COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Mal veaux and Senior Judge Frank Argued at Hampton, Virginia

HILLIARD DYWANE MOORE MEMORANDUM OPINION * BY v. Record No . 1113-18-1 JUDGE MAR Y BENNETT MALVEAUX OCTOBER 1, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Gary A. Mills, Judge Charles E. Haden for appellant. Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring , Attorney General, on br ief), for appellee.
Hilliard Dywane Moore (“appellant”) appeals the trial court’s imposition of a five-year mandatory minimum sentence for his conviction for possession of a firearm while in possession of drugs with intent to distri bute, in vio lation of Code § 18.2 -308.4. He argues that the trial court erred because his indictment did not specifically refer to Code § 18.2-308.4(C), the subsection which pertains to the offense and r equires a five-year mandator y minimum sentence. He further argues that the trial court erre d in imposing the mandatory min imum sentence because the indictment did not allege, and the evidence stipulated by the p arties did not prove, all the requisite facts for Code § 18.2- 308.4(C) to apply. Finding no error, we affirm.
I. BACKGROUND “Under familiar principles of appe llate review, we will state ‘ the evidence in the light most favorable to the Commonw ealth, the prevailing party in the trial court, and will accord the

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Commonwealth the benefit of all re asonable inferences fairly de ducible from that evidence.’” Sidney v. Commonwealth, 280 Va. 517, 520 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570 (2002)). A grand jury indicte d appellant for “Posse ssion of a Firearm Wh ile PWID [possessing with intent to distribute] Contro lled Substances.” The indictm ent specificall y alleged that on or about October 6, 2016, appellant “kn owingly and intentionally p ossess[ed] a firearm while committing or attempting to commit the illegal manufacture, sal e, distribution, or the possession with intent to sell, give or di stribute a cont rolled substance . . . , in violation of . . . [Code] § 18.2-308.4.” 1 At trial, appellant waived the r eading of the indictment. When asked for his plea to “the charge [of] possession of a fir earm while [in] possession with intent to distribute a controlled substance,” appellant entered a guilty plea. He answered the t rial court affirmatively when asked whether he fully understood the c harge and the elements which w ould have to be proven for him to be convicted. Appellant also a ffirmed that his counsel had “go[ne] over that” with him and discussed what plea he should ent er. When asked whether appell ant’s counsel had advised him of the minimum and maximum punis hments for the offense, appella nt replied that he had. The trial court then informed appellant of the mandatory minimu m sentence for conviction for possession of a f irearm while in possession of a controlled substance, a violation of Code § 18.2-308.4(B). The Commonw ealth’s attorney interject ed that because the indictment included the additional element of intent to distribute the con trolled substance, it in fact reflected a charge under Code § 18.2-308.4(C), conviction for which would require a mandatory minimum

1 Appellant was also indicted f or possession of a firearm after having been convicted of a felony, in violation of Code § 18.2-308.2, and possession of co caine with intent to distribute, third offense, in violationof Code § 18.2-248. Appellant ente red guilty pleas to both offenses, and the trial court accepted his pleas. Appellant did not chal lenge those convictions.- 3 - sentence of five years. The tri al court noted that under subse ction (C) of the statute, “that would be the mandatory five,” and ask ed appellant’s counsel if he had advised appellant correctly. Counsel for appellant stated tha t he had “advised [appellant] c orrectly when we talked about it.” The Commonwealth then proffered i ts evidence. The proffer indi cated that appellant had been the passenger in a car s topped by police after they observ ed a suspected counterfeit inspection sticker. When an officer smelled a strong odor of m arijuana coming from within the car, he removed the driver and appe llant from the vehicle. Upo n searching the car, police found a small cloth bag in the seat whe re appellant had been sitting. The bag contained a scale and packages of suspected drugs whic h the Virginia Department of Fo rensic Science later analyzed and identified as cocaine, fen tanyl, heroin, and marijuana. Ap pellant denied ownership of the bag but spontaneously stated to polic e that there was a firearm underneath his seat. Police recovered a loaded semi-automatic pistol from that location. T hey also found $375 “bundled separately” in appellant’s bac k pocket. A police detective who had previously testified as an expert in drug packaging and dist ribution was prepared to testi fy that the packaged drugs and money would have been inconsistent with appellant’s personal us e. The Commonwealth also proffered that while appellant w as being processed at the jail he told police that he had recently returned to selling drugs. In a ddition, the Commonwealth posse ssed recordings of appellant’s telephone calls made from the j ail. In those recordings, appel lant stated that he was “caught with [a] gun and crack [cocaine],” tha t “everything is mine,” and th at he was facing substantial prison time because of the gun and quantity of drugs he had possessed. Appellant acknowledged that the Commonwealth’s proffer was an accurate summary of its evide nce. The trial court accepted appella nt’s guilty plea after finding the evidence sufficient to convict him of “possession of a firearm while in possession of, with intent to distribute a controlled substance, i n violation of . . . Code § 18.2-308.4.” It also found that appellant had- 4 - entered his guilty plea freely, knowingly, voluntarily, and int elligently, with a f ull understanding of the nature and effect of his pl ea and the penalties that mig ht be imposed upon conviction. The court noted that “[t] hat’s why I wanted to make sure I was righ t on the mandatory minimums and make sure you understood.” The cou rt continued the matter for a sentencing hearing. At the hearing, appellant objecte d to the sentencing guidelines which indicated a mandatory minimum sentence of f ive years. He argued that the i ndictment did not refer to a specific subsection of Code § 18.2- 308.4 and that its language tracked the language of subsection (A), which does not include a fiv e-year mandatory minimum. App ellant also argued that a five-year mandatory minimum sentence was inappropriate because the indictment as written was inconsistent with subsection (C) , since that subsection not onl y refers to possession of a firearm but also includes the language, “ or display such weapon in a th reatening manner.” Appellant maintained that the absence of t he latter phrase from the indic tment meant that the indictment did not include all of the elements of the offense. Appellant furt her noted that the proffer indicated the gun had been found beneath a car seat, and thus there had b een no allegation that a weapon had been displayed. The trial court overruled appell ant’s objection to the sentenci ng guidelines, concluding that “the indictment [was] cl ear” that appellant had been charg ed with “possession of a firearm while in possession of -- with the i ntent to distribute a Sched ule I or II drug.” Thus, Code § 18.2-308.4(C) was “the only thing [th e indictment] would even apply to.” Further, appellant needed only to have been in posse ssion of a firearm and given t he presence of the gun and drugs in the car and their proximity to appellant, there was a “suffi cient nexus” for possession. The trial court imposed the five-year mandatory minimum sentenc e required for a violation of Code § 18.2-308.4(C). A ppellant appealed to this Court.- 5 - II. ANALYSIS Appellant argues that the tri al court erred by imposing the fiv e-year mandatory minimum sentence required for a vio lation of Code § 18.2-308.4(C) becau se the express language of the indictment made no reference to subsection (C) and did not alle ge that he had possessed or displayed a firearm in a threaten ing manner. Appellant further contends that the trial court erred in imposing the sentence because the stipulated evidence said n othing about appellant possessing or displaying a firearm in a t hreatening manne r, and thus the e vidence was insufficient to prove a violation of Code § 18.2-308.4(C). 2 “When considering on appeal whether an indictment charged a par ticular offense, we limit our scrutiny to the face of the document” while also “con sider[ing] as ‘incorporated by reference’ the statute[] cited i n the indictment.” Schwartz v. Commonwealth, 45 Va. App. 407, 427 (2005) (first quoting Moore v. Commonwealth, 27 Va. App. 19 2, 198 (1998), then quoting Reed v. Commonwealth, 3 Va. App. 665, 667 (1987)). “In describ ing the offense, the indictment . . . may use the name given to the offense by the c ommon law, or . . . state so much of the common law or statutor y definition of the offense as is sufficient to advise what offense is charged.” Code § 19.2-220. “The indictment should also ‘cite the statute . . . that defines the offense.’” King v. Commonwealth, 40 Va. App. 193, 198 (2003) ( quoting Sims v. Commonwealth, 28 Va. App. 611, 619 (1998)) . These requirements effectuate “[t]he purpose of an indictment [which] ‘is to gi ve an accused notice of the natu re and character of the accusations against him in order that he ca n adequately prepare to defend a gainst his accuser.’” Charles v. Commonwealth, 63 Va. App. 289, 295 (2014) (quoting Walshaw v. C ommonwealth, 44

2 Appellant further argues that , for the reasons stated above, the indictment failed to provide him with adequate noti ce of a charge under Code § 18.2- 308.4(C). Appellant did not raise the issue of notice in hi s assignment of error and thus w aived the issue for purposes of appellate review. See Simm ons v. Commonwealth, 63 Va. App. 69, 75 n.4 (2014) (noting that where, as here, an issue is not part of an appellant’s assignme nt of error that issu e is waived).- 6 - Va. App. 103, 109 (2004)). In keeping w ith this purpose, “[e]rror[s] in the citation of the statute . . . that defines the offense . . . or omission of the citatio n, shall not be grounds for . . . reversal of a conviction, unless the court finds that the error or omiss ion prejudiced the accused in preparing his defense.” Rule 3A:6(a); see also Code § 19.2-226 (10) (providing that no indictment shall be deemed i nvalid “[f]or omitting or stating i ncorrectly the . . . [C]ode references for the particular o ffense or offenses covered”). “[T]o the extent the appellant’s assignment of error requires ‘ statutory interpretation, it is a question of law reviewed de novo on appeal.’” Coomer v. Commonwealth, 67 Va. App. 537, 545 (2017) (quoting Grimes v. Commonwealth, 288 Va. 314, 318 (2 014)). “When construing a statute, our primary objective is ‘to ascertain and give effect to legislative inte nt,’ as expressed by the language used in the stat ute.” Cabral v. Commonwealth, 69 Va. App. 67, 71 (2018) (quoting Cuccinelli v. Rector & V isitors of the Univ. of Va., 2 83 Va. 420, 425 (2012)). “To best ascertain that intent, ‘[w]hen t he language of a statute is una mbiguous, we are bound by the plain meaning of that language.’” G regg v. Commonwealth, 67 Va. App. 375, 383 (2017) (alteration in original) (quoting Blake v. Commonwealth, 288 Va. 375, 381 ( 2014)). “The plain, obvious, and rational meaning of a statu te is always preferred to any cu rious, narrow or strained construction.” Robinson v. C ommonwealth, 68 Va. App. 602, 607 (2018) (quoting Gilliam v. Commonwealth, 21 Va. App. 519, 522-23 (1996)). Thus, “[w]hen a nalyzing a statute, we must assume that ‘the legislature chos e, with care, the words it use d when it enacted the relevant statute, and we are bound by those wo rds as we interpret the st atute.’” Cabral, 69 Va. App. at 71 (quoting Toliver v. Commonwealth, 38 Va. App. 27, 32 (2002)). Appellant is correct i n asserting that the indictment in the in stant case cites only Code § 18.2-308.4 and does not specificall y note he was indicted und er subsection (C), rather than under one of the other two subsect ions of the statute. However , there is no merit to appellant’s- 7 - argument that the express language of the indictment fails to m ake clear that appellant was indicted under Code § 18.2-308.4(C). H ere, the indictment alle ged that appellant knowingly and intentionally “possess[ ed] a firearm while committing or attemp ting to commit the illegal manufacture, sale, distributi on, or the possession with intent to sell, give or distribute a controlled substance . . . , i n violation of . . . [Code] § 18. 2-308.4.” Following this language, the indictment further characterized the charged offense as a viola tion of Code § 18.2-308.4 for “Possession of a Firearm While P WID [possessing with intent to distribute] Controlled Substances.” The first tw o subsections of Code § 18.2-308.4 cr iminalize, respectively, possessing a controlled substan ce while simultaneously possessi ng with knowledge and intent “any firearm,” or “any firearm on or about [the defendant’s] pe rson.” Code § 18.2-308.4(A), (B). Both of these subsections a re silent on whether a defenda nt intends to distribute the controlled substance while the y are also in possession of a fir earm. Only the third and final subsection of the statute, subs ection (C), contains the languag e about intent to distribute which is utilized in appellant’s indictment. 3 That language necessarily re quires a further element to convict under Code § 18.2-308.4(C) tha n to convict under either subsection (A) or (B) of the statute. Thus, because appellant’s indictment included languag e and an element required for conviction that appear in only one subsection of the cited statute—subsection (C)—the indictment is clear on its face th at the offense charged was a violation of Code § 18.2-308.4(C). See Purvy v. Commonwealt h, 59 Va. App. 260, 268 (2011) (noting that “when the descriptive

3 Code § 18.2-308.4(C) provides, in p ertinent part, that 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 illega l manufacture, sale, distributio n, or the possession with the intent t o manufacture, sell, or distrib ute a controlled substance . . . or m ore than one pound of marijuana.- 8 - text of an indictment narrows the factual allegation, it limits the scope of the incorporati on” of the contents of a statute by citation to the statute). Further, with respect to appell ant’s argument that an indictmen t for a violation of Code § 18.2-308.4(C) must also allege tha t the defendant possessed o r displayed a firearm “in a threatening manner,” we note that this Court has previously rej ected this argument. In Wright v. Commonwealth, 53 Va. App. 266 (2009), t he defendant argued that to convict him for a violation of Code § 18.2-308.4(C), “th e Commonwealth was requir ed to prove he ‘possess[ed]’ the firearm ‘in a threatening m anner.’” Id. at 281 (alterationin original). We noted that the statutory language at issue ma de it illegal to “possess, use, o r attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threa tening manner” while in possessi on of controlled substances with inten t to distribute. Id. (quoting Code § 18.2-308.4(C)). Based upon a plain reading of the statute, we rejected the defendant’s arg ument and held that “the phrase ‘in a threatening manner’ modifies onl y the verb ‘display’ immediat ely preceding it.” Id. at 281-82. Thus, Code § 18.2-308.4(C) provides multiple bases for satisfyi ng the firearm element of the offense and does not require for a conviction und er the statute that a firearm was either possessed or displayed “in a threatening man ner.” Therefore, it is suffi cient for an indictment for a violation of Code § 18.2-308.4(C) to allege, as here, simply th at a defendant “possess[ed] a firearm” while possessing controlle d substances with intent to distribute them. Lastly, because the indictment w as not required to allege that appellant possessed or displayed a firearm “in a threa tening manner,” the parties’ sti pulation was not required to include such evidence for it to be su fficient to support a conviction f or a violation of Code § 18.2-308.4(C). Here, scales and a quantity of packaged drugs inconsistent with personal use were found in a bag in appellant’s seat during a traffic stop. Appellant told police that there was a firearm under his seat, and polic e recovered a loaded pistol from that location. Appellant also- 9 - told police that he had recently returned to selling drugs. He subsequently stated, during recorded telephone calls, that he had been “caught with [a] gun and crack cocaine,” that “everything is mine,” and that he was facing a substantial sent ence because of the gun and quantity of drugs he had possessed. Thus, the evidence was suf ficient to prove that appellant was in possession of both a firearm and controlled substances t hat he intended t o distribute. The indictment alleged these facts , and the parties’ stipulated evi dence demonstrated them. Nothing more was required to indict ap pellant or support his convictionfor a violation of Code § 18.2-308.4(C). Consequently, the tr ial court did not err in imposing the five-year mandatory minimum sentence required upon a c onviction for possession of afirearm while in possession of a controlled substance with inten t to distribute, in violation of Code § 18.2-308.4(C).
III. CONCLUSION For the foregoing reasons, we find no error and affirm the judg ment of the trial court. Affirmed.