Virginia Lawyers Weekly VA Lawyers Weekly
A convicted felon who did not fully complete a form asking about prior felony convictions before ordering a firearm and who returned to cancel the sale after being told by store personnel that his purchase had been denied, still can be convicted of attempted possession and transport of a firearm after a prior felony conviction, the Court of Appeals says.
Defendant argues on appeal that the evidence failed to prove he committed an overt act necessary to prove the attempted possession of the firearm.
This court’s holdings in Parsons v. Commonwealth, 32 Va. App. 576 (2000), and Dodson v. Commonwealth, 23 Va. App. 286 (1996), control this case. Viewing the evidence in the light most favorable to the commonwealth, the evidence showed defendant picked out a 9mm Hi-Point carbine gun, filled out Virginia form SP-65 and federal form 4473 to obtain a background check, paid for the gun and left the store without the gun. Defendant’s actions in the instant case are indistinguishable from the actions of the defendants in Parsons and Dodson. Defendant’s actions went beyond mere preparation and constituted a direct, albeit ineffectual act towards the commission of the crime. Thus, it was reasonable for the fact finder to conclude defendant arranged the means or measures necessary for the commission of the predicate offense of knowingly and intentionally possessing or transporting a firearm after having been convicted of a felony and that the attempt was a direct movement toward the commission of the offense after the preparations were made.
Defendant argues his cancellation of the purchase negates his criminal culpability. This argument finds no support in our jurisprudence.
Conviction for violation of Code §§ 18.2-26 and -308.2 affirmed.
Watkins v. Commonwealth (Alston) No. 1124-12-1, Aug. 6, 2013; Norfolk Cir.Ct. (Poston) J. Barry McCracken, APD, for appellant; Kathleen B. Martin, Sr. AAG, for appellee. VLW 013-7-217, 7 pp.
