COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Elder 

Argued at Salem, Virginia 

KERRY LEECOYA LOWE 

 OPINION BY 

v. Record No. 0080-00-3 JUDGE LARRY G. ELDER 

 OCTOBER 17, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

David V. Williams, Judge 

 Joseph R. Winston (Elwood Earl Sanders, Jr., 

Appellate Defender; Public Defender 

Commission, on brief), for appellant. 

 Richard B. Smith, Senior Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

 Kerry Leecoya Lowe (appellant) appeals from his bench trial 

convictions for malicious wounding in violation of Code 

§ 18.2-51 and trespass in violation of Code § 18.2-119.1 On 

 1

 Although the circuit court's original sentencing order 

contained various inconsistencies regarding the offenses for 

which appellant was convicted, we granted the Commonwealth's 

motion to allow the trial court to review that order and correct 

any clerical errors contained therein pursuant to Code 

§ 8.01-428(B). The court entered a nunc pro tunc order stating 

that it convicted appellant of malicious wounding in violation 

of Code § 18.2-51 and trespass in violation of Code § 18.2-119. 

The record fully supports the court's entry of the nunc pro tunc

order; therefore, we consider the merits of the appeal based on 

the final order entered nunc pro tunc. See Davis v. Mullins, 

251 Va. 141, 149, 466 S.E.2d 90, 94 (1996) (discussing court's 

authority under Code § 8.01-428(B) to correct the record to 

"speak the truth" by "placing upon the record evidence of 

judicial action which has actually been taken . . . at the 

proper time," action which does not require reacquisition of 
appeal, he contends (1) his first conviction was for unlawful 

rather than malicious wounding, as per the trial court's 

sentencing order, and, therefore, that the sentence imposed 

exceeded the statutory range; and (2) his conviction for 

trespass was invalid because it was not lesser included in the 

charged offense of statutory burglary while armed with a deadly 

weapon. In light of the trial court's nunc pro tunc order 

clarifying the nature of appellant's convictions, we affirm the 

sentence imposed for malicious wounding as within the statutory 

____________________ 

jurisdiction); Dorn v. Dorn, 222 Va. 288, 291, 279 S.E.2d 393, 

394-95 (1981) (noting that entry of a nunc pro tunc order to 

correct a true clerical error does not violate Rule 1:1). 

In entering the nunc pro tunc order, the circuit court 

found that the designation of the offense in the final order as 

unlawful wounding, rather than malicious wounding, was a 

clerical error. That finding is supported by the record. 

Accordingly, the trial court correctly ruled that correction of 

the clerical error was a ministerial act which could be 

accomplished by entry of an order nunc pro tunc without 

violating the twenty-one day time limitation of Rule 1:1. 

Furthermore, the trial court did not abuse its discretion by 

dispensing with Rule 1:13's requirement of notice to or 

endorsement by counsel, nor did entry of the nunc pro tunc order 

without notice and a prior opportunity to be heard violate 

appellant's due process rights. Rule 1:13 specifically provides 

"[c]ompliance with this rule . . . may be modified or dispensed 

with by the court in its discretion." Here, no notice or 

hearing was necessary because the court did not reacquire 

jurisdiction and lacked authority to reconsider or alter its 

previous ruling. See Davis, 251 Va. at 149, 466 S.E.2d at 94. 

The trial court was empowered only to correct possible clerical 

errors in the sentencing order to the extent such corrections 

were supported by the existing record. See id. Further, 

appellant had the opportunity to contest the lack of notice in a 

timely fashion after entry of the nunc pro tunc order, but he 

did not do so. Under these circumstances, we hold the trial 

court's decision to dispense with endorsements under Rule 1:13 

was not an abuse of discretion. 

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range, and we reverse and dismiss the trespass conviction 

because trespass under Code § 18.2-119 is not a lesser included 

offense of statutory burglary under Code § 18.2-91. 

I. 

BACKGROUND 

 Appellant originally was charged with malicious wounding in 

violation of Code § 18.2-51 and statutory burglary while armed 

with a deadly weapon in violation of Code § 18.2-91.2 After 

hearing the evidence and argument of counsel, the circuit court 

(trial court) held as follows: 

I am going to reduce the breaking and 

entering while armed with a deadly weapon to 

trespassing. I find the defendant guilty of 

trespassing . . . . And I think under the 

facts of this case, the malicious wounding 

has been proven, as well. So I find the 

defendant guilty of malicious wounding. 

 At the sentencing hearing on November 3, 1999, the trial 

court reiterated that it had found appellant guilty of malicious 

wounding and trespassing. It sentenced him as follows: 

[H]aving found you guilty of the offense of 

trespass, I sentence you to twelve months in 

jail . . . suspended on condition that you 

be on probation supervision for a period of 

four years, upon your release from 

confinement. On the charge of malicious 

wounding, I sentence you to ten years in 

prison. I will require you to serve five 

years. The balance of the five years will 

be suspended [on various conditions] . . . . 

 

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2

 Appellant also was charged with assault and battery and 

was found guilty. On appeal, he does not challenge the assault 

and battery conviction. 
 The trial court's original sentencing order, coupled with 

its nunc pro tunc order, confirmed appellant was convicted for 

(1) malicious wounding in violation of Code § 18.2-51 and 

sentenced to serve ten years with five years suspended; and (2) 

trespass in violation of Code § 18.2-119 and sentenced to twelve 

months, all suspended on condition of four years supervised 

probation. 

 Appellant registered no objection in the trial court to his 

conviction for trespass under an indictment for statutory 

burglary while armed with a deadly weapon. 

II. 

ANALYSIS 

A. 

UNLAWFUL VERSUS MALICIOUS WOUNDING 

 Appellant contends on appeal that he was convicted for 

unlawful wounding and that the sentence imposed in the original 

sentencing order exceeds the sentence permitted for unlawful 

wounding. However, based on the trial court's nunc pro tunc

order, see discussion supra note 1, the sentencing order now 

reflects that appellant was convicted for malicious wounding, 

and the sentence imposed in that order is within the range 

authorized by statute. See Code §§ 18.2-10, 18.2-51. 

Therefore, assuming without deciding that Rule 5A:18 does not 

bar our consideration of this issue, the error of which 

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appellant complained has ceased to exist, and we affirm the 

sentence imposed for appellant's malicious wounding conviction. 

B. 

TRESPASS CONVICTION 

 Appellant contends trespass in violation of Code § 18.2-119 

is not a lesser included offense of statutory burglary while 

armed with a deadly weapon and that this conviction, therefore, 

is invalid.3 The Commonwealth contends that Rule 5A:18 bars 

appellant from raising this issue on appeal because he made no 

contemporaneous objection in the trial court to conviction for 

trespass. We previously have concluded, however, that 

[t]he fact that the defendant did not object 

to . . . the conviction on the ground that 

he was convicted for an offense with which 

he was not charged is of no moment. Unless 

an indictment is amended to conform to the 

proof or an accused acquiesces in being 

found guilty of an offense other than the 

one charged, a trial court lacks the 

authority to find an accused guilty of an 

offense other than the one charged or a 

lesser included offense. . . . The lack of 

authority of the trial court to render the 

 

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3

 The record contained a clerical error in the trial court's 

citation to the statute under which appellant was convicted for 

trespass. The trial court did not make clear at trial or 

sentencing whether it convicted appellant of common law or 

statutory trespass and, if statutory trespass, under which code 

section the conviction was rendered. The parties agreed that 

Code § 18.2-152, cited by the trial court in the original 

sentencing order, had no relationship to the evidence adduced at 

trial. As set out above, see discussion supra note 1, the trial 

court's nunc pro tunc order indicates that it convicted 

appellant of trespass in violation of Code § 18.2-119. We 

therefore analyze appellant's second assignment of error in 

light of this correction. 
judgment that it did may be raised at any 

time and by this Court on its own motion. 

Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d 241, 

244 (1997) (citations omitted). Acquiescence requires something 

more than a mere failure to object. See id. (holding that 

failing to object, coupled with statement to judge clarifying 

that conviction was for misdemeanor rather than felony, did not 

constitute acquiescence). We proceed, therefore, to examine the 

merits of this assignment of error. 

The court's authority to convict appellant for trespass 

under Code § 18.2-119 is contingent upon whether that offense is 

lesser included in the offense for which appellant was charged, 

statutory burglary while armed with a deadly weapon in violation 

of Code § 18.2-91. See Harrell v. Commonwealth, 11 Va. App. 1, 

6, 396 S.E.2d 680, 682 (1990). "The state may not accuse a 

person of one crime and convict him by proving another unless 

the offense is a lesser included one of that charged." Id. "A 

lesser included offense is an offense which is composed entirely 

of elements that are also elements of the greater offense." 

Kauffman v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 

283 (1989). "The lesser [included] offense is therefore always 

'charged by implication' as part of the 'greater offense' and 

'necessarily proven by the proof of the greater offense.'" 

Crump v. Commonwealth, 13 Va. App. 286, 290, 411 S.E.2d 238, 241 

(1991) (quoting Taylor v. Commonwealth, 11 Va. App. 649, 652, 

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400 S.E.2d 794, 795 (1991)). "An offense is not a lesser 

included offense of another if each offense contains an element 

that the other does not." Walker v. Commonwealth, 14 Va. App. 

203, 206, 415 S.E.2d 446, 448 (1992). "The determination of 

what offenses are necessarily included lesser offenses of the 

crime charged is based on the fundamental nature of the offenses 

involved, not on the particular facts of a specific case 

. . . ." Taylor, 11 Va. App. at 652, 400 S.E.2d at 795. 

 We take guidance from our decision in Crump, in which we 

held that trespass under Code § 18.2-121 is not a lesser 

included offense of statutory burglary under Code § 18.2-91. 

See 13 Va. App. at 290-91, 411 S.E.2d at 240-41. 

 A violation of Code § 18.2-121 is an 

offense against the "land, dwelling, 

outhouse or any other building of another," 

its "contents" or "use" of "such property 

free from interference." 

 Code § 18.2-91, statutory burglary, 

. . . relies upon Code § 18.2-90 to identify 

its prohibited "acts." Code § 18.2-90 

includes offenses against properties not 

specified in Code § 18.2-121, i.e. ships, 

vessels, river craft. Thus, a violation of 

Code § 18.2-91 will not invariably and 

necessarily include a violation of Code 

§ 18.2-121[,] and the misdemeanor is, 

consequently, not a lesser included offense 

of either Code §§ 18.2-90 or 18.2-91. 

Id. at 291, 411 S.E.2d at 241 (citation omitted).4

 

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4

 Although the legislature has amended Code §§ 18.2-90 and 

18.2-91 on multiple occasions since our decision in Crump, those 

amendments did not alter the language we analyzed in Crump. See

1997 Va. Acts ch. 832; 1996 Va. Acts ch. 1040; 1992 Va. Acts 

chs. 486, 546; 1991 Va. Acts ch. 710. 
 Although Code §§ 18.2-1195 and 18.2-121 are not identical, 

they involve similar types of property such that trespass in 

violation of Code § 18.2-119 also is not a lesser included 

offense of statutory burglary under Code § 18.2-91. Code 

§ 18.2-119 is an offense against "the lands, buildings or 

premises of another," whereas Code § 18.2-91, by incorporating 

Code § 18.2-90, "includes offenses against properties not 

specified in Code § [18.2-119], i.e. ships, vessels, river 

craft." Crump, 13 Va. App. at 291, 411 S.E.2d at 241. Although 

Code § 18.2-119 includes trespass to the "premises of another," 

 5

 Code § 18.2-119 provides as follows: 

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 If any person without authority of law 

goes upon or remains upon the lands, 

buildings or premises of another, or any 

portion or area thereof, after having been 

forbidden to do so, either orally or in 

writing, by the owner, lessee, custodian or 

other person lawfully in charge thereof, or 

after having been forbidden to do so by a 

sign or signs posted by such persons or by 

the holder of any easement or other 

right-of-way authorized by the instrument 

creating such interest to post such signs on 

such lands, structures, premises or portion 

or area thereof at a place or places where 

it or they may be reasonably seen, or if any 

person, whether he is the owner, tenant or 

otherwise entitled to the use of such land, 

building or premises, goes upon, or remains 

upon such land, building or premises after 

having been prohibited from doing so by a 

court of competent jurisdiction by an order 

issued pursuant to [any of several 

enumerated statutes], and after having been 

served with such an order, he shall be 

guilty of a Class 1 misdemeanor. 
the term "premises" is not broad enough to encompass the water 

craft mentioned in Code § 18.2-90. Rather, the term "premises" 

relates to "[l]and and its appurtenances," such as "[t]he area 

of land surrounding a house . . . , a room, shop, building, or 

other definite area, or a distinct portion of real estate." 

Black's Law Dictionary 1062-63 (5th ed. 1979) (emphasis added), 

cited with approval in Beach Robo, Inc. v. Crown Cent. Petroleum 

Corp., 236 Va. 131, 134, 372 S.E.2d 144, 146 (1988). "Thus, a 

violation of Code § 18.2-91 will not invariably and necessarily 

include a violation of Code § [18.2-119,] and the misdemeanor 

is, consequently, not a lesser included offense of . . . [Code 

§ 18.2-91]." Crump, 13 Va. App. at 291, 411 S.E.2d at 241. 

 Further, Code § 18.2-119 contains at least one element 

which Code § 18.2-91 does not, either directly or by reference 

to any other Code section. Code § 18.2-119 requires proof that 

the accused "goes upon or remains upon the lands, buildings or 

premises of another . . . after having been forbidden to do so" 

by any of several different means, including orally, by posting 

or other writing, or by order of court. (Emphasis added). For 

this reason also, Code § 18.2-119 is not a lesser included 

offense of Code § 18.2-91, and the Commonwealth, by charging a 

violation of Code § 18.2-91, did not also charge a violation of 

Code § 18.2-119. 

 For these reasons, we affirm the sentence imposed for 

appellant's malicious wounding conviction but reverse and 

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dismiss his trespass conviction based on our holding that 

trespass under Code § 18.2-119 is not a lesser included offense 

of statutory burglary under Code § 18.2-91, the offense with 

which appellant was charged. 

 Affirmed in part,

and reversed and

dismissed in part.

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