Rose v. Com.

Decision Date04 March 2009
Docket NumberRecord No. 2762-07-3.
Citation673 S.E.2d 489,53 Va. App. 505
PartiesRechell Lynn ROSE v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

B. Leigh Drewry, Jr. (Cunningham & Drewry, on brief), Lynchburg, for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, McCLANAHAN and PETTY, JJ.

FRANK, Judge.

Rechell Lynn Rose, appellant, was convicted, in a bench trial, of use of a firearm while in the commission of robbery, in violation of Code § 18.2-53.1. On appeal, appellant challenges the sufficiency of the evidence, contending that the victim's perception of the weapon as a firearm is necessary to sustain the conviction. For the reasons stated, we affirm the trial court.

BACKGROUND1

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

L.S., the victim, owned a restaurant and had earlier employed her friend, appellant, to help in the kitchen. One evening, appellant discussed with a friend the idea of robbing L.S. The following evening, appellant, her friend, and three other individuals went to L.S.'s house to rob her. One of the men, "Al," was armed with a nine-millimeter pistol.

As L.S. was getting out of her car, one man wrestled L.S. to the ground and attempted to take her deposit bag, which contained nine to ten thousand dollars in cash. When L.S. did not let go, "Al" struck her in the head five times with the pistol, causing L.S. to release the bag.

L.S. recalled being struck in the head, but was unable to identify the object with which she was beaten. She testified that she never saw a pistol during this encounter.

Upon a proffer of the evidence, the trial court convicted appellant of use of a firearm in the commission of robbery. This appeal follows.

ANALYSIS
Use of Firearm as a Club

Appellant argues that the gun was used as a club and Code § 18.2-53.1 does not proscribe the use of clubs in certain felonies.2 She reasons that "Al" ceased to use the pistol in the manner for which it was designed, namely, as an instrument designed to expel a projectile by force as defined in Armstrong v. Commonwealth, 36 Va.App. 312, 549 S.E.2d 641 (2001) (en banc). Using a gun in this "altered" state, she argues, precludes a conviction pursuant to Code § 18.2-53.1.

Code § 18.2-53.1 provides in relevant part:

It shall be unlawful for any person to 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 . . . robbery, . . . .

"[W]e review the trial court's statutory interpretations and legal conclusions de novo." Navas v. Navas, 43 Va.App. 484, 487, 599 S.E.2d 479, 480 (2004) (citing Sink v Commonwealth, 28 Va.App. 655, 658, 507 S.E.2d 670, 671 (1998)).

In Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002), the Supreme Court defined a firearm as "an instrument which was designed, made, and intended to expel a projectile by means of an explosion." Appellant contends that if an object is not used to expel a projectile, it is not being used as a "firearm" and, therefore, its "use" is not prohibited by Code § 18.2-53.1.

Although we construe statutes strictly in criminal cases, we will not apply "an unreasonably restrictive interpretation of the statute" that would subvert the legislative intent expressed therein. Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979). "`[T]he plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction; a statute should never be construed so that it leads to absurd results.'" Newton v. Commonwealth, 21 Va.App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992)). We find no language in Code § 18.2-53.1 that restricts its application to using firearms only in instances where the firearm expels a projectile by force.

In Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980), and Wubneh v. Commonwealth, 51 Va.App. 224, 656 S.E.2d 418 (2008), the Courts address whether an object can be classified as a "firearm" based upon the firing capabilities of the object. In essence, the cases simply determine whether a purported firearm may be deemed a "firearm" for purposes of enforcing Code § 18.2-53.1. Here, however, appellant concedes the weapon used by "Al" was a firearm, a nine-millimeter pistol. The only question is whether the statute limits the manner in which a gun must be used in order to violate the statute.

Other jurisdictions have specifically addressed the issue of a gun being used as a club and have found that the concept of "use" should be broadly construed. The Kansas Court of Appeals was asked to determine whether the appellant, who struck his ex-wife on her head with a gun, was properly classified by the Department of Corrections for purposes of sentencing because he "used a firearm in the commission of [a] crime." Finding that he did, the court stated:

Within the context of [the statute], we believe that the concept of "use" should be broadly construed and conclude that [appellant] used a firearm in the commission of the aggravated battery within the meaning of the statute. This is consistent with the legislative intent in Kansas to address public concern over the increased number of crimes involving firearms and with our Supreme Court's conclusion that enhancement of a sentence where a firearm is used is a legitimate effort to deter the use of a firearm.

State v. George, 20 Kan.App.2d 648, 891 P.2d 1118, 1125 (1995). In reaching its conclusion, the Kansas Court of Appeals considered a previous Kansas Supreme Court case, State v. Smith 232 Kan. 284, 654 P.2d 929 (1982), in which the court was called upon to determine whether the defendant used a rifle within the meaning of a firearm statute. There, the defendant and the victim each had their hands on defendant's rifle and were struggling to gain sole possession of the weapon. Smith, 654 P.2d at 934. During the struggle, the victim fell over the balcony railing and the defendant argued this did not constitute "use" of a firearm within the meaning of the firearm statute. Id. The Kansas Supreme Court disagreed, stating that "defendant's `mighty heave' on the firearm is what pulled [the victim] over the railing . . .," rendering the rifle "the instrumentality of the aggravated battery." Id. Considering this, the Kansas Court of Appeals in George concluded:

Smith is a clear statement by the Supreme Court [of Kansas] that use of a gun in an aggravated battery is not limited to firing it for purposes of the statute. If using a gun to push someone over a railing is use of a firearm, it follows that hitting someone with a gun — a more direct utilization of the gun — is also a contemplated use.

George, 891 P.2d at 1124.

In People v. Reaves, 42 Cal.App.3d 852, 117 Cal.Rptr. 163 (1974), the California Court of Appeal approved a jury instruction which stated that use of a firearm includes "not only an intentional discharge thereof but also the use thereof as an object with which to hit or strike or display in a menacing manner." Id. at 165. In noting that it is the desire of the legislature to prevent death and injury as a result of the involvement of firearms in the commission of crimes, the California court read the statute broadly and concluded:

[T]he intentional firing of the gun is use of the firearm. The display of the gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or "pistol whip" the victim is certainly "use" of the gun in the commonly accepted definition of that term. Because either such "use," i.e., the menacing display of or striking the victim with the gun carries the ever-dangerous potential of a discharge of the firearm, both such "uses" are properly included within the spirit and purpose of [the statute]. Thus by defining what constitutes "use" of a firearm, [the statute] necessarily informs the jury that "use" is different than being "armed."

Id. at 166.

We further note that "[n]o court of appeals ever has held that using a gun to pistol-whip a victim is anything but the `use' of a firearm . . . ." Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 2056, 124 L.Ed.2d 138 (1993); see also Bailey v. United States, 516 U.S. 137, 148, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995) ("The active-employment understanding of `use' certainly includes brandishing, displaying, bartering, striking, and most obviously, firing or attempting to fire a firearm." (emphasis added)).

"A primary rule of statutory construction is that courts must look first to the language of the statute. If a statute is clear and unambiguous, a court will give the statute its plain meaning." Loudoun County Dep't of Social Servs. v. Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). "Generally, the words and phrases used in a statute should be given their ordinary and usually accepted meaning unless a different intention is fairly manifest." Woolfolk v. Commonwealth, 18 Va.App. 840, 847, 447 S.E.2d 530, 534 (1994).

We observe that our legislature did not define the term "use," nor did it offer examples of how one might "use" a firearm. Thus, we are obligated to give "use" its ordinary and plain meaning. Webster's dictionary defines use as "to employ for some purpose; to put into service." Random House Webster's College Dictionary 1414 (2d ed.1997).

The purpose of Code § 18.2-53.1 is to deter violent criminal conduct. Holloman, 221 Va. at 198, 269 S.E.2d at 358. The statute is aimed at preventing actual physical injury and also to discourage criminal conduct that...

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