Ray Winkler v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
RAY WINKLER
MEMORANDUM OPINION * BY
v. Record No. 2998-01-2 JUDGE ROSEMARIE ANNUNZIATA
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Helen E. Phillips, for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Ray Winkler was convicted in a bench trial on six counts of
statutory burglary, five counts of grand larceny, and one count
of petit larceny. 1 He contends on appeal that his convictions
must be reversed because the Commonwealth failed to prove the
value of the stolen property. Finding no error, we affirm.
Facts
"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.
1
On appeal, Winkler challenges one count of grand larceny
and one count of petit larceny.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987)). So viewed, the evidence establishes that on
the morning of November 3, 2000, Winkler broke into the home of
Jarrett Lathers and Christine Kelly and stole a twenty gauge
Smith and Wesson shotgun. The shotgun and its carrying case
were introduced as evidence. No evidence of the shotgun's value
was admitted.
The offense was the subject of Count 2 of the indictment,
which read:
On or about November 3, 2000, in the County
of Orange, Commonwealth of Virginia, Ray
Winkler did unlawfully and feloniously,
commit simple larceny, not form [sic] the
person of Jarrett Lathers and Christine
Kelly, of a Smith and Wesson Shotgun,
without the consent of the owners, and with
the intent to permanently deprive the owners
of said property. Code § 18.2-95(ii). 2
2
Code § 18.2-95 includes the element of "value" in its
definition of the offense. It states:
Any person who (i) commits larceny from the
person of another of money or other thing of
value of $5 or more, (ii) commits simple
larceny not from the person of another of
goods and chattels of the value of $200 or
more, or (iii) commits simple larceny not
from the person of another of any firearm,
regardless of the firearm's value, shall be
guilty of grand larceny, punishable by
imprisonment in a state correctional
facility for not less than one nor more than
twenty years or, in the discretion of the
jury or court trying the case without a
jury, be confined in jail for a period not
exceeding twelve months or fined not more
than $2,500, either or both.
- 2 -
On the same date, Winkler broke into the home of Robert
Tony Gallahan, Jr. and his wife, Marlene, and stole a pellet gun
and a ruby and diamond ring. The Commonwealth presented no
evidence of the value of the pellet gun or ring. This offense
was charged in Count 4 of the indictment, which read:
On or about November 3, 2000, in the County
of Orange, Commonwealth of Virginia, Ray
Winkler did unlawfully, take, steal and
carry away property of Robert Gallahan and
Marlene Gallahan, having a value of less
than $200, to-wit: a pellet gun and jewelry,
without the consent of the owners, and with
the intent to permanently deprive the owners
of said property. Code § 18.2-95.
Winkler moved to strike Counts 2 and 4 on the ground that
the Commonwealth failed to introduce evidence of the value of
the stolen items. The trial court denied the motion, ruling
that Count 2 charged Winkler with larceny of a firearm, a
violation of Code § 18.2-95(iii), and that Count 4 charged petit
larceny, a violation of Code § 18.2-96, neither of which
required proof of the value of the item.
Analysis
On appeal, Winkler argues that his grand larceny conviction
should be reversed because the Commonwealth failed to prove
every element of the offense, specifically the value of the
shotgun taken by Winkler. 3 We find his contention is without
merit.
3
The Commonwealth argues that Winkler's contention
regarding Count 2 of the indictment is barred procedurally under
- 3 -
Winkler's claim invokes the principles governing
indictments.
[T]he function of an indictment . . . is to
give the accused notice of the nature and
character of the accusations against him in
order than he can adequately prepare to
defend against his accuser. A variance is
fatal . . . only when the proof is different
and irrelevant to the crime defined in the
indictment and is, therefore, insufficient
to prove the commission of the crime
charged. [M]ere matters of form [will be
rejected] where no injury could have
resulted therefrom to the accused.
Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709,
711 (1991) (citations omitted). Although an indictment must
assert the essential facts related to punishment when the
offense charged is based on a statute which provides for more
than one grade of an offense, Hall v. Commonwealth, 8 Va. App.
350, 352, 381 S.E.2d 512, 513 (1989), neither internal
inconsistency nor a citation to the wrong statutory provision
necessarily constitutes reversible error. "Error in the
citation of the statute . . . that defines the offense or
prescribes the punishments therefor, or omission of the
citation, shall not be grounds . . . for reversal of a
conviction, unless the court finds that the error or omission
Rule 5A:18, on the ground that Winkler did not reference the
differences between subsections (ii) and (iii) at the trial
level. We disagree. Winkler made clear to the trial court his
contention that the Commonwealth was required to prove the value
of the weapon, based upon the statutory violation charged in the
indictment. We find the objection he made before the trial
court was sufficient to preserve for appeal.
- 4 -
prejudiced the accused in preparing his defense." Rule 3A:6(a);
see also Stamper v. Commonwealth, 228 Va. 707, 713, 324 S.E.2d
682, 686 (1985) (affirming a conviction for possession of
marijuana with intent to distribute, notwithstanding an
incorrect citation to the statutory subsection, because
defendant was not prejudiced by the error).
In the case at bar, the factual allegations in Count 2 of
the indictment charge Winkler with grand larceny of the shotgun.
The language of the indictment mirrors the language of Code
§ 18.2-95(iii) and does not state a value for the weapon alleged
to have been stolen. Contrary to Winkler's assertion that the
indictment did not provide him with notice of the charge, the
indictment stated that he was indicted for grand larceny of the
shotgun, without regard to its value. Although the indictment
contained an erroneous statutory citation to sub-paragraph (ii),
which requires proof of value, Winkler does not claim that his
defense was prejudiced as a result, and we find he was not. See
Rule 3A:6(a).
Winkler's contention that the petit larceny conviction on
Count 4 of the indictment should be reversed is also without
merit, for the reasons stated in our discussion as to Count 2.
Count 4 charged Winkler with theft of a pellet gun and jewelry
that had a value of less than $200 and erroneously cited Code
§ 18.2-95 as the applicable statute. Code § 18.2-95 proscribes
grand larceny violations. However, the language of Count 4
- 5 -
specifically charges that the value of the stolen property was
less than $200 and thus necessarily charges petit larceny.
Winkler acknowledges that he was not improperly led to believe
that he was being prosecuted for grand larceny and further
acknowledges that he was not prejudiced by the erroneous
statutory citation. See Rule 3A:6(a). 4
Winkler relies on Robinson v. Commonwealth, 258 Va. 3, 516
S.E.2d 475 (1999), and Williams v. Commonwealth, 8 Va. App. 336,
381 S.E.2d 361 (1989), in support of his contentions. His
reliance is misplaced.
Winkler cites the language in Robinson stating that "where
the value of the thing stolen determines the grade of the
offense the value must be alleged and the Commonwealth must
prove the value to be the statutory amount." 258 Va. at 5, 516
S.E.2d at 475. Robinson is inapposite to the case at bar. As
noted above, the Commonwealth was not required under Count 2 to
prove the value of the shotgun to support the grand larceny
charge under Code § 18.2-95(iii). Thus, proof of "the value" of
the items was not an element of the offense, and the
Commonwealth was only required to prove that the items had some
intrinsic value, a fact that can be inferred from the nature of
4
Moreover, an indictment charging grand larceny of the
pellet gun and jewelry would not have precluded a conviction for
petit larceny as a lesser-included offense of a grand larceny
charge. See generally Taylor v. Commonwealth, 11 Va. App. 649,
652, 400 S.E.2d 794, 795 (1991).
- 6 -
the items themselves. See generally Evans v. Commonwealth, 226
Va. 292, 297, 308 S.E.2d 126, 129 (1983).
In Williams, the indictment charged that the defendant
committed perjury in violation of Code § 18.2-434. He was
convicted of perjury upon proof of elements set forth in a
different statute, specifically Code § 18.2-435. We found the
citation to § 18.2-434 in the indictment prejudiced the defense,
and we reversed the conviction, noting: "The Commonwealth's
burden of proof for a violation of Code § 18.2-434 is
significantly different from its burden for a violation of
§ 18.2-435, and this fact could have been crucial to Williams in
planning his defense." Williams, 8 Va. App. at 341, 381 S.E.2d
at 364. Contrary to Williams, in the case at bar we find the
language in Counts 2 and 4 was sufficient to charge the offenses
of grand larceny and petit larceny and that the erroneous
citation to another code section did not prejudice his defense
on either count.
For the foregoing reasons, we affirm.
Affirmed.
- 7 -
Benton, J., concurring.
In pertinent part, Code § 19.2-220 provides as follows:
The indictment or information shall be a
plain, concise and definite written
statement . . . describing the offense
charged. . . . In describing the offense,
the indictment . . . may use the name given
to the offense by the common law, or the
indictment . . . may state so much of the
common law or statutory definition of the
offense as is sufficient to advise what
offense is charged.
By Rule of Court, "[t]he indictment . . . , in describing the
offense charged, shall cite the statute or ordinance that
defines the offense." Rule 3A:6(a). Thus, we have held that
"[a]n 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).
Winkler contends that notwithstanding the written statement
of offenses in Count 2 and Count 4 of the indictment, the
reference at the bottom of the indictment to Code § 18.2-95(ii)
and Code § 18.2-95, respectively, required the Commonwealth to
prove the value of the property taken for each offense. In
simple terms, he contends the statutory reference at the bottom
of each count of the indictment, rather than the written
statement describing the offense, determines the offense charged
by the indictment.
- 8 -
The question presented in this case requires us to decide
whether an indictment is determined by the written statement
describing the offense or by the statute cited at the bottom of
the indictment when there is a conflict between the two. The
answer to this question is apparent from Code § 19.2-220 and the
following portion of Rule 3A:6(a):
Error in the citation of the statute or
ordinance that defines the offense or
prescribes the punishments therefor, or
omission of the citation, shall not be
grounds for dismissal of an indictment or
information, or for reversal of a
conviction, unless the court finds that the
error or omission prejudiced the accused in
preparing his defense.
See also Wilder v. Commonwealth, 217 Va. 145, 148, 225 S.E.2d
411, 413 (1976) (holding that "the references at the foot of the
[indictment] to the . . . statutes . . . support, but do not
replace the 'definite written statement' . . . required in the
body of an indictment").
Thus, where as here, the written statement in the
indictment charges conduct substantially identical to the
statutory language that creates an offense, the written
statement identifies the offense the Commonwealth is required to
prove to satisfy the indictment. To the extent a statute that
is cited at the bottom of the indictment differs from the
offense that is fully and completely described by the written
statement of conduct, I would hold that the indictment contains
an "[e]rror in the citation of the statute . . . that defines
- 9 -
the offense." Rule 3A:6(a). See also George v. Commonwealth,
242 Va. 264, 281, 411 S.E.2d 12, 22 (1991).
In this case, the record clearly establishes that the
written descriptions of the offenses specified in Counts 2 and 4
vary from the statutes cited respectively in support of those
described offenses. In the motion to strike, however, Winkler
did not allege he was prejudiced by this anomaly. Instead, he
contended that the Commonwealth had failed to prove what it was
bound to prove by the indictment. I agree, therefore, with the
majority opinion that Winkler has not established that the error
prejudiced his defense. Accordingly, I too would affirm the
convictions.
- 10 -