COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
JOHNNY LAMAR GATES
MEMORANDUM OPINION * BY
v. Record No. 0502-98-4 JUDGE MARVIN F. COLE
JULY 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
T. Kevin Wilson (Weimer & Boyce, on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Johnny Lamar Gates, appellant, appeals his conviction for the
possession of a firearm by a convicted felon in violation of Code
§ 18.2-308.2. On appeal, he argues that the evidence was
insufficient to prove that the item he possessed was capable of
expelling a projectile or that a projectile would be expelled by
the power of an explosion. Because the Commonwealth failed to
prove that appellant possessed a device having the "ability to
expel a projectile by the power of an explosion," we reverse the
conviction and dismiss the charge. Jones v. Commonwealth, 16 Va.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
App. 354, 357-58, 429 S.E.2d 615, 617, aff'd on reh'g en banc,
17 Va. App. 233, 436 S.E.2d 192 (1993).
FACTS
Paul DeBruel testified that on March 13, 1997, appellant
and Lori Williams, who had a romantic relationship with
appellant, argued in the apartment appellant shared with
Williams. Williams asked appellant to leave the apartment.
Appellant left the apartment when DeBruel telephoned the police.
Later, appellant returned to the residence and forced his way
into the apartment as DeBruel and Williams tried to hold the
door shut. DeBruel testified that appellant "pushed his way"
into the apartment and that he held "a weapon or something . . .
[s]omething that looked black or something." DeBruel then
stated that appellant waved a gun that "looked kind of black, I
think, all over, but one part was like, I guess, wooden or
something." DeBruel testified that he "thought" the gun was a
revolver, and he agreed that the gun had a barrel. DeBruel also
testified that he "was looking right at [the gun]" and that it
appeared to be a "real gun." The record indicates that DeBruel
stood "within a few inches" of appellant when he observed the
gun.
DeBruel also testified that appellant discussed DeBruel's
testimony with him prior to the trial. DeBruel stated that he
"guess[ed] that appellant did not want to go to jail, and he
"guess[ed]" that appellant wanted DeBruel to "lie for him."
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On cross-examination DeBruel testified that the gun was
"like gray and black." He also stated that he has never handled
or fired a gun and that he has had no experience with guns.
Williams testified on behalf of the defense. She testified
that, at the time of the trial, she continued to have a romantic
relationship with appellant, that they lived together, and that
they rode to court together on the date of the trial.
Williams testified that she did not think appellant had a
gun on March 13, 1997. Appellant's counsel later asked, "Did
you see anything that resembled a gun?" Williams replied,
"Something, yeah--well, actually I can't really say. . . . I
saw something in his hand." Williams denied that appellant
waved anything in the air while he was in the apartment.
On cross-examination, Williams stated that when appellant
entered the apartment, he held something that "looked like a
gun." Williams agreed that she "may have" told the police that
appellant held a large caliber revolver. She later denied that
she had previously told the police that appellant possessed a
gun during the incident.
Appellant denied that he possessed a gun during the
incident. He testified that he had in his hand a large key
chain which he displayed at trial. It was described as "a key
chain with a band approximately 18 inches in length, black with
Rugged Sports in white lettering on it, with . . . six key
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chains, . . . eight keys, a small wooden bat approximately four
inches in length." The police did not recover a gun.
Officer John Mora testified that on March 13, 1997, he
responded to Williams' residence regarding a domestic dispute.
Mora stated that Williams told him that appellant pushed the
door open and he entered the apartment waving a "large caliber
revolver."
ANALYSIS
Appellant argues that DeBruel's testimony was "fraught with
unexplained inconsistencies" and that, even if his testimony was
believed, it failed to establish that the item possessed by
appellant was capable of expelling a projectile, or that the
projectile would be expelled by the power of an explosion.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted). Code § 18.2-308.2 provides that "[i]t shall
be unlawful for any person who has been convicted of a felony
. . . to knowingly and intentionally possess or transport any
firearm." Although Code § 18.2-308.2 does not define "firearm,"
we have held that, in a prosecution under Code § 18.2-308.2, the
Commonwealth is required to prove that the purported firearm had
the actual ability to "expel a projectile by the power of an
explosion." Jones, 16 Va. App. at 357-58, 429 S.E.2d at 617.
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Here, the Commonwealth presented no evidence that the
alleged firearm had the ability to "expel a projectile by the
power of an explosion." Id. The police did not recover a
weapon. Thus, no weapon was examined by the authorities or
admitted into evidence. Furthermore, DeBreul's testimony did
not prove that the item he allegedly saw in appellant's
possession had the ability to expel a projectile by the power of
explosion. Moreover, DeBruel testified that he had never
handled a gun, fired a gun, or been close to a gun. He stated
that he had no "experience in guns." In addition, Williams
testified that she did not think appellant possessed a gun
during the incident. Therefore, because the Commonwealth failed
to prove that appellant possessed a device having the ability
"to expel a projectile by the power of an explosion," the
evidence does not support appellant's conviction for possession
of a firearm after having been convicted of a felony.
Reversed and dismissed.
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