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Girard v. Commonwealth

Court of Appeals of Virginia

April 12, 2016



Reginald M. Barley for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Petty, Alston and Russell Judges.


[66 Va.App. 232] ROSSIE D. ALSTON, JR., JUDGE

Charles C. Girard (" appellant" ) appeals his conviction for possession of a firearm by a convicted felon. Appellant argues that the trial court erred in ruling that the certificate of disposition was sufficient to prove beyond a reasonable doubt that appellant was a convicted felon. We disagree and affirm the decision of the trial court.


On August 4, 2014, appellant was indicted on one count of possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2.[1] On May 6, 2015, appellant pled not guilty to the charges against him. Immediately following his plea, appellant was tried in a bench trial.

In support of the charge the Commonwealth proffered the following evidence to which appellant did not object. Deputy Green of the King William County Sheriff's Office responded to an incident which occurred at 349 Canaan Road in King William County. Prior to arriving at that location, Deputy Green met with Ms. Nakita Braxton, the victim, at a relative's home. Ms. Braxton informed Deputy Green that she had confronted appellant after finding women's underwear that did not belong to her in the Canaan Road home and that upon confronting appellant, he hit her in the right arm and upper lip. Ms. Braxton further stated that she was afraid appellant would get his handgun, so she retrieved the gun, ran outside, and threw it under the front steps of the house.

[66 Va.App. 233] Deputy Green then proceeded to 349 Canaan Road to speak with appellant. Deputy Green was accompanied by Corporal Custalow of the King William County Sheriff's Office. Upon arrival, Deputy Green was unable to locate a firearm under the front porch. He then proceeded to knock on the front door. Appellant answered the door, and Deputy Green requested that he step outside and speak with him. Appellant refused to exit the home, but allowed his children to exit and return to Ms. Braxton's custody. Deputy Green then requested to enter the residence. Appellant refused his entry. After his denial of Deputy Green's repeated requests to enter the home, Deputy Green informed appellant that he would be arrested if his refusal continued. Appellant then agreed to allow Deputy Green and Corporal Custalow into the home.

Upon entry into the home, appellant sought to retrieve a pair of shoes from his bedroom. Deputy Green informed appellant that he and Officer Custalow would accompany him to the bedroom. Appellant acquiesced to Deputy Green's request. Once inside the bedroom, Deputy Green observed two long guns against the wall and advised appellant that he was under arrest. Corporal Custalow then grabbed appellant's left arm. Appellant attempted to break away and while doing so, he reached for his waistband. At that moment, the officers observed a handgun in the waistband of appellant's pants. The officers then secured appellant. It was later determined that the handgun in appellant's waistband was a Smith and Wesson .40 caliber, which had been stolen from Henrico County. Appellant denied knowing that the gun was stolen.

While processing appellant, Deputy Green noted a felony on his criminal record, and asked appellant about that conviction. Appellant answered that it was a " conviction in New York State" for " a stolen gun related to his stepson." Thereafter, during the execution of a search warrant, the police found a 410 shotgun, a Ruger rifle, a Sportsman 12 gauge shotgun, a Ruger .308 rifle, a Remington 12 gauge shotgun barrel, and other miscellaneous gun parts and ammunition in the Canaan Road house.

[66 Va.App. 234] After its proffer, the Commonwealth offered into evidence a certificate of disposition from the Nassau County, New York Superior Court. The certificate of disposition provided as follows:

People of the State of New York

Case Number: SCI-88315-94


Lower Court Number (s):


Date of Arrest: 08/01/1993

Girard, Charles

Date of Birth: 01/12/1963


I hereby certify that it appears from an examination of the records on file in this office that on 06/07/1994 before the Honorable Santagata, M then a Judge of this court, the above named Defendant ...

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