COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

BARBARA GAIL WATKINS 

 MEMORANDUM OPINION* BY 

v. Record No. 0975-96-3 JUDGE JOHANNA L. FITZPATRICK 

 MAY 6, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 Ross S. Haine, Assistant Public Defender, 

for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Barbara Gail Watkins (appellant) was convicted in a bench 

trial of the misdemeanor of contributing to the delinquency of a 

minor in violation of Code § 18.2-371. On appeal, she contends 

that the trial court erred in allowing amendment of the arrest 

warrant and finding the evidence sufficient to convict. For the 

following reasons, we affirm. 

 BACKGROUND

 On or about December 9, 1995, Kelly Buck (Kelly), a 

sixteen-year-old girl, who was not attending school remained home 

alone. She told her father (Mr. Buck) that she was going to play 

with friends, and that she would leave information regarding 

where she could be located on the counter. Later, her mother 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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(Mrs. Buck) called Kelly at home and spoke to a woman who was 

with Kelly. The woman told Mrs. Buck that Kelly was going to see 

"Ashley." Mrs. Buck later identified the woman's voice as being 

that of appellant. When the Bucks arrived home around 4:00 p.m., 

Mrs. Buck saw appellant, a man, and Kelly in a car going down 

their driveway. Inside the house, they found some of Kelly's 

clothing missing, and no note or information regarding her 

whereabouts. Mr. Buck called the police and filed a missing 

person report. 

 Mr. Buck called appellant, whose son was a classmate of 

Kelly's, several times but got no response. He went to 

appellant's trailer between 8:30 and 9:00 p.m. that evening, but 

found no one at home. Later that night, Officer Hickman of the 

Rockbridge County Police Department also went to appellant's 

trailer and knocked on the back door. Appellant answered the 

door and denied that Kelly was in the trailer. However, the 

following morning, appellant called the Bucks and told them that 

Kelly was taking a bath and that she would bring Kelly home as 

soon as she was finished. The Bucks went to the trailer and 

retrieved Kelly, who had "hickies" (sic) on her neck. Appellant 

was then arrested. 

 During trial on April 22, 1996, appellant made a motion to 

strike at the close of the Commonwealth's case on the ground that 

the evidence was insufficient to prove that appellant rendered 

Kelly "in need of supervision" as charged in the warrant. 
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Subsequently, the Commonwealth moved to amend the warrant. The 

Statement of Facts reflects appellant's objections to the motion 

to amend as follows: 

 [Appellant] objected to the [C]ommonwealth's 

making a motion to amend after [appellant] had 

made her motion to strike. [Appellant] also 

objected to the motion to amend on due process 

grounds, that the amended warrant was too vague to 

adequately inform [appellant] of the nature of the 

charges against her. 

The trial court found that the Commonwealth had made a prima

facie case that appellant's actions constituted a serious threat 

to the well-being of Kelly and allowed the Commonwealth to amend 

the warrant. No request for a continuance was made. 

 Appellant and her boyfriend testified that Kelly was a 

friend of appellant's son; that they picked her up from her home; 

that she spent the night with them in appellant's trailer by 

herself in the guest room; that appellant had not misled the 

Bucks; and that they thought Kelly had her parents' permission to 

spend the night. 

 At the close of the case, appellant renewed her motion to 

strike, arguing that: 

 [T]he [C]ommonwealth had not made out a prima 

facie case establishing that Kelly met the 

additional definitions of delinquent, in need 

of services, or abused or neglected as 

defined in [S]ection 16.1-228, Code of 

Virginia. 

The court overruled the motion, and found that appellant's 

actions "constituted a clear and substantial danger to the 

child's health that qualified Kelly as a child in need of 
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services." 
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AMENDMENT OF THE WARRANT 

 Appellant first contends that the trial court erred in 

allowing the Commonwealth to amend the warrant of arrest because 

it expanded the breath of culpable behavior for which she could 

have been found guilty and thus, changed the "nature and 

character of the offense." We find no merit in this assertion. 

 The trial court acted within its discretion in allowing the 

Commonwealth to amend the warrant. The applicable statute is 

Code § 16.1-137, "Procedure on appeal when warrant defective," 

which provides in pertinent part as follows: 

 Upon the trial of the warrant on appeal the 

court may, upon its own motion or upon the 

request either of the attorney for the 

prosecution or for the accused, amend the 

form of the warrant in any respect in which 

it appears to be defective. But when the 

warrant is so defective in form that it does 

not substantially appear from the same what 

is the offense with which the accused is 

charged, or even when it is not so seriously 

defective, the judge of the court having 

examined on oath the original complainant, if 

there be one, or if he sees good reason to 

believe that an offense has been committed, 

then without examination of witnesses, may 

issue under his own hand his warrant reciting 

the offense and requiring the defendant in 

the original warrant to be arrested and 

brought before him. Upon the arrest of the 

defendant on the new warrant and his 

production or appearance in court the trial 

shall proceed upon the new warrant. When 

there is an amendment of the original warrant 

the trial shall proceed on the amended 

warrant. But whether the warrant is amended 

or a new warrant is issued, the court before 

proceeding to trial on the same may grant a 

continuance to the prosecution or to the 

defendant upon such terms as to costs as may 

be proper under the circumstances of the 

case; provided, however, that if the warrant 
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be amended or if a new warrant be issued 

after any evidence has been heard, the 

accused shall be entitled to a continuance as 

a matter of right. 

(Emphasis added). 

 The trial court may permit amendment of the warrant at any 

time before it renders a decision in the case. Code § 16.1-137 

was intended to provide broad powers and abundant opportunity to 

amend a defective warrant where justice so requires. See Harley 

v. Commonwealth, 131 Va. 664, 667, 108 S.E. 648, 649 (1921) 

(holding that reversal is not required "for formal imperfections 

of [a] warrant unless the ends of justice require it"). 

Additionally, the Statement of Facts does not disclose that 

appellant requested a continuance or argued surprise. See

Robinson v. Commonwealth, 111 Va. 844, 847, 69 S.E. 518, 519 

(1910) (where "the accused did not ask for a continuance and 

there is nothing to indicate that he was prejudiced" by the 

amendment during trial, the irregularity is harmless). Thus, 

appellant cannot now claim that the amendment was so prejudicial 

that the trial court was required, as a matter of law, to deny 

the motion to amend. See, e.g., George v. Commonwealth, 242 Va. 

264, 411 S.E.2d 12 (1991), cert. denied, 503 U.S. 973 (1992). 

 Further, the amendment sufficiently apprised appellant of 

the nature of the charges against her. In describing the nature 

and character of an offense, it is not necessary to follow the 

exact words of the statute. See Black v. Commonwealth, 223 Va. 

277, 288 S.E.2d 449 (1982). Rules 3A:4 and 3A:6 may be satisfied 
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by simply citing the statute at issue -- the elements of the 

offense are deemed to be incorporated by reference. See Reed v. 

Commonwealth, 3 Va. App. 665, 667, 353 S.E.2d 166, 168 (1987) 

("By the citation of the statute in the indictment appellant was 

informed of the essential elements of the case against him."). 

 In the instant case, the warrant correctly cited the statute 

under which appellant was charged and convicted. The amendment 

neither changed nor broadened the scope of the charge contained 

in the warrant. Throughout the proceeding, appellant was aware 

that the charges were based on Code § 18.2-371 and covered her 

actions on December 9 and 10, 1995. There was no allegation of 

surprise nor a request for the statutory remedy of a continuance. 

 Thus, the trial court properly allowed the amendment. 

 SUFFICIENCY

 Appellant next argues that the evidence was insufficient to 

prove that any action taken by appellant placed Kelly within the 

prohibitions of Code § 16.1-228.1 We disagree. 

 

 1Code § 16.1-228 defines a "child in need of services" as "a 

child whose behavior, conduct or condition presents or results in 

a serious threat to the well-being and physical safety of the 

child." Additionally, 

 to find that a child falls within these 

provisions, (i) the conduct complained of 

must present a clear and substantial danger 

to the child's life or health or (ii) the 

child or his family is in need of treatment, 

rehabilitation or services not presently 

being received, and (iii) the intervention of 

the court is essential to provide the 

treatment, rehabilitation, or services needed 

by the child or his family. 
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 Clear and convincing evidence supported the trial court's 

finding that Kelly was both a "child in need of services" and one 

"in need of supervision" under Code § 16.1-228. Kelly was taken 

by appellant to her home where she spent the night with 

appellant's son without her parents' permission and was involved 

in sexual activity. Appellant was involved in preplanning this 

event, took the child from her home, lied both to Kelly's parents 

and the police about her departure and the circumstances 

surrounding her overnight stay. The court was justified in 

concluding that Kelly's family needed assistance and services to 

regain control over their daughter and to remove appellant's 

detrimental influence. 

 Sufficient facts also supported the court's conclusion that 

Kelly was a "child in need of supervision." Although enrolled, 

she did not regularly attend school. Her activities on December 

9-10, 1995 showed an obvious lack of judgment and inability to 

Code § 16.1-228 also defines a "child in need of supervision" as 

inter alia, 

 A child who, without reasonable cause 

and without the consent of his parent, lawful 

custodian or placement authority, remains 

away from or habitually deserts or abandons 

his family . . . and (i) such conduct 

presents a clear and substantial danger to 

the child's life or health, (ii) the child or 

his family is in need of treatment, 

rehabilitation, or services not presently 

being received, and (iii) the intervention of 

the court is essential to provide the 

treatment, rehabilitation or services needed 

by the child or his family. 
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attend to her own health and safety during the hours in which she 

was supposed to have been in school. Thus, the court was 

justified in concluding that its intervention was necessary to 

provide services to Kelly and her family. 

 For the foregoing reasons, the judgment of the trial court 

is affirmed. 

 Affirmed.