Saunders v. Commonwealth, Record No. 0267-14-3
Decision Date | 27 January 2015 |
Docket Number | Record No. 0267-14-3 |
Court | Virginia Court of Appeals |
Parties | JAMAL KEMO SAUNDERS v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Petty, Beales and Decker
Argued at Lexington, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Sherron E. Ashby, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jamal Kemo Saunders appeals from his conviction in a bench trial for possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2(A).1 Specifically, he suggests that the Commonwealth failed to establish that the weapon in his possession was "designed, made, and intended to fire or expel a projectile by means of an explosion." The Court holds that the evidence was sufficient to support the conviction and affirms the judgment of the trial court.
On the afternoon of July 4, 2013, Danny Roberts was walking home with friends when he encountered the appellant. Roberts walked past the appellant, who was sitting on the porch of a house along Roberts' route. The appellant "yelled out" at Roberts, who acknowledged him. The appellant said, "I'm going to shoot you in the face." Roberts saw an object in the appellant's hands, which he described as "a long rifle looking .22[,] like a .22 rifle" pointed at him. Specifically, Roberts explained that he knew "all guns," and he identified this one as a ".22 rifle gun."
Roberts "thought [the rifle] was real," and right after he saw it, the appellant "shot [him]." Roberts believed that the appellant fired the rifle twice. He did not hear a loud sound or "bang" but heard, instead, a sound "like . . . pshht (Indicating)." After the shots were fired, Roberts left the scene. When Roberts arrived home, his girlfriend told him that he had blood on his shirt. Roberts was surprised and said that he did not "feel it." He found the wound and "[p]atched it up."
The following morning, Roberts opened the front door to his house to let his mother inside. He saw the appellant running toward him and heard the appellant tell his mother to get out of the way, adding, "I'm going to kill him." Roberts' mother saw the appellant pull a handgun out of his bookbag. Roberts slammed the door, and his mother got back into her car and left.
Four days after the shooting, Roberts went to the hospital to be treated for his wound. Photographs of the injury were admitted into evidence at trial. Roberts identified the wound in thephotographs as the injury from July 4. He also explained that he was scheduled to have surgery for the wound.
At the conclusion of the Commonwealth's evidence and again at the close of all the evidence, the appellant made a motion to strike. He argued that Code § 18.2-308.2 requires proof that the weapon was an actual firearm capable of producing or expelling a projectile by means of an explosion rather than by pneumatic pressure and that the evidence failed to meet that standard. He also pointed to the sound the weapon made when discharged and provided examples of evidence that he believed failed to support the conclusion that the victim was struck with a projectile or was seriously injured. The parties and the court also discussed the difference between the type of evidence necessary to prove the crime of possession of a firearm under Code § 18.2-308.2 and the more relaxed proof needed for the various other firearm offenses for which the appellant was on trial, including use of a firearm in the commission of a felony and brandishing a firearm.
The court denied the motions to strike and convicted the appellant of possession of a firearm by a convicted felon. The appellant was also convicted of malicious wounding in violation of Code § 18.2-51 and use of a firearm in the commission of a felony in violation of Code § 18.2-53.1, convictions not challenged on appeal. The court found the appellant not guilty of two offenses relating to the events of July 5, brandishing a firearm and a second count of possession of a firearm by a convicted felon. The court made clear that it found the testimony of Roberts and his mother credible regarding the events of July 5. However, it noted that the appellant was charged with brandishing the gun "to induce fear [in] Danny Roberts" and Roberts testified that he did not see the appellant with a gun on that date. The appellant was sentenced to five years in prison for the firearm offense that is the subject of this appeal.
The appellant contends that the trial court erred by finding the evidence sufficient to convict him of possession of a firearm by a convicted felon. His specific challenge relates to proof that the weapon in his possession on July 4 was a "firearm" for purposes of Code § 18.2-308.2. He suggests that the evidence fails to establish that the weapon was "designed, made, and intended to fire or expel a projectile by means of an explosion" and that it could, instead, have been a pneumatic gun.
The appellant was tried by the circuit court, sitting without a jury. Consequently, that court was the fact finder and its judgment is afforded the same weight as a jury verdict. Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129 (2011). The trial court's decision will not be reversed unless it is "'plainly wrong or without evidence to support it.'" Id. (quoting Code § 8.01-680). The law is also clear that determining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and see them as they testify. Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998); Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). Further, the fact finder is responsible for determining what inferences are to be drawn from proved facts, provided that the inferences reasonably flow from those facts. See Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003); Burton v. Commonwealth, 58 Va. App. 274, 283, 708 S.E.2d 444, 449 (2011). Finally, if the evidence is sufficient to support the conviction, the reviewing appellate court will not "substitute its own judgment for that of the trier of fact, even if its opinion might differ from the conclusions reached by the [fact finder]." Jordan v. Commonwealth, 286 Va. 153, 156-57, 747 S.E.2d 799, 800 (2013); see Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc).
This Court, however, reviews questions regarding the interpretation and application of a statute de novo. See Sarafin v. Commonwealth, ___ Va. ___, ___, 764 S.E.2d 71, 74 (2014)(interpretation); Moore v. Commonwealth, 276 Va. 747, 753, 668 S.E.2d 150, 153 (2008) (interpretation and application). Code § 18.2-308.2(A), in pertinent part, states that it is unlawful for any person previously convicted of a felony "to knowingly and intentionally possess . . . any firearm." Although this code section does not define the term "firearm," the Supreme Court of Virginia has held that a firearm, for purposes of Code § 18.2-308.2, is "'any instrument designed, made, and intended to fire or expel a projectile by means of an explosion.'" Jordan, 286 Va. at 157, 747 S.E.2d at 801 (quoting Armstrong v. Commonwealth, 263 Va. 573, 583, 562 S.E.2d 139, 145 (2002)); see also Adjei v. Commonwealth, 63 Va. App. 727, 751-54, 763 S.E.2d 225, 237-38 (2014) ( ). The Court further concluded that the definition does not require "any element of present capacity or operability." Jordan, 286 Va. at 157, 747 S.E.2d at 801; see also Barlow v. Commonwealth, 61 Va. App. 668, 672-73, 739 S.E.2d 269, 271-72 (2013). In addition, the definition of a firearm under Code § 18.2-308.2 does not include a pneumatic gun, which "propels a projectile by pneumatic pressure" rather than "by an explosion or discharge of gunpowder." Jones v. Commonwealth, 16 Va. App. 354, 356-58, 429 S.E.2d 615, 615-17, adopted on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993); see Armstrong, 263 Va. at 578 n.2, 583-84, 562 S.E.2d at 142 n.2, 145. Under other statutes, however, including Code § 18.2-53.1, which proscribes the use of a firearm in the commission of a felony, and Code § 18.2-308.4(C), which proscribes the use or display of a firearm while committing certain drug-related crimes, the definition of a firearm is "'broad[er]'" and "includes any instrument that 'gives the appearance of being a firearm.'" Startin v. Commonwealth, 281 Va. 374, 382, 706 S.E.2d 873, 878 (2011) ( )(quoting Armstrong, 263 Va. at 582-83, 562 S.E.2d at 144); see 1 Va. Model Jury Instructions - Criminal, No. 18.616, pr. cmtry. (2012)("[Code] § 18.2-308.4(C) is analogous to [Code] § 18.2-53.1" regarding what constitutes a firearm). that
Whether an object is a firearm under the definition applicable to Code § 18.2-308.2, like any element of a crime, "may be proved by any direct or circumstantial evidence, as long as the evidence as a whole is sufficiently convincing to exclude all reasonable hypotheses of innocence." Boone v. Commonwealth, 63 Va. App. 383, 393, 758 S.E.2d 72, 77 (2014). However, "[t]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence . . . ." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is reasonable is a question of fact. Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988). Consequently, the fact finder's "rejection of a hypothesis of innocence" is binding on appeal unless plainly...
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