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    Document Summary
    - Report Published -

    House Document No. 15
    PUBLICATION YEAR 2004

    Document Title
    The Reorganization and Restructuring of Title 18.2

    Author
    Virginia State Crime Commission

    Enabling Authority
    HJR 687 (Regular Session, 2001)

    Executive Summary
    During the 2001 Session of the Virginia General Assembly, Delegate Robert F. McDonnell introduced House Joint Resolution 687 (HJR 687) (*1), directing the Virginia State Crime Commission to study the organization of and inconsistencies in Title 18.2 of the Code of Virginia, including the level and extent of and the rationale for the penalties set forth therein. Specifically, the resolution directs the Virginia State Crime Commission to (i) review the proportionality of the criminal penalties throughout the Code of Virginia; (ii) make recommendations for necessary amendments; and, (iii) recommend whether or not Title 18.2 should also be revised at this time. The Crime Commission reported its written findings and recommendations to the Governor and the 2004 Session of the General Assembly. As a result of the study effort, the following recommendations were made concerning the reorganization and restructuring of Title 18.2 of the Code of Virginia:

    Recommendations

    Recommendation 1: The Virginia State Crime Commission recommends the creation of a new penalty structure in Title 18.2 which will encompass seven classes of felony offenses.

    Recommendation 2: The Virginia State Crime Commission recommends the following amendments to define terms in Title 18.2 of the Code of Virginia:

    "Armed with a deadly weapon" means the possession of any weapon described in subsection A of 18.2-308 or any other instrumentality whatsoever that under the circumstances in which it is used, attempted to be used or threatened to be used, would likely cause death or serious bodily injury to a human being.

    "Serious bodily injury" shall mean bodily injury that involves (i) a substantial risk of death, (ii) physical pain that is chronic or experienced over a protracted period of time, (iii) protracted disfigurement, or (iv) protracted loss or impairment of the function of a bodily member, organ or mental faculty.

    Recommendation 3: The Virginia State Crime Commission recommends the following amendments in Title 18.2 of the Code of Virginia concerning the statutory restructuring of felony offenses:

    Robbery

    • First Degree - Class 1 Felony:
    Involves being armed with a deadly weapon, AND serious bodily injury

    • Second Degree - Class 2 Felony:
    All other robberies

    Burglary

    • First Degree - Class 1 Felony:
    Burglary while armed with a deadly weapon AND causing serious bodily injury

    • Second Degree - Class 2 Felony:
    Burglary while armed with a deadly weapon OR causing serious bodily injury

    • Third Degree - Class 3 Felony:
    Burglary with the intent to commit murder, rape, robbery or arson

    • Fourth Degree - Class 5 Felony:
    Burglary with the intent to commit any other felony, or larceny, or assault and battery

    • Fifth Degree - Class 6 Felony:
    Burglary with the intent to commit any other misdemeanor

    Larceny

    • First Degree Grand Larceny - Class 3 Felony: Chattel of $25,000 or more

    • Second Degree Grand Larceny - Class 5 Felony:
    Chattel of $10,000 - $24,999
    Theft from a person of $5 or more
    Theft of an automobile, any value less than $25,000

    • Third Degree Grand Larceny - Class 6 Felony:
    Chattel of$500 - $9,999
    Credit card theft
    Firearm(s) theft (unless value of firearm warrants higher degree)

    Felony Sex Crimes

    • Taking indecent liberties with a child by a person in a custodial or supervisory relationship - Class 6 Felony (previously a Class 1 misdemeanor)

    • Eliminate marital exceptions for forcible sodomy and object sexual penetration

    Assault

    Expect for Second Degree Assault, there are no changes in the penalty structures for assault offenses.

    • First Degree - Class 1 Felony:
    Aggravated malicious wounding/bodily injury, including injury that causes the involuntary termination of a pregnancy

    • Second Degree - Class 2 Felony:
    Malicious wounding/bodily injury of law enforcement officer, firefighter, etc; Malicious wounding by means of acid, lye, or caustic substance

    • Third Degree - Class 3 Felony:
    Malicious wounding/bodily injury; Poisoning or attempting to poison; Adulterating food, drink, cosmetics, etc. with the intent to cause injury

    • Fourth Degree - Class 4 Felony:
    Destroying a facility that contains infectious biological agents or radioactive substances, with the intent to cause injury; Manufacturing, selling or distributing an infectious biological agent or radioactive substance with the intent to cause injury

    • Fifth Degree - Class 5 Felony:
    Possession of an infectious biological agent or radioactive substance with the intent to cause injury; Bodily injuries caused by prisoners or probationers

    • Sixth Degree - Class 6 Felony:
    Unlawful wounding/bodily injury; Unlawful wounding/bodily injury of law enforcement officer; Intent to injure by throwing object from a height; DUI maiming; Unlawful wounding by acid, lye, or caustic substance; Shooting, stabbing, or wounding in the commission of a felony; Hate crime assault and battery which results in bodily injury; Assault and battery on a law enforcement officer; Disarming a law enforcement officer of his firearm; Third conviction for domestic assault and battery

    Arson (*2)

    • First Degree - Class 1 Felony:
    Arson of a building or structure that involves serious bodily injury

    • Second Degree - Class 2 Felony:
    Arson of an occupied dwelling or church

    • Third Degree - Class 3 Felony:
    Arson of a public building, not a dwelling or church, when there is a person inside

    • Fourth Degree - Class 4 Felony:
    Arson of a public building, not a dwelling or church, when no persons are inside; Arson of an unoccupied dwelling or church; arson of any other building or structure, when no persons are inside, damage of$1000 or more; Arson of personal property, or crop, damage of$1000 or more

    • Class 1 Misdemeanor:
    Arson of any other building, when no persons are inside, damage of less than $1000; Arson of personal property, or crop, damage of less than $1000

    Abduction (*3)

    • First Degree - Class 1 Felony:
    Abduction with the intent to extort money, defile the victim, or if the victim is under 1 years of age, for the purpose of prostitution

    • Second Degree - Class 3 Felony:
    Abduction by a prisoner

    • Third Degree - Class 5 Felony:
    All other abductions except those involving parental abductions

    Recommendation 4: The Virginia State Crime Commission recommends amendments to two statutes that have been "little used" in the past ten years:

    • 18.2-345 would become - Lewd and lascivious conduct in a public place.
    • 18.2-349 would become - Using vehicles to promote prostitution.

    Recommendation 5: The Virginia State Crime Commission recommends repeal of thirteen statutes that have been "little used" in the past ten years:

    • 18.2-111.1. Conversion of military property by person discharged from national guard or naval militia.
    • 18.2-114. Sale, etc., of goods, etc., of another and failure to pay over proceeds.
    • 18.2-123. Dogs not permitted at large in Capitol Square.
    • 18.2-161. Trespassers forbidden to jump on or off railroad cars or trains.
    • 18.2-202. False statements by purchaser of real property as to use for personal residence.
    • 18.2-203. False statement or willful overvaluation of property for purpose of influencing lending institution.
    • 18.2-211. Unlawful use of words "Official Tourist Information" or similar language.
    • 18.2-351. Commitment of persons convicted of certain offenses; investigation and report; reduction of period.
    • 18.2-352. Examination and investigation of such persons; reports to committing court.
    • 18.2-353. Probation or release of such persons.
    • 18.2-358. Detaining male or female in bawdy place against his or her will.
    • 18.2-367. Conspiring to cause spouse to commit adultery.
    • 18.2-386. Showing previews of certain motion pictures.

    Recommendation 6: The Virginia State Crime Commission recommends amendments throughout the Virginia Code to use consistent language when describing mandatory minimum criminal sentences. A definition of mandatory minimum punishment will be added to the Code and language in various sections throughout the Code is conformed. The recommended definition is:

    18.2-12.1. Mandatory minimum punishment; definition.
    "Mandatory minimum" wherever it appears in this Code means, for purposes of imposing punishment upon a person convicted of a crime, that 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.

    Recommendation 7: The Virginia State Crime Commission recommends the following statutes be relocated to Title 8.01 (Civil Procedure and Remedies) because they are procedural statutes for civil cases:

    • 18.2-185. Evidence and presumptions in malicious prosecution actions after issuance of bad check.
    • 18.2-105. Exemption from civil liability in connection with arrest or detention of suspected person.

    Recommendation 8: The Virginia State Crime Commission recommends the following statute be relocated to 48-16 (Nuisances) because it is not a criminal statute:
    • 18.2-258. Certain premises deemed common nuisance; penalty.

    Recommendation 9: The Virginia State Crime Commission recommends the following eight statutes be relocated to Title 15.2 (Counties, Cities and Towns) because they authorize local governments to enact ordinances or to regulate certain behaviors and they are not criminal statutes.
    • 18.2-138.1. Willful and malicious damage to or defacement of public or private facilities; penalty.
    • 18.2-287. Counties may regulate carrying of loaded firearms on public highways.
    • 18.2-287.1. Transporting a loaded rifle or shotgun.
    • 18.2-308. Personal protection; carrying concealed weapons; when lawful to carry. (Only one sentence of this section is moved.)
    • 18.2-340.32. Authority of local governments; proceeds exempt from local taxation.
    • 18.2-389. Adoption of ordinances prohibiting obscenity.
    • 18.2-432. Counties, cities and towns authorized to regulate minors in public places of amusement.
    • 18.2-433. Regulation of dance halls by counties, cities and towns.

    Recommendation 10: The Virginia State Crime Commission recommends the following 28 statutes be relocated to Title 19.2 (Criminal Procedure) because they involve forfeiture proceedings and are criminal offenses:
    • 18.2-246.13. Illegal cigarettes.
    • 18.2-246.14. Counterfeit cigarettes.
    • 18.2-283.1. Carrying weapon in courthouse.
    • 18.2-287.4. Carrying weapon in public place.
    • 18.2-308. Forfeiture of illegally concealed firearm.
    • 18.2-308.1 :2. Forfeiture of firearm possessed by person adjudicated mentally incapacitated.
    • 18.2-308.1 :3. Forfeiture of firearm possessed by involuntary committed person.
    • 18.2-308.1 :4. Forfeiture of firearm possessed by persons subject to protective order.
    • 18.2-308.2. Firearm illegally possessed by felon.
    • 18.2-308.2:01. Firearms possessed by aliens.
    • 18.2-308.2: I. Selling firearms to felons, aliens, mentally incapacitated.
    • 18.2-308.4. Possession of firearms while possessing controlled substances.
    • 18.2-308.5. Possession of plastic firearm.
    • 18.2-308.7. Possession of firearms by persons under 18.
    • 18.2-374.1: I. Possession of child pornography.
    • 18.2-46.9. Property involved in terrorist attack.
    • 18.2-110. Automobiles used in connection with prostitution, grand larceny, or robbery.
    • 18.2-152.16. Property involved with computer crime.
    • 18.2-190.7. Unlawful communication devices.
    • 18.2-246.4. Property involved with drug dealing.
    • 18.2-249. Property involved illegal drug transactions.
    • 18.2-253. Disposal of controlled substances/paraphernalia.
    • 18.2-253.1. Disposal of controlled substances before trial.
    • 18.2-253.2. Law enforcement to maintain custody of controlled substances.
    • 18.2-265.4. Drug paraphernalia.
    • 18.2-310. Weapons used in commission of criminal offenses.
    • 18.2-336. Devices used in illegal gambling.
    • 18.2-374.2. Equipment used to produce child pornography.

    Recommendation 11: The Virginia State Crime Commission recommends the following statutes be amended to comply with the Lawrence v. Texas decision:
    • a new statute, 18.2-361.1, be added, to criminalize sodomy that occurs in a public place.
    • 18.2-345, co-habitation, be amended to limit its application to "open and gross" lewdness in a public place.
    • 18.2-370, 370.1 and 371 be amended to ensure that minors are protected from acts of carnal knowledge carried out by adults.
    • 18.2-387.2 be created to make a Class 1 misdemeanor crime for carnal acts
    while incarcerated in a correctional facility.
    • 18.2-370.1 be amended to create a new offense; carnal knowledge of a minor by a custodian or supervisor would be a Class 6 felony (1-5 years).

    Recommendation 12: The Virginia State Crime Commission will sponsor legislation to study Commonwealth's Attorneys in the Commonwealth. In particular, the study resolution will direct the Crime Commission to examine:

    - workload in Commonwealth's Attorney offices;
    - training and technical support for Commonwealth' Attorneys;
    - opportunities for continuing legal education;
    - reasonable case loads per attorney;
    - ability of Commonwealth's Attorney offices to hire and retain staff;
    - comparison of state support for Virginia's Commonwealth's Attorneys compared to support in other states; and
    - the appropriate role of localities in providing support for prosecutorial services.

    Recommendation 13: The Virginia State Crime Commission will sponsor a resolution specifying additional initiatives to be conducted prior to the July 1, 2005 implementation date for the substantive penalty adjustments to Title 18.2 (modifications to sentencing guidelines, training, form revisions, etc.). The Crime Commission will work with the Virginia Criminal Sentencing Commission and the Executive Secretary of the Supreme Court on the initiatives.
    ____________________________________
    (*1) House Joint Resolution 687 (2001). See Attachment 1.
    (*2) Note: under the current law of arson, "occupied" and "a person inside" do not mean the same thing; this proposal will not change this substantive law.
    (*3) All attempts to commit abduction, and all accessories to an abduction, shall be punished according to 18.2-26 or 18.2-18.