COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Athey and Friedman

Argued by videoconference

ANTHONY ANDRE’S MACKEY

OPINION BY

v. Record No. 0355-21-3 JUDGE GLEN A. HUFF

MARCH 1, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY

Edward K. Stein, Judge

Charles S. Moore (Law Offices of John C. Singleton, on brief), for 

appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. 

Herring,1 Attorney General, on brief), for appellee.

Anthony Andre’s Mackey (“appellant”) was indicted under Code § 18.2-374.3(C), which 

prohibits the use of a communications system to solicit, with lascivious intent, a person the 

accused knows or believes to be younger than fifteen years old. At the conclusion of a bench 

trial in the Circuit Court for Rockbridge County, the trial court found “some ambiguity in the 

victim’s testimony about whether she told [appellant] she was fifteen or about to be fifteen.” 

Accordingly, the trial court decided not to convict appellant as charged but instead convicted him 

of violating Code § 18.2-374.3(D), explaining that it “is the same offense [but] requires an age of 

at[] least fifteen but younger than eighteen.” At a later hearing on a motion to reconsider, the 

court opined that it could convict appellant under subsection D either: because subsection D is a 

lesser-included offense of subsection C; because the statute provides “one offense with graduated 

1

Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.

PUBLISHED
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punishment”; or because “you [could] take the position that the [c]ourt amended the indictment 

to conform with the evidence.” Appellant now appeals the denial of the motion to reconsider, 

arguing the trial court’s rationales were flawed and therefore his conviction is invalid. He also 

challenges the sufficiency of the evidence to support his conviction. This Court agrees that the 

trial court erred in convicting him under subsection D and therefore reverses appellant’s 

conviction.

I. BACKGROUND

The Commonwealth indicted the then-thirty-five-year-old appellant on July 8, 2019, 

under Code § 18.2-374.3(C) after he traded messages on Facebook Messenger with a 

fourteen-year-old girl. That statute prohibits “any person” from “[using] a communications 

system . . . for the purposes of soliciting, with lascivious intent, any person he knows or has 

reason to believe is a child younger than 15 years of age to knowingly and intentionally” engage 

in various conduct, including “[p]ropos[ing] to such child the performance of an act of sexual 

intercourse.” Code § 18.2-374.3(C).

Appellant’s trial was held on August 26, 2019. After closing arguments, the trial court 

addressed appellant, refusing to convict him under subsection C:

I am convinced from this evidence beyond a reasonable doubt that 

. . . these text messages are from you[,] . . . that you were clearly 

soliciting the victim in this case for sexual activity that falls within 

the code section, that you did so with lascivious intent that is 

required by the statute. However, there is some ambiguity in the 

victim’s testimony about whether she told you she was fifteen or 

about to be fifteen. I think she, quite frankly, testified as to both.

Because of that ambiguity, the trial court then decided, sua sponte, to instead convict 

appellant under subsection D of the same statute. Subsection D similarly prohibits “[a]ny 

person” from “[using] a communications system . . . for the purposes of soliciting, with 

lascivious intent, any child he knows or has reason to believe is at least 15 years of age but 
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younger than 18 years of age to knowingly and intentionally commit any of the activities listed 

in subsection C.” Code § 18.2-374.3(D) (emphasis added).

As the trial court explained:

Therefore, I am going to find you guilty of [Code §] 18.2-374.3, 

subsection D, which is the same offense, however, requires an age 

of at[] least fifteen but younger than eighteen, since . . . [t]he 

victim’s testimony was that she clearly told him that she was 

fifteen when she met him.

The trial court subsequently entered a conviction order, which cited only subsection D.

Appellant later filed a motion to reconsider. In his motion, appellant argued that because 

subsection D was not a lesser-included offense of subsection C, the trial court could not convict 

him under subsection D.

The trial court held a hearing on the motion to reconsider on December 19, 2019. After 

brief arguments from the parties, the trial court said it disagreed with appellant, suggesting,

[T]he [c]ourt may not have used the right term[,] but whether it’s a 

lesser[-]included offense or it’s in fact one offense with graduated 

punishment depending on [age], I think you can make the 

argument that the age is not really an element of the offense at all, 

[but instead] that the age is just an element of the punishment . . . .

The trial court then offered a new possible rationale, never before raised by the parties or the 

court: “[O]r you [could] take the position that the [c]ourt amended the indictment to conform 

with the evidence,” a move the trial court said it had the “absolute authority to do” by statute. 

The trial court continued: “So you can look at it that way. But the [c]ourt is convinced, no 

matter what label you put on it, that it has the authority to do this,” reiterating its conclusion that 

subsection D is a lesser-included offense of subsection C.

The trial court overruled the motion. Appellant’s counsel then asked the court to “note 

[appellant’s] exception for the purposes of the record.” It did and adjourned the hearing. This 

appeal followed.
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II. ANALYSIS

Appellant asks this Court to hold that the trial court erred when it denied his motion to 

reconsider his conviction because the conviction was improper. The Commonwealth maintains 

that the trial court could convict appellant under subsection D because subsection D is a 

lesser-included offense of subsection C or, in the alternative, because the trial court amended the 

indictment pursuant to its statutory authority. Thus, appellant’s objection to the validity of his 

conviction requires statutory interpretation, which this Court performs de novo. McCarthy v. 

Commonwealth, 73 Va. App. 630, 638-39 (2021).

An indictment must “give an accused notice of the nature and character of the accusations 

against him in order that he can adequately prepare to defend against his accuser.” King v. 

Commonwealth, 40 Va. App. 193, 198 (2003) (quoting Sims v. Commonwealth, 28 Va. App. 611, 

619 (1998)). Code § 19.2-220 thus dictates that an indictment “describ[e] the offense charged” 

or “state so much of the common law or statutory definition of the offense as is sufficient to 

advise what offense is charged.”

“[A]n accused cannot be convicted of a crime that has not been charged, unless the crime 

is a lesser-included offense of the crime charged.” Bowden v. Commonwealth, 52 Va. App. 673, 

675-76 (2008) (quoting Commonwealth v. Dalton, 259 Va. 249, 253 (2000)). Otherwise, the trial 

court has the power, subject to certain procedural requirements, to amend the indictment before a 

verdict under Code § 19.2-231 and charge the accused with another crime.

This Court agrees with appellant that neither course permitted his conviction here.

A. Appellant’s Challenge to His Conviction Is Preserved for Appeal

The Commonwealth first argues that appellant did not preserve his challenges to the trial 

court’s various rationales it gave to support his conviction under subsection D. Rule 5A:18 

precludes relief here, the Commonwealth claims, because appellant never specifically challenged 
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the trial court’s supposed amending of the indictment, and when he did object, his objection was 

not sufficiently specific.

Rule 5A:18 requires an appellant to state his objection “with reasonable certainty at the 

time of the [court’s] ruling, except for good cause shown or to enable this Court to attain the 

ends of justice,” in order to preserve the issue for appeal.

The trial court’s original ruling was that it would convict appellant under subsection D 

because subsection D was the “same offense” as subsection C except for a single element. 

Appellant preserved his challenge to his subsection D conviction with the filing, hearing, and 

denial of his motion to reconsider, in which he specifically addressed the lesser-included-offense 

rationale. Brandon v. Cox, 284 Va. 251, 255-56, 256 n.2 (2012). Unquestionably, then, he 

preserved his challenge to that rationale for appeal.

As for the argument that the trial court amended the indictment, Rule 5A:18 would have 

required appellant to object “at the time of the ruling”—when the trial court supposedly amended 

the indictment and convicted him. But the trial court did not make a “ruling” during the trial that 

it was amending the indictment: at the time, it never said (or even suggested) that it was doing 

so, and its actions at the time did not adhere to the requirements for amending an indictment. See 

Code § 19.2-231 (requiring specific findings and procedures to amend an indictment).2 And at 

the hearing on the motion to reconsider, the indictment-amendment rationale came up only 

during the trial court’s reflections on the many possible post-hoc justifications for its previous 

ruling (the conviction based on the lesser-included-offense rationale). The trial court, then, did 

2 Even if this Court were to consider the conviction of appellant to be a “ruling” that the 

trial court was amending the indictment, it is not clear that appellant had “the opportunity to 

object to [that] ruling . . . at the time it [was] made” because appellant could not have known the 

trial court was amending the indictment. See Code § 8.01-384 (“[I]f a party has no opportunity 

to object to a ruling or order at the time it is made, the absence of an objection shall not 

thereafter prejudice him . . . on appeal.”).
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not rule that it was amending the indictment there either.3 Because there was never a “ruling” in 

which the trial court amended the indictment, Rule 5A:18 does not apply and therefore does not 

preclude appellant’s challenge against this rationale.

B. Subsection D Is Not a Lesser-Included Offense of Subsection C

The Commonwealth first cites the trial court’s claim that it could convict appellant under 

subsection D because it is a lesser-included offense of subsection C. “An offense is not a 

lesser-included offense of a charged offense unless all its elements are included in the offense 

charged.” Dalton, 259 Va. at 253 (emphasis added). Subsection D fails this test.

Both subsections impose their own knowledge requirements, but each requires the 

accused’s knowledge of different facts. Subsection C, under which appellant was charged, says 

the accused must “know[] or ha[ve] reason to believe” the person he is communicating with is 

“younger than 15 years of age.” Code § 18.2-374.3(C). On the other hand, subsection D 

requires that the accused “know[] or ha[ve] reason to believe” the person he is communicating 

with is “at least 15 years of age but younger than 18 years of age.” Code § 18.2-374.3(D) 

(emphasis added). The knowledge subsection D requires is mutually exclusive from that which 

subsection C requires; the two requirements do not overlap. Subsection D, then, “contains an 

element that the charged offense does not contain” and is not a lesser-included offense of 

subsection C. Dalton, 259 Va. at 253. 

3 Nor could it, as the indictment-amendment statute requires the court to amend the 

indictment “at any time before . . . the court finds the accused guilty.” Code § 19.2-231

(emphasis added).
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The Commonwealth provides no explanation to this Court as to why it should read the 

statute otherwise.4 But in its briefing before the trial court on the motion to reconsider, the 

Commonwealth analogized the knowledge requirement here with intent requirements in other 

crimes and their lesser-included offenses. Citing Hewitt v. Commonwealth, 213 Va. 605 (1973), 

the Commonwealth argued that because some lesser-included offenses impose different intent 

requirements as compared to their more serious sister offenses, the same could be said about 

subsections C and D. But to the extent that is true, it is not relevant here: as noted above, 

subsections C and D impose different knowledge requirements—not intent requirements.

In short, the knowledge requirement is a substantive element of each offense; and 

because the knowledge requirements are mutually exclusive, subsections C and D are separate 

offenses. 5 Because subsection D is not a lesser-included offense of subsection C, the only way 

the trial court could have convicted appellant is if it had amended the indictment.

C. The Trial Court Did Not Amend the Indictment

Reaching the merits of the Commonwealth’s second justification, this Court finds it fares 

no better than the first. At the hearing on the motion to reconsider, the trial court asserted that 

one could “take the position that the [c]ourt amended the indictment to conform with the 

evidence” pursuant to its authority under Code § 19.2-231. But that statute does not grant the 

“absolute authority” that the trial court suggested.

4

In its brief the Commonwealth takes the position that, “assuming without conceding that 

subsection (D) is not a lesser-included offense,” “any error that occurred was harmless” because 

of the amended-indictment rationale. The Commonwealth offers no suggestion as to how one 

may interpret subsection D as a lesser-included offense of subsection C.

5 Relatedly, at both the conviction and the hearing on the motion to reconsider, the trial 

court also suggested that “age is not really an element of the offense at all” and is instead “just an 

element of the punishment.” Because the Commonwealth does not argue that position on appeal, 

and because this Court holds that the knowledge-of-age requirement is, in fact, an element of the 

offense, the Court does not address that claim any further.
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The statute allows a court to amend the indictment to fix “any defect in form . . . at any 

time before . . . 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. However, “[a]fter any 

such amendment the accused shall be arraigned on the indictment . . . as amended, and shall be 

allowed to plead anew thereto . . . .” Id.

Even if the circumstances here warranted amending the indictment, and even if the trial 

court did intend to do so, the trial court never actually ruled it was amending the indictment. As 

explained above, neither the court’s words nor its actions at trial so much as hinted at that 

possibility. Supra Part II.A. The court did not even mention subsection D “before . . . [it found] 

the accused guilty.” Code § 19.2-231. And on top of that, the court did not comply with the

statute’s mandated procedures: it never arraigned appellant on subsection D charges.

Despite the trial court’s later reflections at the hearing on the motion to reconsider, it 

never indicted appellant under subsection D.6 No such indictment ever existed. Left without a 

single rationale to justify appellant’s conviction of a crime for which he was never indicted, the

conviction in the case at bar cannot stand. Accordingly, this Court reverses.7

III. CONCLUSION

This Court concludes that subsection D of Code § 18.2-374.3 is not a lesser-included 

offense of subsection C of the same statute. It further concludes that the trial court never 

amended the original indictment to allow for appellant’s conviction under subsection D. As 

6 The Commonwealth also claims appellant’s objections to his conviction were not timely

because Code § 19.2-227 provides, “Judgment in any criminal case shall not be arrested or 

reversed upon any exception or objection made after a verdict to the indictment or other 

accusation, unless it be so defective as to be in violation of the Constitution.” Ignoring any 

possibility of constitutional error here, this Court holds there was no valid indictment under 

subsection D, so Code § 19.2-227’s restriction does not apply.

7 Because this Court reverses appellant’s conviction, the Court’s ruling renders moot 

appellant’s challenge to the sufficiency of the evidence.
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none of the asserted rationales to justify appellant’s conviction under subsection D pass muster, 

this Court reverses appellant’s conviction.

Furthermore, this Court holds that the trial court unambiguously acquitted appellant of 

the original subsection C charge when it implied that the Commonwealth’s evidence failed to 

establish, beyond a reasonable doubt, his knowledge that the girl with whom he communicated 

was younger than fifteen years old.8 And because the trial court never amended the indictment, 

the trial court’s acquittal on the original charge left no remaining charges in this case. 

Accordingly, this Court both reverses and dismisses this case.

Reversed and dismissed.

8 The Commonwealth conceded this point at oral argument.