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Pulliam v. Commonwealth
Citations: 688 S.E.2d 910; 55 Va. App. 710; 2010 Va. App. LEXIS 73Docket: 2427082
Court: Court of Appeals of Virginia; February 23, 2010; Virginia; State Appellate Court
Original Court Document: View Document
Garry Lee Pulliam was convicted in a bench trial of two counts of aggravated sexual battery under Code 18.2-67.3. Pulliam appealed, asserting that the trial court improperly amended an indictment that initially charged him with taking indecent liberties with a child under Code 18.2-370.1. The indictment was amended to reflect aggravated sexual battery, which Pulliam argued changed the nature and character of the offense by removing the element of lascivious intent that is necessary for indecent liberties. The trial court, however, found that the amendment did not alter the fundamental nature of the original charge. It also allowed Pulliam a continuance after the amendment. On appeal, the court reviewed the trial court's judgment de novo, focusing on whether the amendment met the criteria established by Code 19.2-231, which permits amendments to indictments as long as they do not change the nature of the offense. The appellate court ultimately affirmed the conviction, upholding the trial court's decision regarding the amendment. An indictment serves to notify the defendant of the specific charges against them, allowing for an adequate defense (Code 19.2-220; Commonwealth v. Dalton). This statute is designed to be liberally interpreted to prevent delays in the criminal justice process by permitting amendments without necessitating re-arrest or re-indictment (Willis v. Commonwealth). However, amendments to indictments are limited to those that do not alter the nature or character of the charged offense, ensuring the defendant remains informed of the charges (Code 19.2-231; Rawls v. Commonwealth). The indecent liberties statute (Code 18.2-370.1) criminalizes the sexual abuse of a child under 18 by an adult in a custodial or supervisory role, classifying such actions as a Class 6 felony. The definition of 'sexual abuse' involves various forms of inappropriate touching, as outlined in Code 18.2-67.10(6). Conversely, the aggravated sexual battery statute (Code 18.2-67.3) addresses sexual abuse specifically when committed by certain relatives against a minor aged 13-17 or through coercive means. The appellant contends that the key distinction between the two charges lies in the requirement of 'lascivious intent' in the indecent liberties statute, which is not present in the aggravated sexual battery statute. The term 'lascivious' is not defined in the statute but is interpreted to connote a strong desire for sexual indulgence (McKeon v. Commonwealth). When assessing whether an amendment changes the nature of the offense, the focus is on the specific conduct proscribed by each statute. For instance, in Dunaway v. Commonwealth, an amendment changed the amount of cocaine involved without altering the fundamental nature of the offense. The amendment to the indictment only changed the amount of cocaine base to be proven and the mandatory minimum sentence the appellant faced, without altering the essential conduct originally charged. Both indictments accused the appellant of being a principal in a criminal enterprise related to distributing or possessing cocaine base, reinforcing that the fundamental nature of the crime remained a felony under the same statutory classification. The amendment’s alignment with Code 19.2-231 allows for changes in the indictment that do not affect the character of the offense, particularly when addressing similar purposes and subject matters. In this case, the underlying conduct of sexual abuse was unchanged by the amendment, as both indictments involved similar acts of abuse against a minor victim by the appellant, the victim's stepfather. The evidence presented was identical for both charges, which included specific acts of rubbing the victim’s breasts and vagina. The Commonwealth successfully distinguished this case from Powell v. Commonwealth, where the amendment expanded the charges to a different nature of offense, thereby allowing for a new conviction. Here, the amendments to the charges did not introduce new offenses but rather clarified the existing charges based on the same set of facts. Therefore, the trial court's decision to permit the amendment was affirmed.