Turner v. Com.

Decision Date27 August 2002
Docket NumberRecord No. 0938-01-1.
Citation38 Va. App. 851,568 S.E.2d 468
PartiesBarry TURNER v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Michael J. Lutke (Office of the Public Defender, on brief), for appellant.

Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BRAY, BUMGARDNER and CLEMENTS, JJ.

BRAY, Judge.

Barry Turner (defendant) was convicted by a jury for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. In proof of the predicate prior felony, the Commonwealth relied upon the earlier conviction of defendant by general court-martial for "Housebreaking," in violation of Article 130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 930 (1998),1 while he served in the armed forces. For purposes of sentencing, the trial court classified the previous offense a "violent felony" pursuant to Code § 18.2-308.2(A) and companion Code § 17.1-805(C), thereby triggering the attendant "minimum, mandatory term of imprisonment of five years." On appeal, defendant contends the predicate offense was not a felony within the intendment of the statute but, if so, not a violent crime. Finding the prior offense constituted a felony, we affirm the conviction. However, because the crime was not a "violent felony" contemplated by statute, we reverse the sentence and remand for resentencing.

I.

For purposes of appeal, defendant does not dispute he was found in possession of a firearm on July 3, 2000, by Southampton County Deputy Sheriff Joseph M. Blythe. An initial investigation by Blythe "to see if [the weapon] was stolen" "came back negative," and it was returned to defendant. Blythe also "check[ed] [defendant's] record," but the evidence does not disclose the results. However, "after the case was sent to the Commonwealth," defendant was charged with the instant offense, and Blythe recovered the firearm from his residence.

Following indictment, the Commonwealth filed a pretrial motion seeking "a .. determination concerning whether a military court-martial for housebreaking constitutes a `violent felony' as contemplated by Code §§ 18.2-308.2 and 17.1-805." Testifying for the Commonwealth at the related hearing, Thomas J. Lambert, "legal and hearing services officer for the Virginia Department of State Police," explained, without objection, that military "offenses," "rules of evidence" and "the like" are "set out" in the "Rules of Courts-Martial," "the regulatory authority based upon Title 10 of the United States Code," the UCMJ. Lambert noted that military justice does not identify offenses as felonies or misdemeanors, but jurisdictional distinctions between a "general" and "special" court-martial differentiate crimes by tribunal. A general court-martial, "the ... military equivalent of a jury," "may award any punishment ... up to and including the death penalty" and "dishonorable discharge," while penalties before a "special court-martial" are limited to "[s]ix months confinement," loss of pay, and "bad conduct discharge."

Upon review of the "paperwork" incident to the "general court-martial" of defendant, Lambert testified defendant was convicted of "unlawful entry ... housebreaking," a crime with a "[m]aximum punishment" under the UCMJ of "five years confinement." Accordingly, the Commonwealth contended the offense was a "serious crime punishable by imprisonment for more than one year ... or by death," the "standard definition" of a felony consistent with Code §§ 18.2-8, -9 and 10. In response, defendant argued "Housebreaking" under the UCMJ was not a felony contemplated by Code § 18.2-308.2(A) and clearly not a "violent felony." The court initially ruled the UCMJ offense constituted a felony under Virginia law, although "not a violent felony" implicating the attendant mandatory punishment. However, upon motion to reconsider by the Commonwealth on the morning of trial, the court found "Housebreaking" was "a substantially similar offense to statutory burglary, ... a violent offense by definition under [Code § ] 17.1-805, and therefore, a violent felony as defined by ... [Code § ] 18.2-308," "set[ ] aside" the earlier ruling and proceeded with trial.

In proof of the requisite prior conviction, the Commonwealth relied upon the UCMJ conviction in issue, introducing into evidence, without objection, copies of a "Charge Sheet," a "SJA [Staff Judge Advocate] Post-Trial Recommendation," and a "General Court-Martial Order," a document described by Lambert as "the equivalent of a conviction order." The order recites defendant was found "Guilty" of "Housebreaking" in violation of Article 130, UCMJ, 10 U.S.C. § 930 by a "general court-martial" of the United States Army, resulting in punishment that included "reduc[tion] to the grade of El, confinement for two months and a bad-conduct discharge."

Defendant testified he joined the Army in August of 1997, "got caught housebreaking in 1998," was "court-martialed" and received a "bad conduct discharge." He did not "remember" mention of "a felony" during the proceedings. Defendant admitted purchasing the offending firearm from Norman E. Fanny, a licensed dealer, completing the "forms" necessary to the transaction and returning the following day to "[plick[ ] it up," the sale having been approved without incident. Fanny corroborated defendant's testimony with respect to his purchase of the offending weapon and recalled a like transaction with defendant several months earlier.

At the conclusion of the evidence, defendant renewed an earlier motion to strike, challenging the sufficiency of the evidence to establish either the existence of a requisite prior felony conviction or an offense implicating the related mandatory punishment. The trial court, however, overruled the motion and submitted the case to the jury upon instructions that included the "fixed punishment of five years in the penitentiary," mandated by prior conviction for a "violent felony." The jury subsequently found defendant guilty of the instant crime and, consistent with the instruction, recommended the required punishment. After considering a presentence report, the court imposed the prescribed sentence, resulting in this appeal.

II.

Code § 18.2-308.2(A) provides, in pertinent part:

It shall be unlawful for (i) any person who has been convicted of a felony ... to knowingly and intentionally possess or transport any firearm ....

Defendant first contends the court erroneously determined "Housebreaking," as proscribed by the UCMJ, a "felony" under Code § 18.2-308.2(A), arguing, "any conviction other than a crime labeled as a felony would go beyond the plain language of the statute." We disagree.

A "felony" is generally defined as "[a] serious crime usually punishable by imprisonment for more than one year or by death." Black's Law Dictionary 633 (7th ed.1999); see also Webster's Ninth New Collegiate Dictionary 456 (1983) (defining "felony" as "a crime for which the punishment in federal law may be death or imprisonment for more than one year"); 1 Charles E. Torcia, Wharton's Criminal Law § 19 (15th ed. 1993) ("An offense . . . is a felony if it is punishable by imprisonment for more than one year...."). Accordingly, "the grade of the offense is fixed by the punishment." Bell v. Commonwealth, 167 Va. 526, 531, 189 S.E. 441, 443 (1937). Thus, in Virginia, "[o]ffenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in a state correctional facility are felonies; all other offenses are misdemeanors." Code § 18.2-8.Code § 18.2-9 categorizes felonies from "Class 1" to "Class 6," with related sentencing ranges from "imprisonment for not less than one year" to "death, or imprisonment for life." Code § 18.2-10.2 Here, a conviction for "Housebreaking" under Article 130, UCMJ, 10 U.S.C. § 930 (1998), carries a "[m]aximum punishment" of" confinement for five years," together with "[d]ishonorable discharge, [and] forfeiture of all pay and allowances," a penalty clearly consistent with a felony in Virginia. The trial court, therefore, correctly classified the UCMJ offense a "felony" for purposes of Code § 18.2-308.2(A).3

III.

Defendant next contends the evidence was insufficient to support his conviction. Because his purchase of the offending weapon from Fanny had been approved following the requisite "legal procedures," and Deputy Blythe did not arrest him "on the night in question," and "the term `felony' was never discussed throughout the Army Court Martial," defendant maintains "there was reasonable doubt as to whether or not [he] was a convicted felon." We find his argument without merit.

The record does not disclose the results of any "criminal record check" that attended either the handgun purchases or Blythe's investigation. Thus, assuming, without deciding, that any related conclusions would be relevant to the issue of reasonable doubt under the circumstances, the record is silent on the data provided to authorities in each instance, thereby preventing proper appellate consideration of the question. With re the import of the UCMJ conviction, his "ig spect to a misunderstanding by defendant of norance of the law is no excuse." Miller v. Commonwealth, 25 Va.App. 727, 731-32, 492 S.E.2d 482, 485 (1997).

IV.

Lastly, insisting the crime of "Housebreaking" is not a "violent felony" embraced by Code §§ 18.2-308.2(A) and 17.1-805(C), defendant contends the trial court erroneously instructed the jury and imposed the sentence mandated by Code § 18.2-308.2(A).

In fixing punishment for a violation of Code § 18.2-308,2(A), the statute provides, in pertinent part:

Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall not be eligible for
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