COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
KERRY LEECOYA LOWE
OPINION BY
v. Record No. 0080-00-3 JUDGE LARRY G. ELDER
OCTOBER 17, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Joseph R. Winston (Elwood Earl Sanders, Jr.,
Appellate Defender; Public Defender
Commission, on brief), for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Kerry Leecoya Lowe (appellant) appeals from his bench trial
convictions for malicious wounding in violation of Code
§ 18.2-51 and trespass in violation of Code § 18.2-119. 1 On
1
Although the circuit court's original sentencing order
contained various inconsistencies regarding the offenses for
which appellant was convicted, we granted the Commonwealth's
motion to allow the trial court to review that order and correct
any clerical errors contained therein pursuant to Code
§ 8.01-428(B). The court entered a nunc pro tunc order stating
that it convicted appellant of malicious wounding in violation
of Code § 18.2-51 and trespass in violation of Code § 18.2-119.
The record fully supports the court's entry of the nunc pro tunc
order; therefore, we consider the merits of the appeal based on
the final order entered nunc pro tunc. See Davis v. Mullins,
251 Va. 141, 149, 466 S.E.2d 90, 94 (1996) (discussing court's
authority under Code § 8.01-428(B) to correct the record to
"speak the truth" by "placing upon the record evidence of
judicial action which has actually been taken . . . at the
proper time," action which does not require reacquisition of
appeal, he contends (1) his first conviction was for unlawful
rather than malicious wounding, as per the trial court's
sentencing order, and, therefore, that the sentence imposed
exceeded the statutory range; and (2) his conviction for
trespass was invalid because it was not lesser included in the
charged offense of statutory burglary while armed with a deadly
weapon. In light of the trial court's nunc pro tunc order
clarifying the nature of appellant's convictions, we affirm the
sentence imposed for malicious wounding as within the statutory
____________________
jurisdiction); Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393,
394-95 (1981) (noting that entry of a nunc pro tunc order to
correct a true clerical error does not violate Rule 1:1).
In entering the nunc pro tunc order, the circuit court
found that the designation of the offense in the final order as
unlawful wounding, rather than malicious wounding, was a
clerical error. That finding is supported by the record.
Accordingly, the trial court correctly ruled that correction of
the clerical error was a ministerial act which could be
accomplished by entry of an order nunc pro tunc without
violating the twenty-one day time limitation of Rule 1:1.
Furthermore, the trial court did not abuse its discretion by
dispensing with Rule 1:13's requirement of notice to or
endorsement by counsel, nor did entry of the nunc pro tunc order
without notice and a prior opportunity to be heard violate
appellant's due process rights. Rule 1:13 specifically provides
"[c]ompliance with this rule . . . may be modified or dispensed
with by the court in its discretion." Here, no notice or
hearing was necessary because the court did not reacquire
jurisdiction and lacked authority to reconsider or alter its
previous ruling. See Davis, 251 Va. at 149, 466 S.E.2d at 94.
The trial court was empowered only to correct possible clerical
errors in the sentencing order to the extent such corrections
were supported by the existing record. See id. Further,
appellant had the opportunity to contest the lack of notice in a
timely fashion after entry of the nunc pro tunc order, but he
did not do so. Under these circumstances, we hold the trial
court's decision to dispense with endorsements under Rule 1:13
was not an abuse of discretion.
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range, and we reverse and dismiss the trespass conviction
because trespass under Code § 18.2-119 is not a lesser included
offense of statutory burglary under Code § 18.2-91.
I.
BACKGROUND
Appellant originally was charged with malicious wounding in
violation of Code § 18.2-51 and statutory burglary while armed
with a deadly weapon in violation of Code § 18.2-91. 2 After
hearing the evidence and argument of counsel, the circuit court
(trial court) held as follows:
I am going to reduce the breaking and
entering while armed with a deadly weapon to
trespassing. I find the defendant guilty of
trespassing . . . . And I think under the
facts of this case, the malicious wounding
has been proven, as well. So I find the
defendant guilty of malicious wounding.
At the sentencing hearing on November 3, 1999, the trial
court reiterated that it had found appellant guilty of malicious
wounding and trespassing. It sentenced him as follows:
[H]aving found you guilty of the offense of
trespass, I sentence you to twelve months in
jail . . . suspended on condition that you
be on probation supervision for a period of
four years, upon your release from
confinement. On the charge of malicious
wounding, I sentence you to ten years in
prison. I will require you to serve five
years. The balance of the five years will
be suspended [on various conditions] . . . .
2
Appellant also was charged with assault and battery and
was found guilty. On appeal, he does not challenge the assault
and battery conviction.
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The trial court's original sentencing order, coupled with
its nunc pro tunc order, confirmed appellant was convicted for
(1) malicious wounding in violation of Code § 18.2-51 and
sentenced to serve ten years with five years suspended; and (2)
trespass in violation of Code § 18.2-119 and sentenced to twelve
months, all suspended on condition of four years supervised
probation.
Appellant registered no objection in the trial court to his
conviction for trespass under an indictment for statutory
burglary while armed with a deadly weapon.
II.
ANALYSIS
A.
UNLAWFUL VERSUS MALICIOUS WOUNDING
Appellant contends on appeal that he was convicted for
unlawful wounding and that the sentence imposed in the original
sentencing order exceeds the sentence permitted for unlawful
wounding. However, based on the trial court's nunc pro tunc
order, see discussion supra note 1, the sentencing order now
reflects that appellant was convicted for malicious wounding,
and the sentence imposed in that order is within the range
authorized by statute. See Code §§ 18.2-10, 18.2-51.
Therefore, assuming without deciding that Rule 5A:18 does not
bar our consideration of this issue, the error of which
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appellant complained has ceased to exist, and we affirm the
sentence imposed for appellant's malicious wounding conviction.
B.
TRESPASS CONVICTION
Appellant contends trespass in violation of Code § 18.2-119
is not a lesser included offense of statutory burglary while
armed with a deadly weapon and that this conviction, therefore,
is invalid. 3 The Commonwealth contends that Rule 5A:18 bars
appellant from raising this issue on appeal because he made no
contemporaneous objection in the trial court to conviction for
trespass. We previously have concluded, however, that
[t]he fact that the defendant did not object
to . . . the conviction on the ground that
he was convicted for an offense with which
he was not charged is of no moment. Unless
an indictment is amended to conform to the
proof or an accused acquiesces in being
found guilty of an offense other than the
one charged, a trial court lacks the
authority to find an accused guilty of an
offense other than the one charged or a
lesser included offense. . . . The lack of
authority of the trial court to render the
3
The record contained a clerical error in the trial court's
citation to the statute under which appellant was convicted for
trespass. The trial court did not make clear at trial or
sentencing whether it convicted appellant of common law or
statutory trespass and, if statutory trespass, under which code
section the conviction was rendered. The parties agreed that
Code § 18.2-152, cited by the trial court in the original
sentencing order, had no relationship to the evidence adduced at
trial. As set out above, see discussion supra note 1, the trial
court's nunc pro tunc order indicates that it convicted
appellant of trespass in violation of Code § 18.2-119. We
therefore analyze appellant's second assignment of error in
light of this correction.
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judgment that it did may be raised at any
time and by this Court on its own motion.
Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d 241,
244 (1997) (citations omitted). Acquiescence requires something
more than a mere failure to object. See id. (holding that
failing to object, coupled with statement to judge clarifying
that conviction was for misdemeanor rather than felony, did not
constitute acquiescence). We proceed, therefore, to examine the
merits of this assignment of error.
The court's authority to convict appellant for trespass
under Code § 18.2-119 is contingent upon whether that offense is
lesser included in the offense for which appellant was charged,
statutory burglary while armed with a deadly weapon in violation
of Code § 18.2-91. See Harrell v. Commonwealth, 11 Va. App. 1,
6, 396 S.E.2d 680, 682 (1990). "The state may not accuse a
person of one crime and convict him by proving another unless
the offense is a lesser included one of that charged." Id. "A
lesser included offense is an offense which is composed entirely
of elements that are also elements of the greater offense."
Kauffman v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279,
283 (1989). "The lesser [included] offense is therefore always
'charged by implication' as part of the 'greater offense' and
'necessarily proven by the proof of the greater offense.'"
Crump v. Commonwealth, 13 Va. App. 286, 290, 411 S.E.2d 238, 241
(1991) (quoting Taylor v. Commonwealth, 11 Va. App. 649, 652,
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400 S.E.2d 794, 795 (1991)). "An offense is not a lesser
included offense of another if each offense contains an element
that the other does not." Walker v. Commonwealth, 14 Va. App.
203, 206, 415 S.E.2d 446, 448 (1992). "The determination of
what offenses are necessarily included lesser offenses of the
crime charged is based on the fundamental nature of the offenses
involved, not on the particular facts of a specific case
. . . ." Taylor, 11 Va. App. at 652, 400 S.E.2d at 795.
We take guidance from our decision in Crump, in which we
held that trespass under Code § 18.2-121 is not a lesser
included offense of statutory burglary under Code § 18.2-91.
See 13 Va. App. at 290-91, 411 S.E.2d at 240-41.
A violation of Code § 18.2-121 is an
offense against the "land, dwelling,
outhouse or any other building of another,"
its "contents" or "use" of "such property
free from interference."
Code § 18.2-91, statutory burglary,
. . . relies upon Code § 18.2-90 to identify
its prohibited "acts." Code § 18.2-90
includes offenses against properties not
specified in Code § 18.2-121, i.e. ships,
vessels, river craft. Thus, a violation of
Code § 18.2-91 will not invariably and
necessarily include a violation of Code
§ 18.2-121[,] and the misdemeanor is,
consequently, not a lesser included offense
of either Code §§ 18.2-90 or 18.2-91.
Id. at 291, 411 S.E.2d at 241 (citation omitted). 4
4
Although the legislature has amended Code §§ 18.2-90 and
18.2-91 on multiple occasions since our decision in Crump, those
amendments did not alter the language we analyzed in Crump. See
1997 Va. Acts ch. 832; 1996 Va. Acts ch. 1040; 1992 Va. Acts
chs. 486, 546; 1991 Va. Acts ch. 710.
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Although Code §§ 18.2-119 5 and 18.2-121 are not identical,
they involve similar types of property such that trespass in
violation of Code § 18.2-119 also is not a lesser included
offense of statutory burglary under Code § 18.2-91. Code
§ 18.2-119 is an offense against "the lands, buildings or
premises of another," whereas Code § 18.2-91, by incorporating
Code § 18.2-90, "includes offenses against properties not
specified in Code § [18.2-119], i.e. ships, vessels, river
craft." Crump, 13 Va. App. at 291, 411 S.E.2d at 241. Although
Code § 18.2-119 includes trespass to the "premises of another,"
5
Code § 18.2-119 provides as follows:
If any person without authority of law
goes upon or remains upon the lands,
buildings or premises of another, or any
portion or area thereof, after having been
forbidden to do so, either orally or in
writing, by the owner, lessee, custodian or
other person lawfully in charge thereof, or
after having been forbidden to do so by a
sign or signs posted by such persons or by
the holder of any easement or other
right-of-way authorized by the instrument
creating such interest to post such signs on
such lands, structures, premises or portion
or area thereof at a place or places where
it or they may be reasonably seen, or if any
person, whether he is the owner, tenant or
otherwise entitled to the use of such land,
building or premises, goes upon, or remains
upon such land, building or premises after
having been prohibited from doing so by a
court of competent jurisdiction by an order
issued pursuant to [any of several
enumerated statutes], and after having been
served with such an order, he shall be
guilty of a Class 1 misdemeanor.
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the term "premises" is not broad enough to encompass the water
craft mentioned in Code § 18.2-90. Rather, the term "premises"
relates to "[l]and and its appurtenances," such as "[t]he area
of land surrounding a house . . . , a room, shop, building, or
other definite area, or a distinct portion of real estate."
Black's Law Dictionary 1062-63 (5th ed. 1979) (emphasis added),
cited with approval in Beach Robo, Inc. v. Crown Cent. Petroleum
Corp., 236 Va. 131, 134, 372 S.E.2d 144, 146 (1988). "Thus, a
violation of Code § 18.2-91 will not invariably and necessarily
include a violation of Code § [18.2-119,] and the misdemeanor
is, consequently, not a lesser included offense of . . . [Code
§ 18.2-91]." Crump, 13 Va. App. at 291, 411 S.E.2d at 241.
Further, Code § 18.2-119 contains at least one element
which Code § 18.2-91 does not, either directly or by reference
to any other Code section. Code § 18.2-119 requires proof that
the accused "goes upon or remains upon the lands, buildings or
premises of another . . . after having been forbidden to do so"
by any of several different means, including orally, by posting
or other writing, or by order of court. (Emphasis added). For
this reason also, Code § 18.2-119 is not a lesser included
offense of Code § 18.2-91, and the Commonwealth, by charging a
violation of Code § 18.2-91, did not also charge a violation of
Code § 18.2-119.
For these reasons, we affirm the sentence imposed for
appellant's malicious wounding conviction but reverse and
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dismiss his trespass conviction based on our holding that
trespass under Code § 18.2-119 is not a lesser included offense
of statutory burglary under Code § 18.2-91, the offense with
which appellant was charged.
Affirmed in part,
and reversed and
dismissed in part.
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