Garland Scott Hodge v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Annunziata
Argued at Salem, Virginia
GARLAND SCOTT HODGE MEMORANDUM OPINION* BY
v. 	Record No. 0791-95-3 	JUDGE LARRY G. ELDER
APRIL 23, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CARROLL COUNTY
Duane E. Mink, Judge
Jonathon M. Venzie for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Garland Scott Hodge (appellant) was convicted of robbery and
use of a firearm in the commission of a felony in violation of
Code § 18.2-53.1. 	Appellant contends that the jury's verdict,
which found him guilty of the "use of a firearm," but did not
mention its use in the commission of a felony, is void. 	We
disagree and affirm the judgment of the trial court.
On September 15, 1992, an employee of Griffin's Grocery
Store in Carroll County, Virginia, was robbed by an armed, masked
man, later identified at trial as appellant. 	Appellant was tried
before a jury on May 11, 1993, in the Circuit Court of Carroll
County. 	At trial, the Commonwealth's Attorney explained to the
jury that the evidence would prove appellant was "guilty of
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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robbery and use of a firearm in commission of that robbery." 	The
Commonwealth presented evidence that appellant used a firearm
during the robbery. 	During closing argument, the Commonwealth's
Attorney referred to the robbery having taken place "by the
threat of presenting a firearm," and referred to appellant's use
of a pistol to effectuate the robbery.
At the conclusion of all of the evidence, the trial court
explained the two verdict forms as being for robbery and "the use
of a firearm." 	On the latter charge, the trial court instructed
the jury as follows:
[T]he Defendant is charged with the crime of
using a firearm, to wit, a pistol, while
committing the crime of robbery. 	The
Commonwealth must prove beyond a reasonable
doubt each of the following elements of the
crime--(1) that the Defendant used a firearm,
to wit, a pistol, and (2) that the use was
while committing or attempting to commit
robbery. 	If you find from the evidence that
the Commonwealth has proved beyond a
reasonable doubt each of the above elements
of the offense as charged, then you shall
find the Defendant guilty and fix his
punishment at a term of imprisonment for two
years. 	If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
either element of the offense, then you shall
find the Defendant not guilty.
The jury, in conformity with the verdict forms the trial
court furnished, stated, "[w]e, the Jury, find the Defendant
guilty of robbery and fix his punishment at ten years. 	Signed
. . . Foreman. 	Also, we, the Jury, find the Defendant guilty of
use of a firearm and fix his punishment at two years. 	Signed

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. . . Foreman." 	(Emphasis added). 	The trial court entered
judgment on the verdicts, from which appellant now appeals.
As the Supreme Court of Virginia has stated:
In determining the validity of the
jury's verdict, it is necessary to discern
the true intent of the jury. 	A verdict must
demonstrate what a jury found or intended to
find, and it is always to be read in
connection with the indictment. . . . 	We
disregard technical irregularities in a
verdict where the jury's finding is otherwise
clear. 	In Williams v. Commonwealth, 153 Va.
987, 994, 151 S.E. 151, 153 (1930), we stated
that the court would "go far in the disregard
of defects in verdicts which have been
accepted by the trial courts, but from which,
notwithstanding such defects, the real
finding of the jury may be determined, though
it may not be accurately couched in the
technical language of the law." 	See Jackson
v. Commonwealth, 218 Va. 490, 237 S.E.2d 791
(1977).
Spear v. Commonwealth, 221 Va. 450, 454, 270 S.E.2d 737, 740
(1980). 	The Supreme Court has also said that a reviewing court
"will not presume that a jury has disregarded the instructions of
the court[.]" 	Jackson, 218 Va. at 493, 237 S.E.2d at 793.
Furthermore, while a verdict form furnished to a jury may not be
drafted with desirable specificity and precision, this does not
render a jury verdict fatally defective. 	Id. at 493-94, 237
S.E.2d at 793.
In this case, the Commonwealth indicted appellant under Code
§ 18.2-53.1, for use of a firearm while committing robbery. 	The
Commonwealth tried appellant upon this charge and a charge of
robbery. 	The Commonwealth presented credible evidence proving

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that appellant used a firearm while committing robbery. 	The
Commonwealth's Attorney set forth the elements necessary to prove
the firearm charge in its opening statement and closing argument.
The trial court then instructed the jury on the elements
necessary to convict appellant of use of a firearm in the
commission of a robbery. 	In this case, "there is no question as
to the sufficiency of the evidence to convict, the correctness of
the instructions given by the court, the offense which the jury
found was committed[,] and the offense which the jury convicted
the defendant of committing." 	Bacci v. Commonwealth, 213 Va.
236, 238, 191 S.E.2d 182, 183 (1972)(Harrison, J., dissenting).
Based on the foregoing, we affirm appellant's conviction.
Affirmed.