Marvin L. Hunter, III v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia
MARVIN L. HUNTER, III
MEMORANDUM OPINION * BY
v. Record No. 1904-99-1 JUDGE ROBERT J. HUMPHREYS
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Robert B. Wilson, V (McDermott & Roe, on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Marvin L. Hunter, III was convicted in a bench trial of
possession of cocaine and possession of a firearm after being
previously convicted of a felony. Hunter argues in this appeal
that the evidence was insufficient as a matter of law to support
the charge of possession of a firearm by a person previously
convicted of a felony. For the following reasons, we find no
error and affirm Hunter's conviction.
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,
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation
omitted). "We will not reverse the judgment of the trial court,
sitting as the finder of fact in a bench trial, unless it is
plainly wrong or without evidence to support it." Reynolds v.
Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999)
(citing Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987)).
The relevant facts are that on November 4, 1998, officers
of the Hampton Police Department executed a search warrant at
2901 Kecoughtan Road, Apartment 41-A, in Hampton, Virginia. The
warrant authorized a search for controlled substances and
related drug paraphernalia. Hunter was present when the warrant
was executed and was detained. In a pat-down search of Hunter's
person, police recovered a magazine to a semi-automatic Bersa
handgun containing seven rounds of .380 ammunition from his left
front pants pocket. 1 Police also recovered a .380 caliber Bersa
semi-automatic handgun from a nearby closet shelf. At the time
of its recovery, this weapon did not have a clip loaded into the
frame.
Hunter has not challenged whether his proximity to the
closet containing the weapon and his possession of the clip of
ammunition constituted sufficient dominion and control for the
1
The spelling of the manufacturer's name throughout the
record is "Bursa." Appellant asserts on brief that the correct
spelling is "Bersa," which is also the spelling utilized by the
Commonwealth on brief.
- 2 -
purposes of establishing that he was in "possession" of the
weapon. Thus, the sole question to be decided by this appeal is
whether the weapon recovered is a "firearm" within the meaning
of Code § 18.2-308.2. 2 As with any element of a criminal
offense, the Commonwealth has the burden of proving this element
beyond a reasonable doubt.
We have previously held that Code § 18.2-308.2 "prohibits a
felon from possessing a device that has the actual capacity to
do serious harm because of its ability to expel a projectile by
the power of an explosion, and it is not concerned with the use
or display of a device that may have the appearance of a
firearm." Jones v. Commonwealth, 16 Va. App. 354, 357-58, 429
S.E.2d 615, 617 (1992), aff'd on reh'g en banc, 17 Va. App. 233,
436 S.E.2d 192 (1993). "[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).
[T]he best method for proving that an item
is a firearm is presentation of direct
forensic evidence of the nature and
operability of the item. However,
"[c]ircumstantial evidence is as competent
and is entitled to as much weight as direct
2
Code § 18.2-308.2 provides in pertinent part that "[i]t
shall be unlawful for (i) any person who has been convicted of a
felony . . . to knowingly and intentionally possess . . . any
firearm."
- 3 -
evidence, provided it is sufficiently
convincing to exclude every reasonable
hypothesis except that of guilt."
Id. (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983)).
We have previously held that the presentation of an object
that appears to be a firearm when coupled with an implied
assertion that the object is a functioning weapon is sufficient
to support a finding that an object is a firearm. See Redd v.
Commonwealth, 29 Va. App. 256, 259, 511 S.E.2d 436, 438 (1999).
Sitting as the trier of fact, the trial court found "beyond
a reasonable doubt that the magazine upon the person of
Marvin L. Hunter, III, was sufficiently contemporaneous with the
possession of the weapon found in the closet and that their
contemporaneous possession provided a substantial nexus to
become a functional firearm with the ability to fire by
explosion."
Taking the evidence in the light most favorable to the
Commonwealth, we cannot say that the trial court was "plainly
wrong" and, therefore, affirm Hunter's conviction.
Affirmed.
- 4 -