COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JOHN A. HENDRIX
MEMORANDUM OPINION * BY
v. Record No. 0625-96-1 JUDGE RICHARD S. BRAY
MARCH 18, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Brenda C. Spry, Deputy Public Defender
(Office of the Public Defender, on brief),
for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
John A. Hendrix (defendant) was indicted for grand larceny
pursuant to Code § 18.2-95 and convicted in a bench trial for
larceny of a firearm in violation of Code § 18.2-108.1(1). On
appeal, he contends that the trial judge erroneously ruled that
Code § 18.2-108.1(1) was a lesser included offense of Code
§ 18.2-95. We agree and reverse the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
The subject indictment charged defendant with larceny of
property "having a value of $200.00 or more, . . . [i]n violation
of § 18.2-95," and the evidence established the theft of three
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
pistols and a "pellet gun." At the conclusion of the
Commonwealth's case, defendant moved to strike, arguing that the
evidence failed to prove the requisite value of the stolen
property. Relying upon the proscriptions of Code § 18.2-108.1,
the prosecutor countered that, irrespective of value, the crime
"would be still be grand larceny except it would be Class Six as
opposed to the other class of grand larceny." The court
"sustain[ed] [defendant's] motion as to the charge of grand
larceny [under Code § 18.2-95] but . . . allow[ed] the case to go
forward" on larceny of a firearm in violation of Code
§ 18.2-108.1. Defendant objected, reminding the court that he
had been indicted under Code § 18.2-95, not § 18.2-108.1. The
court, however, ruled that Code § 18.2-108.1 was a lesser
included offense of Code § 18.2-95.
On appeal, the Commonwealth concedes, quite correctly, that
Code § 18.2-108.1(1) is not a lesser included offense of Code
§ 18.2-95. It urges instead that the trial judge implicitly
amended the indictment to charge a violation of Code
§ 18.2-108.1(1).
An indictment is "a written accusation of a crime . . .
intended to inform the accused of the nature and cause of the
accusation against him. Notice to the accused of the offense
charged against him assures the accused a fair and impartial
trial on the merits." Marlowe v. Commonwealth, 2 Va. App. 619,
625, 347 S.E.2d 167, 171 (1986) (citation omitted); see Va.
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Const. art. I, § 8; Code § 19.2-220; Rule 3A:6(a). "'The accused
cannot be convicted unless the evidence brings him within the
offense charged in [the] indictment. . . . [T]he indictment must
charge [either] the very offense for which a conviction is
asked,'" Williams v. Commonwealth, 8 Va. App. 336, 341, 381
S.E.2d 361, 364 (1989) (quoting Mitchell v. Commonwealth, 141 Va.
541, 553, 127 S.E. 368, 372 (1925)), or a lesser included
offense. See Walker v. Commonwealth, 12 Va. App. 438, 443-44,
404 S.E.2d 394, 396 (1991) (citing Ashby v. Commonwealth, 208 Va.
443, 444-45, 158 S.E.2d 657, 658 (1968), cert. denied, 393 U.S.
1111 (1969)). These same principles apply to an amended
indictment. See Willis v. Commonwealth, 10 Va. App. 430, 437-38,
393 S.E.2d 405, 408-09 (1990).
Code § 19.2-231 permits an amendment to an indictment "in
two instances: where there is a defect in form, or where there
is a variance between the allegations and the evidence, provided
the amendment does not change the nature or character of the
offense charged." Willis, 10 Va. App. at 437, 393 S.E.2d at 408.
Such amendment may occur "at any time before the verdict is
returned or a finding of guilt is made," Cantwell v.
Commonwealth, 2 Va. App. 606, 608, 347 S.E.2d 523, 524 (1986),
whereupon "the accused shall be arraigned on the [amended]
indictment [and] . . . allowed to plead anew thereto, if he so
desires." Code § 19.2-231. If the trial court finds that the
amendment operates as a surprise to the accused, "[the accused]
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shall be entitled, upon request, to a continuance of the case for
a reasonable time." Willis, 10 Va. App. at 438, 393 S.E.2d at
409; see Crawford v. Commonwealth, 23 Va. App. 661, 479 S.E.2d 84
(1996) (en banc).
Here, the trial judge concluded that the Commonwealth's
evidence did not sufficiently establish the requisite elements of
the offense at indictment. Assuming, without deciding, that an
amendment of such indictment to charge an offense consistent with
the evidence would have then been appropriate, no amendment,
implicit or otherwise, is reflected in the record. Neither the
prosecutor nor the trial court made mention of amendment, and
defendant was not re-arraigned, with an attendant opportunity to
"plead anew" pursuant to Code § 19.2-231. Instead, the court
proceeded to conviction upon the incorrect theory that Code
§ 18.2-108.1(1) was a lesser included offense of Code § 18.2-95.
Accordingly, we reverse the conviction.
Reversed and dismissed.
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John A. Hendrix v. Commonwealth
Combined Opinion