MAY 16, 2000

Record No. 0974-99-2





James B. Wilkinson, Judge

Present: Judges Willis, Bumgardner and Senior
Judge Overton

Argued at Richmond, Virginia

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) (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.

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.
, 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.

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.
, 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
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

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 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.



[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for


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