                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Malveaux and Senior Judge Frank
              Argued at Hampton, Virginia
UNPUBLISHED




              STEVEN ANTHONY TRACE
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 0885-18-1                               JUDGE MARY BENNETT MALVEAUX
                                                                                OCTOBER 1, 2019
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                              David W. Lannetti, Judge

                               Eric P. Korslund (Law Office of Eric Korslund, P.L.L.C., on brief),
                               for appellant.

                               Liam A. Curry, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Steven Anthony Trace (“appellant”) appeals his conviction for possession of a firearm by

              a convicted felon, in violation of Code § 18.2-308.2(A).1 He argues that the trial court erred in

              denying his motion to set aside the verdict because the evidence was insufficient to prove that he

              possessed a firearm. For the following reasons, we affirm the trial court’s ruling.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Appellant was also indicted for robbery, in violation of Code § 18.2-58; conspiracy to
              commit robbery, in violation of Code §§ 18.2-22 and -58; use of a firearm in the commission of a
              felony, subsequent offense, in violation of Code § 18.2-53.1; and conspiracy to commit use of a
              firearm in the commission of a felony, subsequent offense, in violation of Code §§ 18.2-22 and
              -53.1. Upon motion by appellant, the charge of possession of a firearm by a convicted felon was
              severed from the other four charges. In a separate proceeding, the trial court granted the
              Commonwealth’s motion to nolle prosequi the charge of conspiracy to commit use of a firearm
              in the commission of a felony and a jury found appellant not guilty of the remaining three
              charges.
                                        I. BACKGROUND

       “Under familiar principles of appellate review, we will state ‘the evidence in the light

most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the

Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.’”

Sidney v. Commonwealth, 280 Va. 517, 520 (2010) (quoting Murphy v. Commonwealth, 264

Va. 568, 570 (2002)).

       On August 11, 2016, Cory Bartley was staying with a friend, Devon Hoover, in the City

of Norfolk. Shortly before 11:30 p.m., the two men walked to a nearby convenience store.

Bartley testified at appellant’s bench trial that when he arrived at the convenience store, he was

wearing several gold necklaces and carrying a bookbag.

       While Bartley and Hoover were at the convenience store, a white SUV arrived and

parked. Bartley saw appellant and another man get out of the SUV. As Hoover and Bartley

walked away from the store, Bartley noticed appellant and his companion looking in his

direction.

       After walking for about one block, Bartley again saw the white SUV. It pulled up and

stopped, and appellant and his companion got out. They approached Bartley and Hoover and

appellant asked Bartley, “Hey, do you know me?” Bartley replied that he did not. Appellant

kept walking closer and closer to Bartley and Hoover.

       At that point, Bartley felt “very bad negative vibes” and advised Hoover, who was

wearing a neck brace, to walk away. Appellant’s companion then “sw[u]ng[] at” Bartley and

took his bookbag. Appellant began fighting with Bartley and attempted to take his jewelry. He

also “pulled [a] weapon out on [Bartley].” Bartley described the weapon as a gun which

appellant pointed straight at his chest and stomach. Bartley tried to fight back after appellant

pointed the gun at him and told him to give appellant his wallet and phone. When appellant

                                                -2-
dropped his gun, Bartley ran away. Bartley described the sound of appellant’s gun hitting the

ground as “[l]ike dropping a block or like a brick on the ground . . . dropping a solid object on

the ground.”

       At trial, the Commonwealth’s attorney asked Bartley why he thought the object pointed

at him by appellant was a gun, and Bartley replied, “Because it was a gun. I mean, anybody can

know what a gun looks like.” When asked by the trial court what specific parts of the weapon

led him to conclude that it was a gun, Bartley responded, “The trigger, the barrel, the hole in the

barrel, everything. It comes down to a handgun.” Bartley stated that he did not “really know

really much about guns” and admitted that at the time of the incident he did not know what type

of handgun was being pointed at him. However, after later conducting research and comparing

his recollection with the “looks” and “shape” of a friend’s Glock pistol, Bartley determined that

the gun was a Glock. In particular, Bartley stated that “the cubed head of the body from the front

of the barrel to the back” were distinctive features of appellant’s weapon that suggested to him

that it was like his friend’s Glock. During cross-examination, Bartley agreed that he did not hold

the object dropped by appellant and that he would not know whether the object pointed at him by

appellant was a “real gun or a BB gun.”

       After the Commonwealth presented its case-in-chief, appellant moved to strike the

evidence on the ground that no firearm had been recovered and thus there was no evidence that

appellant had possessed a firearm “other than a mere observance by a lay witness as to what he

thinks is a gun.” The trial court took the motion under advisement.

       Appellant presented no evidence and renewed his motion to strike. The trial court denied

the motion and convicted appellant after noting that the facts of the instant case were similar to

the facts in both Redd v. Commonwealth, 29 Va. App. 256 (1999), and Jordan v.

Commonwealth, 286 Va. 153 (2013).

                                                -3-
       Appellant filed a motion to set aside the verdict. At a hearing on the motion, appellant

reiterated his argument that “the brandishing of the item and the description of [its] appearance

by a lay witness” was insufficient to prove that he was in possession of a firearm. The trial court

took the matter under advisement and subsequently issued a letter opinion denying appellant’s

motion. In its opinion, the court stated that it had

               considered the totality of the evidence, including [Bartley’s]
               testimony that although he was unfamiliar with handguns at the
               time of the incident, he subsequently conducted research and
               determined that the firearm he observed [appellant] brandishing
               was a “Glock.” [Bartley] further testified that [appellant] pointed
               the weapon directly at him, implying that [appellant] might shoot
               him. . . . [T]he [c]ourt found the facts analogous to those in
               Jordan, where the victim sufficiently identified the weapon and
               found that the defendant pointing it directly at the victim “was an
               implied assertion that the object was a firearm.” Jordan, 286 Va. at
               158.
       Appellant appealed to this Court.

                                           II. ANALYSIS

       Appellant argues that the trial court erred in denying his motion to set aside the verdict

because the evidence was insufficient to prove that he possessed a firearm, i.e., an instrument

designed, made, and intended to fire or expel a projectile by means of an explosion. He notes

that no firearm was introduced into evidence at trial and contends that consequently, the

Commonwealth’s evidence relied entirely upon Bartley’s identification of a firearm. That

identification was unreliable, appellant argues, because Bartley was unfamiliar with firearms,

“merely assumed” at the time that the object produced by appellant was a firearm, and only later

confirmed his assumption after examining a friend’s firearm collection.

       “When the sufficiency of the evidence is challenged on appeal, we review the evidence in

the light most favorable to the prevailing party at trial, in this case the Commonwealth, and

accord to it all inferences fairly drawn from the evidence.” Grimes v. Commonwealth, 288 Va.


                                                 -4-
314, 318 (2014). In conducting our review, “[t]he judgment of the trial court is presumed correct

and will not be disturbed unless it is plainly wrong or without evidence to support it.” Smith v.

Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting Commonwealth v.

Perkins, 295 Va. 323, 327 (2018)). “Instead, the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Phillips v. Commonwealth, 56

Va. App. 526, 534-35 (2010) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en

banc)). Thus, “[i]f there is evidence to support the conviction[], the reviewing court is not

permitted to substitute its own judgment, even if its opinion might differ from the conclusions

reached by the finder of fact at the trial.” Synan v. Commonwealth, 67 Va. App. 173, 185 (2017)

(quoting Courtney v. Commonwealth, 281 Va. 363, 366 (2011)).

       Code § 18.2-308.2(A) provides, in pertinent part, that it is unlawful for “any person who

has been convicted of a felony . . . to knowingly and intentionally possess . . . any firearm.”2

With respect to what constitutes a firearm under the statute, our Supreme Court has held that “in

order to sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the

evidence need show only that a person subject to the provisions of that statute possessed an

instrument which was designed, made, and intended to fire or expel a projectile by means of an

explosion.” Armstrong v. Commonwealth, 263 Va. 573, 584 (2002). See also Jordan, 286 Va. at

157. Further, while it is unnecessary that the Commonwealth “prove the instrument was

‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious harm,’” Armstrong,

263 Va. at 584, “a replica gun and a BB gun would not be sufficient to convict a person under

Code § 18.2-308.2 . . . because those items were not ‘designed, made, and intended to fire or



       2
         At trial, the Commonwealth introduced into evidence a sentencing order reflecting that
appellant had been convicted in 2008 for robbery, in violation of Code § 18.2-58.
                                              -5-
expel a projectile by means of an explosion,’” Jordan, 286 Va. at 157 (quoting Startin v.

Commonwealth, 281 Va. 374, 382 (2011)).

       We are unpersuaded by appellant’s argument that the evidence was insufficient to prove

he possessed a firearm. Where, as here, no firearm is recovered and entered into evidence at

trial, a defendant may still be convicted of possession of a firearm by a convicted felon based

upon a victim’s identification of a gun taken together with the conduct of the defendant.

       In Redd, this Court affirmed the defendant’s conviction for possession of a firearm by a

convicted felon where no firearm was introduced into evidence at trial. The defendant had

entered a convenience store, placed a “long, black gun” on the counter, and ordered the clerk to

give her all of the money in the cash register. Redd, 29 Va. App. at 258. The defendant warned

the clerk that she would be killed if she set off a silent alarm. Id. After the clerk gave the money

to the defendant, the defendant again threatened her and told her not to call the police. Id. When

asked what kind of gun the defendant had displayed, the clerk replied, “I just know it was a long

black gun. I am not familiar with guns.” Id. The Court first concluded that the clerk’s

description of the brandished object was “insufficient, alone, to prove that the object possessed

the ‘ability to expel a projectile by the power of an explosion.’” Id. at 259. However, it then

determined that the defendant’s “threat, upon presenting the weapon, to kill the clerk was an

implied assertion that the object was a functioning weapon, being in fact the firearm that it

appeared to be and possessing the power to kill.” Id. The Court held that the combined weight

of this evidence—the “implied assertion, which was corroborated by the appearance of the object

and was uncontradicted by any other evidence”—was sufficient to support the trial court’s

factual finding that the object produced by the defendant was a firearm. Id.

       Likewise, in Jordan, our Supreme Court affirmed the defendant’s conviction for

possession of a firearm by a convicted felon where the evidence at trial did not include a

                                                -6-
recovered firearm. In that case, the complaining witness was sitting in a parked truck when the

defendant approached and began asking him questions. Jordan, 286 Va. at 155. When he did

not reply, the defendant pointed a small pistol at the complaining witness and ordered him out of

the truck. Id. The complaining witness complied and ran away. Id. At trial, he stated that he

was familiar with handguns because his father was in the military and that the handgun pointed

at him by the defendant had appeared to be a “Raven,” a particular kind of pistol with which he

was familiar. Id. During cross-examination, however, he admitted that “he could not say for

certain that the object was not a toy gun.” Id. The Court, after confirming the soundness of the

holding in Redd, noted that “[i]n Redd, the defendant’s threat to kill the clerk was an implied

assertion that the object was a firearm.” Id. at 158. While the defendant in Jordan “did not

verbally threaten to kill [the complaining witness], . . . the acts of pointing the gun at [him] while

directing him to get out of the [truck], most assuredly communicated the message that if [he] did

not comply, [the defendant] would shoot him.” Id. The Court also noted that the complaining

witness identified the object produced by the defendant as a Raven, a well-known pistol, and that

“[t]he reference to a ‘Raven’ indicates a specific weapon that . . . clearly meets the definition of a

firearm as set out in Armstrong.” Id. The Court further noted that the complaining witness’

identification of the firearm was subject to cross-examination and that “[t]he determination of

how much weight to give to his identification . . . was a matter for the trier of fact.” Id. In

affirming the defendant’s conviction, the Court concluded that the fact-finder was entitled to

consider the totality of the evidence, including the complaining witness’ “testimony identifying

the weapon, and [the defendant’s] conduct which included pointing that weapon to [the

complaining witness’] head and demanding that [he] get out of the truck.” Id. at 158-59. With

respect to the defendant’s conduct, the Court noted that “[i]t was within the province of the

[fact-finder] to conclude that [his] conduct was an implied assertion that the object he held was a

                                                 -7-
firearm” and that the Court could not substitute its judgment for that of the fact-finder “unless no

reasonable [fact-finder] could have come to this conclusion.” Id. at 159.

       Here, as in both Redd and Jordan, Bartley identified the object produced by appellant as a

firearm. Although Bartley, unlike the complaining witness in Jordan, stated that he was not

familiar with guns, our holding in Redd makes clear that no such familiarity is required for a trier

of fact to credit a witness’ identification of a firearm. See Redd, 29 Va. App. at 258-59. Bartley

concluded that the object appellant pointed at his stomach and chest at close range was not

simply a firearm, but a specific type of firearm—a Glock—based upon his observations and a

comparison of those observations with a friend’s Glock pistol. At trial, he was able to identify

specific physical characteristics of the object he had seen in appellant’s hand which led him to

his conclusion. Bartley also described the sound made by the object when it hit the ground as

like a “solid object” or a “block or . . . brick” being dropped. Bartley was subject to

cross-examination about his identification and, like the complaining witness in Jordan, who

claimed experience with firearms that Bartley did not, readily admitted that he would not know

whether the object dropped by appellant was a real gun or a BB gun. The trial court was entitled

to credit Bartley’s identification of the object possessed by appellant as a firearm satisfying the

requirements of Code § 18.2-308.2(A), and it did so. Based upon our review of the evidence, we

cannot conclude that the trial court was plainly wrong to credit Bartley’s identification and that,

as appellant argues, that identification was unreliable.

       Further, while Bartley’s identification alone would be insufficient to sustain appellant’s

conviction for possession of a firearm by a convicted felon, we note that contrary to appellant’s

argument the Commonwealth’s evidence did not rest solely upon Bartley’s identification.

Instead, as in Redd and Jordan, Bartley’s identification was corroborated by appellant’s conduct.

When appellant and his companion attempted to steal Bartley’s jewelry and other possessions,

                                                -8-
appellant produced the object in question and, at close range, pointed it straight at Bartley’s chest

and stomach. While pointing the object at Bartley, appellant demanded that Bartley give

appellant his wallet and phone. As in Jordan, although appellant did not explicitly threaten to

kill or inflict grave bodily harm on Bartley with the object he held and pointed at him, “the act of

pointing [the object]” at Bartley while directing him to comply with his commands “most

assuredly communicated the message that if [Bartley] did not comply, [appellant] would shoot

him.” Jordan, 286 Va. at 158. As noted in Jordan, it was within the trial court’s province as

fact-finder to conclude that appellant’s conduct “was an implied assertion that the object he held

was a firearm,” and the trial court did find such an assertion that “the object was a functioning

weapon, being in fact the firearm that it appeared to be and possessing the power to kill.” Redd,

29 Va. App. at 259. After reviewing the evidence, we conclude that the trial court was not

plainly wrong in finding that appellant’s conduct implied an assertion that he possessed a firearm

satisfying the requirements of Code § 18.2-308.2(A).

       Based upon Bartley’s identification of a Glock firearm and appellant’s conduct

demonstrating an implied assertion that he possessed a firearm, we hold that a rational trier of

fact could have found that appellant, a convicted felon, possessed a firearm when he confronted

Bartley. Consequently, the trial court did not err in denying appellant’s motion to set aside the

verdict convicting him for possession of a firearm by a convicted felon, in violation of Code

§ 18.2-308.2.

                                       III. CONCLUSION

       Finding no error, we affirm the trial court’s denial of appellant’s motion to set aside the

verdict.

                                                                                          Affirmed.




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