Ennоs Morris (appellant) was convicted in a jury trial of driving after having been adjudicated an habitual offender, in *666 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 thе evidence because the indictment alleged that he had been “adjudicated” an habitual offender, while the еvidence proved he had been “determined” an habitual offender. 1 For the following reasons, we affirm.
I.
Under familiar principles of appellаte 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,
On Jаnuary 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 Alеxandria, 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 “deter *667 mined” an habitual offender. The Commonwealth argued that, consistent with Code § 46.2-357, “the Defendant simply has 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 рrecluded 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 chаrged 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 variаnce between the indictment and the evidence presented at trial.
Code § 19.2-220 provides that:
The indictment or information shall be a plаin, 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.
(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
*668
the offense.’ ”
Sims v. Commonwealth,
“ ‘[T]he function of an indictment ... is to give an accused notice of the nature and character of the acсusations against him in order that he can adequately prepare to defend against his accuser.’ ”
Id.
(quoting
Willis v. Commonwealth,
In the instant case, appellant was charged with “unlawfully and feloniously drivpng] after having been adjudicated an Habitual Offender.” As required by Code § 19.2-220, thе indictment contained the following information: (1) appellant’s name; (2) a description of the offense chargеd; (3) the city in which the offense occurred; and (4) the date of the offense. In addition, the indictment clearly identified the stаtute under which appellant was charged, i.e., Code § 46.2-357(B)(2). Sig nificantly, in response to direct questioning by the trial judge, counsel could not identify any prejudice resulting from 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 cаse, is non-fatal. “A variance is fatal ... only when the proof is different from, and irrelevant to the crime defined in the indictmеnt and is, therefore, insufficient to prove the commission of the crime charged.”
Hawks v. Commonwealth,
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 proof required to convict appellant of that crime. The specific method by which аppellant had been deemed an habitual offender does not change the nature of the offense under Cоde § 46.2-357(B)(2). Thus, the allegation in the indictment that Morris had been “adjudicated” an habitual offender and proof that he had bеen “determined” such did not constitute a fatal variance between the accusation and the proof. Apрellant’s conviction is affirmed.
Affirmed.
Notes
. 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.