COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges AtLee, Friedman and Frucci Argued at Norfolk, Virginia
JENMALL DONTE SIMMONS MEMORANDUM OPINION* BY v. Record No. 2219-23-1 JUDGE FRANK K. FRIEDMAN APRIL 22, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Robert G. MacDonald, Judge
Erik A. Mussoni, Senior Trial Attorney (Chesapeake Public Defender’s Office, on briefs), for appellant.
Victoria Johnson, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
The trial court convicted Jenmall Donte Simmons of carrying a concealed weapon in
violation of Code § 18.2-308 and sentenced him to twelve months in jail with eight months
suspended. On appeal, Simmons challenges the sufficiency of the evidence to support his
conviction, arguing that the firearms were not “about his person” as required to sustain a conviction
under Code § 18.2-308.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” McGowan v.
Commonwealth, 72 Va. App. 513, 516 (2020) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)).
* This opinion is not designated for publication. See Code § 17.1-413(A). Simmons was charged with carrying a concealed weapon in violation of Code § 18.2-308.
He pleaded not guilty to the charge. Simmons waived his right to a jury trial, so a bench trial was
conducted.
At trial, Officer Miller of the Chesapeake Police Department testified that on June 1, 2023,
he was searching for a black Audi that was reported stolen. It was approximately 9:00 p.m. and
dark outside. Miller observed the suspected vehicle, a black Audi, that was backed into a “parking
pad” in front of a townhouse. When Miller noticed the vehicle, it was already parked. From his
patrol car, Miller attempted to “verify things and have backup com[e],” at which point a male, later
identified as Simmons, exited the vehicle and went into a residence. No one else exited the vehicle.
Miller immediately went to the residence that Simmons had entered and knocked. A
woman answered the door, and Miller explained that he wanted to talk to the man that just entered
that residence. The woman closed the door, and then Simmons opened the door.1 Miller asked the
pair if there were any other males in that residence, and both responded no. Miller informed
Simmons that he believed the vehicle was stolen, and he asked Simmons to step out of the residence
for further questioning. Simmons told Miller that he had just returned from Maryland where he
purchased the vehicle for $7,000 from a third party on Facebook. Police ultimately determined that
the vehicle tags displayed on the vehicle, driven by Simmons, did not match and were stolen.
Another person was the registered owner of the vehicle.
Simmons was arrested. When asked if there were any firearms in the vehicle, Simmons
stated that there were two firearms on the driver’s side of the vehicle. The woman in the residence
had the keys to the vehicle and unlocked it for Miller, who observed a “bulge” under the floor mat
on the driver side. Miller removed the mat and found two firearms. Prior to removing the mat, the
1 Approximately two minutes elapsed from the time Simmons exited the vehicle to the time Miller contacted the female and Simmons at the residence. -2- firearms were not in plain view or visible to common observation. Both firearms were tested and
found to be in mechanical operating condition.
After the Commonwealth presented its evidence, Simmons made a motion to strike, arguing
that the Commonwealth failed to prove that the firearms were “about his person” as required under
Code § 18.2-308. The trial court denied Simmons’ motion to strike. Simmons elected not to
present any evidence in his defense. Simmons then renewed his motion to strike. The trial court
again denied the motion.
In ruling on the motions to strike, the trial court—as factfinder—observed that there was
no evidence indicating how long Simmons was in the vehicle with the concealed weapons. The
court noted that “there is no observation that the officer makes of the defendant prior to his exit.
It is simply that he exited the vehicle,” and “I have no testimony whatsoever from the officer
regarding any activity or conduct or any observation whatsoever prior to his exit.” The court
also observed that “[t]he only evidence before me is that he [Simmons] just gets out of the car,
closes the door, and goes into the house. Then the officer immediately goes to—very soon
thereafter goes to the door, and within 2 minutes, the defendant appears.”
After considering the evidence, the trial court convicted Simmons of violating Code
§ 18.2-308. Simmons was sentenced to twelve months of incarceration, with eight months
suspended. Simmons now 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, 72 Va. App. at 521 (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)
-3- (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.’” Lucas v. Commonwealth, 75 Va. App.
334, 342 (2022) (quoting McGowan, 72 Va. App. at 521).
“When assessing whether the circumstantial evidence excludes a reasonable hypothesis of
innocence, the Commonwealth, ‘need only exclude reasonable hypotheses of innocence that flow
from the evidence, not those that spring from the imagination of the defendant.’” Id. at 348 (quoting
Simon v. Commonwealth, 58 Va. App. 194, 206 (2011)). “The reasonable-hypothesis principle . . .
is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Commonwealth v. Moseley, 293 Va. 455,
464 (2017)). And “[w]hether an alternate hypothesis of innocence is reasonable is a question of fact
and, therefore, is binding on appeal unless plainly wrong.” Id. (quoting Emerson v. Commonwealth,
43 Va. App. 263, 277 (2004)).
“We review questions of statutory construction de novo.” Evans v. Commonwealth, 299 Va.
330, 334 (2020); see also Dietz v. Commonwealth, 294 Va. 123, 132 (2017) (explaining that
disputes over the proper interpretation of a statute present an issue of law).
ANALYSIS
The trial court erred when it denied Simmons’ motion to strike.
Simmons, relying on Pruitt v. Commonwealth, 274 Va. 382 (2007), contends that the
evidence was insufficient to establish that he violated Code § 18.2-308 because the Commonwealth
failed to prove that the firearms were “about his person” for an appreciable amount of time.
-4- Simmons also contends that the firearms were not “about his person” where he exited the vehicle
and entered his residence before any interaction with law enforcement.
The Commonwealth, on the other hand, argues that Simmons’ conviction should be
affirmed “[b]ecause a reasonable factfinder could infer . . . that the firearm was about Simmons’
person and within his reach for prompt and immediate use during the period of time it was
concealed under the driver’s seat floormat while he was in the vehicle . . . .”
A. The meaning of “about his person” under Code § 18.2-308.
The relevant statute here states: “If any person carries about his person, hidden from
common observation, (i) any pistol . . . he is guilty of a Class 1 misdemeanor.” Code § 18.2-308
(emphasis added). “[T]he phrase ‘about the person’ carries with it over a century of jurisprudence.”
Hunter v. Commonwealth, 56 Va. App. 50, 62 (2010).
“Whether a weapon is upon a person or is readily accessible are largely questions of fact that
must be left to reasonable inferences drawn by the fact finder from the facts and circumstances of
the case.” Leith v. Commonwealth, 17 Va. App. 620, 621 (1994), superseded by statute on other
grounds as stated in Hodges v. Commonwealth, 64 Va. App. 687, 696 (2015).
The purpose of the [concealed carry] statute was to interdict the practice of carrying a deadly weapon about the person, concealed, and yet so accessible as to afford prompt and immediate use. “About the person” must mean that it is so connected with the person as to be readily accessible for use or surprise if desired.
Schaaf v. Commonwealth, 220 Va. 429, 430 (1979) (quoting Sutherland v. Commonwealth, 109 Va.
834, 835 (1909)). “The traditional purpose of [concealed weapon] statutes is generally recognized
as protection of the public by preventing individuals from having, readily available for use, weapons
of which others are unaware.” Leith, 17 Va. App. at 622 (alteration in original) (quoting Mun. of
Anchorage v. Lloyd, 679 P.2d 486, 487 (Alaska Ct. App. 1984)).
-5- “Accessibility of a concealed weapon for ‘prompt and immediate use’ is clearly the evil
proscribed by the statute.” Watson v. Commonwealth, 17 Va. App. 124, 127 (1993) (quoting
Sutherland, 109 Va. at 835). “Judicial use of the term ‘readily’ simply recognizes that the
availability contemplated by the statute means ‘in a ready manner’ or ‘without much difficulty.’”
Id. (quoting Webster’s Ninth New Collegiate Dictionary 980 (1989)). And while “the location of a
weapon is a significant circumstance for the court to consider in weighing accessibility[,] . . . a
weapon is not . . . inaccessible ‘as a matter of law’ if available only upon noticeable ‘body motion.’”
Id.
In Schaaf, the Supreme Court of Virginia upheld a conviction for carrying a concealed
weapon in violation of Code § 18.2-308, where the defendant carried a firearm in the bottom of a
handbag while attempting to enter a courthouse. 220 Va. 429. The Court in Schaaf explained that
its “decision accords with the rule of a majority of jurisdictions” that have “h[e]ld that the carrying
of a weapon in a handbag or other similar article, held in the hand or placed under the arm,
constitutes concealment of a weapon on or about the person.” Id. at 432. The Court noted that “[a]
pistol carried in such a bag is not only near and about the carrier’s person, hidden from common
observation, but in some handbags it is so accessible that it could be fired without being removed
therefrom.”2 Id. at 431.
In Watson, this Court revisited the meaning of “about his person” and upheld a conviction
for carrying a concealed firearm, where the defendant was driving a vehicle, stopped by law
enforcement due to an “equipment violation,” and a firearm was ultimately discovered under the
driver’s floor mat. 17 Va. App. at 125. At trial, the arresting officer testified that the firearm that
was under the driver’s floor mat was “easily accessible,” and the defendant had been in the vehicle
2 Our Supreme Court recently observed in Myers v. Commonwealth, 299 Va. 671, 677 (2017), that “[p]erhaps the time will come for us to reconsider the reach of Schaaf or to recalibrate its application, but this is not the case in which to do so.” -6- with the firearm throughout the traffic stop. Id. In affirming the conviction, we concluded that “the
loaded pistol was a weapon ‘readily accessible’ to defendant with only the slightest movement and,
thus, ‘carrie[d] about his person’ in violation of Code § 18.2-308.” Id. at 127 (alteration in original).
Simmons invokes Pruitt, 274 Va. 382, to support his contention that the firearms were not
“about his person” as required by the statute under these circumstances. In that case, Pruitt, who
testified at trial, placed his firearm on the passenger seat in plain view as he drove to work.3 Id. at
384-85. While driving, he was involved in an automobile accident, causing the firearm to fall off
the seat onto the floor. Id. at 384. Pruitt, suspecting his car would be towed, placed the firearm in
the center console compartment and immediately exited the vehicle. Id. at 385. When law
enforcement arrived at the scene, Pruitt was outside his vehicle with the doors and the windows
closed. Id. Our Supreme Court held that Pruitt’s firearm was not readily accessible, concluding:
There simply is no evidence demonstrating that Pruitt remained in the vehicle for any appreciable length of time beyond that necessary to place his pistol in the console compartment. Granting all reasonable inferences to the Commonwealth, the evidence established that Pruitt placed the pistol inside the console compartment as he was exiting his vehicle. Once he exited the vehicle and closed the door, the pistol was no longer accessible to him so as to afford “prompt and immediate use.”
Id. at 388-89.
This Court, in two unpublished decisions, grappled with the meaning of “about his person”
in light of Pruitt. Compare Johnson v. Commonwealth, No. 0877-10-3, 2010 Va. App. LEXIS
475 (Dec. 14, 2010), with Ruth v. Commonwealth, No. 1430-10-2, 2011 Va. App. LEXIS 317
3 In Pruitt, the trial court accepted the defendant’s testimony. 274 Va. at 385 (explaining that “the circuit court stated that it accepted Pruitt’s testimony that the pistol had not been concealed prior to the accident and his explanation as to why he had placed the pistol in the console compartment”). -7- (Oct. 18, 2011).4 In Johnson, we affirmed defendant’s conviction under Code § 18.2-308, where
he was a passenger in the backseat of a vehicle and was near his concealed weapon. Slip op. at
1-2, 2010 Va. App. LEXIS 475, at *1-2. The vehicle had four occupants in it, and when law
enforcement approached the stopped vehicle, all four occupants got out. Id. at 2, 2010 Va. App.
LEXIS 475, at *2. When law enforcement searched the vehicle, they found a concealed
weapon—covered with a shirt—in the backseat “immediately adjacent to where appellant had
been sitting.” Id. The defendant admitted he owned the firearm but denied concealing it. Id. At
trial, Johnson and two of the other occupants of the vehicle testified that the shirt was not
concealing the firearm when they exited the vehicle. Id. In affirming Johnson’s conviction, we
observed that “when [Johnson] sat in the back seat of the vehicle, in close proximity to the
concealed weapon, the offense was complete.” Id. at 6, 2010 Va. App. LEXIS 475, at *9. And
“it [was] reasonable for the trial court to infer the weapon was concealed while [Johnson] sat in
close proximity to it.” Id. at 6, 2010 Va. App. LEXIS 475, at *9-10. We also noted that “the
trial court clearly did not accept that testimony [by the defendant].” Id. at 6, 2010 Va. App.
LEXIS 475, at *9; see also Speller v. Commonwealth, 69 Va. App. 378, 388 (2018) (“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.”).
In Ruth, on the other hand, this Court reversed defendant’s conviction under Code
§ 18.2-308, holding that there was insufficient evidence that the concealed firearm was “about
his person.” Slip op. at 1, 2011 Va. App. LEXIS 317, at *1. In Ruth, the defendant was at an
apartment complex and hid his firearm under a rain catch. Id. at 2, 2011 Va. App. LEXIS 317, at
*2. Ruth then hung out with a friend in the complex for about 45 minutes, periodically checking
4 “Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012) (citing Rule 5A:1(f)). -8- on the firearm to ensure no kids accessed it. Id. at 2, 2011 Va. App. LEXIS 317, at *3. As the
defendant was leaving his friend’s residence, he went to retrieve the firearm under the rain catch,
at which point he noticed law enforcement watching him. Id. at 2-3, 2011 Va. App. LEXIS 317,
at *3. Ruth was bent over and three feet from the concealed firearm when he noticed the law
enforcement officer; as a result, he left the firearm in its hiding place and walked away. Id. at 3,
2011 Va. App. LEXIS 317, at *3-4. After he walked away, law enforcement discovered the
firearm concealed under the rain catch. Id. at 2, 2011 Va. App. LEXIS 317, at *2. Law
enforcement then found Ruth one block away from the apartment complex, and he admitted that
he owned the firearm. Id.
Based on these facts, we found that the evidence was insufficient to prove that the firearm
was “about his person,” and we reversed defendant’s conviction. Id. at 6, 2011 Va. App. LEXIS
317, at *10. We observed that “[t]he facts of Pruitt are similar to the instant case,” and thus, “we
h[e]ld that the evidence was insufficient to permit a reasonable trier of fact to conclude that the
gun was ‘about the person’ of [Ruth] when he hid it under the rain catch and walked away.” Id.
at 6, 2011 Va. App. at *9-10. In reversing the conviction, we explained that “[a]s in Pruitt, no
evidence showed that [Ruth] remained in the proximity of the rain catch and the hidden gun ‘for
any appreciable length of time beyond that necessary to place his pistol’ under the rain catch.”
Id. at 6, 2011 Va. App. at *10 (quoting Pruitt, 274 Va. at 388).
B. The evidence was insufficient to support Simmons’ conviction.
Whether a firearm is “about his person” is a fact specific inquiry. Pruitt and Watson are the
two cases both sides emphasize. And the facts in this case are distinguishable from both Pruitt and
Watson. While we ultimately find Pruitt particularly instructive, we acknowledge that it is not
directly on point. For instance, unlike in Pruitt, where the defendant testified, 274 Va. at 385, here
Simmons did not testify, and thus, there is no evidence—one way or the other—that indicates how
-9- long Simmons was in the vehicle with the concealed firearms. This case is unlike Watson because
here Simmons exited the vehicle and entered the residence before any interaction with law
enforcement. In Watson, although the firearm was under the floor mat like this case, Watson
remained in his vehicle with the concealed weapon during his interaction with law enforcement,
and thus, Watson had immediate access to the concealed firearm, such that our Court had no
trouble concluding that the firearm was “about his person.” 17 Va. App. at 125, 127.
The Commonwealth contends that it is a reasonable inference that Simmons was in the
vehicle with the concealed firearms for an “appreciable length of time beyond that necessary to
[conceal] his [firearms under the floor mat].” Pruitt, 274 Va. at 388. We disagree that such an
inference is reasonable where no evidence supports it. Here, the trial court acknowledged that there
was no evidence indicating when Simmons concealed the firearms or for how long he was in the
vehicle with the firearms concealed.
Where the factfinder stated that there was no evidence on this question, we hold that the
conviction was based on speculation and cannot stand. See, e.g., Littlejohn v. Commonwealth, 24
Va. App. 401, 414 (1997) (“[E]vidence is not sufficient to support a conviction if it engenders only
a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture.” (alteration in
original) (quoting Hyde v. Commonwealth, 217 Va. 950, 955 (1977))); Molina v. Commonwealth,
47 Va. App. 338, 369 (“To justify conviction of a crime, it is insufficient to create a suspicion or
probability of guilt. Rather, the burden is upon the Commonwealth to prove every essential element
of the offense beyond a reasonable doubt.” (quoting Moore v. Commonwealth, 254 Va. 184, 186
(1997))), aff’d, 272 Va. 666 (2006). The lack of this evidence is particularly problematic since the
Commonwealth had the burden of proof as to all elements of the offense, including that the
concealed firearm was “about his person.” See, e.g., Williams v. Commonwealth, 57 Va. App. 341,
348 (2010) (“Due process requires the prosecution ‘to prove beyond a reasonable doubt every fact
- 10 - necessary to constitute the crime charged.’” (quoting Mullaney v. Wilbur, 421 U.S. 684, 685
(1975))).
Here, there was no evidence presented that would allow a factfinder to infer that Simmons
was with the concealed firearms for an appreciable amount of time. Thus, the factfinder was left to
speculate as to when the firearms were concealed. See Potts v. Commonwealth, 12 Va. App. 1093,
1097 (1991) (explaining that an inference is unreasonable if not supported by evidence). And it is
just as likely, on this record, that Simmons exited the vehicle immediately upon concealing the
firearms (just like in Pruitt), as it is that he placed the firearms under the mat and then stayed in the
car for an extended period. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528 (1986)
(explaining that “[a] conviction based upon a mere suspicion or probability of guilt, however strong,
cannot stand”); Sutphin v. Commonwealth, 1 Va. App. 241, 248 (1985) (noting that “[w]henever the
evidence leaves indifferent which of several hypotheses is true, or merely establishes only some
finite probability in favor of one hypothesis, such evidence does not amount to proof of guilt beyond
a reasonable doubt”).
Moreover, in Pruitt and Johnson, the defendant testified, and the factfinder made credibility
determinations to buttress its conclusions. Here, Simmons did not testify, and the officer candidly
acknowledged Simmons exited the vehicle shortly after he surveilled him, and the officer had no
idea when the firearms were placed under the mat. Thus, we conclude that the Commonwealth
failed to introduce sufficient evidence to sustain Simmons’ conviction because there was “simply
. . . no evidence demonstrating that [Simmons] remained in the vehicle for any appreciable length of
time beyond that necessary to place his pistol” under the mat. Pruitt, 274 Va. at 388. And once
Simmons walked away from his vehicle and into the residence, his firearms were “no longer
accessible to him so as to afford ‘prompt and immediate use.’” Id. at 389.
- 11 - CONCLUSION
For these reasons, Simmons’ conviction for violating Code § 18.2-308 is reversed and the
charge is dismissed.
Reversed and final judgment.
- 12 -