                   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




                                  -2-
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,




                                 -3-
(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,



                                 -4-
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



                                  -5-
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.



                                -6-
     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



                                  -7-
            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.




                                 -8-
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).



                                 -9-
     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.'"



                               -10-
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


                                 -11-
          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




                                 -12-
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.




                                -13-
