Barbara Gail Watkins v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
BARBARA GAIL WATKINS
MEMORANDUM OPINION * BY
v. Record No. 0975-96-3 JUDGE JOHANNA L. FITZPATRICK
MAY 6, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Ross S. Haine, Assistant Public Defender,
for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Barbara Gail Watkins (appellant) was convicted in a bench
trial of the misdemeanor of contributing to the delinquency of a
minor in violation of Code § 18.2-371. On appeal, she contends
that the trial court erred in allowing amendment of the arrest
warrant and finding the evidence sufficient to convict. For the
following reasons, we affirm.
BACKGROUND
On or about December 9, 1995, Kelly Buck (Kelly), a
sixteen-year-old girl, who was not attending school remained home
alone. She told her father (Mr. Buck) that she was going to play
with friends, and that she would leave information regarding
where she could be located on the counter. Later, her mother
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(Mrs. Buck) called Kelly at home and spoke to a woman who was
with Kelly. The woman told Mrs. Buck that Kelly was going to see
"Ashley." Mrs. Buck later identified the woman's voice as being
that of appellant. When the Bucks arrived home around 4:00 p.m.,
Mrs. Buck saw appellant, a man, and Kelly in a car going down
their driveway. Inside the house, they found some of Kelly's
clothing missing, and no note or information regarding her
whereabouts. Mr. Buck called the police and filed a missing
person report.
Mr. Buck called appellant, whose son was a classmate of
Kelly's, several times but got no response. He went to
appellant's trailer between 8:30 and 9:00 p.m. that evening, but
found no one at home. Later that night, Officer Hickman of the
Rockbridge County Police Department also went to appellant's
trailer and knocked on the back door. Appellant answered the
door and denied that Kelly was in the trailer. However, the
following morning, appellant called the Bucks and told them that
Kelly was taking a bath and that she would bring Kelly home as
soon as she was finished. The Bucks went to the trailer and
retrieved Kelly, who had "hickies" (sic) on her neck. Appellant
was then arrested.
During trial on April 22, 1996, appellant made a motion to
strike at the close of the Commonwealth's case on the ground that
the evidence was insufficient to prove that appellant rendered
Kelly "in need of supervision" as charged in the warrant.
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Subsequently, the Commonwealth moved to amend the warrant. The
Statement of Facts reflects appellant's objections to the motion
to amend as follows:
[Appellant] objected to the [C]ommonwealth's
making a motion to amend after [appellant] had
made her motion to strike. [Appellant] also
objected to the motion to amend on due process
grounds, that the amended warrant was too vague to
adequately inform [appellant] of the nature of the
charges against her.
The trial court found that the Commonwealth had made a prima
facie case that appellant's actions constituted a serious threat
to the well-being of Kelly and allowed the Commonwealth to amend
the warrant. No request for a continuance was made.
Appellant and her boyfriend testified that Kelly was a
friend of appellant's son; that they picked her up from her home;
that she spent the night with them in appellant's trailer by
herself in the guest room; that appellant had not misled the
Bucks; and that they thought Kelly had her parents' permission to
spend the night.
At the close of the case, appellant renewed her motion to
strike, arguing that:
[T]he [C]ommonwealth had not made out a prima
facie case establishing that Kelly met the
additional definitions of delinquent, in need
of services, or abused or neglected as
defined in [S]ection 16.1-228, Code of
Virginia.
The court overruled the motion, and found that appellant's
actions "constituted a clear and substantial danger to the
child's health that qualified Kelly as a child in need of
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services."
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AMENDMENT OF THE WARRANT
Appellant first contends that the trial court erred in
allowing the Commonwealth to amend the warrant of arrest because
it expanded the breath of culpable behavior for which she could
have been found guilty and thus, changed the "nature and
character of the offense." We find no merit in this assertion.
The trial court acted within its discretion in allowing the
Commonwealth to amend the warrant. The applicable statute is
Code § 16.1-137, "Procedure on appeal when warrant defective,"
which provides in pertinent part as follows:
Upon the trial of the warrant on appeal the
court may, upon its own motion or upon the
request either of the attorney for the
prosecution or for the accused, amend the
form of the warrant in any respect in which
it appears to be defective. But when the
warrant is so defective in form that it does
not substantially appear from the same what
is the offense with which the accused is
charged, or even when it is not so seriously
defective, the judge of the court having
examined on oath the original complainant, if
there be one, or if he sees good reason to
believe that an offense has been committed,
then without examination of witnesses, may
issue under his own hand his warrant reciting
the offense and requiring the defendant in
the original warrant to be arrested and
brought before him. Upon the arrest of the
defendant on the new warrant and his
production or appearance in court the trial
shall proceed upon the new warrant. When
there is an amendment of the original warrant
the trial shall proceed on the amended
warrant. But whether the warrant is amended
or a new warrant is issued, the court before
proceeding to trial on the same may grant a
continuance to the prosecution or to the
defendant upon such terms as to costs as may
be proper under the circumstances of the
case; provided, however, that if the warrant
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be amended or if a new warrant be issued
after any evidence has been heard, the
accused shall be entitled to a continuance as
a matter of right.
(Emphasis added).
The trial court may permit amendment of the warrant at any
time before it renders a decision in the case. Code § 16.1-137
was intended to provide broad powers and abundant opportunity to
amend a defective warrant where justice so requires. See Harley
v. Commonwealth, 131 Va. 664, 667, 108 S.E. 648, 649 (1921)
(holding that reversal is not required "for formal imperfections
of [a] warrant unless the ends of justice require it").
Additionally, the Statement of Facts does not disclose that
appellant requested a continuance or argued surprise. See
Robinson v. Commonwealth, 111 Va. 844, 847, 69 S.E. 518, 519
(1910) (where "the accused did not ask for a continuance and
there is nothing to indicate that he was prejudiced" by the
amendment during trial, the irregularity is harmless). Thus,
appellant cannot now claim that the amendment was so prejudicial
that the trial court was required, as a matter of law, to deny
the motion to amend. See, e.g., George v. Commonwealth, 242 Va.
264, 411 S.E.2d 12 (1991), cert. denied, 503 U.S. 973 (1992).
Further, the amendment sufficiently apprised appellant of
the nature of the charges against her. In describing the nature
and character of an offense, it is not necessary to follow the
exact words of the statute. See Black v. Commonwealth, 223 Va.
277, 288 S.E.2d 449 (1982). Rules 3A:4 and 3A:6 may be satisfied
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by simply citing the statute at issue -- the elements of the
offense are deemed to be incorporated by reference. See Reed v.
Commonwealth, 3 Va. App. 665, 667, 353 S.E.2d 166, 168 (1987)
("By the citation of the statute in the indictment appellant was
informed of the essential elements of the case against him.").
In the instant case, the warrant correctly cited the statute
under which appellant was charged and convicted. The amendment
neither changed nor broadened the scope of the charge contained
in the warrant. Throughout the proceeding, appellant was aware
that the charges were based on Code § 18.2-371 and covered her
actions on December 9 and 10, 1995. There was no allegation of
surprise nor a request for the statutory remedy of a continuance.
Thus, the trial court properly allowed the amendment.
SUFFICIENCY
Appellant next argues that the evidence was insufficient to
prove that any action taken by appellant placed Kelly within the
prohibitions of Code § 16.1-228. 1 We disagree.
1
Code § 16.1-228 defines a "child in need of services" as "a
child whose behavior, conduct or condition presents or results in
a serious threat to the well-being and physical safety of the
child." Additionally,
to find that a child falls within these
provisions, (i) the conduct complained of
must present a clear and substantial danger
to the child's life or health or (ii) the
child or his family is in need of treatment,
rehabilitation or services not presently
being received, and (iii) the intervention of
the court is essential to provide the
treatment, rehabilitation, or services needed
by the child or his family.
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Clear and convincing evidence supported the trial court's
finding that Kelly was both a "child in need of services" and one
"in need of supervision" under Code § 16.1-228. Kelly was taken
by appellant to her home where she spent the night with
appellant's son without her parents' permission and was involved
in sexual activity. Appellant was involved in preplanning this
event, took the child from her home, lied both to Kelly's parents
and the police about her departure and the circumstances
surrounding her overnight stay. The court was justified in
concluding that Kelly's family needed assistance and services to
regain control over their daughter and to remove appellant's
detrimental influence.
Sufficient facts also supported the court's conclusion that
Kelly was a "child in need of supervision." Although enrolled,
she did not regularly attend school. Her activities on December
9-10, 1995 showed an obvious lack of judgment and inability to
Code § 16.1-228 also defines a "child in need of supervision" as
inter alia,
A child who, without reasonable cause
and without the consent of his parent, lawful
custodian or placement authority, remains
away from or habitually deserts or abandons
his family . . . and (i) such conduct
presents a clear and substantial danger to
the child's life or health, (ii) the child or
his family is in need of treatment,
rehabilitation, or services not presently
being received, and (iii) the intervention of
the court is essential to provide the
treatment, rehabilitation or services needed
by the child or his family.
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attend to her own health and safety during the hours in which she
was supposed to have been in school. Thus, the court was
justified in concluding that its intervention was necessary to
provide services to Kelly and her family.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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