COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

CHRISTOPHER D. BOTTENFIELD 

 OPINION BY 

v. Record No. 0921-96-3 JUDGE JOHANNA L. FITZPATRICK 

 JULY 29, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY 

Thomas H. Wood, Judge 

 Roland S. Carlton, Jr., for appellant. 

 Daniel J. Monroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Christopher D. Bottenfield (appellant) was convicted in a 

jury trial of aggravated sexual battery in violation of Code 

§ 18.2-67.3 and of taking indecent liberties with a minor in 

violation of Code § 18.2-370. On appeal, appellant contends that 

the trial court erred in: (1) overruling his motion to suppress 

his confession; (2) preventing him from arguing the absence of 

Miranda warnings to the jury; and (3) allowing the Commonwealth 

to amend the indictment. For the following reasons, we affirm. 

I. BACKGROUND 

 On August 25, 1995, Sergeant Dwight Wood (Wood) of the 

Augusta County Sheriff's Department asked Christopher D. 

Bottenfield (appellant) to come to the Sheriff's Department to 

discuss allegations of sexual abuse made by the victim, Kelly 

Bottenfield (Kelly). Before the interview began, Wood told 

appellant that no charges were pending against him and that he 

did not have to discuss the allegations. However, appellant 
 2 

agreed to meet and talk with Wood regarding the allegations. 

 The interview, which occurred the following day, lasted 

approximately thirty-four minutes and was not recorded. Wood 

realized at the beginning of the interview that appellant was 

"slow," and he phrased his questions to appellant accordingly. 

Following the question and answer part of the interview, Wood 

made a list of short statements (a "very, very simple" statement) 

relating to the questions and answers. He went over these 

statements several times with appellant. Appellant signed the 

bottom of the page, and the interview terminated. At no time, 

either before or during the interview, were Miranda warnings 

given to appellant. After the interview, Wood wrote down from 

memory his questions and appellant's responses. 

 On September 1, 1995, appellant was arrested and on October 

23, 1995, he was indicted for attempted rape, sodomy, aggravated 

sexual battery, and taking indecent liberties. Appellant filed a 

motion to suppress statements made during the August 26, 1995 

interview on the basis that this confession was involuntary. On 

March 18, 1996, the suppression hearing was held, and the trial 

court overruled appellant's motion, finding as follows: 

 [W]e've got a case here where [] an adult has 

been charged with engaging in sexual activity 

with a child under the age of thirteen years. 

 And [] an experienced police investigator 

calls him on the phone and asks him if he 

will voluntarily come to the Sheriff's 

Department. This individual then drives his 

own vehicle . . . to the Augusta County 

Sheriff's Department. 

 . . . And the [] investigator talks to him 
 3 

and determines that he is slow. But he also 

determines that he has been employed for 

seven years and that he does drive. He asks 

him some questions. I haven't seen the 

questions. I haven't seen the statement. I 

don't know what he asked him. I don't know 

what the answers are. I don't know whether 

the man signed it. The police officer, 

again, of twenty some years, believed this 

man understood what he was admitting to. 

And, if that's the case, gentlemen, the 

statement was voluntary. 

 . . . And if the interrogation is not 

custodial, the Miranda . . . presumption 

doesn't apply. And this is not a custodial 

interrogation. 

 Wood testified at the jury trial that at the time of the 

August 26, 1995 interview, no arrest warrants or charges were 

pending against appellant. Wood stated that appellant was free 

to leave at any time and that appellant was never told that he 

was under arrest or going to be charged. Appellant was not 

searched, frisked, or placed in handcuffs. Wood further 

testified that, although he realized appellant was "slow," 

appellant was able to carry on an intelligent conversation. 

 Dr. Joseph Conley, Jr. (Dr. Conley) testified on behalf of 

appellant and was qualified as an expert in neuropsychology. 

Prior to trial, he interviewed and examined appellant, and 

determined that his IQ was sixty-one, which is, according to Dr. 

Conley, in the mentally retarded range. He testified at trial 

regarding appellant's intelligence, reading ability, reading 

comprehension, spelling ability, and mathematics ability, and 

concluded that appellant was unable to comprehend the terminology 
 4 

used in the confession he signed. 

 In admitting appellant's statement into evidence, the court 

stated that: 

 [T]he jury is . . . not gonna hear evidence 

concerning the . . . admissibility of this 

confession. It's not gonna hear evidence 

concerning whether this confession was 

voluntary, as that . . . term is a legal term 

. . . . But, certainly, this man's mental 

capability and his ability to understand 

words and whatever -- certainly, that is 

admissible, because the jury is gonna have to 

determine what weight to give to this 

confession; not being limited in any respect 

with that regard. 

(Emphasis added). 

 At the conclusion of the Commonwealth's case, appellant 

moved to strike the Commonwealth's evidence. The motion was 

overruled. The Commonwealth then requested to change the code 

section of the taking indecent liberties charge, and the court 

allowed the amendment. The court specifically found that "the 

amendments are technical in nature; they don't change the nature 

of the charge in either . . . situation." 

II. MOTION TO SUPPRESS 

 Appellant argued at the pretrial suppression hearing that 

the confession obtained during his questioning on August 26, 1995 

was "not voluntary as is required by the Due Process Clause of 

the Fifth and Fourteenth Amendments." On appeal, appellant 

contends that the trial court erred in finding that his 

confession was voluntary, because the trial court failed to 

independently evaluate the circumstances surrounding his 
 5 

confession. Although we agree that the trial court erred when it 

apparently relied primarily on Wood's determination that 

appellant's statement was voluntary, we also conclude, based on 

our independent review of the record, that appellant's confession 

was voluntary. 

 The Commonwealth has the burden to prove, by a preponderance 

of the evidence, that a defendant's confession was freely and 

voluntarily given. See Wilson v. Commonwealth, 13 Va. App. 549, 

554, 413 S.E.2d 655, 658 (1992); Campbell v. Commonwealth, 194 

Va. 825, 830, 75 S.E.2d 468, 471 (1953). In determining whether 

a statement or a confession was voluntary, the trial court must 

decide whether the statement was the "product of an essentially 

free and unconstrained choice by its maker," or whether the 

maker's will "has been overborne and his capacity for 

self-determination critically impaired." Commonwealth v. 

Peterson, 15 Va. App. 486, 487-88, 424 S.E.2d 722, 723 (1992) 

(citations omitted). In so deciding, the trial court must look 

to "the totality of all the surrounding circumstances." Id.

(emphasis added). The court must consider the defendant's age, 

intelligence, mental and physical condition, background and 

experience with the criminal justice system, the conduct of the 

police, and the circumstances of the interview. See id.; Morris 

v. Commonwealth, 17 Va. App. 575, 579, 439 S.E.2d 867, 870 

(1994). Because only state action may violate a criminal 

defendant's due process rights, "coercive police activity is a 
 6 

necessary predicate to the finding that a confession is not 

'voluntary' within the meaning of the Due Process Clause of the 

Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167, 

107 S. Ct. 515, 522 (1986). 

 "On appeal, we consider the entire record in determining 

whether the trial court properly denied appellant's motion to 

suppress." Patterson v. Commonwealth, 17 Va. App. 644, 648, 440 

S.E.2d 412, 415 (1994) (citing DePriest v. Commonwealth, 4 Va. 

App. 577, 583, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 

985 (1988)). "[T]he standard for appellate review of whether a 

confession is voluntary [] requir[es] an independent examination 

of the totality of the circumstances . . . ." Wilson, 13 Va. 

App. at 551, 413 S.E.2d at 656; see also Midkiff v. Commonwealth, 

250 Va. 262, 268-69, 462 S.E.2d 112, 116 (1995) (voluntariness of 

a confession "is a question of law, subject to independent 

appellate review"). 

 "The defendant's relatively low intelligence and defective 

education are factors which should be weighed, along with all 

surrounding circumstances, in determining whether . . . his 

confession was voluntary." Simpson v. Commonwealth, 227 Va. 557, 

564, 318 S.E.2d 386, 390 (1984) (citation omitted); see also

Connelly, 479 U.S. at 165, 107 S. Ct. at 520-21 (stating that 

"mental condition is surely relevant to an individual's 

susceptibility to police coercion). However, "a defendant's 

mental condition, by itself and apart from its relation to 
 7 

official coercion, should [never] dispose of the inquiry into 

constitutional 'voluntariness.'" Connelly, 479 U.S. at 164, 107 

S. Ct. at 520. 

 Indeed, in Colorado v. Connelly, the United States Supreme 

Court recognized that a defendant's mental condition is "surely 

relevant to an individual's susceptibility to police coercion." 

Connelly, 479 U.S. at 165, 107 S. Ct. at 521 (holding that 

defendant's statement was voluntary, even though defendant argued 

that he suffered from chronic schizophrenia and command 

hallucinations that interfered with his volitional abilities). 

However, the Court also determined that the "mere examination of 

the confessant's state of mind can never conclude the due process 

inquiry." Id. In its analysis of a defendant's ability to make 

a voluntary confession, the Court reasoned that, "[a]bsent police 

conduct causally related to the confession there is simply no 

basis for concluding that any state actor has deprived a criminal 

defendant of due process of law." The Court ultimately held that 

"coercive police activity is a necessary predicate to the finding 

that a confession is not 'voluntary' within the meaning of the 

Due Process Clause of the Fourteenth Amendment." Id. at 167, 107 

S. Ct. at 522 (emphasis added). In relying on the Supreme 

Court's holding in Connelly, we held that "[t]he amount of 

coercion necessary to trigger the due process clause may be lower 

if the defendant's ability to withstand the coercion is reduced 

. . . but some level of coercive police activity must occur 
 8 

before a statement or confession can be said to be involuntary." 

Peterson, 15 Va. App. at 488, 424 S.E.2d at 723. 

 We first hold that the trial court's ruling that appellant's 

confession was voluntary was erroneous because the trial court 

did not base its conclusion on an analysis of the totality of the 

circumstances. In its ruling, the trial court stated: 

 [Sergeant Wood] asked [appellant] some 

questions. I haven't seen the questions. I 

haven't seen the statement. I don't know 

what he asked him. I don't know what the 

answers are. I don't know whether the man 

signed it. The police officer, again, of 

twenty some years, believed this man 

understood the questions that he was being 

asked; he understood what he was admitting 

to. And, if that's the case, gentlemen, the 

statement was voluntary. 

(Emphasis added). The trial court apparently adopted Wood's 

determination that appellant "understood what he was admitting 

to." Because the trial court did not independently consider the 

circumstances relevant to the issue of voluntariness, its 

decision to deny appellant's motion to suppress his confession 

was based upon an erroneous predicate. 

 However, based upon our review of the entire record adduced, 

we hold that appellant's oral confession to Wood was voluntary. 

Appellant was asked by Wood to come to the Sheriff's Department 

to discuss the allegations against him, and he voluntarily drove 

himself to the Sheriff's Department for the interview. Wood told 

appellant that no charges were pending against him and that he 

did not have to discuss the allegations or speak further. Wood 
 9 

 

testified that the door to his office was open during the entire 

interview and that appellant was free to leave at any time. The 

first part of the interview consisted of an oral discussion of 

the victim's allegations against appellant. Wood phrased his 

questions simply and made notes of appellant's oral responses. 

Wood testified that he noticed that appellant was "limited in 

education" and that he had "to ask [his] questions sometimes more 

than once and in different ways, for [appellant] to understand 

them." During this stage of the interview, appellant stated 

that, among other things, he had made the victim touch and put 

her mouth on his penis and that he had touched and placed his 

finger inside the victim's vagina.1

 

 1 At appellant's trial, Wood testified that he had made 

notes of his questions and appellant's answers during the oral 

stage of the interview. He then read these notes into evidence: 

 Okay. As I said, this interview was on the 

26th of August, and in my office at 

approximately 7:30 P.M. "[The victim] said 

you have touched her and made her do some 

things that she didn't like." His answer, 

with no denial, "I've done some things." 

"[The victim] said you have--you took her 

clothes off, and yours." His answer, "Just 

one time." "[The victim] said you laid on 

top of her." His reply, "Yes, but I didn't 

do anything." My reply to that, "you 

didn't-you didn't have any clothes on or she. 

 That's something that you shouldn't have 

done." His answer, "Yes, I guess so." 

"Kelly said you made her touch your penis. 

She called it your private. Also, that she 

put her mouth on your private." His answer, 

"Yes, but that's all." I asked him, "Do you 

think that's wrong?" His reply, "No, I know 

I shouldn't have done that." I asked--I 

said, "[Appellant], what do you call 

private?" And then I detailed that further 
 10 

 The evidence regarding this stage of the interview does not 

indicate that appellant's oral confession was coerced in any way 

by Wood. In addition, Wood did not use complex questions or 

other tactics aimed at exploiting appellant's disability in order 

to compel an unintentional confession. On the contrary, Wood 

testified that he framed his questions simply and repeated them 

several times when it appeared that appellant did not understand. 

 Here, appellant identifies no coercive tactics used by the 

police to overbear his will nor any circumstances that caused him 

to be "especially susceptible." Appellant's low IQ standing 

alone is insufficient to outweigh all other considerations and to 

render the statement involuntary. See also Goodwin v. 

 

"[the victim's]". His answer, "Her doodle." 

 I asked, "Did you touch her doodle?" His 

answer, "One time." I asked, "What did you 

touch her doodle with?" His reply, "Finger." 

 I asked, "Did you put your finger inside?" 

His reply, "Just a little. I shouldn't have 

done that." And I replied "You're right." 

"You touched her with your penis, too," my 

question. His answer, "Yes, but not much." 

Kelly said your private felt sticky. His 

answer--or question, "Did she get you off?" 

And then I further asked, "Did you come?" 

His answer to that, "I did get off, but not 

in her; not on her." I asked [appellant], 

"Why did you do these things?" His reply was 

he didn't know. I asked him "how long have 

you done this?" His answer, "Just a little 

while." I said, No, how long? How many 

times?" His answer to that, "Just that 

time." I asked him, "Are you sure?" His 

reply, "Yes." "[The victim] said that you've 

done this in your bedroom." His answer, 

"Yes." I asked, "Who else have you done this 

with?" And he said "Just her." 
 11 

Commonwealth, 3 Va. App. 249, 349 S.E.2d 161 (1986) (holding that 

defendant's mental retardation and intoxication did not interfere 

with his ability to make a voluntary confession). 

 Appellant additionally contends that his confession was 

involuntary because he did not understand the written confession 

that he signed. We disagree that appellant's signature on the 

written confession amounted to a constitutional violation. The 

record indicates that after the oral portion of the interview, 

Wood drafted a confession containing eight statements. The 

record also indicates that the content of these written 

statements merely summarized appellant's oral responses to Wood's 

questions about his sexual activity with the victim.2

 Wood read 

each statement to appellant, and appellant signed the written 

confession. Appellant's expert, Dr. Conley, testified that 

appellant probably did not understand the content of this written 

confession because the eight statements were "drafted . . . at a 

higher level than that which . . . [appellant] was capable of 

comprehending." However, no evidence in the record impugned 

 

 2 At trial, Wood read the written statement that appellant 

signed. It said: 

 I have touched [the victim] in her privates 

with my finger. I touched Kelly with my 

penis. I touched her doodle with my penis. 

I had Kelly put her mouth on my penis. I had 

Kelly rub my penis. I did get off, but not 

on her. I had my clothes off and Kelly's 

too. I realize what I did was wrong. 

Under his signature, appellant wrote, "I went to ten grade." 
 12 

appellant's ability to respond accurately to Wood's oral 

questions. Because the content of the written confession did not 

vary from the content of appellant's oral confession, which was 

the "product of an essentially free and unconstrained choice," we 

conclude that appellant's due process rights were not violated 

when Sergeant Wood had him sign the written confession. 

 Accordingly, the record establishes that appellant "was 

fully cognizant of his situation, was in control of his cognitive 

powers, understood the circumstances, and was exercising his free 

will when he admitted his involvement in the crime[s] . . . the 

circumstances . . . were not so compulsive or coercive that 

[appellant] was prevented from weighing his options, 

understanding the situation, and making a knowing and calculated 

decision to confess to his involvement." See Wilson, 13 Va. App. 

at 554, 413 S.E.2d at 658. The standard used by the trial court 

when ruling on the voluntariness issue, while erroneous, worked 

no injustice. Upon review of the entire record, we hold that the 

confession was voluntarily given. 

 III. MIRANDA WARNINGS 

 Next, appellant argues that the trial court erred in 

admitting the confession despite the absence of Miranda warnings, 

and that the issue of the absence of the warnings should have 

been argued to the jury. 

 "'[T]he Supreme Court has made it clear that the prescribed 

warnings must be given before statements are taken from suspects 
 13 

only where there is custodial interrogation as thus defined in 

Miranda: "By custodial interrogation, we mean questioning 

initiated by law enforcement officers after a person has been 

taken into custody or otherwise deprived of his freedom of action 

in any significant way."'" Novak v. Commonwealth, 20 Va. App. 

373, 384-85, 457 S.E.2d 402, 407 (1995) (quoting Coleman v. 

Commonwealth, 226 Va. 31, 46, 307 S.E.2d 864, 872 (1983), cert. 

denied, 465 U.S. 1109 (1984)). Whether a detention amounts to a 

custodial interrogation for purposes of Miranda depends on all of 

the circumstances surrounding the detention. See Cherry v. 

Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244 (1992). 

Factors we may consider include, inter alia, whether Wood 

informed appellant that he was not under arrest, whether 

appellant knew or had been apprised of the nature of the 

investigation, and the point at which appellant became the focus 

of the investigation. See Wass v. Commonwealth, 5 Va. App. 27, 

32-34, 369 S.E.2d 836, 839-40 (1987); Cherry, 14 Va. App. at 139, 

415 S.E.2d at 244. 

 On appeal, we must consider the evidence in the light most 

favorable to the Commonwealth, the prevailing party below. 

Novak, 20 Va. App. at 385, 457 S.E.2d at 408. Additionally, in 

our analysis, we must view the situation from the vantage point 

of a "reasonable man in the suspect's position." Id. 

 The record demonstrates that appellant's statements were 

made during an informal interview that was conducted as part of 
 14 

Wood's investigation. Miranda does not apply to a police 

officer's general questioning in the course of the fact-finding 

process. See Pruett v. Commonwealth, 232 Va. 266, 271, 351 

S.E.2d 1, 4 (1986), cert. denied, 495 U.S. 940 (1990). Wood 

informed appellant that no charges were pending against him, that 

he was not under arrest, and he informed appellant of the nature 

of the allegations. The record also makes clear that appellant's 

freedom was not constrained in any way during the interview. We 

hold that the trial court correctly found that appellant was not 

in custody at the time of the confession. Accordingly, no 

Miranda warnings were required. See Oregon v. Mathiason, 429 

U.S. 492 (1977); Addison v. Commonwealth, 224 Va. 713, 299 S.E.2d 

521 (1983). 

 Appellant further contends that, in order to support his 

theory of voluntariness, he should have been allowed to argue to 

the jury the fact that he received no Miranda warnings. However, 

appellant cites no authority to support this argument. The issue 

of whether Miranda rights were required is a question of law, 

properly determined by the trial court and not, as appellant 

contends, a question of fact that could be considered by a jury 

in determining the weight to be given to the confession. 

IV. AMENDMENT OF THE INDICTMENT 

 Lastly, appellant argues that the trial court erred in 

allowing the Commonwealth to amend the indictment at the close of 

its case-in-chief, because the amendment changed the nature and 
 15 

character of the offense charged. The Commonwealth was permitted 

to amend the indictment charging appellant with taking indecent 

liberties from Code § 18.2-370.1, which requires proving a 

supervisory relationship between the accused and the victim, to 

Code § 18.2-370, which does not contain such a requirement. 

 Code § 19.2-231 states in pertinent part as follows: 

 If there be any defect in form in any 

indictment . . . or if there shall appear to 

be any variance between the allegations 

therein and the evidence offered in proof 

thereof, 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 . . . . 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 for a reasonable time. 

Additionally, "Rule 3A:6 provides that an error in the citation 

of the statute which defines the offense . . . shall not be 

ground for dismissal of an indictment . . . 'unless the court 

finds that the error or omission prejudiced the accused in 

preparing his defense.'" George v. Commonwealth, 242 Va. 264, 

281, 411 S.E.2d 12, 22 (1991), cert. denied, 503 U.S. 973 (1992) 

(quoting Rule 3A:6). 

 Accordingly, we hold that the trial court did not err in 

allowing the amendment. Notably, appellant did not allege 

surprise at the time of the amendment or request a continuance of 

the case. Code § 18.2-370 is the same offense as Code 

§ 18.2-370.1, except the former does not require proof that the 
 16 

offender was in a custodial or supervisory relationship with the 

victim. The amendment did not add elements to the charges or 

otherwise jeopardize appellant's opportunity to adequately defend 

himself. Finally, the original indictment gave appellant 

adequate notice of the essential elements of the charge against 

him. See George, 242 Va. at 280-81, 411 S.E.2d at 22 (no error 

in permitting the Commonwealth, after resting its case, to amend 

the indictment to correct a wrong code section, where amendment 

did not prejudice the accused in preparing his defense). 

 Finding no reversible error, we affirm. 

 Affirmed.