COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Bray 

Argued at Salem, Virginia 

RAYMOND FRANKLIN MOORE, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2755-95-3 JUDGE LARRY G. ELDER 

 DECEMBER 31, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Diane McQ. Strickland, Judge 

 John P. Varney (Office of the Public 

Defender, on brief), for appellant. 

 Ruth Morken, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Daniel J. Munroe, Assistant Attorney General, 

on brief), for appellee. 

 Raymond Moore (appellant) appeals his conviction of 

possession of a firearm by a convicted felon under Code 

§ 18.2-308.2. He contends that the evidence was insufficient 

to prove that the object possessed by him was a firearm. For 

the reasons that follow, we affirm. 

 I. 

 FACTS 

 On April 11, 1995, Detective Altizer of the Roanoke City 

Police Department found what appeared to be a rifle during a 

consent search of appellant's room. Appellant, who had a prior 

felony conviction, was charged with possession of a firearm by a 

 

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

designated for publication. 
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convicted felon. At his trial, appellant moved to strike the 

Commonwealth's evidence on the ground that it had failed to prove 

that the object possessed by appellant was in fact a "firearm." 

Appellant argued that the Commonwealth did not prove that the 

purported rifle confiscated by Detective Altizer had the actual 

ability to expel a projectile by the power of an explosion. The 

trial court denied appellant's motion and found him guilty of 

possession of a firearm by a convicted felon. 

 II. 

SUFFICIENCY OF THE EVIDENCE 

 Appellant contends that the evidence was insufficient to 

support his conviction because the Commonwealth failed to prove 

that he actually possessed a "firearm." We disagree. 

 Code § 18.2-308.2 provides that "[i]t shall be unlawful for 

(i) any person who has been convicted of a felony . . . to 

knowingly and intentionally possess . . . any firearm . . . ." 

As with any essential element of a criminal offense, the 

Commonwealth has the burden of proving beyond a reasonable doubt 

that the object possessed by a person charged under Code 

§ 18.2-308.2 was actually a "firearm." See Dowdy v. 

Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979). 

"Code § 18.2-308.2 prohibits a felon from possessing a device 

that has the actual capacity to do serious harm because of its 

ability to expel a projectile by the power of an explosion, and 

it is not concerned with the use or display of a device that may 
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have the appearance of a firearm." Jones v. Commonwealth, 16 Va. 

App. 354, 357-58, 429 S.E.2d 615, 617 (1992), aff'd en banc, 17 

Va. App. 233, 436 S.E.2d 192 (1993) (holding that a firearm under 

Code § 18.2-308.2 is a device "that propel[s] a projectile by an 

explosion or discharge of gun powder"). Thus, in a prosecution 

under Code § 18.2-308.2, the Commonwealth is required to prove 

that the purported firearm had the actual ability to expel a 

projectile by the power of an explosion. 

 The Commonwealth may prove that a firearm is operable in 

several ways. See Jeffrey F. Ghent, J.D., Annotation, Fact that 

Gun was Broken, Dismantled, or Inoperable as Affecting Criminal 

Responsibility under Weapons Statute, 81 A.L.R.4th 745, 760-63 

(1990). While the best method of proving the ability of a 

firearm to discharge shot by gunpowder is to introduce the 

testimony of a ballistics expert who test-fired the weapon, id., 

the Commonwealth is not required to offer direct evidence that 

the firearm is operable. See Booker v. Engle, 517 F.Supp. 558, 

561 (S.D.Ohio 1981); State v. Cartwright, 246 Or. 120, 137-38, 

418 P.2d 822, 830 (1966), cert. denied, 386 U.S. 937, 87 S. Ct. 

961, 17 L.Ed.2d 810 (1967) (citing Couch v. Commonwealth, 255 

S.W.2d 478, 479 (Ky. 1953)). Instead, the operability of a 

firearm may be proved by circumstantial evidence. "A reasonable 

fact finder may . . . infer operability from an object which 

looks like, feels like, sounds like or is like, a firearm. Such 

an inference would be reasonable without direct proof of 
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operability." Commonwealth v. Layton, 452 Pa. 495, 498, 307 A.2d 

843, 844 (1973); cf. Richardson v. Commonwealth, 21 Va. App. 93, 

100, 462 S.E.2d 120, 124 (1995) (stating that, in a prosecution 

under Code § 18.2-308.2:2, the fact that the weapon had the 

firing capability required to distinguish it from antique weapons 

could be inferred from the evidence). 

 We hold that the evidence was sufficient to prove that the 

rifle confiscated by Detective Altizer had the actual ability to 

expel a projectile by the power of an explosion. "When a 

defendant challenges the sufficiency of the evidence, we are 

required to review the evidence 'in the light most favorable to 

the Commonwealth and give it all reasonable inferences fairly 

deducible therefrom.'" Collins v. Commonwealth, 13 Va. App. 177, 

179, 409 S.E.2d 175, 176 (1991) (quoting Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). 

"The conviction will not be reversed unless it is plainly wrong 

or without evidence to support it." Id. Detective Altizer 

testified that he examined the rifle, tested the trigger 

mechanism, and that the rifle was a Thompson's Center Arms .50 

caliber black powder rifle. A photograph of the rifle was 

introduced. Detective Altizer testified in detail how the rifle 

functioned to discharge a bullet by an explosion of gunpowder. 

Based on this evidence that the rifle "looks like, feels like, 

. . . [and] is like" a firearm, a reasonable fact finder could 

infer that the rifle was operable and therefore a firearm under 
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Code § 18.2-308.2. See Jolly v. State, 183 Ga. App. 370, 372, 

358 S.E.2d 912, 913-14 (1987) (holding that unrefuted testimony 

of police officer that objects were pistols was sufficient to 

prove that they were capable of firing projectiles); State v. 

Millett, 392 A.2d 521, 527 (Me. 1978) (holding that testimony of 

witnesses who observed handgun projecting from defendant's belt 

was sufficient to prove operability). 

 Appellant argues that the circumstantial evidence of the 

rifle's operability was insufficient because Detective Altizer 

testified that non-functioning replicas of the Thompson's rifle 

exist and that he did not know the difference between a replica 

and a real Thompson's rifle. We disagree. In a case based upon 

circumstantial evidence, the Commonwealth must exclude every 

reasonable hypothesis of innocence. See Cantrell v. 

Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988). 

We hold that the record contains evidence other than Detective 

Altizer's description of the rifle that sufficiently disposes of 

the hypothesis that the rifle was a non-functioning replica. 

First, appellant twice made statements to Detective Altizer in 

which he referred to the rifle as either a "gun" or a "firearm." 

 During neither of these conversations did appellant refer to the 

rifle as a non-functioning replica. In addition, appellant made 

inconsistent statements about how the rifle became placed in his 

room. On the day the rifle was confiscated, appellant told 

Detective Altizer that he "was keeping the gun for his father." 
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Then, two days later when Detective Altizer arrested appellant, 

appellant told the detective that the firearm did not belong to 

his father and that he did not know how the firearm was 

transported to his room. These inconsistent statements permitted 

the trial court to infer that appellant was concealing his guilt. 

See Hughes v. Commonwealth, 18 Va. App. 510, 520-21, 446 S.E.2d 

451, 458 (1994).99 

 For the foregoing reasons, we affirm the conviction. 

Affirmed.