Paduano v. Commonwealth, Record No. 0816–13–3.
| Docket Nº | Record No. 0816–13–3. |
| Citation | 64 Va.App. 173, 766 S.E.2d 745 |
| Case Date | December 30, 2014 |
| Court | Court of Appeals of Virginia |
64 Va.App. 173
766 S.E.2d 745
Joseph Louis PADUANO
v.
COMMONWEALTH of Virginia.
Record No. 0816–13–3.
Court of Appeals of Virginia, Lexington.
Dec. 30, 2014.
Glenn L. Berger (Berger & Thornhill, Altavista, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Katherine Quinlan Adelfio, Assistant Attorney General, on brief), for appellee.
Present: PETTY, HUFF, JJ., and ANNUNZIATA, S.J.
Opinion
ANNUNZIATA, Judge.
Joseph L. Paduano (“appellant”) appeals his convictions in a bench trial of two counts of carnal knowledge of a child between the ages of thirteen and fifteen, second or subsequent offense, in violation of Code § 18.2–63(A). He was sentenced to a total of twenty years' incarceration in the Virginia Department of Corrections.1
On appeal, appellant contends the trial court erred in denying his motion for a bill of particulars, in convicting appellant of two counts under Code § 18.2–63(A) for acts that occurred during the same incident, and sentencing appellant to two consecutive sentences for the offenses. Finding no error, we affirm the convictions.
BACKGROUND
Under familiar principles of appellate review, “ ‘we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’ ” Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc ) (quoting
Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) ). So viewed, the evidence is as follows.
Between April 8 and 14, 2012, the victim, who was then thirteen, stayed at the Pittsylvania County home of her sister, T.P. T.P. and appellant, who was her husband, lived in the home with their children and a roommate.
On one night during the time period, the victim was alone with appellant playing pool in the basement of the home. The other children were upstairs, and T.P. was not at home. Appellant kissed the victim, and when he pulled up her shirt several times, the victim pulled it back down again. He also touched her breasts under her shirt. Against the victim's will, appellant tried to pull down the victim's pants several times. In the course of his attempts to remove the victim's pants, appellant penetrated her vagina with his finger. He then turned the victim around, bent her over the pool table, and put his penis inside her vagina. Appellant had sexual intercourse with the victim for several minutes. After this sequence of events, appellant left the victim in the basement and went upstairs.
On May 26, 2012, police officers responded to a call from T.P. claiming that appellant was threatening to commit suicide. T.P. reported that appellant became upset after she confronted him about having sex with the victim.
Law enforcement officers located appellant shortly after arriving on the scene, and detained him in the back of the officers' patrol vehicle. When the police later interviewed appellant, he admitted that he had had sex with the victim.
In addition to the firearms charge, a Pittsylvania County grand jury indicted appellant on two counts of carnal knowledge of a minor, in violation of Code § 18.2–63(A). Specifically, the grand jury charged:
Between April 8, 2012 and April 14, 2012, ... [appellant] ... [d]id unlawfully and feloniously, while being over the age of 18 years, engage in sexual intercourse with T.M.H., a child born May 22, 1998, the accused having been previously sentenced for carnally knowing while over the age of
18 a
child between 13 and 15 years of age, in violation of ... Code § 18.2–63....
The grand jury further charged:
Between April 8, 2012 and April 14, 2012, ... [appellant] ... [d]id unlawfully and feloniously, while being over the age of 18 years, did [sic] commit animate object sexual penetration of T.M.H., a child born May 22, 1998, the accused having been previously sentenced for carnally knowing while over the age of 18 a child between 13 and 15 years of age, in violation of ... Code § 18.2–63....
Prior to trial on these indictments, appellant filed a motion for a bill of particulars pursuant to Code §§ 19.2–230 and 19.2–266.2, in which he alleged that “[appellant] has been indicted on three offenses which appear to involve the same act and/or code section. The dates are the same for each of the three offenses but span six days.”2 Appellant argued at the hearing on his motion that “issues of double jeopardy ... require that the Commonwealth provide [appellant] the information as to whether or not this is one incident at one time and ... exactly what behavior they are alleging makes this two offenses rather than one.” The trial court denied appellant's motion for a bill of particulars, noting that the indictments sufficiently described each of the alleged offenses.
I.
Bill of Particulars
Code § 19.2–220 provides that an indictment against a defendant
shall be a plain, concise and definite written statement, (1) naming the accused, (2) describing the offense charged, (3) identifying the county, city or town in which the accused committed the offense, and (4) reciting that the accused committed the offense on or about a certain date. In
describing the offense, the indictment ... may use the name given to the offense by the common law, or the indictment ... may state so much of the common law or statutory definition of the offense as is sufficient to advise what offense is charged.
“A defendant is not entitled to a bill of particulars as a matter of right.” Goins v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123 (1996). Ordinarily, “an indictment sufficiently charges a statutory offense if it follows the language of the statute.” Sims v. Commonwealth, 28 Va.App. 611, 619, 507 S.E.2d 648, 652 (1998). “ ‘The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.’ ” Swisher v. Commonwealth, 256 Va. 471, 480, 506 S.E.2d 763, 768 (1998) (quoting Hevener v. Commonwealth, 189 Va. 802, 814, 54 S.E.2d 893, 899 (1949) ). However, “ ‘when the statutory language does not in itself fully and clearly set forth all material elements of the offense,’ ” Sims, 28 Va.App. at 619, 507 S.E.2d at 652 (quoting 2 Charles E. Torcia, Wharton's Criminal Procedure § 265, at 127 (13th ed.1990)), a trial court “may direct the filing of a bill of particulars,” Code § 19.2–230. “ ‘The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.’ ” Ward v. Commonwealth, 205 Va. 564, 569, 138 S.E.2d 293, 297 (1964) (quoting Livingston v. Commonwealth, 184 Va. 830, 837, 36 S.E.2d 561, 565 (1946) ). A “trial court's decision whether to require the Commonwealth to file a bill of particulars is a matter committed to its sound discretion.” Muhammad v. Commonwealth, 269 Va. 451, 493, 619 S.E.2d 16, 40 (2005) (citing Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 223 (1991) ).
Here, the indictments against appellant set forth the specific charges against him. The indictments specifically track the language of Code § 18.2–63. The first indictment alleged that appellant had carnal knowledge of the victim by “engag[ing] in
sexual intercourse,” and the second indictment alleged that appellant had carnal knowledge of the
victim by “commit [ting] animate object sexual penetration.” Moreover, each indictment identified the time at which the carnal knowledge act was alleged to have occurred, and against whom it occurred. Appellant argues the Commonwealth was required to file a bill of particulars further describing the nature of the “animate object sexual penetration” at issue. However, the Commonwealth is not required to disclose the evidence upon which it planned to rely to prove an element of the offense. See Sims, 28 Va.App. at 620, 507 S.E.2d at 653 (stating that a defendant “should not be permitted to use a bill of particulars to expand...
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