Diane Toscano Secures Dismissal of All 35 Felony Charges in Accomack County Trial
After excluding key evidence and opposing the prosecution’s bid to withdraw the charges, Toscano secured a dismissal that bars retrial.
VIRGINIA BEACH, VA — Virginia Beach criminal defense attorney Diane Toscano of Toscano Law Group secured the dismissal of all 35 felony charges against a client identified as E.K. The Commonwealth had charged E.K. with online solicitation of a minor under Virginia Code § 18.2-374.3(D).
The ruling came during a jury trial in Accomack County Circuit Court on Virginia’s Eastern Shore. Judge Lynwood Lewis found that the Commonwealth had presented insufficient evidence to establish the elements of the charged offenses.
Defense Excludes Key Prosecution Evidence
The case arose from online communications involving sexual discussions, fantasy, and role-playing. The Commonwealth alleged that E.K. unlawfully solicited an individual who was 17 at the time. The defense maintained that E.K. neither knew nor had reason to believe the individual was under 18.
Toscano challenged the Commonwealth’s proposed evidence in two motions in limine. The first sought to exclude third-party Discord communications, including sexually explicit exchanges involving other participants. Toscano argued that the Commonwealth relied on incomplete, one-sided conversations that lacked context and did not establish the elements of the alleged offenses.
The second motion sought to exclude evidence concerning E.K.’s personal, political, and religious beliefs. The defense argued that introducing those beliefs risked diverting the jury from whether the Commonwealth had proved the charges.
After reviewing written submissions and hearing oral argument, Judge Lewis excluded substantial portions of the Commonwealth’s proposed evidence, including material he found irrelevant or unduly prejudicial. The rulings limited what prosecutors could present to the jury.
Pretrial Motion Sets the Stage for Dismissal at Trial
Before jury selection, Toscano filed and argued a motion to dismiss the charges with prejudice for insufficient evidence in light of the court’s evidentiary rulings. Judge Lewis reserved his ruling, and the jury trial began.
During trial, the Commonwealth sought a nolle prosequi to withdraw the charges. Toscano objected, and Judge Lewis denied the request. A nolle prosequi would not necessarily have prevented the Commonwealth from bringing the charges again.
Toscano renewed her motion to dismiss as the Commonwealth presented its evidence. Judge Lewis granted it before the Commonwealth completed its case, finding the evidence insufficient to establish the elements of the charged offenses. The defense did not have to present evidence, and the jury did not deliberate.
Why the Dismissal Bars Retrial
Jeopardy had attached when the jury was sworn. The court’s ruling on the sufficiency of the evidence therefore constituted an acquittal for double-jeopardy purposes. The Commonwealth cannot retry E.K. on the same offenses.
Shocking Is Not the Same as Criminal
The allegations involved sensitive and potentially inflammatory subject matter. The Commonwealth still had to prove every element of the charged offenses beyond a reasonable doubt through admissible evidence. Toscano’s evidentiary challenges and renewed motion secured a final dismissal of all 35 felony charges.
In the News
Shore Daily News — Judge Dismisses All 35 Online Solicitation Charges in Accomack Trial
Toscano Law Group, P.C., is a Virginia Beach-based litigation firm representing clients facing serious state and federal criminal charges. While primarily serving Hampton Roads and the Eastern District of Virginia, the firm accepts select cases throughout the Commonwealth of Virginia and select matters nationwide, subject to applicable pro hac vice admission requirements and association with local counsel where required. Prior results do not guarantee similar outcomes.
