Marvin Seay Jones v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Malveaux and Athey
UNPUBLISHED
Argued by teleconference
MARVIN SEAY JONES
MEMORANDUM OPINION* BY
v. Record No. 1151-19-2 JUDGE WILLIAM G. PETTY
JUNE 2, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Joseph J. Ellis, Judge
John M. Spencer (Spencer, Meyer & Koch, PLC, on brief), for
appellant.
Rachel L. Yates, Assistant Attorney General (Mark R. Herring,
Attorney General; Brittany A. Dunn-Pirio, Assistant Attorney
General, on brief), for appellee.
Marvin Seay Jones appeals his conviction for indecent custodial liberties with a child, in
violation of Code § 18.2-370.1 and contributing to the delinquency of a minor, in violation of Code
§ 18.2-371. On appeal, Jones argues that the trial court erred in amending the indictment for carnal
knowledge to allege indecent custodial liberties with a child. He also argues that the trial court
erred in denying his motion to strike the evidence. For the following reasons, we disagree and
affirm.
I. BACKGROUND
Because this is an unpublished opinion that carries no precedential value and the parties
are fully conversant with the record, we recite only the facts relevant to our analysis. Marvin
Seay Jones was indicted for carnal knowledge of a child thirteen years of age or older but
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
younger than fifteen years of age, in violation of Code § 18.2-63. At the conclusion of the
Commonwealth’s evidence, Jones made a motion to strike the evidence; the Commonwealth then
moved to amend the indictment to unlawfully and feloniously taking custodial indecent liberties
with a minor, a violation of Code § 18.2-370.1. The indictment alleged that the offense occurred
on or between February 20, 2017, and May 31, 2018. The trial court, over Jones’s objection,
granted the Commonwealth’s motion and amended the indictment.
The evidence, reviewed in a light most favorable to the Commonwealth, established that
for over eight years, Jones had been dating and living with the victim’s aunt. The victim, R.L.,
testified that he thought of Jones “as an uncle.” Jones would spend a lot of time with R.L.’s
family, including R.L. Jones and R.L. would spend time together playing video games or sports.
R.L. would also spend the night at Jones’s home and vice versa. R.L. testified that Jones bought
R.L. things, including video games, a ring, a cell phone, and a basketball net. R.L. testified that
when he was “[a]round thirteen or fourteen,” while they were either sleeping on the same air
mattress or on a bottom bunk together, Jones touched R.L.’s penis with his hand and mouth.
R.L. could not remember if it happened the first time at his house or at Jones’s house. R.L.
explained that Jones touched his penis over his clothing while R.L. pretended to sleep. Then
Jones put R.L.’s penis inside of Jones’s mouth. R.L. explained that at least two of the sexual
assaults occurred before he turned fifteen years old. R.L. testified that Jones began abusing him
one and a half years before trial. R.L.’s aunt (and Jones’s girlfriend) passed away August 21,
2017. R.L. testified that the first time Jones abused him was before his aunt passed away. The
next time it occurred was after R.L.’s aunt passed away. R.L. was abused more than one time at
his house and more than one time at Jones’s house. Sometimes R.L. would wake up with his
pants unbuttoned.
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II. ANALYSIS
On appeal, Jones first argues that the trial court erred in amending the indictment of carnal
knowledge to custodial indecent liberties. Second, he argues that the trial court erred in denying his
motions to strike the evidence. For the following reasons, we disagree and affirm.1
A. Amendment to the Indictment
Jones argues that the trial court erred in permitting the Commonwealth to amend the
indictment of carnal knowledge to custodial indecent liberties. Specifically, Jones argues that
according to Blockburger v. United States, 284 U.S. 29 (1932), indecent liberties is not a
lesser-included offense to carnal knowledge and, therefore, the amendment should not have been
allowed. We disagree; the resolution of this case is governed by statute, not Blockburger.2
Code § 19.2-231 governs the amendment of indictments, and provides in part:
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
1
Although not listed as one of his assignments of error, Jones also argues in the body of
his brief and at oral argument that the trial court should have arraigned him on the amended
charge as required by Code § 19.2-231. Jones, however, made no objection to the lack of an
arraignment on the amended indictment at trial as required by Rule 5A:18. “The purpose of
[Rule 5A:18] is to allow the trial court a fair opportunity to resolve the issue at trial, thereby
preventing unnecessary appeals and retrials.” Creamer v. Commonwealth, 64 Va. App. 185, 195
(2015); see also Simmons v. Commonwealth, 54 Va. App. 594, 606 (2009) (affirming conviction
despite trial court’s failure to arraign the appellant on a charge because failure to arraign “could
only have rendered the resulting judgment voidable if it had been subject to a proper and timely
objection”). Because Jones failed to object at trial and thus afford the trial court an opportunity
to address the issue, we will consider the argument waived and will not address its merits.
2
Because the statutory analysis is the best and narrowest grounds to dispose of this
appeal, we decline to consider whether custodial indecent liberties is a lesser-included offense of
carnal knowledge. See Commonwealth v. White, 293 Va. 411, 419 (2017) (“As we have often
said, ‘the doctrine of judicial restraint dictates that we decide cases “on the best and narrowest
grounds available.’” (alteration omitted) (quoting Commonwealth v. Swann, 290 Va. 194, 196
(2015) (per curiam))).
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amendment does not change the nature or character of the offense
charged.
(Emphasis added).
“In determining whether the trial court made an error of law, ‘we review the trial court’s
statutory interpretations and legal conclusions de novo.’” Rollins v. Commonwealth, 37
Va. App. 73, 79 (2001) (quoting Timbers v. Commonwealth, 28 Va. App. 187, 193 (1998)).
“The purpose of an indictment ‘is to give an accused notice of the nature and character of the
accusations against him in order that he can adequately prepare to defend against his accuser.’”
Walshaw v. Commonwealth, 44 Va. App. 103, 109 (2004) (quoting King v. Commonwealth, 40
Va. App. 193, 198 (2003)). Code § 19.2-231 “is remedial in nature and is to be liberally
construed in order to achieve the laudable purpose of avoiding further unnecessary delay in the
criminal justice process by allowing amendment, rather than requiring reindictment by a grand
jury.” Powell v. Commonwealth, 261 Va. 512, 533 (2001); see also Sullivan v. Commonwealth,
157 Va. 867, 877 (1931) (“The manifest purpose of this statute is to allow amendments which
avoid unnecessary delays and further the ends of justice, without prejudice to the substantial
right of the accused to be informed of the accusation, and to one fair trial on the merits.”).
“Moreover, where there is ‘similarity of purpose and subject matter’ of the Code sections
involved, ‘an amendment to an indictment [that merely] changes the Code provision under which
a defendant is charged . . . does not change the nature or character of the offense charged and is
permissible under the provisions of [Code] § 19.2-231.’” Dunaway v. Commonwealth, 52
Va. App. 281, 297 (2008) (alterations in original) (quoting Edwards v. Commonwealth, 218 Va.
994, 1003 (1978)).
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Code § 18.2-63, the carnal knowledge statute, provides in pertinent part, “If any person
carnally knows, without the use of force, a child thirteen years of age or older but under fifteen
years of age, such person shall be guilty of a Class 4 felony.”
The taking indecent liberties statute, Code § 18.2-370.1, states,
Any person 18 years of age or older who . . . maintains a custodial or
supervisory relationship over a child under the age of 18 and is not
legally married to such child and such child is not emancipated who,
with lascivious intent, knowingly and intentionally . . . (vi) sexually
abuses the child as defined in subdivision 6 of § 18.2-67.10 is guilty of
a Class 6 felony.
The custodial indecent liberties statute has a similarity of purpose and subject matter as
the carnal knowledge statute. Both indictments charged Jones with sexually abusing a minor
victim. Under the facts of this case, the evidence necessary to prove criminal conduct under both
statutes was identical. The evidence revealed that, on more than one occasion, Jones put the
victim’s penis in his mouth while the victim was attempting to sleep. The victim was under the
age of eighteen—“thirteen or fourteen.” Jones “loved [the victim] like family,” spending time
with him and buying him gifts. Jones dated R.L.’s aunt for eight years and continued to spend
time with R.L.’s family even after R.L.’s aunt died. Accordingly, the amendment did not change
the nature or character of the offense charged.
As we noted in Pulliam v. Commonwealth, 55 Va. App. 710, 717 (2010) (emphasis
added), in an amendment to the indictment case, “[w]e do not compare the elements of the
offense, but the underlying conduct of appellant.” Cf. Blockburger v. United States, 284 U.S. 29(1932). Thus, Jones’s argument that the amendment should not have been permitted because the
elements of the two offenses are not identical fails. Additionally, Jones argues that the
amendment was prohibited because it required the Commonwealth to prove “lascivious intent, to
knowingly and intentionally sexually abuse the victim,” while no particular intent is required for
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custodial indecent liberties. As we noted in Pulliam, however, a variation in the required intent
to be proven does not change the general nature or character of the offense. Pulliam, 55
Va. App. at 717-18; see also Dunaway v. Commonwealth, 52 Va. App. 281, 292 (2008) (holding
that nature and character of offense not changed where amendment changed cocaine possession
amount from “2.5 kilograms but less than 5 kilograms” to “at least 5 kilograms”). Accordingly,
“[b]ecause the underlying conduct of both charges was essentially the same, and the purpose and
subject matter of each charge were similar, we find the trial court did not err in allowing
the amendment.” Pulliam, 55 Va. App. at 718.
B. Sufficiency of the Evidence
Next, Jones argues that the evidence was insufficient to support denying his motion to
strike. Specifically, Jones argues that the victim’s testimony was inherently incredible because
he changed his version of the events multiple times. We disagree.
When an appellant challenges the sufficiency of the evidence supporting a conviction,
“the judgment of the trial court shall not be set aside unless it appears from the evidence that
such judgment is plainly wrong or without evidence to support it.” Code § 8.01-680. When
reviewing the sufficiency of the evidence, this Court “must . . . ask whether ‘any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’” Cheung
v. Commonwealth, 63 Va. App. 1, 8 (2014) (quoting Crowder v. Commonwealth, 41 Va. App.
658, 663 (2003)). “If there is evidence to support the conviction, an appellate court is not
permitted to substitute its own judgment for that of the finder of fact, even if the appellate court
might reach a different conclusion.” Id. (quoting Conrad v. Commonwealth, 31 Va. App. 113,
123 (1999) (en banc)). “This deferential standard of review ‘applies not only to the historical
facts themselves, but [also to] the inferences from those facts.’” Bennett v. Commonwealth, 69
Va. App. 475, 492 (2018) (alteration in original) (quoting Crowder, 41 Va. App. at 663 n.2).
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Furthermore, “it is the province of the jury, rather than an appellate court, to weigh the
facts and to judge the credibility of the . . . witnesses.” Commonwealth v. Presley, 256 Va. 465,
470 (1998). This is because the factfinder “has the opportunity to see and hear that evidence as it
is presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138 (1995). Thus, the appellate
court will accept the determination of the credibility of trial testimony “unless, ‘as a matter of
law, the testimony is inherently incredible.’” Nobrega v. Commonwealth, 271 Va. 508, 518
(2006) (quoting Walker v. Commonwealth, 258 Va. 54, 70-71 (1999)). For testimony to be
inherently incredible, as a matter of law, “it must be either so manifestly false that reasonable
men ought not to believe it, or it must be shown to be false by objects or things as to the
existence and meaning of which reasonable men should not differ.” Cardwell v.
Commonwealth, 209 Va. 412, 414 (1968) (citation omitted). In other words, it must be “so
contrary to human experience as to render it unworthy of belief.” Fisher v. Commonwealth, 228
Va. 296, 299 (1984).
R.L. testified that Jones molested him several times when they slept in the same bed. He
explained that Jones sexually abused him by using his hand and his mouth to touch R.L.’s penis.
By convicting Jones, the jury determined that R.L. was credible and that Jones’s testimony in his
defense was not. Nothing in R.L.’s testimony renders it “so contrary to human experience as to
render it unworthy of belief.” Id. Therefore, we affirm Jones’s convictions because R.L. was
not inherently incredible.
III. CONCLUSION
For the foregoing reasons, the convictions are affirmed.
Affirmed.
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