Cole v. Commonwealth, 1204-21-2

Case DateSeptember 27, 2022
CourtCourt of Appeals of Virginia


No. 1204-21-2

Court of Appeals of Virginia

September 27, 2022


James T. Maloney (James T. Maloney, PC, on brief), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Decker, Chief Judge Beales and White Judges Argued at Richmond, Virginia.



Timothy Cole, Jr., appeals his conviction for possession of a firearm by a felon, in violation of Code § 18.2-308.2. The appellant argues that the trial court erred by admitting evidence of additional firearms. For the following reasons, we affirm the conviction.


On September 30, 2020, the appellant went to the home of Gail Solomon. Solomon was out of town, but her granddaughter, Z.S.,[2] was staying at the house with a friend. Z.S. and her friend had the appellant and two of his friends over as guests. The appellant had a small "black and gray" gun with him when he came to the house. At some point during the evening, the


appellant and Z.S. went into her grandmother's bedroom, where Solomon kept her gun and her jewelry in a safe. They both left the room, but Z.S. later found the appellant in the bedroom putting her grandmother's "gun case into his backpack." She told him to return it, but the appellant refused.

The next day, Solomon returned home. That day, she discovered that her gun and jewelry had been removed from the safe in her bedroom closet.[3] Solomon also realized that her second, smaller safe also was missing from her closet. Two days after this discovery, a friend of the appellant returned the gun to Solomon. Later that same day, the appellant spoke with Solomon on the telephone. He apologized for stealing her firearm and requested that she "drop the charges." Solomon asked for the other stolen items to be returned. At first, the appellant claimed that he did not have them and that he had thrown the stolen safe, with the jewelry inside, in the trash. The following night, however, the appellant returned to Solomon's house and brought the small safe back with him. When he was there, he opened his backpack, and Solomon saw a sawed-off shotgun inside it.

During the ensuing investigation, the appellant admitted to Sergeant Kyle Nichols of the City of Hopewell Police Department that he took Solomon's firearm but claimed that he did so unwittingly. The appellant told Nichols that Z.S. put it in his backpack without his knowledge.

The Commonwealth charged the appellant with possession of a firearm by a felon, in violation of Code § 18.2-308.2. During the prosecutor's opening statement at trial, he mentioned that the appellant brought a firearm with him to Solomon's house when he first went and again when he returned, that time with a sawed-off shotgun in his backpack. After both parties completed opening statements and the first witness testified, the appellant asked to speak outside


of the presence of the jury. The appellant objected to the admission of testimony about any guns other than the one stolen from Solomon because he had received no information about either of them before trial. The trial court overruled the objection. During the Commonwealth's case, Z.S. testified that the appellant was armed with a gun when he came to the house with his friends. Solomon's testimony included her account of seeing a sawed-off shotgun in the appellant's backpack when he returned the safe.

The jury convicted the appellant of possession of a firearm by a felon. The trial court sentenced him to five years in prison in accordance with the jury's recommendation.


The appellant challenges the admission of testimony that he had a firearm with him when he first went to the house and that he later had a shotgun in his backpack when he returned to the home. He does so by alleging several different legal errors relating to the admission of that evidence.

"[T]he determination of the admissibility of relevant evidence is within the sound discretion of the trial court subject to the test of abuse of that discretion." Johnson v. Commonwealth, 70 Va.App. 45, 49 (2019) (quoting Henderson v. Commonwealth, 285 Va. 318, 329 (2013)). "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Minh Duy Du v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459 (2015)). A reviewing appellate court can conclude that "an abuse of discretion has occurred" only when "reasonable jurists could not differ" about the correct result. Id. (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). "[B]y definition," however, a


trial court "abuses its discretion when it makes an error of law." Coffman v. Commonwealth, 67 Va.App. 163, 166 (2017) (quoting Commonwealth v. Greer, 63 Va.App. 561, 568 (2014)).

With these legal principles in mind, we turn to the appellant's assignments of error.

A. Due Process: Notice

The appellant contends that the admission of evidence of the firearm that he initially brought to the house and the sawed-off shotgun in the backpack deprived him of his due process right to be apprised before trial of the basis of the charge against him. To support this argument, the appellant cites cases related to bills of particulars and defective indictments.[4]

"Both the United States and Virginia Constitutions recognize that a criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him." Simpson v. Commonwealth, 221 Va. 109, 114 & n.3 (1980) (first citing U.S. Const. amend. VI; then citing Va. Const. art. I, § 8); see also U.S. Const. amend. XIV. An indictment fulfills that mandate by "giv[ing] an accused notice of the nature and character of the charged offense so the accused can make his defense." Commonwealth v. Dalton, 259 Va. 249, 253 (2000). The Supreme Court of Virginia has held that an indictment "fully honor[s]" these "important" constitutional values by complying with Code §§ 19.2-220 and -221, statutes that govern the content and form of indictments. Simpson, 221 Va. at 114. Code § 19.2-220 "requires that an indictment name the accused, describe the offense charged, identify the location of the alleged commission [of the crime], and designate a date for the offense." Id. In addition, the statute makes clear that the indictment is required only to state "so much of the common law or


statutory definition of the offense as is sufficient to advise what offense is charged." Id. at 115 (quoting Code § 19.2-220). "[T]he Commonwealth is not required to disclose the evidence upon which it planned to rely to prove an element of the offense." Paduano v. Commonwealth, 64 Va.App. 173, 179 (2014).

Here, the indictment sets forth the charge against the appellant and follows the language of Code § 18.2-308.2. It also alleges that the crime occurred in Hopewell on or about October 1, 2020. Therefore, the indictment "name[d] the accused, describe[d] the offense charged, and identif[ied] the location" and a date of the alleged crime in compliance with Code § 19.2-220. See Simpson, 221 Va. at 114. The indictment was sufficient to adequately apprise the appellant of "the nature and character" of the charge against him. See Dalton, 259 Va. at 253. The appellant did not ask for a bill of particulars. On this record, the Commonwealth was not required to give him notice of Z.S.'s statement that he initially brought a firearm with him or of Solomon's statement that she saw a sawed-off shotgun in his backpack. Consequently, the admission of the challenged testimony did not deprive the appellant of his due process right to be apprised before trial of the basis of the charge against him, which was sufficiently set forth in the indictment.

B. Due Process: Brady v. Maryland

The appellant argues that under Brady v. Maryland, 373 U.S. 83 (1963), the Commonwealth should have disclosed before trial both Z.S.'s statement that he brought a firearm to the house when he went to see Z.S. and Solomon's statement that she saw a sawed-off shotgun in his backpack when he returned.

"Under Brady, 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Mercer v. Commonwealth,


66 Va.App. 139, 146 (2016) (quoting Brady, 373 U.S. at 87). "There are three components of a violation of the rule of disclosure first enunciated in Brady . . . ." Workman v. Commonwealth, 272 Va. 633, 644 (2006). First, "[t]he evidence not disclosed to the accused 'must be favorable to the accused, either because it is exculpatory[]' or because it may be used for impeachment." Id. (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Second, the Commonwealth must have withheld the evidence, without regard to whether it did so "willfully or inadvertently." Id. Third, the evidence must be "material" under Brady, meaning "there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Commonwealth v. Tuma, 285 Va. 629, 634-35 (2013) (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)); see also Workman, 272 Va. at 644-45 (describing the third prong as whether the accused was prejudiced). "The accused has...

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