COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Clements 

Argued at Alexandria, Virginia 

BRADLEY SCOTT JOHNSON 

 MEMORANDUM OPINION* BY 

v. Record No. 1488-00-4 JUDGE JEAN HARRISON CLEMENTS 

 JULY 17, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Henry E. Hudson, Judge Designate 

 Peter M. Baskin (Pelton, Balland, Young, 

Demsky, Baskin & O'Malie, P.C., on briefs), 

 for appellant. 

 Eugene Murphy, Assistant Attorney General 

 (Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Bradley Scott Johnson was convicted in a jury trial of use 

of a firearm in the commission of malicious wounding in 

violation of Code § 18.2-53.1.1 On appeal, Johnson contends the 

trial court erred (1) in ruling the evidence was sufficient to 

convict him of use of a firearm in the commission of malicious 

wounding even though he used an unloaded handgun solely as a 

striking instrument, (2) in granting the Commonwealth's jury 

instruction defining "firearm," and (3) in refusing his jury 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Johnson was also convicted on pleas of guilty of malicious 

wounding and assault and battery. 
instruction defining "use" of a firearm. Finding no error, we 

affirm the conviction. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts and incidents of 

the proceedings as necessary to the parties' understanding of 

the disposition of this appeal. 

I. BACKGROUND 

 On December 18, 1999, at approximately 11:30 p.m., Mayra 

Fernandez, accompanied by Mark Wenske, returned home to her 

uncle's house in Arlington County, Virginia. They parked on the 

street, in front of the house. When Fernandez and Wenske exited 

the car, Johnson rushed up to Fernandez, his former girlfriend, 

and asked, "Is this the guy?" Fernandez nodded affirmatively 

and Johnson pulled out a nine-millimeter semi-automatic pistol, 

pointed it at Fernandez, and pulled the trigger four times. The 

gun clicked each time Johnson pulled the trigger but did not 

fire. After the fourth click Johnson said, "Aren't you lucky." 

Wenske tried to intervene when Johnson first rushed up to 

Fernandez but, thinking the gun was loaded, got behind the car 

when Johnson pulled out the pistol. 

 Still brandishing the pistol, Johnson grabbed Fernandez's 

arm, said, "Let's go," and started pulling her away from the 

house. Fernandez told Wenske to call the police and yelled for 

her uncle to help her. Johnson then hit Fernandez on the head 

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five times with the butt of the gun. Fernandez fell to the 

ground bleeding, and Johnson hit her again. 

 Wenske, who had started calling the police on his cellular 

phone, ran over to protect Fernandez but was himself struck by 

Johnson on the hand and head with the gun. Undaunted, Wenske 

grabbed Johnson. During the ensuing struggle, the gun was 

dislodged and tossed into the street. Johnson ran to get the 

gun, but Wenske again dislodged it and pushed Johnson away from 

the gun. 

 At that point, hearing screams outside his house, 

Fernandez's uncle ran out to find his niece lying face down in a 

puddle of blood and Wenske and Johnson fighting. He heard 

Wenske say two or three times that Johnson had a gun. 

Fernandez's uncle saw the gun in the street and attempted to 

throw it under the car parked on the street. He then helped 

Wenske subdue Johnson and the police were called. 

 When the police arrived, they found the gun in the street 

near the car parked in front of the house. They also found in 

the street, approximately forty feet from the scene of the 

assault, an empty magazine clip from a nine-millimeter weapon. 

The magazine clip was damaged because it had been run over by 

traffic. The police also found a magazine clip with seven 

nine-millimeter bullets in it and thirty-five additional 

nine-millimeter bullets in Johnson's car parked approximately 

one block away. 

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 At trial, the court, at the Commonwealth's request, gave 

the following instruction defining "firearm" to the jury: 

INSTRUCTION NO. 8 

 A firearm is a weapon designed to expel 

a projectile by the explosion of gun powder, 

by spring mechanism, or by pneumatic 

pressure. It is not necessary that the 

object actually have the capability of 

firing a projectile, provided that it 

retains enough of its parts that it has not 

lost its appearance as a firearm. 

 The existence of a firearm may be 

proved by circumstantial evidence, direct 

evidence, or both. 

Conversely, the trial court refused to give Johnson's requested 

jury instruction defining "use" of a firearm, which provides: 

INSTRUCTION NO. A 

 The Court instructs the jury that the 

term "use" contained in Instruction No. 72

 2

 The referenced jury instruction reads as follows: 

INSTRUCTION NO. 7 

 The defendant is charged with the crime 

of using a firearm while committing or 

attempting to commit the malicious wounding 

of Mayra Fernandez. The Commonwealth must 

prove beyond a reasonable doubt each of the 

following elements of that crime: 

(1) That the defendant used a firearm; and 

(2) That the use of the firearm was while 

committing or attempting to commit the 

Malicious Wounding of Mayra Fernandez. 

 If you find that the Commonwealth has 

proven these elements beyond a reasonable 

doubt, then you shall find the defendant 

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means the defendant's employment of the 

firearm in the ordinary manner contemplated 

by its nature and design. 

(Footnote added.) 

II. SUFFICIENCY OF EVIDENCE OF USE OF A FIREARM 

 Johnson contends the legislature intended, in enacting Code 

§ 18.2-53.1, to punish solely those "offenders who employ 

firearms in the ordinary manner as contemplated by their nature 

and design to produce fear in the victim or actual injury by 

gunfire." He argues that using a gun to strike or bludgeon the 

victim is not included in the definition of "use" in the statute 

and that striking or bludgeoning instruments are not included in 

the definition of "firearm" in the statute. Thus, he concludes, 

the evidence establishing that he beat the victim with a gun was 

insufficient to convict him of using a firearm while committing 

malicious wounding. 

 When the sufficiency of the evidence is challenged on 

appeal, we review the evidence "in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App. 

 

guilty, but you shall not fix his punishment 

until further evidence has been heard by 

you. 

 If you find that the Commonwealth 

failed to prove beyond a reasonable doubt 

either or both of the elements of the 

offense, then you shall find the defendant 

not guilty. 

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248, 250, 356 S.E.2d 443, 444 (1987). We may not disturb the 

conviction unless it is plainly wrong or unsupported by the 

evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 

S.E.2d 897, 898 (1985). We are further mindful that the 

"credibility of a witness, the weight accorded the testimony, 

and the inferences to be drawn from proven facts are matters 

solely for the factfinder's determination." Keyes v. City of

Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 

(1993). 

 Code § 18.2-53.1 provides, in pertinent part: 

It shall be unlawful for any person to use 

or attempt to use any pistol, shotgun, 

rifle, or other firearm or display such 

weapon in a threatening manner while 

committing or attempting to commit . . . 

malicious wounding as defined in § 18.2-51 

. . . . 

 

 Johnson concedes that he brandished a pistol and used it to 

maliciously wound Fernandez. He argues, however, that, because 

he used the unloaded gun as a club and not in its "traditional 

manner" to maliciously wound Fernandez, he may not properly be 

convicted of use of a firearm in the commission of malicious 

wounding. 

 "Even though any ambiguity or reasonable doubt as to the 

meaning of a penal statute must be resolved in favor of an 

accused, nevertheless a defendant is not entitled to benefit 

from an 'unreasonably restrictive interpretation of the 

statute.'" Holloman v. Commonwealth, 221 Va. 196, 198, 269 

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S.E.2d 356, 357 (1980) (quoting Ansell v. Commonwealth, 219 Va. 

759, 761, 250 S.E.2d 760, 761 (1979)). In construing the term 

"firearm," we have said: 

[W]hether the term "firearm" when used in a 

statute without being defined is to be given 

its traditional meaning or a more expansive 

meaning depends upon the purpose and policy 

underlying the particular statute. When the 

statute is designed to not only deter 

physical harm, but also to deter a broader 

range of conduct that produces fear or 

physical harm, a more expansive definition 

of "firearm" is required in order to 

effectuate that purpose. 

Jones v. Commonwealth, 16 Va. App. 354, 357, 429 S.E.2d 615, 616 

(1992), aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993). 

The purpose of Code § 18.2-53.1, keyed to 

serious crimes and prescribing inflexible 

penalties, is to deter violent criminal 

conduct. The statute not only is aimed at 

preventing actual physical injury or death 

but also is designed to discourage criminal 

conduct that produces fear of physical harm. 

Such fear of harm results just as readily 

from employment of an instrument that gives 

the appearance of having a firing capability 

as from use of a weapon that actually has 

the capacity to shoot a projectile. The 

victim of a crime can be intimidated as much 

by a revolver that does not fire bullets as 

by one that does; such victim cannot be 

required to distinguish between a loaded 

pistol and a [gun incapable of firing 

bullets] when it is brandished during 

commission of a felony. 

Holloman, 221 Va. at 198, 269 S.E.2d at 358 (citations omitted). 

 To obtain a conviction under "Code § 18.2-53.1, the 

Commonwealth must prove that the accused actually had a firearm 

in his possession and that he used or attempted to use the 

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firearm or displayed the firearm in a threatening manner while 

committing or attempting to commit" certain specified felonies, 

including malicious wounding. Yarborough v. Commonwealth, 247 

Va. 215, 218, 441 S.E.2d 342, 344 (1994). 

 In this case, Johnson used his gun, which had the 

appearance of having a firing capability, to "pistol whip" the 

victim. In doing so, he maliciously wounded her. Before using 

the gun to inflict the injuries upon the victim, Johnson pointed 

it at her and pulled the trigger several times. The victim's 

companion, who was afraid the gun was loaded, was deterred from 

assisting the victim by Johnson's brandishing of the pistol. 

 We hold that the evidence presented in this case was 

sufficient to prove beyond a reasonable doubt that Johnson was 

in possession of a firearm and that he displayed the firearm in 

a threatening manner and used it while committing malicious 

wounding, in violation of Code § 18.2-53.1. Hence, the trial 

court did not err in ruling the evidence was sufficient to 

convict Johnson of use of a firearm in commission of malicious 

wounding. 

B. JURY INSTRUCTIONS 

 Johnson contends that the inclusion of the language, "its 

appearance as a firearm," in Instruction No. 8 was error because 

intimidation is not an element of malicious wounding. Thus, he 

argues, in the context of malicious wounding, a gun is an 

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applicable firearm under Code § 18.2-53.1 only when it is fired 

to commit the malicious wounding. We disagree. 

 Johnson's nine-millimeter semi-automatic pistol, which he 

pointed at his victim and used to maliciously wound her was, in 

fact, a firearm in his possession. See Yarborough, 247 Va. at 

218, 441 S.E.2d at 344. The jury instruction, including the 

challenged language, was an accurate statement of the law, see

Holloman, 221 Va. at 198, 269 S.E.2d at 358, and covered issues 

raised by the evidence in this case. Therefore, the trial court 

did not err in granting Instruction No. 8. See Darnell v.

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988). 

 Johnson also contends that the trial court erred in 

refusing to give his proffered Instruction A to the jury. 

Instruction A, he argues, correctly states the principle that a 

gun can only be "used" under Code § 18.2-53.1 to commit 

malicious wounding if it is fired. 

 "On appeal, when the issue is a refused jury instruction, 

we view the evidence in the light most favorable to the 

proponent of the instruction." Lynn v. Commonwealth, 27 Va. 

App. 336, 344, 499 S.E.2d 1, 4-5 (1998), aff'd, 257 Va. 239, 514 

S.E.2d 147 (1999). "A party is entitled to have the jury 

instructed according to the law favorable to his or her theory 

of the case if evidence in the record supports it." Foster v.

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991). 

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 Here, though, we have concluded that Johnson's brandishing 

of the handgun and employment of it to maliciously wound the 

victim constituted "use" of a firearm under Code § 18.2-53.1. 

Thus, we hold that Johnson's proposed instruction defining "use" 

was an erroneous statement of the law and the trial judge did 

not err in refusing to grant it. 

 For these reasons, we affirm the conviction. 

 Affirmed. 

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