Carneal Crewe, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
CARNEAL CREWE, S/K/A
CARNEAL COSELLE CREWE
MEMORANDUM OPINION * BY
v. Record No. 2709-95-2 JUDGE JAMES W. BENTON, JR.
OCTOBER 29, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
Samuel Taylor Powell, III, Judge
Michael C. Tillotson for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Sitting without a jury, the circuit court judge convicted
Carneal Crewe of brandishing a firearm in violation of Code
§ 18.2-282. Crewe contends that the evidence was insufficient to
convict him of the offense. We agree and reverse the conviction.
The essential facts are undisputed. The evidence proved
that Amanda Barneycastle and Crewe were dating. On the afternoon
of August 8, 1995, while Barneycastle was visiting Crewe at his
residence, they began to argue. During the argument, Crewe
removed Barneycastle's keys from her car and temporarily disabled
the telephone to the residence. Barneycastle, who lived a five
minutes' walking distance away, did not leave the residence.
During the argument, Barneycastle and Crewe hit each other.
Barneycastle could not recall who began the physical
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
altercation, but she did testify that Crewe disengaged from the
fighting and left her in his bedroom. Barneycastle testified
that she tried to call her parents on the telephone but could
not.
Crewe testified that after he disengaged from the argument,
Barneycastle remained in his room talking to his cousin. Crewe
went into his brother's bedroom and closed the door to allow
Barneycastle and himself to calm their emotions. He testified
that he believed that he closed the door when he entered the
room. After he entered the room, he "fondl[ed] around with
stuff" for three or four minutes and picked up one of several
guns placed beside his brother's bed. Crewe testified that he
had no specific intent to get a weapon and testified that he had
a rifle and other weapons in his own room.
Later, Barneycastle walked by Crewe's brother's bedroom.
She looked into the room through the door that was slightly ajar
and saw Crewe holding a gun. She opened the door, rushed toward
him to take the gun away, and struggled with him for the gun.
During her attempt to wrestle the gun away, the barrel was pushed
to her stomach. When Crewe retained control of the gun, he
placed it in the corner of the room and left the room with
Barneycastle.
Code § 18.2-282(A) provides, in pertinent part, as follows:
It shall be unlawful for any person to point,
hold or brandish any firearm, as hereinafter
described, or any object similar in
appearance to a firearm, whether capable of
being fired or not, in such manner as to
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reasonably induce fear in the mind of another
or hold a firearm in a public place in such a
manner as to reasonably induce fear in the
mind of another of being shot or injured.
However, this section shall not apply to any
person engaged in excusable or justifiable
self-defense.
In Kelsoe v. Commonwealth, 226 Va. 197, 198, 308 S.E.2d 104,
104 (1983), the Supreme Court stated that "[t]here are two
elements of the offense: (1) pointing [, holding,] or
brandishing a firearm, and (2) doing so in such a manner as to
reasonably induce fear in the mind of a victim." In this case,
the Commonwealth proved that Crewe was holding a firearm.
However, the evidence is insufficient to support a finding that
Crewe did so "in such a manner as to reasonably induce fear" in
Barneycastle. Code § 18.2-282(A).
Both Barneycastle and Crewe testified that Crewe disengaged
from the fighting and left Barneycastle in his room. When Crewe
went to his brother's room, Barneycastle went to the telephone to
call her parents to come for her. Although Barneycastle remained
in the residence, she did not testify that she was restrained in
any manner. Indeed, she testified that the fighting had ceased.
Barneycastle testified that when she walked by the brother's
bedroom she could see into the bedroom. However, her testimony
proved that the door was almost shut. Only by conjecture could
the trier of fact conclude that Crewe was aware that he could
have been seen as he held the gun. The evidence proved that
Crewe was in the bedroom with the door virtually shut and was not
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pointing or brandishing the gun toward any person. Barneycastle
testified that when she peered into the room, Crewe "was pointing
[the gun] straight up."
Barneycastle's own testimony proved that the gun was only
pointed toward her during the struggle that she initiated to gain
control of the gun. Crewe made no threats when she grabbed the
gun. Furthermore, no evidence proved that Crewe intentionally
pointed the gun at her. Barneycastle said her "first reaction
was to grab the gun" because she did not know why Crewe had it.
The elements of the statute are not proved beyond a
reasonable doubt when the evidence merely proved that a person
holding a firearm was inadvertently seen by another. Thus, the
evidence did not prove beyond a reasonable doubt that Crewe held
the gun "in such a manner as to reasonably induce fear in the
mind of another." Code § 18.2-282(A).
For these reasons, we reverse the conviction and dismiss the
charge.
Reversed.
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