COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Petty and Beales Argued at Salem, Virginia

JASON ALAN HUFFMAN OPINION BY v. Record No. 2569-06-3 JUDGE ELIZABETH A. McCLANAHAN APRIL 8, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge Jesse W. Meadows III, for appellant. Richard B. Smith, Special Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

In a bench trial, Jason Alan Huffman was convicted of the charge of possession of a firearm by a convicted felon in violation of Code § 18.2-308.2, and two misdemeanor charges of brandishing a firearm in viola tion of Code § 18.2-282(A). On appeal, Huffman challenges the sufficiency of the evidence for one of his brandi shing convictions. For the following reasons, we affirm the conviction. I. BACKGROUND We review the evidence, and all fair inferen ces to be drawn from it, in the light most favorable to the Commonwealth. Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). R. Moon and M. James were neighbor s, whose houses were separated by a single driveway. Late in the after noon (while still daylight), Huffman and a companion drove to Moon’s house and parked their vehicle in her ya rd. Moon walked out of her house “to see what was going on,” and observed Huffman exiting the vehicle. Shortly thereafter, C. Caruso, Huffman’s sixteen-year-old girlfriend, and her mo ther, M. Baron, pulled into the driveway and- 2 - exited their vehicle. At that time, Moon saw Huffman “waving” a handgun “around in the air.” Moon then observed Huffman load two bullets in the gun and continue “waving it around in the air.” Baron testified that Huffman was intoxicat ed and “just going off,” that is, he was “[d]oing a lot of yelling and just being loud,” all while holding the gun in his hand. Baron also witnessed Huffman load the two bullets in the gun. Baron explained th at Huffman was angry and complaining because she and Caruso had arrived home a day later than expected from an out-of-state trip. In addition, Hu ffman wanted Caruso to leave with him, but Baron would not permit Caruso to do so. Upon hearing a “commotion” from the direc tion of the driveway while working in his backyard, James went to inve stigate. He found Moon, Baron, Caruso, and Huffman in Moon’s yard, with Huffman “raising Cain about something” and “waving a gun around.” Among other things, James stated to Huffman, “why don’ t you put that gun down before you hurt somebody,” at which time Huffman threatened to shoot James. Moon testified that James told Huffman to put the gun away “two or three times and he still wouldn’t listen” and that she also told Huffman to put the gun away. Huffman finally left with the gun, Moon explained, but only after Jame s told Huffman that he was going to call the police. In a bench trial, Huffman was convicted of possessing a firearm as a convicted felon and two brandishing violations vis-à-vis Moon and James, respectively. Huffman challenges only his brandishing conviction as to Moon in this appeal. II. ANALYSIS Huffman contends the evidence was insufficien t to prove he violat ed Code § 18.2-282(A) as to Moon. We disagree.- 3 - When reviewing a challenge to the sufficiency of the evidence, “the judgment of the trial court sitting without a jury is entitled to the same we ight as a jury verdict.” Saunders v. Commonwealth , 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991) (citation and internal quotation marks omitted). Thus, this Court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) (emphasis in original). Rather, “the relevant questi on is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original). See Seaton v. Commonwealth , 42 Va. App. 739, 746-48, 595 S.E.2d 9, 12-13 (2004). Code § 18.2-282(A) provides, in relevant part, that “[i]t shall be unlawful for any person to point, or brandish any firearm . . . whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another.” In Kelsoe v. Commonwealth , 226 Va. 197, 198, 308 S.E.2d 104, 104 (1983), the Supreme Court stated that “there are two elements of the offense: (1) pointing or brandish ing a firearm, and (2) doing so in such a manner as to reasonably induce fear in the mind of a victim.” As to the first element, Huffman does not cha llenge the fact that he brandished a firearm in Moon’s presence, for purposes of Code § 18.2-282(A). As to the second element, however, he argues there was insufficient evidence to establish that he brandished a gun in such a manner as to induce fear in the mind of Moon. This Court has held, in connection with robb ery, that “‘the word “fear” . . . does not so much mean “fright” as it means “ap prehension”; one too brave to be frightened may yet be apprehensive of bodily harm.’” Seaton , 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original). In other words, “‘[w]hen the pertinent test is cas t in terms of a victim being put in “fear” of- 4 - injury, it is not necessary that the victim be frightened ; it is necessary merely that he be reasonably apprehensive of injury.’” Id. (quoting Charles E. Torcia, 4 Wharton’s Criminal Law § 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to fi nd beyond a reasonable doubt that M oon was reasonably apprehensive of bodily harm induced by Huffman bra ndishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve c onflicts in the test imony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trie r of fact, even were our opinion to differ. Seaton , 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon’s request of Huffman to put his gun away was suffici ent evidence of Moon’s requisite apprehension of bodily harm. Such apprehension was then further confirme d by Moon’s testimony that Huffman was only deterred from brandishing his gun by the threat of police intervention. Arguing that the evidence was insufficien t, Huffman points out that Moon did not expressly state in her testimony that she was fearful or apprehensive and that she did not remember what Huffman said or the tone of his voice. But the trial court, of course, was not limited to considering only thos e two statements. The trial judge “saw [Moon], heard [her] testify and was in closer touch with the situation than [this appellate] Court, which is limited to a review of the written record.” Ferguson v. Grubb , 39 Va. App. 549, 557, 574 S.E.2d 769, 772 (2003). See Marable v.Commonwealth , 27 Va. App. 505, 509, 500 S.E.2d 233, 235 (1998)- 5 - (“The credibility of a witness and the inferences to be drawn from proven facts are matters solely for the fact finder’s determination.”). For these reasons, we affirm Huffman’s conviction. Affirmed.