Jordan v. Commonwealth ( 2013 )

PRESENT: All the Justices
DAMON PHINEAS JORDAN
OPINION BY
v. Record No. 121835 JUSTICE DONALD W. LEMONS
September 12, 2013
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals of
Virginia ("Court of Appeals") erred in holding that the evidence
was sufficient to support the conviction of Damon Phineas Jordan
("Jordan") for possession of a firearm by a convicted felon in
violation of Code § 18.2-308.2.
I. Facts and Proceedings
Jordan was tried by a jury in the Circuit Court of the City
of Virginia Beach ("trial court") upon indictments charging
carjacking, use of a firearm in the commission of a felony,
eluding police, and possession of a firearm by a convicted
felon. At trial, Matthew Arrowood ("Arrowood") testified that
he drove his father to a neighborhood convenience store in
Virginia Beach at approximately 11:00 p.m. on June 28, 2009, and
parked in front of the store. Arrowood was thirteen years old
on the night in question. While Arrowood's father was inside,
Jordan approached the driver's side window and began asking
Arrowood questions about how old he was, how long he had been
driving, and where he lived. Arrowood testified that when he
did not respond, Jordan pointed "a gun" at his head and told him
to get out of the truck.
Arrowood testified that the object Jordan pointed at him
was a small silver pistol. Arrowood stated that he was familiar
with handguns because his father was in the military, and that
this appeared to be a silver semiautomatic pistol. Arrowood
identified it as a "Raven," a particular type of small pistol
with which he was familiar. Arrowood admitted on cross-
examination that he could not say for certain that the object
was not a toy gun. On re-direct he was asked, "Did it look like
a toy gun to you?" and he responded, "[a] really detailed [one]
if it was."
Arrowood testified that after Jordan pointed the gun at his
head, he got out of the truck and ran behind the convenience
store. Jordan got in the truck and drove away. Arrowood then
ran inside the store, and he and his father contacted police.
Jordan was apprehended by police shortly thereafter, but no
weapon was recovered.
Jordan was convicted of carjacking, use of a firearm in the
commission of a felony, eluding police, and possession of a
firearm by a convicted felon. The only conviction at issue in
this appeal is possession of a firearm by a convicted felon.
Jordan concedes that he is a convicted felon.
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The Court of Appeals granted Jordan's petition for appeal,
and in a published opinion, with one judge dissenting, held that
the evidence was sufficient to support the conviction. Jordan
v. Commonwealth, 60 Va. App. 675, 731 S.E.2d 622 (2012). The
Court of Appeals held that Arrowood's testimony describing the
weapon, coupled with Jordan's actions in pointing it at
Arrowood's head while demanding that he get out of the truck,
was sufficient to prove that the object Jordan was holding was a
firearm. Id. at 680-81, 731 S.E.2d at 624.
Jordan filed a petition for appeal with this Court, and we
awarded him an appeal on the following assignment of error:
The trial court and the Court of Appeals erred in holding
that the evidence was sufficient to support appellant's
conviction for possession of the firearm by a convicted
felon because there was no evidence showing that appellant
possessed an actual firearm and not an instrument of
similar appearance.
II. Analysis
A. Standard of Review
We apply a de novo standard of review when addressing a
question of statutory construction. Harris v. Commonwealth, 274
Va. 409, 413, 650 S.E.2d 89, 91 (2007). When considering the
sufficiency of the evidence to sustain a conviction, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party at trial, granting it all reasonable
inferences fairly deducible therefrom. Dowden v. Commonwealth,
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260 Va. 459, 461, 536 S.E.2d 437, 438 (2000). The Court will
only reverse the judgment of the trial court if the judgment is
plainly wrong or without evidence to support it. Startin v.
Commonwealth, 281 Va. 374, 379, 706 S.E.2d 873, 876 (2011). If
the evidence is sufficient to support the conviction, the
reviewing court is not permitted to substitute its own judgment
for that of the trier of fact, even if its opinion might differ
from the conclusions reached by the trier of fact. Id. at 379,
706 S.E.2d at 876-77.
B. Possession of a Firearm
Code § 18.2-308.2 prohibits the possession of firearms by
convicted felons. Subsection (A) states that
[i]t shall be unlawful for (i) any person
who has been convicted of a felony ... to
knowingly and intentionally possess or
transport any firearm or ammunition for a
firearm, any stun weapon as defined by §
18.2-308.1, or any explosive material, or to
knowingly and intentionally carry about his
person, hidden from common observation, any
weapon described in subsection A of § 18.2-
308.
Code § 18.2-308.2 provides no express definition of the
term "firearm." However, in Armstrong v. Commonwealth, 263 Va.
573, 562 S.E.2d 139 (2002), we held that the term "firearm"
under Code § 18.2-308.2 means "any instrument designed, made,
and intended to fire or expel a projectile by means of an
explosion." Id. at 583, 562 S.E.2d at 145. We explicitly
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rejected within that definition any element of present capacity
or operability. Id. at 583-84, 562 S.E.2d at 145.
In Startin, we further clarified that definition by
explaining that a replica gun and a BB gun would not be
sufficient to convict a person under Code § 18.2-308.2 for
possession of a firearm by a convicted felon because those items
were not "designed, made, and intended to fire or expel a
projectile by means of an explosion." 281 Va. at 382, 706
S.E.2d at 878 (internal quotation marks and citation omitted).
In Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436(1999), the defendant entered a convenience store and placed
what appeared to be 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 stated that she would kill
the clerk if an alarm were activated. Id. In Redd, the Court
of Appeals held that the defendant's threat to kill the clerk
was an implied assertion that the object she held was a firearm.
When coupled with the clerk's description of the object, the
evidence was sufficient to sustain the defendant's conviction
for possession of a firearm by a convicted felon. Id. at 259,
511 S.E.2d at 438.
We confirm that the holding in Redd is still the law of
this Commonwealth. In Redd, the defendant's threat to kill the
clerk was an implied assertion that the object was a firearm.
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In the case before us, Jordan did not verbally threaten to kill
Arrowood, however, the acts of pointing the gun at Arrowood
while directing him to get out of the car, most assuredly
communicated the message that if Arrowood did not comply, Jordan
would shoot him.
Arrowood specifically identified the object as a "Raven."
A Raven is a well-known, compact, .25 caliber semi-automatic
pistol that is commonly referred to as a "Saturday Night
Special," and can easily be concealed. See United States v.
Sanders, 994 F.2d 200, 202 (5th Cir. 1993); Burks v. State, 876
S.W.2d 877, 884 (Tex. Crim. App. 1994). The reference to a
"Raven" indicates a specific weapon that was designed, made, and
intended to fire or expel a projectile by means of an explosion.
A Raven pistol clearly meets the definition of a firearm as set
out in Armstrong.
Arrowood's ability to identify a Raven pistol was subject
to cross-examination. The determination of how much weight to
give to his identification of the object as a Raven pistol was a
matter for the trier of fact.
We are mindful of the precise question we are required to
address when considering an appeal alleging insufficiency of the
evidence.
When analyzing a challenge to the sufficiency of the
evidence, this Court reviews the evidence in the light most
favorable to the prevailing party at trial and considers
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any reasonable inferences from the facts proved. The
judgment of the trial court will only be reversed upon a
showing that it “is plainly wrong or without evidence to
support it.”
Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330
(2006) (quoting Code § 8.01-680) (citation omitted).
In this case the jury found Arrowood’s testimony to be
competent and believable. The trier of fact was entitled to
consider the totality of the evidence including Arrowood’s
direct testimony identifying the weapon and Jordan’s conduct
which included pointing that weapon to Arrowood’s head and
demanding that Arrowood get out of the truck. It was within the
province of the jury to conclude that Jordan’s conduct was an
implied assertion that the object he held was a firearm. We may
not substitute our judgment for that of the jury unless no
reasonable juror could have come to this conclusion.
III. Conclusion
Accordingly, we will affirm the Court of Appeals' judgment
holding that the evidence was sufficient to support Jordan's
conviction for possession of a firearm by a convicted felon.
Affirmed.
JUSTICE POWELL, with whom JUSTICE GOODWYN and JUSTICE MILLETTE
join, concurring in part and dissenting in part.
The majority confirms that Startin v. Commonwealth, 281 Va.
374, 706 S.E.2d 873 (2011), Armstrong v. Commonwealth, 263 Va.
7573, 562 S.E.2d 139 (2002), and Redd v. Commonwealth, 29 Va.
App. 256, 511 S.E.2d 436 (1999), are the law of the Commonwealth
but concludes that the evidence in this case is nevertheless
sufficient to convict Jordan of possession of a firearm by a
convicted felon. Although I agree concerning the applicable
authority, I respectfully disagree that the evidence here was
legally sufficient to convict Jordan. Therefore, for the
following reasons, I would reverse his conviction for possession
of a firearm in violation of Code § 18.2-308.2.
“Undoubtedly, in criminal cases, the burden of
establishing guilt rests on the prosecution from the beginning
to the end of the trial.” Agnew v. United States, 165 U.S. 36,
49-50 (1897). “[W]e will not sustain a trial court’s judgment
that is plainly wrong or without evidence to support it.”
Brickhouse v. Commonwealth, 276 Va. 682, 686, 668 S.E.2d 160,
162 (2008). “‘Suspicion of guilt, however strong, or even a
probability of guilt, is insufficient to support a conviction.’”
Rogers v. Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627
(1991) (quoting Cheng v. Commonwealth, 240 Va. 26, 42, 393
S.E.2d 599, 608 (1990)). Thus, the Commonwealth had the burden
to prove beyond a reasonable doubt that the object Jordan
pointed at Arrowood was an instrument that was designed, made,
and intended to expel a projectile by means of explosion and not
merely an object that had the appearance of one. See Startin,
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281 Va. at 377, 706 S.E.2d at 876; Armstrong, 263 Va. at 583,
562 S.E.2d at 144.
Despite the certitude of Arrowood’s identification of the
object as a Raven pistol, I believe that the Commonwealth failed
to prove that the object Jordan used was a firearm within the
meaning of Code § 18.2-308.2, as established by precedent. At
Jordan’s trial, Arrowood testified that the incident lasted
between thirty seconds to one minute, Jordan was six inches to a
foot away, and Arrowood had five seconds to look at the gun
through the mirror as Jordan approached.
During questioning by the Commonwealth, Arrowood testified
[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.
[Commonwealth:] You say a pistol. Your dad
. . . is or was in the military?
[Arrowood:] Uh-huh.
[Commonwealth:] So you have some
familiarity with handguns?
[Arrowood:] Yes, sir.
[Commonwealth:] And you've fired handguns
before?
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[Arrowood:] Yes, sir.
[Commonwealth:] All right. Were you able to
recognize -- you said -- you described it as
a pistol. What do you mean as a pistol?
[Arrowood:] Like a semiautomatic pistol.
[Commonwealth:] All right. What color was
it?
[Arrowood:] Silver.
. . . .
[Commonwealth:] Could you tell what it was?
[Arrowood:] Yes, sir.
[Commonwealth:] And what was it?
[Arrowood:] It was a -- like a Raven
pistol.
[Commonwealth:] Okay. That's a type of
pistol?
[Arrowood:] It's a small pistol.
[Commonwealth:] And that you are familiar
with?
[Arrowood:] Yes, sir.
(emphasis added). When asked on redirect examination whether
the instrument “look[ed] like a toy gun,” Arrowood responded,
“[a] really detailed toy gun if it was.”
There was no physical evidence presented regarding the
object or its use. It is undisputed that Arrowood never used or
examined the instrument that Jordan pointed at him. It is also
undisputed that there was no testimony from anyone who had used
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or examined the object or who had observed it being used, made,
or assembled.
Thus, Arrowood’s testimony based solely on his brief
observation of the object is insufficient as a matter of law to
prove beyond a reasonable doubt that the instrument was
designed, made, and intended to expel a projectile by means of
an explosion. Indeed, I believe his testimony is no different
than simply describing the object as a gun, because it is merely
an opinion based on casual observation. Demonstrating that he
knew the well-known brand or model name of a small, silver
handgun in no way bolsters his testimony regarding whether what
he saw was a real gun or a replica.
It is almost impossible for an observer, no matter how
experienced, to look at an object and know that it is an
instrument designed, made, and intended to expel a projectile by
means of an explosion. Indeed, our ruling in Startin makes
clear that whether an instrument was designed, made, and
intended to fire or expel a projectile by means of an explosion
*
cannot be discerned by merely looking at the instrument.
Evidence demonstrating that the object was designed, made,
and intended to expel a projectile by means of an explosion is
*
The “replica” of a pistol at issue in Startin, 281 Va. at 377,
706 S.E.2d at 876, was rendered inoperable by the lack of a
firing pin, a modification that is undetectable without
disassembly.
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necessary for a conviction under Code § 18.2-308.2. However,
this is not to say that in order to secure a conviction under
Code § 18.2-308.2, the Commonwealth would have to prove its case
beyond all possible doubt or that one could never be convicted
of possession of a firearm as a convicted felon in the absence
of the firearm; in fact, this is the precise proposition for
which Redd stands. The credible testimony of an individual who
has examined, used or seen the instrument being used would be
sufficient for the fact finder to conclude that an instrument
that looks like a gun is indeed designed, made, and intended to
expel a projectile by explosion. This type of evidence could be
used to validate an eyewitness’s description of an object. See
Taylor v. Commonwealth, 33 Va. App. 735, 737, 536 S.E.2d 922,
922-23 (2000) (relying on 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). For example,
evidence is sufficient when based upon the verbal implied
assertion of the defendant, who we can infer had the opportunity
to examine and/or use the object, that the object was designed
to be a functioning firearm. See Redd, 29 Va. App. at 259, 511
S.E.2d at 438.
The majority upholds the trial court’s conviction based
solely on a witness’s belief that an instrument looked like an
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admittedly well-known, specific model of firearm as a substitute
for evidence, required by precedent, regarding whether the
instrument met the requirements of Code § 18.2-308.2. In doing
so, the majority erases the distinction that the General
Assembly so carefully drew, and which this Court and the Court
of Appeals have previously observed, between the evidence
necessary to prove a violation of Code § 18.2-53.1 (use) as
opposed to a violation of Code § 18.2-308.2 (possession).
Here, we have only the uncorroborated description of an
unknown object made by a young boy after viewing the object for
mere seconds. Without more, such as physical evidence or
testimony of an individual who has examined or used the
instrument, such observation testimony is insufficient as a
matter of law to prove beyond a reasonable doubt that an
instrument was designed, made, and intended to expel a
projectile by means of an explosion. See Startin, 281 Va. at
377, 706 S.E.2d at 876.
I recognize that the difference between the statutes
governing use of a firearm during the commission of a felony,
Code § 18.2-53.1, and the possession of a firearm by a convicted
felon, Code § 18.2-308.2, is subtle, but the important
distinction between the two is that the appearance of the object
alone is appropriate and sufficient only for a conviction for
use of a firearm. The reliance on the presentation of the
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object and mere “identification” by any observer as an implied
assertion that the object was made to expel a projectile is
tantamount to reliance solely on the object’s appearance which
as a matter of law amounts to nothing more than evidence
sufficient to prove a violation of Code § 18.2-53.1. Indeed,
Redd, which the majority adopts as the law, recognizes as much.
In Redd, the Court of Appeals specifically held that the
appearance of the gun along with its manner of presentation,
i.e., brandishing, was insufficient to support a conviction for
possession of a firearm by a convicted felon. 29 Va. App. at
259, 511 S.E.2d at 438. Taken to its logical conclusion, the
majority’s interpretation completely eradicates the distinction
between the two offenses.
Because the burden of proof in criminal cases has
constitutional status, any conviction that rests upon legally
insufficient evidence is a denial of due process. Jackson v.
Virginia, 443 U.S. 307, 309 (1979); Commonwealth v. Hudson, 265
Va. 505, 512, 578 S.E.2d 781, 785 (2003). I would reverse
Jordan’s conviction for possession of a firearm by a convicted
felon.
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