Richard Wayne Nuckles v. Commonwealth ( 2002 )

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.
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"'[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)).
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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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