Johnny Lamar Gates v. Commonwealth of Virginia

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Senior Judge Cole Argued at Richmond, Virginia

JOHNNY LAMAR GATES MEMORANDUM OPINION * BY v. Record No. 0502-98-4 JUDGE MARVIN F. COLE JULY 13, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Herman A. Whisenant, Jr., Judge

T. Kevin Wilson (Weimer & Boyce, on brief), for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Johnny Lamar Gates, appellant, appeals his conviction for the

possession of a firearm by a convicted felon in violation of Code

§ 18.2-308.2. On appeal, he argues that the evidence was

insufficient to prove that the item he possessed was capable of

expelling a projectile or that a projectile would be expelled by

the power of an explosion. Because the Commonwealth failed to

prove that appellant possessed a device having the "ability to

expel a projectile by the power of an explosion," we reverse the

conviction and dismiss the charge. Jones v. Commonwealth, 16 Va.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. App. 354, 357-58, 429 S.E.2d 615, 617, aff'd on reh'g en banc,

17 Va. App. 233, 436 S.E.2d 192 (1993).

FACTS

Paul DeBruel testified that on March 13, 1997, appellant

and Lori Williams, who had a romantic relationship with

appellant, argued in the apartment appellant shared with

Williams. Williams asked appellant to leave the apartment.

Appellant left the apartment when DeBruel telephoned the police.

Later, appellant returned to the residence and forced his way

into the apartment as DeBruel and Williams tried to hold the

door shut. DeBruel testified that appellant "pushed his way"

into the apartment and that he held "a weapon or something . . .

[s]omething that looked black or something." DeBruel then

stated that appellant waved a gun that "looked kind of black, I

think, all over, but one part was like, I guess, wooden or

something." DeBruel testified that he "thought" the gun was a

revolver, and he agreed that the gun had a barrel. DeBruel also

testified that he "was looking right at [the gun]" and that it

appeared to be a "real gun." The record indicates that DeBruel

stood "within a few inches" of appellant when he observed the

gun.

DeBruel also testified that appellant discussed DeBruel's

testimony with him prior to the trial. DeBruel stated that he

"guess[ed] that appellant did not want to go to jail, and he

"guess[ed]" that appellant wanted DeBruel to "lie for him."

- 2 - On cross-examination DeBruel testified that the gun was

"like gray and black." He also stated that he has never handled

or fired a gun and that he has had no experience with guns.

Williams testified on behalf of the defense. She testified

that, at the time of the trial, she continued to have a romantic

relationship with appellant, that they lived together, and that

they rode to court together on the date of the trial.

Williams testified that she did not think appellant had a

gun on March 13, 1997. Appellant's counsel later asked, "Did

you see anything that resembled a gun?" Williams replied,

"Something, yeah--well, actually I can't really say. . . . I

saw something in his hand." Williams denied that appellant

waved anything in the air while he was in the apartment.

On cross-examination, Williams stated that when appellant

entered the apartment, he held something that "looked like a

gun." Williams agreed that she "may have" told the police that

appellant held a large caliber revolver. She later denied that

she had previously told the police that appellant possessed a

gun during the incident.

Appellant denied that he possessed a gun during the

incident. He testified that he had in his hand a large key

chain which he displayed at trial. It was described as "a key

chain with a band approximately 18 inches in length, black with

Rugged Sports in white lettering on it, with . . . six key

- 3 - chains, . . . eight keys, a small wooden bat approximately four

inches in length." The police did not recover a gun.

Officer John Mora testified that on March 13, 1997, he

responded to Williams' residence regarding a domestic dispute.

Mora stated that Williams told him that appellant pushed the

door open and he entered the apartment waving a "large caliber

revolver."

ANALYSIS

Appellant argues that DeBruel's testimony was "fraught with

unexplained inconsistencies" and that, even if his testimony was

believed, it failed to establish that the item possessed by

appellant was capable of expelling a projectile, or that the

projectile would be expelled by the power of an explosion.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted). Code § 18.2-308.2 provides that "[i]t shall

be unlawful for any person who has been convicted of a felony

. . . to knowingly and intentionally possess or transport any

firearm." Although Code § 18.2-308.2 does not define "firearm,"

we have held that, in a prosecution under Code § 18.2-308.2, the

Commonwealth is required to prove that the purported firearm had

the actual ability to "expel a projectile by the power of an

explosion." Jones, 16 Va. App. at 357-58, 429 S.E.2d at 617.

- 4 - Here, the Commonwealth presented no evidence that the

alleged firearm had the ability to "expel a projectile by the

power of an explosion." Id. The police did not recover a

weapon. Thus, no weapon was examined by the authorities or

admitted into evidence. Furthermore, DeBreul's testimony did

not prove that the item he allegedly saw in appellant's

possession had the ability to expel a projectile by the power of

explosion. Moreover, DeBruel testified that he had never

handled a gun, fired a gun, or been close to a gun. He stated

that he had no "experience in guns." In addition, Williams

testified that she did not think appellant possessed a gun

during the incident. Therefore, because the Commonwealth failed

to prove that appellant possessed a device having the ability

"to expel a projectile by the power of an explosion," the

evidence does not support appellant's conviction for possession

of a firearm after having been convicted of a felony.

Reversed and dismissed.

- 5 -