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HUMPHREYS v. COMMONWEALTH OF VIRGINIA


HUMPHREYS v.
COMMONWEALTH OF VIRGINIA

(unpublished)


FEBRUARY 11, 1997
Record No. 1324-95-4

JOHN G. HUMPHREYS, S/K/A
JOHN G. HUMPHREYS, A/K/A
JOHN G. HUMPHRIES

v.

COMMONWEALTH OF VIRGINIA

Donald M. Haddock, Judge
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia

MEMORANDUM OPINION[1]
BY CHIEF JUDGE NORMAN K. MOON
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

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 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.
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
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.

 

FOOTNOTES:

[1] Pursuant to Code
? 17-116.010 this opinion is not designated for
publication.

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