WELCH v. COMMONWEATH

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WELCH

v.

COMMONWEALTH

NOVEMBER 16, 1999

Record No. 1232-98-1

BRUCE ALAN WELCH

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT
NEWS

Robert W. Curran, Judge

Present: Judges Willis, Lemons and Frank

Argued at Norfolk, Virginia

MEMORANDUM OPINION^* BY JUDGE DONALD
W. LEMONS

Karen M. Vannan (Lasris & Vannan, PLC, on
brief), for appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General; Ruth M. McKeaney, Assistant
Attorney General, on brief), for appellee.

The appellant, Bruce Alan Welch, was convicted
in a bench trial of: (1) the use or display of a firearm while in
the commission of a burglary in violation of
Sect. 18.2-53.1; (2) discharging a firearm within an
occupied dwelling in violation of Virginia Code
Sect. 18.2-279; (3) assault and battery in violation of
Virginia Code Sect. 18.2-57; and (4) breaking and entering
in the nighttime with intent to commit assault and battery while
armed with a deadly weapon in violation of Virginia Code
Sect. 18.2-91.

Only two of these four convictions are before
this Court on appeal. Welch contends there was insufficient
evidence to convict him of using or displaying a firearm in the
commission of a burglary and there was insufficient evidence to
convict him of discharging a firearm in an occupied dwelling. We
disagree and affirm both convictions.

I. BACKGROUND

Where the sufficiency of the evidence is an
issue on appeal, an appellate court must view the evidence and
all reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. See Cheng v.
Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990)
(citations omitted). Unless that finding is plainly wrong, or
without evidence to support it, it shall not be disturbed on
appeal. See Code Sect. 8.01-680; George v.
Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991).

So viewed, the evidence proved that at some
time after 6:00 p.m. on February 5, 1997, Welch took his
shotgun and some shells and drove to the home of his former wife,
Fannie Simmons, and her husband, Timothy Simmons. He was wearing
gloves. At approximately 9:50 p.m., Timothy and Fannie Simmons
were home with Jordan Welch, the three-year-old daughter of
Fannie and the appellant. Fannie looked out of the window at that
time and recognized Welch’s truck in the parking lot.

A few minutes later, she heard banging against
her apartment door. The door was dead-bolted and locked, but she
still moved toward the door to hold it shut. She heard "a
really loud noise" and smelled "something burning"
and then, with "a really loud cracking noise," the door
gave way. At trial, Fannie demonstrated for the court how Welch
was holding the shotgun when she saw him. She stated, "He
had it like this (Indicating) when he came through the door . . .
." She testified that Welch had one hand on the trigger and
the other toward the barrel and stood approximately one foot from
her. After the incident, there were several holes in the door, as
well as small holes in the living room wall.

Fannie ran down the hallway toward the master
bedroom, screaming to her husband that Welch had a gun. Timothy,
who had been in the bedroom, pushed Fannie into the closet and
stood behind the door to the room. When Welch entered the
bedroom, Timothy kicked the door against him and simultaneously
reached for the shotgun. A struggle followed, and Timothy shouted
at Welch to stop. Welch responded by saying that it was all
Timothy’s fault that Fannie left him and that "this is what
is going to happen."

During the struggle, the gun discharged without
injury to Timothy, Fannie, Jordan or Welch. When the gun
discharged, Timothy was on top of Welch with his right hand on
the stock and left hand on the barrel. Fannie’s hands were
nowhere near the trigger. Both Fannie and Timothy testified that
they did not pull the trigger.

At trial, the Commonwealth’s expert testified
that gun residue was not found on Welch’s gloves. However, he
also testified that such residue might not be on the gloves even
if Welch had pulled the trigger.

II. USE OF A FIREARM IN THE
COMMISSION OF BURGLARY

Virginia Code Sect. 18.2-53.1 states,
"It shall be unlawful for any person to use or attempt to
use any pistol, shotgun, rifle, or other firearm or display such
weapon in a threatening manner while committing or attempting to
commit . . . burglary, . . . ." The evidence
supports the finding that Welch displayed the shotgun "when
he came through the door." It is not necessary to address
arguments that the shotgun was fired through the door to gain
entry. The elements of burglary include the requirement of an
"entry." Here the evidence is sufficient to prove that
the shotgun was displayed during the entry of the premises.

III. DISCHARGING A FIREARM IN
AN OCCUPIED DWELLING

Virginia Code Sect. 18.2-279 states in
pertinent part:

If any person maliciously discharges a firearm
within any building when occupied by one or more persons in such
a manner as to endanger the life or lives of such person or
persons, . . . the person shall be guilty of a Class 4 felony.

* * * * * * *

If any such act be done unlawfully, but not
maliciously, the person so offending shall be guilty of a Class 6
felony . . . .

Viewed in the light most favorable to the
Commonwealth, the evidence reveals that Welch came down the hall
with one hand on the barrel and the other hand on the trigger.
Welch’s statement, "this is all your fault that my wife left
me and this is what is going to happen," indicates intent to
discharge the shotgun.

Additionally, Timothy Simmons testified that
when the struggle ensued, he had one hand on the stock and one
hand on the barrel. Fannie Simmons testified that her hands were
"nowhere near the trigger." Based on this evidence, the
trial court could find that Welch discharged the gun. Welch’s
denial that he pulled the trigger is a question left to the fact
finding function of the trial court. See Montgomery
v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980)
("[E]ven if [the] defendant’s story was not inherently
incredible, the trier of fact need not have believed the
explanation"); Rollston v. Commonwealth, 11 Va. App.
535, 547, 399 S.E.2d 823, 830 (1991) ("[The trier of fact] is not required to accept in toto, an accused’s statement, but
may rely upon it in whole, in part, or reject it
completely."). [1]

We cannot say that the trial judge was plainly
wrong or that the evidence is insufficient to sustain the
verdict.

Finding no error, the convictions are affirmed.

Affirmed.

* Pursuant to Code Sect. 17.1-413,
recodifying Code Sect. 17-116.010, this opinion is not
designated for publication.

FOOTNOTES:

[1] The lack of gunshot residue on
Welch’s hands is not dispositive of the issue. The expert
adequately explained that residue might not be present even if
Welch had pulled the trigger.