Aaron Markeith Gerald v. Commonwealth of Virginia

805 S.E.2d 407, 68 Va. App. 167, 2017 WL 4622141, 2017 Va. App. LEXIS 261

• Court: Court of Appeals of Virginia
• Decided: October 17, 2017
• Docket: 0731161
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA PUBLISHED

Present: Judges Humphreys, Decker and Russell Argued at Virginia Beach, Virginia

AARON MARKEITH GERALD OPINION BY v. Record No. 0731-16-1 JUDGE ROBERT J. HUMPHREYS OCTOBER 17, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge1

Harry Dennis Harmon, Jr., for appellant.

Stephen L. Forster, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Aaron Markeith Gerald (“Gerald”) appeals the decision by the Circuit Court of Virginia

Beach (“circuit court”) convicting him of discharging a firearm in public under Code § 18.2‑280,

brandishing a firearm under Code § 18.2‑282, possession of a firearm by a convicted felon in

violation of Code § 18.2‑308.2, and revoking a previously suspended sentence based on those

convictions.2 Gerald contends that the evidence was insufficient to prove that the object in

question was a “firearm” as defined by law.

1 Judge Leslie L. Lilley presided over the jury trial on July 15, 2014. 2 While the record is something less than a model of clarity, it appears that this appeal consolidates assignments of error relating to his conviction by a jury on July 15, 2014 of possession of a firearm by a convicted felon and his conviction in a bench trial on November 5, 2014 for the remaining charges and the probation violation, all of which arise out of the same incident. I. BACKGROUND

On May 28, 2013, James Goode (“Goode”) dropped off his seventeen-year-old son

Michael Ramel Goode (“Ramel”) at Scarborough Square, a neighborhood in Virginia Beach, for

a visit with Ramel’s friend Xavier Browder (“Browder”). Looking back as he drove away,

Goode saw that Ramel was “slap boxing” in the middle of the street with an adult, Calvin Scott

(“Scott”). Goode returned to Ramel, stopped his vehicle in the street, and got out. Goode began

talking with Scott in an attempt to end the altercation, while ushering Ramel and Browder into

his vehicle. A gunshot interrupted Goode and Scott’s conversation. Turning toward the noise,

Goode saw Gerald, a convicted felon, walking toward him. Gerald, continuing his advance, fired

a second gunshot. Gerald then pointed the gun directly at Goode while he walked to the

passenger side of Goode’s vehicle where Ramel was sitting. Gerald pressed the gun into

Ramel’s thigh and grabbed Ramel’s legs, attempting to pull him out of the vehicle. Goode began

pulling on Ramel’s arms through the vehicle from the driver’s side. Goode testified he was able

to free Ramel from Gerald’s grasp, at which point Gerald fired a third shot into the pavement.

Simultaneously, Detective John Belsha, working in an undercover capacity, drove by the

scene while investigating another matter. As he passed Goode’s vehicle, Belsha observed an

argument between the occupants of the vehicle and a man standing outside the vehicle.

Detective Belsha parked approximately one hundred and fifty feet past Goode’s vehicle to

observe. Belsha watched as the physical altercations developed and, as Gerald was pulling

Ramel from the vehicle, Belsha observed “a large frame handgun” in Gerald’s hand. Belsha saw

that Gerald “point[ed] [the handgun] up, discharge[d] one round, brought the handgun back

down, looked at it, and then discharged another round towards the ground.” Detective Belsha

testified that, based on his training and experience, such a handgun was “capable of expelling a

projectile by the means of explosion.” Gerald and Scott left the scene of the altercation and

-2- entered a nearby townhouse where Shaniqua Rowe (“Rowe”), Gerald’s girlfriend and Scott’s

sister, resided.

Detective Belsha called for a marked police unit to respond. When the second police unit

arrived, Gerald, Scott, and the other occupants were ordered out of the house. Once Gerald was

in custody, an inspection of the street where the altercation occurred produced two shell casings

and bullet fragments in the area where Gerald was standing. The forensic scientist who analyzed

the casings testified that they were both fired from the same gun. It was at least thirty minutes

before consent to search the townhouse was obtained. During that time, the back door was

unsecured and police saw Rowe go into a neighbor’s townhouse twice. When the townhouse

was eventually searched, no firearm was recovered.

Gerald was convicted by a jury of possession of a firearm by a convicted felon and

sentenced to five years in the Virginia State Penitentiary. Gerald was also convicted in a bench

trial of discharging a firearm in public and brandishing a firearm, and sentenced to twelve

months in jail for each offense and, as a result of these convictions, was also found to be in

violation of the terms of his probation.

II. ANALYSIS

A. Standard of Review

Because all of Gerald’s assignments of error relate to the sufficiency of the evidence to

establish that the item at the center of his various convictions and probation revocation was a

“firearm” and because the outcome of all of the assignments of error turn on the statutory

definition of that term, we consolidate our analysis of his assignments of error to that dispositive

issue.

When the sufficiency of the evidence is challenged on appeal, this Court “must affirm the

conviction unless it is plainly wrong or without evidence to support it.” Spencer v. City of

-3- Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358 (2006) (citing Commonwealth v. Presley, 256

Va. 465, 466, 507 S.E.2d 72, 72 (1998)). This Court must examine the evidence “in the light

most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom.” Crest v. Commonwealth, 40 Va. App. 165, 168, 578 S.E.2d 88, 89 (2003) (citing

Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997)).

However, whether a statute has been correctly construed is a “question of law which we

review de novo upon appeal.” Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227,

229 (2007) (citing Dowling v. Rowan, 270 Va. 510, 519, 621 S.E.2d 397, 401 (2005)). “The

primary objective of statutory construction is to ascertain and give effect to legislative intent.”

Lawlor v. Commonwealth, 285 Va. 187, 236, 738 S.E.2d 847, 875 (2013) (quoting Conger v.

Barrett, 280 Va. 627, 630-31, 702 S.E.2d 117, 118 (2010)). “In interpreting [a] statute, ‘courts

apply the plain meaning . . . unless the terms are ambiguous or applying the plain language

would lead to an absurd result.’” Baker v. Commonwealth, 284 Va. 572, 576, 733 S.E.2d 642,

644 (2012) (quoting Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006)). “A

statute is considered ambiguous ‘if the text can be understood in more than one way or . . . lacks

clearness or definiteness.’” Id. If the term is ambiguous, the court looks to the gravamen of the

offense to determine legislative intent. Id. at 576, 733 S.E.2d at 644-45 (citations omitted).

Further, when criminal statutes are at issue they “must be construed strictly against the

Commonwealth and in favor of the accused.” Jones v. Commonwealth, 16 Va. App. 354, 356,

429 S.E.2d 615, 616 (1993) (citing Johnson v. Commonwealth, 211 Va. 815, 819, 180 S.E.2d

661, 664 (1971)).

B. Definition of Firearm for Purposes of Brandishing: Code § 18.2‑282

Code § 18.2‑282 twice describes what is considered a firearm for brandishing purposes.

First, generally proscribing pointing, holding, or brandishing “any firearm or any air or gas

-4- operated weapon or any object similar in appearance, whether capable of being fired or not, in

such manner as to reasonably induce fear in the mind of another.” Code § 18.2‑282(A)

(emphasis added). Second, it defines a firearm as “any weapon that will or is designed to or may

readily be converted to expel single or multiple projectiles by the action of an explosion of a

combustible material.” Code § 18.2‑282(C).

Gerald argues that the object described as a gun by both Goode and Detective Belsha

merely had the appearance of a firearm. However, given the plain language of Code

§ 18.2‑282(A) quoted above, this argument erroneously addresses the sufficiency analysis

regarding the brandishing offense. Moreover, the evidence taken in the light most favorable to

the Commonwealth shows that Gerald pointed this object at multiple individuals in a manner

intended to induce fear based upon its appearance as a weapon apparently capable of firing one

or more times. His actions in doing so are legally sufficient to establish the requisite elements of

brandishing a firearm. Furthermore, in the context of the brandishing offense, the fact that he

also actually fired the gun several times merely confirms and corroborates the testimony of

Goode and Detective Belsha that the gun was what it appeared to be, and Gerald’s actions

asserted it was – a firearm – thereby satisfying the statutory description and definition.

C. Definition of Firearm for Purposes of Discharging: Code § 18.2‑280

Unlike the brandishing statute, Code § 18.2‑280, banning the willful discharge of a

firearm in public, does not contain its own statutory definition of “firearm.” Gerald’s argument

requires that we determine that definition as a matter of first impression. Because no express

definition is provided within Code § 18.2‑280, and both the General Assembly and the courts

have defined firearm differently in different contexts within the Code, we assume without

deciding that the term “firearm” in Code § 18.2‑280 is ambiguous. In attempting to discern the

intent of the General Assembly, courts turn to related statutes “reading them in pari materia with

-5- the statute under consideration, in order to give consistent meaning to the language used by the

General Assembly.” Armstrong v. Commonwealth, 263 Va. 573, 583, 562 S.E.2d 139, 145

(2002). Further, “[i]t is a common canon of statutory construction that when the legislature uses

the same term in separate statutes, that term has the same meaning in each unless the General

Assembly indicates to the contrary.” Barson v. Commonwealth, 284 Va. 67, 74, 726 S.E.2d 292,

296 (2012) (quoting Jenkins v. Mehra, 281 Va. 37, 48, 704 S.E.2d 577, 583 (2011)). Our

Supreme Court adopted this reasoning in Armstrong in defining “firearm” for Code § 18.2‑308.2,

one of Gerald’s convictions at issue here, as “an instrument which was designed, made, and

intended to expel a projectile by means of an explosion.” Armstrong, 263 Va. at 584, 562 S.E.2d

at 145. The Commonwealth argues that we should simply graft the definition of “firearm”

provided by the Supreme Court in Armstrong to that term as it is used in Code § 18.2‑280.

In considering the Commonwealth’s argument, we note that, because of the specific

nature of the offense, the Supreme Court in Armstrong explicitly rejected other, broader

definitions encompassing any “element of perception by a victim.” Id. at 583, 562 S.E.2d at 144.

This narrow definition was expressly limited by the Supreme Court to prosecutions for

Code § 18.2‑308.2. Second, the definition of a “firearm” in Armstrong contrasts with that

provided in Code § 18.2‑282(A) discussed above, where the functionality of the weapon is

incidental to the effect the appearance as a firearm produces in a victim, the gravamen of the

offense established by the General Assembly. Code § 18.2‑280(A) contemplates the actual

discharge of a firearm “in any street in a city or town, or in any place of public business or place

of public gathering . . . . ” Thus, unlike Code § 18.2‑282 discussed above, the gravamen of

Code § 18.2‑280 is not narrowly limited to the effect of that discharge on an observer. Rather it

also includes the physical danger the discharge of a firearm in such a place would pose to the

general public. It is axiomatic that an object with the mere appearance of a firearm cannot be

-6- discharged, and including such objects in the definition would impermissibly expand the statute.

See Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983) (explaining that

penal statutes must be “limited in application to cases falling clearly within the language of the

statute”). Given our duty to read statutes in pari materia, we note that both Code § 18.2‑280 and

Code § 18.2‑282 are contained in Article 4 of Chapter 7 of Title 18.2 of the Code entitled

“Dangerous Use Of Firearms and Other Weapons” and that the definition of “firearm” in

Code § 18.2‑282(C) clearly serves the intended purpose of Code § 18.2‑280. This definition also

serves the interest of giving consistent meaning to the language used by the General Assembly in

similar statutes. We therefore conclude that the definition of firearm the legislature provided in

Code § 18.2‑282(C); “any weapon that will or is designed to or may readily be converted to

expel single or multiple projectiles by the action of an explosion of a combustible material” is the

appropriate definition of “firearm” for the purposes of Code § 18.2‑280.

D. Sufficiency of the Evidence

However, no reasonable definition with respect to any of the offenses here, provides

relief for Gerald. He cites Jordan v. Commonwealth, 286 Va. 153, 747 S.E.2d 799 (2013), in

support of his argument that the evidence here is insufficient to show that the object he displayed

and used was a firearm. No firearm was recovered in Jordan, but the victim was able to give a

detailed description of the gun involved, identifying make and caliber. Gerald argues that the

lack of such specific identifying qualities in evidence differentiates this case from Jordan and

renders the evidence here insufficient. In doing so, Gerald ignores a glaring contrast with

Jordan; the gun in Jordan was never fired. There is no need to determine make, model, and

caliber when the law requires a weapon designed to “expel single or multiple projectiles” and

Gerald demonstrates that capability in front of multiple witnesses, one of whom is an

experienced law enforcement officer. Notwithstanding the failure to recover the weapon, it is

-7- difficult to conceive of what more a forensic report from a ballistics examiner could provide

regarding the nature of the object Gerald displayed and discharged as a firearm than the

testimony in the record before us supplies.

The capability of the weapon to fire was relevant in Jordan, but given that Code

§ 18.2‑280 requires a discharge, and the evidence here is that such discharge occurred multiple

times, the evidence taken in the light most favorable to the Commonwealth unquestionably

shows that Gerald discharged a firearm in a public place.

III. CONCLUSION

For the foregoing reasons, we find that the trial court did not err in its conclusion that the

evidence was sufficient to support Gerald’s convictions pursuant to Code § 18.2‑308.2,

Code § 18.2‑282, and Code § 18.2‑280 and, therefore, these convictions support Gerald’s

probation violation and the revocation of his previously suspended sentence. Accordingly, the

judgment of the circuit court is affirmed.

Affirmed.

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