                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


DETORE T. BROWN, S/K/A
 DETORE TWION BROWN
                                           MEMORANDUM OPINION * BY
v.   Record No. 1438-00-1                 JUDGE ROBERT J. HUMPRHEYS
                                                JUNE 12, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

          S. Jane Chittom, Appellate Defender (Public
          Defender Commission, on brief), for
          appellant.

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


     Detore T. Brown appeals his convictions, following a bench

trial, of two counts of robbery, two counts of use of a firearm in

the commission of a felony, and three counts of possession of a

firearm by a felon. 1   Brown contends that the trial court erred in

overruling his motion to suppress evidence, which he alleges was

obtained as a result of an illegal search.    Brown also contends

that the evidence was insufficient as a matter of law to support

the convictions.   Because this opinion has no precedential value


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Brown and Nickkinba Braswell were jointly tried for these
offenses.
and because the parties are conversant with the facts, we do not

recite them in detail here.

     On appeal, Brown first complains that he was unlawfully

seized by police, requiring suppression of all evidence

subsequently obtained, including his confessions.   It is well

settled that

          "[u]ltimate questions of reasonable
          suspicion and probable cause to make a
          warrantless . . . seizure involve issues of
          both law and fact and are reviewed de novo
          on appeal." However, "[i]n performing such
          analysis, we are bound by the trial court's
          findings of historical fact unless plainly
          wrong or without evidence to support them
          and we give due weight to the inferences
          drawn from those facts by resident judges
          and local law enforcement officers." "In
          reviewing a trial court's denial of a motion
          to suppress, 'the burden is upon appellant
          to show that this ruling, when the evidence
          is considered most favorably to the
          Commonwealth, constituted reversible
          error.'"

Christian v. Commonwealth, 33 Va. App. 704, 709-10, 536 S.E.2d

477, 480 (2000) (citations omitted).

     Brown and Braswell were detained because their female

companion matched the description of the "teen bandit," a woman

who had committed several armed robberies in the Portsmouth and

Virginia Beach areas.   Brown argues that Officer I.E. McNett

unlawfully detained him because he had no reasonable suspicion

that Brown had been engaged in unlawful activity.   Indeed,

McNett testified that he had no information that Brown had



                               - 2 -
committed any crime before he detained him for the purpose of

performing a "pat-down" search for weapons.

     "Ordinarily, in the absence of consent, even a brief

detention must be based on at least a reasonable, articulable

suspicion the person seized is engaged in criminal activity."

Welshman v. Commonwealth, 28 Va. App. 20, 30, 502 S.E.2d 122,

127 (1998) (en banc) (citation omitted).    "However, as the

United States Supreme Court has held, the absence of probable

cause or reasonable suspicion of criminal activity does not

necessarily render a detention unlawful."     Id. (citing Maryland

v. Wilson, 519 U.S. 408, 414-15 (1997); Michigan v. Summers, 452

U.S. 692, 705 (1981); and United States v. Martinez-Fuerte, 428

U.S. 543, 556-62 (1976) (upholding border patrol stops of

vehicles at fixed checkpoint in absence of reasonable suspicion

that vehicle contained illegal aliens)).

     In Welshman, we noted the Summers Court held "a warrant to

search for contraband founded on probable cause implicitly

carries with it the limited authority to detain the occupants of

the premises while a proper search is conducted."     Id.    We also

recognized that "[a]lthough the Court stressed the importance of

the existence of the search warrant to justify the detention in

that case, it also noted its holding did not 'preclude the

possibility that comparable police conduct may be justified by

exigent circumstances in the absence of a warrant.'"        Id. at 31,

502 S.E.2d at 127 (citations omitted).   In Wilson, "the Court

                              - 3 -
extended Pennsylvania v. Mimms, 434 U.S. 106 (1977), to hold

that a police officer making a routine traffic stop may order a

passenger out of the car for safety reasons, even if the officer

has no reason to suspect the passenger of criminal behavior."

Welshman, 28 Va. App. at 31, 502 S.E.2d at 127.

     Based on the reasoning in these cases, as well as society's

interest in protecting the safety of officers and potential

bystanders, we held that the officers in Welshman were justified

in detaining bystanders, in addition to the targeted subjects,

even though they lacked reasonable suspicion or probable cause

to believe that the bystanders were engaged in criminal

activity.    In so holding, we recognized the peculiar facts of

that case.   Namely, that the officers had probable cause to

believe the two target individuals were then engaged in selling

cocaine, that the officers had previously received numerous

"shots fired" complaints from that area, which had a reputation

for violence, that when the officers approached the scene the

two target individuals had retreated to the sidewalk into a

group of about eight people, that the group outnumbered the

police officers by a ratio of two to one, that other people,

including children, were in close proximity, and that the nature

of the crime for which the officers sought to apprehend the

target subjects held some inherent danger.    Id. at 32-33, 502

S.E.2d at 128.



                                - 4 -
     Our analysis in Welshman applies equally here.    Officer

McNett was attempting to stop and detain the target individual,

the female.   McNett had at least reasonable suspicion to believe

at that time that she had been involved in several robberies,

which are by their nature, violent crimes.    In addition, when

McNett approached the three individuals, he was outnumbered by

three to one.   Brown's suspicious actions of refusing to remove

his hands from his pockets and apparently attempting to distance

himself from Officer McNett, in conjunction with these other

factors, leads to the conclusion that Officer McNett's brief

detention of Brown for purposes of performing a "pat-down"

search for weapons in order to secure his own safety, when

viewed in the light most favorable to the Commonwealth, was

limited and reasonable under all the circumstances and therefore

did not violate Brown's rights under the United States or

Virginia Constitutions.

     In so holding, we do not go so far as to adopt an

"automatic companion" rule. 2   We simply find that under the

particular facts of this case, the officer's brief detention of

Brown was reasonable.   Accordingly, we find no error in the

trial court's decision to overrule Brown's motion to suppress.




     2
       During oral argument, the Commonwealth did not press it's
argument on brief with respect to the "automatic companion
rule," which has been adopted by several of our sister states.
Accordingly, we do not address the issue further.

                                - 5 -
        Brown next argues that the evidence was insufficient to

support his convictions.    He first contends that he cannot be

convicted of robbery and/or of possessing a firearm on December

4.   Brown claims that "[t]he worst that can be made of [his]

statement regarding the December 4 robbery is that he was

present," but that the facts do not establish that he

participated "in any way."    However, Brown, by his own

confession, states "I robbed the Sentry [at Portsmouth

Boulevard] with a nine-millimeter at gunpoint."    Viewing the

evidence in the light we must, we do not find that the trial

court was plainly wrong in finding the evidence sufficient to

support Brown's conviction for this offense.

        Brown also contends that he cannot be convicted of

possession of a firearm for his possession of the .9mm on that

date.    Brown contends that since he was convicted for possession

of the .9mm on December 8, the date he was arrested, he cannot

be convicted for possessing the same firearm on two occasions.

Code § 18.2-308.2 provides, in relevant part:

             A. It shall be unlawful for (i) any person
             who has been convicted of a felony or (ii)
             any person under the age of twenty-nine who
             was found guilty as a juvenile fourteen
             years of age or older at the time of the
             offense of a delinquent act which would be a
             felony if committed by an adult, whether
             such conviction or adjudication occurred
             under the laws of this Commonwealth, or any
             other state, the District of Columbia, the
             United States or any territory thereof, to
             knowingly and intentionally possess or
             transport any firearm or to knowingly and

                                 - 6 -
          intentionally carry about his person, hidden
          from common observation, any weapon
          described in § 18.2-308 A.

     In construing this statute, we have held that "[u]pon

consideration of the purposes of Code § 18.2-308.2 and being

mindful that penal statutes must be strictly construed against

the Commonwealth and applied only in those cases clearly falling

within the language of the statute . . . when [a] defendant

possesse[s] [three firearms], he commit[s] a single offense

under Code § 18.2-308.2, not three."    Acey v. Commonwealth, 29

Va. App. 240, 251, 511 S.E.2d 429, 434 (1999).   We based our

holding on the "gravamen of the offense," which we found to be

"the possession of a firearm by a felon."    Id. at 250, 511

S.E.2d at 433.   Under this reasoning, the unit of prosecution

for this offense becomes the number of occasions on which a

defendant "possesses" one or more weapons.   Because the evidence

establishes that Brown exercised dominion and control over the

firearm on two separate occasions, it is clear that Brown

committed two distinct violations of a single criminal

proscription.    Thus, the trial court did not err in convicting

Brown of these two separate offenses.

     As an alternative to this argument, Brown contends that

because he also made the statement in his confession that the

gun used during that particular robbery "could have been the 380

or the nine," he might have had the shotgun on that occasion.

Brown extrapolates from this statement and argues that since the

                                - 7 -
evidence does not demonstrate that the shotgun ejected the

casing when test-fired, it was not operable, and therefore, he

cannot be convicted of possession of the firearm.

     "[I]n determining whether an item is a 'firearm,' the

Commonwealth must prove two discrete elements: (1) that the

weapon is designed or intended to expel projectiles by the

discharge or explosion of gunpowder, and (2) that it is capable

of doing so."   Gregory v. Commonwealth, 28 Va. App. 393, 400,

504 S.E.2d 886, 889 (1998).   Here, even assuming Brown's

uncertainty of which weapon he used extends to the shotgun,

there is no dispute that the shotgun was designed or intended to

expel projectiles by the discharge or explosion of gunpowder.

Instead, Brown claims that it was not capable of doing so.

However, the evidence established that when test-fired, the gun

made a loud booming noise and discharged smoke.   Although

shotgun pellets were not expelled from the weapon, the evidence

demonstrated that this was because the officer had removed the

pellets from the casing before test-firing the shotgun.     Once

again, viewing the evidence in the light we must, we do not find

that the trial court was plainly wrong in finding this evidence

sufficient to establish that the shotgun was nonetheless capable

of expelling one or more projectiles by the explosion of

gunpowder and thus, was operable.

     Brown finally argues that the evidence was insufficient to

establish that he was involved with the robbery on December 2.

                               - 8 -
Brown contends that because witness Virginia Smith testified

that Braswell was the individual who actually held the gun, and

because she was not able to identify Brown in a photo lineup

after the incident, the evidence against Brown was unreliable

and insufficient to support the conviction.   However, Brown's

own confession stated "I robbed Sentry at [that location] at

gunpoint with a sawed-off shotgun."   Brown even provided

information to the police enabling them to locate the shotgun.

In light of this, and again, viewing the evidence as we must, we

do not find that the trial court was plainly wrong in finding

the evidence sufficient to convict Brown of this offense. 3

     For the reasons set forth above, the judgment of the trial

court is affirmed.

                                                            Affirmed.




     3
       In light of our discussion concerning the operability of
the shotgun, we do not address Brown's argument that the shotgun
used on December 2 was inoperable, therefore barring his
conviction for possession of a firearm on that date.

                              - 9 -
