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SLOAN v. COMMONWEALTH



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SLOAN

v.

COMMONWEALTH


APRIL 10, 2001

Record No. 1313-00-3

Present: Judges Bumgardner, Humphreys and Agee

Argued at Salem, Virginia

CLAUDE GENE SLOAN

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SCOTT COUNTY

Ford C. Quillen, Judge


OPINION BY JUDGE ROBERT J. HUMPHREYS

Max Jenkins (Jenkins & Jenkins, on brief),
for appellant.

Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for
appellee.

Claude Gene Sloan appeals his conviction, after
a jury trial, of two counts of arson, three counts of conspiracy
to commit arson, and one count of obstruction of justice. Sloan
contends the trial court erred in: 1) denying his motion to sever
the arson and conspiracy charges from the obstruction of justice
charge; 2) permitting the Commonwealth to submit evidence
pertaining to his activities involving marijuana; 3) permitting a
witness to testify that he encouraged the witness to grow
marijuana; and 4) permitting the Commonwealth to amend the
conspiracy indictments after the jury had returned a guilty
verdict. For the reasons that follow, we affirm the convictions.

I. Background

"On appeal, we review the evidence in the
light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom." Martin
v. Commonwealth
, 4 Va. App. 438, 443, 358 S.E.2d 415,
418 (1987). So viewed, the evidence presented at trial
established that Sloan hired Harold Michael Bledsoe to burn three
houses in early 1993. Several years later, in January, 1998,
while he was serving time in jail on unrelated convictions,
Bledsoe gave a statement to police investigators confessing to
setting the fires in 1993, and naming Sloan as being involved. In
his signed statement, Bledsoe claimed the reason Sloan wanted the
houses burned was "because he [did not] want anyone living
close to him finding his pot" or stealing from his "pot
patch."

Shortly thereafter, Bledsoe was released from
prison, and arson and conspiracy charges were brought against
Sloan.
[1] Bledsoe was subpoenaed to
testify. After Sloan learned about the statement Bledsoe had
given to police, Sloan offered Bledsoe approximately $500 not to
appear and testify.
[2] Bledsoe agreed. Sloan gave him
$100 and also had Bledsoe record a statement

denying Sloan’s involvement in the fires.
Later, on two separate occasions, Sloan and his son, Keith,
threatened to kill Bledsoe if he testified. In response, Bledsoe
told Sloan they would work something out.

Eventually, Bledsoe and Sloan met at Sloan’s
home and talked about the events that were happening. Sloan told
Bledsoe that he would have to stay at a trailer on Sloan’s
property, and if Bledsoe left, Sloan would kill him or "burn
[his] mom and them out." Bledsoe agreed and stayed on
Sloan’s property until he was apprehended by police on June 22,
1999. During that time, due to Bledsoe’s disappearance, the arson
and conspiracy charges against Sloan were withdrawn. However,
once Bledsoe was apprehended, the charges were re-filed along
with a new obstruction of justice charge.

Prior to trial, Sloan moved to sever the
obstruction of justice charge from the arson and conspiracy
charges. Sloan argued that "the intimidation of witnesses is
a separate event, and has nothing to do with the arson
charges." The trial court overruled the motion, finding a
sufficient relationship between the charges to warrant a single
trial.

During the trial, a substantial amount of
evidence was admitted concerning Sloan’s involvement with
marijuana. Sloan objected to the admission of testimony
concerning "stealing pot," as well as testimony that he
provided marijuana to Rickey Benton. Sloan also objected to the
testimony of Jeff McNew, who testified that Sloan encouraged him
to grow marijuana. Finally, Sloan objected to the admission of
Commonwealth’s Exhibits 23-39, including photos of drug
paraphernalia found in Sloan’s home, books pertaining to growing
marijuana, and notes containing police radio frequencies. The
trial court overruled each objection, finding that the evidence
was relevant to the issues in the case.
[3]

After the jury returned a verdict convicting
Sloan of two counts of arson, three counts of conspiracy and one
count of obstruction of justice, the Commonwealth moved to amend
the indictments for conspiracy. The conspiracy indictments each
read, in pertinent part, as follows:

did unlawfully and feloniously conspire,
confederate, or combine with another to commit arson, in
violation of Section 18.2-22 of the Code of Virginia Class 6
Felony

The Commonwealth argued that the indictments
contained a typographical error classifying the conspiracy
charges as Class 6 felonies, rather than Class 5 felonies. The
trial court granted the motion, finding that Sloan was not taken
by surprise by the amendment and that because the jury had not
seen the indictments and/or considered punishment, the
indictments could be properly amended. After sentencing, Sloan
made a motion to set aside the verdict that was also overruled.

II. Motion to Sever

On appeal, Sloan argues that the trial court
erred in failing to grant his motion to sever the obstruction of
justice charge from the arson and conspiracy charges, because
joinder "allowed [the Commonwealth] to introduce multiple
[m]arijuana offenses which would not normally be admissable [sic] in an [a]rson case." However, Sloan’s only argument to the
trial court concerned his theory that the intimidation and the
arsons were separate offenses. Accordingly, we do not address his
argument on appeal. See Buck v. Commonwealth, 247
Va. 449, 452-53, 443 S.E.2d 414, 416 (1994); see also
Rule 5A:18.

III. Drug Related Evidence

Sloan next argues that the trial court erred in
allowing the admission of evidence concerning his alleged
marijuana operation, as well as allowing the admission of
testimony from witness Jeff McNew that Sloan had encouraged McNew
to grow marijuana. Sloan argues that, because the arson charges
and the obstruction charge were tried together, the evidence
pertaining to marijuana "became admiss[i]ble" and the
prejudicial effect of this evidence outweighed the probative
value because "[t]here was no showing of any motive
connecting the [m]arijuana and drugs to the [a]rson and
[c]onspiracy to commit [a]rson." We disagree.
[4]

The general rule is well established that in a
criminal prosecution, proof which shows or tends to show that the
accused is guilty of the commission of other crimes and offenses
at other times, even though they are of the same nature as the
one charged in the indictment, is incompetent and inadmissible
for the purpose of showing the commission of the particular crime
charged . . . . However, the exceptions to the general rule are
equally as well established. Evidence of other offenses is
admitted if . . . it tends to prove any relevant element of the
offense charged. Such evidence is permissible in cases where the
motive, intent or knowledge of the accused is involved, or where
the evidence is connected with or leads up to the offense for
which the accused is on trial. Also, testimony of other crimes is
admissible where the other crimes constitute a part of the
general scheme of which the crime charged is a part.

Kirkpatrick v. Commonwealth, 211
Va. 269, 272, 176 S.E.2d 802, 805 (1970) (citations omitted).

The evidence presented at trial established
that at least part of Sloan’s motive for hiring Bledsoe to burn
the houses, and in aiding Bledsoe in burning them, was to prevent
others from moving into properties close to his own and
"finding his pot." Thus, we conclude it was necessary
and proper for the Commonwealth to show the extent of Sloan’s
activities involving his marijuana operation in order to prove
his motive and connection to the arsons. This evidence was
"so intimately connected and blended with the main facts
adduced in evidence, that [it could not] be departed from with
propriety; and there is no reason why the criminality of such
intimate and connected circumstances, should exclude [such
evidence], more than other facts apparently innocent." Id.
at 273, 176 S.E.2d at 806.

IV. Correction of the
Indictments

Sloan finally argues that the trial court erred
in allowing the Commonwealth to amend the conspiracy indictments
after the jury had returned its verdict. We have not previously
addressed this issue.

"The 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." Morris v. Commonwealth,
33 Va. App. 664, 668, 536 S.E.2d 458, 460 (2000) (citations
omitted). Thus, Code ? 19.2-220 requires the following:

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 use the name given to the offense by the common
law, or 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.

Although it is fundamental that when a statute
contains more than one grade of offense carrying different
punishments, "the indictment must contain an assertion of
the facts essential to the punishment sought to be imposed,"
Code ? 19.2-220 does not require an indictment to
affirmatively set forth the punishment for the offense. Moore
v. Commonwealth
, 27 Va. App. 192, 198, 497 S.E.2d 908,
910 (1998).

Here, the indictments clearly placed Sloan on
notice of the nature and character of the accusations against
him, as well as the facts essential to punishment. They also
listed the code section under which punishment was sought. That
code section, Code ? 18.2-22, specifically provides that
the offense is punished as a Class 5 felony, under the
circumstances for which Sloan was charged. Thus, any reference in
the indictment to the punishment for the offense was mere
surplusage and did not render the indictment invalid. See
Code ? 19.2-226(9); see also Black v.
Commonwealth
, 223 Va. 277, 281-82, 288 S.E.2d 449, 451 (1982)
(additional unnecessary language included in the indictment which
is surplusage does not invalidate the indictment).

We reject Sloan’s argument that Code
? 19.2-231 bars the modification of the indictments. It is
true that Code ? 19.2-231 provides for amendment of an
indictment "[i]f there be any defect in form . . ., or if
there shall appear any variance between the allegations therein
and the evidence offered in proof . . . at any time before the
jury returns a verdict . . . ." There was no defect in form
in the conspiracy indictments here, nor was there any variance
between the allegations listed and the evidence offered at trial.
The indictments contained the necessary language to put Sloan on
notice of the nature and character of the accusations against
him, as well as the facts essential to punishment. The fact that
the indictments contained surplus language, and were subject to a
technical correction, did not render them defective and in need
of a substantive amendment to sustain their validity. We
therefore find the court’s action to be in the nature of a
correction to remove incorrect or misleading surplusage rather
than a substantive amendment subject to Code ? 19.2-231.

Furthermore, Sloan has failed to establish that
he was prejudiced either by the alleged error or by the court’s
action in correcting it. Accordingly, even if we were to assume
that the trial court erred in permitting the post-verdict
corrections, any such error would have been harmless.

Affirmed.

FOOTNOTES:

[1] Sloan was charged with the arson
of unoccupied dwelling houses, in violation of Code
? 18.2-77.

[2] Apparently, there were unrelated
charges also pending against Sloan and his son, Keith Sloan, in a
neighboring jurisdiction. Sloan was offering to pay Bledsoe not
to testify during those proceedings as well.

[3] Sloan also moved for a mistrial
in conjunction with several of these objections. These motions
were likewise overruled.

[4] During the trial, Sloan
failed to object to admission of most of the evidence he now
disputes until after it had already been admitted and heard by
the jury.

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