COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton Argued at Richmond, Virginia
SHAWN WILLIAM MURPHY, s/k/a SHAWN D. MURPHY MEMORANDUM OPINION * BY v. Record No. 0974-99-2 JUDGE NELSON T. OVERTON MAY 16, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender; Office of the Public Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief) for appellee.
Shawn W. Murphy, appellant, appeals his conviction of grand
larceny of a firearm. Appellant contends the language of the
indictment required the Commonwealth to prove the firearm's value
was at least two hundred dollars. We disagree, and affirm the
conviction.
"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.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. (citation omitted). Viewed in this light, the evidence proved
that several items, including a gun, were stolen from John
Croft's home during a burglary. Croft testified that only the
gun, not the gun's pistol grip or barrel, was taken. He stated
he purchased the gun in 1986 for $199, excluding tax and
interest for layaway, and he probably could not sell the gun for
more than that amount of money. Appellant admitted to the
police that he committed the burglary and stole the items,
though he testified at trial that he never confessed to the
burglary, only to receiving the property as payment for rent.
The Commonwealth indicted appellant for breaking and
entering, grand larceny of property, and grand larceny of a
firearm. The trial judge ruled he could only convict appellant
of one count of grand larceny. The trial court convicted
appellant of breaking and entering and grand larceny of a
firearm, and dismissed the grand larceny of property charge.
The grand larceny of a firearm indictment alleged that
appellant "did feloniously and unlawfully take, steal, and carry
away property, to wit: a firearm, belonging to John Croft,
having a value of $200 or more, without permission and with the
intent to deprive the owner permanently thereof." The
indictment cited Code § 18.2-108.1. Code § 18.2-108.1 prohibits
knowingly receiving, or aiding in the concealment of, a stolen
firearm. Code § 18.2-95 proscribes larceny of a firearm.
- 2 - Appellant argues that, because the Commonwealth cited the
wrong statute, the indictment's value language became essential
to the crime. Appellant further contends that there was a fatal
variance in the indictment and proof because the Commonwealth
failed to prove the gun's alleged value.
We agree that the Commonwealth cited the wrong statute. We
also agree that the Commonwealth failed to prove the gun had a
value of $200 or more. The purchase price for the gun was $199,
excluding tax and interest for layaway, and Croft testified that
he could not sell the gun for more than the purchase price.
However, we do not agree that the Commonwealth had to prove the
value of the gun.
"An indictment is a written accusation of a crime and is
intended to inform the accused of the nature and cause of the
accusation against him." Hairston v. Commonwealth, 2 Va. App.
211, 213, 343 S.E.2d 355, 357 (1986). Code § 19.2-220 provides
that the indictment must include a concise, definite written
statement describing the offense charged. "In describing the
offense, . . . the indictment or information may state so much
of the common law or statutory definition of the offense as is
sufficient to advise what offense is charged." Code § 19.2-220.
Rule 3A:6 requires an indictment to cite the defining statute or
ordinance.
- 3 - Here, in its written statement describing the crime, the
indictment clearly outlined a grand larceny of a firearm, as
prohibited by Code § 18.2-95, and incorrectly cited Code
§ 18.2-108.1. Rule 3A:6, however, states that "[e]rror in the
citation of the statute . . . shall not be grounds for dismissal
of an indictment . . . or for reversal of a conviction, unless
the court finds that the error . . . prejudiced the accused in
preparing his defense." See also Stamper v. Commonwealth, 228
Va. 707, 713, 324 S.E.2d 682, 686 (1985).
The incorrect citation did not prejudice appellant's
ability to prepare a defense. Appellant's cross-examination and
evidence were consistent with a defense to a charge of grand
larceny of a firearm. Appellant also referred to the charge as
grand larceny of a firearm in his motions to strike the evidence
and dismiss the charge. Therefore, appellant cannot now claim
that he was unaware that he was standing trial for grand larceny
of a firearm or that he was prejudiced by the error in citation.
Nonetheless, appellant maintains that because of the
discrepancy in the cited statute and the charge, the
Commonwealth had to prove value as an essential element of the
crime alleged in the indictment. Appellant cites Williams v.
Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989), for the
proposition that "'[t]he accused cannot be convicted unless the
evidence brings him within the offense charged in the
- 4 - indictment. . . . [T]he indictment must charge the very offense
for which a conviction is asked.'" Id. at 341, 381 S.E.2d at
364 (quoting Mitchell v. Commonwealth, 141 Va. 541, 553, 127
S.E. 368, 372 (1925)).
Appellant's reliance on Williams is misplaced. There, the
indictment vaguely alleged the charge of perjury, without
describing the type of perjury the Commonwealth intended to
prove. Therefore, the citation to the statute supplemented the
written statement in giving notice of the type of perjury
Williams needed to defend. The record did not support a finding
that there was an error in citation. Here, the indictment
unambiguously described a grand larceny of a firearm in its
written statement and the citation to the statute was not
necessary to supplement the description. Unlike the Williams
case, the reference to the statute was an error in citation.
Code § 18.2-95 makes larceny of a firearm a felony
"regardless of its value." Therefore, value is not an element
of the crime, and the value language in the indictment was
unnecessary to the charge. In Hairston, we held that
when an allegation of variance is based on unnecessary words in an indictment, the unnecessary word or words in the indictment must be descriptive of that which is "legally essential" to the charge. Stated another way, the unnecessary language must have a material effect on the offense charged and on the proof required to convict under that charge.
- 5 - Hairston, 2 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Senior Judge Overton Argued at Richmond, Virginia
SHAWN WILLIAM MURPHY, s/k/a SHAWN D. MURPHY MEMORANDUM OPINION * BY v. Record No. 0974-99-2 JUDGE NELSON T. OVERTON MAY 16, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender; Office of the Public Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief) for appellee.
Shawn W. Murphy, appellant, appeals his conviction of grand
larceny of a firearm. Appellant contends the language of the
indictment required the Commonwealth to prove the firearm's value
was at least two hundred dollars. We disagree, and affirm the
conviction.
"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.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. (citation omitted). Viewed in this light, the evidence proved
that several items, including a gun, were stolen from John
Croft's home during a burglary. Croft testified that only the
gun, not the gun's pistol grip or barrel, was taken. He stated
he purchased the gun in 1986 for $199, excluding tax and
interest for layaway, and he probably could not sell the gun for
more than that amount of money. Appellant admitted to the
police that he committed the burglary and stole the items,
though he testified at trial that he never confessed to the
burglary, only to receiving the property as payment for rent.
The Commonwealth indicted appellant for breaking and
entering, grand larceny of property, and grand larceny of a
firearm. The trial judge ruled he could only convict appellant
of one count of grand larceny. The trial court convicted
appellant of breaking and entering and grand larceny of a
firearm, and dismissed the grand larceny of property charge.
The grand larceny of a firearm indictment alleged that
appellant "did feloniously and unlawfully take, steal, and carry
away property, to wit: a firearm, belonging to John Croft,
having a value of $200 or more, without permission and with the
intent to deprive the owner permanently thereof." The
indictment cited Code § 18.2-108.1. Code § 18.2-108.1 prohibits
knowingly receiving, or aiding in the concealment of, a stolen
firearm. Code § 18.2-95 proscribes larceny of a firearm.
- 2 - Appellant argues that, because the Commonwealth cited the
wrong statute, the indictment's value language became essential
to the crime. Appellant further contends that there was a fatal
variance in the indictment and proof because the Commonwealth
failed to prove the gun's alleged value.
We agree that the Commonwealth cited the wrong statute. We
also agree that the Commonwealth failed to prove the gun had a
value of $200 or more. The purchase price for the gun was $199,
excluding tax and interest for layaway, and Croft testified that
he could not sell the gun for more than the purchase price.
However, we do not agree that the Commonwealth had to prove the
value of the gun.
"An indictment is a written accusation of a crime and is
intended to inform the accused of the nature and cause of the
accusation against him." Hairston v. Commonwealth, 2 Va. App.
211, 213, 343 S.E.2d 355, 357 (1986). Code § 19.2-220 provides
that the indictment must include a concise, definite written
statement describing the offense charged. "In describing the
offense, . . . the indictment or information may state so much
of the common law or statutory definition of the offense as is
sufficient to advise what offense is charged." Code § 19.2-220.
Rule 3A:6 requires an indictment to cite the defining statute or
ordinance.
- 3 - Here, in its written statement describing the crime, the
indictment clearly outlined a grand larceny of a firearm, as
prohibited by Code § 18.2-95, and incorrectly cited Code
§ 18.2-108.1. Rule 3A:6, however, states that "[e]rror in the
citation of the statute . . . shall not be grounds for dismissal
of an indictment . . . or for reversal of a conviction, unless
the court finds that the error . . . prejudiced the accused in
preparing his defense." See also Stamper v. Commonwealth, 228
Va. 707, 713, 324 S.E.2d 682, 686 (1985).
The incorrect citation did not prejudice appellant's
ability to prepare a defense. Appellant's cross-examination and
evidence were consistent with a defense to a charge of grand
larceny of a firearm. Appellant also referred to the charge as
grand larceny of a firearm in his motions to strike the evidence
and dismiss the charge. Therefore, appellant cannot now claim
that he was unaware that he was standing trial for grand larceny
of a firearm or that he was prejudiced by the error in citation.
Nonetheless, appellant maintains that because of the
discrepancy in the cited statute and the charge, the
Commonwealth had to prove value as an essential element of the
crime alleged in the indictment. Appellant cites Williams v.
Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989), for the
proposition that "'[t]he accused cannot be convicted unless the
evidence brings him within the offense charged in the
- 4 - indictment. . . . [T]he indictment must charge the very offense
for which a conviction is asked.'" Id. at 341, 381 S.E.2d at
364 (quoting Mitchell v. Commonwealth, 141 Va. 541, 553, 127
S.E. 368, 372 (1925)).
Appellant's reliance on Williams is misplaced. There, the
indictment vaguely alleged the charge of perjury, without
describing the type of perjury the Commonwealth intended to
prove. Therefore, the citation to the statute supplemented the
written statement in giving notice of the type of perjury
Williams needed to defend. The record did not support a finding
that there was an error in citation. Here, the indictment
unambiguously described a grand larceny of a firearm in its
written statement and the citation to the statute was not
necessary to supplement the description. Unlike the Williams
case, the reference to the statute was an error in citation.
Code § 18.2-95 makes larceny of a firearm a felony
"regardless of its value." Therefore, value is not an element
of the crime, and the value language in the indictment was
unnecessary to the charge. In Hairston, we held that
when an allegation of variance is based on unnecessary words in an indictment, the unnecessary word or words in the indictment must be descriptive of that which is "legally essential" to the charge. Stated another way, the unnecessary language must have a material effect on the offense charged and on the proof required to convict under that charge.
- 5 - Hairston, 2 Va. App. at 217, 343 S.E.2d at 359. "No indictment
will be deemed invalid for the insertion of any other words
[than those necessary to describe the offense] or surplusage."
Id. at 214, 343 S.E.2d at 357; see also Code § 19.2-226(9). "A
variance is fatal . . . only when the proof is different from
and irrelevant to the crime defined in the indictment and is,
therefore, insufficient to prove the commission of the crime
charged." Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d
650, 651-52 (1984) (citation omitted).
Here, the Commonwealth proved the taking and carrying away
of a firearm with the intent to permanently deprive the owner
thereof. The value of the firearm was irrelevant to the offense
and did not alter the nature or character of the crime described
in the indictment. The value did not describe any essential
element of the crime and did not materially affect the offense
or proof required.
"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 forms the key to the fatal
variance rule." Hairston, 2 Va. App. at 214, 343 S.E.2d at 357.
Value is not an element of grand larceny of a firearm, and the
value language did not describe that which was legally essential
to prove. Appellant had notice of the offense charged against
him and, although the Commonwealth failed to prove the value of
- 6 - the gun, as alleged in the indictment, the variance was not
fatal because the language was mere surplusage.
For the above stated reasons, appellant's conviction for
grand larceny of a firearm is affirmed.
Affirmed.
- 7 -