Sims v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia

ROGER SYLVESTER SIMS
OPINION BY
v. Record No. 2876-97-3 JUDGE LARRY G. ELDER
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Elizabeth P. Murtagh, Assistant Public
Defender, for appellant.

Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Roger Sylvester Sims (appellant) appeals from his bench

trial convictions for statutory burglary under Code § 18.2-91 and

abduction under Code § 18.2-47, entered following indictments

under Code §§ 18.2-91 and 18.2-48, respectively. 1 On appeal, he

contends the trial court erred in refusing to grant his motion

for a bill of particulars to specify (1) under Code § 18.2-91,

what time of day the alleged burglary occurred and what crime

appellant intended to commit once he gained entry, and (2) under

Code § 18.2-48, what force appellant used to seize victim and for

what purpose he abducted her. We hold that any error committed

was harmless, and we affirm appellant's convictions. 2
1
Appellant was indicted for abduction under Code § 18.2-48,
but the trial court convicted him of the lesser-included offense
specified in Code § 18.2-47(A).
2
Appellant also was convicted of larceny of a firearm.
However, we denied the petition for appeal on all issues related
 I.

FACTS

A.

THE OFFENSE

Viewed in the light most favorable to the Commonwealth, the

evidence showed that, on January 28, 1997, appellant did not have

permission to be in victim's home. Appellant and victim had

engaged in a long-term relationship and had a son with whom

appellant remained in contact. However, appellant was not

residing with victim on that date, their romantic relationship

had ended, and their son was at school.
Around noon, appellant appeared, uninvited, in victim's

bedroom. Victim testified that she thought the house was locked,

and the evidence indicated that appellant had gained entry by

removing the storm window in another bedroom. Appellant said, "I

got you now, or nowhere to run, or something like that." Victim

tried to run, but appellant pushed her onto the bed. He asked

for her keys, took eighty or ninety dollars from her purse, and

took her gun from under the bed and loaded it with bullets from

the closet. When victim asked appellant what he was going to do

with her, he said, "hurry up, we don't have much time."

Victim was scared and did not want to leave the house with

appellant. Appellant took victim toward the back door, and while

to that conviction and, therefore, do not consider that
conviction in this appeal.

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he was replacing the storm window he had removed to gain entry,

she tried to spray him with pepper spray, but she sprayed herself

instead. He struggled with her for the spray, scratching her

face, and after he obtained the spray, he tied her hands with a

jump rope "so [she] wouldn't try anything like that again."

Appellant then put her in the passenger seat of her car and

drove her into the "inner city . . . on a wild drug spree." He

bought drugs "[q]uite a few times" and used a can to smoke crack

cocaine. Appellant also made victim write a check for fifty

dollars, which he tried to cash at several different banks, but

because victim had insufficient funds in the account, no bank

would cash it. Victim never saw the gun again and believed

appellant "pawned it for drugs."
At around 8:00 or 9:00 p.m. that evening, appellant exited

the car and let victim drive away. She went to appellant's

mother's house and was taken to the emergency room by ambulance.

Later, while appellant was in jail, he apologized to victim

for the events and said he was motivated by "the drugs."

B.

PROCEEDINGS IN THE TRIAL COURT

After interviewing victim on the day of the offense, police

secured warrants against appellant for burglary, larceny of a

firearm and abduction. In a preliminary hearing on April 21,

1997, the juvenile and domestic relations district court found

probable cause and certified the charges to the grand jury.

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Although appellant requested that the preliminary hearing be

transcribed or recorded, the court denied that request, and no

record of the proceedings was made.

On May 5, 1997, the grand jury issued a three-count

indictment against appellant for burglary, larceny of a firearm

and abduction. Counts one and three of the indictment tracked

the language of the burglary and abduction statutes,

respectively. The burglary count charged that:
on or about January 28, 1997 . . .
[appellant] unlawfully and feloniously did
break and enter in the daytime, or enter in
the nighttime the home belonging to [victim]
with the intent to commit larceny, assault
and battery, or a felony other than murder,
rape or robbery therein, in violation of
Virginia Code § 18.2-91 . . . .

The abduction count charged that:
on or about January 28, 1997 . . .
[appellant] unlawfully, feloniously, and by
force, threat or intimidation and without
legal justification or excuse did seize,
take, transport, detain or secrete the
[victim] with the intent to extort money, or
pecuniary benefit, or with the intent to
defile . . . in violation of Virginia Code
§ 18.2-48.

Appellant moved the court for a bill of particulars pursuant

to Code §§ 19.2-230 and 19.2-266.2 and the Due Process Clauses of

the United States and Virginia Constitutions. He claimed that

the burglary and abduction counts merely tracked the broad

language of each statute and failed to notify him of the "'nature

and character' of the offense charged." He sought an order

requiring the Commonwealth to state with specificity (1) the

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exact time of the alleged burglary and what crime appellant

allegedly intended to commit when he entered victim's dwelling;

and (2) the nature of the force, threat or intimidation used

against victim; whether appellant was alleged to have "seized,

transport[ed], detain[ed] or secrete[d]" victim; and what

appellant's intent was at the time of the acts--to extort money,

to gain some pecuniary benefit, or to defile victim.

Appellant's counsel conceded that the evidence presented at

the preliminary hearing gave her some indication regarding how

the Commonwealth planned to proceed, but appellant sought further

clarification. Appellant's counsel contended, for example, that

the preliminary hearing evidence for the abduction charge

established only that appellant entered victim's residence with

intent to gain some pecuniary benefit. However, the indictment,

which tracked the language of the abduction statute, also

permitted conviction if appellant abducted victim with the intent

to extort or to defile. Although the Commonwealth presented no

evidence of either type of intent at the preliminary hearing,

appellant's counsel explained that appellant also had been

charged in a neighboring county with raping the victim as part of

the same sequence of events and that she needed to know the

portion of the statute under which to prepare appellant's

defense. She also contended that "an abduction that involves a

ransom note is going to be a little bit different than an

abduction for pecuniary interest." Finally, she indicated that

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if the court granted her request for a bill of particulars, she

would not have to file a motion attacking counts one and three of

the indictment as overbroad and seeking to strike the surplusage

from them.

The Commonwealth's attorney stated that the law did not

require her to elect the portion of each statute under which she

planned to proceed and that she would not do so. When the court

asked the Commonwealth's attorney which portion of the burglary

statute the Commonwealth was proceeding under, she indicated that

it was proceeding on "more than one."
The trial court denied the motion for a bill of particulars,

noting that "[t]he nature of the offense is told to [appellant]

not only in the indictment but, also, he's had a preliminary

hearing. He is not entitled to know each specific piece of

evidence that supports that. The Commonwealth doesn't have to

provide that."

At appellant's bench trial on the abduction charge, the

Commonwealth presented no evidence that appellant raped the

victim in a neighboring county, and it agreed that the abduction

was supported by an intent to gain pecuniary benefit and not by

an intent to defile. On the burglary charge, the Commonwealth

presented evidence that the entry occurred during a daytime

breaking and that, following entry, appellant committed

(1) larceny of money and a firearm, (2) assault and battery by

telling victim she had nowhere to run and pushing her onto the

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bed and struggling with her and tying her up after the pepper

spray incident, and (3) abduction by forcing victim to accompany

him to her bank and on a "wild spree to buy drugs."

The trial court held that the evidence failed to prove that

appellant abducted victim for pecuniary gain and convicted him of

the lesser-included abduction offense in Code § 18.2-47(A), which

did not require a finding of any additional intent. The trial

court convicted appellant of burglary under the charged statute

without specifying the underlying offense or offenses upon which

it relied. It also convicted him of larceny of a firearm.
II.

ANALYSIS

Appellant contends the indictment failed to notify him of

the "'nature and character' of the offense[s] charged" because it

did not specify (1) under Code § 18.2-91, what time of day the

alleged burglary occurred and what crime appellant allegedly

intended to commit once he gained entry, and (2) under Code

§ 18.2-48, what force appellant allegedly used to seize victim

and for what purpose he allegedly abducted her. We disagree and

affirm the convictions.

Code § 19.2-220 provides that:
The indictment or information shall be a
plain, concise and definite written
statement, (1) naming the accused, (2)
describing the offense charged, (3)
identifying the county, city or town in which
the accused committed the offense, and (4)
reciting that the accused committed the
offense on or about a certain date. In
describing the offense, . . . the indictment

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 or information may state so much of the
common law or statutory definition of the
offense as is sufficient to advise what
offense is charged.

The indictment should also "cite the statute or ordinance that

defines the offense or, if there is no defining statute or

ordinance, prescribes the punishment for the offense." Rule

3A:6(a). "[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); see U.S. Const. amend. VI;

Va. Const. art. I, § 8.

Ordinarily, an indictment sufficiently charges a statutory

offense if it follows the language of the statute. See

Herchenbach v. Commonwealth, 185 Va. 217, 220-21, 38 S.E.2d 328,

329 (1946). However, this rule "does not apply when the

statutory language does not in itself fully and clearly set forth

all the material elements of the offense." 2 Charles E. Torcia,
Wharton's Criminal Procedure § 265, at 127 (13th ed. 1990); see

State v. Greer, 77 S.E.2d 917, 920 (N.C. 1953).

"A court of record may direct the filing of a bill of

particulars at any time before trial." Code § 19.2-230.

However, a defendant is not entitled to a bill of particulars as

a matter of right. 3 See Goins v. Commonwealth, 251 Va. 442, 454,
3
Appellant contends that Code § 19.2-266.2 required the
court to order a bill of particulars. However, that statute
operates only where the defendant seeks (1) suppression of

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470 S.E.2d 114, 123 (1996). As long as an indictment

sufficiently recites the elements of the offense, the

Commonwealth is not required to include all evidence upon which

it plans to rely to prove a particular offense, and an accused

should not be permitted to use a bill of particulars to expand

the scope of discovery in a criminal case. See Quesinberry v.

Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 223 (1991).

However, the Commonwealth "should be required to fairly

particularize the charge or charges [it] intends to prosecute,

and not be permitted to go on a fishing expedition with a drag

net. '[An indictment or bill of particulars] should be directed

at those charges as to which the prosecuting attorney expects to

introduce supporting testimony.'" Casper v. City of Danville,

160 Va. 929, 933, 169 S.E. 734, 735 (1933). Whether to require

the Commonwealth to file a bill of particulars rests within the

discretion of the trial court. See id.

If a trial court abuses its discretion in failing to order a

bill of particulars, that error does not necessarily require

reversal. Where the accused is not sufficiently apprised of "the

nature and cause of the accusation," U.S. Const. amend. VI, the

evidence as violative of search and seizure or self-incrimination
protections or (2) dismissal of an indictment "on the ground that
a statute upon which it was based is unconstitutional."
Appellant has not alleged any grounds to bring this statute into
play. His constitutional claims relate only to the
non-specificity of the indictment and do not reach the
constitutionality of the underlying statutes he was charged with
violating.

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error is of constitutional magnitude and is "harmless [if] the

reviewing court is 'able to declare a belief that it was harmless

beyond a reasonable doubt.'" Lavinder v. Commonwealth, 12 Va.

App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc) (quoting

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17

L. Ed. 2d 705 (1967)). Where the accused has been apprised of

the "nature and character of the accusation," any other sort of

error is non-constitutional. Such an error is harmless
"[w]hen it plainly appears from the record
and the evidence given at trial that the
parties have had a fair trial on the merits
and substantial justice has been reached."
Code § 8.01-678 (emphasis added). "[A] fair
trial on the merits and substantial justice"
are not achieved if an error at trial has
affected the verdict. An error does not
affect a verdict if a reviewing court can
conclude, without usurping the jury's fact
finding function, that, had the error not
occurred, the verdict would have been the
same.

Id.; see also Rule 3A:6(a) (providing that "[e]rror in the

citation of the statute" is not reversible "unless the court

finds that [it] prejudiced the accused in preparing his

defense").

A.

SUFFICIENCY OF BURGLARY INDICTMENT

Appellant contends the trial court erred in not ordering the

Commonwealth to file a bill of particulars on the burglary

indictment to specify the time of day the offense occurred and

the crime or crimes appellant intended to commit upon entry.

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 As to the time of day the offense occurred, we hold that the

trial court did not abuse its discretion in denying the request.

This portion of the indictment followed the language of the

statute, reciting the specific statutory element, "did break and

enter in the daytime, or enter in the nighttime." See Code

§§ 18.2-90, 18.2-91. Although the language did not specify which

of the time requirements the Commonwealth was relying upon, even

without a bill of particulars, appellant had received specific

information regarding when the Commonwealth alleged the offense

occurred. Counsel for appellant noted at the hearing on the

motion for a bill of particulars that the preliminary hearing

evidence indicated the entry occurred during the daytime. In

response to questions from the trial court on this issue, the

Commonwealth's attorney indicated that appellant's counsel was

present "at the preliminary hearing and is well aware of what the

actual crime was." Although the evidence adduced at a

preliminary hearing will not serve as a substitute for a bill of

particulars, even without a bill of particulars, appellant was

apprised of the specific time of the offense, and has not shown

that he was prejudiced by the court's failure to require a bill

of particulars.
Appellant also contends he was entitled to a bill of

particulars specifying what crime or crimes the Commonwealth

alleged he intended to commit upon entering victim's residence.

Here, too, the Commonwealth tracked the language of the statute,

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alleging that appellant "inten[ded] to commit larceny, assault

and battery, or a felony other than murder, rape or robbery."

Code § 18.2-91. At the hearing on the motion for a bill of

particulars, the Commonwealth proffered that the evidence raised

an issue of fact as to all three categories of intent. In fact,

appellant was simultaneously indicted for actually committing

larceny (larceny of a firearm) and a felony other than murder,

rape or robbery (abduction). It is clear from the indictments

that the Commonwealth was intending to charge and prove as

predicate offenses at least larceny and assault and battery. In

tracking the language of the statute, the Commonwealth specified

the crimes for which it would offer evidence of appellant's

intent to commit. Cf. Akers v. Commonwealth, 216 Va. 40, 47-48,

216 S.E.2d 28, 32-33 (1975) (under murder indictment,

Commonwealth may prove killing in any manner or in different

manners and was not required to elect whether it was proceeding

against accused on theory that murder either was willful,

deliberate and premeditated or occurred in the commission of

certain enumerated felonies, including abduction); Abdell v.
Commonwealth, 173 Va. 458, 473, 2 S.E.2d 293, 299 (1939) (noting

that, in many cases, "the mode of death is uncertain" and

"[e]very cautious pleader . . . will insert as many counts as

will be necessary to provide for every possible contingency in

the evidence").

Although an indictment properly may charge multiple intents,

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we hold, as the Commonwealth concedes, that a burglary indictment

which charges that the accused entered the premises with the

intent to commit a "felony other than murder, rape or robbery"

does not set forth the element of intent specifically enough to

apprise the accused of the nature and character of the offense.

See Taylor v. Commonwealth, 207 Va. 326, 332, 150 S.E.2d 135, 140

(1966) (noting in dicta that burglary indictment charging that

accused broke and entered "'with intent . . . to commit a felony'

[failed to] apprise[] [the accused] of the offense which he is

required to answer"). Under the facts of this case, however, we

hold that any error was harmless beyond a reasonable doubt. As

noted above, appellant was indicted for abduction and burglary

simultaneously, thereby informing the accused that abduction was

the "felony other than murder, rape or robbery" that appellant

was accused of intending to commit when he entered victim's

residence. Appellant specified no other predicate offense for

which he felt obligated to prepare a defense, and he does not

contend that he was surprised or unprepared for the evidence at

trial. The only harm he alleged is the anxiety he experienced

due to the uncertainty that the Commonwealth might present

evidence of other crimes, such as the charged rape in the

adjoining county. Despite appellant's anxiety, the trial court's

error in not requiring the Commonwealth to particularize which

felony or felonies on which it would rely was harmless beyond a

reasonable doubt.

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 B.

SUFFICIENCY OF ABDUCTION INDICTMENT

Appellant contends the trial court should have required the

Commonwealth to specify what "nature of force" appellant used to

seize victim. We disagree. The abduction statute includes as an

element that the illegal seizure occurred "by force, intimidation

or deception." See Code §§ 18.2-47, 18.2-48. The Commonwealth,

by specifying in the indictment that the abduction was

accomplished "by force, threat or intimidation," sufficiently

notified appellant of the nature of the charge against him.

Requiring the Commonwealth to file a bill of particulars further

describing the nature of the force used would have required
disclosure of the evidence upon which it planned to rely to prove

this element. Therefore, the trial court did not abuse its

discretion in denying the motion on this point.

Appellant also contends the trial court should have required

the Commonwealth to elect the specific intent or intents upon

which it relied to charge abduction under Code § 18.2-48.

Assuming without deciding that appellant was entitled to know

which of the three specific intents enumerated in Code § 18.2-48

the Commonwealth intended to prove, see Hughes v. Commonwealth,
18 Va. App. 510, 530, 446 S.E.2d 451, 463 (1994) (en banc)

(Coleman, J., concurring) (noting that "a person often acts with

two or more criminal intentions"), we hold that the trial court's

failure to require disclosure of this information was harmless.

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After hearing all the evidence, the trial court convicted

appellant under Code § 18.2-47, a lesser-included offense of Code

§ 18.2-48. Code § 18.2-47 requires proof only of an intent to

deprive victim of his or her liberty, whereas Code § 18.2-48

requires proof of the additional intent "to extort money[,] . . .

[for] pecuniary benefit," or "to defile." In light of this

lesser conviction and because appellant has alleged no specific

prejudice from this denial, we hold that the trial court's error,

if any, was harmless beyond a reasonable doubt.
For these reasons, we affirm appellant's convictions.

Affirmed.

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