George Raymond Hardy v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 1, 2025
• Docket: 0242242
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Malveaux and Callins

GEORGE RAYMOND HARDY MEMORANDUM OPINION* v. Record No. 0242-24-2 PER CURIAM APRIL 1, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAROLINE COUNTY Sarah L. Deneke, Judge

(Thomas E. Dodd, III; Strentz Green & Coleman, PLC, on brief), for appellant. Appellant submitting on brief.

(Jason S. Miyares, Attorney General; Ryan Beehler, Assistant Attorney General, on brief), for appellee.

George Raymond Hardy appeals his conviction for receiving stolen property in violation

of Code § 18.2-108. He argues that the trial court erred by denying his pretrial motion to

suppress evidence. Hardy also challenges the sufficiency of the evidence to support his

conviction. The record, however, does not contain a timely filed transcript of the pretrial

suppression hearing or trial. Consequently, we cannot address these arguments.1 In addition,

Hardy contends that the trial court erred by allowing the Commonwealth “at the end of the trial”

to amend the grand-larceny indictment charge to receiving stolen property instead. He maintains

that the amendment changed the nature of the charge and violated his due process rights. The

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Having examined the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary for two reasons. First, “the appeal is wholly without merit.” See Code § 17.1-403(ii)(a); Rule 5A:27(a). Second, “the dispositive issue or issues have been authoritatively decided,” and the appellant “has not argued that the case law should be overturned, extended, modified, or reversed.” See Code § 17.1-403(ii)(b); Rule 5A:27(b). original and amended indictments, however, both charged Hardy with a larceny, arose from the

same underlying facts, and were based on statutes that shared a purpose and subject matter.

Therefore, the amendment did not change the nature of the charged offense or violate his due

process rights. Accordingly, we affirm the decision of the trial court.

BACKGROUND2

In 2022, Hardy was charged with larceny of a golf cart valued at $1,000 or more. A

grand jury indicted him for grand larceny, and the court set the matter for a bench trial.

Before trial, Hardy filed a motion to suppress any evidence obtained during a warrantless

search and seizure of his property on November 15, 2022. The motion alleged that deputies from

the Caroline County Sheriff’s Office drove to Hardy’s residence to investigate a report of a

stolen golf cart. According to the motion, when the deputies arrived, “a golf cart [was] in front

of the property.” The deputies knocked on Hardy’s door and received no answer. Believing the

cart’s true serial number had been hidden from view, the deputies towed the cart to the Sheriff’s

Office to investigate further. Hardy’s motion alleged that the deputies did not have his consent

and no exigent circumstances existed. Accordingly, Hardy asked the trial court to suppress any

evidence obtained from the search and seizure of the golf cart. At a hearing on the motion, the

court received evidence and considered argument by counsel. It then denied the motion.

At the bench trial, the Commonwealth asked the court to “amend the indictment as to the

offense date range” to reflect that the offense occurred between March 1, 2022, and November 5,

2022. The court granted the motion without objection. After Hardy presented evidence and rested,

the Commonwealth made another motion to amend the indictment, this time to charge Hardy with

2 “In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Charles v. Commonwealth, 63 Va. App. 289, 292, 299 (2014) (quoting Rushing v. Commonwealth, 284 Va. 270, 274 (2012)) (holding, in pertinent part, that “the trial court did not err in allowing the Commonwealth to amend the indictment”); see Sample v. Commonwealth, 303 Va. 2, 9 (2024). -2- “receiv[ing] a gas[-]powered golf cart valued at $1000 or more, knowing it to be stolen,” in

violation of Code § 18.2-108. The trial court granted the motion over Hardy’s objection. Hardy

then moved to strike the evidence, and the court denied that motion. The court ultimately convicted

Hardy of receiving stolen property and continued the matter for sentencing.

Hardy moved to set aside the verdict, arguing that Code § 19.2-231 permitted the

amendment of an indictment only if the amendment did not change the nature of the offense. He

noted that the statute protects a defendant’s “substantial right . . . to be informed of the accusation

and to ensure . . . a fair trial on the merits.” He argued that the challenged amendment did not

merely change the “date, time, [and] location” of the alleged crime. Instead, it “altered the alleged

offense from grand larceny . . . to the entirely different offense of receiving stolen property,” which

required proof of “substantially different elements.” Hardy further argued that the amendment

caused “undue surprise,” infringing on his “constitutional right to call for evidence in his favor.” He

claimed that his “defense [was] prepared and argued at trial based on the allegation of grand

larceny” and the amendment should not have been permitted after he had presented his evidence.

Hardy maintained that he “was never arraigned, nor did he plead anew, to the new charge” and, as a

result, that the amendment violated his due process rights.

The trial court denied Hardy’s motion to set aside the verdict. He was sentenced to five

years of incarceration, with four years and six months suspended.

ANALYSIS

I. Transcripts

At the outset, we consider the impact of the lack of certain transcripts in this case. The

record does not contain timely filed transcripts of the hearing on Hardy’s motion to suppress or

the trial. As a result, they are not properly before the Court.

-3- On appeal, we presume the trial court’s judgment is correct. Bay v. Commonwealth, 60

Va. App. 520, 528 (2012). At this juncture, Hardy bears the burden of presenting on appeal “a

sufficient record from which we can determine whether the lower court has erred in the respect

complained of.” See Green v. Commonwealth, 65 Va. App. 524, 534 (2015) (quoting Smith v.

Commonwealth, 16 Va. App. 630, 635 (1993)).

For a transcript to be part of the record on appeal, it must be filed in the circuit court clerk’s

office within 60 days after entry of final judgment. Rule 5A:8(a). Alternatively, an appellant

may submit a written statement of facts in lieu of a transcript. Rule 5A:8(c). This Court may

extend the deadline “upon a written motion filed within 90 days after the entry of final

judgment” provided the appellant shows “good cause to excuse the delay.” Rule 5A:8(a). If the

appellant fails to “ensure that the record contains transcripts or a written statement of facts

necessary to permit resolution of appellate issues, any assignments of error affected by such

omission will not be considered.” Rule 5A:8(b)(4)(ii).

Here, the trial court entered the final sentencing order on January 11, 2024, and the

transcripts were due March 11, 2024. Hardy, however, did not file the transcripts until March

18, 2024. Nor did he move for an extension of time to file the transcripts, and the time in which

to do so has expired. See Rule 5A:3(c)(1). “This Court has no authority to make exceptions to

the filing requirements set out in the Rules.” Bay, 60 Va. App. at 528 (quoting Turner v.

Commonwealth, 2 Va. App. 96, 99 (1986)). As a result, the transcripts are untimely and are not

part of the record on appeal.

Based on the lack of transcripts or a written statement of facts in the record, we next

consider whether this deficit prevents the Court from addressing the assignments of error. See id.

“If . . . the transcript [or statement of facts] is indispensable to the determination of the case, then the

requirements for making the transcript [or statement of facts] a part of the record on appeal must be

-4- strictly adhered to.” Veldhuis v. Abboushi, 77 Va. App. 599, 606-07 (2023) (alterations in

original) (quoting Bay, 60 Va. App. at 528). “Whether the record is sufficiently complete to permit

our review on appeal is a question of law subject to our de novo review.” Bay, 60 Va. App. at 529.

Hardy’s argument that the trial court erred by denying his motion to suppress cites to and

relies heavily on the evidence presented at the suppression hearing. And in reviewing a ruling on

a motion to suppress, an appellate court looks to the evidence at the suppression hearing and at

trial. See Commonwealth v. White, 293 Va. 411, 414 (2017). As to the sufficiency of the

evidence to sustain his conviction for receiving stolen property, Hardy argues that the evidence

presented at trial failed to prove that he knew the golf cart was stolen. Without transcripts or a

written statement of facts, this Court cannot evaluate Hardy’s contentions. We therefore do not

consider these arguments. See Rule 5A:8(b)(4)(ii).3

II. The Indictment Amendment

The law regarding indictments is well established. “[I]f there shall appear to be any

variance between the allegations” of an indictment “and the evidence offered in proof thereof” at

a trial, “the court may permit amendment of such indictment . . . 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.” Code § 19.2-231. This “statute is

remedial in nature and is to be liberally construed . . . to achieve the laudable purpose of

avoiding further unnecessary delay in the criminal justice process by allowing amendment, rather

than requiring reindictment by a grand jury.” Willis v. Commonwealth, 10 Va. App. 430, 437

(1990) (citing Sullivan v. Commonwealth, 157 Va. 867, 876-77 (1931)). Whether an amendment

3 In his sufficiency argument, Hardy in part contends that the trial court erred by denying his motion to strike “at the close of the Commonwealth’s case.” Notwithstanding our lack of a transcript of the trial, the conviction order demonstrates that Hardy presented evidence after the Commonwealth rested. Thus, he waived his right to stand on his original motion to strike alone. See Rompalo v. Commonwealth, 72 Va. App. 147, 155 (2020), aff’d, 299 Va. 683 (2021). -5- under Code § 19.2-231 was proper is a question of law that an appellate court reviews de novo.

See Pulliam v. Commonwealth, 55 Va. App. 710, 713 (2010).

Generally, to determine whether an amendment “changes the nature or character of the

offense charged,” this Court “examine[s] the conduct or overt acts proscribed in each statute.”

Id. at 715. We “compare . . . the underlying conduct of [the] appellant,” not “the elements of the

offense[s].” Id. at 717. Thus, the “analysis does not by necessity hinge on whether the amended

charge is a lesser-included offense.” Pompell v. Commonwealth, 80 Va. App. 474, 480 (2024).

Rather, an amendment seldom changes the character and nature of an offense when the newly

charged statute has a “similar[] . . . purpose and subject matter” as the original statute. Charles

v. Commonwealth, 63 Va. App. 289, 295 (2014) (quoting Dunaway v. Commonwealth, 52

Va. App. 281, 297 (2008)).

For example, when an indictment for taking indecent liberties with a child is amended to

one charging aggravated sexual battery, it does not change the nature and character of the offense

when both offenses are “premised upon the same set of facts, namely, the sexual abuse the victim

suffered at the hands of” the defendant. Pulliam, 55 Va. App. at 717. This Court so ruled even

though the Commonwealth does not have to prove that the defendant possessed “lascivious

intent” to sustain a conviction for aggravated sexual battery, unlike a conviction for taking

indecent liberties with a minor. Id. at 714-15. By contrast, the Supreme Court rejected an

amendment of an indictment alleging capital murder in the commission of robbery to add a

charge alleging capital murder in the commission of rape. Powell v. Commonwealth, 261 Va.

512, 534-35 (2001). Even though the offense charged continued to be capital murder, the

amendment “include[d] an alternative and additional theory of capital murder.” Id. at 534. As a

result, the amendment expanded the indictment to include an additional charge, permitting the

defendant to be convicted of two capital murder offenses instead of one. Id. Under those

-6- circumstances, the amendment “was premised upon allegations not previously considered by the

grand jury,” which effectively undercut the grand jury’s function of ascertaining whether the

evidence would “sustain the charge brought.” Id. at 535.

Relevant here, larceny is “the wrongful or fraudulent taking of personal goods of some

intrinsic value, belonging to another, without his assent, and with the intention to deprive the

owner thereof permanently.” Creamer v. Commonwealth, 64 Va. App. 185, 205 (2015) (quoting

Carter v. Commonwealth, 280 Va. 100, 104-05 (2010)). Hardy was originally indicted for grand

larceny in violation of Code § 18.2-95, which provided that “[a]ny person who . . . commits

simple larceny not from the person of another of goods . . . of the value of $1,000 or more . . .

shall be guilty of grand larceny.” See Frango v. Commonwealth, 66 Va. App. 34, 43 (2016)

(explaining that an indictment charging larceny in violation of Code § 18.2-95 “alleges the

common law crime” (quoting Hunt v. Commonwealth, 46 Va. App. 25, 30 (2005))).

The amended indictment charged Hardy with violating Code § 18.2-108, which provides

that a person is “guilty of larceny” if he “receives from another person, or aids in concealing, any

stolen goods or other thing, knowing the same to have been stolen.” (Emphasis added).

Although the elements of the statutes differ, both statutes target wrongfully and fraudulently

depriving a person of his property and share a “similar[] . . . purpose and subject matter.”

Charles, 63 Va. App. at 295 (quoting Dunaway, 52 Va. App. at 297). Indeed, both offenses are,

by definition, larcenies. See Code §§ 18.2-95, -108(A).

And, importantly, the conduct in the original and amended indictments arose from the

“same set of facts.” See Pulliam, 55 Va. App. at 717. The original indictment alleged that

Hardy stole “a gas[-]powered golf cart valued at $1000 or more and belonging to Thomas

Phillips.” The amendment changed it only to allege that Hardy “unlawfully and feloniously,

receive[d] a gas[-]powered golf cart valued at $1000 or more, knowing it to be stolen[,] and

-7- belonging to Thomas Phillips.” Under both indictments, Hardy was alleged to have committed a

larceny by depriving the same victim of the same item of stolen property. Additionally, the

Commonwealth did not seek to offer any other evidence after amending the indictment, thereby

demonstrating that both indictments arose from the same set of facts and that Hardy’s conviction

under the amended indictment rested on the proof the Commonwealth presented under the

original indictment. Accordingly, the amendment did not “alter the essential, underlying conduct

on the part of [Hardy] that was charged in the original indictment.” See Dunaway, 52 Va. App.

at 297. Based on this record and the established law, the trial court did not err by granting the

Commonwealth’s motion to amend the indictment.

III. Due Process

“The Due Process Clauses of the Constitution of the United States and the Constitution of

Virginia mandate that an accused be given proper notification of the charges against him.” Clark

v. Commonwealth, 78 Va. App. 726, 760-61 (2023) (quoting Commonwealth v. Dalton, 259 Va.

249, 253 (2000)); U.S. Const. amend. XIV; Va. Const. art. 1, § 11. Indictments satisfy that

requirement by “provid[ing] the accused with notice of the cause and nature of the accusations

against him” so that he can prepare a defense. Commonwealth v. Bass, 292 Va. 19, 28 (2016).

Hardy argues that amending the indictment violated his due process rights because he was

deprived of the opportunity to intelligently defend against the amended charge. He emphasizes

that jeopardy had attached and he had presented his evidence before the indictment was

amended.

Although Code § 19.2-231 permits certain amendments to indictments before a case is

submitted to the fact finder, the General Assembly carefully calibrated the statute to protect

defendants’ due process rights. It is because “due process requires an indictment to provide the

accused notice of the charges against him” that Code § 19.2-231 permits amendments “only if

-8- they do not alter ‘the nature or character’ of the accusations.” Clark, 78 Va. App. at 761

(quoting Rawls v. Commonwealth, 272 Va. 334, 346 (2006)). “Code § 19.2-231 ‘is clearly

intended to protect the defendant from being deprived of notice of the offense charged.’”

Pompell, 80 Va. App. at 482 (quoting Rawls, 272 Va. at 346). As such, “an amendment that

comports with the requirements in Code § 19.2-231 protects the right of an accused to timely

notice of the charges against him.” Id. at 483. As discussed above, the amendment to Hardy’s

indictment complied with Code § 19.2-231. Consequently, his due process rights were not

violated.4

CONCLUSION

Due to the lack of timely filed transcripts or a statement of facts, this Court cannot

consider the merits of the assignments of error relating to the denial of Hardy’s motion to

suppress and the sufficiency of the evidence to support the conviction. The Court also concludes

that the amendment of the indictment did not change the nature of the charged offense or violate

Hardy’s rights to due process. Therefore, the circuit court’s judgment is affirmed.

Affirmed.

4 Hardy argues that the “remedy” in Code § 19.2-231 “of requesting a continuance . . . was not available” because of “the timing of the amendment.” See Code § 19.2-231 (providing that “if the court finds that such amendment operates as a surprise to the accused, he shall be entitled, upon request, to a continuance of the case” (emphasis added)). The record, however, does not demonstrate that Hardy asked for a continuance or raised that argument below. Accordingly, it is waived. See Rule 5A:18. -9-