Purvy v. Commonwealth

• Decision Date: 13 December 2011
• Docket Number: Record No. 0336–11–1.
• Citation: 717 S.E.2d 847,59 Va.App. 260
• Parties: Blanton V. PURVY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 260

717 S.E.2d 847

Blanton V. PURVY

v.COMMONWEALTH of Virginia.

Record No. 0336–11–1.

Court of Appeals of Virginia, Chesapeake.

Dec. 13, 2011.

Anthony N. Sylvester for appellant.

Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Chief Judge FELTON, Judges KELSEY and HUFF.

KELSEY, Judge.

The trial court found Blanton V. Purvy guilty of three counts of failing to register or reregister as a violent sexual offender, a second or subsequent offense, in violation of Code § 18.2–472.1. On appeal, Purvy argues (i) a fatal variance existed between his indictments and the proof at trial, and (ii) the evidence was insufficient to convict him on the variant charges. Agreeing with the first assertion, but disagreeing with the second, we reverse.

I.Fatal Variance Between Pleading and Proof

A 1997 conviction for attempted rape deemed Purvy a violent sexual offender, requiring him by statute to register and reregister with the Virginia State Police. In 2010, a grand jury issued seven indictments against Purvy, alleging that on various dates in 2009 he

did unlawfully, feloniously and knowingly fail to register or re-register with the Virginia State Police for placement on the Sex Offender and Crimes Against Minor[s] Registry, after having been previously convicted of a sexually violent offense, in violation of §§ 18.2–472.1 of the Code of Virginia (1950) as amended. This is a second or subsequent offense.

App. at 7–9.

During Purvy's arraignment at the start of trial, the clerk of court mistakenly read from an arrest warrant that alleged Purvy “knowingly provide[d] false information” on a registration form. Id. at 13–14. Purvy's counsel objected, pointing out that the indictment included no such allegation. The clerk thereafter corrected the mistake and arraigned Purvy on the indictment, which alleged only that he failed to “register or re-register” with the Virginia State Police. Id. at 14.

At trial, the Commonwealth presented evidence that Purvy regularly reregistered. But three of the reregistration forms he submitted, the Commonwealth argued, falsely identified his residence address. Purvy moved to strike the evidence, arguing the indictments alleged only that he failed to register or reregister, not that his reregistration forms contained inaccurate information. Id. at 79. Purvy's counsel explained:

Failing to register is a crime. Failing or materially misrepresenting where one lives, which is arguably what the Commonwealth is purporting to demonstrate through its case, is a different charge and it's not declared, it's not on any of these indictments.

Id. In response, the trial court asked the prosecutor: “Is there a separate offense for failing to register truthfully?” Id. “We're looking that up right now,” id., was the reply.

The prosecutor later summarized her argument this way: “Judge, he's charged with 18.2–472.1 and that states providing false information or failing to provide registration information; penalty; prima facie evidence and we'd argue that it would encompass then all of the listings underneath that code.” Id. at 80. The prosecutor, however, failed to point out to the trial court that the indictments alleged only Purvy's failure “to register or re-register” in violation of Code § 18.2–472.1. Id. at 7–9.

After confirming Code § 18.2–472.1(B) included the separate crime of providing “materially false information” on the reregistration forms, the trial court denied the motion to strike. Hearing additional evidence from Purvy, the trial court then found him guilty of violating Code § 18.2–472.1(B) by falsely stating his residence address on his July, August, and September 2009 reregistration forms.

On appeal, Purvy contends the Commonwealth indicted him for failing to register or reregister but obtained convictions on the theory that he provided false information in his reregistration forms. The charges are conceptually distinct, he argues, and an indictment charging one cannot support a conviction on the other. We agree.

The point of an indictment “is to give an accused notice of the nature and character of the accusations against him in order that he can adequately prepare to defend against his accuser.” King v. Commonwealth, 40 Va.App. 193, 198, 578 S.E.2d 803, 806 (2003) (quoting Sims v. Commonwealth, 28 Va.App. 611, 619, 507 S.E.2d 648, 652 (1998)). A variance occurs when the criminal pleadings differ from the proof at trial. Not every variance is fatal. A “non-fatal” variance is one that does not undermine the integrity of the trial and, thus, does not warrant a reversal on appeal. Morris v. Commonwealth, 33 Va.App. 664, 668–69, 536 S.E.2d 458, 460 (2000).

While “certainty to a reasonable extent is an essential requirement of criminal pleading,” this principle should not lead to “the acquittal of guilty persons on account of some nice technical distinction between the offense charged and the offense proved against a person accused of crime.” Lewis v. Commonwealth, 120 Va. 875, 880, 91 S.E. 174, 176 (1917) (citation omitted). For this reason, we “reject mere matters of form where no injury could have resulted therefrom to the accused.” Hairston v. Commonwealth, 2 Va.App. 211, 214, 343 S.E.2d 355, 357 (1986); see also Jolly v. Commonwealth, 136 Va. 756, 762, 118 S.E. 109, 112 (1923) (ignoring “mere formal defects” in the indictment); Scott v. Commonwealth, 49 Va.App. 68, 73, 636 S.E.2d 893, 895 (2006) (providing examples of “[m]ere matters of form” that preclude dismissal of an indictment or reversal of a conviction); Griffin v. Commonwealth, 13 Va.App. 409, 411, 412 S.E.2d 709, 711 (1991) (dismissing “[m]ere matters of form” as the basis for finding a fatal variance).¹

Often called a constructive amendment,² a fatal variance occurs where the indictment charges a wholly different offense than the one proved—like charging theft of money by false pretenses from one victim, while proving only theft by false pretenses from another victim, Gardner v. Commonwealth, 262 Va. 18, 546 S.E.2d 686 (2001), or charging a defendant with shooting into one person's residence, but proving instead that he shot into the residence of someone else, Etheridge v. Commonwealth, 210 Va. 328, 171 S.E.2d 190 (1969).

Because “[n]otice to the accused of the offense charged against him is the rockbed requirement which insures the accused a fair and impartial trial on the merits,” Hairston, 2 Va.App. at 214, 343 S.E.2d at 357, a variance will be deemed fatal “only when the proof is different from and irrelevant to the crime defined in the indictment and is, therefore, insufficient to prove the commission of the crime charged.” Stokes v. Commonwealth, 49 Va.App. 401, 406, 641 S.E.2d 780, 783 (2007) (citation omitted); see also Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651–52 (1984). In short, the “offense as charged must be proved.” Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925) (emphasis added).

In this case, the indictments charged Purvy with failing to “register or re-register ... in violation of §§ 18.2–472.1 of the Code of Virginia (1950) as amended.” App. at 7–9. Purvy was convicted, however, on the assertion that he “knowingly provide[d] materially false information” on his reregistration forms. See Code § 18.2–472.1(B). We cannot dismiss this difference as purely semantic. The distinction seems to us intuitive and basic. Lying on a reregistration form is different from failing to reregister in the first place. One is a crime of commission, the other of omission. To be sure, proof that an offender filed an inaccurate reregistration form disproves the assertion that he failed to file one at all. Similarly, proof that an offender failed to file a reregistration form disproves the assertion that he provided inaccurate information on a form that he did not file.

The Commonwealth correctly points out that Code § 18.2–472.1(B) criminalizes both the commission and the omission, and that, in some ways, a fraudulent reregistration defeats the purpose of the statute just as much as an outright failure to reregister. We agree. The question for us, however, is not whether the statutory prohibitions are both important—they certainly are—but whether they are different. We do not see how we could conclude otherwise. The allegation in the indictments and the evidence presented at trial necessarily involve different fact patterns, dissimilar legal elements, and thus, conceptually distinct crimes.

The Commonwealth also observes that, as a general principle, an indictment citing a criminal statute incorporates its contents by reference. Again, we agree. See, e.g., Thomas v. Commonwealth, 37 Va.App. 748, 753, 561 S.E.2d 56, 58 (2002); Reed v. Commonwealth, 3 Va.App. 665, 667, 353 S.E.2d 166, 167–68 (1987); see also Alston v. Commonwealth, 32 Va.App. 661, 665, 529 S.E.2d 851, 853 (2000). But when the descriptive text of an indictment narrows the factual allegation, it limits the scope of the incorporation. See Fontaine v. Commonwealth, 25 Va.App. 156, 165, 487 S.E.2d 241, 245 (1997); ³ cf. Hall v. Commonwealth, 8 Va.App. 350, 381 S.E.2d 512 (1989). This result can easily be avoided by broadening the descriptive text of an indictment or by making disjunctive factual allegations. See, e.g., Scott, 49 Va.App. at 76, 636 S.E.2d at 897 (observing that the indictment in Fontaine “did not charge the defendant generally with hit and run in violation of Code § 46.2–894” (emphasis in original)). The indictments against Purvy, however, did neither.

Finally, the Commonwealth notes that “allegations in pleadings which are immaterial to the real issues in the case cannot form the basis of a claim that there is a fatal variance between allegation and proof.” Simmers v. DePoy, 212 Va. 447, 450, 184 S.E.2d 776, 779 (1971) (citing Ransone v. Pankey, 189 Va. 200, 208, 52 S.E.2d 97, 101 (1949)). We fully accept this...