COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
CLAUDE GENE SLOAN
OPINION BY
v. Record No. 1313-00-3 JUDGE ROBERT J. HUMPHREYS
APRIL 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SCOTT COUNTY
Ford C. Quillen, Judge
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
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.
- 2 -
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
- 3 -
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
3
Sloan also moved for a mistrial in conjunction with
several of these objections. These motions were likewise
overruled.
- 4 -
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
- 5 -
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
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.
- 6 -
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
- 7 -
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
- 8 -
§ 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.
- 9 -