Williams v. Commonwealth

• Decision Date: 23 October 2012
• Docket Number: Record No. 1031–11–2.
• Citation: Williams v. Commonwealth, 61 Va.App. 1, 733 S.E.2d 124 (Va. App. 2012)
• Court: Virginia Court of Appeals
• Parties: Orlando Rondell WILLIAMS v. COMMONWEALTH of Virginia.

61 Va.App. 1

733 S.E.2d 124

Orlando Rondell WILLIAMS

v.COMMONWEALTH of Virginia.

Record No. 1031–11–2.

Court of Appeals of Virginia, Richmond.

Oct. 23, 2012.

Catherine French, Senior Appellate Coordinator (Virginia Indigent Defense Commission, on brief), for appellant.

Steven A. Witmer, Senior Assistant Attorney General(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS, and HUFF, JJ.

FRANK, Judge.

Orlando Rondell Williams, appellant, was convicted in a bench trial of possession of ammunition for a firearm by a felon, in violation of Code§ 18.2–308.2.¹On appeal, he challenges the sufficiency of the evidence.Specifically, appellant contends that the Commonwealth's evidence failed, as a matter of law, to prove beyond a reasonable doubt that the cartridges found on his person contained a propellant.For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

On February 13, 2011, Richmond Police Officer Robert Kleinholz arrested appellant.While conducting a lawful search pursuant to that arrest, the officer discovered two bullets and two empty shell casings in appellant's coat.

At trial, Kleinholz qualified as an expert in the subject of firearms and ammunition.He identified the two bullets as a .357 Magnum in poor condition and a .32 Smith & Wesson in better condition.He described both bulletsas “[t]wo complete bullets or pieces of ammunition,” intended to be fired from guns.

On cross-examination, Officer Kleinholz stated he could not say with one hundred percent accuracy that the bullets contained gunpowder, but he said he would expect that they did have gunpowder inside them.Kleinholz did not scientifically test the bullets nor attempt to shoot them from a weapon.

On cross-examination, Kleinholz described a cartridge as follows:

A.You have a primer of different sizes, depending on the type of casing.And so then you would have the brass casing normally, but they do make them in nickel.And then you have the bullet stuck on the end and usually you have a propellant of gunpowder.And that's what my training, and everything I've ever read, would suggest to me, although I've never personally assembled ammunition.

Q.That's what's inside of a cartridge?

A.Yes.

Q.And two of those are complete cartridges?

A.Yes.

The trial court, in denying appellant's motion to strike, found that, based on Kleinholz's expert testimony, it “would have to speculate to believe this bullet or the two bullets had no propellant inside.”

At the hearing on appellant's motion to reconsider, the trial court pointed to the language in Code§ 18.2–308.2(D) that used the word “or,” rather than “and,” in defining “ammunition for a firearm.”The trial court concluded “there is still no law that states a propellant is necessary when the statute specifically says ‘or propellant,’‘primer or propellant.’ ”

This appeal follows.

ANALYSIS

Appellant contends Code§ 18.2–308.2(D) requires proof that the cartridge contains a propellant and that there is no proof of that element in this case.Appellant's sufficiency argument requires statutory interpretation.

Code§ 18.2–308.2(A) prohibits any person convicted of a felony to knowingly and intentionally possess any firearm or ammunition for a firearm.

Code§ 18.2–308.2(D) provides: “Ammunition for a firearm means the combination of a cartridge, projectile, primer, or propellant designed for use in a firearm other than an antique as defined in § 18.2–308.2:2.”

Appellant only challenges the proof of whether the bullets contained a propellant.He does not argue that the evidence was not sufficient to prove a cartridge, projectile, or primer.Appellant contends that although the statutory language is disjunctive, i.e. “cartridge, projectile, primer or propellant,”we must read the statute to be conjunctive, i.e. “and a projectile.”

An issue of statutory interpretation is a pure question of law.Northern Virginia Real Estate v. Martins,283 Va. 86, 102–03, 720 S.E.2d 121, 129(2012).

While we acknowledge that “penal statutes are to be strictly construed against the Commonwealth, courts are nevertheless bound by the plain meaning of unambiguous statutorylanguage and ‘may not assign a construction that amounts to holding that the General Assembly did not mean what it actually has stated.’ ”Gunn v. Commonwealth,272 Va. 580, 587, 637 S.E.2d 324, 327(2006)(citation omitted)(quotingWilliams v. Commonwealth,265 Va. 268, 271, 576 S.E.2d 468, 470(2003)).

Where bound by the plain meaning of the language used, we are not permitted “to add or to subtract the words used in the statute.”Posey v. Commonwealth,123 Va. 551, 553, 96 S.E. 771, 771(1918).This canon flows from the principle that “[w]e must ... assume ... the legislature chose, with care, the words it used when it enacted the relevant statute.”Barr v. Town & Country Properties, Inc.,240 Va. 292, 295, 396 S.E.2d 672, 674(1990).Because we assume the legislature carefully chose the words used, it is our duty “to give reasonable effect to every word.”Jones v. Conwell,227 Va. 176, 180–81, 314 S.E.2d 61, 64(1984);Moyer v. Commonwealth,33 Va.App. 8, 35, 531 S.E.2d 580, 593(2000)(en banc).In giving reasonable effect to every word, we presume the legislature used the word in its ordinary sense in the absence of a specific, statutory definition.

Coles v. Commonwealth,44 Va.App. 549, 557–58, 605 S.E.2d 784, 788(2004)(other citation omitted).

Moreover, “[o]nly when a ‘penal statute is unclear’ do courts apply the rule of lenity and strictly construe the statute in the criminal defendant's favor.”De'Armond v. Commonwealth,51 Va.App. 26, 34, 654 S.E.2d 317, 321(2007)(quotingWaldrop v. Commonwealth,255 Va. 210, 214, 495 S.E.2d 822, 825(1998)).“[T]he rule of lenity serves only to resolve genuine, plausible ambiguities and ‘does not abrogate the well recognized canon that a statute ... should be read and applied so as to accord with the purpose intended and attain the objects desired if that may be accomplished without doing harm to its language.’ ”Id. at 35, 624 S.E.2d at 321(quotingCartwright v. Commonwealth,223 Va. 368, 372, 288 S.E.2d 491, 493(1982)).

Chapman v. Commonwealth,56 Va.App. 725, 732–33, 697 S.E.2d 20, 24(2010);see alsoDe'Armond,51 Va.App. at 35, 654 S.E.2d at 321(“And the ‘mere possibility of articulating a narrower construction’ does not by itself make the rule of lenity applicable.Nor can the rule be ‘invoked by a grammatical possibility’ that raises a manifestly ‘implausible reading’ of the legislative purpose....Despite the rule of lenity, ‘courts are nevertheless bound by the plain meaning of unambiguous statutory language and ‘may not assign a construction that amounts to holding that the General Assembly did not mean what it actually has stated.’ ”(citation omitted)).

In enacting Code§ 18.2–308.2(D), the General Assembly chose to use the disjunctive “or,” not the conjunctive “and.”“ ‘[T]he use of the disjunctive word “or,” rather than the conjunctive “and,” signifies the availability of alternative choices.’ ”Rose v. Commonwealth,53 Va.App. 505, 514, 673 S.E.2d 489, 493(2009)(quotingLewis v. Commonwealth,267 Va. 302, 314–15, 593 S.E.2d 220, 227(2004)).

Here, the disjunctive term “or” separates the terms “primer” and “propellant,” meaning that primer and propellant are alternate requirements of Code§ 18.2–308.2(D)'s definition of “ammunition for a firearm,” such that the Commonwealth need only prove a combination of any of those elements set forth in the statute.

Essentially, appellant asks this Court to substitute the word “and” for “or,” claiming the definition of ammunition is ambiguous.

Code§ 18.2–308.2 is penal in nature and therefore must be construed strictly against the Commonwealth.Any ambiguity or reasonable doubt as to its meaning must be resolved in appellant's favor.SeeAnsell v. Commonwealth,219 Va. 759, 761, 250 S.E.2d 760, 761(1979).However, this rule of statutory interpretation does not allow an appellate court to reword the plain meaning of the statute.“ ‘[C]ourts are not permitted to rewrite statutes.This is a legislative function.The manifest intention of the legislature, clearly disclosed by its language, must be applied.There can be no departure from the words used where the intention is clear.’ ”Supinger v. Stakes,255 Va. 198, 206, 495 S.E.2d 813, 817(1998)(quotingAnderson v. Commonwealth,182 Va. 560, 566, 29 S.E.2d 838, 841(1944)).

Nevertheless, appellant contends the literal acceptance of the word “or” in Code§ 18.2–308.2(D) is ambiguous when considered with the body of law that establishes the requirements to prove what constitutes a firearm.

Appellant argues that Code§ 18.2–308.2 is ambiguous because it is unclear from a reading of the entire statute whether ammunition must contain a propellant.In support of his argument, appellant cites USAA Casualty Ins. Co. v. Alexander,248 Va. 185, 194, 445 S.E.2d 145, 150(1994), in which the Supreme Court of Virginia held that because the provisions of Code§ 38.2–2206(A) and (B), when read together, were ambiguous, they would interpret them under settled rules of statutory construction.

“[T]he province of [statutory] construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation.”Winston v. City of Richmond,196 Va. 403, 407, 83 S.E.2d 728, 731(1954).“Language is ambiguous when it may be understood in more than one way, or simultaneously refers to two or more things.If the language is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness, an ambiguity exists.”Lee–Warren v. School Bd. of Cumberland County,241 Va. 442, 445, 403 S.E.2d 691, 692(1991).

Appellant also cites Armstrong v. Commonwealth,263 Va. 573, 562 S.E.2d 139(2002), to support his ambiguity argument.There, the Supreme Court of Virginia defined a firearm under Code§ 18.2–308.2 as an ...