Andrew K. Waller v. Commonwealth of Virginia ( 1999 )

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.
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
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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
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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.
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