                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Willis
Argued at Richmond, Virginia


CLINTON C. QUESENBERRY, S/K/A
 CLINTON QUESSENBERRY
                                                     OPINION BY
v.   Record No. 2292-02-2                   JUDGE JERE M. H. WILLIS, JR.
                                                    JULY 8, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge

          Ali J. Amirshahi for appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Clinton C. Quesenberry was convicted in a bench trial of

possession of a firearm by a convicted felon.        On appeal, he

contends the trial court erred by finding the plastic flare

launcher he possessed was a "firearm" subject to the prohibition

of Code § 18.2-308.2.    For the reasons that follow, we affirm the

judgment of the trial court.

                               BACKGROUND

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"        Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).
        So viewed, the evidence disclosed that on October 23, 2001,

at approximately 5:15 p.m., Officer Knouse responded to a

complaint at the Shady Hill Trailer Park in Chesterfield County.

When he arrived at the scene, he observed Quesenberry in the

access road in front of his trailer.     As he spoke with

Quesenberry, who was upset because a neighbor's guest had parked

in his parking space, Knouse noticed an orange plastic flare gun

protruding from Quesenberry's back pocket.    The neighbor's guest

moved the car, and the officer left.     At approximately

6:30 p.m., in response to another report of a disturbance at the

trailer park, Knouse and Officer T.A. Bunker returned to the

scene.    They discovered Quesenberry engaged in another argument

regarding the parking spaces.    Bunker approached Quesenberry and

asked whether he was carrying a weapon.    Quesenberry said he was

not, but admitted he had a flare gun in his trailer.

Quesenberry retrieved the weapon from just inside the trailer's

door and showed it to Bunker, who noticed it contained an

expended round.    He took possession of the weapon.

        Gilbert Auaguirre testified he observed the argument from

next door.    He testified that Quesenberry produced a gun from

his trailer, pointed it at "everybody," and threatened to kill

them.

        Ann Davis, a forensic scientist, examined the flare gun.

She testified that it was designed to propel a projectile by



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explosive force.    She explained that the flare gun fired by the

same mechanism as a shotgun.

                               ANALYSIS

       In pertinent part, Code § 18.2-308.2 provides that "[i]t

shall be unlawful for . . . any person who has been convicted of

a felony . . . to knowingly and intentionally possess or

transport any firearm . . . ."    Appellant concedes he is a

convicted felon and also admits he possessed the plastic flare

gun.   He argues only that the flare gun is not a "firearm" within

the meaning of Code § 18.2-308.2.

                  [I]n 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 expel a
             projectile by means of an explosion. It is
             not necessary that the Commonwealth prove
             the instrument was "operable," "capable" of
             being fired, or had the "actual capacity to
             do serious harm."

Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145

(2002).    Ms. Davis testified that the flare gun Quesenberry

possessed was designed to expel a projectile by means of an

explosion.

       Nevertheless, Quesenberry asserts that a flare gun is not

included within the intent and purpose of Code § 18.2-308.2 and

that its inclusion would impermissibly extend the statute, "by

implication or construction . . . to embrace cases which are not



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within [its] letter and spirit."     Berry v. City of Chesapeake,

209 Va. 525, 526, 165 S.E.2d 291, 292 (1969).

        "While we construe penal statutes strictly against the

Commonwealth, a statute should be read to give reasonable effect

to the words used and to promote the ability of the enactment to

remedy the mischief at which it is directed."     Johnson v.

Commonwealth, 37 Va. App. 634, 639, 561 S.E.2d 1, 3 (2002)

(internal quotations omitted).     We recently held that "[t]he

'mischief' at which § 18.2-308.2(A) is directed is the

possession of firearms by convicted felons in an attempt to

prevent indiscriminate use of dangerous weapons by one

previously convicted of a serious crime."     Alger v.

Commonwealth, 40 Va. App. 89, 93, 578 S.E.2d 51, 53 (2003).

Quesenberry not only possessed the flare gun, a device capable of

inflicting injury, he used it in a threatening manner, aiming it

at a group of people at close range and threatening to kill

them.

        Quesenberry's use of an instrument designed to expel a

projectile by explosive force was precisely the type of

"mischief" Code § 18.2-308.2 was designed to prevent.      The flare

gun clearly falls within the definition of "firearm" articulated

in Armstrong.     See 263 Va. at 584, 562 S.E.2d at 145.   The trial

court did not err in so finding.




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     For these reasons, we affirm the judgment of the trial

court.

                                                        Affirmed.




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