                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia


ANTONIO ROBINSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 1623-02-2              JUDGE ROSEMARIE ANNUNZIATA
                                              JUNE 3, 2003
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF SUSSEX COUNTY
                  Robert G. O'Hara, Jr., Judge

          Steven Brent Novey (Tomko & Novey, P.C., on
          brief), for appellant.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Antonio Robinson was convicted of aggravated malicious

wounding and use of a firearm while committing aggravated

malicious wounding.   On appeal, he asserts the convictions were

in error because he was indicted for malicious wounding rather

than aggravated malicious wounding.   Finding no error, we

affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                Facts

     The material facts underlying this appeal are not in

dispute.    A grand jury indicted Robinson, charging that he

violated Code § 18.2-51.2 1 and alleging as follows:

            The GRAND JURORS of the Commonwealth of
            Virginia, in and for the body of the County
            of Sussex, and now attending the Circuit
            Court of said County at its November 13,
            2001 Term, upon their oaths present that
            ANTONIO ROBINSON on or about the 24th day of
            July 2001, in the County of Sussex, did
            feloniously and maliciously shoot or wound
            Ron Corey Tyler, with the intent to maim,
            disfigure, or kill, against the peace and
            dignity of the Commonwealth of Virginia. 2

(Footnote added.)

     Prior to his jury trial, Robinson filed a motion

challenging the sufficiency of the indictment, alleging he could

not be tried for aggravated malicious wounding because the

indictment only charged malicious wounding; he argued that the

indictment did not allege the required element of "permanent and

significant physical impairment."    He contends that the


     1
         Code § 18.2-51.2 provides, in part:

            A. If any person maliciously shoots, stabs,
            cuts or wounds any other person, or by any
            means causes bodily injury, with the intent
            to maim, disfigure, disable or kill, he
            shall be guilty of a Class 2 felony if the
            victim is thereby severely injured and is
            caused to suffer permanent and significant
            physical impairment.
     2
       He was also charged with one count of use of a firearm
while committing aggravated malicious wounding, in violation of
Code § 18.2-53.1.

                                - 2 -
Commonwealth cannot prosecute him for a higher grade crime than

that for which the grand jury indicted him.   He stated, however,

that he was not "acknowledging surprise, [or] that [he] didn't

know he was being charged with aggravated."

     The Commonwealth responded that the indictment charged a

violation of Code § 18.2-51.2, the aggravated malicious wounding

statute, and argued the omission of a specific allegation of

"permanent and significant physical impairment" was not fatal to

the indictment.   Notwithstanding the argument, the Commonwealth

moved to have the indictment amended to add the omitted

language, viz., "permanent and significant physical impairment."

The trial court denied the motion to amend the indictment and

denied Robinson's motion challenging the sufficiency of the

indictment.   The jury convicted Robinson of aggravated malicious

wounding and use of a firearm while committing aggravated

malicious wounding.   We find no error and affirm the conviction.

                               Analysis

     Code § 19.2-220 provides that an indictment shall be a

"plain, concise, and definite written statement . . . describing

the offense charged."   Rule 3A:6(a) requires the indictment to

cite "the statute or ordinance that defines the offense or, if

there is no defining statute or ordinance, prescribes the

punishment for the offense."    However, the omission in an

indictment of language reciting a required element is not fatal.



                                - 3 -
See Wall Distributors, Inc. v. Newport News, 228 Va. 358, 362,

323 S.E.2d 75, 77 (1984).

     In Wall Distributors, the defendant was indicted under a

local obscenity ordinance.   The indictments charged that the

defendant possessed obscene magazines with the intent to sell,

but did not allege that he did so knowingly.       Id. at 360, 323

S.E.2d at 76.    The defendant argued that the indictments were

deficient because they failed to allege a required element,

specifically, knowledge or scienter.    The indictments, however,

contained citations to the local obscenity ordinance.       Id.

     The Virginia Supreme Court held that the indictments were

sufficient, finding that the statutory citation required by Rule

3A:6(a) "is not mere surplusage but is inextricably included as

a definitive part of the indictment[]."    Id. at 363, 323 S.E.2d

at 78.   "The inference to be drawn from this provision is clear

-- incorporation by reference of a statute or ordinance is

contemplated."    Id. at 362, 323 S.E.2d at 77.    Thus, the Court

concluded there "could be no misunderstanding as to what the

indictments charged," because the "written statement[] gave

information as to what offense was being charged and

incorporated by reference the complete definition contained in

the ordinance."    Id. at 363, 323 S.E.2d at 78.

     The principles from Wall Distributors control the case at

bar, and we find no error in the trial court's decision.      The

citation to Code § 18.2-51.2 in the indictment incorporated by

                                - 4 -
reference the complete definition of aggravated malicious

wounding and supplemented the charging language of the

indictment.   Moreover, Robinson acknowledged that he was not

prejudicially surprised that he was being prosecuted for

aggravated malicious wounding.     Compare George v. Commonwealth,

242 Va. 264, 281, 411 S.E.2d 12, 27 (1991) (finding that, where

the written statement alleges a violation of a specific

abduction statute, viz. abduction with the intent to defile, a

citation to the general abduction statute was merely an error

and not grounds for reversal); Wilder v. Commonwealth, 217 Va.

145, 147-48, 225 S.E.2d 411, 413 (1976) (finding that

indictment's statutory citation impermissibly replaced the

written statement, rather than supplemented it, because the

language of the indictment did not originally charge an

offense); Moore v. Commonwealth, 27 Va. App. 192, 198-99, 497

S.E.2d 908, 910-11 (1998) (finding that citation to the statute

is insufficient to cure an indictment, where the statute cited

contains more than one grade of offense and the citation does

not specify for which grade defendant was indicted); Hall v.

Commonwealth, 8 Va. App. 350, 352, 381 S.E.2d 512, 513 (1989)

(same).

     Robinson contends that the Virginia Supreme Court's

decisions in Evans v. Commonwealth, 183 Va. 775, 33 S.E.2d 636

(1945), and Powell v. Commonwealth, 261 Va. 512, 552 S.E.2d 344

(2001), dictate another result.    These cases are distinguishable

                                 - 5 -
and do not control. 3   Robinson cites the language in Evans

requiring that "all essential elements of an offense must be

precisely stated in the indictment; inference may not supply an

element that is lacking."    However, in Evans, the indictment not

only failed to set forth all the elements of the offense, it did

not contain a citation to the applicable seduction statute.    As

a result, an essential element of the offense was omitted from

the body of the indictment and no curative statutory reference

was included from which the defendant could determine the nature

and character of the charge.    Here, the indictment alleged the

essential element because it cited the statute allegedly

violated and in doing so, effectively incorporated, in haec

verba, the elements of the offense defined in the statute.     See

Wall Distributors, 228 Va. at 363, 323 S.E.2d at 78.    In short,

the elements of the offense against Robinson were stated in the

indictment by the language and citation to the statute allegedly

violated.

     Robinson's reliance on Powell is, likewise, misplaced.     In

Powell, the defendant was indicted for capital murder "in the


     3
       In Evans, the defendant was indicted for seduction. The
indictment did not allege that the victim was unmarried, a
required element of the offense. Significantly, the indictment
contained no citation to the statute or ordinance that the
defendant allegedly violated. The Commonwealth moved to amend
the indictment, and the trial court granted the motion. On
appeal, the defendant contended the indictment was not properly
amended. Evans, 183 Va. at 776-77, 33 S.E.2d at 636-37. The
Supreme Court agreed and reversed his conviction. Id. at 781,
33 S.E.2d at 639.

                                - 6 -
commission of robbery or attempted robbery."     Prior to trial,

the Commonwealth moved to amend the indictment to charge capital

murder "during the commission of or subsequent to rape and/or

attempted rape and/or sodomy and/or attempted sodomy."      Powell,

261 Va. at 521, 552 S.E.2d at 349.      The trial court permitted

the amendment, over the defendant's objection.     The Supreme

Court reversed, holding that the amendment introduced a new

theory of capital murder.   Neither the language of the

indictment nor the statute charged murder in the commission of

rape or attempted rape or sodomy or attempted sodomy.     The

Supreme Court held that the amendment impermissibly "expanded

the indictment to include a new and additional charge," which

was not considered by the grand jury.      Id. at 534, 552 S.E.2d at

356.   Therefore, the amended indictment was improper.

       In this case, the indictment returned by the grand jury

described the nature of the offense and the facts underlying the

charge.    It also cited to the aggravated malicious wounding

statute.   The statutory citation, coupled with facts alleged,

was sufficient to set forth all relevant elements of the

aggravated malicious wounding offense.     Thus, we cannot conclude

that this offense was "not previously considered by the grand

jury."




                                - 7 -
     We find no error in the trial court's decision and,

accordingly, we affirm.

                                                       Affirmed.




                              - 8 -
Benton, J., dissenting.

     Code § 19.2-217 provides that "no person shall be put upon

trial for any felony, unless an indictment . . . shall have

first been found or made by a grand jury in a court of competent

jurisdiction."   Prescribing the requirements for an indictment,

Code § 19.2-220 states as follows:

             The indictment or information shall be a
          plain, concise and definite written
          statement . . . describing the offense
          charged. . . . In describing the offense,
          the indictment . . . may use the name given
          to the offense by the common law, or the
          indictment . . . may state so much of the
          common law or statutory definition of the
          offense as is sufficient to advise what
          offense is charged.

     The indictment at issue in this prosecution charged the

following in its written statement:

             THE GRAND JURORS of the Commonwealth of
          Virginia, in an for the body of the County
          of Sussex, and now attending the Circuit
          Court of said County at its November 13,
          2001 Term, upon their oaths present that
          ANTONIO ROBINSON on or about the 24th day of
          July, 2001, in the County of Sussex, did
          feloniously and maliciously shoot or wound
          Ron Corey Tyler, with the intent to maim,
          disfigure, disable, or kill, against the
          peace and dignity of the Commonwealth of
          Virginia.

This written statement unambiguously describes fully and

completely the elements of malicious wounding as proscribed by

Code § 18.2-51 ("If any person maliciously shoot . . . or wound

any person . . . with the intent to maim, disfigure, disable, or

kill, he shall . . . be guilty of a Class 3 felony.").   Thus, we

                               - 9 -
need look no further than Code § 19.2-220, Code § 18.2-51, and

the written description in the indictment to reach the

conclusion that the grand jury charged the offense of malicious

wounding.

     Notwithstanding the clear import of these statutes and the

unambiguous written statement in the indictment describing the

offense of malicious wounding, the majority opinion holds that

the offense charged by the indictment is aggravated malicious

wounding.    See Code § 18.2-51.2 ("If any person maliciously

shoots . . . or wounds any other person . . . with the intent to

maim, disfigure, disable or kill, he shall be guilty of a Class

2 felony if the victim is severely injured and is caused to

suffer permanent and significant physical impairment." (emphasis

added)).    This holding is premised upon an inference the

majority draws from the reference to Code § 18.2-51.2 at the

bottom of the indictment.   I disagree with this inference and

the reasoning.

     When an indictment completely charges a statutory offense

by "a plain, concise and definite written statement . . .

describing the offense charged," Code § 19.2-220, we have no

authority to suppose that the grand jury intended another

offense merely because the bottom of the indictment references a

statutory offense different than the offense fully and

completely denoted by the plain writing of the indictment.

Indeed, the Supreme Court reversed a conviction in Wilder v.

                               - 10 -
Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976), where the

statutes at the bottom of the indictment proscribed criminal

conduct different in kind from the conduct charged in the

written statement of the indictment.    Id. at 147, 225 S.E.2d at

413.   In so doing, the Supreme Court disagreed with the

Commonwealth's contention that those statutory references

"save[d] the indictment," and the Court held that "the

references at the foot of the [indictment] to the . . . statutes

. . . support, but do not replace the 'definite written

statement' . . . required in the body of an indictment."      Id. at

148, 225 S.E.2d at 413.   It is the "definite written statement"

of the indictment which determines the character of the offense

charged by the grand jury.    See id. at 147-48, 225 S.E.2d at

413.

       Likewise, Rule 3A:6(a) does not support the majority

opinion's reasoning.   In pertinent part, it provides as follows:

            Error in the citation of the statute or
            ordinance that defines the offense or
            prescribes the punishments therefor, or
            omission of the citation, shall not be
            grounds for dismissal of an indictment or
            information, or for reversal of a
            conviction, unless the court finds that the
            error or omission prejudiced the accused in
            preparing his defense.

Rule 3A:6(a).   This provision of the Rule is an express

recognition that, in the absence of prejudice, when a conflict

exists between the express wording of the indictment and a

statutory citation in the indictment, the statutory citation

                               - 11 -
must give way to the otherwise properly drawn indictment.     Thus,

in George v. Commonwealth, 242 Va. 264, 411 S.E.2d 12 (1991),

where "the indictment specifically charged . . . abduction with

'the intent to defile'" but referred to the general statute

(Code § 18.2-47), rather than the specific abduction statute

(Code § 18.2-48), id. at 280-81, 411 S.E.2d at 22, the Supreme

Court held that the trial judge properly amended the indictment

by striking its reference to Code § 18.2-47, the general

abduction statute.   In so holding, the court reasoned that Rule

3A:6 requires deference to the written statement describing the

offense.   Id. at 281, 411 S.E.2d at 22.

     The majority opinion merely infers that the grand jury

intended to charge Robinson with aggravated malicious wounding

because, although the wording of the indictment describes only

malicious wounding, the statutory reference at the bottom of the

indictment is Code § 18.2-51.2.   The majority opinion's

inference is further based upon the supposition that the

statutory reference at the bottom of the indictment was not an

error.   In other words, it draws this inference relying solely

on the Commonwealth's argument that the grand jury did not

intend to refer to Code § 18.2-51.     As the Supreme Court has

"held in the past[, however,] . . . all essential elements of an

offense must be precisely stated in the indictment; inference

may not supply an essential element that is lacking."      Wall



                              - 12 -
Dist., Inc. v. Newport News, 228 Va. 358, 362, 323 S.E.2d 75, 77

(1984).

     "[N]ot once has it been said that the . . . court has the

power to change by amendment the character of an offense as

found by the grand jury."    Evans v. Commonwealth, 183 Va. 775,

781, 33 S.E.2d 636, 639 (1945).   Thus, for example, we have

reversed a conviction of a greater offense where the

indictment's statutory reference was "ambiguous" and the

indictment's written statement clearly charged the lesser of two

offenses.   Hall v. Commonwealth, 8 Va. App. 350, 352, 381 S.E.2d

512, 513 (1989).    In so doing, we applied this Court's

consistent holding that "[w]here a statute contains more than

one grade of an offense and each grade carries a different

punishment the indictment must contain an assertion of the facts

essential to the punishment sought to be imposed."     Id.

(emphasis added).    See also Moore v. Commonwealth, 27 Va. App.

192, 198, 497 S.E.2d 908, 910 (1998) (holding that "the language

of . . . the grand jury's indictment" establishes the charge).

The requirement that the indictment must contain an assertion of

the facts essential to the specific charge is just as imperative

here, where conduct is graduated into several offenses by the

existence of distinct statutes.   This requirement is merely a

statement of the well established principle that "by the rules

of criminal pleading the indictment must always contain an

averment of every fact essential to the punishment to be

                               - 13 -
inflicted."     Shiflett v. Commonwealth, 114 Va. 876, 879, 77 S.E.

606, 607 (1913).

     Simply put, the absence of those essential facts may not be

supplied by a mere inference, as the majority opinion does in

this case.

             [T]he charge set forth in an indictment must
             be apparent from the face of the document.
             None of the information that is essential to
             provide an accused with adequate notice of a
             particular charge can be added to an
             indictment by speculating, after the fact,
             about the possible intention of the writer
             of the instrument. As this Court has stated
             in response to a similar argument, "[t]he
             defendant cannot be expected to have assumed
             that he was charged with the greater of the
             two offenses unless it was expressly charged
             in the indictment." We cannot say without
             disregarding the express language of the
             indictment and resorting to inference or
             surmise that the indictment in question was
             intended to charge appellant of violating
             Code § [18.2-51.1, which is the greater of
             the two offenses].

Moore, 27 Va. App. at 199, 497 S.E.2d at 911 (citation omitted).

     As the Supreme Court observed in Evans, "[t]he only

possible knowledge the . . . court possessed was acquired

through the motion of the attorney for the Commonwealth to amend

the indictment."    183 Va. at 780, 33 S.E.2d at 638.   The

prosecutor's view of the cause of the anomaly is unreliable

because "[i]t is 'the province of the grand jury . . . to

ascertain from the evidence adduced whether or not' the evidence

will sustain the charge brought."     Powell v. Commonwealth, 261

Va. 512, 535, 552 S.E.2d 344, 357 (2001) (citation omitted).

                                - 14 -
Courts have no authority to infer, after the fact, that the

grand jury intended to make an indictment beyond the plain and

definite written words, which the grand jury used to fully and

completely describe an extant offense.

     For these reasons, I would hold that the indictment charged

malicious wounding as proscribed by Code § 18.2-51.

Accordingly, the trial judge erred in permitting the

Commonwealth to institute a prosecution upon the charge of

aggravated malicious wounding, which requires proof of elements

not contained in the indictment's written statement describing

the offense.

     I dissent.




                             - 15 -
