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Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.
DONOVAN PAYNE MORRIS
OPINION BY
v.    Record No.  032714                                            SENIOR JUSTICE HARRY L. CARRICO
January  14,  2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
INTRODUCTION
At issue in this appeal is Code  §  18.2-308.2, which makes
it a Class  6 felony to knowingly and intentionally possess or
transport a firearm after having been convicted of a felony.
Also at issue is Code  §  18.2-282, which makes it a Class  1
misdemeanor to point, hold, or brandish a firearm in such manner
as to reasonably induce fear in the mind of another.1
PROCEDURAL BACKGROUND
In a two-count indictment, Donovan Payne Morris  (Morris)
was charged with possession of a firearm, to-wit, a flare
pistol, after having been convicted of a felony, and with
brandishing a firearm.    In a bench trial, Morris was convicted
of both offenses and sentenced to five years’ imprisonment with
three years suspended on the possession charge and to twelve
months on the brandishing charge.
One of the judges of the Court of Appeals denied Morris’s
petition for appeal.    Morris v. Commonwealth, Record No.  3395-
1 Code  §  18.2-282 makes it a Class  6 felony to point, hold,
or brandish a firearm on or within  1000 feet of school property.




02-4  (August  5,  2003).    For the reasons assigned in that order,
a three-judge panel of the Court of Appeals also denied Morris
an appeal.    Morris v. Commonwealth, Record No.  3395-02-4
(October  30,  2003).    We awarded Morris this appeal.
FACTUAL BACKGROUND
The record establishes that Morris has a string of nine
felony convictions dating back to  1977.    With respect to the
present offenses, the evidence shows that on June  20,  2002,
Peter Molina, an engraver of tombstones, was working in an
Alexandria cemetery accompanied by his wife, who was his
business partner.    Morris appeared on the scene, dragging a
bicycle and smelling of alcohol.    He sat on a tombstone, staring
at Molina and his wife, cursing and mumbling.    After about five
minutes, Morris looked at Molina’s wife and said,  “I’d like
that.”    When Molina asked Morris what he had said, Morris stood
up,  “raised up his shirt,” and  “showed  [Molina] this gun he had
in his waistband.”
Because Molina did not know  “what the situation was or what
the situation could be,” he became  “worried about” his wife’s
safety and decided he  “needed to get her out of there.”    They
got into their truck and, as they were leaving the cemetery,
they encountered Officer Vincent Omundson of the Alexandria
Police Department.
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Molina told Officer Omundson  “there was a man back there
with a gun in his waistband.”    Omundson, armed with a shotgun,
found Morris sitting on  “a stump or a bucket,” drinking beer.
When Omundson told Morris to put down his drink and raise his
hands, Morris responded by reaching under his shirt, pulling out
the flare gun, and throwing it into some grass about twenty-five
feet away.    After some resistance from Morris, Omundson arrested
him and retrieved the flare gun.    One  “fired round” of
ammunition was found in the flare gun and three  “loaded rounds”
were found on Morris’s person.
STANDARD OF REVIEW
In keeping with familiar principles, we will consider the
evidence and all reasonable inferences fairly deducible
therefrom in the light most favorable to the Commonwealth, the
prevailing party below.    Dowden v. Commonwealth,  260 Va.  459,
461,  536 S.E.2d  437,  438  (2000).    However, since the statutes at
issue here are penal in nature, they must be construed strictly
against the Commonwealth, and any ambiguity or reasonable doubt
as to their meaning must be resolved in Morris’s favor.    See
Ansell v. Commonwealth,  219 Va.  759,  761,  250 S.E.2d  760,  761
(1979).    But this does not mean that Morris is entitled to a
favorable result based upon an unreasonably restrictive
interpretation of the statutes.    See id.
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DISCUSSION
Possession of a Firearm
As noted previously, Code  §  18.2-308.2 proscribes the
possession of a firearm by a convicted felon.    While this Code
section does not define the term  “firearm,” we held in Armstrong
v. Commonwealth,  263 Va.  573,  562 S.E.2d  139  (2002), that  “in
order to sustain a conviction for possessing a firearm in
violation of Code  §  18.2-308.2, the evidence need show only that
a person subject to the provisions of that statute possessed an
instrument which was designed, made, and intended to expel a
projectile by means of an explosion.”                                 263 Va. at  584,  562 S.E.
2d at  145.2
Morris was certainly a person subject to the provisions of
Code  §  18.2-308.2.    He contends, however, that the Commonwealth
did not prove that a flare gun is a firearm as the latter term
is defined in Armstrong, i.e., an instrument which was designed,
made, and intended to expel a projectile by means of an
explosion.
We disagree with Morris.    Detective William Bunney of the
Alexandria Police Department was recognized by the trial court
2 The question in Armstrong was whether, in a prosecution
for violation of Code  §  18.2-308.2, the Commonwealth is required
to prove as an element of the offense that the object possessed
by the defendant was an  “operable” firearm.    The Court answered
in the negative.                                                      263 Va. at  584,  562 S.E.2d at  145.
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as  “an expert in the field of firearms.”3    Detective Bunney
examined Morris’s flare gun and test-fired it, using two of the
three rounds of ammunition recovered from Morris’s person.
Detective Bunney testified that the flare gun operated  “the
way it was intended to by the manufacturer, meaning  [the] hammer
comes back, stays in the locked position until the trigger is
pulled and the hammer falls forward, and when it falls forward,
the firing pin falls forward of the breech plate so that it will
strike the primer of the shell to ignite the primer, to ignite
the propellant, to send a projectile downrange.”    Detective
Bunney explained that the primer is  “sort of like a dynamite
cap.    It’s an initiator of  .  .  . a larger explosion.”
Detective Bunney also testified that a round of ammunition
identical to that found on Morris’s person contains a projectile
made up of a metal cap holding a mixture of black powder and
paraffin.    The detective said that black powder is an explosive
and that it was the cause of  “a burnt residue” found inside the
empty cartridges of the two rounds of ammunition used in the
test-firing.
In the test-firing, Detective Bunney set up a paper target
“at the approximately  25 yard line” of the firing range.    When
3 On brief, Morris complains that the trial court improperly
allowed Detective Bunney to testify as an expert on several
matters in controversy, but Morris has not assigned error to the
trial court’s action in this respect.    Accordingly, we will not
consider the complaint.    Rule  5:17(c).
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he pulled the trigger on the flare gun, he  “felt a decidable
recoil within the firearm” and  “[s]moke appeared at the muzzle
end.”    He saw  “an object leave the barrel,” saw  “an object  .  .  .
hit the paper  [target],” and heard a  “metallic object strike a
metallic object further downrange.”    A metal deflection guard
was in place  “at the further end of the range.”
The first time Detective Bunney fired the flare gun, he
used only a paper target.    The shot traveled through the paper
and produced two holes.    On the second shot, the detective
backed up the paper target with a cardboard target.    The shot
traveled through the paper and the cardboard and produced two
holes.    Detective Bunney likened his test-firing of the flare
gun with his experience in firing a  12-gauge shotgun  “at medium
to short distances,” where one hole is created in a target by
the projectile and one is created by wadding.
Finally, Detective Bunney was asked whether the trigger,
hammer, barrel or breech, and firing pin of the flare gun were
“consistent or inconsistent with other firearms with which  [the
detective was] familiar.”    He answered,  “[c]onsistent.”
Accordingly, we conclude that the Commonwealth proved that
Morris possessed an instrument that was designed, made, and
intended to expel a projectile by means of an explosion.4
4 In another case decided by the Court of Appeals while this
case was pending, the court held that a  “flare gun clearly falls
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Morris argues, however, that under Code  §  18.2-308.2, the
Commonwealth had the burden of proving that he  “knowingly and
intentionally” possessed a firearm.    Citing Staples v. United
States,  511 U.S.  600  (1994), Morris states that  “[a]n essential
element of the crime that must be proved beyond a reasonable
doubt is mens rea, scienter, or criminal intent,” yet the
Commonwealth did not show that he  “knew that  [his] flare gun was
a firearm.”
Morris cites a stipulation entered into below stating that
flare pistols and flares are sold at a retail store in
Alexandria; that these items are not kept under lock and key;
that the store has no minimum age of purchase for the items,
does not require registration of the items or a waiting period
for their purchase, observes no restriction on the sale of the
items, and does not require a potential purchaser to produce
identification.    Morris then says that  “[t]here is apparently
little to no regulation of who may purchase or possess flare
guns in Virginia” and that  “[n]o average, reasonable person
would ever consider that possession of  [a] plastic safety device
within the definition of  ‘firearm’ articulated in Armstrong.”
Quesenberry v. Commonwealth,  41 Va. App.  126,  129,  583 S.E.2d
55,  56  (2003).
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that can be purchased with no restrictions and is not otherwise
regulated would subject them to criminal liability.”5
We reject Morris’s argument that he did not know a flare
gun is a firearm.    He admitted in his testimony that he had seen
flare guns fired before, and when asked whether he had  “any idea
that the flare gun was capable of expelling a projectile by
means of an explosion,” he evaded the question, saying that  “to
me it’s a safety device, you know, of somebody being on a boat,
of somebody in trouble  .  .  . to me it ain’t no gun.”    Morris
also testified that he had never fired the flare gun, that he
had bought it for  $10.00 from  “this guy on the street” and
planned to sell it to  “the owner of the graveyard.”
Morris has not explained, however, why, if he thought the
flare device  “ain’t no gun,” he felt it necessary to try to
dispose of the device when Officer Omundson arrived on the
scene.    Nor has Morris explained how, if he had never fired the
5 Code  §  18.2-308.2:2(B)(1) provides for a criminal history
check of a person purchasing a firearm from a dealer and
requires the person to furnish information relating to his or
her identification and residency in Virginia.    This Code section
defines the term  “firearm” in much the same way as we defined
the term in Armstrong, and we said we would read the Code
section in para materia with Code  §  18.2-308.2, the section then
under review,  “in order to give consistent meaning to the
language used by the General Assembly.”                              263 Va. at  583,  562
S.E.2d at  145.    But it should not be implied from our reference
to Code  §  18.2-308.2:2 in Armstrong that we consider flare guns
to come within the ambit of that Code section.    Indeed, the
Attorney General agrees that  “flare guns are not subject to the
restrictions set forth in  §  18.2-308.2:2.”
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flare gun, it just so happened that a fired round of ammunition
was found in its chamber.    In any event, the trial court was not
bound to credit the testimony of Morris, a convicted felon.
Indeed, the trial judge said he found Morris’s testimony
“questionable at the least for a variety of reasons.”    And, upon
finding Morris’s testimony unworthy of belief, the trial judge
could draw the reasonable inference that Morris testified
falsely "in an effort to conceal his guilt.” Covil v.
Commonwealth,  268 Va.  692,  696,  640 S.E.2d  79,  82  (2004)  (citing
Emmett v. Commonwealth,  264 Va.  364,  372,  569 S.E.2d  39,  45
(2002)). See also Black v. Commonwealth,  222 Va.  838,  842,  284
S.E.2d  608,  610  (1981).    The judge could also  “consider whatever
[he] concluded to be perjured testimony as affirmative evidence
of guilt,” Wright v. West,  505 U.S.  277,  296  (1992).
Finally, the trial judge found that the flare gun was
“obviously  .  .  . intended to be used as a weapon” and that from
“the way  [the instrument] was used under the facts of this case,
it may well be inferred  [that Morris knew the flare gun had the
characteristics that would make it fall within the statute].”
The judge also said:                                                       “I believe the mens rea is there.    He used
[the flare gun] for essentially a criminal purpose.”    We agree
with the trial judge and conclude that the evidence was
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sufficient to show that Morris knowingly and intentionally
possessed a firearm within the intendment of Code  §  18.2-308.2.6
Brandishing a Firearm
As noted supra, Morris was charged with pointing, holding,
or brandishing a firearm in such a manner as to reasonably
induce fear in the mind of another, pursuant to Code  §  18.2-282.
Morris argues  “[t]here was insufficient evidence that  [he]
pointed, held or brandished the firearm, and there was
insufficient evidence that there was reasonable fear in the mind
of Peter Molina.”
Morris says that although Peter Molina saw the flare gun in
Morris’s waistband, he never testified that he was in fear of
the gun.    Morris asserts that Molina, solely out of concern for
his wife, insisted that they should leave the area where Morris
was sitting.    Indeed, Morris states, Molina indicated in his
6 During argument on a defense motion for a new trial, the
trial court admitted into evidence  “for purposes of appeal” a
letter signed by the Chief of the Firearms Technology Branch of
the Bureau of Alcohol, Tobacco and Firearms of the United States
Department of the Treasury.    The letter stated that the flare
gun possessed by Morris was not designed as a weapon or to expel
a projectile by the action of an explosive and was not a firearm
subject to the provisions of  18 U.S.C., Chapter  44, the Gun
Control Act of  1968.    The trial court also received a written
stipulation asked for by defense counsel and agreed to by the
Commonwealth’s Attorney,  “except as to relevance.”    The
stipulation stated that  “Doug Craze of the Bureau of Alcohol,
Tobacco, and Firearms would testify that a flare gun is not
regulated by the BATF.”    We consider both statements irrelevant.
How the BATF interprets the federal statute and decides what is
and what is not a firearm is not binding upon this Court, or
even persuasive.
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testimony that he  “may have stayed where he was had his wife not
been there.”
Morris says further that he  “never touched the gun in the
presence” of Molina or his wife and there is no evidence that
“he pointed the flare gun.”    Hence, Morris concludes, the
evidence is insufficient to support a conviction for brandishing
a firearm.
We disagree with Morris.                                            “Brandish” means  “to exhibit
or expose in an ostentatious, shameless, or aggressive
manner.”    Webster’s Third New International Dictionary,  268
(1993).    When Morris looked at Ms. Molina, said  “[he’d]
like that,” and then pulled up his shirt to uncover the
flare gun, he exhibited or exposed the weapon in a
shameless or aggressive manner.    And Morris brandished the
weapon in such a manner as to reasonably induce fear in the
mind of Peter Molina.    Although Molina may not have said he
was in fear for his own safety, he stated unequivocally
that he feared for the safety of his wife, and that is
sufficient to prove the  “induced fear” element of a
conviction for brandishing a firearm under Code  §  18.2-282.
CONCLUSION
Finding no error in the judgment of the Court of Appeals,
we will affirm the judgment.
Affirmed.
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