COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Salem, Virginia 

NEHEMIAH NMN THOMAS, JR. 

 OPINION BY 

v. Record No. 2197-96-3 CHIEF JUDGE NORMAN K. MOON 

 JULY 15, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Margaret Angela Nelson, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Nehemiah NMN Thomas, Jr. appeals his conviction of driving 

after having been declared an habitual offender, second offense. 

 Thomas asserts that the trial court erred in: (1) finding that 

Code § 46.2-357(B)(3) was not vague or overly broad and that it 

conformed with legislative intent; (2) finding that Code 

§ 46.2-357(B)(3) does not require that a prior conviction of a 

first offense precede the charging of a second offense under Code 

§ 46.2-357; and (3) permitting the Commonwealth to amend the 

indictment. 

 We hold that Code § 46.2-357(B)(3) is not vague or overly 

broad and that its plain meaning clearly provides that any second 

or subsequent driving offense in violation of Code § 46.2-357 

subjects a defendant to the enhanced punishment provision of Code 

§ 46.2-357, whether or not the defendant has been convicted of 
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the earlier offense at the time the second driving offense 

occurs. We further hold that because the Commonwealth's amended 

indictment did not change the "nature or character of the offense 

charged," the trial court did not err in permitting the 

amendment. Accordingly, we affirm. 

 Thomas was adjudicated an habitual offender on April 5, 

1995. On August 30, 1995, he was charged with driving after 

having been declared an habitual offender, first offense. He was 

ultimately convicted of this charge on March 19, 1996. On 

February 11, 1996, Officer Flynn of the Lynchburg Police 

Department observed Thomas operating an automobile that matched 

the description of a stolen vehicle. Thomas sped away and Flynn 

pursued him until Thomas stopped his vehicle in the middle of a 

street, exited the vehicle, and fled on foot. Flynn apprehended 

Thomas, and after informing him that he had determined that the 

vehicle was not stolen, Flynn inquired whether Thomas' license 

was "suspended or habitual or anything like that?" Thomas 

responded that he knew that his license was "suspended." Thomas 

was charged with driving after having been declared an habitual 

offender, second offense. 

 An indictment was returned on May 6, 1996, stating that 

Thomas, having been declared an habitual offender, "operated a 

motor vehicle . . . having been once or more previously convicted 

and sentenced for a like offense." At trial, Thomas argued that 

he was improperly charged with a felony under Code 

§ 46.2-357(B)(3) because he had not been convicted of driving 
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after having been declared an habitual offender, first offense, 

before he committed the second offense. The Commonwealth 

introduced a certified copy of an order which established that 

Thomas was convicted on March 19, 1996 of operating a motor 

vehicle on August 30, 1995, after having been adjudicated an 

habitual offender, first offense. Subsequently, the Commonwealth 

was permitted, over Thomas' objection, to amend the indictment to 

read that Thomas, having been declared an habitual offender, had 

driven on February 11, 1996, "being a second or subsequent 

offense, in violation of Virginia Code § 46.2-357." Thomas was 

subsequently found guilty of driving after having been declared 

an habitual offender, second offense. 

Constitutional Challenge

 Thomas asserts that the language of Code § 46.2-357(B)(3) is 

vague and overly broad and consequently violated his due process 

rights under the Fourteenth Amendment of the United States 

Constitution, and Article I, Section 8 of the Virginia 

Constitution. Code § 46.2-357(B) provides that: 

 Any person found to be an habitual 

offender under this article, who is 

thereafter convicted of driving a motor 

vehicle . . . shall be punished as follows: 

 

 * * * * * * * 

 2. If such driving, of itself, does 

endanger the life, limb, or property of 

another, such person shall be guilty of a 

felony . . . and no portion of such sentence 

shall be suspended except that . . . (ii) in 

cases wherein such operation is necessitated 

in situations of apparent extreme emergency 

which require such operation to save life or 

limb, said sentence, or any part thereof may 
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be suspended. 

 3. If the offense of driving while a 

determination as an habitual offender is in 

effect is a second or subsequent such 

offense, such person shall be punished as 

provided in subdivision 2 of this subsection 

. . . . 

(Emphasis added.) 

 "A criminal statute is unconstitutionally vague only if it 

fails to define the offense `with sufficient definiteness that 

ordinary people can understand what conduct is prohibited and in 

a manner that does not encourage arbitrary and discriminatory 

enforcement.'" Bell v. Commonwealth, 21 Va. App. 693, 700, 467 

S.E.2d 289, 292 (1996) (citations omitted). The meaning of Code 

§ 46.2-357(B)(3) is clear on its face. A person of ordinary 

intelligence would understand that any second or subsequent 

driving in violation of Code § 46.2-357 would make him eligible 

for the enhanced punishment provision, whether or not he had been 

convicted of the earlier offense before the occurrence of the 

second driving offense. Cf. Jones v. Commonwealth, 21 Va. App. 

435, 440, 464 S.E.2d 558, 560 (1995) (en banc). 

 Code § 46.2-357(B)(3) establishes that a second "offense" is 

punishable as a felony. The statute does not require that for a 

first offense to be cognizable as such, it must not only occur 

prior to the second offense, but also result in conviction prior

to the occurrence of the second offense. 

 Thomas' assertion that the trial court's application of Code 

§ 46.2-357 is inconsistent with legislative history, is also 
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unpersuasive. When interpreting a statute, if the language is 

clear and unambiguous on its face, we will look no further than 

the plain meaning of the statute's words. Brown v. Lukhard, 229 

Va. 316, 321, 330 S.E.2d 84, 87 (1985). "[W]hen the language of 

an enactment is free from ambiguity, resort to legislative 

history and extrinsic facts is not permitted because we take the 

words as written to determine their meaning." Id. Because Code 

§ 46.2-357(B)(3) is unambiguous, it is both unnecessary and 

improper to consider legislative history in determining the 

meaning of the statute. 

Mitigation Provisions

 We also reject Thomas' additional argument that Code 

§ 46.2-357 should be interpreted as requiring a conviction for a 

first offense prior to the occurrence of the second offense, 

because Code § 46.2-357(B)(2)(ii), unlike other habitual offender 

statutes, provides for discretionary mitigation of the enhanced 

punishment provision. 

 The fact that Code § 46.2-357(B)(2)(ii) contemplates the 

possibility that an habitual offender might find himself in an 

emergency situation requiring that he drive, has no effect on the 

 interpretation of Code § 46.2-357(B)(3). Code 

§ 46.2-357(B)(2)(ii) merely provides for mitigation in punishment 

where an emergency necessitates driving, and as such, it does not 

alter the clear and unambiguous language of Code 

§ 46.2-357(B)(3). Nor does the mitigation provision of Code 

§ 46.2-357(B)(2)(ii) serve to somehow require that the language 
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of the statute be interpreted in a manner that is inconsistent 

with or different from the interpretation of other repeat 

offender sections. In analogous circumstances, we had held that 

Code § 18.2-248(C), addressing repeat drug offenders, does not 

require that the defendant be convicted of a first drug offense 

before he commits a second offense in order for the enhanced 

punishment provision to apply. Jones, 21 Va. App. at 440, 464 

S.E.2d at 560 (1995) (en banc). 

Amendment of Indictment

 Code § 19.2-231 authorizes a trial court to amend an 

indictment, "provided the amendment does not change the nature 

and character of the offense." Willis v. Commonwealth, 10 Va. 

App. 430, 437, 393 S.E.2d 405, 408 (1990). "The statute 

authorizes a trial court to amend indictments in two instances: 

where there is a defect in form, or where there is a variance 

between the allegations and the evidence, provided the amendment 

does not change the nature or character of the offense charged." 

Id. The statute is to be liberally construed in order to avoid 

unnecessary delay in the criminal justice process by allowing 

amendment, rather than requiring reindictment. Sullivan v. 

Commonwealth, 157 Va. 867, 876-77, 161 S.E. 297, 300 (1931). 

 The record establishes that the Commonwealth's amendment 

did not change the "nature or character of the offense charged." 

Prior to the amendment, the indictment charged Thomas with 

violating Code § 46.2-357 by having been declared an habitual 

offender, and then operating a motor vehicle, "having been once 
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or more previously convicted and sentenced for a like offense." 

The amended indictment charged that Thomas had driven on February 

11, 1996, after having been declared an habitual offender, "being 

a second or subsequent offense, in violation of Virginia Code 

§ 46.2-357." The amended indictment charged Thomas under the 

same code section and alleged the same actions in substantiation 

of the charge. The changes effected by the amendment were 

semantic in nature and did not substantively alter the charge 

against Thomas. The amended indictment also satisfied the 

requirements of Code § 19.2-220 in that it provided a "plain, 

concise, and definite written statement . . . describing the 

offense charged" by detailing the date, place, and nature of the 

acts which Thomas were alleged to have committed and by "cit[ing] 

the statute . . . that defines the offense." 

 Holding that Code § 46.2-357 is not vague or overly broad, 

that it is consequently unnecessary to consider legislative 

history in interpreting the statute, and that the trial court did 

not err in permitting amendment of the indictment, we affirm. 

 Affirmed.