COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Bumgardner Argued at Rich mond, Virginia

GEORGE SMITH ALSTON OPINION BY v. Record No. 1822-99-2 JUDGE RICHAR D S. BRAY JUNE 20, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND James B. Wilkinson, Judge Patricia P. Nagel, As sistant Public Defender (David J. John son, Public Defender, on brief), for appellant. Amy L. Marshall, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

George Smith Alston (defenda nt) was convicte d, in a bench trial, of arson in violation of Code § 18 .2-77. On appeal, he challenges the sufficiency of the evidence to establish the offense charged in the indictment . Finding that the unproven allegation of th e indictment, the ownership of th e premises, was mere surplusage, we af firm the conviction.

I. Guided by familiar principles, we cons ider the record "'in the light most favorable to the Commonwealth, giving it all reasonable inferences fairly deducible therefrom. In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credibleevidence favorable to the Commonwealth . . . .'" Watkins v. Commonwealth , 26 Va. App. 335, 348, 404 S.E.2d 856, 866 (1998) (citation omitted). On March 18, 1999, Mary Mitchell, togeth er with her mother, brother and son, return ed from church to a residential dwelling occupied by the four in the city of Richmond. Defendant, then "living in and out" of the home, was pres ent when the family arrived. Shortl y thereafter, Mitc hell discovered that "sodas" and "hamburger" we re missing and "con fronted" defendan t, prompting an argument that culminated with Mitchell ordering de fendant from the house. Defendan t "left in an an gered manner" and, once outside, was seen "walking up and down" a near by street. "[A]bout 15 minutes" later, Mitc hell's brother discov ered a fire in the "downstairs" area of the home, alerted the others , and everyone escaped through th e "back en trance." Moments prior to the fire, Kenn eth Jones, a ne ighbor "across the street," observ ed defendant "kneel down" "beside the [Mitchell] residence," ri se and "all of the su dden a blaze of fire

comes out." As Jones ran "towar ds the fire," defendant "just stood right ther e . . . and . . . walked away." After Jones extinguished the fire with "dirt and mud," he noticed defendant "peep back around th e corner," and aler ted a "cor rectional officer," then al so at the scene. As the two men approached defendant, he fled, but Jones pursued and apprehended him for police.

- 2 -Richmond Police Dete ctive Michael J. Wyatt, an expert "in the nature of arson and the nature and cause and origin of fires," testified that his inve stigation of the fire disclosed that the cause was neither "electrical" nor "mecha nical," but "incendiary in nature," a fire wh ich "has to be set." The subsequent indict ment of defend ant, as amended, alleged that [o]n or about March 18, 1999, in the City of Richmond, [he] did feloniously, unlawfully and maliciously burn[], or by use of explosive device destroy[] an occupied dwelling or manufactured home, belonging to Joseph O'Brian . Virginia Code Section 18.2-77. (Emphasis added.) Defendant argues on appeal that the evidence failed to prove that the "dwelling . . . belong[ed] to Joseph O'Brian, resulting in a fatal variance between an allegation of the indictment and the requisite proof" to support the conviction.

II. "An indictment is a written accusation of a crime . . . 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); see Code § 19.2-220. "It is elementary that what need not be proved need not be alleged," although "sometimes [the indictment] alleges something that . . . was not necessary to allege," requiring proof of "what . . . has [been] alleged unless the unnecessary allegation can

- 3 -be rejected as surplusage." Mitchell v. Commonwealth , 141 Va. 541, 555, 127 S.E. 368, 373 (1925). "'If the unnecessary word or words . . . in the indictment describe, limit or qualify the words which it was necessary to insert therein, then they are descriptive of the offense charged in the indictment and cannot be rejected as surplusage.'" Hairston , 2 Va. App. at 214-15, 343 S.E.2d at 357 (quoting Mitchell , 141 Va. at 560, 127 S.E. at 374). However, to become indispensable, "the unnecessary language must have a material effect on the offense charged and on the proof required to convict under that charge." Id. at 217, 343 S.E.2d at 359 (emphasis added). Here, the indictment charged defendant with a violation of Code § 18.2-77(A), which provides, in pertinent part, "[i]f any person maliciously (i) burns, or by use of any explosive device or substance destroys, in whole or in part, or causes to be burned or destroyed, . . . any dwelling house

. . . whether belonging to himself or another , . . . he shall be guilty of a felony, punishable" as prescribed by the statute. 1 (Emphasis added.) "[T]he term 'dwelling house'" has been defined, in the context of Code § 18.2-77, as "a place which human beings regularly use for sleeping." Marable v. Commonwealth , 27 Va. App. 505, 513, 500 S.E.2d 233, 237 (1998) (citing Rash v. Commonwealth , 9 Va. App. 22, 26-27, 383 S.E.2d 749, 751 (1989)).

1 Code § 18.2-77(B) provides for a reduced penalty "when such building . . . is unoccupied." - 4 -Thus, to prove the dwelling house element of Code § 18.2-77(A), the Commonwealth need not establish ownership of the premises, only routine habitation. Defendant acknowledges that "it may not have been necessary to allege in the instant indictment whose house was burned," but relies upon Etheridge v. Commonwealth , 210 Va. 328, 171 S.E.2d 190 (1969), in support of his contention that, once charged, such proof was necessary to a conviction. In Etheridge , the indictment alleged that the accused "did unlawfully, feloniously and maliciously shoot at or into a dwelling house, to-wit: the residence of Edna Harper located at Route 2, Box 224, Galbush Road, Chesapeake, Virginia," a violation of former Code § 18.1-152. Id. at 329, 171 S.E.2d at 191 (emphasis added). However, the evidence at trial established that Edna Harper, although present in the dwelling at the time of the offense, resided elsewhere. See id. In reversing the conviction, the Court concluded that the Commonwealth "chose to specify" the dwelling house "or residence involved as that of Edna Harper," a description of "that which was necessary to be alleged" that "cannot . . . be treated as surplusage." Id. at 329-30, 171 S.E.2d at 191-92. In contrast, the subject indictment makes no reference to the resident or residents of the subject dwelling house, but, instead, specifies only the owner of the property, an unnecessary allegation. The language in Etheridge , "the

- 5 -residence of Edna Harper," modified "words . . . necessary to" the indictment, dwelling house, which requires habitation or residency, by definition, and, therefore, could not "be rejected as surplusage." Hairston , 2 Va. App. at 214, 215, 343 S.E.2d at 357, 357. The extraneous language now before the Court qualified ownership, a circumstance immaterial to the offense and clearly unnecessary to a successful prosecution of the indictment. Accordingly, we find the evidence sufficient to prove the offense charged in the indictment and affirm the conviction. Affirmed.

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