COURT OF APPEALS OF VIRGINIA
Present: Judges Benton , Bumgardner and Kelsey Argued at Alexandria, Virginia

HECTOR CRUZ ESQU IBELE, A/K/A HECTOR ENRIQUE-CASTRO MEMORANDUM OPINION * BY v. Record No. 2500-03-4 J UDGE RUDOLPH BUMGARDNER, III NOVEMBER 30, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Thomas A. Fortkort, Judge Designate Heidi Meinzer, Senior Assistan t Public Defender (Office of the Public Defender, on brief), for appellant. Kathleen B. Martin, Assistant A ttorney General (Je rry W. Kilgore, Attorney General, on brief), for appellee.
Hector Cruz Esquibele appeal s his conviction of breaking an d entering with intent to commit destruction of property, Code § 18.2-92. 1 He maintains the trial court erred by amending the indictment. Finding no error, we affirm. The indictment initially ch arged breaking and entering “w ith the intent to commit destruction of property.” Two days before tria l, the trial court permitted the Commonwealth to add the phrase “or indecent exposure.” As amended the indictment charged breaking and entering “with the intent to commit destruction of property or indecent exposure,” in violation of

* Pursuant to Code § 17.1-413, this opini on is not designated for publication.

1 “If any person break and enter a dwelling hous e while said dwelling is occupied, either in the day or nighttime, with the intent to comm it any misdemeanor except assault and battery or trespass, he shall be guilty of a Class 6 felony.” Code § 18.2-92.- 2 - Code § 18.2-92. After a bench trial, the trial court convicted the defendant of breaking and entering with the intent to co mmit destruction of property. The purpose of an indictment is to give the defendant notice of the nature and character of the charged offense so he can make his de fense. Code § 19.2-220; Commonwealth v. Dalton , 259 Va. 249, 253, 524 S.E.2d 860, 862 (2000). Code § 19.2-231 permits amendment of an indictment for any defect in form or for any variance between the allegations and proof “at any time before . . . the court finds the accused gui lty or not guilty, provide d the amendment does not change the nature or character of the offense char ged.” The statute is to be liberally construed. Cantwell v. Commonwealth , 2 Va. App. 606, 608, 347 S.E.2d 523, 524 (1986). Code § 18.2-92 proscribes breaki ng and entering the dwelling of another “with the intent to commit any misdemeanor except a ssault and battery or trespass.” 2 The intention to commit any of a vast array of misdemeanors will suffice as the mental element of the crime. The amendment permitted the Commonwealth to satisf y its burden of proof with either of two specific alternatives. “[T]he Co mmonwealth is free to charge th e commission of a single offense in several different ways in order to meet the contingencies of proof.” Buchanan v. Commonwealth , 238 Va. 389, 397, 384 S.E.2d 757, 762 (1989). In Sullivan v. Commonwealth , 157 Va. 867, 161 S.E. 297 (1931), the trial court properly amended an indictment of breaking and entering w ith the intent to maim to breaking and entering with the intent to murder. Th e Court held, “The intent with which the particular crime is committed does not change its general nature or character, because whichever intent is shown, the crime is of the same nature -- that is, a fel ony of the specific class denounced by the statute.” Id. at 876, 161 S.E. at 300.

2 Code § 18.2-91 proscribes break ing and entering with intent to commit an assault and battery.- 3 - In Smith v. Commonwealth , 10 Va. App. 592, 394 S.E.2d 30 (1990), the defendant was indicted for breaking and enteri ng with intent to commit murd er, but he was convicted of breaking and entering with inte nt to commit unlawful wounding. This Court affirmed the conviction and stated, “The overt acts were the sa me as charged: breaking and entering. Only the intent differed.” Id. at 594, 394 S.E.2d at 31. This case also involved a break ing and entering charge. The modification of the original indictment did not change the general nature or character of the crime charged. Only the intent changed. “As amended the indictment still charged a [misdemeanor] of the same general nature or class.” Sullivan , 157 Va. at 878, 161 S.E. at 300. Compare Thomas v. Commonwealth , 256 Va. 38, 42, 501 S.E.2d 391, 393 (1998) (amended indict ment charged same code section and same action in substantiation of offense), with Powell v. Commonwealth , 261 Va. 512, 534, 552 S.E.2d 344, 356 (2001) (impermissible to expand “i ndictment to include a new and additional charge”). We note the amendment did not surprise the defendant because the original indictment included a count that charged ind ecent exposure. It did not prej udice him because the trial court continued the case after making the amendment. Finally, the trial court convicted the defendant of the charge as originally stat ed. Accordingly, we affirm. Affirmed.- 4 - Benton, J., concurring. As I understand Sullivan v. Commonwealth , 157 Va. 867, 161 S.E. 297 (1931), the original burglary indictment char ged an intent to commit an assault upon an occupant and also charged an intent to maim, disfigure, di sable and kill that same occupant. Id. at 870, 161 S.E. at 297. Upon the motion of Sullivan’s attorney, the tr ial judge required the pr osecutor to elect the statute under which Sullivan would be tried. Th e prosecutor elected a statute which proscribed burglary committed “with inte nt to commit murder, rape, or robbery.” Id. at 875, 161 S.E. at 299. On these facts, the Supreme Court indi cated that, upon the motion of and with the acquiescence of the accused, the burglary indictment “was, in its effect” amended prior to trial. Id. The Supreme Court did indicate in Sullivan that if “[t]he overt acts constituting the crime are the same -- that is, the break ing and entering,” then “[t]he in tent with which the particular crime is committed does not change its general nature or character, because whatever intent is shown, the crime is of the same nature -- that is, a felony of the specific class denounced by the statute.” 157 Va. at 876, 161 S.E. at 300. As I r ead the opinion, however, the Court affirmed the ruling of the trial judge under two a lternate theories. First, it held that Sullivan could not “invite error and then take advantage of his own wrong.” Id. at 878, 161 S.E. at 300. Then, adopting “another view of the case,” the C ourt held that the error was harm less because the jury fixed the punishment within the limits pr escribed by both statutes. Id. at 878-79, 161 S.E. at 300. Thus, the Court’s earlier indication that the description of the overt act, not the intent, is dispositive of the nature and character of an offense is ce rtainly dictum. In deciding Smith v. Commonwealth , 10 Va. App. 592, 394 S.E.2d 30 (1990), we relied upon this dictum as the sole basis for our ruling. Smith characterizes the dictum as the Supreme Court’s holding and makes no- 5 - independent analysis of the lega l principle at issue. Thus, I believe that neither Sullivan nor Smith provides the proper rule of d ecision to apply in this case. I would affirm the judgment, however, becau se the error in this case was harmless. Pretrial, the trial judge ame nded the indictment on the prosecutor’s motion. Rather than proceeding under the grand jury’s indictment of breaking and entering with the intent to commit destruction of property, the tria l judge amended the indictment to charge breaking and entering with the intent to comm it destruction of property or indecent exposure. At the conclusion of the trial, however, the trial judge convicted Cruz Esquibele only of the charge contained in the original indictment. An error is harmless when a “‘reviewing cour t, can conclude, without usurping the jury’s [or judge’s] fact finding function, that, had the error not occurre d, the verdict would have been the same.’” Davies v. Commonwealth , 15 Va. App. 350, 353, 423 S.E.2d 839, 840-41 (1992). The record does not indicate that Cruz Esquibe le suffered any prejudi ce as a result of the amendment to the indictment. By not convicting Cruz Esquibele of the charge that was added to the indictment by amendment, the trial judge left him in the same position as if he had been tried and convicted on the or iginal indictment. Accordingly, I concur in the judgment affirming the conviction.