Purvy v. Commonwealth
59 Va. App. 260
Va. Ct. App.2011Background
- Purvy, convicted in 1997 of attempted rape, was labeled a violent sexual offender and required to register or re-register under Virginia law.
- In 2010, a grand jury issued seven indictments alleging Purvy failed to register or re-register in 2009 after prior offenses, a second or subsequent offense under Code § 18.2-472.1.
- At arraignment, the clerk mistakenly read an arrest warrant alleging providing false information; the error was corrected to allege only failure to register.
- At trial, the Commonwealth relied on some reregistration forms that listed an inaccurate address; Purvy moved to strike, arguing the indictments charged only failure to register, not false information.
- The trial court allowed the false-information theory under § 18.2-472.1(B) and Purvy was convicted on that theory; Purvy appealed on the grounds of a fatal variance between indictment and proof.
- The appellate court held a fatal variance existed between the indictments charging failure to register and the proof showing false-information convictions, and reversed Purvy’s convictions; it separately addressed sufficiency of the evidence for the unindicted variant and affirmed a sufficiency finding, though still reversing on variance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a fatal variance between the indictments and the proof at trial? | Purvy argued indictments alleged only failure to register; proof showed false information. | Commonwealth argued statutes criminalize both omission and false information and that indictments incorporated the statute. | Yes, fatal variance existed; convictions reversed. |
| Was the evidence sufficient to convict on the unindicted variant (false information) under § 18.2-472.1(B)? | Purvy contends the record did not prove false information as charged. | Commonwealth contends the evidence supported false information on reregistration forms. | Yes, the evidence was sufficient to prove false information, but the variance required reversal. |
Key Cases Cited
- Hairston v. Commonwealth, 2 Va.App. 211, 343 S.E.2d 355 (1986) (variance and form defects not fatal when no injury to defense)
- Fontaine v. Commonwealth, 25 Va.App. 156, 487 S.E.2d 241 (1997) (indictment language narrows or shapes the scope of incorporation)
- Scott v. Commonwealth, 49 Va.App. 68, 636 S.E.2d 893 (2006) (illustrates issues of form and surplusage in indictments)
- Jolly v. Commonwealth, 136 Va. 756, 118 S.E. 109 (1919) (emphasizes avoiding mere formal defects in indictments)
- Griffin v. Commonwealth, 13 Va.App. 409, 412 S.E.2d 709 (1991) (dismissing mere matters of form as basis for variance)
- Thomas v. Commonwealth, 37 Va.App. 748, 561 S.E.2d 56 (2002) (indictment incorporates statute but narrowing text limits scope)