COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Lemons 

Argued at Richmond, Virginia 

MONIQUE DEMETRIUS REDD 

 OPINION BY 

v. Record No. 2180-97-2 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Susan D. Hansen, Deputy Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

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

for appellee. 

 On appeal from her convictions of possession of a firearm by 

a previously convicted felon, in violation of Code § 18.2-308.2, 

and of grand larceny, in violation of Code § 18.2-95, Monique 

Demetrius Redd contends that the evidence is insufficient to 

support her convictions. We affirm the firearm conviction and 

reverse the grand larceny conviction. 

 I. Firearm Charge

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 On May 22, 1997, Redd, a previously convicted felon, entered 

a convenience store and placed a "long, black gun" on the 

counter. She ordered the store clerk to give her all the money 
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from the register. She warned the clerk that she would kill her 

if she set off the silent alarm. After receiving the money, Redd 

again threatened the clerk, telling her not to call the police. 

Asked what kind of gun Redd displayed, the clerk replied, "I just 

know it was a long black gun. I am not familiar with guns." 

 Code § 18.2-308.2(A) provides, in pertinent part: 

 It shall be unlawful for (i) any person who 

has been convicted of a felony . . . to 

knowingly and intentionally possess or 

transport any firearm . . . . 

Code § 18.2-308.2(A) requires the Commonwealth to prove, as an 

essential element of the offense, that the accused possessed an 

actual firearm, not merely an object of similar appearance. 

 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 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). Our inquiry is whether the recited evidence is 

sufficient to carry the foregoing burden of proof. 

 The store clerk's description of the object brandished by 

Redd as "a long black gun" is insufficient, alone, to prove that 

the object possessed the "ability to expel a projectile by the 

power of an explosion." However, Redd's threat, upon presenting 

the weapon, to kill the clerk was an implied assertion that the 

object was a functioning weapon, being in fact the firearm that 
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it appeared to be and possessing the power to kill. This implied 

assertion, which was corroborated by the appearance of the object 

and was uncontradicted by any other evidence, was evidence 

sufficient to support the trial court's finding that the object 

was a firearm. 

 II. Grand Larceny Charge

 On November 1, 1996, Redd cashed an Aid to Dependent 

Children check for $291 at People's Market, a convenience store 

owned by Na Song. On November 13, 1996, Redd reported to the 

Department of Social Services that the check was stolen or lost 

and by affidavit swore that she had neither endorsed the check 

nor authorized its endorsement. Social Services issued her 

another check and withdrew the amount of the first check from the 

bank account of People's Market. 

 Redd was convicted of grand larceny of "United States 

currency and/or personal property . . . belonging to People's 

Market," in violation of Code § 18.2-95. 

 Redd cashed the assistance check on November 1, 1996. Her 

affidavit was dated November 13, 1996. The evidence supports a 

finding that the affidavit was false and that Redd defrauded the 

Department of Social Services. However, Redd's only act with 

respect to People's Market was the lawful cashing of the 

assistance check. Nothing in the evidence supports a finding 

that Redd intended thereby to steal from People's Market or that, 

at that time, she intended to present a false claim to the 

Department of Social Services. No evidence supports a finding 
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that Redd knew that her execution of the affidavit would cause 

the Department of Social Services to withdraw money from the 

account of People's Market. 

 The evidence supports Redd's conviction on the firearm 

charge, and we affirm the judgment of the trial court with 

respect to that conviction. The evidence fails to support Redd's 

conviction of grand larceny. We reverse the judgment of the 

trial court with respect to that conviction and order that charge 

dismissed. 

 Affirmed in part,

reversed in part.
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Benton, J., concurring and dissenting. 

 I concur in Part II and the judgment reversing the grand 

larceny conviction. However, I dissent from Part I and would 

reverse the conviction for violating Code § 18.2-308.2 because, 

in my judgment, the evidence was insufficient to prove beyond a 

reasonable doubt that the object Redd placed on the counter had 

the actual ability to expel a projectile by the power of an 

explosion. See Jones v. Commonwealth, 16 Va. App. 354, 357, 429 

S.E.2d 615, 617, aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192 

(1993). 

 No gun was seized from Redd or produced at trial. I agree 

with the majority that the store clerk's description of the 

object as a gun was insufficient to prove that the object Redd 

possessed during the robbery had the "ability to expel a 

projectile by the power of an explosion." Id. However, I 

disagree with the majority's assertion that Redd's threat to the 

clerk, together with the clerk's description of the object, was 

sufficient to prove beyond a reasonable doubt that the object was 

either functional or had the "ability to expel a projectile by 

the power of an explosion." "Proof by circumstantial evidence 

'is not sufficient . . . if it engenders only a suspicion or even 

a probability of guilt. Conviction cannot rest upon 

conjecture.'" Betancourt v. Commonwealth, 26 Va. App. 363, 373, 

494 S.E.2d 873, 878 (1998) (citation omitted). 

 Accordingly, I would reverse the conviction for possession 

of a firearm, as prohibited by Code § 18.2-308.2.