Present: All the Justices 

COMMONWEALTH OF VIRGINIA 

v. Record No. 022776 OPINION BY JUSTICE CYNTHIA D. KINSER 

 October 31, 2003 

RICHARD WAYNE NUCKLES 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The Commonwealth of Virginia challenges the judgment 

of the Court of Appeals of Virginia reversing the trial 

court’s conviction of Richard Wayne Nuckles (“Nuckles”) for 

grand larceny. The Court of Appeals held that the 

Commonwealth failed to prove that Breeden Mechanical, Inc. 

(“Breeden”), was a corporation, as alleged in the 

indictment. Nuckles v. Commonwealth, No. 2570-01-4 (Va. 

Ct. App. Nov. 5, 2002). Because we conclude that proof of 

Breeden’s corporate status was not necessary to identify 

Breeden as the victim of the larceny or to establish an 

element of the offense, and that the Commonwealth proved 

that Breeden owned the stolen property, we will reverse the 

judgment of the Court of Appeals and reinstate the 

defendant’s conviction. 

MATERIAL FACTS AND PROCEEDINGS 

 The indictment charging Nuckles with grand larceny 

alleged that 

[o]n or about November 8, 1998, in the County of 

Warren, Richard Wayne Nuckles 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, 1950, as 

amended. 

Nuckles was convicted in the Circuit Court of Warren County 

of the charged offense and sentenced to four years of 

incarceration, with one year suspended. 

 The evidence at trial showed that Nuckles worked for 

Breeden for approximately a month. Breeden performed 

plumbing services and hired Nuckles to work as a plumbing 

foreman. Breeden provided Nuckles with a “company truck,” 

equipped with all the supplies and tools needed to work on 

plumbing jobs, as Breeden does for anyone it hires as a 

plumbing foreman. The truck, with “Breeden Mechanical all 

over both sides,” belonged to Breeden and was “given” to 

Nuckles “to use on the job and drive back and forwards from 

home.” “Breeden Mechanical own[ed] the tools,” as well as 

the truck, according to the testimony of Nuckles’ 

supervisor. 

 Nuckles advised his supervisor on a Friday that he had 

not been at work all week because of his mother’s illness. 

Although Nuckles indicated that he would be at work on the 

next Monday, he never returned to work at Breeden. Soon 

thereafter, several Breeden employees, at the direction of 

Nuckles’ supervisor, went to Nuckles’ residence to retrieve 

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Breeden’s truck. When the truck was recovered, the 

“Breeden Mechanical” sign on the side of the truck could no 

longer be seen because it had “duct tape over it.” All the 

supplies and tools were missing from the truck. Nuckles’ 

supervisor testified that Nuckles did not have any 

authority to dispose of the tools. 

 Nuckles appealed his conviction to the Court of 

Appeals, contending that the evidence was not sufficient to 

prove that the owner of the stolen goods was a corporate 

entity as alleged in the indictment. The Court of Appeals 

agreed and reversed the trial court’s judgment. The Court 

of Appeals found that the term “Inc.” could not be 

dismissed as “surplusage” under Code § 19.2-226(9) “because 

it described, limited, and qualified that which was 

necessary to charge.” Nuckles, slip op. at 4. In 

conclusion, the Court of Appeals held that the Commonwealth 

failed “to prove beyond a reasonable doubt that appellant 

stole property belonging to Breeden Mechanical Inc.” Id. 

The Commonwealth appeals from the judgment of the Court of 

Appeals. 

ANALYSIS 

 The issue in this case is whether the Commonwealth had 

to prove the corporate status of the victim in this 

prosecution for larceny. The Commonwealth contends that 

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the Court of Appeals erred in holding that it was required 

to establish that Breeden was actually incorporated at the 

time of the offense. The Commonwealth argues that, once it 

proved that Breeden’s property was stolen, proof of 

Breeden’s corporate status was irrelevant. 

 In response, Nuckles asserts that the burden was on 

the Commonwealth to prove that corporate property was 

stolen and that it failed to do so. Because the entity 

alleged in the indictment was “Breeden Mechanical Inc.,” 

Nuckles argues that evidence of Breeden’s corporate status 

was required to sustain his conviction for larceny. In 

Nuckles’ words, “the Commonwealth was well aware that the 

‘victim’ in this case [w]as a corporation as evidenced by 

the indictment and simply tried to take a shortcut by 

having the superintendent testify to ownership.” 

 In Gardner v. Commonwealth, 262 Va. 18, 25, 546 S.E.2d 

686, 690 (2001), this Court vacated a defendant’s 

conviction and dismissed an indictment because a “fatal 

variance” existed between the indictment and the evidence. 

The defendant in that case was charged with obtaining 

United States currency by false pretenses in violation of 

Code § 18.2-178. Id. at 19, 546 S.E.2d at 686. Because 

the indictment alleged that the property belonged to George 

Gardner, the issue centered on whether the owner of the 

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currency was the bank account depositor, Gardner, or the 

bank from which the money was obtained. Id. at 19-20, 546 

S.E.2d at 687. We held that “when the Commonwealth alleged 

in the indictment that the money obtained by the defendant 

was the property of George Gardner but the evidence showed 

the money was the property of the bank, it proved a 

different offense, resulting in a fatal variance.” Id. at 

25, 546 S.E.2d at 690. 

 In an earlier analogous case, we held that a fatal 

variance existed between the allegation in an indictment 

charging a defendant with shooting into the residence of 

Edna Harper and the evidence showing that the defendant 

actually shot into the residence of Alberta Riddick. 

Etheridge v. Commonwealth, 210 Va. 328, 330, 171 S.E.2d 

190, 191-92 (1969). We stated that, while it was necessary 

for the Commonwealth to allege in the indictment that the 

defendant shot into an occupied dwelling house, the 

additional allegation that the dwelling house was that of 

Edna Harper “described, limited, and qualified that which 

was necessary to be alleged, and the added language [could 

not], therefore, be treated as surplusage.” Id., 171 

S.E.2d at 192; cf. Alston v. Commonwealth, 32 Va. App. 661, 

666, 529 S.E.2d 851, 854 (2000) (holding that, in an 

indictment for maliciously burning a dwelling house, an 

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allegation regarding ownership of the house was immaterial 

to the offense). 

 Our holding in both Gardner and Etheridge relied on 

the following principle: 

 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. 

Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368, 

374 (1925). As noted by the Commonwealth on brief, the 

unnecessary language found in the indictment in Mitchell, 

that the defendant made “a false and fraudulent entry in 

the ledger account of the accused with the bank,” described 

the manner in which the defendant committed the crime. Id.

at 553, 127 S.E. at 372. Thus, we held that, since “the 

Commonwealth elected to restrict the prosecution to a 

‘false and fraudulent’ entry,” it was “bound to sustain the 

allegation by proof.” Id. at 560, 127 S.E. at 374. 

Similarly, the words at issue in Gardner and Etheridge were 

not surplusage because they were descriptive of the offense 

charged, namely the identity of the victim, but the 

evidence pointed to a different victim, thus creating a 

fatal variance. 

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 Here, we agree with the observation of the Court of 

Appeals that the “term ‘Inc.’ has legal meaning and 

significance.” Nuckles, slip op. at 4. However, the 

significance of the term relates solely to the legal status 

of the victim and not to the identity of the victim or the 

manner in which the crime was committed as was the 

situation in Gardner and Etheridge, and in Mitchell, 

respectively. Proof that Breeden was incorporated at the 

time of the offense was not necessary to identify Breeden 

as the victim of this larceny, nor was Breeden’s corporate 

status an element of the offense. Inclusion of the term 

“Inc.” in Breeden’s name merely reflected the requirement 

found in Code § 13.1-630 that a corporate name shall 

include one of several listed words or abbreviations, the 

term “Inc.” being one of the options. 

 Furthermore, the evidence at trial established the 

identity of the victim in this case. Nuckles’ supervisor 

testified that Breeden owned the truck and the tools that 

had been supplied to Nuckles but were not returned by him. 

The identification of Breeden as the owner of the stolen 

property was not limited or qualified by its corporate 

status. Thus, we hold that the term “Inc.” was surplusage 

in this case. There was no fatal variance between the 

indictment and the proof at trial. 

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 For these reasons, we will reverse the judgment of the 

Court of Appeals and reinstate the defendant’s conviction. 

Reversed and final judgment. 

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