Aaron Markeith Gerald v. Commonwealth of Virginia , 68 Va. App. 167 ( 2017 )


Menu:
  •                                            COURT OF APPEALS OF VIRGINIA
    PUBLISHED
    Present: Judges Humphreys, Decker and Russell
    Argued at Virginia Beach, Virginia
    AARON MARKEITH GERALD
    OPINION BY
    v.     Record No. 0731-16-1                                   JUDGE ROBERT J. HUMPHREYS
    OCTOBER 17, 2017
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
    A. Bonwill Shockley, Judge1
    Harry Dennis Harmon, Jr., for appellant.
    Stephen L. Forster, Assistant Attorney General (Mark R. Herring,
    Attorney General, on brief), for appellee.
    Aaron Markeith Gerald (“Gerald”) appeals the decision by the Circuit Court of Virginia
    Beach (“circuit court”) convicting him of discharging a firearm in public under Code § 18.2‑280,
    brandishing a firearm under Code § 18.2‑282, possession of a firearm by a convicted felon in
    violation of Code § 18.2‑308.2, and revoking a previously suspended sentence based on those
    convictions.2 Gerald contends that the evidence was insufficient to prove that the object in
    question was a “firearm” as defined by law.
    1
    Judge Leslie L. Lilley presided over the jury trial on July 15, 2014.
    2
    While the record is something less than a model of clarity, it appears that this appeal
    consolidates assignments of error relating to his conviction by a jury on July 15, 2014 of
    possession of a firearm by a convicted felon and his conviction in a bench trial on November 5,
    2014 for the remaining charges and the probation violation, all of which arise out of the same
    incident.
    I. BACKGROUND
    On May 28, 2013, James Goode (“Goode”) dropped off his seventeen-year-old son
    Michael Ramel Goode (“Ramel”) at Scarborough Square, a neighborhood in Virginia Beach, for
    a visit with Ramel’s friend Xavier Browder (“Browder”). Looking back as he drove away,
    Goode saw that Ramel was “slap boxing” in the middle of the street with an adult, Calvin Scott
    (“Scott”). Goode returned to Ramel, stopped his vehicle in the street, and got out. Goode began
    talking with Scott in an attempt to end the altercation, while ushering Ramel and Browder into
    his vehicle. A gunshot interrupted Goode and Scott’s conversation. Turning toward the noise,
    Goode saw Gerald, a convicted felon, walking toward him. Gerald, continuing his advance, fired
    a second gunshot. Gerald then pointed the gun directly at Goode while he walked to the
    passenger side of Goode’s vehicle where Ramel was sitting. Gerald pressed the gun into
    Ramel’s thigh and grabbed Ramel’s legs, attempting to pull him out of the vehicle. Goode began
    pulling on Ramel’s arms through the vehicle from the driver’s side. Goode testified he was able
    to free Ramel from Gerald’s grasp, at which point Gerald fired a third shot into the pavement.
    Simultaneously, Detective John Belsha, working in an undercover capacity, drove by the
    scene while investigating another matter. As he passed Goode’s vehicle, Belsha observed an
    argument between the occupants of the vehicle and a man standing outside the vehicle.
    Detective Belsha parked approximately one hundred and fifty feet past Goode’s vehicle to
    observe. Belsha watched as the physical altercations developed and, as Gerald was pulling
    Ramel from the vehicle, Belsha observed “a large frame handgun” in Gerald’s hand. Belsha saw
    that Gerald “point[ed] [the handgun] up, discharge[d] one round, brought the handgun back
    down, looked at it, and then discharged another round towards the ground.” Detective Belsha
    testified that, based on his training and experience, such a handgun was “capable of expelling a
    projectile by the means of explosion.” Gerald and Scott left the scene of the altercation and
    -2-
    entered a nearby townhouse where Shaniqua Rowe (“Rowe”), Gerald’s girlfriend and Scott’s
    sister, resided.
    Detective Belsha called for a marked police unit to respond. When the second police unit
    arrived, Gerald, Scott, and the other occupants were ordered out of the house. Once Gerald was
    in custody, an inspection of the street where the altercation occurred produced two shell casings
    and bullet fragments in the area where Gerald was standing. The forensic scientist who analyzed
    the casings testified that they were both fired from the same gun. It was at least thirty minutes
    before consent to search the townhouse was obtained. During that time, the back door was
    unsecured and police saw Rowe go into a neighbor’s townhouse twice. When the townhouse
    was eventually searched, no firearm was recovered.
    Gerald was convicted by a jury of possession of a firearm by a convicted felon and
    sentenced to five years in the Virginia State Penitentiary. Gerald was also convicted in a bench
    trial of discharging a firearm in public and brandishing a firearm, and sentenced to twelve
    months in jail for each offense and, as a result of these convictions, was also found to be in
    violation of the terms of his probation.
    II. ANALYSIS
    A. Standard of Review
    Because all of Gerald’s assignments of error relate to the sufficiency of the evidence to
    establish that the item at the center of his various convictions and probation revocation was a
    “firearm” and because the outcome of all of the assignments of error turn on the statutory
    definition of that term, we consolidate our analysis of his assignments of error to that dispositive
    issue.
    When the sufficiency of the evidence is challenged on appeal, this Court “must affirm the
    conviction unless it is plainly wrong or without evidence to support it.” Spencer v. City of
    -3-
    Norfolk, 
    271 Va. 460
    , 463, 
    628 S.E.2d 356
    , 358 (2006) (citing Commonwealth v. Presley, 
    256 Va. 465
    , 466, 
    507 S.E.2d 72
    , 72 (1998)). This Court must examine the evidence “in the light
    most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
    therefrom.” Crest v. Commonwealth, 
    40 Va. App. 165
    , 168, 
    578 S.E.2d 88
    , 89 (2003) (citing
    Juares v. Commonwealth, 
    26 Va. App. 154
    , 156, 
    493 S.E.2d 677
    , 678 (1997)).
    However, whether a statute has been correctly construed is a “question of law which we
    review de novo upon appeal.” Farrakhan v. Commonwealth, 
    273 Va. 177
    , 180, 
    639 S.E.2d 227
    ,
    229 (2007) (citing Dowling v. Rowan, 
    270 Va. 510
    , 519, 
    621 S.E.2d 397
    , 401 (2005)). “The
    primary objective of statutory construction is to ascertain and give effect to legislative intent.”
    Lawlor v. Commonwealth, 
    285 Va. 187
    , 236, 
    738 S.E.2d 847
    , 875 (2013) (quoting Conger v.
    Barrett, 
    280 Va. 627
    , 630-31, 
    702 S.E.2d 117
    , 118 (2010)). “In interpreting [a] statute, ‘courts
    apply the plain meaning . . . unless the terms are ambiguous or applying the plain language
    would lead to an absurd result.’” Baker v. Commonwealth, 
    284 Va. 572
    , 576, 
    733 S.E.2d 642
    ,
    644 (2012) (quoting Boynton v. Kilgore, 
    271 Va. 220
    , 227, 
    623 S.E.2d 922
    , 926 (2006)). “A
    statute is considered ambiguous ‘if the text can be understood in more than one way or . . . lacks
    clearness or definiteness.’” 
    Id.
     If the term is ambiguous, the court looks to the gravamen of the
    offense to determine legislative intent. Id. at 576, 733 S.E.2d at 644-45 (citations omitted).
    Further, when criminal statutes are at issue they “must be construed strictly against the
    Commonwealth and in favor of the accused.” Jones v. Commonwealth, 
    16 Va. App. 354
    , 356,
    
    429 S.E.2d 615
    , 616 (1993) (citing Johnson v. Commonwealth, 
    211 Va. 815
    , 819, 
    180 S.E.2d 661
    , 664 (1971)).
    B. Definition of Firearm for Purposes of Brandishing: Code § 18.2‑282
    Code § 18.2‑282 twice describes what is considered a firearm for brandishing purposes.
    First, generally proscribing pointing, holding, or brandishing “any firearm or any air or gas
    -4-
    operated weapon or any object similar in appearance, whether capable of being fired or not, in
    such manner as to reasonably induce fear in the mind of another.” Code § 18.2‑282(A)
    (emphasis added). Second, it defines a firearm as “any weapon that will or is designed to or may
    readily be converted to expel single or multiple projectiles by the action of an explosion of a
    combustible material.” Code § 18.2‑282(C).
    Gerald argues that the object described as a gun by both Goode and Detective Belsha
    merely had the appearance of a firearm. However, given the plain language of Code
    § 18.2‑282(A) quoted above, this argument erroneously addresses the sufficiency analysis
    regarding the brandishing offense. Moreover, the evidence taken in the light most favorable to
    the Commonwealth shows that Gerald pointed this object at multiple individuals in a manner
    intended to induce fear based upon its appearance as a weapon apparently capable of firing one
    or more times. His actions in doing so are legally sufficient to establish the requisite elements of
    brandishing a firearm. Furthermore, in the context of the brandishing offense, the fact that he
    also actually fired the gun several times merely confirms and corroborates the testimony of
    Goode and Detective Belsha that the gun was what it appeared to be, and Gerald’s actions
    asserted it was – a firearm – thereby satisfying the statutory description and definition.
    C. Definition of Firearm for Purposes of Discharging: Code § 18.2‑280
    Unlike the brandishing statute, Code § 18.2‑280, banning the willful discharge of a
    firearm in public, does not contain its own statutory definition of “firearm.” Gerald’s argument
    requires that we determine that definition as a matter of first impression. Because no express
    definition is provided within Code § 18.2‑280, and both the General Assembly and the courts
    have defined firearm differently in different contexts within the Code, we assume without
    deciding that the term “firearm” in Code § 18.2‑280 is ambiguous. In attempting to discern the
    intent of the General Assembly, courts turn to related statutes “reading them in pari materia with
    -5-
    the statute under consideration, in order to give consistent meaning to the language used by the
    General Assembly.” Armstrong v. Commonwealth, 
    263 Va. 573
    , 583, 
    562 S.E.2d 139
    , 145
    (2002). Further, “[i]t is a common canon of statutory construction that when the legislature uses
    the same term in separate statutes, that term has the same meaning in each unless the General
    Assembly indicates to the contrary.” Barson v. Commonwealth, 
    284 Va. 67
    , 74, 
    726 S.E.2d 292
    ,
    296 (2012) (quoting Jenkins v. Mehra, 
    281 Va. 37
    , 48, 
    704 S.E.2d 577
    , 583 (2011)). Our
    Supreme Court adopted this reasoning in Armstrong in defining “firearm” for Code § 18.2‑308.2,
    one of Gerald’s convictions at issue here, as “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
    . The Commonwealth argues that we should simply graft the definition of “firearm”
    provided by the Supreme Court in Armstrong to that term as it is used in Code § 18.2‑280.
    In considering the Commonwealth’s argument, we note that, because of the specific
    nature of the offense, the Supreme Court in Armstrong explicitly rejected other, broader
    definitions encompassing any “element of perception by a victim.” Id. at 583, 
    562 S.E.2d at 144
    .
    This narrow definition was expressly limited by the Supreme Court to prosecutions for
    Code § 18.2‑308.2. Second, the definition of a “firearm” in Armstrong contrasts with that
    provided in Code § 18.2‑282(A) discussed above, where the functionality of the weapon is
    incidental to the effect the appearance as a firearm produces in a victim, the gravamen of the
    offense established by the General Assembly. Code § 18.2‑280(A) contemplates the actual
    discharge of a firearm “in any street in a city or town, or in any place of public business or place
    of public gathering . . . . ” Thus, unlike Code § 18.2‑282 discussed above, the gravamen of
    Code § 18.2‑280 is not narrowly limited to the effect of that discharge on an observer. Rather it
    also includes the physical danger the discharge of a firearm in such a place would pose to the
    general public. It is axiomatic that an object with the mere appearance of a firearm cannot be
    -6-
    discharged, and including such objects in the definition would impermissibly expand the statute.
    See Turner v. Commonwealth, 
    226 Va. 456
    , 459, 
    309 S.E.2d 337
    , 338 (1983) (explaining that
    penal statutes must be “limited in application to cases falling clearly within the language of the
    statute”). Given our duty to read statutes in pari materia, we note that both Code § 18.2‑280 and
    Code § 18.2‑282 are contained in Article 4 of Chapter 7 of Title 18.2 of the Code entitled
    “Dangerous Use Of Firearms and Other Weapons” and that the definition of “firearm” in
    Code § 18.2‑282(C) clearly serves the intended purpose of Code § 18.2‑280. This definition also
    serves the interest of giving consistent meaning to the language used by the General Assembly in
    similar statutes. We therefore conclude that the definition of firearm the legislature provided in
    Code § 18.2‑282(C); “any weapon that will or is designed to or may readily be converted to
    expel single or multiple projectiles by the action of an explosion of a combustible material” is the
    appropriate definition of “firearm” for the purposes of Code § 18.2‑280.
    D. Sufficiency of the Evidence
    However, no reasonable definition with respect to any of the offenses here, provides
    relief for Gerald. He cites Jordan v. Commonwealth, 
    286 Va. 153
    , 
    747 S.E.2d 799
     (2013), in
    support of his argument that the evidence here is insufficient to show that the object he displayed
    and used was a firearm. No firearm was recovered in Jordan, but the victim was able to give a
    detailed description of the gun involved, identifying make and caliber. Gerald argues that the
    lack of such specific identifying qualities in evidence differentiates this case from Jordan and
    renders the evidence here insufficient. In doing so, Gerald ignores a glaring contrast with
    Jordan; the gun in Jordan was never fired. There is no need to determine make, model, and
    caliber when the law requires a weapon designed to “expel single or multiple projectiles” and
    Gerald demonstrates that capability in front of multiple witnesses, one of whom is an
    experienced law enforcement officer. Notwithstanding the failure to recover the weapon, it is
    -7-
    difficult to conceive of what more a forensic report from a ballistics examiner could provide
    regarding the nature of the object Gerald displayed and discharged as a firearm than the
    testimony in the record before us supplies.
    The capability of the weapon to fire was relevant in Jordan, but given that Code
    § 18.2‑280 requires a discharge, and the evidence here is that such discharge occurred multiple
    times, the evidence taken in the light most favorable to the Commonwealth unquestionably
    shows that Gerald discharged a firearm in a public place.
    III. CONCLUSION
    For the foregoing reasons, we find that the trial court did not err in its conclusion that the
    evidence was sufficient to support Gerald’s convictions pursuant to Code § 18.2‑308.2,
    Code § 18.2‑282, and Code § 18.2‑280 and, therefore, these convictions support Gerald’s
    probation violation and the revocation of his previously suspended sentence. Accordingly, the
    judgment of the circuit court is affirmed.
    Affirmed.
    -8-