COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
EDWARD T. ATORICK
MEMORANDUM OPINION *
v. Record No. 2934-95-4 BY JUDGE CHARLES H. DUFF
JULY 8, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard J. Jamborsky, Judge
Steven D. Briglia (Briglia & Wright, P.C., on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Edward T. Atorick (appellant) was convicted by a Fairfax
County jury of aggravated sexual battery in violation of Code
§ 18.2-67.3. On appeal, he contends the trial court erred in
permitting the Commonwealth to amend the indictment and in
granting the jury's request to rehear a portion of the
Commonwealth's evidence. Finding no error, we affirm appellant's
conviction.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Maynard v. Commonwealth,
11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc). The
evidence demonstrated that the victim, who was born in 1983, had
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
lived next door to appellant and known him all her life. The
victim, her siblings, and other neighborhood children often
played in appellant's front yard, where they would perform
gymnastics and skits. While the children played in his yard,
appellant would sit nearby on a stack of logs.
The victim testified that on several occasions while playing
in appellant's yard during the late summer of 1992, appellant
pulled her onto his lap, took her hand around her back, and
forced her hand to touch his penis on the outside of his
clothing. Using the victim's hand, appellant would rub up and
down on his penis on the outside of his pants. The one time the
victim tried to pull her hand away appellant tightened his grip
upon her. During these incidents, appellant always had a beer
beside him. Appellant forced the victim to touch his penis in
this manner at least five times, as well as one other time when
he was visiting inside the victim's home.
The victim did not report the incidents until November of
1994, after a school counselor discussed sexual abuse with the
victim's class. After being contacted by the police about the
allegations, appellant met with Officer Brenda Akre at police
headquarters. Appellant denied that he had ever forced the
victim to touch his penis, and stated that he would never harm
the victim or her siblings. He said that perhaps the victim had
misinterpreted something that occurred during the acrobatic acts
performed in his yard. Appellant said he did not remember any
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incident happening as the victim described, but that he had been
drinking heavily during that time period.
The following day, appellant returned to Akre's office. He
said he recalled two incidents, once outside in the yard and once
inside the victim's house, when he placed the victim's hand upon
his penis. Appellant said he did not know why he had done it,
that "maybe it felt good," that "it was wrong," and that "it
should not have happened."
Testifying in his own behalf, appellant denied touching the
victim in an improper manner at any time. Appellant testified
that during his first conversation with Akre he had said the
victim must have misinterpreted something that had happened while
he was helping her with a gymnastic exercise. He denied telling
Akre he had been drinking heavily during the time period of the
alleged incidents. Appellant also denied telling Akre during the
second interview that the victim's hand had touched his penis.
According to appellant, he merely described to Akre an exercise
game he had played with the victim. Appellant further testified
that he was angered by Akre's accusing questions and left her
office.
I.
Citing Code § 18.2-67.3, the indictment charged that,
between July 1, 1992 and October 31, 1992, appellant "unlawfully
and feloniously sexually abuse[d] [the victim], a child less than
thirteen (13) years of age, by intentionally touching her
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intimate parts or clothing covering such intimate parts." On
August 4, 1995, nearly three months before the commencement of
appellant's trial on October 30, 1995, 1 appellant moved to
dismiss the indictment, arguing that the evidence presented by
the Commonwealth at the preliminary hearing, rather than proving
the conduct described in the indictment, demonstrated instead
that appellant had forced the victim to touch the clothing
covering his penis. Upon the Commonwealth's motion, the trial
judge amended the indictment to state that appellant had sexually
abused the victim by "forcing [her] to touch his intimate parts
or clothing covering such intimate parts."
"The purpose of an indictment is to give the accused notice
of the nature and character of the offense charged." Cantwell v.
Commonwealth, 2 Va. App. 606, 608, 347 S.E.2d 523, 524 (1986).
"Code § 19.2-231 permits the court to amend an indictment at any
time before the verdict is returned or a finding of guilt is
made, provided that the amendment does not change the nature or
character of the offense charged. This section is to be
construed liberally." Id.
The amendment of the indictment, which occurred nearly three
months before trial, did not change the nature or character of
the offense with which appellant was charged. The amendment
affected only the manner in which the aggravated sexual battery
1
Appellant's first jury trial ended in a mistrial on
September 14, 1995.
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was committed, and appellant remained charged with the same crime
committed against the same victim during the same period of time.
He had ample opportunity to prepare a defense to the amended
charge. Thus, the trial judge did not err in permitting the
amendment, and in denying appellant's motion to dismiss the
indictment. See Farewell v. Commonwealth, 167 Va. 475, 484, 189
S.E. 321, 325 (1937); Sullivan v. Commonwealth, 157 Va. 867, 878,
161 S.E. 297, 300 (1931).
II.
On October 31, 1995, after the presentation of all the
evidence, the jury deliberated for about one and one-half hours.
The jury sent the judge a note stating, "Can we hear the
testimony of Detective Akre." In a written response, the judge
said, "No. Please rely on your collective recollection of her
testimony." The following day, after deliberating for more than
five hours, the jury sent a message that the votes of the jurors
stood at eight, three, and one. The judge did not respond, and
the jury further deliberated for one and one-half hours that day.
Due to the illness of the presiding judge, a different judge
substituted for him on the third day of jury deliberations. That
morning, the jury sent the substituting judge a note stating:
We are having difficulty coming to a decision
mainly because we disagree about our memories
of Detective Akre's testimony. We have
previously asked for the testimony of the
detective and the judge refused to allow us
to have it. If we cannot still have her
testimony can we ask you: Did the detective
testify that Mr. Atorick stated to her that
he did indeed put [the victim's] hand on his
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penis - If you cannot answer the question for
us can we talk to you?
The judge assembled the jury in the courtroom. He asked the
jurors if they could reach a verdict without a reading of Akre's
testimony. The jurors said they could not. The judge then
permitted the court reporter to read the testimony of Akre to the
jury. Before doing so, the judge cautioned the jurors that they
were not to give additional weight to Akre's testimony because it
was being presented twice. 2
"'Whether a jury, after retirement, may, upon their request
have a particular portion of the evidence read to them is
ordinarily a matter resting in the sound discretion of the trial
court.'" Kennedy v. Commonwealth, 18 Va. App. 543, 547, 445
S.E.2d 699, 702 (1994) (citations omitted). Circumstances that
may be pertinent to the resolution of the question include "the
threat of 'unbalanced testimonial emphasis,' the length of the
testimony in issue, the time already consumed in jury
deliberation, the complexity of the trial and related issues, and
the nature and specificity of the evidence subject of the
testimony." Id. at 548, 445 S.E.2d at 703 (citations omitted).
Furthermore, "the probative value and benefit of the testimony in
issue to the fact finding process must always be weighed against
its prejudicial effect to the accused, if any." Id.
2
At a hearing on post-trial motions, the judge who presided
at trial stated that he agreed with the substituting judge's
decision to repeat Akre's testimony, and he adopted the ruling as
his own.
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In this case, on the third day of deliberations the jury
indicated it was at an impasse without Akre's testimony. The
jury previously had been admonished to resolve the situation by
relying on its collective memory. The jury's request was
specific and concerned a factual matter that was at the heart of
the case. To avoid a possible second mistrial in the case, the
judge had the court reporter read Akre's testimony in its
entirety to the jury. Before the testimony was read, however,
the judge "prudently and correctly instructed the jury to avoid
any undue emphasis in its consideration of that evidence." Id.
at 549, 445 S.E.2d at 703. "'"Unless the record shows to the
contrary, it is to be presumed that the jury followed an explicit
cautionary instruction promptly given."'" Id. (citations
omitted). Under these circumstances, the judge did not abuse his
discretion in repeating Akre's testimony at the jury's request.
For the foregoing reasons, appellant's conviction is
affirmed.
Affirmed.
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Benton, J., dissenting.
The original indictment charged that Edward T. Atorick
"intentionally touch[ed] [the child's] intimate parts or clothing
covering such intimate parts." After Atorick moved to dismiss
the indictment because the evidence presented by the Commonwealth
at the preliminary hearing did not prove the allegation, the
trial judge granted the Commonwealth's motion to amend the
indictment. The amended indictment stated that Atorick "forc[ed]
[the child] to touch his intimate parts or clothing covering such
intimate parts." I would hold that this amendment changed the
nature of the offense charged. Accordingly, I dissent.
In discussing whether an amendment changed the nature of the
offense charged, the Supreme Court set forth the following
guidelines:
"The charge with respect to the conduct of
the accused which was alleged as rendering
the accused guilty of an offense remained
unchanged . . . . Precisely the same conduct
on the part of the accused was charged in the
amended as in the original indictment."
[T]he bare fact that the amendment so allowed
charged a different intent, though based on
the same overt acts, . . . did not, within
the meaning of the statute, change the nature
of the offense charged in the original
indictment.
Sullivan v. Commonwealth, 157 Va. 867, 877-78, 161 S.E. 297, 300
(1931) (emphasis added) (citation omitted); see also Smith v.
Commonwealth, 10 Va. App. 592, 594, 394 S.E.2d 30, 31 (1990)
("The overt acts were the same . . . .") (emphasis added); Willis
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v. Commonwealth, 10 Va. App. 430, 438, 393 S.E.2d 405, 409 (1990)
("[T]he amendment did not change the nature or character of the
acts which the indictment alleged . . . [were] committed. The
amendment clarified . . . those same acts . . . .") (emphasis
added); cf. Farewell v. Commonwealth, 167 Va. 475, 478-79, 189
S.E. 321, 323 (1937) (emphasizing that the essential element of
bigamy is the "overt act" of entering into a second marriage)
(emphasis added).
The amendment to the indictment changed the overt act that
Atorick was accused of committing. In the original indictment,
Atorick was accused of touching the child. In the amended
indictment, Atorick was accused of forcing the child to touch
him. Because the amendment changed the act Atorick was accused
of committing, I would hold that the amendment changed the nature
of the offense.
"It [is] the province of the grand jury to ascertain from
the evidence" the appropriate crime to charge in an indictment.
Evans v. Commonwealth, 183 Va. 775, 780, 33 S.E.2d 636, 638
(1945). "While [it is] . . . settled . . . that . . . defective
indictments may be amended, not once has it been said that the
trial [judge] has the power to change by amendment the character
of an offense as found by the grand jury." Id. at 781, 33 S.E.2d
at 638-39.
I dissent.
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