COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
RAYMOND FRANKLIN MOORE, JR.
MEMORANDUM OPINION * BY
v. Record No. 2755-95-3 JUDGE LARRY G. ELDER
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Diane McQ. Strickland, Judge
John P. Varney (Office of the Public
Defender, on brief), for appellant.
Ruth Morken, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Daniel J. Munroe, Assistant Attorney General,
on brief), for appellee.
Raymond Moore (appellant) appeals his conviction of
possession of a firearm by a convicted felon under Code
§ 18.2-308.2. He contends that the evidence was insufficient
to prove that the object possessed by him was a firearm. For
the reasons that follow, we affirm.
I.
FACTS
On April 11, 1995, Detective Altizer of the Roanoke City
Police Department found what appeared to be a rifle during a
consent search of appellant's room. Appellant, who had a prior
felony conviction, was charged with possession of a firearm by a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
convicted felon. At his trial, appellant moved to strike the
Commonwealth's evidence on the ground that it had failed to prove
that the object possessed by appellant was in fact a "firearm."
Appellant argued that the Commonwealth did not prove that the
purported rifle confiscated by Detective Altizer had the actual
ability to expel a projectile by the power of an explosion. The
trial court denied appellant's motion and found him guilty of
possession of a firearm by a convicted felon.
II.
SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to
support his conviction because the Commonwealth failed to prove
that he actually possessed a "firearm." We disagree.
Code § 18.2-308.2 provides that "[i]t shall be unlawful for
(i) any person who has been convicted of a felony . . . to
knowingly and intentionally possess . . . any firearm . . . ."
As with any essential element of a criminal offense, the
Commonwealth has the burden of proving beyond a reasonable doubt
that the object possessed by a person charged under Code
§ 18.2-308.2 was actually a "firearm." See Dowdy v.
Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979).
"Code § 18.2-308.2 prohibits a felon from possessing 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, and
it is not concerned with the use or display of a device that may
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have the appearance of a firearm." Jones v. Commonwealth, 16 Va.
App. 354, 357-58, 429 S.E.2d 615, 617 (1992), aff'd en banc, 17
Va. App. 233, 436 S.E.2d 192 (1993) (holding that a firearm under
Code § 18.2-308.2 is a device "that propel[s] a projectile by an
explosion or discharge of gun powder"). Thus, 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.
The Commonwealth may prove that a firearm is operable in
several ways. See Jeffrey F. Ghent, J.D., Annotation, Fact that
Gun was Broken, Dismantled, or Inoperable as Affecting Criminal
Responsibility under Weapons Statute, 81 A.L.R.4th 745, 760-63
(1990). While the best method of proving the ability of a
firearm to discharge shot by gunpowder is to introduce the
testimony of a ballistics expert who test-fired the weapon, id.,
the Commonwealth is not required to offer direct evidence that
the firearm is operable. See Booker v. Engle, 517 F.Supp. 558,
561 (S.D.Ohio 1981); State v. Cartwright, 246 Or. 120, 137-38,
418 P.2d 822, 830 (1966), cert. denied, 386 U.S. 937, 87 S. Ct.
961, 17 L.Ed.2d 810 (1967) (citing Couch v. Commonwealth, 255
S.W.2d 478, 479 (Ky. 1953)). Instead, the operability of a
firearm may be proved by circumstantial evidence. "A reasonable
fact finder may . . . infer operability from an object which
looks like, feels like, sounds like or is like, a firearm. Such
an inference would be reasonable without direct proof of
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operability." Commonwealth v. Layton, 452 Pa. 495, 498, 307 A.2d
843, 844 (1973); cf. Richardson v. Commonwealth, 21 Va. App. 93,
100, 462 S.E.2d 120, 124 (1995) (stating that, in a prosecution
under Code § 18.2-308.2:2, the fact that the weapon had the
firing capability required to distinguish it from antique weapons
could be inferred from the evidence).
We hold that the evidence was sufficient to prove that the
rifle confiscated by Detective Altizer had the actual ability to
expel a projectile by the power of an explosion. "When a
defendant challenges the sufficiency of the evidence, we are
required to review the evidence 'in the light most favorable to
the Commonwealth and give it all reasonable inferences fairly
deducible therefrom.'" Collins v. Commonwealth, 13 Va. App. 177,
179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
"The conviction will not be reversed unless it is plainly wrong
or without evidence to support it." Id. Detective Altizer
testified that he examined the rifle, tested the trigger
mechanism, and that the rifle was a Thompson's Center Arms .50
caliber black powder rifle. A photograph of the rifle was
introduced. Detective Altizer testified in detail how the rifle
functioned to discharge a bullet by an explosion of gunpowder.
Based on this evidence that the rifle "looks like, feels like,
. . . [and] is like" a firearm, a reasonable fact finder could
infer that the rifle was operable and therefore a firearm under
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Code § 18.2-308.2. See Jolly v. State, 183 Ga. App. 370, 372,
358 S.E.2d 912, 913-14 (1987) (holding that unrefuted testimony
of police officer that objects were pistols was sufficient to
prove that they were capable of firing projectiles); State v.
Millett, 392 A.2d 521, 527 (Me. 1978) (holding that testimony of
witnesses who observed handgun projecting from defendant's belt
was sufficient to prove operability).
Appellant argues that the circumstantial evidence of the
rifle's operability was insufficient because Detective Altizer
testified that non-functioning replicas of the Thompson's rifle
exist and that he did not know the difference between a replica
and a real Thompson's rifle. We disagree. In a case based upon
circumstantial evidence, the Commonwealth must exclude every
reasonable hypothesis of innocence. See Cantrell v.
Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988).
We hold that the record contains evidence other than Detective
Altizer's description of the rifle that sufficiently disposes of
the hypothesis that the rifle was a non-functioning replica.
First, appellant twice made statements to Detective Altizer in
which he referred to the rifle as either a "gun" or a "firearm."
During neither of these conversations did appellant refer to the
rifle as a non-functioning replica. In addition, appellant made
inconsistent statements about how the rifle became placed in his
room. On the day the rifle was confiscated, appellant told
Detective Altizer that he "was keeping the gun for his father."
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Then, two days later when Detective Altizer arrested appellant,
appellant told the detective that the firearm did not belong to
his father and that he did not know how the firearm was
transported to his room. These inconsistent statements permitted
the trial court to infer that appellant was concealing his guilt.
See Hughes v. Commonwealth, 18 Va. App. 510, 520-21, 446 S.E.2d
451, 458 (1994).99
For the foregoing reasons, we affirm the conviction.
Affirmed.
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