John G. Humphries, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 11, 1997
• Docket: 1324954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Fitzpatrick Argued at Alexandria, Virginia

JOHN G. HUMPHREYS, S/K/A JOHN G. HUMPHREYS, A/K/A JOHN G. HUMPHRIES MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON v. Record No. 1324-95-4 FEBRUARY 11, 1997

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Donald M. Haddock, Judge

Mark A. Rothe (Byron J. Babione, on briefs), for appellant.

Daniel J. Munroe, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

John G. Humphreys appeals his conviction for petit larceny

in violation of Code § 18.2-96. Humphreys contends the warrant

for his arrest was invalid because it failed to allege all of the

essential elements of a larceny, failed to negate ownership in

the accused of the allegedly stolen property, and failed to state

to whom the property did belong. Humphreys also contends that

the jury verdict was general and therefore cannot stand and that

the verdict was inconsistent with the law of the case as stated

under jury instruction eight. Holding that the warrant was

valid, we affirm.

On February 10, 1995, Humphreys entered the office of

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Doctors Gahres and Radice. Inside, Humphreys spoke with the

receptionist, explaining that he and his wife were new to the

area and were looking for an obstetrician/gynecologist. The

receptionist informed Humphreys of their office hours and handed

him a business card before explaining that she had to step away

for a moment to speak with a nurse. As the receptionist was

walking away, Humphreys asked, and was granted permission to look

at a bulletin board on which pictures of the doctors and their

patients were displayed. Humphreys approached the board, removed a picture of Dr.

Radice and a woman with a newborn baby, and secreted the picture

on his person. The receptionist saw Humphreys take the picture

and confronted him. Humphreys told the receptionist he thought

that one of the persons depicted on the board looked like one of

his relatives, but on cross-examination, Humphreys testified that

the person in the photo with Dr. Radice did not look like one of

his relatives. Humphreys returned the picture to the

receptionist and left. The receptionist informed Dr. Gahres of

the incident, who then called the police.

Humphreys was charged by misdemeanor warrant alleging that

Humphreys did "take, steal and carry away one picture having a

value of less than $200.00" in violation of Code § 18.2-96. The

complaining witness listed on the warrant was Dr. Edward E.

Gahres. The warrant was signed by the magistrate.

At trial the receptionist and Dr. Gahres testified that

Humphreys did not have permission to remove the photograph of Dr.

- 2 - Radice. Humphreys admitted that he removed and concealed the

photograph. Humphreys also admitted to stating under oath at a

previous hearing that he had "a reason other than his wife's

pregnancy for being at Dr. Gahres' office."

Rule 3A:4 requires that a warrant: "(i) state the name of

the accused . . . , (ii) describe the offense charged and state

whether the offense is a violation of state, county, city or town

law, and (iii) be signed by the magistrate or the law-enforcement

office, as the case may be." A warrant "must describe the

offense charged. Rule 3A:4(b). This description must comply

with Rule 3A:6(a), which provides that an indictment must give an

accused notice of the nature and character of the offense charged

against him." Williams v. Commonwealth, 5 Va. App. 514, 516, 365

S.E.2d 340, 341 (1988).

The information contained in the warrant provided Humphreys

with sufficient notice of the charged crime, even in the absence

of a clear indication of who owned the picture. "The ultimate

ownership of the property had no material effect on the proof

required to convict under the offense charged, nor was it

descriptive of the identity of that which was `legally essential

to charge.'" Hairston v. Commonwealth, 2 Va. App. 211, 217, 345

S.E.2d 355, 359 (1986) (citation omitted). Therefore, the trial

court did not err in denying Humphreys' motion to dismiss on

grounds that the warrant was fatally defective in not naming the

owner of the picture.

Further, the jury's verdict, finding Humphreys guilty as

- 3 - charged in the warrant, was not inconsistent with the warrant,

the evidence adduced at trial, or the jury instructions. The

warrant listed Dr. Gahres as the complaining witness. Dr. Gahres

testified at trial that he and Dr. Luis Radice, his partner,

jointly owned the property of their medical office. Instruction

eight stated that the Commonwealth was required to prove that

Humphreys took a photograph "belonging to Gahres and Radice

M.D.s, Ltd." Thus, the trial court did not err in refusing to

set aside the verdict for variance with the offense charged or

proven. Accordingly, we affirm.

Affirmed.

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