Armstrong v. Com.

• Decision Date: 31 July 2001
• Docket Number: Record No. 1388-99-3.
• Citation: 549 S.E.2d 641,36 Va. App. 312
• Court: Virginia Court of Appeals
• Parties: Eric Wayne ARMSTRONG v. COMMONWEALTH of Virginia.

549 S.E.2d 641

36 Va. App. 312

Eric Wayne ARMSTRONG v. COMMONWEALTH of Virginia.

Record No. 1388-99-3.

Court of Appeals of Virginia, Richmond.

July 31, 2001.

Ronald W. Vaught, Warm Springs, for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ.

UPON A REHEARING EN BANC

AGEE, Judge.

Eric Wayne Armstrong, appellant, was convicted in a bench trial of possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2.¹ He contends the evidence was insufficient to prove that the object he possessed was a firearm because it was not "operable."

In an unpublished opinion, a divided panel of this Court affirmed the conviction. Armstrong v. Commonwealth, No. 1388-99-3, 2000 WL 1724998 (Va.Ct.App. Nov. 21, 2000). However, we stayed the mandate of that decision and granted a rehearing en banc. Upon rehearing en banc, the stay of the mandate is lifted, and the judgment of the trial court is affirmed for the reasons set forth below.

I.

"Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasonable inferences fairly deducible therefrom." Green v. Commonwealth 32 Va. App. 438, 442, 528 S.E.2d 187, 189 (2000) (citing Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997)).

So viewed, the evidence established that during a search of the appellant's residence on February 12, 1998, Sheriff Herbert Lightner of Highland County observed what appeared to be a semi-automatic .22 caliber rifle and a BB gun inside a gun cabinet. The gun cabinet was not opened, and neither gun was examined. Neither the rifle nor the BB gun was seized at that time.

The appellant, who had a prior felony conviction, was later charged with possession of a firearm by a convicted felon.² At the preliminary hearing, defense counsel delivered the two weapons to the sheriff. No one testfired the guns. At trial, Sheriff Lightner testified that the .22 caliber rifle appeared to be the same weapon he saw at the appellant's house.

Melvin Eugene Armstrong, the appellant's cousin, testified at trial that the .22 caliber rifle belonged to him. Melvin stated that he purchased the rifle at K-Mart in October 1997 and produced a receipt from the store with a serial number matching the number on the rifle. Melvin, who was in the military at the time, explained that the rifle "wouldn't fire." He testified: "You could pull the trigger but the gun won't go off.... [T]he firing pin ain't [sic] hitting the casing so I assume it's got something to do with the spring in there or the firing pin one." He said that while he was out hunting, "it just stopped shooting."

The appellant did not dispute the existence of his prior felony conviction or his possession of the rifle. Instead, he argued that the rifle was not a "firearm" within the meaning of Code § 18.2-308.2 because it was not presently operable: "If the gun is not operable, and it's unconditional evidence ..., then it's not a firearm."

The trial court disagreed and found the appellant guilty of possession of a firearm by a convicted felon.

II.

On appeal, the appellant concedes that the rifle was "designed or intended to expel a projectile by discharge or explosion of gun powder."³ However, he contends the gun was "inoperable" based upon the "credible, affirmative, and unrebutted" testimony of Melvin Armstrong. Accordingly, the appellant concludes, the evidence was insufficient to sustain his conviction.

The Commonwealth contends the trial court was free to disbelieve Melvin Armstrong's testimony that the rifle "wouldn't fire." The Commonwealth further argues that Sheriff Lightner's testimony that he saw the .22 caliber rifle was sufficient to convict the appellant of this offense. We agree with the trial court's finding but for different reasons than articulated by it.

Code § 18.2-308.2, at the time of the offense, provided that it was unlawful for a previously convicted felon to "knowingly and intentionally possess or transport any firearm" The statute does not contain a definition of "firearm." In 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),

we held;

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. Therefore, we hold that the term "firearm" as used in Code § 18.2-308.2 is used in its traditional sense. The statute does not seek to protect the public from fear of harm caused by the display of weapons; rather, it is concerned with preventing a person, who is known to have committed a serious crime in the past, from becoming dangerously armed, regardless of whether that person uses, displays, or conceals the firearm. "It shall be unlawful for any person who has been convicted of a felony... to ... possess or transport any firearm or to ... carry about his person, [even if] hid[den] from common observation, any weapon described in § 18.2-308 A."

Id. at 357-58, 429 S.E.2d at 617 (quoting Code § 18.2-308.2(A)).

Subsequent panel decisions of this Court have enlarged the holding in Jones, which held that a BB gun was not within the "traditional definition of a firearm" for purposes of Code § 18.2-308.2. In Gregory v. Commonwealth, 28 Va.App. 393, 504 S.E.2d 886 (1998), however, we diverted from the holding in Jones and required the Commonwealth to prove the following elements in order to convict a felon for possession of a firearm:

(1) that the weapon is designed or intended to expel projectiles by the discharge or explosion of gunpowder, and (2) that it is capable of doing so.

Id. at 400, 504 S.E.2d at 889. We reiterated these two elements of required proof in Williams v. Commonwealth, 33 Va.App. 796, 537 S.E.2d 21 (2000).

The Commonwealth must initially prove that the accused possessed an object manufactured for the purpose of expelling a projectile by an explosion, namely, a firearm. It then must prove that the firearm is operational or can readily be made operational.

Id. at 807, 537 S.E.2d at 26 (citation omitted). In furtherance of this second element, we explained:

[T]he statute prohibits felons from possessing actual firearms that are presently operational or can readily or easily be made operational or capable of being fired with minimal effort and expertise.

Id. at 806-07, 537 S.E.2d at 26. It is this latter judicially created element of proof, that the felon's weapon is "presently operational," that is contrary to the plain language of the statute and has caused unnecessary confusion.

In the context of related statutes, the ready capability element has been phrased as "operable" or operable "on a moment's notice." Where the firearm, a sawed-off shotgun, lacked a firing pin in Rogers v. Commonwealth, 14 Va.App. 774, 418 S.E.2d 727 (1992), we held that the gun was close enough to actual firing capacity to justify a conviction for possession of the firearm in violation of Code § 18.2-300 (the Sawed-off Shotgun Act). Similarly in Timmons v. Commonwealth, 15 Va.App. 196, 421 S.E.2d 894 (1992), we held that the absence of the gun's ammunition clip did not deprive the firearm of its status as operable and, thus, we sustained the defendant's conviction under Code § 18.2-308.4 (possession of a firearm while in possession of cocaine). Yet, in Williams, we held that the element of operability was not proven where the convicted felon's gun was too rusty to fire at the time of his arrest. We reversed Williams' conviction for possessing the firearm. 33 Va.App. at 898, 537 S.E.2d at 27.

Contrasted with offenses committed in violation of Code § 18.2-53.1, the act of firearm possession under Code § 18.2-308.2 (or related statutes) involves no perception element by a victim.⁴ The crime is complete by the felon's possession of the weapon. The statute is interpreted in this fashion to further the legislative intent of keeping firearms of the hands of convicted felons. Jones concisely sets out the General Assembly's in adopting Code § 18.2-308.2:

[I]t is concerned with preventing a person, who is known to have committed a serious crime in the past, from becoming dangerously armed, regardless of whether that person uses, displays, or conceals the firearm.

16 Va.App. at 358, 429 S.E.2d at 617.

Nothing in this statement of policy, or in the plain language of the statute, bifurcates convicted felons with firearms into classes of those (1) possessing firearms ready to fire immediately, or (2) possessing firearms which can fire with some repairs or adjustments.

Further, because there is no victim perception element to Code § 18.2-308.2, as there is under Code § 18.2-53.1, there is no public policy or legislative intent to find a felon who possesses a BB gun, a squirt gun or a plastic toy gun to be in possession of a firearm. That is all the Jones decision held. When the General Assembly used the term "firearm" in Code § 18.2-308.2, it meant a "firearm" is a firearm under that statute if it was made to shoot bullets, not BBs or tap water.

Had later interpretations of Jones limited the holding to devices such as toy weapons, squirt guns or BB guns, those decisions may not have run afoul of the plain meaning of the statute or created the byzantine network of decisions which has since evolved. The aftermath of Jones has seen creative findings of circumstantial proof with regard to the operability of the accused felon's firearm which are not only difficult to reconcile, but also provide little guidance to the trial courts. For instance, in Redd v. Commonwealth, 29 Va.App. 256, 511...