Jackson v. Commonwealth
| Decision Date | 10 July 2012 |
| Docket Number | Record No. 0385-11-1 |
| Court | Virginia Court of Appeals |
| Parties | ANTWONE LINN JACKSON v. COMMONWEALTH OF VIRGINIA |
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Antwone Linn Jackson (appellant) appeals from his jury trial convictions for object sexual penetration and robbery.1 On appeal, he contends the trial court erred in allowing the Commonwealth, on the second day of trial, to amend an indictment for rape in violation of Code § 18.2-61 to charge, instead, object sexual penetration in violation of Code § 18.2-67.2. He contends further that the evidence was insufficient to support his conviction for robbery in violation of Code § 18.2-58 because it failed to prove he took an item of personal property that had some value. We hold the trial court did not err in granting the Commonwealth's motion toamend the rape indictment to charge object sexual penetration and in concluding the evidence was sufficient to support appellant's challenged conviction for robbery. Thus, we affirm.
If the court permits such an amendment, "the accused shall be arraigned on the indictment . . . as amended, and shall be allowed to plead anew thereto, if he so desires, and the trial shall proceed as if no amendment had been made." Id. Finally, if the court permits amendment but "finds [the] amendment operates as a surprise to the accused, he shall be entitled, upon request, to a continuance of the case for a reasonable time." Id.
It is well established that Code § 19.2-231 "is remedial in nature and is to be construed liberally in order to achieve the laudable purpose of avoiding further unnecessary delay in the criminal justice process by allowing amendment, rather than requiring reindictment by a grand jury." Powell v. Commonwealth, 261 Va. 512, 533, 552 S.E.2d 344, 356 (2001) (citing Sullivan v. Commonwealth, 157 Va. 867, 876-77, 161 S.E. 297, 300 (1931)). Furthermore, by definition, an amendment made "to correct a variance between the allegation of the indictment and the proof [offered at trial] occur[s] after the Commonwealth has presented [some] or all of its case, placing the trial court[, in lieu of a grand jury,] in a position to judge whether that proof would be adequate to support the return of the amended indictment." Id.
Virginia's appellate courts have further defined the parameters of Code § 19.2-231. The Supreme Court has held, for example, "the bare fact that the amendment allowed authorizes a greater punishment than that authorized for the offense charged in the original indictment does not itself change the character of the offense charged." Sullivan, 157 Va. at 877, 161 S.E. at 300. Similarly, it has concluded that an amendment does not change the nature of the offense if the amendment is based on the same acts but charges a different intent, even where that different intent, "if proved[,] would enhance the punishment." Id. at 878, 161 S.E. at 300. Furthermore, this Court has held that an amendment to an indictment which changes the statute under which the charges are brought but is otherwise "premised on the same set of facts" as originally charged is permissible because we "compare . . . the underlying conduct of [the] appellant" rather than "the elements of offense[s]." Pulliam v. Commonwealth, 55 Va. App. 710, 717, 688 S.E.2d 910, 913 (2010).
The Commonwealth relies on Pulliam, in which the defendant maintained that amending the indictment for indecent liberties to charge, instead, aggravated sexual battery2 "eliminate[d] an element of indecent liberties, i.e., lascivious intent, which is not an element of sexual battery." Id. at 712, 688 S.E.2d at 911. We disagreed, holding elimination of this element was insufficient to establish that the amendment changed the nature and character of the offense. We noted that while only the offense of indecent liberties required proof of lascivious intent, both indecent liberties and sexual battery required proof of sexual abuse under Code § 18.2-67.10(6), which also contained an intent element. Id. at 714-15, 688 S.E.2d at 912-13. Thus, aside from the lascivious intent element of indecent liberties, both offenses required proof that the proscribedact was "'committed with the intent to sexually molest, arouse, or gratify any person.'" Id. (quoting Code § 18.2-67.10(6)).
In comparing the "nature and character" of the offenses in Pulliam, we examined not "the[ir] elements . . . , but the underlying conduct of appellant." Id. at 717, 688 S.E.2d at 914. Although noting both statutes also "proscribe[d] sexual abuse as performing certain acts with the 'intent to sexually molest, arouse, or gratify any person,'" id. (quoting Code § 18.2-67.10(6)), we relied upon the holding in Sullivan that "'[t]he intent with which the particular crime is committed does not change its general nature or character because whichever intent is shown, the crime is of the same nature,'" id. at 717-18, 688 S.E.2d at 914 (quoting Sullivan, 157 Va. at 876, 161 S.E. at 300).
Thus, in Pulliam, the only real difference between the wording of the two offenses was an intent element, which is not dispositive of the "nature and character" comparison required to determine whether amendment is appropriate, and "[u]nder the facts of [that] case, the evidence necessary to prove criminal conduct under both statutes [was] identical." Id. at 717, 688 S.E.2d at 913-14 (emphasis added). In appellant's case, by contrast, the underlying conduct was not identical. The amendment involved, instead, the addition of an alternative type of conduct by which appellant could be convicted. The offense originally charged, rape in violation of Code § 18.2-61, required proof of penetration of victim M.B.'s vagina by a penis, whereas the amended indictment permitted conviction upon proof of penetration with any object, animate or inanimate, in violation of Code § 18.2-67.2.3 Thus, the holding in Pulliam does not answer the question before us.
The decision in Powell, relied upon by appellant, also does not resolve the issue. Powell involved an original indictment for "a single count of capital murder in which the gradation crime was the commission or attempted commission of robbery, a violation of Code § 18.2-31(4)." 261 Va. at 534, 552 S.E.2d at 356. The trial court permitted the Commonwealth to amend the indictment "us[ing] the term 'and/or' to charge two new gradation crimes, the commission or attempted commission of rape and the commission or attempted commission of sodomy, either of which would constitute a violation of Code § 18.2-31(5)." Id. The Supreme Court, holding on appeal that the amendment changed the nature and character of the offense, explained its reasoning as follows:
In [ the indictment], the Commonwealth did not simply correct a variance between the original allegation and the proof it expected to adduce at trial. Rather, by use of the term "and/or," the Commonwealth expanded the indictment to include a new and additional charge of capital murder. As a result, under the amended indictment Powell could have been convicted and sentenced on one count of capital murder under Code § 18.2-31(4) and another count of capital murder under Code § 18.2-31(5).
Id. at 534, 552 S.E.2d at 356-57.
In appellant's case, in contrast to Powell, the amendment did not permit the Commonwealth to seek to convict appellant of two offenses where only one had been charged; instead, the amendment merely altered the means by which the Commonwealth could prove a single offense. Thus, Powell is not controlling.
We conclude the holding in Edwards v. Commonwealth, 218 Va. 994, 243 S.E.2d 834 (1978), is controlling. Edwards involved an indictment for the offense of pandering in violation of Code § 18.2-357,4 defined as "'knowingly receiv[ing] money or other valuable thing from the earnings of any female engaged in prostitution, except to a consideration deemed good andvaluable at law.'" 218 Va. at 995, 999, 243 S.E.2d at 835, 837 (emphasis added) (quoting Code § 18.2-357). At Edwards' trial, at the close of the Commonwealth's evidence, the Commonwealth was permitted, over Edwards' objection, to amend the indictment to charge a violation of Code § 18.2-356, making it illegal to "'receive any money or other valuable thing for or on account of procuring for or placing in a house of prostitution or elsewhere any female for the purpose of causing her to engage in unlawful sexual intercourse.'"5 Id. at 995, 1000, 243 S.E.2d at 835, 837 (emphasis added) (quoting Code § 18.2-356). Both offenses were punishable as Class 4 felonies. Id. at 999-1000, 243 S.E.2d at 837.
In upholding the amendment of the indictment to charge a violation of Code § 18.2-356 instead of -357, the Court noted the entire grouping of statutes of which they were a part, Code §§ 18.2-355 to 18.2-360, was "designed to accomplish the same purpose, to prohibit any act of exploiting the prostitution of a female." Id. at 1001, 243 S.E.2d at 838. It held that both statutes specifically at issue prohibited "pandering or pimping" and required proof that the accused "receive[d] money or other valuable thing in connection with an act of prostitution." Id....
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