COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Petty
Argued by teleconference
GARRY LEE PULLIAM
OPINION BY
v. Record No. 2427-08-2 JUDGE ROBERT P. FRANK
FEBRUARY 23, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Leslie M. Osborn, Judge
James C. Bell for appellant.
Benjamin H. Katz, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
Garry Lee Pulliam, appellant, was convicted, in a bench trial, of two (2) counts of
aggravated sexual battery, in violation of Code § 18.2-67.3. On appeal, he contends the trial
court erred in amending, prior to arraignment, one indictment charging indecent liberties with a
child (Code § 18.2-370.1) to aggravated sexual battery. For the reasons stated, we affirm the
amended aggravated sexual battery conviction. 1
BACKGROUND
Defendant was indicted under Code § 18.2-370.1 for taking indecent liberties with
D.S.B., a minor:
On or about the 12th day of October 2005 through the 12th day of
October 2006, being eighteen years of age or older, [appellant] did
unlawfully, feloniously, knowingly and intentionally, with
lascivious intent, sexually abuse D.S.B., a child under the age of
eighteen years and to whom he was not legally married, while
1
Appellant does not challenge the aggravated sexual battery conviction as originally
charged, nor the amendment of the dates alleged in both indictments.
maintaining a custodial or supervisory relationship over such child
in violation of §§ 18.2-370.1(A)(vi), 18.2-10 of the Code of
Virginia (1950) as amended.
Over appellant’s objection the indictment was amended to read:
On or about May 2006 through October 2006, [appellant] did
unlawfully, feloniously, sexually abuse D.S.B. while being her
parent, step-parent, grandparent or step-grandparent and while the
complaining witness was at least 13 but less than 18 years of age,
in violation of §§ 18.2-67.3(A)(3) of the Code of Virginia (1950)
as amended.
The trial court granted the amendment, finding the amendment did not alter the nature
and character of the offense. The court further granted appellant’s motion for a continuance.
Appellant was later convicted of two counts of aggravated sexual battery.
This appeal follows.
ANALYSIS
On appeal, appellant contends that amending the original indecent liberties indictment to
aggravated sexual battery changed the nature and character of the original offense charged.
Specifically, he maintains the amendment eliminates an element of indecent liberties, i.e.,
lascivious intent, which is not an element of aggravated sexual battery. Thus, appellant argues
the elimination of this element of proof made it easier for the Commonwealth to prove the
offense.
Because the issue appellant presents is a question of law involving the interpretation of
various Code sections, we review the trial court’s judgment de novo. See Sink v.
Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998) (“[W]e review the trial
court’s statutory interpretations and legal conclusions de novo.”).
Code § 19.2-231 establishes the criteria for the amendment of indictments.
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
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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. After any such amendment the accused shall be arraigned
on the indictment, presentment or information as amended, and
shall be allowed to plead anew thereto, if he so desires, and the
trial shall proceed as if no amendment had been made; but 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.
The purpose of an indictment is to give the defendant notice of the nature and character
of the charged offense so he can make his defense. Code § 19.2-220; Commonwealth v. Dalton,
259 Va. 249, 253, 524 S.E.2d 860, 862 (2000).
“The statute is remedial in nature and is to be liberally construed in order to achieve the
laudable purpose of avoiding further unnecessary delay in the criminal justice process by
allowing amendment, rather than requiring [re-arrest and] reindictment by a grand jury.” Willis
v. Commonwealth, 10 Va. App. 430, 437, 393 S.E.2d 405, 408 (1990). Nevertheless, “[t]he
limitation on amendment to indictments in Code § 19.2-231 to amendments that do not change
the nature or character of the offense is clearly intended to protect the defendant from being
deprived of notice of the offense charged.” Rawls v. Commonwealth, 272 Va. 334, 346, 634
S.E.2d 697, 702 (2006).
In pertinent part, Code § 18.2-370.1, the indecent liberties statute, provides:
Any person 18 years of age or older who, except as provided in
§ 18.2-370, maintains a custodial or supervisory relationship over a
child under the age of 18 and is not legally married to such child
and such child is not emancipated who, with lascivious intent,
knowingly and intentionally . . . sexually abuses the child as
defined in § 18.2-67.10(6), shall be guilty of a Class 6 felony.
Code § 18.2-67.10(6) provides:
“Sexual abuse” means an act committed with the intent to sexually
molest, arouse, or gratify any person, where:
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a. The accused intentionally touches the complaining witness’s
intimate parts or material directly covering such intimate
parts;
b. The accused forces the complaining witness to touch the
accused’s, the witness’s own, or another person’s intimate
parts or material directly covering such intimate parts;
c. If the complaining witness is under the age of 13, the accused
causes or assists the complaining witness to touch the
accused’s, the witness’s own, or another person’s intimate
parts or material directly covering such intimate parts; or
d. The accused forces another person to touch the complaining
witness’s intimate parts or material directly covering such
intimate parts.
Code § 18.2-67.3, the aggravated sexual battery statute, states, in relevant part, as follows:
A. An accused shall be guilty of aggravated sexual battery if he
or she sexually abuses the complaining witness, and
* * * * * * *
3. The offense is committed by a parent, step-parent,
grandparent, or step-grandparent and the complaining witness
is at least 13 but less than 18 years of age, or
4. The act is accomplished against the will of the complaining
witness by force, threat or intimidation . . . .
As noted by appellant, and the sole contention of appellant on appeal, is that the primary
difference between the two charges is that “the indecent liberties statute requires the
Commonwealth to prove the act was committed ‘with lascivious intent’ and the sexual battery
statute does not.” The aggravated sexual battery statute does require the Commonwealth to
prove that appellant committed sexual abuse, which, as defined by Code § 18.2-67.10, means the
act was committed “with the intent to sexually molest, arouse, or gratify any person[.]” 2
2
Molest is defined as “to meddle or interfere with unjustifiably often as a result of
abnormal sexual motivation.” Webster’s Third New International Dictionary 1455 (1993).
Arouse is “to give rise to: excite, stimulate.” Id. at 120. Gratify is defined as “to give or be a
source or pleasure or satisfaction to.” Id. at 992.
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The word “lascivious” is not defined in the statute, and
must therefore be given its ordinary meaning in determining the
legislative intent in the use of the word in this particular statute.
As so determined, the word “lascivious” describes a state of mind
that is eager for sexual indulgence, desirous of inciting to lust or of
inciting sexual desire and appetite.
McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284 (1970).
In determining whether the amended charge changes the nature or character of the
offense charged, we examine the conduct or overt acts proscribed in each statute.
In Dunaway v. Commonwealth, 52 Va. App. 281, 292, 663 S.E.2d 117, 123 (2008), the
initial indictment charged the defendant with conducting a “continuing criminal enterprise which
sold or possessed with the intent to sell at least 2.5 kilograms but less than 5 kilograms of
cocaine.” The amendment only changed the amount possessed to “at least 5 kilograms of
cocaine.” In finding the amendment did not change the nature or character of the initial charge,
we held:
It is clear, therefore, that the amendment of the indictment had the
effect of changing only the amount of the mixture containing
cocaine base to be proved by the Commonwealth and the
mandatory minimum punishment appellant faced if convicted. The
amendment did not alter the essential, underlying conduct on the
part of appellant that was charged in the original indictment – that
is to say, “[t]he overt acts constituting the crime [remained] the
same.” Sullivan [v. Commonwealth], 157 Va. [867,] 876, 161 S.E.
[297,] 300 [(1931)]. Both indictments charged appellant with
being the principal, or a principal administrator, organizer, or
leader, of a continuing criminal enterprise engaged in the
distribution, or possession with the intent to distribute, of a
substantial amount of a mixture containing cocaine base. The
increased amount of the mixture distributed, or possessed with the
intent to distribute, did “not change [the crime’s] general nature or
character, because whichever [amount was] shown, the crime
[was] of the same nature – that is, a felony of the specific class
denounced by the statute.” Id.
* * * * * * *
Moreover, where there is “similarity of purpose and subject
matter” of the Code sections involved, “an amendment to an
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indictment [that merely] changes the Code provision under which a
defendant is charged . . . does not change ‘the nature or character
of the offense charged’ and is permissible under the provisions of
[Code] § 19.2-231.” Edwards v. Commonwealth, 218 Va. 994,
1003, 243 S.E.2d 834, 839 (1978) (quoting Code § 19.2-231).
Dunaway, 52 Va. App. at 296-97, 663 S.E.2d at 125.
As in Dunaway, there is a similarity of purpose and subject matter of the two Code
provisions involved here. Each proscribes sexual abuse by an adult, in a position of trust, by
touching the victim’s sexual or genital parts. Both statutes proscribe sexual abuse as performing
certain acts with the “intent to sexually molest, arouse or gratify any person.”
As in Dunaway, the amendment “did not alter the essential underlying conduct on the
part of appellant that was charged in the original indictment.” Both indictments charged
appellant with sexually abusing the victim. Under the facts of this case, the evidence necessary
to prove criminal conduct under both statutes is identical. The evidence revealed that appellant
rubbed the victim’s breasts. On two other occasions, appellant rubbed the victim’s vagina. The
victim was under the age of eighteen, and appellant was the victim’s stepfather, married to the
victim’s mother.
In its brief, the Commonwealth distinguishes Powell v. Commonwealth, 261 Va. 512,
552 S.E.2d 344 (2001). We agree and find Powell is not controlling here.
Powell involved an amendment to an indictment. However, the amendment in Powell
sought to change the indictment from alleging capital murder in the commission of robbery or
attempted robbery to alleging capital murder in the commission of rape or attempted rape. Thus,
appellant there successfully argued that the amendment “impermissibly expanded the nature and
character of the charges.” 261 Va. at 532-33, 552 S.E.2d at 356. The Supreme Court found the
amendment allowed the fact finder to convict Powell of a new and additional charge of capital
murder requiring proof of an alternative gradation crime of rape. Id. In contrast, appellant here
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does not argue the amendment allowed the fact finder to convict him of additional offenses. The
indictment for taking indecent liberties as well as the indictment for aggravated sexual battery
are premised upon the same set of facts, namely, the sexual abuse the victim suffered at the
hands of her stepfather. Therefore, Powell does not control our decision here.
We, therefore, conclude that the amendment did not change the nature or character of the
indecent liberties indictment. We do not compare the elements of the offense, but the underlying
conduct of appellant. “The intent with which the particular crime is committed does not change
its general nature or character because whichever intent is shown, the crime is of the same
nature . . . .” Sullivan, 157 Va. at 876, 161 S.E. at 300. As in Dunaway, the Commonwealth
here amended the indictment to conform to the evidence it expected to adduce at trial. Dunaway,
52 Va. App. at 296, 663 S.E.2d at 125. Because the underlying conduct of both charges was
essentially the same, and the purpose and subject matter of each charge were similar, we find the
trial court did not err in allowing the amendment.
Affirmed.
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