COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
JOSEPH BRITT, III
MEMORANDUM OPINION * BY
v. Record No. 0679-96-1 JUDGE RICHARD S. BRAY
APRIL 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
Melinda R. Glaubke (Office of the Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Joseph Britt, III, (defendant) was convicted by a jury of
five misdemeanor counts of brandishing a firearm and one felony
count of possession of a firearm by a convicted felon, all
arising from the same incident. On appeal, he complains that the
court erroneously denied his motions to sever the misdemeanor and
felony trials and for a mistrial arising from improper closing
argument by the prosecutor. Defendant also challenges the
sufficiency of the evidence to support the felony and two
brandishing convictions. For the reasons that follow, we affirm
the felonious possession conviction, but reverse and remand the
brandishing convictions.
The parties are fully conversant with the record, and this
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
MOTION FOR SEVERANCE
Relying upon Johnson v. Commonwealth, 20 Va. App. 49, 455
S.E.2d 261 (1995), defendant first argues that the trial court
abused its discretion in denying his motion for severance, and
the Commonwealth quite correctly concedes on brief that Johnson
requires reversal of defendant's convictions for brandishing a
firearm. However, Johnson does not mandate a reversal of the
conviction for felonious possession of the firearm. See id. at
56-57, 455 S.E.2d at 265.
SUFFICIENCY OF EVIDENCE 1
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Traverso v. Commonwealth, 6 Va. App. 172, 176,
366 S.E.2d 719, 721 (1988). The jury's verdict will not be
disturbed unless plainly wrong or without evidence to support it.
See id. The credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are
matters solely for the fact finder's determination. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
1
Because a remand of the brandishing offenses would be
improper if the evidence did not support the challenged
convictions, we must address the sufficiency issue relative to
both the misdemeanors and felony. Gorham v. Commonwealth, 15 Va.
App. 673, 677-78, 426 S.E.2d 493, 495-96 (1993).
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Code § 18.2-308.2 makes it unlawful for "any person who has
been convicted of a felony . . . to knowingly and intentionally
possess or transport any firearm." The jury was instructed
accordingly and, further, that a "firearm" is a "device that has
the actual capacity to do serious harm because of its ability to
expel a projectile by the power of an explosion." See Jones v.
Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 617, aff'd,
17 Va. App. 233, 436 S.E.2d 192 (1993) (en banc).
Circumstantial evidence is sufficient to support a
conviction, provided it excludes every reasonable hypothesis of
innocence. See Cantrell v. Commonwealth, 7 Va. App. 269, 289,
373 S.E.2d 328, 338 (1988). However, "[t]he Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993). Whether an alternative hypothesis of
innocence is reasonable is a factual determination, see Cantrell,
7 Va. App. at 290, 373 S.E.2d at 339, and therefore is binding on
appeal unless plainly wrong. See Traverso, 6 Va. App. at 176,
366 S.E.2d at 721.
Here, the record discloses that defendant's sister, Dorian,
excitedly called upon defendant to "give her the gun," prompting
him to rush toward the Mitchell residence, armed with a .44 or
.45 caliber pistol. A "clicking sound" was heard as defendant
loaded a "clip" of ammunition into the weapon, and he yelled
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"I'll F[___] all you M[_____] F[___]ers up." Defendant entered
the home, waving the gun about and pointing it at people inside,
and demanded, "Who in the f[___] hit my sister?" Four persons
present during the offenses identified the weapon as a "gray
gun," with a long barrel. From this evidence, the jury properly
concluded that the defendant possessed an actual firearm and
brandished it at those present in the residence.
MISTRIAL
"When a motion for mistrial is made, based upon an allegedly
prejudicial event, the trial court must make an initial factual
determination, in the light of all the circumstances of the case,
whether the defendant's rights are so 'indelibly prejudiced' as
to necessitate a new trial." Spencer v. Commonwealth, 240 Va.
78, 95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908 (1990).
"A trial court's ruling will be permitted to stand unless it is
made to appear probable that the party complaining has been
substantially prejudiced by the objectionable remarks or
arguments." Martinez v. Commonwealth, 10 Va. App. 664, 669, 395
S.E.2d 467, 470 (1990), aff'd as modified, 241 Va. 557, 403
S.E.2d 358 (1991). Whether to grant a mistrial rests within the
sound discretion of the trial judge, and "absent a showing of
abuse of discretion, the court's ruling will not be disturbed on
appeal." Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599,
607 (1990).
The prosecutor may properly "'refer to the evidence and fair
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inferences from it'" during closing argument to a jury.
Martinez, 10 Va. App. at 672, 395 S.E.2d at 472 (quoting Timmons
v. Commonwealth, 204 Va. 205, 216-17, 129 S.E.2d 697, 705
(1963)). "Whether the words used were prejudicial must be judged
by a review of the totality of the evidence." Fain v.
Commonwealth, 7 Va. App. 626, 629, 376 S.E.2d 539, 541 (1989).
Here, the prosecutor argued to the jury, "Ladies and
[G]entlemen, you have a violent criminal -- a felon before you.
You can see from the conviction order that he's been violent
before. He has the propensity to do so." We acknowledge that
these remarks improperly urged the jury to conclude that
defendant's prior convictions made it more likely that he
possessed a firearm in this instance. However, the court had
instructed the jury earlier "that the fact the defendant was
previously convicted of a felony is not evidence that he
knowingly and intentionally possessed or transported a firearm on
June 13, 1995." Under such circumstances, we do not find that
defendant was so "indelibly prejudiced" that it necessitated a
mistrial.
Accordingly, we reverse and remand the convictions for
brandishing a firearm but affirm the conviction for possession of
a firearm by a convicted felon.
Affirmed in part,
reversed in part,
and remanded.
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