Present:   All the Justices

COMMONWEALTH OF VIRGINIA

v.   Record No. 022776   OPINION BY JUSTICE CYNTHIA D. KINSER
                                        October 31, 2003
RICHARD WAYNE NUCKLES

              FROM THE COURT OF APPEALS OF VIRGINIA


      The Commonwealth of Virginia challenges the judgment

of the Court of Appeals of Virginia reversing the trial

court’s conviction of Richard Wayne Nuckles (“Nuckles”) for

grand larceny.    The Court of Appeals held that the

Commonwealth failed to prove that Breeden Mechanical, Inc.

(“Breeden”), was a corporation, as alleged in the

indictment.    Nuckles v. Commonwealth, No. 2570-01-4 (Va.

Ct. App. Nov. 5, 2002).    Because we conclude that proof of

Breeden’s corporate status was not necessary to identify

Breeden as the victim of the larceny or to establish an

element of the offense, and that the Commonwealth proved

that Breeden owned the stolen property, we will reverse the

judgment of the Court of Appeals and reinstate the

defendant’s conviction.

                 MATERIAL FACTS AND PROCEEDINGS

      The indictment charging Nuckles with grand larceny

alleged that

           [o]n or about November 8, 1998, in the County of
      Warren, Richard Wayne Nuckles did unlawfully and
     feloniously take, steal, and carry away the goods and
     chattels of Breeden Mechanical Inc., in violation of
     Section 18.2-95 of the Code of Virginia, 1950, as
     amended.

Nuckles was convicted in the Circuit Court of Warren County

of the charged offense and sentenced to four years of

incarceration, with one year suspended.

     The evidence at trial showed that Nuckles worked for

Breeden for approximately a month.   Breeden performed

plumbing services and hired Nuckles to work as a plumbing

foreman.   Breeden provided Nuckles with a “company truck,”

equipped with all the supplies and tools needed to work on

plumbing jobs, as Breeden does for anyone it hires as a

plumbing foreman.   The truck, with “Breeden Mechanical all

over both sides,” belonged to Breeden and was “given” to

Nuckles “to use on the job and drive back and forwards from

home.”   “Breeden Mechanical own[ed] the tools,” as well as

the truck, according to the testimony of Nuckles’

supervisor.

     Nuckles advised his supervisor on a Friday that he had

not been at work all week because of his mother’s illness.

Although Nuckles indicated that he would be at work on the

next Monday, he never returned to work at Breeden.   Soon

thereafter, several Breeden employees, at the direction of

Nuckles’ supervisor, went to Nuckles’ residence to retrieve



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Breeden’s truck.   When the truck was recovered, the

“Breeden Mechanical” sign on the side of the truck could no

longer be seen because it had “duct tape over it.”     All the

supplies and tools were missing from the truck.   Nuckles’

supervisor testified that Nuckles did not have any

authority to dispose of the tools.

     Nuckles appealed his conviction to the Court of

Appeals, contending that the evidence was not sufficient to

prove that the owner of the stolen goods was a corporate

entity as alleged in the indictment.   The Court of Appeals

agreed and reversed the trial court’s judgment.   The Court

of Appeals found that the term “Inc.” could not be

dismissed as “surplusage” under Code § 19.2-226(9) “because

it described, limited, and qualified that which was

necessary to charge.”   Nuckles, slip op. at 4.   In

conclusion, the Court of Appeals held that the Commonwealth

failed “to prove beyond a reasonable doubt that appellant

stole property belonging to Breeden Mechanical Inc.”     Id.

The Commonwealth appeals from the judgment of the Court of

Appeals.

                           ANALYSIS

     The issue in this case is whether the Commonwealth had

to prove the corporate status of the victim in this

prosecution for larceny.   The Commonwealth contends that


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the Court of Appeals erred in holding that it was required

to establish that Breeden was actually incorporated at the

time of the offense.   The Commonwealth argues that, once it

proved that Breeden’s property was stolen, proof of

Breeden’s corporate status was irrelevant.

     In response, Nuckles asserts that the burden was on

the Commonwealth to prove that corporate property was

stolen and that it failed to do so.   Because the entity

alleged in the indictment was “Breeden Mechanical Inc.,”

Nuckles argues that evidence of Breeden’s corporate status

was required to sustain his conviction for larceny.    In

Nuckles’ words, “the Commonwealth was well aware that the

‘victim’ in this case [w]as a corporation as evidenced by

the indictment and simply tried to take a shortcut by

having the superintendent testify to ownership.”

     In Gardner v. Commonwealth, 262 Va. 18, 25, 546 S.E.2d

686, 690 (2001), this Court vacated a defendant’s

conviction and dismissed an indictment because a “fatal

variance” existed between the indictment and the evidence.

The defendant in that case was charged with obtaining

United States currency by false pretenses in violation of

Code § 18.2-178.   Id. at 19, 546 S.E.2d at 686.    Because

the indictment alleged that the property belonged to George

Gardner, the issue centered on whether the owner of the


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currency was the bank account depositor, Gardner, or the

bank from which the money was obtained.   Id. at 19-20, 546

S.E.2d at 687.   We held that “when the Commonwealth alleged

in the indictment that the money obtained by the defendant

was the property of George Gardner but the evidence showed

the money was the property of the bank, it proved a

different offense, resulting in a fatal variance.”     Id. at

25, 546 S.E.2d at 690.

     In an earlier analogous case, we held that a fatal

variance existed between the allegation in an indictment

charging a defendant with shooting into the residence of

Edna Harper and the evidence showing that the defendant

actually shot into the residence of Alberta Riddick.

Etheridge v. Commonwealth, 210 Va. 328, 330, 171 S.E.2d

190, 191-92 (1969).   We stated that, while it was necessary

for the Commonwealth to allege in the indictment that the

defendant shot into an occupied dwelling house, the

additional allegation that the dwelling house was that of

Edna Harper “described, limited, and qualified that which

was necessary to be alleged, and the added language [could

not], therefore, be treated as surplusage.”   Id., 171

S.E.2d at 192; cf. Alston v. Commonwealth, 32 Va. App. 661,

666, 529 S.E.2d 851, 854 (2000) (holding that, in an

indictment for maliciously burning a dwelling house, an


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allegation regarding ownership of the house was immaterial

to the offense).

     Our holding in both Gardner and Etheridge relied on

the following principle:

     If the unnecessary word or words inserted 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. The offense as
     charged must be proved.

Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368,

374 (1925).   As noted by the Commonwealth on brief, the

unnecessary language found in the indictment in Mitchell,

that the defendant made “a false and fraudulent entry in

the ledger account of the accused with the bank,” described

the manner in which the defendant committed the crime.      Id.

at 553, 127 S.E. at 372.   Thus, we held that, since “the

Commonwealth elected to restrict the prosecution to a

‘false and fraudulent’ entry,” it was “bound to sustain the

allegation by proof.”   Id. at 560, 127 S.E. at 374.

Similarly, the words at issue in Gardner and Etheridge were

not surplusage because they were descriptive of the offense

charged, namely the identity of the victim, but the

evidence pointed to a different victim, thus creating a

fatal variance.




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     Here, we agree with the observation of the Court of

Appeals that the “term ‘Inc.’ has legal meaning and

significance.”    Nuckles, slip op. at 4.   However, the

significance of the term relates solely to the legal status

of the victim and not to the identity of the victim or the

manner in which the crime was committed as was the

situation in Gardner and Etheridge, and in Mitchell,

respectively.    Proof that Breeden was incorporated at the

time of the offense was not necessary to identify Breeden

as the victim of this larceny, nor was Breeden’s corporate

status an element of the offense.    Inclusion of the term

“Inc.” in Breeden’s name merely reflected the requirement

found in Code § 13.1-630 that a corporate name shall

include one of several listed words or abbreviations, the

term “Inc.” being one of the options.

     Furthermore, the evidence at trial established the

identity of the victim in this case.    Nuckles’ supervisor

testified that Breeden owned the truck and the tools that

had been supplied to Nuckles but were not returned by him.

The identification of Breeden as the owner of the stolen

property was not limited or qualified by its corporate

status.   Thus, we hold that the term “Inc.” was surplusage

in this case.    There was no fatal variance between the

indictment and the proof at trial.


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     For these reasons, we will reverse the judgment of the

Court of Appeals and reinstate the defendant’s conviction.

                                 Reversed and final judgment.




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