Virginia Lawyers Weekly VA Lawyers Weekly
There was sufficient evidence to support appellant’s convictions for multiple firearm offenses.
Introduction
“Turner appeals five criminal convictions: felony possession of a firearm after conviction of a non-violent felony, … misdemeanor reckless handling of a firearm, … misdemeanor discharging a firearm in public, … misdemeanor transporting a firearm while subject to a protective order, … and misdemeanor obstruction of justice[.]”
Sufficient evidence
“[T]his Court finds that the evidence is sufficient to sustain Turner’s firearm convictions. Turner contends that the evidence is insufficient to prove that he possessed and discharged a firearm because the firearm that he was convicted of possessing and discharging was not found on his person and was not linked to him with any fingerprint or DNA evidence.
“Turner also argues that there was ‘no witness that saw Mr. Turner discharge the exact gun found in the yard.’ … Although Turner did not possess a firearm at the time of his arrest, the evidence supports a finding that the firearm that Turner pointed at the sky is the same firearm that was subsequently found on the ground after the police ordered Turner to drop the gun.
“Officer Vincent observed Turner pointing a black gun towards the sky two seconds after Officer Vincent heard a single gunshot. Turner then lowered the gun and pointed it toward a house. When police ordered Turner to drop the gun, he walked about ten feet to the front yard of a house where police later found a black 9 mm handgun in the grass.
“This gun was examined by the Virginia Department of Forensic Science and determined to be in mechanical operating condition. The police also found a 9 mm shell casing right near the spot where Turner was standing when he pointed the gun toward the sky.
“In the search incident to Turner’s arrest, the police found a 9 mm bullet on his person. Based on the totality of these circumstances, a rational fact-finder could find that Turner fired the gun and subsequently dropped it on the grass ten feet away from where he fired it. Therefore, the evidence is sufficient to sustain Turner’s convictions for possession of a firearm by a convicted felon and discharging a firearm in public.
“Turner also argues that even if this Court finds that the evidence is sufficient to sustain his conviction for discharging a firearm in public, the evidence is insufficient to prove that he recklessly handled a firearm because the act of firing the gun into the air endangered no one’s life, limb, or property. We disagree.
“A rational fact-finder could find that the lives and limbs of the people who were nearby partying outdoors were endangered when Turner discharged the bullet into the air.
“Turner also contends that the trial court erred in convicting him of transporting a firearm while subject to a protective order because the evidence is insufficient to establish the predicate that he possessed a firearm.
“Although Turner states that this argument was not raised in the trial court, we find that this argument was preserved by Turner’s motion to strike ‘all the charges’ and Turner’s argument to the trial court that the evidence was insufficient to prove that he possessed a firearm.
“Because we have found that the evidence is sufficient to prove that Turner possessed a firearm, the evidence is sufficient to establish what Turner has identified as the predicate for his conviction for transporting a firearm while subject to a protective order.”
Hearsay
“Turner contends that the trial court erred in admitting Officer Vincent’s testimony that Turner told other officers that his name is ‘Greg Redman.’ This testimony may have served as the basis for Turner’s conviction for misdemeanor obstruction of justice.
“Turner argues on appeal that this testimony is inadmissible hearsay that was admitted in violation of his rights under the Confrontation Clause. However, Turner acknowledges that he did not challenge the admission of the alleged hearsay testimony in the trial court.
“Turner asks this Court to apply the ends of justice exception to Rule 5A:18’s contemporaneous objection requirement and to consider this assignment of error on the merits.
“We hold that the ends of justice exception to Rule 5A:18 is inapplicable here because the record does not establish that a miscarriage of justice has occurred.”
Affirmed.
Turner v. Commonwealth, Record No. 0783-21-1, July 12, 2022. CAV (Chaney) From the Circuit Court of the City of Chesapeake (Smith) Rachel E. Wentworth for appellant. Rebecca M. Garcia, Jason S. Miyares for appellee. VLW 022-7-259, 8 pp. Unpublished opinion.
