COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Mal veaux and Senior Judge Frank Argued at Hampton, Virginia

STEVEN ANTHONY TRACE MEMORANDUM OPINION * BY v. Record No . 0885-18-1 JUDGE MAR Y BENNETT MALVEAUX OCTOBER 1, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge Eric P. Korslund (Law Office of Eric Korslund, P.L.L.C., on b rief), for appellant. Liam A. Curry, Assistant Attorn ey General (Mark R. Herring, Attorney General, on br ief), for appellee.
Steven Anthony Trace (“appellant” ) appeals his conviction for possession of a firearm by a convicted felon, in viol ation of Code § 18.2-308.2(A). 1 He argues that the t rial court erred in denying his motion to set aside the verdict because the evidenc e was insufficient to prove that he possessed a firearm. For the fo llowing reasons, we affirm the trial court’s ruling.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Appellant was also indicted for robbery, in violation of Code § 18.2-58; conspiracy to commit robbery, in violati on of Code §§ 18.2-22 and -58; use of a firearm in the commission of a felony, subsequent offense, i n violation of Code § 18.2-53.1; a nd conspiracy to commit use of a firearm in the commission of afelony, subsequent offense, in v iolation of Code §§ 18.2-22 and -53.1. Upon motion by appellant, the charge of possession of a firearm by a convicted felon was severed from the other four cha rges. In a separate proceeding, the trial court granted the Commonwealth’s motion to nolle prosequi the charge of conspiracy t o commit use of a firearm in the commission of a felony a nd a jury found appellant not gu ilty of the remaining three charges.UNPUBLISHED- 2 - I. BACKGROUND “Under familiar principles of appe llate review, we will state ‘ the evidence in the light most favorable to the Commonw ealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all re asonable inferences fairly de ducible from that evidence.’” Sidney v. Commonwealth, 280 Va. 517, 520 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570 (2002)). On August 11, 2016, Cory Bartley was staying with a friend, Dev on Hoover, in the City of Norfolk. Shortly before 11: 30 p.m., the two men walked to anearby convenience store. Bartley testified at appellant’ s bench trial that when he arriv ed at the convenience store, he was wearing several gold neckl aces and carrying a bookbag. While Bartley and Hoover were at the convenience store, a white SUV arrived and parked. Bartley saw appellant a nd another man get out of the S UV. As Hoover and Bartley walked away from the store, Bar tley noticed appellant and his c ompanion looking in his direction. After walking for about one block, B artley again saw the white SUV. It pulled up and stopped, and appellant and his co mpanion got out. They approac hed Bartley and Hoover and appellant asked Bartley, “H ey, do you know me?” Bartley replie d that he did not. Appellant kept walking closer and cl oser to Bartley and Hoover. At that point, Bartley felt “v ery bad negative vibes” and advis ed Hoover, who was wearing a neck brace, to walk away. Appellant’s companion then “sw[u]ng[] at” Bartley and took his bookbag. Appellant began fi ghting with Bartley and at tempted to take his jewelry. He also “pulled [a] weapon out on [ Bartley].” Bartley described t he weapon as a gun which appellant pointed straight at h is chest and stomach. Bartley t ried to fight back after appellant pointed the gun at him and told hi m to give appellant his walle t and phone. When appellant- 3 - dropped his gun, Bartley ran away. Ba rtley described the sound of appellant’s gun hitting the ground as “[l]ike dropping a block o r like a brick on the groun d . . . dropping a solid object on the ground.” At trial, the Commonwealth’s a ttorney asked Bartley why he thou ght the object pointed at him by appellant was a gun, and Bartley replied, “Because it was a gun. I mean, anybody can know what a gun looks like.” Whe n asked by the trial court wha t specific parts of the weapon led him to conclude that it wa s a gun, Bartley responded, “The trigger, the barrel, the hole in the barrel, everything. I t comes down to a handgun.” Bartley stat ed that he did not “really know really much about guns” and admitte d that at the time of the in cident he did not know what type of handgun was being pointed at h im. However, after later cond ucting research and comparing his recollection with the “looks” and “shape” of a friend’s Glo ck pistol, Bartley determined that the gun was a Glock. In particular , Bartley stated that “the c ubed head of the body from the front of the barrel to the back” were distinctive features of appella nt’s weapon that suggested to him that it was like his friend’s G lock. During cross-examination, Bartley agreed that he did not hold the object dropped by appellant a nd that he would not know whet her the object pointed at him by appellant was a “real gun or a BB gun.” After the Commonwealth presented i ts case-in-chief, appellant m oved to strike the evidence on the ground that no f irearm had been recovered and t hus there was no evidence that appellant had possessed a firearm “other than a mere observance by a lay witness as to what he thinks is a gun.” The trial c ourt took the motion under advise ment. Appellant presented no evidence and renewed his motion to strik e. The trial court denied the motion and convicted appellant after noting that the facts of the instant case were similar to the facts in both Redd v. C ommonwealth, 29 Va. App. 256 (1999), and Jordan v. Commonwealth, 286 Va. 153 (2013).- 4 - Appellant filed a motion to set a side the verdict. At a hearin g on the motion, appellant reiterated his argument that “th e brandishing of the item and t he description of [its] appearance by a lay witness” was insufficien t to prove that he was in poss ession of a firearm. The trial court took the matter under advisementand subsequently issued a lett er opinion denying appellant’s motion. In its opinion, the c ourt stated that it had considered the totality of the e vidence, including [Bartley’s] testimony that although he was unfamiliar with handguns at the time of the incident, he subs equently conducted research and determined that the firearm he observed [appellant] brandishing was a “Glock.” [Bartley] furth er testified that [appellant] po inted the weapon directly at him, imp lying that [appellant] might sho ot him. . . . [T]he [c]ourt found the facts analogous to those in Jordan, where the victim suffi ciently identified the weapon and found that the defendant pointing it directly at the victim “wa s an implied assertion that the obj ect was a firearm.” Jordan, 286 Va. at 158. Appellant appealed to this Court.
II. ANALYSIS Appellant argues that the tri al court erred in denying his moti on to set aside the verdict because the evidence was insufficient to prove that he possesse d a firearm, i.e. , an instrument designed, made, and intended to f ire or expel aprojectile by m eans of an explosion. He notes that no firearm was introduced int o evidence at trial and conte nds that consequently, the Commonwealth’s evidence relied e ntirely upon Bartle y’s identifi cation of a firearm. That identification was unreliable, a ppellant argues , because Bartle y was unfamiliar with firearms, “merely assumed” at the time th at the object produced by appell ant was a firearm, and only later confirmed his assumption after exa mining a friend’s firearm col lection. “When the sufficiency of the e vidence is challenged on appeal, we review the evidence in the light most favorable to the p revailing party a t trial, in t his case the Commonwealth, and accord to it all inferences fairly drawn from the evidence.” G rimes v. Commonwealth, 288 Va.- 5 - 314, 318 (2014). In conducting our review, “[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.” Smith v. Commonwealth, 296 Va. 450, 460 (2018) ( alteration in original) (quoting Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In stead, the relevant ques tion is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the c rime beyond a reasonable doubt.” Phillips v. Commonwealth, 56 Va. App. 526, 534-35 (2010) (quotin g Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) ( en banc )). Thus, “[i]f there is evide nce to support the conviction[], the reviewing court is not permitted to substitute its own judgment, even if its opinion m ight differ from the conclusions reached by the finder of fact at the trial.” Synan v. Commonwe alth, 67 Va. App. 173, 185 (2017) (quoting Courtney v. Commonwealth, 281 Va. 363, 366 (2011)). Code § 18.2-308.2(A) provides, in per tinent part, that it is un lawful for “any person who has been convicted of a f elony . . . to knowingly and intention ally possess . . . any firearm.” 2 With respect to what constitutes a firearm under the statute, o ur Supreme Court has held that “in order to sustain a conviction f or possessing a firearm in viola tion of Code § 18.2-308.2, the evidence need show only that a pe rson subject to t he provisions of that statute possessed an instrument which was designed, m ade, and intended to fire or ex pel a projectile by means of an explosion.” Armstr ong v. Commonwealth, 263 Va. 573, 584 (2002) . See also Jordan, 286 Va. at 157. Further, while it is unnecessary that the Commonwealth “p rove the instrument was ‘operable,’ ‘capable’ of being f ired, or had the ‘actual capaci ty to do serious harm,’” Armstrong, 263 Va. at 584, “a replica gun and a BB gun would not be suffic ient to convict a person under Code § 18.2-308.2 . . . because those items were not ‘designed, made, and intended to fire or

2 At trial, the Commonwealth int roduced into evidence a sentenci ng order reflecting that appellant had been convicted i n 2008 for robbery, in violation of Code § 18.2-58.- 6 - expel a projectile by means of an explosion,’” Jordan, 286 Va. at 157 (quoting Startin v. Commonwealth, 281 Va. 374, 382 (2011)). We are unpersuaded by appellant’s arg ument that the evidence wa s insufficient to prove he possessed a firearm. Where , as here, no firearm is recovere d and entered into evidence at trial, a defendant may still be convicted of possession of a fi rearm by a convicted felon based upon a victim’s identification of a gun taken together with the conduct of the defendant. In Redd, this Court affirmed t he defendant’s conviction for pos session of a firearm by a convicted felon where no firearm was introduced into evidence a t trial. The defendant had entered a convenience store , placed a “long, black gun” on the counter, and ordered the clerk to give her all of the money in t he cash register. Redd, 29 Va. A pp. at 258. The defendant warned the clerk that she would be kille d if she set off a silent alarm. Id. After the c lerk gave the money to the defendant, the defendant a gain threatened her and told h er not to call the police. Id. When asked what kind of gun the defenda nt had displayed, the clerk r eplied, “I just know it was a long black gun. I am not familiar with guns.” Id. The Court first concluded that the clerk’s description of the brandished obj ect was “insufficient, alone, to prove that the object possessed the ‘ability to expel a project ile by the power of an explosion .’” Id. at 259. However, it then determined that the defendant’s “threat, upon presenting the we apon, to kill the clerk was an implied assertion that the obj ect was a functioning weapon, bei ng in fact the firearm that it appeared to be and possessing the power to kill.” Id. The Cou rt held that the combined weight of this evidence—the “implied asse rtion, which was corroborated by the appearan ce of the object and was uncontradicted by any other evidence”—was sufficient to support the trial court’s factual finding that the object produced by the defendant was afirearm. Id. Likewise, in Jordan, our Supreme Court affirmed the defendant’s conviction for possession of a firearm by a convi cted felon where the evidence at trial did not include a- 7 - recovered firearm. In that case, t he complaining witness was s itting in a parked truck when the defendant approached and began a sking him questions. Jordan, 2 86 Va. at 155. When he did not reply, the defendant pointed asmall pistol at the complain ing witness and ordered him out of the truck. Id. The complaining witness complied and ran away. Id. At trial, he stated that he was familiar with handguns because his father was in the military and that the handgun pointed at him by the defendant had appear ed to be a “Raven,” a particu lar kind of pistol with which he was familiar. Id. During cross-examination, however, he admit ted that “he could not say for certain that the object was not a toy gun.” Id. The Court, af ter confirming the soundness of the holding in Redd, noted that “[i]n R edd, the defendant’s threat to kill the clerk was an implied assertion that the object was a firearm.” Id. at 158. While t he defendant in Jordan “did not verbally threaten to kill [t he complaining witness], . . . the acts of pointing the gun at [him] while directing him to get out of the [truck], most assuredly communi cated the message that if [he] did not comply, [the defendant] w ould shoot him.” Id. The Court a lso noted that the complaining witness identified the object pr oduced by the defendant as a Ra ven, a well-known pistol, and that “[t]he reference to a ‘Raven’ i ndicates a specific weapon that . . . clearly meets the definition of a firearm as set out in Armstrong.” Id. The Court further noted that the complaining witness’ identification of the firearm was subject to cross-examination and that “[t]he determination of how much weight to give to his identification . . . was a matte r for the trier of fact.” Id. In affirming the defendant’s convic tion, the Court concluded that the fact-finder was entitled to consider the totality of the evi dence, including the complainin g witness’ “testimony identifying the weapon, and [the defendant’s ] conduct which included pointi ng that weapon to [the complaining witness’] head a nd demanding that [he] get out of the truck.” Id. at 158-59. With respect to the defendant’s conduc t, the Court noted that “[i]t was within the province of the [fact-finder] to conclude that [his] conduct was an implied ass ertion that the object he held was a- 8 - firearm” and that the Court could not substitute its judgment f or that of the fact-finder “unless no reasonable [fact-finder] could ha ve come to this conclusion.” Id. at 159. Here, as in both Redd and Jorda n, Bartley identified the object produced by appellant as a firearm. Although Bartley, unlike the complaining witness in J ordan, stated that he was not familiar with guns, our holding in Redd makes clear that no suc h familiarity is required for a trier of fact to credit a witness’ i dentification of a firearm. See Redd, 29 Va. App. at 258-59. Bartley concluded that the object appell ant pointed at his stomach and chest at close range was not simply a firearm, but a specific type of firearm—a Glock—based upon his observations and a comparison of those observations w ith a friend’s Glock pistol. At trial, he was able to identify specific physical char acteristics of the obj ect he had seen in appellant’s hand which led him to his conclusion. Bartley also de scribed the sound made by the o bject when it hit the ground as like a “solid object” or a “ block or . . . brick” being dropped . Bartley was subject to cross-examination about his iden tification and, like the compla ining witness in Jordan, who claimed experience with firearms that Bartley did not, readily admitted that he would not know whether the object dropped by appellant was a real gun or a BB gun. The trial court was entitled to credit Bartley’s identif ication of the object possessed by a ppellant as a firearm satisfying the requirements of Code § 18.2- 308.2(A), and it did so. Based upo n our review of the evidence, we cannot conclude that the trial court was plainly wrong to credi t Bartley’s identification and that, as appellant argues, that iden tification was unreliable. Further, while Bartley’s ident ification alone would be insuffic ient to sustain appellant’s conviction for possession of a f irearm by a convicted felon, we note that contrary to appellant’s argument the Commonwealth’s e vidence did not rest solely upon B artley’s identification. Instead, as in Redd and Jordan, Bartley’s identification was co rroborated by appellant’s conduct. When appellant and his companion a ttempted to steal Bartley’s j ewelry and other possessions,- 9 - appellant produced the object in question and, at close range, pointed it straight at Bartley’s chest and stomach. While pointing the object at Bartle y, appellant d emanded that Bartley give appellant his wallet and phone . As in Jordan, although appella nt did not explicitly threaten to kill or inflict grave bodily ha rm on Bartley with the object he held and pointed at him, “the act of pointing [the object]” at Bartley while direct ing him to complywith his commands “most assuredly communicated the messa ge that if [Bartley] did not co mply, [appellant] would shoot him.” Jordan, 286 Va. at 158. As noted in Jordan, it was with in the trial court’s province as fact-finder to conclude that appellant’s conduct “was an implie d assertion that the object he held was a firearm,” and the trial court did find such an assertion that “the object was a functioning weapon, being in fact the firearm that it appeared to be and po ssessing the power to kill.” Redd, 29 Va. App. at 259. After reviewing the evidence, we conclude that the trial court was not plainly wrong in finding that a ppellant’s conduct implied an as sertion that he possessed a firearm satisfying the requirements of Code § 18.2-308.2(A). Based upon Bartley’s identificati on of a Glock firearm and appe llant’s conduct demonstrating an implied asserti on that he possessed a firearm, we hold that a rational trier of fact could have found that appe llant, a convicted felon, posses sed a firearm when he confronted Bartley. Consequently, the tri al court did not err in denying appellant’s motion to set aside the verdict convicting him for po ssession of a fir earm by a convict ed felon, in violation of Code § 18.2-308.2.
III. CONCLUSION Finding no error, we affirm the tri al court’s denial of appellant’s motion to set aside the verdict. Affirmed.