Jamal Rashad Toliver v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bumgardner, Humphreys and Clements
Argued at Richmond, Virginia
JAMAL RASHAD TOLIVER, S/K/A
JAMAAL RASHAD TOLIVER
MEMORANDUM OPINION* BY
v. 	Record No. 2880-99-2 	JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Maureen L. White for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On October 22, 1998, Jamal Rashad Toliver was charged with
two counts of capital murder, two counts of use of a firearm in
the commission of a felony, and one count of possession of a
firearm by a convicted felon. 	After a bench trial, the trial
court convicted him of possession of a firearm by a convicted
felon and granted a motion to strike all other charges. 	On
appeal, the defendant contends the circuit court lacked
jurisdiction to hear the charge. 	Finding no error, we affirm.

The original juvenile petition charged the defendant with
possessing a specific pistol.1 The indictment returned by the
grand jury did not specify any particular firearm.2 The trial
court stated that it found the defendant guilty of possessing a
shotgun though there was sufficient evidence that he also
possessed a pistol. 	The defendant contends the trial court
lacked jurisdiction to convict him of possession of any weapon
other than the pistol described in the juvenile petition.
Two persons were shot and killed, one by a pistol and the
other by a shotgun. 	The defendant was charged with both murders
and using the weapons to commit the murders. 	The defendant's
palm print was found on a shotgun, which the police recovered
from his girlfriend's residence. 	She had seen him with the
shotgun. 	They also recovered from her home the pistol used to
murder Robert Lee and a rifle she had seen the defendant hide
behind the couch. 	The defendant kept weapons at her home.
The description of the firearm in the juvenile petition was
excess language because the precise type of firearm is not an
1 The juvenile petition charged the defendant with
possession of "a handgun, to wit: a certain .38 cal.
semi-automatic pistol, mfg. by Star, after having been convicted
of a felony . . . in violation of section 18.2-308.2 . . . ."
2 The indictment returned against the defendant provided the
defendant "did feloniously and unlawfully, knowingly and
intentionally possess or transport or carry about his person,
hidden from observation, a firearm, having been previously
convicted of a felony. 	Va. Code Section § 18.2-308.2."
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element of the offense. 	Code § 18.2-308.2. 	The indictment gave
the defendant adequate notice of the offense charged though it
did not specify the firearm. 	Cantwell v. Commonwealth, 2 Va.
App. 606, 608, 347 S.E.2d 523, 524 (1986) (the purpose of the
indictment is to provide defendant "notice of the nature and
character of the offense charged"). 	The defendant filed a bill
of particulars on the other charges. 	In responding to those
requests, the Commonwealth advised that it expected to prove
that the defendant possessed both the shotgun and the pistol.
The defendant raised no objection to the indictment at
trial, so the indictment cured any defect caused by the wording
of the juvenile petition. 	Code § 16.1-269.1(E) provides that an
indictment in the circuit court cures any error or defect in the
juvenile court proceedings, except with respect to the
defendant's age. 	Moore v. Commonwealth, 259 Va. 405, 410, 527
S.E.2d 415, 418 (2000). 	Accordingly, we affirm the conviction.
Affirmed.
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