Jordan v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: September 12, 2013
• Docket: 121835
• Status: Published

Opinion

PRESENT: All the Justices

DAMON PHINEAS JORDAN OPINION BY v. Record No. 121835 JUSTICE DONALD W. LEMONS September 12, 2013 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals of

Virginia ("Court of Appeals") erred in holding that the evidence

was sufficient to support the conviction of Damon Phineas Jordan

("Jordan") for possession of a firearm by a convicted felon in

violation of Code § 18.2-308.2.

I. Facts and Proceedings

Jordan was tried by a jury in the Circuit Court of the City

of Virginia Beach ("trial court") upon indictments charging

carjacking, use of a firearm in the commission of a felony,

eluding police, and possession of a firearm by a convicted

felon. At trial, Matthew Arrowood ("Arrowood") testified that

he drove his father to a neighborhood convenience store in

Virginia Beach at approximately 11:00 p.m. on June 28, 2009, and

parked in front of the store. Arrowood was thirteen years old

on the night in question. While Arrowood's father was inside,

Jordan approached the driver's side window and began asking

Arrowood questions about how old he was, how long he had been

driving, and where he lived. Arrowood testified that when he did not respond, Jordan pointed "a gun" at his head and told him

to get out of the truck.

Arrowood testified that the object Jordan pointed at him

was a small silver pistol. Arrowood stated that he was familiar

with handguns because his father was in the military, and that

this appeared to be a silver semiautomatic pistol. Arrowood

identified it as a "Raven," a particular type of small pistol

with which he was familiar. Arrowood admitted on cross-

examination that he could not say for certain that the object

was not a toy gun. On re-direct he was asked, "Did it look like

a toy gun to you?" and he responded, "[a] really detailed [one]

if it was."

Arrowood testified that after Jordan pointed the gun at his

head, he got out of the truck and ran behind the convenience

store. Jordan got in the truck and drove away. Arrowood then

ran inside the store, and he and his father contacted police.

Jordan was apprehended by police shortly thereafter, but no

weapon was recovered.

Jordan was convicted of carjacking, use of a firearm in the

commission of a felony, eluding police, and possession of a

firearm by a convicted felon. The only conviction at issue in

this appeal is possession of a firearm by a convicted felon.

Jordan concedes that he is a convicted felon.

2 The Court of Appeals granted Jordan's petition for appeal,

and in a published opinion, with one judge dissenting, held that

the evidence was sufficient to support the conviction. Jordan

v. Commonwealth, 60 Va. App. 675, 731 S.E.2d 622 (2012). The

Court of Appeals held that Arrowood's testimony describing the

weapon, coupled with Jordan's actions in pointing it at

Arrowood's head while demanding that he get out of the truck,

was sufficient to prove that the object Jordan was holding was a

firearm. Id. at 680-81, 731 S.E.2d at 624.

Jordan filed a petition for appeal with this Court, and we

awarded him an appeal on the following assignment of error:

The trial court and the Court of Appeals erred in holding that the evidence was sufficient to support appellant's conviction for possession of the firearm by a convicted felon because there was no evidence showing that appellant possessed an actual firearm and not an instrument of similar appearance.

II. Analysis

A. Standard of Review

We apply a de novo standard of review when addressing a

question of statutory construction. Harris v. Commonwealth, 274

Va. 409, 413, 650 S.E.2d 89, 91 (2007). When considering the

sufficiency of the evidence to sustain a conviction, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party at trial, granting it all reasonable

inferences fairly deducible therefrom. Dowden v. Commonwealth,

3 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000). The Court will

only reverse the judgment of the trial court if the judgment is

plainly wrong or without evidence to support it. Startin v.

Commonwealth, 281 Va. 374, 379, 706 S.E.2d 873, 876 (2011). If

the evidence is sufficient to support the conviction, the

reviewing court is not permitted to substitute its own judgment

for that of the trier of fact, even if its opinion might differ

from the conclusions reached by the trier of fact. Id. at 379,

706 S.E.2d at 876-77.

B. Possession of a Firearm

Code § 18.2-308.2 prohibits the possession of firearms by

convicted felons. Subsection (A) states that

[i]t shall be unlawful for (i) any person who has been convicted of a felony ... to knowingly and intentionally possess or transport any firearm or ammunition for a firearm, any stun weapon as defined by § 18.2-308.1, or any explosive material, or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2- 308.

Code § 18.2-308.2 provides no express definition of the

term "firearm." However, in Armstrong v. Commonwealth, 263 Va.

573, 562 S.E.2d 139 (2002), we held 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." Id. at 583, 562 S.E.2d at 145. We explicitly

4 rejected within that definition any element of present capacity

or operability. Id. at 583-84, 562 S.E.2d at 145.

In Startin, we further clarified that definition by

explaining that a replica gun and a BB gun would not be

sufficient to convict a person under Code § 18.2-308.2 for

possession of a firearm by a convicted felon because those items

were not "designed, made, and intended to fire or expel a

projectile by means of an explosion." 281 Va. at 382, 706

S.E.2d at 878 (internal quotation marks and citation omitted).

In Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436

(1999), the defendant entered a convenience store and placed

what appeared to be a "long, black gun" on the counter, and

ordered the clerk to give her all the money from the register.

Id. at 258, 511 S.E.2d at 437. Redd stated that she would kill

the clerk if an alarm were activated. Id. In Redd, the Court

of Appeals held that the defendant's threat to kill the clerk

was an implied assertion that the object she held was a firearm.

When coupled with the clerk's description of the object, the

evidence was sufficient to sustain the defendant's conviction

for possession of a firearm by a convicted felon. Id. at 259,

511 S.E.2d at 438.

We confirm that the holding in Redd is still the law of

this Commonwealth. In Redd, the defendant's threat to kill the

clerk was an implied assertion that the object was a firearm.

5 In the case before us, Jordan did not verbally threaten to kill

Arrowood, however, the acts of pointing the gun at Arrowood

while directing him to get out of the car, most assuredly

communicated the message that if Arrowood did not comply, Jordan

would shoot him.

Arrowood specifically identified the object as a "Raven."

A Raven is a well-known, compact, .25 caliber semi-automatic

pistol that is commonly referred to as a "Saturday Night

Special," and can easily be concealed. See United States v.

Sanders, 994 F.2d 200, 202 (5th Cir. 1993); Burks v. State, 876

S.W.2d 877, 884 (Tex. Crim. App. 1994). The reference to a

"Raven" indicates a specific weapon that was designed, made, and

intended to fire or expel a projectile by means of an explosion.

A Raven pistol clearly meets the definition of a firearm as set

out in Armstrong.

Arrowood's ability to identify a Raven pistol was subject

to cross-examination. The determination of how much weight to

give to his identification of the object as a Raven pistol was a

matter for the trier of fact.

We are mindful of the precise question we are required to

address when considering an appeal alleging insufficiency of the

evidence.

When analyzing a challenge to the sufficiency of the evidence, this Court reviews the evidence in the light most favorable to the prevailing party at trial and considers

6 any reasonable inferences from the facts proved. The judgment of the trial court will only be reversed upon a showing that it “is plainly wrong or without evidence to support it.”

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330

(2006) (quoting Code § 8.01-680) (citation omitted).

In this case the jury found Arrowood’s testimony to be

competent and believable. The trier of fact was entitled to

consider the totality of the evidence including Arrowood’s

direct testimony identifying the weapon and Jordan’s conduct

which included pointing that weapon to Arrowood’s head and

demanding that Arrowood get out of the truck. It was within the

province of the jury to conclude that Jordan’s conduct was an

implied assertion that the object he held was a firearm. We may

not substitute our judgment for that of the jury unless no

reasonable juror could have come to this conclusion.

III. Conclusion

Accordingly, we will affirm the Court of Appeals' judgment

holding that the evidence was sufficient to support Jordan's

conviction for possession of a firearm by a convicted felon.

Affirmed.

JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MILLETTE join, concurring in part and dissenting in part.

The majority confirms that Startin v. Commonwealth, 281 Va.

374, 706 S.E.2d 873 (2011), Armstrong v. Commonwealth, 263 Va.

7 573, 562 S.E.2d 139 (2002), and Redd v. Commonwealth, 29 Va.

App. 256, 511 S.E.2d 436 (1999), are the law of the Commonwealth

but concludes that the evidence in this case is nevertheless

sufficient to convict Jordan of possession of a firearm by a

convicted felon. Although I agree concerning the applicable

authority, I respectfully disagree that the evidence here was

legally sufficient to convict Jordan. Therefore, for the

following reasons, I would reverse his conviction for possession

of a firearm in violation of Code § 18.2-308.2.

“Undoubtedly, in criminal cases, the burden of

establishing guilt rests on the prosecution from the beginning

to the end of the trial.” Agnew v. United States, 165 U.S. 36,

49-50 (1897). “[W]e will not sustain a trial court’s judgment

that is plainly wrong or without evidence to support it.”

Brickhouse v. Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160,

162 (2008). “‘Suspicion of guilt, however strong, or even a

probability of guilt, is insufficient to support a conviction.’”

Rogers v. Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627

(1991) (quoting Cheng v. Commonwealth, 240 Va. 26, 42, 393

S.E.2d 599, 608 (1990)). Thus, the Commonwealth had the burden

to prove beyond a reasonable doubt that the object Jordan

pointed at Arrowood was an instrument that was designed, made,

and intended to expel a projectile by means of explosion and not

merely an object that had the appearance of one. See Startin,

8 281 Va. at 377, 706 S.E.2d at 876; Armstrong, 263 Va. at 583,

562 S.E.2d at 144.

Despite the certitude of Arrowood’s identification of the

object as a Raven pistol, I believe that the Commonwealth failed

to prove that the object Jordan used was a firearm within the

meaning of Code § 18.2-308.2, as established by precedent. At

Jordan’s trial, Arrowood testified that the incident lasted

between thirty seconds to one minute, Jordan was six inches to a

foot away, and Arrowood had five seconds to look at the gun

through the mirror as Jordan approached.

During questioning by the Commonwealth, Arrowood testified

[Jordan] pointed a gun at me and told me to get out of the truck.

[Commonwealth:] Could you describe the gun that he pointed at you?

[Arrowood:] Like a small pistol. It was silver.

[Commonwealth:] You say a pistol. Your dad . . . is or was in the military?

[Arrowood:] Uh-huh.

[Commonwealth:] So you have some familiarity with handguns?

[Arrowood:] Yes, sir.

[Commonwealth:] And you've fired handguns before?

9 [Arrowood:] Yes, sir.

[Commonwealth:] All right. Were you able to recognize -- you said -- you described it as a pistol. What do you mean as a pistol?

[Arrowood:] Like a semiautomatic pistol.

[Commonwealth:] All right. What color was it?

[Arrowood:] Silver.

. . . .

[Commonwealth:] Could you tell what it was?

[Commonwealth:] And what was it?

[Arrowood:] It was a -- like a Raven pistol.

[Commonwealth:] Okay. That's a type of pistol?

[Arrowood:] It's a small pistol.

[Commonwealth:] And that you are familiar with?

(emphasis added). When asked on redirect examination whether

the instrument “look[ed] like a toy gun,” Arrowood responded,

“[a] really detailed toy gun if it was.”

There was no physical evidence presented regarding the

object or its use. It is undisputed that Arrowood never used or

examined the instrument that Jordan pointed at him. It is also

undisputed that there was no testimony from anyone who had used

10 or examined the object or who had observed it being used, made,

or assembled.

Thus, Arrowood’s testimony based solely on his brief

observation of the object is insufficient as a matter of law to

prove beyond a reasonable doubt that the instrument was

designed, made, and intended to expel a projectile by means of

an explosion. Indeed, I believe his testimony is no different

than simply describing the object as a gun, because it is merely

an opinion based on casual observation. Demonstrating that he

knew the well-known brand or model name of a small, silver

handgun in no way bolsters his testimony regarding whether what

he saw was a real gun or a replica.

It is almost impossible for an observer, no matter how

experienced, to look at an object and know that it is an

instrument designed, made, and intended to expel a projectile by

means of an explosion. Indeed, our ruling in Startin makes

clear that whether an instrument was designed, made, and

intended to fire or expel a projectile by means of an explosion * cannot be discerned by merely looking at the instrument.

Evidence demonstrating that the object was designed, made,

and intended to expel a projectile by means of an explosion is

* The “replica” of a pistol at issue in Startin, 281 Va. at 377, 706 S.E.2d at 876, was rendered inoperable by the lack of a firing pin, a modification that is undetectable without disassembly.

11 necessary for a conviction under Code § 18.2-308.2. However,

this is not to say that in order to secure a conviction under

Code § 18.2-308.2, the Commonwealth would have to prove its case

beyond all possible doubt or that one could never be convicted

of possession of a firearm as a convicted felon in the absence

of the firearm; in fact, this is the precise proposition for

which Redd stands. The credible testimony of an individual who

has examined, used or seen the instrument being used would be

sufficient for the fact finder to conclude that an instrument

that looks like a gun is indeed designed, made, and intended to

expel a projectile by explosion. This type of evidence could be

used to validate an eyewitness’s description of an object. See

Taylor v. Commonwealth, 33 Va. App. 735, 737, 536 S.E.2d 922,

922-23 (2000) (relying on circumstantial evidence to “prove

whether a particular firearm functions” in the context of

possession of a firearm while in possession of certain

contraband in violation of Code § 18.2-308.4). For example,

evidence is sufficient when based upon the verbal implied

assertion of the defendant, who we can infer had the opportunity

to examine and/or use the object, that the object was designed

to be a functioning firearm. See Redd, 29 Va. App. at 259, 511

S.E.2d at 438.

The majority upholds the trial court’s conviction based

solely on a witness’s belief that an instrument looked like an

12 admittedly well-known, specific model of firearm as a substitute

for evidence, required by precedent, regarding whether the

instrument met the requirements of Code § 18.2-308.2. In doing

so, the majority erases the distinction that the General

Assembly so carefully drew, and which this Court and the Court

of Appeals have previously observed, between the evidence

necessary to prove a violation of Code § 18.2-53.1 (use) as

opposed to a violation of Code § 18.2-308.2 (possession).

Here, we have only the uncorroborated description of an

unknown object made by a young boy after viewing the object for

mere seconds. Without more, such as physical evidence or

testimony of an individual who has examined or used the

instrument, such observation testimony is insufficient as a

matter of law to prove beyond a reasonable doubt that an

instrument was designed, made, and intended to expel a

projectile by means of an explosion. See Startin, 281 Va. at

377, 706 S.E.2d at 876.

I recognize that the difference between the statutes

governing use of a firearm during the commission of a felony,

Code § 18.2-53.1, and the possession of a firearm by a convicted

felon, Code § 18.2-308.2, is subtle, but the important

distinction between the two is that the appearance of the object

alone is appropriate and sufficient only for a conviction for

use of a firearm. The reliance on the presentation of the

13 object and mere “identification” by any observer as an implied

assertion that the object was made to expel a projectile is

tantamount to reliance solely on the object’s appearance which

as a matter of law amounts to nothing more than evidence

sufficient to prove a violation of Code § 18.2-53.1. Indeed,

Redd, which the majority adopts as the law, recognizes as much.

In Redd, the Court of Appeals specifically held that the

appearance of the gun along with its manner of presentation,

i.e., brandishing, was insufficient to support a conviction for

possession of a firearm by a convicted felon. 29 Va. App. at

259, 511 S.E.2d at 438. Taken to its logical conclusion, the

majority’s interpretation completely eradicates the distinction

between the two offenses.

Because the burden of proof in criminal cases has

constitutional status, any conviction that rests upon legally

insufficient evidence is a denial of due process. Jackson v.

Virginia, 443 U.S. 307, 309 (1979); Commonwealth v. Hudson, 265

Va. 505, 512, 578 S.E.2d 781, 785 (2003). I would reverse

Jordan’s conviction for possession of a firearm by a convicted

felon.