COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Willis,
Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia
JUDEA S. CRAWFORD, s/k/a
JUDEA SUMMERBELL CRAWFORD
OPINION BY
v. Record No. 2562-94-3 JUDGE JAMES W. BENTON, JR.
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
Scott Goodman for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Judea S. Crawford appeals his convictions for (1) carnal
knowledge of a child between thirteen and fifteen years of age,
in violation of Code § 18.2-63; and (2) crimes against nature, in
violation of Code § 18.2-361. Crawford contends that the trial
judge erred in denying his motion for a continuance after the
judge allowed the prosecution to amend the indictment to conform
to unexpected testimony. A panel of this Court, with one judge
dissenting, held that the error was harmless and affirmed the
convictions. See Crawford v. Commonwealth, 22 Va. App. 663, 472
S.E.2d 658 (1996). Pursuant to Code § 17-116.02(D), the Court
convened en banc to reconsider the question presented. For the
reasons that follow, we reverse the convictions and remand for a
new trial.
I.
Crawford was indicted for (1) feloniously having sexual
intercourse with a child under age thirteen, in violation of Code
§ 18.2-61; and (2) feloniously causing a child under age thirteen
to perform fellatio on him, in violation of Code § 18.2-67.1.
The indictment charged that the events occurred in 1983 when the
child, his daughter, was under age thirteen.
During the jury trial, the daughter testified that she could
not recall whether the alleged offenses occurred in the summer of
1983 or 1984. At the conclusion of the Commonwealth's
case-in-chief, Crawford moved to strike the evidence. He argued
that the evidence failed to prove that the daughter, who was born
in 1971, was under thirteen at the time of the alleged offenses.
In response, the Commonwealth agreed that the evidence failed to
prove the year in which the offenses occurred and requested that
the trial judge allow the trial to proceed on the offenses of (1)
carnal knowledge of a child between thirteen and fourteen years
of age, in violation of Code § 18.2-63; and (2) "crimes against
nature," in violation of Code § 18.2-361. Over Crawford's
objections, the trial judge granted the Commonwealth's request
pursuant to Code § 19.2-231, which allows indictments to be
amended at any time before a jury returns a verdict, provided the
amendment does not change the nature or character of the offense
charged.
Crawford then asserted that the amendment operated as a
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surprise and requested a continuance pursuant to another
provision of Code § 19.2-231. Crawford argued that the amendment
of the indictment required him to defend charges covering a
different time period and precluded him from gathering relevant
medical or alibi evidence. Ruling that Crawford was not
surprised by the amendments, the trial judge overruled Crawford's
motion.
At the conclusion of the evidence, the jury convicted
Crawford on both counts of the indictment, as amended.
Consistent with the jury's verdict, the judge sentenced Crawford
to serve ten years in the penitentiary for statutory rape and
twenty years in the penitentiary for committing "crimes against
nature." A judge of this Court granted Crawford's appeal from
the trial judge's ruling that denied Crawford's request for a
continuance.
II.
Code § 19.2-231 states the following:
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.
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
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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.
(Emphasis added).
The record and the transcript clearly establish that neither
the Commonwealth nor Crawford expected the testimony that the
alleged events may have occurred in 1984. The indictment charged
that the child was under the age of thirteen and alleged conduct
that occurred during a period in 1983. After the indictment was
amended, Crawford was placed in the position of defending himself
against offenses alleged to have been committed during a
different time period. Thus, the facts that were relevant to
Crawford's defense were necessarily different. As a result,
Crawford was deprived of the opportunity to identify and present
alibi and other exculpatory evidence for 1984.
Moreover, Crawford adequately demonstrated to the trial
judge that the manner of defending himself against the new
charges would have changed. Crawford informed the trial judge
that a continuance would have allowed him to seek alibi witnesses
or other alibi evidence proving his whereabouts during the
revised period in question. Crawford also stated that a
continuance would have provided him the opportunity to review the
victim's medical records from the summer of 1984 to discredit her
allegations. No contrary evidence supported the trial judge's
finding of lack of surprise. Cf. Willis v. Commonwealth, 10 Va.
App. 430, 438-39, 393 S.E.2d 405, 409 (1990). Thus, the trial
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judge erred in finding that the amendments did not operate as a
surprise upon Crawford.
III.
Code § 19.2-231 states that if an amendment surprises the
accused, the accused "shall be entitled, upon request, to a
continuance of the case for a reasonable time." (Emphasis
added). The principle is well settled that "[w]hen the word
'shall' appears in a statute it is generally used in an
imperative or mandatory sense." Schmidt v. City of Richmond, 206
Va. 211, 218, 142 S.E.2d 573, 578 (1965).
The General Assembly has mandated in Code § 19.2-231 that a
finding of "surprise" entitles the accused to a continuance as a
matter of right. See Willis, 10 Va. App. at 438, 393 S.E.2d at
409. In so doing, the legislature reasonably determined that any
amendment that surprises the defense necessarily burdens an
accused's constitutional right "to call for evidence in his
favor." Va. Const. art. I, § 8. The right to call for evidence
in one's favor "guarantees an accused sufficient time to
investigate and evaluate the evidence . . . for trial." Lomax v.
Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984). In
this context, we conclude that "the term 'shall' is mandatory and
reflects the General Assembly's intention that there be no
discretion in complying with [the] statute, except as provided in
the statute itself." Brunty v. Smith, 22 Va. App. 191, 194-95,
468 S.E.2d 161, 163 (1996).
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By directly linking the finding of "surprise" to an
entitlement to a continuance, the legislature has declared that a
surprise caused by amending an indictment at trial per se
prejudices the accused. To alleviate that prejudice, a trial
judge must grant the accused a continuance for a reasonable
period of time. Accordingly, we hold that when the trial judge
permitted the Commonwealth to amend the indictment, the amendment
operated as a surprise to Crawford and required the trial judge
to grant Crawford's § 19.2-231 motion for a continuance.
Reversed and remanded for
a new trial.
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Elder, and Annunziata, J.J., dissenting.
For the reasons stated in the panel's majority opinion,
Judges Elder and Annunziata dissent.
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