                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges McClanahan and Haley
Argued at Salem, Virginia


GREGORY LEON YOUNG
                                                         MEMORANDUM OPINION∗ BY
v.     Record No. 1579-04-3                          CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                              OCTOBER 11, 2005
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF HENRY COUNTY
                                 David V. Williams, Judge

                 Seth I. Howard, Assistant Appellate Defender (Virginia Indigent
                 Defense Commission, on briefs), for appellant.

                 Denise C. Anderson, Assistant Attorney General (Judith Williams
                 Jagdmann, Attorney General, on brief), for appellee.


       Gregory Leon Young (appellant) appeals from his conviction in a jury trial for entering a

bank armed with a deadly weapon with the intent to commit larceny, a violation of Code

§ 18.2-93.1 Appellant entered the bank armed with a Daisy BB gun. Appellant contends that the

trial court erred in: (1) rejecting his proposed jury instruction defining “deadly weapon” and

accepting the Commonwealth’s instruction on that issue; (2) rejecting his proposed instruction

that stated the Commonwealth has the burden of proving that the weapon was deadly; and

(3) finding the evidence was sufficient to support the jury’s finding that the Daisy BB gun was a

deadly weapon. Assuming, without deciding, that the trial court erred in accepting and submitting

to the jury the Commonwealth’s instruction defining “deadly weapon,” we hold that error to be


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         Appellant was also convicted of robbery, a violation of Code § 18.2-58, and using a
firearm in the commission of a robbery, a violation of Code § 18.2-53.1. He does not challenge
these convictions.
harmless. We further hold that appellant’s remaining arguments are without merit and affirm his

conviction.

                                           I. Background

       In accord with familiar principles of appellate review, we view the evidence and all

reasonable inferences flowing from the evidence in a light most favorable to the Commonwealth

as the party prevailing below. Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97,

99 (2003). So viewed, the evidence established that appellant entered the main lobby of the

Fidelity Bank in Collinsville, Virginia on January 28, 2004 at approximately 10:00 a.m.

Appellant and teller Judy Yartola (Yartola) were the only people in the bank’s main lobby. All

other bank employees were in the “break room.” Appellant approached Yartola and handed her

a note that stated: “I have a gun. Give me $3000 cash. You have ten seconds.” Yartola looked

up from the note and saw that appellant was pointing a gun at her. Yartola immediately went to

the bank vault, retrieved $4,000 in cash, and handed the money to appellant. Appellant took the

money, the note, and his gun and walked out of the bank. After appellant left the bank, Yartola

ran into the break room and screamed for help. A bank employee contacted the police.

       Sergeant Painter and Investigator Spence of the Henry County Sheriff’s Department

stopped appellant’s vehicle shortly after the robbery. Appellant was the sole occupant. A Daisy

BB gun, two CO2 cartridges and a container of BB’s, $4,000 in cash and handwritten notes

identical to the one handed to Yartola were also recovered from the vehicle. Appellant later

admitted he used the gun and took the money from Fidelity Bank.

       Investigator Sharpe examined the Daisy BB gun. He obtained an identical weapon from

Wal-Mart and testified that the packaging on the gun clearly stated: “Danger. Not a toy.

Warning . . . can cause serious injury or death . . . may be dangerous up to 235 yards . . . this is a

high-powered air gun.” He further testified that “you can get hurt or killed with what comes out

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of the barrel of this gun.” This evidence describing the ability of this gun to cause “serious

injury or death” was uncontroverted.

       The Commonwealth proposed Instruction 12 defining “deadly weapon.” The trial court

redacted a small portion of the instruction based on an objection by appellant and submitted the

following instruction to the jury: “[A] deadly weapon means any object wielded in the ordinary

manner contemplated by its nature and design and displayed as an offensive weapon, capable of

inflicting death or great bodily injury.” Appellant proposed Instruction D as an alternative: “A

deadly weapon is one which is likely to produce death or great bodily injury from the manner in

which it is used, and whether a weapon is to be regarded as deadly often depends more on the

manner in which it has been used than on its intrinsic character.” The trial court rejected

appellant’s proposed instruction.

       Appellant also requested Instruction F that stated “[u]nless a weapon is per se a deadly

one, the jury should determine whether it, and the manner of its use, places it in that category,

and the burden of showing these things is upon the Commonwealth.”2 The trial court rejected

this instruction as unnecessary and duplicative of other instructions as to the Commonwealth’s

burden of proof.

       The jury convicted appellant and sentenced him to 20 years in prison. This appeal

followed.




       2
          Appellant proffered two Instructions “F” but this is the one discussed and refused by the
trial court.

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                                              II. Instruction 12

        Appellant argues that the trial court erred in submitting Instruction 12 to the jury because

it is an inaccurate statement of law.3 Assuming, without deciding, that the trial court erred in

submitting Instruction 12 to the jury, we conclude that any error was harmless.4

        In the context of reviewing the improper instruction of juries, harmless error analysis is

appropriate. See Kil v. Commonwealth, 12 Va. App. 802, 812, 407 S.E.2d 674, 679-80 (1991).

“Non-constitutional error is harmless ‘when it plainly appears from the record and the evidence

given at the trial that the parties have had a fair trial on the merits and substantial justice has been

reached.’” Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc) (citation omitted). “Each case must . . . be analyzed individually to determine if an

error has affected the verdict.” Id. at 1009, 407 S.E.2d at 913. “‘[W]here a reviewing court can

find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in

fairness has been satisfied and the judgment should be affirmed.’” Kil, 12 Va. App. at 812, 407



        3
          The Commonwealth argues that Rule 5A:18 bars our consideration of this question
because appellant failed to lodge a contemporaneous objection to the trial court’s acceptance of
Instruction 12. The Commonwealth’s argument is without merit because the appellant submitted
a proposed instruction on the same issue vastly different from the Commonwealth’s, thus
informing the trial court that he believed the Commonwealth’s instruction was an inaccurate
statement of law. This is all Rule 5A:18 requires. See Pilot Life v. Karcher, 217 Va. 497, 498,
229 S.E.2d 884, 885 (1976) (“While a transcript or written statement is generally the vehicle for
showing that timely objection to instructions was made before the trial court to preserve the point
on appeal, such objection may also be shown and preserved where, in a refused instruction, the
objecting party propounds the contrary theory to one set forth in a granted instruction.”). The
Commonwealth’s argument that appellant acquiesced to Instruction 12 is equally unavailing. As
evidence that appellant acquiesced to Instruction 12, the Commonwealth points out that appellant
stated “No objection” after the trial court redacted a small portion of Instruction 12. It is clear
from the record, however, that appellant’s statement related to the trial court’s redaction, not to
its decision to grant Instruction 12. Indeed, the trial court later rejected appellant’s alternative
instruction and specifically noted that appellant objected to that ruling.
        4
         We note that the Virginia Model Jury Instructions, Criminal, § 18.850 (2004) indicates
that a deadly weapon is one which “is likely to cause death or great bodily injury because of the
manner and under the circumstances in which it is used.” (Emphasis added).
                                               -4-
S.E.2d at 680 (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)); see also Harris v.

Commonwealth, 134 Va. 688, 695, 114 S.E. 597, 600 (1922). Thus, if we can conclude from the

record that the trial court’s failure to properly instruct the jury did not affect the jury’s verdict,

the trial court’s error is harmless. See Turner v. Commonwealth, 23 Va. App. 270, 276, 476

S.E.2d 504, 507 (1996), aff’d, 255 Va. 1, 492 S.E.2d 447 (1997); Phoung v. Commonwealth, 15

Va. App. 457, 465-66, 424 S.E.2d 712, 717 (1992).

        We conclude that had the trial court given the instructions requested by appellant on the

issue of what constitutes a deadly weapon, the jury’s verdict would have been the same. Here,

the evidence was overwhelming and, in fact, uncontroverted. Investigator Sharpe testified

without objection that the Daisy BB gun, by virtue of its design and construction, would likely

inflict serious bodily injury or even death if fired at a person. The manufacturer’s instructions

and “warnings” noted the gun was a “[d]anger[, n]ot a toy” and could cause “serious injury or

death.” Moreover, no evidence before the jury contradicted the deadly nature of the weapon, nor

did appellant propose any theory that the Daisy BB gun was not in fact a deadly weapon.

Confronted with such “overwhelming” evidence, the jury, had they been instructed as requested

by appellant, could only have found that the Daisy BB gun was likely to cause death or serious

bodily injury and they “could not have found otherwise.” Smoot v. Commonwealth, 18 Va. App.

562, 567, 445 S.E.2d 688, 691 (1994). Accordingly, the trial court’s error was harmless. See id.

(affirming conviction even though the jury was not instructed that “actual notice” was an element

of the offense because no evidence was presented contradicting the Commonwealth’s

overwhelming evidence of actual notice).

                                               III. Instruction F

        Appellant also contends that the trial court erred in rejecting his proposed Instruction F

stating, inter alia, that the Commonwealth had the burden of proving that the weapon he used

                                                  -5-
was, in fact, deadly. We disagree. Instruction 1 informed the jury that the Commonwealth must

prove all elements of the offense beyond a reasonable doubt. Instruction 11 further listed all

elements of the crime, which included the “deadly weapon” element, and stated again that a

verdict of “not guilty” must be issued unless the Commonwealth proved all elements beyond a

reasonable doubt. Thus, appellant’s proposed instruction would be unnecessarily duplicative,

and the trial court acted within its discretion in rejecting it. See Stevens v. Commonwealth, 44

Va. App. 122, 137, 603 S.E.2d 642, 649 (2004) (“‘The trial judge may properly refuse any

instructions that are misleading or redundant.’” (quoting Diffendal v. Commonwealth, 8

Va. App. 417, 423, 382 S.E.2d 24, 26-27 (1989))).

                                 IV. Sufficiency of the Evidence

       Lastly, appellant argues that the evidence was insufficient to prove that the Daisy BB gun

was, in fact, a deadly weapon. We disagree.

       Unless an object can be considered a deadly weapon as a matter of law, the jury

determines from the evidence whether the object belongs in that category. Thus, “[w]hether an

instrument is a deadly weapon is a question of fact.” Inge v. Commonwealth, 39 Va. App. 85,

87, 570 S.E.2d 869, 870 (2002). We do not set aside factual determinations unless we can

conclude that they were plainly wrong. Hodges v. Commonwealth, 45 Va. App. 735, 781, 613

S.E.2d 834, 856 (2005). In determining whether a jury’s factual finding is plainly wrong, we ask

whether any “rational juror could have reached that decision.” Pease v. Commonwealth, 39

Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc), aff’d, 266 Va. 397, 588 S.E.2d 149

(2003) (per curiam). This understanding of the standard of review recognizes the responsibility

of the trier of fact to weigh the evidence and resolve conflicting testimony. Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc).




                                               -6-
       Here, the jury clearly had sufficient evidence to conclude that the Daisy BB gun was a

deadly weapon. As noted earlier, Investigator Sharpe testified that the manufacturer warned that

its product, if used as designed to shoot BB’s at high velocity, could seriously injure or kill

another human being. Investigator Sharpe further stated his opinion that one could get killed

with “what comes out of the barrel of this gun.” We conclude that no rational jury, faced with

this uncontradicted evidence, would find that the Daisy BB gun was not a deadly weapon.

                                           V. Conclusion

       For the reasons stated, we affirm the trial court.

                                                                                           Affirmed.




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