COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Petty Argued at Salem, Virginia

SHAUN K-YUNG CLARK MEMORANDUM OPINION * BY v. Record No. 0443-07-3 JUDGE WILLIAM G. PETTY JUNE 3, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Leyburn Mosby, Jr., Judge Glenn L. Berger (Berger & Thornhill, on brief), for appellant. ** J. Robert Bryden, II, Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
A jury convicted appellant, Shaun K-Yung Clark, for po ssession of a firearm while distributing or possessing with the intent to dist ribute cocaine, in violatio n of Code § 18.2-308.4. 1 He now appeals that conviction, ar guing: (1) that the trial court erred in ad mitting “evi dence that citizens had previously complained about crimes in the area where the defe ndant was arrested” and (2) that the “evidence failed to prove that the de fendant possessed a firearm and cocaine in violation of . . . Code § 18.2-308.4(c), in that the firearm wa s not displayed nor used in a threatening manner.” For the reasons expressed below, we conclu de that Clark failed to preserve his sufficiency

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

** Joseph A. Sanzone represen ted appellant at trial.

1 Clark was also indicted for obstructing justice, in violation of Code § 18.2-460(C), possession of cocaine with intent to distribute, in violation of Code § 18.2-248, and illegal gambling, in violation of Code § 18.2-325. Clark pleaded guilty to all of the charge s except for the firearm charge that is the subject of this appeal.- 2 - of the evidence argument for review. We further hold that any trial court erro r in admitting the evidence in question was harmless. Acco rdingly, we affirm Clark’s conviction.
I. B ACKGROUND “[W]e view the evidence on appeal in th e light most favorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.” Wright v. Commonwealth , 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982). On April 2, 2006, Lynchburg Police Investigator Ann Riley was conducting surveilla nce in the 1000 block of Cabell Street and the 500 block of Amherst Street in the C ity of Lynchburg in response to ci tizen complaints of illegal drug and gambling activity. From her concealed vantage point, Invest igator Riley observed a group of people, including Clark, playing di ce and exchanging money in the mi ddle of the street. She then notified two other police officers and requested that they respond and arre st the participants. When the officers attempted to take Clark in to custody he fled on foot to his car. By the time the officers caught Cl ark he was already in the driver’s se at of the car and was attempting to close the door. The two officers th en placed him under arrest for ille gal gambling. During a search incident to the arrest, the polic e found $265 in cash and a “plast ic baggy with several off-white chunks in it” in Clark’s pockets. The “off-white chunks” were later found to be 2.77 grams of crack cocaine. After the officers foun d the cocaine, they placed Clark in the police cruiser and searched his car. In the car’s glove comp artment, the officers found a pl astic sandwich baggies box that contained a plastic sandwich bag and two razor blades . The officers also foun d a loaded .38 caliber revolver in the glove compartment that was later determined to be a wo rking firearm. Clark admitted that the gun was his and told the police th at he kept it for protection. 2 He also told police that he was in the process of delivering the co caine to another person when he was arrested.

2 At trial Clark recanted his admission that the gun was his. He testified that it belonged to his mother. He did not, however , deny knowing the gun was in the car.- 3 - The jury convicted Clark of pos session of a firearm while dist ributing or possessing with the intent to distribute cocaine, and this appeal followed.
II. A NALYSIS Admissibility of Evidence Clark argues that the trial court erred by admitting Investigator Riley’s testimony that citizens had previously complained about crimes in the area. He argue s that the evidence was not relevant, and, in the alternativ e, even if the evidence were rele vant, it was unduly prejudicial. Assuming for the sake of argument that the admission of this evidence was erroneous, we conclude that such error was harm less on the facts of this case. During his opening statement the prosecutor to ld the jury that Investigator Riley was conducting surveillance in an area “known to be a high drug area; th ere are a lot complaints [sic] from drug dealing.” Clark’s attorney objected an d moved for a mistrial, arguing that the statement was irrelevant, involved “prior bad acts of some other person not even my client” and that it constituted hearsay. Th e prosecutor responded that th e evidence would explain the officer’s presence at that location and was also releva nt to show “[t]he fact that the defendant is a drug dealer and he’s in an open air drug market.” The trial court ruled that the evidence was relevant to show “what the offi cers were doing” in the area. The trial court then gave the following instruction to the jury: [T]he [assistant] Commonwealth’s attorney[] was talking about the area being a high crime area or an area known to be a drug area; that’s really not to be used agains t Mr. Clark . . . . That’s just to show why the officer was there. It’s not any implication that Mr. Clark was involved in any high cr ime area or that type of thing or they have any evidence to su spect Mr. Clark of being over there that day. On direct examination, Investigator Riley tes tified that she was conducting surveillance because of complaints she had received regarding multip le criminal violations in the area.- 4 - The decision to refuse or admit evidence is a matter within the discretion of the trial

court. Swisher v. Commonwealth , 256 Va. 471, 487, 506 S.E.2d 763, 772 (1998). A trial court’s discretionary ruling will not be disturbed on appeal absent a clear abuse of discretion. Clozza v. Commonwealth , 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984). “A non-constitutional error, such as the erroneous admission of eviden ce, is harmless ‘when it plainly appears from the record and the evidence given at trial that the parties have had a fair trial on the merits and substantial justice has been reached.’” Harris v. Commonwealth , 27 Va. App. 554, 568, 500 S.E.2d 257, 263 (1998) (quoting Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) ( en banc )). The first step in determining whether error is harmless is to determine whether the trial court gave a curative instruction. See Lavinder , 12 Va. App. at 1007, 407 S.E.2d at 912. “If the record reveals that the trial court promptly instructed the jury to di sregard the effect of erroneously admitted evidence, the reviewing court may assume that the jury followe d that instruction unless the record ‘suggests a manifest pr obability that it did not.’” Id. (quoting Boykins v. Commonwealth , 210 Va. 309, 313, 170 S.E.2d 771, 774 (1969)). Here, the trial court immediatel y instructed the jury that an y evidence regarding citizen complaints of criminal activity in the area was being introduced solely to explain why the officer was conducting surreptitious surveillance. The inst ruction emphasized that the area’s reputation was not to be considered as evidence of Cl ark’s guilt. In light of the other, overwhel ming evidence of Clark’s guilt, we cannot say that there is a mani fest probability that the ju ry disregarded the trial court’s cautionary instruction on this record. See Rose v. Commonwealth , 270 Va. 3, 12, 613 S.E.2d 454, 459 (20 05). Thus, Clark “had a fair trial on the merits and substantial justice has been reached.” Code § 8.01-678.- 5 - Sufficiency of the Evidence Clark’s trial counsel moved to strike th e evidence both at the conclusion of the Commonwealth’s evidence and at the close of all evidence. The defense attorney argued: “I don’t think there’s any evidence he was in possession of the drug while he was in a position to be in possession of the firearm . . . .” According to the defense, a nother person gave Clark the drugs after Clark had gotten out of his vehicle that afternoon, and he ha d not completely gotten back into his car – where the firearm was located – be fore his arrest. Hence, the defense reasoned, Clark never possessed the gun and th e drugs at the same time. Clark’s argument on appeal, however, is quite di fferent. Clark now cont ends that we should reverse his conviction because “[t]he facts in this case show that at most, the possession of the firearm was constructive possession . . . . The firear m was never held, used nor brandished by him. No one was ever threatened with the firearm.” Clark concludes: “If the statute is interpreted strictly . . . the evidence was insufficient to convict hi m . . . .” Clark goes on to make a statutory construction argument, concluding that Code § 18.2-308.4(C), 3 properly read, requires that the Commonwealth prove that an accused “possess[e d]” a firearm “in a thr eatening manner” while engaged in, inter alia , “the possession with the intent to . . . sell . . . a controlled substance.” We have held on numerous occasions that wh ere an appellant fails to state the alleged error with specificity to the trial court, he or she will not be heard to complain on appeal. Rule 5A:18; see, e.g. , Miller v. Commonwealth , 22 Va. App. 497, 471 S.E.2d 180 (1996).

3 Code § 18.2-308.4(C) states, in pertinent part: It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manuf acture, sell, or distribute a controlled substance . . . .- 6 - Recognizing this, Clark concedes that he did not preserve this issue, but contends that this Court should consider his argument based on the “ends of justice” exception to Rule 5A:18. Rule 5A:18 provides for cons ideration of a ruling by the trial court that was not objected to at trial “to enable th e Court of Appeals to attain the ends of justice.” “‘The ends of justice exception is narrow and is to be used sparingly,’” when an error at trial is “‘clear, substantial and material.’” Redman v. Commonwealth , 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth , 8 Va. App. 126, 132, 380 S.E.2d 8, 10-11 (1989)). “In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of jus tice has occurred, not that a mis carriage might have occurred.” Id. at 221, 487 S.E.2d at 272 (citing Mounce v. Commonwealth , 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). In order to show that a miscarri age of justice has occurred, an appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense. . . . The appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur. Id. at 221-22, 487 S.E.2d at 272-73. Under Clark’s interpretation of the statute, the phrase “in a threatening manner” must be read to modify all the verbs in the sentence, not just the verb “display.” He argues that this phrase is an element of the offense that the Commonwealth must prove. Were we to accept Clark’s construction of Code § 18.2-308.4(C), Clark would be correct that the evidence adduced at trial was insufficient to prove that he “po ssessed” the firearm in a “threatening manner” and thus he would have been convicted of conduct that was not criminal. Therefore, we consider his argument solely to determine whether the ends of justice exception to Rule 5A:18 applies. The portion of the statute at issue makes it il legal to “possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner . . . .”- 7 - Code § 18.2-308.4(C) (emphasis added) . A plain reading of the stat ute indicates that the phrase “in a threatening manner” only modifies the verb immediately preceding it. Cf. Smoot v. Commonwealth , 37 Va. App. 495, 501, 559 S.E.2d 409, 412 (2002) (“[T]he word ‘or’ connects two parts of a sentence, ‘but di sconnects their meaning.’” (quoting Ruben v. Sec’y of HHS , 22 Cl. Ct. 264, 266 (1991))). Furthermore, we are precluded from construing “a statute . . . so that it leads to absurd results.” Auer v. Commonwealth , 46 Va. App. 637, 651, 621 S.E.2d 140, 147 (2005); see also Cook v. Commonwealth , 268 Va. 111, 116, 597 S.E.2d 84, 87 (2004) (“[T]he phrase ‘absurd result’ [describes] situations in which the law would be internally inconsistent or otherwise incapable of operation.”); Phelps v. Commonwealth , 49 Va. App. 265, 268, 639 S.E.2d 689, 691 (2007). Precisely how one would “possess” a fir earm “in a threatening manner” is difficult to comprehend, much less differentiate from disp laying a firearm in a threatening manner. Cf. Bd. of Supervisors v. Wood , 213 Va. 545, 548, 193 S.E.2d 671, 674 (1973) (noting that a court may not simply ignore words in a statute). We cannot accept Clark’s argument because the plain and unambiguous language of this statute leads us to the opposite conclusion: If language is clear and unambiguous, there is no need for construction by the court; the pl ain meaning and intent of the enactment will be given it. When an enactment is clear and unequivocal, general rules for constr uction of statutes of doubtful meaning do not apply. Therefore, when the language of an enactment is free from ambiguity . . . we take the words as written to determine their meaning. Brown v. Lukhard , 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (citations omitted). Because the language of the statut e is plain on its face, we need not resort to the rules of statutory construction. Accord ingly, we are unpersuaded by Clark’s statutor y construction argument. Because we do not believe the Co mmonwealth was required to prove that Clark- 8 - possessed the firearm “in a threatening manner” we conclude that Clark has not demonstrated that a miscarriage of justice occu rred in this case. Therefore, the ends of justice exception to Rule 5A:18 is not applicable.
III. C ONCLUSION For the reasons discussed above, we affirm the conviction.

Affirmed.