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One Pistol, Three Possession Convictions

A defendant who stole a pistol, showed it to the person who picked him up after the burglary, displayed it and offered it for sale to another person several weeks later and then offered to sell it in a controlled buy arranged by a detective, can be convicted of three counts of possession of a firearm by a convicted felon under Va. Code § 18.2-308(A), the Supreme Court of Virginia says.

According to the commonwealth, each separate and distinct occasion would constitute a separate possession under Va. Code § 18.2-308.2(A), thereby justifying three separate convictions under the statute. We agree with the commonwealth that the three convictions should be affirmed as each is a separate and distinct act or occurrence or possession, however, we reject as unclear the term “unit of prosecution” previously employed by the Court of Appeals.

Code § 18.2-308.3(A) lacks definition and is therefore ambiguous as to whether possession of a single firearm on different dates or at different times constitutes one continuous offense or multiple offenses.

Since we find the statute ambiguous as to when one offense ends and the next begins, we join the Court of Appeals of Virginia and the appellate courts of many other jurisdictions in using the gravamen of the offense to determine the legislature’s intent.

In creating this statutory offense, the General Assembly recognized that each act of possessing the firearm places the public in a heightened level of danger that does not coincide with the defendant’s initial receipt of the firearm. This is evidenced by the language of Code § 18.2-308.2(A), which, along with possession of a firearm, includes specific prohibitions against the distinct acts of transporting a firearm and carrying about the felon’s person, hidden from common observation, any weapon named in the statute. We find the inclusion of these specific references expresses the General Assembly’s intent that separate instances of possession, and therefore of heightened danger to the community, be punished separately.

The General Assembly’s goal in punishing a convicted felon for possessing or transporting a firearm is therefore not limited to preventing a felon’s receipt or initial possession of a firearm, but extends to the prevention of the heightened danger each new instance of possession creates. In light of the legislative intent behind this provision, each separate incident of possession of a firearm by a convicted felon proven by the commonwealth establishes a new offense because each incident is sufficient to create a new danger to members of the community exposed to the armed felon.

We hold that a new offense of possession can be established with each separate act or occurrence that can be proven by the government. Under this analysis, each of the three convictions under Code § 18.2-308.2(A) derive from distinct offenses. The first conviction was based on the possession of the firearm the day it was stolen, supported by evidence of the burglary and a witness’s testimony that the firearm was displayed to him by defendant on the same day. The second conviction was based on the possession of the same firearm several weeks later, supported by evidence of defendant’s attempt to sell the firearm to another party. The final conviction was for the possession, display and sale of the firearm by defendant the following day, which was observed by a detective and testified to by the recipient of the firearm. These incidents constitute distinct acts or occurrences, each reflecting an enhanced danger to the public, and convictions for the three separate charges are valid.

Judgment upholding the convictions is affirmed.

Dissent

Powell, J.: In my opinion, the majority fails to apply a crucial rule of statutory construction applicable to unit of prosecution cases such as this one. The majority ignores the necessary application of the rule of lenity requiring that we construe an ambiguous statute in a criminal defendant’s favor. I must respectfully dissent. I would reverse the decision of the Court of Appeals, affirm the trial court as to one count of possession of a firearm by a convicted felony and dismiss the remaining two counts.

Baker v. Commonwealth (Millette) No. 120252, Nov. 1, 2012; Va.Ct.App.; James L. Grandfield, PD, for appellant; John W. Blanton, AAG; Kenneth T. Cucinnelli II, AG, for appellee. VLW 012-6-151, 16 pp.

 

VLW 012-6-151

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