                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia


EDWARD T. ATORICK
                                             MEMORANDUM OPINION *
v.       Record No. 2934-95-4              BY JUDGE CHARLES H. DUFF
                                                 JULY 8, 1997
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Richard J. Jamborsky, Judge
            Steven D. Briglia (Briglia & Wright, P.C., on
            brief), for appellant.

            Kathleen B. Martin, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Edward T. Atorick (appellant) was convicted by a Fairfax

County jury of aggravated sexual battery in violation of Code

§ 18.2-67.3.    On appeal, he contends the trial court erred in

permitting the Commonwealth to amend the indictment and in

granting the jury's request to rehear a portion of the

Commonwealth's evidence.    Finding no error, we affirm appellant's

conviction.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Maynard v. Commonwealth,

11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc).       The

evidence demonstrated that the victim, who was born in 1983, had

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
lived next door to appellant and known him all her life.   The

victim, her siblings, and other neighborhood children often

played in appellant's front yard, where they would perform

gymnastics and skits.    While the children played in his yard,

appellant would sit nearby on a stack of logs.

     The victim testified that on several occasions while playing

in appellant's yard during the late summer of 1992, appellant

pulled her onto his lap, took her hand around her back, and

forced her hand to touch his penis on the outside of his

clothing.   Using the victim's hand, appellant would rub up and

down on his penis on the outside of his pants.   The one time the

victim tried to pull her hand away appellant tightened his grip

upon her.   During these incidents, appellant always had a beer

beside him.   Appellant forced the victim to touch his penis in

this manner at least five times, as well as one other time when

he was visiting inside the victim's home.
     The victim did not report the incidents until November of

1994, after a school counselor discussed sexual abuse with the

victim's class.   After being contacted by the police about the

allegations, appellant met with Officer Brenda Akre at police

headquarters.   Appellant denied that he had ever forced the

victim to touch his penis, and stated that he would never harm

the victim or her siblings.   He said that perhaps the victim had

misinterpreted something that occurred during the acrobatic acts

performed in his yard.   Appellant said he did not remember any




                                 -2-
incident happening as the victim described, but that he had been

drinking heavily during that time period.

     The following day, appellant returned to Akre's office.      He

said he recalled two incidents, once outside in the yard and once

inside the victim's house, when he placed the victim's hand upon

his penis.   Appellant said he did not know why he had done it,

that "maybe it felt good," that "it was wrong," and that "it

should not have happened."
     Testifying in his own behalf, appellant denied touching the

victim in an improper manner at any time.   Appellant testified

that during his first conversation with Akre he had said the

victim must have misinterpreted something that had happened while

he was helping her with a gymnastic exercise.   He denied telling

Akre he had been drinking heavily during the time period of the

alleged incidents.   Appellant also denied telling Akre during the

second interview that the victim's hand had touched his penis.

According to appellant, he merely described to Akre an exercise

game he had played with the victim.   Appellant further testified

that he was angered by Akre's accusing questions and left her

office.

                                I.

     Citing Code § 18.2-67.3, the indictment charged that,

between July 1, 1992 and October 31, 1992, appellant "unlawfully

and feloniously sexually abuse[d] [the victim], a child less than

thirteen (13) years of age, by intentionally touching her




                                -3-
intimate parts or clothing covering such intimate parts."     On

August 4, 1995, nearly three months before the commencement of

appellant's trial on October 30, 1995, 1 appellant moved to

dismiss the indictment, arguing that the evidence presented by

the Commonwealth at the preliminary hearing, rather than proving

the conduct described in the indictment, demonstrated instead

that appellant had forced the victim to touch the clothing

covering his penis.   Upon the Commonwealth's motion, the trial

judge amended the indictment to state that appellant had sexually

abused the victim by "forcing [her] to touch his intimate parts

or clothing covering such intimate parts."
     "The purpose of an indictment is to give the accused notice

of the nature and character of the offense charged."     Cantwell v.

Commonwealth, 2 Va. App. 606, 608, 347 S.E.2d 523, 524 (1986).

"Code § 19.2-231 permits the court to amend an indictment at any

time before the verdict is returned or a finding of guilt is

made, provided that the amendment does not change the nature or

character of the offense charged.     This section is to be

construed liberally."   Id.

     The amendment of the indictment, which occurred nearly three

months before trial, did not change the nature or character of

the offense with which appellant was charged.    The amendment

affected only the manner in which the aggravated sexual battery

     1
      Appellant's first jury trial ended in a mistrial on
September 14, 1995.




                                -4-
was committed, and appellant remained charged with the same crime

committed against the same victim during the same period of time.

He had ample opportunity to prepare a defense to the amended

charge.   Thus, the trial judge did not err in permitting the

amendment, and in denying appellant's motion to dismiss the

indictment.    See Farewell v. Commonwealth, 167 Va. 475, 484, 189

S.E. 321, 325 (1937); Sullivan v. Commonwealth, 157 Va. 867, 878,

161 S.E. 297, 300 (1931).
                                  II.

     On October 31, 1995, after the presentation of all the

evidence, the jury deliberated for about one and one-half hours.

The jury sent the judge a note stating, "Can we hear the

testimony of Detective Akre."   In a written response, the judge

said, "No.    Please rely on your collective recollection of her

testimony."   The following day, after deliberating for more than

five hours, the jury sent a message that the votes of the jurors

stood at eight, three, and one.    The judge did not respond, and

the jury further deliberated for one and one-half hours that day.

     Due to the illness of the presiding judge, a different judge

substituted for him on the third day of jury deliberations.     That

morning, the jury sent the substituting judge a note stating:
          We are having difficulty coming to a decision
          mainly because we disagree about our memories
          of Detective Akre's testimony. We have
          previously asked for the testimony of the
          detective and the judge refused to allow us
          to have it. If we cannot still have her
          testimony can we ask you: Did the detective
          testify that Mr. Atorick stated to her that
          he did indeed put [the victim's] hand on his


                                  -5-
               penis - If you cannot answer the question for
               us can we talk to you?


The judge assembled the jury in the courtroom.      He asked the

jurors if they could reach a verdict without a reading of Akre's

testimony.      The jurors said they could not.   The judge then

permitted the court reporter to read the testimony of Akre to the

jury.       Before doing so, the judge cautioned the jurors that they

were not to give additional weight to Akre's testimony because it

was being presented twice. 2

        "'Whether a jury, after retirement, may, upon their request

have a particular portion of the evidence read to them is

ordinarily a matter resting in the sound discretion of the trial

court.'"       Kennedy v. Commonwealth, 18 Va. App. 543, 547, 445

S.E.2d 699, 702 (1994) (citations omitted).       Circumstances that

may be pertinent to the resolution of the question include "the

threat of 'unbalanced testimonial emphasis,' the length of the

testimony in issue, the time already consumed in jury

deliberation, the complexity of the trial and related issues, and

the nature and specificity of the evidence subject of the

testimony."       Id. at 548, 445 S.E.2d at 703 (citations omitted).

Furthermore, "the probative value and benefit of the testimony in

issue to the fact finding process must always be weighed against

its prejudicial effect to the accused, if any."       Id.
        2
      At a hearing on post-trial motions, the judge who presided
at trial stated that he agreed with the substituting judge's
decision to repeat Akre's testimony, and he adopted the ruling as
his own.



                                    -6-
     In this case, on the third day of deliberations the jury

indicated it was at an impasse without Akre's testimony.       The

jury previously had been admonished to resolve the situation by

relying on its collective memory.     The jury's request was

specific and concerned a factual matter that was at the heart of

the case.   To avoid a possible second mistrial in the case, the

judge had the court reporter read Akre's testimony in its

entirety to the jury.   Before the testimony was read, however,

the judge "prudently and correctly instructed the jury to avoid

any undue emphasis in its consideration of that evidence."       Id.

at 549, 445 S.E.2d at 703.   "'"Unless the record shows to the

contrary, it is to be presumed that the jury followed an explicit

cautionary instruction promptly given."'"     Id. (citations

omitted).   Under these circumstances, the judge did not abuse his

discretion in repeating Akre's testimony at the jury's request.

     For the foregoing reasons, appellant's conviction is

affirmed.
                                                Affirmed.




                                -7-
Benton, J., dissenting.

     The original indictment charged that Edward T. Atorick

"intentionally touch[ed] [the child's] intimate parts or clothing

covering such intimate parts."   After Atorick moved to dismiss

the indictment because the evidence presented by the Commonwealth

at the preliminary hearing did not prove the allegation, the

trial judge granted the Commonwealth's motion to amend the

indictment.   The amended indictment stated that Atorick "forc[ed]

[the child] to touch his intimate parts or clothing covering such

intimate parts."   I would hold that this amendment changed the

nature of the offense charged.   Accordingly, I dissent.
     In discussing whether an amendment changed the nature of the

offense charged, the Supreme Court set forth the following

guidelines:
          "The charge with respect to the conduct of
          the accused which was alleged as rendering
          the accused guilty of an offense remained
          unchanged . . . . Precisely the same conduct
          on the part of the accused was charged in the
          amended as in the original indictment."

          [T]he bare fact that the amendment so allowed
          charged a different intent, though based on
          the same overt acts, . . . did not, within
          the meaning of the statute, change the nature
          of the offense charged in the original
          indictment.


Sullivan v. Commonwealth, 157 Va. 867, 877-78, 161 S.E. 297, 300

(1931) (emphasis added) (citation omitted); see also Smith v.

Commonwealth, 10 Va. App. 592, 594, 394 S.E.2d 30, 31 (1990)

("The overt acts were the same . . . .") (emphasis added); Willis



                                 -8-
v. Commonwealth, 10 Va. App. 430, 438, 393 S.E.2d 405, 409 (1990)

("[T]he amendment did not change the nature or character of the

acts which the indictment alleged . . . [were] committed.      The

amendment clarified . . . those same acts . . . .") (emphasis

added); cf. Farewell v. Commonwealth, 167 Va. 475, 478-79, 189

S.E. 321, 323 (1937) (emphasizing that the essential element of

bigamy is the "overt act" of entering into a second marriage)

(emphasis added).
       The amendment to the indictment changed the overt act that

Atorick was accused of committing.     In the original indictment,

Atorick was accused of touching the child.    In the amended

indictment, Atorick was accused of forcing the child to touch

him.   Because the amendment changed the act Atorick was accused

of committing, I would hold that the amendment changed the nature

of the offense.

       "It [is] the province of the grand jury to ascertain from

the evidence" the appropriate crime to charge in an indictment.
Evans v. Commonwealth, 183 Va. 775, 780, 33 S.E.2d 636, 638

(1945).   "While [it is] . . . settled . . . that . . . defective

indictments may be amended, not once has it been said that the

trial [judge] has the power to change by amendment the character

of an offense as found by the grand jury."     Id. at 781, 33 S.E.2d

at 638-39.

       I dissent.




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