Opinion
Record No. 1902-93-1
Decided: March 28, 1995 A Rehearing En Banc was granted in this case on May 1, 1995.
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY, Glen A. Tyler, Judge
Thomas L. Northam for appellant.
G. Russell Stone, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
George Thomas Smith, Jr., appeals from a conviction for having sexual intercourse with a female child under the age of thirteen in violation of Code Sec. 18.2-61. He contends that the evidence failed to prove that the child was not his spouse, an element of the offense. We reverse the conviction.
At trial no witness testified that Smith was not the spouse of the child. The prosecutor did not inquire of the victim, who was age fourteen when she testified, whether Smith was her spouse at the time of the incident.
When a deputy sheriff investigator testified concerning a statement that Smith gave him several days after the incident, the prosecutor asked, "Was George Thomas Smith [, Jr.] married at this time . . . ?" The investigator responded, "Not to my knowledge, sir."
The Commonwealth bears the burden of proving each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 358, 364 (1970). The Commonwealth argues that the investigator's testimony coupled with other circumstantial evidence proved that the victim was not Smith's spouse. We disagree. Evidence that Smith was "not a resident in [the victim's] house," that he dated the victim's sister, that Smith had a different last name than the victim, and that the victim was a virgin, did not suffice to prove beyond a reasonable doubt that Smith was not the victim's spouse.
Reversed and dismissed.