1 

Present: All the Justices 

JARRIT M. RAWLS 

 OPINION BY 

v. Record No. 052128 JUSTICE LAWRENCE L. KOONTZ, JR. 

 September 15, 2006 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 Jarrit M. Rawls was convicted by a jury in the Circuit Court 

of Rockingham County of possession of a firearm by a convicted 

felon in violation of Code § 18.2-308.2. In an unpublished per 

curiam opinion, the Court of Appeals denied Rawls’ petition for 

appeal. Rawls v. Commonwealth, Record No. 2049-04-3 (May 13, 

2005). We awarded Rawls this appeal in which he challenges (1) 

the validity of his waiver of indictment, (2) the Commonwealth’s 

amendment of the arrest warrant upon which the case was tried, 

(3) the sufficiency of the evidence to support his conviction, 

and (4) the denial of his motion for a mistrial upon the jury 

rendering an initial verdict for twice the mandatory sentence 

before rendering a verdict for the mandatory sentence after 

further deliberation. For the reasons set forth below, we will 

affirm the judgment of the Court of Appeals. 

BACKGROUND 

On September 25, 2003 police officers went to Rawls’ 

residence to execute a warrant for his arrest for violating the 

terms of his probation imposed from a prior criminal conviction. 

The officers located Rawls in an upstairs bedroom and, following 
2 

a search of the bedroom, found a .22 caliber handgun between the 

mattress and box spring of the bed in that room. Subsequently, a 

warrant was issued charging Rawls with possession of a firearm by 

a felon in violation of Code § 18.2-308.2 and further describing 

the charge against Rawls as possession of a firearm “after having 

been convicted of a felony not defined in § 17.1-805.”1

Rawls waived his right to a preliminary hearing and filed a 

motion to waive indictment. At two hearings held thereafter 

Rawls stated to the trial court his intention to waive indictment 

and proceed to trial upon the warrant. However, Rawls did not 

sign a written waiver of indictment in the presence of the trial 

court as required by Code § 19.2-217. 

On the morning of trial, the Commonwealth moved to amend the 

allegation in the warrant from possession of a firearm after 

conviction of a felony “not defined in [Code] § 17.1-805” to 

possession of a firearm after conviction of a felony “as defined 

in [Code] § 17.1-805.” (Emphasis added.) Under the proposed 

amendment, the reference to Code § 18.2-308.2 remained the same. 

The Commonwealth contended that the amendment was permissible 

because Rawls had notice of the charge against him and because 

the amendment would affect only the available punishment, not the 

 1

 Among other felony convictions, Rawls previously had been 

convicted for breaking and entering in violation of Code § 18.2-

91. Code § 17.1-805 deems certain felonies to be “violent felony 

offenses,” the conviction of which subjects the defendant to 

enhanced punishment. A violation of Code § 18.2-91 is one of 

those felonies. 
3 

substantive charge. Rawls objected, asserting that since he 

waived indictment on the original warrant, the case should 

proceed to trial on the allegations as stated in that warrant. 

The trial court granted the Commonwealth’s motion to amend 

the warrant, ruling that the amendment was permissible because 

the charged offense, possession of a firearm after conviction of 

a felony, remained the same between the original and amended 

warrant. The trial court then offered Rawls a continuance. 

Rawls declined, and the trial proceeded that day as scheduled. 

The following evidence was adduced at trial, which was 

bifurcated into guilt and penalty phases. We will recite the 

evidence in the light most favorable to the Commonwealth, the 

prevailing party at trial. Coles v. Commonwealth, 270 Va. 585, 

587, 621 S.E.2d 109, 110 (2005); Dixon v. Commonwealth, 270 Va. 

34, 37, 613 S.E.2d 398, 399 (2005). 

Rawls resided in a four bedroom rental home along with four 

male roommates. When police officers arrived at this home, they 

were admitted entry by a man who was in the downstairs living 

room with two other men. Upon being asked for Rawls, the men 

directed the officers to a bedroom at the top of the stairs on 

the second floor.2

 The door to the bedroom was closed. When the 

officers knocked on the door, Rawls opened it. The officers 

noted that Rawls was alone in the bedroom, and that Rawls’ 

 2

 An officer testified that there were two more men, in 

addition to Rawls, on the second floor. 
4 

appearance and clothing suggested that he had been sleeping. The 

officers advised Rawls of the warrant for his arrest for a 

violation of his probation. Immediately, Rawls blurted out that 

the bedroom was not his, and that it belonged to his roommate. 

Rawls proceeded to dress by selecting an outfit from various 

articles of clothing that were scattered about the room, 

including a pair of size ten shoes. Rawls also gathered two or 

three pairs of socks to take with him. One of the officers 

escorted Rawls from the house and transported him to the 

Rockingham County Sheriff’s Office. 

The remaining officers proceeded to search the bedroom. At 

the head of the bed, between the mattress and box spring, the 

officers found a loaded .22 caliber handgun in a holster. 

The bedroom also contained several pairs of size ten shoes, 

but no shoes of any other size. Male clothing was strewn 

throughout the bedroom, but no female clothing was found. In a 

shoebox, the officers found a pay stub and a Virginia 

identification card both bearing Rawls’ name. Various other 

papers bearing Rawls’ name were found in another part of the 

room. No items were found bearing any other person’s name. 
5 

In response to subsequent questioning by the police, Rawls 

maintained that the bedroom belonged to a person named “Softy” or 

“Maurice.” With regard to his own use of the room, Rawls 

maintained that he kept personal belongings in the room but did 

not stay there. He admitted that his shoe size was ten. 

After the Commonwealth presented its case, Rawls introduced 

evidence to establish that numerous individuals had access to the 

bedroom. Generally, the testimony of Rawls’ witnesses indicated 

that although the bedroom belonged to Rawls, the roommates and 

their friends occasionally used the bedroom to watch television 

or to sleep. According to the roommates, the front door and 

bedroom doors of the home were always unlocked. 

After deliberation, the jury returned a verdict finding 

Rawls guilty of the offense charged in the amended warrant. 

Proceeding to the penalty phase, the trial court instructed the 

jury that the mandatory punishment was imprisonment for five 

years.3

 Nevertheless, the jury rendered a verdict for a ten-year 

sentence. Rawls moved for a mistrial. The trial court denied 

the motion and explained the instructions to the jury. Upon 

further deliberation, the jury rendered a verdict for the 

mandatory sentence of imprisonment for five years. 

 3

 The jury instructions also included an instruction which 

stated, in part, that “[h]aving found the defendant guilty, you 

should impose such punishment as you feel is just under the 

evidence.” 
6 

Rawls filed a post-trial motion to set aside the verdict. 

In support of this motion, Rawls first argued that his waiver of 

indictment was invalid because he had not signed it as required 

by Code § 19.2-217.4

 Rawls also contended that the trial court 

erred in permitting the Commonwealth to amend the warrant. Rawls 

asserted that if his waiver of indictment was valid, then that 

waiver was limited to the original warrant and did not apply to 

the amended warrant. Rawls further contended that the evidence 

was insufficient to prove his possession of the firearm. 

Finally, Rawls contended that the jury’s initial rendering of a 

verdict for a ten-year sentence, after being instructed that five 

years was the mandatory sentence, required the declaration of a 

mistrial. 

The trial court held a hearing and overruled Rawls’ motion 

to set aside the verdict, rejecting all of Rawls’ contentions 

except his challenge to the validity of his waiver of indictment. 

Thereafter, in a letter opinion dated May 28, 2004, the trial 

court denied the motion as to Rawls’ challenge to the validity of 

the waiver of indictment, ruling that while the waiver of 

indictment did not comply with the statutory requirements of Code 

§ 19.2-217, Rawls waived his objection when he failed to object 

 4

 Code § 19.2-217 provides, in relevant part, that a waiver 

of indictment must be in “writing signed by such person before 

the court having jurisdiction to try such felony or before the 

judge of such court.” 
7 

until after the trial.5 Subsequently, the trial court sentenced 

Rawls to a term of imprisonment of five years in accord with the 

jury’s verdict. 

Rawls filed a petition to the Court of Appeals, asserting 

the same contentions he previously made in the trial court in his 

motion to set aside the verdict. The Court of Appeals denied the 

petition.6

 The Court of Appeals determined that Rawls was barred 

from challenging the validity of the waiver of indictment by 

failing to raise the issue until after the jury returned its 

verdict.7

 The Court of Appeals also concluded that the trial 

court did not err in allowing the Commonwealth to amend the 

original warrant because the amendment affected only the 

available punishment, not the “nature and character” of the 

charged offense. Additionally, the Court of Appeals held that 

the evidence was sufficient to support Rawls’ conviction and that 

the trial court did not err in refusing to declare a mistrial 

after the jury initially returned a verdict for a ten-year 

 5

 Rule 3A:9(b)(2) provides: “any defense or objection that 

is capable of determination without the trial of the general 

issue may be raised by motion before trial. Failure to present 

any such defense or objection before the jury returns a verdict 

or the court finds the defendant guilty shall constitute a waiver 

thereof.” 

6

 Rawls exercised his right to have his petition reviewed by 

a three-judge panel, which refused the petition for the reasons 

stated in the May 13, 2005 per curiam opinion. 

7

 The Court of Appeals based its determination on its Rule 

5A:18, which states that “[n]o ruling of the trial court . . . 

will be considered as a basis for reversal unless the objection 

was stated together with the grounds therefor at the time of the 

ruling, except for good cause shown or to enable the Court of 
8 

sentence rather than the mandatory five-year sentence. This 

appeal followed. 

DISCUSSION 

We will address each of Rawls’ four assignments of error in 

order. Rawls’ first assignment of error states that “[t]he Court 

of Appeals erred when it ruled that the trial court was not 

clearly erroneous in proceeding with a trial under a waiver of 

indictment that failed to comport with the statutory requirements 

of Virginia Code § 19.2-217.” 

The requirement that the defendant be indicted is “not 

jurisdictional and constitutionally imposed but is only statutory 

and procedural.” See Triplett v. Commonwealth, 212 Va. 649, 650, 

186 S.E.2d 16, 17 (1972). Thus, it may be waived by the 

defendant. But, when a defendant insists upon his statutory 

right to an indictment, “the failure of the trial court to adhere 

to [that] procedural requirement[] is reversible error.” Id. at 

651, 186 S.E.2d at 17. Here, however, Rawls’ assignment of error 

does not address the determination by both the trial court and 

the Court of Appeals that he did not timely raise his challenge 

to the apparent defect in his waiver of indictment because he did 

not do so until the conclusion of the trial by way of his motion 

to set aside the jury verdict. As framed, Rawls’ assignment of 

error does not relate to the procedural determinations of the 

trial court and the Court of Appeals. Accordingly, we will not 

 

Appeals to attain the ends of justice.” 
9 

consider the merits of his first assignment of error. Rule 

5:17(c). 

In his second assignment of error, Rawls challenges the 

determination of the Court of Appeals that the trial court did 

not err in allowing the Commonwealth to amend the warrant from 

charging, under Code § 18.2-308.2, possession of a firearm after 

conviction of a felony “not defined in [Code] § 17.1-805” to 

possession of a firearm after conviction of a felony “as defined 

in [Code] § 17.1-805.” Specifically, Rawls contends that if his 

waiver of indictment was valid then the Commonwealth was required 

to try him on the original warrant or, if the warrant was 

amended, then the Commonwealth was required to obtain an 

indictment on the amended warrant. The Commonwealth responds 

that Rawls’ waiver of indictment on the original warrant did not 

limit the authority of the trial court to permit amendment of 

that warrant, “because it did not change the nature of the 

charge” against Rawls. We agree with the Commonwealth. 

No authority supports the proposition implicitly asserted by 

Rawls that a defendant, by waiving indictment, can preclude the 

subsequent amendment of a warrant. To the contrary, trial courts 

have substantial discretion to amend warrants. See Code § 16.1-

137 (trial court may, sua sponte or upon motion of a party, 

“amend the form of the warrant in any respect in which it appears 

defective”); see also Robinson v. Commonwealth, 206 Va. 766, 769, 

146 S.E.2d 197, 200 (1966); Malouf v. City of Roanoke, 177 Va. 
10 

846, 853, 13 S.E.2d 319, 321 (1941). Furthermore, the rules 

governing amendment of warrants and indictments should be 

liberally construed to avoid unnecessary delay by permitting 

amendment rather than requiring additional proceedings. See

Powell v. Commonwealth, 261 Va. 512, 533, 552 S.E.2d 344, 356 

(2001); Sullivan v. Commonwealth, 157 Va. 867, 876-77, 161 S.E. 

297, 300 (1931). Additionally, the defendant is protected 

against any unfairness that may result from amendment of a 

warrant or indictment because the defendant is entitled to a 

continuance upon a showing that such amendment operated as a 

surprise. See Code § 16.1-137; see also Code § 19.2-231. Guided 

by these principles, we hold that a defendant’s waiver of 

indictment does not preclude the amendment of the warrant upon 

which the defendant is tried. Rather, the permissibility of an 

amendment to the warrant in that circumstance is governed by the 

same standards as for an amendment of an indictment. 

The Court of Appeals determined that the defendant may be 

tried on an amended warrant so long as the amendment does not 

change the nature or character of the offense charged in the 

original warrant. The Code does not specify that the “nature or 

character” test is the standard for determining whether an 

amendment to a warrant is proper. The nature and character of 

the offense test, however, is set forth in Code § 19.2-231 

governing amendment of indictments. Code § 19.2-231 provides: 
11 

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, the court may permit 

amendment of such indictment, presentment or 

information, at any time before the jury returns a 

verdict or the court finds the accused guilty or not 

guilty, provided the amendment does not change the 

nature or character of the offense charged. After any 

such amendment the accused shall be arraigned on the 

indictment, presentment or information as amended, and 

shall be allowed to plead anew thereto, if he so 

desires, and the trial shall proceed as if no amendment 

had been made; but if the court finds that such 

amendment operates as a surprise to the accused, he 

shall be entitled, upon request, to a continuance of 

the case for a reasonable time. 

(Emphasis added.) 

While we recognize that the requirements for warrants and 

indictments are not identical, the two are similar in that both 

must describe the offense of which the defendant is charged. See

Rule 3A:4; Rule 3A:6(a) (formerly Rule 3A:7(a)); Code § 19.2-72, 

Greenwalt v. Commonwealth, 224 Va. 498, 501, 297 S.E.2d 709, 710-

11 (1982). We have held with regard to both warrants and 

indictments that the allegations therein must be sufficient to 

notify the accused of the nature and character of the offense 

charged. Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 

411, 413 (1976); Greenwalt, 224 Va. at 501, 297 Va. at 711. The 

limitation on amendment to indictments in Code § 19.2-231 to 

amendments that do not change the nature or character of the 

offense is clearly intended to protect the defendant from being 

deprived of notice of the offense charged. Since a warrant 

serves the same purpose of notifying the defendant of the nature 
12 

and character of the charged offense, it follows that the same 

test should apply to amendment of the warrant upon which the case 

against the defendant proceeds. Thus, the Court of Appeals was 

correct to apply the nature or character test in determining the 

permissibility of the amendment to the warrant in this case. 

Accordingly, we turn now to consider whether the Court of Appeals 

erred in concluding that the amendment to the warrant in this 

case did not change the nature or character of the offense 

charged. 

Initially, we note that the original warrant would have been 

sufficient to notify Rawls of the nature and character of the 

offense charged even if it had omitted any reference to Code 

§ 17.1-805 because it clearly described Rawls’ unlawful conduct 

as possession of a firearm by a convicted felon, identified Code 

§ 18.2-308.2 as the statute proscribing that conduct, and 

included all other information required by statute. See Code 

§ 19.2-72. Notwithstanding that the reference to Code § 17.1-805 

in the warrant was unnecessary, its inclusion requires our 

consideration whether the amendment changing the prior felony 

from one “not defined in [Code] § 17.1-805” to one “as defined in 

[Code] § 17.1-805” changed the nature or character of the offense 

of possession of a firearm by a convicted felon as that offense 

is defined in Code § 18.2-308.2. The statutory scheme contained 

in the statute guides our analysis. 

Code § 18.2-308.2(A) provides, in relevant part, that: 
13 

It shall be unlawful for (i) any person who has 

been convicted of a felony . . . to knowingly and 

intentionally possess . . . any firearm . . . . Any 

person who violates this section shall be guilty of a 

Class 6 felony. However, any person who violates this 

section by knowingly and intentionally possessing . . . 

any firearm and who was previously convicted of a 

violent felony as defined in § 17.1-805 shall be 

sentenced to a mandatory minimum term of imprisonment 

of five years. Any person who violates this section by 

knowingly and intentionally possessing . . . any 

firearm and who was previously convicted of any other 

felony within the prior 10 years shall be sentenced to 

a mandatory minimum term of imprisonment of two years.8

Code § 18.2-308.2(A) defines as a Class 6 felony the 

possession of a firearm by any person who previously has been 

convicted of a felony.9

 Beyond question, the defendant’s 

possession of a firearm and the fact that the defendant is a 

convicted felon are essential elements of the offense created by 

this statute and, thus, must be proven by the Commonwealth beyond 

a reasonable doubt. See Powers v. Commonwealth, 211 Va. 386, 

388, 177 S.E.2d 628, 629 (1970). With regard to the 

Commonwealth’s burden to prove that the defendant is a convicted 

felon, that burden is satisfied upon proof that the defendant 

previously has been convicted of any felony because Code § 18.2-

 8

 Absent mandatory minimum sentences such as those contained 

in Code § 18.2-308.2, Class 6 felonies are generally punishable 

by no less than one and no more than five years imprisonment. 

Code § 18.2-10. 

9

Code § 18.2-308.2 also applies to juveniles committing 

certain offenses that would be classified as felonies if 

committed by an adult. These provisions are not implicated in 

this case. 
14 

308.2(A) applies with blanket effect to persons previously 

convicted of any felony. 

For purposes of determining the sentence to be imposed upon 

the defendant who violates Code § 18.2-308.2(A), however, this 

statute makes a significant distinction between a prior 

conviction of “any other” felony and a prior conviction of a 

felony specifically designated as a “violent felony” under Code 

§ 17.1-805. Under the statutory scheme set forth in Code § 18.2-

308.2(A), when it is established that the defendant was 

previously convicted of such a violent felony, the mandatory 

minimum sentence is a term of imprisonment of five years. Since 

a violation of Code § 18.2-308.2(A) is a Class 6 felony 

punishable under Code § 18.2-10 by a term of imprisonment between 

one and five years, the mandatory minimum sentence for a 

defendant convicted of possession of a firearm after a previous 

violent felony conviction equals the statutory maximum sentence. 

Conversely, in cases involving a prior conviction of any other 

felony, the mandatory minimum sentence is a term of imprisonment 

of two years under Code § 18.2-308.2(A). Thus, under this 

statutory scheme, a defendant who was previously convicted of any 

felony other than one designated as a violent felony under Code 

§ 17.1-805 is subject to a sentence of a term of imprisonment of 

two years (the mandatory minimum) to five years (the maximum). 

Undoubtedly, under this statutory scheme the Commonwealth is 

required to prove beyond a reasonable doubt that the defendant 
15 

was previously convicted of a violent felony, designated as such 

under Code § 17.1-805, in order to establish that the defendant 

is subject to the five-year mandatory minimum sentence to be 

imposed under Code § 18.2-308.2(A). Cf. Washington v. 

Commonwealth, 272 Va. ___, ___, ___ S.E.2d ___, ___ (decided 

today) (proof of a defendant’s prior predicate convictions 

admissible during guilt phase of trial to establish liability for 

enhanced punishment). Absent such proof, the defendant is 

subject to imprisonment for a term of between two years and five 

years. While proof of the defendant’s prior felony conviction is 

an essential element of the substantive offense under Code 

§ 18.2-308.2(A), the nature of that prior felony conviction is 

not. Under the plain language of Code § 18.2-308.2(A), a 

violation of that statute is complete upon possession of a 

firearm by any person previously convicted of any felony. Proof 

that the prior felony conviction was for a “violent felony” as 

designated under Code § 17.1-805 invokes the applicability of the 

enhanced punishment provision in Code § 18.2-308.2(A). 

In the context of determining whether an amendment to a 

warrant so as to subject the defendant to the possibility of the 

greater mandatory minimum sentence under Code § 18.2-308(A)(2) 

constitutes a change in the “nature or character” of the charged 

offense, we are of opinion that such an amendment impacts only 

the degree of the authorized punishment. With regard to 

amendment of indictments, we have stated “the bare fact that the 
16 

amendment allowed authorizes a greater punishment than that 

authorized for the offense charged in the original indictment 

does not of itself change the character of the offense charged.” 

Sullivan, 157 Va. at 877, 161 S.E. at 300. We find the same 

reasoning to apply in the context of amendment to warrants. 

Therefore, an amendment to a warrant charging an accused with 

possession of a firearm after conviction of a felony that merely 

changes whether the prior felony was or was not a violent felony 

under Code § 17.1-805 does not impermissibly change the nature or 

character of the offense charged. 

Here, the original warrant clearly provided that the charged 

offense was possession of a firearm by a convicted felon under 

Code § 18.2-308.2(A), and the amendment merely changed the 

warrant to charge that Rawls' prior felony was a violent felony 

as defined by Code § 17.2-805. Accordingly, since the amendment 

did not change the nature or character of the offense charged, we 

hold that the Court of Appeals correctly determined that the 

trial court did not err in allowing the trial to proceed on the 

amended warrant.10

In his third assignment of error, Rawls contends that the 

Commonwealth’s evidence was insufficient to support his 

conviction under Code § 18.2-308.2(A). Under well-established 

 10 Rawls does not claim that he was prejudiced in his 

defense due to any surprise caused by the amendment and, thus, we 

do not address the issue. In any case, Code § 19.2-231 states 

that the remedy for such surprise is a continuance. Here, the 
17 

principles, when determining the sufficiency of the evidence to 

support a conviction we review the evidence in the light most 

favorable to the Commonwealth, the prevailing party at trial. 

Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538, 539 

(2003). We will reverse a trial court’s ruling upholding a 

jury’s verdict only when the ruling is plainly wrong or without 

evidence to support it. Code § 8.01-680; Viney v. Commonwealth, 

269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). 

Rawls does not dispute that he was previously convicted of a 

“violent felony,” and challenges only the sufficiency of the 

evidence to prove beyond a reasonable doubt that he possessed the 

firearm in question. A conviction for the unlawful possession of 

a firearm can be supported exclusively by evidence of 

constructive possession. Evidence of actual possession is not 

necessary. Walton v. Commonwealth, 255 Va. 422, 425-26, 497

S.E.2d 869, 871 (1998). To establish constructive possession of 

the firearm by the defendant, the Commonwealth must present 

evidence of acts, statements, or conduct by the defendant or 

other facts and circumstances proving that the defendant was 

aware of the presence and character of the firearm and that the 

firearm was subject to his dominion and control. Id.; Drew v. 

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986); 

Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 

(1984); Andrews v. Commonwealth, 216 Va. 179, 182, 217 S.E.2d 

 

trial court offered Rawls a continuance, but he declined. 
18 

812, 814 (1975). While the Commonwealth does not meet its burden 

of proof simply by showing the defendant’s proximity to the 

firearm or ownership or occupancy of the premises where the 

firearm is found, these are circumstances probative of possession 

and may be considered as factors in determining whether the 

defendant possessed the firearm. Walton, 255 Va. at 426, 497 

S.E.2d at 871-72; Garland v. Commonwealth, 225 Va. 182, 184, 300 

S.E.2d 783, 784 (1983); Lane v. Commonwealth, 223 Va. 713, 716, 

292 S.E.2d 358, 360 (1982). Furthermore, the Commonwealth does 

not have to prove that possession was exclusive. See Eckhart v. 

Commonwealth, 222 Va. 447, 450, 281 S.E.2d 853, 855 (1981); 

Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 

(1970). 

The evidence showed that when police arrived at his 

residence, Rawls was alone in the bedroom in which the firearm 

was found. The bedroom door was closed, and Rawls appeared to 

have been sleeping on the mattress under which the firearm was 

found. The bedroom contained Rawls’ clothes and personal 

effects; no other person’s belongings were found in the room. 

Furthermore, Rawls’ roommates testified that the bedroom belonged 

to Rawls. These facts clearly demonstrate that the firearm was 

within Rawls’ dominion and control and are probative of his 

awareness of the presence of the firearm in the room. 

Rawls’ conduct when confronted by police further suggests 

his possession of the firearm. When police told Rawls they were 
19 

there to serve him with an arrest warrant for a probation 

violation, Rawls immediately disclaimed ownership of the room. 

Based on the substantial evidence that the room in fact did 

belong to Rawls, the jury could have concluded that Rawls was 

lying to conceal his guilt. See Covil v. Commonwealth, 268 Va. 

692, 696, 604 S.E.2d 79, 82 (2004). This is precisely the kind 

of act, statement, or conduct that tends to prove the defendant’s 

knowledge of the presence and character of contraband. See Lane, 

223 Va. at 716-17, 292 S.E.2d at 360. 

Rawls contends that his roommates’ testimony showed that 

other individuals had unrestricted access to the bedroom and, 

thus, increased the likelihood that someone other than Rawls put 

the firearm under the mattress. However, even assuming that the 

jury believed that other individuals had access to Rawls’ room, 

such access is only a single factor to be considered among all of 

the circumstances. The Commonwealth was not required to prove 

that Rawls had exclusive access to the bedroom. Rather, by 

demonstrating Rawls’ presence in his own bedroom and the presence 

of the firearm at the time, along with the other circumstances 

suggesting his possession of the firearm, the Commonwealth’s 

evidence was sufficient to support the jury’s conclusion that 

Rawls possessed the firearm. 

For these reasons, we hold that the evidence was sufficient 

to establish that Rawls possessed the firearm. Since Rawls does 

not dispute that he was previously convicted of a violent felony, 
20 

we further hold that the jury verdict convicting Rawls of 

possession of a firearm by a convicted felon under Code § 18.2-

308.2(A) as charged in the amended warrant was not plainly wrong 

or without evidence to support it. 

In his fourth assignment of error, Rawls contends that the 

trial court erred by refusing to declare a mistrial when the jury 

initially returned a verdict for a ten-year sentence despite 

being instructed that the mandatory sentence was five years. 

Rawls claims that the initial verdict for a sentence that was 

twice the maximum permissible sentence demonstrated the jury’s 

prejudice and inability to follow the court’s instructions. We 

disagree. 

As the Court of Appeals noted, generally when the trial 

court imposes a sentence that does not exceed the maximum 

sentence allowed by statute, the sentence will not be overturned 

on appeal as an abuse of discretion. Williams v. Commonwealth, 

270 Va. 580, 584, 621 S.E.2d 98, 100 (2005), Abdo v. 

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). 

Here, although the jury initially returned a verdict for a tenyear sentence, the trial court ultimately imposed the mandatory 

five-year sentence in accord with the jury’s subsequent verdict. 

 Since this sentence was not only permitted, but required by 

statute, there was no abuse of discretion. 

Furthermore, we find no support in the record for the 

assertion that the jury’s initial rendering of a verdict for a 
21 

ten-year sentence demonstrated that the jury was prejudiced or 

unable to follow instructions. While we cannot determine the 

reason for the jury’s apparent misunderstanding of the 

instructions regarding the mandatory sentence, there is simply no 

evidence that it was anything other than an isolated mistake.11 

Under the circumstances, we hold that the Court of Appeals’ 

conclusion that the trial court did not err in refusing to grant 

a mistrial was correct. 

CONCLUSION 

For these reasons, we will affirm the judgment of the Court 

of Appeals denying Rawls’ petition for appeal. 

Affirmed. 

 11 The trial court stated that the jury may have 

misinterpreted a jury instruction stating, in part, that “you 

should impose such punishment as you feel is just under the 

evidence” as giving it discretion in imposing a sentence. We do 

not adopt or reject this conclusion, but note that it does, if 

true, provide a plausible explanation for the jury’s confusion.