Harris v. Com.

PRESENT: All the Justices

GORDON H. HARRIS
OPINION BY
v. RECORD NO. 090655 JUSTICE CYNTHIA D. KINSER
JANUARY 15, 2010
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
Burnett Miller, III, Judge

Pursuant to the Civil Commitment of Sexually Violent

Predators Act (the Act), Code §§ 37.2-900 through –920, the

Commonwealth filed a petition seeking to have Gordon H. Harris

classified as a sexually violent predator and civilly

committed for treatment. The circuit court found by clear and

convincing evidence that Harris was a sexually violent

predator and that there was no suitable alternative to

involuntary secure inpatient treatment and hospitalization.

Harris assigns error to the circuit court's denial of his

motion to dismiss the Commonwealth's petition, claiming that

he was wrongfully included in the database of prisoners

incarcerated for sexually violent offenses. He also asserts

the circuit court abused its discretion by granting the

Commonwealth's motion to amend its petition to allege a

different predicate sexually violent offense. We will affirm

the circuit court's judgment.

In its petition filed on March 20, 2008, the Commonwealth

alleged that Harris was incarcerated and in the custody of the
Department of Corrections (DOC) for conviction of a "sexually

violent offense" as defined in Code § 37.2-900. 1 According to

the Commonwealth, in January 1997 Harris was convicted of and

sentenced for attempted forcible sodomy, abduction, and five

counts of taking indecent liberties. 2 The Commonwealth further

alleged that Harris' conviction for attempted forcible sodomy

qualified as a predicate sexually violent offense for the

purpose of adjudicating his status as a sexually violent

predator under the Act.

Prior to the trial to determine whether Harris was a

sexually violent predator, see Code § 37.2-908, he filed a

motion to dismiss the Commonwealth's petition. Harris

asserted that he was wrongfully included in the Commonwealth's

database as a prisoner incarcerated for a sexually violent

1
Harris was scheduled for release from incarceration
around April 6, 2008.
2
On January 24, 1997, the Circuit Court of Henrico County
entered an order convicting Harris of attempted forcible
sodomy in violation of Code § 18.2-67.5, abduction in
violation of Code § 18.2-48, and five counts of taking
indecent liberties in violation of Code § 18.2-370.
Commonwealth v. Gordon H. Harris, CR 96-3280/3281/3282-00F, CR
97-64/65/66/67-00F (Henrico Co. Cir. Ct., Jan. 24, 1997). In
the same order, the circuit court sentenced Harris to
incarceration for a term of ten years on the attempted
forcible sodomy conviction, life for the abduction conviction,
and five years on each of the convictions for taking indecent
liberties. Id. The court suspended all the sentences except
for eight years of the life sentence for the abduction
conviction.

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offense. 3 According to Harris, he received a suspended

sentence for his attempted forcible sodomy conviction, the

predicate sexually violent offense identified in the

Commonwealth's petition, and his incarceration was actually

for another offense. Thus, argued Harris, it was error to

subject him to the provisions of the Act.

At the commencement of his trial, Harris reiterated the

grounds for his motion to dismiss the Commonwealth's petition.

During oral argument on his motion, the circuit court noted

that Harris was also convicted of abduction with the intent to

defile and queried whether that offense qualified as a

sexually violent offense. In response to the court's

question, Harris pointed out that the 1997 order merely stated

that he was convicted of abduction in violation of Code

§ 18.2-48; the order did not specify that the conviction was

for abduction with the intent to defile in violation of Code

3
Pursuant to the provisions of Code § 37.2-903(A), the
Director of the DOC "shall establish and maintain a database
of each prisoner in his custody who is (i) incarcerated for a
sexually violent offense or (ii) serving or will serve
concurrent or consecutive time for another offense in addition
to time for a sexually violent offense."

3
§ 18.2-48(ii). 4 The circuit court then read from the

indictment:

The charge reads, [o]n or about August 10,
1996, in the County of Henrico, Gordon H. Harris,
did unlawfully and feloniously abduct . . . a minor
child, with the intent to defile in violation of
[Code §] 18.2-409 against the peace and dignity of
the Commonwealth.[ 5 ]

In response to the circuit court's subsequent inquiry as

to whether Harris was convicted as charged in the indictment

or whether the charge was reduced, counsel for Harris stated:

"I accept that fact that the indictment was not amended, but

what [I am] saying is that the sentencing order itself does

not specifically cite [subsection ii] of [Code §] 18.2-48,"

which specifies abduction with the intent to defile.

The Commonwealth acknowledged that Harris was not serving

a term of active incarceration for his attempted forcible

sodomy conviction. The Commonwealth further admitted that it

therefore should have relied on the abduction conviction as

the predicate sexually violent offense in its petition instead

4
In relevant part, the provisions of Code § 18.2-48
state: "Abduction (i) with the intent to extort money or
pecuniary benefit, (ii) of any person with intent to defile
such person, or (iii) of any child under sixteen years of age
for the purpose of concubinage or prostitution, shall be a
Class 2 felony."
5
During oral argument before this Court, Harris
acknowledged that the citation to Code § 18.2-409 was a
typographical error in the transcript of the hearing and
should be Code § 18.2-48.

4
of the attempted forcible sodomy conviction. Thus, the

Commonwealth moved to amend the petition to state that the

predicate sexually violent offense for which Harris was

incarcerated was abduction with the intent to defile. Over

Harris' objection, the circuit court allowed the amendment and

denied Harris' motion to dismiss.

Harris then stipulated: "At this stage noting our

exceptions, we are not objecting to the finding that [Harris]

is a sexually violent predator based on the testimony of" two

mental health experts qualified in the diagnosis, treatment,

and risk assessment of sex offenders. Thus, the only

determination remaining for the circuit court was whether

there were any suitable less restrictive treatment

alternatives to involuntary secure inpatient treatment. See

Code § 37.2-908(D),(E). After hearing testimony from the two

mental health experts, the court found by clear and convincing

evidence that alternatives to involuntary secure inpatient

treatment and hospitalization were unsuitable. Thus, the

court committed Harris to the custody of the Department of

Mental Health, Mental Retardation and Substance Abuse Services

for appropriate treatment and confinement in a secure

facility.

Now on appeal, Harris assigns error to the circuit

court's denial of his motion to dismiss and to the court's

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granting the Commonwealth's motion to amend its petition.

With regard to the first issue, Harris argues here, as he did

before the circuit court, that since he was not incarcerated

on the attempted forcible sodomy conviction, he should not

have been included in the database of prisoners maintained by

the Director of the DOC and forwarded to the Commitment Review

Committee pursuant to Code § 37.2-903(D). Therefore,

according to Harris, the circuit court erred by refusing to

dismiss the Commonwealth's petition. As to the amendment of

the petition, Harris asserts that the circuit court abused its

discretion by granting the Commonwealth's motion to amend

because the amendment in effect added language to the 1997

conviction and sentencing order. Thus, Harris contends he

should be released from civil commitment as a sexually violent

predator because the Commonwealth's petition identified the

attempted forcible sodomy conviction as the predicate sexually

violent offense and the 1997 order, on its face, did not show

that he was convicted of abduction with the intent to defile.

The term "[s]exually violent offense" is defined, inter

alia, as "a felony under [Code] § 18.2-67.1 [forcible sodomy],

. . . § 18.2-48(ii) [abduction with the intent to defile] or

attempt to commit any of the above offenses." Code § 37.2-

900. Thus, both attempted forcible sodomy and abduction with

the intent to defile constitute sexually violent offenses

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under the Act. However, as Harris argues, in Townes v.

Commonwealth, 269 Va. 234, 609 S.E.2d 1 (2005), we held that

"the clear and unambiguous language of Code §§ 37.1-70.4 and

37.1-70.5 [now Code §§ 37.2-903 and –904, respectively]

requires that a prisoner must be serving an active sentence

for a sexually violent offense as defined by Code § 37.1-70.1

[now Code § 37.2-900] at the time he is identified as being

subject to the [Act]." 6 Id. at 240-41, 609 S.E.2d at 4.

Although Harris received a sentence of ten years of

incarceration on his attempted sodomy conviction, the entire

sentence was suspended. Thus, as the Commonwealth

acknowledges, he was not serving an active sentence for that

conviction when the Director of the DOC included Harris in the

database of prisoners incarcerated for sexually violent

offenses.

Nonetheless, Harris unquestionably was serving an active

sentence of eight years at that time for his abduction

conviction. He received a life sentence for that conviction

6
In 2005 amendments, the General Assembly deleted a
portion of the language in former Code §§ 37.1-70.4(C) and –
70.5(A) cited by the Court in Townes. 2005 Acts ch. 716.
However, the Court also relied upon the requirement in former
Code § 37.1-70.4(B) that the Director of the DOC "shall
establish and maintain a database of prisoners in his custody
who are incarcerated for sexually violent offenses." 269 Va.
at 239, 609 S.E.2d at 3 (emphasis in original). That language
remains in Code § 37.2-903(A).

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and all but eight years were suspended. Furthermore,

abduction with the intent to defile qualifies under the Act as

a sexually violent offense. Code § 37.2-900. Harris,

however, contends that he should not have been identified as

being subject to the Act and the circuit court should not have

allowed the Commonwealth to amend its petition because the

1997 conviction and sentencing order did not specify that he

was convicted of abduction with the intent to defile under

Code § 18.2-48(ii). Because the 1997 order is not dispositive

of the narrow issues raised in this appeal, we reject Harris'

contentions.

As earlier noted, Harris acknowledged during oral

argument on his motion to dismiss that the indictment charging

him with the offense of abduction with the intent to defile

was not amended. Given that concession and the 1997 order

confirming that Harris was convicted of and received an active

sentence for abduction in violation of Code § 18.2-48, we

cannot say the circuit court abused its discretion by granting

the Commonwealth's motion to amend its petition to identify

the predicate sexually violent offense as abduction with the

intent to defile. See Adkins v. Dixon, 253 Va. 275, 279, 482

S.E.2d 797, 800 (1997) ("[T]he decision to permit amendments

of pleadings rests in the sound discretion of the trial court

and will not be disturbed absent a showing of abuse of

8
discretion."). The record before us " 'fairly supports the

[circuit] court's action' "; thus, the court did not abuse its

discretion. Grattan v. Commonwealth, 278 Va. 602, 620, 685

S.E.2d 623, 644 (2009) (quoting Beck v. Commonwealth, 253 Va.

373, 385, 484 S.E.2d 898, 906 (1997)).

The circuit court also did not err by refusing to grant

Harris' motion to dismiss the Commonwealth's petition. See

Townes, 269 Va. at 241, 609 S.E.2d at 4 (holding that a trial

court "erred" in finding that a prisoner was subject to the

Act). Code § 37.2-905.1 states:

The provisions of [Code] §§ 37.2-903, 37.2-904,
and 37.2-905 are procedural and not substantive or
jurisdictional. Absent a showing of failure to
follow these provisions as a result of gross
negligence or willful misconduct, it shall be
presumed that there has been substantial compliance
with these provisions.

Harris made no showing of "gross negligence or willful

misconduct" in regard to his inclusion in the database of

prisoners incarcerated for a sexually violent offense.

Furthermore, his concession that the indictment was never

amended when considered with the 1997 order shows he was not

wrongfully included in the database.

We note that Harris does not challenge the sufficiency of

the evidence to prove that he was a sexually violent predator

under the Act. After the circuit court granted the

Commonwealth's motion to amend its petition, Harris stated

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that he had no objection to a finding that he was a sexually

violent predator given the testimony of two mental health

experts. By making that stipulation, Harris acknowledged that

he met the definition of a "[s]exually violent predator,"

i.e., that he had "been convicted of a sexually violent

offense, . . . and . . . because of a mental abnormality or

personality disorder, finds it difficult to control his

predatory behavior, which makes him likely to engage in

sexually violent acts." Code § 37.2-900. Thus, we do not

decide whether the 1997 conviction and sentencing order alone

would have satisfied the Commonwealth's burden to prove by

clear and convincing evidence that Harris was convicted of a

sexually violent offense as is required to establish that a

person is a sexually violent predator. 7 See Code § 37.2-900.

7
We also note that the Commonwealth, on brief to this
Court, asserts that it submitted to the circuit court the
arrest warrant charging Harris with abduction with the intent
to defile in violation of Code § 18.2-48(ii), the indictment
for the same charge, an order entered on January 8, 1997
referencing Code § 18.2-48(ii) and abduction of a minor with
the intent to defile, and Harris' plea agreement dated January
15, 1997 in which he agreed to plead guilty to the
"indictments as written." The Commonwealth, however, failed
to introduce those documents into evidence, and they are not
exhibits in the circuit court's record in this case. The
language of the indictment charging Harris with abduction with
the intent to defile is, however, in the record because the
circuit court read the indictment orally during argument on
Harris' motion to dismiss.

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 For these reasons, we will affirm the judgment of the

circuit court.

Affirmed.

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