Rawls v. Com.

Present: All the Justices

JARRIT M. RAWLS
OPINION BY
v. Record No. 052128 JUSTICE LAWRENCE L. KOONTZ, JR.
September 15, 2006
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Jarrit M. Rawls was convicted by a jury in the Circuit Court

of Rockingham County of possession of a firearm by a convicted

felon in violation of Code § 18.2-308.2. In an unpublished per

curiam opinion, the Court of Appeals denied Rawls’ petition for

appeal. Rawls v. Commonwealth, Record No. 2049-04-3 (May 13,

2005). We awarded Rawls this appeal in which he challenges (1)

the validity of his waiver of indictment, (2) the Commonwealth’s

amendment of the arrest warrant upon which the case was tried,

(3) the sufficiency of the evidence to support his conviction,

and (4) the denial of his motion for a mistrial upon the jury

rendering an initial verdict for twice the mandatory sentence

before rendering a verdict for the mandatory sentence after

further deliberation. For the reasons set forth below, we will

affirm the judgment of the Court of Appeals.

BACKGROUND

On September 25, 2003 police officers went to Rawls’

residence to execute a warrant for his arrest for violating the

terms of his probation imposed from a prior criminal conviction.

The officers located Rawls in an upstairs bedroom and, following

1
a search of the bedroom, found a .22 caliber handgun between the

mattress and box spring of the bed in that room. Subsequently, a

warrant was issued charging Rawls with possession of a firearm by

a felon in violation of Code § 18.2-308.2 and further describing

the charge against Rawls as possession of a firearm “after having

been convicted of a felony not defined in § 17.1-805.”1

Rawls waived his right to a preliminary hearing and filed a

motion to waive indictment. At two hearings held thereafter

Rawls stated to the trial court his intention to waive indictment

and proceed to trial upon the warrant. However, Rawls did not

sign a written waiver of indictment in the presence of the trial

court as required by Code § 19.2-217.

On the morning of trial, the Commonwealth moved to amend the

allegation in the warrant from possession of a firearm after

conviction of a felony “not defined in [Code] § 17.1-805” to

possession of a firearm after conviction of a felony “as defined

in [Code] § 17.1-805.” (Emphasis added.) Under the proposed

amendment, the reference to Code § 18.2-308.2 remained the same.

The Commonwealth contended that the amendment was permissible

because Rawls had notice of the charge against him and because

the amendment would affect only the available punishment, not the

1
Among other felony convictions, Rawls previously had been
convicted for breaking and entering in violation of Code § 18.2-
91. Code § 17.1-805 deems certain felonies to be “violent felony
offenses,” the conviction of which subjects the defendant to
enhanced punishment. A violation of Code § 18.2-91 is one of
those felonies.

2
substantive charge. Rawls objected, asserting that since he

waived indictment on the original warrant, the case should

proceed to trial on the allegations as stated in that warrant.

The trial court granted the Commonwealth’s motion to amend

the warrant, ruling that the amendment was permissible because

the charged offense, possession of a firearm after conviction of

a felony, remained the same between the original and amended

warrant. The trial court then offered Rawls a continuance.

Rawls declined, and the trial proceeded that day as scheduled.

The following evidence was adduced at trial, which was

bifurcated into guilt and penalty phases. We will recite the

evidence in the light most favorable to the Commonwealth, the

prevailing party at trial. Coles v. Commonwealth, 270 Va. 585,

587, 621 S.E.2d 109, 110 (2005); Dixon v. Commonwealth, 270 Va.

34, 37, 613 S.E.2d 398, 399 (2005).

Rawls resided in a four bedroom rental home along with four

male roommates. When police officers arrived at this home, they

were admitted entry by a man who was in the downstairs living

room with two other men. Upon being asked for Rawls, the men

directed the officers to a bedroom at the top of the stairs on

the second floor.2 The door to the bedroom was closed. When the

officers knocked on the door, Rawls opened it. The officers

noted that Rawls was alone in the bedroom, and that Rawls’

2
An officer testified that there were two more men, in
addition to Rawls, on the second floor.

3
appearance and clothing suggested that he had been sleeping. The

officers advised Rawls of the warrant for his arrest for a

violation of his probation. Immediately, Rawls blurted out that

the bedroom was not his, and that it belonged to his roommate.

Rawls proceeded to dress by selecting an outfit from various

articles of clothing that were scattered about the room,

including a pair of size ten shoes. Rawls also gathered two or

three pairs of socks to take with him. One of the officers

escorted Rawls from the house and transported him to the

Rockingham County Sheriff’s Office.

The remaining officers proceeded to search the bedroom. At

the head of the bed, between the mattress and box spring, the

officers found a loaded .22 caliber handgun in a holster.

The bedroom also contained several pairs of size ten shoes,

but no shoes of any other size. Male clothing was strewn

throughout the bedroom, but no female clothing was found. In a

shoebox, the officers found a pay stub and a Virginia

identification card both bearing Rawls’ name. Various other

papers bearing Rawls’ name were found in another part of the

room. No items were found bearing any other person’s name.

4
 In response to subsequent questioning by the police, Rawls

maintained that the bedroom belonged to a person named “Softy” or

“Maurice.” With regard to his own use of the room, Rawls

maintained that he kept personal belongings in the room but did

not stay there. He admitted that his shoe size was ten.

After the Commonwealth presented its case, Rawls introduced

evidence to establish that numerous individuals had access to the

bedroom. Generally, the testimony of Rawls’ witnesses indicated

that although the bedroom belonged to Rawls, the roommates and

their friends occasionally used the bedroom to watch television

or to sleep. According to the roommates, the front door and

bedroom doors of the home were always unlocked.

After deliberation, the jury returned a verdict finding

Rawls guilty of the offense charged in the amended warrant.

Proceeding to the penalty phase, the trial court instructed the

jury that the mandatory punishment was imprisonment for five

years.3 Nevertheless, the jury rendered a verdict for a ten-year

sentence. Rawls moved for a mistrial. The trial court denied

the motion and explained the instructions to the jury. Upon

further deliberation, the jury rendered a verdict for the

mandatory sentence of imprisonment for five years.

3
The jury instructions also included an instruction which
stated, in part, that “[h]aving found the defendant guilty, you
should impose such punishment as you feel is just under the
evidence.”

5
 Rawls filed a post-trial motion to set aside the verdict.

In support of this motion, Rawls first argued that his waiver of

indictment was invalid because he had not signed it as required

by Code § 19.2-217.4 Rawls also contended that the trial court

erred in permitting the Commonwealth to amend the warrant. Rawls

asserted that if his waiver of indictment was valid, then that

waiver was limited to the original warrant and did not apply to

the amended warrant. Rawls further contended that the evidence

was insufficient to prove his possession of the firearm.

Finally, Rawls contended that the jury’s initial rendering of a

verdict for a ten-year sentence, after being instructed that five

years was the mandatory sentence, required the declaration of a

mistrial.

The trial court held a hearing and overruled Rawls’ motion

to set aside the verdict, rejecting all of Rawls’ contentions

except his challenge to the validity of his waiver of indictment.

Thereafter, in a letter opinion dated May 28, 2004, the trial

court denied the motion as to Rawls’ challenge to the validity of

the waiver of indictment, ruling that while the waiver of

indictment did not comply with the statutory requirements of Code

§ 19.2-217, Rawls waived his objection when he failed to object

4
Code § 19.2-217 provides, in relevant part, that a waiver
of indictment must be in “writing signed by such person before
the court having jurisdiction to try such felony or before the
judge of such court.”

6
until after the trial.5 Subsequently, the trial court sentenced

Rawls to a term of imprisonment of five years in accord with the

jury’s verdict.

Rawls filed a petition to the Court of Appeals, asserting

the same contentions he previously made in the trial court in his

motion to set aside the verdict. The Court of Appeals denied the

petition.6 The Court of Appeals determined that Rawls was barred

from challenging the validity of the waiver of indictment by

failing to raise the issue until after the jury returned its

verdict.7 The Court of Appeals also concluded that the trial

court did not err in allowing the Commonwealth to amend the

original warrant because the amendment affected only the

available punishment, not the “nature and character” of the

charged offense. Additionally, the Court of Appeals held that

the evidence was sufficient to support Rawls’ conviction and that

the trial court did not err in refusing to declare a mistrial

after the jury initially returned a verdict for a ten-year

5
Rule 3A:9(b)(2) provides: “any defense or objection that
is capable of determination without the trial of the general
issue may be raised by motion before trial. Failure to present
any such defense or objection before the jury returns a verdict
or the court finds the defendant guilty shall constitute a waiver
thereof.”
6
Rawls exercised his right to have his petition reviewed by
a three-judge panel, which refused the petition for the reasons
stated in the May 13, 2005 per curiam opinion.
7
The Court of Appeals based its determination on its Rule
5A:18, which states that “[n]o ruling of the trial court . . .
will be considered as a basis for reversal unless the objection
was stated together with the grounds therefor at the time of the
ruling, except for good cause shown or to enable the Court of

7
sentence rather than the mandatory five-year sentence. This

appeal followed.

DISCUSSION

We will address each of Rawls’ four assignments of error in

order. Rawls’ first assignment of error states that “[t]he Court

of Appeals erred when it ruled that the trial court was not

clearly erroneous in proceeding with a trial under a waiver of

indictment that failed to comport with the statutory requirements

of Virginia Code § 19.2-217.”

The requirement that the defendant be indicted is “not

jurisdictional and constitutionally imposed but is only statutory

and procedural.” See Triplett v. Commonwealth, 212 Va. 649, 650,

186 S.E.2d 16, 17 (1972). Thus, it may be waived by the

defendant. But, when a defendant insists upon his statutory

right to an indictment, “the failure of the trial court to adhere

to [that] procedural requirement[] is reversible error.” Id. at

651, 186 S.E.2d at 17. Here, however, Rawls’ assignment of error

does not address the determination by both the trial court and

the Court of Appeals that he did not timely raise his challenge

to the apparent defect in his waiver of indictment because he did

not do so until the conclusion of the trial by way of his motion

to set aside the jury verdict. As framed, Rawls’ assignment of

error does not relate to the procedural determinations of the

trial court and the Court of Appeals. Accordingly, we will not

Appeals to attain the ends of justice.”

8
consider the merits of his first assignment of error. Rule

5:17(c).

In his second assignment of error, Rawls challenges the

determination of the Court of Appeals that the trial court did

not err in allowing the Commonwealth to amend the warrant from

charging, under Code § 18.2-308.2, possession of a firearm after

conviction of a felony “not defined in [Code] § 17.1-805” to

possession of a firearm after conviction of a felony “as defined

in [Code] § 17.1-805.” Specifically, Rawls contends that if his

waiver of indictment was valid then the Commonwealth was required

to try him on the original warrant or, if the warrant was

amended, then the Commonwealth was required to obtain an

indictment on the amended warrant. The Commonwealth responds

that Rawls’ waiver of indictment on the original warrant did not

limit the authority of the trial court to permit amendment of

that warrant, “because it did not change the nature of the

charge” against Rawls. We agree with the Commonwealth.

No authority supports the proposition implicitly asserted by

Rawls that a defendant, by waiving indictment, can preclude the

subsequent amendment of a warrant. To the contrary, trial courts

have substantial discretion to amend warrants. See Code § 16.1-

137 (trial court may, sua sponte or upon motion of a party,

“amend the form of the warrant in any respect in which it appears

defective”); see also Robinson v. Commonwealth, 206 Va. 766, 769,

146 S.E.2d 197, 200 (1966); Malouf v. City of Roanoke, 177 Va.

9
846, 853, 13 S.E.2d 319, 321 (1941). Furthermore, the rules

governing amendment of warrants and indictments should be

liberally construed to avoid unnecessary delay by permitting

amendment rather than requiring additional proceedings. See

Powell v. Commonwealth, 261 Va. 512, 533, 552 S.E.2d 344, 356

(2001); Sullivan v. Commonwealth, 157 Va. 867, 876-77, 161 S.E.

297, 300 (1931). Additionally, the defendant is protected

against any unfairness that may result from amendment of a

warrant or indictment because the defendant is entitled to a

continuance upon a showing that such amendment operated as a

surprise. See Code § 16.1-137; see also Code § 19.2-231. Guided

by these principles, we hold that a defendant’s waiver of

indictment does not preclude the amendment of the warrant upon

which the defendant is tried. Rather, the permissibility of an

amendment to the warrant in that circumstance is governed by the

same standards as for an amendment of an indictment.

The Court of Appeals determined that the defendant may be

tried on an amended warrant so long as the amendment does not

change the nature or character of the offense charged in the

original warrant. The Code does not specify that the “nature or

character” test is the standard for determining whether an

amendment to a warrant is proper. The nature and character of

the offense test, however, is set forth in Code § 19.2-231

governing amendment of indictments. Code § 19.2-231 provides:

10
 If there be any defect in form in any indictment,
presentment or information, or if there shall appear to
be any variance between the allegations therein and the
evidence offered in proof thereof, the court may permit
amendment of such indictment, presentment or
information, at any time before the jury returns a
verdict or the court finds the accused guilty or not
guilty, provided the amendment does not change the
nature or character of the offense charged. After any
such amendment the accused shall be arraigned on the
indictment, presentment or information as amended, and
shall be allowed to plead anew thereto, if he so
desires, and the trial shall proceed as if no amendment
had been made; but if the court finds that such
amendment operates as a surprise to the accused, he
shall be entitled, upon request, to a continuance of
the case for a reasonable time.

(Emphasis added.)

While we recognize that the requirements for warrants and

indictments are not identical, the two are similar in that both

must describe the offense of which the defendant is charged. See

Rule 3A:4; Rule 3A:6(a) (formerly Rule 3A:7(a)); Code § 19.2-72,

Greenwalt v. Commonwealth, 224 Va. 498, 501, 297 S.E.2d 709, 710-

11 (1982). We have held with regard to both warrants and

indictments that the allegations therein must be sufficient to

notify the accused of the nature and character of the offense

charged. Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d

411, 413 (1976); Greenwalt, 224 Va. at 501, 297 Va. at 711. The

limitation on amendment to indictments in Code § 19.2-231 to

amendments that do not change the nature or character of the

offense is clearly intended to protect the defendant from being

deprived of notice of the offense charged. Since a warrant

serves the same purpose of notifying the defendant of the nature

11
and character of the charged offense, it follows that the same

test should apply to amendment of the warrant upon which the case

against the defendant proceeds. Thus, the Court of Appeals was

correct to apply the nature or character test in determining the

permissibility of the amendment to the warrant in this case.

Accordingly, we turn now to consider whether the Court of Appeals

erred in concluding that the amendment to the warrant in this

case did not change the nature or character of the offense

charged.

Initially, we note that the original warrant would have been

sufficient to notify Rawls of the nature and character of the

offense charged even if it had omitted any reference to Code

§ 17.1-805 because it clearly described Rawls’ unlawful conduct

as possession of a firearm by a convicted felon, identified Code

§ 18.2-308.2 as the statute proscribing that conduct, and

included all other information required by statute. See Code

§ 19.2-72. Notwithstanding that the reference to Code § 17.1-805

in the warrant was unnecessary, its inclusion requires our

consideration whether the amendment changing the prior felony

from one “not defined in [Code] § 17.1-805” to one “as defined in

[Code] § 17.1-805” changed the nature or character of the offense

of possession of a firearm by a convicted felon as that offense

is defined in Code § 18.2-308.2. The statutory scheme contained

in the statute guides our analysis.

Code § 18.2-308.2(A) provides, in relevant part, that:

12
 It shall be unlawful for (i) any person who has
been convicted of a felony . . . to knowingly and
intentionally possess . . . any firearm . . . . Any
person who violates this section shall be guilty of a
Class 6 felony. However, any person who violates this
section by knowingly and intentionally possessing . . .
any firearm and who was previously convicted of a
violent felony as defined in § 17.1-805 shall be
sentenced to a mandatory minimum term of imprisonment
of five years. Any person who violates this section by
knowingly and intentionally possessing . . . any
firearm and who was previously convicted of any other
felony within the prior 10 years shall be sentenced to
a mandatory minimum term of imprisonment of two years.8

Code § 18.2-308.2(A) defines as a Class 6 felony the

possession of a firearm by any person who previously has been

convicted of a felony.9 Beyond question, the defendant’s

possession of a firearm and the fact that the defendant is a

convicted felon are essential elements of the offense created by

this statute and, thus, must be proven by the Commonwealth beyond

a reasonable doubt. See Powers v. Commonwealth, 211 Va. 386,

388, 177 S.E.2d 628, 629 (1970). With regard to the

Commonwealth’s burden to prove that the defendant is a convicted

felon, that burden is satisfied upon proof that the defendant

previously has been convicted of any felony because Code § 18.2-

8
Absent mandatory minimum sentences such as those contained
in Code § 18.2-308.2, Class 6 felonies are generally punishable
by no less than one and no more than five years imprisonment.
Code § 18.2-10.
9
Code § 18.2-308.2 also applies to juveniles committing
certain offenses that would be classified as felonies if
committed by an adult. These provisions are not implicated in
this case.

13
308.2(A) applies with blanket effect to persons previously

convicted of any felony.

For purposes of determining the sentence to be imposed upon

the defendant who violates Code § 18.2-308.2(A), however, this

statute makes a significant distinction between a prior

conviction of “any other” felony and a prior conviction of a

felony specifically designated as a “violent felony” under Code

§ 17.1-805. Under the statutory scheme set forth in Code § 18.2-

308.2(A), when it is established that the defendant was

previously convicted of such a violent felony, the mandatory

minimum sentence is a term of imprisonment of five years. Since

a violation of Code § 18.2-308.2(A) is a Class 6 felony

punishable under Code § 18.2-10 by a term of imprisonment between

one and five years, the mandatory minimum sentence for a

defendant convicted of possession of a firearm after a previous

violent felony conviction equals the statutory maximum sentence.

Conversely, in cases involving a prior conviction of any other

felony, the mandatory minimum sentence is a term of imprisonment

of two years under Code § 18.2-308.2(A). Thus, under this

statutory scheme, a defendant who was previously convicted of any

felony other than one designated as a violent felony under Code

§ 17.1-805 is subject to a sentence of a term of imprisonment of

two years (the mandatory minimum) to five years (the maximum).

Undoubtedly, under this statutory scheme the Commonwealth is

required to prove beyond a reasonable doubt that the defendant

14
was previously convicted of a violent felony, designated as such

under Code § 17.1-805, in order to establish that the defendant

is subject to the five-year mandatory minimum sentence to be

imposed under Code § 18.2-308.2(A). Cf. Washington v.

Commonwealth, 272 Va. ___, ___, ___ S.E.2d ___, ___ (decided

today) (proof of a defendant’s prior predicate convictions

admissible during guilt phase of trial to establish liability for

enhanced punishment). Absent such proof, the defendant is

subject to imprisonment for a term of between two years and five

years. While proof of the defendant’s prior felony conviction is

an essential element of the substantive offense under Code

§ 18.2-308.2(A), the nature of that prior felony conviction is

not. Under the plain language of Code § 18.2-308.2(A), a

violation of that statute is complete upon possession of a

firearm by any person previously convicted of any felony. Proof

that the prior felony conviction was for a “violent felony” as

designated under Code § 17.1-805 invokes the applicability of the

enhanced punishment provision in Code § 18.2-308.2(A).

In the context of determining whether an amendment to a

warrant so as to subject the defendant to the possibility of the

greater mandatory minimum sentence under Code § 18.2-308(A)(2)

constitutes a change in the “nature or character” of the charged

offense, we are of opinion that such an amendment impacts only

the degree of the authorized punishment. With regard to

amendment of indictments, we have stated “the bare fact that the

15
amendment allowed authorizes a greater punishment than that

authorized for the offense charged in the original indictment

does not of itself change the character of the offense charged.”

Sullivan, 157 Va. at 877, 161 S.E. at 300. We find the same

reasoning to apply in the context of amendment to warrants.

Therefore, an amendment to a warrant charging an accused with

possession of a firearm after conviction of a felony that merely

changes whether the prior felony was or was not a violent felony

under Code § 17.1-805 does not impermissibly change the nature or

character of the offense charged.

Here, the original warrant clearly provided that the charged

offense was possession of a firearm by a convicted felon under

Code § 18.2-308.2(A), and the amendment merely changed the

warrant to charge that Rawls' prior felony was a violent felony

as defined by Code § 17.2-805. Accordingly, since the amendment

did not change the nature or character of the offense charged, we

hold that the Court of Appeals correctly determined that the

trial court did not err in allowing the trial to proceed on the

amended warrant.10

In his third assignment of error, Rawls contends that the

Commonwealth’s evidence was insufficient to support his

conviction under Code § 18.2-308.2(A). Under well-established

10
Rawls does not claim that he was prejudiced in his
defense due to any surprise caused by the amendment and, thus, we
do not address the issue. In any case, Code § 19.2-231 states
that the remedy for such surprise is a continuance. Here, the

16
principles, when determining the sufficiency of the evidence to

support a conviction we review the evidence in the light most

favorable to the Commonwealth, the prevailing party at trial.

Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539

(2003). We will reverse a trial court’s ruling upholding a

jury’s verdict only when the ruling is plainly wrong or without

evidence to support it. Code § 8.01-680; Viney v. Commonwealth,

269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).

Rawls does not dispute that he was previously convicted of a

“violent felony,” and challenges only the sufficiency of the

evidence to prove beyond a reasonable doubt that he possessed the

firearm in question. A conviction for the unlawful possession of

a firearm can be supported exclusively by evidence of

constructive possession. Evidence of actual possession is not

necessary. Walton v. Commonwealth, 255 Va. 422, 425-26, 497

S.E.2d 869, 871 (1998). To establish constructive possession of

the firearm by the defendant, the Commonwealth must present

evidence of acts, statements, or conduct by the defendant or

other facts and circumstances proving that the defendant was

aware of the presence and character of the firearm and that the

firearm was subject to his dominion and control. Id.; Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986);

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740

(1984); Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d

trial court offered Rawls a continuance, but he declined.

17
812, 814 (1975). While the Commonwealth does not meet its burden

of proof simply by showing the defendant’s proximity to the

firearm or ownership or occupancy of the premises where the

firearm is found, these are circumstances probative of possession

and may be considered as factors in determining whether the

defendant possessed the firearm. Walton, 255 Va. at 426, 497

S.E.2d at 871-72; Garland v. Commonwealth, 225 Va. 182, 184, 300

S.E.2d 783, 784 (1983); Lane v. Commonwealth, 223 Va. 713, 716,

292 S.E.2d 358, 360 (1982). Furthermore, the Commonwealth does

not have to prove that possession was exclusive. See Eckhart v.

Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981);

Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06

(1970).

The evidence showed that when police arrived at his

residence, Rawls was alone in the bedroom in which the firearm

was found. The bedroom door was closed, and Rawls appeared to

have been sleeping on the mattress under which the firearm was

found. The bedroom contained Rawls’ clothes and personal

effects; no other person’s belongings were found in the room.

Furthermore, Rawls’ roommates testified that the bedroom belonged

to Rawls. These facts clearly demonstrate that the firearm was

within Rawls’ dominion and control and are probative of his

awareness of the presence of the firearm in the room.

Rawls’ conduct when confronted by police further suggests

his possession of the firearm. When police told Rawls they were

18
there to serve him with an arrest warrant for a probation

violation, Rawls immediately disclaimed ownership of the room.

Based on the substantial evidence that the room in fact did

belong to Rawls, the jury could have concluded that Rawls was

lying to conceal his guilt. See Covil v. Commonwealth, 268 Va.

692, 696, 604 S.E.2d 79, 82 (2004). This is precisely the kind

of act, statement, or conduct that tends to prove the defendant’s

knowledge of the presence and character of contraband. See Lane,

223 Va. at 716-17, 292 S.E.2d at 360.

Rawls contends that his roommates’ testimony showed that

other individuals had unrestricted access to the bedroom and,

thus, increased the likelihood that someone other than Rawls put

the firearm under the mattress. However, even assuming that the

jury believed that other individuals had access to Rawls’ room,

such access is only a single factor to be considered among all of

the circumstances. The Commonwealth was not required to prove

that Rawls had exclusive access to the bedroom. Rather, by

demonstrating Rawls’ presence in his own bedroom and the presence

of the firearm at the time, along with the other circumstances

suggesting his possession of the firearm, the Commonwealth’s

evidence was sufficient to support the jury’s conclusion that

Rawls possessed the firearm.

For these reasons, we hold that the evidence was sufficient

to establish that Rawls possessed the firearm. Since Rawls does

not dispute that he was previously convicted of a violent felony,

19
we further hold that the jury verdict convicting Rawls of

possession of a firearm by a convicted felon under Code § 18.2-

308.2(A) as charged in the amended warrant was not plainly wrong

or without evidence to support it.

In his fourth assignment of error, Rawls contends that the

trial court erred by refusing to declare a mistrial when the jury

initially returned a verdict for a ten-year sentence despite

being instructed that the mandatory sentence was five years.

Rawls claims that the initial verdict for a sentence that was

twice the maximum permissible sentence demonstrated the jury’s

prejudice and inability to follow the court’s instructions. We

disagree.

As the Court of Appeals noted, generally when the trial

court imposes a sentence that does not exceed the maximum

sentence allowed by statute, the sentence will not be overturned

on appeal as an abuse of discretion. Williams v. Commonwealth,

270 Va. 580, 584, 621 S.E.2d 98, 100 (2005), Abdo v.

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977).

Here, although the jury initially returned a verdict for a ten-

year sentence, the trial court ultimately imposed the mandatory

five-year sentence in accord with the jury’s subsequent verdict.

Since this sentence was not only permitted, but required by

statute, there was no abuse of discretion.

Furthermore, we find no support in the record for the

assertion that the jury’s initial rendering of a verdict for a

20
ten-year sentence demonstrated that the jury was prejudiced or

unable to follow instructions. While we cannot determine the

reason for the jury’s apparent misunderstanding of the

instructions regarding the mandatory sentence, there is simply no

evidence that it was anything other than an isolated mistake.11

Under the circumstances, we hold that the Court of Appeals’

conclusion that the trial court did not err in refusing to grant

a mistrial was correct.

CONCLUSION

For these reasons, we will affirm the judgment of the Court

of Appeals denying Rawls’ petition for appeal.

Affirmed.

11
The trial court stated that the jury may have
misinterpreted a jury instruction stating, in part, that “you
should impose such punishment as you feel is just under the
evidence” as giving it discretion in imposing a sentence. We do
not adopt or reject this conclusion, but note that it does, if
true, provide a plausible explanation for the jury’s confusion.

21