COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia
DAVID P. MARKVA
MEMORANDUM OPINION * BY
v. Record No. 0010-95-4 JUDGE LARRY G. ELDER
AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Rosemarie Annunziata, Judge
Corinne J. Magee for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
David P. Markva (appellant) appeals his conviction for
attempted statutory burglary, in violation of Code §§ 18.2-92 and
18.2-26. Appellant contends that the trial court erred in
denying his motion to quash the indictment, where the indictment
stated that appellant attempted to break and enter the victim's
apartment "with the intent to commit assault or destruction of
property or unlawful entry or larceny or stalking." Because the
indictment sufficiently advised appellant as to what offenses the
Commonwealth charged, we affirm his conviction.
I.
FACTS
On January 21, 1994, Wendy Marx (the victim) discovered that
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
someone had vandalized her Fairfax County apartment by carving
symbols on her furniture. The victim suspected her co-worker,
appellant, because the symbols were related to "Dungeons and
Dragons," a game which appellant talked about frequently at work.
On February 3, 1994, the victim discovered that some of her
possessions had been moved in her apartment. The victim informed
police of both incidents.
Appellant confessed to police that he removed the victim's
house key from her purse and made himself a copy. Appellant also
admitted that he made the marks on the victim's furniture and
that he wanted to hurt the victim. Police arrested appellant,
charged him with breaking and entering, but released him on bond.
On March 3, 1994, the victim looked out of the peephole of
her front door and observed appellant "pulling on the doorknob"
of her door. After the victim's sister arrived to assist her,
they noticed that the doorknob was "extremely loose, just hanging
there." The victim again informed police of appellant's actions.
On April 18, 1994, appellant was indicted for attempted
burglary on March 3, 1994, with the intent to commit "a
misdemeanor." On April 26, 1994, appellant requested a bill of
particulars to notify him of the alleged misdemeanor. On May 11,
1994, the Commonwealth filed a bill of particulars, stating that
the underlying misdemeanors were "either destruction of property
or stalking or unlawful entry." At a May 13, 1994 hearing, Judge
Marcus D. Williams denied appellant's request for a more
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particular bill of particulars, reasoning that the Commonwealth
"narrowed it down to those three potential misdemeanors."
Appellant then moved to quash the indictment. Judge J. Howe
Brown, Jr., heard argument on May 27, 1994, and granted
appellant's motion, concluding that the Commonwealth failed to
state the specific misdemeanor that was the object of appellant's
attempted burglary.
Appellant was reindicted on June 20, 1994, after the next
grand jury session, for the same offense. The new indictment
specified that appellant committed attempted burglary "with the
intent to commit assault or destruction of property or unlawful
entry or larceny or stalking." Appellant moved to quash the
indictment, again claiming that the listing of multiple
misdemeanors did not adequately apprise him of the nature of the
charge. After hearing argument, Judge F. Bruce Bach, on July 25,
1994, overruled appellant's motion, stating that the indictment
was "a concise and definite written statement describing the
offense charged, as required by [] Code § 19.2-220. It clearly
provides [appellant] notice of the nature and character of the
offense charged."
A jury trial was held on September 7-8, 1994. After the
presentation of evidence, the trial court granted appellant's
motion to strike the two underlying misdemeanors of assault and
larceny. The jury was allowed to consider the three underlying
misdemeanor offenses of: (1) destruction of property,
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(2) unlawful entry, and (3) stalking. After the jury returned a
guilty verdict on the charge, the trial court sentenced appellant
to twelve months in jail with six months suspended. Appellant
now appeals to this Court.
II.
MOTION TO QUASH THE INDICTMENT
Appellant contends that the indictment failed to provide him
with "a concise and definite written statement" describing the
charged offense, Code § 19.2-20, because the indictment failed to
describe the specific intent that he possessed when attempting to
enter the victim's apartment. We disagree with appellant.
Code § 19.2-220 states:
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.
(Emphases 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."
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." Willis v. Commonwealth, 10 Va. App. 430,
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437-38, 393 S.E.2d 405, 409 (1990). See Wilder v. Commonwealth,
217 Va. 145, 147, 225 S.E.2d 411, 413 (1976); U.S. Const. amend.
VI; Va. Const. art. 1, § 8.
We hold that the indictment against appellant for attempted
statutory burglary was a concise and definite written statement
describing the offense charged. As such, it met the requirements
of Code § 19.2-220. The indictment apprised appellant of the
offenses which he was required to answer. Taylor v.
Commonwealth, 207 Va. 326, 332, 150 S.E.2d 135, 140 (1966). 1 As
1
Appellant cites Taylor in support of his argument that "a
defendant is entitled to be apprised of the offense which he is
required to answer." Id. at 332, 150 S.E.2d at 140. Taylor is
inapposite to this case. In Taylor, the indictment against the
defendant charged the defendant with breaking and entering a
dwelling house with the intent to "feloniously and burglariously
to commit a felony." Id. The Supreme Court, in reversing the
defendant's conviction, held in part that "[t]he averment wholly
fails to specify the offense or felony which it alleges [the
defendant] wished to commit." Id. The indictment in this case
differs from the overly-broad indictment in Taylor because the
Commonwealth specifically stated the five underlying misdemeanor
intents it proposed to prove at trial.
Appellant also cites Mitchell v. Commonwealth, 141 Va. 541,
127 S.E. 368 (1925), for the proposition that the indictment in
this case may have properly alleged the five misdemeanor intents
in one count, but that the intents must have been listed in the
conjunctive ("and") instead of the disjunctive ("or"). Mitchell
is inapposite to this case. In Mitchell, the Supreme Court
stated:
If a statute . . . makes it a crime to do
this, or that, or that, mentioning several
things disjunctively, the indictment may,
indeed, as a general rule, embrace the whole
in a single count; but it must use the
conjunctive "and" where "or" occurs in the
statute, else it will be defective as being
uncertain.
Id. at 551, 127 S.E. at 372 (citations and quotations
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appellant concedes, a defendant can commit a crime with multiple
intents. See Hughes v. Commonwealth, 18 Va. App. 510, 531, 446
S.E.2d 451, 463-64 (1994)(en banc)(Coleman, J., concurring). In
this case, the Commonwealth sufficiently limited the indictment
to provide appellant with adequate notice of the five underlying
misdemeanor intents it proposed to prove at trial. 2
We fail to see how appellant would have benefited from a
trial court order for the Commonwealth to bring a multi-count
indictment or to list the underlying misdemeanors in the
conjunctive ("and") instead of the disjunctive ("or").
Appellant's complaint "goes to the form rather than to the
substance of the averments, and cannot be allowed to prevail,
especially as it is not perceived that any prejudice resulted to
[appellant]." Clayton v. United States, 284 F. 537 (4th Cir.
1922). Furthermore, "[a]n error, defect, irregularity, or
variance in the application . . . of [Rule 3A:6(a)] will not
constitute reversible error unless the substantive rights of a
party have been affected." Foster v. Commonwealth, 6 Va. App.
313, 323, 369 S.E.2d 688, 694 (1988)(citing Rule 3A:2(a)).
omitted)(emphases added). Code § 18.2-92, the statute that
appellant was convicted of violating, does not list the various
underlying misdemeanors in the conjunctive or the disjunctive.
Rather, it merely states that "[i]f any person break and enter a
dwelling house . . . with the intent to commit any misdemeanor
except assault and battery or trespass, he shall be guilty of a
Class 6 felony." (Emphasis added).
2
We emphasize that the issue on appeal before this Court is
whether appellant had fair notice of the charges against him, not
whether the grand jury properly indicted appellant.
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Our holding is guided by the Supreme Court's decision in
Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 (1989),
cert. denied, 493 U.S. 1063 (1990). In Buchanan, the defendant
was tried for capital murder. The first of three indictments
charged that the defendant killed "Buchanan, Sr. as part of the
same act or transaction in which he killed J.J., Donnie, or Mrs.
Buchanan." Id. at 396, 384 S.E.2d at 762 (emphasis added). The
two remaining indictments, each in two counts, set forth various
permutations under which the four murder victims might have been
killed. Id. at 396-97, 384 S.E.2d at 762. The defendant argued
that the indictments did not allow him to focus his defense on a
specific pair of killings as being connected, thus depriving him
of his right to sufficient notice of the charged offenses. Id.
at 396, 384 S.E.2d at 761. The Supreme Court disagreed with the
defendant and held that:
[T]he theoretical limitation on the
number of possible capital murder convictions
that can be supported by four murders does
not control the way in which the Commonwealth
can frame indictments. The Commonwealth is
free to indict an individual for as many
separate crimes as the Commonwealth, in good
faith, thinks it can prove. Further, the
Commonwealth is free to charge the commission
of a single offense in several different ways
in order to meet the contingencies of proof
. . . .
The three indictments put Buchanan on
fair notice of what he was required to defend
against at trial. Under the first
indictment, Buchanan was on notice that he
had to defend against a claim that he killed
Buchanan, Sr. and all three of the other
victims as part of the same act or
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transaction; that he killed Buchanan, Sr. and
any two of the other victims as part of the
same act or transaction; or that he killed
Buchanan, Sr. and any one of the other
victims as part of the same act or
transaction. Thus, under the first
indictment, Buchanan was on notice that he
had to defend against seven possible
groupings of murder victims, any one of which
was sufficient to constitute capital murder,
but that Buchanan, Sr. was a necessary part
of any of those groupings.
Id. at 397-98, 384 S.E.2d at 762 (emphasis added)(other emphases
deleted). Just as in Buchanan, "[appellant] was on notice that
he had to defend against [five] possible [underlying
misdemeanors], any one of which was sufficient to [support the
intent for a statutory burglary conviction]." Id. And while it
may have been preferable for the Commonwealth to bring a
multi-count indictment in this case, "there's no way [appellant
did not] know what [he was] charged with." Id. at 398, 384
S.E.2d at 763.
For these reasons, we affirm appellant's conviction.
Affirmed.
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Benton, J., dissenting.
Code § 19.2-220 requires that "[t]he indictment . . . shall
be a plain, concise and definite written statement . . .
describing the offense charged." The statute codifies the
protection guaranteed by the Constitution of Virginia "[t]hat in
criminal prosecutions a man hath a right to demand the cause and
nature of his accusation." Art. I, § 8. See also U.S. Const.
amend. V. Thus, the principle is well established that "[a]n
indictment not framed to apprise the defendant 'with reasonable
certainty, of the nature of the accusation against him is . . .
defective, although it may follow the language of the statute.'"
Russell v. United States, 369 U.S. 749, 765 (1962) (citation
omitted).
In pertinent part, the indictment in this prosecution
alleged that "David P. Markva did attempt to break and enter the
dwelling house . . . while said dwelling was occupied, with the
intent to commit assault or destruction of property or unlawful
entry or larceny or stalking." So written, the indictment
charged Markva with one act of attempted burglary but
impermissibly ascribed to him in the disjunctive five separate
intents.
Specific intent is an essential element of
burglary. It is elementary that a defendant
is entitled to be apprised of the offense
which he is required to answer.
Taylor v. Commonwealth, 207 Va. 326, 332, 150 S.E.2d 135, 140
(1966) (citations omitted).
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In summary, the indictment charged, and Markva was compelled
to defend against, the burglary offense alleging the following
five disjunctive intents:
1. attempt to break and enter an occupied
dwelling with the intent to commit assault,
or
2. attempt to break and enter an occupied
dwelling with the intent to commit
destruction of property, or
3. attempt to break and enter an occupied
dwelling with the intent to commit an
unlawful entry, or
4. attempt to break and enter an occupied
dwelling with the intent to commit larceny,
or
5. attempt to break and enter an occupied
dwelling with the intent to commit stalking.
This practice has long been condemned by the United States
Supreme Court as being unlawful. In a very early case, the Court
ruled that "an indictment or a criminal information which charges
the person accused, in the disjunctive, with being guilty of one
or of another of several offenses, would be destitute of the
necessary certainty, and would be wholly insufficient." The
Confiscation Cases, 87 U.S. 92, 104 (1873). In similar fashion,
the Supreme Court of Virginia held more than seventy years ago as
follows:
"'If a statute . . . makes it a crime to do
this, or that, or that,' mentioning several
things disjunctively, 'the indictment may,
indeed, as a general rule, embrace the whole
in a single count; but it must use the
conjunctive "and" where "or" occurs in the
statute, else it will be defective as being
uncertain.'"
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Mitchell v. Commonwealth, 141 Va. 541, 551, 127 S.E. 368, 372
(1925) (citations omitted). Decisions from other states also
have long "'recognize[d] the general rule, too well settled to
require citation to authorities, that where the means by which a
crime may be committed are set forth in the statute in the
disjunctive, they should be alleged in the information in the
conjunctive.'" Espinoza v. People, 349 P.2d 689, 690 (Colo.
1960) (citation omitted). See also State v. Batson, 831 P.2d
924, 932 (Haw. 1992); People v. Eagle Books, Inc. 602 N.E.2d 798,
801-02 (Ill. 1992); State v. Helms, 102 S.E.2d 241, 243 (N.C.
1958).
These principles clearly are applicable to this case. The
burglary statute states that the act must be accompanied by "the
intent to commit any misdemeanor except assault and battery or
trespass." Code § 18.2-92 (emphasis added). Obviously, the
statute's use of the phrase "any misdemeanor" tacitly includes in
the disjunctive each of the various misdemeanors proscribed by
law.
It is not uncommon for a statute to define
as an offense two or more separate acts,
things, or transactions, enumerated therein
in the disjunctive. In such a case, the
whole may be charged conjunctively and the
accused found guilty of any one. On the
other hand, absent a statute providing
otherwise, it is fatal for an indictment or
information to charge disjunctively in the
words of the statute, if the disjunctive
renders it uncertain as to which alternative
is intended. Likewise, the use of the
expression "and/or" in an indictment or
information is ordinarily condemned as
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destructive of the definiteness and certainty
required in a good criminal pleading.
2 Charles E. Torcia, Wharton's Criminal Procedure, § 266 (13th
ed. 1990) (footnotes omitted). Thus, when the indictment in this
case disjunctively alleged five different misdemeanor offenses to
charge Markva's intent, the indictment was fatally defective.
To compound the error of not requiring the Commonwealth to
elect one misdemeanor offense or charge conjunctively in the
indictment, the jury was not required to elect among the various
means of committing the offense. Indeed, we do not know which
misdemeanor offense, if any, the jury found beyond a reasonable
doubt that Markva intended to commit. In its verdict, the jury
reported as follows:
We, the Jury, on the issue joined in the case
of the Commonwealth of Virginia versus DAVID
MARKVA, Defendant, find the Defendant,
charged in the indictment, guilty of
Attempted Statutory Burglary with the
specific intent to:
X destroy property, and/or
X commit an unlawful entry, and/or
X for the purpose of stalking
The verdict form clearly leaves in question the crime of which
the jury convicted Markva of intending to commit. See State v.
Mitchell, 7 S.E.2d 567, 572 (N.C. 1940).
The jury's finding can only mean that the jury had to
speculate and was unable to determine which intent was proved.
"Surmise and speculation as to the existence of the intent are
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not sufficient, and 'no intent in law or mere legal presumption,
differing from the intent in fact, can be allowed to supply the
place of the latter.'" Taylor, 207 Va. at 334, 150 S.E.2d at
141. See e.g., State v. Seymour, 502 N.W.2d 591, 594-95 (Wis.
Ct. App. 1993), aff'd, 515 N.W.2d 874 (Wis. 1994) (prejudice
occurs when the jury's verdict is stated in the disjunctive
because the verdict does not satisfy the beyond-a-reasonable-
doubt standard). Because the verdicts rendered by the jury were
also in the disjunctive, they were inherently ambiguous.
For these reasons, I would reverse the conviction and vacate
the indictment.
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David P. Markva v. Commonwealth
Combined Opinion