COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata 

Argued at Alexandria, Virginia 

ENNOS MORRIS

 OPINION BY 

v. Record No. 1610-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 7, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Alfred D. Swersky, Judge 

 Christopher R. K. Leibig, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Ennos Morris (appellant) was convicted in a jury trial of 

driving after having been adjudicated an habitual offender, in 

violation of Code § 46.2-357(B)(2). The sole issue on appeal is 

whether the trial court erred in denying appellant's motion to 

strike the evidence because the indictment alleged that he had 

been "adjudicated" an habitual offender, while the evidence 

proved he had been "determined" an habitual offender.1 For the 

following reasons, we affirm. 

 1

 In his petition for appeal, appellant also challenged Jury 

Instruction 3. However, appellant did not include this issue in 

his questions presented or in his opening brief. Therefore, we 

do not address it here. See Rule 5A:20. 
I. 

 Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to that evidence all 

reasonable inferences fairly deducible therefrom. See Juares v. 

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). 

So viewed, the evidence established that on September 22, 1998, 

appellant was stopped for driving in excess of 100 miles per 

hour on Interstate 395. The arresting officer learned that on 

April 29, 1998, appellant received a "DMV Revocation Notice" 

stating that his operator's license had been revoked because he 

had been "determined" an habitual offender. 

 On January 4, 1999, the grand jury returned a three-count 

indictment, including the following charge: 

On or about the 22nd day of September, 1998, 

in the City of Alexandria, ENNOS MORRIS did 

unlawfully and feloniously drive a motor 

vehicle after having been adjudicated an 

Habitual Offender, such driving of itself 

having endangered the life, limb, or 

property of another. 

VIRGINIA CODE § 46.2-357(B)(2) 

(Emphasis added). 

 At trial, appellant moved to strike the habitual offender 

charge, arguing that while the indictment stated he had been 

"adjudicated" an habitual offender, he had in fact been 

"determined" an habitual offender. The Commonwealth argued 

that, consistent with Code § 46.2-357, "the Defendant simply has 

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to have been found an habitual offender." At that point, the 

following colloquy occurred between counsel and the trial judge: 

THE COURT: What have you been precluded 

from raising here before me today because of 

the word "adjudicated" in the document? 

[COUNSEL]: Well, actually – 

THE COURT: Is there something you haven't 

been able to raise? 

[COUNSEL]: On the contrary, I would say 

that – 

THE COURT: That's what I thought. 

 The jury returned a verdict finding appellant "guilty of 

habitual offender felony as charged in the indictment." 

II. 

 The sole issue on appeal is whether use of the word 

"adjudicated" an habitual offender in the indictment and the 

proof at trial that Morris had been "determined" to be an 

habitual offender constituted a fatal variance between the 

indictment and the evidence presented at trial. 

 Code § 19.2-220 provides that: 

 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 state so much of the 

common law or statutory definition of the 

offense as is sufficient to advise what 

offense is charged. 

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(Emphasis added). "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.'" Sims v. Commonwealth, 28 Va. App. 611, 619, 507 

S.E.2d 648, 653 (1998) (quoting Rule 3A:6(a)). 

 "'[T]he function of an indictment . . . is to give an 

accused notice of the nature and character of the accusations 

against him in order that he can adequately prepare to defend 

against his accuser.'" Id. (quoting Willis v. Commonwealth, 10 

Va. App. 430, 437-38, 393 S.E.2d 405, 409 (1990)). "'[M]ere 

matters of form [will be rejected] where no injury could have 

resulted therefrom to the accused.'" Griffin v. Commonwealth, 

13 Va. App. 409, 411, 412 S.E.2d 709, 711 (1991) (quoting 

Mitchell v. Commonwealth, 141 Va. 541, 558, 127 S.E. 368, 374 

(1925)). 

 In the instant case, appellant was charged with "unlawfully 

and feloniously driv[ing] after having been adjudicated an 

Habitual Offender." As required by Code § 19.2-220, the 

indictment contained the following information: (1) appellant's 

name; (2) a description of the offense charged; (3) the city in 

which the offense occurred; and (4) the date of the offense. In 

addition, the indictment clearly identified the statute under 

which appellant was charged, i.e., Code § 46.2-357(B)(2). 

Significantly, in response to direct questioning by the trial 

judge, counsel could not identify any prejudice resulting from 

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the alleged variance between the indictment and the proof at 

trial. 

 Additionally, we conclude that any variance between the 

terms "adjudicated" and "determined," as applied in this case, 

is non-fatal. "A variance is fatal . . . only when the proof is 

different from, and irrelevant to the crime defined in the 

indictment and is, therefore, insufficient to prove the 

commission of the crime charged." Hawks v. Commonwealth, 228 

Va. 244, 247, 321 S.E.2d 650, 652 (1984). "By statute, an 

indictment may use the name given to the offense by the common 

law or may state as much of the common law definition of the 

offense as is sufficient to advise what offense is charged. No 

indictment will be deemed invalid for the insertion of any other 

words or surplusage." Hairston v. Commonwealth, 2 Va. App. 211, 

213-14, 343 S.E.2d 355, 357 (1986) (citations and footnote 

omitted). "Notice to the accused of the offense charged against 

him is the rockbed requirement which insures the accused a fair 

and impartial trial on the merits and forms the key to the fatal 

variance rule." Id. at 214, 343 S.E.2d at 357. 

 In the instant case, Code § 46.2-357(B)(2) requires simply 

that appellant be "determined or adjudicated" an habitual 

offender as an element of the offense. (Emphasis added). Use 

of the word "adjudicated" in the indictment did not change the 

nature or cause of the accusation against appellant. It did not 

change the offense that had been committed, nor did it alter the 

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proof required to convict appellant of that crime. The specific 

method by which appellant had been deemed an habitual offender 

does not change the nature of the offense under Code 

§ 46.2-357(B)(2). Thus, the allegation in the indictment that 

Morris had been "adjudicated" an habitual offender and proof 

that he had been "determined" such did not constitute a fatal 

variance between the accusation and the proof. Appellant's 

conviction is affirmed. 

 Affirmed.

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