Farrakhan v. Commonwealth, Record No. 1804-04-4 (VA 11/29/2005)
| Decision Date | 29 November 2005 |
| Docket Number | Record No. 1804-04-4. |
| Court | Virginia Supreme Court |
| Parties | SHAKA AMIR FARRAKHAN v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of the City of Alexandria, Thomas A. Fortkort, Judge Designate.
Paul E. Pepper, Deputy Public Defender, for appellant.
Michael T. Judge, Assistant Attorney General (Judith Williams Jadgmann, Attorney General; Paul C. Galanides, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton and Bumgardner.
Shaka Farrakhan (appellant) appeals his conviction in a bench trial of possession of a concealed weapon while a convicted felon, in violation of Code § 18.2-308.2.1 Appellant contends that the evidence was insufficient to prove that the knife he carried was a proscribed weapon. Because we hold that the knife carried by appellant was a "weapon of like kind" as contemplated by Code § 18.2-308(A), we affirm.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999). "In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (citations omitted).
Viewed in this light, the evidence established that on January 8, 2004, appellant entered the Nine West Outlet store in Alexandria between 11:00 a.m. and 11:30 a.m. wearing a long and bulky coat. Appellant walked over to a stack of women's boots. Angela Souber (Souber), a store clerk, followed appellant and asked if she could help him. Appellant responded with a few questions and then stated that he did not need further assistance.
Souber walked to the front door and stood near the door entrance. Appellant came toward the front door, holding two shoe boxes in both hands. Appellant then pulled a knife out of his jacket. Souber asked appellant to return the boots, and appellant jabbed the knife at her and told her to get out of his way. Souber backed away, and appellant ran outside and entered a taxicab.2
Souber testified that the knife looked like a "kitchen knife." The knife is 12¾ inches long with a 7¾ inch blade honed to a cutting edge and has a sharp point.
Appellant was indicted on the charges of robbery and possession of a concealed weapon while a convicted felon. At the bench trial on April 29, 2004, counsel for appellant moved to strike the charge of possessing a concealed weapon while a convicted felon, arguing that the knife was not a "weapon of like kind." The trial judge denied the motion to strike, finding that The trial judge found appellant guilty of both charges.
Appellant argues that the knife used in the robbery was not a "weapon of like kind" envisioned by Code § 18.2-308(A) and therefore that the trial court erred in finding him guilty of possession of a concealed weapon by a convicted felon. We disagree and affirm the judgment of the trial court.
Code § 18.2-308.2 prohibits a convicted felon from carrying "about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308." Code § 18.2-308(A) describes a weapon as "(ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack; . . . or (v) any weapon of like kind as those enumerated."
The determination of whether a particular knife is a "weapon of like kind" is "a question of fact to be determined by the trier of fact." Delcid, 32 Va. App. at 17, 526 S.E.2d at 274. Factual findings are given great deference, and the trial court's judgment will not be overturned unless it is "plainly wrong or without evidence to support it." Wilson v. Commonwealth, 46 Va. App. 408, 432, 617 S.E.2d 431, 443 (2005) (citation omitted). Furthermore, while penal statutes are to be strictly construed in favor of the accused, "a defendant is not entitled to benefit from an `unreasonably restrictive interpretation of the statute.'" O'Banion v. Commonwealth, 33 Va. App. 47, 57, 531 S.E.2d 599, 604 (2000) (quoting Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 357 (1980)).
The determination of whether a particular instrument is a weapon contemplated by Code § 18.2-308(A) "requires consideration not only of the physical character of the instrument itself but also of the circumstances surrounding its possession and use." Delcid, 32 Va. App. at 18, 526 S.E.2d at 275.
The purpose for which [a knife] is created and employed is a critical distinction between an implement and a weapon. Thus, while the specific purpose for which the item is possessed is not itself an element of the crimes defined by Code §§ 18.2-308(A) and 18.2-308.2, that purpose is one of the defining characteristics of the item in question.
Id. at 19, 526 S.E.2d at 275 (emphasis added). In Delcid, a knife with a "fixed blade, sharp point, and single-sharpened edge" afforded "unquestionable utility as a stabbing weapon" and so the "circumstances, coupled with the physical characteristics of the knife" supported the trial court's characterization of the knife as a weapon. Id. at 18, 526 S.E.2d at 275; see also Richards v. Commonwealth, 18 Va. App. 242, 246, 443 S.E.2d 177, 179 (1994) ().
Conversely, the legislature intended "to exclude from concealed weapons statutes innocuous household and industrial knives which may be carried for legitimate purposes." Richards, 18 Va. App. at 246 n.2, 443 S.E.2d at 179 n.2. Therefore, knives used for innocent purposes, rather than knives being used to carry out a criminal design, are less likely to fall into the category of "weapons" regardless of whether they have an intimidating physical appearance. See, e.g., Wood v. Henry County Public Schools, 255 Va. 85, 88, 95, 495 S.E.2d 255, 257, 261 (1998) (); Ricks v. Commonwealth, 27 Va. App. 442, 499 S.E.2d 575 (1998) ().
Appellant argues that because the knife used in the robbery was a "kitchen knife" it is not a "weapon of like kind." We disagree. The evidence amply supports the trial court's finding that the knife was similar in appearance to the knife in Delcid. While nominally described as a "kitchen knife," the knife when viewed is more akin to a butcher's knife. It is 12¾ inches long with a sharp 7¾ inch blade that is finely honed and has a sharp point. It possesses, as discussed in Delcid, "unquestionable utility as a stabbing weapon." Delcid, 32 Va. App. at 18, 526 S.E.2d at 275. This was the threat posed by appellant.
In considering whether a knife is a "weapon of like kind" we look not only to the appearance of the instrument, but also to the purpose for which it was employed and the circumstances surrounding its use. The knife was used in a threatening manner in a robbery. Appellant concealed the knife in his jacket and used it to threaten the store clerk in order to escape the store with two pairs of boots. The clerk retreated "so that he wouldn't stab me in the stomach." In addition, appellant noted at his sentencing hearing that "I usually had a knife because I'm in high crime areas," implying that he could use the knife for protection.
The circumstances, when viewed as a whole, support the trial court's finding that the knife was a "weapon of like kind." Not only did the knife have the appearance of a weapon, evidenced by appellant's admission that he carried it for his own protection, but it also was used as the means necessary to effectuate a robbery. This holding comports with the purpose of Code § 18.2-308.2, which is "to interdict the practice of carrying a deadly weapon about the person, concealed, and yet so accessible as to afford prompt and immediate use." Richards, 18 Va. App. at 244, 443 S.E.2d at 178 (citation omitted). Therefore, we hold that the knife used in the instant case is a "weapon of like kind" for the purposes of Code § 18.2-308(A).
Accordingly, we affirm the judgment of the trial court.
Affirmed.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1. Appellant was also convicted of robbery in violation of Code § 18.2-58, but no issues with regard to that conviction are before this Court.
2. Appellant does not contest the trial court's findings that he was a felon at the time of the robbery, that he possessed the knife that was presented to the trial court or that he concealed the knife. The sole issue on appeal is whether the knife appellant used is a "weapon of like kind" prohibited by statute.
Benton, J., dissenting.
The majority concludes that the kitchen knife was a "weapon of like kind" due to the knife's appearance, its "utility as a stabbing weapon," Shaka Farrakhan's subjective perception of the knife, and how he used it. I disagree with this conclusion. I would reverse the conviction because a common kitchen knife is not within the scope of the items prohibited by Code § 18.2-308.
In pertinent part, Code § 18.2-308.2 prohibits "any person who has been convicted of a felony . . . to knowingly and intentionally carry...
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