Williams v. Com.

• Decision Date: 21 November 2000
• Docket Number: Record No. 2778-98-1.
• Citation: 537 S.E.2d 21,33 Va. App. 796
• Court: Virginia Court of Appeals
• Parties: Modrell Antoine WILLIAMS, s/k/a Modrelle Williams v. COMMONWEALTH of Virginia.

537 S.E.2d 21

33 Va. App. 796

Modrell Antoine WILLIAMS, s/k/a Modrelle Williams v. COMMONWEALTH of Virginia.

Record No. 2778-98-1.

Court of Appeals of Virginia, Chesapeake.

November 21, 2000.

Dianne G. Ringer, Senior Assistant Public Defender, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BRAY and FRANK, JJ., and HODGES, Senior Judge.

HODGES, Senior Judge.

Appellant, Modrell Antoine Williams, appeals his conviction for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2. For the reasons set forth below, we reverse.

FACTUAL BACKGROUND

On June 14, 1998, Officer R.K. Butler received information that someone matching appellant's description had "retrieve[d] a gun from some bushes." A short time later, Butler located appellant. Appellant quickly entered a laundromat. Butler entered and asked appellant, "`Where is it at?'" Appellant said, "`It's in the trash can'; and he pointed to a small trash can."

Butler's partner recovered a gun from the trash can. Appellant told Butler that "the gun did not belong to him" but that a man who had taken his money and who appellant had been chasing had thrown it in the bushes. Because the man allegedly took appellant's money, appellant told Butler "that he took the gun, thinking that he had something." Appellant told Butler that he "thought [he] had something, but [he] tried the trigger, and [he did not] even think it work[ed]."

Butler testified that the recovered gun, Commonwealth's Exhibit 1, was a ".38 caliber revolver," manufactured by "Ivan Johnson Arms." When asked to describe its condition, Butler explained:

It's rusty. The trigger mechanism does not seem to make the hammer of the gun actuate. There may be a defect in the gun. I don't know if there is a particular way that it has to be used to make the hammer actuate, but the trigger doesn't necessarily work properly; however, it was designed to propel a projectile.

In arguing his motion to strike, appellant contended the gun was incapable of creating an explosion, was "defective," and was inoperable. The prosecutor contended the gun was designed to propel a missile by means of an explosion and was, therefore, a firearm. The prosecutor also argued that

there is always potential [for the gun to fire]. We don't know what it would take to make that gun an operating gun, and it might just take a good cleaning. We don't know; however, what we do know is that the officer testified that it was designed to propel a projectile through an explosion.

We also have the defendant's statement, his admission to the police officer, that he thought he had something. . . .

The trial judge asked to look at the gun one more time, after which he stated, "I'm going to deny the motion."

DISCUSSION

Introduction

The issue before us is whether the evidence was sufficient to convict appellant for violating Code § 18.2-308.2. In resolving that issue, we must first determine whether the condition of a firearm possessed by a convicted felon may affect the nature or character of the weapon so as to exclude it as a proscribed object under the statute. In making that determination, we analyze Code § 18.2-308.2, our felon-in-possession statute, and statutory and case law from Virginia and other jurisdictions dealing with firearms.

The Law in Virginia

Code § 18.2-308.2 makes it "unlawful for. . . any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm." This code section contains no definition of "firearm."

In Jones v. Commonwealth, 16 Va.App. 354, 356, 429 S.E.2d 615, 616, aff'd on reh'g en banc, 17 Va.App. 233, 436 S.E.2d 192 (1993), the defendant was convicted of violating Code § 18.2-308.2 based on his possession of a BB handgun. We looked to the legislature's purpose in enacting the statute and explained:

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. . . . Accordingly, Code § 18.2-308.2 does not include a BE handgun, which is a device that propels a projectile by pneumatic pressure.

Id. at 357-58, 429 S.E.2d at 617 (emphases added).

In Gregory v. Commonwealth, 28 Va.App. 393, 504 S.E.2d 886 (1998), a detective arrested Gregory, a convicted felon, on an outstanding warrant, and "found in Gregory's pocket a magazine loaded with ten rounds of.22 caliber ammunition." Id. at 397, 504 S.E.2d at 888. From appellant's trailer, the detective obtained "a .22 caliber Remington Model 522 semi-automatic rifle." Id. The magazine fit into the rifle. See id.

Gregory contended on appeal that the evidence failed to prove the object recovered by the detective "was a firearm" under the statute. See id. at 399, 504 S.E.2d at 889. We stated, "in determining whether an item is a `firearm,' the Commonwealth must prove two discrete elements: (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 (emphasis added). Noting that "the best method for proving that an item is a firearm is presentation of direct forensic evidence of the nature and operability of the item," we held that "[c]ircumstantial evidence is as competent and is entitled to as much weight as direct evidence'" to prove that the item is a firearm. Id. (emphasis added).

We affirmed the conviction and found that the item possessed by Gregory "was designed or intended to expel a projectile by means of a gunpowder explosion." Id. In affirming, we reviewed the following circumstantial evidence:

Although the Commonwealth failed to explain how the rifle operated or to present ballistics evidence, Detective Mooney examined the weapon and testified that it was a .22 caliber, Remington Model 522 semi-automatic rifle. In his testimony, he referred to the weapon as a "firearm." The rifle and the loaded magazine were introduced as exhibits and were evidence from which the jury could infer that the rifle was designed or intended to expel projectiles by the power of explosion of gunpowder.

Id. Significantly, there was no evidence before the trial court that Gregory's rifle was incapable of expelling a projectile by an explosion.

In Redd v. Commonwealth, 29 Va.App. 256, 511 S.E.2d 436 (1999), the defendant, "a previously convicted felon, entered a convenience store and placed a `long, black gun' on the counter." Id. at 258, 511 S.E.2d at 437. No gun was seized from Redd or produced at trial. See id. at 260, 511 S.E.2d at 438 (Benton, J., dissenting, on the ground that the Commonwealth failed to prove that the object placed on counter "had the actual ability to expel a projectile by the power of an explosion"). We affirmed the conviction, holding:

The store clerk's description of the object brandished by Redd as "a long black gun" is insufficient, alone, to prove that the object possessed the "ability to expel a projectile by the power of an explosion." However, Redd's threat, upon presenting the weapon, to kill the clerk was an implied assertion that the object was a functioning weapon, being in fact the firearm that it appeared to be and possessing the power to kill. This implied assertion, which was corroborated by the appearance of the object and was uncontradicted by any other evidence, was evidence sufficient to support the trial court's finding that the object was a firearm.

Id. at 259, 511 S.E.2d at 438 (emphases added).

In Jones and Gregory, we attempted to define the term "firearm" under Code § 18.2-308.2 in a manner that was consistent with the legislature's purpose for enacting the statute. In Jones, we explained that the purpose of the statute was to keep convicted felons "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." Jones, 16 Va.App. at 357-58, 429 S.E.2d at 617. The definition put forth in Jones employs language from Code § 18.2-308.2:2(G),¹ which defines "Firearm" as "any handgun, shotgun, or rifle which expels a projectile by action of an explosion."²

Therefore, the Commonwealth is initially required to prove that a convicted felon possessed an actual firearm, namely, a weapon manufactured for the purpose of expelling a projectile by an explosion. In Jones, we required the firearm to have the "actual capacity to cause harm" and noted the statute's purpose to prevent felons from becoming "dangerously armed." Because Jones involved a BB gun, we did not need to address the firearm's "actual capacity to cause harm."

In a case decided before Gregory involving a different firearm statute, we upheld the conviction of a defendant who, while possessing drugs, possessed a firearm containing no clip or magazine. See Timmons v. Commonwealth, 15 Va.App. 196, 198, 421 S.E.2d 894, 895 (1992) (involving Code § 18.2-308.4, prohibiting possession of "a controlled substance classified in Schedule I or II of the Drug Control Act" while simultaneously possessing any firearm). Timmons argued that the.32 caliber pistol was not a firearm under the statute "because the absence of the clip rendered the pistol inoperable at the time it was seized." Id. The trial court erroneously instructed the jury that " la] firearm is any object which gives the appearance of having...