of multiple counts versus one continuing offense

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Feb 15, 2017 Virginia Criminal Defense – Beware being convicted of multiple counts versus one continuing offense

When a criminal defendant is charged with multiple criminal counts, s/he might want to try to limit sentencing exposure by presenting a defense that guilt is not possible for more than one continuing offense.

Sheng Jie Jin unsuccessfully tried the one continuing offense approach at his trial for attempting to murder his wife. Shin v. Virginia__ Va. __ (Feb. 14, 2017).  (As an aside, eerily and probably only coincidentally, both of the Virginia Court of Appeals’ Valentine’s Day 2017 published opinions involved affirmances of crimes involving romantic interests, the other case being an affirmance of a stalking conviction, in Banks v. Virginia.)

In terrifying detail, the Virginia Court of Appeals recounts how Sheng Jie Jin responded to his wife’s attempt to divorce him, by driving his car at her and hitting her with his side mirror after his wife’s brother pulled her to safety. Jin then grabbed a hammer, and repeatedly struck his wife in the head, as she lay on the floor of an adjacent restaurant after having been injured by Jin’s car.

The Court of Appeals easily concluded that the evidence was sufficient to convict Jin of two counts of attempted murder — for Jin’s hitting his wife with his car and for then attacking her head with a hammer — rather than one continuing offense. The Court of Appeals defined a continuing offense as:

‘[A continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.’ Hodnett, 56 Va. App. at 237, 692 S.E.2d at 648 (quoting Thomas v. Commonwealth, 38 Va. App. 319, 324-25, 563 S.E.2d 406, 409 (2002)). ‘In determining whether the conduct underlying the convictions is based upon the “same ac]t,” the particular criminal transaction must be examined to determine whether the acts are the same in terms of time, situs, victim, and the nature of the act itself.”’ Hall v. Commonwealth, 14 Va. App. 892, 898, 421 S.E.2d 455, 459 (1992); see also Carter v. Commonwealth, 16 Va. App. 118, 128, 428 S.E.2d 34, 42 (1993) (focusing on ‘factors such as the: nature of the act or acts; time; place; intent; possibility of cumulative punishment; and, number of victims’ but cautioning that the list ‘is not exhaustive and the [fact finder] may properly consider the victim’s subjective understanding of the circumstances, along with all the other evidence presented, in making this critical determination” of “whether the conduct constituted a single offense or multiple offenses’).”

Jin further illustrates, as follows, why Jin’s assault with his car and then with a hammer was not a continuing offense:

We find this Court’s analysis in Hodnett to be instructive. In Hodnett, an inmate dipped a cupful of toilet contents out of his cell’s unflushed toilet and intentionally threw the contents onto a prison guard. Hodnett, 56 Va. App. at 236, 692 S.E.2d at 647. Within seconds, before the guard had a chance to leave, the inmate dipped a second cupful of toilet contents and threw it on the prison guard. Id. The inmate was convicted of two counts of assault and battery on a law enforcement officer. Id. He contended that the trial court erred in finding two separate offenses because the two attacks on the guard were one single continuing offense. Id. This Court recognized that the issue was ‘whether the two [attacks] were each a separate, complete act, or whether the second was a continuation of the first.’ Id. at 237, 692 S.E.2d at 648. This Court reasoned that each attack was a separate act because the second attack, ‘though in temporal proximity, was not a continuation of . . . the first. It did not involve continued motion.’ Id. Further, the second attack ‘involved a new formation and execution of purpose.’ Id. at 238, 692 S.E.2d at 648. Consequently, this Court held that the evidence supported the trial court’s finding of fact that two separate, complete acts had been committed. Id.”

Those contemplating a continuing offense defense will want to have Jin as a reference.

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