Ortiz v. Com.

PRESENT: All the Justices

SEBASTIAN ORTIZ
OPINION BY
v. Record No. 072449 JUSTICE LEROY F. MILLETTE, JR.
October 31, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Sebastian Ortiz was convicted by a jury in the Circuit

Court of Arlington County of one count of rape of a female

child under the age of thirteen in violation of Code § 18.2-61.

Ortiz appealed his conviction to the Court of Appeals, which

denied Ortiz’ petition in an unpublished order. Ortiz v.

Commonwealth, Record No. 0587-07-4 (October 30, 2007). We

awarded Ortiz this appeal in which he challenges: (1) the trial

court’s refusal to appoint an expert witness on the

suggestibility of children and confirmatory bias, (2) the

admission of evidence of subsequent other crimes or bad acts,

(3) the exclusion of the victim’s prior allegations of sexual

abuse against a third party, (4) the victim’s competency to

testify, (5) the amendment of the indictment on which Ortiz was

found guilty, (6) the trial court’s denial of Ortiz’ motion for

a continuance upon the amendment of the indictment, and (7) the

sufficiency of the evidence.
 BACKGROUND

Applying well-established principles of appellate review,

we present the evidence in the light most favorable to the

Commonwealth, the prevailing party below. Porter v.

Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008);

Bishop v. Commonwealth, 275 Va. 9, 11, 654 S.E.2d 906, 907

(2008).

The victim (the child), who was born on January 6, 1998,

lived in Arlington County with her mother (the mother) and

other family members. Ortiz is the maternal step-grandfather

of the child. Ortiz and his wife (the grandmother) also lived

in Arlington County until 2005 when they moved to Greenbelt,

Maryland.

The child spent substantial time with Ortiz and the

grandmother at their Arlington residence and, after 2005, at

their Maryland residence. Ortiz routinely picked up the child

Fridays after school, then took the grandmother to work in

Washington, D.C. Ortiz was alone with the child for several

hours until the grandmother returned from work at 10 p.m.

In April 2006, the mother noticed that the child was

bringing home new shoes, new clothing, school supplies and

sometimes money after spending the weekend at Ortiz’ residence.

When the mother pressed the child on the reason for her new

possessions, the child told the mother that Ortiz had touched

2
her and put “his thing on her” while the grandmother was not

there. The next day, April 19, 2006, the mother reported the

alleged abuse to Detective Borelli of the Special Victims Unit

of the Arlington County Police Department.

Based upon an interview with the child, which included her

description of the sex acts and a picture she drew as

explanation, Detective Borelli concluded that the sex acts

involved penetration. Ortiz was arrested on April 24, 2006.

During an interview at the Arlington Police Station with

Detective Borelli and another officer who acted as an

interpreter, Ortiz was told, falsely, that the police had

retrieved his DNA from the child’s person. Ortiz’ explanation

was that maybe the child had sex with him while he was drunk

and asleep because he was often drunk on weekends.

On April 27, 2006, after obtaining consent from the

grandmother, detectives conducted a search of Ortiz’ Maryland

residence. In a garbage can, the detectives found a receipt

for a vaginal cream product from a Washington, D.C. large-chain

drugstore. The receipt, dated October 7, 2005 at 5:06 p.m.,

bore the name, “Ms. Sebastian Ortiz.” In addition, the

detectives found two pornographic videotapes. The evidence

seized by the detectives corroborated the child’s earlier

statements that she had viewed pornographic tapes and that

Ortiz had put cream on her vagina.

3
 On June 19, 2006, a grand jury indicted Ortiz on two

counts of rape of a female child under the age of thirteen

occurring in Arlington County in violation of Code § 18.2-61.

The first indictment originally encompassed the period from

January 1, 2003 to May 31, 2003, but was amended during Ortiz’

case-in-chief, over his objection, to include the period from

January 1, 2003 to May 31, 2004. The second indictment

originally included June 1, 2003 to December 31, 2003, but was

also amended during Ortiz’ case-in-chief, over his objection,

to include June 1, 2004 to December 31, 2005.

At trial, the child testified that Ortiz began to sexually

abuse her when she was four or five years old and continued

until she was eight, and that the acts of abuse took place in

Ortiz’ former Arlington residence as well as at his current

Maryland residence. The child’s testimony included the

following details: Ortiz put cream on her private parts,

sprayed something from a bottle on her private part, put his

penis in her front private part, and put something white that

came out of his penis on her bellybutton. The child further

testified that Ortiz put “this baby oil thing” on his penis and

sometimes when the child went to the bathroom afterwards

“something red came out.” Ortiz also showed her movies of

“grownups doing something” without clothes on. The evidence

also included the child’s diary, wherein she wrote, “I wish my

4
dad never do sex with me because I always feel [sic] to do S-E-

X with my dad.” The child referred only to Ortiz as “dad.”

The Commonwealth also introduced the results of a sexual

assault nurse examination (SANE exam) conducted on the child.

The SANE exam revealed a “notch” or sharp demarcation of the

tissue that opened in the shape of a “V” at about four o’clock

on the child’s hymen, which could have been consistent with

penetration. The conclusion of the SANE report was that the

child’s genital findings were abnormal.

Ortiz testified that he and the grandmother had taken care

of the child since she was born, giving her “support and

maintenance,” food, furniture, and clothing. Additionally,

Ortiz testified that when he picked up the child on Fridays, he

always told the grandmother to go with him “so that [he] would

not be accused of anything.” When asked by the Commonwealth if

Ortiz was ever alone with the child, he replied, “No. I never

was alone with her. . . . No, I was never alone with [the

child]. I don’t know why you keep accusing me of that.”

At the conclusion of Ortiz’ trial, the jury found Ortiz

guilty of raping the child, in violation of Code § 18.2-61, in

accordance with the amended second indictment covering the time

frame of June 1, 2004 to December 31, 2005. The jury’s

sentence of twenty years’ imprisonment was imposed by the trial

court as a final judgment. Ortiz’ appeal to this Court

5
followed the Court of Appeals’ denial of his petition for

appeal.

DISCUSSION

Standard of Review

We will address each of Ortiz’ assignments of error in

turn. As each assignment of error reviewed on the merits is

governed by the same standard of review, we set forth the

standard to be applied throughout our analysis at the outset.

We will apply an abuse of discretion standard upon our review

of the following issues that Ortiz raises: (1) motion for

continuance – see Haugen v. Shenandoah Valley Department of

Social Services, 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007);

(2) competence of the child witness – see Mackall v.

Commonwealth, 236 Va. 240, 253, 372 S.E.2d 759, 767 (1988); and

(3) admissibility of certain evidence – see Gillespie v.

Commonwealth, 272 Va. 753, 760, 636 S.E.2d 430, 434 (2006); see

also Dagner v. Anderson, 274 Va. 678, 685, 651 S.E.2d 640, 644

(2007).

Appointment of Expert

Ortiz filed pretrial motions asking the trial court to

appoint Dr. Matthew H. Scullin as an expert witness and to

permit Dr. Scullin to educate the jury on children’s

suggestibility, suggestive interviewing techniques, and

confirmatory bias, which Ortiz’ counsel described as the impact

6
on a child when he or she is interviewed many times about the

same thing. Ortiz argued that the jury had insufficient

knowledge about these phenomena.

The trial court refused to appoint Dr. Scullin and denied

Ortiz’ motion to call Dr. Scullin as an expert witness,

holding, “I don’t think [this type of information is] beyond

the realm of common experience of the jurors who are highly

educated in this jurisdiction.” At trial, the court denied

Ortiz’ renewed motion to call Dr. Scullin.

On appeal to this Court, Ortiz contends the Court of

Appeals erred by ruling that he failed to show a particularized

need for an expert witness and that the evidence did not show

his need for an expert to present an adequate defense. Ortiz

argues that without expert assistance, he was denied the

opportunity to fairly and fully cross-examine the

Commonwealth’s witnesses. Ortiz also argues that his expert

witness would also have had the opportunity to educate the jury

about Ortiz’ theory that he was falsely accused due to

suggestive interviewing techniques that led to the child’s

fabricated account of events.

Ortiz’ assignment of error relates only to the trial

court’s denial of his motion to appoint Dr. Scullin as an

expert. It does not relate to the trial court’s denial of his

motion to permit Dr. Scullin to testify. Only errors assigned

7
in Ortiz’ petition for appeal will be noticed by this Court.

Rule 5:17(c). Ortiz has therefore waived his argument

regarding the exclusion of Dr. Scullin’s testimony.

The issue whether the trial court erred by refusing to

appoint Dr. Scullin is moot based on the fact that Ortiz

ultimately retained Dr. Scullin and had him review all of the

interviews in this matter. Ortiz’ retention of Dr. Scullin

obviated any need for his appointment by the trial court.

Further, Ortiz did not argue any prejudice regarding the amount

of time he had to obtain the expert, nor did he request a

continuance to provide additional time for his expert to

prepare. Thus, we will not consider this alleged error on

appeal.

Admissibility of Evidence of Other Crimes

Ortiz assigns error to the Court of Appeals’ holding that

evidence of other crimes or bad acts was admissible. The other

crimes or bad acts evidence consists of the child’s testimony

about the ongoing abuse by Ortiz which continued into 2006, the

two pornographic videotapes, and the drugstore receipt dated

October 7, 2005 for a vaginal cream product. The items of

physical evidence were seized from Ortiz’ Maryland residence in

April 2006. Because this evidence was from a time period

subsequent to the dates charged in the original indictments,

Ortiz argues that evidence is irrelevant, is offered to show he

8
had a propensity to commit the crime charged, and its

prejudicial effect outweighs its probative value.

The Commonwealth argues the evidence was not offered to

show Ortiz’ propensity to commit the crime charged. Instead,

the evidence proved the parties’ relationship and negated the

possibility of accident or mistake. Furthermore, the evidence

corroborated the child’s account of the sexual abuse.

As a general rule, evidence which shows or tends to show

that the accused is guilty of other crimes and offenses at

other times, even though they are of the same nature as the one

charged in the indictment, is not admissible to show the

accused’s commission of the particular crime charged.

Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802,

805 (1970). However, numerous exceptions to this rule

authorize the admission of “bad acts” evidence. Specifically,

other crimes evidence is admissible when it “shows the conduct

or attitude of the accused toward his victim[;] establishes the

relationship between the parties[;] or negates the possibility

of accident or mistake,” Moore v. Commonwealth, 222 Va. 72, 76,

278 S.E.2d 822, 824 (1981); or shows motive, method, intent,

plan or scheme, or any other relevant element of the offense on

trial. Scott v. Commonwealth, 228 Va. 519, 527, 323 S.E.2d

572, 577 (1984).

9
 Evidence of subsequent sexual offenses committed by the

accused against the same victim is also admissible if it

complies with one of these exceptions. Moore, 222 Va. at 76-

77, 278 S.E.2d at 825.

[I]t is well settled that in a prosecution for
incest, evidence of acts of incestuous
intercourse between the parties other than those
charged in the indictment or information,
whether prior or subsequent thereto, is, if not
too remote in point of time, admissible for the
purpose of throwing light upon the relations of
the parties and the incestuous disposition of
the defendant toward the other party, and to
corroborate the proof of the act relied upon for
conviction . . . . The fact that some of the
other offenses were remote in point of time from
the act under investigation does not of itself
render such evidence incompetent, where the acts
were repeatedly done up to a comparatively
recent period and were all apparently inspired
by one purpose.

Id. at 77, 278 S.E.2d at 825 (quoting Brown v. Commonwealth,

208 Va. 512, 516-17, 158 S.E.2d 663, 667 (1968)). Evidence

that falls into the enumerated exceptions must meet an

additional requirement: its legitimate probative value must

exceed its incidental prejudice to the defendant. Guill v.

Commonwealth, 255 Va. 134, 139, 495 S.E.2d 489, 491-92 (1998).

The admissibility of the other crimes evidence at issue

becomes apparent when we consider the extensive period of abuse

alleged by the child against Ortiz. Although the two

indictments originally charged Ortiz with sexual abuse during a

time period extending from January 1, 2003 through December 31,

10
2003, the indictments were amended during the trial to conform

to the evidence to encompass a time frame of January 1, 2003

through December 31, 2005. The evidence included the child’s

testimony that she was abused by Ortiz continuously from when

she was four or five years old until she was age eight. The

child was abused both at Ortiz’ former residence in Arlington,

where he lived until 2005, and thereafter, at his new residence

in Maryland.

The child’s description of the sexual abuse she endured

from Ortiz spanned from 2002 through 2006. The disputed

evidence was not offered merely to show Ortiz’ propensity to

commit rape during the specific time period charged. The

evidence was relevant for one or more of the following

purposes: to show the conduct or attitude of Ortiz toward the

child, to prove motive or method of committing the rape, to

prove an element of the crime charged, or to negate the

possibility of accident or mistake. See Scott, 228 Va. at 527,

323 S.E.2d at 577; Moore, 222 Va. at 76, 278 S.E.2d at 824.

Moreover, “[t]he responsibility for balancing the competing

considerations of probative value and prejudice rests in the

sound discretion of the trial court. The exercise of that

discretion will not be disturbed on appeal in the absence of a

clear abuse.” Spencer v. Commonwealth, 240 Va. 78, 90, 393

S.E.2d 609, 617 (1990).

11
 Assuming, arguendo, that the pornographic material and

vaginal cream, neither of which is illegal to possess, do

constitute evidence of other crimes or bad acts under these

facts, the real issue is whether evidence of Ortiz’ possession

of these items is relevant to prove the commission of rape

during the time period referenced in the amended indictments.

“Evidence is relevant if it tends to prove or disprove, or is

pertinent to, matters in issue.” Clay v. Commonwealth, 262 Va.

253, 257, 546 S.E.2d 728, 730 (2001).

As the child did not reveal the sexual abuse until 2006,

the investigation could not commence until that time. Because

Ortiz moved to Maryland approximately one year earlier, in

2005, police detectives had to go to his Maryland residence to

search for evidence that might corroborate the child’s

statements.

The child stated to Detective Borelli and again at trial

that Ortiz showed her tapes of “grownups doing something”

without clothes on and put cream on her private parts. The

grandmother, in an interview with Detective Borelli, denied

purchasing the vaginal cream. Evidence showed that Ortiz

regularly picked the child up after school on Fridays, then

took the grandmother to work in Washington, D.C. for her shift

beginning at 5 or 6 p.m., after which he was alone with the

child for several hours. The drugstore receipt bearing the

12
name “Ms. Sebastian Ortiz” was dated October 7, 2005, a Friday,

at 5:06 p.m., and originated from a Washington, D.C. store.

Therefore, the purchase of the vaginal cream occurred during

the time period encompassed by the amended indictment.

“Circumstantial evidence . . . is offered to prove a fact not

directly in issue, from which a fact in issue may reasonably be

inferred.” Commonwealth v. Hudson, 265 Va. 505, 512, 578

S.E.2d 781, 785 (2003). This circumstantial evidence was

sufficient to link Ortiz to the purchase of the vaginal cream

and therefore, was corroborative of the child’s allegations

about Ortiz’ use of cream during the commission of rape.

Because the pornographic tapes and vaginal cream

corroborated the child’s allegations, they were also relevant

to negate the possibility of accident or mistake raised by

Ortiz. In Ortiz’ interview at the police station, he asserted

to the detectives that the child might have had sex with him

without his knowledge while he was drunk and asleep because he

was often drunk on weekends.

The evidence that Ortiz sexually abused the child for a

period of time extending less than a year beyond the time frame

alleged in the amended indictments was not so remote that it

lacked significant probative value. This evidence helped

establish the relationship between the parties and the

opportunity to commit the crime charged, and it negated the

13
possibility of accident or mistake. For these reasons, the

Court of Appeals did not err in concluding that the trial court

did not abuse its discretion by allowing the contested

evidence.

Victim’s Prior Allegations and the Rape Shield Statute

Ortiz filed a pretrial motion seeking permission pursuant

to Code § 18.2-67.7 to introduce evidence of the child’s

alleged prior sexual conduct with a third person. Ortiz

contended that evidence of the child’s prior allegation would

show she had a motive to fabricate that led her to change her

story from accusing the third person to accusing Ortiz of rape.

The chronology and nature of the allegations made by the

child are significant. The facts of this case began to unfold

on March 16, 2006, when the child first disclosed to a forensic

interviewer that Victor Manuel Paz-Castillo (Manuel), the live-

in boyfriend of the mother, had touched the child’s vaginal

area. Upon being interviewed, Manuel admitted to touching the

child’s vaginal area, but explained he did not do so “in a bad

way.” Rather, Manuel claimed he touched the child while

roughhousing and while tending to insect bites the child had

suffered from a bad dust mite problem in their home. Manuel

was arrested on charges of aggravated sexual battery and

incarcerated and thus, was removed from the home.

Approximately one month later, the child reported Ortiz’ abuse

14
to her mother. The next day, April 19, 2006, Detective Borelli

interviewed the child and concluded that the sex acts by Ortiz

included penetration. Ortiz was charged with rape and arrested

on April 24, 2006.

On June 1, 2006, the date of Ortiz’ preliminary hearing on

the rape charge, the child told the Commonwealth’s Attorney

prosecuting the case that her allegations against Manuel were

not true. In a subsequent interview, the child stated that

Manuel had, in fact, touched her, just not “in a bad way.”

Because the child’s last version of the events was consistent

with Manuel’s statement, the Commonwealth nolle prossed the

charge against Manuel.

Ortiz argues that the child’s motive to fabricate was to

appease her mother who was very upset by the child’s

allegations against Manuel and his resultant arrest and removal

from their home. Thus, Ortiz asserts, the child shifted her

allegations from Manuel to Ortiz.

The Court of Appeals agreed with the trial court’s

determination that Virginia’s Rape Shield Statute precluded

Ortiz from introducing evidence of the child’s prior

allegations against Manuel and that she later changed her story

to suggest he did not touch her “in a bad way.” The Court of

Appeals relied upon our holding in Winfield v. Commonwealth,

225 Va. 211, 301 S.E.2d 15 (1983), that the evidence of the

15
child’s past sexual conduct was not admissible under the

“motive to fabricate” provisions of Code § 18.2-67.7 (B)

because there was not a “sufficient nexus” between the pattern

of behavior and the charges against Ortiz. Id. at 220, 301

S.E.2d at 21.

Code § 18.2-67.7(B) states, in pertinent part:

Nothing contained in this section shall prohibit
the accused from presenting evidence relevant to
show that the complaining witness had a motive
to fabricate the charge against the accused.

In Winfield, we held that the General Assembly’s enactment

of Code § 18.2-67.7 was “intended to preclude evidence of

general reputation or opinion of the unchaste character of the

complaining witness” in criminal sexual assault cases. 225 Va.

at 220, 301 S.E.2d at 20. Nevertheless, Code § 18.2-67.7 does

render admissible evidence of the victim’s prior sexual conduct

for limited purposes. 1 Id. at 219, 301 S.E.2d at 20. One such

purpose is to show a victim’s motive to fabricate, which Ortiz

asserts is applicable in this case. We disagree.

To be admissible under the “motive to fabricate”

exception, the proffered evidence of sexual conduct must show a

pattern of behavior by the victim that directly relates to the

conduct charged in the case on trial. Id. at 220, 301 S.E.2d

1
“[P]rior sexual conduct” is defined in Code § 18.2-
67.10(5) as “any sexual conduct on the part of the complaining
witness which took place before the conclusion of the trial,

16
at 21. There must be a “sufficient nexus” to render such

evidence relevant and probative of a motive to fabricate. Id.

The proffered evidence tended to show that the complaining

witness in Winfield had a “distinctive pattern of past sexual

conduct” wherein she extorted money by threat after acts of

prostitution. Id. at 220, 301 S.E.2d at 20.

No such nexus exists here. The child’s allegations

against Manuel were unlike her allegations against Ortiz. The

child never alleged that Manuel had sexual intercourse with her

and eventually explained that while Manuel did touch her

vaginal area, he did not do so “in a bad way.” In contrast,

the child’s allegations against Ortiz exposed in graphic detail

repeated acts of sexual intercourse that were painful and

unrelated to playful roughhousing or tending to insect bites.

Ortiz contends the mother influenced the child to recant

her allegations against Manuel and falsely charge Ortiz so that

Manuel would be released and allowed to return home. This

argument ignores the distinctive nature of the sexual abuse

claimed. The evidence does not support Ortiz’ argument that

the child simply replaced Manuel’s name with that of Ortiz.

Thus, evidence of the child’s allegations against Manuel was

excluding the conduct involved in the offense alleged under this
article.”

17
not at all probative of a motive to fabricate and was properly

excluded under this argument.

Ortiz argues in the alternative that he did not seek to

introduce evidence of the child’s prior sexual conduct, but

sought instead to introduce the child’s prior statements for

impeachment purposes. 2 In Clinebell v. Commonwealth, 235 Va.

319, 321-22, 368 S.E.2d 263, 264 (1988), the defendant was

convicted of rape, sodomy, and inanimate object penetration of

his daughter. Citing Code § 18.2-67.7, the trial court

excluded evidence of the daughter’s prior statements that she

was pregnant, that her father and uncle raped her, that a boy

had impregnated her, and that her grandfather sexually abused

her. The defendant sought to introduce this evidence for the

limited purpose of attacking the daughter’s credibility. This

Court determined that the daughter’s pregnancy claims, made

when she was 10 and 11 years old, were patently untrue and

created a reasonable probability that her claims against her

family members were also false. We held that before a

complaining witness’s prior accusations are admissible, a court

2
At trial, Ortiz’ arguments were based, in part, upon the
holding of the Court of Appeals in Clifford v. Commonwealth, 48
Va. App. 499, 633 S.E.2d 178 (2006). However, after Ortiz’
trial had concluded, this Court reversed the judgment in
Clifford, holding that the Court of Appeals erred in failing to
find that the defendant waived the trial court’s alleged error.
We directed the Court of Appeals to enter an order affirming the

18
must make the threshold determination that a reasonable

probability of falsity exists. Id. at 325, 368 S.E.2d at 266.

When determined by the court to be false, statements concerning

sexual behavior are not “conduct” within the meaning of Code

§ 18.2-67.7 and the rape shield statute is inapplicable. Id.

at 322, 368 S.E.2d at 264.

Ortiz failed to make the threshold showing that there

existed a reasonable probability that the child’s allegations

against Manuel were false. To the contrary, he argued that the

child’s allegations were true and that Manuel, not Ortiz,

caused her abnormal genital findings revealed by the SANE exam.

Because Ortiz did not satisfy the requirements established in

Clinebell to remove the child’s prior allegations from the

protection of the rape shield statute, this evidence was

properly deemed inadmissible.

Victim’s Competency to Testify

Ortiz contends the trial court erred in determining the

child was competent to testify. After questioning the child,

the trial court stated, “this is obviously a very intelligent

child, and I think she’s competent to testify.” The Court of

Appeals approved the trial court’s ruling that the evidence

trial court’s judgment. Clifford v. Commonwealth, 274 Va. 23,
26, 645 S.E.2d 295, 297 (2007).

19
failed to show the child lacked intelligence or a sense of

moral and legal responsibility.

Ortiz argues there was clear evidence that the child had

been strongly influenced by the mother. Ortiz contends that

the child’s recantation of the charge against Manuel indicates

that she was unable to recollect and communicate events. Ortiz

also claims numerous alleged inconsistencies in the interviews

with authorities as proof that the child had no consciousness

of the duty to speak the truth.

The competency of a child as a witness to a
great extent rests in the sound discretion of
the trial judge whose decision will not be
disturbed unless the error is manifest. It is
the duty of the trial judge to determine such
competency after a careful examination of the
child. In deciding the question the judge must
consider the child’s age, his intelligence or
lack of intelligence, and his sense of moral and
legal responsibility.

Greenway v. Commonwealth, 254 Va. 147, 153, 487 S.E.2d 224, 227

(1997) (quoting Hepler v. Hepler, 195 Va. 611, 619, 79 S.E.2d

652, 657 (1954)). It is the trial judge’s duty to determine

the competency of a child witness after “a careful examination

of the child.” Id.

While being questioned by the trial court during a

competency hearing, the then nine-year-old child explained the

difference between the truth and a lie. She stated that she

thought she would get in trouble if she told a lie in court,

20
and that no one had told her what to say on the witness stand.

Defense counsel also questioned the child during the hearing,

and the child said she did not practice her testimony with her

mother, she had never lied to the prosecutor or the detectives,

and that it was better to tell the truth than to lie.

After a careful examination, the trial court concluded

that the child possessed a “sense of moral responsibility, the

mental capacity to observe events that happened and [the]

ability to testify about those events, the ability to remember

the events, [and] the ability to make intelligen[t] answers

vis-à-vis the truth.” In finding the child competent to

testify, the trial court acknowledged that Ortiz’ contentions

that the child had been unduly influenced by her mother and had

rehearsed her story were matters affecting the weight of her

testimony, not her competency as a witness. The trial judge

stated that the jury “can weigh the testimony of this child as

they do any other witness” and that he would so instruct the

jury. Based on this record, we agree with the Court of Appeals

that the trial court did not abuse its discretion in allowing

the child to testify.

Amendment of Indictment and Denial of
Continuance After Amendment of Indictments

After the conclusion of its case-in-chief and prior to the

conclusion of Ortiz’ case, the Commonwealth made a motion to

21
amend the indictments to conform the allegations in the

indictments to the evidence presented. The impact of the

amendments was to cover an additional period of time from

January 1, 2004 to December 31, 2005. In support of the

motion, the Commonwealth’s Attorney argued,

[t]he evidence has always been that [the child]
said this happened between the time that she was
five and the time that she was eight. And now
we have corroborating evidence to establish how
long [Ortiz] was, in fact, in Arlington County.
That’s what the allegations are. And that’s
always been the evidence. And as counsel knows,
also, the dates when a child is under the age of
13, that the dates are not an element of the
offense. It’s not as if there was an alibi
defense.

When granting the Commonwealth’s motion to amend the

indictments to cover, in total, the period from January 1, 2003

to December 31, 2005, the trial court held that “the statute

allows you to do it.” In response, defense counsel conceded,

“I agree, Your Honor, but I also think that some of the cases

discuss about the timeliness. So if it’s new evidence or

extending the evidence, then I should get a little bit of time

to prepare to defend that.” Defense counsel likewise conceded

that

[the amendment] doesn’t change the charge,
granted. But my preparation for my client’s
defense was activity in 2003. . . . I would
actually move for a continuance so that I can get
time to prepare for that. . . . It doesn’t change
the charge itself, but I think my remedy at that

22
 point would be that I should at least be given
some continuance time.

(Emphasis added).

Pursuant to Code § 19.2-231:

[I]f there shall appear to be any variance
between the allegations [in the indictment] and
the evidence offered in proof thereof, the court
may permit amendment of such indictment . . . at
any time before the jury returns a verdict
. . . , provided the amendment does not change
the nature or character of the offense charged.

(Emphasis added).

The concessions by Ortiz’ counsel operated as a waiver and

therefore, are fatal to his argument that the trial court

erroneously granted the amendment to the indictment on which he

was found guilty. Ortiz did not contend the amendment changed

the nature or character of the offense charged. To the

contrary, Ortiz agreed with the trial court that the offense

charged remained unchanged and Code § 19.2-231 authorized the

amendment of the indictment.

We now address whether the trial court abused its

discretion by denying Ortiz’ motion for a continuance following

amendment to the indictment. Code § 19.2-231 further provides

that “if the court finds that such amendment operates as a

surprise to the accused, he shall be entitled, upon request, to

a continuance of the case for a reasonable time.” As noted at

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the outset, the standard of review governing this issue is

well-settled in Virginia.

The decision to grant a motion for a continuance
is within the sound discretion of the circuit
court and must be considered in view of the
circumstances unique to each case. The circuit
court’s ruling on a motion for a continuance
will be rejected on appeal only upon a showing
of abuse of discretion and resulting prejudice
to the movant.

Haugen, 274 Va. at 34, 645 S.E.2d at 265. Ortiz has failed to

prove that the amendment to the indictment operated as a

surprise or that he was prejudiced by the denial of his motion

for a continuance.

Ortiz asserts the requisite surprise arose from the

expansion of the time frame he had to defend against to

encompass January 1, 2004 to December 31, 2005. However, the

Commonwealth made its motion to amend the indictment after it

had concluded its case-in-chief, and Ortiz was aware of all of

the evidence against him. Ortiz already knew he would have to

defend against evidence seized from his residence in 2006,

including the drugstore receipt dated October 7, 2005, and

statements made by the child about what happened to her up to

2006, as this evidence formed the basis of his motion in

limine, which was denied by the trial court before the trial

commenced. Clearly, the element of surprise was lacking.

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 Ortiz “made no showing of a specific need for additional

investigation to prepare . . . a defense.” Mackall, 236 Va. at

249, 372 S.E.2d at 765. Nor did he “suggest to the trial court

that there was testimony of witnesses, or evidence in any other

form, which he could secure if a continuance was granted.”

Parish v. Commonwealth, 206 Va. 627, 632, 145 S.E.2d 192, 195

(1965). Ortiz did not assert prejudice with the requisite

specificity nor did he ask the trial court to make such a

finding under Code § 19.2-231. Mere reference to a need for

more time to prepare is insufficient to show that a continuance

was improperly denied. Thus, we agree with the Court of

Appeals that Ortiz was not prejudiced by the trial court’s

denial of his motion for a continuance.

Sufficiency of the Evidence

Lastly, Ortiz challenges the sufficiency of the evidence

to sustain his conviction. We will not address this assignment

of error, as Ortiz failed to preserve his objection for

appellate review. Ortiz moved to strike the evidence at the

conclusion of the Commonwealth’s case, but did not renew his

motion to strike at the conclusion of all the evidence. The

Court of Appeals held that Ortiz’ failure to renew his motion

to strike operated as a waiver of his objection to the

sufficiency of the evidence under Day v. Commonwealth, 12 Va.

App. 1078, 1079, 407 S.E.2d 52, 54 (1991). Ortiz did not ask

25
the Court of Appeals to invoke the “good cause” exception

pursuant to Rule 5A:18.

On appeal to this Court, Ortiz states in his assignment of

error that “[t]he Court of Appeals erred by holding that

evidence was sufficient to overcome [his] motion to strike the

evidence.” The Court of Appeals made no such ruling, but

rather held that Ortiz’ argument regarding the sufficiency of

the evidence was procedurally defaulted. Ortiz has not

assigned error to the Court of Appeals’ default ruling. When

an appeal is taken from a judgment of the Court of Appeals,

only assignments of error relating to questions presented in,

or actions taken by, the Court of Appeals will be considered by

this Court. Rule 5:17(c).

Because the Court of Appeals did not reach the merits of

Ortiz’ argument regarding the sufficiency of the evidence and

because Ortiz has not assigned error to the Court of Appeals’

failure to do so, Ortiz has waived his objection to the

sufficiency of the evidence. We decline to invoke the “good

cause” or “ends of justice” exceptions to Rule 5:25, having

been provided no reason to do so.

For the reasons stated, we will affirm the judgment of the

Court of Appeals.

Affirmed.

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