COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpa trick, Judge Benton and Senior Judge Overton Argued at Alex andria, Virginia

RICHARD WAYN E NUCKLES MEMORANDUM OPINION * BY v. Record No. 2570-01-4 JUDGE NELSON T. OVERTON NOVEMBER 5, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF WARREN COUNTY Dennis L. Hupp, Judge Michael V. Greenan for appellant. Stephen R. McCullou gh, Assistan t Attorney General (Jerry W. Kilgore, Atto rney General, on brief), for appellee.

Richard Wayne Nuck les, appellant, ap peals his felony conviction of gr and larceny, a violation of Code § 18.2 -95(ii). Appellant cont ends the evidence was not sufficient to prove the owner of the goods wa s a corporate entity as al leged in the indictment. We agree and, therefore, reverse the conviction.
BACKGROUND "On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). The indictment charged that "[o]n or about November 8, 1998, . . . [appellant] did unlawfully and feloniously take, steal, and carry away the goods and chattels of Breeden Mechanical Inc., in violation of Section 18.2-95 of the Code of Virginia . . . ." Donnie Knight testified that he worked for "Breeden Mechanical" for thirty-two years and supervised appellant. "Breeden Mechanical" employed appellant as a plumber and issued appellant a truck that was outfitted with tools, a toolbox, an acetylene rig, and a generator. When appellant left his employment, he failed to return the truck and equipment. "Breeden Mechanical" employees later retrieved the truck but the tools and equipment were gone. No evidence established whether "Breeden Mechanical" was a corporate entity, and Knight testified he was not a corporate officer.
ANALYSIS Appellant conten ds that because the in dictment specifically identified the owner of the property as "Breeden Mechanical Inc .," the Commonwealth was required to prove the corporat e status of the business entity. No evidence established that "Breeden Mechanical" was the corporation iden tified as the victim in the indictment.

- 2 -"'[T]he function of an indictment . . . is to give an accused notice of the na ture and characte r of the accusati ons against him in order that he can adequately prepare to defend against his

accuser.'" Griffin v. Commonwealth , 13 Va. App. 409, 411, 412 S.E.2d 709, 711 (199 1) (citation om itted). "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 defi nition of the offense as is sufficient to advise what offense is charged. Code § 19.2-220." Hairston v. Commonwealth , 2 Va. App. 211, 213-14, 343 S.E.2d 355, 357 (1 986). In a grand la rceny procee ding, the Commonwealth is also required to identify the owner of the property in the indictment. Code § 19.2-284. No indictment will be deemed invalid for the insertion of any other words or surplusage. Code § 19.2-226(9 ). Notice to the accused of the offense ch arged against him is the rockbed requirem ent which insure s the accused a fair and impartial tr ial on the merits and form the key to the fatal variance rule. Hairston , 2 Va. App. at 214, 343 S.E.2d at 357. "'If the unnecessary word or words inserted 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. The offense as charged must be proved.'" Etheridge v. Commonwealth , 210 Va. 328, 330, 171 S.E.2d 190, 192 (1969) (quoting Mitchell v. Commonwealth , 141 Va. 541, 560, 127 S.E. 368, 374 (1925)).

- 3 -Thus, when the indictment alleges one person owned the property and the proof established the property was owned by another person, a fatal variance results. Gardner v. Commonwealth , 262 Va. 18, 546 S.E.2d 686 (2001). The owner of the stolen property is legally essential to charge in the indictment. Hughes v. Commonwealth , 58 Va. (17 Gratt.) 565 (1867). The Commonwealth identified the owner as "Breeden Mechanical Inc." Use of the term "Inc." has legal meaning and significance. The Commonwealth either wrongly identified the entity as a corporation or it failed to prove that "Breeden Mechanical" was a corporation. In either case, the term "Inc." cannot be dismissed as surplusage because it described, limited, and qualified that which was necessary to charge. Thus, the Commonwealth failed to prove beyond a reasonable doubt that appellant stole property belonging to Breeden Mechanical Inc. Accordingly, for the above stated reasons, the judgment of the trial court is reversed and the indictment dismissed. Reversed and dismissed.

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