COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

DAVID P. MARKVA 

 MEMORANDUM OPINION* BY 

v. Record No. 0010-95-4 JUDGE LARRY G. ELDER 

 AUGUST 6, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Rosemarie Annunziata, Judge 

 Corinne J. Magee for appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 David P. Markva (appellant) appeals his conviction for 

attempted statutory burglary, in violation of Code §§ 18.2-92 and 

18.2-26. Appellant contends that the trial court erred in 

denying his motion to quash the indictment, where the indictment 

stated that appellant attempted to break and enter the victim's 

apartment "with the intent to commit assault or destruction of 

property or unlawful entry or larceny or stalking." Because the 

indictment sufficiently advised appellant as to what offenses the 

Commonwealth charged, we affirm his conviction. 

 I. 

 FACTS 

 On January 21, 1994, Wendy Marx (the victim) discovered that 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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someone had vandalized her Fairfax County apartment by carving 

symbols on her furniture. The victim suspected her co-worker, 

appellant, because the symbols were related to "Dungeons and 

Dragons," a game which appellant talked about frequently at work. 

 On February 3, 1994, the victim discovered that some of her 

possessions had been moved in her apartment. The victim informed 

police of both incidents. 

 Appellant confessed to police that he removed the victim's 

house key from her purse and made himself a copy. Appellant also 

admitted that he made the marks on the victim's furniture and 

that he wanted to hurt the victim. Police arrested appellant, 

charged him with breaking and entering, but released him on bond. 

 On March 3, 1994, the victim looked out of the peephole of 

her front door and observed appellant "pulling on the doorknob" 

of her door. After the victim's sister arrived to assist her, 

they noticed that the doorknob was "extremely loose, just hanging 

there." The victim again informed police of appellant's actions. 

 On April 18, 1994, appellant was indicted for attempted 

burglary on March 3, 1994, with the intent to commit "a 

misdemeanor." On April 26, 1994, appellant requested a bill of 

particulars to notify him of the alleged misdemeanor. On May 11, 

1994, the Commonwealth filed a bill of particulars, stating that 

the underlying misdemeanors were "either destruction of property 

or stalking or unlawful entry." At a May 13, 1994 hearing, Judge 

Marcus D. Williams denied appellant's request for a more 
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particular bill of particulars, reasoning that the Commonwealth 

"narrowed it down to those three potential misdemeanors." 

 Appellant then moved to quash the indictment. Judge J. Howe 

Brown, Jr., heard argument on May 27, 1994, and granted 

appellant's motion, concluding that the Commonwealth failed to 

state the specific misdemeanor that was the object of appellant's 

attempted burglary. 

 Appellant was reindicted on June 20, 1994, after the next 

grand jury session, for the same offense. The new indictment 

specified that appellant committed attempted burglary "with the 

intent to commit assault or destruction of property or unlawful 

entry or larceny or stalking." Appellant moved to quash the 

indictment, again claiming that the listing of multiple 

misdemeanors did not adequately apprise him of the nature of the 

charge. After hearing argument, Judge F. Bruce Bach, on July 25, 

1994, overruled appellant's motion, stating that the indictment 

was "a concise and definite written statement describing the 

offense charged, as required by [] Code § 19.2-220. It clearly 

provides [appellant] notice of the nature and character of the 

offense charged." 

 A jury trial was held on September 7-8, 1994. After the 

presentation of evidence, the trial court granted appellant's 

motion to strike the two underlying misdemeanors of assault and 

larceny. The jury was allowed to consider the three underlying 

misdemeanor offenses of: (1) destruction of property, 
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(2) unlawful entry, and (3) stalking. After the jury returned a 

guilty verdict on the charge, the trial court sentenced appellant 

to twelve months in jail with six months suspended. Appellant 

now appeals to this Court. 

 II. 

MOTION TO QUASH THE INDICTMENT 

 Appellant contends that the indictment failed to provide him 

with "a concise and definite written statement" describing the 

charged offense, Code § 19.2-20, because the indictment failed to 

describe the specific intent that he possessed when attempting to 

enter the victim's apartment. We disagree with appellant. 

 Code § 19.2-220 states: 

 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. 

(Emphases 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." 

 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." Willis v. Commonwealth, 10 Va. App. 430, 
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437-38, 393 S.E.2d 405, 409 (1990). See Wilder v. Commonwealth, 

217 Va. 145, 147, 225 S.E.2d 411, 413 (1976); U.S. Const. amend. 

VI; Va. Const. art. 1, § 8. 

 We hold that the indictment against appellant for attempted 

statutory burglary was a concise and definite written statement 

describing the offense charged. As such, it met the requirements 

of Code § 19.2-220. The indictment apprised appellant of the 

offenses which he was required to answer. Taylor v. 

Commonwealth, 207 Va. 326, 332, 150 S.E.2d 135, 140 (1966).1 As 

 

 1Appellant cites Taylor in support of his argument that "a 

defendant is entitled to be apprised of the offense which he is 

required to answer." Id. at 332, 150 S.E.2d at 140. Taylor is 

inapposite to this case. In Taylor, the indictment against the 

defendant charged the defendant with breaking and entering a 

dwelling house with the intent to "feloniously and burglariously 

to commit a felony." Id. The Supreme Court, in reversing the 

defendant's conviction, held in part that "[t]he averment wholly 

fails to specify the offense or felony which it alleges [the 

defendant] wished to commit." Id. The indictment in this case 

differs from the overly-broad indictment in Taylor because the 

Commonwealth specifically stated the five underlying misdemeanor 

intents it proposed to prove at trial. 

 Appellant also cites Mitchell v. Commonwealth, 141 Va. 541, 

127 S.E. 368 (1925), for the proposition that the indictment in 

this case may have properly alleged the five misdemeanor intents 

in one count, but that the intents must have been listed in the 

conjunctive ("and") instead of the disjunctive ("or"). Mitchell

is inapposite to this case. In Mitchell, the Supreme Court 

stated: 

 If a statute . . . makes it a crime to do 

this, or that, or that, mentioning several 

things disjunctively, the indictment may, 

indeed, as a general rule, embrace the whole 

in a single count; but it must use the 

conjunctive "and" where "or" occurs in the 

statute, else it will be defective as being 

uncertain. 

Id. at 551, 127 S.E. at 372 (citations and quotations 
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appellant concedes, a defendant can commit a crime with multiple 

intents. See Hughes v. Commonwealth, 18 Va. App. 510, 531, 446 

S.E.2d 451, 463-64 (1994)(en banc)(Coleman, J., concurring). In 

this case, the Commonwealth sufficiently limited the indictment 

to provide appellant with adequate notice of the five underlying 

misdemeanor intents it proposed to prove at trial.2

 We fail to see how appellant would have benefited from a 

trial court order for the Commonwealth to bring a multi-count 

indictment or to list the underlying misdemeanors in the 

conjunctive ("and") instead of the disjunctive ("or"). 

Appellant's complaint "goes to the form rather than to the 

substance of the averments, and cannot be allowed to prevail, 

especially as it is not perceived that any prejudice resulted to 

[appellant]." Clayton v. United States, 284 F. 537 (4th Cir. 

1922). Furthermore, "[a]n error, defect, irregularity, or 

variance in the application . . . of [Rule 3A:6(a)] will not 

constitute reversible error unless the substantive rights of a 

party have been affected." Foster v. Commonwealth, 6 Va. App. 

313, 323, 369 S.E.2d 688, 694 (1988)(citing Rule 3A:2(a)). 

 

omitted)(emphases added). Code § 18.2-92, the statute that 

appellant was convicted of violating, does not list the various 

underlying misdemeanors in the conjunctive or the disjunctive. 

Rather, it merely states that "[i]f any person break and enter a 

dwelling house . . . with the intent to commit any misdemeanor

except assault and battery or trespass, he shall be guilty of a 

Class 6 felony." (Emphasis added). 

 2We emphasize that the issue on appeal before this Court is 

whether appellant had fair notice of the charges against him, not 

whether the grand jury properly indicted appellant. 
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 Our holding is guided by the Supreme Court's decision in 

Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 (1989), 

cert. denied, 493 U.S. 1063 (1990). In Buchanan, the defendant 

was tried for capital murder. The first of three indictments 

charged that the defendant killed "Buchanan, Sr. as part of the 

same act or transaction in which he killed J.J., Donnie, or Mrs. 

Buchanan." Id. at 396, 384 S.E.2d at 762 (emphasis added). The 

two remaining indictments, each in two counts, set forth various 

permutations under which the four murder victims might have been 

killed. Id. at 396-97, 384 S.E.2d at 762. The defendant argued 

that the indictments did not allow him to focus his defense on a 

specific pair of killings as being connected, thus depriving him 

of his right to sufficient notice of the charged offenses. Id.

at 396, 384 S.E.2d at 761. The Supreme Court disagreed with the 

defendant and held that: 

 [T]he theoretical limitation on the 

number of possible capital murder convictions 

that can be supported by four murders does 

not control the way in which the Commonwealth 

can frame indictments. The Commonwealth is 

free to indict an individual for as many 

separate crimes as the Commonwealth, in good 

faith, thinks it can prove. Further, the 

Commonwealth is free to charge the commission 

of a single offense in several different ways 

in order to meet the contingencies of proof 

 . . . . 

 The three indictments put Buchanan on 

fair notice of what he was required to defend 

against at trial. Under the first 

indictment, Buchanan was on notice that he 

had to defend against a claim that he killed 

Buchanan, Sr. and all three of the other 

victims as part of the same act or 
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transaction; that he killed Buchanan, Sr. and 

any two of the other victims as part of the 

same act or transaction; or that he killed 

Buchanan, Sr. and any one of the other 

victims as part of the same act or 

transaction. Thus, under the first 

indictment, Buchanan was on notice that he 

had to defend against seven possible 

groupings of murder victims, any one of which 

was sufficient to constitute capital murder, 

but that Buchanan, Sr. was a necessary part 

of any of those groupings. 

Id. at 397-98, 384 S.E.2d at 762 (emphasis added)(other emphases 

deleted). Just as in Buchanan, "[appellant] was on notice that 

he had to defend against [five] possible [underlying 

misdemeanors], any one of which was sufficient to [support the 

intent for a statutory burglary conviction]." Id. And while it 

may have been preferable for the Commonwealth to bring a 

multi-count indictment in this case, "there's no way [appellant 

did not] know what [he was] charged with." Id. at 398, 384 

S.E.2d at 763. 

 For these reasons, we affirm appellant's conviction. 

Affirmed.
 -9- 

Benton, J., dissenting. 

 Code § 19.2-220 requires that "[t]he indictment . . . shall 

be a plain, concise and definite written statement . . . 

describing the offense charged." The statute codifies the 

protection guaranteed by the Constitution of Virginia "[t]hat in 

criminal prosecutions a man hath a right to demand the cause and 

nature of his accusation." Art. I, § 8. See also U.S. Const. 

amend. V. Thus, the principle is well established that "[a]n 

indictment not framed to apprise the defendant 'with reasonable 

certainty, of the nature of the accusation against him is . . . 

defective, although it may follow the language of the statute.'" 

Russell v. United States, 369 U.S. 749, 765 (1962) (citation 

omitted). 

 In pertinent part, the indictment in this prosecution 

alleged that "David P. Markva did attempt to break and enter the 

dwelling house . . . while said dwelling was occupied, with the 

intent to commit assault or destruction of property or unlawful 

entry or larceny or stalking." So written, the indictment 

charged Markva with one act of attempted burglary but 

impermissibly ascribed to him in the disjunctive five separate 

intents. 

 Specific intent is an essential element of 

burglary. It is elementary that a defendant 

is entitled to be apprised of the offense 

which he is required to answer. 

Taylor v. Commonwealth, 207 Va. 326, 332, 150 S.E.2d 135, 140 

(1966) (citations omitted). 
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 In summary, the indictment charged, and Markva was compelled 

to defend against, the burglary offense alleging the following 

five disjunctive intents: 

 1. attempt to break and enter an occupied 

dwelling with the intent to commit assault, 

or 

 2. attempt to break and enter an occupied 

dwelling with the intent to commit 

destruction of property, or 

 3. attempt to break and enter an occupied 

dwelling with the intent to commit an 

unlawful entry, or 

 4. attempt to break and enter an occupied 

dwelling with the intent to commit larceny, 

or 

 5. attempt to break and enter an occupied 

dwelling with the intent to commit stalking. 

 This practice has long been condemned by the United States 

Supreme Court as being unlawful. In a very early case, the Court 

ruled that "an indictment or a criminal information which charges 

the person accused, in the disjunctive, with being guilty of one 

or of another of several offenses, would be destitute of the 

necessary certainty, and would be wholly insufficient." The 

Confiscation Cases, 87 U.S. 92, 104 (1873). In similar fashion, 

the Supreme Court of Virginia held more than seventy years ago as 

follows: 

 "'If a statute . . . makes it a crime to do 

this, or that, or that,' mentioning several 

things disjunctively, 'the indictment may, 

indeed, as a general rule, embrace the whole 

in a single count; but it must use the 

conjunctive "and" where "or" occurs in the 

statute, else it will be defective as being 

uncertain.'" 
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Mitchell v. Commonwealth, 141 Va. 541, 551, 127 S.E. 368, 372 

(1925) (citations omitted). Decisions from other states also 

have long "'recognize[d] the general rule, too well settled to 

require citation to authorities, that where the means by which a 

crime may be committed are set forth in the statute in the 

disjunctive, they should be alleged in the information in the 

conjunctive.'" Espinoza v. People, 349 P.2d 689, 690 (Colo. 

1960) (citation omitted). See also State v. Batson, 831 P.2d 

924, 932 (Haw. 1992); People v. Eagle Books, Inc. 602 N.E.2d 798, 

801-02 (Ill. 1992); State v. Helms, 102 S.E.2d 241, 243 (N.C. 

1958). 

 These principles clearly are applicable to this case. The 

burglary statute states that the act must be accompanied by "the 

intent to commit any misdemeanor except assault and battery or 

trespass." Code § 18.2-92 (emphasis added). Obviously, the 

statute's use of the phrase "any misdemeanor" tacitly includes in 

the disjunctive each of the various misdemeanors proscribed by 

law. 

 It is not uncommon for a statute to define 

as an offense two or more separate acts, 

things, or transactions, enumerated therein 

in the disjunctive. In such a case, the 

whole may be charged conjunctively and the 

accused found guilty of any one. On the 

other hand, absent a statute providing 

otherwise, it is fatal for an indictment or 

information to charge disjunctively in the 

words of the statute, if the disjunctive 

renders it uncertain as to which alternative 

is intended. Likewise, the use of the 

expression "and/or" in an indictment or 

information is ordinarily condemned as 
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destructive of the definiteness and certainty 

required in a good criminal pleading. 

2 Charles E. Torcia, Wharton's Criminal Procedure, § 266 (13th 

ed. 1990) (footnotes omitted). Thus, when the indictment in this 

case disjunctively alleged five different misdemeanor offenses to 

charge Markva's intent, the indictment was fatally defective. 

 To compound the error of not requiring the Commonwealth to 

elect one misdemeanor offense or charge conjunctively in the 

indictment, the jury was not required to elect among the various 

means of committing the offense. Indeed, we do not know which 

misdemeanor offense, if any, the jury found beyond a reasonable 

doubt that Markva intended to commit. In its verdict, the jury 

reported as follows: 

 We, the Jury, on the issue joined in the case 

of the Commonwealth of Virginia versus DAVID 

MARKVA, Defendant, find the Defendant, 

charged in the indictment, guilty of 

Attempted Statutory Burglary with the 

specific intent to: 

 X destroy property, and/or 

 X commit an unlawful entry, and/or 

 X for the purpose of stalking 

The verdict form clearly leaves in question the crime of which 

the jury convicted Markva of intending to commit. See State v. 

Mitchell, 7 S.E.2d 567, 572 (N.C. 1940). 

 The jury's finding can only mean that the jury had to 

speculate and was unable to determine which intent was proved. 

"Surmise and speculation as to the existence of the intent are 
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not sufficient, and 'no intent in law or mere legal presumption, 

differing from the intent in fact, can be allowed to supply the 

place of the latter.'" Taylor, 207 Va. at 334, 150 S.E.2d at 

141. See e.g., State v. Seymour, 502 N.W.2d 591, 594-95 (Wis. 

Ct. App. 1993), aff'd, 515 N.W.2d 874 (Wis. 1994) (prejudice 

occurs when the jury's verdict is stated in the disjunctive 

because the verdict does not satisfy the beyond-a-reasonabledoubt standard). Because the verdicts rendered by the jury were 

also in the disjunctive, they were inherently ambiguous. 

 For these reasons, I would reverse the conviction and vacate 

the indictment.