COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

ALFONSO LAWRENCE RUSH, III 

v. Record No. 2058-94-2 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA MARCH 26, 1996 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Norman Lamson for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Alfonso Lawrence Rush, III (appellant) was convicted in a 

jury trial of four counts of distribution of cocaine in violation 

of Code § 18.2-248(a). On appeal, he argues that the trial court 

erred in: (1) refusing to dismiss the indictments against him 

when each indictment pled separate offenses in the disjunctive, 

and (2) denying his motion to strike when the Commonwealth failed 

to provide exculpatory evidence as requested. For the reasons 

that follow, we affirm. 

 BACKGROUND

 Charles Dolan (Dolan) was a paid informant for the 

Charlottesville Joint Narcotics Unit. In the fall of 1993, Dolan 

was contacted by Detectives Charles Burton (Burton) and Andre 

Jolie (Jolie) to make undercover drug purchases. Dolan was a 

 

 *Pursuant to Code § 17.116.010 this opinion is not 

designated for publication. 
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drug user and had been convicted in 1988 of possession of cocaine 

with intent to distribute and possession of cocaine while in the 

possession of a firearm. 

 As part of this operation, Dolan purchased cocaine from 

appellant on four dates--September 27, and November 9, 11, and 

12, 1993. On each occasion, Burton and Jolie set up a video 

camera and microphone in Dolan's van, and gave him money to 

purchase drugs and twenty dollars for gas money. Dolan would 

then leave and stop for gas, beer, and cigarettes. Dolan 

videotaped each transaction with appellant. After each sale, 

Dolan would meet Burton and Jolie, who removed the drugs and 

videotape from Dolan's van. 

VALIDITY AND SUFFICIENCY OF INDICTMENTS 

 Appellant argues that the indictments were invalid because 

they pled separate offenses in the disjunctive. Additionally, he 

asserts that the indictments provided insufficient notice of the 

nature and cause of the charges against him. 

 Each indictment against appellant cited Code § 18.2-248 and 

read as follows: 

 On or about [date], in the County of 

Albemarle, ALFONSO LAWRENCE RUSH, 3RD did 

unlawfully and feloniously sell, give or 

distribute cocaine, a Schedule II controlled 

substance. 

Before trial, appellant moved to dismiss the indictments, arguing 

that the disjunctive wording charged separate offenses in one 

count. The trial court denied the motion. Appellant did not 
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request a bill of particulars, or ask that the Commonwealth's 

attorney elect which charge to prosecute. As to each charge, the 

trial court instructed the jury that "[t]he defendant . . . is 

charged with the crime of distributing cocaine." (Emphasis 

added). Each jury verdict form also limited the charged crime to 

"distribution of cocaine." 

 Duplicity is the charging of separate 

offenses in a single count. This practice is 

unacceptable because it prevents the jury 

from deciding guilt or innocence on each 

offense separately and may make it difficult 

to determine whether the conviction rested on 

only one of the offenses or both. . . . 

Duplicity usually occurs because of 

prosecutor error in assuming that a 

particular statute creates a single offense 

which may be committed by multiple means 

(properly chargeable in a single count) 

rather than several offenses. 

2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure

§ 19.2(e), at 457 (1984) (footnotes omitted). The Virginia 

Supreme Court has held that Code § 18.2-248(a) "creates only a 

single offense . . . the illegal transfer of controlled drugs." 

Stillwell v. Commonwealth, 219 Va. 214, 222, 247 S.E.2d 360, 365 

(1978). 

 In this case, the trial court did not err in refusing to 

dismiss the indictments. An indictment that tracks the language 

of Code § 18.2-248(a) charges a single offense that can be 

committed by several means. Even if the indictments were 

duplicitous, the appropriate remedy for a duplicitous indictment 

is to "force the government to elect the offense upon which it 
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will proceed, . . . not require the dismissal of the indictment." 

 2 LaFave & Israel, supra, § 19.2(e), at 457. 

 Additionally, the indictments provided appellant with 

sufficient notice of the nature and cause of the charges against 

him. Code § 19.2-220 provides as follows: 

 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 use the name given to the 

offense by the common law, or 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. 

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). "Both the United States and Virginia Constitutions 

recognize that a criminal defendant enjoys the right to be 

advised of the cause and nature of the accusation lodged against 

him. The important concerns evident in these provisions are 

fully honored by Virginia Code §§ 19.2-220, -221." Simpson v. 

Commonwealth, 221 Va. 109, 114, 267 S.E.2d 134, 138 (1980) 

(footnote omitted). These indictments complied with the 

requirements of Code § 19.2-220 and Rule 3A:6(a), and appellant 

was provided with sufficient notice of the charges against him. 
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 EXCULPATORY EVIDENCE

 Appellant next argues that the trial court erred in denying 

his motion to strike when the Commonwealth failed to provide 

requested exculpatory evidence in violation of Brady v. Maryland, 

373 U.S. 83 (1963). 

 Appellant filed a pretrial Brady motion, requesting 

exculpatory evidence. The Commonwealth failed to disclose prior 

to trial the following evidence about Dolan: (1) Dolan had a 

drug problem and prior drug convictions; (2) Dolan bought beer 

before meeting appellant to buy drugs; and (3) Dolan had a 

five-year suspended sentence in effect until July 10, 1995. 

During the Commonwealth's direct examination of both Detectives 

Burton and Dolan at trial, Dolan's drug problem, prior 

convictions, and his beer purchases were addressed. Appellant 

did not object to this information or its untimely production. 

He neither requested a continuance nor claimed surprise at that 

time. Additionally, he had the opportunity to question Dolan at 

trial about these issues. After trial, appellant discovered the 

suspended sentence and filed post-trial motions to strike and set 

aside the verdict, arguing that the nondisclosure of the 

suspended sentence was prejudicial to him. The trial court 

denied these motions. 

 It is well established that "the Commonwealth must turn over 

evidence favorable to an accused that is material to either guilt 

or punishment. . . . [E]vidence is material, 'only if there is a 
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reasonable probability that, had the evidence been disclosed to 

the defense, the result of the proceeding would have been 

different.'" Hughes v. Commonwealth, 18 Va. App. 510, 525, 446 

S.E.2d 451, 460-61 (1994) (en banc) (citations omitted). "'A 

"reasonable probability" is a probability sufficient to undermine 

confidence in the outcome [of the trial].'" Knight v. 

Commonwealth, 18 Va. App. 207, 212, 443 S.E.2d 165, 168 (1994) 

(citation omitted). "[T]he court must 'assess the reasonable 

probability of a different result in light of the totality of 

circumstances . . . .'" Id. Thus, "in order to justify reversal 

on appeal, an appellant must not only show that exculpatory 

evidence was not disclosed, but must show prejudice as a result 

of the Commonwealth's failure to disclose." Allen v. 

Commonwealth, 20 Va. App. 630, 637, 460 S.E.2d 248, 251 (1995). 

 Assuming that evidence of the unrelated suspended sentence 

is exculpatory, no prejudice resulted from the nondisclosure in 

the instant case. There is no reasonable probability that the 

outcome of appellant's trial would have been different. The 

evidence that appellant distributed the cocaine was overwhelming. 

 Detective Burton and the videotape of each sale clearly 

identified appellant as the person who sold drugs to Dolan. 

Under these circumstances, a further attack on Dolan's 

credibility would not have impacted the jury's verdict. His drug 

use, prior convictions, and beer buying had all been addressed at 

trial. No reasonable probability exists that the outcome would 
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have been different if the information of his suspended sentence 

 had been timely provided. 

 Additionally, no prejudice resulted from the late disclosure 

of Dolan's drug use, earlier convictions, and his purchase of 

beer. It was all revealed at trial. "Where an accused receives 

information before or at trial and is able to use it effectively, 

and is not otherwise able to demonstrate prejudice from the late 

disclosure, the discovery violation has not deprived him of a 

fair trial." Moreno v. Commonwealth, 10 Va. App. 408, 419, 392 

S.E.2d 836, 843 (1990). The Commonwealth introduced this 

evidence during its direct examination of both Detectives Burton 

and Dolan. Appellant had the opportunity to cross-examine Dolan 

and failed to demonstrate that the late disclosure prejudiced 

him. Thus, the trial court properly denied his motions to strike 

and to set aside the verdict. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.