Richard Wayne Nuckles v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: November 5, 2002
• Docket: 2570014
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge Overton Argued at Alexandria, Virginia

RICHARD WAYNE NUCKLES MEMORANDUM OPINION * BY v. Record No. 2570-01-4 JUDGE NELSON T. OVERTON NOVEMBER 5, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WARREN COUNTY Dennis L. Hupp, Judge

Michael V. Greenan for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Richard Wayne Nuckles, appellant, appeals his felony

conviction of grand larceny, a violation of Code § 18.2-95(ii).

Appellant contends the evidence was not sufficient to prove the

owner of the goods was a corporate entity as alleged in the

indictment. We agree and, therefore, reverse the conviction.

BACKGROUND

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

The indictment charged that "[o]n or about November 8,

1998, . . . [appellant] did unlawfully and feloniously take,

steal, and carry away the goods and chattels of Breeden

Mechanical Inc., in violation of Section 18.2-95 of the Code of

Virginia . . . ." Donnie Knight testified that he worked for

"Breeden Mechanical" for thirty-two years and supervised

appellant. "Breeden Mechanical" employed appellant as a plumber

and issued appellant a truck that was outfitted with tools, a

toolbox, an acetylene rig, and a generator. When appellant left

his employment, he failed to return the truck and equipment.

"Breeden Mechanical" employees later retrieved the truck but the

tools and equipment were gone. No evidence established whether

"Breeden Mechanical" was a corporate entity, and Knight

testified he was not a corporate officer.

ANALYSIS

Appellant contends that because the indictment specifically

identified the owner of the property as "Breeden Mechanical Inc.,"

the Commonwealth was required to prove the corporate status of the

business entity. No evidence established that "Breeden

Mechanical" was the corporation identified as the victim in the

indictment.

- 2 - "'[T]he function of an indictment . . . is to 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.'" Griffin v. Commonwealth, 13 Va. App. 409, 411, 412

S.E.2d 709, 711 (1991) (citation omitted). "By statute, an

indictment may use the name given to the offense by the common law

or may state as much of the common law definition of the offense

as is sufficient to advise what offense is charged. Code

§ 19.2-220." Hairston v. Commonwealth, 2 Va. App. 211, 213-14,

343 S.E.2d 355, 357 (1986). In a grand larceny proceeding, the

Commonwealth is also required to identify the owner of the

property in the indictment. Code § 19.2-284.

No indictment will be deemed invalid for the insertion of any other words or surplusage. Code § 19.2-226(9). Notice to the accused of the offense charged against him is the rockbed requirement which insures the accused a fair and impartial trial on the merits and form the key to the fatal variance rule.

Hairston, 2 Va. App. at 214, 343 S.E.2d at 357. "'If the

unnecessary word or words inserted in the indictment describe,

limit or qualify the words which it was necessary to insert

therein, then they are descriptive of the offense charged in the

indictment and cannot be rejected as surplusage. The offense as

charged must be proved.'" Etheridge v. Commonwealth, 210 Va.

328, 330, 171 S.E.2d 190, 192 (1969) (quoting Mitchell v.

Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 374 (1925)).

- 3 - Thus, when the indictment alleges one person owned the property

and the proof established the property was owned by another

person, a fatal variance results. Gardner v. Commonwealth, 262

Va. 18, 546 S.E.2d 686 (2001).

The owner of the stolen property is legally essential to

charge in the indictment. Hughes v. Commonwealth, 58 Va. (17

Gratt.) 565 (1867). The Commonwealth identified the owner as

"Breeden Mechanical Inc." Use of the term "Inc." has legal

meaning and significance. The Commonwealth either wrongly

identified the entity as a corporation or it failed to prove

that "Breeden Mechanical" was a corporation. In either case,

the term "Inc." cannot be dismissed as surplusage because it

described, limited, and qualified that which was necessary to

charge. Thus, the Commonwealth failed to prove beyond a

reasonable doubt that appellant stole property belonging to

Breeden Mechanical Inc.

Accordingly, for the above stated reasons, the judgment of

the trial court is reversed and the indictment dismissed.

Reversed and dismissed.

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