                                                                                                         


                                                                      COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Senior Judge Frank
UNPUBLISHED


              Argued at Richmond, Virginia


              JIMMY JOE WILLIAMS
                                                                                              MEMORANDUM OPINION* BY
              v.            Record No. 0296-15-2                                              JUDGE RANDOLPH A. BEALES
                                                                                                  DECEMBER 8, 2015
              COMMONWEALTH OF VIRGINIA


                                              FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                                         Frederick G. Rockwell, III, Judge

                                           Travis R. Williams (Todd M. Ritter; Daniels, Williams, Tuck &
                                           Ritter, on brief), for appellant.

                                           Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                                           Herring, Attorney General, on brief), for appellee.


                            Jimmy Joe Williams (appellant) was convicted in a bench trial of one count of carrying a

              concealed weapon without a permit, second or subsequent offense, in violation of Code

              § 18.2-308. Appellant argues on appeal that the trial court erred in finding appellant guilty of

              carrying a concealed weapon without a permit because the evidence was insufficient to prove intent.

                                                                              I. BACKGROUND

                            We consider the evidence on appeal “in the light most favorable to the Commonwealth as

              we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60

              Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,

              330, 601 S.E.2d 555, 574 (2004)).

                            So viewed, the evidence established that on November 28, 2013, appellant was involved

              in a traffic accident while operating his scooter. Appellant testified that at the time of the

                                                                          
                            *
                                Pursuant to Code § 17.1-413, this opinion is not designated for publication.
accident, he was wearing a long-sleeved shirt, a long-sleeved sweater, a waist-length black

jacket, and a long, orange raincoat. The trial court determined that the coat, which appellant

showed the trial court, “comes down to the mid thighs.” Appellant also had a handgun on his

person that he had owned for two or three years. Appellant testified that he did not have a

concealed carry permit at the time of the accident because he had been convicted of driving

under the influence in 2012 and was precluded from applying for a concealed carry permit for

three years. The trial court accepted into evidence appellant’s June 20, 2012 conviction order for

his first violation of carrying a concealed weapon. He was convicted of that first violation

approximately a year and a half before he was arrested and charged with this second violation of

carrying a concealed weapon that is currently on appeal.

        Appellant testified that, when he traveled on his scooter, he kept his handgun exposed by

moving his coat in a certain way. He demonstrated this action for the trial court. The trial court

accepted as an exhibit the holster appellant wore the day of the accident. The holster is made to

attach to a person’s belt, and it has belt loops to allow the wearer to thread his or her belt through

the back of the holster in order to attach it to his belt and waist. Thus, the holster, if attached to

the belt, sits very close to the body at waist level. The trial court had a chance to observe the

holster and the coat at trial. Despite appellant’s initial testimony that he kept the handgun

exposed, when asked by trial counsel whether the handgun was exposed prior to the accident,

appellant said, “Yes. To be honest about this it’s problematic when riding the scooter . . . .”

When appellant was asked by the Commonwealth, “Is it your testimony that [the coat] stayed

there behind that holster while you were going 35 miles an hour?” Appellant responded, “My

testimony is that I guess, I probably, the jacket, yes.”

        Appellant was driving his scooter on the road when a car pulled out in front of him.

Appellant testified that he then lost control, “went over the handlebars,” and slid across the
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pavement to the curb. Appellant further testified that while he was lying there, an officer (who

was not present at trial) came up and felt his side. Appellant did not tell the officer that he had a

handgun. Later, appellant was taken into the ambulance and was examined by emergency

medical technicians (EMTs). Appellant testified that, by the time he got into the ambulance, he

realized that his coat was covering his handgun. While he was being examined, appellant did not

tell the EMTs that he had a weapon on his person. Upon being released, appellant exited the

ambulance.

              About eight to ten minutes after Officer Brian Martonik, an officer with the Chesterfield

County Police Department, first arrived on the scene, an EMT approached him. The EMT

handed Officer Martonik a handgun magazine and mentioned that appellant might have a gun on

his person. Officer Martonik then approached appellant, who was out of the ambulance.

Appellant was wearing his long coat, which covered his waist. Officer Martonik did not observe

a handgun on appellant’s person. He asked appellant if he had a firearm, and appellant told the

officer that he did. Officer Martonik then asked appellant to pull his coat up. Appellant

complied, revealing the handgun holstered on his belt. Officer Martonik testified that, as

appellant was pulling up his coat, “[h]e said it was cold outside and he couldn’t keep the gun

outside. He said he tried to keep the gun outside but he couldn’t because of the coat.” The trial

court ultimately concluded in finding appellant guilty that appellant was intentionally keeping his

handgun covered by his coat.1




                                                            
              1
         In making its finding the trial court stated, “Intentional, this is a situation where he had
a coat that would cover it. Nonetheless, when he first observed the coat and the coat is down
against the gun, and it’s his responsibility to make sure he follows the law.”  
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                                              II. ANALYSIS

                                           Standard of Review

        When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most

favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,”

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask

whether ‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v.

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

v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443

U.S. at 319. Any issues of statutory interpretation are reviewed de novo.

                               Appellant’s Intent to Conceal his Handgun

        Appellant contends that “[t]he trial court erred by finding sufficient evidence to convict

the defendant for carrying a concealed weapon, where the evidence failed to establish the

defendant intentionally carried a concealed weapon on or about his person.” When the trial court

pronounced sentence, it found that appellant intentionally concealed the handgun on his person.

Assuming without deciding that intent is an element of the offense of Code § 18.2-308(A), we

find no error with the trial court’s decision because a rational trier of fact could conclude that the

evidence is sufficient.



                                                    ‐ 4 - 
       Considering the evidence in the light most favorable to the Commonwealth, as we must

because the Commonwealth prevailed below, we hold that the evidence was sufficient for a rational

factfinder to conclude that appellant intentionally concealed his handgun from common observation.

Appellant argued that “the evidence showed that despite William[s]’s deliberate and intentional

efforts to ‘open carry’ in full compliance with the law, his intentions were thwarted when his

holstered weapon became covered by his jacket in the turmoil of his accident – an unforeseen

event.” However, appellant fails to point out that after the accident and after all medical

treatment was completed, appellant intentionally decided not to reveal the handgun or uncover

it – despite realizing sometime earlier that the handgun had become hidden.

       Appellant knew how easily his handgun could become concealed when wearing his long

coat that fell to his mid-thighs. Appellant also acknowledged that he realized that his coat was

covering his handgun by the time he was in the ambulance. Appellant was soon released by the

EMTs and began speaking with Officer Martonik outside of the ambulance, yet appellant did not

take his coat off or expose his handgun. However, when Officer Martonik asked appellant if he

had a gun, appellant responded in the affirmative. When Officer Martonik asked appellant to

show him the gun, appellant lifted his coat up to reveal it to the officer. Officer Martonik

testified that, as appellant was lifting up his coat, appellant told him that “he tried to keep the gun

outside but he couldn’t because of the coat.” Thus, appellant’s statements showed that he

realized his coat was covering his handgun, did nothing about it, exited the ambulance, began

talking to an officer, and still did nothing to expose the gun or alert the officer or the EMTs to it.

Only when Officer Martonik asked did appellant then admit to having a handgun and actually

show it to the officer. As appellant was lifting up his coat to reveal the handgun, he made the

excuse that it was cold outside and that he could not keep the handgun exposed because of his

coat. However, appellant’s desire to keep warm does not negate his intent to keep the gun
                                                 ‐ 5 - 
hidden, especially when appellant knew that his coat was so long that it would cover his

handgun. The totality of this evidence all points to the conclusion that appellant intentionally

kept the handgun concealed – both before the accident (as he rode his scooter down the highway

wearing a long coat that at least at times covered the handgun) and after he had been treated and

released by the EMTs. He only revealed the handgun when asked directly by Officer Martonik

to do so.

                                           III. CONCLUSION

       In summary, a rational trier of fact could find, as the trial court did here, that appellant

intentionally concealed his handgun. Therefore, we affirm appellant’s conviction for carrying a

concealed weapon without a permit, second or subsequent offense, in violation of Code

§ 18.2-308(A).

                                                                                               Affirmed.




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