                  COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia


DANIEL A. MAJETTE, S/K/A
 DANIEL ANDREW MAJETTE
                                           MEMORANDUM OPINION * BY
v.   Record No. 2307-98-2                   JUDGE MARVIN F. COLE
                                               JANUARY 27, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Timothy J. Hauler, Judge

          James F. Sumpter for appellant.

          Jeffrey S. Shapiro, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant was convicted of two counts of forcible sodomy in

violation of Code § 18.2-67.1.    On appeal, appellant contends that

the trial court erred (1) when it admitted medical evidence, which

included photographs and expert testimony, and (2) when it allowed

the Commonwealth to amend the indictments at the time of trial

without re-arraigning him and without continuing the case to allow

him time to prepare for the amendments.   We disagree and affirm.

                                 FACTS

     Appellant was indicted for two counts of forcible sodomy.

The two original indictments stated that appellant committed the


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
charged offenses "on or about June 1, 1996 through September 10,

1996."   At appellant's arraignment on September 23, 1997, several

weeks before the trial, appellant was advised that the

Commonwealth would likely move to amend the alleged offense dates.

     On October 9, 1997, the Commonwealth moved to amend one

indictment to allege an offense date of "on or about September 3,

1996 through September 10, 1996" and to amend the other indictment

to allege an offense date of "on or about June 1, 1996 through

September 2, 1996."   Appellant's objection to the amendment of the

indictments was overruled.

     At trial, the fifteen-year-old victim testified that

appellant penetrated the victim's anus with his finger and penis,

causing the victim's anus to bleed.    The victim stated that the

last incident occurred on September 3, 1996.   In February 1997,

the victim told his aunt about the incidents, and he was taken for

a medical examination on February 7, 1997.

     Dr. Mirian Barone, an expert on child sexual abuse,

testified that the medical examination of the victim's anus

revealed thickened folds, a healed tear, and notching, all of

which were consistent with trauma and subsequent healing.   Dr.

Barone also testified that the injuries did not appear to be

recent and that they were consistent with injuries caused by

trauma that occurred approximately five to seven months prior to

the examination.   Appellant objected to Dr. Barone's testimony,

arguing that the examination was "so far removed from the event"

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that the evidence was more prejudicial than probative.   The trial

court overruled appellant's objection.

     To depict Dr. Barone's testimony, the Commonwealth introduced

two photographs of the victim's anus, taken during the

examination.   Appellant objected, arguing that the prejudicial

effect of these pictures outweighed their probative value.   The

objection was overruled, and the court admitted the photographs

into evidence.

     ADMISSION OF THE EXPERT'S TESTIMONY AND THE PHOTOGRAPHS

     "The admissibility of evidence is within the broad discretion

of the trial court, and a ruling will not be disturbed on appeal

in the absence of an abuse of discretion."   Blain v. Commonwealth,

7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988) (citation omitted).

"'[E]vidence is relevant if it tends to establish the proposition

for which it is offered.'"   Evans-Smith v. Commonwealth, 5 Va.

App. 188, 196, 361 S.E.2d 436, 441 (1987) (citation omitted).

"'Upon finding that certain evidence is relevant, the trial court

is then required to employ a balancing test to determine whether

the prejudicial effect of the evidence sought to be admitted is

greater than its probative value.'"    Braxton v. Commonwealth, 26

Va. App. 176, 186, 493 S.E.2d 688, 692 (1997) (citations omitted).

On appeal, a trial judge's ruling that the probative value

outweighs any incidental prejudice will be reversed only on a

clear showing of an abuse of discretion.   See Ferrell v.

Commonwealth, 11 Va. App. 380, 390, 399 S.E.2d 614, 620 (1990).

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        At trial, the victim testified that appellant penetrated the

victim's anus with his finger and penis, causing the victim's anus

to bleed.    The victim said that the last incident occurred on

September 3, 1996 and that no one else touched his anus after that

date.    Dr. Barone did not conduct the medical examination of the

victim, but reviewed the report, the photographs and the diagrams

of the examination.    In permitting Dr. Barone to testify, the

trial court found that the testimony was "corroborative of the

fact that there was a traumatic injury to the anus."    Dr. Barone's

testimony tended to prove that the victim's anus had sustained a

traumatic injury five to seven months prior to the examination.

Although the examination took place approximately five months

after the last incident, this fact went to the weight of the

evidence and not to its admissibility.    See Lindsey v.

Commonwealth, 22 Va. App. 11, 16, 467 S.E.2d 824, 827 (1996).

        To depict Dr. Barone's testimony, two photographs taken

during the medical examination of the victim were admitted into

evidence.

        "[T]he admission of photographs is a matter resting within

the sound discretion of the trial court, and we will not disturb

its action unless a clear abuse of discretion is shown."    Stockton

v. Commonwealth, 241 Va. 192, 217, 402 S.E.2d 196, 210 (1991)

(citation omitted).    "Photographs that accurately portray the

crime scene are not rendered inadmissible simply because they are



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gruesome or shocking."   Payne v. Commonwealth, 257 Va. 216, 222,

509 S.E.2d 293, 297 (1999) (citations omitted).

     Dr. Barone testified that one photograph showed the healed

tear and the thickened area on the victim's anus.   Dr. Barone

testified that the second photograph showed the notching on the

victim's anus.   The two photographs accurately portrayed the

victim's anus at the time of the examination and showed the

abnormalities supporting Dr. Barone's testimony.

     We cannot say that the trial court abused its discretion in

admitting into evidence Dr. Barone's testimony and the two

photographs taken during the medical examination of the victim.

                    AMENDMENT OF THE INDICTMENTS

     At appellant's arraignment on September 23, 1997, he was

charged with two counts that "on or about June 1, 1996 through

September 10, 1996, [he] did unlawfully and feloniously commit

forcible sodomy . . . ."   The Commonwealth's attorney informed the

court that there were multiple incidents during the time period.

Appellant was informed that the offense dates in the indictments

would most likely be narrowed before trial.

     On October 9, 1997, the day of appellant's trial, the

Commonwealth moved to amend the date of one indictment to "on or

about September 3, 1996 through September 10, 1996" and to amend

the date of the second indictment to "on or about June 1, 1996

through September 2, 1996."   Defense counsel objected, stating:



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          We would object at this late date, taking,
          basically, two identical charges and now
          making them two charges with a specific date
          which was not reviewed by the jury or by the
          preliminary hearing. There are two
          indictments sent up with identical dates and
          identical charges so we would object to
          that, Your Honor.

After the Commonwealth's attorney responded, defense counsel

stated:

          Your Honor, my only last comment would be
          the way it's set up, it would be highly
          prejudicial to the defendant in that if the
          jury decides this one item, he's guilty.
          Then they more than likely would decide he's
          guilty of the other because they really
          cover the same series of events. I just
          think it could be confusing to the jurors'
          minds.

     The court overruled appellant's objection, finding that

since September 23, 1997 appellant "was on notice of the fact

that there were going to be separate allegations" and "what

remained a matter of speculation was what the dates of the

allegations would be."   The court also found that the amendments

to the indictments alleged separate time periods, "but the

periods still are encompassed in the time frames that were

originally set forth in the two indictments that were issued by

the grand jury."

     On appeal, appellant argues that the trial court erred in

granting the Commonwealth's motion to amend the indictments

without re-arraigning him, that the amendments were a surprise,

and that the trial court should have continued the case to allow


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him to prepare for the amendments.     On appeal, appellant

contends that while the inclusive dates remained the same, one

charge isolated the offense to a seven-day time period and that

he might have been able to present an alibi defense for this

time period.   Appellant also contends that the trial court did

not give him an opportunity to note this objection or to request

a continuance.   Appellant further contends that after an

indictment is amended, Code § 19.2-231 provides that the accused

"shall be allowed to plead anew."

     The Commonwealth's motion to amend the indictments covers

seven pages of the transcript, and defense counsel spoke four

times.   Appellant was given an opportunity to request a

continuance in order to determine if he had an alibi for the

seven-day time period in one of the indictments.    The burden was

on appellant to request a continuance, and he failed to do so.

Code § 19.2-231 provides that, after an amendment to an

indictment, "the accused shall be arraigned on the indictment

. . . as amended, and shall be allowed to plead anew, thereto,

if he so desires . . . ."   Appellant never requested the

opportunity to "plead anew" to the amended indictments.       "The

Court of Appeals will not consider an argument on appeal which

was not presented to the trial court."     Ohree v. Commonwealth,

26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).     See Rule

5A:18.   Accordingly, the trial court did not err in granting the

Commonwealth's motion to amend the indictments.

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For the foregoing reasons, we affirm the convictions.

                                                  Affirmed.




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