                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia


SHAWN WILLIAM MURPHY, s/k/a
 SHAWN D. MURPHY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0974-99-2                JUDGE NELSON T. OVERTON
                                                MAY 16, 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; Office of
          the Public Defender, on brief), for
          appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief) for appellee.


     Shawn W. Murphy, appellant, appeals his conviction of grand

larceny of a firearm.   Appellant contends the language of the

indictment required the Commonwealth to prove the firearm's value

was at least two hundred dollars.   We disagree, and affirm the

conviction.

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"   Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
(citation omitted).   Viewed in this light, the evidence proved

that several items, including a gun, were stolen from John

Croft's home during a burglary.    Croft testified that only the

gun, not the gun's pistol grip or barrel, was taken.     He stated

he purchased the gun in 1986 for $199, excluding tax and

interest for layaway, and he probably could not sell the gun for

more than that amount of money.    Appellant admitted to the

police that he committed the burglary and stole the items,

though he testified at trial that he never confessed to the

burglary, only to receiving the property as payment for rent.

     The Commonwealth indicted appellant for breaking and

entering, grand larceny of property, and grand larceny of a

firearm.   The trial judge ruled he could only convict appellant

of one count of grand larceny.    The trial court convicted

appellant of breaking and entering and grand larceny of a

firearm, and dismissed the grand larceny of property charge.

     The grand larceny of a firearm indictment alleged that

appellant "did feloniously and unlawfully take, steal, and carry

away property, to wit:   a firearm, belonging to John Croft,

having a value of $200 or more, without permission and with the

intent to deprive the owner permanently thereof."     The

indictment cited Code § 18.2-108.1.      Code § 18.2-108.1 prohibits

knowingly receiving, or aiding in the concealment of, a stolen

firearm.   Code § 18.2-95 proscribes larceny of a firearm.



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     Appellant argues that, because the Commonwealth cited the

wrong statute, the indictment's value language became essential

to the crime.   Appellant further contends that there was a fatal

variance in the indictment and proof because the Commonwealth

failed to prove the gun's alleged value.

     We agree that the Commonwealth cited the wrong statute.     We

also agree that the Commonwealth failed to prove the gun had a

value of $200 or more.   The purchase price for the gun was $199,

excluding tax and interest for layaway, and Croft testified that

he could not sell the gun for more than the purchase price.

However, we do not agree that the Commonwealth had to prove the

value of the gun.

     "An indictment is a written accusation of a crime and is

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).   Code § 19.2-220 provides

that the indictment must include a concise, definite written

statement describing the offense charged.   "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."   Code § 19.2-220.

Rule 3A:6 requires an indictment to cite the defining statute or

ordinance.




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     Here, in its written statement describing the crime, the

indictment clearly outlined a grand larceny of a firearm, as

prohibited by Code § 18.2-95, and incorrectly cited Code

§ 18.2-108.1.   Rule 3A:6, however, states that "[e]rror in the

citation of the statute . . . shall not be grounds for dismissal

of an indictment . . . or for reversal of a conviction, unless

the court finds that the error . . . prejudiced the accused in

preparing his defense."   See also Stamper v. Commonwealth, 228

Va. 707, 713, 324 S.E.2d 682, 686 (1985).

     The incorrect citation did not prejudice appellant's

ability to prepare a defense.   Appellant's cross-examination and

evidence were consistent with a defense to a charge of grand

larceny of a firearm.   Appellant also referred to the charge as

grand larceny of a firearm in his motions to strike the evidence

and dismiss the charge.   Therefore, appellant cannot now claim

that he was unaware that he was standing trial for grand larceny

of a firearm or that he was prejudiced by the error in citation.

     Nonetheless, appellant maintains that because of the

discrepancy in the cited statute and the charge, the

Commonwealth had to prove value as an essential element of the

crime alleged in the indictment.   Appellant cites Williams v.

Commonwealth, 8 Va. App. 336, 381 S.E.2d 361 (1989), for the

proposition that "'[t]he accused cannot be convicted unless the

evidence brings him within the offense charged in the



                                - 4 -
indictment. . . . [T]he indictment must charge the very offense

for which a conviction is asked.'"     Id. at 341, 381 S.E.2d at

364 (quoting Mitchell v. Commonwealth, 141 Va. 541, 553, 127

S.E. 368, 372 (1925)).

     Appellant's reliance on Williams is misplaced.    There, the

indictment vaguely alleged the charge of perjury, without

describing the type of perjury the Commonwealth intended to

prove.   Therefore, the citation to the statute supplemented the

written statement in giving notice of the type of perjury

Williams needed to defend.   The record did not support a finding

that there was an error in citation.    Here, the indictment

unambiguously described a grand larceny of a firearm in its

written statement and the citation to the statute was not

necessary to supplement the description.    Unlike the Williams

case, the reference to the statute was an error in citation.

     Code § 18.2-95 makes larceny of a firearm a felony

"regardless of its value."   Therefore, value is not an element

of the crime, and the value language in the indictment was

unnecessary to the charge.   In Hairston, we held that

           when an allegation of variance is based on
           unnecessary words in an indictment, the
           unnecessary word or words in the indictment
           must be descriptive of that which is
           "legally essential" to the charge. Stated
           another way, the unnecessary language must
           have a material effect on the offense
           charged and on the proof required to convict
           under that charge.



                               - 5 -
Hairston, 2 Va. App. at 217, 343 S.E.2d at 359.    "No indictment

will be deemed invalid for the insertion of any other words

[than those necessary to describe the offense] or surplusage."

Id. at 214, 343 S.E.2d at 357; see also Code § 19.2-226(9).     "A

variance is fatal . . . only when the proof is different from

and irrelevant to the crime defined in the indictment and is,

therefore, insufficient to prove the commission of the crime

charged."    Hawks v. Commonwealth, 228 Va. 244, 247, 321 S.E.2d

650, 651-52 (1984) (citation omitted).

     Here, the Commonwealth proved the taking and carrying away

of a firearm with the intent to permanently deprive the owner

thereof.    The value of the firearm was irrelevant to the offense

and did not alter the nature or character of the crime described

in the indictment.   The value did not describe any essential

element of the crime and did not materially affect the offense

or proof required.

     "Notice to the accused of the offense charged against him

is the rockbed requirement which insures the accused a fair and

impartial trial on the merits and forms the key to the fatal

variance rule."    Hairston, 2 Va. App. at 214, 343 S.E.2d at 357.

Value is not an element of grand larceny of a firearm, and the

value language did not describe that which was legally essential

to prove.   Appellant had notice of the offense charged against

him and, although the Commonwealth failed to prove the value of



                                - 6 -
the gun, as alleged in the indictment, the variance was not

fatal because the language was mere surplusage.

     For the above stated reasons, appellant's conviction for

grand larceny of a firearm is affirmed.

                                                       Affirmed.




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