Monique Demetrius Redd v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
MONIQUE DEMETRIUS REDD OPINION BY
v. 	Record No. 2180-97-2 	JUDGE JERE M. H. WILLIS, JR.
MARCH 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Susan D. Hansen, Deputy Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from her convictions of possession of a firearm by
a previously convicted felon, in violation of Code § 18.2-308.2,
and of grand larceny, in violation of Code § 18.2-95, Monique
Demetrius Redd contends that the evidence is insufficient to
support her convictions. 	We affirm the firearm conviction and
reverse the grand larceny conviction.
I. 	Firearm Charge
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." 	Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On May 22, 1997, Redd, a previously convicted felon, entered
a convenience store and placed a "long, black gun" on the
counter. 	She ordered the store clerk to give her all the money

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from the register. 	She warned the clerk that she would kill her
if she set off the silent alarm. 	After receiving the money, Redd
again threatened the clerk, telling her not to call the police.
Asked what kind of gun Redd displayed, the clerk replied, "I just
know it was a long black gun. 	I am not familiar with guns."
Code § 18.2-308.2(A) provides, in pertinent part:
It shall be unlawful for (i) any person who
has been convicted of a felony . . . to
knowingly and intentionally possess or
transport any firearm . . . .
Code § 18.2-308.2(A) requires the Commonwealth to prove, as an
essential element of the offense, that the accused possessed an
actual firearm, not merely an object of similar appearance.
Code § 18.2-308.2 prohibits a felon from
possessing a device that has the actual
capacity to do serious harm because of its
ability to expel a projectile by the power of
an explosion, and it is not concerned with
the use or display of a device that may have
the appearance of a firearm.
Jones v. Commonwealth, 16 Va. App. 354, 357-58, 429 S.E.2d 615,
617 (1992), aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192
(1993). 	Our inquiry is whether the recited evidence is
sufficient to carry the foregoing burden of proof.
The store clerk's description of the object brandished by
Redd as "a long black gun" is insufficient, alone, to prove that
the object possessed the "ability to expel a projectile by the
power of an explosion." 	However, Redd's threat, upon presenting
the weapon, to kill the clerk was an implied assertion that the
object was a functioning weapon, being in fact the firearm that

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it appeared to be and possessing the power to kill. 	This implied
assertion, which was corroborated by the appearance of the object
and was uncontradicted by any other evidence, was evidence
sufficient to support the trial court's finding that the object
was a firearm.
II. 	Grand Larceny Charge
On November 1, 1996, Redd cashed an Aid to Dependent
Children check for $291 at People's Market, a convenience store
owned by Na Song. 	On November 13, 1996, Redd reported to the
Department of Social Services that the check was stolen or lost
and by affidavit swore that she had neither endorsed the check
nor authorized its endorsement. 	Social Services issued her
another check and withdrew the amount of the first check from the
bank account of People's Market.
Redd was convicted of grand larceny of "United States
currency and/or personal property . . . belonging to People's
Market," in violation of Code § 18.2-95.
Redd cashed the assistance check on November 1, 1996. 	Her
affidavit was dated November 13, 1996. 	The evidence supports a
finding that the affidavit was false and that Redd defrauded the
Department of Social Services. 	However, Redd's only act with
respect to People's Market was the lawful cashing of the
assistance check. 	Nothing in the evidence supports a finding
that Redd intended thereby to steal from People's Market or that,
at that time, she intended to present a false claim to the
Department of Social Services. 	No evidence supports a finding

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that Redd knew that her execution of the affidavit would cause
the Department of Social Services to withdraw money from the
account of People's Market.
The evidence supports Redd's conviction on the firearm
charge, and we affirm the judgment of the trial court with
respect to that conviction. 	The evidence fails to support Redd's
conviction of grand larceny. 	We reverse the judgment of the
trial court with respect to that conviction and order that charge
dismissed.
Affirmed in part,
reversed in part.

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Benton, J., concurring and dissenting.
I concur in Part II and the judgment reversing the grand
larceny conviction. 	However, I dissent from Part I and would
reverse the conviction for violating Code § 18.2-308.2 because,
in my judgment, the evidence was insufficient to prove beyond a
reasonable doubt that the object Redd placed on the counter had
the actual ability to expel a projectile by the power of an
explosion. 	See Jones v. Commonwealth, 16 Va. App. 354, 357, 429
S.E.2d 615, 617, aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192
(1993).
No gun was seized from Redd or produced at trial. 	I agree
with the majority that the store clerk's description of the
object as a gun was insufficient to prove that the object Redd
possessed during the robbery had the "ability to expel a
projectile by the power of an explosion." 	Id. 	However, I
disagree with the majority's assertion that Redd's threat to the
clerk, together with the clerk's description of the object, was
sufficient to prove beyond a reasonable doubt that the object was
either functional or had the "ability to expel a projectile by
the power of an explosion." 	"Proof by circumstantial evidence
'is not sufficient . . . if it engenders only a suspicion or even
a probability of guilt. 	Conviction cannot rest upon
conjecture.'" 	Betancourt v. Commonwealth, 26 Va. App. 363, 373,
494 S.E.2d 873, 878 (1998) (citation omitted).
Accordingly, I would reverse the conviction for possession
of a firearm, as prohibited by Code § 18.2-308.2.