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Gerald v. Commonwealth

Court of Appeals of Virginia

October 17, 2017



          Harry 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



         Aaron 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.[2] Gerald contends that the evidence was insufficient to prove that the object in question was a "firearm" as defined by law.

         I. BACKGROUND

         On May 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.

         Simultaneously, 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.

         Detective 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.

         Gerald 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.

         II. ANALYSIS

         A. Standard of Review

         Because 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, ...

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