                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


CARNEAL CREWE, S/K/A
 CARNEAL COSELLE CREWE
                                        MEMORANDUM OPINION * BY
v.   Record No. 2709-95-2             JUDGE JAMES W. BENTON, JR.
                                           OCTOBER 29, 1996
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
                  Samuel Taylor Powell, III, Judge
           Michael C. Tillotson for appellant.

           Kimberley A. Whittle, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.


      Sitting without a jury, the circuit court judge convicted

Carneal Crewe of brandishing a firearm in violation of Code

§ 18.2-282.   Crewe contends that the evidence was insufficient to

convict him of the offense.   We agree and reverse the conviction.

      The essential facts are undisputed.   The evidence proved

that Amanda Barneycastle and Crewe were dating.   On the afternoon

of August 8, 1995, while Barneycastle was visiting Crewe at his

residence, they began to argue.   During the argument, Crewe

removed Barneycastle's keys from her car and temporarily disabled

the telephone to the residence.   Barneycastle, who lived a five

minutes' walking distance away, did not leave the residence.

      During the argument, Barneycastle and Crewe hit each other.

 Barneycastle could not recall who began the physical
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
altercation, but she did testify that Crewe disengaged from the

fighting and left her in his bedroom.    Barneycastle testified

that she tried to call her parents on the telephone but could

not.

        Crewe testified that after he disengaged from the argument,

Barneycastle remained in his room talking to his cousin.    Crewe

went into his brother's bedroom and closed the door to allow

Barneycastle and himself to calm their emotions.    He testified

that he believed that he closed the door when he entered the

room.    After he entered the room, he "fondl[ed] around with

stuff" for three or four minutes and picked up one of several

guns placed beside his brother's bed.    Crewe testified that he

had no specific intent to get a weapon and testified that he had

a rifle and other weapons in his own room.
        Later, Barneycastle walked by Crewe's brother's bedroom.

She looked into the room through the door that was slightly ajar

and saw Crewe holding a gun.    She opened the door, rushed toward

him to take the gun away, and struggled with him for the gun.

During her attempt to wrestle the gun away, the barrel was pushed

to her stomach.    When Crewe retained control of the gun, he

placed it in the corner of the room and left the room with

Barneycastle.

        Code § 18.2-282(A) provides, in pertinent part, as follows:
             It shall be unlawful for any person to point,
             hold or brandish any firearm, as hereinafter
             described, or any object similar in
             appearance to a firearm, whether capable of
             being fired or not, in such manner as to



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          reasonably induce fear in the mind of another
          or hold a firearm in a public place in such a
          manner as to reasonably induce fear in the
          mind of another of being shot or injured.
          However, this section shall not apply to any
          person engaged in excusable or justifiable
          self-defense.


     In Kelsoe v. Commonwealth, 226 Va. 197, 198, 308 S.E.2d 104,

104 (1983), the Supreme Court stated that "[t]here are two

elements of the offense:   (1) pointing [, holding,] or

brandishing a firearm, and (2) doing so in such a manner as to

reasonably induce fear in the mind of a victim."    In this case,

the Commonwealth proved that Crewe was holding a firearm.

However, the evidence is insufficient to support a finding that

Crewe did so "in such a manner as to reasonably induce fear" in

Barneycastle.   Code § 18.2-282(A).
     Both Barneycastle and Crewe testified that Crewe disengaged

from the fighting and left Barneycastle in his room.    When Crewe

went to his brother's room, Barneycastle went to the telephone to

call her parents to come for her.     Although Barneycastle remained

in the residence, she did not testify that she was restrained in

any manner.   Indeed, she testified that the fighting had ceased.

     Barneycastle testified that when she walked by the brother's

bedroom she could see into the bedroom.    However, her testimony

proved that the door was almost shut.    Only by conjecture could

the trier of fact conclude that Crewe was aware that he could

have been seen as he held the gun.     The evidence proved that

Crewe was in the bedroom with the door virtually shut and was not



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pointing or brandishing the gun toward any person.   Barneycastle

testified that when she peered into the room, Crewe "was pointing

[the gun] straight up."

       Barneycastle's own testimony proved that the gun was only

pointed toward her during the struggle that she initiated to gain

control of the gun.   Crewe made no threats when she grabbed the

gun.   Furthermore, no evidence proved that Crewe intentionally

pointed the gun at her.   Barneycastle said her "first reaction

was to grab the gun" because she did not know why Crewe had it.
       The elements of the statute are not proved beyond a

reasonable doubt when the evidence merely proved that a person

holding a firearm was inadvertently seen by another.   Thus, the

evidence did not prove beyond a reasonable doubt that Crewe held

the gun "in such a manner as to reasonably induce fear in the

mind of another."   Code § 18.2-282(A).

       For these reasons, we reverse the conviction and dismiss the

charge.

                                               Reversed.




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