Bruce Alan Welch v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia
BRUCE ALAN WELCH
MEMORANDUM OPINION * BY
v. Record No. 1232-98-1 JUDGE DONALD W. LEMONS
NOVEMBER 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Karen M. Vannan (Lasris & Vannan, PLC, on
brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Ruth M.
McKeaney, Assistant Attorney General, on
brief), for appellee.
The appellant, Bruce Alan Welch, was convicted in a bench
trial of: (1) the use or display of a firearm while in the
commission of a burglary in violation of § 18.2-53.1;
(2) discharging a firearm within an occupied dwelling in
violation of Virginia Code § 18.2-279; (3) assault and battery
in violation of Virginia Code § 18.2-57; and (4) breaking and
entering in the nighttime with intent to commit assault and
battery while armed with a deadly weapon in violation of
Virginia Code § 18.2-91.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Only two of these four convictions are before this Court on
appeal. Welch contends there was insufficient evidence to
convict him of using or displaying a firearm in the commission
of a burglary and there was insufficient evidence to convict him
of discharging a firearm in an occupied dwelling. We disagree
and affirm both convictions.
I. BACKGROUND
Where the sufficiency of the evidence is an issue on
appeal, an appellate court must view the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. See Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted).
Unless that finding is plainly wrong, or without evidence to
support it, it shall not be disturbed on appeal. See Code
§ 8.01-680; George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d
12, 20 (1991).
So viewed, the evidence proved that at some time after
6:00 p.m. on February 5, 1997, Welch took his shotgun and some
shells and drove to the home of his former wife, Fannie Simmons,
and her husband, Timothy Simmons. He was wearing gloves. At
approximately 9:50 p.m., Timothy and Fannie Simmons were home
with Jordan Welch, the three-year-old daughter of Fannie and the
appellant. Fannie looked out of the window at that time and
recognized Welch's truck in the parking lot.
- 2 -
A few minutes later, she heard banging against her
apartment door. The door was dead-bolted and locked, but she
still moved toward the door to hold it shut. She heard "a
really loud noise" and smelled "something burning" and then,
with "a really loud cracking noise," the door gave way. At
trial, Fannie demonstrated for the court how Welch was holding
the shotgun when she saw him. She stated, "He had it like this
(Indicating) when he came through the door . . . ." She
testified that Welch had one hand on the trigger and the other
toward the barrel and stood approximately one foot from her.
After the incident, there were several holes in the door, as
well as small holes in the living room wall.
Fannie ran down the hallway toward the master bedroom,
screaming to her husband that Welch had a gun. Timothy, who had
been in the bedroom, pushed Fannie into the closet and stood
behind the door to the room. When Welch entered the bedroom,
Timothy kicked the door against him and simultaneously reached
for the shotgun. A struggle followed, and Timothy shouted at
Welch to stop. Welch responded by saying that it was all
Timothy's fault that Fannie left him and that "this is what is
going to happen."
During the struggle, the gun discharged without injury to
Timothy, Fannie, Jordan or Welch. When the gun discharged,
Timothy was on top of Welch with his right hand on the stock and
left hand on the barrel. Fannie's hands were nowhere near the
- 3 -
trigger. Both Fannie and Timothy testified that they did not
pull the trigger.
At trial, the Commonwealth's expert testified that gun
residue was not found on Welch's gloves. However, he also
testified that such residue might not be on the gloves even if
Welch had pulled the trigger.
II. USE OF A FIREARM IN THE COMMISSION OF BURGLARY
Virginia Code § 18.2-53.1 states, "It shall be unlawful for
any person to use or attempt to use any pistol, shotgun, rifle,
or other firearm or display such weapon in a threatening manner
while committing or attempting to commit . . . burglary,
. . . ." The evidence supports the finding that Welch displayed
the shotgun "when he came through the door." It is not
necessary to address arguments that the shotgun was fired
through the door to gain entry. The elements of burglary
include the requirement of an "entry." Here the evidence is
sufficient to prove that the shotgun was displayed during the
entry of the premises.
III. DISCHARGING A FIREARM IN AN OCCUPIED DWELLING
Virginia Code § 18.2-279 states in pertinent part:
If any person maliciously discharges 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, . . . the person shall be guilty of
a Class 4 felony.
* * * * * * *
- 4 -
If any such act be done unlawfully, but not
maliciously, the person so offending shall
be guilty of a Class 6 felony . . . .
Viewed in the light most favorable to the Commonwealth, the
evidence reveals that Welch came down the hall with one hand on
the barrel and the other hand on the trigger. Welch's
statement, "this is all your fault that my wife left me and this
is what is going to happen," indicates intent to discharge the
shotgun.
Additionally, Timothy Simmons testified that when the
struggle ensued, he had one hand on the stock and one hand on
the barrel. Fannie Simmons testified that her hands were
"nowhere near the trigger." Based on this evidence, the trial
court could find that Welch discharged the gun. Welch's denial
that he pulled the trigger is a question left to the fact
finding function of the trial court. See Montgomery v.
Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980)
("[E]ven if [the] defendant's story was not inherently
incredible, the trier of fact need not have believed the
explanation"); Rollston v. Commonwealth, 11 Va. App. 535, 547,
399 S.E.2d 823, 830 (1991) ("[The trier of fact] is not required
to accept in toto, an accused's statement, but may rely upon it
in whole, in part, or reject it completely."). 1
1
The lack of gunshot residue on Welch's hands is not
dispositive of the issue. The expert adequately explained that
residue might not be present even if Welch had pulled the
trigger.
- 5 -
We cannot say that the trial judge was plainly wrong or
that the evidence is insufficient to sustain the verdict.
Finding no error, the convictions are affirmed.
Affirmed.
- 6 -