COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
GEORGE SMITH ALSTON
OPINION BY
v. Record No. 1822-99-2 JUDGE RICHARD S. BRAY
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
George Smith Alston (defendant) was convicted, in a bench
trial, of arson in violation of Code § 18.2-77. On appeal, he
challenges the sufficiency of the evidence to establish the
offense charged in the indictment. Finding that the unproven
allegation of the indictment, the ownership of the premises, was
mere surplusage, we affirm the conviction.
I.
Guided by familiar principles, we consider the record "'in
the light most favorable to the Commonwealth, giving it all
reasonable inferences fairly deducible therefrom. In so doing,
we must discard the evidence of the accused in conflict with
that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth . . . .'" Watkins v.
Commonwealth, 26 Va. App. 335, 348, 404 S.E.2d 856, 866 (1998)
(citation omitted).
On March 18, 1999, Mary Mitchell, together with her mother,
brother and son, returned from church to a residential dwelling
occupied by the four in the city of Richmond. Defendant, then
"living in and out" of the home, was present when the family
arrived. Shortly thereafter, Mitchell discovered that "sodas" and
"hamburger" were missing and "confronted" defendant, prompting an
argument that culminated with Mitchell ordering defendant from the
house. Defendant "left in an angered manner" and, once outside,
was seen "walking up and down" a nearby street. "[A]bout 15
minutes" later, Mitchell's brother discovered a fire in the
"downstairs" area of the home, alerted the others, and everyone
escaped through the "back entrance."
Moments prior to the fire, Kenneth Jones, a neighbor "across
the street," observed defendant "kneel down" "beside the
[Mitchell] residence," rise and "all of the sudden a blaze of fire
comes out." As Jones ran "towards the fire," defendant "just
stood right there . . . and . . . walked away." After Jones
extinguished the fire with "dirt and mud," he noticed defendant
"peep back around the corner," and alerted a "correctional
officer," then also at the scene. As the two men approached
defendant, he fled, but Jones pursued and apprehended him for
police.
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Richmond Police Detective Michael J. Wyatt, an expert "in the
nature of arson and the nature and cause and origin of fires,"
testified that his investigation of the fire disclosed that the
cause was neither "electrical" nor "mechanical," but "incendiary
in nature," a fire which "has to be set."
The subsequent indictment of defendant, as amended, alleged
that
[o]n or about March 18, 1999, in the City of
Richmond, [he] did feloniously, unlawfully
and maliciously burn[], or by use of
explosive device destroy[] an occupied
dwelling or manufactured home, belonging to
Joseph O'Brian. Virginia Code Section
18.2-77.
(Emphasis added.) Defendant argues on appeal that the evidence
failed to prove that the "dwelling . . . belong[ed] to Joseph
O'Brian, resulting in a fatal variance between an allegation of
the indictment and the requisite proof" to support the
conviction.
II.
"An indictment is a written accusation of a crime . . .
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); see Code § 19.2-220. "It
is elementary that what need not be proved need not be alleged,"
although "sometimes [the indictment] alleges something that
. . . was not necessary to allege," requiring proof of "what
. . . has [been] alleged unless the unnecessary allegation can
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be rejected as surplusage." Mitchell v. Commonwealth, 141 Va.
541, 555, 127 S.E. 368, 373 (1925). "'If the unnecessary word
or words . . . in the indictment describe, limit or qualify the
words which it was necessary to insert therein, then they are
descriptive of the offense charged in the indictment and cannot
be rejected as surplusage.'" Hairston, 2 Va. App. at 214-15,
343 S.E.2d at 357 (quoting Mitchell, 141 Va. at 560, 127 S.E. at
374). However, to become indispensable, "the unnecessary
language must have a material effect on the offense charged and
on the proof required to convict under that charge." Id. at
217, 343 S.E.2d at 359 (emphasis added).
Here, the indictment charged defendant with a violation of
Code § 18.2-77(A), which provides, in pertinent part, "[i]f any
person maliciously (i) burns, or by use of any explosive device
or substance destroys, in whole or in part, or causes to be
burned or destroyed, . . . any dwelling house . . . whether
belonging to himself or another, . . . he shall be guilty of a
felony, punishable" as prescribed by the statute. 1 (Emphasis
added.) "[T]he term 'dwelling house'" has been defined, in the
context of Code § 18.2-77, as "a place which human beings
regularly use for sleeping." Marable v. Commonwealth, 27 Va.
App. 505, 513, 500 S.E.2d 233, 237 (1998) (citing Rash v.
Commonwealth, 9 Va. App. 22, 26-27, 383 S.E.2d 749, 751 (1989)).
1
Code § 18.2-77(B) provides for a reduced penalty "when
such building . . . is unoccupied."
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Thus, to prove the dwelling house element of Code § 18.2-77(A),
the Commonwealth need not establish ownership of the premises,
only routine habitation.
Defendant acknowledges that "it may not have been necessary
to allege in the instant indictment whose house was burned," but
relies upon Etheridge v. Commonwealth, 210 Va. 328, 171 S.E.2d
190 (1969), in support of his contention that, once charged,
such proof was necessary to a conviction. In Etheridge, the
indictment alleged that the accused "did unlawfully, feloniously
and maliciously shoot at or into a dwelling house, to-wit: the
residence of Edna Harper located at Route 2, Box 224, Galbush
Road, Chesapeake, Virginia," a violation of former Code
§ 18.1-152. Id. at 329, 171 S.E.2d at 191 (emphasis added).
However, the evidence at trial established that Edna Harper,
although present in the dwelling at the time of the offense,
resided elsewhere. See id. In reversing the conviction, the
Court concluded that the Commonwealth "chose to specify" the
dwelling house "or residence involved as that of Edna Harper," a
description of "that which was necessary to be alleged" that
"cannot . . . be treated as surplusage." Id. at 329-30, 171
S.E.2d at 191-92.
In contrast, the subject indictment makes no reference to
the resident or residents of the subject dwelling house, but,
instead, specifies only the owner of the property, an
unnecessary allegation. The language in Etheridge, "the
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residence of Edna Harper," modified "words . . . necessary to"
the indictment, dwelling house, which requires habitation or
residency, by definition, and, therefore, could not "be rejected
as surplusage." Hairston, 2 Va. App. at 214, 215, 343 S.E.2d at
357, 357. The extraneous language now before the Court
qualified ownership, a circumstance immaterial to the offense
and clearly unnecessary to a successful prosecution of the
indictment.
Accordingly, we find the evidence sufficient to prove the
offense charged in the indictment and affirm the conviction.
Affirmed.
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