Jason Derick Martin, s/k/a Jason Derek Martin v. CW

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
JASON DERICK MARTIN, S/K/A
JASON DEREK MARTIN
MEMORANDUM OPINION * BY
v. Record No. 0678-98-3 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission, on briefs), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jason Derek Martin appeals his conviction of possession of a
firearm by a felon in violation of Code § 18.2-308.2. The
defendant contends that the evidence was insufficient to prove
that he possessed a firearm that could fire a projectile by an
explosion. Concluding that the evidence was sufficient to prove
that fact beyond a reasonable doubt, we affirm his conviction.
The defendant and Daryl Carter had a fight. After Andre
Robinson broke it up, the defendant went to his trailer. He and
his brother came back out carrying at their sides what Carter and
Robinson described as handguns. A third witness testified that
the defendant and his brother appeared to have weapons at their
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
sides. The defendant raised his arm just before several shots
were fired. None of the witnesses saw who fired the shots
because they all ducked.
The defendant denied possessing or owning a gun. He claimed
Carter fired the shots because Carter feared the defendant and
others were going to jump him. The defendant said he entered the
trailer when the shooting started and admitted leaving the scene
when the police arrived. The defendant's nephew also testified
that Carter fired the shots.
The defendant was charged originally with shooting at an
occupied motor vehicle and possessing a firearm after being
convicted of a felony. At the conclusion of the Commonwealth's
evidence, he moved to strike the evidence. The trial court
struck the evidence of shooting into an occupied vehicle because
it did not prove whether the defendant, his brother, or both
fired shots. The trial court denied the motion to strike the
possession charge. The defendant contends that was error because
the Commonwealth failed to prove that the object he possessed was
a functioning firearm.
Code § 18.2-308.2(A) provides that "[i]t shall be unlawful
for . . . any person who has been convicted of a felony . . . to
knowingly and intentionally possess . . . any firearm . . . ."
The statute is designed to proscribe possessing a real firearm
that has the actual capacity to do serious harm. Code
§ 18.2-308.2 "is not concerned with the use or display of a
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device that may have the appearance of a firearm." Jones v.
Commonwealth, 16 Va. App. 354, 357-58, 429 S.E.2d 615, 617, aff'd
en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993). See Timmons v.
Commonwealth, 15 Va. App. 196, 200-01, 421 S.E.2d 894, 897 (1992)
(firearm need not contain a clip to violate Code § 18.2-308.4
because only a "moment's delay" is needed to make it operable).
The Commonwealth must prove that the defendant possessed a
firearm with the capacity to do serious harm. See Jones, 16 Va.
App. at 357-58, 429 S.E.2d at 617. Circumstantial evidence can
prove that capacity. See Byers v. Commonwealth, 23 Va. App. 146,
150-51, 474 S.E.2d 852, 854 (1996). "Circumstantial evidence 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." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983), cert.
denied, 465 U.S. 1109 (1984). See LaPrade v. Commonwealth, 191
Va. 410, 418, 61 S.E.2d 313, 316 (1950).
"The credibility of witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear the evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). On appeal, the question is "whether . . . any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979). The fact finder is entitled to disbelieve
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the defendant's self-serving testimony and to conclude that the
defendant is lying to conceal his guilt. See Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998). In addition, an inference of guilt may arise from a
finding of flight. See Jones v. Commonwealth, 208 Va. 370, 374,
157 S.E.2d 907, 910 (1967).
Considering the circumstantial evidence as a whole and
viewing it in the light most favorable to the Commonwealth, it
proves that the defendant possessed an operable firearm. After a
fight with Carter, the defendant retreated to his trailer and
returned with his brother. Three witnesses believed the
defendant possessed a firearm. Two witnesses saw him raise his
arm as if to shoot, and all three ducked instinctively to protect
themselves. Bullets damaged property in the line of fire. While
no one saw exactly who fired the shots, either the defendant or
his brother, who was standing right beside him, did.
The trial court stated it is "reasonable for the court to
conclude that [defendant] had a firearm . . . he wouldn't have
been walking around with one that wouldn't work . . . he would
[not] have been carrying a dummy gun; and he did, in fact, have
one that would function." (Emphasis in original). The trial
court drew the reasonable inference that the defendant would no
more bring a toy gun to this showdown than Wyatt Earp would have
brought one to the O. K. Corral. See McBride v. Commonwealth, 24
Va. App. 603, 608, 484 S.E.2d 165, 168 (1997) (en banc) ("clear
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inference to be drawn from [defendant's] threat to 'shoot,' is
that he did have a gun" during robbery); Richardson v.
Commonwealth, 21 Va. App. 93, 100, 462 S.E.2d 120, 124 (1995)
(inference that firearm fell under Code § 18.2-308.2:2(G)
permitted where no evidence presented that it had firing
capacity); Blake v. Commonwealth, 15 Va. App. 706, 709, 427
S.E.2d 219, 221 (1993) (defendant's firearm possession proven by
constructive possession where codefendants used it during
robbery).
Reviewed by the standard applied on appeal, this evidence
excludes all reasonable hypotheses of innocence and is sufficient
to support the finding of guilt. Accordingly, we affirm the
judgment of the trial court.
Affirmed.
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