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HUNDLEY v. COMMONWEALTH




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HUNDLEY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Felton and Kelsey

Argued at Salem, Virginia

Record No. 1184-02-03

AMOS JEFFREY HUNDLEY

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]BY
JUDGE WALTER S. FELTON, JR.

OCTOBER 21, 2003

FROM THE CIRCUIT COURT OF HENRY COUNTY

David V. Williams, Judge

Joseph H. M. Schenk, Jr., Assistant Public Defender (Office of
the

Public Defender, on brief), for appellant.

(Jerry W. Kilgore, Attorney General; Robert H. Anderson, III,
Senior

Assistant Attorney General, on brief), for appellee. Appellee

submitting on brief.

Amos Jeffrey Hundley was convicted in a bench trial of
possession of a firearm after having

been previously convicted of a felony in violation of Code ?
18.2-308.2. On appeal, he contends the

trial court erred in finding that Code ? 18.2-308.2(A)
prohibited him from possessing a firearm in

his own home. Finding no error, we affirm.

BACKGROUND

The essential facts are undisputed. Prior to the events that led
to this prosecution,

Hundley had been previously convicted for possession of a
controlled substance with intent to

distribute and later for possession of a firearm by a convicted
felon.

On September 16, 2001, Henry County deputy sheriffs responded to
a 911 call from

Hundley’s home. Hundley’s wife told the deputies that her
husband had a gun. When the

deputies entered the home, Hundley announced that he had a gun
and threatened to use it on

himself or on anyone who "rushed" him. While no weapon
was observed on his person, Hundley

told the deputies that a weapon was nearby and that he could get
his hands on it to shoot them.

When one of the deputies distracted Hundley, two others charged
up the stairs and overpowered

him. A deputy knocked a rifle away from beside Hundley’s hand
just as he reached behind the

door for the gun. The deputies recovered a .22 semi-automatic
rifle from behind the door.

Hundley was indicted and tried for violation of Code ?
18.2-308.2. He waived his right

to a jury trial and was tried by the court. Following the
Commonwealth’s presentation of its case,

Hundley moved to strike the evidence arguing that Code ?
18.2-308.2, as amended in 2001, was

ambiguous and void. The trial court denied his motion and ruled
that the statute as written at the

time of the offense allowed a convicted felon to possess only
stun weapons and tasers within his

residence. Hundley was convicted and sentenced to five years.

ANALYSIS

On appeal, Hundley contends the version of Code ? 18.2-308.2 in
effect on September 16,

2001 did not prohibit him from possessing a firearm in his own
home. The version of Code

? 18.2-308.2 in effect at the time of the offense provided, in
pertinent part, as follows:

It shall be unlawful for (i) any person who has been convicted
of a

felony . . . to knowingly and intentionally possess or transport
any

(a) firearm, or (b) stun weapon or taser as defined by ?
18.2-308.1

except in such person’s residence or the curtilage thereof . . .
.

Code ? 18.2-308.2(A) (as amended in 2001).[2]Hundley
argues that the exception set forth in the

2001 amendment to the statute permitted the possession of the
rifle in his residence and does not

limit possession to just stun weapons and tasers. We disagree.

We addressed the same issue in Alger v. Commonwealth, 40 Va.
App. 89, 578 S.E.2d 51

(2003) appeal pending, Record No. 030848 (Va.). In Alger, the
defendant asserted that it was

not illegal to possess a shotgun in her own home pursuant to the
same version of Code

? 18.2-308.2(A) in effect at the time of Hundley’s offense.
Alger argued "that the exception for

possession inside the home or the curtilage in the 2001
amendment applied to all firearms not

just those enumerated in clause (b), stun weapons and
tasers." Id. at 92, 578 S.E.2d at 52-53.

Rejecting this statutory construction, this Court found that
such an interpretation "would yield an

absurd result." Id. at 93, 578 S.E.2d at 53. We held
"that the 2001 amendments did not permit

convicted felons to possess firearms . . . in their residence or
the curtilage thereof." Id. at 94-95,

578 S.E.2d at 54.

The same reasoning and conclusions equally apply here. There is
no dispute that Hundley

had two prior felony convictions. Nor is it disputed that he had
possession of a firearm in his home.

Based on the reasoning set forth in more detail in Alger, we
hold the trial court did not err in finding

Code ? 18.2-308.2 prohibited Hundley from possessing the
firearm in his own home.

Accordingly, we affirm Hundley’s conviction.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]The General
Assembly amended Code ? 18.2-308.2 effective April 1, 2002. Pursuant to

that amendment the statute now provides that:

[i]t shall be unlawful for (i) any person who has been convicted
of

a felony . . . to knowingly and intentionally possess or
transport

any firearm or knowingly and intentionally carry about his
person,

hidden from common observation, any weapon described in

subsection A of ? 18.2-308. However, such person may possess in

his residence or the curtilage thereof a stun weapon or taser as

defined in ? 18.2-308.1.

Code ? 18.2-308.2 (as amended in 2002).


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