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. 
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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 
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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 
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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 

 

 1Appellant's first jury trial ended in a mistrial on 

September 14, 1995. 
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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 
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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. 

 

 2At 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. 
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 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. 
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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 
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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.