Dontay Milsap v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judges Athey and Chaney
DONTAY MILSAP
MEMORANDUM OPINION* BY
v. Record No. 0794-21-1 CHIEF JUDGE MARLA GRAFF DECKER
MAY 10, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Michelle J. Atkins, Judge
(J. Barry McCracken, Assistant Public Defender, on briefs), for
appellant. Appellant submitting on briefs.
(Jason S. Miyares, Attorney General; Craig W. Stallard, Senior
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
Dontay Milsap was convicted in a bench trial of burglary in violation of Code § 18.2-91.
He argues on appeal that the indictment was defective because it failed to state a valid offense.
Additionally, he contends that there was a fatal variance between the offense charged and the
evidence presented at trial. For the following reasons, we hold there was a fatal variance and
reverse the appellant’s conviction. Accordingly, we do not address the appellant’s claim that the
indictment was defective.1
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Because we do not reach the appellant’s claim that the indictment was defective, we
also do not consider the Commonwealth’s related argument that the appellant waived the claim
by failing to raise it with specificity in the trial court. See, e.g., Commonwealth v. Swann, 290
Va. 194, 196 (2015) (recognizing that appellate courts decide cases on the “best and narrowest
grounds”).
I. BACKGROUND2
At about 5:00 a.m. on October 18, 2020, Tamara Foster awoke to find the appellant in her
bed beating her in the head. After Foster ran to her adjacent bathroom, the appellant broke a
panel in the bathroom door in an effort to gain entry. Foster left the bathroom and tried to calm
the appellant. She smelled beer on him and believed he was intoxicated. Foster sat with him in
her living room until he fell asleep. Then she ran to her cousin’s nearby residence and called the
police.
Officer J.A. Plaza of the Norfolk Police Department responded to Foster’s call regarding
the incident. At trial, he described Foster as “trembling” and “visibly upset.” She had swollen
eyes and scratches on her neck or face. Plaza observed that Foster’s bed was “in disarray” and
there was blood on the pillow. A window in the living room was broken, and most of the glass
was inside on the couch, along with a pole or other “kind of instrument.”
The appellant had left his wallet at Foster’s residence, and Officer Plaza arrested him
when he returned to get it. Although the appellant had told Foster earlier that morning that he
had broken the window, he told Plaza he did not break it. Instead, he said Foster had let him into
her apartment. He admitted damaging the bathroom door but denied injuring Foster. The
appellant said that he and Foster were “in a relationship” and he had lived with her in the past but
was currently homeless.
Foster testified at trial that she had previously given the appellant a key to her apartment
so he could take a shower. She also said that he sometimes stayed overnight. Foster admitted
having sexual relations with him but claimed they were not “in a relationship.” She said that the
2
In accordance with familiar principles of appellate review, the facts are recited in the
light most favorable to the Commonwealth, as the prevailing party at trial. See Sarka v.
Commonwealth, 73 Va. App. 56, 59 (2021); Clanton v. Commonwealth, 53 Va. App. 561, 564
(2009) (en banc).
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appellant and his father had been at her apartment on the afternoon of the previous day. They
were playing dominoes and drinking beer, but they left after the appellant pushed her and she
asked him to return her key. Foster said her doors were locked and the windows “intact” when
she went to bed about midnight.
The indictment returned by the grand jury stated:
On or about October 18, 2020, in the City of Norfolk, Dontay
Milsap did feloniously enter in the daytime the dwelling house or
an adjoining occupied outhouse of Tamara Foster, with intent to
commit larceny a [sic] or [a] felony [arson offense] in violation of
§18.2-77, §18.2-79 or §18.2-80.
Va. Code §18.2-91.
At the close of the Commonwealth’s case at trial and again after the appellant presented
his case, he made a motion to strike the evidence. He contended in part that the evidence failed
to prove he entered the property with an intent to commit any of the larceny or arson offenses
listed in the indictment. The trial court acknowledged that Code § 18.2-91 was “much longer
than the indictment,” but it ruled that the indictment nonetheless provided “notice that [the
charge was] under [Code §] 18.2-91 for burglary.” On that basis, the court denied the motions
and convicted the appellant of burglary. He was sentenced to three years of incarceration with
two years suspended.
II. ANALYSIS
The appellant’s indictment charged him with violating Code § 18.2-91 by entering
Foster’s dwelling in the daytime with intent to commit larceny or a felony related to arson. He
argues that his conviction must be reversed because there is a fatal variance between the
indictment and the evidence presented at trial. Specifically, he contends that the evidence did
not show he entered with the intent to commit larceny or arson.
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The Commonwealth concedes that the appellant’s conviction should be reversed because
there is a fatal variance. “Such admissions embody the ethical duties expected of a legal
advocate for the Commonwealth and are held in high esteem.” Joseph v. Commonwealth, 64
Va. App. 332, 336 n.2 (2015). “Concessions of legal error, however, do not relieve the appellate
court of its responsibility to perform its judicial function. While such concessions are entitled to
great weight, they do not remove the Court’s obligation to conduct its own review.” Id.; see
Copeland v. Commonwealth, 52 Va. App. 529, 531-32 & n.3 (2008). The legal issue before us
presents a mixed question of fact and law and is reviewed de novo. See Dunaway v.
Commonwealth, 52 Va. App. 281, 299 (2008).
The purpose of an indictment is to give an accused written notice of “the nature and cause
of the accusation against him.” Scott v. Commonwealth, 49 Va. App. 68, 73 (2006) (quoting
Hairston v. Commonwealth, 2 Va. App. 211, 213 (1986)). A variance occurs when the
indictment differs from the proof at trial, but not every variance is fatal. See Code § 19.2-226
(listing defects that do not invalidate an indictment); Purvy v. Commonwealth, 59 Va. App. 260,
266 (2011) (noting that a variance is not fatal if it “does not undermine the integrity of the trial”).
“[A] fatal variance occurs where the indictment charges a wholly different offense than the one
proved . . . .” Purvy, 59 Va. App. at 266-67.
This Court’s decision in Purvy is instructive. In Purvy, the defendant was charged with
failing to register or reregister as a violent sex offender but was convicted for knowingly
providing materially false information on his reregistration forms. Id. at 264, 267. Both crimes
came under Code § 18.2-472.1(B) but were separate offenses having “different fact patterns
[and] dissimilar legal elements.” Id. at 268. Generally, “an indictment citing a criminal statute
incorporates its contents by reference.” Id. This principle did not apply in Purvy because the
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indictment included additional language that narrowed the scope of the crime charged from the
broader statutory reference. Id. at 268-69. Accordingly, a fatal variance existed. Id. at 269.
Code § 18.2-91 provides in part that a person is guilty of statutory burglary if he
“commits any of the acts mentioned in § 18.2-89 or § 18.2-90 with intent to commit assault and
battery,” but the appellant was specifically charged with entering with intent to commit larceny
or an arson-related crime. The scope of Code § 18.2-91 was narrowed by both the specific
reference to the intent to commit larceny or arson and the omission of any reference to the intent
to commit assault and battery. The stated intent in the indictment described the offense and had
to be proved. See Vincent v. Commonwealth, 276 Va. 648, 652 (2008) (reversing a conviction
for violating Code § 18.2-91 because intent was a required element of the offense and was not
proved). Consequently, the offense had to be proved as charged. See Mitchell v.
Commonwealth, 141 Va. 541, 560 (1925). There was no proof here, however, that the appellant
intended to commit larceny or arson when he broke into Foster’s residence.3
“[A] variance is fatal . . . 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.” Scott, 49 Va. App. at 73 (second and third alterations in original) (quoting Griffin v.
Commonwealth, 13 Va. App. 409, 411 (1991)). Because a fatal variance existed in the
3
The appellant was convicted in general district court of assault and battery of Foster.
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appellant’s case, his conviction must be reversed and the indictment dismissed.4 See Gardner v.
Commonwealth, 262 Va. 18, 25 (2001) (vacating the defendant’s conviction and dismissing the
indictment because a fatal variance existed between the indictment and the evidence); Scott, 49
Va. App. at 76-77 (reversing the defendant’s burglary conviction under Code § 18.2-91 and
dismissing the indictment because although he was charged with “entering in the nighttime,” the
evidence showed that he entered in the daytime and he was convicted of “breaking and entering
anytime,” an offense not charged in the indictment).
III. CONCLUSION
We hold that there is a fatal variance between the indictment and the evidence presented
at trial. Accordingly, we reverse the appellant’s conviction and dismiss the indictment.
Reversed and dismissed.
4
We take no position regarding whether the appellant may be retried under a new
indictment charging burglary based on an intent to commit assault and battery, an issue not
raised by the parties. See generally Code § 19.2-293 (permitting reprosecution following an
acquittal based on a fatal variance under certain circumstances); Montana v. Hall, 481 U.S. 400,
404 (1987) (per curiam) (addressing the circumstances under which the U.S. Constitution
“permits retrial after a conviction is reversed because of a defect in the charging instrument”);
Purvy, 59 Va. App. at 269-71, 273-74 (reversing a conviction due to a fatal variance but
resolving the appellant’s challenge to the sufficiency of the evidence to prove the unindicted
offenses in favor of the Commonwealth and holding under those circumstances that retrial on a
new, corrected indictment would not constitute double jeopardy).
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