Armstrong v. Com.

• Citation: 562 S.E.2d 139,263 Va. 573
• Decision Date: 19 April 2002
• Docket Number: Record No. 011948.
• Parties: Eric Wayne ARMSTRONG v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

562 S.E.2d 139

263 Va. 573

Eric Wayne ARMSTRONG v. COMMONWEALTH of Virginia.

Record No. 011948.

Supreme Court of Virginia.

April 19, 2002.

Ronald W. Vaught, Warm Springs, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellees.

Present: All the Justices.

Opinion by Justice LAWRENCE L. KOONTZ, JR.

In this appeal, we consider whether the Court of Appeals of Virginia correctly determined that in a prosecution for violation of Code § 18.2-308.2, which provides that it is unlawful for a person previously convicted of a felony "to knowingly and intentionally possess... any firearm," the Commonwealth is not required to prove as an element of the offense that the object possessed by the defendant was an "operable" firearm.

BACKGROUND

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial, granting to it all reasonable inferences fairly deducible there-from. Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).

On February 12, 1998, the Sheriff of Highland County, assisted by several other law enforcement officers, executed a search warrant at the home of Eric Wayne Armstrong. Following the seizure of suspected illegal drugs and drug paraphernalia, Armstrong was placed under arrest. During the search, the Sheriff and several of the other officers each observed a semi-automatic .22 caliber rifle inside a gun cabinet. The rifle was not examined in any detail at that time because the gun cabinet was locked and Armstrong did not have the key to it.

Armstrong, who had a prior felony conviction, was later charged with being a felon in possession of a firearm in violation of Code § 18.2-308.2. At a subsequent preliminary hearing, Armstrong's counsel delivered the rifle to the Sheriff. However, the Sheriff did not cause the rifle to be inspected or test-fired while it was in his possession.

At trial, the rifle was introduced into evidence. Melvin Eugene Armstrong, Armstrong's cousin, testified that the rifle belonged to him, but that he had unintentionally left the rifle at Armstrong's home during a prior hunting season. He testified that he had purchased the rifle in October 1997 and produced a receipt with a serial number matching the serial number on the rifle. He further testified that the rifle "wouldn't fire.... You could pull the trigger but the gun won't go off.... [T]he firing pin ain't hitting the casing so I assume it's got something to do with the spring in there or the firing pin one." He stated that while he was hunting "it just stopped shooting."

Armstrong did not dispute his prior felony conviction or his possession of the rifle. Rather, his defense was based solely on his assertion that the rifle was not a "firearm" within the meaning of Code § 18.2-308.2 because it was inoperable. The trial court rejected Armstrong's assertion and found him guilty of a violation of this statute. The trial court sentenced Armstrong to two years' imprisonment, suspending all but seven months of that sentence.¹

Armstrong noted an appeal to the Court of Appeals, asserting that the trial court had erred in finding that possession of an inoperable firearm constituted a violation of Code § 18.2-308.2. In an unpublished opinion, a panel of the Court of Appeals, with one judge dissenting, affirmed Armstrong's conviction. Armstrong v. Commonwealth, No. 1388-9-3, 2000 WL 1724998 (November 21, 2000) (hereinafter Armstrong I). Quoting Williams v. Commonwealth, 33 Va.App. 796, 807, 537 S.E.2d 21, 26 (2000), decided the same day as Armstrong I, the panel majority held that Code § 18.2-308.2 "`prohibits felons from possessing actual firearms that are presently operable or that can readily or easily be made operable or capable of being fired with minimal effort and expertise.'" Armstrong I, slip op. at 3 (emphasis added). Relying on this latter requirement of proof, the panel majority held that "while currently inoperable, the only defect in [Armstrong's rifle] was that the `firing pin' would not hit the `casing,' a condition that `could be readily or easily restored to [one] of operability.'" Id. at 4. The dissenting judge, while concurring that the issue was controlled by Williams, was of opinion that the Commonwealth's evidence had failed to show that the rifle could be made operable "`on a moment's notice.'" Id. at 6 (Frank, J., dissenting) (quoting Timmons v. Commonwealth, 15 Va.App. 196, 200-01, 421 S.E.2d 894, 897 (1992)).

Armstrong filed a petition for rehearing en banc, which was granted. Following argument before the full Court of Appeals, a majority, with one judge dissenting, affirmed Armstrong's conviction. Armstrong v. Commonwealth, 36 Va.App. 312, 549 S.E.2d 641 (2001) (en banc) (hereinafter Armstrong II).

The en banc majority, however, rejected the view adopted by the majority in the panel decision and reached its decision on grounds not asserted by either Armstrong or the Commonwealth in the appeal. Rather, the majority opined that the prior panels in both Williams and Gregory v. Commonwealth, 28 Va.App. 393, 504 S.E.2d 886 (1998), a decision relied upon by the panel in Williams, had misconstrued the holding of Jones v. Commonwealth, 16 Va.App. 354, 429 S.E.2d 615, aff'd. on reh'g en banc, 17 Va.App. 233, 436 S.E.2d 192 (1993), a case which had previously construed the term "firearm" as used in Code § 18.2-308.2. Gregory affirmed the conviction of a felon in possession of an unloaded rifle; Williams reversed the conviction of a felon in possession of an inoperable, rusty pistol.

The majority began its analysis by noting that Code § 18.2-308.2 does not define the term "firearm" and that in Jones the Court had applied a "traditional" definition of firearm in concluding that this statute did not prohibit the possession of a BB handgun.² The majority then opined that in Gregory the Court had "diverted from the holding in Jones" by requiring the Commonwealth, pursuant to this statute, to prove that the weapon is designed or intended to expel projectiles by the discharge or explosion of gunpowder and that it is capable of doing so. Continuing, the majority noted that the Court in Williams had "reiterated" these elements of proof by requiring the Commonwealth to prove that the accused possessed an object manufactured for the purpose of expelling a projectile by an explosion and that the object is presently operational or can readily or easily be made operational or capable of being fired with minimal effort and expertise. Armstrong II, 36 Va.App. at 315-16, 549 S.E.2d at 643.

The majority reasoned that the "presently operational," or "ready capability," element of proof was contrary to the language of Code § 18.2-308.2 and had caused confusion. The majority further reasoned that the focus of the analysis in Jones had been on the distinction between those instances where a broad definition of the term is applied to statutes that criminalize the use of a firearm, see, e.g., Code § 18.2-53.1 (use of a firearm in the commission of a felony), and those in which the more narrow, traditional definition suffices to promote the purpose of a statute, such as Code § 18.2-308.2, that criminalizes the simple possession of a firearm. The majority noted that in the former instance, the purpose of the statute is to deter the perpetration of crimes that put the victim in fear of harm as the result of the perception that a firearm is being used, while the act of firearm possession involves no perception element by a victim. Armstrong II, 36 Va. App. at 317 and n. 4, 549 S.E.2d at 643 and n. 4.

The majority concluded that Code § 18.2-308.2 expressed a "legislative intent of keeping firearms out of the hands of convicted felons," id. at 318, 549 S.E.2d at 644, and, further, that "[t]he General Assembly included no language in the statute to circumscribe the absolute prohibition of a convicted felon's possession of a firearm. It matters not whether the gun's current condition is `operable' or `inoperable.'" Id. at 320, 549 S.E.2d at 645. "When enacting Code § 18.2-308.2, the General Assembly's intent was clear: A felon cannot possess any firearm." Id. at 321, 549 S.E.2d at 645.

Thus, the majority affirmed Armstrong's conviction, holding that "[i]n a prosecution under Code § 18.2-308.2, once the Commonwealth proves the accused is a convicted felon who possessed an object made to `expel a projectile by the combustion of gunpowder or other explosive,' then it has proven all the necessary elements of the crime based on the plain language of the statute." Id. at 320-21, 549 S.E.2d at 645. In so holding, the majority, pursuant to Code § 17.1-402(D), stated that it was expressly overruling Gregory and Williams, and, to the extent that Jones could be read to establish a requirement of proof that the firearm was operable or could readily be made so, Jones also was overruled. Id. at 321, 549 S.E.2d at 645-46.

The dissenting judge took the view that in Jones the Court had held that proof that the "device has the actual capacity to do harm because of its ability to expel a projectile by the power of an explosion" was an element of the Commonwealth's burden to establish that the defendant had possessed a "firearm" in violation of Code § 18.2-308.2. Id. at 322-23, 549 S.E.2d at 646 (Benton, J., dissenting) (quoting Jones, 16 Va.App. at 357, 429 S.E.2d at 617). Noting that the General Assembly had revised Code § 18.2-308.2 subsequent to Jones "without any indication that it has disagreed with" this statement in Jones, Armstrong II, 36 Va.App. at 323,

549 S.E.2d at 646, the dissent opined that the majority's "only compelling feature is that it has garnered a sufficient number of votes to overrule our prior decisions." Id. at 325, 549 S.E.2d at 648. Accordingly, citing Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), the dissent further opined...