Baker v. Commonwealth

• Citation: 733 S.E.2d 642
• Decision Date: 01 November 2012
• Docket Number: Record No. 120252.
• Parties: Jontreil Lamar BAKER v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

733 S.E.2d 642

Jontreil Lamar BAKER

v.COMMONWEALTH of Virginia.

Record No. 120252.

Supreme Court of Virginia.

Nov. 1, 2012.

James L. Grandfield, Public Defender, for appellant.

John H. McLees, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Jill M. Ryan, Senior Assistant Attorney General, on brief), for appellee.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, JR.

In this appeal, we consider whether evidence of the possession of one firearm on three separate occasions can constitute three separate charges for possession of a firearm by a convicted felon in violation of Code § 18.2–308.2(A).

I. Background

Jontreil Lamar Baker, a convicted felon, and Calvin Williams visited Charna Chapman in the home that she shared with a roommate in Suffolk. During their visit, Chapman showed Baker her Hi–Point Firearms .380 caliber pistol. Baker offered to purchase the firearm, but Chapman refused to sell.

The next day, Chapman and her roommate returned home to find that the door they had locked just hours before was now easily pushed open. The home had been burglarized and Chapman's firearm was missing. While they were away, Baker had entered the home through a window, taken the firearm, and left out of the front door. When Williams picked him up a block away from the home just minutes after the burglary, Baker displayed the firearm as he entered the car.

Several weeks later, Baker showed Marvin Donnell McKinney a Hi–Point .380 caliber pistol, which he offered to sell. After noting his interest, McKinney contacted Detective William N. Shockley of the City of Suffolk Police Department to inform him of the offer. Detective Shockley and McKinney organized a “controlled purchase” of the firearm to occur the following day. Detective Shockley observed McKinney meet with Baker and receive a Hi–Point .380 caliber pistol in exchange for $225. The firearm was later confirmed to be Chapman's missing firearm.

Baker was arrested and tried in the Circuit Court of the City of Suffolk. He was convicted of three counts of possession of a firearm by a convicted felon in violation of Code § 18.2–308.2(A).^* Baker sought review in the Court of Appeals, where he argued that the trial court erred in convicting him of three counts of possession of a firearm by a convicted felon because he should have been convicted of only one continuous possession.

The Court of Appeals disagreed with Baker, holding that “ ‘the number of occasions' appropriately delineates the unit of prosecution constituting one offense of ‘possession’ under Code § 18.2–308.2.” Baker v. Commonwealth, 59 Va.App. 146, 153, 717 S.E.2d 442, 445 (2011) (quoting Brown v. Commonwealth, Record No. 1438–00–1, 2001 WL 647528 (June 12, 2001)). The Court of Appeals upheld all three possession convictions, holding that an “occasion” is defined as a “particular occurrence” or a “particular time,” and that each of the convictions was based on “distinguishable incidents.” Id. at 152–54, 717 S.E.2d at 445–46.

II. Analysis

Baker contends that the Court of Appeals erred in affirming his three convictions for possession of a firearm by a convicted felon under Code § 18.2–308.2(A) because the conduct charged should have constituted one continuous possession. He claims that the use of the concept of separate “occasions” as the relevant unit of prosecution fails to describe what length or duration of possession is sufficient to constitute a separate offense. Baker argues that under this ambiguous standard, a felon who comes into possession of a firearm, takes it home, and places it in a safe for a year could be convicted of 365 separate violations of Code § 18.2–308.2(A).

According to the Commonwealth, each separate and distinct occasion would constitute a separate possession under Code § 18.2–308.2(A), thereby justifying three separate convictions of Baker under the statute. In response to Baker's contention that such a finding could lead to 365 convictions for a year of continuous possession of a firearm in a locked safe, the Commonwealth points out that such a situation could not occur because separate and distinct occasions of possession must be proven by the Commonwealth for each individual conviction. The Commonwealth contends that if a firearm remained untouched in a safe for 365 days, nothing separate or distinct would occur to establish a new occasion under the statute. Nor would there be evidence to prove possession on each of the 365 days of that year. We agree with the Commonwealth that the three convictions should be affirmed as each is a separate and distinct act or occurrence of possession, however, we reject as unclear the term “unit of prosecution” previously employed by the Court of Appeals.

In this issue of statutory construction, we conduct a de novo review. Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011). Code § 18.2–308.2(A) provides, in pertinent part, “[i]t shall be unlawful for ... any person who has been convicted of a felony ... to knowingly and intentionally possess or transport any firearm ... or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2–308.” In interpreting this statute, “courts apply the plain meaning ... unless the terms are ambiguous or applying the plain language would lead to an absurd result.” Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006). A statute is considered ambiguous “if the text can be understood in more than one way or refers to two or more things simultaneously or when the language is difficult to comprehend, is of doubtful import, or lacks clearness or definiteness.” Id. at 227 n. 8, 623 S.E.2d at 926 n. 8 (citations, internal quotation marks, and alteration omitted). This statute, Code § 18.2–308.2(A), lacks definition and is therefore ambiguous as to whether possession of a single firearm on different dates or at different times constitutes one continuous offense or multiple offenses.

Since we find the statute ambiguous as to when one offense ends and the next begins, we join the Court of Appeals of Virginiaand the appellate courts of many other jurisdictions in using the gravamen of the offense to determine the legislature's intent. See, e.g., Acey v. Commonwealth, 29 Va.App. 240, 249–50, 511 S.E.2d 429, 433–34 (1999) (finding simultaneous possession of multiple firearms does not justify multiple convictions for possession because the possession of a firearm by a felon is, of itself, the dangerousness that is the gravamen of the offense of possession); United States v. Evans, 854 F.2d 56, 60 (5th Cir.1988) (determining that the making of a false statement, not the acquisition of the firearm, was the gravamen of the offense of the crime of furnishing false identification made in connection with the purchase of firearms and ammunition); Bautista v. State, 863 So.2d 1180, 1186–87 (Fla.2003) (finding the gravamen of the offense of DUI manslaughter to be the killing of a human being rather than a traffic violation).

In creating this statutory offense, the General Assembly recognized that each act of possessing the firearm places the public in a heightened level of danger that does not coincide with the defendant's initial receipt of the firearm. This is evidenced by the language of Code § 18.2–308.2(A), which, along with possession of a firearm, includes specific prohibitions against the distinct acts of transporting a firearm and “carry [ing] about [the felon's] person, hidden from common observation, any weapon” named in the statute. We have held that “every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.” Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998). We therefore find that the inclusion of these specific references expresses the General Assembly's intent that separate instances of possession, and therefore of heightened danger to the community, be punished separately. If the statute was meant to restrict the offense only to the receipt, initial possession, or even extended possession of the weapon, such a specific reference to the transporting or carrying of that weapon would be a frivolous and unnecessary addition to the statutory language. The implicit danger in each separate instance of possession was also noted by the Court in Armstrong v. Commonwealth, 263 Va. 573, 582–83, 562 S.E.2d 139, 144 (2002), where we found a felon “unfit to possess firearms,” making each possession of a firearm by a felon, whether for a lawful or unlawful purpose, the conduct the General Assembly intended to curtail.

The General Assembly's goal in punishing a convicted felon for possessing or transporting a firearm is therefore not limited to preventing a felon's receipt or initial possession of a firearm, but extends to the prevention of the heightened danger each new instance of possession creates. In light of the legislative intent behind this provision, each separate incident of possession of a firearm by a convicted felon proven by the Commonwealth establishes a new offense because each incident is sufficient to create a new danger to members of the community exposed to the armed felon.

This is a position similar to those taken by other jurisdictions with regards to the distinction between separate offenses of possession, and it is consistent with the harm that the General Assembly intended to address with this statute. See United States v. Jones, 841 F.2d 1022, 1024 (10th Cir.1988) (finding no division between unlawful receipt and unlawful possession of a firearm because no new date or specific act or transaction was proven by the government); Melton v. State, 379 Md. 471, 842 A.2d 743, 757 (2004) (holding that only a single conviction was justified when the defendant committed only one act of possession but was a...