Sims v. Com., Record No. 2876-97-3.

• Decision Date: 15 December 1998
• Docket Number: Record No. 2876-97-3.
• Citation: 28 Va. App. 611,507 S.E.2d 648
• Parties: Roger Sylvester SIMS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

507 S.E.2d 648

28 Va. App. 611

Roger Sylvester SIMS v. COMMONWEALTH of Virginia.

Record No. 2876-97-3.

Court of Appeals of Virginia, Salem.

December 15, 1998.

Elizabeth P. Murtagh, Assistant Public Defender, for appellant.

Daniel J. Munroe, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and COLEMAN and ELDER, JJ. ELDER, Judge.

Roger Sylvester Sims (appellant) appeals from his bench trial convictions for statutory burglary under Code § 18.2-91 and abduction under Code § 18.2-47, entered following indictments under Code §§ 18.2-91 and 18.2-48, respectively.¹ On appeal, he contends the trial court erred in refusing to grant his motion for a bill of particulars to specify (1) under Code § 18.2-91, what time of day the alleged burglary occurred and what crime appellant intended to commit once he gained entry, and (2) under Code § 18.2-48, what force appellant used to seize victim and for what purpose he abducted her. We hold that any error committed was harmless, and we affirm appellant's convictions.²

I. FACTS

A. THE OFFENSE

Viewed in the light most favorable to the Commonwealth, the evidence showed that, on January 28, 1997, appellant did not have permission to be in victim's home. Appellant and victim had engaged in a long-term relationship and had a son with whom appellant remained in contact. However, appellant was not residing with victim on that date, their romantic relationship had ended, and their son was at school.

Around noon, appellant appeared, uninvited, in victim's bedroom. Victim testified that she thought the house was locked, and the evidence indicated that appellant had gained entry by removing the storm window in another bedroom. Appellant said, "I got you now, or nowhere to run, or something like that." Victim tried to run, but appellant pushed her onto the bed. He asked for her keys, took eighty or ninety dollars from her purse, and took her gun from under the bed and loaded it with bullets from the closet. When victim asked appellant what he was going to do with her, he said, "hurry up, we don't have much time."

Victim was scared and did not want to leave the house with appellant. Appellant took victim toward the back door, and while he was replacing the storm window he had removed to gain entry, she tried to spray him with pepper spray, but she sprayed herself instead. He struggled with her for the spray, scratching her face, and after he obtained the spray, he tied her hands with a jump rope "so [she] wouldn't try anything like that again."

Appellant then put her in the passenger seat of her car and drove her into the "inner city ... on a wild drug spree." He bought drugs "[q]uite a few times" and used a can to smoke crack cocaine. Appellant also made victim write a check for fifty dollars, which he tried to cash at several different banks, but because victim had insufficient funds in the account, no bank would cash it. Victim never saw the gun again and believed appellant "pawned it for drugs."

At around 8:00 or 9:00 p.m. that evening, appellant exited the car and let victim drive away. She went to appellant's mother's house and was taken to the emergency room by ambulance.

Later, while appellant was in jail, he apologized to victim for the events and said he was motivated by "the drugs."

B. PROCEEDINGS IN THE TRIAL COURT

After interviewing victim on the day of the offense, police secured warrants against appellant for burglary, larceny of a firearm and abduction. In a preliminary hearing on April 21, 1997, the juvenile and domestic relations district court found probable cause and certified the charges to the grand jury. Although appellant requested that the preliminary hearing be transcribed or recorded, the court denied that request, and no record of the proceedings was made.

On May 5, 1997, the grand jury issued a three-count indictment against appellant for burglary, larceny of a firearm and abduction. Counts one and three of the indictment tracked the language of the burglary and abduction statutes, respectively. The burglary count charged that:

on or about January 28, 1997 ... [appellant] unlawfully and feloniously did break and enter in the daytime, or enter in the nighttime the home belonging to [victim] with the intent to commit larceny, assault and battery, or a felony other than murder, rape or robbery therein, in violation of Virginia Code § 18.2-91....

The abduction count charged that:

on or about January 28, 1997 ... [appellant] unlawfully, feloniously, and by force, threat or intimidation and without legal justification or excuse did seize, take, transport, detain or secrete the [victim] with the intent to extort money, or pecuniary benefit, or with the intent to defile ... in violation of Virginia Code § 18.2-48.

Appellant moved the court for a bill of particulars pursuant to Code §§ 19.2-230 and 19.2-266.2 and the Due Process Clauses of the United States and Virginia Constitutions. He claimed that the burglary and abduction counts merely tracked the broad language of each statute and failed to notify him of the "`nature and character' of the offense charged." He sought an order requiring the Commonwealth to state with specificity (1) the exact time of the alleged burglary and what crime appellant allegedly intended to commit when he entered victim's dwelling; and (2) the nature of the force, threat or intimidation used against victim; whether appellant was alleged to have "seized, transport[ed], detain[ed] or secrete[d]" victim; and what appellant's intent was at the time of the acts—to extort money, to gain some pecuniary benefit, or to defile victim.

Appellant's counsel conceded that the evidence presented at the preliminary hearing gave her some indication regarding how the Commonwealth planned to proceed, but appellant sought further clarification. Appellant's counsel contended, for example, that the preliminary hearing evidence for the abduction charge established only that appellant entered victim's residence with intent to gain some pecuniary benefit. However, the indictment, which tracked the language of the abduction statute, also permitted conviction if appellant abducted victim with the intent to extort or to defile. Although the Commonwealth presented no evidence of either type of intent at the preliminary hearing, appellant's counsel explained that appellant also had been charged in a neighboring county with raping the victim as part of the same sequence of events and that she needed to know the portion of the statute under which to prepare appellant's defense. She also contended that "an abduction that involves a ransom note is going to be a little bit different than an abduction for pecuniary interest." Finally, she indicated that if the court granted her request for a bill of particulars, she would not have to file a motion attacking counts one and three of the indictment as overbroad and seeking to strike the surplusage from them.

The Commonwealth's attorney stated that the law did not require her to elect the portion of each statute under which she planned to proceed and that she would not do so. When the court asked the Commonwealth's attorney which portion of the burglary statute the Commonwealth was proceeding under, she indicated that it was proceeding on "more than one."

The trial court denied the motion for a bill of particulars, noting that "[t]he nature of the offense is told to [appellant] not only in the indictment but, also, he's had a preliminary hearing. He is not entitled to know each specific piece of evidence that supports that. The Commonwealth doesn't have to provide that."

At appellant's bench trial on the abduction charge, the Commonwealth presented no evidence that appellant raped the victim in a neighboring county, and it agreed that the abduction was supported by an intent to gain pecuniary benefit and not by an intent to defile. On the burglary charge, the Commonwealth presented evidence that the entry occurred during a daytime breaking and that, following entry, appellant committed (1) larceny of money and a firearm, (2) assault and battery by telling victim she had nowhere to run and pushing her onto the bed and struggling with her and tying her up after the pepper spray incident, and (3) abduction by forcing victim to accompany him to her bank and on a "wild spree to buy drugs."

The trial court held that the evidence failed to prove that appellant abducted victim for pecuniary gain and convicted him of the lesser-included abduction offense in Code § 18.2-47(A), which did not require a finding of any additional intent. The trial court convicted appellant of burglary under the charged statute without specifying the underlying offense or offenses upon which it relied. It also convicted him of larceny of a firearm.

II. ANALYSIS

Appellant contends the indictment failed to notify him of the "`nature and character' of the offense[s] charged" because it did not specify (1) under Code § 18.2-91, what time of day the alleged burglary occurred and what crime appellant allegedly intended to commit once he gained entry, and (2) under Code § 18.2-48, what force appellant allegedly used to seize victim and for what purpose he allegedly abducted her. We disagree and affirm the convictions.

Code § 19.2-220 provides that:

The indictment or information 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 or information may state so much of the common law or statutory definition of the offense as is sufficient to advise what offense is charged.

The indictment should also "cite the statute or ordinance that defines the offense or, if there is no defining statute or...