Distinction Without a Difference

 I'm breaking down the published cases in Virginia from March thru now (I do this every year) and I ran across Tomlin v. Commonwealth. The issue in Tomlin is whether bedsores from some fairly nasty abuse of an incapacitated adult qualify under the statute under the following definition:

 "Serious bodily injury or disease" includes but is not limited to (i) disfigurement, (ii) a fracture, (iii) a severe burn or laceration, (iv) mutilation, (v) maiming, or (vi) life-threatening internal injuries or conditions, whether or not caused by trauma.  § 18.2-369(C) 

The proper answer here is whether the fact finder determined the condition of the bed sores to be as serious as the least of the things on the list. Disfigurement doesn't require serious harm and a fracture can be rather minor. The finder of fact at trial should make the determination and the appellate courts should, as they constantly tell us, defer to the person(s) who actually saw the evidence and heard the witnesses.

But no, the Virginia Supreme Court got suckered into an unnecessary discussion of cannons of interpretation. It even batted over .600 in its analyses, getting Noscitur a Sociis and In Pari Materia right. Mind you, the appellant threw some nice fat eephuses right over the plate. Sadly, the Supreme Court whiffed on Ejusdem Generis. Here's my breakdown of the court's reasoning:

Tomlin v. Commonwealth, JUN23, VaSC no. 220223:  (1) When a particular class of persons or things is enumerated in a statute and general words follow, the general words are to be restricted in their meaning to a sense analogous to the less general, particular words.  (2) The specific-general sequence is required, and that the rule does not apply to a general-specific sequence.

Let's play out that reasoning some. If your statute says "red, blue, green and other colors", you are stuck with things similar to the colors listed (ie: yellow, purple, magenta). If your statute says "colors including red, blue and green" then "colors" is not limited to things similar to the colors listed. It can include cars, deer, and dynamite. And, yes, I know I'm being ridiculous; it's because that is a ridiculous way to apply that doctrine of interpretation.

 While I'm sure someone out there can come up with a situation where the court's misapplication of the rule actually works, let's be honest. The reason for that particular warping of the rule is so it can be ignored when it should apply. The sad thing is that the court didn't even need to do it in this case.

Frivolous Return Unit

Trying to catch up on cases I haven't read yet and ran across U.S. v. Reed which is your (sadly) fairly typical case where some yahoo files liens on everybody who has irked him. The interesting part wasn't that. The interesting part was reading that the IRS has a Frivolous Return Unit.

You have to wonder what sort of silliness these folks deal with every day. Do you think they have different sections? The biggest would have to be sovran citizens. What else do you figure they face? People who are getting instructions from space aliens or ghosts?  Equiring minds want to know.

In Virginia You Can Be Punished Twice for Exactly the Same Crime

  . . . but only if the General Assembly says so.

The Virginian Courts Appellate have been rather clear on this:

When considering multiple punishments for a single transaction, the controlling factor is legislative intent. The legislature may determine the appropriate unit of prosecution and set the penalty for separate violations. Therefore, although multiple offenses may be the same, an accused may be subjected to legislatively authorized cumulative punishments. It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.  Tharrington v. Commonwealth, 58 Va.App. 704 (2011).

and 

If the legislature expressly declares its will to inflict multiple punishments on the same conduct, the courts must respect its intent to do so—even if the two statutory offenses fail the Blockburger test. Commonwealth v. Gregg, 295 Va. 293 (2018).

To clean this up a bit, I think what the courts are saying here is that if the General Assembly evinces an intent to impose two punishments for the same crime under two different statutes it has actually shown an intent of one punishment which can be imposed for the crime, but split that one punishment between two statutes. In other words, if (1) snipe hunting is punished under 18.2-3000 (snipe hunting: 5 years) and 18.2-3050 (snipe hunting with a pocket knife: 10 years) and (2) the General Assembly expresses an intent to convict and punish under both at the same time, then (3) the cumulative punishment of the two statutes is actually the punishment which can be imposed (15 years).

So, how does the General Assembly evince this intent? Well, the appellate courts haven't defined a magic formula, but they have approved "a violation of this section constitutes a separate and distinct offense." Tharrington. Also, statutes fairly often uses "felony" instead of "offense." As best I can tell, these are the statutes which have that language:

§ 18.2-23(B) - Conspire to larceny
§ 18.2-46.2 - Doing a predicate act (crime) for a criminal street gang *
§ 18.2-46.10 - Applies this to all terrorist crimes  *
                    (Article 2: 18.2-46.4 thru 46.10) 
§ 18.2-50.3 - Entice person into a house to commit felony
§ 18.2-51.7 - Female genital mutilation *
§ 18.2-53.1 - Use a firearm in a felony
§ 18.2-57.02 - Disarming a law enforcement / correctional officer
§ 18.2-108.01 - Larceny with intent to sell
§ 18.2-152.15 - Criminal encrypting
                    (separate and distinct from predicate criminal activity)
§ 18.2-178.2 - Financial exploitation of a vulnerable adult *
§ 18.2-248.01 - Transporting drugs into Virginia
§ 18.2-308.3 - Use illegal ammunition while committing a crime
§ 18.2-308.4 - Possess Firearm and Drugs
§ 18.2-348.1 - Promoting travel for prostitution
§ 18.2-356.1 - Purchasing or selling minors *
§ 18.2-357.1 - Commercial sex trafficking
§ 18.2-376.1 - Use computer to send obscenities
                    (separate and distinct misdemeanor)
§ 18.2-461.1 - False call for emergency personnel *
§ 18.2-514 - Racketeering
§ 46.2-817 - Eluding a police stop
§ 46.2-341.19 - Use of a commercial vehicle to distribute drugs

In some of these the "separate and distinct" language stands on its own and in others the General Assembly has added and we really mean this language emphasizing the point (the statutes with *).

The interesting question is whether that's the only language that can indicate this intent. The cases don't seem to say so and there is other language in statutes which could indicate the same intent. For instance, in Virginia there are two statutes which I'll call aggravated methamphetamine distribution statutes. The first is part of the normal criminal distribution statute 18.2-248 and the other is a statute applying only to meth, 18.2-248.03. 18.2-248 has a 5-Life punishment for 10g+ pure meth or 20g+ impure meth (5 year mandatory minimum); 18.2-248.03 has a 5-40 year punishment (3 years mandatory minimum) for 28g+ of impure meth. Neither of the statutes have the "separate and distinct" language. However, the language of 18.2-248.03 begins with "Notwithstanding any other provision of law."

A general reading of that statute could be that we don't care what other statutes about illegal drugs say THIS is the statute that determines the punishment for aggravated meth distribution. This is done when there is a generalized crime, but the General Assembly wants to set out a specific punishment for a specific violation within that generalized crime. A quick overview of Virginia's statutes shows this use of "notwithstanding" to go from general to specific as a general pattern throughout the code. The problem here is that there was already a specific crime which had been created two years earlier. 18.2-248.03 was passed in 2008 while the punishment under 18.2-248 had been put in place in 2006. It clearly doesn't follow that this is a diversion from a general crime to a more specific one. 

Thus, we are left to look for guidance from the appellate courts. "Courts construe statutes so as to not render other statutory language superfluous."  Commonwealth v. Jefferson, 60 Va.App. 749 (2012).  As well, "the words chosen by the legislature in drafting a statute derive meaning from both definition and context and, therefore, we divine legislative intent by construing an enactment as a whole, together with companion statutes, if any. Legislative purpose can best be ascertained from the act itself when read in the light of other statutes relating to the same subject matter. The doctrine of pari materia teaches that statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogenous system, or a simple and complete statutory arrangement.  Department of Motor Vehicles v. Wallace, 29 Va.App. 228 (1999). See also Chauncey Hutter Inc. v. Vec, 50 Va. App. 590 (2007).

With all that in mind, and considering the fact that both these crimes have been on the books for 15 years without change, it seems the General Assembly means and expects them to be read in harmony - not as one superceding the other. The aggravated meth distribution punishment under 18.2-248 still exists, but "notwithstanding" its punishment the defendant is also to be punished for aggravated meth distribution under 18.2-248.03. So, assuming a defendant had 28g+ of meth his actual sentencing range - although split across two statutes - is 10 to Life+40 years with 8 years of that being a mandatory minimum sentence.

Admittedly, I've never seen this done. I'm not sure many prosecutors even think about 18.2-248.03. They're used to dealing with 18.2-248 and individually it carries a stiffer sentence so they default to it and don't try defendants under both statutes because most people, including prosecutors and judges, have a basic understanding of double jeopardy. They're okay with the punishment they're going to get and they don't have to make a nuanced argument (which is always a pain in the derriere).

The Scrivener Scribbles

 So, I am writing a petition for an appeal (yes, prosecutors in Virginia still have to petition for an appeal) and I'm reading thru a rather pertinent part of my argument when I come across "Your Honor, this is one of the most obvious scribbler's errors I have ever seen."

Will the Court of Appeals accept a scrivener's error about a scrivener's error? I guess we'll see - although I guess I could argue that in the broader perspective a scrivener and a scribbler are basically doing the same thing.

Contempt in a Virginia Criminal Court

 

 For a fairly simple concept (play stupid games win stupid prizes), contempt of court has been subject to all sorts of legislation and case law trying to define the parameters of this judicial power. What can be punished? What process is needed for punishment? How much punishment can be meted out? These questions come up more than you'd think as people find varied and imaginative ways to run afoul of the judge and court.

RULE: 6 months is the maximum punishment for contempt without a jury.

The place to begin this discussion is in the United States Supreme Court. In 1970, that court was faced with the question of whether the State of New York could convict a defendant of a crime carrying a possible year punishment without a jury. Five justices ruled that it could not. Two of those justices said every crime that carries jail time carries a constitutional right to a jury trial. The other three said that petty offenses, which they defined as those carrying a punishment of up to six months, did not require a jury.¹   Baldwin v. New York, 399 U.S. 66 (1970).  From these three votes was born the now generally accepted rule that no jury is required for a crime carrying a maximum six month punishment.

A couple years prior to Baldwin the court had ruled that a judge couldn't imprison someone for two years on a contempt charge without seating a jury, but declined to set a hard line at which a jury was required.  Bloom v. State of Illinois, 391 U.S. 194 (1968).  Still, by 1974 the six month limit was an accepted fact and the court ruled that, while a number of summary contempts entered and ruled upon during the trial could have an aggregate punishment in excess of six months, if multiple contempts are tried and punished after the trial there must be a jury to impose an aggregate punishment of greater than six months.  Codispoti v. Pennsylvania, 418 U.S. 506 (1974).

Types of Contempt

Usually, if I'm asked the types of contempt I answer summary and plenary. This division concentrates on how the judge handles the contempt. Summary is punished directly by the judge without any of the trappings of due process. Plenary is tried with the defendant being given all the rights she is entitled to under the various statutes and constitutions. 

However, courts also divide contempts between direct and indirect. See Robinson v. Commonwealth, 41 Va.App. 137 (2003). This division concentrates on the activity of the contemptor. If the contemptor does something in the courtroom or in a manner that disrupts what is going on in the courtroom it is direct contempt.²  If the contemptor does something not immediately disruptive, but in defiance of the court's power to administer justice, it is indirect contempt. In theory, summary goes with direct and plenary goes with indirect. However, this is subject to modification and in Virginia the General Assembly has done so.

The Virginia Summary Contempt Statutes

 § 18.2-456. Cases in which courts and judges may punish summarily for contempt.

A. The courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases:

1. Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;

2. Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness, or party going to, attending, or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court;

3. Vile, contemptuous, or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;

4. Misbehavior of an officer of the court in his official character;

5. Disobedience or resistance of an officer of the court, juror, witness, or other person to any lawful process, judgment, decree, or order of the court; and

6. Willful failure to appear before any court or judicial officer as required after having been charged with a felony offense or misdemeanor offense or released on a summons pursuant to § 19.2-73 or 19.2-74.

B. The judge shall indicate, in writing, under which subdivision in subsection A a person is being charged and punished for contempt.

C. Nothing in subdivision A 6 shall be construed to prohibit prosecution under § 19.2-128.

This is what most Virginian lawyers and judges refer to when they talk about contempt. § 18.2-457 limits punishment of "any such contempt as is mentioned in" § 18.2-456(A)(1) to 10 days and/or $250 unless a jury is impaneled to determine punishment. § 18.2-458 limits a district court judge's ability to punish any summary contempt to 10 days and/or $250 and § 18.2-459 outlines the procedure for appealing the general district court summary contempt findings.

Note that while (A)(2) thru (A)(6) are subject to summary punishment by the judge they all cover things which are indirect contempt in many - if not most - circumstances. Note also, that the judge "may" use summary judgement under this statute - not shall. The statutes do not foreclose the use of plenary contempt.

Virginian Indirect Contempt

In Robinson, the Virginia Court of Appeals confuses indirect contempt with plenary: "Indirect or constructive contempt charges, therefore, are not brought summarily, but must proceed under a more formal procedure than an immediate adjudication by the court." Id. at 146.  As discussed in the previous paragraph, this is clearly not true. However, although the language in Robinson is less clear than we might hope for, it does set out the idea that if the defendant is accused of indirect contempt and it is treated as plenary contempt (constitutional and statutory procedures observed), the judge can find the defendant guilty of common law contempt and sentence him without regard to any limitations in the summary contempt statutes.

Maximum Punishment

Theoretically, there is no maximum punishment for indirect, plenary contempt in Virginia. The appellate courts refer to "the unbridled authority of courts to punish for criminal contempt." Baugh v. Commonwealth, 14 Va.App. 368 (1992)(oft quoted thereafter).  Unbridled, for those of you who didn't grow up watching cowboy movies, means "unrestrained." In other words, there is no maximum punishment for contempt in Virginia - only procedural limits as to how a judge can get there.

 Conclusion

Summary contempt is limited by §§ 18.2-456 thru 459. A district court judge is limited to 10 days and/or a $250 fine for all summary contempt (whether direct or indirect) while a circuit court judge is limited to that punishment only in cases of direct, summary contempt. Even then, a circuit court judge can impanel a jury and seek a higher punishment.³ 

Plenary contempt is clearly available to the circuit court judge and has no maximum sentence except for the mandate from the U.S. Supreme Court that if contempt is to be greater than 6 months the contemptor is entitled to a jury to set the punishment. 

On the other hand, plenary contempt does not appear to be available to the district courts. As already established, there is no maximum punishment for contempt. Under § 16.1-123.1(1) the general district court has jurisdiction over local ordinances, misdemeanors, and traffic infractions while § 16.1-241 limits the jurisdiction of juvenile and domestic courts to those domestic crimes not rising to a felony. See  e.g. subsections I & J.  A misdemeanor is defined as a crime not "punishable with confinement in a state correctional facility." § 18.2-8 (definition set by definition of a felony).  Under § 53.1-20(B), a person "sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system."  Ipso facto, a district court judge does not have, by the enabling statutes laid out by the General Assembly, the jurisdiction to address any crime that has the potential to punish the defendant more than twelve months and, as plenary contempt carries a potential sentence greater than 12 months it lies outside the jurisdiction granted a district judge.

The only real argument I can think of for a district court to have plenary contempt powers is that since a jury is required for a contempt sentence of more than 6 months and a Virginia district court lacks the power to impanel a jury a district court has plenary contempt powers up to six months. The appellate courts' reference to contempts punished with six months or less as "petty" would seem to support this distinction. However, I find this line of reasoning non-persuasive as the potentially infinite punishment attached to plenary contempt effectively makes it a felony whether a district court can seat a jury or not. An apt analogy might be that a district court lacks the ability to convict a defendant of grand larceny even if the sentencing guidelines only call for three months punishment; it has a potential maximum sentence of twenty years therefore it goes to circuit court for a felony determination. So, I don't think district courts have plenary contempt power in Virginia.

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¹  Three other justices dissented and one did not participate.

²  Typically, this could be someone yelling or fighting in the hall outside the courtroom. I have seen it from further away. A judge in Pitcairn County was doing arraignments and bond hearings by video from the jail and construction at the jail was making so much noise he couldn't communicate with the defendants. He told a deputy to tell the construction people to stop; they didn't. He had the construction boss detained and brought to the courtroom to answer a possible contempt.

³  This leaves us with all sorts of interesting procedural questions. Does the defendant get an attorney? But, then it would become a plenary hearing. Does the defendant get jury selection? If so, who is striking jurors from the other side? The judge? In theory, the prosecutor has no place in summary contempt; it is entirely in the breast of the court. --- etc. et cetera &cetera . . .

Case Law Presentation March '23

My highlights of the last year's criminal law cases out of Virginia (year ending 01 March 2023). The entire breakdown of the law can be found at my website under the CaseLaw Breakdown folder.

OMG! A Brave New World (or At Least Judge)

I just saw something I never thought I'd see: a Court of Appeals judge in Virginia quoting New York and Oregon law as persuasive in interpreting Virginia statutes. If he'd added precedent from California it would have been per se grounds for immediate reversal by the Virginia Supreme Court.

Wallace v. Commonwealth, FEB23, VaApp no. 1040-21-1: If someone purposefully deposits a fraudulent check at an ATM she has the right to use, it's not computer fraud unless the Commonwealth proves she was acting in violation of the terms of her contract with the bank.

Judge Ortiz, IMHO your reasoning stood on its own. There was no reason to detract from it with those citations. Good luck in some of your future endeavors (the ones that don't stand in opposition to my personal biases, beliefs, and proclivities).

Looking over Virginia Prosecutors Hiring : Better Get in Shape

 I was looking at CLE's and the next button over was available positions, so I meandered over to have a look. Lots of offices are hiring and it looks like several must have had some sort of mass exodus. 

Of note:

1.  Several are still starting their sales pitch at the very beginning by telling the potential applicant that they can fire him/her anytime they want to (because that always indicates a healthy office atmosphere).

2.  At least one (Halifax) is offering a signing bonus (gotta admit that would have been pretty sweet when I moved from Midlothian to Wise 17 years ago).

3. I saw job titles I'd never seen at a Commonwealth Attorney's office before: Deputy Chief of Staff (Prince William), Senior Assistant Commonwealth’s Attorney (Henrico : this title is used elsewhere, but here it is apparently higher than Attorney III, but not chief deputy), and Conviction Review Unit Attorney (Arlington County / City of Falls Church : interesting but comes with a one year employment limit).

4.  And finally, if you're going to work as a prosecutor in Carroll County you'd better be prepared for daily calisthenics and have a cdl:

Physical Requirements
This work requires the frequent exertion of up to 25 pounds of force and occasional exertion of up to 50 pounds of force; work frequently standing, walking, sitting, speaking or hearing and using hands to finger, handle or feel and occasionally requires reaching with hands and arms and repetitive motions; work has standard vision requirements; vocal communication is required for expressing or exchanging ideas by means of the spoken word; hearing is required to perceive information at normal spoken word levels; work requires preparing and analyzing written or computer data, operating motor vehicles or equipment and observing general surroundings and activities; work has no exposure to environmental conditions; work is generally in a moderately noisy location (e.g. business office, light traffic).

Punting: Artis v. Commonwealth

I am breaking down last month's cases from the Courts Appellate Virginian and I trip over Artis v. Commonwealth, JAN23, VaApp no. 1407-21-1.  There are two issues in the case. The first is about abatement and Judge Dominique A. Callins handles that one with a well reasoned and if anything too thorough explanation. Then she dealt with a second issue which boiled down to "if proof of a prior conviction makes a crime aggravated (carrying a greater punishment), does the proof have to be proven in front of the jury or can it simply be introduced to the judge at sentencing?"

In the fact pattern, Judge Callins states:

At sentencing before the trial judge, the Commonwealth introduced for the first time, without objection, evidence showing that Artis had a prior conviction[]. Over objection from defense counsel, the trial judge imposed an enhanced sentence.

Okay, if you practice criminal law in Virginia you know how such a prior conviction is proven at trial. The prosecution introduces a certified copy of the conviction. This proves the conviction. A prior conviction can also come to light as part of a pre-sentence report, although that would not have occurred in this case.

The appellant claimed that the introduction of the prior conviction had to be done during the trial on guilt or innocence. Judge Callins disagrees, stating that constitutional precedent does not require that. In a lengthy footnote (no. 3: worth the read), the Judge explains that this is a General Assembly decision (I agree) and stops just short of stating openly that they ought to get off their bums and make the decision.

Then Judge Callins punts. She talks about a case precedent requiring proof, pointing out the case doesn't say when (this is when she elucidates with footnote 3). Instead of deciding the question before her, the Judge states "it is clear that the predicate conviction upon which the trial court sought to impose the enhanced punishment was neither alleged nor proven."

The "alleged" language seems to be desultory as it wasn't a topic addressed. The not proven really has no basis in the decision either, because "evidence showing that Artis had a prior conviction" doesn't tell us what the evidence was at all. After reading this opinion, I have no idea what the Court held to be insufficient evidence. I realize this case deals with a statute now eliminated by the General Assembly, but proving a prior conviction is something done in any number of charges. It's important to know what is not sufficient to carry the day in the Court of Appeals.

Overall, I must say this is the first time I've found a case really interesting from one of the new wave of judges. The legal reasoning was solid and well supported. The factual reasoning may have been as well; I just can't tell from the facts as they are laid out in the opinion. I think it may be worthwhile to keep an eye out for Judge Callins' opinions.¹

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¹  If for no other reason than because she uses "proven" rather than the despised and ugly "proved." Heck, if she is so righteous with God that she also uses the Oxford comma I'm probably going to start pushing for her to go to the Supreme Court.

"Lustful Disposition" : Allowing Unadjudicated Acts in Child Sexual Abuse Cases

A lecturer at the CLE I'm currently attending asked whether Virginia has the "lustful disposition" evidence rule allowing unadjudicated sexual acts to be introduced against a defendant charged with a child sex abuse case. Nobody in the room knew the answer so I thought I'd check.

Yes. Virginia has this rule.

The federal government and many States adopted a specific rule of evidence setting out this rule [Rule 414] starting in 1994. However, at that time Virginia did not have codified rules of evidence and it did not adopt them until 01 June 2012. When it did so it did not adopt the federal rules, but codified much of the common law rules of evidence in a manner similar to the federal rules in Part Two of the Virginia Supreme Court Rules. However, those parts of common law rules of evidence not in the new rules of evidence did not go away:

[The Rules] are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. . . . As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules has no effect on current law or practice on that topic. Rule 2:102

I point this out because when Virginia adopted its rules it did not create a Rule 414. This failure to say yea or nay requires us to go old school and look to Virginia's case law to see where things stand.

The lustful disposition rule has been well established in Virginia since at least 1923:

The authorities are in conflict upon the general question as to whether, in a prosecution for statutory rape, evidence may be admitted of intercourse between the accused and the prosecutrix subsequent to the act upon which the prosecution is based. The better doctrine, as we think, is that where, as here, the consent of the prosecutrix is immaterial, such evidence is admissible as tending to show the disposition of the defendant with respect to the particular act charged.  Stump v. Commonwealth, 137 Va. 804 (1923).

While Stump is largely used in Virginia case law for the proposition that rape can be thru force or constructive force, its precedent as to unadjudicated sexual acts with minors has remained in place:

The court specifically instructed the jury that this evidence [unadjucated sexual activity] was not to be considered for any purpose other than as it might tend to show the disposition of the defendant with respect to the particular act charged. Defendant has nothing to complain about on this point.  Waitt v. Commonwealth, 207 Va. 230 (1966).

Even later, Stump was relied upon in Marshall v. Commonwealth, 5 Va.App. 248 (1987) as supporting precedent for the introduction of an existing rape conviction for an act within the same time period of the current indictment for rape of the minor.¹

In 2008, the Virginia Supreme Court again laid out this rule without specifically citing Stump:

It is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction.  Ortiz v. Commonwealth, 276 Va. 705 (2008)(grandfather having sex with granddaughter under 13 yoa).

For those of you who can't wrap your head around having a rule of evidence without a number attached, you could find your safe harbor under Rule 2:404(b):

[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.

Admittedly, I've not met many judges who favor letting anything thru under this portion of the rule. In fact, I had one tell me that the only thing he'd ever let in under this would be modus operandi proof. It is, after all, one of the biggest catch-all exceptions in the rules. However, if your judge is young enough that she can't see beyond the numbers² this is probably the best place to hang your hat as you recite the precedent to support the common law rule. 

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¹  A case rendered redundant by the passage of § 18.2-67.7:1 and adoption of Rule 2:413 in accordance with the law [both in 2014].

²  We old farts all learned the rules of evidence under the common law. Thus, we neither know all the numbers nor particularly care about them.