                              COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia


DAMON PHINEAS JORDAN
                                                                     OPINION BY
v.       Record No. 0307-11-1                                 JUDGE ROBERT J. HUMPHREYS
                                                                    AUGUST 28, 2012
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                               Stephen C. Mahan, Judge

                Anton A. Karpov, Assistant Public Defender (Office of the Public
                Defender, on brief), for appellant.

                John W. Blanton, Assistant Attorney General (Kenneth T.
                Cuccinelli, II, Attorney General; Office of the Attorney General,
                on brief), for appellee.


         Damon Phineas Jordan (Jordan) challenges his conviction following a jury trial for

possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. 1 Jordan argues

the evidence is insufficient to support a finding that the instrument he possessed was a “firearm”

within the meaning of Code § 18.2-308.2. Because the evidence is sufficient to support Jordan’s

conviction for possession of a firearm by a convicted felon, we affirm the judgment of the trial

court.




         1
         Appellant’s convictions of carjacking, use of a firearm in the commission of a felony,
and eluding police are not before us on this appeal.
                                                 I.

                                         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) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence establishes that on the evening

of June 28, 2009, thirteen-year-old Matthew Arrowood drove his father to a 7-Eleven and parked

in front of the store. His father exited the vehicle and entered the store, at which time Jordan

approached the driver’s side window of the truck and began asking Arrowood questions. When

Arrowood refused to respond, Jordan pointed an object appearing to be a firearm at Arrowood’s

temple, ordered Arrowood out of the truck, entered the vehicle, and drove away. Arrowood gave

the police a description of Jordan and identified him as the assailant when the police arrested

him. When the police apprehended Jordan, they did not recover a firearm or any object

resembling a firearm.

       At Jordan’s trial, Arrowood testified that the incident lasted between thirty to sixty

seconds, Jordan was six inches to a foot away, and Arrowood had five seconds to look at the gun

through the mirror as Jordan approached. Arrowood testified as follows on direct examination:

               [Arrowood:]            [Jordan] pointed a gun at me and told me to
                                      get out of the truck.

               [Commonwealth:]        Could you describe the gun that he pointed
                                      at you?

               [Arrowood:]            Like a small pistol. It was silver.

Arrowood also testified on direct and redirect examination that he was familiar with guns and

had fired handguns before and that the instrument Jordan pointed at his head looked to him like a

“semi-automatic pistol,” possibly a “Raven.” After Jordan pointed the gun at Arrowood’s head,

                                                -2-
he said, “Get out of the truck.” Arrowood acknowledged that he exited the truck and fled

because Jordan was pointing a “Raven semiautomatic” pistol at him. When asked by the

Commonwealth on redirect examination whether the instrument “look[ed] like a toy gun,”

Arrowood responded, “A really detailed toy gun if it was.”

       The Commonwealth entered into evidence without objection a certified copy of a prior

felony conviction for Jordan. Jordan moved to strike the evidence on the firearm charge, which

motion the trial court denied. At the conclusion of all the evidence, the jury found Jordan guilty

of possession of a firearm by a convicted felon. This appeal follows.

                                                  II.

                                            ANALYSIS

        “When considering a challenge to the sufficiency of the evidence to sustain a conviction,

[an appellate court] reviews ‘the evidence in the light most favorable to the prevailing party at

trial and consider[s] all inferences fairly deducible from that evidence.’” Clark v.

Commonwealth, 279 Va. 636, 640, 691 S.E.2d 786, 788 (2010) (quoting Jones v.

Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008)). Where there is a conflict in the

evidence, this standard of review requires us to resolve that conflict in favor of the

Commonwealth, Rodgers v. Commonwealth, 227 Va. 605, 614, 318 S.E.2d 298, 303 (1984), and

we “will not set aside the factual findings of the trial court unless those findings are ‘plainly

wrong or without supporting evidence,’” Williams v. Commonwealth, 52 Va. App. 194, 197, 662

S.E.2d 627, 628-29 (2008) (quoting Foster v. Commonwealth, 38 Va. App. 549, 554, 567 S.E.2d

547, 549 (2002)). Further, the jury, “who has the opportunity to see and hear the witnesses, has

the sole responsibility to determine their credibility, the weight to be given their testimony, and

the inferences to be drawn from proven facts.” Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998).

                                                 -3-
       Code § 18.2-308.2(A) prohibits a convicted felon from “knowingly and intentionally

possess[ing] or transport[ing] any firearm or ammunition for a firearm.” For the purposes of

Code § 18.2-308.2, a firearm must be “an instrument which was designed, made, and intended to

expel a projectile by means of an explosion.” Armstrong v. Commonwealth, 263 Va. 573, 584,

562 S.E.2d 139, 145 (2002). “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.’” Id.

       Taking the evidence in the light most favorable to the Commonwealth, the fact found by

the jury is that what Jordan pointed at Arrowood was a firearm as defined by Armstrong and this

fact is supported by evidence in the record. The jury was properly instructed on the law and

obviously credited Arrowood’s testimony that supports the fact that what Jordan possessed and

used in a carjacking was a firearm.

       Furthermore, Arrowood’s testimony that he was familiar with firearms and recognized

the object Jordan possessed as such is not the only evidence that what Jordan displayed was a

firearm designed to expel a projectile. This Court reviews “the totality of the evidence to

determine whether it was sufficient to prove an offense.” Bowling v. Commonwealth, 51

Va. App. 102, 107, 654 S.E.2d 354, 356 (2007). Arrowood’s testimony describing the gun in

some detail was corroborated by, and must be coupled with, Jordan’s actions in pointing it at

Arrowood’s head while concurrently demanding that he get out of the truck. The jury could

have fairly drawn an entirely reasonable inference from this evidence that the object Jordan held

that appeared to be a firearm functioned as such. See Sullivan v. Commonwealth, 280 Va. 672,

676, 701 S.E.2d 61, 63-64 (2010) (An appellate court’s deference to the fact-finder “applies not

only to findings of fact, but also to any reasonable and justified inferences the fact-finder may

have drawn from the facts proved.”).




                                                -4-
        In Redd v. Commonwealth, 29 Va. App. 256, 259, 511 S.E.2d 436, 438 (1999), the

defendant’s implied assertion that the object functioned as a weapon corroborated the victim’s

description that the object was a gun and this evidence was sufficient to support a conviction for

possession of a firearm by a convicted felon. In Redd, the appellant entered a convenience store,

placed a “long black gun” on the counter, and ordered the clerk to give her all the money from

the register. Id. at 258, 511 S.E.2d at 437. Redd added that she would kill the clerk if she set off

the alarm and told her not to call the police. Id. The clerk’s only testimony about the instrument

displayed was, “‘I just know it was a long black gun. I am not familiar with guns.’” Id. There is

no substantial difference between the evidence found sufficient in Redd and that reflected in this

record. While Redd involved the appellant’s express statement that she would kill the victim if

she set off the alarm, id., Redd does not stand for the proposition that evidence that an object is

an operable firearm cannot be established by the totality of the evidence, including circumstantial

evidence.

       The issue before us is whether what Jordan, concededly a convicted felon, “possessed”

was, in fact, a firearm designed to operate as such, and the manner of “display” in this case is

highly probative on that point. Jordan did not casually wave the instrument around in the air

without purpose, but rather pointed it directly at Arrowood’s head and concurrently demanded

that he part with possession of the vehicle. Even without actually saying the words, “or I will

shoot you,” a reasonable fact-finder could have certainly concluded that Jordan’s words and

actions implied as much and that what he pointed at Arrowood was a firearm and not a replica or

a toy as suggested by the dissent. The totality of the evidence in the light most favorable to the

Commonwealth as the party that prevailed below is that what Arrowood recognized as a “small,”

“silver,” “semi-automatic pistol,” “possibly a Raven” was pointed at his temple and when

coupled with Jordan’s words and actions supported Arrowood’s conclusion that a gun and not a

                                                -5-
toy was pointed at his head. These facts provide ample evidence to support the jury’s verdict.

We hold that the evidence was sufficient for the jury to conclude that the object Jordan displayed

was intended to expel a projectile by means of an explosion, and we affirm the judgment in this

case.

                                                                                        Affirmed.




                                               -6-
Elder, J., dissenting.

        The majority holds Jordan’s act of pointing an object appearing to be a firearm at

Matthew Arrowood’s head is sufficient evidence to support the jury’s finding that the object

“was designed, made, and intended to expel a projectile by means of explosion.” Armstrong v.

Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002). Because I believe this ruling

effectively nullifies the distinction the Supreme Court has drawn between the definition of a

firearm under Code § 18.2-53.1 (which prohibits the use or display of a firearm in the

commission of certain specific felonies) and the definition of a firearm under Code § 18.2-308.2

(which prohibits convicted felons from “knowingly and intentionally possess[ing] or

transport[ing] any firearm or ammunition for a firearm”), I respectfully dissent.

        “[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.” Armstrong, 263 Va. at 584, 562 S.E.2d at 145. This differs from the definition

of a “firearm” for purposes of Code § 18.2-53.1. As the Supreme Court has explained, “[t]he

purpose of Code § 18.2-53.1 . . . is to deter violent criminal conduct.” Holloman v.

Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980). That Code section “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.” Id. (emphasis added). A victim can be put in fear

of physical harm “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.” Id. Thus, a “firearm” for purposes of Code § 18.2-53.1 includes “an instrument

which [gives] the appearance of having a firing capability, whether or not the object actually

ha[s] the capacity to propel a bullet by the force of gunpowder.” Id. at 199, 269 S.E.2d at 358

                                                -7-
(emphasis added); see Thomas v. Commonwealth, 25 Va. App. 681, 687, 492 S.E.2d 460, 463

(1997) (holding that the BB pistol used by the defendant to commit a robbery was a “firearm”

under Code § 18.2-53.1 because the evidence supported the conclusion that it was an instrument

that gave the appearance of having a firing capability and not merely a “toy pistol”). “Code

§ 18.2-53.1 encompasses a broader definition” of a firearm to “include[] any instrument that

‘gives the appearance of being a firearm.’” Startin v. Commonwealth, 281 Va. 374, 382, 706

S.E.2d 873, 878 (2011) (quoting Armstrong, 263 Va. at 582, 562 S.E.2d at 144).

       By contrast, “[t]he definition is more narrowly construed under the possession statute,

Code § 18.2-308.2.” Id. at 381, 706 S.E.2d at 878. A firearm for purposes of Code § 18.2-308.2

must be “an instrument which was designed, made, and intended to expel a projectile by means

of an explosion.” Armstrong, 263 Va. at 584, 562 S.E.2d at 145. Indeed, “the conduct

proscribed by Code § 18.2-308.2, being a felon in possession of a firearm, focuses on the

General Assembly’s determination that certain individuals - felons - are unfit to possess firearms,

even for lawful purposes.” Id. at 582, 562 S.E.2d at 144. “[T]he legislative intent underlying

Code § 18.2-308.2 is not directed toward proscribing ‘criminal conduct that produces fear of

physical harm’ to an individual victim.” Id. at 582-83, 562 S.E.2d at 144 (quoting Holloman,

221 Va. at 198, 269 S.E.2d at 358).

       With these principles in mind, I believe the majority places too much emphasis on

Arrowood’s testimony describing the instrument Jordan used while ordering him out of the

vehicle. Although Arrowood was able to identify the model of the “firearm” and gave a detailed

description of the instrument, no other account of this object exists in the record. Therefore, the

record contains, at most, evidence that the object used during the commission of the crimes

appeared to have firing capability. As the Supreme Court has made very clear, Code

§ 18.2-308.2 “has no element of perception by a victim that would warrant applying the same

                                                -8-
broad construction to the term ‘firearm’ in that statute as is applicable to the same term in Code

§ 18.2-53.1.” Id. at 583, 562 S.E.2d at 144. By focusing on Arrowood’s detailed observation of

the instrument, the majority ignores the reasonable hypothesis that Jordan used a replica that

lacked the capability to expel a projectile. 2

        In addition, the majority looks to Jordan’s “manner of ‘display’” of the object as “highly

probative” evidence that the instrument in Jordan’s possession had the capability to expel a

projectile by means of an explosion. I concur that in some circumstances, the record can

sufficiently support a conviction under Code § 18.2-308.2 if additional circumstantial evidence

corroborates an eyewitness description of an instrument as an object appearing to be designed,

made, and intended to expel a projectile by means of an explosion. See Taylor v.

Commonwealth, 33 Va. App. 735, 737, 536 S.E.2d 922, 922-23 (2000) (relying on


        2
          In Startin, the defendant displayed a “replica [that] ha[d] the same size, weight and
shape of an operational firearm designed to expel .45 caliber ammunition by explosion” during
the commission of a robbery. 281 Va. at 377, 706 S.E.2d at 876. Although the replica was
sufficient to support the defendant’s conviction under Code § 18.2-53.1, the Supreme Court
noted that “the replica at issue here . . . would be [in]sufficient to convict a person under Code
§ 18.2-308.2 for possession of a firearm by a convicted felon because [it was] not ‘designed,
made, and intended to fire or expel a projectile by means of an explosion.’” Id. at 382, 706
S.E.2d at 878 (quoting Armstrong, 263 Va. at 583, 562 S.E.2d at 145).
        Similarly in Copeland v. Commonwealth, 52 Va. App. 529, 664 S.E.2d 528 (2008), the
defendant was convicted under Code § 18.2-308.2(A). However, a certificate of analysis was
issued after the defendant’s conviction became final that proved beyond a doubt that the
instrument did not meet the definition of a “firearm” under that subsection because it was not
designed, made, and intended to expel a projectile by means of an explosion. Id. at 531, 664
S.E.2d at 529. We therefore granted the defendant’s petition for writ of actual innocence and
vacated his conviction.
        The common thread between these two cases underscores my qualm with the majority’s
holding. No matter how certain the outward description of the instrument, the Commonwealth
must still provide additional evidence that supports a finding that the instrument was in fact
designed, made, and intended to expel a projectile by means of an explosion. The fact that an
object appearing to be a firearm is brandished to effectuate a robbery does not exclude the
reasonable hypothesis that the object was not designed and made as an operable firearm. Accord
Lynn Considine Cobb, Annotation, Robbery by Means of Toy or Simulated Gun or Pistol, 81
A.L.R. 3d 1006 (2012).


                                                 -9-
circumstantial evidence to “prove whether a particular firearm functions” in the context of

possession of a firearm while in possession of certain contraband in violation of Code

§ 18.2-308.4). Such circumstantial evidence may include “the trial court’s examination of the

gun, ammunition magazine, and bullets at trial,” Jones v. Commonwealth, 277 Va. 171, 182, 670

S.E.2d 727, 734 (2009); the observations of the officers who seized the firearm and determined

that it was loaded, see id. at 175, 670 S.E.2d at 729; and the defendant’s “implied assertion that

the object was a functioning weapon,” Redd v. Commonwealth, 29 Va. App. 256, 259, 511

S.E.2d 436, 438 (1999).

       In Redd, the defendant, a previously convicted felon, entered a convenience store and

placed a “long, black gun” on the counter. 29 Va. App. at 258, 511 S.E.2d at 437. She ordered

the store clerk to give her all the money from the register and warned the clerk that she “would

kill her if she set off the silent alarm.” Id. We held that the testimony of a victim that a

convicted felon brandished a firearm is insufficient, standing alone, to support a conviction for

violating Code § 18.2-308.2. However, we also held that the defendant’s threat to kill the clerk

constituted an implied assertion that the object was a functioning weapon in the absence of

evidence to the contrary. Id. at 259, 511 S.E.2d at 438.

       Similarly in Taylor, the defendant was conversing with an undercover police officer

while conducting a drug transaction. During the transaction, the defendant told the officer about

a state trooper having stopped him when he was “dirty” and “had a couple of thousands [sic] of

dollars . . . [and] a 38 in his pocket.” Taylor, 33 Va. App. at 737, 536 S.E.2d at 922. As the

defendant mentioned the .38, he raised his shirt, and the undercover officer saw the “silver part

of what appeared to be a firearm” tucked in his waistband. Id. We held that “[g]iven the context

of the events, a reasonable person could infer the gun was real” because “[i]t would be

unreasonable to conclude in this situation the defendant talked about, carried, and displayed

                                                - 10 -
something that looked like a gun but could not function as one.” 3 Id. at 738-39, 536 S.E.2d at

923.

       The majority extends Redd and Taylor to hold that the act of displaying an apparent

firearm constitutes an “implied assertion” sufficient to prove that the object was “an instrument

. . . designed, made, and intended to expel a projectile by means of an explosion.” Armstrong,

263 Va. at 584, 562 S.E.2d at 145. What the majority fails to consider is that pointing an object

at a victim in a threatening manner may be intended solely to instill fear in a victim just as much

as it is an expression of the object’s operability as a firearm. Unlike the defendant in Redd,

Jordan made no direct threat to harm or kill Arrowood if he failed to comply with Jordan’s

demand to get out of the vehicle. 4 And unlike the defendant in Taylor, Jordan did not make

additional statements or engage in additional actions implying that his apparent firearm

functioned as one. I believe the majority makes the logical progression that pointing an object

directly at a victim’s head has the same effect as saying the words, “or I will shoot you,” but it is

a step too far. The evidence does not exclude the reasonable hypothesis of innocence that Jordan

merely brandished an object appearing to be a functioning weapon. It is axiomatic that when the

Commonwealth relies on circumstantial evidence, “all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of

innocence.” Cordon v. Commonwealth, 280 Va. 691, 694, 701 S.E.2d 803, 805 (2010).



       3
        The link between drug transactions and firearms is well recognized. See, e.g., Bolden v.
Commonwealth, 275 Va. 144, 654 S.E.2d 584 (2008); McCain v. Commonwealth, 261 Va. 483,
545 S.E.2d 541 (2001); Scott v. Commonwealth, 55 Va. App. 166, 684 S.E.2d 833 (2009).
       4
         I recognize that the Supreme Court in Armstrong did not overrule our decision in Redd,
and, thus, that Redd remains binding precedent. However, when viewed in light of the Supreme
Court’s discussion of the differing policy objectives of Code §§ 18.2-53.1 and 18.2-308.2, I
believe Redd defines the outer limit of what kind of circumstantial evidence is sufficient to
support a finding that the object used was a “firearm” under Code § 18.2-308.2.

                                                - 11 -
       The majority’s holding that the testimony in this case is sufficient to prove the object in

Jordan’s possession during the carjacking was designed to expel a projectile for purposes of

Code § 18.2-308.2 effectively nullifies the distinction the Supreme Court has drawn between the

definition of a firearm under Code § 18.2-53.1 and the definition of a firearm under Code

§ 18.2-308.2. Evidence that demonstrates merely that an object appeared to observers to be an

operable firearm shows nothing more than that the object meets the broad definition of a firearm

under Code § 18.2-53.1. Consequently, I believe the evidence fails to show that the object meets

the narrower definition of a firearm under Code § 18.2-308.2.




                                               - 12 -
