Anthony Andre's Mackey v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 1, 2022
• Docket: 0355213
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA PUBLISHED

Present: Judges Huff, Athey and Friedman Argued by videoconference

ANTHONY ANDRE’S MACKEY OPINION BY v. Record No. 0355-21-3 JUDGE GLEN A. HUFF MARCH 1, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY Edward K. Stein, Judge

Charles S. Moore (Law Offices of John C. Singleton, on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring,1 Attorney General, on brief), for appellee.

Anthony Andre’s Mackey (“appellant”) was indicted under Code § 18.2-374.3(C), which

prohibits the use of a communications system to solicit, with lascivious intent, a person the

accused knows or believes to be younger than fifteen years old. At the conclusion of a bench

trial in the Circuit Court for Rockbridge County, the trial court found “some ambiguity in the

victim’s testimony about whether she told [appellant] she was fifteen or about to be fifteen.”

Accordingly, the trial court decided not to convict appellant as charged but instead convicted him

of violating Code § 18.2-374.3(D), explaining that it “is the same offense [but] requires an age of

at[] least fifteen but younger than eighteen.” At a later hearing on a motion to reconsider, the

court opined that it could convict appellant under subsection D either: because subsection D is a

lesser-included offense of subsection C; because the statute provides “one offense with graduated

1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. punishment”; or because “you [could] take the position that the [c]ourt amended the indictment

to conform with the evidence.” Appellant now appeals the denial of the motion to reconsider,

arguing the trial court’s rationales were flawed and therefore his conviction is invalid. He also

challenges the sufficiency of the evidence to support his conviction. This Court agrees that the

trial court erred in convicting him under subsection D and therefore reverses appellant’s

conviction.

I. BACKGROUND

The Commonwealth indicted the then-thirty-five-year-old appellant on July 8, 2019,

under Code § 18.2-374.3(C) after he traded messages on Facebook Messenger with a

fourteen-year-old girl. That statute prohibits “any person” from “[using] a communications

system . . . for the purposes of soliciting, with lascivious intent, any person he knows or has

reason to believe is a child younger than 15 years of age to knowingly and intentionally” engage

in various conduct, including “[p]ropos[ing] to such child the performance of an act of sexual

intercourse.” Code § 18.2-374.3(C).

Appellant’s trial was held on August 26, 2019. After closing arguments, the trial court

addressed appellant, refusing to convict him under subsection C:

I am convinced from this evidence beyond a reasonable doubt that . . . these text messages are from you[,] . . . that you were clearly soliciting the victim in this case for sexual activity that falls within the code section, that you did so with lascivious intent that is required by the statute. However, there is some ambiguity in the victim’s testimony about whether she told you she was fifteen or about to be fifteen. I think she, quite frankly, testified as to both.

Because of that ambiguity, the trial court then decided, sua sponte, to instead convict

appellant under subsection D of the same statute. Subsection D similarly prohibits “[a]ny

person” from “[using] a communications system . . . for the purposes of soliciting, with

lascivious intent, any child he knows or has reason to believe is at least 15 years of age but

-2- younger than 18 years of age to knowingly and intentionally commit any of the activities listed

in subsection C.” Code § 18.2-374.3(D) (emphasis added).

As the trial court explained:

Therefore, I am going to find you guilty of [Code §] 18.2-374.3, subsection D, which is the same offense, however, requires an age of at[] least fifteen but younger than eighteen, since . . . [t]he victim’s testimony was that she clearly told him that she was fifteen when she met him.

The trial court subsequently entered a conviction order, which cited only subsection D.

Appellant later filed a motion to reconsider. In his motion, appellant argued that because

subsection D was not a lesser-included offense of subsection C, the trial court could not convict

him under subsection D.

The trial court held a hearing on the motion to reconsider on December 19, 2019. After

brief arguments from the parties, the trial court said it disagreed with appellant, suggesting,

[T]he [c]ourt may not have used the right term[,] but whether it’s a lesser[-]included offense or it’s in fact one offense with graduated punishment depending on [age], I think you can make the argument that the age is not really an element of the offense at all, [but instead] that the age is just an element of the punishment . . . .

The trial court then offered a new possible rationale, never before raised by the parties or the

court: “[O]r you [could] take the position that the [c]ourt amended the indictment to conform

with the evidence,” a move the trial court said it had the “absolute authority to do” by statute.

The trial court continued: “So you can look at it that way. But the [c]ourt is convinced, no

matter what label you put on it, that it has the authority to do this,” reiterating its conclusion that

subsection D is a lesser-included offense of subsection C.

The trial court overruled the motion. Appellant’s counsel then asked the court to “note

[appellant’s] exception for the purposes of the record.” It did and adjourned the hearing. This

appeal followed.

-3- II. ANALYSIS

Appellant asks this Court to hold that the trial court erred when it denied his motion to

reconsider his conviction because the conviction was improper. The Commonwealth maintains

that the trial court could convict appellant under subsection D because subsection D is a

lesser-included offense of subsection C or, in the alternative, because the trial court amended the

indictment pursuant to its statutory authority. Thus, appellant’s objection to the validity of his

conviction requires statutory interpretation, which this Court performs de novo. McCarthy v.

Commonwealth, 73 Va. App. 630, 638-39 (2021).

An indictment must “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.” King v.

Commonwealth, 40 Va. App. 193, 198 (2003) (quoting Sims v. Commonwealth, 28 Va. App. 611,

619 (1998)). Code § 19.2-220 thus dictates that an indictment “describ[e] the offense charged”

or “state so much of the common law or statutory definition of the offense as is sufficient to

advise what offense is charged.”

“[A]n accused cannot be convicted of a crime that has not been charged, unless the crime

is a lesser-included offense of the crime charged.” Bowden v. Commonwealth, 52 Va. App. 673,

675-76 (2008) (quoting Commonwealth v. Dalton, 259 Va. 249, 253 (2000)). Otherwise, the trial

court has the power, subject to certain procedural requirements, to amend the indictment before a

verdict under Code § 19.2-231 and charge the accused with another crime.

This Court agrees with appellant that neither course permitted his conviction here.

A. Appellant’s Challenge to His Conviction Is Preserved for Appeal

The Commonwealth first argues that appellant did not preserve his challenges to the trial

court’s various rationales it gave to support his conviction under subsection D. Rule 5A:18

precludes relief here, the Commonwealth claims, because appellant never specifically challenged

-4- the trial court’s supposed amending of the indictment, and when he did object, his objection was

not sufficiently specific.

Rule 5A:18 requires an appellant to state his objection “with reasonable certainty at the

time of the [court’s] ruling, except for good cause shown or to enable this Court to attain the

ends of justice,” in order to preserve the issue for appeal.

The trial court’s original ruling was that it would convict appellant under subsection D

because subsection D was the “same offense” as subsection C except for a single element.

Appellant preserved his challenge to his subsection D conviction with the filing, hearing, and

denial of his motion to reconsider, in which he specifically addressed the lesser-included-offense

rationale. Brandon v. Cox, 284 Va. 251, 255-56, 256 n.2 (2012). Unquestionably, then, he

preserved his challenge to that rationale for appeal.

As for the argument that the trial court amended the indictment, Rule 5A:18 would have

required appellant to object “at the time of the ruling”—when the trial court supposedly amended

the indictment and convicted him. But the trial court did not make a “ruling” during the trial that

it was amending the indictment: at the time, it never said (or even suggested) that it was doing

so, and its actions at the time did not adhere to the requirements for amending an indictment. See

Code § 19.2-231 (requiring specific findings and procedures to amend an indictment).2 And at

the hearing on the motion to reconsider, the indictment-amendment rationale came up only

during the trial court’s reflections on the many possible post-hoc justifications for its previous

ruling (the conviction based on the lesser-included-offense rationale). The trial court, then, did

2 Even if this Court were to consider the conviction of appellant to be a “ruling” that the trial court was amending the indictment, it is not clear that appellant had “the opportunity to object to [that] ruling . . . at the time it [was] made” because appellant could not have known the trial court was amending the indictment. See Code § 8.01-384 (“[I]f a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection shall not thereafter prejudice him . . . on appeal.”). -5- not rule that it was amending the indictment there either.3 Because there was never a “ruling” in

which the trial court amended the indictment, Rule 5A:18 does not apply and therefore does not

preclude appellant’s challenge against this rationale.

B. Subsection D Is Not a Lesser-Included Offense of Subsection C

The Commonwealth first cites the trial court’s claim that it could convict appellant under

subsection D because it is a lesser-included offense of subsection C. “An offense is not a

lesser-included offense of a charged offense unless all its elements are included in the offense

charged.” Dalton, 259 Va. at 253 (emphasis added). Subsection D fails this test.

Both subsections impose their own knowledge requirements, but each requires the

accused’s knowledge of different facts. Subsection C, under which appellant was charged, says

the accused must “know[] or ha[ve] reason to believe” the person he is communicating with is

“younger than 15 years of age.” Code § 18.2-374.3(C). On the other hand, subsection D

requires that the accused “know[] or ha[ve] reason to believe” the person he is communicating

with is “at least 15 years of age but younger than 18 years of age.” Code § 18.2-374.3(D)

(emphasis added). The knowledge subsection D requires is mutually exclusive from that which

subsection C requires; the two requirements do not overlap. Subsection D, then, “contains an

element that the charged offense does not contain” and is not a lesser-included offense of

subsection C. Dalton, 259 Va. at 253.

3 Nor could it, as the indictment-amendment statute requires the court to amend the indictment “at any time before . . . the court finds the accused guilty.” Code § 19.2-231 (emphasis added). -6- The Commonwealth provides no explanation to this Court as to why it should read the

statute otherwise.4 But in its briefing before the trial court on the motion to reconsider, the

Commonwealth analogized the knowledge requirement here with intent requirements in other

crimes and their lesser-included offenses. Citing Hewitt v. Commonwealth, 213 Va. 605 (1973),

the Commonwealth argued that because some lesser-included offenses impose different intent

requirements as compared to their more serious sister offenses, the same could be said about

subsections C and D. But to the extent that is true, it is not relevant here: as noted above,

subsections C and D impose different knowledge requirements—not intent requirements.

In short, the knowledge requirement is a substantive element of each offense; and

because the knowledge requirements are mutually exclusive, subsections C and D are separate

offenses. 5 Because subsection D is not a lesser-included offense of subsection C, the only way

the trial court could have convicted appellant is if it had amended the indictment.

C. The Trial Court Did Not Amend the Indictment

Reaching the merits of the Commonwealth’s second justification, this Court finds it fares

no better than the first. At the hearing on the motion to reconsider, the trial court asserted that

one could “take the position that the [c]ourt amended the indictment to conform with the

evidence” pursuant to its authority under Code § 19.2-231. But that statute does not grant the

“absolute authority” that the trial court suggested.

4 In its brief the Commonwealth takes the position that, “assuming without conceding that subsection (D) is not a lesser-included offense,” “any error that occurred was harmless” because of the amended-indictment rationale. The Commonwealth offers no suggestion as to how one may interpret subsection D as a lesser-included offense of subsection C. 5 Relatedly, at both the conviction and the hearing on the motion to reconsider, the trial court also suggested that “age is not really an element of the offense at all” and is instead “just an element of the punishment.” Because the Commonwealth does not argue that position on appeal, and because this Court holds that the knowledge-of-age requirement is, in fact, an element of the offense, the Court does not address that claim any further. -7- The statute allows a court to amend the indictment to fix “any defect in form . . . at any

time before . . . the court finds the accused guilty or not guilty, provided the amendment does not

change the nature or character of the offense charged.” Code § 19.2-231. However, “[a]fter any

such amendment the accused shall be arraigned on the indictment . . . as amended, and shall be

allowed to plead anew thereto . . . .” Id.

Even if the circumstances here warranted amending the indictment, and even if the trial

court did intend to do so, the trial court never actually ruled it was amending the indictment. As

explained above, neither the court’s words nor its actions at trial so much as hinted at that

possibility. Supra Part II.A. The court did not even mention subsection D “before . . . [it found]

the accused guilty.” Code § 19.2-231. And on top of that, the court did not comply with the

statute’s mandated procedures: it never arraigned appellant on subsection D charges.

Despite the trial court’s later reflections at the hearing on the motion to reconsider, it

never indicted appellant under subsection D.6 No such indictment ever existed. Left without a

single rationale to justify appellant’s conviction of a crime for which he was never indicted, the

conviction in the case at bar cannot stand. Accordingly, this Court reverses.7

III. CONCLUSION

This Court concludes that subsection D of Code § 18.2-374.3 is not a lesser-included

offense of subsection C of the same statute. It further concludes that the trial court never

amended the original indictment to allow for appellant’s conviction under subsection D. As

6 The Commonwealth also claims appellant’s objections to his conviction were not timely because Code § 19.2-227 provides, “Judgment in any criminal case shall not be arrested or reversed upon any exception or objection made after a verdict to the indictment or other accusation, unless it be so defective as to be in violation of the Constitution.” Ignoring any possibility of constitutional error here, this Court holds there was no valid indictment under subsection D, so Code § 19.2-227’s restriction does not apply. 7 Because this Court reverses appellant’s conviction, the Court’s ruling renders moot appellant’s challenge to the sufficiency of the evidence. -8- none of the asserted rationales to justify appellant’s conviction under subsection D pass muster,

this Court reverses appellant’s conviction.

Furthermore, this Court holds that the trial court unambiguously acquitted appellant of

the original subsection C charge when it implied that the Commonwealth’s evidence failed to

establish, beyond a reasonable doubt, his knowledge that the girl with whom he communicated

was younger than fifteen years old.8 And because the trial court never amended the indictment,

the trial court’s acquittal on the original charge left no remaining charges in this case.

Accordingly, this Court both reverses and dismisses this case.

Reversed and dismissed.

8 The Commonwealth conceded this point at oral argument. -9-