                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia


SAIFULLAH K. NIAZI
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2283-02-2                                   JUDGE JAMES W. BENTON, JR.
                                                                      MARCH 9, 2004
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                              Robert W. Duling, Judge Designate

                  William W. Tunner (Thompson & McMullan, P.C., on brief), for
                  appellant.

                  (Jerry W. Kilgore, Attorney General; Amy Hay Schwab, Assistant
                  Attorney General, on brief), for appellee. Appellee submitting on
                  brief.


        A trial judge convicted Dr. Saifullah Niazi of causing or creating a public nuisance, Code

§§ 48-2 and 48-5, and of permitting the continuation of a public nuisance, Code §§ 48-1 and 48-6.

Dr. Niazi contends that the trial judge committed five errors: (1) ruling that a limitation on

testimony could cure the presentment, which Dr. Niazi alleges was defective because it was based

upon conduct occurring more than a year prior to the date of the presentment, (2) considering

evidence of events that occurred outside the one-year limitation period circumscribing a

presentment, (3) finding Dr. Niazi guilty when a limited liability company owns and operates the

assisted living facility, which was alleged to be a nuisance, and owns the real property, (4) finding

Dr. Niazi guilty for failing to perform actions which were legally prohibited, and (5) ruling the



        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidence was sufficient to prove Dr. Niazi created and permitted a public nuisance to continue. We

hold that the public conduct of the residents of the assisted living facility was not Dr. Niazi’s

responsibility, and we reverse the convictions.

                                                     I.

        On June 27, 2000, a grand jury issued two presentments alleging that “Saifullah K. Niazi

unlawfully . . . caused . . . or created” and “unlawfully . . . permitted . . . to continue” a public

nuisance “from on or about May 1998 to May 2000” at an address in the City of Richmond. In his

opening statement at trial, the prosecutor indicated the evidence would prove that the Old Dominion

Adult Home failed to properly supervise and care for its residents and that, as a result, the residents

were improperly dressing for the weather, panhandling, disrupting traffic, and searching trash bins

for food. The prosecutor also asserted that the residents assaulted people and have been arrested for

drinking in public. The prosecutor was “not asking for the home to close down” but, instead, sought

to reform the manner in which the home was managed. The attorney for Dr. Niazi indicated that the

Home is not a hospital or nursing facility and that Dr. Niazi is limited by statute and state

regulations to the restraints he can impose on the residents.

        The evidence at trial proved Dr. Niazi is a psychiatrist and is the owner and chief executive

officer of Best Care, LLC. Best Care operates an assisted living and residential care facility for

adults, which is licensed by the Virginia Department of Social Services under the name Old

Dominion Adult Home. See Code § 63.2-100 and Code § 63.2-1800 through § 63.2-1808. The

Home, which is located in the Carytown section of the City of Richmond at the address listed in the

presentment, is licensed to house eighty-nine residents. The residents of the Home are either elderly

or suffer from some physical or medical handicaps, and they require assistance with daily activities,

help with taking medication, or some level of supervision. The evidence indicates that ninety




                                                    -2-
percent of the residents come to the Home after being discharged from a state mental hospital or

from a hospital’s psychiatric ward, and the residents are usually referred to the Home by the local

community services board, hospitals, a family member, or a social worker. The Home is subject to

the Department’s rules and regulations for licensed adult care residences.

        Several residents and merchants of Carytown testified about their experiences with some of

the Home’s residents. A merchant described one incident in which a customer ran into her store and

reported that a man, whom she could not awaken, was blocking the front doors. The merchant

called the police to have the man removed. When a police officer arrived, he recognized the man as

a resident of the Home. The officer surmised that the man had fallen asleep and did not get his

medication, and the officer took the man to the Home. The man’s clothes were soaked, and his

pants were “so big that they just fell down” when he walked.

        The merchant also testified that on another occasion when she passed one of the residents on

the sidewalk, the man “got right up in [her] face, and he said: Give me some money.” The merchant

testified that she did not feel “threatened” and told him she had no money. The man moved away

and went to another person seeking money. The merchant also testified that she had attended a

meeting about the residents and she concluded that Dr. Niazi’s plan to have an employee walk by “a

couple of hours a day, basically police the neighborhood to try to find the residents” was ineffective.

She also recalled that an employee from the Home came to her store twice when she was away and

left a card.

        Another merchant testified that one of the residents had panhandled in front of her store on

five or six occasions. When she asked him to stop, he responded that “[she did not] own the

sidewalk, and [she] could not tell him what to do.” As she asked him again to move, he “closed his

fist and came at [her] with his fist swinging.” She then called the police and the manager of the




                                                 -3-
Home. A police officer and the manager of the Home came and led the man away. The merchant

also testified that residents of the Home often “pick up cigarette butts, [and go] through trash cans”

but do not “necessarily interact with the customers or the store owners.”

       The merchant recalled that another resident, who often purchased coffee in her store,

constantly spilled the coffee on the sidewalk and “would throw up” on the sidewalk outside her

door. When he did so, another resident, Robert, would take him back to the Home. The merchant

described Robert as being “highly functional” and often did odd jobs for store owners. On one

occasion, however, she told him to leave her store after he asked her customers for a dollar. On

another occasion, a resident of the Home rushed into her store, asked her to call for an ambulance,

and said he did not want to return to the Home. Instead, she called the manager who came within

five minutes and took the protesting resident to the Home. She further testified that generally she

received a “fairly decent response” from the manager when she called about a resident and that she

was aware that some residents, including Robert, had been transferred from the Home.

       Another merchant, who also lived in Carytown, described aggressive panhandling by a

resident of the Home. She said the resident, who smelled of urine, became increasingly aggressive

and confronted her about thirty times. She also observed other residents of the Home eating items

they retrieved from the trash and aggressively asking for money to buy food. She described an

incident in which a resident was sitting at a bus stop in slippers and a robe, which was open. She

believed he had no clothes underneath the robe. She saw other residents walk into streets without

heeding traffic. She testified that she never called the manager when she observed these incidents.

       Several residents of the Carytown area testified about similar incidents of residents

panhandling, wearing clothing inappropriate for the weather, walking in the streets and knocking on

car windows, and displaying aggressive behavior and other inappropriate conduct. One resident




                                                 -4-
testified that she contacted the Department and the Home about the problems and that they

“move[d] a couple of people out, but not the . . . people . . . [she] saw every day.” Another resident

testified that she believed the Home had an obligation to supervise its residents when they are in the

neighborhood.

        Officer John Sheppard, a police officer assigned to the Carytown area, testified that he saw

several residents of the Home with open containers of alcohol in a park and charged them with

violating the city’s ordinance prohibiting open containers of alcohol. He also described residents

who walked in the street and solicited money or cigarettes from drivers. Officer Sheppard recalled

one incident involving a “simple assault” and testified that he would issue summonses for violations

committed by the residents who seemed competent and knew their conduct was wrong. When he

did so, he gave employees at the Home a copy of the summons so they would know of the court

dates. When he encountered residents who did not seem mentally competent he told them to go to

the Home or he returned them to the Home. He explained that “most of the time if any of the

residents were . . . causing . . . either [a] violation of some ordinance or criminal type activity, if we

asked them to go home, most of them understood . . . what we were asking them to do . . . and . . .

they would go back to the home.”

        The officer and the other witnesses testified about meetings the manager of the Home and

members of various civic and business associations attended. The officer described the topics as

follows:

                A: That the residents were wandering the streets; not properly
                clothed during the wintertime, either in short sleeve shirts, no
                shoes and socks on their feet; going through trash cans and eating
                out of trash cans; picking up cigarettes off the side of the street and
                smoking them; wandering into the trash on Cary Street; using the
                bathroom in the yards and alleyways behind the residents’ houses.
                And, actually, I think there was even an occasion where one of the




                                                   -5-
                residents wandered up into a resident’s house one morning while
                . . . the house owner was having breakfast.

                Q: And these were stressed to them in the meetings?

                A: Yes.

                Q: Do you remember whether a representative, Dr. Niazi, or [the
                manager] stating anything about -- to address these concerns from
                those meetings, if you recall?

                A: The one thing that was brought up in the meeting that I can
                remember is that these folks have rights. We can’t lock them up in
                the . . . home. We can’t make them stay there. They have rights.

                Q: That’s what you remember?

                A: That’s the one thing that I can remember. There may have
                been some other conversations . . . .

        Denise Bonaparte, an employee of the Department of Social Services who is responsible

for licensing adult homes, testified that residents of the Home “have freedom of movement” to

leave at their discretion. She also testified that the employees of the Home cannot forbid the

residents from going to the commercial area and its environs and further “cannot just arbitrarily

remove” the residents from the streets in the area. She further testified that the operators of the

Home “are trying to meet the requirements” of the licensing agency, that the Home is in

“substantial compliance” with licensing requirements, and that the Home is not in danger of

losing its license for violations cited during routine inspections.

        In response to the judge’s question about “Who actually places these individuals,” she

testified as follows:

                It could be anybody. It would be the local community services
                board. It could be a family member. It could be a social worker
                who makes the referral or the recommendation that this person
                needs what we call assisted living care. They may be unable to
                live alone. They may have difficulty with medication, not being
                able to determine which medication . . . to take at which time.




                                                 -6-
               They may have difficulty bathing. They need help with what we
               call daily living activities, and they need supervision.

She also testified that the Department’s employees monitor levels of supervision when they

conduct their inspections.

       After the Commonwealth concluded its evidence, Dr. Niazi testified that many of the

residents of the Home are persons who have been discharged from state mental hospitals. He

also testified that the Department and other social service agencies initially determine the level of

care the residents need and approve placement for them in “a nursing home, or personal

independent home, or assisted living like . . . Old Dominion.” He described the classification of

assisted living as follows:

                   [I]n assisted living, they have two levels of care in itself. One is
               called residential care, which means these people are really
               ambulatory. They are in remission or partial remission from their
               illness, whether mental or physical. And they pretty much need
               very minimal supervision. The only thing we really do for those
               people is to give them their medicine on time; and make sure that
               they are fed, give them all their meals; and, you know, they have a
               building which is adequately heated and cooled and very well
               maintained.

                   Beyond that, they can come and go anytime that they feel like
               it. They are not considered legally incompetent. They are all
               competent, unless you declare them incompetent through a Circuit
               Court. So technically the problems come in, because these people
               have exactly the same rights as citizens like anybody else. They
               can come and go freely from the home. . . . I can hire 200 staff
               members, but they can still go on their own anytime they feel like
               going and come back anytime. The home is only required to file a
               complaint of a missing person if the resident does not return within
               24 hours. And then we can file a complaint like that.

                  But they’re referred by the hospitals, social workers, and
               through UAI, Uniform Assessment. And they assign them the
               level of care. So they deem them appropriate for a licensed adult
               home.




                                                -7-
Dr. Niazi also testified that to remove a resident from the Home he had to give a reason and

thirty days notice and that he had removed some residents from the Home without their consent

“[t]o work with the merchants.”

       At the conclusion of the evidence, the trial judge found the following:

                   And, you know, I am very sympathetic to the people that have
               to live or work around this place when things aren’t properly
               supervised. And the deciding factor in my mind was not the shear
               number of incidents, which I counted over 40 different incidents,
               the factor in my mind is that it’s the same people over, and over,
               and over, and over. I mean, I almost feel like I know Robert, and
               I’ve never seen him before in my life. And so there is no question
               in my mind, based on the evidence that’s been received here today,
               that between the period of May 1999 and May 2000 that a public
               nuisance was created.

                  And then I listened very carefully at the end, and I was
               thinking: All right. The home can’t control who they get or who
               they don’t get. But the truth is if [a resident] was that much of a
               problem, they could have taken him and sent him somewhere else.
               The State is not forcing the home to keep these people. I know
               we’re doing the [Pontius Pilate] thing and washing our hands of
               some unfortunate individual. But when the home can’t be
               supervised, and hurting the rights of the residents and the
               businesses, then he has an obligation to do something about it.
               And during the period of May 1999 to May 2000, he didn’t.

       The trial judge convicted Dr. Niazi of two misdemeanors and directed him to devise a

plan of abatement, acceptable to the Commonwealth. A year later, another circuit court judge

sentenced Dr. Niazi to pay a fine of $10,000, of which $9,000 was suspended for twelve months,

on the conviction for causing a nuisance and to pay a fine of $1,000, suspended for twelve

months, on the conviction for permitting the nuisance to continue. This appeal followed.

                                               II.

       By a pretrial motion, Dr. Niazi objected that the presentments were fatally defective

because they charged two misdemeanor counts “from on or about May 1998 to May 2000” but

were issued on June 27, 2000, more than one year after May 1998. Noting that Code § 19.2-8


                                              -8-
provides that “[a] prosecution for a misdemeanor . . . shall be commenced within one year next

after there was cause therefor,” he argued that the presentments should be dismissed. Dr. Niazi

also argued that the judge could not know what testimony influenced the grand jury’s decision to

issue presentments spanning twenty-four months. The trial judge ruled that the presentments

were “not jurisdictionally flawed,” amended the presentments to reference the period from May

1999 to May 2000, and ordered that no evidence would be admitted about events occurring prior

to May 1999.

                                                (A.)

       Dr. Niazi argues that the trial judge erred when he ruled that the presentments, which

alleged that nuisances occurred more than a year prior to the date of the presentments, were not

“fatally defective.” We disagree.

       “[I]t is necessary where there is a statute of limitations (as in this case) barring the

prosecution after a certain time, that such facts should be stated in the indictment as will show

that the offense charged was committed within the statutory period.” Shiflett v. Commonwealth,

114 Va. 876, 877, 77 S.E. 606, 607 (1913). Not all defects require reindictment, however. Code

§ 19.2-231 provides, in pertinent part, as follows:

                   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.

       Prior to the presentation of evidence, the trial judge amended the presentments to cover

the period from May 1999 to May 2000. The amendments narrowed the time alleged in the

presentments and did not change the nature of the offense charged. See Puckett v.



                                                -9-
Commonwealth, 134 Va. 574, 584-85, 113 S.E. 853, 856 (1922); Flanary v. Commonwealth, 133

Va. 665, 667, 112 S.E. 604, 604 (1922). With the amendment, Dr. Niazi still had “notice of the

nature and character of the accusations against him” and raised no colorable claim that he could

not “adequately prepare to defend” himself against the charges. Willis v. Commonwealth, 10

Va. App. 430, 437-38, 393 S.E.2d 405, 409 (1990). Indeed, by narrowing the period of time, the

amendments had the effect of providing a greater protection to Dr. Niazi’s substantive rights

because they reduced his exposure to the potential number of events the prosecutor could prove.

Therefore, we disagree that the presentment was “fatally defective.” We hold that the defect was

only in the form of the indictment and that the trial judge did not err in ruling that the nature of

the offense was not changed by amending the presentments to narrow the time period of the

alleged nuisance.

                                                 (B.)

       Dr. Niazi further argues that the trial judge erred in considering evidence of events that

occurred prior to June 27, 1999. Specifically, Dr. Niazi refers to testimony given at trial

concerning an event that occurred on June 11, 1999, which was more than one year prior to the

date of the presentments.

       The record reflects, however, that the trial judge first rejected the argument that the

presentments were fatally defective. He then amended the presentment to limit its coverage to

the period from May 1999 to May 2000. No objection was raised to the period of time as

amended. Later, during the testimony of a witness at trial, the following occurred:

               Q: Can you tell us, the incident that you were writing about, was
               that on June 11, 1999?

               A: Yes, it was.

                            *     *       *       *       *       *       *



                                                - 10 -
               [Defense attorney]: Objection, Judge. That’s prior to the July ‘99
               dates.

               [Judge]: No. I’m letting them go from May 1999 to May 2000.

               [Defense attorney]: Okay, Judge.

       In view of the lack of objection earlier to the period of time as amended, the attorney’s

response at trial, “Okay, Judge” indicates the attorney had acquiesced to the ruling limiting the

evidence from May 1999 to May 2000. When a “defendant acquiesce[s] in the trial court’s

ruling, he may not challenge it on appeal.” Weeks v. Commonwealth, 248 Va. 460, 473, 450

S.E.2d 379, 388 (1994). See also Spruill v. Commonwealth, 221 Va. 475, 478-79, 271 S.E.2d

419, 421 (1980) (noting that defendant acquiesced in the ruling by responding “Very well” to the

ruling). For these reasons, we hold that this issue is barred by Rule 5A:18.

                                                 III.

       Dr. Niazi contends that Best Care, a limited liability company, owns and operates the

Home and that another limited liability company, Ampak, L.L.C., owns the real property. He

argues, therefore, that the trial judge erred in finding him guilty of creating or permitting a public

nuisance.

       On brief, Dr. Niazi notes that this issue arose in the circuit court at his sentencing

hearing, which was conducted by a judge who did not convict Dr. Niazi. At the sentencing

hearing, Dr. Niazi’s trial attorney asserted that he presented this information “not to suggest that

there is a jurisdictional defect; not to suggest that that should upset the findings of the Court; not

to suggest that in the way of a motion to dismiss.” The attorney indicated that he “wasn’t asking




                                                - 11 -
that it be thrown out or dismissed” but, rather, that he raised the issue “in case there was a need

for an amendment.”1

       We have held “there is no ruling for use to review” when an attorney “failed to obtain a

ruling” from the judge, “requested no relief,” and “was denied nothing by the trial court.” Fisher

v. Commonwealth, 16 Va. App. 447, 454-55, 431 S.E.2d 886, 890 (1993). This is the precise

circumstance that exists in this case. Accordingly, we hold that this issue is not properly before

us on appeal.

                                                IV.

       Dr. Niazi contends that the trial judge erred in finding him guilty for failing to perform

actions, which are legally prohibited. On brief, the Commonwealth “concedes that state

regulations prohibit [Dr.] Niazi from restricting a resident’s movement or implementing

curfews.” Citing the prosecutor’s argument at trial, the Commonwealth contends that Dr. Niazi

had “a duty of care to his residents” and “created the nuisance by not supervising these residents

in an effective manner.”

       The evidence in this record proved that the Home is a licensed adult residential facility

and that the residents are referred to the Home by hospitals and other social service agencies.

These agencies assign the residents to a level of care that suggests the residents can appropriately

live in an adult assisted living facility. No evidence tended to establish that the Home was not

operating in accordance with statutory mandate or the Department’s regulations when it

permitted the residents to move freely in the neighborhood of the Home.




       1
        We note, however, that during the trial the judge commented that “Mr. Niazi is the
owner of the property . . . . That’s stipulated.” The parties apparently assented to the ruling
because no objection was stated.


                                               - 12 -
       Bonaparte, the licensing administrator with the Department of Social Services, testified

that she supervises the inspections and monitoring of adult homes. She testified that the

residents of the Home are not patients and that Dr. Niazi cannot force the residents to dress for

the weather, but he can make recommendations to them. She also testified that the residents

cannot be restricted to the Home and that the administrators of the Home “cannot just arbitrarily

remove [the residents].” To remove a resident, the administrators would have to follow the

Department’s regulations. Bonaparte explained as follows:

               Q: If Dr. Niazi came and said, I want to help these merchants out.
               They’ve made a great investment. They’ve got a lot of money in
               their shops, and I want to do something for them. So I won’t let
               anybody out after 9:00 at night; would that cause your agency
               some concern?

               A: If someone called, and there is a complaint -- If I had -- If the
               inspector went out at 9:00 at night and found out that there was a
               restriction in terms of the resident’s movement, then she would
               right it up in the violation notice.

               Q: What are the restrictions with resident movement?

               A: They have no restrictions.

               Q: So if a resident wants to leave the premises and go out onto
               Cary Street, for any reason or purpose, does Dr. Niazi have to
               allow the resident to do that?

               A: Yes, he does.

       In Commercial Distributors, Inc. v. Blankenship, 240 Va. 382, 397 S.E.2d 840 (1990),

the personal representative of a person who had resided in a residential home providing adult

care brought a negligence claim against the home after the resident committed suicide. The

resident had a long history of mental illness and recurrent treatment. Id. at 385, 397 S.E.2d at

842. The day the resident died, he had left the home in the morning without anyone’s knowledge




                                               - 13 -
and jumped off a bridge. Id. at 387, 397 S.E.2d at 843. Holding that the adult home was not

negligent, the Supreme Court explained the duty of care that such homes are required to exercise:

                  Although the [adult care home] had a duty to exercise ordinary
               care for the safety of its residents, that duty was limited to its own
               premises. The [home] did not have a duty to supervise its residents
               after they had left its premises, as they were free to do, or to
               monitor their whereabouts on the streets of the city. Adult homes
               are neither hospitals, nursing homes, nor custodial institutions.
               They exist pursuant to statutes intended to provide a residence for
               persons under disabilities, offering those persons the greatest
               degree of freedom and participation in normal life consistent with
               their conditions.

                  . . . We further hold that subject to provisions of Code
               § [63.2-1808], such homes do not have a duty to care for the
               health, welfare, and safety of their residents when such residents
               are absent from the home’s premises.

Id. at 393, 397 S.E.2d at 846 (citations omitted).

       Bonaparte explained that, before a person is approved to live in the Home, an individual

assessment is made to determine the person’s suitability for an adult assisted living facility. She

said that if a resident later caused a problem, then the resident would be referred to a hospital for

an evaluation. She testified that the Home has complied with any recommendations for

additional staff that the licensing division previously had made. Bonaparte further testified that

the Home had taken corrective actions to address concerns about supervision and were in

substantial compliance.

       In summary, the evidence established that the Home is an adult residential facility which

assists the residents with their medication, provides shelter and food, and monitors the residents

to the extent that the residents may need an adjustment for medication or an evaluation by a

physician. These residents, some of whom have mental impairments, are classified by the state

as not requiring constant supervision. According to the evidence, the regulations under which




                                                - 14 -
the Home operates provides that the Home cannot restrict their residents to the premises or

require staff members to accompany them when they leave the facility. We hold that the public

actions of the residents of the adult home were not the responsibility of Dr. Niazi.

                                                V.

       We hold, therefore, that the evidence failed to prove Dr. Niazi was the cause of a public

nuisance, and we reverse the convictions. Because we reverse the convictions for reasons stated

above, we do not further address the issue of the sufficiency of the evidence.

                                                                                       Reversed.




                                               - 15 -
