Larry Wayne Inge v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
LARRY WAYNE INGE
OPINION BY
v. Record No. 2114-01-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
J. Patterson Rogers, 3rd, for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Larry Wayne Inge of statutory
burglary while armed with a deadly weapon, Code § 18.2-92, 1 and
brandishing a firearm, Code § 18.2-282. He maintains the
evidence did not prove beyond a reasonable doubt that he was
armed with a deadly weapon at the time he entered the dwelling.
Finding the evidence sufficient, we affirm.
We view the evidence and all reasonable inferences fairly
deducible therefrom in the light most favorable to the
Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 518, 506
1
Any person who breaks and enters an occupied dwelling
"with the intent to commit any misdemeanor" "armed with a deadly
weapon . . . shall be guilty of a Class 2 felony." Code
§ 18.2-92 (emphasis added).
S.E.2d 312, 314 (1998). Two men armed with semi-automatic
pistols assaulted the defendant and threatened to kill him. The
defendant fled, armed himself, and returned to the area looking
for the assailants. He was searching for them when he entered
the apartment of Wanda Roman armed with a .25 caliber automatic
handgun. He waved the gun around and asked, "[W]here they at?
Where they at?" The defendant scared everyone in the apartment
but left after Roman convinced him the assailants were not
there. The defendant told the police that the gun was not
loaded and that he had never fired the gun and did not know if
it worked. He said he threw the gun away, and no firearm was
introduced at trial.
Whether an instrument is a deadly weapon is a question of
fact. "'A deadly weapon is one which is likely to produce death
or great bodily injury from the manner in which it is used
. . . .'" Pannill v. Commonwealth, 185 Va. 244, 254, 38 S.E.2d
457, 462 (1946). Pannill distinguishes weapons that are deadly
weapons as a matter of law, deadly weapons per se, and those
that are deadly because of the circumstances surrounding their
use. We do not decide if a gun is a deadly weapon per se
because the circumstances surrounding its use prove the gun in
this case was deadly in fact.
A deadly weapon is an instrument designed and constructed
to inflict death or great bodily harm and used in that manner.
Pritchett v. Commonwealth, 219 Va. 927, 929, 252 S.E.2d 352, 353
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(1979). Pritchett "designed and constructed" a pipe into a
weapon to defend himself from vicious dogs. "If that weapon is
used in the manner contemplated by its design and construction
. . . it would . . . be likely to cause death or great bodily
harm to a human being." Id. at 929, 252 S.E.2d at 354.
Accordingly, it was a deadly weapon. Id. (citations omitted).
In this case, the defendant entered the home armed with a
handgun. The .25 caliber automatic firearm was designed and
constructed for one purpose, as a weapon to kill or wound. It
was likely to do so when used in the manner contemplated by its
design and construction. The defendant used it in that manner.
He entered the apartment looking for his assailants, brandished
the gun at the occupants, and only left when satisfied his
quarry was not present. Those circumstances permit the
reasonable conclusion that the defendant used the gun as an
offensive weapon likely to cause death or great bodily harm.
The Commonwealth did not need to prove the firearm was
operable or loaded for it to be a deadly weapon. In Cox v.
Commonwealth, 218 Va. 689, 240 S.E.2d 524 (1978), the defendant
claimed his pistol was not a deadly weapon because it was loaded
with wooden bullets and incapable of firing. The defendant
"entered the bank wielding a pistol in the ordinary manner
contemplated by its nature and design, and his brandishing of it
held it out as an offensive weapon, capable of inflicting death
or great bodily injury." Id. at 691-92, 240 S.E.2d at 526. The
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Court held: "The mere fact that the bullets therein were ab
initio incapable of being discharged did not make the pistol any
less deadly within the meaning of the statute." Id. at 692, 240
S.E.2d at 526 (citations omitted). "To hold otherwise would
place an intolerable and unnecessary burden of proof upon the
Commonwealth." Id.
In this case, the defendant's actions closely paralleled
those of Cox. He brandished the gun holding it out as an
offensive weapon capable of killing or wounding. Accepting his
claim that the gun was unloaded, we see no reason to distinguish
Cox, which involved entering a bank, Code § 18.2-93, from this
case, which involved entering a dwelling, Code § 18.2-92. A gun
is no less deadly when brought into a dwelling than when brought
into a bank. Accordingly, we affirm the conviction.
Affirmed.
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