Elliott Nathaniel Miles v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
ELLIOTT NATHANIEL MILES
MEMORANDUM OPINION * BY
v. Record No. 0074-01-2 JUDGE ROSEMARIE ANNUNZIATA
APRIL 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on brief), for
appellant.
Richard B. Smith, Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
A jury convicted Elliott Nathaniel Miles of possessing a
firearm by a felon, in violation of Code § 18.2-308.2(A), and
sentenced him to five years in prison. Miles seeks to have the
indictment dismissed or to be re-sentenced. For the reasons that
follow, we affirm.
Background
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, and grant to that
evidence all reasonable inferences that may be drawn. Ortega v.
Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000)
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(citations omitted). So viewed, the record in this case
establishes that deputies of the Richmond City Sheriff's Office
arrested Miles on May 6, 2000 for trespassing at 6531 Midlothian
Turnpike in the City of Richmond. In a search incident to his
arrest, the deputies discovered a loaded and operable revolver
in Miles' front waistband; the gun was covered by his shirt. At
trial, the Commonwealth introduced a certified copy of an order
entered on November 1, 1996, in the Circuit Court of the City
of Richmond, convicting Miles of unlawful wounding.
In a motion made prior to jury selection, defense counsel
argued that the indictment in the case was fatally defective on
the ground that it did not specify the prior felony that formed
the basis of the grand jury's indictment. Defense counsel
stated that Miles had been previously convicted of both
possession of cocaine with intent to distribute and unlawful
wounding. Depending on the felony proved, counsel argued, Miles
faced different sentencing outcomes. 1 Defendant had not moved
for a bill of particulars.
1
Code § 18.2-308.2(A) provides, in pertinent part:
[A]ny person who violates this section . . .
and was previously convicted of a violent
felony as defined in § 17.1-805 . . . shall be
sentenced to a minimum, mandatory term of
imprisonment of five years. Any person who
violates this section . . . and who was
previously convicted of any other felony
. . . shall be sentenced to a minimum,
mandatory term of imprisonment of two years.
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The trial court found that the indictment was not fatally
defective, stating, inter alia, that the defect, if any, could be
cured by a bill of particulars. The trial judge ultimately opined
that the grand jury had to have based its indictment on both prior
felonies and denied the defense motion to dismiss the indictment.
At trial, the Commonwealth limited its proof of Miles' status
as a felon to his prior conviction for unlawful wounding.
Accordingly, the court instructed the jury to convict Miles if it
found that the evidence proved beyond a reasonable doubt that
Miles possessed a firearm and had been convicted of a felony, "to
wit: unlawful wounding." Defense counsel objected to the
instruction on the ground that the indictment did not designate
unlawful wounding as Miles' prior felony. The trial court
overruled the objection and, after deliberations, the jury
convicted Miles and sentenced him to five years confinement.
Analysis
On appeal, Miles contends that his conviction should be
reversed on the ground that: (1) the evidence at trial varied from
the grand jury evidence regarding the specific prior crime
alleged; and (2) the trial court erred in instructing the jury
that Miles' prior conviction for unlawful wounding was an element
of the offense. Miles also argues, in the alternative, that the
matter should be remanded for re-sentencing and that the jury be
permitted to consider his non-violent felony as the predicate.
For the reasons that follow, we affirm.
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Miles' claim that the evidence relied upon by the grand jury
to indict him fatally varied from the evidence presented at trial
is procedurally barred. He did not present this claim to the
trial court. Rule 5A:18. 2 In addition, he failed to file a bill
of particulars. See Mueller v. Commonwealth, 15 Va. App. 649,
652-53, 426 S.E.2d 339, 341 (1993) (declining to address
appellant's contention that he was indicted for a different crime
from which he was convicted because he did not file a bill of
particulars to clarify the indictment).
Furthermore, we find no error in the trial court's
instruction to the jury that "an element of the offense was that
the defendant has been convicted of a felony, 'to wit: unlawful
wounding.'" Proof of conviction for "some" felony is required for
a conviction for possession of a firearm by a convicted felon.
Code § 18.2-308.2(A). This element may be established by proof of
"any one of the [defendant's] prior convictions . . . ." Essex v.
Commonwealth, 18 Va. App. 168, 172, 442 S.E.2d 707, 710 (1994).
In this case, the Commonwealth presented evidence of Miles'
2
Miles contends that his claim is preserved by his argument
at trial that the indictment was defective because it did not
specify his prior conviction. However, that argument is directed
at the validity of his indictment rather than the validity of his
conviction, which he claims on appeal. Therefore, we do not
consider the merits of his claim on appeal. See Collado v.
Commonwealth, 33 Va. App. 356, 367, 533 S.E.2d 625, 631 (2000)
("Rule 5A:18 requires that objections to a trial court's action or
ruling be made with specificity in order to preserve an issue for
appeal.").
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conviction for unlawful wounding. Therefore, the instruction
conformed to the proof at trial and was properly granted.
For the foregoing reasons, the decision of the trial court is
affirmed.
Affirmed.
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