                       COURT OF APPEALS OF VIRGINIA


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


RAY WINKLER
                                          MEMORANDUM OPINION * BY
v.   Record No. 2998-01-2               JUDGE ROSEMARIE ANNUNZIATA
                                               JUNE 24, 2003
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ORANGE COUNTY
                      Daniel R. Bouton, Judge

          Helen E. Phillips, for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Ray Winkler was convicted in a bench trial on six counts of

statutory burglary, five counts of grand larceny, and one count

of petit larceny. 1   He contends on appeal that his convictions

must be reversed because the Commonwealth failed to prove the

value of the stolen property.    Finding no error, we affirm.

                                Facts

     "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.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       On appeal, Winkler challenges one count of grand larceny
and one count of petit larceny.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d

415, 418 (1987)).   So viewed, the evidence establishes that on

the morning of November 3, 2000, Winkler broke into the home of

Jarrett Lathers and Christine Kelly and stole a twenty gauge

Smith and Wesson shotgun.   The shotgun and its carrying case

were introduced as evidence.   No evidence of the shotgun's value

was admitted.

     The offense was the subject of Count 2 of the indictment,

which read:

          On or about November 3, 2000, in the County
          of Orange, Commonwealth of Virginia, Ray
          Winkler did unlawfully and feloniously,
          commit simple larceny, not form [sic] the
          person of Jarrett Lathers and Christine
          Kelly, of a Smith and Wesson Shotgun,
          without the consent of the owners, and with
          the intent to permanently deprive the owners
          of said property. Code § 18.2-95(ii). 2

     2
       Code § 18.2-95 includes the element of "value" in its
definition of the offense. It states:

          Any person who (i) commits larceny from the
          person of another of money or other thing of
          value of $5 or more, (ii) commits simple
          larceny not from the person of another of
          goods and chattels of the value of $200 or
          more, or (iii) commits simple larceny not
          from the person of another of any firearm,
          regardless of the firearm's value, shall be
          guilty of grand larceny, punishable by
          imprisonment in a state correctional
          facility for not less than one nor more than
          twenty years or, in the discretion of the
          jury or court trying the case without a
          jury, be confined in jail for a period not
          exceeding twelve months or fined not more
          than $2,500, either or both.

                               - 2 -
     On the same date, Winkler broke into the home of Robert

Tony Gallahan, Jr. and his wife, Marlene, and stole a pellet gun

and a ruby and diamond ring.    The Commonwealth presented no

evidence of the value of the pellet gun or ring.    This offense

was charged in Count 4 of the indictment, which read:

          On or about November 3, 2000, in the County
          of Orange, Commonwealth of Virginia, Ray
          Winkler did unlawfully, take, steal and
          carry away property of Robert Gallahan and
          Marlene Gallahan, having a value of less
          than $200, to-wit: a pellet gun and jewelry,
          without the consent of the owners, and with
          the intent to permanently deprive the owners
          of said property. Code § 18.2-95.

     Winkler moved to strike Counts 2 and 4 on the ground that

the Commonwealth failed to introduce evidence of the value of

the stolen items.   The trial court denied the motion, ruling

that Count 2 charged Winkler with larceny of a firearm, a

violation of Code § 18.2-95(iii), and that Count 4 charged petit

larceny, a violation of Code § 18.2-96, neither of which

required proof of the value of the item.

                               Analysis

     On appeal, Winkler argues that his grand larceny conviction

should be reversed because the Commonwealth failed to prove

every element of the offense, specifically the value of the

shotgun taken by Winkler. 3   We find his contention is without

merit.


     3
       The Commonwealth argues that Winkler's contention
regarding Count 2 of the indictment is barred procedurally under

                                - 3 -
     Winkler's claim invokes the principles governing

indictments.

          [T]he function of an indictment . . . is to
          give the accused notice of the nature and
          character of the accusations against him in
          order than he can adequately prepare to
          defend against his accuser. A variance is
          fatal . . . only when the proof is different
          and irrelevant to the crime defined in the
          indictment and is, therefore, insufficient
          to prove the commission of the crime
          charged. [M]ere matters of form [will be
          rejected] where no injury could have
          resulted therefrom to the accused.

Griffin v. Commonwealth, 13 Va. App. 409, 411, 412 S.E.2d 709,

711 (1991) (citations omitted).   Although an indictment must

assert the essential facts related to punishment when the

offense charged is based on a statute which provides for more

than one grade of an offense, Hall v. Commonwealth, 8 Va. App.

350, 352, 381 S.E.2d 512, 513 (1989), neither internal

inconsistency nor a citation to the wrong statutory provision

necessarily constitutes reversible error.   "Error in the

citation of the statute . . . that defines the offense or

prescribes the punishments therefor, or omission of the

citation, shall not be grounds . . . for reversal of a

conviction, unless the court finds that the error or omission


Rule 5A:18, on the ground that Winkler did not reference the
differences between subsections (ii) and (iii) at the trial
level. We disagree. Winkler made clear to the trial court his
contention that the Commonwealth was required to prove the value
of the weapon, based upon the statutory violation charged in the
indictment. We find the objection he made before the trial
court was sufficient to preserve for appeal.

                              - 4 -
prejudiced the accused in preparing his defense."   Rule 3A:6(a);

see also Stamper v. Commonwealth, 228 Va. 707, 713, 324 S.E.2d

682, 686 (1985) (affirming a conviction for possession of

marijuana with intent to distribute, notwithstanding an

incorrect citation to the statutory subsection, because

defendant was not prejudiced by the error).

     In the case at bar, the factual allegations in Count 2 of

the indictment charge Winkler with grand larceny of the shotgun.

The language of the indictment mirrors the language of Code

§ 18.2-95(iii) and does not state a value for the weapon alleged

to have been stolen.   Contrary to Winkler's assertion that the

indictment did not provide him with notice of the charge, the

indictment stated that he was indicted for grand larceny of the

shotgun, without regard to its value.    Although the indictment

contained an erroneous statutory citation to sub-paragraph (ii),

which requires proof of value, Winkler does not claim that his

defense was prejudiced as a result, and we find he was not.     See

Rule 3A:6(a).

     Winkler's contention that the petit larceny conviction on

Count 4 of the indictment should be reversed is also without

merit, for the reasons stated in our discussion as to Count 2.

Count 4 charged Winkler with theft of a pellet gun and jewelry

that had a value of less than $200 and erroneously cited Code

§ 18.2-95 as the applicable statute.    Code § 18.2-95 proscribes

grand larceny violations.   However, the language of Count 4

                               - 5 -
specifically charges that the value of the stolen property was

less than $200 and thus necessarily charges petit larceny.

Winkler acknowledges that he was not improperly led to believe

that he was being prosecuted for grand larceny and further

acknowledges that he was not prejudiced by the erroneous

statutory citation.   See Rule 3A:6(a). 4

     Winkler relies on Robinson v. Commonwealth, 258 Va. 3, 516

S.E.2d 475 (1999), and Williams v. Commonwealth, 8 Va. App. 336,

381 S.E.2d 361 (1989), in support of his contentions.   His

reliance is misplaced.

     Winkler cites the language in Robinson stating that "where

the value of the thing stolen determines the grade of the

offense the value must be alleged and the Commonwealth must

prove the value to be the statutory amount."   258 Va. at 5, 516

S.E.2d at 475.   Robinson is inapposite to the case at bar.   As

noted above, the Commonwealth was not required under Count 2 to

prove the value of the shotgun to support the grand larceny

charge under Code § 18.2-95(iii).   Thus, proof of "the value" of

the items was not an element of the offense, and the

Commonwealth was only required to prove that the items had some

intrinsic value, a fact that can be inferred from the nature of



     4
       Moreover, an indictment charging grand larceny of the
pellet gun and jewelry would not have precluded a conviction for
petit larceny as a lesser-included offense of a grand larceny
charge. See generally Taylor v. Commonwealth, 11 Va. App. 649,
652, 400 S.E.2d 794, 795 (1991).

                               - 6 -
the items themselves.    See generally Evans v. Commonwealth, 226

Va. 292, 297, 308 S.E.2d 126, 129 (1983).

     In Williams, the indictment charged that the defendant

committed perjury in violation of Code § 18.2-434.   He was

convicted of perjury upon proof of elements set forth in a

different statute, specifically Code § 18.2-435.   We found the

citation to § 18.2-434 in the indictment prejudiced the defense,

and we reversed the conviction, noting:   "The Commonwealth's

burden of proof for a violation of Code § 18.2-434 is

significantly different from its burden for a violation of

§ 18.2-435, and this fact could have been crucial to Williams in

planning his defense."    Williams, 8 Va. App. at 341, 381 S.E.2d

at 364.   Contrary to Williams, in the case at bar we find the

language in Counts 2 and 4 was sufficient to charge the offenses

of grand larceny and petit larceny and that the erroneous

citation to another code section did not prejudice his defense

on either count.

     For the foregoing reasons, we affirm.

                                                         Affirmed.




                                - 7 -
Benton, J., concurring.

     In pertinent part, Code § 19.2-220 provides 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.

By Rule of Court, "[t]he indictment . . . , in describing the

offense charged, shall cite the statute or ordinance that

defines the offense."   Rule 3A:6(a).   Thus, we have held that

"[a]n 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).

     Winkler contends that notwithstanding the written statement

of offenses in Count 2 and Count 4 of the indictment, the

reference at the bottom of the indictment to Code § 18.2-95(ii)

and Code § 18.2-95, respectively, required the Commonwealth to

prove the value of the property taken for each offense.    In

simple terms, he contends the statutory reference at the bottom

of each count of the indictment, rather than the written

statement describing the offense, determines the offense charged

by the indictment.




                               - 8 -
     The question presented in this case requires us to decide

whether an indictment is determined by the written statement

describing the offense or by the statute cited at the bottom of

the indictment when there is a conflict between the two.    The

answer to this question is apparent from Code § 19.2-220 and the

following portion of Rule 3A:6(a):

          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.

See also Wilder v. Commonwealth, 217 Va. 145, 148, 225 S.E.2d

411, 413 (1976) (holding 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").

     Thus, where as here, the written statement in the

indictment charges conduct substantially identical to the

statutory language that creates an offense, the written

statement identifies the offense the Commonwealth is required to

prove to satisfy the indictment.   To the extent a statute that

is cited at the bottom of the indictment differs from the

offense that is fully and completely described by the written

statement of conduct, I would hold that the indictment contains

an "[e]rror in the citation of the statute . . . that defines

                              - 9 -
the offense."   Rule 3A:6(a).   See also George v. Commonwealth,

242 Va. 264, 281, 411 S.E.2d 12, 22 (1991).

     In this case, the record clearly establishes that the

written descriptions of the offenses specified in Counts 2 and 4

vary from the statutes cited respectively in support of those

described offenses.   In the motion to strike, however, Winkler

did not allege he was prejudiced by this anomaly.   Instead, he

contended that the Commonwealth had failed to prove what it was

bound to prove by the indictment.    I agree, therefore, with the

majority opinion that Winkler has not established that the error

prejudiced his defense.   Accordingly, I too would affirm the

convictions.




                                - 10 -
