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Sufficient evidence supports burglary and firearm convictions

There is sufficient evidence to support appellant’s convictions of “being a violent felon in possession of a firearm, statutory burglary with intent to commit assault and battery, and of brandishing a firearm.”

Felon in possession

Appellant “Loftis asserts that the only evidence that the instrument he possessed was a firearm was the bullet casing that Officer Touchstone found in Davis’s [Loftis’ girlfriend’s] car while it was parked at Loftis’s home.

“To the contrary, Hendley [a friend of Davis] testified that when she arrived at Loftis’s home, he held the object to her head and threatened to kill her unless she left his property. Additionally, Hendley testified that she was familiar with the object.

“In particular, Hendley testified that it was a ‘real gun’ and stated both that she had seen it before because she had been friends with Loftis and that she knew the difference between a ‘toy gun’ and a ‘real gun.’

“Hendley’s ‘ability to identify [Loftis’s] pistol was subject to cross-examination,’ and ‘[t]he determination of how much weight to give to [her] identification of the object as [Loftis’s] pistol was a matter for the trier of fact.’ ….

“Taken together, Loftis’s implied assertion that the weapon was a gun and Hendley’s description of Loftis’s weapon were sufficient to prove that the instrument he possessed was a firearm.”

Burglary with intent to assault

“Loftis contends that the evidence does not establish that he intended to commit assault and battery when he broke the window and climbed into Hendley’s hotel room because he did not ‘immediately’ commit an assault or battery. Rather, ‘he asked whether Ms. Davis was in the room,’ and ‘only after discovering that Ms. Davis was not present did he demonstrate any intention to commit the substantive offense.’ We reject this contention. …

“The evidence showed that Loftis held a firearm to Hendley’s head and threatened to kill her when she came to his home to pick up Davis. He later arrived at Hendley’s motel room with an object resembling a gun in hand, which he violently and without hesitation used to punch through her motel-room window.

“He then entered the room and demanded to know where Davis was. The audio recording played for the jury, capturing the moments that followed, featured Hendley’s screams.

“That Loftis was ‘looking for’ Davis when he entered the room does not preclude a rational fact finder from determining that he intended to commit an assault and battery when he entered. …

“What is more, that Loftis entered the motel room with gun in hand should not be allowed to dissolve into the background. We have held that use of a deadly weapon, by itself, may support an inference of ‘an intent to maim, disfigure or kill.’ …

“Loftis’s apparent open and violent use of such an instrument to enter Hendley’s motel room, when coupled with his earlier threats against Hendley’s life and the audio recording, capturing Hendley’s screams, irresistibly leads a mind to a conclusion of guilt and leaves no room open for reasonable hypotheses of innocence. …

“Moreover, it was unnecessary for the Commonwealth to prove that Loftis entered the motel room with the specific intent to assault and batter Hendley, rather than Davis.

“Instead, it was sufficient for the Commonwealth to prove that Loftis entered the motel room with assaultive intent – and the evidence was more than sufficient to prove that Loftis did so.”


Loftis argues there was insufficient evidence to support his brandishing conviction. He says it is not clear whether he was convicted for his actions at the motel or his home. Further, he argues that if the brandishing was at his home, part of the premises is in North Carolina.

“Further, Loftis contends that Hendley’s testimony that he brandished the firearm at the motel was inherently incredible. …

“[T]he Commonwealth sufficiently proved that Loftis brandished a firearm in Danville. Officer Touchstone, while noting that some portions of Loftis’s home were in North Carolina, testified unequivocally that ‘the front yard where you come in’ and ‘drive up’ was in the city limits.

“Hendley testified that her interaction with Loftis at his home – recorded by the surveillance camera – occurred on the ‘front side’ of the home.”

This evidence “was sufficient to prove that Loftis brandished a firearm in Danville, and thus, in Virginia.

“Additionally, Loftis contends that Hendley’s testimony was incredible. We hold that a rational fact finder could have convicted Loftis of brandishing a firearm based either on his conduct at his home or at the motel. …

“It was within the province of the jury to grant or withhold assent to the truthfulness of Hendley’s claims. However, the jury, as fact finder, was not beholden to Hendley’s testimony. The jury was presented with video and audio evidence, upon which it could make independent determinations and test the veracity of Hendley’s testimony.

Hendley’s cross-examination

“Loftis argues that the trial court abused its discretion by prohibiting defense counsel from cross-examining Hendley on her arrest [and the five syringes in her possession] which occurred several days before trial. He contends that this line of questioning was probative of her potential bias in favor of the Commonwealth. …

“But the Commonwealth had not brought any charges against Hendley related to the syringes, and Hendley did not know whether the Commonwealth would bring any charges in the future.

“Accordingly, any response Hendley gave regarding future criminal charges would be more likely to confuse or mislead the jury than be probative of bias.”


Loftis v. Commonwealth, Record No. 0105-22-3, May 2, 2023. CAV (unpublished opinion) (Callins). From the Circuit Court of the City of Danville (Milam Jr.). Jason S. Eisner for appellant. Mason D. Williams, Jason S. Miyares for appellee. VLW 023-7-160, 19 pp.

VLW 023-7-160

Virginia Lawyers Weekly