Melvin Hall Fitzgerald, Jr. v. Commonwealth of VA

COLEMAN, Judge.

Melvin H. Fitzgerald was convicted following a jury trial of object sexual penetration in violation of Code § 18.2-67.2. The trial court granted Fitzgerald’s motion to set aside the jury’s verdict, but over Fitzgerald’s objection, the trial judge found him guilty of assault and battery in violation of Code § 18.2-57. The sole issue on appeal is whether the trial judge, after granting the defendant’s motion to set aside the verdict based on insufficient evidence, may sua sponte find the defendant guilty of a lesser charge where the defendant requested a jury trial. We find that…