JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
2. To the extent that State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955), stands for the proposition that 'any' change to an indictment, whether it be form or substance, requires resubmission to the grand jury for its approval, it is hereby expressly modified. An indictment may be amended by the circuit court, provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment. Syllabus Point 2, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
3. A conviction based upon evidence that varies materially from the charge contained in the indictment cannot stand and must be reversed. Syllabus Point 3, State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979), overruled on other grounds by State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980).
4. An instruction which informs the jury that it can return a verdict of guilty of a crime charged in the indictment by finding that the defendant committed acts constituting a crime not charged in the indictment is reversible error. Syllabus Point 1, State v. Blankenship, 198 W.Va. 290, 480 S.E.2d 178 (1996).
5. Any substantial amendment, direct or indirect, of an indictment must be resubmitted to the grand jury. An 'amendment of form' which does not require resubmission of an indictment to the grand jury occurs when the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced. Syllabus Point 3, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
6. If the proof adduced at trial differs from the allegations in an indictment, it must be determined whether the difference is a variance or an actual or a constructive amendment to the indictment. If the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced, then the difference between the proof adduced at trial and the indictment is a variance which does not usurp the traditional safeguards of the grand jury. However, if the defendant is misled, is subjected to an added burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the indictment is an actual or a constructive amendment of the indictment which is reversible error. Syllabus Point 3, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996).
7. When a defendant is charged with a crime in an indictment, but the State convicts the defendant of a charge not included in the indictment, then per se error has occurred, and the conviction cannot stand and must be reversed.
Ketchum, Justice: (See footnote 1)
In this appeal from the Circuit Court of Wood County, defendant Jeff Corra was indicted and convicted of knowingly furnishing alcoholic liquors to persons under the age of 21 years in violation of W.Va. Code, 60-3-22a(b) . At trial, the State introduced evidence that the defendant furnished Coors Light beer to persons under the age of 21 years, and asserted that the furnishing of Coors Light was sufficient to convict the defendant of furnishing alcoholic liquors as alleged in the indictment. In addition, the circuit court instructed the jury that the defendant could be found guilty if he furnished beer to persons under the age of 21 years.
On appeal, the defendant argues that Coors Light is defined by statute as a nonintoxicating beer and that the indictment charging a crime under W.Va. Code, 60-3- 22a(b) requires that alcoholic liquor be furnished before he could be convicted of violating this statute. Essentially, the defendant asserts that the indictment charged him with the crime of furnishing alcoholic liquors, but the State convicted him of committing the different crime of furnishing nonintoxicating beer.
As set forth below, we reverse the defendant's conviction.
While Ashley socialized with her friends inside the defendant's home, the defendant, at times, tended to a brushfire in an area behind his house. Because the defendant was tending to the fire, he was not constantly in the home with Ashley and her guests.
Several of Ashley's friends admitted buying and bringing beer (Budweiser) and alcoholic liquor (Jagermeister) to the appellant's house, and consuming it on the premises. The State does not contend that the defendant furnished Budweiser or Jagermeister to the persons at the party. However, some of Ashley's friends drank Coors Light beer which the defendant had previously purchased and placed in his refrigerator. Although the defendant did not give Coors Light to anyone at the party, there was testimony that the defendant knew, but did nothing to stop his daughter's friends from taking his Coors Light from the refrigerator and drinking it.
In the early morning hours of August 6, 2006, four individuals under the age of 21 left the defendant's residence together in a vehicle. The vehicle _ driven by 20-year-old Courtney McDonough _ left the roadway and collided with a tree. Two occupants were killed and a third was seriously injured. (See footnote 2)
As a result of the investigation surrounding the car accident, the defendant was indicted on September 15, 2006 on nine counts of violating W.Va. Code, 60-3-22a(b)  (See footnote 3) , which prohibits knowingly furnishing alcoholic liquors to persons unrelated to the defendant who are under the age of 21. (See footnote 4) At trial, the circuit court instructed the jury that the defendant could be convicted under this indictment if he knowingly and intentionally furnished beer to a person under the age of 21 who was not related to the defendant by blood or marriage. A jury convicted the defendant on four of the nine counts.
During the trial the defendant neither moved to dismiss the indictment nor moved for a judgment of acquittal on the ground that the proof offered at trial permitted the jury to convict him of a different crime (furnishing nonintoxicating beer) than that for which he was indicted (furnishing alcoholic liquor). Instead, the defendant asserted for the first time in a motion for acquittal after trial that nonintoxicating beer is not included in the definition of alcoholic liquor. However, this motion did not assert that he was convicted of a crime not charged in the indictment or that there was insufficient evidence to prove that he furnished alcoholic liquor to persons under the age of 21 years.
In an order dated August 30, 2007, the circuit court denied the motion and sentenced the defendant to ten days incarceration for each of the four counts which were to be served consecutively and fined him $400.00.
The defendant now appeals his conviction.
When a defendant raises a sufficiency of the evidence argument, we follow the standard of review set forth in Syllabus Point 3 of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995):
A criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. Credibility determinations are for a jury and not an appellate court. Finally, a jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.
However, because this case implicates the West Virginia Constitution, our review of the issue raised in this case is plenary. See Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.). In accord, Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996) (observing that interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law). In addition, we have recognized that de novo review is applied when the sufficiency of an indictment is questioned. See Syllabus Point 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).
With these standards in mind, we proceed to determine whether sufficient
evidence was presented to convict the defendant of the charges for which he was indicted,
and whether the circuit court committed an error of constitutional dimensions by amending
the indictment returned by the grand jury.
The central theme of the trial was whether the defendant committed acts which could be considered as furnishing beer. However, the main issue should have been whether the defendant could be convicted under an indictment charging the furnishing of alcoholic liquor to persons under the age of 21 years when the State could only prove the furnishing of beer.
The indictment charged that the defendant violated a provision of Chapter 60 of the West Virginia Code, W.Va. Code, 60-3-22a(b), which prohibits a person from knowingly furnishing alcoholic liquors to persons under the age of 21 years. Specifically, W.Va. Code, 60-3-22a(b) states (with emphasis added):
Any person who shall knowingly buy for, give to or furnish to anyone under the age of twenty-one to whom they are not related by blood or marriage, any alcoholic liquors from whatever source, is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars or shall be imprisoned in the county jail for a period not to exceed ten days, or both such fine and imprisonment.
Chapter 60 has two definitions of alcoholic liquor that, read as a whole, are nearly identical. First, Chapter 60 briefly defines alcoholic liquor by making reference to nonintoxicating beer. W.Va. Code, 60-1-5  states:
For the purposes of this chapter: . . .
Nonintoxicating beer shall mean any beverage, obtained by the fermentation of barley, malt, hops, or similar products or substitute, and containing not more alcohol than that specified by section [three], article sixteen, chapter eleven. . . .
Alcoholic liquor shall include alcohol, beer, wine and spirits, and any liquid or solid capable of being used as a beverage, but shall not include nonintoxicating beer. . . .
As this statute makes clear (a) alcoholic liquor is not nonintoxicating beer, and (b) the alcohol content of nonintoxicating beer is set forth W.Va. Code, 11-16-3 .
Another part of Chapter 60 provides a similar definition of alcoholic liquor and nonintoxicating beer. W.Va. Code, 60-3-22 (a)  (See footnote 7) states that the meaning of the phrases alcoholic liquors and nonintoxicating beer are to be found by referring to the nonintoxicating beer chapter of the West Virginia Code, Chapter 11 _ specifically, W.Va. Code, 11-16-3. W.Va. Code, 11-16-3(5) states (with emphasis added):
Nonintoxicating beer shall mean all cereal malt beverages or products of the brewing industry commonly referred to as beer, lager beer, ale and all other mixtures and preparations produced by the brewing industry, including malt coolers and containing at least one half of one percent alcohol by volume, but not more than four and two-tenths percent of alcohol by weight, or six percent by volume, whichever is greater, all of which are hereby declared to be nonintoxicating and the word liquor as used in chapter sixty of this code shall not be construed to include or embrace nonintoxicating beer nor any of the beverages, products, mixtures or preparations included within this definition.This statute, too, makes it clear that the Legislature intended for nonintoxicating beer and liquor to be treated differently in Chapter 60 of the W.Va. Code, and makes it clear that alcoholic liquors have more alcohol content than nonintoxicating beers.
Reading these statutory definitions in light of the evidence produced at trial, it is clear that there is no evidence that the defendant made alcoholic liquors available to his daughter's underage guests. At oral argument before this Court, the State conceded that it failed to produce evidence that the Coors Light _ the only beverage that the defendant was alleged to have furnished to his daughter's under-aged guests _ had the alcohol content required to render it an alcoholic liquor.
Moreover, at oral argument the State confessed error, said the defendant was indicted under the wrong statute, and agreed that the defendant should have been indicted for furnishing nonintoxicating beer under a completely different statute, W.Va. Code, 11-16- 19(c) . (See footnote 8)
Nevertheless, the State argues that
any error in charging the defendant with
violating the wrong statute was waived, because defense counsel never raised this objection
before the jury returned its verdict. The State noted that defense counsel also had agreed in
the charge conference that beer was alcoholic liquor and told the circuit court that there was
no issue there. The State further asserts that the defendant invited error by telling the circuit
court that it was not necessary to instruct the jury on the definition of alcoholic liquor
because beer was alcohol. As previously noted, based upon bad information from both the
prosecutor and defense counsel, the trial judge instructed the jury that they could find the
defendant guilty if he knowingly furnished beer to the persons at the party. The State
therefore argues that the trial court's instructions were proper because they adequately
conveyed the essence of the crime.
The State argues that there are a litany of statutes dealing with furnishing alcohol to persons under the age of 21 throughout the West Virginia Code. (See footnote 9) It contends that the legislative intent for these statutes seeks to prevent the drinking of alcohol and the distribution of alcohol by and to individuals under the age of 21. The State insists that, in the context of legislative intent as a whole with respect to all of these Code sections, it would only be logical that non-intoxicating beer is encompassed within the charging statute, W.Va. Code, 60-3-22a(b).
However, this logic does not meet our notion of due process. Criminal statutes should be narrowly and strictly construed in favor of a defendant in order to conform to constitutional notions of due process. Fairness dictates that individuals be able to know, within reason, precisely what conduct is prescribed under a criminal statute. State v. Miller, 197 W.Va. 588, 599, 476 S.E.2d 535, 546 (1996).
The law in West Virginia requires that any substantial amendment to an indictment, direct or indirect, must be resubmitted to the grand jury. A direct amendment is one made by the trial judge and is permissible provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment. Syllabus Point 2, in part, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
When the evidence at trial differs from the allegations in the indictment, then a variance has occurred. It is only when the defendant is prejudiced by the variance that a reversal is required. United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996). However, not every variation between an indictment and proof at trial creates reversible error. State v. Johnson, 197 W.Va. 575, 581-82, 476 S.E.2d 522, 528-29 (1996).
On the one hand, many cases have recognized several types of variance that do not prejudice the defendant:
(1) When the variance or amendment of the indictment is one of form only. See, e.g., Syllabus Point 3, State v. Adams, supra (indictment could be changed to correct
name of owner of stolen goods).
(2) When the proof at trial merely narrowed the basis for conviction and did not broaden the charges beyond what was in the indictment. See, e.g., United States v. Miller, 471 U.S. 130 (1985) (conviction upheld when indictment alleged two methods by which defendant defrauded his insurer, but proof at trial showed only one of those two methods).
(3) Where the date of the crime in the indictment and the date proven that the crime actually occurred differs. See, e.g., Syllabus Point 4, State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972) (A variance in the pleading and the proof with regard to the time of the commission of a crime does not constitute prejudicial error where time is not of the essence of the crime charged).
(4) Typographical errors that do not affect the substance of the allegations in the indictment. See, e.g., United States v. Morrow, 925 F.2d 779 (4th Cir. 1991) (omission of the first digit in a seven digit serial number of the firearm set forth in the indictment did not result in a substantial amendment).
(5) When the proof at trial does not add anything new to the charges. See, e.g., United States v. Redd, 161 F.3d 793 (4th Cir. 1998) (indictment stating that defendant used a black revolver during bank robbery was not constructively amended when proof offered at trial indicated that he used silver revolver).
On the other hand, when either the evidence or the jury instructions, or both, vary materially and prejudicially from the charge contained in the indictment, there is a constructive amendment of the indictment and any conviction under the indictment cannot stand and must be reversed. As we held in Syllabus Point 3 of State v. Nicholson, 162 W.Va. 750, 252 S.E.2d 894 (1979):
A conviction based upon evidence that varies materially
from the charge contained in the indictment cannot stand and
must be reversed.
Similarly, as we said in Syllabus Point 1 of State v. Blankenship, 198 W.Va. 290, 480 S.E.2d 178 (1996):
An instruction which informs the jury that it can return a verdict of guilty of a crime charged in the indictment by finding that the defendant committed acts constituting a crime not charged in the indictment is reversible error.
See also, Syllabus Point 2, State v. Schoolcraft, 183 W.Va. 579, 396 S.E.2d 760 (1990) (Although an indictment may contain more than one charge, a defendant can be convicted only of those charges which were prosecuted at trial.). Any substantial amendment to the indictment must be resubmitted to the grand jury. Syllabus Point 3, in part, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995). In accord, Syllabus Point 2, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996).
Generally, there are two categories of constructive amendments (fatal variances), both of which constitute reversible error. They are:
(1) When the evidence produced at trial is different from the charges in the
indictment which allows the jury to convict the defendant of a crime for which he was not
indicted; see Syllabus Point 3, in part, State v. Johnson, supra, ([I]f the defendant is misled,
is subjected to an added burden of proof, or is otherwise prejudiced, the difference between
the proof at trial and the indictment is an actual or a constructive amendment of the
indictment which is reversible error.); and
(2) When a jury instruction allows the jury to convict the defendant of a crime for which he was not indicted. See Syllabus Point 1, State v. Blankenship, supra.
The difference between a harmless variance and a reversible constructive amendment (fatal variance) was said best by Justice McHugh in Syllabus Point 3 of State v. Johnson, supra:
If the proof adduced at trial differs from the allegations in an indictment, it must be determined whether the difference is a variance or an actual or a constructive amendment to the indictment. If the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced, then the difference between the proof adduced at trial and the indictment is a variance which does not usurp the traditional safeguards of the grand jury. However, if the defendant is misled, is subjected to an added burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the indictment is an actual or a constructive amendment of the indictment which is reversible error.
Whether the difference between the indictment and proof adduced at trial is merely a variance or whether the difference is an actual or a constructive amendment of the indictment will have to be determined on a case-by-case basis. State v. Johnson, 197 W.Va. at 582, 476 S.E.2d at 529.
There is no doubt that a substantial variation amounting to a constructive amendment of the indictment occurred in this case. The proof and the jury instructions both added new charges which are not minor discrepancies from the body of the indictment.
The State contends that the defendant waived any error regarding the constructive amendment and invited the circuit court to instruct the jury that beer was the same as alcoholic liquor. (See footnote 10)
We believe that, even if the record demonstrated that the defendant waived, forfeited or invited error, the jury verdict must be reversed. This is because . . .
. . . [o]ur decisions hold that a fundamental principle stemming
from Section 5 of Article III of the West Virginia Constitution is that a criminal defendant only can be convicted of a crime
charged in the indictment. Incident to this constitutional
guarantee is the longstanding principle of our criminal justice
system that charges contained in an indictment may not be
broadened through amendment, except by the grand jury itself.
State v. Miller, 197 W.Va. at 599-600, 476 S.E.2d at 546-47. When a defendant is convicted of charges not included in the indictment, an amendment has occurred which is per se reversible error. United States v. Fletcher, 74 F.3d at 53. In accord, United States v. Redd, 161 F.3d at 795.
We therefore hold that when a defendant is charged with a crime in an indictment, but the State convicts the defendant of a charge not included in the indictment, then per se error has occurred, and the conviction cannot stand and must be reversed. We wish to make clear, however, that under this holding a defendant may still be convicted of a crime that is a lesser-included offense of the primary offense _ the key is that the primary offense must be fully and plainly charged in the indictment, such that a defendant may be on notice to mount a defense to both the primary offenses and any lesser-included offense.
In the case at bar, the variation between the indictment and the evidence, along with the jury instruction, destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Stirone v. United States, 361 U.S. 212, 217-18 (1960) (citation omitted).
Therefore, we conclude that the defendant's conviction must be reversed.
Because there was insufficient evidence to convict the defendant of the charges for which
he was indicted, a retrial is prohibited. See, Syllabus Point 2, State v. Clayton, 173 W.Va.
414, 317 S.E.2d 499 (1984) (Our State and federal double jeopardy clauses prohibit retrial of a defendant on any charge for which he has received a judgment of acquittal or a court's determination that there was insufficient evidence to prove that charge at his first trial.).