Jeffery Dale Howard v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 10, 2022
• Docket: 0495214
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Ortiz and Causey PUBLISHED

Argued at Fairfax, Virginia

JEFFERY DALE HOWARD OPINION BY v. Record No. 0495-21-4 JUDGE DANIEL E. ORTIZ MAY 10, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY J. Bruce Strickland, Judge

J. Austin Timberlake, Senior Assistant Public Defender, for appellant.

Liam A. Curry, Assistant Attorney General (Jason S. Miyares, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee.

Jeffery Dale Howard (“Howard”) appeals his conviction in the Stafford County Circuit

Court of threatening to burn or bomb a means of transportation under Code § 18.2-83(A). On

appeal, Howard assigns error on four grounds: (I) the circuit court erred in joining the assault and

battery charge with the threatening to burn or bomb charge; (II) the circuit court erred in admitting

evidence of the assault and battery following Howard’s no contest plea; (III) the circuit court erred

in finding Howard guilty of threatening to burn or bomb because no reasonable juror could have

found Wendy Howard (“Wendy”) reasonably feared Howard’s threat; and (IV) the circuit court

erred in applying Code § 18.2-83 to Howard’s threat to blow up his own property. As Howard

waived his objection to the joinder of charges, and the circuit court did not abuse its discretion or err

as a matter of law as to the remaining assignments of error, we affirm. BACKGROUND

The Howard family planned to spend January 6, 2019, together in celebration of the

Howards’ wedding anniversary. Instead, the day was filled with conflict and argument,

culminating in Howard’s arrest. That morning, Howard awoke in a foul mood and began yelling

at the Howard children, A.H. and R.H. Howard yelled at Wendy, “get the ‘F’ out of [the] house,

you and the kids just leave then.” Wendy, A.H., and R.H. went to the mall and returned home

later that day. Once home, A.H. and R.H. began watching television, while Wendy began

washing dishes in the kitchen nearby.

At 5:40 p.m., Wendy called Howard and put him on speakerphone so she could continue

doing the dishes. She asked him where he was, and Howard replied, “mind your own F’ing

business.” Wendy responded, “well, just don’t come home if you’re going to act like that.”

Howard answered, “I’ll come home if I want to and I’ll blow your car up with you in it or not if

you try to leave.” The car Wendy used was leased solely in Howard’s name. At that point,

Wendy hung up because her children were within earshot, and she did not want the conversation

to escalate. Wendy claimed she felt scared because Howard, who was on active duty with the

United States Marine Corp, “has blown up things . . . on base” and “knows how to work on

vehicles and he builds guns for a living.” Moreover, Howard “always kept his word when he

said things in the past, so [she] didn’t want to take the chance” and “[e]very time he says

something, he always sticks to it.”

A.H., who was ten years old at the time of trial, overheard this initial phone call and

characterized Howard’s tone as “[y]elling, mean, and angry.” A.H. recalled that Howard said, “I

will blow your car with you in it or without you in it.” A.H. testified that she felt scared for her

mother and did not know if Howard would follow through on his threat. Following the threat,

Wendy went up to her bedroom.

-2- At approximately 7:00 or 8:00 p.m., Wendy put the children to bed and barricaded the

front door. She did not call the police because she “didn’t want to know what the repercussions

would be,” and she was “too afraid to call.” Wendy thought the repercussion would be Howard

blowing up the car.

Later that night, Howard returned home, crashing his vehicle into trash cans and holding

down his car horn. He attempted to enter the house but became enraged when he encountered

the barricaded door and began pounding and beating on the door. Howard called Wendy, who

testified that she felt “[t]errified.” Eventually, Howard entered the home and went up to the third

floor screaming at Wendy. Howard yelled, “Why the ‘F’ did you lock me out? What is your

problem? I can’t believe you’re acting like this. You’re nothing but a peel ass white trash . . . .”

Howard then spat on Wendy.1 At that point, Wendy went to the laundry room where Howard’s

guns and ammunition were located and sat with her back to the door.

Howard and Wendy’s yelling woke up A.H. She overheard Howard “being very mean

with [her] mom.” A.H. texted Wendy, asking if everything was ok and if she should call the

police. Wendy responded, “[d]o what you think is best” because she “was terrified.” A.H. said

to Howard, “I’ll give you a warning to leave and if you don’t leave, I’ll call the cops . . . .” A.H.

then called 911 from her parents’ bathroom.

Following the 911 call, Stafford County Sheriff’s Deputy Evan R. Houde arrived at the

Howards’ home in Stafford County. Deputy Houde observed Howard’s vehicle in the driveway.

1 Howard’s spitting formed the basis for the assault and battery charge but was not presented to the jury during the trial on the threatening to burn or bomb charge. Howard was indicted on both charges but pleaded no contest to the assault and battery charge. Following Howard’s plea, the Commonwealth proffered what would have been the evidence of the assault and battery offense, citing the spitting. In ruling on Howard’s motion in limine, the circuit court excluded testimony and evidence of the spitting in the trial on the charge of threatening to burn or bomb. However, the underlying act of spitting is a part of the record and its exclusion is relevant to the analysis of Howard’s second assignment of error. -3- Upon reaching the home, Deputy Houde noticed that Howard had red glassy eyes and smelled of

alcohol. Deputy Houde entered the house and saw multiple ammunition boxes and crates piled

behind the front door. He spoke to Wendy, who was “shaking uncontrollably and her bottom lip

was trembling.” After interviewing the parties, Deputy Houde arrested Howard.

A few weeks after Howard’s arrest, the Howards exchanged text messages about the

incident. Wendy testified that the messages meant she “wanted the court just to hurry up and get

everything done with” but did not reflect that she wanted to “drop[] the charges.” The messages

themselves were not offered into evidence.

Howard was indicted for threatening to burn or bomb and assault and battery in July

2019, and he initially pled not guilty to both charges. Howard filed a motion to sever the charges

against him, while the Commonwealth filed a competing motion for joinder. On January 16,

2020, the circuit court granted the Commonwealth’s motion for joinder over Howard’s objection.

On January 26, 2021, Howard changed his plea regarding the domestic assault and

battery charge from not guilty to no contest. After changing Howard’s plea, defense counsel

moved to exclude evidence following the initial phone call between the Howards, including the

911 phone call made by A.H., on the basis that “[w]hat happened three to four hours later” does

not pertain to the threat. Howard argued that evidence surrounding the 911 call was “not a

permissible use of other acts of prior—of other crimes.” The circuit court excluded the 911 call

and discussion of the actual assault—the spitting. The court further limited the witnesses’

testimony to “what happened up to this point” and stated that the witnesses could “discuss they

called 911 if there was an altercation.” Howard made a continuing objection to any testimony

after the actual threat. However, on cross-examination, Howard elicited testimony from Wendy

about the text messages sent three weeks after the event.

-4- At trial, the court heard testimony from A.H., Wendy, and Deputy Houde. At the close of

the Commonwealth’s evidence, Howard made a motion to strike, arguing that he could not be

found guilty of threatening to burn or bomb his own property. The circuit court denied the

motion to strike because Howard leased the vehicle and did not own it.

Howard offered no evidence in his case-in-chief. The jury found him guilty of

threatening to burn or bomb. The circuit court imposed the jury’s recommended sentence of

eighteen months and imposed additional terms for the charge of domestic assault and battery.

Howard timely appealed.

ANALYSIS

I. Joinder of Offenses

Howard first assigns error to the circuit court’s decision to join the charges against him.

However, because he pleaded no contest to the charge of misdemeanor domestic assault and

battery, Howard waived his objection to the circuit court’s decision on that charge. Furthermore,

because joinder definitionally requires more than one offense, and he obtained a separate trial on

the charge of threatening to burn or bomb, Howard’s appeal on that charge is moot.

A. Waiver - Domestic Assault and Battery

Howard objected to the circuit court’s joinder of the charges of threatening to burn or

bomb and domestic assault and battery. However, following the circuit court’s decision to join

the charges, Howard pleaded no contest to the domestic assault and battery charge. “A guilty

plea waives all objections to non-jurisdictional defects that occurred before the plea.” Williams

v. Commonwealth, 33 Va. App. 725, 728 (2000). Likewise, when an accused enters a plea of no

contest, he waives all objections to non-jurisdictional defects that occurred before the plea.

Clauson v. Commonwealth, 29 Va. App. 282, 294 (1999). Therefore, in addressing whether

Howard waived his objection to the joinder, this Court must determine whether, assuming

-5- arguendo that the court’s decision to join the charges was a defect, that defect was

non-jurisdictional.

A circuit court’s decision to join two charges is non-jurisdictional in nature.

“Jurisdiction . . . is the power to adjudicate a case upon the merits and dispose of it as justice

may require.” Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church,

296 Va. 42, 49 (2018) (alteration in original) (quoting Shelton v. Sydnor, 126 Va. 625, 629

(1920)). In order to “adjudicate a particular case upon the merits,” a court must have active

jurisdiction. Riddick v. Commonwealth, 72 Va. App. 132, 142 (2020) (quoting Pure

Presbyterian Church of Washington, 296 Va. at 49). Active jurisdiction includes

subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and “the other conditions of fact must exist which are demanded . . . as the prerequisites of the authority of the court to proceed to judgment or decree.”

Pure Presbyterian Church of Washington, 296 Va. at 49 (quoting Morrison v. Bestler, 239 Va.

166, 169 (1990)).

The decision to join criminal charges does not implicate any of the first three components

of active jurisdiction set forth in Pure Presbyterian Church of Washington. The decision does

not affect the court’s subject matter jurisdiction to hear either charge. The decision does not

involve the court’s territorial jurisdiction, as joinder does not affect where a crime allegedly

occurred. The issue does not involve notice jurisdiction, as joinder does not affect whether a

defendant received notice of the charge against him.

Moreover, the applicable standard of review and precedent indicate that the decision to

join charges is not a “prerequisite[] of the authority of the court to proceed to judgment or

decree.” Id. “A circuit court’s determination whether a defendant may be tried for multiple -6- offenses in a single trial is a matter submitted to that court’s sound discretion.” Scott v.

Commonwealth, 274 Va. 636, 644 (2007). Necessarily, the decision to join charges cannot be

jurisdictional if the decision is in the trial judge’s discretion. Moreover, in Scott the Supreme

Court of Virginia reversed the appellant’s convictions, holding that the charges were improperly

joined and remanding the case for new trials. Id. at 648. If a jurisdictional defect in the initial

trial were the basis for such reversal, the jurisdictional defect would exist in the remanded trial as

well. Thus, the precedent and standard of review support the conclusion that a court’s decision

to join or sever charges is non-jurisdictional. By pleading no contest, Howard thus waived his

objection to the joinder ruling with respect to the charge of domestic assault and battery.

B. Mootness - Threatening to Burn or Bomb

Howard’s no contest plea to the assault and battery left the circuit court with a single

charge for trial. Because Rules 3A:10 and 3A:6 presume a trial for more than one offense,

Howard’s plea necessarily mooted his objection to the joinder with respect to the charge of

threatening to burn or bomb.

“A case becomes moot ‘when the issues presented are no longer “live” or the parties lack

a legally cognizable interest in the outcome.’” Ingram v. Commonwealth, 62 Va. App. 14, 21

(2013) (quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)). An appeal may have issues that

are both moot and not moot. See id. at 23 n.2.

Rule 3A:10(c) provides that “[t]he court may direct that an accused be tried at one time

for all offenses then pending against him, if justice does not require separate trials and (i) the

offenses meet the requirements of Rule 3A:6(b) or (ii) the accused and the Commonwealth’s

attorney consent thereto.” Rule 3A:6(b) provides that

[t]wo or more offenses, any of which may be a felony or misdemeanor, may be charged in separate counts of an indictment or information if the offenses are based on the same act or

-7- transaction, or on two or more acts or transactions that are connected or constitute parts of a common scheme or plan.

When a defendant does not consent to be tried jointly, “the Commonwealth [is] required to

establish both of the two other conditions of Rule 3A:10(c), namely, that the offenses satisfied

the requirements of Rule 3A:6(b), and that justice did not require separate trials.” Scott, 274 Va.

at 644.

There can be no joint trial of one offense. Just as it takes two to tango, it takes at least

two offenses to challenge joinder. Definitionally, Rule 3A:6(b) permits a court to join two or

more charges. Any joinder ruling rendered by the circuit court applies to both charges. When

Howard pleaded no contest to the charge of assault and battery, he cured his own objection and

gave himself the relief he sought from the circuit court—a separate trial on the charge of

threatening to burn or bomb. As a result, Howard’s assignment of error as to the charge of

threatening to burn or bomb is moot.

Howard’s first assignment of error is waived as to the charge of domestic assault and

battery, and moot as to the charge of threatening to burn or bomb. As a result, we affirm the

court on this assignment of error.

II. Admissibility of Evidence

Howard next assigns error to the circuit court’s decision to admit certain evidence

occurring after the threat to burn or bomb. The Commonwealth argues that Howard has waived

this objection by introducing similar evidence in rebuttal. While we find that Howard did not

waive this objection, we hold that the circuit court did not err in admitting the evidence.

Standard of Review

A circuit court’s decisions regarding the admissibility of evidence are reviewed for abuse

of discretion. Jones v. Commonwealth, 71 Va. App. 70, 85 (2019). A reviewing court can

-8- conclude that an abuse of discretion occurred only when reasonable jurists could not differ about

the correct result. Commonwealth v. Swann, 290 Va. 194, 197 (2015).

On appeal, Howard argues that six pieces of evidence and testimony should have been

excluded because they (A) are temporally too far removed from the initial threat, (B) are

evidence of other bad acts, and (C) are overly prejudicial. Howard objected to the admission of

the following: evidence of A.H.’s 911 telephone call; Wendy’s testimony about the evening

argument with Howard; Wendy’s testimony about her fear and reactions to Howard’s behavior;

Wendy’s testimony about Howard’s gun ownership; A.H.’s testimony about the evening

argument between her parents; and A.H.’s testimony about her belief about and reactions to

Howard’s behavior. Because the entire day was part of a continuing domestic dispute and a

reasonable jurist could find that the evidence was not substantially more prejudicial than

probative, the circuit court did not abuse its discretion in admitting evidence about the events

following the threat.

A. Timeliness2

The four-hour separation in time does not render the evidence offered irrelevant. The

evidence offered was part of a continuous, day-long domestic dispute. “Where a course of

criminal conduct is continuous and interwoven, consisting of a series of related crimes, the

perpetrator has no right to have the evidence ‘sanitized’ so as to deny the jury knowledge of all

but the immediate crime for which he is on trial.” Scott v. Commonwealth, 228 Va. 519, 526

2 The Commonwealth argues that Howard waived his second assignment of error by offering text messages further removed in time from the threatening phone call. While a defendant waives his objection to evidence he considers improper by introducing evidence of the same character in his case-in-chief, he does not waive it when it is “elicited in the cross-examination of a witness or in the introduction of rebuttal evidence.” Pettus v. Gottfried, 269 Va. 69, 79 (2005); Saunders v. Commonwealth, 211 Va. 399, 401 (1970). Howard’s counsel showed the text messages to Wendy on cross-examination to rebut her testimony. Moreover, Howard did not offer the text messages into evidence and did not offer evidence in his case-in-chief. Therefore, the Saunders waiver rule does not apply in this case. -9- (1984). “The fact-finder is entitled to all of the relevant and connected facts, including those

which followed the commission of the crime on trial, as well as those which preceded it; even

though they may show the defendant guilty of other offenses.” Id. at 526-27.

In Summerlin v. Commonwealth, 37 Va. App. 288, 291-92, 294 (2002), this Court

affirmed a circuit court’s admission of evidence of a separate threatening phone call, from a

completely different day, because it was relevant to the defendant’s intent to make a different

threat to burn or bomb. Here, the events occurred on the same day, much closer in time than the

separate days in Summerlin. Howard cites McGowan v. Commonwealth, 247 Va. 689 (2007), for

the proposition that the evidence offered by the Commonwealth after the initial threatening call

was too far removed and therefore irrelevant. In McGowan, the Supreme Court of Virginia held

that a defendant’s later alleged possession of drugs was irrelevant to his knowledge in a case for

a drug sale three months earlier. 274 Va. at 696. Here, the time gap is not three months, but four

hours. Because the caselaw does not support the proposition that a four-hour time period renders

evidence irrelevant, the circuit court did not abuse its discretion on this basis.

B. Bad Acts Evidence

Howard asserts that the evidence offered by the Commonwealth from the evening

argument was inadmissible evidence of other crimes or bad acts. Evidence of the accused’s

other crimes or bad acts are generally not admissible “to show the accused’s commission of the

particular crime charged.” Ortiz v. Commonwealth, 276 Va. 705, 714 (2008). However, the

other bad act at issue here is the domestic assault and battery, which the circuit court explicitly

prohibited the parties from introducing in its ruling on Howard’s motion in limine. The circuit

court excluded the underlying act of spitting that formed the basis for that offense. Despite

Howard’s description, the evidence at issue is not a bad act or other crime, but evidence of the

surrounding events, which likewise relate to the threatening to burn or bomb charge.

- 10 - A.H. calling 911, Howard’s gun ownership, and A.H. and Wendy testifying about the

evening argument and about their reactions to Howard’s behavior, excluding Howard’s spitting,

were not evidence of another bad act. Thus, Howard’s only remaining objection to the

evidence’s admissibility is that the evidence was overly prejudicial.

C. Prejudice

A reasonable jurist could find that the evidence Howard objected to was not substantially

more prejudicial than probative. Relevant evidence is evidence that has a “logical tendency,

however slight, to prove a fact at issue in the case.” Winston v. Commonwealth, 268 Va. 564,

596 (2004). “Relevant evidence may be excluded if . . . the probative value of the evidence is

substantially outweighed by . . . the danger of unfair prejudice . . . .” Va. R. Evid. 2:403(a). The

term “‘unfair prejudice’ refers to the tendency of some proof to inflame the passions of the trier

of fact, or to invite decision based upon a factor unrelated to the elements of the claims and

defenses in the pending case.” Lee v. Spoden, 290 Va. 235, 251 (2015).

The elements of the offense on trial are set forth in Code § 18.2-83. That section

provides that “[a]ny person . . . who makes and communicates to another by any means any

threat to bomb, burn, destroy or in any manner damage . . . any means of transportation” is guilty

of a felony. Code § 18.2-83(A). To establish a threat to bomb or burn, the Commonwealth is

required to prove that the defendant made and communicated to the victim a threat to bomb,

burn, destroy, or in any manner damage any means of transportation. Summerlin, 37 Va. App. at

297. “[M]alice is not an element of Code § 18.2-83,” and “proof only of [the defendant’s] mens

rea, or unlawful intent,” is required. Id. at 296. “Proof that [the defendant] intended to make

and communicate the threat and that the threat was made and communicated satisfies the

statutory requirement.” Id. at 297. Moreover, a threat is “a communication avowing an intent to

injure another’s person or property” and “must reasonably cause the receiver to believe that the

- 11 - speaker will act according to his expression of intent.” Perkins v. Commonwealth, 12 Va. App.

7, 16 (1991).

All of the evidence Howard objects to is relevant, and the court did not abuse its

discretion in finding that the prejudice did not substantially outweigh its probative value. The

Commonwealth’s evidence of the 911 telephone call, Howard’s gun ownership, and testimony of

Wendy and A.H. about the evening argument and their reactions to Howard’s behavior all relate

to the events following the threat, Howard’s ability to carry out the threat, Wendy’s belief in the

threat, and the relationship between the Howards. Given that the circuit court excluded the

evidence of the spitting, the only prejudice remaining was the potential risk of the jurors

conflating Wendy’s belief with A.H.’s belief or conflating the mere fact that Howard owned

guns with the Howard’s guilt of the instant crime. Because Howard is not entitled to present a

sanitized version of the facts, and the day’s events are interconnected, a reasonable jurist could

find that the prejudice did not substantially outweigh the testimony’s probative value.

The evidence at issue is not too far removed in time and is not evidence of other bad acts.

Moreover, the evidence’s probative value is not substantially outweighed by any prejudice.

Therefore, the circuit court did not abuse its discretion in admitting evidence of the evening

argument that followed the threat to burn or bomb.

III. Sufficiency of the Evidence

Howard next assigns error to the sufficiency of the evidence for his conviction of

threatening to burn or bomb. Howard limits his assignment of error to whether Wendy’s fear of

Howard’s threatening statement was reasonable. Because there was sufficient evidence that

Wendy reasonably feared that Howard would follow through on his threat, the circuit court did

not err.

- 12 - Standard of Review

“When reviewing the sufficiency of the evidence to support a conviction, the Court will

affirm the judgment unless the judgment is plainly wrong or without evidence to support it.”

Bolden v. Commonwealth, 275 Va. 144, 148 (2008). “[T]he evidence and all reasonable

inferences flowing therefrom must be viewed in the light most favorable to the prevailing party

in the trial court . . . .” Enriquez v. Commonwealth, 283 Va. 511, 514 (2012).

As discussed above, the charge of threatening to burn or bomb requires showing that the

defendant made and communicated to the victim a threat to bomb, burn, destroy, or in any

manner damage any means of transportation and that he reasonably caused the receiver to

believe that the speaker will act according to his threat. See Code § 18.2-83(A); Summerlin, 37

Va. App. at 297; Perkins, 12 Va. App. at 16.

Wendy testified that she believed Howard would follow through on his threat because of

his military training and his history of following through on promises. She asserted that he used

guns and explosives at work and was familiar with automobiles. Wendy testified that Howard

made the threat when he was agitated. When Wendy returned home and Howard was not there,

she barricaded the front door to prevent him from entering. Once Howard entered the house and

they began arguing, Wendy locked herself in the room with his guns and ammunition. Wendy’s

testimony and reaction to Howard’s threat demonstrated her belief that he would follow through

on his threat. A.H.’s testimony corroborated the reasonableness of Wendy’s belief. Moreover,

the testimony about Howard’s training, knowledge, and past behavior provided a basis to

conclude that such belief was reasonable. Therefore, as there was sufficient evidence for the jury

to convict Howard of threatening to burn or bomb, we affirm the circuit court on this assignment.

- 13 - IV. Code § 18.2-83

Finally, Howard argues that the circuit court misapplied Code § 18.2-83 to this case’s facts,

because he owned the vehicle he threatened to bomb. Because the statute’s plain language does not

draw a distinction based on property ownership, we find that the circuit court did not err.

“Statutory interpretation is a question of law which we review de novo, and we determine

the legislative intent from the words used in the statute, applying the plain meaning of the words

unless they are ambiguous or would lead to an absurd result.” Wright v. Commonwealth, 278

Va. 754, 759 (2009).

Code § 18.2-83(A) provides that “[a]ny person . . . who makes and communicates to

another by any means any threat to bomb, burn, destroy or in any manner damage . . . any means

of transportation” is guilty of a felony.

This statute’s plain language does not differentiate based on property ownership. Instead,

the statute prohibits threatening to bomb or burn “any means of transportation.” Code § 18.2-83.

The ownership distinction argued by Howard arises from this Court’s opinion in Perkins, 12

Va. App. at 15. There, this Court addressed a First Amendment challenge to Code § 18.2-83, where

the appellant argued that the statute was facially invalid because it was unconstitutionally

overbroad. Id. at 11-12. Perkins’ challenge raised the statute’s overbreadth generally, and not its

application solely to his case. Id. Perkins claimed that because the statute did not draw a distinction

based upon the property’s ownership, the statute unconstitutionally criminalized threats to destroy

one’s own property. Id. at 15. In addressing the overbreadth argument, this Court reasoned that

[a]s for threats to destroy one’s own property, “[t]he mere fact that one can conceive of some impermissible application of a statute is not sufficient to render it susceptible to an overbreadth challenge; there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not

- 14 - before the court for the statute to be facially challenged on overbreadth grounds.”

Id. at 15-16 (quoting City Council v. Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984)). The

Court further noted that “[s]uch a realistic threat does not exist in this instance.” Id. at 16.

Thus, Howard attempts to use the phrase “some impermissible application of a statute” to

write a distinction into Code § 18.2-83(A) that does not exist. The Court’s holding in Perkins was

constrained to its conclusion that there was no “realistic danger that the statute itself will

significantly compromise recognized First Amendment protections of parties not before the court.”

Id. at 15-16. At most, the Court’s opinion stated that Code § 18.2-83(A) did not pose a realistic

danger to the First Amendment protections of non-parties. Id. It did not limit the application of

Code § 18.2-83(A).

The case before us is not a First Amendment challenge to Code § 18.2-83. Rather,

Howard’s fourth assignment of error is based upon a misunderstanding of the elements of the

offense at issue. Nothing in the statute’s plain language carves out threats to burn or bomb one’s

own property from the scope of the offense. Perkins did not change the statute, and Howard does

not argue that his First Amendment rights are violated by his conviction. Therefore, because the

statute’s plain language prohibits threatening to burn or bomb “any means of transportation”

regardless of ownership, we affirm the circuit court.

CONCLUSION

Howard waived his objection to the joinder of his charges by pleading no contest to the

assault and battery charge. The circuit court did not abuse its discretion in the admission of

evidence at trial and did not misapply Code § 18.2-83. Finally, there was sufficient evidence to

convict Howard of threatening to burn or bomb. Therefore, we affirm the circuit court’s

decision.

Affirmed. - 15 -