COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Haley Argued at Chesapeake, Virginia

CHRISTOPHER ROOSEVELT SCOTT OPINION BY v. Record No. 2023-05-1 JUDGE LARRY G. ELDER NOVEMBER 14, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge Brooke E. Woodzell, Assistant Public Defender (Norfolk Public Defender’s Office, on brief), for appellant. Donald E. Jeffrey, Assistant Attorney General (Robert F. McDonnell, Attorney General; Officeof the Attorney General, on brief), for appellee.
Christopher Roosevelt Scott (appellant) appeals from his bench trial conviction for statutory burglary in violation of Code § 18.2-91. On appeal, he c ontends the trial court’s refusal to dismiss the indictment was reversible error because, while the indict ment charged statutory burglary based on the allegation that he “feloniously did enter in the nighttime . . . with intent to commit larceny,” it was undisputed that the entr y actually occurred during daylight hours, and the indictment charged only an entering, rather than a breaking and en tering as required to support a conviction for statutory burglary based on a daytime entry. We hold that because the indictment was not amended and appellant made a timely objection to the lack of evidence to prove the offense occurred in the nighttime, hi s conviction must be reversed. We need not consider whether the evidence would have been sufficient to prove stat utory burglary based on a breaking and entering because that offense was not charged. Thus, we reverse the conviction and dismiss the indictment.- 2 - I. BACKGROUND An indictment against appellant for “statuto ry burglary [without a] weapon” charged that “On or about the 10th day of October, 2004[,] in the city of Norfolk, [appellant] feloniously did enter in the nighttime, the Data Business System s, with intent to commit larceny. Va. Code 18.2-91.” At trial on that indictment, the Commonwealthoffered evidence that, viewed in the light most favorable to the Commonwealth, see, e.g. , Higginbotham v. Commonwealth , 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), established the following: Around Wednesday, October 6, 2004, two employees of Data Business Systems obs erved a man they did not know walk through the business’s Virginia Beach warehouse. When th ey asked the man what he was doing, he said he was looking for a job. They told the man the company had no openings, and he left. Around Friday, October 8, 2004, one of those employees saw the same man “kind of lurking around the area” before getting into a car and driving away. On Sunday, October 10, 2004, while the business was closed, video surveillance cameras at the company’s warehouse recorded a breaking and entering that occu rred between 5:42 and 5:55 p.m., during what were clearly daylight hours. The video s howed that at 5:42 p.m., a car rammed one of the warehouse’s overhead doors and dr ove away. The driver of the vehicle could not be seen in the video, but a company employee identified the vehicle as the one driven by the man he had seen “lurking” around the warehouse on October 8, 2004. About five minutes after the vehicle rammed the door, a man the company’s employees identified as the same man they had seen at the warehouse on October 6 and Oc tober 8 entered the warehouse through the damaged overhead door. For the next seve ral minutes the man moved around the warehouse, using a box cutter to open at least one box. At 5:55 p.m., while it wa s still light outside, the man- 3 - left the warehouse. At trial, the business’s empl oyees identified appellant as the man they had seen at the warehouse on October 6 and October 8 and the man depi cted in the surveillance video of October 10. At the close of the Commonwealth’s eviden ce, appellant moved to strike on several grounds. He contended the video was insufficien t to prove he was the person in the warehouse and that the car in the video was hi s. He also argued what he re ferred to a “technical matter[]”: “[T]he indictment says, ‘did enter in the nighttim e.’ There’s been no evidence that this was an entry in the nighttime.” The Commonwealth con ceded that all events depicted in the video occurred during the daytime. The trial court deni ed the motion, stating in relevant part, “Well, the indictment is sufficient, in my view . . . .” Appellant presented no evidence and then argued “on the i ssue of proof beyond a reasonable doubt.” The trial court convicted him of the charged o ffense, and appellant noted this appeal. II. ANALYSIS Pursuant to Code § 18.2-90, “If any person . . . in the nighttime enters without breaking or at any time breaks and enters . . . any building permanently affixed to realty, . . . he shall be deemed guilty of statutory burglary, which offense shall be a Class 3 felony.” See Code § 18.2-10 (prescribing punishment for various fel ony grades). Pursuant to Code § 18.2-91, “[i]f any person commits any of the acts mentioned in § 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson . . . , he shall [also] be guilty of statutory burglary,” but may be subject to a lesser penalty for that crime. Thus, one commits statutory burglary under these code sections when one either (1) enters in the nighttime or (2) enters after- 4 - breaking at any time, day or night. See Griffin v. Commonwealth , 13 Va. App. 409, 411-12, 412 S.E.2d 709, 711 (1991). “An indictment is a written accusation of a cr ime 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). “An accused has the right to be clearly informed of the charges he faces.” Williams v. Commonwealth , 8 Va. App. 336, 341, 381 S.E.2d 361, 364 (1989). Errors in “‘[m]ere matters of form [in an i ndictment will be reject ed] where no injury [or prejudice] could have resulted th erefrom to the accused.’” Griffin , 13 Va. App. at 411, 412 S.E.2d at 711 (quoting Mitchell v. Commonwealth , 141 Va. 541, 558, 127 S.E. 368, 374 (1925)). For example, “[e]rror in the citation of the statute or ordinance that defines the offense or prescribes the punishments therefore, or omi ssion of the citation, sh all not be grounds for dismissal of an indictment or information, or fo r reversal of a convicti on, unless the court finds that the error or omission prejudiced the accused in preparing his defense.” Rule 3A:6. Further, “[n]o indictment or other accusation shall be quashed or deemed invalid: . . . [ inter alia ] (6) For omitting to state, or stating imperfectly, the time at which the offense was committed when time is not the essen ce of the offense . . . .” Code § 19.2-226 (emphasis added). However, “‘[a] variance is fatal . . . when th e proof is different [from] and irrelevant to the crime defined in the indictment and is, theref ore, insufficient to prove the commission of the crime charged.’” Griffin , 13 Va. App. at 411, 412 S.E.2d at 711 (quoting Hawks v. Commonwealth , 228 Va. 244, 247, 321 S.E.2d 650, 651-52 (1984)). “‘The accused cannot be convicted unless the evidence brings him within the offense charged in his indictment. . . . [T]he indictment must charge the very offense for which a conviction is asked.’” Williams , 8 Va. App. at 341, 381 S.E.2d at 364 (quoting Mitchell , 141 Va. at 553, 127 S.E. at 372) (emphasis added)- 5 - (reversing conviction because defendant was indict ed for perjury as defined in one statute and convicted for “significantly different” type of perjur y defined in another stat ute, “[a] fact [which] could have been crucial to Williams in planning his defense”). “When a defendant is convicted of charges not included in the indictment, [either expressly or as a lesser included offense,] . . . per se reversible error [has occurred],” and no showing of actual prejudice is required. United States v. Fletcher , 74 F.3d 49, 53 (4th Cir. 1996) (contrasting to situation in which “proof at trial does not add anything new or constitute a broade ning of the charges,” in which case “[s]uch a variance violates a defendant’s ri ghts and requires revers al only if it prejudices him” (citations omitted)); see Fontaine v. Commonwealth , 25 Va. App. 156, 165, 487 S.E.2d 241, 245 (1997) (noting that, absent amendment, defendant ma y be convicted only of offense charged in indictment or lesser included offe nse), overruled in part on other grounds , Edwards v. Commonwealth , 41 Va. App. 752, 761-66, 589 S.E.2d 444, 448-51 (2003) (en banc). Applying these principles in Griffin , we held that, “whenever [an indictment alleges] a breaking and entering of a dwelling . . . , the timing of the offense is not an e ssential element of the offense.” 13 Va. App. at 412, 412 S.E.2d at 711 (emphasis added). However, when the charge of statutory burglary is based on “ enter[ing] without breaking ,” the statute makes clear the offense must have occurred “in the nighttime.” Code § 18.2-90 (emphasis added). Here, the indictment charge d that appellant “entered in the nighttime,” whereas the evidence proved the entry occurred in the daytim e. The Commonwealth contends this variance is not fatal because statutory burglary may also be established by proof of a daytime entry if the evidence shows the entry was accompanied by a break ing. It avers that, because the evidence here also proved a breaking and because appellant did not allege any prejud ice from the variance, we should reject appell ant’s claim of error.- 6 - Assuming without deciding that amendment of the indictment to allege an entering accompanied by a breaking would have been permissible under Code § 19.2-231, 1 the indictment was not amended in appellant’s case. The Co mmonwealth never reques ted an amendment; the trial court gave no indication that it was amending the indictment sua sponte ; and appellant was neither arraigned on an amended indictment nor gi ven an opportunity “to plead anew thereto” or to request a continuance based on a claim of su rprise as required by Code § 19.2-231. The trial court stated merely that “the indict ment is sufficient, in my view.” Based on the reasoning in our prior decision in Fontaine v. Commonwealth , we reverse appellant’s conviction. Fontaine involved a defendant indicted for leaving the scene of an accident in which a person was injured in viol ation of Code § 46.2-894. 25 Va. App. at 159, 487 S.E.2d at 242. That statute delineated at least tw o ways in which it could be violated: (1) by leaving the scene of an accident in which a pers on was injured, “commonly referred to as ‘hit and run personal injury,’” and (2) by leaving the scene of an acci dent in which attended property was damaged, referred to as “hit and run property damage.” Id. at 159 & n.1, 487 S.E.2d at 243 & n.1 (citing Code § 46.2-894). Although indicted for hit and run personal injury, the defendant

1 Code § 19.2-231 provides in relevant part as follows: If there be any defect in form in any indictment, presentment or information, or if there shall app ear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before th e jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the natu re or character of the offense charged. After any such amendmen t the accused shall be arraigned on the indictment, presentment or information as amended, and shall be allowed to plead anew th ereto, if he so desires, and the trial shall proceed as if no amen dment had been made; but if the court finds that such amendment operates as a surprise to the accused, he shall be entitled, upon re quest, to a continuance of the case for a reasonable time.- 7 - was convicted for hit and run property damage and appealed on the ground that the evidence failed to prove any property was damaged as a result of the accident at issue. Id. at 159-60, 487 S.E.2d at 243. We observed that, although the two acts were proscribed by th e same statute, one was not a lesser included offense of the other because each required proof of an element the other did not. Id. at 164, 487 S.E.2d at 245. We noted further the principle that “‘[t]he state may not accuse a person of one crime and convict him by proving a nother unless the offense is a lesser included one of that charged.’” Id. at 165, 487 S.E.2d at 245 (quo ting Harrell v. Commonwealth , 11 Va. App. 1, 6, 396 S.E.2d 680, 682 (1990)). Finally, we averred that “[t]he indictment [in Fontaine ] did not charge the defendant generally with hit and run in violation of Code § 46.2-894. Instead, it specifica lly charged hit and run personal injury .” Id. at 164-65, 487 S.E.2d at 245 (emphases added); cf. Gardner v. Commonwealth , 262 Va. 18, 24, 546 S.E.2d 686, 689-90 (2001) (holding that, althoug h offense charged did not require proof of identity of person from whom money was taken, once indictment was issued charging money was property of particular person, allegation was not surplusage, and variance be tween indictment and proof was fatal, even absent showing of prejudice). We noted “the Commonwealth charged the defendant with one offense and found him guilty of another,” and we concl uded “[t]he trial court lacked authority to convict the defendant for an offense not charged, absent an amendm ent to the indictment or acquiescence by the defendant.” Fontaine , 25 Va. App. at 164-65, 487 S.E.2d at 245; see Edwards , 41 Va. App. at 764, 589 S.E.2d at 449 (agreeing with Fontaine ’s statement that a “trial court ‘lacks authority’ to convict a person of an offense which is not a less er-included offense”). Because the defendant in Fontaine objected in the trial co urt to his conviction on the ground that the evidence was insufficient to prove property damage, we revers ed his conviction and dismissed the indictment- 8 - without addressing “whether th e evidence was sufficient to prove the uncharged offense.” Fontaine , 25 Va. App. at 160, 165, 487 S.E.2d at 243, 245. Similarly, here, the Commonwealth did not ch arge appellant generally with statutory burglary. Rather, it charged him with statut ory burglary “entering in the nighttime” and apparently convicted him for st atutory burglary “breaking and en tering anytime,” which is not lesser included in the offense charged. The la tter requires proof of a breaking whereas the former does not. In addition, the former require s proof that the entry occurred at nighttime, whereas the latter does not. Because each offe nse requires proof of an element the other does not, neither is lesser included in the other. See id. at 164, 487 S.E.2d at 245. Thus, here, as in Fontaine , “the Commonwealth charged [appellant] with one offense,” and the court “found him guilty of another,” wh ich it “lacked authority [to do], absent an amendment to the indictment or acquiescence by [appellant].” Id. at 164-65, 487 S.E.2d at 245. Compare King v. Commonwealth , 40 Va. App. 193, 578 S.E.2d 803 (2003) (in case involving statute defining crime that could be proved in either of two ways , where appellant was indicted for violating second clause and claimed his be havior violated only fi rst clause, affirming conviction on ground that act alleged and proved violated both clauses). Because the indictment was not amended and appellant made a timely obj ection to the lack of evidence to prove the offense occurred in the nighttime, we reverse hi s conviction. Because ap pellant was “convicted of charges not included in the indictment, . . . pe r se reversible error [has occurred],” Fletcher , 74 F.3d at 53, and no finding of actual prejudice is n ecessary. We need not consider whether the evidence would have been sufficient to prove statutory burglary “breaking and entering anytime” because that offense was not charged.- 9 - III. For these reasons, we reverse appellant’s conviction for statutory burglary and dismiss the indictment. Reversed and dismissed.