Opinion
Record No. 0278-93-1
Decided: January 24, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, Johnny E. Morrison, Judge
James E. Short for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal by Jason Lamont Trusty (appellant) from a judgment of the Circuit Court of the City of Portsmouth (trial court) that approved a jury verdict convicting him for unlawful bodily injury to a law enforcement officer, abduction, and aggravated sexual battery, the sole issue presented is whether the trial court erred when it permitted the Commonwealth to amend count two of the indictment that initially provided:
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COUNT TWO: on or about May 17, 1992, in the City of Portsmouth, Jason Trusty did unlawfully and feloniously cause malicious bodily injury to Angela Jordan, a Portsmouth Sheriff's Deputy, by beating and kicking her about her body and abusing her physically,
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against the peace and dignity of the Commonwealth of Virginia. Va. Code Sec. 18.2-48, 18.2-51.1, 18.2-67.3, 18.2-26, 18.2-479.
(Emphasis added.)
The facts essential to an understanding of this opinion are: Appellant pled not guilty to all of the charges against him and requested a trial by jury. At the close of the Commonwealth's evidence, appellant made a motion to strike count two of the indictment because it failed to specifically contain the requisite language necessary to sustain a conviction for malicious bodily injury. At the trial court's suggestion, the Commonwealth amended count two of the indictment to include the language, "with the intent to maime [sic], disfigure, disable or kill." Appellant argues that without the amended language, count two stated "nothing more than a misdemeanor" and it was reversible error for the trial court to allow the Commonwealth's amendment.
After hearing the evidence of the Commonwealth and appellant, the jury found appellant guilty of abduction, unlawful bodily injury to a law enforcement officer, and aggravated sexual battery. The trial judge sentenced appellant in accord with the verdict of the jury. It is from that judgment that appellant appeals to this Court. This appeal is limited to the question of whether "the trial court committed reversible error by allowing the Commonwealth to amend count two of the indictment." For the reasons that follow, we conclude that the trial court did not err in its decision to allow the amendment and affirm appellant's conviction.
"An indictment is a written accusation of a crime and is intended to inform the accused of the nature and cause of the accusation against him." Hairston v. Commonwealth, 2 Va. App. 211, 213, 343 S.E.2d 355, 357 (1986). Rule 3A:6(a), in relevant part, "requires the indictment to 'cite the statute or ordinance that defines the offense.' These provisions clearly contemplate incorporation by reference of the statute or ordinance cited in the indictment." Cantwell v. Commonwealth, 2 Va. App. 606, 608, 347 S.E.2d 523, 524 (1986); see also Wall Distributors, Inc. v. City of Newport News, 228 Va. 358, 362, 323 S.E.2d 75, 77 (1984).
Code Sec. 19.2-231 permits the trial court to amend an indictment at any time before the verdict is returned or a finding of guilt is made, "provided the amendment does not change the nature or character of the offense charged."
Amendment of indictment, presentment or information.—If there be any defect in form in any indictment, presentment or information, or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged.
Here, the indictment incorporated by reference the provisions of Code Sec. 18.2-51.1.
Code Sec. 18.2-51.1. Malicious bodily injury to law-enforcement officers; penalty; lesser included offense. — If any person maliciously causes bodily injury to another by any means including the means set out in Sec. 18.2-52, with intent to maim, disfigure, disable or kill, and knowing or having reason to know that such other person is a law-enforcement officer, as defined hereinafter, engaged in the performance of his public duties as a law-enforcement officer, such person shall be guilty of a Class 3 felony, and, upon conviction, the sentence of such person shall include a mandatory, minimum term of imprisonment of two years. . . .
(Emphasis added.)
Clearly, an element of unlawfully and feloniously causing malicious bodily injury to a law enforcement officer is the intent to maim, disfigure, disable or kill. Supported by the reference to Code Sec. 18.2-51.1, which includes the language "with intent to maim, disfigure, disable or kill," the indictment adequately informed appellant of the nature and character of the offense charged.
Adding the words "with the intent to maime [sic], disfigure, disable or kill," was a permissible, although unnecessary, amendment. We agree with the statement of the trial judge:
[E]ven the way it was drafted before the amendment, it was drafted in such a way as to give anyone notice that it was a felony charge and not a misdemeanor charge.
The amendment neither changed the nature or character of the offense charged, nor resulted in prejudice or surprise to appellant. Appellant was sufficiently informed of the felony offense with which he was charged and could fairly prepare his defense.
Although not necessary for our decision to affirm appellant's conviction, we also make note of appellant's comments for the record at trial after the indictment was amended:
[ DEFENSE COUNSEL]: If I may put one thing on the record: I'm not caught by surprise. [The Commonwealth is] making the motion at this point, and I am not caught by surprise that what they thought was something that was not a charge. I can't say I'm totally surprised.
THE COURT: All right. I appreciate you being honest. Any other matters?
We conclude that because the relevant Code sections were included in the indictment, the failure to include the intent language and the subsequent amendment adding such language did not invalidate appellant's conviction. Thus, the nature of the charge remained constant and appellant was not surprised.
Accordingly, we affirm the judgment of the trial court.
Affirmed.