                    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.

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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


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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.

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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.




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