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ARMSTRONG v. COMMONWEALTH


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ARMSTRONG

v.

COMMONWEALTH


JULY 31, 2001

Record No. 1388-99-3

Present: Chief Judge Fitzpatrick, Judges
Benton, Willis, Elder, Bray, Annunziata, Bumgardner, Frank,
Humphreys, Clements and Agee

Argued at Richmond, Virginia

ERIC WAYNE ARMSTRONG

v.

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF
HIGHLAND COUNTY

Duncan M. Byrd, Jr., Judge

Ronald W. Vaught for appellant.

Michael T. Judge, Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.


OPINION BY Judge G. STEVEN AGEE

Eric Wayne Armstrong, appellant, was convicted
in a bench trial of possession of a firearm by a convicted felon,
in violation of Code ? 18.2-308.2.
[1] He
contends the evidence was insufficient to prove that the object
he possessed was a firearm because it was not
"operable."

In an unpublished opinion, a divided panel of
this Court affirmed the conviction. Armstrong v. Commonwealth,
No. 1388-99-3 (Va. Ct. App. Nov. 21, 2000). However, we stayed
the mandate of that decision and granted a rehearing en banc.
Upon rehearing en banc, the stay of the mandate is
lifted, and the judgment of the trial court is affirmed for the
reasons set forth below.

I.

"Under familiar principles of appellate
review, we examine the evidence in the light most favorable to
the Commonwealth, the prevailing party below, granting to it all
reasonable inferences fairly deducible therefrom." Green
v. Commonwealth
, 32 Va. App. 438, 442, 528 S.E.2d 187, 189
(2000) (citing Juares v. Commonwealth, 26 Va. App. 154,
156, 493 S.E.2d 677, 678 (1997)).

So viewed, the evidence established that during
a search of the appellant’s residence on February 12, 1998,
Sheriff Herbert Lightner of Highland County observed what
appeared to be a semi-automatic .22 caliber rifle and a BB gun
inside a gun cabinet. The gun cabinet was not opened, and neither
gun was examined. Neither the rifle nor the BB gun was seized at
that time.

The appellant, who had a prior felony
conviction, was later charged with possession of a firearm by a
convicted felon.
[2] At the preliminary hearing, defense counsel delivered
the two weapons to the sheriff. No one test-fired the guns. At
trial, Sheriff Lightner testified that the .22 caliber rifle
appeared to be the same weapon he saw at the appellant’s house.

Melvin Eugene Armstrong, the appellant’s
cousin, testified at trial that the .22 caliber rifle belonged to
him. Melvin stated that he purchased the rifle at K-Mart in
October 1997 and produced a receipt from the store with a serial
number matching the number on the rifle. Melvin, who was in the
military at the time, explained that the rifle "wouldn’t
fire." He testified: "You could pull the trigger but
the gun won’t go off. . . . [T]he firing pin ain’t
[sic] hitting the casing so I assume it’s got something to do
with the spring in there or the firing pin one." He said
that while he was out hunting, "it just stopped
shooting."

The appellant did not dispute the existence of
his prior felony conviction or his possession of the rifle.
Instead, he argued that the rifle was not a "firearm"
within the meaning of Code ? 18.2-308.2 because it was not
presently operable: "If the gun is not operable, and it’s
unconditional evidence . . . , then it’s not a
firearm."

The trial court disagreed and found the
appellant guilty of possession of a firearm by a convicted felon.

II.

On appeal, the appellant concedes that the
rifle was "designed or intended to expel a projectile by
discharge or explosion of gun powder."
[3] However, he
contends the gun was "inoperable" based upon the
"credible, affirmative, and unrebutted" testimony of
Melvin Armstrong. Accordingly, the appellant concludes, the
evidence was insufficient to sustain his conviction.

The Commonwealth contends the trial court was
free to disbelieve Melvin Armstrong’s testimony that the rifle
"wouldn’t fire." The Commonwealth further argues that
Sheriff Lightner’s testimony that he saw the .22 caliber rifle
was sufficient to convict the appellant of this offense. We agree
with the trial court’s finding but for different reasons than
articulated by it.

Code ? 18.2-308.2, at the time of the
offense, provided that it was unlawful for a previously convicted
felon to "knowingly and intentionally possess or transport
any firearm." The statute does not contain a definition of
"firearm."

In Jones v. Commonwealth, 16 Va. App.
354, 429 S.E.2d 615, aff’d on reh’g en banc, 17 Va. App.
233, 436 S.E.2d 192 (1993), we held:

Code ? 18.2-308.2
prohibits a felon from possessing a device that
has the actual capacity to do serious harm
because of its ability to expel a projectile by
the power of an explosion, and it is not
concerned with the use or display of a device
that may have the appearance of a firearm.
Therefore, we hold that the term
"firearm" as used in Code
? 18.2-308.2 is used in its traditional
sense. The statute does not seek to protect the
public from fear of harm caused by the display of
weapons; rather, it is concerned with preventing
a person, who is known to have committed a
serious crime in the past, from becoming
dangerously armed, regardless of whether that
person uses, displays, or conceals the firearm.
"It shall be unlawful for any person who has
been convicted of a felony . . . to
. . . possess or transport any firearm
or to . . . carry about his person,
[even if] hid[den] from common observation, any
weapon described in ? 18.2-308 A."

Id. at 357-58, 429 S.E.2d at 617
(quoting Code ? 18.2-308.2(A)).

Subsequent panel decisions of this Court have
enlarged the holding in Jones, which held that a BB gun
was not within the "traditional definition of a
firearm" for purposes of Code ? 18.2-308.2. In Gregory
v. Commonwealth
, 28 Va. App. 393, 504 S.E.2d 886 (1998),
however, we diverted from the holding in Jones and
required the Commonwealth to prove the following elements in
order to convict a felon for possession of a firearm:

(1) that the weapon is designed
or intended to expel projectiles by the discharge
or explosion of gunpowder, and (2) that it is
capable of doing so.

Id. at 400, 504 S.E.2d at 889. We
reiterated these two elements of required proof in Williams v.
Commonwealth
, 33 Va. App. 796, 537 S.E.2d 21 (2000).

The Commonwealth must initially
prove that the accused possessed an object
manufactured for the purpose of expelling a
projectile by an explosion, namely, a firearm. It
then must prove that the firearm is operational
or can readily be made operational.

Id. at 807, 537 S.E.2d at 26 (citation
omitted). In furtherance of this second element, we explained:

[T]he statute prohibits felons
from possessing actual firearms that are
presently operational or can readily or easily be
made operational or capable of being fired with
minimal effort and expertise.

Id. at 806-07, 537 S.E.2d at 26. It is
this latter judicially created element of proof, that the felon’s
weapon is "presently operational," that is contrary to
the plain language of the statute and has caused unnecessary
confusion.

In the context of related statutes, the ready
capability element has been phrased as "operable" or
operable "on a moment’s notice." Where the firearm, a
sawed-off shotgun, lacked a firing pin in Rogers v.
Commonwealth
, 14 Va. App. 774, 418 S.E.2d 727 (1992), we held
that the gun was close enough to actual firing capacity to
justify a conviction for possession of the firearm in violation
of Code ? 18.2-300 (the Sawed-off Shotgun Act). Similarly
in Timmons v. Commonwealth, 15 Va. App. 196, 421 S.E.2d
894 (1992), we held that the absence of the gun’s ammunition clip
did not deprive the firearm of its status as operable and, thus,
we sustained the defendant’s conviction under Code
? 18.2-308.4 (possession of a firearm while in possession
of cocaine). Yet, in Williams, we held that the element of
operability was not proven where the convicted felon’s gun was
too rusty to fire at the time of his arrest. We reversed
Williams’ conviction for possessing the firearm. 33 Va. App. at
808, 537 S.E.2d at 27.

Contrasted with offenses committed in violation
of Code ? 18.2-53.1, the act of firearm possession under
Code ? 18.2-308.2 (or related statutes) involves no
perception element by a victim.
[4] The crime is
complete by the felon’s possession of the weapon. The statute is
interpreted in this fashion to further the legislative intent of
keeping firearms out of the hands of convicted felons. Jones
concisely sets out the General Assembly’s intent in adopting Code
? 18.2-308.2:

[I]t is concerned with
preventing a person, who is known to have
committed a serious crime in the past, from
becoming dangerously armed, regardless of whether
that person uses, displays, or conceals the
firearm.

16 Va. App. at 358, 429 S.E.2d at 617.

Nothing in this statement of policy, or in the
plain language of the statute, bifurcates convicted felons with
firearms into classes of those (1) possessing firearms ready to
fire immediately, or (2) possessing firearms which can fire with
some repairs or adjustments.

Further, because there is no victim perception
element to Code ? 18.2-308.2, as there is under Code
? 18.2-53.1, there is no public policy or legislative
intent to find a felon who possesses a BB gun, a squirt gun or a
plastic toy gun to be in possession of a firearm. That is all the
Jones decision held. When the General Assembly used the
term "firearm" in Code ? 18.2-308.2, it meant a
"firearm" is a firearm under that statute if it was
made to shoot bullets, not BBs or tap water.

Had later interpretations of Jones
limited the holding to devices such as toy weapons, squirt guns
or BB guns, those decisions may not have run afoul of the plain
meaning of the statute or created the byzantine network of
decisions which has since evolved. The aftermath of Jones
has seen creative findings of circumstantial proof with regard to
the operability of the accused felon’s firearm which are not only
difficult to reconcile, but also provide little guidance to the
trial courts. For instance, in Redd v. Commonwealth, 29
Va. App. 256, 511 S.E.2d 436 (1999), no gun was seized from Redd
or produced at her trial for possession of a firearm by a
previously convicted felon. Nonetheless, Redd’s threat to kill
the clerk and her placing a "long black gun" on the
store counter was sufficient to justify the inference that the
object was an operable firearm. In Taylor v. Commonwealth,
33 Va. App. 735, 536 S.E.2d 922 (2000), a case under Code
? 18.2-308.4, the defendant’s exposure of a firearm tucked
in his waistband was sufficient to permit the inference that it
was a functional, operational firearm and sustain a conviction.
As a corollary, decisions such as Rogers, Timmons, Gregory
and Williams reflect a highly subjective approach in
determining whether a felon’s gun, which is in evidence at trial,
is sufficiently close to firing status to justify a conviction.

Code ? 18.2-308.2 prohibits a convicted
felon "to knowingly and intentionally possess or transport any
firearm." (Emphasis added). While the statute does not
define firearm, the adjacent "instant check" statute,
Code ? 18.2-308.2:2, provides "firearm means any
handgun, shotgun or rifle which expels a projectile by action of
an explosion." Similarly, the plain dictionary meaning of
"firearm" is: "A weapon that expels a projectile
(such as a bullet or pellets) by the combustion of gunpowder or
other explosive." Black’s Law Dictionary 648 (7th ed.
1999). Nothing in these or similar definitions bifurcates
firearms into actual operational and not fully functional
categories.

The application of Jones in subsequent
cases has created a body of law that is contrary to the plain
meaning of the statute and attributes a legislative intent where
none exists. The practical result of the "operability"
element has left a confusing zigzag trail for the trial courts to
decipher. This is particularly apparent in decisions like Redd
and Taylor where no gun is in evidence and there is no
direct evidence as to whether the weapon functions, but an
inference of operability may be drawn. For instance, if, in Redd,
the only action of the accused had been to place the weapon on
the store counter without a verbal threat, could an inference of
operability properly be drawn?

Even in cases where the gun is introduced into
evidence, the question of operability engenders innumerable
scenarios as to when or if the weapon could become operable or
capable of firing. Did the legislature intend there to be a time
test, under Code ? 18.2-308.2, on the felon’s personal
ability to make the weapon operable? If the weapon required more
than the insertion of the firing pin or ammunition clip, would
the weapon’s operability be judged by the felon’s ability to make
the weapon fire, his access to contacts who could perform that
function or his financial ability to retain a gunsmith who could
timely do so? Would the felon be required to be able to make the
weapon operable within a given time period (ten minutes or ten
hours)? It cannot be said that the General Assembly
"intended" such a test where the clear and unambiguous
meaning of the statute is to prohibit a felon from possessing any
firearm.

When the legislature has spoken
plainly courts may not change or amend
legislative enactments under the guise of
construing them. The province of construction
lies wholly within the domain of ambiguity.
There is no ambiguity in the language that
forbids a convicted felon to carry a firearm.
That which is plain needs no interpretation. Winston
v. City of Richmond
, 196 Va. 403, 407-08, 83
S.E.2d 728, 731 (1954).

Jones, 16 Va. App. at 358, 429 S.E.2d at
617.

The General Assembly included no language in
the statute to circumscribe the absolute prohibition of a
convicted felon’s possession of a firearm. It matters not whether
the gun’s current condition is "operable" or
"inoperable" or whether a can of WD-40 or the local
gunsmith could render the firearm fully functional.

In a prosecution under Code ? 18.2-308.2,
once the Commonwealth proves the accused is a convicted felon who
possessed an object made to "expel a projectile by the
combustion of gunpowder or other explosive," then it has
proven all the necessary elements of the crime based on the plain
language of the statute. When enacting Code ? 18.2-308.2,
the General Assembly’s intent was clear: A felon cannot possess any
firearm. Had the legislature wished to draw a distinction between
operable and inoperable firearms, it would have done so with
clear and distinct language. It did not, and neither did Jones.
The reference in Jones to a firearm’s "actual
capacity to do serious harm" relates to "a weapon
designed or intended to expel projectiles by the discharge or
explosion of gunpowder" not to a separate requirement of
operability.

As the foregoing reflects, we have made a
detailed inquiry finding "a mistake exists in our prior
decisions." Accordingly, we exercise the clear authority
under Code ? 17.1-402(D) to overrule those decisions.

We overrule Gregory and Williams
to the extent such cases are read to require the Commonwealth to
prove as an element of violating Code ? 18.2-308.2 that the
convicted felon’s firearm was presently operational, was capable
of being fired, could be readily converted to firing or could
readily be made operational.
[5] We hold Jones established no such requirement.
To the extent Jones is read inconsistently with this
opinion, Jones is also overruled.

The dissent’s inference that the United States
Constitution’s ex post facto protection is
somehow implicated by our decision is inaccurate. None of the
cases cited stand for that proposition, particularly where a
prior panel decision is overruled en banc on the
basis of clear error in application of a statute. Moreover, the
appellant’s conviction in the case at bar is based on acts
committed prior to the decisions in Gregory and Williams.

Code ? 18.2-308.2 only requires the
Commonwealth to prove, as elements of the crime, that the accused
is a convicted felon and that he or she possessed an object which
was made with the purpose to expel a projectile by gunpowder or
other explosion. In the case at bar, the Commonwealth proved
these elements at trial and, therefore, the appellant’s
conviction is affirmed.

Affirmed.

Benton, J., dissenting.

Applying Code ? 18.2-308.2, a panel of
this Court in Jones v. Commonwealth, 16 Va. App. 354, 429
S.E.2d 615 (1993), noted that "[t]he legislature has
assigned various meanings to the term ‘firearm’ in [different] sections of Title 18.2," id. at 356, 429 S.E.2d at
615-16, and concluded that "whether the term ‘firearm’ when
used in a statute without being defined is to be given its
traditional meaning or a more expansive meaning depends upon the
purpose and policy underlying the particular statute." Id.
at 357, 429 S.E.2d at 616. Based upon a review of the various
statutes, the decision further concluded as follows:

[W]hen a statute is designed
only to proscribe the act of possessing a firearm
or the conduct of a felon in order to reduce a
real threat of harm to the public, a narrower,
more traditional definition of
"firearm" is required. See Timmons
v. Commonwealth
, 15 Va. App. 196, 200-01, 421
S.E.2d 894, 897 (1992) ("firearm" under
statute penalizing the possession of a firearm
while in possession of cocaine does not include
"’any object’ that [appears to have] capability of firing a projectile, even if it
lacks that capability").

Id.

It was in the context of a review of all the
firearm statutes that Jones construed the term
"firearm" in Code ? 18.2-308.2 and held the
following:

Code ? 18.2-308.2
prohibits a felon from possessing a device that
has the actual capacity to do
serious harm because of its ability to expel a
projectile by the power of an explosion, and it
is not concerned with the use or display of a
device that may have the appearance of a firearm.
Therefore, we hold that the term
"firearm" as used in Code
? 18.2-308.2 is used in its traditional
sense. The statute does not seek to protect the
public from fear of harm caused by the display of
weapons; rather, it is concerned with preventing
a person, who is known to have committed a
serious crime in the past, from becoming
dangerously armed, regardless of whether that
person uses, displays, or conceals the firearm.

Id. at 357-58, 429 S.E.2d at 617
(emphasis added). We affirmed that decision en banc.
Jones v. Commonwealth, 17 Va. App. 233, 436 S.E.2d 192
(1993) (en banc).

In the eight years since Jones, neither
the Supreme Court nor the legislature has reviewed or changed the
definition of firearm that Jones applied to Code
? 18.2-308.2. Indeed, because the General Assembly has
revised the firearm statutes on several occasions without any
indication that it has disagreed with our definition, "the
General Assembly is presumed to use the language as judicially
defined." Williams v. Fairfax Co. Hous. Auth., 227
Va. 309, 314, 315 S.E.2d 202, 205 (1984). See also Burns
v. Stafford County
, 227 Va. 354, 360, 315 S.E.2d 856, 860
(1984).

Our decisions in Williams v. Commonwealth,
33 Va. App. 796, 537 S.E.2d 21 (2000), and Gregory v.
Commonwealth
, 28 Va. App. 393, 504 S.E.2d 886 (1998), have
been faithful to the definition of firearm that we used in Jones
and based on the construction of the statutes. The decision in Williams
particularly and thoroughly analyzed Jones and the cases
that followed Jones in determining the type of weapon
which is proscribed by Code ? 18.2-308.2. See 33 Va.
App. at 800-08, 537 S.E.2d at 23-27.

The majority now interprets Code
? 18.2-308.2 to require "only [that] . . .
the Commonwealth . . . prove, as elements of the crime,
that the accused is a convicted felon and that he or she
possessed an object which was made with the purpose to expel a
projectile by gunpowder or other explosion." Although the
majority professes to follow Jones, it has eliminated the
significant element of that decision’s holding, the "actual
capacity" of the firearm to operate. Simply put, the
majority opinion has re-defined the term "firearm" as
used in statutes we analyzed in Williams, Gregory,
and Jones.

Regardless of whether the majority overrules Jones
and its progeny or merely overrules Williams and Gregory,
the majority makes no clear "inquiry . . . whether
flagrant error or mistake exists in the [prior] decision[s]." Pulliam v. Coastal Emergency Servs.,
257 Va. 1, 10, 509 S.E.2d 307, 312 (1999). Those decisions have
stood "without any indication to the bench, the bar, or the
public that flagrant error or mistake exists in the
decision[s]." Id. at 25, 509 S.E.2d at 321. Indeed,
the Commonwealth in this case does not challenge the definition
of "firearm" enunciated in Jones, Williams,
and Gregory. These factors indicate that the principle
needs no revision. Furthermore, the majority has chosen to
jettison precedent, not in a tort or contract case involving the
payment or non-payment of money to a party, but in a criminal
case involving the liberty of a citizen of the Commonwealth.

Although, strictly speaking, judicial decisions
do not implicate the Ex Post Facto Clause of
the United States Constitution, see United States v.
Wasserman
, 504 F.2d 1012, 1015 (5th Cir. 1974) (citing James
v. United States
, 366 U.S. 213, 247-48 (1961) (separate
opinion of JJ. Harlan and Frankfurter)), the same considerations
bind the judiciary. Indeed, the United States Supreme Court has
held as follows:

[A]n unforeseeable judicial
enlargement of a criminal statute, applied
retroactively, operates precisely like an ex post
facto law, such as Art. I, ? 10, of the
Constitution forbids. An ex post facto law has
been defined by this Court as one ‘that makes an
action done before the passing of the law, and
which was innocent when done, criminal; and
punishes such action,’ or ‘that aggravates a
crime, or makes it greater than it was, when
committed.’ If a state legislature is barred by
the Ex Post Facto Clause from passing such a law,
it must follow that a State Supreme Court is
barred by the Due Process Clause from achieving
precisely the same result by judicial
construction.

Bouie v. City of Columbia, 378 U.S. 347,
353 (1964) (citation omitted).

Prior to today’s decision, the Commonwealth had
to prove two discrete elements to demonstrate the existence of a
firearm to convict an accused under Code ? 18.2-308.2. Gregory,
28 Va. App. at 400, 504 S.E.2d at 889. With the majority
opinion’s elimination of the "actual capacity"
requirement from Jones, the Commonwealth will only have to
prove one element. Such a radical lowering of the threshold for
conviction changes the nature of the conduct proscribed and
punishes conduct that was legal before the publication of the
current opinion. As such, at the very least, it cannot apply in
this case, where the evidence was insufficient to convict
Armstrong under our prior interpretation of this statute. As
stated in the dissent from the panel decision, "the
Commonwealth failed to prove that ‘the weapon could be readily
rendered functional.’" Armstrong v. Commonwealth, No.
1388-99-3 (Va. Ct. App. Nov. 21, 2000) (quoting Williams,
33 Va. App. at 808, 537 S.E.2d at 27). Therefore, because the
Commonwealth did not bear its burden of proof, we should reverse
the conviction.

In conclusion, I believe that Jones and
its progeny properly construed Code ? 18.2-308.2 and that
today’s majority’s view, which was not advanced on brief by
either party, represents merely another way of looking at the
same issue we previously decided. Its only compelling feature is
that it has garnered a sufficient number of votes to overrule our
prior decisions.

For these reasons, I would reverse the
conviction. I dissent.

FOOTNOTES:

[1] Appellant was also convicted of possession of
marijuana, in violation of Code ? 18.2-250.1, which is not
the subject of this appeal.

[2] At trial, the Commonwealth did not rely upon the BB gun
as the basis for the firearm conviction.

[3] The appellant does not contest that he was in
possession of the .22 caliber rifle.

[4] Our decisions, as well as those of the Supreme Court of
Virginia, have read the term "firearm," as used in Code
? 18.2-53.1, to include "anything that the victim
reasonably perceives to be a firearm, even though it may not in
actuality be a weapon or be capable of firing a projectile by any
means." Holloman v. Commonwealth, 221 Va. 196, 199,
269 S.E.2d 356, 358 (1980). Operability or actual capacity of the
firearm to fire is not an element of a violation of Code
? 18.2-53.1, which prohibits any person (not just felons)
from using a firearm while committing a felony. Accordingly,
unlike the result in Williams, we held in Miller v.
Commonwealth
, 23 Va. App. 208, 475 S.E.2d 828 (1996), that a
rusty, inoperable revolver used in a robbery was a firearm under
Code ? 18.2-53.1. We affirmed the trial court’s finding
that the rust on the gun did not affect its appearance and that
the weapon had not "lost its identity as a firearm." Id.
at 213, 475 S.E.2d at 830.

Jones differentiated a
"firearm" in the possession of a convicted felon under
Code ? 18.2-308.2 from a "firearm" used in the
commission of a felony under Code ? 18.2-53.1. The basis
for the distinction is not whether a weapon "designed or
intended to expel projectiles by the discharge or explosion of
gunpowder" actually works at the time of a felonious act.
Rather, the distinction is that whatever object is used to
perpetrate a felony (robbery, for instance) must reasonably
create the perception in the victim of fear of harm. The victim
must perceive the toy gun as a real firearm in order for the
would-be robber to engender the necessary threat and intimidation
to successfully complete his task and also be guilty of violating
Code ? 18.2-53.1.

It is for this reason that the Supreme Court of
Virginia in Holloman held the use of a BB gun, while not
within the traditional definition of a firearm, was a
"firearm" in the reasonable perception of the victim of
a robbery and, therefore, was a firearm for purposes of Code
? 18.2-53.1. 221 Va. at 198, 269 S.E.2d at 358.

[5] The same rule shall apply in prosecutions under Code
?? 18.2-300 and 18.2-304.4 so that no proof of operability
of the sawed-off shotgun, sawed-off rifle or firearm, as
applicable, shall be required.

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