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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Salem, Virginia
Record No. 1184-02-03
AMOS JEFFREY HUNDLEY
COMMONWEALTH OF VIRGINIA
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
Public Defender, on brief), for appellant.
(Jerry W. Kilgore, Attorney General; Robert H. Anderson, III,
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.
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
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.
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
felony . . . to knowingly and intentionally possess or transport
(a) firearm, or (b) stun weapon or taser as defined by ?
except in such person’s residence or the curtilage thereof . . .
Code ? 18.2-308.2(A) (as amended in 2001).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.
Code ? 17.1-413, this opinion is not designated for publication.
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
a felony . . . to knowingly and intentionally possess or
any firearm or knowingly and intentionally carry about his
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).