COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Alston and Senior Judge Annunziata
Argued at Richmond, Virginia
CHRISTOPHER Y. PERSON
OPINION BY
v. Record No. 1598-11-2 JUDGE ROSSIE D. ALSTON, JR.
AUGUST 7, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SURRY COUNTY
Samuel Campbell, Judge
(Bradley P. Butterworth, on briefs), for appellant. Appellant
submitting on briefs.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Christopher Y. Person (defendant) appeals his conviction for use of a sawed-off shotgun
in the commission of a crime of violence in violation of Code § 18.2-300. In this appeal,
defendant contends that the evidence was insufficient to prove that the weapon used met the
statutory definition of “sawed-off shotgun” under Code § 18.2-299. Finding no error, we affirm
defendant’s conviction.
I. Background
“When examining a challenge to the sufficiency of the evidence, an appellate court must
review the evidence in the light most favorable to the prevailing party at trial and consider any
reasonable inferences from the facts proved.” Viney v. Commonwealth, 269 Va. 296, 299, 609
S.E.2d 26, 28 (2005) (citing Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538,
539 (2003)).
So viewed, the evidence indicated that defendant, Deon Walker, Raymond Moore, and
Bobby Hill decided to rob the players at a poker game taking place at a residence in Surry
County on May 22, 2010. When the men arrived at the residence, Walker, Hill, and defendant
left Moore in the car parked “down a little path” nearby the residence. According to Hill,
defendant was carrying a “sawed-off shotgun” that night.
Sometime between midnight and 1:00 a.m., Hill entered the residence and joined Nancy
Overton, Daneen Overton, and Rantavis Evans to play cards. Defendant and Walker entered the
house forty-five minutes later, clad in masks and carrying guns. During the course of the
robbery, Evans shot and killed Walker. Defendant left the residence and returned to the car,
where he told Moore to “drive.” Moore saw defendant with a “sawed-off shotgun” and observed
defendant bury the gun in the ground.
Later that morning, Officer William Thomas of the Surry County Sheriff’s Department
interviewed Moore regarding the robbery. Moore initially told Officer Thomas that defendant
had disposed of the gun at a stop sign after the men left the residence. However, after Officer
Thomas checked stop signs near the residence and did not find the gun, Moore told Officer
Thomas that the gun was at “the old L.P. Jackson school site,” approximately 125 yards from the
residence.
Using a tracking dog, Officer Thomas found the gun at the school, buried under a pile of
sand and rocks. The gun was wrapped in a piece of camouflage cloth from a jacket with
Walker’s name tag. At trial, Officer Thomas described the gun he recovered wrapped in the
cloth with Walker’s name tag on it as a “sawed-off shotgun.”
Defendant was indicted for burglary in violation of Code § 18.2-89, robbery in violation
of Code § 18.2-58, wearing a mask to conceal his identity in violation of Code § 18.2-422, use of
a sawed-off shotgun while committing armed robbery after having been previously convicted of
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a similar violation of Code § 18.2-53.1, and use of a sawed-off shotgun in the commission of a
crime of violence in violation of Code § 18.2-300.
At trial, the Commonwealth presented the testimony of Moore, Nancy Overton, Officer
Thomas, and Hill. The Commonwealth also introduced a picture 1 of the gun recovered by
Officer Thomas as well as the gun itself into evidence. At the conclusion of the
Commonwealth’s evidence, defendant moved to strike, arguing that the Commonwealth had
failed to prove that the gun in question met the definition of “sawed-off shotgun” under Code
§ 18.2-299. The trial court denied the motion, stating that it “personally observed the shotgun”
and identified it as a “Remington 1100 sawed-off shotgun,” although the trial court noted that it
“couldn’t tell the gauge because the barrel was missing.” Defendant presented no evidence,
rested his case, and renewed his motion to strike. The trial court again denied the motion.
Defendant then filed a written motion to strike, raising the same argument. Following
consideration of jury instructions, the trial court considered defendant’s motion and once again
denied it. The trial court stated that the weapon was introduced into evidence and seen by the
jury and that the jury could “make a determination whether or not it was a sawed[-]off shotgun.”
1
The picture of the gun admitted into evidence at trial is reproduced here for illustrative
purposes.
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The trial court then instructed the jury regarding the statutory definition of “sawed-off
shotgun.” The instruction stated:
A “sawed-off” shotgun is any weapon, loaded or unloaded,
originally designated as a shoulder weapon, utilizing a
self-contained cartridge from which a number of ball shot pellets
or projectiles may be fired simultaneously from a smooth or rifle
bore by a single function of the firing device and which has a
barrel length of less than eighteen (18) inches for smooth bore
weapons and sixteen (16) inches for rifled weapons. A weapon of
less than .225 caliber is not a sawed-off shotgun.
After deliberation, the jury found defendant guilty of burglary, robbery, wearing a mask
to conceal his identity, and use of a sawed-off shotgun in the commission of a crime of violence.
The trial court sentenced defendant to a total of 46 years’ imprisonment. This appeal followed. 2
II. Analysis
On appeal, defendant alleges the evidence was insufficient to prove the gun introduced
into evidence met the statutory definition of “sawed-off shotgun” in Code § 18.2-299.
Code § 18.2-300(A) provides: “Possession or use of a ‘sawed-off’ shotgun or
‘sawed-off’ rifle in the perpetration or attempted perpetration of a crime of violence is a Class 2
felony.” Code § 18.2-299 defines “sawed-off shotgun” as
any weapon, loaded or unloaded, originally designed as a shoulder
weapon, utilizing a self-contained cartridge from which a number
of ball shot pellets or projectiles may be fired simultaneously from
a smooth or rifled bore by a single function of the firing device and
which has a barrel length of less than 18 inches for smooth bore
weapons and 16 inches for rifled weapons. Weapons of less than
.225 caliber shall not be included.
2
Defendant’s petition for appeal was granted in part and denied in part by a judge of this
Court. The sufficiency of the evidence in support of defendant’s conviction for use of a
sawed-off shotgun in the commission of a crime of violence is the only assignment of error
before us in this appeal. Assignments of error regarding a witness’ identification of defendant,
the Commonwealth’s alleged failure to disclose a confession or admission made by defendant,
and a double jeopardy claim were previously denied by a per curiam decision of this Court.
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“Whether [a] weapon met the statutory definition [of a sawed-off shotgun] was a factual issue for
the jury to decide.” Bruce v. Commonwealth, 9 Va. App. 298, 301, 387 S.E.2d 279, 280 (1990).
Accordingly, this determination “shall not be set aside unless it appears from the evidence that
such judgment is plainly wrong or without evidence to support it.” Code § 8.01-680.
Reference to the case of Taylor v. Commonwealth, 10 Va. App. 260, 391 S.E.2d 592
(1990), is helpful to the resolution of the issue presented in this appeal. In Taylor, the defendant
was convicted in a bench trial of possession of a sawed-off shotgun in violation of Code
§ 18.2-300(B). Id. at 262, 391 S.E.2d at 593. On appeal, Taylor argued that the evidence was
insufficient to prove that the weapon was a sawed-off shotgun within the statutory definition. Id.
This Court affirmed, holding that the evidence was sufficient. We noted,
[T]he gun was admitted into evidence as Commonwealth’s exhibit
number one. The trial court, as the trier of fact, stated that “the
gun speaks for itself,” and that “it’s a .20 gauge shotgun and a
shotgun shoots shells. It’s been cut here, the barrel has been cut
off, it’s less than the prescribed length.”
Id. at 269, 391 S.E.2d at 597.
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.’” Prieto v. Commonwealth, 283
Va. 149, 169, 721 S.E.2d 484, 496 (2012) (quoting Muhammad v. Commonwealth, 269 Va. 451,
524, 619 S.E.2d 16, 58 (2005)); see also Hsiu Tsai v. Commonwealth, 51 Va. App. 649, 653, 659
S.E.2d 594, 595 (2008). Moreover, “[jurors] may make use of their reason and common sense,
and the knowledge and experience gained by them in everyday life.” Charles E. Friend, The
Law of Evidence in Virginia § 19-20 (6th ed. 2003) (citing Troutner v. Commonwealth, 135 Va.
750, 755, 115 S.E. 693, 694 (1923); Thurpin v. Commonwealth, 147 Va. 709, 715, 137 S.E. 528,
530 (1927) (allowing jurors to employ their sense of smell in a case involving whiskey)).
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The gun in this case was admitted into evidence. The trial court properly instructed the
jury on the definition of “sawed-off shotgun” under the statute. The statutory definition of
“sawed-off shotgun” cited in the instruction required the jury to determine both the barrel length
of a weapon and that the weapon was .225 caliber or greater, 3 among other specifications. Using
their reason, common sense, knowledge, and experience, the jury could determine from
examining the gun whether it met the statutory definition, and, in finding defendant guilty, the
jury necessarily determined that it did. Because the gun was admitted into evidence, it was not
an evidentiary prerequisite for the Commonwealth to present testimony regarding the gun’s
characteristics in order for the jury to reach this conclusion. Moreover, the jury’s determination
was not plainly wrong or without evidence to support it. Therefore, we affirm the judgment of
the trial court.
Affirmed.
3
“‘Caliber’ is defined as ‘the diameter of a bore of a gun usually expressed in modern
U.S. and British usage in hundredths or thousandths of an inch and typically written as a decimal
fraction.’” Dillard v. Commonwealth, 28 Va. App. 340, 347 n.1, 504 S.E.2d 411, 414 n.1 (1998)
(quoting Webster’s New Collegiate Dictionary 157 (1977)). Thus, the diameter of the bore of a
gun with a .225 caliber is .225 inches. Notably, the jury in the instant case was not required to
determine the exact caliber of the gun at issue, but only that it was .225 caliber or greater.
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