COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

CARNEAL CREWE, S/K/A 

 CARNEAL COSELLE CREWE 

 MEMORANDUM OPINION* BY 

v. Record No. 2709-95-2 JUDGE JAMES W. BENTON, JR. 

 OCTOBER 29, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY 

Samuel Taylor Powell, III, Judge 

 Michael C. Tillotson for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Sitting without a jury, the circuit court judge convicted 

Carneal Crewe of brandishing a firearm in violation of Code 

§ 18.2-282. Crewe contends that the evidence was insufficient to 

convict him of the offense. We agree and reverse the conviction. 

 The essential facts are undisputed. The evidence proved 

that Amanda Barneycastle and Crewe were dating. On the afternoon 

of August 8, 1995, while Barneycastle was visiting Crewe at his 

residence, they began to argue. During the argument, Crewe 

removed Barneycastle's keys from her car and temporarily disabled 

the telephone to the residence. Barneycastle, who lived a five 

minutes' walking distance away, did not leave the residence. 

 During the argument, Barneycastle and Crewe hit each other. 

 Barneycastle could not recall who began the physical 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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altercation, but she did testify that Crewe disengaged from the 

fighting and left her in his bedroom. Barneycastle testified 

that she tried to call her parents on the telephone but could 

not. 

 Crewe testified that after he disengaged from the argument, 

Barneycastle remained in his room talking to his cousin. Crewe 

went into his brother's bedroom and closed the door to allow 

Barneycastle and himself to calm their emotions. He testified 

that he believed that he closed the door when he entered the 

room. After he entered the room, he "fondl[ed] around with 

stuff" for three or four minutes and picked up one of several 

guns placed beside his brother's bed. Crewe testified that he 

had no specific intent to get a weapon and testified that he had 

a rifle and other weapons in his own room. 

 Later, Barneycastle walked by Crewe's brother's bedroom. 

She looked into the room through the door that was slightly ajar 

and saw Crewe holding a gun. She opened the door, rushed toward 

him to take the gun away, and struggled with him for the gun. 

During her attempt to wrestle the gun away, the barrel was pushed 

to her stomach. When Crewe retained control of the gun, he 

placed it in the corner of the room and left the room with 

Barneycastle. 

 Code § 18.2-282(A) provides, in pertinent part, as follows: 

 It shall be unlawful for any person to point, 

hold or brandish any firearm, as hereinafter 

described, or any object similar in 

appearance to a firearm, whether capable of 

being fired or not, in such manner as to 
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reasonably induce fear in the mind of another 

or hold a firearm in a public place in such a 

manner as to reasonably induce fear in the 

mind of another of being shot or injured. 

However, this section shall not apply to any 

person engaged in excusable or justifiable 

self-defense. 

 In Kelsoe v. Commonwealth, 226 Va. 197, 198, 308 S.E.2d 104, 

104 (1983), the Supreme Court stated that "[t]here are two 

elements of the offense: (1) pointing [, holding,] or 

brandishing a firearm, and (2) doing so in such a manner as to 

reasonably induce fear in the mind of a victim." In this case, 

the Commonwealth proved that Crewe was holding a firearm. 

However, the evidence is insufficient to support a finding that 

Crewe did so "in such a manner as to reasonably induce fear" in 

Barneycastle. Code § 18.2-282(A). 

 Both Barneycastle and Crewe testified that Crewe disengaged 

from the fighting and left Barneycastle in his room. When Crewe 

went to his brother's room, Barneycastle went to the telephone to 

call her parents to come for her. Although Barneycastle remained 

in the residence, she did not testify that she was restrained in 

any manner. Indeed, she testified that the fighting had ceased. 

 Barneycastle testified that when she walked by the brother's 

bedroom she could see into the bedroom. However, her testimony 

proved that the door was almost shut. Only by conjecture could 

the trier of fact conclude that Crewe was aware that he could 

have been seen as he held the gun. The evidence proved that 

Crewe was in the bedroom with the door virtually shut and was not 
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pointing or brandishing the gun toward any person. Barneycastle 

testified that when she peered into the room, Crewe "was pointing 

[the gun] straight up." 

 Barneycastle's own testimony proved that the gun was only 

pointed toward her during the struggle that she initiated to gain 

control of the gun. Crewe made no threats when she grabbed the 

gun. Furthermore, no evidence proved that Crewe intentionally 

pointed the gun at her. Barneycastle said her "first reaction 

was to grab the gun" because she did not know why Crewe had it. 

 The elements of the statute are not proved beyond a 

reasonable doubt when the evidence merely proved that a person 

holding a firearm was inadvertently seen by another. Thus, the 

evidence did not prove beyond a reasonable doubt that Crewe held 

the gun "in such a manner as to reasonably induce fear in the 

mind of another." Code § 18.2-282(A). 

 For these reasons, we reverse the conviction and dismiss the 

charge. 

 Reversed.