Dwayne Lavere Barley, a/k/a v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Salem, Virginia
DWAYNE LAVERE BARLEY, S/K/A
DYWAYNE LAVERNE BARLEY
MEMORANDUM OPINION * BY
v. Record No. 0117-00-3 JUDGE LARRY G. ELDER
NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom (Elwood Earl Sanders, Jr.,
Appellate Defender; Public Defender
Commission, on briefs), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dwayne Lavere Barley (appellant) appeals from his bench
trial conviction for carrying a concealed weapon in violation of
Code § 18.2-308, his second such offense. On appeal, he
contends the trial court erroneously held (1) the statute did
not require proof of intent to conceal and (2) the evidence was
sufficient to support his conviction. We hold the trial court
did not rule that the statute does not require proof of intent
to conceal. Further, assuming without deciding that intent is
an element of the offense of carrying a concealed weapon, we
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
hold the evidence was sufficient to support his conviction.
Therefore, we affirm.
A.
INTENT TO CONCEAL
Appellant contends the trial court erroneously ruled that
Code § 18.2-308(A) does not require proof of a specific intent
to conceal. We hold the trial court made no such ruling.
Counsel for appellant, in questioning appellant, asked him
about how his prior conviction for carrying a concealed weapon
"affect[ed] the way [he] would treat and carry this particular
gun." The Commonwealth objected, indicating that counsel could
ask about appellant's behavior on this particular occasion for
purposes of determining whether the weapon was concealed but
objected to the type of evidence counsel offered to prove
concealment or lack thereof. Appellant's counsel argued that
the evidence he sought was relevant to appellant's state of mind
on that particular occasion. The Commonwealth argued that
appellant's state of mind was not in fact relevant to the
question of whether the weapon was concealed; it did not
specifically argue that appellant's intent was not relevant.
The trial court agreed with the Commonwealth that the issue was
concealment on this particular occasion.
We interpret this exchange as a ruling that evidence of
what appellant knew about the legality of concealing a weapon
was not an appropriate means of proving whether he was carrying
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a concealed weapon on this particular occasion. Cf. Jackson v.
Chesapeake & Ohio Ry. Co., 179 Va. 642, 648, 20 S.E.2d 489, 491
(1942) (noting majority rule in tort actions that evidence that
a driver acted carefully and cautiously on prior occasions "is
ordinarily not admissible to show that he was acting with care
and caution . . . when the accident in question happened"). On
that basis, it held the proffered testimony was inadmissible. 1
This determination did not also constitute a ruling that intent
was irrelevant to a determination of whether the weapon was
concealed within the meaning of the statute. Appellant's
counsel in fact argued in closing that appellant put the weapon
on the car's console so that it would be visible rather than
concealed, implying that counsel did not interpret the trial
court's prior ruling as a conclusion that intent was irrelevant.
Appellant did not request such a ruling in the trial court, and
the trial court made no such ruling. Therefore, we find it
unnecessary to address whether intent to conceal is an element
of the offense. 2
1
We do not address the merits of this ruling because
appellant does not contest the exclusion of this evidence on
appeal. The issue is properly before us only in the context of
appellant's contention that it constituted a ruling that intent
is not an element of the crime of carrying a concealed weapon.
2
For purposes of reviewing the sufficiency of the evidence,
we assume without deciding that proof of intent to conceal is
required.
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B.
SUFFICIENCY OF THE EVIDENCE
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The fact finder is not required to
believe all aspects of a witness' testimony; it may accept some
parts as believable and reject other parts as implausible. See
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993). Further, any element of a crime may be proved by
circumstantial evidence, see, e.g., Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the
evidence as a whole "is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt," Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).
Appellant contests only the sufficiency of the evidence to
establish that the weapon was "hidden from common observation,"
as required to support a conviction for violating Code
§ 18.2-308(A). Assuming without deciding the statute requires
proof of intent to conceal, the circumstantial evidence, viewed
in the light most favorable to the Commonwealth, supported a
finding that appellant did, in fact, intentionally place the
weapon beneath the jacket. Appellant told Officer Ford the
weapon was in the passenger seat, and Ford found the weapon
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there, positioned beneath the windbreaker. Appellant himself
testified that the weapon could not have fallen from the console
to a location beneath the jacket. Finally, no evidence
indicated that anyone besides appellant approached the car and
put the weapon beneath the jacket. Therefore, the only
reasonable hypothesis flowing from the circumstantial evidence,
viewed in the light most favorable to the Commonwealth, is that
appellant intentionally placed the weapon beneath the jacket
before he exited the car.
Appellant also contends on appeal that the weapon was not
"hidden from common observation" because it was covered "only by
a readily movable windbreaker style jacket." However, because
appellant failed to raise this specific argument in the trial
court, it is barred on appeal. See Rule 5A:18. Further, even
if not barred, this claim lacks legal foundation. As argued by
the Commonwealth, Code § 18.2-308(A) requires only that the
weapon is hidden from common observation, not that the covering
is difficult to remove. "Accessibility of a concealed weapon
for 'prompt and immediate use' is clearly the evil proscribed by
the statute." Leith v. Commonwealth, 17 Va. App. 620, 622, 440
S.E.2d 152, 153 (1994) (quoting Schaaf v. Commonwealth, 220 Va.
429, 431, 258 S.E.2d 574, 574-75 (1979)); Clarke v.
Commonwealth, 32 Va. App. 286, 527 S.E.2d 484 (2000); Main v.
Commonwealth, 20 Va. App. 370, 372-73, 457 S.E.2d 400, 401-02
(1995) (en banc). Thus, the fact that the windbreaker was
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"readily movable" supports rather than weakens appellant's
conviction.
For these reasons, we reject appellant's contention that
the trial court held the statute does not require proof of
intent to conceal. Further, assuming without deciding that
intent is an element of the offense of carrying a concealed
weapon, we hold the evidence was sufficient to prove appellant
intentionally "hid[] [the weapon] from common observation" in
violation of the statute. Therefore, we affirm appellant's
conviction.
Affirmed.
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