COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
BRADLEY SCOTT JOHNSON
MEMORANDUM OPINION * BY
v. Record No. 1488-00-4 JUDGE JEAN HARRISON CLEMENTS
JULY 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Henry E. Hudson, Judge Designate
Peter M. Baskin (Pelton, Balland, Young,
Demsky, Baskin & O'Malie, P.C., on briefs),
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Bradley Scott Johnson was convicted in a jury trial of use
of a firearm in the commission of malicious wounding in
violation of Code § 18.2-53.1. 1 On appeal, Johnson contends the
trial court erred (1) in ruling the evidence was sufficient to
convict him of use of a firearm in the commission of malicious
wounding even though he used an unloaded handgun solely as a
striking instrument, (2) in granting the Commonwealth's jury
instruction defining "firearm," and (3) in refusing his jury
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Johnson was also convicted on pleas of guilty of malicious
wounding and assault and battery.
instruction defining "use" of a firearm. Finding no error, we
affirm the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of
the proceedings as necessary to the parties' understanding of
the disposition of this appeal.
I. BACKGROUND
On December 18, 1999, at approximately 11:30 p.m., Mayra
Fernandez, accompanied by Mark Wenske, returned home to her
uncle's house in Arlington County, Virginia. They parked on the
street, in front of the house. When Fernandez and Wenske exited
the car, Johnson rushed up to Fernandez, his former girlfriend,
and asked, "Is this the guy?" Fernandez nodded affirmatively
and Johnson pulled out a nine-millimeter semi-automatic pistol,
pointed it at Fernandez, and pulled the trigger four times. The
gun clicked each time Johnson pulled the trigger but did not
fire. After the fourth click Johnson said, "Aren't you lucky."
Wenske tried to intervene when Johnson first rushed up to
Fernandez but, thinking the gun was loaded, got behind the car
when Johnson pulled out the pistol.
Still brandishing the pistol, Johnson grabbed Fernandez's
arm, said, "Let's go," and started pulling her away from the
house. Fernandez told Wenske to call the police and yelled for
her uncle to help her. Johnson then hit Fernandez on the head
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five times with the butt of the gun. Fernandez fell to the
ground bleeding, and Johnson hit her again.
Wenske, who had started calling the police on his cellular
phone, ran over to protect Fernandez but was himself struck by
Johnson on the hand and head with the gun. Undaunted, Wenske
grabbed Johnson. During the ensuing struggle, the gun was
dislodged and tossed into the street. Johnson ran to get the
gun, but Wenske again dislodged it and pushed Johnson away from
the gun.
At that point, hearing screams outside his house,
Fernandez's uncle ran out to find his niece lying face down in a
puddle of blood and Wenske and Johnson fighting. He heard
Wenske say two or three times that Johnson had a gun.
Fernandez's uncle saw the gun in the street and attempted to
throw it under the car parked on the street. He then helped
Wenske subdue Johnson and the police were called.
When the police arrived, they found the gun in the street
near the car parked in front of the house. They also found in
the street, approximately forty feet from the scene of the
assault, an empty magazine clip from a nine-millimeter weapon.
The magazine clip was damaged because it had been run over by
traffic. The police also found a magazine clip with seven
nine-millimeter bullets in it and thirty-five additional
nine-millimeter bullets in Johnson's car parked approximately
one block away.
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At trial, the court, at the Commonwealth's request, gave
the following instruction defining "firearm" to the jury:
INSTRUCTION NO. 8
A firearm is a weapon designed to expel
a projectile by the explosion of gun powder,
by spring mechanism, or by pneumatic
pressure. It is not necessary that the
object actually have the capability of
firing a projectile, provided that it
retains enough of its parts that it has not
lost its appearance as a firearm.
The existence of a firearm may be
proved by circumstantial evidence, direct
evidence, or both.
Conversely, the trial court refused to give Johnson's requested
jury instruction defining "use" of a firearm, which provides:
INSTRUCTION NO. A
The Court instructs the jury that the
term "use" contained in Instruction No. 7 2
2
The referenced jury instruction reads as follows:
INSTRUCTION NO. 7
The defendant is charged with the crime
of using a firearm while committing or
attempting to commit the malicious wounding
of Mayra Fernandez. The Commonwealth must
prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That the defendant used a firearm; and
(2) That the use of the firearm was while
committing or attempting to commit the
Malicious Wounding of Mayra Fernandez.
If you find that the Commonwealth has
proven these elements beyond a reasonable
doubt, then you shall find the defendant
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means the defendant's employment of the
firearm in the ordinary manner contemplated
by its nature and design.
(Footnote added.)
II. SUFFICIENCY OF EVIDENCE OF USE OF A FIREARM
Johnson contends the legislature intended, in enacting Code
§ 18.2-53.1, to punish solely those "offenders who employ
firearms in the ordinary manner as contemplated by their nature
and design to produce fear in the victim or actual injury by
gunfire." He argues that using a gun to strike or bludgeon the
victim is not included in the definition of "use" in the statute
and that striking or bludgeoning instruments are not included in
the definition of "firearm" in the statute. Thus, he concludes,
the evidence establishing that he beat the victim with a gun was
insufficient to convict him of using a firearm while committing
malicious wounding.
When the sufficiency of the evidence is challenged on
appeal, we review the evidence "in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.
guilty, but you shall not fix his punishment
until further evidence has been heard by
you.
If you find that the Commonwealth
failed to prove beyond a reasonable doubt
either or both of the elements of the
offense, then you shall find the defendant
not guilty.
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248, 250, 356 S.E.2d 443, 444 (1987). We may not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985). We are further mindful that the
"credibility of a witness, the weight accorded the testimony,
and the inferences to be drawn from proven facts are matters
solely for the factfinder's determination." Keyes v. City of
Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767
(1993).
Code § 18.2-53.1 provides, in pertinent part:
It shall be unlawful for any person to use
or attempt to use any pistol, shotgun,
rifle, or other firearm or display such
weapon in a threatening manner while
committing or attempting to commit . . .
malicious wounding as defined in § 18.2-51
. . . .
Johnson concedes that he brandished a pistol and used it to
maliciously wound Fernandez. He argues, however, that, because
he used the unloaded gun as a club and not in its "traditional
manner" to maliciously wound Fernandez, he may not properly be
convicted of use of a firearm in the commission of malicious
wounding.
"Even though any ambiguity or reasonable doubt as to the
meaning of a penal statute must be resolved in favor of an
accused, nevertheless a defendant is not entitled to benefit
from an 'unreasonably restrictive interpretation of the
statute.'" Holloman v. Commonwealth, 221 Va. 196, 198, 269
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S.E.2d 356, 357 (1980) (quoting Ansell v. Commonwealth, 219 Va.
759, 761, 250 S.E.2d 760, 761 (1979)). In construing the term
"firearm," we have said:
[W]hether the term "firearm" when used in a
statute without being defined is to be given
its traditional meaning or a more expansive
meaning depends upon the purpose and policy
underlying the particular statute. When the
statute is designed to not only deter
physical harm, but also to deter a broader
range of conduct that produces fear or
physical harm, a more expansive definition
of "firearm" is required in order to
effectuate that purpose.
Jones v. Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 616
(1992), aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993).
The purpose of Code § 18.2-53.1, keyed to
serious crimes and prescribing inflexible
penalties, is to deter violent criminal
conduct. The statute not only is aimed at
preventing actual physical injury or death
but also is designed to discourage criminal
conduct that produces fear of physical harm.
Such fear of harm results just as readily
from employment of an instrument that gives
the appearance of having a firing capability
as from use of a weapon that actually has
the capacity to shoot a projectile. The
victim of a crime can be intimidated as much
by a revolver that does not fire bullets as
by one that does; such victim cannot be
required to distinguish between a loaded
pistol and a [gun incapable of firing
bullets] when it is brandished during
commission of a felony.
Holloman, 221 Va. at 198, 269 S.E.2d at 358 (citations omitted).
To obtain a conviction under "Code § 18.2-53.1, the
Commonwealth must prove that the accused actually had a firearm
in his possession and that he used or attempted to use the
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firearm or displayed the firearm in a threatening manner while
committing or attempting to commit" certain specified felonies,
including malicious wounding. Yarborough v. Commonwealth, 247
Va. 215, 218, 441 S.E.2d 342, 344 (1994).
In this case, Johnson used his gun, which had the
appearance of having a firing capability, to "pistol whip" the
victim. In doing so, he maliciously wounded her. Before using
the gun to inflict the injuries upon the victim, Johnson pointed
it at her and pulled the trigger several times. The victim's
companion, who was afraid the gun was loaded, was deterred from
assisting the victim by Johnson's brandishing of the pistol.
We hold that the evidence presented in this case was
sufficient to prove beyond a reasonable doubt that Johnson was
in possession of a firearm and that he displayed the firearm in
a threatening manner and used it while committing malicious
wounding, in violation of Code § 18.2-53.1. Hence, the trial
court did not err in ruling the evidence was sufficient to
convict Johnson of use of a firearm in commission of malicious
wounding.
B. JURY INSTRUCTIONS
Johnson contends that the inclusion of the language, "its
appearance as a firearm," in Instruction No. 8 was error because
intimidation is not an element of malicious wounding. Thus, he
argues, in the context of malicious wounding, a gun is an
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applicable firearm under Code § 18.2-53.1 only when it is fired
to commit the malicious wounding. We disagree.
Johnson's nine-millimeter semi-automatic pistol, which he
pointed at his victim and used to maliciously wound her was, in
fact, a firearm in his possession. See Yarborough, 247 Va. at
218, 441 S.E.2d at 344. The jury instruction, including the
challenged language, was an accurate statement of the law, see
Holloman, 221 Va. at 198, 269 S.E.2d at 358, and covered issues
raised by the evidence in this case. Therefore, the trial court
did not err in granting Instruction No. 8. See Darnell v.
Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988).
Johnson also contends that the trial court erred in
refusing to give his proffered Instruction A to the jury.
Instruction A, he argues, correctly states the principle that a
gun can only be "used" under Code § 18.2-53.1 to commit
malicious wounding if it is fired.
"On appeal, when the issue is a refused jury instruction,
we view the evidence in the light most favorable to the
proponent of the instruction." Lynn v. Commonwealth, 27 Va.
App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239, 514
S.E.2d 147 (1999). "A party is entitled to have the jury
instructed according to the law favorable to his or her theory
of the case if evidence in the record supports it." Foster v.
Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).
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Here, though, we have concluded that Johnson's brandishing
of the handgun and employment of it to maliciously wound the
victim constituted "use" of a firearm under Code § 18.2-53.1.
Thus, we hold that Johnson's proposed instruction defining "use"
was an erroneous statement of the law and the trial judge did
not err in refusing to grant it.
For these reasons, we affirm the conviction.
Affirmed.
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