Douglas Dashawn Wimbush v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Russell and Senior Judge Clements
UNPUBLISHED
Argued at Salem, Virginia
DOUGLAS DASHAWN WIMBUSH
MEMORANDUM OPINION* BY
v. Record No. 0723-18-3 JUDGE JEAN HARRISON CLEMENTS
JULY 9, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James J. Reynolds, Judge
Michael A. Nicholas (Daniel, Medley & Kirby, P.C., on brief), for
appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
A jury found appellant guilty of possession of a firearm after having been adjudicated a
violent felon. He argues on appeal that the evidence was insufficient as a matter of law to prove
that he “possessed a firearm capable of expelling a projectile by means of an explosion.”1 We
disagree and affirm his conviction.2
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The Commonwealth contends that appellant’s argument is waived because his
assignment of error refers only to the capability of the firearm to expel a projectile. In
Armstrong v. Commonwealth, 263 Va. 573, 584 (2002), the Supreme Court held that the correct
standard under Code § 18.2-308.2 is whether the firearm “was designed, made and intended to
expel a projectile by means of an explosion,” and that it was “not necessary” to prove the
weapon was “‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious
harm.’” We assume without deciding that appellant’s assignment of error is sufficient for us to
address the merits of his argument.
2
As a consequence of his conviction, appellant’s previously suspended sentence was
revoked and partially re-suspended. Appellant asserts that the revocation should be reversed if
his conviction is reversed. Because we affirm appellant’s conviction, this claim is moot.
BACKGROUND
Under settled principles, we state the facts in the light most favorable to the
Commonwealth because it prevailed in the trial court. Gerald v. Commonwealth, 295 Va. 469,
472-73 (2018). We regard as true all credible evidence favorable to the Commonwealth and all
inferences that may reasonably be drawn from that evidence. Id.
The evidence established that Erica Hutchings heard gunshots after 7:00 a.m. on October
29, 2017, and saw a black man wearing a blue and white long sleeved jacket, who was later
identified as appellant, running past her house. She called 911, and several police officers
responded to the scene at 7:55 a.m. An unoccupied car was in the middle of the street; the front
passenger side window had been shot out, and money was strewn from the car into a nearby
yard.
A neighbor, Ralph Chandler, also heard gunshots and saw two black males walking
through the back of his yard at about 7:40 - 7:45 a.m. The taller of the two men wore a white,
blue, and green jacket and held a dark colored revolver with a four or five-inch barrel. Chandler
could not see the men’s faces clearly enough to identify them specifically.
Bobby Martin and his wife lived on an adjacent street to Chandler and Hutchings.3 At
about 7:30 - 7:45 a.m., a black man walked onto the rear porch of Martin’s house and asked to
use the phone. Appellant followed the man onto the deck. Martin described appellant as the
taller or bigger man. The smaller man wore jeans and a dark colored shirt. Appellant wore a
blue and white jacket. The smaller man asked to make another telephone call. He then opened
the sliding door, and both he and appellant entered Martin’s house. Martin told them they had to
leave because he was going to church. The two men walked back onto the deck, and Martin saw
3
An aerial map of the neighborhood was used at trial to show the close proximity of the
houses of Chandler, Hutchings, and Martin.
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the smaller man hand appellant a gun, which appellant put in his pocket. Martin testified at trial
that the gun was wrapped in a thin white cloth. He recognized the shape of a gun, but could not
determine the specific type or model.
Appellant and the other man walked behind a shed in Martin’s back yard. Martin saw
appellant “peep[ing] out” from behind the shed. Martin’s wife had called 911, and as the police
officers arrived “shortly before 9:00 a.m.,” appellant was walking down Martin’s driveway.
Appellant was no longer wearing his jacket. The police later found the jacket hidden in a trash
can next to the shed. The gun was not recovered. The police saw an unidentified man running
away from Martin’s shed, but he was not apprehended.
The results of a gunshot residue test conducted on appellant’s hands were negative. The
forensic scientist who performed the analysis testified that the absence of residue indicates that
the person tested did not fire a gun or that he could have worn gloves or wiped or washed his
hands after firing the gun.
Shortly after he was arrested on October 29, 2017, appellant made two telephone calls
from the jail, the recordings of which were played at trial. The first call was made about noon.
Appellant told the woman he called that he had been charged with a gun offense. He said that
the police had performed a gun powder residue test and that the test would come back negative.
He indicated that another woman had shot out a car window. He then told the woman on the
phone that he needed her to contact a man he called “Gutter,” and that she was to tell Gutter that
he needed to “get the toolie woolie from under the [inaudible].” The woman responded to the
request by asking “They didn’t get that right . . . . They didn’t find that.” Appellant confirmed
that no one had found the object. He concluded the phone conversation by once again telling the
woman that she needed to contact another person who needed “to handle” the situation.
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The second call was made about one hour later to the same woman. Appellant asked her
to go to Martin’s house to get the object he left there. He described the house, gave her
directions to get there, and told her to look under the shed and in the bushes. Near the end of the
call, appellant asked her to call a third party. Another male voice is then heard on the line.
Appellant told this man that he was facing a gun charge and explained that the police had
performed a gun powder residue test on him. The unidentified man told appellant that he was
“good” because he did not have a gun. Appellant interjected that he was trying to get the woman
to pick up something that he had left at Martin’s shed. The unidentified man responded that he
had “already got the jammy4 . . . don’t worry about that.” The man then told appellant “don’t
talk about no jammies.”
ANALYSIS
When reviewing a challenge to the sufficiency of the evidence, the judgment of the trial
court is presumed correct; we may set the judgment aside only if it “is plainly wrong or without
evidence to support it.” Code § 8.01-680; Pijor v. Commonwealth, 294 Va. 502, 512 (2017).
Given that presumption, this Court “does not ‘ask itself whether it believes that the evidence at
the trial established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va.
190, 193 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319).
4
There is no evidence in the record to explain what a “jammy” refers to. When the
phone conversation is taken in context with the other evidence produced by the Commonwealth
at trial it reasonably can be inferred that appellant and the other man were talking about the gun
that Martin and Chandler had seen appellant holding earlier in the day. See Kelly v.
Commonwealth, 41 Va. App. 250, 257-58 (2003) (noting the responsibility of the trier of fact to
draw reasonable inferences from basic facts to ultimate facts).
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Additionally, “[c]ircumstantial evidence [presented during the course of the trial] is as
competent and is entitled to as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of guilt.” Holloway v.
Commonwealth, 57 Va. App. 658, 665 (2011) (en banc) (quoting Coleman v. Commonwealth,
226 Va. 31, 53 (1983)). Circumstantial evidence is not “viewed in isolation.” Brown v.
Commonwealth, 54 Va. App. 107, 119 (2009) (quoting Muhammad v. Commonwealth, 269 Va.
451, 479 (2005)). Rather, the “combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.” Id.
To convict appellant, the Commonwealth had to prove that he had previously been
convicted of a felony and possessed an object “designed, made, and intended to fire or expel a
projectile by means of an explosion.” Jordan v. Commonwealth, 286 Va. 153, 157 (2013)
(quoting Armstrong, 263 Va. at 583). Appellant does not contest his status as a convicted felon,
but he argues that the evidence did not prove that he possessed a firearm in violation of Code
§ 18.2-308.2 because no firearm was recovered and Martin’s testimony that appellant had a gun
was not credible. Martin said that he did not “know that much about guns,” but he was positive
that the object wrapped in a thin cloth, which the smaller man gave to appellant, was a gun.
Appellant asserts that because Martin could not identify with specificity the type of gun that he
saw, the evidence established only that appellant possessed an object that appeared to be a
firearm.
A court may consider a witness’s identification of an object as a firearm. “The
determination of how much weight to give to [Martin’s] identification of the object as a [firearm]
was a matter for the trier of fact.” Jordan, 286 Va. at 158. The Commonwealth was not required
“to present specific testimony that the object was designed, made, and intended to fire or expel a
projectile by means of an explosion.” Speller v. Commonwealth, 69 Va. App. 378, 395 (2018).
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Rather, whether the object fit the requisite definition “is a question of fact that may be proven by
circumstantial evidence.” Id.
Other evidence supported Martin’s testimony and proved that appellant possessed a
firearm that was “designed, made, and intended to expel a projectile by means of an explosion.”
Armstrong, 263 Va. at 584. Two witnesses, Hutchings and Chandler, testified that they heard
gunshots on the morning of October 29, 2017. The police found an unoccupied car in the street
near Hutchings’s house, and the front passenger window had been shot out. Hutchings identified
appellant as the man she saw passing her house immediately after she heard gunshots. Chandler
said that he saw two black men walk through his yard and that the taller man had a revolver in
his hand. Given the location of their houses, which was shown on an aerial map, the reasonable
inference is that the man Chandler saw was appellant.
Further, in appellant’s first telephone call from jail, he discussed an incident in which
another woman had shot out a window of a car. Appellant told the woman he had called that she
needed to tell a man he identified as “Gutter” to retrieve an object that had been left behind. In
appellant’s second telephone call from the jail to the same woman, he asked her to go to Martin’s
residence to look under the shed and in the bushes for an object he had hidden there. He
described the property and gave directions to get there. During the call, an unidentified man told
appellant not to worry and that he “already got the jammy.” Because the police searched the
property without finding the firearm, the reasonable inference is that appellant’s friend had
already retrieved it. See Kelly, 41 Va. App. at 257-58.
The jury accepted the testimony of the Commonwealth’s witnesses as credible.
Determining the “credibility of the witnesses is a matter solely for the finder of fact, who has the
opportunity to observe the witnesses testify.” Severance v. Commonwealth, 67 Va. App. 629,
649 (2017), aff’d, 295 Va. 277 (2018); see Commonwealth v. McNeal, 282 Va. 16, 22 (2011)
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(fact finder is entitled to resolve any conflicts in the evidence). “When ‘credibility issues have
been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be
disturbed on appeal unless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291
(2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991)).
CONCLUSION
We hold that the evidence was sufficient to prove that appellant was guilty as charged,
and we affirm his conviction.
Affirmed.
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