Virginia Lawyers Weekly VA Lawyers Weekly
There was sufficient evidence to support appellant’s convictions of shooting a firearm at an occupied building and of possession of a firearm by a convicted felon.
Possession
“In Lambert’s first assignment of error, he contends that ‘the trial judge erred in finding appellant Lambert was in violation as a felon knowingly and intentionally possessing a firearm as a non-violent felon even though the court acknowledged he was the “victim of violence directed at him.” Lambert, a previously convicted felon, admits that he possessed a firearm during the shootout on October 6, 2020, but argues that his possession of the firearm ‘was justified and necessary.’
“The Supreme Court has recognized that a defendant can raise the defense of necessity against the charge of possessing a firearm after having been previously convicted of a felony. …
“In order to benefit from the defense of duress or necessity, the defendant must show: ‘(1) a reasonable belief that the action was necessary to avoid an imminent threatened harm; (2) a lack of other adequate means to avoid the threatened harm; and (3) a direct causal relationship that may be reasonably anticipated between the action taken and the avoidance of the harm.’ …
“Relying heavily upon his own testimony, Lambert argues that he took possession of the Glock firearm ‘only when he wrested it free from one of his attackers who physically engaged him.’
“However, the trial judge explicitly and unequivocally rejected Lambert’s account of how he gained possession of the firearm – stating that he simply did not accept that ‘the Defendant was attacked and he took somebody’s gun away from them to protect himself.’
“ The trial court, as factfinder in this case, was ‘not required to accept the self-serving testimony of the defendant … but may rely on such testimony in whole, in part, or reject it completely.’… [S]everal witnesses, whose written statements were entered into evidence at Lambert’s request, observed portions of the shootout between Lambert and his attackers.
“However, none of them reported seeing Lambert in a physical struggle or tussle with anyone.
“Indeed, Lambert’s testimony was inconsistent with that of other witnesses at trial. Contrary to Lambert’s testimony that he only returned fire, the woman walking her dog testified that Lambert was shooting at the attackers even as they drove away from Lakefield Mews in their vehicle and even though the attackers had stopped doing any shooting ‘after they were in the car.’”
Unlawful shooting
“Code § 18.2-279 prohibits a person from unlawfully shooting at ‘any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such person or persons may be put in peril.’
“Here, James Bullock, a forensic scientist firearms examiner, testified at trial that the bullet fired through the apartment resident’s rear living room window into her apartment came from the Glock. Lambert admitted to possessing and firing that Glock during the shootout (although he claimed he never shot at the building, which the trial judge clearly did not believe).
“Furthermore, the trial judge, who was able to view the witnesses as they illustrated the events on a large map in the courtroom, found that Lambert ‘was the one behind the building.’ who had the ability to fire the bullet that went through the rear window of the apartment.
“Indispensable to Lambert’s hypothesis of innocence in this assignment of error is that someone other than Lambert also had possession of the Glock during the shootout and, therefore, also had the ability to fire that Glock into the apartment. However, as discussed … supra, the trial judge made a finding of fact that Lambert did not obtain the Glock in a tussle near the apartments, and the record supports the conclusion that Lambert possessed the Glock.
“Based on these findings of fact and these credibility determinations by the trier of fact, Lambert, consequently, was the only individual who could have fired the bullet from that Glock that entered the apartment through the living room window.”
Affirmed.
Lambert Sr. v. Commonwealth, Record No. 1290-21-2, Jan. 17, 2023. CAV (published opinion) (Beales). From the Circuit Court of Henrico County (Harris Jr.). Craig S. Cooley for appellant. Virginia B. Theisen, Jason S. Miyares for appellee. VLW 023-7-020, 10 pp.
