Dwayne Lavere Barley, a/k/a v. Commonwealth of VA

• Court: Court of Appeals of Virginia
• Decided: November 28, 2000
• Docket: 0117003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys Argued at Salem, Virginia

DWAYNE LAVERE BARLEY, S/K/A DYWAYNE LAVERNE BARLEY MEMORANDUM OPINION * BY v. Record No. 0117-00-3 JUDGE LARRY G. ELDER NOVEMBER 28, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge

S. Jane Chittom (Elwood Earl Sanders, Jr., Appellate Defender; Public Defender Commission, on briefs), for appellant.

Shelly R. James, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Dwayne Lavere Barley (appellant) appeals from his bench

trial conviction for carrying a concealed weapon in violation of

Code § 18.2-308, his second such offense. On appeal, he

contends the trial court erroneously held (1) the statute did

not require proof of intent to conceal and (2) the evidence was

sufficient to support his conviction. We hold the trial court

did not rule that the statute does not require proof of intent

to conceal. Further, assuming without deciding that intent is

an element of the offense of carrying a concealed weapon, we

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. hold the evidence was sufficient to support his conviction.

Therefore, we affirm.

A.

INTENT TO CONCEAL

Appellant contends the trial court erroneously ruled that

Code § 18.2-308(A) does not require proof of a specific intent

to conceal. We hold the trial court made no such ruling.

Counsel for appellant, in questioning appellant, asked him

about how his prior conviction for carrying a concealed weapon

"affect[ed] the way [he] would treat and carry this particular

gun." The Commonwealth objected, indicating that counsel could

ask about appellant's behavior on this particular occasion for

purposes of determining whether the weapon was concealed but

objected to the type of evidence counsel offered to prove

concealment or lack thereof. Appellant's counsel argued that

the evidence he sought was relevant to appellant's state of mind

on that particular occasion. The Commonwealth argued that

appellant's state of mind was not in fact relevant to the

question of whether the weapon was concealed; it did not

specifically argue that appellant's intent was not relevant.

The trial court agreed with the Commonwealth that the issue was

concealment on this particular occasion.

We interpret this exchange as a ruling that evidence of

what appellant knew about the legality of concealing a weapon

was not an appropriate means of proving whether he was carrying

- 2 - a concealed weapon on this particular occasion. Cf. Jackson v.

Chesapeake & Ohio Ry. Co., 179 Va. 642, 648, 20 S.E.2d 489, 491

(1942) (noting majority rule in tort actions that evidence that

a driver acted carefully and cautiously on prior occasions "is

ordinarily not admissible to show that he was acting with care

and caution . . . when the accident in question happened"). On

that basis, it held the proffered testimony was inadmissible. 1

This determination did not also constitute a ruling that intent

was irrelevant to a determination of whether the weapon was

concealed within the meaning of the statute. Appellant's

counsel in fact argued in closing that appellant put the weapon

on the car's console so that it would be visible rather than

concealed, implying that counsel did not interpret the trial

court's prior ruling as a conclusion that intent was irrelevant.

Appellant did not request such a ruling in the trial court, and

the trial court made no such ruling. Therefore, we find it

unnecessary to address whether intent to conceal is an element

of the offense. 2

1 We do not address the merits of this ruling because appellant does not contest the exclusion of this evidence on appeal. The issue is properly before us only in the context of appellant's contention that it constituted a ruling that intent is not an element of the crime of carrying a concealed weapon. 2 For purposes of reviewing the sufficiency of the evidence, we assume without deciding that proof of intent to conceal is required.

- 3 - B.

SUFFICIENCY OF THE EVIDENCE

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). The fact finder is not required to

believe all aspects of a witness' testimony; it may accept some

parts as believable and reject other parts as implausible. See

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993). Further, any element of a crime may be proved by

circumstantial evidence, see, e.g., Servis v. Commonwealth, 6

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the

evidence as a whole "is sufficiently convincing to exclude every

reasonable hypothesis except that of guilt," Coleman v.

Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

Appellant contests only the sufficiency of the evidence to

establish that the weapon was "hidden from common observation,"

as required to support a conviction for violating Code

§ 18.2-308(A). Assuming without deciding the statute requires

proof of intent to conceal, the circumstantial evidence, viewed

in the light most favorable to the Commonwealth, supported a

finding that appellant did, in fact, intentionally place the

weapon beneath the jacket. Appellant told Officer Ford the

weapon was in the passenger seat, and Ford found the weapon

- 4 - there, positioned beneath the windbreaker. Appellant himself

testified that the weapon could not have fallen from the console

to a location beneath the jacket. Finally, no evidence

indicated that anyone besides appellant approached the car and

put the weapon beneath the jacket. Therefore, the only

reasonable hypothesis flowing from the circumstantial evidence,

viewed in the light most favorable to the Commonwealth, is that

appellant intentionally placed the weapon beneath the jacket

before he exited the car.

Appellant also contends on appeal that the weapon was not

"hidden from common observation" because it was covered "only by

a readily movable windbreaker style jacket." However, because

appellant failed to raise this specific argument in the trial

court, it is barred on appeal. See Rule 5A:18. Further, even

if not barred, this claim lacks legal foundation. As argued by

the Commonwealth, Code § 18.2-308(A) requires only that the

weapon is hidden from common observation, not that the covering

is difficult to remove. "Accessibility of a concealed weapon

for 'prompt and immediate use' is clearly the evil proscribed by

the statute." Leith v. Commonwealth, 17 Va. App. 620, 622, 440

S.E.2d 152, 153 (1994) (quoting Schaaf v. Commonwealth, 220 Va.

429, 431, 258 S.E.2d 574, 574-75 (1979)); Clarke v.

Commonwealth, 32 Va. App. 286, 527 S.E.2d 484 (2000); Main v.

Commonwealth, 20 Va. App. 370, 372-73, 457 S.E.2d 400, 401-02

(1995) (en banc). Thus, the fact that the windbreaker was

- 5 - "readily movable" supports rather than weakens appellant's

conviction.

For these reasons, we reject appellant's contention that

the trial court held the statute does not require proof of

intent to conceal. Further, assuming without deciding that

intent is an element of the offense of carrying a concealed

weapon, we hold the evidence was sufficient to prove appellant

intentionally "hid[] [the weapon] from common observation" in

violation of the statute. Therefore, we affirm appellant's

Affirmed.

- 6 -