THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill
Dennis Harmon, Jr., for appellant.
Stephen L. Forster, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Decker and Russell
J. HUMPHREYS, JUDGE.
Markeith Gerald ("Gerald") appeals the decision by
the Circuit Court of Virginia Beach ("circuit
court") convicting him of discharging a firearm in
public under Code § 18.2 280, brandishing a firearm
under Code § 18.2 282, possession of a firearm by a
convicted felon in violation of Code § 18.2 308.2, and
revoking a previously suspended sentence based on those
convictions. Gerald contends that the evidence was
insufficient to prove that the object in question was a
"firearm" as defined by law.
28, 2013, James Goode ("Goode") dropped off his
seventeen-year-old son Michael Ramel Goode
("Ramel") at Scarborough Square, a neighborhood in
Virginia Beach, for a visit with Ramel's friend Xavier
Browder ("Browder"). Looking back as he drove away,
Goode saw that Ramel was "slap boxing" in the
middle of the street with an adult, Calvin Scott
("Scott"). Goode returned to Ramel, stopped his
vehicle in the street, and got out. Goode began talking with
Scott in an attempt to end the altercation, while ushering
Ramel and Browder into his vehicle. A gunshot interrupted
Goode and Scott's conversation. Turning toward the noise,
Goode saw Gerald, a convicted felon, walking toward him.
Gerald, continuing his advance, fired a second gunshot.
Gerald then pointed the gun directly at Goode while he walked
to the passenger side of Goode's vehicle where Ramel was
sitting. Gerald pressed the gun into Ramel's thigh and
grabbed Ramel's legs, attempting to pull him out of the
vehicle. Goode began pulling on Ramel's arms through the
vehicle from the driver's side. Goode testified he was
able to free Ramel from Gerald's grasp, at which point
Gerald fired a third shot into the pavement.
Detective John Belsha, working in an undercover capacity,
drove by the scene while investigating another matter. As he
passed Goode's vehicle, Belsha observed an argument
between the occupants of the vehicle and a man standing
outside the vehicle. Detective Belsha parked approximately
one hundred and fifty feet past Goode's vehicle to
observe. Belsha watched as the physical altercations
developed and, as Gerald was pulling Ramel from the vehicle,
Belsha observed "a large frame handgun" in
Gerald's hand. Belsha saw that Gerald "point[ed]
[the handgun] up, discharge[d] one round, brought the handgun
back down, looked at it, and then discharged another round
towards the ground." Detective Belsha testified that,
based on his training and experience, such a handgun was
"capable of expelling a projectile by the means of
explosion." Gerald and Scott left the scene of the
altercation and entered a nearby townhouse where Shaniqua
Rowe ("Rowe"), Gerald's girlfriend and
Scott's sister, resided.
Belsha called for a marked police unit to respond. When the
second police unit arrived, Gerald, Scott, and the other
occupants were ordered out of the house. Once Gerald was in
custody, an inspection of the street where the altercation
occurred produced two shell casings and bullet fragments in
the area where Gerald was standing. The forensic scientist
who analyzed the casings testified that they were both fired
from the same gun. It was at least thirty minutes before
consent to search the townhouse was obtained. During that
time, the back door was unsecured and police saw Rowe go into
a neighbor's townhouse twice. When the townhouse was
eventually searched, no firearm was recovered.
was convicted by a jury of possession of a firearm by a
convicted felon and sentenced to five years in the Virginia
State Penitentiary. Gerald was also convicted in a bench
trial of discharging a firearm in public and brandishing a
firearm, and sentenced to twelve months in jail for each
offense and, as a result of these convictions, was also found
to be in violation of the terms of his probation.
Standard of Review
all of Gerald's assignments of error relate to the
sufficiency of the evidence to establish that the item at the
center of his various convictions and probation revocation
was a "firearm" and because the outcome of all of
the assignments of error turn on the statutory definition of
that term, ...