Christopher Devon Kirby v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Callins and Senior Judge Clements
UNPUBLISHED
Argued by videoconference
CHRISTOPHER DEVON KIRBY
MEMORANDUM OPINION* BY
v. Record No. 0122-23-2 JUDGE DOMINIQUE A. CALLINS
OCTOBER 22, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Sarah L. Deneke, Judge
Robert J. Wagner (Maureen L. White, on brief), for appellant.
Stephen J. Sovinsky, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Christopher Devon Kirby appeals his conviction, following a jury trial, for possession of a
firearm by a convicted felon, in violation of Code § 18.2-308.2. On appeal, Kirby argues that the
trial court erred when it failed to strike a prospective juror for cause and when it refused to give his
proposed jury instructions clarifying the terms “knowingly” and “intentionally” in the context of
firearm possession. He further argues that the evidence was insufficient to support his conviction.
For the reasons that follow, we affirm the judgment of the trial court.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
BACKGROUND1
I. Voir Dire
During the voir dire, Kirby’s counsel asked the venire, “does anyone here feel that the
testimony of a law-enforcement officer is necessarily more credible than the testimony of a
nonlaw-enforcement officer?” Counsel later clarified his question, “In other words, would you
believe a law-enforcement officer more readily than you would a nonlaw-enforcement officer?”
Jurors 14 and 17 answered in the affirmative. When asked why, Juror 14 indicated that “law
enforcement is trained to observe things differently and have a different perspective than an
ordinary person off the street.” When asked if law enforcement sometimes “have certain biases,”
Juror 14 stated, “[i]t’s always possible.” In addition, when discussing the impact that a juvenile
felony conviction has on an individual’s ability to lawfully possess a firearm as an adult, Juror 14
stated, “I believe that everybody should receive a second chance.” He explained, “If someone was a
young kid and does something stupid, I mean, that shouldn’t cloud the rest of his life.”
At the close of voir dire, the parties and the court discussed striking jurors for cause. The
Commonwealth indicated that Juror 14 could be struck due to his statements about gun possession,
but the prosecutor then left that decision to the trial court. Kirby’s counsel noted, among other
things, that Juror 14 had stated “he believed law enforcement more . . . and was never rehabilitated.”
The trial court recognized that Juror 14 had “some different opinions” than other jurors and noted
that Juror 14 stated he was “more likely to believe a police officer.” The court, however, did not
1
On appeal, “we review the evidence in the ‘light most favorable’ to the
Commonwealth.” Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting
Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair inferences that may be drawn
therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v.
Commonwealth, 26 Va. App. 335, 348 (1998)).
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“believe that that [statement was] sufficient to strike [Juror 14] for cause without the proper
follow-up” and denied Kirby’s motion to strike Juror 14.
After voir dire, the trial court explained to the venire that “we’re going to start into the next
step of this process, which is the peremptory strikes.” The court continued that “in an effort to save
some time” it would first “go ahead and give . . . the preliminary instructions in this case, the
instructions of law in the event that you are selected as a juror in this case.” After the trial court had
provided the instructions, Kirby’s counsel raised a Batson2 challenge. In response, the court
remarked, “You haven’t seen the jury yet.” Kirby’s counsel replied, “I’ve seen who they struck. I
don’t want my challenge to be too belated. I need to put it on the record.” The trial court then
proceeded to observe that it had not “seen the jury yet,” and queried, “How can I rule on a Batson
Motion when I haven’t seen them[?]” (Italics added). To this, Kirby’s counsel responded, “Okay.”
Following this exchange, the trial court addressed the prospective jurors, instructing, “If the
clerk calls your number, have a seat in the jury box.” The clerk called Juror 2, Juror 4, Juror 7,
Juror 11, Juror 21, Juror 23, Juror 24, Juror 27, Juror 29, Juror 30, Juror 31, and Juror 33. After
both the Commonwealth and Kirby’s counsel confirmed that the jury, as constituted, was
“satisfactory,” Kirby’s counsel noted that there were only 11 jurors. It was later discovered that
there was “no [Juror 21].” Kirby’s counsel then requested that Juror 38 be added to the jury, to
which the Commonwealth responded, “Fine.” After Juror 38 was seated, both the Commonwealth
and Kirby’s counsel again confirmed that the jury was “satisfactory.” Notwithstanding Kirby’s
Batson challenge, the trial transcript contains no record of either party’s peremptory strikes. Nor
does the trial transcript clearly signal whether such strikes occurred.
2
In Batson v. Kentucky, 476 U.S. 79 (1986), “the United States Supreme Court held . . .
the peremptory exclusion of a potential juror based solely on the juror’s race ‘is purposeful
discrimination and a violation of the Equal Protection Clause of the Fourteenth Amendment of
the United States Constitution.’” Hopkins v. Commonwealth, 53 Va. App. 394, 397-98 (2009)
(quoting Jackson v. Commonwealth, 266 Va. 423, 435 (2003)).
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II. Evidence at Trial
At trial, the evidence established that in the early morning of June 22, 2021, Sheriff’s
Deputy Jason Church was patrolling Pendleton subdivision in Caroline County. While stopped at
the intersection of Pendleton Drive and Route 1, Deputy Church noticed that the driver of the
adjacent vehicle, later identified as Kirby, “was slumped over in the driver’s seat.” Concerned,
Deputy Church pulled behind the vehicle and activated his lights.
It was “fairly dark” at the intersection where the traffic stop occurred, and Deputy Church
approached Kirby with his flashlight. When Deputy Church looked into the vehicle’s interior, he
observed a small black pistol on the front passenger seat.3 Deputy Church requested back-up. After
Deputy Church had awakened Kirby, he asked Kirby if he was having a “medical issue” and
requested that Kirby exit the vehicle. Deputy Church testified that he asked Kirby to exit the
vehicle for safety reasons as the firearm was “rather close” to Kirby. When Kirby exited the
vehicle, the interior lights illuminated the cab.4 Kirby told Deputy Church that he was traveling to
Richmond to pick up his daughter.
Upon searching the vehicle, Deputy Church found a second firearm, which was mostly
black with a blue handle, and a small bag of pills in plain view in the center console. When asked
about the firearms, Kirby denied ownership and stated that they belonged to his fiancée, Kenya
Richardson. When asked about the pills, Kirby indicated that they belonged to a friend and that he
was returning them. After learning that Kirby was a convicted violent felon, Deputy Church
arrested Kirby.
3
The parties stipulated that the found pistol met the statutory definition of a firearm.
4
Deputy Church acknowledged, on cross, that the report he compiled did not “mention
that the light inside the vehicle came on.”
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Richardson testified she and Kirby lived together in Pendleton subdivision with their
children. Although there are some streetlights in their subdivision, Richardson acknowledged that
they do not illuminate the whole street. Additionally, there are no streetlights in front of the
couple’s home, thus the area is dark at night. In 2021, she and Kirby had three vehicles: a Trail
Blazer, a BMW, and a Chrysler. Kirby usually drove the Trail Blazer or the BMW while
Richardson drove the Chrysler. The Chrysler’s interior is black, and sometimes the interior light did
not work. When asked if she remembered if the vehicle’s interior light was working at the time, she
responded, “It’s not now, so, no, I’m going to say it wasn’t.” She acknowledged, however, that she
could not “remember for sure.”
In May 2021, Richardson purchased a firearm for her safety. She usually stored the firearm
in a lockbox in the Chrysler’s trunk or in the vehicle’s center console. Richardson explained that
she kept both firearms locked in the Chrysler’s trunk “ninety percent of the time” because Kirby
was a felon and prohibited from possessing firearms. Richardson admitted that Kirby was aware
that she kept the firearms in the Chrysler. On the evening when Deputy Church found Kirby in the
Chrysler, the Trail Blazer was “in the shop” and Kirby’s BMW was inoperable.
On June 21, 2021, Richardson and one of her sons were sick. Kirby left for work at
5:00 a.m. and did not return home until approximately 10:30 p.m. Sometime in the evening before
Kirby returned home, Richardson drove her Chrysler to a nearby gas station to obtain medicine.
Richardson shopped with both of her firearms on her person. When she re-entered her vehicle, she
removed her gun belt so that she could buckle her seat belt. She placed a firearm on the front
passenger seat. When Richardson arrived home, she inadvertently left her firearm on the front seat.
When Kirby returned from work, he told Richardson that he was going to Richmond to pick up his
daughter.
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Early the next morning, Richardson received a call from the police. They informed
Richardson that Kirby had been “stopped in the vehicle that was [Richardson’s] and that there were
two weapons found in the vehicle.” Because Kirby’s BMW was inoperable, Richardson walked to
the intersection. Upon her arrival at the scene, Richardson told the officers that she owned the
found firearms but, at trial, stated that she did not “know anything about the pills” found in the
Chrysler’s center console.
III. Jury Instructions
At the close of all the evidence, the trial court reviewed jury instructions with the parties.
Kirby proffered instructions defining the terms “knowingly” and “intentionally” in the context of
possessing a firearm. The instructions stated, “[a]n act that is done knowingly is not an act that is
done because of mistake or accident, or other innocent reason” and “[a]n act that is done
intentionally is an act that is done purposely and deliberately and not accidentally.” Kirby argued
that the proffered instructions were “a correct statement of the law” and that he mistakenly came
upon the gun. He asserted that accidentally possessing a firearm, as he claims he did, does not
constitute knowing and intentional possession.
The trial court determined, among other things, that the agreed upon instructions sufficiently
covered the issue and denied Kirby’s proffered instructions. The jury convicted Kirby of possession
of a firearm by a convicted felon, and the trial court sentenced him to five years of incarceration, the
mandatory minimum sentence. Kirby appeals.
ANALYSIS
I. Motion to Strike Juror for Cause
Kirby argues that the trial court abused its discretion by not striking Juror 14 for cause
because that juror agreed with the proposition that “the testimony of a law-enforcement officer is
necessarily more credible than the testimony of a nonlaw-enforcement officer,” thereby signaling
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that he would “believe a law-enforcement officer more readily than . . . a nonlaw-enforcement
officer.” When questioned by Kirby’s counsel, Juror 14 answered “No” when asked if the belief
was borne of personal experience. Juror 14 explained his belief that, by virtue of training, a law
enforcement officer would “observe things differently” and would “have a different perspective
than an ordinary person off the street.” In response, Kirby’s counsel asked, “do you feel . . . that
sometimes law enforcement have certain biases?” Juror 14 responded, “It’s always possible.”
Kirby contends that the juror’s “skepticism that a police officer might be biased . . .
jumps from the page in his last response” and that “[n]o one attempted to rehabilitate the juror”
or “to ascertain whether this juror could put aside his belief.” Kirby concludes that “it is
impossible to know whether the juror could have, or did actually, follow the instructions
regarding the credibility of witnesses and the presumption of innocence,” and thus, that “the trial
court’s failure to strike [J]uror 14 constituted reversable error.”
But we need not determine whether the trial court abused its discretion in the manner
Kirby asserts because the record before us is not sufficient as to permit evaluation of Kirby’s
claims. It is well-established that “[i]t is prejudicial error for the trial court to force a defendant
to use peremptory strikes to exclude a venireman from the jury panel if that person is not free
from exception.” Townsend v. Commonwealth, 270 Va. 325, 329 (2005). Although Juror 14
was not among the prospective jurors selected to sit on the jury, the record Kirby presents for
appellate review offers no inkling regarding whether Kirby used a peremptory strike to exclude
Juror 14.5 Indeed, the record provides no insight into how peremptory strikes were or were not
used, or whether peremptory strikes were used at all. In the absence of this information, it is
5
In supplementary briefing, Kirby’s counsel acknowledges that “there was no indication
that [Juror] 14 was struck pursuant to a peremptory challenge” and “[i]t was unclear from the
record which jurors were struck pursuant to peremptory challenges.” Further, Kirby’s counsel
argues “that based on the uncertainty in the record, the Court cannot find that the issue with
regard to the ‘for cause’ challenge to Juror No. 14 is moot; the record on the matter is unclear.”
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impossible for us to say that the trial court’s denial of Kirby’s motion to strike Juror 14 for cause
resulted in prejudicial error.
Accordingly, Kirby has failed to meet his burden in presenting a record from which we
may determine whether the trial court erred. Consequently, the trial court’s judgment will be
affirmed. See Green v. Commonwealth, 65 Va. App. 524, 534 (2015) (“[O]n appeal the
judgment of the lower court is presumed to be correct and the burden is on the appellant to
present to us a sufficient record from which we can determine whether the lower court has erred
in the respect complained of. If the appellant fails to do this, the judgment will be affirmed.”
(alteration in original) (quoting Smith v. Commonwealth, 16 Va. App. 630, 635 (1993))).
II. Jury Instructions
Kirby also argues that the trial court erred by not permitting his proposed jury instruction
“[w]hich [d]efined and[/]or clarified the [m]eaning of ‘[k]nowingly and [i]ntentionally.’” Kirby
contends that his “theory of the case was that he was tired and did not realize that the gun was in
the car” until Deputy Church pointed it out to him, and avers that “[t]he defense argued that
Kirby possessed the firearm by happenstance” since “the guns . . . were usually concealed in the
trunk of the car.” Hence, Kirby argues, “it is the defense[’s] position that [he] never intended to
possess th[e] gun, it was an accident.”
Kirby does not reference or discuss the text of either proposed instruction on brief.6
Instead, he argues that a clarifying instruction was needed because Instruction 8, on the knowing
and intentional possession of a firearm, required jurors who believed that he was unaware of the
firearm to nevertheless convict him. He concludes that Instruction 8 strongly suggested to the
jurors that knowingly and intentionally possessing a firearm “is a strict liability crime” whereby
Kirby’s counsel did, however, address the text of the proposed instructions during oral
6
argument.
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Kirby would have been in constructive possession of the firearm when he sat in a dark car,
notwithstanding having been oblivious to the firearm’s presence until it was pointed out to him.
Thus, Kirby claims his proffered instructions were necessary to clarify the meaning of knowingly
and intentionally and to explain that the “intentional” element of possession is not met when a
person is unaware, until it is pointed out to them, of the existence of the very thing of which they
are supposed to be in possession.
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law
has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Chapman v. Commonwealth, 56 Va. App. 725, 735 (2010) (quoting Chibikom v.
Commonwealth, 54 Va. App. 422, 425 (2009)). “It is elementary that a jury must be informed as
to the essential elements of the offense; a correct statement of the law is one of the ‘essentials of
a fair trial.’” Id. (quoting Darnell v. Commonwealth, 6 Va. App. 485, 488 (1988)). It follows,
then, that “[w]hen granted instructions fully and fairly cover a principle of law, a trial court does
not abuse its discretion in refusing another instruction relating to the same legal principle.”
Hilton v. Commonwealth, 293 Va. 293, 302 (2017) (quoting Daniels v. Commonwealth, 275 Va.
460, 466 (2008)). More generally, a “trial court has broad discretion over whether to give or
deny proposed jury instructions.” Chapman, 56 Va. App. at 736.
Instruction 8 provided,
To knowingly and intentionally possess a firearm means that a
person is aware of the presence and character of the firearm and
has actual physical possession or constructive possession of it.
Constructive possession means that the person has dominion and
control over the firearm. Mere proximity is not enough.
Possession need not be exclusive; it may be shared with another.
The length of time of the possession is not material. Ownership or
occupancy of the vehicle in which a firearm is found does not
create a presumption that the owner or occupant either knowingly
or intentionally possessed such firearm. Such ownership or
occupancy is a fact which may be considered with other evidence.
Possession may be proved by acts, declarations or conduct of the
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defendant from which it may be fairly inferred that he was aware
of the presence and character of the firearm at the place found.
Instruction 8 drew no objection from either side—and Kirby levels no objections regarding the
instruction being an accurate statement of the law. See, e.g., Atkins v. Commonwealth, 57
Va. App. 2, 22-23 (2010) (discussing possession of a firearm); Rawls v. Commonwealth, 272 Va.
334, 349-50 (2006) (same); Bolden v. Commonwealth, 275 Va. 144, 148 (2008) (same); Hunley
v. Commonwealth, 30 Va. App. 556, 562-63 (1999) (discussing possession of a controlled
substance).
Accordingly, because Instruction 8 fully and fairly covered the relevant principle of law,
the trial court did not err in refusing Kirby’s proffered instructions. See Hilton, 293 Va. at 302.7
III. Sufficiency of the Evidence
Kirby argues that the Commonwealth failed to “prove by [his] statements or actions that
he was aware of the presence of the firearm in the car beside him prior to it being brought to his
attention.” In particular, Kirby points to the time of day, the lighting conditions in front of his
home, that it “was dark at the intersection where he stopped,” that he was sufficiently tired such
that he fell asleep while in the car behind the wheel, that his eyes would have been directed
7
Moreover, the fear Kirby expresses regarding conviction for the happenstance,
unintentional or unknowing possession of a firearm is untethered from the actual content of
Instruction 8. The instruction provides that knowing and intentional possession is conditioned on
“a person[’s] . . . aware[ness] of the presence and character of the firearm and . . . actual
physical or constructive possession of it.” (Emphases added). Instruction 8 notes that “[m]ere
proximity” to the firearm “is not enough,” and continues on to state that even “[o]wnership or
occupancy of the vehicle in which a firearm is found does not create a presumption that the
owner or occupant either knowingly or intentionally possessed such firearm.”
Although Instruction 8 does state that “[t]he length of time of the possession is not
material,” this acknowledgment does not augur the outcomes Kirby envisages. Indeed, to find
Kirby guilty, the jury was required to find that Kirby was aware of the presence and character of
the firearm, and so was in knowing and intentional possession of it. See Person v.
Commonwealth, 60 Va. App. 549, 555 (2012) (“As the Supreme Court of Virginia and this Court
have repeatedly stated, ‘[a] jury is presumed to have followed the instructions of the trial court.’”
(alteration in original) (quoting Prieto v. Commonwealth, 283 Va. 149, 169 (2012))).
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forward while driving, and that “both the gun and the upholstery” on which the gun sat “were
black,” as salient evidence, showing that he “would not have discerned the presence of the gun.”
Further, Kirby claims that “[t]he Commonwealth . . . failed to point to any statements made by
[him] . . . evinc[ing] knowledge of the presence of the firearm prior to [Deputy] Church bringing
it to his attention,” that Kirby “denied owning the gun,” and that the defense’s evidence
“strongly suggested that the gun was left there by accident,” thereby “vitiat[ing] the inference of
intentional possession.” Kirby also claims that “it seems to be the Commonwealth’s position
that mere presence constituted sufficient evidence of guilt.”
As Kirby seems to acknowledge, none of these arguments were properly preserved for
appellate review. Recognizing that he “failed to renew” his motion to strike “at the conclusion
of all the evidence,” he asks this Court to extend its holding in Campbell v. Commonwealth, 12
Va. App. 476 (1991) (en banc), to the present case. In Campbell, we held that, in a bench trial, a
defendant’s objections were preserved, notwithstanding his failure to renew his motion to strike
at the conclusion of all of the evidence, when, during his closing argument, he challenged the
sufficiency of the evidence, reprising arguments from an earlier motion to strike. Id. at 480-81.
But, as we plainly acknowledged, this holding was limited in its scope. We explained that “in a
jury trial, the closing argument is addressed to the jury, not the trial judge, and does not require
the trial judge to rule on the evidence as a matter of law” and that, in turn, “[o]nly a motion to
strike the evidence accomplishes that objective in a jury trial.” Id. at 481 (emphases added). As
Kirby was tried by a jury, the rule we delineated in Campbell, which applies only in bench trials,
does not apply here. Therefore, we respectfully decline Kirby’s invitation to “extend [the
Campbell] rule to closing arguments in jury trials.” See Commonwealth v. Bass, 292 Va. 19, 33
(2016) (“In a jury trial, the defendant preserves his objections to the sufficiency of the evidence
in a motion to strike at the conclusion of the Commonwealth’s case if he elects to not introduce
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evidence of his own, or in a motion to strike at the conclusion of all the evidence or a motion to
set aside the verdict if he does elect to introduce evidence of his own.”).
Kirby also contends that “sustaining his conviction in light of the insufficiency of the
evidence and the circumstances regarding the failure of the court to strike juror number [14] for
cause8 would constitute a ‘manifest injustice’ and therefore” asks that we “grant an exception to
the contemporaneous objection requirement of Supreme Court Rule 5A:18.”
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis
for reversal unless an objection was stated with reasonable certainty at the time of the ruling.”
“Indeed, ‘[i]n order to preserve an issue for appeal, ‘an objection must be timely made . . . with
specificity.’” Brittle v. Commonwealth, 54 Va. App. 505, 512 (2009) (alteration in original)
(quoting McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006)). See also Bethea v.
Commonwealth, 297 Va. 730, 743 (2019) (“Specificity and timeliness undergird the
contemporaneous-objection rule, animate its highly practical purpose, and allow the rule to
resonate with simplicity.”). “If a party fails to timely and specifically object, he waives his
argument on appeal.” Brittle, 54 Va. App. at 512.
But “Rule 5A:18 permits us to overlook the appellant’s failure to preserve the issue and
consider the merits of his argument for the first time on appeal if the ends of justice so demand.”
Id. “Nonetheless, our Rule 5A:18 jurisprudence confirms that ‘[t]he “ends of justice” exception
. . . is “narrow and is to be used sparingly.”’” Id. (alterations in original) (quoting Pearce v.
Commonwealth, 53 Va. App. 113, 123 (2008)). “The language used by our Supreme Court
indicates that there are two distinct requirements that [an appellant] must meet before we can
8
We do not consider Kirby’s argument regarding his motion to strike Juror 14 for cause
for the reasons stated supra.
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apply the ends of justice exception: (1) that the trial court erred, and (2) that a grave or manifest
injustice will occur or the appellant will be denied essential rights.” Id. at 513.
Thus, for us to apply the ends of justice exception, an appellant must do more than
merely show that the trial court erred, for “if every trial court error also constitute[d] a grave or
manifest injustice or denial of essential rights, then the rule requiring contemporaneous objection
or a motion to strike is swallowed by this exception.” Id. Instead, an appellant must
“affirmatively show . . . that the error [was] clear, substantial and material.” Id. at 514
(alterations in original) (quoting Bazemore v. Commonwealth, 42 Va. App. 203, 219 (2004) (en
banc)). Consequently, “when an appellant raises a sufficiency of the evidence argument for the
first time on appeal, the standard is higher than whether the evidence was insufficient.” Id. “We
cannot consider the merits of every improperly preserved sufficiency of the evidence appeal
unless there is some reason beyond mere insufficiency that invokes the ends of justice exception.
Any other rule would obliterate our rules requiring a motion to strike.” Id.Here, Kirby does not provide a reason beyond insufficiency for the application of the
ends of justice exception. Thus, Kirby’s sufficiency argument fails to raise an issue that would
enable application of the exception. Accordingly, the ends of justice exception does not apply
and we do not consider the merits of Kirby’s sufficiency challenge.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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