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"
- 2 - 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).
- 3 - 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
- 4 - 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 . . .
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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"
- 2 - 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).
- 3 - 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
- 4 - 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:
- 5 - 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
- 6 - 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.
- 7 - For the foregoing reasons, we affirm the convictions.
Affirmed.
- 8 -