Leon Anthony Wilson v. Commonwealth of Virginia

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Baker and Bray Argued at Norfolk, Virginia

LEON ANTHONY WILSON MEMORANDUM OPINION * BY v. Record No. 0962-97-1 JUDGE JOSEPH E. BAKER APRIL 7, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Marc Jacobson, Judge Robert L. Bohannon (Bohannon, Bohannon & Hancock, P.C., on brief), for appellant.

John K. Byrum, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Leon Anthony Wilson (appellant) appeals his bench trial

conviction by the Norfolk Circuit Court (trial court) for

possession of a firearm by a convicted felon. 1 The sole issue

presented by this appeal is whether the trial court erroneously

convicted appellant of possession of a firearm by a convicted 2 felon while simultaneously acquitting him of murder and use of a firearm in the commission of murder 3 based on a finding of

self-defense. On the facts contained in this record, we affirm

the judgment of the trial court.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Code § 18.2-308.2. 2 Code § 18.2-32. 3 Code § 18.2-53.1. Upon familiar principles, we state the facts in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. See Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

Stated in that light, the record discloses that on May 10, 1995,

appellant shot and killed Wilfredo Velez. On that date, Velez

confronted appellant concerning a drug sale and demanded that

appellant return his money. Appellant told Velez he would "check

it out" and left the scene. About ten minutes later, Velez

confronted another person, apparently believing him to be

appellant, and began waving a hatchet. When appellant heard what

was taking place, he "stepped inside [a] house," "picked up a

[gun]," put it in his pocket and walked out into the street to

face Velez. He returned Velez' money, but Velez came at him

swinging the hatchet. Appellant backed up and pulled out his

gun. When Velez came at him again, appellant fired into the

ground, but Velez kept swinging and backed appellant into a

fence. Appellant warned Velez repeatedly that he "[didn't] want

[any] trouble," but Velez would not leave him alone, and

appellant shot him because he thought "Velez was going to kill

[him]." Velez died from the gunshot wounds. The trial court found the evidence insufficient to prove

beyond a reasonable doubt that appellant had committed murder and

acquitted him of the charges of murder and the related use of a

firearm. However, the trial court found the evidence sufficient

- 2 - to support appellant's guilt for possession of a firearm after

having previously been convicted of a felony. We agree.

It is clear that when Velez first was seen "waving a

hatchet," he was not waving it at appellant. Appellant was not

even present at that time. Appellant only "heard" that Velez

intended to attack him with the hatchet. Upon hearing that

intention, appellant stepped inside a house, picked up a gun,

concealed it, returned to the street, and initiated a further

confrontation with Velez. Here, the evidence supported a finding that appellant, a

convicted felon, possessed the firearm before becoming embroiled

in the altercation which led to the shooting. Upon entering the

house and taking possession of the gun, appellant was in

violation of Code § 18.2-308.2, regardless of what he did with

the gun thereafter. Therefore, the evidence supports a finding

that the charges of murder and the related use of a firearm were

separate in time from the charge of possession of a firearm by a

convicted felon. Cf. Treu v. Commonwealth, 12 Va. App. 996, 406

S.E.2d 676 (1991).

We hold that appellant's acquittal on the independent

charges did not prevent his conviction for the charge from which

this appeal emanates. Accordingly, the judgment of the trial

court is affirmed.

Affirmed.

- 3 -