Demonta Bell v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 13, 2022
• Docket: 1272212
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Chief Judge Decker, Judges Beales and White Argued at Richmond, Virginia

DEMONTA BELL MEMORANDUM OPINION* BY v. Record No. 1272-21-2 JUDGE KIMBERLEY SLAYTON WHITE SEPTEMBER 13, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL Carson E. Saunders, Jr., Judge

Matthew C. Stewart for appellant.

Lucille Wall, Assistant Attorney General (Jason S. Miyares, Attorney General; Sharon M. Carr, Assistant Attorney General, on brief), for appellee.

Demonta Bell appeals his convictions, following a bench trial, for possession of a firearm by

a convicted felon and reckless handling of a firearm, in violation of Code §§ 18.2-308.2(A) and

18.2-56.1(A), respectively.1 Bell asserts that the trial court erred in finding that he possessed an

item designed, made, and intended to expel a projectile by means of an explosion. For the

following reasons, we disagree and affirm the convictions.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The trial court granted Bell’s motion to strike charges of attempted malicious wounding and discharging a firearm within city limits. BACKGROUND2

On August 1, 2020, Bell called Lachana Williams and asked if a mutual acquaintance,

Rushawn Good, also known as Rue, was at her residence. 3 Williams confirmed that Rue was

outside her residence. About ten to fifteen minutes later, Williams saw Bell outside her residence

pointing a purple and black handgun at Rue as he sat in a van parked directly in front of Williams’s

home. Bell was standing beside the van about six to eight feet from Williams, who was on the front

step. Williams admitted she could not hear the entire conversation, but she heard Bell arguing with

Rue about a gun.

Williams asked Bell “why was he coming around here with [the firearm].” Bell turned,

pointed the gun at Williams, and said, “bitch, stand out my way.” While continuing to point the gun

at Williams, Bell backed into the alley next to Williams’s home. After Bell rounded the corner of

the building, Williams heard three to four gunshots. Williams described the sound as “pow, pow”

and confirmed that she was familiar with the sound of gunfire. She estimated that Bell was twenty

to twenty-five feet away when she heard the shots. She attested that she had seen Bell with the

purple and black handgun before. Williams and Bell have a seven-year-old son; on August 1, 2020,

Bell had custody of their child.

On cross-examination, Williams admitted that she did not see Bell shoot the firearm and no

bullet casings or damage to her home was found. She noted that the alley Bell fled through is

2 “In determining whether the evidence was sufficient to support a criminal conviction, the appellate court views the facts in the ‘light most favorable’ to the Commonwealth.” Green v. Commonwealth, 72 Va. App. 193, 200 (2020). That 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 that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348 (1998)). 3 Although Williams initially denied knowing Rue’s full name, she ultimately admitted that Rue’s legal name was Rushawn Good. She explained that Rue did not want to be a part of these proceedings. -2- bordered by her home on one side and a fence and trees on the other. Williams acknowledged that

she tried to leave the area when officers arrived. She explained that she wanted to know where her

son was because he was supposed to be with Bell. Williams confirmed that she had been diagnosed

with schizophrenia and bipolar disorder and had been convicted of stealing when she was fifteen.

City of Hopewell Police Officer Lawrence Costello testified that dispatch received several

anonymous calls that shots had been fired at 607 East Broadway. When he arrived at the scene it

was “chaotic.” Officer Costello immediately met a female subject, later identified as Williams, who

was distraught. Officer Costello briefly detained Williams while he investigated the shooting

because of her demeanor. He learned that Bell had pointed a gun at Williams, backed into the alley

next to the residence, and moments later several shots were fired. Several other officers walked

through the grassy area next to the residence for thirty to forty minutes but did not find any shell

casings. Officer Costello stated that the alley was wide enough for a single car to drive through, but

the landscaping was maintained poorly. On cross-examination, Officer Costello reiterated that

neither he nor any of the other five officers found shell casings, a firearm, or any damage to the

building.

Without objection, the Commonwealth entered a certified order of Bell’s prior felony

conviction.

At the conclusion of the Commonwealth’s evidence, Bell moved to strike all the charges.

The trial court struck the attempted malicious wounding and discharging a firearm within the city

limits without justification charges. Addressing the latter, the trial court reasoned that Williams had

not seen who had been shooting, and Officer Costello had not found any shell casings in the alley,

or any damage to the home. The trial court, however, denied the motion to strike the reckless

handling of a firearm and possession of a firearm by a convicted felon charges.

-3- Bell then testified in his defense. He denied going to Williams’s home, firing a firearm on

August 1, 2020, or even having a firearm. He stated that he did not know where Williams lived or

what her phone number was until these proceedings. He never spoke to Williams; when he needed

to address issues related to their son, he spoke with Williams’s mother. Bell denied that Rue owed

him money for leasing a firearm and stated that as “a convicted felon, I don’t play around guns.”

He asserted that Williams had fabricated the incident because she had learned that he had allowed

another woman to be around their son. On cross-examination Bell stated that he did not have

custody of their son and that no exchanges involving the child occurred during August 2020.

The Commonwealth argued that the trial court should believe Williams because Officer

Costello corroborated her testimony. Officer Costello went to the area after dispatch received

multiple calls that shots had been fired. When he arrived at the “chaotic” scene, he found Williams

distraught in her vehicle. The Commonwealth argued that if Bell were to be believed—that the

incident did not happen—then the trial court would have to believe that Williams had orchestrated

the multiple calls to dispatch and presented a misleading demeanor to Officer Costello.

Bell combined his renewed motion to strike with his closing argument. He contended that

Williams’s testimony was incredible and she had manufactured the event to prevent Bell from

visiting their son. He noted that she had lied under oath when she stated she did not know Rue’s

last name. Considering her false testimony, it was likely she lied to the officers when they arrived at

the scene. Bell claimed that Williams often breaks down crying; so, it was possible that she had

faked her distraught demeanor.

Before pronouncing its verdict, the trial court made several factual findings. First, the trial

court expressly credited Williams’s testimony. The trial court found that Williams gave a

reasonable explanation for why she initially failed to provide Rue’s full name—he did not want to

be involved in these proceedings. In addition, Williams had described the gun and the events of that

-4- day with particularity. Finally, the officers’ response to multiple calls of “shots fired” corroborated

Williams’s account. Addressing the granted motion to strike the discharging a firearm charge, the

trial court explained that it granted the motion “not because it didn’t believe a gun was fired, but the

problem was no one could see who fired that gun, no shell casings were found, there was no damage

found.” The trial court convicted Bell of recklessly handling a firearm and possession of a firearm

by a convicted felon because Williams had seen him brandishing the firearm. The trial court found

that Bell recklessly handled the firearm when he pointed it at Williams, threatening her with it. The

trial court further found that Bell possessed the firearm after he had been convicted of a felony. Bell

appeals.

STANDARD OF REVIEW

“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.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting

Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “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) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “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) (quoting

Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the

conviction, ‘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.’” McGowan, 72

Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

“The sole responsibility to determine the credibility of witnesses, the weight to be given to

their testimony, and the inferences to be drawn from proven facts lies with the fact finder.” Ragland

-5- v. Commonwealth, 67 Va. App. 519, 529-30 (2017). “In a bench trial, the trial judge’s ‘major role

is the determination of fact, and with experience in fulfilling that role comes expertise.’”

Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Haskins v.

Commonwealth, 44 Va. App. 1, 11 (2004)). “Under our standard of review, a factfinder may

draw reasonable inferences from basic facts to ultimate facts, and those inferences cannot be

upended on appeal unless we deem them so attenuated that they push into the realm of non

sequitur.” Commonwealth v. Perkins, 295 Va. 323, 332 (2018) (internal quotation marks

omitted) (quoting Bowman v. Commonwealth, 290 Va. 492, 500 (2015)).

ANALYSIS

Bell argues that the evidence is insufficient to convict him of possession of a firearm as a

convicted felon and reckless handling of a firearm because no evidence proved that the item was

designed, made, or intended to expel a projectile by means of an explosion. According to Bell,

when the trial court granted his motion to strike the discharging a firearm charge, it created an

“evidentiary gap” that no other evidence filled. Bell argues that the trial court could not use the

gunshots heard as evidence that the item he held was a firearm. He contends that the only evidence

in the record that described the item as a handgun was its color, which was insufficient to establish

that it was designed, made, and intended to expel a projectile by means of an explosion. Finally, he

concludes that without further evidence that the handgun was not a replica, a pneumatic weapon, a

spring-loaded weapon, or an item that may appear to be a handgun, the evidence was insufficient to

establish that the item he had was a “firearm” within the intendment of the controlling statutes.

We begin our analysis with the statutes defining the offenses for which Bell was convicted.

“It shall be unlawful for (i) any person who has been convicted of a felony . . . to knowingly and

intentionally possess or transport any firearm.” Code § 18.2-308.2(A). “It shall be unlawful for any

person to handle recklessly any firearm so as to endanger the life, limb or property of any person.”

-6- Code § 18.2-56.1(A). Neither statute defines the term “firearm.” The Supreme Court has held,

however, that the term “firearm” under Code § 18.2-308.2 means “any instrument designed, made,

and intended to fire or expel a projectile by means of an explosion.” Armstrong v. Commonwealth,

263 Va. 573, 583 (2002). We have employed the same definition of “firearm” to Code

§ 18.2-56.1(A) that applies under Code § 18.2-308.2. Jones v. Commonwealth, 65 Va. App. 274,

278 (2015). Thus, to sustain Bell’s convictions the Commonwealth was required to prove that

either: (1) the item in Bell’s hand was, in fact, a firearm, or (2) that Bell’s conduct, together with a

victim’s identification of the item as a gun, is an implied assertion that the item was a firearm.

Jordan v. Commonwealth, 286 Va. 153, 158 (2013).

In Jordan, the defendant pointed “a gun” at his victim’s head and told the victim to get out

of his truck. Id. at 155-56. The victim described the object as a small, silver semi-automatic pistol,

which he later identified as a “Raven,” a particular type of small-caliber handgun. Id. at 155. In

affirming the defendant’s convictions, the Supreme Court explained that although the defendant

“did not verbally threaten to kill [the victim] . . . the acts of pointing the gun at [the victim] while

directing him to get out of the car, most assuredly communicated the message that if [the victim] did

not comply, [the defendant] would shoot him.” Id. at 158; see also Redd v. Commonwealth, 29

Va. App. 256, 259 (1999) (holding that a threat, coupled with a description of the object as a

firearm, is sufficient to sustain a conviction for possession of a firearm by a convicted felon).

The trial court specifically rejected Bell’s version of the event and found Williams and

Officer Costello’s testimony to be more credible. “In 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.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011)

(quoting Marable v. Commonwealth, 27 Va. App. 505, 509-10 (1998)). Because the trial court

considered Bell’s version of the event and rejected it, we will reverse Bell’s convictions only if

-7- the trial court’s judgment was “plainly wrong or there is no evidence to support it.” Kelly v.

Commonwealth, 41 Va. App. 250, 257 (2003) (en banc).

Williams saw Bell outside her home and overheard him arguing with Rue about a gun.

Williams observed a purple and black handgun in Bell’s hand, which she had seen Bell with before.

Williams stated that Bell initially pointed the item at Rue but when she confronted Bell, he pointed

the item at her and told her, “bitch, stand out my way.” Williams’s ability to identify the item as a

handgun was subject to cross-examination. The determination of how much weight to give her

identification of the item was a matter for the trier of fact. Further, the trial court permissibly

concluded that Bell’s threat and conduct of pointing the item at Williams was an implied assertion

that the item he held was a firearm. Jordan, 286 Va. at 158; Redd, 29 Va. App. at 259. We will not

disturb the trial court’s findings on appeal because they are not plainly wrong or without evidence to

support them.

Finally, we reject Bell’s argument that an “evidentiary gap” exists given the trial court’s

ruling on the discharging a firearm charge. When granting the motion to strike the discharging a

firearm charge, the trial court emphasized that no one saw Bell fire the weapon and no

circumstantial evidence tended to prove Bell fired the gun. In contrast, the trial court relied on

Williams’s testimony concerning Bell’s conduct and her description of the item as a gun she

recognized in convicting him of possessing a firearm as a convicted felon and recklessly

handling a firearm. Credible evidence supports the trial court’s finding that the item Bell had

was a “firearm” within the intendment of Code §§ 18.2-308.2(A) and 18.2-56.1(A); thus, we will

not disturb that finding on appeal.

-8- CONCLUSION

The Commonwealth’s evidence was competent, was not inherently incredible, and was

sufficient to prove beyond a reasonable doubt that Bell was guilty of possession of a firearm by a

convicted felon and reckless handling of a firearm. Therefore, we affirm Bell’s convictions.

Affirmed.

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