Raymond Franklin Moore, Jr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: December 31, 1996
• Docket: 2755953
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Elder and Bray Argued at Salem, Virginia

RAYMOND FRANKLIN MOORE, JR. MEMORANDUM OPINION * BY v. Record No. 2755-95-3 JUDGE LARRY G. ELDER DECEMBER 31, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Diane McQ. Strickland, Judge John P. Varney (Office of the Public Defender, on brief), for appellant.

Ruth Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General; Daniel J. Munroe, Assistant Attorney General, on brief), for appellee.

Raymond Moore (appellant) appeals his conviction of

possession of a firearm by a convicted felon under Code

§ 18.2-308.2. He contends that the evidence was insufficient

to prove that the object possessed by him was a firearm. For

the reasons that follow, we affirm.

I.

FACTS

On April 11, 1995, Detective Altizer of the Roanoke City

Police Department found what appeared to be a rifle during a

consent search of appellant's room. Appellant, who had a prior

felony conviction, was charged with possession of a firearm by a

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. convicted felon. At his trial, appellant moved to strike the

Commonwealth's evidence on the ground that it had failed to prove

that the object possessed by appellant was in fact a "firearm."

Appellant argued that the Commonwealth did not prove that the

purported rifle confiscated by Detective Altizer had the actual

ability to expel a projectile by the power of an explosion. The

trial court denied appellant's motion and found him guilty of

possession of a firearm by a convicted felon. II.

SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence was insufficient to

support his conviction because the Commonwealth failed to prove

that he actually possessed a "firearm." We disagree.

Code § 18.2-308.2 provides that "[i]t shall be unlawful for

(i) any person who has been convicted of a felony . . . to

knowingly and intentionally possess . . . any firearm . . . ."

As with any essential element of a criminal offense, the

Commonwealth has the burden of proving beyond a reasonable doubt

that the object possessed by a person charged under Code

§ 18.2-308.2 was actually a "firearm." See Dowdy v.

Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979).

"Code § 18.2-308.2 prohibits a felon from possessing 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, and

it is not concerned with the use or display of a device that may

-2- have the appearance of a firearm." Jones v. Commonwealth, 16 Va.

App. 354, 357-58, 429 S.E.2d 615, 617 (1992), aff'd en banc, 17

Va. App. 233, 436 S.E.2d 192 (1993) (holding that a firearm under

Code § 18.2-308.2 is a device "that propel[s] a projectile by an

explosion or discharge of gun powder"). Thus, 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. The Commonwealth may prove that a firearm is operable in

several ways. See Jeffrey F. Ghent, J.D., Annotation, Fact that

Gun was Broken, Dismantled, or Inoperable as Affecting Criminal

Responsibility under Weapons Statute, 81 A.L.R.4th 745, 760-63

(1990). While the best method of proving the ability of a

firearm to discharge shot by gunpowder is to introduce the

testimony of a ballistics expert who test-fired the weapon, id.,

the Commonwealth is not required to offer direct evidence that

the firearm is operable. See Booker v. Engle, 517 F.Supp. 558,

561 (S.D.Ohio 1981); State v. Cartwright, 246 Or. 120, 137-38, 418 P.2d 822, 830 (1966), cert. denied, 386 U.S. 937, 87 S. Ct.

961, 17 L.Ed.2d 810 (1967) (citing Couch v. Commonwealth, 255

S.W.2d 478, 479 (Ky. 1953)). Instead, the operability of a

firearm may be proved by circumstantial evidence. "A reasonable

fact finder may . . . infer operability from an object which

looks like, feels like, sounds like or is like, a firearm. Such

an inference would be reasonable without direct proof of

-3- operability." Commonwealth v. Layton, 452 Pa. 495, 498, 307 A.2d

843, 844 (1973); cf. Richardson v. Commonwealth, 21 Va. App. 93,

100, 462 S.E.2d 120, 124 (1995) (stating that, in a prosecution

under Code § 18.2-308.2:2, the fact that the weapon had the

firing capability required to distinguish it from antique weapons

could be inferred from the evidence).

We hold that the evidence was sufficient to prove that the

rifle confiscated by Detective Altizer had the actual ability to

expel a projectile by the power of an explosion. "When a

defendant challenges the sufficiency of the evidence, we are

required to review the evidence 'in the light most favorable to

the Commonwealth and give it all reasonable inferences fairly

deducible therefrom.'" Collins v. Commonwealth, 13 Va. App. 177,

179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).

"The conviction will not be reversed unless it is plainly wrong

or without evidence to support it." Id. Detective Altizer

testified that he examined the rifle, tested the trigger

mechanism, and that the rifle was a Thompson's Center Arms .50

caliber black powder rifle. A photograph of the rifle was

introduced. Detective Altizer testified in detail how the rifle

functioned to discharge a bullet by an explosion of gunpowder.

Based on this evidence that the rifle "looks like, feels like,

. . . [and] is like" a firearm, a reasonable fact finder could

infer that the rifle was operable and therefore a firearm under

-4- Code § 18.2-308.2. See Jolly v. State, 183 Ga. App. 370, 372,

358 S.E.2d 912, 913-14 (1987) (holding that unrefuted testimony

of police officer that objects were pistols was sufficient to

prove that they were capable of firing projectiles); State v.

Millett, 392 A.2d 521, 527 (Me. 1978) (holding that testimony of

witnesses who observed handgun projecting from defendant's belt

was sufficient to prove operability).

Appellant argues that the circumstantial evidence of the

rifle's operability was insufficient because Detective Altizer

testified that non-functioning replicas of the Thompson's rifle

exist and that he did not know the difference between a replica

and a real Thompson's rifle. We disagree. In a case based upon

circumstantial evidence, the Commonwealth must exclude every

reasonable hypothesis of innocence. See Cantrell v.

Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988).

We hold that the record contains evidence other than Detective

Altizer's description of the rifle that sufficiently disposes of

the hypothesis that the rifle was a non-functioning replica.

First, appellant twice made statements to Detective Altizer in

which he referred to the rifle as either a "gun" or a "firearm."

During neither of these conversations did appellant refer to the

rifle as a non-functioning replica. In addition, appellant made

inconsistent statements about how the rifle became placed in his

room. On the day the rifle was confiscated, appellant told

Detective Altizer that he "was keeping the gun for his father."

-5- Then, two days later when Detective Altizer arrested appellant,

appellant told the detective that the firearm did not belong to

his father and that he did not know how the firearm was

transported to his room. These inconsistent statements permitted

the trial court to infer that appellant was concealing his guilt.

See Hughes v. Commonwealth, 18 Va. App. 510, 520-21, 446 S.E.2d

451, 458 (1994).99

For the foregoing reasons, we affirm the conviction. Affirmed.

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