                        COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia


BRADLEY SCOTT JOHNSON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1488-00-4               JUDGE JEAN HARRISON CLEMENTS
                                                JULY 17, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                 Henry E. Hudson, Judge Designate

          Peter M. Baskin (Pelton, Balland, Young,
          Demsky, Baskin & O'Malie, P.C., on briefs),
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Bradley Scott Johnson was convicted in a jury trial of use

of a firearm in the commission of malicious wounding in

violation of Code § 18.2-53.1. 1   On appeal, Johnson contends the

trial court erred (1) in ruling the evidence was sufficient to

convict him of use of a firearm in the commission of malicious

wounding even though he used an unloaded handgun solely as a

striking instrument, (2) in granting the Commonwealth's jury

instruction defining "firearm," and (3) in refusing his jury


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Johnson was also convicted on pleas of guilty of malicious
wounding and assault and battery.
instruction defining "use" of a firearm.      Finding no error, we

affirm the conviction.

        As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of

the proceedings as necessary to the parties' understanding of

the disposition of this appeal.

                            I.   BACKGROUND

        On December 18, 1999, at approximately 11:30 p.m., Mayra

Fernandez, accompanied by Mark Wenske, returned home to her

uncle's house in Arlington County, Virginia.     They parked on the

street, in front of the house.     When Fernandez and Wenske exited

the car, Johnson rushed up to Fernandez, his former girlfriend,

and asked, "Is this the guy?"     Fernandez nodded affirmatively

and Johnson pulled out a nine-millimeter semi-automatic pistol,

pointed it at Fernandez, and pulled the trigger four times.     The

gun clicked each time Johnson pulled the trigger but did not

fire.    After the fourth click Johnson said, "Aren't you lucky."

Wenske tried to intervene when Johnson first rushed up to

Fernandez but, thinking the gun was loaded, got behind the car

when Johnson pulled out the pistol.

        Still brandishing the pistol, Johnson grabbed Fernandez's

arm, said, "Let's go," and started pulling her away from the

house.    Fernandez told Wenske to call the police and yelled for

her uncle to help her.    Johnson then hit Fernandez on the head

                                  - 2-
five times with the butt of the gun.    Fernandez fell to the

ground bleeding, and Johnson hit her again.

     Wenske, who had started calling the police on his cellular

phone, ran over to protect Fernandez but was himself struck by

Johnson on the hand and head with the gun.    Undaunted, Wenske

grabbed Johnson.   During the ensuing struggle, the gun was

dislodged and tossed into the street.   Johnson ran to get the

gun, but Wenske again dislodged it and pushed Johnson away from

the gun.

     At that point, hearing screams outside his house,

Fernandez's uncle ran out to find his niece lying face down in a

puddle of blood and Wenske and Johnson fighting.    He heard

Wenske say two or three times that Johnson had a gun.

Fernandez's uncle saw the gun in the street and attempted to

throw it under the car parked on the street.   He then helped

Wenske subdue Johnson and the police were called.

     When the police arrived, they found the gun in the street

near the car parked in front of the house.    They also found in

the street, approximately forty feet from the scene of the

assault, an empty magazine clip from a nine-millimeter weapon.

The magazine clip was damaged because it had been run over by

traffic.   The police also found a magazine clip with seven

nine-millimeter bullets in it and thirty-five additional

nine-millimeter bullets in Johnson's car parked approximately

one block away.

                               - 3-
     At trial, the court, at the Commonwealth's request, gave

the following instruction defining "firearm" to the jury:

                           INSTRUCTION NO. 8

                 A firearm is a weapon designed to expel
            a projectile by the explosion of gun powder,
            by spring mechanism, or by pneumatic
            pressure. It is not necessary that the
            object actually have the capability of
            firing a projectile, provided that it
            retains enough of its parts that it has not
            lost its appearance as a firearm.

                 The existence of a firearm may be
            proved by circumstantial evidence, direct
            evidence, or both.

Conversely, the trial court refused to give Johnson's requested

jury instruction defining "use" of a firearm, which provides:

                           INSTRUCTION NO. A

                 The Court instructs the jury that the
            term "use" contained in Instruction No. 7 2

     2
         The referenced jury instruction reads as follows:

                             INSTRUCTION NO. 7

                 The defendant is charged with the crime
            of using a firearm while committing or
            attempting to commit the malicious wounding
            of Mayra Fernandez. The Commonwealth must
            prove beyond a reasonable doubt each of the
            following elements of that crime:

            (1)   That the defendant used a firearm; and

            (2) That the use of the firearm was while
            committing or attempting to commit the
            Malicious Wounding of Mayra Fernandez.

                 If you find that the Commonwealth has
            proven these elements beyond a reasonable
            doubt, then you shall find the defendant


                                 - 4-
            means the defendant's employment of the
            firearm in the ordinary manner contemplated
            by its nature and design.

(Footnote added.)

       II.    SUFFICIENCY OF EVIDENCE OF USE OF A FIREARM

     Johnson contends the legislature intended, in enacting Code

§ 18.2-53.1, to punish solely those "offenders who employ

firearms in the ordinary manner as contemplated by their nature

and design to produce fear in the victim or actual injury by

gunfire."    He argues that using a gun to strike or bludgeon the

victim is not included in the definition of "use" in the statute

and that striking or bludgeoning instruments are not included in

the definition of "firearm" in the statute.   Thus, he concludes,

the evidence establishing that he beat the victim with a gun was

insufficient to convict him of using a firearm while committing

malicious wounding.

     When the sufficiency of the evidence is challenged on

appeal, we review the evidence "in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom."    Bright v. Commonwealth, 4 Va. App.



            guilty, but you shall not fix his punishment
            until further evidence has been heard by
            you.

                 If you find that the Commonwealth
            failed to prove beyond a reasonable doubt
            either or both of the elements of the
            offense, then you shall find the defendant
            not guilty.

                                - 5-
248, 250, 356 S.E.2d 443, 444 (1987).    We may not disturb the

conviction unless it is plainly wrong or unsupported by the

evidence.     Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985).    We are further mindful that the

"credibility of a witness, the weight accorded the testimony,

and the inferences to be drawn from proven facts are matters

solely for the factfinder's determination."     Keyes v. City of

Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767

(1993).

     Code § 18.2-53.1 provides, in pertinent part:

             It shall be unlawful for any person to use
             or attempt to use any pistol, shotgun,
             rifle, or other firearm or display such
             weapon in a threatening manner while
             committing or attempting to commit . . .
             malicious wounding as defined in § 18.2-51
             . . . .

     Johnson concedes that he brandished a pistol and used it to

maliciously wound Fernandez.    He argues, however, that, because

he used the unloaded gun as a club and not in its "traditional

manner" to maliciously wound Fernandez, he may not properly be

convicted of use of a firearm in the commission of malicious

wounding.

     "Even though any ambiguity or reasonable doubt as to the

meaning of a penal statute must be resolved in favor of an

accused, nevertheless a defendant is not entitled to benefit

from an 'unreasonably restrictive interpretation of the

statute.'"     Holloman v. Commonwealth, 221 Va. 196, 198, 269

                                 - 6-
S.E.2d 356, 357 (1980) (quoting Ansell v. Commonwealth, 219 Va.

759, 761, 250 S.E.2d 760, 761 (1979)).   In construing the term

"firearm," we have said:

          [W]hether the term "firearm" when used in a
          statute without being defined is to be given
          its traditional meaning or a more expansive
          meaning depends upon the purpose and policy
          underlying the particular statute. When the
          statute is designed to not only deter
          physical harm, but also to deter a broader
          range of conduct that produces fear or
          physical harm, a more expansive definition
          of "firearm" is required in order to
          effectuate that purpose.

Jones v. Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 616

(1992), aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993).

          The purpose of Code § 18.2-53.1, keyed to
          serious crimes and prescribing inflexible
          penalties, is to deter violent criminal
          conduct. The statute not only is aimed at
          preventing actual physical injury or death
          but also is designed to discourage criminal
          conduct that produces fear of physical harm.
          Such fear of harm results just as readily
          from employment of an instrument that gives
          the appearance of having a firing capability
          as from use of a weapon that actually has
          the capacity to shoot a projectile. The
          victim of a crime can be intimidated as much
          by a revolver that does not fire bullets as
          by one that does; such victim cannot be
          required to distinguish between a loaded
          pistol and a [gun incapable of firing
          bullets] when it is brandished during
          commission of a felony.

Holloman, 221 Va. at 198, 269 S.E.2d at 358 (citations omitted).

     To obtain a conviction under "Code § 18.2-53.1, the

Commonwealth must prove that the accused actually had a firearm

in his possession and that he used or attempted to use the

                              - 7-
firearm or displayed the firearm in a threatening manner while

committing or attempting to commit" certain specified felonies,

including malicious wounding.    Yarborough v. Commonwealth, 247

Va. 215, 218, 441 S.E.2d 342, 344 (1994).

     In this case, Johnson used his gun, which had the

appearance of having a firing capability, to "pistol whip" the

victim.   In doing so, he maliciously wounded her.   Before using

the gun to inflict the injuries upon the victim, Johnson pointed

it at her and pulled the trigger several times.    The victim's

companion, who was afraid the gun was loaded, was deterred from

assisting the victim by Johnson's brandishing of the pistol.

     We hold that the evidence presented in this case was

sufficient to prove beyond a reasonable doubt that Johnson was

in possession of a firearm and that he displayed the firearm in

a threatening manner and used it while committing malicious

wounding, in violation of Code § 18.2-53.1.     Hence, the trial

court did not err in ruling the evidence was sufficient to

convict Johnson of use of a firearm in commission of malicious

wounding.

                       B.   JURY INSTRUCTIONS

     Johnson contends that the inclusion of the language, "its

appearance as a firearm," in Instruction No. 8 was error because

intimidation is not an element of malicious wounding.    Thus, he

argues, in the context of malicious wounding, a gun is an



                                - 8-
applicable firearm under Code § 18.2-53.1 only when it is fired

to commit the malicious wounding.       We disagree.

     Johnson's nine-millimeter semi-automatic pistol, which he

pointed at his victim and used to maliciously wound her was, in

fact, a firearm in his possession.       See Yarborough, 247 Va. at

218, 441 S.E.2d at 344.   The jury instruction, including the

challenged language, was an accurate statement of the law, see

Holloman, 221 Va. at 198, 269 S.E.2d at 358, and covered issues

raised by the evidence in this case.      Therefore, the trial court

did not err in granting Instruction No. 8.       See Darnell v.

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988).

     Johnson also contends that the trial court erred in

refusing to give his proffered Instruction A to the jury.

Instruction A, he argues, correctly states the principle that a

gun can only be "used" under Code § 18.2-53.1 to commit

malicious wounding if it is fired.

     "On appeal, when the issue is a refused jury instruction,

we view the evidence in the light most favorable to the

proponent of the instruction."    Lynn v. Commonwealth, 27 Va.

App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239, 514

S.E.2d 147 (1999).   "A party is entitled to have the jury

instructed according to the law favorable to his or her theory

of the case if evidence in the record supports it."       Foster v.

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).



                                 - 9-
     Here, though, we have concluded that Johnson's brandishing

of the handgun and employment of it to maliciously wound the

victim constituted "use" of a firearm under Code § 18.2-53.1.

Thus, we hold that Johnson's proposed instruction defining "use"

was an erroneous statement of the law and the trial judge did

not err in refusing to grant it.

     For these reasons, we affirm the conviction.

                                                    Affirmed.




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