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BRITT v. COMMONWEALTH OF VIRGINIA


BRITT v. COMMONWEALTH OF
VIRGINIA (unpublished)


APRIL 15, 1997
Record No. 0679-96-1

JOSEPH BRITT, III

v.

COMMONWEALTH OF VIRGINIA

Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
Kenneth N. Whitehurst, Jr., Judge

Melinda R. Glaubke (Office of the Public Defender, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.

MEMORANDUM OPINION* BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH


Joseph Britt, III, (defendant) was convicted by a jury of five
misdemeanor counts of brandishing a firearm and one felony count
of possession of a firearm by a convicted felon, all arising from
the same incident. On appeal, he complains that the court
erroneously denied his motions to sever the misdemeanor and
felony trials and for a mistrial arising from improper closing
argument by the prosecutor. Defendant also challenges the
sufficiency of the evidence to support the felony and two
brandishing convictions. For the reasons that follow, we affirm
the felonious possession conviction, but reverse and remand the
brandishing convictions.

The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.

MOTION FOR SEVERANCE

Relying upon Johnson v. Commonwealth, 20 Va. App. 49,
455 S.E.2d 261 (1995), defendant first argues that the trial
court abused its discretion in denying his motion for severance,
and the Commonwealth quite correctly concedes on brief that Johnson
requires reversal of defendant’s convictions for brandishing a
firearm. However, Johnson does not mandate a reversal of
the conviction for felonious possession of the firearm. See
id. at 56-57, 455 S.E.2d at 265.

SUFFICIENCY OF EVIDENCE[1]

Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Traverso v. Commonwealth, 6 Va. App.
172, 176, 366 S.E.2d 719, 721 (1988). The jury’s verdict will not
be disturbed unless plainly wrong or without evidence to support
it. See id. The credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder’s
determination. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989).

Code Sect. 18.2-308.2 makes it unlawful for "any person
who has been convicted of a felony . . . to knowingly and
intentionally possess or transport any firearm." The jury
was instructed accordingly and, further, that a
"firearm" is 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." See Jones
v. Commonwealth
, 16 Va. App. 354, 357, 429 S.E.2d 615, 617, aff’d,
17 Va. App. 233, 436 S.E.2d 192 (1993) (en banc).

Circumstantial evidence is sufficient to support a conviction,
provided it excludes every reasonable hypothesis of innocence. See
Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d
328, 338 (1988). However, "[t]he Commonwealth need only
exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App.
751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative
hypothesis of innocence is reasonable is a factual determination,
see Cantrell, 7 Va. App. at 290, 373 S.E.2d at 339,
and therefore is binding on appeal unless plainly wrong. See
Traverso, 6 Va. App. at 176, 366 S.E.2d at 721.

Here, the record discloses that defendant’s sister, Dorian,
excitedly called upon defendant to "give her the gun,"
prompting him to rush toward the Mitchell residence, armed with a
.44 or .45 caliber pistol. A "clicking sound" was heard
as defendant loaded a "clip" of ammunition into the
weapon, and he yelled "I’ll F[___] all you M[_____] F[___]ers up." Defendant entered the home, waving the gun
about and pointing it at people inside, and demanded, "Who
in the f[___] hit my sister?" Four persons present during
the offenses identified the weapon as a "gray gun,"
with a long barrel. From this evidence, the jury properly
concluded that the defendant possessed an actual firearm and
brandished it at those present in the residence.

MISTRIAL

"When a motion for mistrial is made, based upon an
allegedly prejudicial event, the trial court must make an initial
factual determination, in the light of all the circumstances of
the case, whether the defendant’s rights are so ‘indelibly
prejudiced’ as to necessitate a new trial." Spencer v.
Commonwealth
, 240 Va. 78, 95, 393 S.E.2d 609, 619, cert.
denied, 498 U.S. 908 (1990). "A trial court’s ruling
will be permitted to stand unless it is made to appear probable
that the party complaining has been substantially prejudiced by
the objectionable remarks or arguments." Martinez v.
Commonwealth
, 10 Va. App. 664, 669, 395 S.E.2d 467, 470
(1990), aff’d as modified, 241 Va. 557, 403
S.E.2d 358 (1991). Whether to grant a mistrial rests within the
sound discretion of the trial judge, and "absent a showing
of abuse of discretion, the court’s ruling will not be disturbed
on appeal." Cheng v. Commonwealth, 240 Va. 26, 40,
393 S.E.2d 599, 607 (1990).

The prosecutor may properly "’refer to the evidence and
fair inferences from it’" during closing argument to a jury.
Martinez, 10 Va. App. at 672, 395 S.E.2d at 472 (quoting Timmons
v. Commonwealth
, 204 Va. 205, 216-17, 129 S.E.2d 697, 705
(1963)). "Whether the words used were prejudicial must be
judged by a review of the totality of the evidence." Fain
v. Commonwealth
, 7 Va. App. 626, 629, 376 S.E.2d 539, 541
(1989).

Here, the prosecutor argued to the jury, "Ladies and
[G]entlemen, you have a violent criminal — a felon before you.
You can see from the conviction order that he’s been violent
before. He has the propensity to do so." We acknowledge that
these remarks improperly urged the jury to conclude that
defendant’s prior convictions made it more likely that he
possessed a firearm in this instance. However, the court had
instructed the jury earlier "that the fact the defendant was
previously convicted of a felony is not evidence that he
knowingly and intentionally possessed or transported a firearm on
June 13, 1995." Under such circumstances, we do not find
that defendant was so "indelibly prejudiced" that it
necessitated a mistrial.

Accordingly, we reverse and remand the convictions for
brandishing a firearm but affirm the conviction for possession of
a firearm by a convicted felon.

Affirmed in part,

reversed in part,

and remanded.

*Pursuant to Code Sect. 17-116.010 this opinion is
not designated for publication.

FOOTNOTES:

[1] Because
a remand of the brandishing offenses would be improper if the
evidence did not support the challenged convictions, we must
address the sufficiency issue relative to both the misdemeanors
and felony. Gorham v. Commonwealth, 15 Va. App. 673,
677-78, 426 S.E.2d 493, 495-96 (1993).

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