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NELSON v. COMMONWEALTH




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NELSON

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank[1]

Argued at Chesapeake, Virginia

Record No. 3022-02-1

JOHN BYRD NELSON

v.

COMMONWEALTH OF VIRGINIA

 

OPINION BY JUDGE ROBERT P. FRANK

DECEMBER 2, 2003

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Verbena M. Askew, Judge

James B. Covington for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

John Byrd Nelson (appellant) appeals his convictions by a jury
of taking indecent liberties

with a child, in violation of Code ? 18.2-370; sexual object
penetration of a victim under the age of

thirteen, in violation of Code ? 18.2-67.2(A); and three counts
of forcible sodomy, in violation of

Code ? 18.2-67.1(A). Appellant argues the trial court erred in
(1) refusing him access to

subpoenaed documents, (2) failing to excuse a juror during the
trial, (3) failing to dismiss the

forcible sodomy indictments for failure to state an offense, (4)
denying his motion for a bill of

particulars, and (5) refusing to consolidate the forcible sodomy
indictments. For the reasons below,

we affirm appellant’s convictions.[2]

I. Sealing Subpoenaed Documents

Appellant was charged with committing sexual assault on a victim
under the age of

fourteen. Prior to trial, appellant requested a subpoena duces
tecum
for the medical records of

Dr. Alan Rountree, a doctor who treated the victim after the
incidents.[3] Although the
subpoena

was issued, the trial court sealed the documents prior to their
release to appellant and the

Commonwealth. At the hearing on this subpoena, the court
explained:

The Court, frankly, it reviewed a number of cases that dealt
with

this issue . . . and it thinks it would be highly prejudicial to
the

victim to release that information. I frankly don’t believe
that you

can review the information and not tell your client. I think you

have an ethical obligation to tell him and I don’t think that
that

would be appropriate.

So what the Court’s going to do is seal these records . . . .

But the Court looked at these records very carefully, studied
the

cases and determined it would not be appropriate to release
them.

The Court thought the others were material to your case.[4]
It did

release those and it thought it was also exculpatory. But I
think the

real test is whether it’s material to your case. You have a
right to it

if it decides it is material. These records aren’t material at
all and

the Court is not going to – you haven’t convinced me
otherwise.

Appellant argues Rule 3A:12(b) mandates "examination and
review" of the subpoenaed

documents "by the parties and counsel." He contends
the rule requires a "determination

regarding materiality be made at the time the subpoena duces
tecum
is requested." If the

documents are material, appellant argues, then the trial court
cannot refuse to release the items to

the parties for their examination. We disagree.

Decisions involving discovery issues are within the discretion
of the trial court, and

appellate courts will not reverse those decisions "unless
‘the action taken was improvident and

affected substantial rights.’" O’Brian v. Langley Sch.,
256 Va. 547, 552, 507 S.E.2d 363, 366

(1998) (quoting Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d
751, 755 (1970)). See also

Willard v. Moneta Bldg. Supply, Inc., 258 Va. 140, 153 n.12, 515
S.E.2d 277, 286 n.12 (1999).

An appellant must show prejudice[5]
from the trial court’s ruling before this Court will overturn

the conviction. Gibbs v. Commonwealth, 16 Va. App. 697, 701, 432
S.E.2d 514, 516 (1993).

Rule 3A:12(b) addresses the "[p]roduction of [d]ocumentary
[e]vidence" before a trial

court. Initially, this rule explains the process for obtaining
documents:

Upon notice to the adverse party and on affidavit by the party

applying for the subpoena that the requested writings or objects
are

material to the proceedings and are in the possession of a
person

not a party to the action, the judge or the clerk may issue a

subpoena duces tecum for the production of writings or objects

described in the subpoena. Such subpoena shall command either

(1) that the individual to whom it is addressed shall appear in

person and with the items described either before the court or
the

clerk or (2) that such individual shall deliver the items
described to

the clerk.

Although appellant argues the contrary, nothing in this rule
requires that the trial court

make a determination on the materiality of the requested items
prior to issuance of a subpoena.

In fact, the rule does not require any ruling by a judge, as the
clerk also has the authority to issue

a subpoena if a party has filed an appropriate affidavit and
notice. A plain reading of the rule

does not include a requirement that the trial court rule on
materiality prior to the issuance of a

subpoena. See Rasmussen v. Commonwealth, 31 Va. App. 233, 238,
522 S.E.2d 401, 403

(1999) (noting courts prefer to use the plain meaning of words
in statutes).

Appellant also contends that, once the requested items are
produced, Rule 3A:12(b)

requires that a trial court allow all the parties access to
those items without limitation. He relies

on the following language of the rule:

Any subpoenaed writings and objects, regardless by whom

requested, shall be available for examination and review by all

parties and counsel. Subpoenaed writings or objects shall be

received by the clerk and shall not be open for examination and

review except by the parties and counsel unless otherwise
directed

by the court.

Rule 3A:12(b) then provides:

Where subpoenaed writings and objects are of such nature or

content that disclosure to other parties would be unduly
prejudicial,

the court, upon written motion and notice to all parties, may
grant

such relief as it deems appropriate, including limiting
disclosure,

removal and copying.

The Commonwealth argues the above provision permits the trial
court to limit access to the

subpoenaed items. We agree with the Commonwealth that trial
courts are permitted to restrict

the viewing of subpoenaed documents.

The provision of Rule 3A:12(b) that prohibits "examination
and review except by the

parties and counsel" is modified by the clause "unless
otherwise directed by the court." This

language plainly allows the court to either expand or limit the
normal conditions for viewing the

subpoenaed items, whether the examination is by the parties,
counsel, or non-parties. See Green

v. Commonwealth, 28 Va. App. 567, 569, 507 S.E.2d 627, 629
(1998) (explaining that courts

should consider the plain language of a statute when determining
its meaning); Gilliam v.

Commonwealth, 21 Va. App. 519, 522-23, 465 S.E.2d 592, 594
(1996).

Without judicial authority to limit review by the parties, items
that are immaterial to the

proceedings could be provided to the parties.[6]
To avoid allowing an opposing party access to

items that are immaterial, a trial court must review the
requested documents and determine

whether they are material. Without issuing the subpoena to
obtain those documents, a trial court

would have no opportunity to review their contents and rule on
their materiality. For example, in

Gibbs, 16 Va. App. at 698-99, 432 S.E.2d at 515, a case cited by
appellant, the trial court

"reviewed the documents [produced by the bank’s
representative] in camera and ruled" on their

materiality. See also N. Am. Mortgage Investors v. Pomponio, 219
Va. 914, 252 S.E.2d 345

(1979) (remanding a case for the trial court to review the
subpoenaed documents and determine

if they were subject to a privilege). Clearly, the trial court
can consider, after the production of

the documents, whether the items are material or immaterial to
the proceedings for which they

were subpoenaed. See, e.g., NAACP, Inc. v. Comm. on Offenses
Against the Admin. of Justice,

199 Va. 665, 101 S.E.2d 631, vacated on other grounds, 358 U.S.
40 (1958) (discussing a trial

court’s denial of a motion to quash subpoenas duces tecum after
they were issued).

The following provision of Rule 3A:12(b), which allows the court
to limit disclosure of

items that are "unduly prejudicial" by means such as
"limiting disclosure, removal and copying,"

makes sense only if it refers to the court’s authority to
limit the access of the parties in the case,

as people who are not parties generally are not allowed access
to any subpoenaed documents

under Rule 3A:12(b).

Additionally, while appellant argues that "parties" in
the provision allowing

"examination and review" refers to the people directly
involved in the legal action, he contends

the same word, modified by "other," refers to all
people who are not parties to the action. His

definition of "parties" is contradictory. He defines
"other parties" in the second paragraph of

Rule 3A:12(b), which allows the courts to restrict access to
"unduly prejudicial" subpoenaed

documents, as "non-parties." However, the previous
paragraph generally prohibits non-parties’

access to subpoenaed documents, "unless otherwise directed
by the court." Rule 3A:12(b). As

non-parties are denied access to subpoenaed documents in the
earlier paragraph, appellant’s

argument, that the later paragraph is designed only to give the
court the authority to deny access

to non-parties, makes the earlier portion of the rule
irrelevant. As this Court avoids such

contradictory and strained constructions of statutes, see Green,
28 Va. App. at 569, 507 S.E.2d at

629; Gilliam, 21 Va. App. at 522-23, 465 S.E.2d at 594, we also
avoid such constructions of our

Rules.

We also note appellant’s argument would eliminate motions to
quash, which are a

third-party’s only option to prevent disclosure of subpoenaed
information, as third-parties do not

receive notice of a subpoena until it is served on them. See
Rule 3A:12(b) (requiring notice to

the adverse party before issuance of a subpoena duces tecum,
but not notice to the non-party).

See, e.g., Kauffmann v. Commonwealth, 8 Va. App. 400, 408, 382
S.E.2d 279, 283 (1989)

(discussing a non-party’s motion to quash after issuance of a
subpoena). Additionally, the

adverse parties also need the option of a motion to quash, as
they may not receive notice of the

request for a subpoena duces tecum until after the
issuance of the subpoena. See Rule 3A:12(b)

(requiring only notice to adverse parties, not notice within a
number of days before the subpoena

is issued). See, e.g., Castelow v. Commonwealth, 29 Va. App.
305, 314-15, 512 S.E.2d 137, 141

(1999) (discussing a motion to quash by the Commonwealth).

Appellant also argues the trial court denied his right to call
for evidence in his favor and

to prepare his defense when it denied him access to Dr. Rountree’s
records.[7] The

Commonwealth correctly notes this Court will not overturn a
conviction based on a trial court’s

refusal to grant a subpoena to a defendant unless a showing of
prejudice is made. Gibbs, 16

Va. App. at 701, 432 S.E.2d at 516 ("The trial court’s
refusal to issue a subpoena duces tecum,

however, is not reversible error absent a showing of
prejudice."). Here, the trial court effectively

refused to grant the subpoena for Dr. Rountree’s records when
it sealed those documents.

Because the trial court denied appellant access to these
records, this Court must "determine if

[the] evidence not disclosed to the defense was ‘material.’"
Patterson v. Commonwealth, 3

Va. App. 1, 8, 348 S.E.2d 285, 289 (1986). If the documents are
material, their nondisclosure

has prejudiced appellant "‘only if there is a reasonable
probability that, had the evidence been

disclosed to the defense, the result of the proceeding would
have been different.’" Id. (quoting

United States v. Bagley, 473 U.S. 667, 682 (1985)).

After reviewing the sealed documents, we find no reasonable
probability that the result of

the proceeding would have been different if the records were
given to appellant. As the trial

court indicated, nothing in these documents would have provided
appellant with material to

impeach any witnesses. Nothing in these documents suggests
further avenues of investigation of

which appellant was unaware. Therefore, appellant was not
prejudiced by the trial court’s

refusal to provide him access to Dr. Rountree’s records.

II. Refusal to Question Juror during Trial

In the morning on the second day of trial, the prosecutor
informed the trial court and

appellant that Christine Lane, the foster mother of the victim,
had left a message at the

Commonwealth’s office. Lane said "she knew one of the
jurors that was seated from work at

Gateway over a year and a half ago." Lane added, "[A]t
no time did [the victim] ever meet [the

juror] or did he come in contact with her, that she doesn’t
know [the victim], doesn’t know

[Lane’s] husband, she only knows her. And that while [the
juror] was her direct supervisor, [the

victim] did not even live with them."

Lane and the juror had "made eye contact and smiled"
during voir dire, but the victim

was sitting with his father and not Lane. Lane left the
courtroom before voir dire was completed

and did not return that day. During voir dire, the juror
indicated she did not know any of the

witnesses. She indicated she could evaluate the evidence fairly.
Neither defense counsel nor the

prosecutor asked if anyone knew the victim’s foster parents.
Nothing in the record suggests that

the juror ever notified the trial court concerning problems with
her impartiality nor that the

juror’s demeanor during the trial suggested any bias against
appellant. Lane was not called as a

witness.

After hearing about the message from Lane, appellant asked the
trial court to inquire of

the juror "[i]f she noticed anyone in the courtroom that
she knew, that she knew personally,

whether it was a witness or not, and whether the fact that that
person was sitting in the courtroom

had — might, in her mind, have any connection with this
case." The court denied appellant’s

request, stating, in part:

[The juror] answered all the Court’s questions, all your
questions,

voir dire questions, and the Commonwealth’s questions.

* * * * * * *

I really just don’t see why we should interrupt these
proceedings to

deal with that. There is nothing that shows that there is any
kind of

prejudice here to anybody. [Lane] is not a witness.

* * * * * * *

I think you’ve had an opportunity to ask them every question
you

possibly could, and you chose not to ask them whether or not
they

had any relation and I don’t see that it has anything to do
with the

case.

At the beginning of the third day of trial, appellant argued the
victim "mention[ed] the

name of his foster parent, Christine Lane, a couple of
times." He contended the juror "must

know" who Lane was, which caused "a great
concern." He then moved for a mistrial. The trial

court indicated appellant would not have been able to strike the
juror for cause; therefore, the

court denied the motion for a mistrial. On appeal, appellant
argues the trial court "had a duty to

inquire" into the possibility that the juror recognized
Lane and had a duty to grant the motion for

a mistrial when she refused to allow a hearing on the issue.

This appeal does not involve allegations of juror misconduct.
Appellant does not claim a

juror untruthfully answered a question during voir dire.
The attorneys did not ask the venire

panel any questions about knowing the victim’s parents or
foster parents. Instead, the allegation

involves a series of speculative links: the possible recognition
of Lane, which possibly could

lead to an understanding that Lane was a foster parent of the
victim, which could have caused the

juror to remember possibly positive impressions of Lane from
their prior working relationship,[8]

and those feelings could have possibly biased the juror against
appellant, such that she would

ignore the trial court’s instructions to evaluate the evidence
and apply the law impartially. We

find this claim of the potential for bias did not necessitate a
hearing on the juror’s recognition of

Lane.

A defendant is "entitled to a fair trial, but not a perfect
one." Lutwak v. United States,

344 U.S. 604, 619 (1953). See also Smith v. Phillips, 455 U.S.
209, 217 (1982) (noting voir dire

is not "infallible" as "it is virtually
impossible to shield jurors from every contact or influence

that might theoretically affect their vote"). "One
touchstone of a fair trial is an impartial trier of

fact – ‘a jury capable and willing to decide the case solely
on the evidence before it.’"

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554
(1984) (quoting Smith v.

Phillips, 455 U.S. 209, 217 (1982)).

Through voir dire and other competent evidence, the trial court

must examine the venirepersons for signs of a mind set that

"‘would prevent or substantially impair the performance
of [the]

duties [of] a juror in accordance with his instructions and his

oath.’"

Swanson v. Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d 702,
704 (1994) (quoting Satcher

v. Commonwealth, 244 Va. 220, 236, 421 S.E.2d 821, 831 (1992)) .
See also McDonough

Power Equipment, 464 U.S. at 554 ("Voir dire examination
serves to protect that [fair trial] right

by exposing possible biases, both known and unknown, on the part
of potential jurors.").

When the issue [of impermissible juror bias] arises from a

"midtrial" challenge to a juror’s impartiality, we
"will reverse the

trial court’s decision only for an abuse of discretion,"
applying the

"same standard" of review appropriate to appellate
consideration

of a decision to seat a venireperson. Hunt v. Commonwealth, 25

Va. App. 395, 399, 488 S.E.2d 672, 674 (1997); see David v.

Commonwealth, 26 Va. App. 77, 80, 493 S.E.2d 379, 381 (1997)

(juror impartiality [is] a factual determination, disturbed on
appeal

only for "manifest error"). Hence, we will not
overturn "the denial

of a motion for a mistrial . . . unless there exists a manifest

probability that [the ruling] was prejudicial." Taylor [v.

Commonwealth], 25 Va. App. [12,] 17, 486 S.E.2d [108,] 110

[(1997)].

Green v. Commonwealth, 26 Va. App. 394, 401, 494 S.E.2d 888, 891
(1998).

Appellant argues the trial court had a duty to conduct a hearing
and investigate the

potential for bias by questioning the juror once he made his
request for the hearing. As part of

this position, appellant contends public confidence in the
integrity of the criminal process

necessitates, at minimum, a hearing into any allegation of
potential bias or misconduct by a juror.

This Court has not previously addressed this specific question.

Several federal courts do not require an evidentiary hearing
whenever an allegation of

bias is made. See United States v. Frost, 125 F.3d 346, 377 (6th
Cir. 1997) (explaining that a

hearing is required only "when the alleged contact [with a
juror] presents a likelihood of

affecting the verdict"); United States v. Angulo, 4 F.3d
843, 847 (9th Cir. 1993) ("An

evidentiary hearing is not mandated every time there is
an allegation of jury misconduct or bias."

(emphasis in original)); United States v. Caldwell, 776 F.2d
989, 998 (11th Cir. 1985) ("The

more speculative or unsubstantiated the allegation of
misconduct, the less the burden to

investigate. . . . The more serious the potential jury
contamination, especially where alleged

extrinsic influence is involved, the heavier the burden to
investigate."). These circuits have held

that the trial court must first determine whether the claim of
bias or misconduct is reasonable. If

the claim is reasonable, then the trial court should investigate
the allegation by holding an

evidentiary hearing at which jurors may testify. United States
v. Rigsby, 45 F.3d 120, 124-25

(6th Cir. 1995) ("When there is a credible allegation
of extraneous influences, the court must

investigate sufficiently to assure itself that constitutional
rights of the criminal defendant have

not been violated." (emphasis added)); United States v.
Davis, 15 F.3d 1393, 1412 (7th Cir.

1994) ("A court is under no obligation to inquire into the
possibility of improper influence until

the defendant comes forward with a colorable allegation of
taint."); United States v. Barshov,

733 F.2d 842, 851 (11th Cir. 1984) ("The duty to
investigate arises only when the party alleging

misconduct makes an adequate showing of extrinsic influence to
overcome the presumption of

jury impartiality.").

We adopt the approach of the several federal circuits. In
situations such as the case

before us, the trial court should consider the totality of the
circumstances and determine whether

a party presented credible allegations of bias that undermine
the prior determination of

impartiality reached by the court at the conclusion of the voir
dire
process. Cf. Haddad v.

Commonwealth, 229 Va. 325, 330, 329 S.E.2d 17, 20 (1985)
(holding that Virginia courts should

be reluctant to presume prejudicial misconduct by jurors);
Patterson v. Commonwealth, 39

Va. App. 658, 669, 576 S.E.2d 222, 228, (2003) (noting
impartiality is evaluated by examining

the entire voir dire); David v. Commonwealth, 26 Va. App.
77, 81, 493 S.E.2d 379, 381 (1997)

(noting juror impartiality is a factual determination of the
trial court). In this case, we find the

trial court did not err in refusing to investigate the
allegation of potential bias. Appellant was not

prejudiced by the trial court’s refusal to conduct a hearing
under these circumstances.

Appellant does not allege that the juror answered a voir dire
question untruthfully. As

the trial court noted, the veniremen were not asked if they knew
Lane. If appellant believed an

acquaintance with Lane was an important determinate of possible
bias, he had the opportunity to

ask that question. As the Supreme Court noted in a case
questioning juror bias at the conclusion

of a trial:

[I]t ill serves the important end of finality to wipe the slate
clean

simply to recreate the peremptory challenge process because

counsel lacked an item of information which objectively he
should

have obtained from a juror on voir dire examination.

McDonough Power Equip., 464 U.S. at 555. Cf. LeVasseur v.
Commonwealth, 225 Va. 564,

582, 304 S.E.2d 644, 653 (1983) (affirming a conviction where
the defendant was given "every

reasonable opportunity to ask relevant questions which would be
designed to elicit bias or

prejudice on the part of prospective jurors").

Additionally, the information from Lane did not credibly allege
any favoritism toward the

victim or bias against appellant. Lane’s statement said only
that she knew the juror was her

supervisor two years earlier and that the juror had never met
the victim. Apparently, they "made

eye contact and smiled" during voir dire.

However, the record contains no direct evidence that the juror
remembered Lane, and no

evidence suggests that the juror was influenced by any
recognition of her former subordinate.

The juror never saw Lane with the victim. Although appellant
alleges Lane was mentioned

numerous times during the victim’s testimony, he neglects to
point to those specific instances in

the record. This Court has found only one reference to "the
Lanes" in the victim’s testimony as

presented in the appendix.

Lane’s statement said only that she and the juror had a
working relationship at one point

almost two years earlier. Nothing in the statement suggested
they had seen each other in the

intervening years. Nothing suggested the juror had a particular
fondness for Lane. Nothing

suggested the juror had a bias in favor of Lane such that she
would ignore the trial court’s

instruction to evaluate the evidence and apply the law fairly.
Nothing in the record indicates any

of the jurors exhibited a lack of impartiality.

The juror who allegedly knew Lane did not attempt to contact the
trial court about any

bias. During voir dire she indicated that she could
evaluate the evidence fairly and impartially.

Although appellant’s counsel asked the veniremen to "let
the court know" if they recalled "an

influence on your ability to be impartial in this case,"
the juror never contacted the trial court.

Nothing suggests the juror ignored the final instructions from
the court.

In Green, 26 Va. App. 394, 494 S.E.2d 888, this Court considered
an analogous issue.

Instead of a message from a third party, however, Green involved
a note from the jury, which

had been excused to begin its deliberations. The note indicated
that "relatives of [one juror]

were involved in a drive-by shooting." Id. at 399, 494
S.E.2d at 890. During voir dire, the

potential jurors were asked if members of their "immediate
family [had] been the victim of a

crime involving the use of a firearm." Id. at 397, 494
S.E.2d at 889. This Court found, "[T]he

note did not establish an untruthful response on voir dire.
Moreover, the note clearly did not

facially demonstrate bias or partiality. Thus, defendant failed
to demonstrate both juror

misconduct and bias." Id. at 402, 494 S.E.2d at 891-92.
This conclusion applies to the present

case, perhaps more strongly as no juror contacted the
trial court and appellant makes no

allegations of an untruthful response during voir dire.

Appellant did not ask for any additional instruction to the jury
on personal biases. He did

not ask to question Lane on her relationship with the juror. On
appeal, he only speculates that a

bias existed that influenced the outcome of the trial. Nothing
in the record lends credence to this

assertion. The trial court did not err in denying appellant’s
motion to examine the juror nor in

denying the motion for a mistrial.

III. Failure to State an Offense in the Indictments

Three of the original indictments read:

The Grand Jury Charges that, in the City of Newport News: John

Byrd Nelson, On or about the 24th day of August, 2000, through

the 25th day of August, 2000, feloniously did cause [the
victim], a

child under the age of thirteen (13) years to commit sodomy, in

violation of ? 18.2-67.1 of the Code of Virginia (1950) as

amended.

The indictments also referenced Code ? 18.2-67.1(A)(1).

Appellant argued in a pretrial motion that this language
"failed to allege an offense under

Section 18.2-67.1." He explained that the indictments’
language suggested a violation of the

section of the statute criminalizing behavior that "causes
a complaining witness, whether or not

his or her spouse, to engage in such acts with any other
person." The Commonwealth explained

it did not intend to prosecute appellant under a theory that he
caused the victim to engage in

sodomy with a third person, but instead that appellant forced
the victim to commit sodomy with

him. The prosecutor then moved to amend the indictments to
clarify this intent. Appellant

objected, explaining, "our position is the indictments are
fatally defective as is, and therefore,

simply making an amendment to the language doesn’t make them
legally sufficient."

The trial court allowed the Commonwealth to amend the
indictments, eliminating the

"feloniously did cause" wording and replacing it with
"did feloniously engage in sodomy with."

Appellant appeals, arguing the indictment was fatally defective
and should have been dismissed,

not amended, by the trial court. The Commonwealth argues on
appeal that the indictments were

not fatally flawed and that the amendments did not change the
nature of the offense charged. We

agree with the Commonwealth.

"An indictment need not be drafted in the exact words of
the applicable statute so long as

the accused is given notice of the nature and character of the
offense charged." Black v.

Commonwealth, 223 Va. 277, 282, 288 S.E.2d 449, 451 (1982).

When considering on appeal whether an indictment charged a

particular offense, we limit our scrutiny to the face of the

document. When a statute . . . "contains more than one
grade of an

offense and each grade carries a different punishment[,] the

indictment must contain an assertion of the facts essential to
the

punishment sought to be imposed." Hall v. Commonwealth, 8

Va. App. 350, 352, 381 S.E.2d 512, 513 (1989).

Moore v. Commonwealth, 27 Va. App. 192, 198, 497 S.E.2d 908,
910-11 (1998). Additionally,

Code ? 19.2-220 states, "In describing the offense, the
indictment or information may use the

name given to the offense by the common law, or the indictment
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 original indictment here alleged appellant
"caused" the victim to commit sodomy in

violation of Code ? 18.2-67.1.[9]
The indictment mentioned only two people, appellant and the

victim. The language of the indictment did not exclude the
possibility that appellant was the

person with whom the victim was "caused" to commit
sodomy. The use of "caused," as opposed

to "engaged in," in this context was not a fatal
variance. See Morris v. Commonwealth, 33

Va. App. 664, 668, 536 S.E.2d 458, 460 (2000) (finding the
difference between the terms

"adjudicated" and "determined" did not
create a fatal variance in an indictment for driving after

having been adjudicated an habitual offender). Therefore, the
indictment was not void when it

was amended.

Appellant argues the precedents of Powell v. Commonwealth, 261
Va. 512, 552 S.E.2d

344 (2001), and Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d
411 (1976), require that this

Court overturn his convictions. We find these cases are not
controlling here.

Powell did involve an amendment to an indictment. However,
Powell did not argue the

original indictment was void; he argued the amendment
"impermissibly expanded the nature and

character of the charges." 261 Va. at 532-33, 552 S.E.2d at
356. In Powell, the Commonwealth

amended the capital murder indictment to add two alternative and
additional counts to the

indictment. Id. at 534, 552 S.E.2d at 356-57. The Supreme Court
found the amendment allowed

the fact finder to convict Powell of an additional offense
of capital murder under Code

? 18.2-31(5). Id. Appellant does not argue the amendment
allowed the fact finder to convict

him of two offenses on each indictment instead of one.
Therefore, Powell does not control our

decision here.

Wilder is likewise inapplicable to the case before us. Wilder
was indicted for

"possession" of a stolen credit card, which the
Supreme Court held did not describe a crime

under the Code section with which he was charged. 217 Va. at
147-48, 225 S.E.2d at 413.

Appellant argues his case is similar as the indictments charging
sodomy failed to name a third

person with whom appellant "caused" the victim to
engage in sodomy, a different type of

sodomy under Code ? 18.2-67.1(A).[10]

We find the original indictments, although oddly worded, did
describe a crime under

Code ? 18.2-67.1(A) with sufficient specificity to provide
notice to appellant. The indictments

listed only two names, appellant and the victim, as the people
involved in the circumstances.

The language was sufficient to "give the accused notice of
the nature and character of the offense

charged." Id. at 147, 225 S.E.2d at 413.[11]

IV. Denial of Motion for a Bill of Particulars

"[W]hether to require the Commonwealth to file a bill of
particulars is a matter that falls

within the sound discretion of the trial court . . . ."
Walker v. Commonwealth, 258 Va. 54, 63,

515 S.E.2d 565, 570 (1999). Appellant argues the trial court
abused this discretion because he

required a bill of particulars to give him notice of the
particular acts of sodomy that each

indictment alleged, especially as the indictments alleged sodomy
on the same day and with the

same victim. We find the trial court did not abuse its
discretion in denying his motion.

"‘The purpose of a bill of particulars is to state
sufficient facts regarding the crime to

inform an accused in advance of the offense for which he is to
be tried. He is entitled to no

more.’" Swisher v. Commonwealth, 256 Va. 471, 480, 506
S.E.2d 763, 768 (1998) (quoting

Hevener v. Commonwealth, 189 Va. 802, 814, 54 S.E.2d 893, 899
(1949)). Appellant knew

sufficient facts about the Commonwealth’s case without a bill
of particulars. He heard the victim

testify at a preliminary hearing regarding the particular acts
of sodomy committed with appellant

on the day in question. He had a transcript of that hearing.
Prior to the trial in which he was

convicted, appellant heard the victim testify on these same
indictments at a previous trial that

ended in a mistrial.

A bill of particulars could not have provided appellant with any
more information than he

already had. The trial court did not abuse its discretion in
denying appellant’s motion.

V. Failure to Consolidate Sodomy Indictments

Appellant argues Blockburger v. United States, 284 U.S. 299
(1932), prohibits more than

one indictment for the same offense when the indictments allege
the same elements. He

contends, therefore, the several convictions of sodomy under
Code ? 18.2-67.1(A)(1) were

unconstitutional. Appellant misapplies Blockburger.

Appellant was charged with three counts of sodomy, all occurring
on the same day and

with the same victim. Appellant made a motion to consolidate the
three sodomy indictments into

one, as they described the same offense facially. The trial
court denied the motion. The

Commonwealth’s evidence proved three different acts of sodomy
occurred between the victim

and appellant on the day alleged in the indictments. Appellant
does not deny that three "separate

volitional acts" occurred. Instead, he argues they were
part of a continuing "transaction," best

viewed as one crime.

The issue of [whether double jeopardy prohibits] multiple

punishments actually arises in two contexts. First, two or more

statutes may proscribe a particular course of conduct as
criminal

offenses. Second, a defendant’s conduct may constitute more
than

one violation of a single criminal proscription. In either
context,

the question is what punishments are constitutionally
permissible.

The question of what punishments are constitutionally
permissible

is not different from the question of what punishments the

legislature authorized. The legislature in its discretion may

determine the appropriate "unit of prosecution" and
set the penalty

for separate violations. The double jeopardy clauses prohibit
the

courts from exceeding the legislative authorization by imposing

multiple punishments for the same offense.

Jordan v. Commonwealth, 2 Va. App. 590, 593-94, 347 S.E.2d 152,
154 (1986) (citations and

footnote omitted). The question here, therefore, is whether Code
? 18.2-67.1(A) authorizes

multiple punishments in the context of this case. We find the
legislature intended to allow

multiple units of prosecution in cases such as this.

Code ? 18.2-67.1(A) proscribes "cunnilingus, fellatio,
anallingus, or anal intercourse

with a complaining witness." (Emphasis added.) This
disjunctive language indicates that the

legislature intended each act constitute a discrete unit of
prosecution. We find Kelsoe v.

Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983), is analogous
to this case. In Kelsoe, the

Supreme Court held a defendant could be convicted of three
offenses of brandishing a firearm

for pointing the gun at three different people on the same
occasion. Id. See also Shears v.

Commonwealth, 23 Va. App. 394, 477 S.E.2d 309 (1996) (allowing
two convictions of

possession of illegal substances).

Given the legislative intent, as indicated by the language of
the statute, the trial court here

did not err in denying appellant’s motion for merger of the
indictments.

VI. Conclusion

We find appellant’s arguments are without merit. We affirm his
convictions.

Affirmed.

 

FOOTNOTES:

[1]Appellant had
an earlier trial that ended with a hung jury. During oral argument on this

appeal, Judge Frank realized his wife sat on that earlier jury.
Although Judge Frank offered to

recuse himself, the parties indicated they did not object to him
remaining on the panel.

 

[2]As most of the
particulars of the offenses are not directly relevant to appellant’s

arguments, the specific factual bases for the convictions are
not discussed in this opinion.

 

[3]Appellant was
allowed access to Dr. John Lee’s records, the physician who initially

discovered the victim was hearing voices and who prescribed
medication for the condition prior

to these incidents. Dr. Lee testified at trial.

 

[4]The trial
court previously allowed appellant and the Commonwealth to review the

subpoenaed records of Dr. Lee, who treated the victim prior to
the incident date.

 

[5]Materiality
and prejudice are different concepts. See Neeley v. Commonwealth, 17

Va. App. 349, 356-57, 437 S.E.2d 721, 725 (1993) (discussing
relevance, materiality, and

prejudice as three different concepts).

 

[6]While a party
must aver an affidavit that requested writings and/or objects are material,

nothing in the Rules suggest this statement by a party is
binding on the court or non-reviewable.

 

[7]A criminal
defendant does not have a right to discovery, except as to exculpatory

evidence. See Weatherford v. Bursey, 429 U.S. 545, 559-60 (1977)
(explaining the Constitution

does not include a general right to discovery in criminal
cases); Brady v. Maryland, 373 U.S. 83,

87 (1963) (finding the state must provide a defendant with
information that could be used to

impeach the state’s witnesses); Lowe v. Commonwealth, 218 Va.
670, 679, 239 S.E.2d 112, 118

(1977) ("There is no general constitutional right to
discovery in a criminal case."); Knight v.

Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994)
(finding due process does

require disclosure of exculpatory evidence). However, the case
law in Virginia clearly gives a

defendant the right to request a subpoena duces tecum for
evidence that is inculpatory or

exculpatory, as long as the object of the subpoena is material
to the case. See Cox v.

Commonwealth, 227 Va. 324, 328-29, 315 S.E.2d 228, 230-31 (1984)
(finding documents

requested by Cox in a subpoena duces tecum and used by
the Commonwealth to prove its case

were "material, and that denying the defendant access
thereto violated her constitutional right

[under Article I, ? 8 of the Virginia Constitution] ‘to call
for evidence in [her] favor’").

 

[8]Lane indicated
only that she recognized the juror as her supervisor from a job that she

held two years previous to the trial. She did not describe the
relationship as personal or even

friendly. She did indicate the victim was not living with her
when she held the job. Appellant

never asked to examine Lane regarding the nature of her
relationship with the juror.

 

[9]Whether with
the appellant or a third person, the statute criminalizes both behaviors as

"sodomy" and provides the same sentencing range.

 

[10]Appellant
also seems to argue the indictments did not specify that the victim and

appellant were not married (an element of one type of sodomy
listed in Code ? 18.2-67.1(A)).

Appellant mentioned this portion of the statute while arguing to
the trial court. However, he did

not make the argument to the trial court that he now proposes on
appeal. Therefore, he has not

preserved this part of his argument for appeal. See Chase v.
Commonwealth, 37 Va. App. 194,

197, 555 S.E.2d 422, 424 (2001) (explaining the same argument
must be made to the trial court

to preserve the particular issue for appeal).

 

[11]The
Commonwealth has never argued that the indictments were sufficient to charge

sodomy under the second category criminalized by the Code
section; therefore, we need not

consider appellant’s arguments on that issue.


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