COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and
Humphreys
Argued at Richmond, Virginia
FRANK CLIFTON KING, JR.
OPINION BY
v. Record No. 2578-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 11, 2003
COMMONWEALTH OF VIRGINIA
UPON REMAND FROM THE SUPREME COURT OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Gregory W. Franklin, Assistant Public
Defender, for appellant.
Susan M. Harris, Assistant Attorney General
(Randolph A. Beales, Attorney General, on brief),
for appellee.
Frank Clifton King, Jr. (appellant) was convicted in a jury
trial of maliciously shooting within an occupied dwelling, in
violation of Code § 18.2-279. 1 The sole issue on appeal is
whether the Commonwealth proved the allegation in the indictment
that appellant shot at or threw a missile at or against an
occupied dwelling. For the following reasons, we affirm
appellant's conviction.
1
Appellant was also convicted of first-degree murder, use
of a firearm in the commission of murder, robbery, and use of a
firearm in the commission of robbery, but those convictions are
not before the Court.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on March 3, 2000,
appellant was living with his aunt and uncle, Donald Lee King.
Appellant and Antonio Harris (Harris) formulated a plan to rob
Donald Lee King. Danny Bailey (Bailey), Donald Lee King's
friend, was visiting the home at about 8:00 p.m. when Harris
came through the front door brandishing two handguns. At
Harris's instruction, both men got on the floor. Appellant
entered the room from his bedroom holding a shotgun, stood over
Donald Lee King, and fired at him after demanding money. Bailey
jumped up from the floor and escaped through the front door.
Several shots were fired at him as he ran. Harris fired shots
from his handguns, and appellant fired one shot through the
window with the shotgun. King was killed, and Bailey was
wounded by the gunfire.
In appellant's motion to strike the instant charge, he
argued as follows:
The Commonwealth has not proved that, Judge.
The language specific to the indictment
contemplates throwing a missile at or
shooting a missile at a dwelling. That
language contemplates further, shooting from
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outside into a dwelling. The Commonwealth
has not proved that. It hasn't met the
language that they set out in the
indictment.
(Emphasis added).
The trial court denied the motion. Appellant was convicted
and sentenced to ten years, with five yearssuspended, on this
offense.
II.
"The jury's verdict may not be disturbed unless it is
plainly wrong or without evidence to support it." Hills v.
Commonwealth, 33 Va. App. 442, 456, 534 S.E.2d 337, 344 (2000).
Appellant contends that there was a fatal variance between
the allegations set out in the indictment and the proof at trial
because the Commonwealth failed to prove that the shot fired by
appellant came from outside the dwelling. We disagree.
"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. Commonwealth, 2 Va. App.
211, 213, 343 S.E.2d 355, 357 (1986). "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." Griffin v.
Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709, 711 (1991)
(citing Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d 650,
651-52 (1984)).
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In the instant case, the indictment states that appellant,
"did feloniously, unlawfully and maliciously shoot at or throw a
missile at or against an occupied building or dwelling house
located at 1220 N. 36th Street, thereby putting the lives of the
occupants in peril. Virginia Code Section § 18.2-279."
Code § 18.2-279 provides, in pertinent part:
If any person maliciously discharges a
firearm within any building when occupied by
one or more persons in such a manner as to
endanger the life or lives of such person or
persons, or maliciously shoots at, or
maliciously throws any missile at or against
any dwelling house or other building when
occupied by one or more persons, whereby the
life or lives of any such person or persons
may be put in peril, the person so offending
shall be guilty of a Class 4 felony.
Appellant argues that the evidence proved that his shot
came from inside the house, an offense defined by the first
clause of Code § 18.2-279, while the indictment alleged that he
shot "at" the house and contemplated a shot fired from outside
the dwelling. Appellant concedes that the statute contains
language in its first prong prohibiting his actions, but argues
the language in the indictment required the Commonwealth to
prove his shot came from outside the building.
Code § 19.2-220 provides that:
The indictment or information shall be a
plain, concise and definite written
statement, (1) naming the accused, (2)
describing the offense charged, (3)
identifying the county, city or town in
which the accused committed the offense, and
(4) reciting that the accused committed the
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offense on or about a certain date. 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.
"The indictment should also 'cite the statute or ordinance
that defines the offense or, if there is no defining statute or
ordinance, prescribes the punishment for the offense.'" Sims v.
Commonwealth, 28 Va. App. 611, 619, 507 S.E.2d 648, 652 (1998)
(quoting Rule 3A:6(a)). "'[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.'" Id. (quoting Willis v.
Commonwealth, 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409
(1990)). "'[M]ere matters of form [will be rejected] where no
injury could have resulted therefrom to the accused.'"
Griffin,13 Va. App. at 411, 412 S.E.2d at 711 (quoting Mitchell
v. Commonwealth, 141 Va. 541, 558, 127 S.E. 368, 374 (1925)).
In the instant case, the indictment fulfilled these
requirements. Clearly, appellant was on notice of the offense
charged. The underlying petition in the juvenile and domestic
relations district court stated the offense as follows: "He did
on or about 3/3/00, unlawfully, feloniously, and maliciously
shoot/discharge a firearm within or at an occupied dwelling
house in violation of section 18.2-279 of the 1950 Code of
Virginia as amended."
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The evidence at trial proved a violation of the second
prong of the statute, shooting "at or against" a building
whereby the life of an occupant is put in peril. The shots
here, though fired from inside, were "at" a part of the
building.
"When the language of a statute is clear and unambiguous,
the statute's plain meaning must be accepted." Roberts v.
Roberts, 260 Va. 660, 668, 536 S.E.2d 714, 718 (2000).
In construing the plain meaning of the second prong of the
statute:
The word "at" has a common and easily
understood meaning and is defined as a
function word used to indicate . . . that
toward which an action . . . is directed.
Thus, all that is required of the
Commonwealth to prove a violation of
Code § 18.2-279 is that it prove beyond a
reasonable doubt that the principal in the
first degree intended to shoot at or toward
an occupied dwelling.
Fleming v. Commonwealth, 13 Va. App. 349, 355, 412 S.E.2d 180,
184 (1991) (internal quotation omitted).
Code § 18.2-279 does not specify where the shooter must be
located in relation to the occupied dwelling, and we can discern
no legislative directive implicating such a limitation. When
read together, the first prong of the statute deals with the
locale of the shot, (i.e., "within the building"). The second
prong, which was specifically referenced in appellant's
indictment, concerns the destination of the shot, (i.e., "at the
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building") and does not specify the locale of the shooter.
Thus, there was no fatal variance between the indictment and
proof at trial. The language of the indictment adequately
informed appellant of the nature of his offense and does not
"contemplate only . . . shooting from outside into a dwelling"
as appellant contends.
In the instant case, appellant shot through a window in an
attempt to kill Bailey, an occupant of the dwelling who was
fleeing a robbery. This evidence establishes appellant's
violation of Code § 18.2-279.
For the foregoing reasons, we affirm.
Affirmed.
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