Opinion
Record No. 0934-93-3
Decided: October 4, 1994
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG, James M. Lumpkin, Judge Designate
Affirmed.
David B. Bice (Nelson Bice, P.C., on brief), for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee.
Present: Judges Coleman, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal, we hold that the amended indictment did not vary from the Commonwealth's evidence produced at trial. Therefore, we affirm the appellant's conviction for failure to appear in violation of his bond.
M. Ismail Sloan, appellant, argues that the indictment varied fatally from the Commonwealth's proof because the evidence proved that the January 10, 1992, trial was continued and that on that date, no trial was held. Therefore, according to Sloan, he could not be convicted of failure to appear for trial on January 10, when no trial was scheduled on that date. This argument, however, addresses whether the evidence is sufficient to support the conviction; it does not address whether the indictment varied from the proof adduced at trial. We do not address the sufficiency of the evidence argument because it is not a question presented on appeal. See Rule 5A:20(c).
The original indictment charged that "[o]n . . . January 10, 1992 . . . [the appellant] did willfully fail to appear before the Circuit Court for the City of Lynchburg for the trial of [his] offense." The Commonwealth, with agreement of defense counsel, amended the indictment to charge that the appellant willfully failed to appear on January 10, 1992, "as required by [his] bond" and deleted "for the trial of [his] offense."
"[T]he function 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." Willis v. Commonwealth, 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409 (1990). When the proof is different from and irrelevant to the crime specified in the indictment and is, therefore, insufficient to prove the commission of the crime charged, a fatal variance exists. Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52 (1984). The proof adduced at trial may vary in minor details from the indictment so long as these details do not constitute the essence of the offense or are not significant. See Code Sec. 19.2-226(6); Stapleton v. Commonwealth, 140 Va. 475, 488, 124 S.E. 237, 241 (1924); see also Waitt v. Commonwealth, 207 Va. 230, 234-35, 148 S.E.2d 805, 808 (1966).
The offense with which appellant was charged is "willfully fail[ing] to appear before any court . . . as required." See Code Sec. 19.2-128. To prove a violation of Code Sec. 19.2-128 as charged in the indictment, the Commonwealth had to prove that the appellant was "required" to be present on January 10, 1992.
The Commonwealth presented evidence that appellant's trial had been scheduled for January 10, 1992; that prior to trial, the court had issued a capias for the defendant and had declared him a fugitive for leaving the Commonwealth in violation of the terms of his bond; and that by order dated January 3, 1992, the trial court continued "the jury trial scheduled for January 10, 1992," "until such time as the defendant is apprehended on the capias or surrenders." The Commonwealth further proved that appellant failed to appear in the Circuit Court for the City of Lynchburg on January 10, 1992; that he had been released on a bail piece conditioned upon his promise to appear "before any court or judge to which the case is rescheduled, continued, transferred, certified, or appealed"; that the case was scheduled for trial January 10, 1992; that although trial of the case was continued, the appellant was required under the conditions of his bond to be present on that date; and that his failure to appear on January 10, 1992, was willful.
In fact, the Commonwealth introduced a letter dated January 3, 1992, that the defendant sent to the Commonwealth's attorney, received January 9, 1992, the day before his scheduled trial date, stating "I am very, very sorry to say it will be impossible for me to appear in court . . . on January 10, the scheduled date for my trial."
No variance existed between the charges in the indictment and the proof adduced at trial. Both the charge and proof were that the appellant willfully failed to appear on January 10, 1992, as required by his bond. The continuance of the "jury trial scheduled for January 10, 1992" did not relieve the defendant, who had been declared a fugitive, from appearing on January 10, 1992, "as required" by his bond. The appellant was required to appear on this date under the terms of his bond as charged in the indictment and as proven at his trial.
Accordingly, no variance existed between the evidence presented at trial and the offense charged in the indictment. We affirm the appellant's conviction for failure to appear.
Affirmed.
I respectfully dissent. In simple terms, the issue in this appeal is whether the Commonwealth proved the offense charged in the indictment. See Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925). In my view, it did not.
Code Sec. 19.2-128 makes it a crime to willfully fail to appear before any Court "as required." Pursuant to this statute, the indictment charged that Sloan willfully failed to appear before the trial court on January 10, 1992, "as required by [his] bond."
January 10, 1992 was the date previously set for Sloan's trial on an unrelated criminal charge. Acting upon information that Sloan had left the Commonwealth in violation of the conditions of his bond and a letter from Sloan expressing his intent not to appear on that date, the trial court on January 3, 1992 continued the case generally, declared Sloan a fugitive, and issued a capias for Sloan's arrest. Sloan did not appear before the trial court on January 10, 1992.
Upon these facts, the majority concludes that the Commonwealth proved that Sloan "was required under the conditions of his bond" to appear in the trial court on January 10, 1992. The evidence in the record, in my view, simply does not support that conclusion. The pertinent conditions of Sloan's bond required that he appear before the trial court on any date to which his case was "rescheduled" or "continued." The trial court's order of January 3, 1992, although entered in anticipation that Sloan willfully would not appear on January 10, 1992, nevertheless rescheduled and continued the case and, thus, no longer required Sloan in accordance with his bond to appear before the trial court on that date.
Finally, I am unpersuaded by the fine distinction the majority draws between a challenge to the sufficiency of the evidence to support the conviction and an assertion that a fatal variance between the charge and the proof exists on the facts of this case. The determination that the evidence is insufficient is precisely what dictates that a particular variance is "fatal." See Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650, 651-52 (1984). See also Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986) (discussing the fatal variance rule). In my view, the distinction the majority draws on the facts of this case is one without significance. The Commonwealth did not prove that Sloan was required to appear before the trial court on January 10, 1992 because its evidence established that prior to that date the trial court continued the case to another unspecified date. Under such circumstances, there was no factual basis for Sloan's conviction.
For these reasons, I would reverse Sloan's conviction and dismiss the charge against him.