Rogers v. Com.
| Decision Date | 23 June 1992 |
| Docket Number | No. 2001-90-1,2001-90-1 |
| Citation | 418 S.E.2d 727,14 Va.App. 774 |
| Parties | Robert Louis ROGERS v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Charles B. Miller, Asst. Public Defender, for appellant.
John H. McLees, Jr., Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: BAKER, DUFF and WILLIS, JJ.
Robert Rogers appeals his December 5, 1990, jury convictions of possessing a sawed-off shotgun in violation of Code § 18.2-300 and possessing a firearm after having been convicted of a felony. Code § 18.2-308.2. He argues that the statutory definition of "sawed-off shotgun" precludes conviction for the weapon he possessed, and that the jury instruction defining a "sawed-off shotgun" was confusing or misleading. We disagree and affirm the judgment of the trial court.
On May 31, 1990, Officer Charles Terrell was dispatched to the 300 block of Factory Street to investigate a suspicious white male in the area. At approximately 8:15 p.m., Terrell discovered Rogers sitting on the old railroad tracks, apparently drinking beer in violation of a local ordinance. Upon turning and looking toward the marked patrol car, Rogers dropped his beer can and started running east along the railroad tracks. Terrell pursued him by car and saw him throw an item from the left side of his body as he ducked through a fence hole. Terrell continued the chase on foot and eventually arrested Rogers, at which time he found three pieces of wood in Rogers' right rear hip pocket and two twelve-gauge shotgun shells in Rogers' jacket.
Near the area where the throwing motion occurred, Terrell recovered a smooth bore weapon designed to shoot twelve-gauge shotgun shells. It was a single action weapon with a hammer pin action firing device, which could be fired by cocking the hammer and actuating the firing pin. It was originally designed to be fired as a shoulder weapon, but an extended stock would be required for such use. The wood items found in Rogers' hip pocket constituted a modified handle that would fit on this gun. The barrel length of this weapon was eleven and one-eighth inches, and its bore was greater than .225 caliber in diameter. The weapon therefore fell within the statutory definition of a "sawed-off shotgun." Code § 18.2-299. 1
At trial, Rogers argued that the weapon found did not come within the definition of a sawed-off shotgun pursuant to Code § 18.2-299 because it was inoperable for lack of a firing pin. The weapon had no firing pin when discovered, and therefore could not be fired as found. Additionally, no firing pin was recovered from appellant. However, the weapon could be made to fire by inserting a small nail or pin. No specific expertise would be required to insert such a pin.
Although interpretation of the definition of a "sawed-off shotgun" appears to present an issue of first impression in Virginia, the broad sweep of the "Sawed-off" Shotgun Act (Code §§ 18.2-299 through 307), reflects a legislative determination that sawed-off shotguns are highly dangerous and have no legitimate sporting use. Simple possession of a sawed-off shotgun by unauthorized individuals is punishable as a class 4 felony. The only exceptions to the proscription of civilian possession of sawed-off shotguns are the defenses set forth in Code § 18.2-303.1. In order for a defendant to rely on these defenses, he must prove either that he possessed the shotgun for scientific purposes, or that the shotgun was both unusable and possessed as a curiosity, ornament, or keepsake. The conjunctive language of the second exception means that a weapon merely unusable as a firing weapon does not fall within the provisions of § 18.2-303.1.
The wording of the "Sawed-off" Shotgun Act ("the Act") demonstrates that the legislature was concerned with dangers other than the actual firing of such weapons. A sawed-off shotgun, even one not immediately operable, presents a substantial danger to the community through the fear and intimidation it ingenders. The Virginia Supreme Court has previously recognized that legislative concerns extend to these types of dangers.
In Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 (1980) (per curiam), the Virginia Supreme Court held that use of a spring-operated BB pistol that appeared to be a .45 caliber semi-automatic pistol was sufficient to sustain a conviction under § 18.2-53.1, a statute proscribing the use or display of a firearm in the commission of various felonies. The Court reasoned that the statute was designed to prevent not only actual injury, but the fear that occurs when an object...
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