Williams v. Commonwealth

Decision Date29 May 2018
Docket NumberRecord No. 0808-17-2
CourtVirginia Court of Appeals


Present: Judges Humphreys, Alston and Decker

Argued at Richmond, Virginia



Clarence N. Jenkins, Jr., Judge

Daniel W. Hall (Law Office of Daniel W. Hall, on brief), for appellant.

Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Harry M. Williams, Jr. appeals his conviction and sentence pursuant to Code § 18.2-308.2 for possession or transportation of a firearm after previously being convicted of a violent felony. He argues that the federal order reflecting his prior conviction for possession of a firearm by a convicted felon should not have been admitted to prove a prior violent felony conviction because the federal offense was not substantially similar to a Virginia violent felony. After a review of the record and relevant law, we agree that the Commonwealth did not meet its burden of establishing that the federal conviction constituted a violent felony triggering the enhanced mandatory penalty in Code § 18.2-308.2. Consequently, we reverse and remand the case for resentencing.


The appellant was charged, in pertinent part, under Code § 18.2-308.2 for possession or transportation of a firearm after a previous conviction for a violent felony. During the trial, theCommonwealth moved to admit a federal district court order documenting the appellant's prior conviction for felony possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). The appellant objected, arguing that the order could not be admitted to prove that he had been previously convicted of a violent felony. The trial court admitted the federal order into evidence over the appellant's objection.

The court convicted the appellant of possession or transportation of a firearm by a violent felon, in violation of Code § 18.2-308.2.1 It imposed the mandatory five-year sentence based on the prior violent felony.


The appellant challenges his conviction and sentence for possession or transportation of a firearm by a person previously convicted of a violent felony. He argues that the trial court erred by admitting into evidence the federal conviction order for possession of a firearm by a convicted felon because the Commonwealth failed to establish that the offense under the federal code was substantially similar to a Virginia offense constituting a violent felony as required by Code § 18.2-308.2. The Commonwealth responds that the assignment of error is barred under Rule 5A:18 because the appellant did not make the specific arguments below that he now makes on appeal. The Commonwealth does not defend the enhanced sentence on the merits.

A. Rule 5A:18

The Commonwealth's sole argument is that the appellant did not preserve his assignment of error under Rule 5A:18 because at trial he did not specifically cite the federal statute that defines "firearm" for purposes of his federal conviction or provide an example of a device that would constitute an offense under the federal statute but not Code § 18.2-308.2.

Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." In determining whether a litigant has satisfied the requirements of the rule, Virginia's appellate courts have "consistently focused on whether the trial court had the opportunity to rule intelligently on the issue." Scialdone v. Commonwealth, 279 Va. 422, 437, 689 S.E.2d 716, 724 (2010) (applying Rule 5:25, the Supreme Court of Virginia counterpart to Rule 5A:18); see e.g., Smith v. Commonwealth, 66 Va. App. 382, 391 n.2, 785 S.E.2d 500, 504 n.2 (2016). "In addition, 'a specific, contemporaneous objection gives the opposing party the opportunity to meet the objection at that stage of the proceeding.'" Scialdone, 279 Va. at 437, 689 S.E.2d at 724 (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)).

This Court has made clear that in refuting a Rule 5A:18 challenge, a litigant may "rel[y] on statutes or cases not presented to the trial court to support, on appeal, a position otherwise adequately presented at trial." Asfaw v. Commonwealth, 56 Va. App. 158, 165 n.4, 692 S.E.2d 261, 265 n.4 (2010) (quoting Lash v. Cty. of Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) (en banc)); see also Hilliard v. Commonwealth, 43 Va. App. 659, 677, 601 S.E.2d 652, 661 (2004) (en banc) (plurality opinion) (citing this principle), aff'd, 270 Va. 42, 53, 613 S.E.2d 579, 586 (2005); id. at 681-82, 601 S.E.2d at 663 (Clements, J., joined by Bumgardner, Felton & Kelsey, JJ., concurring in part and dissenting in part) (concurring with the plurality's Rule 5A:18 ruling). Similarly, Rule 5A:18 does not prevent this Court "from relying on statutory or judicial authority that was not presented to the trial court." Lash, 14 Va. App. at 929, 421 S.E.2d at 853.

The appellant objected to the admission of the federal order on the basis that the federal statute encompasses devices that Code § 18.2-308.2 does not. He argued:

[T]he Commonwealth bears the burden of proving that this [is a] similar statute, not just simply relying on a phrase of art, firearm possession by a felon.
If there's a Virginia firearm possession by a felon, that's just the title, totally just the title, Judge[,] exclusively. It doesn't show that this is similar. This particular statute covers a wide range of devices that Virginia does not cover and [the appellant] being a felon and if he's convicted of possession of a firearm by a felon in Federal Court for a bow and arrow, let's say, for a device that mimics a firearm, we're not sure if that is similar to what we have here today, Judge.
So we would just ask the Court to not allow that prior [conviction] in at this time unless the Commonwealth meets its burden.

(Emphasis added). In response to the argument, the prosecutor urged the trial court to rely on the title of the federal statute. She also suggested that both the state and federal legislatures intended the statutes at issue to proscribe possession of "dangerous and violent" weapons by felons. The trial court took a brief recess to read Code § 18.2-308.2 and "the federal statute" before overruling the objection and admitting the federal order into evidence.

The Commonwealth had the opportunity to respond to the argument and indeed did so. The trial court likewise had the opportunity to rule intelligently on the issue. Based on this record, the appellant timely and adequately raised the issue of whether the two statutes were "substantially similar" and met the requirements of Rule 5A:18.

B. The Federal Conviction

The appellant argues that the trial court erred by admitting into evidence the federal conviction order for possession of a firearm by a convicted felon because the Commonwealth failed to establish that the federal offense was substantially similar to a Virginia "violent felony" as required by Code § 18.2-308.2.

Whether to admit evidence is a decision within the sound discretion of the trial court. See Dean v. Commonwealth, 61 Va. App. 209, 213, 734 S.E.2d 673, 675 (2012). An appellate courtwill reverse a determination to admit or exclude evidence only if the trial court abused its discretion under the particular circumstances of the case. See id. "This bell-shaped curve of reasonability governing our appellate review rests on the venerable belief that the judge closest to the contest is the judge best able to discern where the equities lie." Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493, 499 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459, 771 S.E.2d 664, 670 (2015)). "[B]y definition," however, a trial court "abuses its discretion when it makes an error of law." Dean, 61 Va. App. at 213, 734 S.E.2d at 675 (quoting Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008)). "Therefore, to the extent admissibility rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review." Id.

The assignment of error in this case challenges the trial court's statutory interpretation. "The proper course [in this case as in all cases of statutory construction] is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature." Mason v. Commonwealth, 64 Va. App. 599, 606, 770 S.E.2d 224, 227 (2015) (alteration in original) (quoting Johnson v. Commonwealth, 53 Va. App. 608, 611, 674 S.E.2d 541, 542 (2009)). "The intent of the legislature 'is usually self-evident from the statutory language.'" Id. (quoting Johnson, 53 Va. App. at 613, 674 S.E.2d at 543).

The appellant was convicted and sentenced under Code § 18.2-308.2 for possession or transportation of a firearm after being previously convicted of a violent felony. Code § 18.2-308.2, in pertinent part, prohibits any person with a previous felony conviction from knowingly and intentionally possessing or transporting a firearm. Code § 18.2-308.2(A). The statute provides that the offense is a Class 6 felony. Id.; see also Code § 18.2-10(f) (providing that the punishment for a Class 6 felony is imprisonment for a term ranging from one to five years or "confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both"). However, the statutemandates a term of five years for a "person who violates this section . . . and who was previously convicted of a violent felony as defined in § 17.1-805." Code § 18.2-308.2(A). This mandatory five-year term is "distinct punishment" rather than a gradation of...

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