COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Decker UNPUBLISHED UNPUBLISHED
Argued at Lexington, Virginia
JAMAL KEMO SAUNDERS MEMORANDUM OPINION* BY v. Record No. 0267-14-3 JUDGE MARLA GRAFF DECKER JANUARY 27, 2015 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Jr., Judge
Sherron E. Ashby, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Jamal Kemo Saunders appeals from his conviction in a bench trial for possession of a
firearm by a convicted felon, in violation of Code § 18.2-308.2(A).1 Specifically, he suggests that
the Commonwealth failed to establish that the weapon in his possession was “designed, made, and
intended to fire or expel a projectile by means of an explosion.” The Court holds that the evidence
was sufficient to support the conviction and affirms the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The appellant was convicted under the subsection providing that “[i]t shall be unlawful for any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult” to knowingly and intentionally possess a firearm. Code § 18.2-308.2(A)(iii). The elements relating to age and delinquency status are not in dispute in this appeal. Therefore, for simplicity, we refer to the conviction as one for possession of a firearm by a convicted felon, an almost identical offense proscribed by a different subsection of the same statute and punishable in the same manner. Similarly, we refer to the appellant’s acquittal for a second count of the same crime, alleged to have been committed a day later, in this same shorthand fashion. I. BACKGROUND AND PROCEDURAL HISTORY2
On the afternoon of July 4, 2013, Danny Roberts was walking home with friends when he
encountered the appellant. Roberts walked past the appellant, who was sitting on the porch of a
house along Roberts’ route. The appellant “yelled out” at Roberts, who acknowledged him. The
appellant said, “I’m going to shoot you in the face.” Roberts saw an object in the appellant’s hands,
which he described as “a long rifle looking .22[,] like a .22 rifle” pointed at him. Specifically,
Roberts explained that he knew “all guns,” and he identified this one as a “.22 rifle gun.”
Roberts “thought [the rifle] was real,” and right after he saw it, the appellant “shot [him].”
Roberts believed that the appellant fired the rifle twice. He did not hear a loud sound or “bang” but
heard, instead, a sound “like . . . pshht (Indicating).” After the shots were fired, Roberts left the
scene. When Roberts arrived home, his girlfriend told him that he had blood on his shirt. Roberts
was surprised and said that he did not “feel it.” He found the wound and “[p]atched it up.”
The following morning, Roberts opened the front door to his house to let his mother inside.
He saw the appellant running toward him and heard the appellant tell his mother to get out of the
way, adding, “I’m going to kill him.” Roberts’ mother saw the appellant pull a handgun out of his
bookbag. Roberts slammed the door, and his mother got back into her car and left.
Four days after the shooting, Roberts went to the hospital to be treated for his wound.
Photographs of the injury were admitted into evidence at trial. Roberts identified the wound in the
2 This Court “view[s] the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court.” Preston v. Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129 (2011). Examining “the record through this evidentiary prism requires [the Court] to ‘disregard 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 [from that evidence].’” Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).
-2- photographs as the injury from July 4. He also explained that he was scheduled to have surgery for
the wound.
At the conclusion of the Commonwealth’s evidence and again at the close of all the
evidence, the appellant made a motion to strike. He argued that Code § 18.2-308.2 requires proof
that the weapon was an actual firearm capable of producing or expelling a projectile by means of an
explosion rather than by pneumatic pressure and that the evidence failed to meet that standard. He
also pointed to the sound the weapon made when discharged and provided examples of evidence
that he believed failed to support the conclusion that the victim was struck with a projectile or was
seriously injured. The parties and the court also discussed the difference between the type of
evidence necessary to prove the crime of possession of a firearm under Code § 18.2-308.2 and the
more relaxed proof needed for the various other firearm offenses for which the appellant was on
trial, including use of a firearm in the commission of a felony and brandishing a firearm.
The court denied the motions to strike and convicted the appellant of possession of a firearm
by a convicted felon. The appellant was also convicted of malicious wounding in violation of Code
§ 18.2-51 and use of a firearm in the commission of a felony in violation of Code § 18.2-53.1,
convictions not challenged on appeal. The court found the appellant not guilty of two offenses
relating to the events of July 5, brandishing a firearm and a second count of possession of a firearm
by a convicted felon. The court made clear that it found the testimony of Roberts and his mother
credible regarding the events of July 5. However, it noted that the appellant was charged with
brandishing the gun “to induce fear [in] Danny Roberts” and Roberts testified that he did not see the
appellant with a gun on that date. The appellant was sentenced to five years in prison for the
firearm offense that is the subject of this appeal.
-3- II. ANALYSIS
The appellant contends that the trial court erred by finding the evidence sufficient to convict
him of possession of a firearm by a convicted felon. His specific challenge relates to proof that the
weapon in his possession on July 4 was a “firearm” for purposes of Code § 18.2-308.2. He suggests
that the evidence fails to establish that the weapon was “designed, made, and intended to fire or
expel a projectile by means of an explosion” and that it could, instead, have been a pneumatic gun.
The appellant was tried by the circuit court, sitting without a jury. Consequently, that court
was the fact finder and its judgment is afforded the same weight as a jury verdict. Preston v.
Commonwealth, 281 Va. 52, 57, 704 S.E.2d 127, 129 (2011). The trial court’s decision will not be
reversed unless it is “‘plainly wrong or without evidence to support it.’” Id. (quoting Code
§ 8.01-680). The law is also clear that determining the credibility of the witnesses and the weight
afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to
hear and see them as they testify. Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314
(1998); Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). Further, the
fact finder is responsible for determining what inferences are to be drawn from proved facts,
provided that the inferences reasonably flow from those facts. See Commonwealth v. Hudson, 265
Va. 505, 514, 578 S.E.2d 781, 786 (2003); Burton v. Commonwealth, 58 Va. App. 274, 283, 708
S.E.2d 444, 449 (2011). Finally, if the evidence is sufficient to support the conviction, the
reviewing appellate court will not “substitute its own judgment for that of the trier of fact, even if its
opinion might differ from the conclusions reached by the [fact finder].” Jordan v. Commonwealth,
286 Va. 153, 156-57, 747 S.E.2d 799, 800 (2013); see Kelly v. Commonwealth, 41 Va. App. 250,
257, 584 S.E.2d 444, 447 (2003) (en banc).
This Court, however, reviews questions regarding the interpretation and application of a
statute de novo. See Sarafin v. Commonwealth, ___ Va. ___, ___, 764 S.E.2d 71, 74 (2014)
-4- (interpretation); Moore v. Commonwealth, 276 Va. 747, 753, 668 S.E.2d 150, 153 (2008)
(interpretation and application). Code § 18.2-308.2(A), in pertinent part, states that it is unlawful for
any person previously convicted of a felony “to knowingly and intentionally possess . . . any
firearm.” Although this code section does not define the term “firearm,” the Supreme Court of
Virginia has held that a firearm, for purposes of Code § 18.2-308.2, is “‘any instrument designed,
made, and intended to fire or expel a projectile by means of an explosion.’” Jordan, 286 Va. at 157,
747 S.E.2d at 801 (quoting Armstrong v. Commonwealth, 263 Va. 573, 583, 562 S.E.2d 139, 145
(2002)); see also Adjei v. Commonwealth, 63 Va. App. 727, 751-54, 763 S.E.2d 225, 237-38
(2014) (discussing the Armstrong definition of a firearm and applying it to the offense proscribed
by Code § 18.2-308.2:01(B), possession of a firearm by an illegal alien). The Court further
concluded that the definition does not require “any element of present capacity or operability.”
Jordan, 286 Va. at 157, 747 S.E.2d at 801; see also Barlow v. Commonwealth, 61 Va. App. 668,
672-73, 739 S.E.2d 269, 271-72 (2013). In addition, the definition of a firearm under Code
§ 18.2-308.2 does not include a pneumatic gun, which “propels a projectile by pneumatic pressure”
rather than “by an explosion or discharge of gunpowder.” Jones v. Commonwealth, 16 Va. App.
354, 356-58, 429 S.E.2d 615, 615-17, adopted on reh’g en banc, 17 Va. App. 233, 436 S.E.2d 192
(1993); see Armstrong, 263 Va. at 578 n.2, 583-84, 562 S.E.2d at 142 n.2, 145. Under other
statutes, however, including Code § 18.2-53.1, which proscribes the use of a firearm in the
commission of a felony, and Code § 18.2-308.4(C), which proscribes the use or display of a firearm
while committing certain drug-related crimes, the definition of a firearm is “‘broad[er]’” and
“includes any instrument that ‘gives the appearance of being a firearm.’” Startin v. Commonwealth,
281 Va. 374, 382, 706 S.E.2d 873, 878 (2011) (holding that a replica firearm, like a BB gun, may
qualify as a firearm under the broader definition) (quoting Armstrong, 263 Va. at 582-83, 562
S.E.2d at 144); see 1 Va. Model Jury Instructions – Criminal, No. 18.616, pr. cmtry. (2012)
-5- (stating that “[Code] § 18.2-308.4(C) is analogous to [Code] § 18.2-53.1” regarding what
constitutes a firearm).
Whether an object is a firearm under the definition applicable to Code § 18.2-308.2, like any
element of a crime, “may be proved by any direct or circumstantial evidence, as long as the
evidence as a whole is sufficiently convincing to exclude all reasonable hypotheses of innocence.”
Boone v. Commonwealth, 63 Va. App. 383, 393, 758 S.E.2d 72, 77 (2014). However, “[t]he
Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence
. . . .” Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a
hypothesis of innocence is reasonable is a question of fact. Cantrell v. Commonwealth, 7 Va. App.
269, 290, 373 S.E.2d 328, 339 (1988). Consequently, the fact finder’s “rejection of a hypothesis of
innocence” is binding on appeal unless plainly wrong, “even if there is ‘some evidence to support’
the hypothesis.” Ervin v. Commonwealth, 57 Va. App. 495, 519, 704 S.E.2d 135, 147 (2011) (en
banc) (quoting Hudson, 265 Va. at 513, 578 S.E.2d at 785).
The evidence, viewed in light of these principles, proved that the appellant possessed a
firearm as that term is defined for purposes of Code § 18.2-308.2. Roberts was walking home when
he passed the appellant. The appellant “yelled out” at Roberts and said, “I’m going to shoot you in
the face.” Roberts turned around and saw a weapon in the appellant’s hands, which he described as
“a long rifle . . . a .22 rifle” pointed at him. Roberts specifically testified that he was familiar with
guns and identified the one he saw as a “.22 rifle gun.” He further explained that he thought the
rifle was real and right after he saw it, the appellant “shot [him].” Roberts heard the rifle fire twice.
Although he did not hear a loud sound or “bang,” he heard a sound “like . . . pshht,” and he
demonstrated this sound for the court. When Roberts arrived home immediately after the incident,
he had blood on his shirt. He patched up the wound but went to the hospital four days later for
-6- treatment. He testified that he was scheduled to have surgery for the wound on a later date.
Photographs of Roberts’ wound were admitted into evidence.
Roberts’ testimony about his familiarity with guns, his specific description of the object that
he saw in the appellant’s hands, and his recounting of the events provided the trier of fact with an
ample basis upon which to conclude that the object was a firearm for purposes of Code
§ 18.2-308.2. The appellant’s direct threat to shoot Roberts during the July 4 encounter was an
implied assertion that the object was a firearm and further supported Roberts’ description of the
object as a firearm. See Jordan, 286 Va. at 158, 747 S.E.2d at 801 (“The determination of how
much weight to give to [the victim’s] identification of the object . . . was a matter for the trier of
fact.”); Redd v. Commonwealth, 29 Va. App. 256, 259, 511 S.E.2d 436, 438 (1999) (holding that
the defendant’s threat to kill a store clerk was an implied assertion that the object she held,
described “as ‘a long black gun,’” was a firearm under Code § 18.2-308.2), cited with approval in
Jordan, 286 Va. at 157-58, 747 S.E.2d at 801; cf. Holloman v. Commonwealth, 221 Va. 196, 197,
269 S.E.2d 356, 357 (1980) (in affirming a conviction under Code § 18.2-53.1, noting that “[t]he
object in question . . . appear[ed] in size, weight and shape to be a .45 caliber automatic pistol” but
the “[t]estimony showed it fire[d] BBs by the force of a spring, not by gunpowder”). This evidence
was bolstered by the fact that the day after the shooting, the appellant went to the victim’s home,
told the victim’s mother to get out of his way and said, “I’m going to kill him,” referencing Roberts.
Cf. Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245, 251 (2011) (holding that
circumstantial evidence of a person’s intent may include “statements and conduct of an accused
after the events that constitute the charged crime” (emphasis added)).
Further, in addition to all of the other evidence in this case, Roberts sustained an injury
consistent with a gunshot wound. Immediately upon his returning home, his girlfriend noticed
blood on his shirt. Roberts dressed the wound and then, four days later, went to the hospital where
-7- he was treated for the injury. The trier of fact also had the benefit of photographs of the injury, and
the judge specifically stated that they were “strong evidence” that Roberts was struck by a
projectile. See generally Perry v. Commonwealth, 61 Va. App. 502, 513-14, 737 S.E.2d 922,
928-29 (2013) (holding, in view of the entire record, that the evidence was sufficient to prove the
defendant possessed a firearm based on testimony of witnesses and admission of the firearm into
evidence). This evidence, combined with Roberts’ testimony regarding the threat, the weapon he
saw, and what happened after he observed the firearm pointed at him, supports the trial court’s
conclusion that the weapon was a firearm for purposes of Code § 18.2-308.2.
The appellant urges us to accept one of several hypotheses of innocence that the weapon he
used on July 4 did not meet the definition of firearm. He suggests that the victim’s account
concerning the sound the weapon made when fired was inconsistent with the loud sound that he
claims a rifle would make when discharged. The appellant also relies on the victim’s testimony that
he did not feel anything when he was shot and was able to walk home and delay hospital treatment
by several days. Based on these arguments, the appellant concludes that the evidence did not prove
that the weapon was an actual firearm rather than a pneumatic gun.
The appellant’s arguments go to the assessment of the weight of the evidence and the
credibility of the victim, decisions for the trier of fact. See Taylor, 256 Va. at 518, 506 S.E.2d at
314. His various “hypotheses of innocence,” which he attempts to apply to the evidence or suggests
are reasonable inferences based on common knowledge, were argued to the trial court and rejected.
The law is clear that whether a defendant’s hypotheses of innocence are reasonable is a question of
fact, and here in each instance that question was resolved against him by the trial court sitting as
trier of fact. See Ervin, 57 Va. App. at 519, 704 S.E.2d at 147 (holding that the fact finder’s
rejection of a hypothesis of innocence in favor of a theory of guilt supported by the evidence is
binding on appeal unless plainly wrong).
-8- No evidence supports the appellant’s contention that the sound a .22 caliber rifle makes is
louder than the sound heard by the victim, who was in fear for his life. Nor is that an inference that
would reasonably flow from the evidence. Similarly, nothing in the record supports the conclusion
that just because the victim did not “feel” the gunshot wound from a .22 caliber weapon, was able to
walk home, and went to the hospital only after having first self-treated the wound, he was not shot
with a firearm. The trial court heard the witnesses, viewed the evidence, and determined that the
weapon used was a firearm, “designed, made, and intended to expel a projectile by means of an
explosion.” The record, viewed in the light most favorable to the Commonwealth, entirely supports
the trial court’s conclusion that the appellant pointed a firearm at Roberts, told him he would shoot
him in the face, and then shot him.
The appellant also argues that the trial court applied the wrong definition of a firearm when
it convicted him of violating Code § 18.2-308.2. In support of this contention, he relies on the
discussion the court had with counsel at the time of the motion to strike in which the court recited
the model jury instruction relevant to Code § 18.2-308.4(C).3 The appellant suggests that because
that definition of a firearm is more expansive than the one for a Code § 18.2-308.2 offense, the court
erred by considering the broader definition in finding that the object was a firearm.
In our review of this point, we follow the well-established principle that a trial court is
presumed to know the law and to properly apply it to the facts in a case. Yarborough v.
Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); Groves v. Commonwealth, 50
3 The court apparently referenced Virginia Criminal Model Jury Instruction No. 18.616, which applies to Code § 18.2-308.4(C). The appellant was not charged with an offense under that code section, but he was charged with violating Code § 18.2-53.1, to which the same definition of a firearm applies. See 1 Va. Model Jury Instructions – Criminal, No. 18.616, pr. cmtry. (2012) (stating that “[b]ecause [Code] § 18.2-308.4(C) is analogous to [Code] § 18.2-53.1, the definition of firearm applicable to that section is replicated here” (citing Instr. No. 18.702)).
-9- Va. App. 57, 61-62, 646 S.E.2d 28, 30 (2007). This presumption can be overcome only by clear
evidence to the contrary. Yarborough, 217 Va. at 978, 234 S.E.2d at 291. An isolated statement by
a judge simply will not rebut the presumption. Riner v. Commonwealth, 40 Va. App. 440, 478-79,
579 S.E.2d 671, 690-91 (2003), aff’d, 268 Va. 296, 601 S.E.2d 555 (2004). When considering
whether a trial court applied an incorrect legal standard, the judge’s comments must be viewed in
context, keeping in mind the legal requirements on appellate review. See Yarborough, 217 Va. at
978, 234 S.E.2d at 291 (“[W]e will not fix upon isolated statements of the trial judge taken out of
the full context in which they were made, and use them as a predicate for holding the law has been
misapplied.”); see also Bassett v. Commonwealth, 13 Va. App. 580, 583-84, 414 S.E.2d 419, 421
(1992) (holding that a “trial court’s remark is not, in and of itself, ‘the full context’ simply because it
represents the only point at which the court [expressly] addressed the issue [in dispute]”).
In this case, the record demonstrates that although the trial court mentioned the model jury
instruction for a different firearm offense, it did not misapply the law and, instead, used the correct
legal definition of firearm, applicable to Code § 18.2-308.2, for the instant offense. The context of
the discussion is important. Several firearm offenses were before the court. Arguments of counsel
addressed a variety of challenges and included references to different evidence. Reading the record
as a whole supports the conclusion that the trial court did not err.
The appellant argued to the trial court that Code § 18.2-308.2 requires proof that the weapon
be an actual firearm capable of producing or expelling a projectile by means of an explosion rather
than pneumatic pressure and that the evidence failed to meet that standard. He asserted that the
sound the object made when discharged was inconsistent with this definition. He also contended
that there was neither specific evidence as to the type of wound sustained by the victim nor evidence
of a “projectile inside of him.” Counsel and the court discussed the difference between proof of the
crime of possession of a firearm by a convicted felon and the more relaxed proof of the crime of use
- 10 - of a firearm in the commission of a felony. The prosecutor pointed out that the victim described the
weapon as a .22 caliber long rifle. He also referenced the evidence of the victim bleeding and the
associated wound. The court indicated that the photographs of the wound were “strong evidence”
that the victim “was, in fact, struck by a projectile.”
The appellant subsequently acknowledged that brandishing, a charge based on the incident
of July 5, did not require proof of a real firearm, but he again asserted that possession of a firearm
by a convicted felon did require such proof. The trial court responded, “All right.” (Emphasis
added). The prosecutor then argued that the evidence proved, “[a]t the very least[,] the [malicious]
wounding” of July 4, because, “whether it [was] a pistol or a long rifle or a pellet gun, it caused a
wound.” The trial court noted, in addition, that a pellet gun is “capable of . . . expelling a projectile
by force,” and it pointed out that this action fit under the broad definition of a firearm in Code
§ 18.2-308.4(C). Although the appellant was not charged with an offense under that code section,
he was charged under Code § 18.2-53.1 with using a firearm in the commission of a felony, which
employs the same broad definition of a firearm quoted by the court. See 1 Va. Model Jury
Instructions – Criminal, No. 18.616, pr. cmtry. The court then recited that broad definition,
stating, “‘[A] firearm is any instrument that is capable of expelling a projectile by force or gun
powder,’ but it also defines a firearm as ‘an object that is not capable of expelling a projectile by
force or gun powder but gives the appearance of being able to do so.’” The court concluded,
“[H]ere we have evidence that it produced a projectile.” The prosecutor told the court he would
review the law but added, “Quite candidly, Judge, I would respectfully submit we have evidence
that it produced a projectile and . . . is a firearm ‘cause he’s identified it as a .22.” (Emphasis
added). The court responded, “Yeah.” (Emphasis added).
A reasonable reading of the trial court’s lengthy discussion with counsel is that the court was
pointing out that even if the weapon was a pellet gun as the appellant had argued, the appellant
- 11 - could be convicted not only of malicious wounding, as the Commonwealth had argued, but, in
addition, of using a firearm in the commission of that offense. Nothing in the trial court’s exchange
with counsel indicates either that the court intended to apply that broad definition of a firearm to the
Code § 18.2-308.2 charge or that it in fact did so. At no point did the court disagree with the
definition of a firearm that the appellant advanced as applicable to the instant offense. Further, the
appellant never expressed concern to the trial court that he believed it had invoked an incorrect
definition of firearm for purposes of the Code § 18.2-308.2 charge.
When the arguments, inquiry about the jury instruction, and comments by the trial court are
reviewed in context, the record fails to establish that the court misunderstood the law. As a result,
we apply the presumption that the court knew and properly applied the law and was aware that the
definition of a firearm for purposes of the instant offense was the narrower definition requiring that
it be “designed, made, and intended to fire or expel a projectile by means of an explosion” rather
than by pneumatic pressure, see Armstrong, 263 Va. at 578 n.2, 583-84, 562 S.E.2d at 142 n.2, 145.
The record also makes clear that the court believed that the weapon was a firearm that expelled a
projectile by means of an explosion because it was a .22 caliber rifle, a conclusion consistent with
the finding of guilt.
III. CONCLUSION
We hold that the evidence was sufficient to prove that the object in the appellant’s
possession on July 4 was a firearm, “designed, made, and intended to fire or expel a projectile by
means of an explosion” as required to support his conviction under Code § 18.2-308.2. We further
hold that the record fails to rebut the presumption that the trial court applied the correct law
regarding the definition of firearm. Consequently, we affirm the appellant’s conviction for
possession of a firearm by a convicted felon.
Affirmed.
- 12 -