Crawford v. Commonwealth , 22 Va. App. 663 ( 1996 )

ELDER, Judge.

Judea Summerbell Crawford (appellant) appeals his convictions for carnal knowledge of a child between thirteen and fifteen years of age (statutory rape), in violation of Code § 18.2-63, and crimes against nature, in violation of Code § 18.2-361. Appellant contends that the trial court erred in failing to grant his continuance motion after permitting the case to proceed on evidence substantially in conflict with the indictments and subsequently amending the indictments to conform to the evidence. Although we hold that the trial court erred, the error was harmless. We therefore affirm appellant’s convictions.

I.

FACTS

The record shows that appellant was indicted on October 25, 1993 in the Circuit Court of Augusta County for (1) feloniously having sexual intercourse with Tina Crawford (the victim), his daughter, who at the time was under age thirteen, in violation of Code § 18.2-61; and (2) feloniously causing the victim, who at the time was under age thirteen, to perform fellatio on him, in violation of Code § 18.2-67.1.

During appellant’s jury trial, on June 16 and 17, 1994, the victim testified that she could not recall whether the alleged offenses occurred in the summer of 1983 or 1984. The Commonwealth’s evidence showed that the victim, who was born on April 16, 1971, was under age fifteen when the alleged incidents occurred, but may not have been under age thirteen, as required under the charged offenses.

At the conclusion of the Commonwealth’s case in chief, appellant moved to strike the evidence because it did not prove that the victim was under age thirteen at the time of the alleged offenses. The Commonwealth agreed, but requested that the trial court allow it to proceed on “lesser included” offenses based on the same indictments. Appellant argued that Code § 18.2-63 (carnal knowledge of a child thirteen or fourteen years of age—statutory rape) was not a lesser included offense of Code § 18.2-61, and that Code § 18.2-361 (crimes against nature) was not a lesser included offense of Code § 18.2-67.1. The trial court 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 in the case, provided the amendment does not change the nature or character of the offense charged.

Appellant then requested a continuance, pursuant to Code § 19.2-231, which permits a trial court to continue a case where an amendment operates as a surprise to the defendant. Appellant argued that the trial court’s amendment of the indictments caused him to defend charges covering a different time period and precluded him from gathering relevant medical or alibi evidence. The trial court overruled appellant’s continuance motion after concluding that appellant was not “surprised” by the amendments. The trial court stated that appellant never proffered any evidence which would have assisted in his defense of the amended charges; rather, appellant’s only defense to the charges was that he never sexually abused the victim at any point in his life.

At the conclusion of the evidence, the trial court permitted the Commonwealth to amend the indictments to allege (1) carnal knowledge of a child between thirteen or fourteen years of age—statutory rape, in violation of Code § 18.2-63; and (2) crimes against nature, in violation of Code § 18.2-361. The jury convicted appellant on both counts, and the trial court sentenced appellant to serve ten years in the penitentiary for statutory rape and twenty years in the penitentiary for unnatural acts with the victim. Appellant now appeals to this Court.

II.

CONTINUANCE OF THE CASE

The trial court allowed the Commonwealth to amend the two original indictments against appellant, pursuant to Code § 19.2-231, which states:

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 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).

Finding appellant was not surprised by the amendments, the trial court denied appellant’s continuance request. We hold that the trial court was plainly wrong in finding that the amendments did not operate as a surprise upon appellant and that the trial court erred in denying the continuance request. See Cardwell v. Commonwealth, 248 Va. 501, 508-09, 450 S.E.2d 146, 151 (1994)(holding that a trial court’s ruling on a continuance motion will not be reversed on appeal unless it was plainly wrong), cert. denied, — U.S.-, 115 S.Ct. 1826, 131 L.Ed.2d 747 (1995).

Assuming without deciding that the amended charges were lesser included offenses of the original charges,¹ the Commonwealth nevertheless placed appellant in the position of defending himself as to a different time period (twelve months later than the original charged offenses). The variance in the applicable time periods operated as a “surprise” upon appellant, irrespective of whether his right to a fair trial was prejudiced. See generally Willis v. Commonwealth, 10 Va.App. 430, 438-39, 393 S.E.2d 405, 409 (1990)(under facts of case, affirming trial court’s finding of lack of surprise).

The trial court correctly noted that appellant’s defense to the original charges was that he never, at any time, sexually abused the victim.² While appellant presented the same defense to the amended charges, the trial court did not afford appellant an opportunity to gather factual information regarding an alibi and records to prove that he did not sexually abuse the victim during the summer of 1984. The record reveals that appellant met his minimal burden of explaining to the trial court how the presentation of his defense would have changed in confronting the amended indictments. For example, appellant informed the trial court that a continuance might have allowed him to locate alibi witnesses or alibi evidence proving his whereabouts during the period in question. Appellant also informed the trial court that a continuance might have afforded him the chance to review the victim’s medical record's from the summer of 1984 in an effort to locate information tending to discredit her version of events. We hold that the evidence did not support the trial court’s finding of lack of surprise; therefore, the trial court was plainly wrong in denying appellant’s continuance motion. See Naulty v. Commonwealth, 2 Va.App. 523, 527, 346 S.E.2d 540, 542 (1986)(“A factual finding made by the trial court is binding on appeal unless plainly wrong”).

Although the trial court erred in denying appellant’s motion for a continuance, appellant failed to proffer to the trial court, prior to the conviction order becoming final, specific evidence that he wished to present on his behalf. Therefore, the trial court’s decision, while erroneous, did not deprive appellant of his constitutional right to investigate, evaluate, and call favorable evidence to confront the amended charges against him. See Va. Const, art. I, § 8. Appellant had up to twenty-one days after sentencing in which to proffer any specific evidence which would have assisted in defending himself against the amended charges or to assert that he had valid leads and needed additional time to pursue them. See Rule 1.1 (“all final judgments ... shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer”).

Without a proffer of evidence in the record, appellant gives us no basis on which to decide that the trial court’s error was not harmless beyond a reasonable doubt. See Lavinder v. Commonwealth, 12 Va.App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc )(holding that constitutional error must be harmless beyond a reasonable doubt); 17 Am.Jur.2d Continuance § 102 (1990 & Supp. Apr. 1995)(“The denial of a continuance motion is not harmful error where it is not shown that the defendant was prejudiced in his defense on the merits”). While prejudice to the defendant is not a factor in a trial court’s determination of whether the defendant is “surprised” by an amendment, prejudice is a factor in determining whether a decision should be reversed on appeal. As we held in Lowery v. Commonwealth, 9 Va.App. 304, 387 S.E.2d 508 (1990), where a trial court abuses its discretion in denying a continuance request, the complaining party must still show that the trial court’s error was prejudicial. We explained in Lowery:

Even if we assume arguendo that the trial court abused its discretion in denying [the defendant] a recess, we are unable to determine whether prejudice resulted. The record before us is silent regarding whether [the witness’] testimony would have supported [the defendant’s] alibi defense. Instead, [the defendant] asks us to speculate that, because [the witness] might have provided alibi testimony, he was prejudiced by the trial court’s refusal to grant his attorney a recess to speak with her. Prejudice, however, may not be presumed; it must appear from the record.

Id. at 307, 387 S.E.2d at 510 (citing Bradley v. Poole, 187 Va. 432, 433, 47 S.E.2d 341, 341 (1948)). In this case, we cannot speculate as to how appellant was prejudiced by the trial court’s erroneous decision that the amendments did not “surprise” appellant.

For these reasons, we affirm appellant’s convictions.

Affirmed.

1 . This issue is not before us on appeal. Furthermore, appellant conceded that the trial court properly amended the charges at the Commonwealth’s request.

2 . Although appellant’s defense was the same, the change in dates nonetheless could have been significant. Appellant may have been able to identify "alibi” evidence for 1984 but not for 1983. Presentation of alibi evidence for 1984 would have strengthened his claim that he never, at any time, sexually abused the victim.