Clinton C. Quesenberry, s/k/a v Commonwealth

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COURT OF APPEALS OF VIRGINA

Present: Judges Benton, Clenents and Senior Judge Wllis
Argued at Richnond, Virginia

CLI NTON C. QUESENBERRY, S/K/A
CLI NTON QUESSENBERRY
OPI N ON BY
Vv. Record No. 2292- 02-2 JUDGE JERE M H WILLIS, JR
J ULY 8, 2003
COMVONWEALTH OF VI RGI NA

FROM THE CI RCUL'T COURT OF CHESTERFI ELD COUNTY
Herbert C. Gll, Jr., Judge

Ali J. Amrshahi for appellant.

Jennifer R Franklin, Assistant Attorney

General (Jerry W Kilgore, Attorney Ceneral,

on brief), for appellee.

Qinton C. Quesenberry was convicted in a bench trial of
possession of a firearmby a convicted felon. m appeal, he
contends the trial court erred by finding the plastic flare
launcher he possessed was a "firearni subject to the prohibition
of Code § 18. 2-308.2. For the reasons that follow we affirmthe
judgnent of the trial court.

BACKGROUND

"On appeal, ‘we reviewthe evidence in the light nost
favorable to the Commpnvealth, granting to it all reasonable
inferences fairly deducible therefrom'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E 2d 826, 831 (1997)

(citation omtted).

So viewed, the evidence disclosed that on October 23, 2001,
at approximately 5:15 p.m., Officer Knouse responded to a
complaint at the Shady Hill Trailer Park in Chesterfield County.
When he arrived at the scene, he observed Quesenberry in the
access road in front of his trailer. 	As he spoke with
Quesenberry, who was upset because a neighbor's guest had parked
in his parking space, Knouse noticed an orange plastic flare gun
protruding from Quesenberry's back pocket. 	The neighbor's guest
moved the car, and the officer left. 	At approximately
6:30 p.m., in response to another report of a disturbance at the
trailer park, Knouse and Officer T.A. Bunker returned to the
scene. 	They discovered Quesenberry engaged in another argument
regarding the parking spaces. 	Bunker approached Quesenberry and
asked whether he was carrying a weapon. 	Quesenberry said he was
not, but admitted he had a flare gun in his trailer.
Quesenberry retrieved the weapon from just inside the trailer's
door and showed it to Bunker, who noticed it contained an
expended round. 	He took possession of the weapon.
Gilbert Auaguirre testified he observed the argument from
next door. 	He testified that Quesenberry produced a gun from
his trailer, pointed it at "everybody," and threatened to kill
them.
Ann Davis, a forensic scientist, examined the flare gun.
She testified that it was designed to propel a projectile by
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explosive force. 	She explained that the flare gun fired by the
same mechanism as a shotgun.
ANALYSIS
In pertinent part, Code § 18.2-308.2 provides that "[i]t
shall be unlawful for . . . any person who has been convicted of
a felony . . . to knowingly and intentionally possess or
transport any firearm . . . ." 	Appellant concedes he is a
convicted felon and also admits he possessed the plastic flare
gun. 	He argues only that the flare gun is not a "firearm" within
the meaning of Code § 18.2-308.2.
[I]n 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. 	It is
not necessary that the Commonwealth prove
the instrument was "operable," "capable" of
being fired, or had the "actual capacity to
do serious harm."
Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145
(2002). 	Ms. Davis testified that the flare gun Quesenberry
possessed was designed to expel a projectile by means of an
explosion.
Nevertheless, Quesenberry asserts that a flare gun is not
included within the intent and purpose of Code § 18.2-308.2 and
that its inclusion would impermissibly extend the statute, "by
implication or construction . . . to embrace cases which are not
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within [its] letter and spirit." 	Berry v. City of Chesapeake,
209 Va. 525, 526, 165 S.E.2d 291, 292 (1969).
"While we construe penal statutes strictly against the
Commonwealth, a statute should be read to give reasonable effect
to the words used and to promote the ability of the enactment to
remedy the mischief at which it is directed." 	Johnson v.
Commonwealth, 37 Va. App. 634, 639, 561 S.E.2d 1, 3 (2002)
(internal quotations omitted). 	We recently held that "[t]he
'mischief' at which § 18.2-308.2(A) is directed is the
possession of firearms by convicted felons in an attempt to
prevent indiscriminate use of dangerous weapons by one
previously convicted of a serious crime." 	Alger v.
Commonwealth, 40 Va. App. 89, 93, 578 S.E.2d 51, 53 (2003).
Quesenberry not only possessed the flare gun, a device capable of
inflicting injury, he used it in a threatening manner, aiming it
at a group of people at close range and threatening to kill
them.
Quesenberry's use of an instrument designed to expel a
projectile by explosive force was precisely the type of
"mischief" Code § 18.2-308.2 was designed to prevent. 	The flare
gun clearly falls within the definition of "firearm" articulated
in Armstrong. 	See 263 Va. at 584, 562 S.E.2d at 145. 	The trial
court did not err in so finding.
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For these reasons, we affirmthe judgnent of the trial
court.

Af firned.