George Coleman Hudgins v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 16, 1996
• Docket: 0582951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Bray Argued at Norfolk, Virginia

GEORGE COLEMAN HUDGINS MEMORANDUM OPINION * BY v. Record No. 0582-95-1 CHIEF JUDGE NORMAN K. MOON JULY 16, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY G. Duane Holloway, Judge Designate Gail Starling Marshall for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

George Coleman Hudgins appeals his conviction, after a bench

trial, of using a telephone to threaten arson in violation of

Code § 18.2-83, and of two counts of using a telephone to

threaten an illegal act in violation of Code § 18.2-427. He

appeals on the grounds that the indictments were defective and

that the evidence was insufficient to show his intent. We affirm

the convictions.

Hudgins' offenses involved a former girlfriend, Deanna

Nemergut. Ms. Nemergut terminated her relationship with Hudgins

in December 1993. Ms. Nemergut was living with her parents in

January 1994 when Hudgins began to make harassing telephone calls

to the household. On January 8, 1994, he called Ms. Nemergut and

told her that he was going to come over and burn her house down. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Ms. Nemergut believed that Hudgins was "drunk or on something."

On January 23, 1994, Hudgins called again and told Ms. Nemergut

that he wanted the two of them to be together and if they could

not be, he would blow her head off. She believed that Hudgins

would hurt her because he had done so in the past.

Ms. Nemergut's mother, Mrs. Paula Nemergut, received

numerous harassing calls from Hudgins. On January 29, 1994, he

called, identified himself, and told her that he would slit her

throat. He called again later the same day and reiterated his

threats against her. He also stated that he knew Deanna Nemergut

loved her son more than anything in the world and that he would

kill "the little bastard" as well. Hudgins admitted making several calls, but claimed that he

did not remember what he said. He said he had been drinking, but

did not know how much. He acknowledged that he is an alcoholic

and that prior to making the calls he had been in Eastern State

Hospital due to an overdose of valium. Ms. Nemergut testified

that Hudgins was "very decent" when sober but "out of control"

when drinking. She stated that during his angry outbursts

against her, Hudgins knew what he was saying, but the next day

would claim that he did not remember.

Hudgins was indicted for two violations of Code § 18.2-427.

Under that statute, it is a Class 1 misdemeanor for any person

to "use obscene, vulgar, profane, lewd, lascivious, or indecent

language, or to make any suggestion or proposal of an obscene

nature, or threaten any illegal or immoral act with the intent to

- 2 - coerce, intimidate, or harass any person, over any telephone or

citizen's band radio . . . ."

The indictments read as follows:

THE GRAND JURY CHARGES THAT: On or about January 23, 1994, in the County of York, Virginia, GEORGE C. HUDGINS, did threaten an illegal act with the intent to coerce, and intimidate Deanna Christine Nemergut over the telephone.

(18.2-427) of the Code of Virginia (1950) as amended Use of profane, threatening or indecent language over public airways. * * * * * * *

THE GRAND JURY CHARGES THAT:

On or about January 23, 1994, in the County of York, Virginia, GEORGE C. HUDGINS, did threaten an illegal act with the intent to coerce, and intimidate Paula Nemergut over the telephone.

(18.2-427) of the Code of Virginia (1950) as amended Use of profane, threatening or indecent language over public airways.

* * * * * * *

Hudgins argues that these indictments improperly charged him

with two offenses, i.e. using profane language over the telephone

and threatening an illegal act over the telephone in order to

coerce and intimidate. See Walker v. Commonwealth, 12 Va. App.

438, 443, 404 S.E.2d 394, 396 (1991). Hudgins argues in the

alternative that if the indictment is interpreted to charge him

with the use of profane language, then he was convicted of a

different offense than the one charged in the indictment. See Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709,

711 (1991).

- 3 - Hudgins did not challenge the indictments until after the

verdict against him. He has therefore waived his right to do so

on appeal. Washington v. Commonwealth, 216 Va. 185, 192, 217

S.E.2d 352, 354 (1975). At this stage of the proceedings,

Hudgins can object only that the Commonwealth failed to inform

him, through indictments or otherwise, of the "cause and nature"

of the offenses for which he was tried and convicted. Virginia

Constitution, Article I, § 8; Forester v. Commonwealth, 210 Va.

764, 766-67, 173 S.E.2d 851, 854 (1970); Henson v. Commonwealth, 208 Va. 120, 124-25, 155 S.E.2d 346, 349 (1967). 1

The indictments in this case adequately informed Hudgins of

"the cause and nature" of the offenses for which he was to be

tried, and indeed were not defective. The indictments charged

Hudgins with using a telephone to threaten an illegal act with

the intent to coerce and intimidate. This is one of the crimes

set forth in Code § 18.2-427. See Perkins v. Commonwealth, 12

Va. App. 7, 14, 402 S.E.2d 229, 233 (1991). The language

following the cite to the statute was merely a summary of the

content of that statute, not a description of a different

offense. Such surplus language in an indictment does not

invalidate it. See Code § 19.2-226(9); Black v. Commonwealth,

223 Va. 277, 281-82, 288 S.E.2d 449, 451 (1982). Hudgins has no

basis on which to challenge the indictments.

1 The requirement for indictment is not jurisdictional, but merely procedural. Forester, supra, 210 Va. at 766-67, 173 S.E.2d at 854.

- 4 - Hudgins also contends that the evidence was insufficient to

show that he acted with the requisite intent. Perkins, 12 Va.

App. at 15, 402 S.E.2d at 234. The Commonwealth argues that

Hudgins failed to preserve this claim under Rule 5A:18. While

Hudgins did not make a motion to strike, he raised the

sufficiency issue in his closing argument. He therefore

preserved this issue for appeal. See Fortune v. Commonwealth, 14

Va. App. 225, 227-28, 416 S.E.2d 25, 26-27 (1992); Lee v. Lee, 12

Va. App. 512, 516, 404 S.E.2d 736, 738 (1991). On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Viewed in the light most favorable to the Commonwealth, the

evidence showed that Hudgins placed three telephone calls in

which he made specific, personal threats against a former

girlfriend and her mother. He was angry at Ms. Nemergut because

she had broken up with him, and wanted her to resume their

relationship. The nature of the threats and the surrounding

circumstances are sufficient evidence that Hudgins intended to

coerce and intimidate his victims.

Hudgins argues that the Commonwealth did not prove intent

because he had been drinking when he made the calls and afterward

he could not remember what he said. Voluntary intoxication

cannot be used to negate intent except on a charge of first

degree murder. Chittum v. Commonwealth, 211 Va. 12, 17-18, 174

- 5 - S.E.2d 779, 783 (1970). While Hudgins acknowledged that he had

been drinking before making the calls, there was no suggestion

that he was compelled to do so. His state of intoxication while

making the phone calls thus has no bearing on his intent, and as

noted, the evidence demonstrates that he possessed the requisite

intent. For these reasons, we affirm the convictions.

Affirmed.

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