Joseph Britt, III v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 15, 1997
• Docket: 0679961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Bray Argued at Norfolk, Virginia

JOSEPH BRITT, III MEMORANDUM OPINION * BY v. Record No. 0679-96-1 JUDGE RICHARD S. BRAY APRIL 15, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Kenneth N. Whitehurst, Jr., Judge Melinda R. Glaubke (Office of the Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Joseph Britt, III, (defendant) was convicted by a jury of

five misdemeanor counts of brandishing a firearm and one felony

count of possession of a firearm by a convicted felon, all

arising from the same incident. On appeal, he complains that the

court erroneously denied his motions to sever the misdemeanor and

felony trials and for a mistrial arising from improper closing

argument by the prosecutor. Defendant also challenges the

sufficiency of the evidence to support the felony and two

brandishing convictions. For the reasons that follow, we affirm

the felonious possession conviction, but reverse and remand the

brandishing convictions.

The parties are fully conversant with the record, and this

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. memorandum opinion recites only those facts necessary to a

disposition of the appeal.

MOTION FOR SEVERANCE

Relying upon Johnson v. Commonwealth, 20 Va. App. 49, 455

S.E.2d 261 (1995), defendant first argues that the trial court

abused its discretion in denying his motion for severance, and

the Commonwealth quite correctly concedes on brief that Johnson

requires reversal of defendant's convictions for brandishing a

firearm. However, Johnson does not mandate a reversal of the conviction for felonious possession of the firearm. See id. at

56-57, 455 S.E.2d at 265.

SUFFICIENCY OF EVIDENCE 1

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 Traverso v. Commonwealth, 6 Va. App. 172, 176,

366 S.E.2d 719, 721 (1988). The jury's verdict will not be

disturbed unless plainly wrong or without evidence to support it. See id. The credibility of a witness, the weight accorded the

testimony, and the inferences to be drawn from proven facts are

matters solely for the fact finder's determination. See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). 1 Because a remand of the brandishing offenses would be improper if the evidence did not support the challenged convictions, we must address the sufficiency issue relative to both the misdemeanors and felony. Gorham v. Commonwealth, 15 Va. App. 673, 677-78, 426 S.E.2d 493, 495-96 (1993).

- 2 - Code § 18.2-308.2 makes it unlawful for "any person who has

been convicted of a felony . . . to knowingly and intentionally

possess or transport any firearm." The jury was instructed

accordingly and, further, that a "firearm" is a "device that has

the actual capacity to do serious harm because of its ability to

expel a projectile by the power of an explosion." See Jones v.

Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 617, aff'd,

17 Va. App. 233, 436 S.E.2d 192 (1993) (en banc). Circumstantial evidence is sufficient to support a

conviction, provided it excludes every reasonable hypothesis of

innocence. See Cantrell v. Commonwealth, 7 Va. App. 269, 289,

373 S.E.2d 328, 338 (1988). However, "[t]he Commonwealth need

only exclude reasonable hypotheses of innocence that flow from

the evidence, not those that spring from the imagination of the

defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993). Whether an alternative hypothesis of

innocence is reasonable is a factual determination, see Cantrell,

7 Va. App. at 290, 373 S.E.2d at 339, and therefore is binding on

appeal unless plainly wrong. See Traverso, 6 Va. App. at 176,

366 S.E.2d at 721.

Here, the record discloses that defendant's sister, Dorian,

excitedly called upon defendant to "give her the gun," prompting

him to rush toward the Mitchell residence, armed with a .44 or

.45 caliber pistol. A "clicking sound" was heard as defendant

loaded a "clip" of ammunition into the weapon, and he yelled

- 3 - "I'll F[___] all you M[_____] F[___]ers up." Defendant entered

the home, waving the gun about and pointing it at people inside,

and demanded, "Who in the f[___] hit my sister?" Four persons

present during the offenses identified the weapon as a "gray

gun," with a long barrel. From this evidence, the jury properly

concluded that the defendant possessed an actual firearm and

brandished it at those present in the residence.

MISTRIAL "When a motion for mistrial is made, based upon an allegedly

prejudicial event, the trial court must make an initial factual

determination, in the light of all the circumstances of the case,

whether the defendant's rights are so 'indelibly prejudiced' as

to necessitate a new trial." Spencer v. Commonwealth, 240 Va.

78, 95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908 (1990).

"A trial court's ruling will be permitted to stand unless it is

made to appear probable that the party complaining has been

substantially prejudiced by the objectionable remarks or

arguments." Martinez v. Commonwealth, 10 Va. App. 664, 669, 395

S.E.2d 467, 470 (1990), aff'd as modified, 241 Va. 557, 403

S.E.2d 358 (1991). Whether to grant a mistrial rests within the

sound discretion of the trial judge, and "absent a showing of

abuse of discretion, the court's ruling will not be disturbed on

appeal." Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599,

607 (1990).

The prosecutor may properly "'refer to the evidence and fair

- 4 - inferences from it'" during closing argument to a jury.

Martinez, 10 Va. App. at 672, 395 S.E.2d at 472 (quoting Timmons

v. Commonwealth, 204 Va. 205, 216-17, 129 S.E.2d 697, 705

(1963)). "Whether the words used were prejudicial must be judged

by a review of the totality of the evidence." Fain v.

Commonwealth, 7 Va. App. 626, 629, 376 S.E.2d 539, 541 (1989).

Here, the prosecutor argued to the jury, "Ladies and

[G]entlemen, you have a violent criminal -- a felon before you.

You can see from the conviction order that he's been violent

before. He has the propensity to do so." We acknowledge that

these remarks improperly urged the jury to conclude that

defendant's prior convictions made it more likely that he

possessed a firearm in this instance. However, the court had

instructed the jury earlier "that the fact the defendant was

previously convicted of a felony is not evidence that he

knowingly and intentionally possessed or transported a firearm on

June 13, 1995." Under such circumstances, we do not find that

defendant was so "indelibly prejudiced" that it necessitated a

mistrial. Accordingly, we reverse and remand the convictions for

brandishing a firearm but affirm the conviction for possession of

a firearm by a convicted felon.

Affirmed in part, reversed in part, and remanded.

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