                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Decker and Russell
              Argued at Richmond, Virginia
UNPUBLISHED




              JOHN DANIEL HOLSINGER
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0743-16-2                                  JUDGE MARLA GRAFF DECKER
                                                                                 MARCH 14, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                                              Leslie M. Osborn, Judge

                               Buddy A. Ward, Public Defender, for appellant.

                               Eugene Murphy, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     John Daniel Holsinger appeals his conviction for unlawfully discharging a firearm within

              an occupied dwelling in violation of Code § 18.2-279. He argues that the evidence was

              insufficient to support his conviction because it did not prove that the life of an occupant of the

              building was placed in peril. For the reasons that follow, we affirm the conviction.

                                                      I. BACKGROUND1

                     On September 8, 2015, the appellant and Jeannie Garner were at their shared residence.

              According to Garner, the appellant had consumed more alcohol than normal that night. The

              appellant became “upset because he couldn’t find his phone charger.” Garner found his charger

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       In reviewing the sufficiency of the evidence supporting a conviction, we consider the
              evidence in the light most favorable to the Commonwealth granting to it all reasonable
              inferences that flow from the evidence. King v. Commonwealth, 264 Va. 576, 578, 570 S.E.2d
              863, 864 (2002). “That principle requires us to ‘discard the evidence of the accused in conflict
              with that of the Commonwealth . . . .’” Blow v. Commonwealth, 52 Va. App. 533, 536, 665
              S.E.2d 254, 255 (2008) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,
              759 (1980)).
and gave it to him, but the appellant was still angry. He removed food from the freezer, threw

the food into the backyard, and shot it with his handgun. The appellant also threw various

packages of food onto the kitchen floor. Garner explained that after making the mess, the

appellant “started . . . trying to clean up.” However, he put the food in the cat’s litter box instead

of the garbage can.

       The appellant then went outside with a trash bag and gathered the food that he had

thrown into the yard and put it in the bag. The appellant put the bag inside the house and went

back outside. Garner sorted through the garbage bag and placed the undamaged food items back

into the freezer. The appellant returned to the kitchen and saw what she was doing. He pulled

the food back out of the freezer, threw it into the backyard, and, while standing on the porch,

shot it again. Garner began to remove the items of food from the litter box.

       Again, the appellant went outside with a trash bag, picked up the food, and came back

into the house. Garner closed the door behind him. The appellant approached the door and

kicked it, in an apparent attempt to open it. Garner stopped cleaning the litter box momentarily

to open the door for him. The appellant dropped the bag he was holding, and while standing in

the open doorway and facing outside, he fired his weapon toward the backyard. Garner

explained that even though the door was “open,” he “shot the window out of the door.” When

the appellant fired the gun, Garner was in the kitchen kneeling at the litter box, “behind and

diagonal” from the appellant and an “[a]rm’s length” from the door. After the appellant fired the

weapon, Garner stood up, went to her bedroom, and called 911.

       A photograph of the door, showing that the bottom of the door was solid and the top

portion included a six-pane glass window, was introduced into evidence at trial. The photo also

showed the shattered glass of the door’s window and a large amount of broken glass on the floor




                                                 -2-
inside the house. Garner testified that when the appellant shot at the door, the glass “just fell like

straight down.”

        Deputy Cody Mull of the Mecklenburg County Sheriff’s Office responded to the 911 call.

He did not find any shell casings in the backyard. The firearm itself was not admitted into

evidence at trial.

        The appellant made a motion to strike the evidence. He argued, in pertinent part, that

Garner was not put in peril by his actions. The appellant contended that the statutory language

defining the offense required that the Commonwealth show that Garner’s life was actually placed

in peril, not that it may have been placed in peril. He alternatively reasoned that even under the

lesser standard, no evidence showed that anyone’s “life might have been put in peril.” The

Commonwealth stressed that the “possibility of putting someone’s life in danger” was a factual

question for the trial court to resolve. The prosecutor also suggested that the evidence was

sufficient to prove the offense because of the appellant’s awareness of Garner’s proximity to him

and due to the inherent possibility of a ricochet.

        The trial court found that the appellant “was highly intoxicated,” “was inside” the

residence, and “shot out through the glass.” The court concluded that the appellant “shot at the

dwelling because the door is part of the dwelling.” It also found that “the possibility that the

bullet might have hit a metal part or solid object in the ceiling and ricocheted” was sufficient to

prove that the appellant discharged the firearm in a manner that endangered Garner’s life. The

court denied the motion to strike and found the appellant guilty of unlawfully discharging a

firearm within an occupied dwelling. He was sentenced to five years in prison, with all time

suspended except for time served.




                                                -3-
                                           II. ANALYSIS

       The appellant argues that the evidence was insufficient to support his conviction for

unlawfully discharging a firearm within an occupied building. He contends that the

Commonwealth failed to prove that his actions endangered Garner, who was inside the residence

at the time that he fired the gun.

       To the extent that this case involves interpretation of Code § 18.2-279, the interpretation

of a statute is a question of law, which we review de novo. L.F. v. Breit, 285 Va. 163, 176, 736

S.E.2d 711, 718 (2013); Ngomondjami v. Commonwealth, 54 Va. App. 310, 319, 678 S.E.2d

281, 286 (2009). However, in reviewing the sufficiency of the evidence, on factual findings we

defer to the trial court unless its findings are “plainly wrong or without evidence to support

[them].” Kelley v. Commonwealth, 289 Va. 463, 468, 771 S.E.2d 672, 674 (2015) (quoting

Code § 8.01-680); Blow v. Commonwealth, 52 Va. App. 533, 538, 665 S.E.2d 254, 256 (2008)

(quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “[W]e

do not ‘substitute our judgment for that of the trier of fact’” on those determinations. Blow, 52

Va. App. at 538-39, 665 S.E.2d at 256 (quoting Wactor v. Commonwealth, 38 Va. App. 375,

380, 564 S.E.2d 160, 162 (2002)). The pivotal question on appellate review of a sufficiency

challenge 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.” Id. at 539, 665 S.E.2d at 256-57 (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)).

       Code § 18.2-279, in pertinent part, prohibits a person from maliciously or unlawfully

               discharg[ing] a firearm within any building when occupied by one
               or more persons in such a manner as to endanger the life or lives
               of such person or persons when occupied by one or more persons,
               or . . . shoot[ing] at, or . . . throw[ing] any missile at or against any
               . . . building when occupied by one or more persons, whereby the
               life or lives of any such person or persons may be put in peril.”
                                                 -4-
(Emphases added). “[T]he offense as defined by the statute is not a specific intent crime; rather,

it is a general intent offense.”2 Fleming v. Commonwealth, 13 Va. App. 349, 354, 412 S.E.2d

180, 183 (1991) (rejecting the argument that the statute required a showing that the shooter

intended to shoot the building).

       “[T]he legislative purpose of the statute is meant to prohibit unlawful conduct, whether

malicious or merely criminally reckless, which has the potential to endanger the lives of persons

inside occupied buildings, without regard to the shooter’s actual motive or intent in unlawfully

discharging a firearm.” Ellis v. Commonwealth, 281 Va. 499, 506, 706 S.E.2d 849, 852 (2011)

(holding that to support a conviction for discharging a firearm “at or against any occupied

building,” the Commonwealth need not establish that the defendant had a specific intent to shoot

a particular building). The Supreme Court of Virginia construed the “statute as a legislative

declaration that human lives may be endangered when a deadly weapon is maliciously

discharged at or against a building occupied by people.” Dowdy v. Commonwealth, 220 Va.

114, 117, 255 S.E.2d 506, 508 (1979) (emphasis added) (holding that to prove the offense of

maliciously discharging a firearm at or against an occupied building, the Commonwealth does

not need to prove that the defendant endangered an occupant’s life). Consequently, the Court

reasoned that “this legislative determination relieves the Commonwealth of the burden of

proving that human life was, in fact, endangered.” Id.

       The appellant contends that the statutory language “whereby the life or lives of any such

person or persons may be put in peril” applies only to someone who discharged a firearm “at” a

building, not to someone who discharged a weapon “within” a building. As a starting point to

the analysis, we look to the language of the statute. The pertinent language of Code § 18.2-279

prohibits a person from unlawfully

       2
         The appellant does not contest that Code § 18.2-279 defines a general intent crime, nor
does he challenge the sufficiency of the evidence to support the element of intent.
                                               -5-
               discharg[ing] a firearm within any building when occupied by one
               or more persons in such a manner as to endanger the life or lives
               of such person or persons . . . or . . . shoot[ing] at, or . . .
               throw[ing] any missile at or against any . . . building when
               occupied by one or more persons, whereby the life or lives of any
               such person or persons may be put in peril.”

(Emphases added). The appellant argues that this language should be read as two separate

clauses. He suggests that the “lives . . . may be put in peril” language applies only to the second

clause which references shooting “at” or “against” an occupied building.3 Id. (emphasis added).

Conversely, the appellant interprets the first clause as prohibiting someone from unlawfully

“discharg[ing] a firearm within any building . . . in such a manner as to [actually] endanger the

life or lives of” the occupants. See Code § 18.2-279. Consequently, he reasons that his

conviction for shooting a firearm within the residence required proof that Garner’s life was

actually placed in peril.

       The Supreme Court of Virginia has made clear, however, that to support a conviction

under Code § 18.2-279, the Commonwealth need not show that the victim was actually put in

peril, harmed, or even that the defendant fired a bullet in an occupant’s direction. Kirby v.

Commonwealth, 264 Va. 440, 445, 570 S.E.2d 832, 835 (2002). The Supreme Court explained

in Kirby, that in the context of a shooting “within” a building, “[a]ll the Commonwealth [is]

required to show [is] that the discharge of the firearm may have put [the victim’s] life in peril.”


       3
          Absent legal authority to the contrary, the statutory interpretation principle of the “rule
of the last antecedent” would appear to support the appellant’s proposition. “Under that rule,
‘[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely
to the last antecedent.’” Newberry Station Homeowners Ass’n v. Bd. of Supers., 285 Va. 604,
615, 740 S.E.2d 548, 554 (2013) (alteration in original) (emphasis added) (quoting Alger v.
Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565-66 (2004)). “An ‘antecedent’ is defined
as a ‘preceding thing,’ or ‘any word or group of words replaced or referred to by a substitute.’”
Scott v. Commonwealth, 292 Va. 380, 383 n.2, 789 S.E.2d 608, 609 n.2 (2016) (first quoting
Black’s Law Dictionary 107 (9th ed. 2009); then quoting Webster’s Third New International
Dictionary 91 (1993)). “The last antecedent is ‘the last word, phrase, or clause that can be made
an antecedent without impairing the meaning of the sentence.’” Newberry Station, 285 Va. at
615, 740 S.E.2d at 554 (quoting Alger, 267 Va. at 259, 590 S.E.2d at 566).
                                                -6-
Id. (emphasis added) (interpreting the same language in Code § 18.2-279 (2000)). Accordingly,

the Supreme Court has already rejected the precise argument advanced by the appellant.

       In Kirby, the Court analyzed Code § 18.2-279 in the context of an unlawful discharge of

a firearm within a dwelling. Id. at 445-46, 570 S.E.2d at 834-35. In that case, the defendant,

while sitting on the bed in a residence, fired two rounds from a .22 caliber pistol into the floor.

Id. at 443, 570 S.E.2d at 833. At the time, the victim sat in view of the defendant on the sofa in

the living room. Id. The record showed that the defendant was intoxicated and angry with the

victim. Id. The Court held that the Commonwealth presented evidence sufficient to show that

the defendant’s actions “may have” placed the victim’s life in peril for purposes of Code

§ 18.2-279. Id. at 445, 570 S.E.2d at 835. Consequently, the Court affirmed the conviction. Id.

at 446, 570 S.E.2d at 835.

       The interpretation of Code § 18.2-279 applied by the Supreme Court in Kirby is binding

on this Court. See generally Anderson v. Commonwealth, 48 Va. App. 704, 712-13, 634 S.E.2d

372, 376 (2006), aff’d, 274 Va. 469, 650 S.E.2d 702 (2007). Kirby is controlling here, and we

do not have the discretion to entertain the appellant’s alternative interpretation of Code

§ 18.2-279.4 As a result, the sole question for this Court to resolve is whether, applying the

proper appellate standard of review, the evidence was sufficient to prove that the appellant’s


       4
          In addition, the appellant’s argument relies on the premise that he shot within the
building and not at the building. He suggests that the shooter’s location, either inside or outside
of the building in question, affects how Code § 18.2-279 applies. However, this Court
previously concluded that the shooter’s location is irrelevant to the application of Code
§ 18.2-279. King v. Commonwealth, 40 Va. App. 193, 199, 578 S.E.2d 803, 806 (2003) (noting
that “Code § 18.2-279 does not specify where the shooter must be located in relation to the
occupied dwelling, and we can discern no legislative directive implicating such a limitation).
Further, the trial court specifically found that although the appellant was “within” the house, he
shot “at” it. The appellant does not challenge this factual finding on appeal. See Rule
5A:12(c)(1)(i) (providing that this Court is limited to reviewing the assignments of error
presented by the litigant). Therefore, even under the appellant’s proposed interpretation of Code
§ 18.2-279, since he shot “at” the house, albeit from within, the Commonwealth needed to prove
only that the shooting “may” have put Garner’s life in peril.
                                                  -7-
discharge of his handgun within the house “may have” put Garner’s “life in peril.” See Kirby,

264 Va. at 445, 570 S.E.2d at 835.

       Here, the evidence proved that Garner was in very close proximity to the appellant and

the door when he fired the weapon inside the residence. As in Kirby, the possibility that the

bullet could have hit a solid object—such as the solid portion of the door, the frame, or the

exterior porch— and ricocheted provided the trial court with sufficient evidence to conclude that

the appellant’s discharge of the firearm within the confined area and in close proximity to Garner

may have placed her life in peril. See id.; Strickland v. Commonwealth, 16 Va. App. 180, 182,

428 S.E.2d 507, 508 (1993) (holding that, without reference to specific evidence on the

possibility of ricochet or the type of gun, the “sho[oting of a] gun into the ceiling while in close

proximity to seventy-five persons within a confined space . . . constituted a reckless act that

endangered lives”). In addition, the fact that the appellant was irrational and angry supported the

finding that his discharge of the firearm may have imperiled Garner’s life. See Kirby, 264 Va. at

443, 570 S.E.2d at 833 (noting the defendant’s anger). Finally, the trial court was entitled to take

into consideration the appellant’s intoxicated state at the time that he fired the weapon at the

door. See, e.g., Stevens v. Commonwealth, 272 Va. 481, 488, 634 S.E.2d 305, 310 (2006)

(considering the defendant’s high level of intoxication in affirming the jury’s finding that his

conduct was “gross, wanton, and culpable” in running a red light and crashing into another

vehicle in the intersection).

       Based on the totality of the circumstances, the trial court was not plainly wrong in

concluding that the appellant’s discharge of the handgun may have placed Garner’s life in peril.

The judge could reasonably conclude that the appellant’s firing of his weapon through the

kitchen door could have endangered Garner’s life in light of his irrational, angry, and intoxicated

state combined with his extremely close proximity to her at the time that he discharged the

                                                -8-
deadly weapon. Based on the record before us, the evidence was sufficient to support the

appellant’s conviction.

                                       III. CONCLUSION

       The circumstances existing at the time that the appellant discharged his weapon through

the kitchen door support the trial court’s finding that his actions may have placed Garner’s life in

peril. The evidence was sufficient to prove the offense. Consequently, we affirm the judgment

of the trial court. We remand the case solely for correction of a clerical error in the sentencing

order, which incorrectly states that the conviction was for unlawful wounding rather than

unlawful discharge of a firearm. Code § 8.01-428(B); see, e.g., Howell v. Commonwealth, 274

Va. 737, 742, 652 S.E.2d 107, 109 (2007).

                                                                            Affirmed and remanded.




                                                -9-
