COURT OF APPEALS OF VIRGINIA PUBLISHED
Present: Judges Beales, Athey and Callins Argued at Arlington, Virginia
BRYAN EDELSTEIN OPINION BY v. Record No. 1977-23-4 JUDGE RANDOLPH A. BEALES JANUARY 14, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY Michael E. Levy, Judge
Julia B. Dillon (Goodall, Carper & Dillon, PLLC, on briefs), for appellant.
Katherine Quinlan Adelfio, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, the Circuit Court of Stafford County convicted Bryan Edelstein of
one felony count of unlawfully discharging a firearm at or into an occupied dwelling or building,
in violation of Code § 18.2-279, and one misdemeanor count of reckless handling of a firearm, in
violation of Code § 18.2-56.1. On appeal, Edelstein challenges the sufficiency of the evidence to
sustain his convictions, arguing that there was no proof that he endangered the life or property of
any person when he fired his gun at the floor of his residence multiple times in the presence of
his significant other.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
(2016)). “This principle requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the
Commonwealth and all fair inferences to be drawn therefrom.’” Kelley v. Commonwealth, 289
Va. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).
Deputy T.A. Vasquez of the Stafford County Sheriff’s Office testified at Edelstein’s jury
trial that on June 17, 2022, around midnight, he was dispatched to the house that Edelstein
shared with his significant other, Jessica Swatlowski. Deputy Vasquez recalled that when he
encountered Edelstein outside his house, “[t]here was an odor of an alcoholic beverage coming
from his person.”1 He noted that Edelstein “was sweating, he also had glassy bloodshot eyes,
almost watery, if you will, and slurred speech while talking to him, just not clear, almost like he
was mumbling.” When Deputy Vasquez asked Edelstein whether he had consumed any alcohol
that evening, Edelstein “stated he took a drink from the bottle.”
During his ensuing investigation in Edelstein’s bedroom, Deputy Vasquez noticed that
“[t]here were holes that were consistent with bullets that had been shot” into the wood floor. He
observed that “[t]here was a grouping of maybe seven-ish, and then there was I would say three
or four that were kind of spread out sporadically in the same area.” He clarified that the term
“grouping” refers to “multiple holes in that one area,” and he explained that “[t]he smaller the
grouping, the more accurate and precise” the shots. Deputy Vasquez also noticed that “there was
a round in the hall, as well as two rounds outside.”
Deputy Vasquez testified that, when he confronted Edelstein about the bullet holes in the
floor, Edelstein stated that he and Swatlowski had been arguing that evening. Edelstein told
Deputy Vasquez that, after arguing with Swatlowski but “before going outside to the garage to
go to sleep, to basically separate, he had grabbed his gun and then fired off multiple rounds there
1 Edelstein was also charged with public intoxication, but he was found not guilty of that offense in the Stafford County General District Court. -2- in the bedroom there where I was able to see that grouping as previously stated.”2 Edelstein also
told Deputy Vasquez that Swatlowski was in the same bedroom where he fired the shots.
Swatlowski confirmed to Deputy Vasquez that she and Edelstein had “argued, and then he
[Edelstein] grabbed the gun.” She told Deputy Vasquez that, immediately following the
argument and the shooting, “she had to go into the bathroom, which was just on the other side of
that—or just outside the bedroom door, to help calm her anxiety from what had just unfolded.”
Deputy Vasquez later “proffered the investigation” to a magistrate with Edelstein present, and,
when “[a]sked if he [Edelstein] had anything to say,” Edelstein’s “statement was, everything that
he [Deputy Vasquez] said is true.”
Deputy C. Sterne of the Stafford County Sheriff’s Office testified that he also responded
to Edelstein’s residence on June 17, 2022. He recalled, “When I entered the bedroom there were
several bullet holes in the floor.” He noted that there were “[a]pproximately ten or eleven” bullet
holes and that “[m]ost of them were pretty concentrated.” Deputy Stern then went into the
basement, where he saw that “there was an HVAC sheet metal type duct, there were several
bullet holes in the sheet metal, it appeared to be coming down through it.” He also observed that
“on the floor there was . . . two impacts from rounds that had came through the floor.” He
pointed out that the concrete floor looked “like a piece of the concrete had been chipped or just
something hard had hit it.” Deputy Stern found two rounds on the floor, but he did not find any
casings, and he did not see any damage in the bedroom other than the bullet holes in the floor.
Captain Joe Bice of the Stafford County Sheriff’s Office testified “as an expert in
firearms and firearms safety.” He explained that “once the projectile leaves the barrel it’s
2 Without objection from Edelstein’s trial counsel, the Commonwealth introduced into evidence the semiautomatic firearm that Deputy Vasquez collected from “the garage area” of Edelstein’s house. Deputy Vasquez noted that he found the firearm in the same location that Edelstein said it would be. Deputy Vasquez stated that in Edelstein’s firearm, “[t]here was a magazine inserted with four rounds in said magazine, as well as one in the chamber.” -3- spinning,” so “when it hits something it can fragment.” He noted that the projectile “can
splinter” the floor, “and then it can ricochet depending on the angle that it strikes and the
hardness of the floor.” Captain Bice also explained that the composition of the projectile, the
angle in which the projectile hits the floor, and the flooring material can all impact how the
projectile could fragment, splinter, or ricochet after being fired from a gun into the floor.
Addressing the potential impact of a bullet fired into a wooden floor, Captain Bice opined, “I
would expect if a firearm is shot into wood that there would be splintering and pieces of wood
would be . . . moved around in the room.” He emphasized that bullet fragments “could hit a
person,” stating, “If you’re in a small space, . . . I would be concerned about pieces of the bullet
coming apart.” Captain Bice acknowledged that in this case, however, it was unlikely that any
ricochets occurred if the only observed damage was to the bedroom floor — but he could not
render a conclusion with any certainty.
At the conclusion of the Commonwealth’s case-in-chief, Edelstein’s trial counsel moved
to strike both charges, arguing that “there’s nothing showing any type of endangerment . . . to
life, limb or property, or endangering the life or lives of other people.” Edelstein’s trial counsel
asserted that “the Commonwealth’s case is really just that there’s a remote possibility of some
possible endangerment,” and she maintained that “I don’t think there’s even sufficient evidence
to show that she [Swatlowski] could get a splinter in this case.” The trial court denied the
motion to strike, finding that “the concept of the ricochet, hitting something, or pulling a round
apart and sending fragments would at this juncture satisfy the element of endangerment.”
Swatlowski testified in Edelstein’s defense that she has been in a romantic relationship
with Edelstein “going on five years” and that she has resided with him for “[a] little over a year,
almost a year-and-a-half.” She stated that she and her seven-year-old daughter live in the house
with Edelstein, but that her daughter was not home on the night of the shooting incident. When
-4- asked to describe the firearms-related activities that she and Edelstein engage in, Swatlowski
testified that they “would go unwind in the backyard and shoot together” as a “kind of bonding
thing for us.” She noted that Edelstein owned “a black Glock” that he kept “on magnets for
home security” near the bed in their bedroom.
Swatlowski further testified that on the night of the shooting incident, she returned home
from dinner and began arguing with Edelstein about an “infidelity that had occurred and the
emotion behind that. It was very emotional.” She explained that after arguing “for a long time,”
she and Edelstein “decided that we were going to separate since it was no longer a productive
conversation and we would cool off and revisit once we cooled off.” She recalled that she “was
sitting on the bed across the room by—behind him diagonally” when Edelstein grabbed his
firearm and fired his gun downward as he stood “[n]ear the door of the room.” She also
recounted, “I saw him pause, and then I determined after he fired that he paused because he
didn’t want to hit the HVAC unit and he moved to a different spot and he fired into the empty
basement.”
Swatlowski stated that her initial reaction to the shots was “[t]o close my eyes because I
was annoyed that now we had to replace the floor a little bit sooner than planned.” Although she
went into the bathroom after the shooting, she claimed that she “wasn’t scared” and that she was
not feeling anxious. In addition, she maintained that Edelstein “was not upset” following their
argument, although “[h]e appeared tired.” She also maintained that Edelstein “did not shoot
again” that evening and that he did not point the gun at her. Furthermore, Swatlowski claimed
that Edelstein “had not at that point” consumed any alcohol and that she did not observe any
signs of intoxication.
Edelstein then testified in his own defense that he had been around firearms since he
“was seven or eight” years old and that he had previously viewed firearm safety videos, although
-5- he had no professional training on gun safety. He recounted that, following his argument with
Swatlowski, he began gathering items to take with him to the garage—including his firearm that
was stored near where Swatlowski was sitting on the bed. When asked to describe what
happened after he grabbed his firearm, Edelstein stated:
So how—so I have a shelf beside my bed, there’s two diagonal magnets, and the gun sits catty-corner towards the wall. So as I’m sleeping, I can just roll over with my dominate [sic] hand, roll over and put it on target at the doorway if someone is coming in. So it’s facing the wall. So basically when I grab it, wall is here, Jesse [Swatlowski] is on this side of me, so when I grab it, I always put it straight down at the ground, and then I kind of scoot off the bed, and then instantly I was like, I want to shoot, and then I was like, well, I’m going to hit the HVAC machine. So I walk roughly probably six feet or so, I was like I’ll clear all the main—the pieces of the HVAC machine. So I’m over here, and then as I was coming to the stop, that’s when I took the first shot, came to a stop, and then that’s where the small cluster is.
Characterizing shooting as a form of “stress relief” for him, Edelstein then described the
actions he took after firing his gun “roughly ten or eleven” times into the bedroom floor:
Then after that—so from the immediate shots, instant, what did I do. So I dropped the mag, grabbed the mag, cleared the chamber, throw the magazine back in. I think I just dropped the bullet. We found it later in our laundry heap or something, so—and then from there I tossed the gun out of the room before I looked at Jesse [Swatlowski]. So the mark in the hallway, it hit the floor and then it—actually, you can see where it bounced up into the drywall and the back imprint of the gun is in the drywall. It was not an actual bullet hole. But after clearing the gun, removing the gun, turned around to Jesse [Swatlowski] and basically said, I don’t know the exact words, but it was, I’m sorry, I shouldn’t have done that, and then I left the situation.
Edelstein acknowledged that when he was with Deputy Vasquez before the magistrate, he had
agreed with Deputy Vasquez’s depiction of events, but he maintained that he only fired his gun
into the bedroom floor and not down the hallway. He also acknowledged during his testimony
that he “took a big ole swig of vodka” before the police arrived at his home, but he maintained
that he had not consumed any alcohol prior to shooting his firearm. Edelstein claimed that -6- although the reason he shot into the bedroom floor was partly due to his argument with
Swatlowski, it was mostly due to work-related stress.
After presenting the defense’s evidence, Edelstein’s trial counsel renewed the motion to
strike “for the same reasons that were already stated.” His trial counsel argued that the
Commonwealth’s evidence did not show “any type of endangerment to the life or lives of any
other such person, or that there was anything about the reckless handling or the endangerment of
life, limb or property of another, just the property of his own home.” The trial court denied
Edelstein’s renewed motion to strike, finding that “[i]t’s a fact issue for you both to argue to the
jury and the jury to then decide.” After hearing argument and the evidence, the jury
subsequently found Edelstein guilty of both charged offenses. Edelstein’s trial counsel later
moved the trial court to set aside the jury’s verdict, which the trial court denied. Edelstein now
appeals to this Court.
II. ANALYSIS
A. Standard of Review
The Supreme Court has often stated, “When reviewing the sufficiency of the evidence,
‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is
“plainly wrong or without evidence to support it.”’” Secret v. Commonwealth, 296 Va. 204, 228
(2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680)). “In such cases, ‘[t]he Court does not ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.’” Id. (alteration in
original) (emphasis in original) (quoting Pijor, 294 Va. at 512). “Rather, the relevant question is
whether ‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (emphasis in original)
(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidence to support
-7- the convictions, the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.” Clark v.
Commonwealth, 279 Va. 636, 641 (2010) (quoting Commonwealth v. Jenkins, 255 Va. 516, 520
(1998)).
B. Unlawfully Discharging a Firearm at or into an Occupied Dwelling or Building
On appeal, Edelstein argues:
The Trial Court Erred in finding that the evidence was sufficient to find Appellant guilty of the felony unlawfully discharging a firearm within an occupied building pursuant to Va. Code § 18.2-279 when there was no evidence that the firearm was discharged in a manner that would endanger the life or lives of the other person in the occupied structure when the other individual was not injured and not in fear of any injury based not only on the facts found by law enforcement of the shots going into the wooden floor without any evidence of anything that could cause a ricochet and because he knew where the other individual was and purposefully shot away from that individual to the wooden floorboard of his room in a location known to him to be unlikely to cause any harm to the other individual.
Code § 18.2-279 makes it a Class 6 felony for any person who unlawfully “discharges a
firearm within any building when occupied by one or more persons in such a manner as to
endanger the life or lives of such person or persons,” or who unlawfully “shoots at, or . . . throws
any missile at or against any dwelling house or other building when occupied by one or more
persons, whereby the life or lives of any such person or persons may be put in peril.” The
Supreme Court has recognized that, for purposes of Code § 18.2-279, the term “unlawfully”
describes “conduct that merely demonstrates ‘criminal negligence.’” Bryant v. Commonwealth,
295 Va. 302, 310 (2018) (quoting Gooden v. Commonwealth, 226 Va. 565, 571 (1984))
(concluding that “the evidence, viewed in the light most favorable to the Commonwealth, was
sufficient to support the conviction [under Code § 18.2-279] without any proof of the
defendant’s intent when discharging the firearm”). A defendant’s “criminal negligence,” in turn,
-8- “is judged under an objective standard and may be found to exist where the offender either knew
or should have known the probable results of [his] acts.” Id. (quoting Riley v. Commonwealth,
277 Va. 467, 483-84 (2009)). See also Noakes v. Commonwealth, 280 Va. 338, 346 (2010)
(explaining that “criminal negligence” occurs “when acts of a wanton or willful character,
committed or omitted, show ‘a reckless or indifferent disregard of the rights of others, under
circumstances reasonably calculated to produce injury or which make it not improbable that
injury will be occasioned, and the offender knows, or is charged with the knowledge of, the
probable results of his acts’” (quoting Brown v. Commonwealth, 278 Va. 523, 528 (2009))).
It is well settled that “the legislative purpose” of Code § 18.2-279 “is meant to prohibit
unlawful conduct, whether malicious or merely criminally reckless, which has the potential to
endanger the lives of persons inside occupied buildings, without regard to the shooter’s actual
motive or intent in unlawfully discharging a firearm.” Ellis v. Commonwealth, 281 Va. 499, 506
(2011) (emphasis added). See also Taylor v. Commonwealth, 77 Va. App. 149, 163 (2023)
(explaining that “the essence, or gravamen, of an offense under Code § 18.2-279 is the risk of
endangerment or death to another as a result of discharging a firearm”). Indeed, “this legislative
determination relieves the Commonwealth of the burden of proving that human life was, in fact,
endangered.” Dowdy v. Commonwealth, 220 Va. 114, 117 (1979). Rather, the Commonwealth is
required to show only that “the discharge of the firearm may have put [someone’s] life in peril.”
Kirby v. Commonwealth, 264 Va. 440, 445 (2002) (rejecting the defendant’s argument that he
was not guilty of violating Code § 18.2-279 because his wife was not injured when he fired two
shots from their bedroom while she sat approximately fifteen feet away in the living room). See
also Strickland v. Commonwealth, 16 Va. App. 180, 182 (1993) (affirming the defendant’s
conviction under Code § 18.2-279 where the defendant fired a gun into the ceiling of the entry
way of a hospital emergency room occupied by 75 people, as “[t]he possibility that the bullet
-9- might have hit a metal part or solid object in the ceiling and ricocheted” sufficiently proved that
the defendant shot the firearm in such a manner as to endanger the lives of the people present).
This Court has explained that the term “endanger” means to “expose to danger, harm, or
loss.” Coleman v. Commonwealth, 52 Va. App. 19, 24 (2008) (quoting Webster’s New World
Dictionary 448 (3d coll. ed. 1988)); see also Endangerment, Black’s Law Dictionary (12th ed.
2024) (defining “endangerment” as “[t]he act or an instance of putting someone or something in
danger; exposure to peril or harm”). “That the exposure to danger does not result in any actual
harm is a welcome fortuity, but not a legal defense.” Coleman, 52 Va. App. at 24 (addressing
“endangerment” as applied to Code § 46.2-817(B)). There is no dispute in this case that,
following a lengthy and emotional argument, Edelstein fired his firearm multiple times at the
bedroom floor of his house while his significant other, Jessica Swatlowski, sat across the same
room from him on the bed. There is also no dispute that no one was actually injured by the
shots. However, the Commonwealth was not required to prove that anyone was actually injured
by a stray shot or by a fragmenting or ricocheting bullet—only that Edelstein’s actions may have
put someone’s life in peril. See Kirby, 264 Va. at 445. The dispositive issue here then is
whether the life of any person in Edelstein’s house could have been endangered or put in peril
when Edelstein fired multiple shots at the bedroom floor.
The record before this Court on appeal contains ample evidence that Edelstein unlawfully
fired his gun inside his house in a manner that endangered the life of his significant other,
Swatlowski, who was sitting on the bed in close proximity to where he fired the shots.
Swatlowski testified that after a prolonged and “very emotional” argument, Edelstein grabbed his
firearm and fired it downward as he stood “[n]ear the door of the room.” Edelstein likewise
testified that he fired his gun “roughly ten or eleven” times in immediate succession into the
bedroom floor while Swatlowski was in the same room and sitting nearby on the bed. Deputy
- 10 - Vasquez recounted Edelstein’s and Swatlowski’s statements to him on the night of the shooting
incident, which confirmed that Edelstein “had grabbed his gun and then fired off multiple rounds
there in the bedroom.” Deputy Vasquez also recalled that “[t]here were holes that were
consistent with bullets that had been shot” into the wood floor, including “a grouping of maybe
seven-ish” bullet holes. Deputy Stern similarly testified that he saw “[a]pproximately ten or
eleven” bullet holes in the bedroom floor. Furthermore, Captain Bice emphasized his concern
that bullet fragments “could hit a person,” stating, “If you’re in a small space, . . . I would be
concerned about pieces of the bullet coming apart.” As noted supra, the Commonwealth was not
required to prove that Edelstein’s firing of his gun resulted in a barrage of stray bullets; rather,
the mere possibility of ricocheting bullets supported the jury’s finding that Edelstein’s discharge of
his firearm within the confined area of the bedroom and near Swatlowski could have placed her life
in peril. See Kirby, 264 Va. at 445. It was therefore reasonable for the jury to find that Edelstein’s
act of firing multiple shots in quick succession into the bedroom floor could have possibly resulted
in a ricochet of stray bullets.
It is well established that “[t]he fact finder, who has the opportunity to see and hear the
witnesses, has the sole responsibility to determine their credibility, the weight to be given their
testimony, and the inferences to be drawn from proven facts.” Hamilton v. Commonwealth, 279
Va. 94, 105 (2010) (quoting Commonwealth v. Taylor, 256 Va. 514, 518 (1998)). “The trier of
fact is not required to accept a party’s evidence in its entirety, Barrett v. Commonwealth, 231 Va.
102, 107 (1986), but is free to believe or disbelieve, in whole or in part, the testimony of any
witness, Rollston v. Commonwealth, 11 Va. App. 535, 547 (1991).” English v. Commonwealth, 43
Va. App. 370, 371 (2004). Indeed, “[i]n its role of judging witness credibility, the fact finder is
entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is
lying to conceal his guilt.” Maust v. Commonwealth, 77 Va. App. 687, 703 (2023) (alteration in
- 11 - original) (quoting Speller v. Commonwealth, 69 Va. App. 378, 388 (2018)). “When ‘credibility
issues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will not
be disturbed on appeal unless plainly wrong.’” Id. (alteration in original) (quoting Towler v.
Commonwealth, 59 Va. App. 284, 291 (2011)).
Although the testimony offered by both Edelstein and Swatlowski was intended to establish
that there was no endangerment of a person, the Commonwealth presented evidence that
contradicted their respective testimony. In finding Edelstein guilty of the charged offenses, the jury
clearly rejected the scenario advanced by Edelstein and Swatlowski and resolved all conflicts in
their respective testimony in favor of the Commonwealth. In short, given that the jury’s findings are
supported by the record and are not plainly wrong, we certainly cannot say that no rational fact
finder could have found that Edelstein discharged his firearm in an occupied dwelling in such a
manner as to endanger the life of Swatlowski, who was present nearby in the same room.3
C. Reckless Handling of a Firearm
Edelstein also argues:
The Trial Court Erred in finding that the evidence was sufficient to find Appellant guilty of the misdemeanor reckless handling of a firearm pursuant to Va. Code §18.2-56.1(A) when there was no evidence that the firearm was being handled recklessly or that the
3 To the extent that Edelstein relies on any distinction between the two sections of Code § 18.2-279—the first addressing shooting within an occupied building and requiring proof of endangerment, and the second addressing shooting at an occupied building and requiring proof that lives may have been put in peril—we must reject his argument that “endanger” and “put in peril” are dissimilar terms given the Supreme Court’s binding interpretation of Code § 18.2-279 in Kirby and in Dowdy. See generally Anderson v. Commonwealth, 48 Va. App. 704, 712-13 (2006), aff’d, 274 Va. 469 (2007). In 1975, Code § 18.1-66—which proscribed “discharg[ing] a firearm within any [occupied] building . . . in such a manner as to endanger”—was recodified as Code § 18.2-279. Language from Code § 18.1-152—which proscribed shooting at or into any occupied dwelling “whereby the life of any [person] in the building may be in peril”—was included in the new Code § 18.2-279. See 1975 Va. Acts chs. 14, 15; see also Jones v. Commonwealth, 68 Va. App. 304, 308 n.3 (2017). In this case, the indictment charged that Edelstein, “[o]n or about June 17, 2022, in the County of Stafford, did unlawfully shoot at or into a dwelling or building then occupied by one or more persons in such manner as to endanger the lives of such person or persons,” in violation of Code § 18.2-279. - 12 - handling endangered the life, limb, or property of any person when the only damage found was to Appellant’s own floorboard.
He “incorporates by reference” the argument that he made on the element of endangerment as it
pertained to Code § 18.2-279.
Code § 18.2-56.1(A) provides, “It shall be unlawful for any person to handle recklessly
any firearm so as to endanger the life, limb, or property of any person. Any person violating this
section shall be guilty of a Class 1 misdemeanor.” “The manifest purpose of Code
§ 18.2-56.1(A) is to prevent actual endangerment, not the mere appearance of endangerment.”
Jones v. Commonwealth, 65 Va. App. 274, 278 (2015). As this Court has explained, the reckless
handling of a firearm is not limited to a handling “so gross, wanton or culpable as to show a
reckless disregard of human life.” Darnell v. Commonwealth, 6 Va. App. 485, 492 (1988)
(quoting King v. Commonwealth, 217 Va. 601, 607 (1977)). However, “it must be more than
that necessary for ordinary negligence.” Mangano v. Commonwealth, 44 Va. App. 210, 217
(2004) (noting that “[t]he culpable conduct necessary for reckless conduct falls between the
criminal negligence necessary for involuntary manslaughter and ordinary negligence”). It
follows that “reckless conduct requires an awareness that serious injury will likely result.” Id.
(citing Barrett v. Commonwealth, 268 Va. 170, 183 (2004)). However, a defendant “need not
have actually discharged a firearm at a person or at property in order for him to be convicted
under the statute.” Luck v. Commonwealth, 30 Va. App. 36, 45 (1999).
In this case, the jury was entitled to reject Swatlowski’s testimony and reasonably to infer
that she was actually endangered when Edelstein fired his firearm multiple times in close proximity
within their bedroom. See, e.g., English, 43 Va. App. at 371. Although Swatlowski testified that
she “wasn’t scared” and that she was not feeling anxious following the shooting incident, Deputy
Vasquez testified that Swatlowski told him that “she had to go into the bathroom, which was just
on the other side of that—or just outside the bedroom door, to help calm her anxiety from what - 13 - had just unfolded.” Furthermore, although Swatlowski testified that Edelstein “was not upset”
following their argument and that she and Edelstein “decided that we were going to separate
since it was no longer a productive conversation and we would cool off and revisit once we
cooled off,” Edelstein testified that after grabbing his firearm, “instantly I was like, I want to
shoot,” which he described as a form of “stress relief.” Therefore, the mere fact that Swatlowski
maintained that she was not afraid when Edelstein fired his gun multiple times at the bedroom floor
while she sat on the bed across the room from him did not mean that her life or limb was not
actually endangered by his handling of his firearm.
In addition, the jury was entitled to disbelieve Edelstein’s self-serving testimony that he
exercised caution when he fired the “roughly ten or eleven” shots into the bedroom floor by being
aware of Swatlowski’s location and by focusing on a specific area of the floor. See, e.g., Maust, 77
Va. App. at 703. By his own admission, Edelstein was not a stranger to firearms—as he had been
around firearms since he “was seven or eight” years old. Indeed, Deputy Vasquez observed that
“[t]here was a grouping of maybe seven-ish” bullet holes in the bedroom floor, but he also noted
that there were “three or four that were kind of spread out sporadically in the same area,” thereby
showing a lack of control by Edelstein. Contrary to Edelstein’s testimony that he did not fire his
gun in the hallway or outside the house, Deputy Vasquez also observed that “there was a round
in the hall, as well as two rounds outside,” which further suggested a lack of control by
Edelstein.
Finally, although Swatlowski and Edelstein denied that Edelstein had consumed alcohol
before the shooting incident and denied that he was intoxicated, Deputy Vasquez testified that
when he encountered Edelstein outside his house, “[t]here was an odor of an alcoholic beverage
coming from his person,” and he “was sweating, he also had glassy bloodshot eyes, almost
watery, if you will, and slurred speech while talking to him, just not clear, almost like he was
- 14 - mumbling.” Thus, the jury could discredit the testimony of Swatlowski and Edelstein that
Edelstein had not consumed any alcohol before he fired multiple shots at the bedroom floor. The
record before this Court on appeal shows that the officers arrived at the house within minutes of
the call to the police about all the shots, so very little time elapsed between the shooting and their
arrival. The jury could therefore implicitly find that Edelstein would not become that intoxicated
that quickly if he had only consumed alcohol after he had finished shooting.
In short, viewing these facts in the light most favorable to the Commonwealth and with
all credibility issues resolved by the jury, we certainly cannot say that no rational fact finder could
have found that Edelstein’s handling of his firearm was reckless.
III. CONCLUSION
Based on the totality of the circumstances in the record before this Court on appeal, the jury
reasonably concluded that Edelstein recklessly handled his firearm and that he could have
endangered the life of his significant other, Jessica Swatlowski, when, after a heated argument with
her, he fired many shots into the bedroom floor while she sat nearby on their bed. In addition, the
trial court was not plainly wrong in concluding that Edelstein’s discharge of his firearm may have
placed Swatlowski’s life in peril and that his handling of his firearm was also reckless. For all of
these reasons, we certainly cannot say that no rational finder of fact could conclude beyond a
reasonable doubt that the evidence was sufficient to support Edelstein’s convictions for unlawfully
shooting at or into an occupied dwelling and for reckless handling of a firearm. Therefore, we do
not disturb the trial court’s judgment, and we uphold Edelstein’s convictions.
Affirmed.
- 15 -