COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
ENNOS MORRIS
OPINION BY
v. Record No. 1610-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Alfred D. Swersky, Judge
Christopher R. K. Leibig, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ennos Morris (appellant) was convicted in a jury trial of
driving after having been adjudicated an habitual offender, in
violation of Code § 46.2-357(B)(2). The sole issue on appeal is
whether the trial court erred in denying appellant's motion to
strike the evidence because the indictment alleged that he had
been "adjudicated" an habitual offender, while the evidence
proved he had been "determined" an habitual offender. 1 For the
following reasons, we affirm.
1
In his petition for appeal, appellant also challenged Jury
Instruction 3. However, appellant did not include this issue in
his questions presented or in his opening brief. Therefore, we
do not address it here. See Rule 5A:20.
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 that evidence 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 September 22, 1998,
appellant was stopped for driving in excess of 100 miles per
hour on Interstate 395. The arresting officer learned that on
April 29, 1998, appellant received a "DMV Revocation Notice"
stating that his operator's license had been revoked because he
had been "determined" an habitual offender.
On January 4, 1999, the grand jury returned a three-count
indictment, including the following charge:
On or about the 22nd day of September, 1998,
in the City of Alexandria, ENNOS MORRIS did
unlawfully and feloniously drive a motor
vehicle after having been adjudicated an
Habitual Offender, such driving of itself
having endangered the life, limb, or
property of another.
VIRGINIA CODE § 46.2-357(B)(2)
(Emphasis added).
At trial, appellant moved to strike the habitual offender
charge, arguing that while the indictment stated he had been
"adjudicated" an habitual offender, he had in fact been
"determined" an habitual offender. The Commonwealth argued
that, consistent with Code § 46.2-357, "the Defendant simply has
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to have been found an habitual offender." At that point, the
following colloquy occurred between counsel and the trial judge:
THE COURT: What have you been precluded
from raising here before me today because of
the word "adjudicated" in the document?
[COUNSEL]: Well, actually –
THE COURT: Is there something you haven't
been able to raise?
[COUNSEL]: On the contrary, I would say
that –
THE COURT: That's what I thought.
The jury returned a verdict finding appellant "guilty of
habitual offender felony as charged in the indictment."
II.
The sole issue on appeal is whether use of the word
"adjudicated" an habitual offender in the indictment and the
proof at trial that Morris had been "determined" to be an
habitual offender constituted a fatal variance between the
indictment and the evidence presented at trial.
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
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.
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(Emphasis added). "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, 653 (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 v. Commonwealth,
13 Va. App. 409, 411, 412 S.E.2d 709, 711 (1991) (quoting
Mitchell v. Commonwealth, 141 Va. 541, 558, 127 S.E. 368, 374
(1925)).
In the instant case, appellant was charged with "unlawfully
and feloniously driv[ing] after having been adjudicated an
Habitual Offender." As required by Code § 19.2-220, the
indictment contained the following information: (1) appellant's
name; (2) a description of the offense charged; (3) the city in
which the offense occurred; and (4) the date of the offense. In
addition, the indictment clearly identified the statute under
which appellant was charged, i.e., Code § 46.2-357(B)(2).
Significantly, in response to direct questioning by the trial
judge, counsel could not identify any prejudice resulting from
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the alleged variance between the indictment and the proof at
trial.
Additionally, we conclude that any variance between the
terms "adjudicated" and "determined," as applied in this case,
is non-fatal. "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, 652 (1984). "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. No
indictment will be deemed invalid for the insertion of any other
words or surplusage." Hairston v. Commonwealth, 2 Va. App. 211,
213-14, 343 S.E.2d 355, 357 (1986) (citations and footnote
omitted). "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." Id. at 214, 343 S.E.2d at 357.
In the instant case, Code § 46.2-357(B)(2) requires simply
that appellant be "determined or adjudicated" an habitual
offender as an element of the offense. (Emphasis added). Use
of the word "adjudicated" in the indictment did not change the
nature or cause of the accusation against appellant. It did not
change the offense that had been committed, nor did it alter the
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proof required to convict appellant of that crime. The specific
method by which appellant had been deemed an habitual offender
does not change the nature of the offense under Code
§ 46.2-357(B)(2). Thus, the allegation in the indictment that
Morris had been "adjudicated" an habitual offender and proof
that he had been "determined" such did not constitute a fatal
variance between the accusation and the proof. Appellant's
conviction is affirmed.
Affirmed.
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