Morris v. Com.

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.

DONOVAN PAYNE MORRIS
OPINION BY
v. Record No. 032714 SENIOR JUSTICE HARRY L. CARRICO
January 14, 2005
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

INTRODUCTION

At issue in this appeal is Code § 18.2-308.2, which makes

it a Class 6 felony to knowingly and intentionally possess or

transport a firearm after having been convicted of a felony.

Also at issue is Code § 18.2-282, which makes it a Class 1

misdemeanor to point, hold, or brandish a firearm in such manner

as to reasonably induce fear in the mind of another.1

PROCEDURAL BACKGROUND

In a two-count indictment, Donovan Payne Morris (Morris)

was charged with possession of a firearm, to-wit, a flare

pistol, after having been convicted of a felony, and with

brandishing a firearm. In a bench trial, Morris was convicted

of both offenses and sentenced to five years’ imprisonment with

three years suspended on the possession charge and to twelve

months on the brandishing charge.

One of the judges of the Court of Appeals denied Morris’s

petition for appeal. Morris v. Commonwealth, Record No. 3395-

1
Code § 18.2-282 makes it a Class 6 felony to point, hold,
or brandish a firearm on or within 1000 feet of school property.
02-4 (August 5, 2003). For the reasons assigned in that order,

a three-judge panel of the Court of Appeals also denied Morris

an appeal. Morris v. Commonwealth, Record No. 3395-02-4

(October 30, 2003). We awarded Morris this appeal.

FACTUAL BACKGROUND

The record establishes that Morris has a string of nine

felony convictions dating back to 1977. With respect to the

present offenses, the evidence shows that on June 20, 2002,

Peter Molina, an engraver of tombstones, was working in an

Alexandria cemetery accompanied by his wife, who was his

business partner. Morris appeared on the scene, dragging a

bicycle and smelling of alcohol. He sat on a tombstone, staring

at Molina and his wife, cursing and mumbling. After about five

minutes, Morris looked at Molina’s wife and said, “I’d like

that.” When Molina asked Morris what he had said, Morris stood

up, “raised up his shirt,” and “showed [Molina] this gun he had

in his waistband.”

Because Molina did not know “what the situation was or what

the situation could be,” he became “worried about” his wife’s

safety and decided he “needed to get her out of there.” They

got into their truck and, as they were leaving the cemetery,

they encountered Officer Vincent Omundson of the Alexandria

Police Department.

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 Molina told Officer Omundson “there was a man back there

with a gun in his waistband.” Omundson, armed with a shotgun,

found Morris sitting on “a stump or a bucket,” drinking beer.

When Omundson told Morris to put down his drink and raise his

hands, Morris responded by reaching under his shirt, pulling out

the flare gun, and throwing it into some grass about twenty-five

feet away. After some resistance from Morris, Omundson arrested

him and retrieved the flare gun. One “fired round” of

ammunition was found in the flare gun and three “loaded rounds”

were found on Morris’s person.

STANDARD OF REVIEW

In keeping with familiar principles, we will consider the

evidence and all reasonable inferences fairly deducible

therefrom in the light most favorable to the Commonwealth, the

prevailing party below. Dowden v. Commonwealth, 260 Va. 459,

461, 536 S.E.2d 437, 438 (2000). However, since the statutes at

issue here are penal in nature, they must be construed strictly

against the Commonwealth, and any ambiguity or reasonable doubt

as to their meaning must be resolved in Morris’s favor. See

Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761

(1979). But this does not mean that Morris is entitled to a

favorable result based upon an unreasonably restrictive

interpretation of the statutes. See id.

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 DISCUSSION

Possession of a Firearm

As noted previously, Code § 18.2-308.2 proscribes the

possession of a firearm by a convicted felon. While this Code

section does not define the term “firearm,” we held in Armstrong

v. Commonwealth, 263 Va. 573, 562 S.E.2d 139 (2002), that “in

order to sustain a conviction for possessing a firearm in

violation of Code § 18.2-308.2, the evidence need show only that

a person subject to the provisions of that statute possessed an

instrument which was designed, made, and intended to expel a

projectile by means of an explosion.” 263 Va. at 584, 562 S.E.

2d at 145.2

Morris was certainly a person subject to the provisions of

Code § 18.2-308.2. He contends, however, that the Commonwealth

did not prove that a flare gun is a firearm as the latter term

is defined in Armstrong, i.e., an instrument which was designed,

made, and intended to expel a projectile by means of an

explosion.

We disagree with Morris. Detective William Bunney of the

Alexandria Police Department was recognized by the trial court

2
The question in Armstrong was whether, in a prosecution
for violation of Code § 18.2-308.2, the Commonwealth is required
to prove as an element of the offense that the object possessed
by the defendant was an “operable” firearm. The Court answered
in the negative. 263 Va. at 584, 562 S.E.2d at 145.

4
as “an expert in the field of firearms.”3 Detective Bunney

examined Morris’s flare gun and test-fired it, using two of the

three rounds of ammunition recovered from Morris’s person.

Detective Bunney testified that the flare gun operated “the

way it was intended to by the manufacturer, meaning [the] hammer

comes back, stays in the locked position until the trigger is

pulled and the hammer falls forward, and when it falls forward,

the firing pin falls forward of the breech plate so that it will

strike the primer of the shell to ignite the primer, to ignite

the propellant, to send a projectile downrange.” Detective

Bunney explained that the primer is “sort of like a dynamite

cap. It’s an initiator of . . . a larger explosion.”

Detective Bunney also testified that a round of ammunition

identical to that found on Morris’s person contains a projectile

made up of a metal cap holding a mixture of black powder and

paraffin. The detective said that black powder is an explosive

and that it was the cause of “a burnt residue” found inside the

empty cartridges of the two rounds of ammunition used in the

test-firing.

In the test-firing, Detective Bunney set up a paper target

“at the approximately 25 yard line” of the firing range. When

3
On brief, Morris complains that the trial court improperly
allowed Detective Bunney to testify as an expert on several
matters in controversy, but Morris has not assigned error to the
trial court’s action in this respect. Accordingly, we will not
consider the complaint. Rule 5:17(c).

5
he pulled the trigger on the flare gun, he “felt a decidable

recoil within the firearm” and “[s]moke appeared at the muzzle

end.” He saw “an object leave the barrel,” saw “an object . . .

hit the paper [target],” and heard a “metallic object strike a

metallic object further downrange.” A metal deflection guard

was in place “at the further end of the range.”

The first time Detective Bunney fired the flare gun, he

used only a paper target. The shot traveled through the paper

and produced two holes. On the second shot, the detective

backed up the paper target with a cardboard target. The shot

traveled through the paper and the cardboard and produced two

holes. Detective Bunney likened his test-firing of the flare

gun with his experience in firing a 12-gauge shotgun “at medium

to short distances,” where one hole is created in a target by

the projectile and one is created by wadding.

Finally, Detective Bunney was asked whether the trigger,

hammer, barrel or breech, and firing pin of the flare gun were

“consistent or inconsistent with other firearms with which [the

detective was] familiar.” He answered, “[c]onsistent.”

Accordingly, we conclude that the Commonwealth proved that

Morris possessed an instrument that was designed, made, and

intended to expel a projectile by means of an explosion.4

4
In another case decided by the Court of Appeals while this
case was pending, the court held that a “flare gun clearly falls

6
 Morris argues, however, that under Code § 18.2-308.2, the

Commonwealth had the burden of proving that he “knowingly and

intentionally” possessed a firearm. Citing Staples v. United

States, 511 U.S. 600 (1994), Morris states that “[a]n essential

element of the crime that must be proved beyond a reasonable

doubt is mens rea, scienter, or criminal intent,” yet the

Commonwealth did not show that he “knew that [his] flare gun was

a firearm.”

Morris cites a stipulation entered into below stating that

flare pistols and flares are sold at a retail store in

Alexandria; that these items are not kept under lock and key;

that the store has no minimum age of purchase for the items,

does not require registration of the items or a waiting period

for their purchase, observes no restriction on the sale of the

items, and does not require a potential purchaser to produce

identification. Morris then says that “[t]here is apparently

little to no regulation of who may purchase or possess flare

guns in Virginia” and that “[n]o average, reasonable person

would ever consider that possession of [a] plastic safety device

within the definition of ‘firearm’ articulated in Armstrong.”
Quesenberry v. Commonwealth, 41 Va. App. 126, 129, 583 S.E.2d
55, 56 (2003).

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that can be purchased with no restrictions and is not otherwise

regulated would subject them to criminal liability.”5

We reject Morris’s argument that he did not know a flare

gun is a firearm. He admitted in his testimony that he had seen

flare guns fired before, and when asked whether he had “any idea

that the flare gun was capable of expelling a projectile by

means of an explosion,” he evaded the question, saying that “to

me it’s a safety device, you know, of somebody being on a boat,

of somebody in trouble . . . to me it ain’t no gun.” Morris

also testified that he had never fired the flare gun, that he

had bought it for $10.00 from “this guy on the street” and

planned to sell it to “the owner of the graveyard.”

Morris has not explained, however, why, if he thought the

flare device “ain’t no gun,” he felt it necessary to try to

dispose of the device when Officer Omundson arrived on the

scene. Nor has Morris explained how, if he had never fired the

5
Code § 18.2-308.2:2(B)(1) provides for a criminal history
check of a person purchasing a firearm from a dealer and
requires the person to furnish information relating to his or
her identification and residency in Virginia. This Code section
defines the term “firearm” in much the same way as we defined
the term in Armstrong, and we said we would read the Code
section in para materia with Code § 18.2-308.2, the section then
under review, “in order to give consistent meaning to the
language used by the General Assembly.” 263 Va. at 583, 562
S.E.2d at 145. But it should not be implied from our reference
to Code § 18.2-308.2:2 in Armstrong that we consider flare guns
to come within the ambit of that Code section. Indeed, the
Attorney General agrees that “flare guns are not subject to the
restrictions set forth in § 18.2-308.2:2.”

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flare gun, it just so happened that a fired round of ammunition

was found in its chamber. In any event, the trial court was not

bound to credit the testimony of Morris, a convicted felon.

Indeed, the trial judge said he found Morris’s testimony

“questionable at the least for a variety of reasons.” And, upon

finding Morris’s testimony unworthy of belief, the trial judge

could draw the reasonable inference that Morris testified

falsely "in an effort to conceal his guilt.” Covil v.

Commonwealth, 268 Va. 692, 696, 640 S.E.2d 79, 82 (2004) (citing

Emmett v. Commonwealth, 264 Va. 364, 372, 569 S.E.2d 39, 45

(2002)). See also Black v. Commonwealth, 222 Va. 838, 842, 284

S.E.2d 608, 610 (1981). The judge could also “consider whatever

[he] concluded to be perjured testimony as affirmative evidence

of guilt,” Wright v. West, 505 U.S. 277, 296 (1992).

Finally, the trial judge found that the flare gun was

“obviously . . . intended to be used as a weapon” and that from

“the way [the instrument] was used under the facts of this case,

it may well be inferred [that Morris knew the flare gun had the

characteristics that would make it fall within the statute].”

The judge also said: “I believe the mens rea is there. He used

[the flare gun] for essentially a criminal purpose.” We agree

with the trial judge and conclude that the evidence was

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sufficient to show that Morris knowingly and intentionally

possessed a firearm within the intendment of Code § 18.2-308.2.6

Brandishing a Firearm

As noted supra, Morris was charged with pointing, holding,

or brandishing a firearm in such a manner as to reasonably

induce fear in the mind of another, pursuant to Code § 18.2-282.

Morris argues “[t]here was insufficient evidence that [he]

pointed, held or brandished the firearm, and there was

insufficient evidence that there was reasonable fear in the mind

of Peter Molina.”

Morris says that although Peter Molina saw the flare gun in

Morris’s waistband, he never testified that he was in fear of

the gun. Morris asserts that Molina, solely out of concern for

his wife, insisted that they should leave the area where Morris

was sitting. Indeed, Morris states, Molina indicated in his

6
During argument on a defense motion for a new trial, the
trial court admitted into evidence “for purposes of appeal” a
letter signed by the Chief of the Firearms Technology Branch of
the Bureau of Alcohol, Tobacco and Firearms of the United States
Department of the Treasury. The letter stated that the flare
gun possessed by Morris was not designed as a weapon or to expel
a projectile by the action of an explosive and was not a firearm
subject to the provisions of 18 U.S.C., Chapter 44, the Gun
Control Act of 1968. The trial court also received a written
stipulation asked for by defense counsel and agreed to by the
Commonwealth’s Attorney, “except as to relevance.” The
stipulation stated that “Doug Craze of the Bureau of Alcohol,
Tobacco, and Firearms would testify that a flare gun is not
regulated by the BATF.” We consider both statements irrelevant.
How the BATF interprets the federal statute and decides what is
and what is not a firearm is not binding upon this Court, or
even persuasive.

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testimony that he “may have stayed where he was had his wife not

been there.”

Morris says further that he “never touched the gun in the

presence” of Molina or his wife and there is no evidence that

“he pointed the flare gun.” Hence, Morris concludes, the

evidence is insufficient to support a conviction for brandishing

a firearm.

We disagree with Morris. “Brandish” means “to exhibit

or expose in an ostentatious, shameless, or aggressive

manner.” Webster’s Third New International Dictionary, 268

(1993). When Morris looked at Ms. Molina, said “[he’d]

like that,” and then pulled up his shirt to uncover the

flare gun, he exhibited or exposed the weapon in a

shameless or aggressive manner. And Morris brandished the

weapon in such a manner as to reasonably induce fear in the

mind of Peter Molina. Although Molina may not have said he

was in fear for his own safety, he stated unequivocally

that he feared for the safety of his wife, and that is

sufficient to prove the “induced fear” element of a

conviction for brandishing a firearm under Code § 18.2-282.

CONCLUSION

Finding no error in the judgment of the Court of Appeals,

we will affirm the judgment.

Affirmed.

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