COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

GEORGE COLEMAN HUDGINS 

 MEMORANDUM OPINION* BY 

v. Record No. 0582-95-1 CHIEF JUDGE NORMAN K. MOON 

 JULY 16, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

G. Duane Holloway, Judge Designate 

 Gail Starling Marshall for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 George Coleman Hudgins appeals his conviction, after a bench 

trial, of using a telephone to threaten arson in violation of 

Code § 18.2-83, and of two counts of using a telephone to 

threaten an illegal act in violation of Code § 18.2-427. He 

appeals on the grounds that the indictments were defective and 

that the evidence was insufficient to show his intent. We affirm 

the convictions. 

 Hudgins' offenses involved a former girlfriend, Deanna 

Nemergut. Ms. Nemergut terminated her relationship with Hudgins 

in December 1993. Ms. Nemergut was living with her parents in 

January 1994 when Hudgins began to make harassing telephone calls 

to the household. On January 8, 1994, he called Ms. Nemergut and 

told her that he was going to come over and burn her house down. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

 Ms. Nemergut believed that Hudgins was "drunk or on something." 

 On January 23, 1994, Hudgins called again and told Ms. Nemergut 

that he wanted the two of them to be together and if they could 

not be, he would blow her head off. She believed that Hudgins 

would hurt her because he had done so in the past. 

 Ms. Nemergut's mother, Mrs. Paula Nemergut, received 

numerous harassing calls from Hudgins. On January 29, 1994, he 

called, identified himself, and told her that he would slit her 

throat. He called again later the same day and reiterated his 

threats against her. He also stated that he knew Deanna Nemergut 

loved her son more than anything in the world and that he would 

kill "the little bastard" as well. 

 Hudgins admitted making several calls, but claimed that he 

did not remember what he said. He said he had been drinking, but 

did not know how much. He acknowledged that he is an alcoholic 

and that prior to making the calls he had been in Eastern State 

Hospital due to an overdose of valium. Ms. Nemergut testified 

that Hudgins was "very decent" when sober but "out of control" 

when drinking. She stated that during his angry outbursts 

against her, Hudgins knew what he was saying, but the next day 

would claim that he did not remember. 

 Hudgins was indicted for two violations of Code § 18.2-427. 

 Under that statute, it is a Class 1 misdemeanor for any person 

to "use obscene, vulgar, profane, lewd, lascivious, or indecent 

language, or to make any suggestion or proposal of an obscene 

nature, or threaten any illegal or immoral act with the intent to 
- 3 - 

coerce, intimidate, or harass any person, over any telephone or 

citizen's band radio . . . ." 

 The indictments read as follows: 

 THE GRAND JURY CHARGES THAT: 

 On or about January 23, 1994, in the County of York, 

Virginia, GEORGE C. HUDGINS, did threaten an illegal 

act with the intent to coerce, and intimidate Deanna 

Christine Nemergut over the telephone. 

 (18.2-427) of the Code of Virginia (1950) as amended 

Use of profane, threatening or indecent language over 

public airways. 

* * * * * * * 

 THE GRAND JURY CHARGES THAT: 

 On or about January 23, 1994, in the County of York, 

Virginia, GEORGE C. HUDGINS, did threaten an illegal 

act with the intent to coerce, and intimidate Paula 

Nemergut over the telephone. 

 (18.2-427) of the Code of Virginia (1950) as amended 

Use of profane, threatening or indecent language over 

public airways. 

* * * * * * * 

 Hudgins argues that these indictments improperly charged him 

with two offenses, i.e. using profane language over the telephone 

and threatening an illegal act over the telephone in order to 

coerce and intimidate. See Walker v. Commonwealth, 12 Va. App. 

438, 443, 404 S.E.2d 394, 396 (1991). Hudgins argues in the 

alternative that if the indictment is interpreted to charge him 

with the use of profane language, then he was convicted of a 

different offense than the one charged in the indictment. See

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

711 (1991). 
- 4 - 

 Hudgins did not challenge the indictments until after the 

verdict against him. He has therefore waived his right to do so 

on appeal. Washington v. Commonwealth, 216 Va. 185, 192, 217 

S.E.2d 352, 354 (1975). At this stage of the proceedings, 

Hudgins can object only that the Commonwealth failed to inform 

him, through indictments or otherwise, of the "cause and nature" 

of the offenses for which he was tried and convicted. Virginia 

Constitution, Article I, § 8; Forester v. Commonwealth, 210 Va. 

764, 766-67, 173 S.E.2d 851, 854 (1970); Henson v. Commonwealth, 

208 Va. 120, 124-25, 155 S.E.2d 346, 349 (1967).1

 The indictments in this case adequately informed Hudgins of 

"the cause and nature" of the offenses for which he was to be 

tried, and indeed were not defective. The indictments charged 

Hudgins with using a telephone to threaten an illegal act with 

the intent to coerce and intimidate. This is one of the crimes 

set forth in Code § 18.2-427. See Perkins v. Commonwealth, 12 

Va. App. 7, 14, 402 S.E.2d 229, 233 (1991). The language 

following the cite to the statute was merely a summary of the 

content of that statute, not a description of a different 

offense. Such surplus language in an indictment does not 

invalidate it. See Code § 19.2-226(9); Black v. Commonwealth, 

223 Va. 277, 281-82, 288 S.E.2d 449, 451 (1982). Hudgins has no 

basis on which to challenge the indictments. 

 

 1The requirement for indictment is not jurisdictional, but 

merely procedural. Forester, supra, 210 Va. at 766-67, 173 

S.E.2d at 854. 
- 5 - 

 Hudgins also contends that the evidence was insufficient to 

show that he acted with the requisite intent. Perkins, 12 Va. 

App. at 15, 402 S.E.2d at 234. The Commonwealth argues that 

Hudgins failed to preserve this claim under Rule 5A:18. While 

Hudgins did not make a motion to strike, he raised the 

sufficiency issue in his closing argument. He therefore 

preserved this issue for appeal. See Fortune v. Commonwealth, 14 

Va. App. 225, 227-28, 416 S.E.2d 25, 26-27 (1992); Lee v. Lee, 12 

Va. App. 512, 516, 404 S.E.2d 736, 738 (1991). 

 On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

Viewed in the light most favorable to the Commonwealth, the 

evidence showed that Hudgins placed three telephone calls in 

which he made specific, personal threats against a former 

girlfriend and her mother. He was angry at Ms. Nemergut because 

she had broken up with him, and wanted her to resume their 

relationship. The nature of the threats and the surrounding 

circumstances are sufficient evidence that Hudgins intended to 

coerce and intimidate his victims. 

 Hudgins argues that the Commonwealth did not prove intent 

because he had been drinking when he made the calls and afterward 

he could not remember what he said. Voluntary intoxication 

cannot be used to negate intent except on a charge of first 

degree murder. Chittum v. Commonwealth, 211 Va. 12, 17-18, 174 
- 6 - 

S.E.2d 779, 783 (1970). While Hudgins acknowledged that he had 

been drinking before making the calls, there was no suggestion 

that he was compelled to do so. His state of intoxication while 

making the phone calls thus has no bearing on his intent, and as 

noted, the evidence demonstrates that he possessed the requisite 

intent. For these reasons, we affirm the convictions. 

 Affirmed.