COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Causey, Friedman and Senior Judge Clements Argued at Richmond, Virginia
BENJAMIN LAWRENCE BURTON MEMORANDUM OPINION* BY v. Record No. 1386-23-2 JUDGE JEAN HARRISON CLEMENTS FEBRUARY 11, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson, Judge
J. Martelino, Jr., for appellant.
Susan Hallie Hovey-Murray, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Benjamin Lawrence Burton appeals his convictions for possession of a Schedule II
controlled substance, possession of a firearm while possessing a Schedule II controlled
substance, carrying a concealed weapon, and two counts of brandishing a firearm. He contends
that the trial court provided an incomplete jury instruction on the definition of a “firearm,”
affecting “the outcome of the case.” He also challenges the sufficiency of the evidence to
support his convictions. For the following reasons, we affirm.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
The evidence established that on the night of March 29, 2022, Burton knocked on
Dietrick Christian’s door to discuss a conflict between their respective sons. Porch lights
illuminated Christian’s porch and front yard, and a surveillance camera recorded the area. After
answering the door, Christian stood on his porch while Burton paced in the front yard. During
the conversation, Burton produced a firearm from his waistband, “flashed” it at Christian, and
said that if Christian’s son was present, Burton “would have [taken] it to another level.”
Christian immediately recognized the object as a firearm based on its appearance, the manner in
which Burton handled it, and his own experience with firearms. He said it was silver with black
trim. After the men exchanged a few more words, Burton left.
When Christian’s son returned home, about an hour after Burton had left, Burton returned
and again knocked on the door. Burton asked if Christian’s son was there, and Christian called
his son outside. As soon as the son stepped out, Burton ran onto the porch to confront him.
Concerned for his son’s safety, Christian pushed his son behind him, wedging him between
Christian and the front door. Christian explained that he wanted to protect his son and “would
take a bullet for” him. Seeing the same firearm in Burton’s waistband, Christian pushed Burton
back into the yard. Burton then drew the firearm and “wav[ed] it around,” yelling that Christian
“better control [his] son” and that “this is where it can go real bad.”
During the second encounter, Christian’s wife called the police. When the officers
arrived, Burton “took off” towards the backyard with the firearm still on his person. Within 30
minutes, police officers found Burton approximately 100 yards from Christian’s house. The
1 Under settled principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party at trial. “Accordingly, we regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence.” Meade v. Commonwealth, 74 Va. App. 796, 802 (2022) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). -2- officers did not find a firearm on Burton, but discovered scales, a razor wrapped in plastic, and
several individually wrapped baggies containing a white powder, later identified as cocaine.
Although he initially denied ever having a firearm, when an officer told Burton about the
surveillance cameras, he responded “if you have video, then I guess I’m guilty.”
Burton was arrested and charged with possession with intent to distribute cocaine, in
violation of Code § 18.2-248; possession of a firearm by a convicted felon in violation of Code
§ 18.2-308.2; possession of cocaine with the intent to distribute while possessing a firearm, in
violation of Code § 18.2-308.4(C); brandishing a firearm or object similar to a firearm in
violation of Code § 18.2-282; and carrying a concealed weapon in violation of Code § 18.2-308.
At Burton’s jury trial, the Commonwealth presented evidence as recited above. After the
Commonwealth rested, Burton moved to strike the evidence. He first asked the court to strike
the possession with intent to distribute cocaine charge to simple possession, arguing that the
evidence did not prove intent because he made no statements that indicated that he was “selling”
and there was “no money . . . on him.” Necessarily, he simultaneously asked the court to strike
possession of a firearm while possessing cocaine with the intent to distribute for the same
reasons. Burton also argued that the evidence did not prove that the object he possessed was a
firearm because nothing established that it was designed or made to expel a projectile. The court
denied Burton’s motion.
When the trial court asked for the jury instructions, the parties submitted agreed jury
instructions, including Jury Instruction 13: a waterfall instruction that directed the jury to convict
Burton of possession of a firearm while possessing with the intent to distribute cocaine if the
evidence proved (1) that Burton “possessed, used, attempted to use, or displayed in a threatening
manner a firearm,” and (2) that “the possession, use, attempted use, or display was while
committing or attempting to commit possession with intent to distribute, sell, or give cocaine.”
-3- Jury Instruction 13 further provided that if the jury found that the Commonwealth had proved the
“first element” but not that he “intended to distribute, sell, or give cocaine,” then the jury should
convict Burton of “possessing, using, attempting to use, or displaying in a threatening manner a
firearm while possessing cocaine.”
The parties, however, disputed how the trial court should define “firearm” for the jury.
The trial court granted Jury Instruction 18, which stated: “A firearm is any instrument that is
capable of expelling a projectile by force or gunpowder. A firearm is also an object that is not
capable of expelling a projectile by force or gunpowder but gives the appearance of being able to
do so.” The Commonwealth also asked the trial court to grant Jury Instruction 19, which stated:
“An object with the appearance of a firearm, when coupled with conduct of the accused
impliedly asserting that the object is a firearm, is a fact that you may consider when determining
whether an object is a firearm.” Burton objected that Jury Instruction 19 inappropriately
emphasized the firearm’s “appearance,” which was evidence favorable to the Commonwealth,
while discounting evidence favorable to him, such as the fact that the firearm was “never
recovered.”
The Commonwealth also asked the trial court to give Jury Instruction 20, which
provided: “Where a victim reasonably perceived a threat or intimidation by a firearm, it is not
necessary that the object in question was in fact a firearm.” Burton objected to Jury Instruction
20, arguing that the jury could convict him of possession of a firearm while merely possessing a
controlled substance, as a lesser-included offense of possession of a firearm while possessing a
controlled substance with the intent to distribute. Burton contended that unlike the greater
offense, to sustain a conviction of the lesser-included offense the Commonwealth had to prove
that the firearm was “an object that is made, designed, or intended to expel a projectile by force
or gunpowder.”
-4- Instead of Jury Instructions 19 and 20, Burton asked the trial court to grant Jury
Instruction 21, which defined a firearm as “a weapon designed, made, and intended to expel a
projectile by means of an explosion. It is not necessary that the firearm be operable, capable of
being fired, or have the actual capacity to do serious harm.” Burton conceded that Jury
Instruction 21 would apply only if the jury concluded that “this [was] simple possession.”
The trial court ruled that it would not provide inconsistent firearm definitions to the jury.
After reviewing the various proposed instructions, it granted Jury Instructions 18 and 19 and
refused Jury Instructions 20 and 21.
After closing argument, the jury convicted Burton of (1) possession of cocaine as a
lesser-included offense of possession with the intent to distribute cocaine; (2) possession of a
firearm while possessing cocaine, as a lesser-included offense of possessing a firearm while
possessing cocaine with the intent to distribute; (3) two counts of brandishing a firearm; and, (4)
carrying a concealed weapon. The trial court sentenced Burton to a total of 15 years and 36
months’ incarceration, with 9 years and 6 months suspended.
On appeal, Burton argues that the trial court provided the jury only “incomplete”
definitions of a firearm. As he did before the trial court, he posits that Code § 18.2-308.4 “has
two different [firearm] standards, depending upon whether the drugs were in simple possession
or in possession with intent to distribute.” He maintains that Jury Instruction 13 correctly
identified the “simple possession” offense under Code § 18.2-308.4(A) as a lesser-included
offense of a “possession with intent to distribute” offense under Code § 18.2-308.4(C). He also
argues that Jury Instruction 18 correctly defined “firearm” for an offense under Code
§ 18.2-308.4(C) for possessing a firearm while possessing a controlled substance with the intent
to distribute. Even so, he asserts that for “simple possession” under subsections A and B, “the
-5- firearm must objectively be shown to be a real firearm.” Thus, he contends that the trial court
should have granted Jury Instruction 21 but not Jury Instruction 19.
Burton also challenges the sufficiency of the evidence to sustain his convictions. He
seems to argue that the evidence failed to prove that he “had any firearm” but, even if he did, it
was not concealed because Christian could plainly see the gun during both incidents. Finally, he
argues that his brandishing convictions should be overturned because there was no “inducement
of fear” in the victims.
ANALYSIS
I. Jury Instructions
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has
been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”
Fahringer v. Commonwealth, 70 Va. App. 208, 211 (2019) (quoting Darnell v. Commonwealth, 6
Va. App. 485, 488 (1988)). “We review a trial court’s decisions in giving and denying requested
jury instructions for abuse of discretion.” Holmes v. Commonwealth, 76 Va. App. 34, 53 (2022)
(quoting Conley v. Commonwealth, 74 Va. App. 658, 675 (2022)). “[W]hether a jury instruction
accurately states the relevant law is a question of law that we review de novo.” Watson v.
Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v. Commonwealth, 292 Va. 855, 869
(2016)).
“Code § 18.2-308.4 does not define the term ‘firearm.’” Timmons v. Commonwealth, 15
Va. App. 196, 199 (1992). We have held that under Code § 18.2-308.4, “a ‘firearm’ is an
‘instrument . . . designed, made, and intended to expel a projectile by means of an explosion,’”
though the instrument need not “be operable at the time of the offense.” Davis v.
Commonwealth, 79 Va. App. 123, 142-43 (alteration in original) (quoting McDaniel v.
Commonwealth, 264 Va. 429, 429 (2002)). Burton’s proffered Jury Instruction 21 correctly
-6- stated the law that: “A firearm is a weapon designed, made, and intended to expel a projectile by
means of an explosion. It is not necessary that the firearm be operable, capable of being fired, or
have the actual capacity to do serious harm.” Indeed, the Commonwealth properly concedes on
appeal that the “narrower definition” of firearm Burton advanced in Jury Instruction 21 was the
correct definition for an offense under Code § 18.2-308.4(A).2
Nevertheless, jury “instructions given without objection become the law of the case and
thereby bind the parties in the trial court and [an appellate] court on review.” Smith v.
Commonwealth, 296 Va. 450, 461 (2018) (quoting Wintergreen Partners, Inc. v.
McGuireWoods, LLP, 280 Va. 374, 379 (2010)). “We have clearly stated that an agreed jury
instruction becomes the law of the case, even if it imposes ‘an inappropriate standard.’” Id. at
462 (quoting Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 136 (1992)). “The law of
the case doctrine applies in criminal cases.” Id. at 461 (citing Jimenez v. Commonwealth, 241
Va. 244, 249-50 (1991)).
Burton agreed to Jury Instruction 13, the “waterfall” instruction that first stated the
elements of an offense for possession of a firearm while possessing a controlled substance with
the intent to distribute under Code § 18.2-308.4(C). Then, Jury Instruction 13 stated the
elements of possessing a firearm while in simple possession of a controlled substance under
Code § 18.2-308.4(A) as a lesser-included offense of Code § 18.2-308.4(C). Moreover, Burton
agreed that Jury Instruction 18 was proper because it accurately defined “firearm” for purposes
2 The Commonwealth and Burton argue that Jury Instruction 18 correctly defined “firearm” for an offense under Code § 18.2-308.4(C). See Saunders v. Commonwealth, No. 0267-14-3, slip op. at 9 n.3, 2015 Va. App. LEXIS 28, at *13-14 n.3 (Jan 27, 2015) (suggesting, in dicta, that the same definition of firearm applies in Code § 18.2-53.1 and 18.2-308.4(C)). We need not address the Commonwealth’s argument to resolve this appeal as the jury convicted Burton of violating Code § 18.2-308.4(A), which required proof that he possessed an actual firearm as defined in refused Jury Instruction 21. -7- of Code § 18.2-308.4(C), as including an object “that is not capable of expelling a projectile by
force or gunpowder but gives the appearance of being able to do so.”
It is well-established that “[a] lesser included offense is an offense which is composed
entirely of elements that are also elements of the greater offense.” Wright v. Commonwealth, 49
Va. App. 312, 319 (2007) (quoting Kauffmann v. Commonwealth, 8 Va. App. 400, 409 (1989)).
“Thus, in order for one crime to be a lesser included offense of another crime, every commission
of the greater offense must also be a commission of the lesser offense.” Id. at 319-20.
Consequently, while a lesser-included offense may contain fewer elements than its greater
offense, it cannot contain different elements. Id.
Applied here, Burton agreed that an offense for possessing a firearm while possessing a
controlled substance under Code § 18.2-308.4(A) is a lesser-included offense of possessing a
firearm while possessing a controlled substance with the intent to distribute. Given that position
however, both offenses must have the same definition of a firearm. Moreover, Burton agreed to
Jury Instruction 13, which defined an offense under Code § 18.2-308.4(A) as a lesser-included
offense. So, regardless of whether Jury Instruction 13 accurately stated the law, Burton did not
object to it, so it is the law of the case. Consequently, the definition of firearm in Jury
Instruction 18, which Burton also did not object to and agrees accurately defines “firearm” for
purposes of Code § 18.2-308.4(C), must also apply to an offense under Code § 18.2-308.4(A).
Given the law of the case that arose from the parties’ agreement regarding Jury Instructions 13
and 18, the trial court declined to provide different definitions of firearm for a greater offense
and its lesser included. Thus, the trial court did not err by refusing Jury Instruction 21.
II. Sufficiency of the Evidence
Burton argues that the evidence failed to prove that he “had any firearm, that he flashed
any firearm, that he waved any firearm.” Even if he did, he contends that it was not concealed
-8- because Christian could plainly see the gun during both incidents. He also argues that his
brandishing convictions should be overturned because there was no “inducement of fear” in the
victims.
A. Waiver Under Rule 5A:20
An opening brief must contain “[t]he standard of review and the argument (including
principles of law and authorities) relating to each assignment of error.” Rule 5A:20(e).
“Unsupported assertions of error ‘do not merit appellate consideration.’” Bartley v.
Commonwealth, 67 Va. App. 740, 744 (2017) (citing Jones v. Commonwealth, 51 Va. App. 730,
734 (2008)). “[I]t is not the role of the courts, trial or appellate, to research or construct a
litigant’s case or arguments for him or her.” Id. at 746 (quoting Sneed v. Bd. of Prof’l Resp. of
the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010)). “Nor is it this Court’s ‘function to
comb through the record . . . in order to ferret-out for ourselves the validity of [appellant’s]
claims.’” Burke v. Catawba Hosp., 59 Va. App. 828, 838 (2012) (alterations in original)
(quoting Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc)). To the contrary, if an
appellant believes “that the trial court erred, Rule 5A:20(e) require[s] him ‘to present that error to
us with legal authority to support [his] contention.’” Bartley, 67 Va. App. at 746 (second
alteration in original) (quoting Fadness v. Fadness, 52 Va. App. 833, 851 (2008)). “[W]here a
party fails to develop an argument in support of his or her contention or merely constructs a
skeletal argument, the issue is waived.” Id. (quoting Sneed, 301 S.W.3d at 615).
Burton’s opening brief presents a single sentence arguing that the evidence failed to
prove that he possessed a firearm. He cites no authority supporting his argument, nor does he
even explain which of his numerous convictions should be reversed because of the alleged
deficiency in the evidence. Thus, not only is it unclear why Burton thinks the evidence is
insufficient, it is also unclear which of his convictions he challenges with this argument.
-9- Similarly, Burton does not cite any authority supporting his alternative contention that he never
concealed a firearm. Instead, he merely quotes significant portions of the transcript and
generally concludes that “the Commonwealth did not show that the firearm was concealed.” He
cites no authority demonstrating what constitutes a concealed firearm or why, in his view, the
quoted portion of the transcript demonstrates that his firearm was not concealed. Thus, Burton’s
assertions do not present a cognizable legal argument and instead invite this Court to “comb
though the record” on his behalf, Burke, 59 Va. App. at 838, and “construct [his] case or arguments
for him,” Bartley, 67 Va. App. at 746. We will not do so. Thus, his arguments are waived. Id.
(quoting Sneed, 301 S.W.3d at 615).
B. Brandishing Argument Waived Under Rule 5A:18
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Rule 5A:18 requires a
litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule
intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown
v. Commonwealth, 279 Va. 210, 217 (2010) (quoting West v. Commonwealth, 43 Va. App. 327,
337 (2004)). “Specificity and timeliness undergird the contemporaneous-objection rule [and]
animate its highly practical purpose.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not
just any objection will do. It must be both specific and timely—so that the trial judge would
know the particular point being made in time to do something about it.” Id. (quoting Dickerson
v. Commonwealth, 58 Va. App. 351, 356 (2011)).
In a jury trial, the defendant preserves his objections to the sufficiency of the evidence in a motion to strike at the conclusion of the Commonwealth’s case if he elects to not introduce evidence of his own, or in a motion to strike at the conclusion of all the evidence or a motion to set aside the verdict if he does elect to introduce evidence of his own. - 10 - Commonwealth v. Bass, 292 Va. 19, 33 (2016) (citing Murillo-Rodriguez v. Commonwealth, 279
Va. 64, 84 (2010)). See also Spangler v. Commonwealth, 188 Va. 436, 438 (1948) (“When a
defendant in a civil or criminal case proceeds to introduce evidence in his own behalf, after the
trial court has overruled his motion to strike, made at the conclusion of the introduction of
plaintiff’s evidence in chief, he waives his right to stand upon such motion.”); White v.
Commonwealth, 3 Va. App. 231, 233 (1986) (same).
Burton challenges his brandishing convictions because he claims he did not induce fear in
any victim. He asks this Court to examine the surveillance video closely and note that none of
the victims “seems to flinch” when he produced the firearm. But Burton did not present that
argument to the trial court. In his motion to strike after the Commonwealth rested, he argued
that the evidence did not prove intent to distribute cocaine because he made no statements that
indicated that he was “selling” and there was “no money . . . on him.” He also argued that the
evidence did not prove that the object he possessed was a firearm because nothing established
that it was designed or made to expel a projectile. Burton did not renew his motion to strike on
different grounds, or move to set aside the jury’s verdicts. Thus, he did not preserve his
sufficiency challenge to his brandishing convictions.
Notwithstanding the default, Burton asks this Court to review his argument under the
ends of justice exception. “The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be
used sparingly.’” Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v.
Commonwealth, 53 Va. App. 113, 123 (2008)). Whether to apply the ends of justice exception
involves two questions: “(1) whether there is error as contended by the appellant; and (2)
whether the failure to apply the ends of justice provision would result in a grave injustice.” Bass,
292 Va. at 27 (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). “The burden of
establishing a manifest injustice is a heavy one, and it rests with the appellant.” Holt v.
- 11 - Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 54
Va. App. 505, 514 (2009)).
“[T]o invoke the ends of justice exception when sufficiency of the evidence has been
raised for the first time on appeal, an appellant must do more than show that the Commonwealth
failed to prove an element or elements of the offense.” Redman v. Commonwealth, 25 Va. App.
215, 221 (1997). “Otherwise, we would be required under the ends of justice exception to
address the merits of every case where a defendant has failed to move to strike the
Commonwealth’s evidence as being insufficient to prove an element of the offense.” Id.
Instead, to demonstrate that a miscarriage of justice has occurred, an “appellant must
demonstrate that he or she was convicted for conduct that was not a criminal offense or the
record must affirmatively prove that an element of the offense did not occur.” Id. at 222.
Burton’s argument that the evidence failed to show that he induced fear in any victim is merely
an attempt to demonstrate that “the Commonwealth failed to prove an element . . . of the
offense,” which is, legally insufficient to satisfy the ends of justice exception. Id. at 221. Burton
points to nothing in the record affirmatively proving that an element of the offense did not occur
or that his conduct was not criminal. Accordingly, the ends of justice exception does not apply,
and Rule 5A:18 bars consideration of his argument.
CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
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