                                             COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, Malveaux and Athey
            Argued by teleconference
PUBLISHED




            KEVIN DIAZ GOMEZ, S/K/A
             KEVIN DIAZ-GOMEZ
                                                                                   OPINION BY
            v.      Record No. 0369-19-4                                      JUDGE WILLIAM G. PETTY
                                                                                    JUNE 9, 2020
            COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                Randy I. Bellows, Judge

                               Carlos E. Wall (The Gordon Law Firm, P.C., on brief), for appellant.

                               Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                    Kevin Diaz Gomez argues that the trial court erred by denying his motion to set aside the

            verdict based on an alleged fatal variance between the indictment for criminal street gang

            recruitment and the evidence produced at trial. For the reasons below, we affirm the judgment of

            the trial court.

                                                      I. BACKGROUND

                    Kevin Diaz Gomez was indicted for abduction, a felony in violation of Code § 18.2-47,

            criminal street gang participation, a felony in violation of Code § 18.2-46.2, and criminal street

            gang recruitment, a felony in violation of Code § 18.2-46.3. He was tried by bench trial in the

            Circuit Court of Fairfax County and pleaded not guilty to all three charges.

                    Following the Commonwealth’s presentation of evidence, Gomez moved to strike all

            three counts. He argued that the evidence was insufficient to prove abduction and criminal street

            gang participation. When prompted by the trial court to make an argument concerning criminal
street gang recruitment, trial counsel for Gomez responded, “No, Sir.” The trial court took the

motion under advisement for abduction and denied it as to criminal street gang participation and

criminal street gang recruitment. After Gomez presented evidence, the trial court convicted him

of criminal street gang participation and criminal street gang recruitment. An order

memorializing the pronouncement of guilt was entered on May 30, 2018. By order entered on

November 19, 2018, the court sentenced Gomez to three years and five months’ imprisonment

on both charges, to run concurrently. The trial court then stayed entry of the final order for sixty

days due to post-trial appointment of new counsel for Gomez.

       Gomez then filed a motion to set aside the verdict, and the Commonwealth filed its

motion in opposition. Gomez contended that the evidence of criminal street gang recruitment

was insufficient because the Commonwealth presented no evidence that Gomez “feloniously

threaten[ed]” the victim as alleged in the indictment. He argued that because the indictment used

the words “did feloniously threaten force,” the Commonwealth was required to prove that a

specific “felonious threat” was made. He also argued that the evidence of gang participation was

insufficient because gang recruitment was the predicate act for the gang participation conviction.

The trial court denied Gomez’s motion and entered the final order.

                                          II. ANALYSIS

       Gomez argues the trial court erred when it denied his motion to set aside the verdict. He

contends that because the indictment for criminal street gang recruitment used the words “did

feloniously threaten,” and because no evidence of a “felonious threat” was presented, there was a

fatal variance between the evidence and the indictment. In addition, he argues that because

criminal street gang recruitment was the predicate act for criminal street gang participation, then




                                                -2-
the conviction for criminal street gang participation should also have been set aside.1 The

Commonwealth argues that Gomez waived any objection to the indictment by failing to raise it

prior to the court’s verdict. We agree with the Commonwealth.

       Code § 19.2-227 provides, “Judgment in any criminal case shall not be arrested or

reversed upon any exception or objection made after a verdict to the indictment or other

accusation, unless it be so defective as to be in violation of the Constitution.” “As Code

§ 19.2-227 makes clear, once a verdict has been entered on an indictment, it will be set aside

only if the indictment is ‘so defective as to be in violation of the Constitution.’” Reed v.

Commonwealth, 281 Va. 471, 481 (2011). Such defect is one that “deprived the defendant of the

ability to defend against the charge, thus depriving him of due process as required by the Sixth

and Fourteenth Amendments.” Id. However, “‘where there is enough on the face of the

[indictment] to charge the defendant with the commission of an offense known to the law’ the

indictment will be sufficient to sustain the judgment rendered.” Id. (quoting Council v. Smyth,

201 Va. 135, 139 (1959)).

       Furthermore, Code § 19.2-231 authorizes the trial court to permit amendment to the

indictment at any time before the finding of guilt “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, . . . provided the amendment does

not change the nature or character of the offense charged.” (Emphasis added). The accused

must then be arraigned on the amended indictment and allowed to plead accordingly, and the

trial will proceed unless the court finds that the amendment “operates as a surprise to the

accused.” Id.


       1
         To the extent that Gomez attempts to cast his argument on appeal as an attack on the
sufficiency of the evidence to support his convictions, such argument is not encompassed by his
assignment of error.
                                               -3-
       In Stamper v. Commonwealth, 228 Va. 707, 712-13 (1985), the defendant argued that a

fatal variance existed in the indictment because “the evidence did not conform to the offense

charged.” The Supreme Court declined to consider the argument because the defendant objected

to the variance for the first time at sentencing. Id. at 713. It held that “[t]he criminal statute of

jeofails, Code § 19.2-227, requires that any [fatal variance] objection to an indictment, to be a

ground for reversal, be made before verdict.” Id. Therefore, “even if the [fatal variance]

objection were valid, it came too late.” Id. In Stewart v. Commonwealth, 225 Va. 473, 477

(1983), the defendant made a different variance argument in her motion to set aside the verdict

than the one she made at trial. The Supreme Court did not entertain the new argument on appeal.

Id. See also Booth v. Commonwealth, 165 Va. 794, 795-96 (1936) (holding that the defendant’s

variance argument was without merit because he made it “for the first time on appeal”); Honaker

v. Commonwealth, 136 Va. 752, 755 (1923) (declining to consider the defendant’s “objection to

the sufficiency of the indictment” because it lacked the date of the offense, when the defendant

made “no demurrer or exception, nor [asked for] any instruction”); Flanary v. Commonwealth,

133 Va. 665, 667-68 (1922) (holding that the defendant could not argue on appeal “that the

indictment is defective for failure to state the time of the commission of the offense,” when he

failed to make that objection at trial, which then “could have been corrected at the bar by the

prosecuting attorney on mere motion”).

       By contrast, the Supreme Court held in George v. Commonwealth, 276 Va. 767, 773-74

(2008), that the defendant preserved his fatal variance argument by objecting to a jury instruction

that differed from the indictment’s description of the crime, even though he “did not use the

phrase ‘fatal variance.’” Likewise, in Scott v. Commonwealth, 49 Va. App. 68, 77 (2006), a

panel of this Court reversed a defendant’s conviction based on a variance between the indictment

and the proof where the objection was raised in a motion to strike prior to the verdict.

                                                 -4-
       Here, Gomez first argued that there was a fatal variance in the indictment for gang

recruitment when he made his motion to set aside the verdict. This occurred after the court had

found him guilty and entered an order of conviction.2 At no point before the verdict did Gomez

alert the trial court or the Commonwealth to his variance argument. In fact, in his motion to

strike, trial counsel for Gomez made no argument about the gang recruitment charge, focusing

his attention instead on the other two charges. Because Gomez failed to make his objection to

the indictment before verdict, as Code § 19.2-227 requires, we will not consider this argument on

appeal. To permit Gomez to attack the indictment for the first time in a motion to set aside the

verdict would make the provisions of Code § 19.2-231, allowing the Commonwealth to amend

an indictment in the case of a variance, meaningless.

       Moreover, nothing here suggests that Gomez was deprived of the ability to defend against

the charge. See Reed, 281 Va. at 481. He was not “prevented . . . from understanding the nature

and character of the charges against him.” Id. at 482. Nor does the record suggest that the

inclusion of the word “felonious” in the indictment for criminal street gang recruitment

“interfered with his ability to defend against those charges.” Id. Rather, the record demonstrates

that Gomez understood the charges and put on a defense, only mounting his attack on the

indictment after the guilty verdict was rendered and before entry of the final order. Therefore, if

it is a defect at all, inclusion of the word “felonious” in the indictment for criminal street gang

recruitment is certainly not a defect “in violation of the Constitution,” and Gomez may not assert

it as a basis to reverse his convictions. See id.




       2
         The trial court’s pronouncement of guilt constitutes the verdict in a non-jury trial. See
Rule 3A:9(b)(2) (equating the jury returning a verdict with the court finding the defendant
guilty).
                                               -5-
                                      III. CONCLUSION

       Because Gomez failed to raise his argument concerning a fatal variance in the indictment

before verdict, as required by Code § 19.2-227, we will not consider the argument on appeal, and

we affirm his convictions.

                                                                                      Affirmed.




                                              -6-
